DocketNumber: No. 2187.
Citation Numbers: 11 S.W.2d 250
Judges: WALTHALL, J.
Filed Date: 11/15/1928
Status: Precedential
Modified Date: 7/6/2016
Pursuant to such representations and promises Sibley and the Kean Lumber Company caused the 22 houses to be pointed out to Southland Life Insurance Company's representative, a written contract was made between Southland Life Insurance Company and Kean Lumber Company setting out the terms of the deal, and deeds were duly passed consummating the trade.
It is alleged that some of the houses were never completed by the Kean Lumber Company and Sibley, and that Southland Life Insurance Company, at an expense of $2,680.93, itemizing same, caused them to be completed after the defendants had failed to do so. It is further alleged that among the properties pointed out to Southland Life Insurance Company was lot 6, block E, San Jacinto Lawn; that lot was improved. It is alleged that it was represented to Southland Life Insurance Company that said improved lot was lot 7, block E, San Jacinto Lawn. Southland Life Insurance Company, relying on such representation, acquired title to said lot 7, believing that it was improved. It subsequently learned that lot 7, to which it had thus acquired title, was a vacant lot, and was not the improved property pointed out to it before the transaction was closed. The difference in the market value between lot 6 and lot 7 was alleged to be $3,100.
It was further alleged that the promises made by Sibley regarding the completion of the houses were false and fraudulent, and were made for the purpose of inducing Southland Life Insurance Company to make the trade. Appellee set out the several items of expenditures incurred and paid to complete the properties and prayed for judgment against Kean Lumber Company, jointly and severally, for the amount of its damages as alleged.
We have found no answer of the Kean Lumber Company in the record. Sibley's original answer contained pleas of general exception and general denial. Sibley's amended answer pleaded general exception, special exceptions, general denial, and special denials. On motion Sibley's amended answer was stricken, for the reason that same was not filed three days before announcing ready for trial, to which Sibley excepted. At the conclusion of the evidence the jury returned a verdict, on special issues submitted, substantially as follows, which issues more definitely reflect the issues tendered in the pleading than the foregoing brief statement:
(1) Sibley represented to Ellis that the property located in San Jacinto Lawn, which was to be traded to Southland Life Insurance Company, consisted of 22 houses and lots.
(2) Such representation was communicated to Southland Life Insurance Company.
(3) Southland Life Insurance Company relied upon such representation as a material, inducing cause for entering into the contract.
(4) Such representation was false.
(5) Southland Life Insurance Company would not have entered into the contract and made the trade it did with Kean Lumber Company, except for such representations.
(6) The reasonable market value of the net equity (that is, the full value, less the incumbrance of $4,400) of lot 6, block E, San Jacinto Lawn (the improved property), on February 17, 1926, was $3,100.
(7) The reasonable market value of lot 7, block E, San Jacinto Lawn (the vacant lot), on February 17, 1927, was $1,250.
(8) Sibley promised Ellis that the houses in San Jacinto Lawn, to be conveyed to Southland Life Insurance Company in the transaction, would be fully completed.
(9) At the time Sibley made such promise to Ellis, he did not intend to comply with such promise.
(10) Such promise was communicated to Southland Life Insurance Company.
(11) Such promise was relied upon by Southland Life Insurance Company as a material, inducing cause for entering into the contract.
(12) Kean Lumber Company made representations to Southland Life Insurance Company as to whether lot 7, block E, had a house on it.
(13) Southland Life Insurance Company relied on and acted on representations in buying said lot. *Page 252
(14) Southland Life Insurance Company, in closing the trade, did not make their own inspection of said properties and rely on their own inspector's report.
(15) (To be answered conditionally.)
(16) Kean Lumber Company did not complete the houses in San Jacinto Lawn involved in this suit at its own expense.
(17) (To be answered conditionally.)
(18) Southland Life Insurance Company necessarily expended $1,866.06 to complete said houses.
(19) Prior to the conveyance to it of said properties, Southland Life Insurance Company did not make an investigation whether a house was located on lot 7, block E, of San Jacinto Lawn addition.
(20) A proper investigation would not have disclosed that no house was situated on said lot 7.
(21) Sibley directed Ellis not to make any representations as coming from him.
On the verdict as returned, judgment was entered for appellee against Sibley and Kean Lumber Company, jointly and severally, for $3,155.78. Sibley alone prosecutes this appeal.
In 1919, the Texas Legislature enacted what is now, and was in operation at the time of the transactions involved here, article 4004. That article reads:
"Actionable Fraud. Actionable fraud in this State with regard to transactions in real estate or in stock in corporations or joint stock companies shall consist of either a false representation of a past or existing material fact, or false promise to do some act in the future which is made as a material inducement to another party to enter into a contract and but for which promise said party would not have entered into said contract. Whenever a promise thus made has not been complied with by the party making it within a reasonable time, it shall be presumed that it was falsely and fraudulently made, and the burden shall be on the party making it to show that it was made in good faith but was prevented from complying therewith by the act of God, the public enemy or by some equitable reason. All persons guilty of such fraud shall be liable to the person defrauded for all actual damages suffered, the rule of damages being the difference between the value of the property as represented or as it would have been worth had the promise been fulfilled, and the actual value of the property in the condition it is delivered at the time of the contract. All persons making the false representations or promises and all persons deriving the benefit of said fraud, shall be jointly and severally liable in actual damages."
The portion of the above article referred to and discussed by Judge Bishop, for the Commission of Appeals, section A, in Clem v. Evans, 291 S.W. 871, 51 A.L.R. 1135, is not involved in this case; nor the latter part of the article, applying to exemplary damages.
In the trial of the case at bar the court submitted the facts for actual damages only, and, in submitting the facts to be found, applied the rule for the measure of damages as in the above article of the statute; that is, the difference between the value of the property as represented and as it would have been worth, had the promises been fulfilled, and the value of the property in the condition it is delivered, and not the common-law rule as it had obtained before the above statute was enacted. The question, then, is whether since the enactment of article 4004, the measure of damage in the exchange of real property, induced by fraud, is the difference between the value of the property as represented, or as it would have been worth had the promise been fulfilled, and the actual value of the property in the condition it is delivered at the time of the contract.
In this case, as we view it, Sibley was not sued on his promises as contractual obligations. Such promises, were shown only as elements of actionable fraud which induced the contract, and the action was one for fraud and deceit, and not an action ex contractu. A false representation of an existing fact, where damage resulted therefrom, has always been ground for actionable fraud. Before the enactment of article 4004, in the case of future promises, the law wag that a promise knowingly, falsely, and fraudulently made, without the intent to fulfill it, when acted upon to his damage by the promisee, constituted actionable fraud. Russell v. Industrial Transportation Co.,
The case of George v. Hesse,
The suit here we construe to be one for deceit, resulting in damages, and not for breach of contract. The elements of facts pleaded and proved, as to the damages sustained, bring the case, we think, under the rule for the measure of damages stated in article 4004 of our statute. There is in the facts of this case, as found, a false representation of an existing material fact in pointing out lot 6 with a house thereon, and representing it as lot 7, with no house thereon; there is also here, as found, a false promise to do some act in the future, made as a material inducement to enter into the contract for the exchange of properties, and but for which promise the contract would not have been entered into.
In Prideaux v. Roark, 291 S.W. 868, Judge Bishop of the Commission of Appeals, section A, defines a false representation of a past or existing fact, as applied to article 4004, to be a representation which is untrue, though the party making it did not know it was untrue at the time of making it. We have here, as found, a false promise to the effect that the houses would be fully completed when the houses were not fully completed, and that the party so promising did not, at the time of making the promise, intend to comply therewith. In the same case Judge Bishop defines a false promise, as applied to article 4004, to do some act in the future in a promise which the promisor did not intend to perform at the time it was made. We see no reason why this case does not come squarely under article 4004, and have applied the measure of damages therein provided.
In enacting the article defining what shall constitute actionable fraud and prescribing a rule for damages, the Legislature said, in section 4 of the act (Acts 1919, c.
There are some cases referred to and discussed by appellant and appellee which seem to follow the common-law rule for the measure of damages in real estate and stock transactions stated in George v. Hesse, as that rule was applied prior to the act of 1919, and referred thereto by appellant as authority for so holding; but, without undertaking to analyze or differentiate these cases in their facts from the case at bar, we hold that the trial court was not in error in applying the measure of damage stated in article 4004 of our statute.
The evidence is too extensive, some 268 pages of the record and maps, to reproduce it here in reply to appellant's propositions, severally, that it does not support the jury's findings. We have carefully reviewed the evidence, and are of the opinion that it is sufficient to call for the submission of each of the several issues submitted, and to sustain the findings made, and we overrule each of such propositions.
The contract involved here, executed by the Kean Lumber Company, contained the following:
"This contract embodies within its terms the complete agreement between the parties hereto, and there are no verbal understandings or agreements not incorporated herein."
The trial court permitted parol evidence on the several issues of fraudulent representations and promises made prior to the contract, and appellant submits that the admission of such evidence violates the rule against admitting parol evidence to alter, vary, add to, or contradict the terms of a written contract. The contention is not sustained by the authorities. The rule is clearly stated in 22 C.J. 1215, where it is said that parol evidence is always admissible to show, for the purpose of invalidating a written instrument, that its execution was procured by fraud, or that, by reason of fraud, it does not express the true intentions of the parties, and that the rule is not rendered inapplicable by the fact that the writing contains a recital similar to that above. Allegations of fraudulent representations and promises were sufficiently pleaded to admit the evidence.
Appellant's fourth proposition relates to what he calls his alternative promise, asserting in substance that, if he made any promise relative to completing the unfinished houses, such promise was an alternative promise that Kean Lumber Company would complete them or would make satisfactory guaranty by posting a certified check for $5,000, and that by doing so he, Sibley, was relieved from any further liability on his promise. We think that probably under the authorities cited, such would be the rule if appellee's suit was on Sibley's promise as a contractual obligation. But such is not appellee's cause of action as we view it. But, as hereinbefore said, the suit is for deceit, a statutory action for *Page 254 damages, under article 4004, growing out of a contract as pleaded, by reason of the fraudulent representations and promises inducing the contract.
Appellant's propositions have not been severally discussed, but all have been considered and are overruled.
Finding no reversible error, the case is affirmed.