Texas Co-Op. Inv. Co. v. Clark , 235 S.W. 973 ( 1921 )

^* Writ of error dismissed for want of Jurisdiction February 22, 1922. On July 21, 1921, the Supreme Court reversed the judgment of the majority of this court, and remanded the cause to this court for the further consideration of other assignments. In our opinion, the majority concluded that the action pleaded by plaintiff was one for damages on fraud and deceit, and not for a rescission of the contract, and that the statute of limitation of two years applied, and that the cause was barred. The Supreme Court held that the cause pleaded by plaintiff was one for rescission, and that the four-year statute of limitation applied. The first five assignments deal with defendant's plea that the two-year statute of limitation bars plaintiff's action, and it will not be necessary for us to further notice these assignments.

The sixth, seventh, eighth, ninth, and tenth assignments are directed to the action of the court in overruling defendant's exceptions and admitting in evidence testimony of Homer Peoples, the agent of defendant, who sold plaintiff certain stock of the company, to the effect that said stock was the finest thing in the world, and would earn good and large dividends, etc., and the submission of these statements as a ground for recovery, in case the jury should find that they were false and that plaintiff relied on them. Appellant objects to these statements being admitted in evidence, and being submitted as a ground for recovery, for the alleged reason that they are mere expressions of opinion on the part of Peoples, and puffing inducements. The court submitted to the jury the inquiry as to whether Peoples represented to plaintiff that the financial condition of the company was fine and good, and that its stock was above par, and was selling rapidly, and other alleged representations, including those heretofore mentioned, and the jury were required to find that all of these representations had been made by said agent, and that all of them were false and were material, and that plaintiff relied on their truth, before they would be authorized to find for plaintiff. It may be admitted that some of these representations were not properly submitted as a basis for recovery, and that defendant's objections thereto should have been sustained, yet it merely placed a greater burden Un plaintiff than should have been imposed upon him, and required the jury to find whether immaterial representations were made in addition to the material ones alleged, before they should find for plaintiff. We can see no reversible error in this, and think that the error was favorable to defendant. Moore v. Moore, 73 Tex. 382,11 S.W. 396; Pardue v. James, 74 Tex. 299, 12 S.W. 1.

Where a party upon whom rests the burden of proving fraud has to rely upon circumstantial evidence, great latitude is allowed in the admission of testimony. The rule of evidence generally in cases of fraud is liberal. Gilliam v. Alford, 69 Tex. 267, 6 S.W. 757; Cooper v. Lee,1 Tex. Civ. App. 9, 21 S.W. 998; Fairbanks v. Simpson, 28 S.W. 128. The fact that plaintiff held certain stock of another company, which probably had not been paid for in full at the time of its issuance, did not render inadmissible the statement made by the agent of the defendant to plaintiff that he could put up this stock, and, in consideration of a transfer of the same, defendant would carry plaintiff until the dividends paid the indebtedness out. The fact that defendant subsequently refused to accept said stock as security would be admissible upon plaintiff's plea for rescission.

We have examined the other assignments of appellant, and do not find reversible error shown.

Our former judgment is set aside, and the judgment of the trial court is in all things affirmed.