COBBS, Justice.
Appellant filed this suit against appellees for the rescission of a contract for the sale of land and the recovery of money paid on the contract, with interest. This is a fraud case.
Plaintiff alleged: “That defendants induced him to come to Hidalgo county, Texas, for the purpose of inspecting citrus lands and that said plaintiff, upon the inducement of said defendants, did come to Hidalgo county, Texas, and became interested in the purchase of a certain tract of land known as lots nine (9) and ten (10) in the southeast quarter of sectiqn nine (9) of the Hidalgo County Canal Company’s Subdivision in Hi-dalgo county, Texas. That the defendants represented to him that said land was of a value of $2,500.00 per acre with young citrus trees set on the same; that he was unfamiliar with the value of Hidalgo county land but relied upon said defendants and believed said representations and was thus induced to purchase said tract of land and that he paid to said defendants the sum of $3,289.00 in cash and further agreed to pay the total consideration of $38,815.00,- said consideration 'being based upon 22.13 acres of land at the price of $1,750.00 per acre. The plaintiff further alleged that the defendants could not give clear title to more than eighteen acres of said land although they had fraudulently misrepresented that they could give a clear title to the entire acreage above stated, that is, 22.13 acres of land. -That at the time the plaintiff was induced to enter into said- contract there was situated upon said tract of land -buildings of the value of approximately $2,000.00, and that defendants had wrongfully and without his consent, removed said buildings from said tract of land prior to the date set for the closing of the deal for the purchase of the same. Plaintiff further -alleged that the defendants had agreed to set out a total of one thousand two hundred fifty citrus trees on said tract of land being sixty trees per acre, but had failed to do so but on the contrary had set out only one thousand forty-five trees, and that defendants had agreed to set out date palms around the boiv der of said tract of land! but this also the defendants failed to do. The plaintiff prayed that the contract be rescinded and all notes given by him in pursuance of said contract also be cancelled; that he have his damages and that an equitable vendee’s lien on said tract of land be foreclosed as against all defendants having an interest therein in order to secure him in the payment of the judgment.”
Default judgment was entered against M. L. Woods and Bell-Woods Company because of the failure of said defendants to appear and answer.
The plaintiff filed his first amended original petition in the cause, to which defendant George Earnhardt demurred, and it was sustained by the court; the court holding that the cause of action set forth in the first amended original petition was -based partly upon contract and partly upon tort, and would therefore have to be plead in two- separate counts, to, which action of the court the plaintiff excepted, but, in obedience to the ruling of the court, amended and filed his second amended original petition, setting out his cause of action in two separate counts. The pleading is too lengthy to copy.
At the conclusion of the trial, the court gave its peremptory instruction in favor of plaintiff, Joseph Martin, against the defendant, Boll-Woods Company, for the sum of $3,289, together with interest on $250 from April 17, 1929, and on $750 from May 23, 1929, and interest on $2.2S9 from June 27, 1929, at the rate of G per cent, per annum, and also instructed the jury to return a verdict in favor of the defendants George Earnhardt, L. R. Bell, and M. L. Woods, and against the plaintiff, Joseph Martin; and the jury returned a verdict in accordance with the peremptory instruction given to them by the court.
The court entered judgment upon said verdict of the jury on the 10th day of February, A. D. 1932, that the plaintiff, Joseph Martin, have and recover of and from the defendant, Bell-Woods Company, Inc., the sum of $3,824.17, together with interest thereon from February 10, 1932, at the rate of 6 per cent, per annum, and further decreed that the plaintiff, Joseph Martin, take nothing as against the defendants, George Earnhardt, L. R. Bell, and M. L. Woods.
We think the court erred in sustaining an exception to the pleading and requiring the appellant to file an amendment, because under the practice in Texas a pleading of tort and for damages may be properly joined in the same suit, when they grow out of the same transaction and 1'elate to each other. ■
We think the court erred in excluding from the evidence the photographs marked for identification, 9 GEB, 10 GEB, 11 GEB, ■ and 12 GEB, -because they were material upon the issue of the suitability of the land in question for citrus culture.
Joseph Martin was entitled to a judgment against M. L. Woods for the amount determined. Said original petition stated a cause of action for damages sustained. Appellant had been induced to part with his money, because of false representations made to him by defendants in regard to the suitability of the land for citrus culture, but before he discovered that such representations' were false, the defendants breached the contract which had been induced by their fraud, and, because of such breach, the plaintiff refused to go ahead with the contract.
The plaintiff, having testified that the defendants, M. L. Woods, L. R. Bell, and especially George Earnhardt, made representations to him in regard to quality, acreage, value, and title of a tract of land, and induced him to part with money, relying upon such representations, and then introduced testimony tending to show that such representations were false, he raised a question of fact for a jury, as the law holds all persons accountable in damages who make fraudulent representations as to the subject-matter of a sale, regardless of any contractual or legal relationship among the defendants, or between the plaintiff and the defendants.
As to the land, it was represented that this particular land was as good as any in the valley for citrus growing and better than any in Florida, and “that you could dig fifteen feet down and the land was just as good fifteen feet down as it was on top.”
As said in Hawthorne v. Walton (Tex. Civ. App.) 30 S.W.(2d) 397, 399: “Conspiracies are conceived and concluded in secret.” The unlawful acts committed taken together may be looked to as showing a common intent. 12 R. C. E: 400.
While a default judgment does not admit that the petition is good, yet, nevertheless, in this ease under the authority pf Stewart v. McAllister (Tex. Civ. App.) 209 S. W. 704, the original petition filed herein did state a cause of action, and was good against a general demurrer. The amount of damages was clearly shown by uncontradicted evidence to be the sum of $3,289, with interest thereon as allowed by law, and the court erred in giving its peremptory instruction to the jury to find in favor of defendant M. E. Woods, in spite of his default. The default judgment was entered upon the original petition, and such interlocutory judgment became final upon proof of the amount of the damages sustained by the appellant. He was entitled to judgment against defaulting defendants after he established the amount paid out by him by evidence.
It is stated in 39 Cyc.
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COBBS, Justice.
Appellant filed this suit against appellees for the rescission of a contract for the sale of land and the recovery of money paid on the contract, with interest. This is a fraud case.
Plaintiff alleged: “That defendants induced him to come to Hidalgo county, Texas, for the purpose of inspecting citrus lands and that said plaintiff, upon the inducement of said defendants, did come to Hidalgo county, Texas, and became interested in the purchase of a certain tract of land known as lots nine (9) and ten (10) in the southeast quarter of sectiqn nine (9) of the Hidalgo County Canal Company’s Subdivision in Hi-dalgo county, Texas. That the defendants represented to him that said land was of a value of $2,500.00 per acre with young citrus trees set on the same; that he was unfamiliar with the value of Hidalgo county land but relied upon said defendants and believed said representations and was thus induced to purchase said tract of land and that he paid to said defendants the sum of $3,289.00 in cash and further agreed to pay the total consideration of $38,815.00,- said consideration 'being based upon 22.13 acres of land at the price of $1,750.00 per acre. The plaintiff further alleged that the defendants could not give clear title to more than eighteen acres of said land although they had fraudulently misrepresented that they could give a clear title to the entire acreage above stated, that is, 22.13 acres of land. -That at the time the plaintiff was induced to enter into said- contract there was situated upon said tract of land -buildings of the value of approximately $2,000.00, and that defendants had wrongfully and without his consent, removed said buildings from said tract of land prior to the date set for the closing of the deal for the purchase of the same. Plaintiff further -alleged that the defendants had agreed to set out a total of one thousand two hundred fifty citrus trees on said tract of land being sixty trees per acre, but had failed to do so but on the contrary had set out only one thousand forty-five trees, and that defendants had agreed to set out date palms around the boiv der of said tract of land! but this also the defendants failed to do. The plaintiff prayed that the contract be rescinded and all notes given by him in pursuance of said contract also be cancelled; that he have his damages and that an equitable vendee’s lien on said tract of land be foreclosed as against all defendants having an interest therein in order to secure him in the payment of the judgment.”
Default judgment was entered against M. L. Woods and Bell-Woods Company because of the failure of said defendants to appear and answer.
The plaintiff filed his first amended original petition in the cause, to which defendant George Earnhardt demurred, and it was sustained by the court; the court holding that the cause of action set forth in the first amended original petition was -based partly upon contract and partly upon tort, and would therefore have to be plead in two- separate counts, to, which action of the court the plaintiff excepted, but, in obedience to the ruling of the court, amended and filed his second amended original petition, setting out his cause of action in two separate counts. The pleading is too lengthy to copy.
At the conclusion of the trial, the court gave its peremptory instruction in favor of plaintiff, Joseph Martin, against the defendant, Boll-Woods Company, for the sum of $3,289, together with interest on $250 from April 17, 1929, and on $750 from May 23, 1929, and interest on $2.2S9 from June 27, 1929, at the rate of G per cent, per annum, and also instructed the jury to return a verdict in favor of the defendants George Earnhardt, L. R. Bell, and M. L. Woods, and against the plaintiff, Joseph Martin; and the jury returned a verdict in accordance with the peremptory instruction given to them by the court.
The court entered judgment upon said verdict of the jury on the 10th day of February, A. D. 1932, that the plaintiff, Joseph Martin, have and recover of and from the defendant, Bell-Woods Company, Inc., the sum of $3,824.17, together with interest thereon from February 10, 1932, at the rate of 6 per cent, per annum, and further decreed that the plaintiff, Joseph Martin, take nothing as against the defendants, George Earnhardt, L. R. Bell, and M. L. Woods.
We think the court erred in sustaining an exception to the pleading and requiring the appellant to file an amendment, because under the practice in Texas a pleading of tort and for damages may be properly joined in the same suit, when they grow out of the same transaction and 1'elate to each other. ■
We think the court erred in excluding from the evidence the photographs marked for identification, 9 GEB, 10 GEB, 11 GEB, ■ and 12 GEB, -because they were material upon the issue of the suitability of the land in question for citrus culture.
Joseph Martin was entitled to a judgment against M. L. Woods for the amount determined. Said original petition stated a cause of action for damages sustained. Appellant had been induced to part with his money, because of false representations made to him by defendants in regard to the suitability of the land for citrus culture, but before he discovered that such representations' were false, the defendants breached the contract which had been induced by their fraud, and, because of such breach, the plaintiff refused to go ahead with the contract.
The plaintiff, having testified that the defendants, M. L. Woods, L. R. Bell, and especially George Earnhardt, made representations to him in regard to quality, acreage, value, and title of a tract of land, and induced him to part with money, relying upon such representations, and then introduced testimony tending to show that such representations were false, he raised a question of fact for a jury, as the law holds all persons accountable in damages who make fraudulent representations as to the subject-matter of a sale, regardless of any contractual or legal relationship among the defendants, or between the plaintiff and the defendants.
As to the land, it was represented that this particular land was as good as any in the valley for citrus growing and better than any in Florida, and “that you could dig fifteen feet down and the land was just as good fifteen feet down as it was on top.”
As said in Hawthorne v. Walton (Tex. Civ. App.) 30 S.W.(2d) 397, 399: “Conspiracies are conceived and concluded in secret.” The unlawful acts committed taken together may be looked to as showing a common intent. 12 R. C. E: 400.
While a default judgment does not admit that the petition is good, yet, nevertheless, in this ease under the authority pf Stewart v. McAllister (Tex. Civ. App.) 209 S. W. 704, the original petition filed herein did state a cause of action, and was good against a general demurrer. The amount of damages was clearly shown by uncontradicted evidence to be the sum of $3,289, with interest thereon as allowed by law, and the court erred in giving its peremptory instruction to the jury to find in favor of defendant M. E. Woods, in spite of his default. The default judgment was entered upon the original petition, and such interlocutory judgment became final upon proof of the amount of the damages sustained by the appellant. He was entitled to judgment against defaulting defendants after he established the amount paid out by him by evidence.
It is stated in 39 Cyc. 2031, that: “The rule which has obtained for many years in this county and in England is that the purchaser of land by an executory contract, where the contract fails by reason of the vendor’s default and without any fault of the purchaser, is entitled to a lien upon the land for the repayment of what he has paid under the contract.”
It was shown that citrus trees would not grow on water-logged or seeped land.
A careful review of the. testimony in this case makes it very apparent that it is a fact case, one entirely for a jury, and the court erred in directing an instructed verdict.
The plaintiff’s cause of action is based upon fraud and misrepresentation, for the defendants obtained his money by such means. The judgment against Bell-Woods Company should be reformed so as to allow him the foreclosure of his vendee’s lien. asserted against the property in controversy; and the judgment denying appellant any relief, in so far as the defendant M. L. Woods is concerned, should be reversed and judgment rendered in favor of appellant for the sum of $3,824.17, together with interest thereon from February 19, 1932, at the rate of 6 per cent, per annum until paid, and a vendee’s lien established and foreclosed against the property in controversy, in favor of appellant and against appellee M. E. Woods. The judgment rendered in this cause against appellant, and in favor of defendants George Earnhardt and L. R. Bell, is reversed, and the cause remanded.