
    MADDOX v. CLARK.
    (No. 2650.)
    (Supreme Court of Texas.
    April 28, 1915.)
    1. Exchange or Property ©=55 — Rescission —Misrepresentations.
    A definite and material representation of the condition and valuó of land exchanged, which is relied upon and proved to be untrue, though stated at the time to be made not upon actual knowledge but upon information, will support an action for rescission, where in the same connection the party making the representation affirms the truthfulness of the information.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. ©=55.]
    2. Exchange op Property ©=so — Rescission. ' An assumption by one of the parties to an
    exchange of lands of an indebtedness of the other does not preclude rescission by the debtor, where the creditor has not agreed to accept the undertaking.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. ©=55.]
    3.Appeal and Ebbob ©=>1082 — Preservation op Grounds pob Review — Objections in Intermediate Court.
    The reformation of a judgment by the Court of Civil Appeals will not be reviewed, in the absence of an objection in that court by motion for rehearing and application for a writ of error on that ground.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1133-1136, 4270, 4281-4284,4289-4292; Dec. Dig. ©=5.1082.]
    Error to Court of Civil Appeals, Second Supreme Judicial District.
    Action by S. B, Maddox against J. P. Clark. Judgment for defendant was affirmed by the Court of Civil Appeals (163 S. W. 309), and plaintiff brings error.
    Affirmed.
    D. J. Brookreson, of Benjamin, for plaintiff in error. Jas. A. Stephens, of Benjamin, for defendant in error.
   PHILLIPS, J.

Maddox instituted the suit in trespass to try title to recover of Clark certain lots in the town of Knox City. By cross-action Clark, joined by his wife, sought the rescission of the trade in which they had conveyed to Maddox the lots sued for, and others, in exchange for 160 acres of land in Montague county; Clark executing and delivering to Maddox his notes in the transaction, as well, in the aggregate sum of $950. The ground of the cross-action was certain misrepresentations concerning the Montague county land alleged to have been made to defendants by Maddox and L. P. Bennett as his agent, which induced the conveyance of their property and the procurement of Clark’s notes for $950 through fraud and imposition, he being uneducated and unable to read, when, according to the agreement in the trade, they should only have been for the principal sum of $500. Four of the lots conveyed to Maddox had been in turn conveyed by him to an innocent third party at the time of the trial. He had also transferred Clark’s notes, without recourse, to an innocent holder. The trial resulted favorably to the defendants, and judgment was rendered for them against Maddox for the amount of the notes and the value of the lots he had sold, less certain credits, canceling their deed to the lots sued for, and restoring to Maddox the Montague county land. The Court of Civil Appeals for the Second District reformed the judgment so as to postpone execution for the amount of the notes until Clark should pay them, and affirmed it. 163 S. W. 309.

The lots conveyed by the defendants to Maddox in the transaction, or some of them, constituted their homestead. Maddox had only owned the Montague county land three days, when its exchange for the defendants’ property was made. The defendants appear to have been ignorant people, and the evidence sustains the verdict that they were induced to trade their property for the land which they had never seen by representations of Maddox and Bennett concerning it, which were untrue.

Clark’s testimony was that both Maddox and Bennett, in connection with their representations, stated that they had never seen the land. The ruling of the Court of Civil Appeals that, under such circumstances, the representations were actionable, was in conflict with the holding of the Court of Civil Appeals for the Sixth District in Boles v. Aldridge, 153 S. W. 373, decided in this court upon this date; and a writ of error was granted in the present case for the settlement of the conflict.

We held in Boles v. Aldridge that a definite and material representation of fact, which is relied upon and proves to be untrue, though stated at the time to be made not upon actual knowledge but upon information, will support an action for rescission, where, in the same connection, the party making the representation affirms the truthfulness of the information. This but amounts to an affirmation of the truthfulness of the representation itself, which is therefore sufficient to support the action.

Our holding in Boles v. Aldridge controls this case. The court submitted to the jury the representations of both Maddox and Bennett, and likewise the issue of the latter’s agency. According to Clark’s testimony, the representations of both concerning the land were positive statements of fact in respect to its actual condition, and not simply the relation of what others had told them. Both stated they had never seen it, but, according to Clark, Bennett in the same connection also said, “I will vouch for the land.” This could mean nothing else than that their common statements concerning it were true, and amounted to a distinct affirmation to that effect. According to the testimony of Mrs. Clark and her daughter, the representations made to Mrs. Clark were positive and without any information that neither Maddox nor Bennett had ever seen the land.

In addition, the evidence tended to establish that Maddox had never received any such information about the land as was embodied in the representation he made to Clark according to the latter’s testimony, though it should be stated that both he and Bennett denied having made the representations attributed to them by the defendants. Clark testified that Maddox’s statement to him was that 40 acres of the land were in cultivation, and that it had upon it a plank house, a log house, a well of water and an orchard; and that in fact there was no house upon it, nor any well. The only testimony given by Maddox touching any information received by him concerning the land was his statement “that a drummer, who said he was doing business in Nocona, stated to him that it was worth $25 per acre at least, but said he had never seen the land, and that there were different kinds of land in that country.”

There was no plea that the defendants had waived or ratified the fraud; therefore no such issues were in the case. Nor was there any pleading or proof that the holder of Clark’s indebtedness, secured by lien by the lots and assumed by Maddox in the trade, agreed to accept the latter’s undertaking. In this state of the record Maddox’s assumption of the indebtedness was binding only between the Clarks and himself, and was subject to cancellation in the suit.

Complaint is made by the defendants in error at the reformation of the judgment by the Court of Civil Appeals, but, in the absence of any such objection in that court by a motion for rehearing and an application for a writ of error by the defendants upon that ground, we cannot review that question.

The judgment of the Court of Civil Appeals is affirmed. 
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