OPINION OF MAJORITY OF COURT OF CIVIL APPEALS.
Appellee W.B. Worsham, S. Davidson, W.H. Featherston, and C.W. Easley, all resident citizens of Clay County, instituted this suit against appellant, also of that county, upon his promissory note dated May 20, 1892, payable to their order, in the sum of $857.50, besides interest and attorney's fees. They also sought to foreclose a real estate mortgage or deed of trust, dated May 26, 1892, and executed to better secure this note.
Appellant admitted their right to recover, unless it should be defeated by the matters set up in his plea of failure of consideration. The amount of the note sued on was equal to the total amount of principal and interest of two other notes previously executed by appellant, and referred to below, one for $700 and the other for $100. A mortgage was made contemporaneously with the execution of the $700 note, to secure its payment, upon the same property afterwards covered by that of May 26, 1892.
The mortgage declared on contained the following recital: "That I, L.C. Barrett, of the County of Clay and State of Texas, for and in consideration of the sum of $857.50, to me in hand this day paid by Worsham, Davidson, Featherston, and Easley, of said county and State, and for and in consideration that they have this day and do by these presents release me of and from the payment of certain obligations due from me, to the amount of $800 and interest, payable to the Red River and Southwestern Railroad, this being the real and only consideration, together with the debt and trust hereinafter mentioned, and that by the acceptance of this obligation the said C.W. Easley, trustee, together with the said Davidson, Worsham and Featherston, do hereby release a certain trust deed to secure $700 and interest, dated 5th day of February, 1891, covering the lands and lots hereinafter described, to the said Easley, trustee, * * * which said trust deed was made to secure
$700 and interest, the real consideration of this instrument, have granted, bargained, sold," etc.
The contention of appellant was that the last note had been obtained by means of false and fraudulent representations, to the effect that appellees had made arrangements with the Union Trust Co. to procure money with which to complete the building of a railroad from the town of Henrietta to the town of Archer, alleging that he had given the note upon that representation as a matter of accommodation to enable them to procure the money to complete the road. He further alleged that he had been fraudulently induced to sign the previous notes upon the faith of their representations and promises that the railroad between the points named would be speedily built, or at least within a reasonable time, by them and the Red River and Southwestern Railroad Company. Appellant also reconvened for the value of his services in assisting to raise the bonus.
We find the following conclusions of fact:
1. That appellees, with E.H. East, of Archer, and others, in the latter part of the year 1890, obtained a charter under the name above indicated to construct and operate a railway from the Red River to the Concho River, through Clay, Archer and other counties.
2. That in the early part of January of the following year they made a proposition in the name of said Red River and Southwestern Railway Co. to the citizens of Henrietta, which was accepted by appellant and other subscribers, in the terms following:
"Henrietta, Texas, January 3, 1891.
"To the Board of Trade and Citizens of Henrietta:
"Proposition of the Red River Southwestern Railroad Co. to the citizens of Henrietta, Texas.
"If the citizens of Henrietta and Clay County will give a subsidy of $30,000, right of way through Clay County, and depot grounds in Henrietta, the above named railway company will begin work on a road from Henrietta to Archer City within sixty days from the time said subsidy is raised. Said subsidy is to be secured by bankable notes, and payable proportionately as each five miles of the grade is completed to the Clay County line.
"C.W. Easley, Secretary.
"E.H. East, President.
"We, the undersigned, agree to pay the amounts written opposite our respective names, and accept the above proposition."
Here follows list of names, including that of appellant, with $500 placed opposite it, which seems to have been increased afterwards to $800.
3. That some time towards the latter part of February thereafter, upon the bonus being subscribed, the notes of numerous subscribers were
executed in accordance with the terms stated above, payable as each five miles of the grade should be completed. There is a conflict in the evidence as to whether the notes executed in the first instance by appellant provided for payment as the road was "graded," or as the road was "completed," the evidence preponderating, as we think, in favor of the former condition. But the undisputed testimony shows that if their payment was conditioned on the completing of the road and not of the grade, the defendant knew of that fact at the time he executed the note and mortgage sued on.
4. That the road was graded as proposed between the points named. There is a slight conflict in the evidence as to whether this grade was completed. But, if it was in any sense incomplete, the undisputed evidence shows that the appellant knew the condition of the grade when he executed the instruments sued on. These were executed long after work on the grade had ceased, and after the grade had been in all substantial respects completed, according to the decided preponderance of the testimony.
5. That appellees furnished the money to grade the road from Henrietta to the county line, and east thence to the town of Archer; in consideration of which the railway company assigned the Henrietta subsidy to appellees and the Archer subsidy to East, the amount so paid by them, however, exceeding the value of the subsidy.
6. That the sole consideration of the note and mortgage declared on was as specified in said mortgage.
7. That no fraudulent misrepresentations or promises whatever were made to appellant to obtain either the original notes or the substituted note.
The verdict of the jury, on issues submitted by the court, establishes conclusions 6 and 7; and a contrary verdict on the issues involved in these conclusions would, in our opinion, have been contrary to the manifest weight and great preponderance of the testimony.
Conclusions of Law. — Appellant's assignments of error are quite voluminously stated, but the real issues in the case we find, after diligent search, are not very numerous. The whole forty-one assignments will consequently be grouped and disposed of under four heads, as follows: first, the judgment on the demurrers; second, the admission and exclusion of evidence; third, the charges given and refused; fourth, the cross-action.
1. We dispose of the errors assigned to the rulings on the demurrers by adopting the following counter-proposition from appellees' brief: "If the court erred in sustaining appellees' exceptions to appellant's answer, such error was without prejudice, since the matters and facts excepted to were plead in other parts of the answer, and evidence in support thereof was introduced by appellant, and such error, if any there be, will not necessitate a reversal of the case."
2. There was no error in admitting in evidence the original answer
of defendant below which had been prepared and sworn to by him, though it had been superseded as pleading by amendment. The able and exhaustive opinion of Judge Elliott in the case of Boots v. Canine, 94 Ind.
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OPINION OF MAJORITY OF COURT OF CIVIL APPEALS.
Appellee W.B. Worsham, S. Davidson, W.H. Featherston, and C.W. Easley, all resident citizens of Clay County, instituted this suit against appellant, also of that county, upon his promissory note dated May 20, 1892, payable to their order, in the sum of $857.50, besides interest and attorney's fees. They also sought to foreclose a real estate mortgage or deed of trust, dated May 26, 1892, and executed to better secure this note.
Appellant admitted their right to recover, unless it should be defeated by the matters set up in his plea of failure of consideration. The amount of the note sued on was equal to the total amount of principal and interest of two other notes previously executed by appellant, and referred to below, one for $700 and the other for $100. A mortgage was made contemporaneously with the execution of the $700 note, to secure its payment, upon the same property afterwards covered by that of May 26, 1892.
The mortgage declared on contained the following recital: "That I, L.C. Barrett, of the County of Clay and State of Texas, for and in consideration of the sum of $857.50, to me in hand this day paid by Worsham, Davidson, Featherston, and Easley, of said county and State, and for and in consideration that they have this day and do by these presents release me of and from the payment of certain obligations due from me, to the amount of $800 and interest, payable to the Red River and Southwestern Railroad, this being the real and only consideration, together with the debt and trust hereinafter mentioned, and that by the acceptance of this obligation the said C.W. Easley, trustee, together with the said Davidson, Worsham and Featherston, do hereby release a certain trust deed to secure $700 and interest, dated 5th day of February, 1891, covering the lands and lots hereinafter described, to the said Easley, trustee, * * * which said trust deed was made to secure
$700 and interest, the real consideration of this instrument, have granted, bargained, sold," etc.
The contention of appellant was that the last note had been obtained by means of false and fraudulent representations, to the effect that appellees had made arrangements with the Union Trust Co. to procure money with which to complete the building of a railroad from the town of Henrietta to the town of Archer, alleging that he had given the note upon that representation as a matter of accommodation to enable them to procure the money to complete the road. He further alleged that he had been fraudulently induced to sign the previous notes upon the faith of their representations and promises that the railroad between the points named would be speedily built, or at least within a reasonable time, by them and the Red River and Southwestern Railroad Company. Appellant also reconvened for the value of his services in assisting to raise the bonus.
We find the following conclusions of fact:
1. That appellees, with E.H. East, of Archer, and others, in the latter part of the year 1890, obtained a charter under the name above indicated to construct and operate a railway from the Red River to the Concho River, through Clay, Archer and other counties.
2. That in the early part of January of the following year they made a proposition in the name of said Red River and Southwestern Railway Co. to the citizens of Henrietta, which was accepted by appellant and other subscribers, in the terms following:
"Henrietta, Texas, January 3, 1891.
"To the Board of Trade and Citizens of Henrietta:
"Proposition of the Red River Southwestern Railroad Co. to the citizens of Henrietta, Texas.
"If the citizens of Henrietta and Clay County will give a subsidy of $30,000, right of way through Clay County, and depot grounds in Henrietta, the above named railway company will begin work on a road from Henrietta to Archer City within sixty days from the time said subsidy is raised. Said subsidy is to be secured by bankable notes, and payable proportionately as each five miles of the grade is completed to the Clay County line.
"C.W. Easley, Secretary.
"E.H. East, President.
"We, the undersigned, agree to pay the amounts written opposite our respective names, and accept the above proposition."
Here follows list of names, including that of appellant, with $500 placed opposite it, which seems to have been increased afterwards to $800.
3. That some time towards the latter part of February thereafter, upon the bonus being subscribed, the notes of numerous subscribers were
executed in accordance with the terms stated above, payable as each five miles of the grade should be completed. There is a conflict in the evidence as to whether the notes executed in the first instance by appellant provided for payment as the road was "graded," or as the road was "completed," the evidence preponderating, as we think, in favor of the former condition. But the undisputed testimony shows that if their payment was conditioned on the completing of the road and not of the grade, the defendant knew of that fact at the time he executed the note and mortgage sued on.
4. That the road was graded as proposed between the points named. There is a slight conflict in the evidence as to whether this grade was completed. But, if it was in any sense incomplete, the undisputed evidence shows that the appellant knew the condition of the grade when he executed the instruments sued on. These were executed long after work on the grade had ceased, and after the grade had been in all substantial respects completed, according to the decided preponderance of the testimony.
5. That appellees furnished the money to grade the road from Henrietta to the county line, and east thence to the town of Archer; in consideration of which the railway company assigned the Henrietta subsidy to appellees and the Archer subsidy to East, the amount so paid by them, however, exceeding the value of the subsidy.
6. That the sole consideration of the note and mortgage declared on was as specified in said mortgage.
7. That no fraudulent misrepresentations or promises whatever were made to appellant to obtain either the original notes or the substituted note.
The verdict of the jury, on issues submitted by the court, establishes conclusions 6 and 7; and a contrary verdict on the issues involved in these conclusions would, in our opinion, have been contrary to the manifest weight and great preponderance of the testimony.
Conclusions of Law. — Appellant's assignments of error are quite voluminously stated, but the real issues in the case we find, after diligent search, are not very numerous. The whole forty-one assignments will consequently be grouped and disposed of under four heads, as follows: first, the judgment on the demurrers; second, the admission and exclusion of evidence; third, the charges given and refused; fourth, the cross-action.
1. We dispose of the errors assigned to the rulings on the demurrers by adopting the following counter-proposition from appellees' brief: "If the court erred in sustaining appellees' exceptions to appellant's answer, such error was without prejudice, since the matters and facts excepted to were plead in other parts of the answer, and evidence in support thereof was introduced by appellant, and such error, if any there be, will not necessitate a reversal of the case."
2. There was no error in admitting in evidence the original answer
of defendant below which had been prepared and sworn to by him, though it had been superseded as pleading by amendment. The able and exhaustive opinion of Judge Elliott in the case of Boots v. Canine, 94 Ind. 407, reviewing the authorities and giving unanswerable reasons why such evidence is admissible, should put this question at rest. This opinion clearly demonstrates that, on principle, under every system of pleading where fiction is abolished and the pleader is required to truly state the facts, such statements, when made with the knowledge of the party himself, and not merely by his attorney, are, like any other admissions, competent though not conclusive evidence against him; and that in the States where the code practice prevails the courts are, consequently, unanimous on the right to introduce such admissions in evidence, with the possible exception of California, where the decisions are in conflict. It also conclusively demonstrates that this rule is applicable to a pleading which has been superseded by amendment, whether offered in evidence upon the trial of the case in which it was originally filed or in some other case.
Upon this subject the following language is used: "We should feel that we were doing an idle thing if we should undertake to cite authority upon the proposition that a party can not be deprived of his right to give in evidence an admission because the latter had withdrawn it. Even in criminal cases, an admission made by the accused before the examining magistrate is not rendered incompetent by a subsequent withdrawal. The withdrawal of an admission may, in proper cases, go in explanation, but it can not change the rule as to its competency. We have never, until the argument in this case, known it to be asserted that the withdrawal of a confession or an admission destroyed its competency as evidence against the person making it. If it did, then criminals might destroy evidence by retraction, and parties escape admissions by a like course. The law tolerates no such illogical procedure. It is proper to show the withdrawal and all attendant circumstances, for the purpose of determining the weight to be attached to the admission, but not for the purpose of destroying its competency." And further: "To hold otherwise would be to declare that a party may by a retraction deprive his adversary of admissions previously made, and surely no one will seriously contend that this can be the law."
The reason for the rule has peculiar force in cases like this, where the pleader is not only required to truly state the facts, but also to verify the statement by his affidavit. Such affidavit may become the subject of a prosecution for perjury. If made by mistake, whether amended or not, that fact would defeat the prosecution; but if false, and deliberately and willfully made, the fact of a subsequent withdrawal by amendment would not. It is for the jury and not the court to determine whether the false statement was deliberately or mistakenly made. The question, then, in a criminal prosecution would clearly be one as to the effect and not the competency of the evidence. No reason could be given for a different rule in a civil case. But if the competency of the evidence
in question as an admission could reasonably be doubted, in connection with the explanation which appellant was permitted to make of the important change thus introduced by his amended plea, the original was clearly admissible on cross-examination as affecting his credibility as a witness.
Various other rulings under this head are complained of, but, after a careful examination of the numerous bills of exception, in connection with the statement of facts, we find no substantial merit in any of the objections urged thereto. In some instances we find in the statement of facts the very evidence to the exclusion of which error is assigned. Take, for example, the first bill of exceptions. For the purpose of showing that appellees and said company never intended to build the line of railroad from Henrietta to Archer City, appellant offered to prove that the railway company in question never had any books or office. It appears, however, from the statement of facts that books were kept showing the transactions of the company. It also appears from the statement of facts that the issue on this branch of the case was, whether the undertaking of appellees, as represented to appellant, was to build and complete the road or only to grade it. They did not pretend on the trial that they ever intended to do the former, but only the latter; hence it became unimportant whether the evidence was admitted or excluded. Nor was it pretended that appellant was ignorant of the manner in which the company had been chartered and was proceeding.
Taken altogether, we think these several rulings relate to matters too trivial and indeterminate in their nature to warrant a reversal of the judgment. The case was not one of anything like equally balanced testimony, especially on the issue of alleged fraud in procuring the execution of the original subscription and notes, to which these rulings mainly related. The verdict seems so entirely in accord with the great weight and preponderance of the evidence that the slight circumstances excluded and admitted, if there was error in the rulings, which we do not concede, should not have affected the result had the rulings been different. Appellant took a conspicuous part in raising the bonus, claiming to be something of an expert in that line; and both his conduct and admissions were largely at variance with his contention on the trial, which contention also was in sharp conflict with quite a formidable array of evidence, both positive and circumstantial. Besides, if there had been fraud in the original subscription which he had helped to raise, or want of consideration in his first notes, when the note sued on was executed such facts, after so great a lapse of time and under all the circumstances, he could not reasonably have been ignorant of. Hunter v. Lanius, 82 Tex. 686.
3. The second and fifth subdivisions of the charge, submitting the issues of actual fraud as alleged, are complained of, in that they did not also submit the issue of constructive fraud arising from false representations made without any fraudulent intent. We are of opinion that the evidence did not warrant the submission of that phase of the case. If
appellees or any of them made the statement to appellant that any arrangement had been made with the Union Trust Co. to raise money to iron the road, as claimed by appellant but denied by them, they must have known it to be false at the time of making it, because they all testified on the trial that they had never made any such arrangement. The only phase of fraud, then, raised by the evidence was the one submitted. Besides, if there was error in not submitting the issue of constructive fraud, it was one of omission merely, and is not available here in the absence of an effort in the trial court on the part of appellant to supply the omission by requesting an instruction.
The second, fourth and fifth clauses of the charge are complained of together, on the ground that they had the effect of excluding from the consideration of the jury all fraudulent representations except those made about the time of the execution of the notes mentioned in the charge. They are also complained of together, on the ground that they excluded from the consideration of the jury a theory of ratification suggested in appellant's brief. These objections, presented by the sixteenth and twenty-first assignments, are alike without merit. They involve strained criticisms of the charge, and the misleading tendencies complained of we fail to appreciate. No error is assigned to the fourth and fifth charges separately.
The nineteenth assignment complains of the giving of special charge No. 1 requested by appellees, reading: "You are further instructed that by false or fraudulent misrepresentations as used in the main charge, is meant the false or fraudulent misrepresentation of a material ascertainable fact, and not merely a statement of opinion, judgment, probability or expectancy."
This charge stated substantially a correct proposition, and there was a phase of the evidence which rendered it admissible. Appellees, or some of them, had at different times expressed opinions favorable to the success of the railroad enterprise, indicating that they would probably be able after grading the road to get some other company to iron and operate it. Appellant had an equal opportunity of forming his own opinions in this respect, and had no right to rely upon those of appellees.
In submitting the issues to the jury, the main charge clearly recognized the distinction between fraudulent misrepresentations of facts and false and fraudulent promises. The second paragraph, which submitted the issue as to how the note sued on was obtained, authorized the jury to consider both fraudulent representations and false promises; and the fifth paragraph, which submitted the issue as to how the first notes were obtained, submitted the legal effect of false and fraudulent promises only. The charge given at the request of appellees could not have been understood by the jury as withdrawing the fifth paragraph, which had stated so fully and pointedly the law arising upon false and fraudulent promises, but they must have understood, as clearly appears on the surface, that it was intended only as an explanation or qualification of the
term "fraudulent representations" as used in the charge, and not fraudulent promises as there used. The court intended no such absurdity as the construction placed by appellant upon the effect of giving the requested charge would lead to. We must also presume that the jury was composed of men of ordinary intelligence, and therefore that a fair and reasonable interpretation was given the charge.
Appellant requested the court to give a charge defining accommodation paper, which was refused. We find nothing in the record calling for such a charge. He was permitted to explain to the jury fully the meaning of accommodation paper, and there was no controversy upon this point.
We find nothing in the other errors assigned to the giving and refusing of charges which seems to require notice.
It is not the province of this court to assign errors to the charge not assigned by the complaining party. No assignment is found in the brief distinctly specifying the fourth paragraph of the charge as erroneous. We are therefore precluded by statute from considering the correctness of the proposition which it contains. Rev. Stats., art. 1037. Besides, any objection that might be taken to it would be theoretical merely, and would be entirely removed by reading the whole charge in the light of the issues developed on the trial. The effect of alleged fraud in obtaining the note sued on had already been submitted in the second paragraph of the charge; hence there was no occasion to repeat it in the fourth paragraph, which submitted the issue of fraud in the original notes.
4. The cross-action against appellees for services in raising the bonus was properly ignored by the court, if for no other reason, because the evidence showed beyond dispute that if any contract had been made with appellant for his services in that respect, it was without authority from either the railroad company or appellees.
This record has received unusually long and thorough consideration, from which the final conclusion results that, both upon the law and the facts, the judgment ought to be affirmed.
Affirmed.
Delivered February 22, 1896.
DISSENTING OPINION.