National Equitable Soc. v. Carpenter

(after stating the facts as above). The theory upon which the suit was brought and prosecuted was that appellee, having a right to do so, had rescinded the contract he entered into with appellant and was entitled to recover back the sum he had paid to it. Without deciding whether they were or not, it may be conceded, in disposing of the appeal, that the representations made by the agent (King) and relied upon by appellee, as he claimed, were of such a character as would have entitled him to a rescission had it appeared that King was authorized by appellant to make them on its behalf; for if the representations were of that character the judgment, nevertheless, cannot be sustained, because it appeared that King was not authorized to make them, and that appellee was chargeable with knowledge of the fact that King exceeded his authority to act for appellant when he made them. So far as the record shows to the contrary, appellant neither authorized nor knew anything about the representations made by King. In obligating itself as it did in the contract it acted in utter ignorance, it seems, of the fact that such representations had been made to appellee, and, moreover, in reliance, it seems upon his understanding fully the terms upon which it sold its "loan contract," for in his application to it appellee assured it that he had examined its plans, had read a printed copy of the kind of contract he applied for, was familiar with and understood all the covenants and requirements of such a contract, and in making the application did not rely upon "any statements, promise, undertaking or guarantee on the part of said solicitor (King) or any other person." In the face of such representations as those just recited, made by appellee to appellant, it is obvious, we think, that he had no right to rescind the contract appellant delivered to him, because he did in fact rely upon the representations made to him. To hold otherwise, it seems to us, would be to say, in effect, that appellee could induce appellant to enter into a contract with him on his assurance that certain representations had not been made to him, and then rescind it on the ground that they had been made to him. The theory upon which, it seems, appellee thought he was entitled to the relief he obtained, was that he made the application for the loan on a blank furnished to him by the agent, did not read it carefully before he signed it, and as a matter of fact when he signed it had not read nor seen a copy of one of appellant's loan contracts. "I signed my name to the application," he testified, "without paying much attention to what I signed." It did not appear that he was prevented by fraud of any kind practiced upon him by the agent from reading the application before he signed it. Therefore, it must be said, it did not appear that he was in a position to claim that he was ignorant of the contents of the application. Loan Co. v. Thomas, 28 Tex. Civ. App. 379,67 S.W. 457. If, however, it did not appear that appellee was in the attitude of having induced appellant to enter into the contract in reliance upon the truth of the representations contained in his application, we nevertheless would be of opinion the judgment in his favor was unwarranted. It will be noted, as is shown in the statement of the case above, that appellee by his writing indorsed thereupon accepted the contract tendered to him by appellant "with full understanding of all the terms and conditions hereof and hereto attached, all of which," he said, "have been read by me." One of the "terms and conditions" referred to as "hereto attached," was the one numbered "13," set out in the statement above. If appellee read that, as he said he did, in his written acceptance of the contract, he must have known that King, in making the representations he did as to the time when appellant would make the loan, was acting outside his authority as appellant's agent. Testifying as a witness, however, appellee said he did not read the contract before he accepted it. The excuse he gave for not reading it was that it "was hard for him to understand." It does not appear in the record that he failed to read the contract, or have it read and explained to him, because of any act or conduct of appellant or its agent. Therefore we think it must be said that it appeared as a matter of law that notwithstanding he did not read it appellee was chargeable with knowledge of the contents of the contract at the time he accepted it, was bound by its terms, and hence was not entitled to the relief he sought. Gibson v. Brown, 24 S.W. 575; Insurance Co. v. Harris, 26 Tex. Civ. App. 537,64 S.W. 871; Casualty Co. v. Thomas, 178 S.W. 606; Wooters v. Railway Co., 54 Tex. 294.

The judgment will be reversed, and judgment will be rendered in favor of appellant.

On Motion for Rehearing. It is insisted that we erred in treating appellee's suit as one to rescind the contract between him and appellant. It was so treated because it was to recover back the money he had paid to appellant. He was entitled to that relief only upon the theory that he had a right to rescind the contract.

His suit, he says in the motion, was for "damages for breach of the contract actually made as explained by the agent." If it was, then, plainly, he was not entitled to the judgment he obtained, because he did not prove he sustained any damage. Proof merely that appellant had agreed to lend him money within a time specified and failed to do so, lacked much of showing that he was thereby damaged.

If the suit should be treated as one for damages for deceit of the agent, whereby appellee was induced to enter into a contract he otherwise would not have made, as appellee seems to argue it might have been, then he was not entitled to the recovery he had, nor to any recovery, for the same reason, to wit, because he did not prove that he suffered any damage. If he was so induced to enter into the contract, and if for any reason it was of less value to him than he had a right to expect it to be, he should have alleged and proven that fact and the facts which would have enabled the court to measure the damages he suffered.

The motion is overruled.