EDWARD THOMPSON CO. v. SAWYERS, 234 S.W. 873

GREENWOOD, J.

The certificate of the honorable Court of Civil Appeals discloses the following facts: Appellant sued appellee in the justice’s court for a balance of $127.50 on a written contract in which appellee requested appellant to deliver to him 32 volumes of the American & English Encyclopedia of Daw and four supplements thereto, for which he promised to pay $7.50 per volume in installments of $30, payable on December 1, 1907, and at the expiration of each six months thereafter up to and including December 1, 1911, it being stipulated that no representations or guaranties had been made by the salesman on behalf of appellant which were not expressed in the written contract.

After a trial in the justice’s court, resulting in a judgment for appellee, the case was appealed to the county court, where appellee filed written pleadings, in which he admitted the execution of the written contract, but averred that, in order to induce appellee to sign the contract, appellant, by its agent, represented and agreed that it would continue to publish and deliver to appellee annual supplements for a period of not less than 15 years, or for so long as appellee should live or continue to practice law; that appellant knew at the time that it would not be able to issue annual supplements; that the representation and promise that appellant would issue and furnish supplements for the time stated was false and fraudulent and was intended to deceive appellee; that appellee was deceived thereby; and that it was in reliance on appellant’s false and fraudulent representation and promise that appellee gave his subscription and executed the written contract on which appellant sued.

Appellee further pleaded that appellant issued five annual supplements and then failed and refused to issue or deliver any more, that the 37 volumes of the Encyclopaedia and supplements which were delivered and which appellee offered to return, were not worth more than $37, and that appellee had paid appellant $150 under the contract, and he pleaded that the consideration for the payments promised by him had partially failed, and he prayed that he be awarded damages against appellant in the sum of $113, and he also prayed for a rescission of the contract and the recovery of the $150 paid under the contract, and for any relief to which he might be entitled under the allegations of his answer.

For replication to appellee’s answer, appellant pleaded a general denial, the stat- i utes of frauds and of two-year limitation, and lack of authority on the part of its agent to make the representation and promise set up by appellee.

In answer to special issues a jury in the county court found: First, that appellant’s agent did agree to furnish annual supplements for 15 years, or during the life of ap-pellee or the time he was able to practice law; second, that appellant had notice of the agreement at the time it approved the order of appellee; and, third, that supplement No. 5 was sent to appellee in pursuance of the contract made by appellant’s agent with appellee. On this verdict the county court rendered judgment that appellant take nothing by its suit, and that ap-pellee recover nothing on his cross-action or counterclaim.

On the trial in the county court appellant objected to the admission of testimony to prove the representation and promise that appellant would continue to issue and furnish annual supplements for 15 years or for the duration of appellee’s life or law practice on the ground that such testimony was an attempt to vary by parol evidence the terms of the written contract, which could not be done in the absence of proper allegations of fraud or mistake. The county court overruled appellant’s objection and admitted the testimony.

Appellant also objected on the trial in the county court to the admission of testimony by appellee that after appellant failed to deliver an annual supplement after the fifth, and upon his refusal to make further payments, on two occasions collectors of appellant, whose names he did not remember, called upon him, and one of them stated that the West Publishing Company had sued appellant for an infringement of its copyright to publish the Encyclopaedia and the supplements; that the courts decided the suit in favor of the West Publishing Company; and . that appellant would not be able to issue any further supplements.

The .ground of objection to this testimony was that the collectors were not shown to have been clothed with such authority as to make their statements admissible against appellant. The county court admitted the testimony, overruling appellant’s objection. On appeal the Fort Worth Court of Civil Appeals affirmed the judgment of the trial court, overruling assignments of error complaining of the admission of the testimony to which appellant had objected, one of the judges dissenting. With a motion for rehearing pending, the honorable Court of Civil Appeals certifies to us questions as follows: First.

Did the majority of the court err in overruling the assignment directed to the admission of the testimony with reference to the parol agreement, which wás claimed to have induced appellee to execute the written contract on which appellant sued? Second. Did the majority of the court err in overruling the assignment challenging the action' of the trial court in admitting the testimony of appellee as to conversations with appellant’s collectors?

We think appellee’s answer, fairly construed, alleges that he was deceived into executing the writing sued on, by means of a representation or promise by appellant not only not performed, but at the time made not intended to be performed. So construing the answer, it set up such fraud on the part of appellant as would entitle appellee to a rescission of the written contract with a recovery of the payments he had made, or to an award of damages for the injury he had sustained. Cearley v. May, 106 Tex. 444, 167 S. W. 725; Railway Co. v. Titterington, 84 Tex. 223, 19 S. W. 472, 31 Am. St. Rep. 39.

Promises made without intention of fulfillment, in order to induce others to make contracts, are as culpable and as harmful as are willful misrepresentations of existing facts. Hence contracts may be avoided alike for such fraudulent promises and for such misrepresentations. Contracts, though reduced to writing, are avoided when induced by material promises, never intended to be kept, not because one is allowed to vary his written contract, but because real assent is essential to a binding contract.

Using Elliott’s phrasing: “If one is induced to go through the form of making a contract because of some fraud or misrepresentation made by the other party or his agent, relative to a material element of the agreement, such that, if he had known the truth, he would not have given his assent, the contract may be avoided by him. There can. be no real assent when it is induced by fraud.” 1 Elliott on Contracts, § 70.

One who is entitled to avoid an entire written contract because it lacked his assent can no longer be held bound by any of its stipulations, including those relating to representations or guaranties which induced its execution. U. S. Gypsum Co. v. Shields (Civ. App.) 106 S. W. 726; Id., 101 Tex. 473, 108 S. W. 1165; Hackney Mfg. Co. v. Celum. (Civ. App.) 189 S. W. 990, and (Com. App.) 221 S. W. 577; Threshing Mach. Co. v. Webb (Civ. App.) 181 S. W. 855; Landfried v. Milam (Civ. App.) 214 S. W. 848; Scale Co. v. Milling Co., 217 S. W. 200. The opinion of Chief Justice Gaines in Rapid Transit Ry. Co. v.

Smith, 98 Tex. 555, 86 S. W. 322. sharply contrasts the purposes for which parol evidence may be. admissible or inadmissible in such a case as this. The railway company pleaded a release as a defense to Smith’s action for damages for a personal injury; the release reciting that it was executed in consideration of $15 and the assumption of a certain doctor’s bill.

In avoidance of the plea, the plaintiff replied that the release was procured by fraud in that its execution was induced by a promise of the railway company by its agent to employ plaintiff as a motorman, knowing at the time that he could not be so employed, such promise made with the intent to defraud plaintiff. Plaintiff also pleaded that there was no consideration for the release save (he promise of re-employinent, ,and hence there was a failure of consideration. The charge of the trial court was to find for plaintiff if the railway company by its agent made the promise of re-employment.

The charge was held erroneous, the court saying with reference to the release: “Being a written contract, containing the recital of the payment of one sum and the promise to pay another as a consideration, it was not subject to be varied or contradicted by parol evidence. It was not susceptible of having imported into it by parol testimony that there was an additional agreement that the company was to give the plaintiff employment as a motorman, and that upon its failure to do so the release should be void. East Line & R. R. Ry. Co. v. Garrett, 52 Tex. 133.

On the other hand, if the agent of the company, as an inducement to the execution of the release, promised the plaintiff and induced him to believe that if he would execute the release he would get employment from the company as a motorman. and if such promise was not made in good faith, that is to say, if such agent had no intention of giving him such, employment, then, under the rule established in this court, the release was voidable and subject to be set aside for fraud.” Judge Gaines’ opinion is a good illustration that the parol evidence rule applies to prevent varying or changing the terms of a valid written instrument, but that the rule does not operate to prevent the admission of parol evidence to establish that a written instrument is vitiated or rendered voidable by fraud.

History Co. v. Flint, 4 Willson Civ. Cas. Ct. App. § 224, 15 S. W. 912; 1 Greenleaf on Evidence (16th Ed.) §§ 275, 284. The evidence relating to the representation or promise of appellant’s agent to issue and to furnish to appellee the supplements for the period alleged was admissible in support of appellee’s plea of fraud, and we therefore answer “No” to the first certified question. The declarations of appellant’s collectors were not shown to be within the actual or apparent scope of their agency. Appellant’s objections to their admission in evi-> dence should have been sustained in the trial court.

The declarations seem to have been material on the single issue as to whether appellant intended to perform its alleged fraudulent representation or promise.

In view of the testimony of appellant’s treasurer, intrusted with the sale of its books, to the effect 'that appellant sold the 32 volumes of the Encyclopedia and the first- four supplements as a complete set, which it never supposed would be kept up by any definite or indefinite issue of supplements, no other conclusion would have been warranted than that the representation or promise, if any, to issue and deliver annual supplements for 15 years or so long as appellee might live or practice law was made by appellant, through its agent, without any intention of fulfilling it.

The action of the trial court in admitting evidence of the collectors’ declarations was therefore harmless error. We answer to the second question that the Court of Civil Appeals did not err in refusing to reverse the trial court’s judgment for the erroneous, but harmless, admission of this evidence. <&wkey;>Kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes