Clark & Boice Lumber Co. v. Barker

193 S.W. 371, 1917 Tex. App. LEXIS 245

Opinion

LEW, J.

(after stating tke facts as above). Tke relation between tke appellee and tke appellant company was tkat of principal and agent in effecting tke gale of tke land. And it is conclusively skown by tke evidence tkat tke appellee was directed by kis principal, acting tkrougk Mr. Clark, to make report in tke sale of eack tract of land concerning wketker or not tkere was in fact timber on tke said tract. Tke evident object and purpose, it appears, in having appellee to make observation on tke ground and report as to wketker or not tke particular tract proposed to be sold kad in fact timber on it was to inform Mr. Clark, wko, acting for tke company in tke sales of land, was not certainly informed as to tke real state of facts of wketker tke particular tract kad or did not kave timber on it. And it is conclusively established as a fact tkat tke appellee undertook to perform this duty and give tkis information in tke course of kis agency. Having undertaken, as appellee did, to perform tke instructions of his principal to make report as to wketker or not there was timber in fact on tke land proposed to be sold, the appellee would be responsible for all loss occasioned by any violation of kis duty. And it is undisputed in the evidence tkat tke ap-pellee represented, while effecting a contract of sale of tke 55 acres to Doss, tkat tkere was no timber in fact on tke land, when in fact tkere was 300,000 or more feet of timber on tke said tract. Tke representation was made in a positive and definite manner. And from tke appellee’s evidence it appears tkat he made the representation while on the ground, surveying tke lines of tke tract of land. It appears, though, from appellee’s evidence tkat he did not go tkrougk tke land to see if tkere were timber on it, and tkat kis positive and definite statement of fact was without actual knowledge of tke fact as it was on tke ground. An action for deceit may be predicated upon false statements recklessly made by one wko does not know tkat they are true in fact Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; Henderson v. Railway Co., 17 Tex. 560, 67 Am. Dec. 675; 20 Oyc. p. 27; 12 R. C. L. p. 337, § 94; 2 Pomeroy, Eg. Jur. §§ 88Y, 888.

It appears conclusively in the case tkat tke appellant kad no actual knowledge of the alleged misrepresentation until June, 1915; and it may not properly be said, we conclude, tkat appellant, in tke circumstances of tke present record, kad constructive knowledge or was not diligent in sooner discovering tkat tke particular tract kad timber on it. Tke agency here was a continuing one until June, 1915; and the very purpose of having appellee make the report of whether tke particular tracts to be sold kad in fact any timber on them was to inform tke appellant’s authorized agent, Clark, wko kad no certain information in respect thereto and was desiring tkrougk appellee to prosecute suck inquiry of fact. Tkis was ordinary diligence on tke part of appellant to ascertain tke real state of facts concerning tke timber. And tke ap-pellee’s report of tke fact was made in a manner so definite and positive as naturally to induce tke appellant not to use any other means of information during tke continuing agency. It is therefore believed, in view of tke facts of tkis case, tkat tke statute of limitation may not be held to begin to run until June, 1915. We conclude, on the whole ease, tkat tke judgment is, as complained of by appellant, contrary to tke evidence, and should be reversed and tke cause remanded.

Tke allegations of the trial amendment are sufficient, as against tke demurrer, and tke cross-assignment of appellee is overruled.

Tke judgment is reversed, and tke cause remanded.