Foster v. Atlir , 1919 Tex. App. LEXIS 1079 ( 1919 )

STRONG, J.

The defendants in error sued Foster and McCarthy to recover damages for false representations made in the exchange of lands. It was alleged in the petition that plaintiffs conveyed cértain lots in the city •of El Paso, Tex., to defendants, in exchange for a. tract of land, and other property not necessary to describe, situated in Dona Ana ■county, New Mexico; that defendants represented to plaintiffs that they had perfect title to the tract of land conveyed, and that it contained 151. acres; that in truth the defendants had no title to 17.38 acres of the land, and, in addition, there was a shortage in acreage of 32.11 acres; that the false representations made by defendants as to the title and acreage of the land were fraudulently made for the purpose of inducing plaintiffs to enter into the contract of exchange, and that they would not ha^e entered into the contract but for said representations. It was further alleged that in making the exchange of properties, the parties agreed on the respective values thereof; and that by reason of the shortage in acreage of 32.11 acres and the failure of title to 17.38 acres, the difference between the value of the land and other property received and that given in exchange, on the basis of the agreed value, was $5,100. Plaintiffs sought a recovery of that amount as damages, or in the alternative such sum as the evidence might show would compensate them for the loss sustained. Defendants denied the material allegations in the petition. The trial before a jury resulted in a judgment in favor of plaintiffs, which was affirmed by the Court of Civil Appeals. 181 S. W. 520.

The case was submitted, to the jury on special issues. -The issue as to the value of the property given in exchange by the plaintiffs was properly submitted and found by the jury, but no issue was submitted, and no finding made by the jury as to the value of the property received. Instead the court directed the jury, in arriving at the value of the' shortage,, to assume the value of the property received to be the same as the value, found by them, of the property given in exchange.

[1] Thé measure of damages in a case of this character is the difference between the value of the property given and that actually received in exchange, at the time of the exchange, and in the absence of a finding as to the value of the respective properties the court could not render a proper judgment. George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15- Ann. Cas. 456; Cox v. Barton; 212 S. W. 652.

[2, 3] It is contended, however, that defendants did not properly request the submission of the omitted issue, and, as there was evidence of the value of the property received in exchange, that its value, under the provisions of article 1985, R. S. 1911, should be deemed as found by the court in such manner as to support the judgment. We cannot agree with this contention. The article .above referred to provides, in substance, that the failure to submit an issue shall not be deemed ground for reversal of the judgment unless its submission-was requested in writing, and' further provides that on appeal an issue not submitted and not requested shall be deemed as found by the court in such manner as to support the judgment, if there be evidence to sustain such finding. This case was tried after the Practice Act of 1913 (Acts Reg. Sess. p. 113, e. 59 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1954, 1970, 1971, 1973, 1974, 1984a, 2061]) became effective. The defendants, before the charge of the court was read to the jury, filed written objections to the issues submitted, on the ground that the case was submitted upon the wrong theory as to the measure of damages, and framed and incorporated in the objections an issue, with the request that it be submitted, requiring the jury to find the difference between the value of the property received and that given in exchange. This was, in our opinion, a sufficient request to submit the omitted issue. The statute merely requires that the request to submit an issue be in writing, and in such form as to advise the court that the complaining party desires to have the jury, rather than the judge, decide the issue incorporated in the request. Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132. The failure of the court to give the requested issue requires a reversal of the case.

It is unnecessary to pass upon the questions raised by the other assignments, as they will probably not arise upon another trial.

We are of opinion that the judgment of the Court of Civil Appeals and that of the trial court should be reversed, and the cause remanded for a new trial.

PHILLIPS, C. J.

The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the'Supreme Court.. We approve the holding .of the Commission on the questions discussed. '

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