It was tributing to the result, but it is enough that it may have constituted a material inducement. Belief may be had under this rule where reli, ance was in part on one's own investigation." In Buchanan v. Burnett et al., 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900, it is held an instruction that the purchaser must have relied solely upon the vendor's false representation of title in making the purchase was properly refused. sufficient that he relied upon the representation, and would not have purchased if the representation had not been made. [6] We think appellee's objection to the consideration of the appellants' tenth assignment should be sustained, on the ground that the same is too vague and uncertain to warrant consideration, and that neither in the assignment nor in the proposition thereunder is any specific reason or ground given why error was committed in the failure of the court to give the requested instruction for the defendants. [7] We believe the instructions contained in the special charge requested by defendants, to the refusal of which the eleventh assignment of error is directed, are sufficiently covered by the court's main charge. Hence we overrule appellants' assignments, ninth to eleventh, inclusive, and also the twelfth, which complains of the refusal of the trial court to give a special charge instructing the jury in effect that before the plaintiff could recover it must be shown that the plaintiff relied solely and alone upon the statement furnished by the Martin Company. Buchanan v. Burnett et al., supra. This ruling applies also to the thirteenth assignment, which complains of the refusal of a special charge to the same gen eral effect as that set out in the twelfth assignment. ments with a knowledge or intention that they would be used and relied on by plaintiff in furnishing goods or extending credit to defendants' company, and the material information contained in such statement or statements was in fact furnished plaintiff, and it relied thereon to its detriment, then it would be immaterial whether the statement furnished by the Martin Company was in its entirety, either as original or copy, forwarded by the mercantile agencies to the plaintiff. We think what we have said disposed of the fourteenth and fifteenth assignments. We think the special charge requested by defendant, the refusal of which is urged as error in the sixteenth assignment, was on the weight of the evidence and should not have been given. The seventeenth assignment is too vague and uncertain to warrant consideration. [9] The eighteenth assignment complains of the refusal of a special charge instructing the jury that, unless they found that Hill Huddleston, bookkeeper and secretary of the Martin Company, was directed and authoriz ed by the defendants to make and transmit to Bradstreet & Co. the information contained in the statement furnished in 1913, the jury should find against the plaintiff as to all the items alleged to have been furnished by plaintiff in reliance upon said statement. We think the evidence is uncontradicted as to the authority of Huddleston to furnish these statements. Huddleston testified that in sending out these statements he acted under the direction and authority of the defendants and this testimony was uncontroverted. None of the defendants testified in the case. In his main charge the court instructed the jury that before they could find against the defendants they must find and believe the financial statements of 1913 and 1914 were made or caused to be made by the de fendants. which Huddleston acted in making these statements, the defendants would probably be entitled to an affirmative charge, but we do not construe the evidence as presenting an issue of fact for the jury as to the authority of Huddleston in this respect. [8] In the fourteenth assignment objection is made to the refusal of a special charge to the effect that it was the duty of the mercantile agencies to furnish to It is true that, if the evidence plaintiff a correct copy and report of all were conflicting upon the question of the austatements received by it from the defend-thority under which and the capacity in ants, and if the jury found that said mercantile agencies failed to send to plaintiff such statement or statements then the defendants would not be liable. We do not think such charge should have been given. Even if the evidence upon this point makes it a question for the jury whether the identical statements rendered to the commercial agencies, or exact copies thereof, were forwarded by said commercial agencies to the plaintiff, yet if the material contents thereof were furnished by such agencies to plaintiff, and these portions contained material and false representations as to the Martin Company's solvency, and plaintiff relied thereon in extending further credit, defendants would be liable. If defendants caused to be furnished a financial statement containing false representations as to ma By another group of assignments, appellants complain of the failure of the court to give certain tendered special charges to the effect that if plaintiff had other sources of information as to the financial condition of the Martin Company during these two years, and if they should find it was the duty of the traveling salesman of plaintiff, and others, to inquire into the financial condition of its customers and report thereon, and that through these other sources of information knowledge was brought to the plaintiff, or its agents, as to the failing or the jury should find for the defendants. We some of the notes and accounts of the do not believe, for the reasons heretofore Martin Company were barred by the statutes given, that such charges were proper. The of limitation was probably subject to the mere fact that one makes a personal investi-objection that the notes were in writing and gation, or consults with others, or has other would be the best evidence as to their dates, sources of information open to him, does not etc., yet in view of the entire testimony of necessarily show that he relied on such Hicks, and in view of the statements containpersonal investigation, or the information ed in the courts' qualification of this bill, gained therefrom, or through the other we are of the opinion that error, if any, was sources. See 12 R. C. L. § 112, and author- harmless. ities therein cited. The material question is, Did the party claiming fraud rely on false statements or misrepresentations made by the other? In several other instances, complaint is made of the admission in evidence of the statements made by the mercantile agencies to plaintiff. It is in evidence that these reports contained either the original or exact copies of the financial statements furnished by the Martin Company. No request was made by appellants to limit the force and effect of these mercantile reports to the information contained in the financial statements themselves furnished by defendants. In the absence of such ob Without attempting to enlarge further this opinion, it is sufficient to say that after a careful examination of appellants' lengthy brief, we find no reversible error presented, and conclude that judgment should be affirmed; and it is so ordered. Affirmed. CONNER, C. J., not sitting, serving on writ of error committee at Austin. RICHARDSON et al. v. BECKHAM NAT. jection or request the assignments must (Court of Civil Appeals of Texas. San Antonio. be overruled. [10] In the thirty-ninth assignment, complaint is made of the admission of the deposition of the referee in bankruptcy to the effect that the unsecured creditors of the Martin Company were paid a total dividend of 19 per cent. We think this was admissible to show the amount that had been paid on the original amount of indebtedness due plaintiff by the Martin Company, and as against a general objection we think the the court did not err in admitting such testimony. Under the forty-fifth assignment, complaint is made of the admission in evidence of the purported trial balance from the books of the Martin Company as of date November 7, 1914, purporting to disclose the financial condition of the Martin Company. It is urged that said statement is immaterial and irrelevant, etc., because it was not shown that either of the defendants were responsible therefor. By reference to appellants' bill of exception No. 45, and the court's modification thereof, it is shown that the court excluded said statement and the same was not introduced as evidence. Several assignments are directed to the testimony of the plaintiff's witness S. J. Hicks. We think the witness made a prima facie showing as to his qualification to testify as to the market value of the notes and accounts owned by the Martin Company on January 1, 1913, and as to the value of the real estate holdings, and the testimony evoked from said witness on cross-examination affected rather the weight of such evidence than its admissibility. We are further of the opinion that, while the incidental statement made by said witness that March 13, 1918.) VENUE 14-PLACE OF ACCRUAL-FRAUD- In an action to recover money paid, wherein defendant set up a plea of privilege based on its residence, and plaintiffs filed a controverting plea, stating payment made to defendant of certain notes procured from them by the fraudulent representation that, unless they gave such notes, plaintiffs' kinsman would be criminally prosecuted, which representations were made in a county other than that of defendant's residence, the plea of privilege was erroneously granted, since venue should have been laid in the latter county, within Vernon's Sayles' Ann. Civ. St. 1914, art. 1830, exception 7, providing that, in cases of fraud, suit may be instituted in the county in which the fraud was committed, and exception 28, providing that foreign, private, or public corporations may be sued in the county where the cause of action accrued. Appeal from District Court, Real County; R. H. Burney, Judge. Action by I. L. Richardson and others against the Beckham National Bank. From a judgment sustaining defendant's plea of privilege, plaintiff's appeal. Reversed and re manded. E. F. Vanderbilt, of Leakey, and L. Old and T. P. Hull, of Uvalde, for appellants. Arnold & Arnold, of Graham, for appellee. SWEARINGEN, J. I. L. Richardson and G. I. Richardson brought suit in Real county, Tex., where they resided, against the Beckham National Bank, to recover $2,000 paid on notes procured by the bank from the Richardsons by threats to imprison a relative unless executed. The original petition alleged that the Richardsons resided in Real county, and that the bank was a corporation with its domicile in Young county. The bank filed a sworn written plea of privilege to be sued in Young county, the county of its residence, alleging the facts required possession said cattle and steers pledged by by the law. Gen. Laws Tex. 35 Leg. (1917) him to defendant bank as security for said deed p. 388. The Richardsons filed a controvert-he, the said E. A. Richardson, obtained said of trust, and represent to the said plaintiffs that ing plea under oath, setting out that the pay- sum of money from said bank by reason of such ment of the $2,000 by them was coerced by representations, and that he, the said E. A. the fraud and deceit of the bank, and that Richardson, had disposed of said property since the fraud or deceit was committed in Real trust to said defendant bank, or that he did not the execution and delivery of the said deed of county, Tex., or that a part of the fraudu- possess said property at the time of said execulent acts were committed in Real county. tion and delivery of said deed of trust to said The allegations of the controverting plea are bank; and said Arnold, acting as aforesaid, in the capacity as agent and attorney for said as follows: bank, did then and there falsely and fraudulent"First. That heretofore, to wit, on or about ly in that part of Edwards county, Tex., which the 23d day of July, 1911, E. A. Richardson is now Real county, Tex., stated, represented, was indebted to said defendant bank, and the and said unto these plaintiffs the facts and cirsaid E. A. Richardson was then and there and cumstances of said transaction that he, the said now is the son of the plaintiff I. L. Richardson, E. A. Richardson, had committed a felony and and the brother of the plaintiff G. I. Richard-was guilty of a felony by reason of the fact that son, which said indebtedness amounted approx- he had procured said money by fraudulent repimately to $3,000 due the said bank by said E. resentations, and by virtue of the fact that he A. Richardson, and at that time there was no did not have the property described in said mortliability whatever on the part of these plain-gage and deed of trust, and then and there falsetiffs, or either of them, to the said defendant ly and fraudulently told and stated to these bank on said indebtedness, it being the exclusive plaintiffs that the said E. A. Richardson was personal obligation of the said E. A. Richardson subject to criminal prosecution for felony, to alone. wit, for the offense of swindling over $50, and then and there stated falsely and fraudulently that the said bank could cause the said E. A. Richardson to be sent to the penitentiary for a number of years by reason of his having prac ticed a fraud upon the said bank and procured the said money, and then and there threatened that unless said matter was satisfactorily setthe said E. A. Richardson to be prosecuted for such offense, and would further cause him to be convicted and sent to the penitentiary; and the said Arnold further falsely and fraudulently represented, as such agent and attorney of said bank, that in his knowledge as an attorney at law the said plaintiff was guilty under the facts, and would be convicted for the offense of swindling over $50. "Second. That on or about the said 23d day of July, 1911, the said bank, becoming dissatisfied with the standing of the obligation, conceived the idea of compelling these plaintiffs to fix their own personal liability in reference to the said debt, and that on or about said time said bank, for the purpose of causing said plaintiffs to assume responsibility of said debt, appoint-tled, that they, the defendant bank, would cause ed one R. F. Arnold, then and there an attorney at law in the town of Graham, Tex., and of the firm of Arnold & Arnold, a firm composed of R. F. Arnold and Fred Arnold, as their agent and attorney for the purpose of representing them, the said bank, in said transaction, and for the purpose of procuring said plaintiffs to fix their personal liability to said bank on said debt. "Third. That, acting in pursuance of said de- "Fifth. And the said Arnold, as such represensign, the said bank sent said R. F. Arnold to Ed-tative, agent, and attorney of said bank, furwards county, Tex., to the ranch of these plaintiffs, which was at that time in Edwards county, but now in Real county by reason of the fact that that part of Edwards county which includes the ranch and home of these plaintiffs was afterwards created into Real county, and he, the said R. F. Arnold, being sent for the express purpose on the part of defendant bank to have an interview with these plaintiffs, and to induce them to fix their liability in the said debt to said bank, or to cause them to pay off same by the payment of the money, or the execution of properly secured notes, sufficient to satisfy said bank in the payment of said debt. "Fourth. That in pursuance of said design the said R. F. Arnold acting for and on behalf of the said defendant bank, and as their agent and attorney, came to the said plaintiffs at their ranch as aforesaid, without any invitation or without plaintiffs having any advice or information or notice of such a visit, and had an interview with the plaintiffs, and the said R. F. Arnold, as such agent and attorney of said defendant bank, did then and there falsely and fraudulently represent to these said plaintiffs and each of them that the said E. A. Richardson, son of plaintiff I. L. Richardson and brother of plaintiff G. I. Richardson, had obtained a large sum of money from the bank, to wit, about the sum of $3,000, by executing and delivering to defendant bank, in writing, a certain deed of trust in the town of Graham, Young county, Tex., and pledging as security therefor certain cattle and steers, and that some time after the execution and delivery of said deed of trust to the defendant bank by the said E. A. Richardson the officers of said bank were advised, and later upon investigation discovered, that ther represented to these plaintiffs in Real county, Tex., that it was in the power of said bank to cause said prosecution, or to cause it to be dropped and abandoned by the state of Texas, and then and there, for the said county and state, falsely stated to the said plaintiffs and each of them that if they would pay said debt, or execute their notes in payment thereof, that the defendant bank would then cause the prosecution which it had already instituted against the said E. A. Richardson to be abandoned and dropped. and, further, that the said bank would not only not prosecute the said E. A. Richardson, but would procure bail for him, and cause him to be released from the county jail where he was confined by reason of complaint having been made against him by S. R. Crawford, president of said bank; and further falsely and fraudulently stated and represented to these plaintiffs that, in addition to that, when the next grand jury of Young county convened that they would see that the state of Texas did not cause the said grand jury to return a bill of indictment against the said E. A. Richardson, but stated positively that the said grand jury would not return such bill in case that these plaintiffs secured payment of said debt. "Sixth. These plaintiffs say that they and each of them were ignorant of the law, having no knowledge whatever thereof, and never having been charged with criminal process, and further knew that the said Arnold was in fact an attorney at law and well versed in the knowledge of the law, and they further say that at that time there were no lawyers in reach from whom they could obtain legal advice, and were compelled and did rely upon the representations fact or in law of crime, in that he did not procure possession of any personal property of said bank by reason of the execution of said mortgage on property which he did not own, and that all of said representations so made were false and fraud which he, the said Arnold, at the time that he made them for said bank well knew that they were false and fraud, and which said bank itself well knew were false and fraudulent, and said Arnold and said bank well knew that the said false representations were made for the purpose of securing the payment of the said E. A. Richardson's indebtedness to the bank, or to secure same by these plaintiffs. resentative of the bank and as an attorney alone, and reposed very confidentially therein, and relied upon the honesty and integrity of said Arnold and upon his knowledge and statements of the law, and upon the honesty and integrity of the bank and officers thereof, and they believed that unless they did pay off said debt or execute said note for the payment thereof immediately that the said E. A. Richardson would be convicted of a felony and sent to the penitentiary for a term of years, and that thereby the said father and brother of said E. A. Richardson, the plaintiffs in this case, would be greatly humiliated and distressed, and that the said E. A. Richardson, their kinsman as aforesaid, would be subject to conviction and confined to "Ninth. That these plaintiffs, being ignorant the penitentiary and disgrace, and that the of the law and ignorant of the true facts, rewhole family would be brought into this dis- mained so, and continued to rely upon the grace; and relying upon representations as representations of the defendant bank, and conaforesaid, made by said Arnold, they did on the tinued to believe that the said notes were bind24th day of July, 1911, make, execute, and de- ing and valid instruments, and that by the exliver to the said bank, by delivering to its said ecution thereof, according to the false and fraudagent, Arnold, at the Delaney Hotel, in the town ulent representations of said Arnold, that they of Leakey, Tex., in what was then Edwards had escaped disgrace, humiliation, and that the county, but now Real, their four certain promis- said E. A. Richardson had escaped conviction sory notes, dated July 24, 1911, and payable and confinement, and that on the day said notes to the order of defendant bank as follows: became due, which was the first one for $608.46, The first of said notes being for the principal dated July 24, 1911, due July 24, 1912, and sum of $608.45, due July 24, 1912; the sec- thereafter the interest having become due, these ond of said notes for the sum of $654, due July plaintiffs paid and caused to be paid on said 24, 1913; the third note for $709.10, due July notes the following sums of money, to wit: On 24, 1914; and the fourth note for the sum November 7, 1912, $100; July 18, 1913, $350; of $763.53, due July 24, 1915 each of said at another date not remembered by plaintiffs, notes bearing interest at the rate of 10 per cent. $140; October 29, 1913, $100; November 28, per annum from maturity thereof, and signed by 1913, $50; December 15, 1913, $44; January these plaintiffs and each of them, and payable 12, 1914, $55 a total sum paid by these plainto the defendant bank at Graham, Tex. tiffs and caused to be paid by them on said notes of $939; and that on the second note, the note for $654, due July 24, 1913, these plaintiffs paid and caused to be paid the principal thereof in full, to wit, $654, with interest thercon at the rate of 10 per cent. from July 24, 1913, to January 1. 1915, amounting in all to the sum of about $2,000, which said money belonged to plaintiffs, and was converted and appropriated by defendant in Real county, Tex., under said facts, which make defendant guilty of a crime, trespass, and offense in Real county, Tex. "Seventh. And these plaintiffs further say that at the time of the execution of said notes that they were not indebted to said defendant bank in any way, nor was there any liability whatever on their part to said bank by reason of said E. A. Richardson owing said bank, and they further say that they did not receive any of the sum of money as stated in said notes, but that the said notes went solely and exclusively to said bank for the liquidation and payment of said debt of said E. A. Richardson due said bank, and these plaintiffs never received any pecuniary benefit, or any other benefit whatever, from the execution and delivery of said notes, but, according to the said representations of said Arnold, the said notes were executed by the said plaintiffs to save the said E. A. Richardson punishment in the alleged swindling transaction. "Eighth. These plaintiffs say that all of said representations were falsely and fraudulently made by the said Arnold, acting as the attorney and agent of said defendant bank, in that the said E. A. Richardson never procured possession of this money from said bank by reason of said execution of said deed of trust, and was further false and fraudulent in that under the true facts the said E. A. Richardson was not guilty of any criminal offense of any character whatever, and the true facts were and are that at the time of the creating of this indebtedness by said E. A. Richardson to said bank, which was long prior to the time of the execution of said deed of trust by said E. A. Richardson to the said bank, he, the said E. A. Richardson, did not execute any deed of trust whatsoever, and did not give any mortgage or security for the said $3,000, and did not obtain said money by reason of any representations made in any deed of trust that he owned the property which he afterwards gave the deed of trust on, and further represented the facts to be that the said deed of trust was executed long after the said E. A. Richardson had procured said loan from said bank, and without securing any additional loan or money, and that the said bank did not part with any money by reason of the execution of said mortgage, and that therefore "Tenth. That the said plaintiffs and each of them were continually called upon by the defendant bank to pay said notes, and continually did the said bank at each and all of said dates falsely and fraudulently represent to these plaintiffs in Real county, Tex., that the said notes were valid and binding, both in law and in fact, and continued to make said representations from the time that the first note became due continuously until along about December, 1915; and these plaintiffs being ignorant of the law, and gulled into securing the indebtedness of E. A. Richardson by said bank, believing said notes and all of them to be valid and binding obligations, and believed that they were in duty bound to pay same under the law and in fact, and relied solely upon said representations of said bank, and believed that in the payment and discharge of said two notes that they had discharged a valid and binding obligation, and which said payment at all times up until December, 1915, as represented by said bank in Real county, Tex., was so, and they did not find out such representations were false and fraudulent until December, 1915, or thereabouts, and after said defendant filed suit on said note, still representing them to be valid and binding obligations, and then for the first time these plaintiffs discovered that the said notes were not binding obligations, and that all representations to procure their execution were false and fraudulent, and for the first time found out that the payment of said notes had been brought about by false and fraudulent representations, and for the first time found out that said notes were invalid and had not secured all said sums of money which they had paid. not only was the execution of said notes pro- | are considering only the plea of privilege cured by false and fraudulent representations, and controverting plea; but because the law but say they were absolutely void, and that, in addition to the said bank having fraudulently permitting appeals from orders sustaining a and falsely obtained the execution and delivery plea of privilege, like other appeals from inthereof, they had falsely and fraudulently ob- terlocutory orders, became effective about tained possession of the money paid on said June 21, 1917, it may be well to call attention notes, and have taken and appropriated the money of these plaintiffs to their own use and ben- to the fact that our ruling herein has no refefit, and have caused these plaintiffs to pay erence to or bearing upon the sufficiency of out to the said bank, and said bank had receiv- the original petition nor the merits of the ed, by reason of all the false and fraudulent representations, statements, and promises, contracts, and acts of said bank, the full sum of $2,000. cause. The judgment is reversed, and the cause remanded for trial in the district court in Real county, Tex. (No. 1295.) Amarillo, "Twelfth. Plaintiffs say, in the alternative, that in case it be found that the said R. F. Arn old was not the duly authorized agent of said bank, as aforesaid, at the time he made the false and fraudulent representations and statements to these plaintiffs, in Real county, Tex., PLANTERS' OIL CO. et al. v. GRESHAM then they say that the said bank participated in the said false and fraudulent representation so made by the said Arnold, in Real county, (Court of Civil Appeals of Texas. Tex., to the said plaintiffs, that they accepted the said notes and accepted the payment thereof, and thereby ratified and confirmed said act, statements, and representations, and the said bank did so ratify all of said statements, and representations, and reaped the benefits thereunder, they cannot Low deny that the said Arnold was not their agent and attorney and did so act within the apparent scope of his authority. Feb. 27, 1918. Rehearing Denied 1. CORPORATIONS 378-JOINT LIABILITY— Two corporations separately organized were not in law identical because of the fact that they had a common president, or in certain transactions acted one for the other, since a custom, however acted upon or known to the corporations, could not make them identical, and corporations may not form a partnership unless permitted to do so by their charters. "Thirteenth. And plaintiffs further say that the accepting, receiving, and appropriation of said money was not a separate and distinct transaction, but was the reaping of and gather-2. ing together of and appropriating the fruits of the fraud, and a part and parcel of said fraud and culmination thereof." The court sustained a general demurrer to the controverting plea, and rendered judgment sustaining the plea of privilege, and ordered the cause transferred to the district court of Young county, Tex. dict a plain or unambiguous contract either ex- Custom cannot be allowed to vary or contra LIVERY-WASHING-OUT PROCESS. Where a corporation bought cotton oil for This appeal is from the order sustaining actual delivery, and sold a like amount to anthe plea of privilege. If the Richardsons alleged any right to recover the $2,000, it was expressed in the alle gations that the execution of the notes was procured by fraud and the payment of the money was induced by fraud. The fraud was the act of the bank through its agent, and a part of the fraudulent acts were committed in Real county. This alleged fraud being a material allegation of the cause of action, we think the facts of this case bring it within exceptions 7 and 28 of article 1830, Vernon's Sayles' Texas Statutes, and we are of the opinion that the court erred in the order sustaining the general demurrer to the controverting plea, and erred in its judgment sustaining the plea of privilege, and in its order transferring the cause to the district court of Young county. The plea of privilege should have been overruled. American Warehouse Co. v. Ray, 150 S. W. 765, § 2; Commercial Nat. Bank v. Bank, 77 S. W. 239, § 3; Martin v. Frank, 125 S. W. 958; Hunt County Oil Co. v. Scott, 28 Tex. Civ. App. 213, 67 S. W. 451; Townsite Co. v. Sawmill Co., 133 S. W. 714. other corporation, the first sale being subject to 143-CONSTRUCTION. Where corporation bought cotton oil and sold like quantities to another corporation, the seller, having failed to deliver, could not, in an action for damages by the trustee in bankruptcy of the purchaser have a set-off by the washing-out process, on the theory that the oil was really to be delivered to the second purchaser. in view of Bankr. Act July 1, 1898. c. 541, § 68 to set-off and counterclaim. 30 Stat. 565 (U. S. Comp. St. 1916, § 9652), as 6. ELECTION OF REMEDIES 7(1) WHAT CONSTITUTES. Where corporation bought cotton oil subnotice of date when to ship to be given by the ject to rules of an association which required purchaser, and, on failure to deliver authorized the purchase through a broker of like quantities, and the trustee in bankruptcy of the purchaser authorized a broker to buy like quantities, but the broker failed to do so, the employment of It is doubtless not necessary to add that we the broker was not an election of remedies, but For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |