Boles v. Aldridge , 1912 Tex. App. LEXIS 1255 ( 1912 )

WILLSON, C. J.

Appellant owned certain town lots and 200 acres of land in Cooke county, and appellee owned 640 acres in Reagan county. Appellant’s land was incumbered by liens to secure debts amounting to $6,-000, and appellee’s, was incumbered by a lien to secure a debt of $4,600. They agreed to exchange their respective properties; appellant undertaking in consideration of the conveyance to him of the Rea-gan county land to pay the debt against same, and appellee undertaking in consideration of the conveyance to him of the lots and Cooke county land to pay the debts against the latter, and in addition thereto to pay to appellant $200 in cash and make and deliver to him his two promissory notes for $750 each. The exchange was consummated as agreed upon. On the ground that he was induced to make the contract by false representations made to him by appellee as to the character of the Reagan county land and as to improvements on it, appellant sought by this suit to rescind the exchange he had made. The court below instructed the jury to find for appellee, and on such a finding rendered judgment that appellant take nothing by his suit. The complaint, and the only complaint, made here, is that the court' erred in so instructing the jury. °

In his petition appellant alleged that on March 15, 1911, the date of his deed conveying the lots and Cooke county land to appel-lee, and prior thereto, the latter, “professing to be familiar with its quality and condition, as well as the improvements thereon,” represented to him that the Reagan county land was “all good, smooth land, fenced with three wires and cedar posts, and that a windmill, well, and tank were on said section of land on November 10, 1910, and were still there.” He then alleged that the representations were untrue; “there being no windmill, well, or tank on said section on November 10, 1910, or subsequent to said time, and said land being uneven and broken, largely occupied by ridges, gulches, and ravines.” The testimony was sufficient to support a finding that there never was a windmill, well, or tank on the land, that it was uneven and broken, and fenced on only three sides. It appeared from uncontradicted testimony that at the time the exchange was made neither appellant nor appellee had ever seen the Reagan county land. Appellant was the only witness who testified as to the representations made by appellee to induce him to make the exchange. On his direct examination he testified that appellee told him that the Reagan county land was “all good, smooth land,” “was fenced, and had a well, windmill, and tank on i¿.” He further testified that appellee told him that he (appellee) “had never been on the land himself, hut he knew the parties that had been on it, that they were perfectly reliable, and he would guarantee what they told him.” On his cross-examination, with reference to the representations made to him by appellee, appellant testified: “He told me he had never seen it. * * * He told me it had been described to him. He didn’t show me any letters that he had describing it. He just told me what kind of land it was, and he said he knew the people that told him what kind of land it was, and he knew they were reliable men and that he thought the land was as represented. Probably he told me who the people were, but I have forgotten the names if he did. He had a description of the land on his books, I think, and possibly he showed it to me; it might have been a letter. I depended on the description he gave me. I supposed. he knew something about the land or he would not have represented it to me. I knew he had never-seen it, but he had perfect confidence in the parties. I saw a description of the land. I don’t know whether it was in a letter or a booh. I bought this land without seeing it, and bought it from a man that I knew hadn’t seen it. * * * I demanded a written guaranty because I traded for the land without seeing it. Yes, sir; I traded with a man that had never seen it, and, as neither he nor I knew whether the statements were good or not, I wanted him to guarantee them, * * '* I made the trade really on Mr. Aldridge’s guaranty; that is what I relied on. I would never have traded for the land if he had not given me this written guaranty.” The written guaranty referred to was as follows:

“The State of Texas, County of Cooke.

“I, George W. Aldridge, grantee in a deed executed by James G. Boles and wife to G. W. Aldridge and wife, M. E. Aldridge, dated March 15, 1911, to 200 acres of land in Cooke county, Texas, out of the John Barnett survey, do hereby state that as part consideration for said 200 acres of land I have traded to said James G. Boles section No. 69, block No. 1, abstract No. 505, patented to Texas & Pacific R. R. Co., in Reagan county, Texas, and in order to make said trade with said Boles I represented that said 64Ó acres of land was located about twelve miles south of Styles, in Reagan county, Texas, and was all good, smooth land, fenced with three wire and cedar posts, and a windmill, well and tank was on said section of land on November 10,1910,. and further as consideration for said trade I guaranteed and warranted said land to be so improved at said time and of such character and quality of land, and agreed to make same come up to my said representations if same was not as represented by me. Also, as consideration for said trade, I give to said Boles option and privilege to sell the north 100 acres of said 200 acres of land for one year at sixty dollars per acre, and allow him $750 in event he makes a sale of north 100 acres at said price, or at a greater price, within twelve months, and in the event that G. W. Aldridge disposes of and sells said north 100 acres within one year at $60 per acre, or more, then in that event, said Ald-ridge is to pay said Boles $500. Witness my hand this March 15, 1911, at Myra, Texas.

“G. W. Aldridge.

“Witnesses: H. R. Jones.”

[1] It will be noted that the suit was not on the guaranty evidenced by the instrument set out above, and further that the relief prayed for was not sought on the ground of mistake as to the character of the Reagan county land and improvements thereon, but was sought on the ground of fraud on the part of appellee, in that he misrepresented the character thereof. It also will be noted that while appellee represented the land to be go.od, smooth land, fenced, and as having a windmill, well, and tank on it, he at the same time informed appellant that he had never been on or seen it, and that his representations as to it and the improvements on it were based on information he had from parties then named by him, who had been on it. The case seems to be within the rule that a person who makes a representation on information received from others is not to be held to be guilty of fraud, though the representation is false, if he informs the other party that he does not make the same as of his own knowledge, and if he does not know the information is false, or that his informant is unreliable. 14 A. & E. Eney. Law (2d Ed.) pp. 118 and 102. There is nothing in the record tending to show that appellee knew, or had any reason to believe, that the information he had as to the land and improvements was false, or that the parties who furnished same to him were not reliable. In Davidson v. Jordan, 47 Cal. 351, the defendant sought to avoid a recovery on a promissory note he had made in payment of an interest purchased by him in a mine, on the ground that he had been induced by the false and fraudulent representations of one Frank, the plaintiff’s assignor, to make it. In reversing a judgment in favor of the defendant the court said: “It appears from the testimony of the defendant that Frank, in representing the value of the mine, the amount and value of the ore extracted and on hand, the supply of water and abundance of wood for the working of the mine, and other matters affecting the value of the mine, spoke upon information received from other persons; that he gave the defendant the names of the persons who had communicated the information to him; and that those persons, in conversation with the defendant, corroborated all the statements made by Frank. Frank did not profess to have seen the mine, or to have any personal knowledge of its value, or of any of the matters in respect to which the false representations are alleged to have been made; but he merely communicated the information he had from others, and so stated to the defendant. Representations made in that manner cannot be said to be false or fraudulent unless Frank knew or had reason to believe them to be untrue, and there is no evidence in the case inculpating him in that respect” In Moore v. Scott, 47 Neb. 346, 66 N. W. 441, Scott had assigned to Moore his rights under a contract for the purchase of a tract of land. Moore sued to rescind the contract on the ground that Scott had induced him to enter into, it by false representations in regard to the character of the land. It appeared from the testimony heard that Scott in the transaction with Moore had- disclaimed personal knowledge of the character of the land, but had told Moore that certain persons, whom he deemed reliable, had made statements in regard to the land substantially similar to those which Moore charged him with making. In affirming a judgment in favor of Scott, the Supreme Oourt of Nebraska said: “The fact represented was that persons whom the defendant deemed reliable so represented the land to him. The defendant did not represent these matters in regard to the character of the land as facts within his knowledge, but he 'affirmatively disclaimed all knowledge in relation thereto.” The two cases stated sufficiently illustrate the principle which we think must be held to control in the disposition of this appeal. Cooper v. Lovering, 106 Mass. 77, Hillyer v. Dickinson, 154 Mass. 502, 28 N. E. 905, and English v. Grinstead, 12 Wash. 670, 42 Pac. 121, may be cited as further illustrating it

The judgment is affirmed.