
    PETERS v. STRAUSS et al.
    (Court of Civil Appeals of Texas.
    Nov. 26, 1910.)
    1. Exchange of Property (§ 3) — Ealse Representations — Evidence—Admissibility.
    In a suit to cancel a deed, evidence by defendant that in the negotiations for the exchange, whereby he obtained the deed, plaintiff made false representations as to the location and character of the land transferred to defendant, was properly excluded, where it had been sliojvn that defendant had gone upon the land before the contract was made.
    [Ed. Note. — For other cases, see Exchange of Property, Dec. Dig. § 3.]
    2. Evidence (§ 474) — False Representations in Conveyance op Property — Ac-tio n — Opinion Tesiimony — Admissibility.
    In an action to set aside a deed as having been procured on the false representations as to the character of certain hotel property situated in S. given in consideration for it,. where a witness testified that he had resided in S. for five years and in a county near that place for a number of years, had known the property in controversy for at least 15 years, that he was with his brother in the real estate business in S., that he knew the value of the property, sufficiently qualified him to further testify that, in his opinion, the property could not be rented for hotel purposes, as plaintiff alleged that defendant represented it could be so rented.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.]
    3. Deeds (§ 203) — Immaterial Evidence-Admissibility.
    In an action to set aside a deed as having been procured through fraudulent representations, under the issues as to whether a certain hotel that was given in consideration of the deed was misrepresented as being rentable, and whether defendant relied upon plaintiff’s false representations as to the character of the land covered by the deed, it was no error to exclude evidence by defendant that he became acquainted with plaintiff through his agent; such evidence being wholly immaterial.
    [Ed. Note. — EOr other eases, see Deeds, Cent. Dig. §§ 60A-611; Dee. Dig. § 203.]
    4. Evidence (§ 317) — Hearsay—Admissibility.
    In an action to set aside a deed as having been procured through the fraudulent representation that certain hotel property which was given as consideration for it could be rented, evidence by defendant that plaintiff’s agent told him that plaintiff had investigated the hotel property before making the transaction was inadmissible; no facts having been shown to make such a statement by plaintiff’s agent admissible against plaintiff.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.]
    5. Appeal and Error (§ 926) — Presumptions — Rulings on Evidence.
    In the absence from the record of any evidence of the qualification of a witness to express his opinion, the ruling of the trial court excluding such opinion will be presumed to be correct.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3735-3746; Dec. Dig. § 926.]
    6. Deeds (§ 190) — Actions—Misrepresentations— Proof Necessary.
    Since misrepresentations of material character, though innocently made, will furnish a valid ground for rescission of a contract, plaintiff, in his action to rescind a deed, need not prove, in addition to misrepresentations, that they were made with knowledge of their falsity, though he had alleged such fact in his pleading.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 561; Dec. Dig. § 190.]
    7. Escrows (§ 1) — What Constitutes.
    Where a deed was delivered to a bank with the stipulation that it should not be turned over to the grantee until notified to that effect by the grantor, it was not put in escrow, but remained in constructive possession of the grantor, a deed not being in escrow, unless its delivery to the grantee is dependent upon the occurrence of some event or the performance of some condition; so where the grantor took back the deed without delivering it to the grantee, in his action to set aside a copy of the deed obtained by the grantee, the grantee could not obtain relief, except by setting up such facts as to warrant specific performance.
    [Ed. Note. — For other cases, see Escrows, Cent. Dig. §§ 1-5; Dec. Dig. § 1.
    
    For other definitions, see Words and Phrases, vol. 3, pp. 2464-2467.]
    8. Trial (§ 256) — False Representations— Charges as to Materiality — Sueficiency.
    In an action to set aside a deed as having been procured by false representations as to the rental value of certain hotel property to be given in consideration for it, a paragraph of an instruction that the finding should be for plaintiff if defendant represented that the hotel was worth a certain sum, was in good repair, rented for a certain amount, was in a good town, etc., and these representations were untrue, and any one or more of them material, and were believed and relied upon by plaintiff, was sufficient in instructing the jury as to the elements of material, as distinguished from immaterial, representations, in the absence of any request by defendant for further instructions.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    9. Trial (§ 253) — Action — Instructions Properly Refused.
    In an action to set aside a deed, defendant claiming that plaintiff did not come into equity with clean hands, because he had falsely represented to him the character of the property covered by the deed, an instruction that if plaintiff fraudulently made such misrepresentations at a certain time, then he could not recover, was properly refused, as it ignored the issue raised by the evidence of the rescission of a prior written agreement by mutual consent, and by the uneontroverted proof that the defendant saw the land for himself before he entered into the new agreement in regard to the transaction.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    Appeal from District Court, Lipscomb County; F. P. Grewer, Judge.
    Action to set aside a deed by G. H. Strauss and others against J. N. Peters. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    The following testimony is referred to in the opinion: B. R. Reed testified that he resided in Selden, Kan., on the 23d of October, 1907, and on the 16th day of January, 1908, and that he had resided there for five years and had resided in the county near Selden for a number of years, and that he had known the property for at least 15 years, that he was with his brother in the real estate business in Selden, and that he knew the property on the dates named, and he gave the number of the lots and block.. 1-Ie also testified that his opportunity for knowing the value was by seeing the property nearly every day and by comparing it with the value of other property that was being sold, that the property -was in bad repair and not rented, that there was no demand for such a building, and that there were two other hotels in good repair in the town of Selden. B. R. Reed testified to the above before he expressed any opinion as to value.
    0. Vincent Jones and Adkins & Sewell, for appellant. Hoover & Taylor and E. O. Gray, for appellees.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
   DUNKLIN, J.

By'the terms of a parol contract between Herman Strauss and J. N. Peters the former agreed to convey to the latter 823 acres of land in Lipscomb county, Tex., and Peters agreed to convey to Strauss certain lots and a hotel building, together with hotel furniture, all situated in Selden, Kan. Strauss executed a deed to the Lipscomb county land purporting to convey it to Peters and the same was placed in a bank in Shattuck, Okl., but it was subsequently withdrawn therefrom by Strauss. Peters procured a copy of the deed and placed it on record in Lipscomb county. Strauss instituted this suit against Peters, alleging that he was induced to enter into the agreement to exchange properties with Peters by false and fraudulent representations of the latter relative to the Kansas property. Plaintiff alleged that his deed had never been delivered to Peters, and that he had repudiated the agreement to exchange properties after discovering the fraud practiced upon him, and that Peters had acquired no title to the Lipscomb county land, but that the record of the copy of the deed mentioned above cast a cloud upon his title, and he sought a judgment decreeing as null and void both the original deed and the copy. In addition to a general and a special answer denying the misrepresentations alleged, Peters alleged that the deed to the Lipscomb county land was duly delivered to him by Strauss, but that afterwards Strauss surreptitiously regained possession thereof, that he, Peters, was induced to enter into the agreement for exchange by false and fraudulent representations of Strauss, resulting in damages to defendant in the sum of $5,032.60. He resisted cancellation of the deed, pleading estoppel against plaintiff by reason of the alleged fraud, and sought a judgment over against Peters for the damages alleged. During the pendency of the suit, Wm. Drum, Wm. O. Erts, Grace B. Erts, and C. L. Barnes seem to have acquired deeds of conveyance to portions- of the property, and after being vouched into the suit by Peters they joined with plaintiff and prosecuted the suit as his co-plaintiffs. The judgment awarded plaintiffs the relief prayed for by them, and Peters has appealed.

Several assignments of error are presented by appellant to the action of the court in excluding certain testimony which was offered in support of his allegations of misrepresentations and fraud on the part of Strauss relative to the value of the Lipscomb county land, its distance from Shattuck, Okl., and the depth of water below the surface in a well upon the land. The evidence showed that appellant had been upon the land before the parol agreement for exchange of properties was made, and in no event could there be error in excluding such testimony. There was no error in admitting the testimony of B. R. Reed, giving as his opinion that the hotel building situated in Selden, Kan., could not be rented for hotel purposes. Plaintiff had alleged that defendant represented to him that the building was rented for $50 per month and Reed’s deposition was offered to prove the falsity of that representation. We think that Reed duly qualified himself to give such an opinion, and there was no error in overruling appellant’s objection thereto.

Nor was there error in refusing to permit appellant to testify that he became acquainted with Strauss through his agent, A. N. Eddy, as such testimony was wholly immaterial to any issue in the ease. It was not permissible for Peters to testify that A. N. Eddy had told him that Strauss had investigated the Kansas property prior to October 23, 1907, as no facts were shown to make such a statement by Eddy admissible against Strauss.

Complaint is made of the exclusion of depositions of O. S. Laird, L. B. Miller, Anna R. Wood, and L. M. Linton, touching the value of the Kansas property. The bill of exception shows that the depositions were excluded upon the objection that the witnesses had not qualified themselves to testify to such values. There was no showing in the bill, nor has appellant pointed out any evidence in his brief to show that these witnesses had qualified to give such opinions, and in the absence of such showing, the ruling of the court will be presumed to be correct, and accordingly the assignment of error complaining of that ruling is overruled.

It is well settled in this state that misrepresentations of a material character, although innocently made, will furnish a valid ground for rescission of the contract in a suit by the party deceived, and the trial court committed no error in so charging the jury. Although plaintiff alleged that Peters knew that the misrepresentations charged were untrue, it was not incumbent upon him to establish this allegation in addition to proof of the misrepresentations, as the same would be surplusage only. Collins v. Chipman, 41 Tex. Civ. App. 563, 95 S. W. 673; McCord-Collins Co. v. Levi, 21 Tex. Civ. App. 100, 50 S. W. 607; Culbertson v. Blanchard, 79 Tex. 492, 15 S. W. 700; Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900.

Appellant challenges the correctness of the following paragraph of the court’s charge: “A deed delivered by a grantor to a third party to be delivered to the grantee at some future time, and when so directed by him, or upon the happening of some future event, is a delivery in escrow, and no title passes thereby until the deed is actually delivered, as hereinbefore defined; if, therefore, you find and believe from the evidence in this case that the deed from the plaintiff was by the plaintiff delivered to the Shattuck bank, and was not to be turned over to the defendant until directed by the plaintiff to be delivered to defendant, and you further believe that he has never consented to or directed its delivery, then your verdict should be for the plaintiff for the land in controversy.” Also another portion of the charge reading as follows: “You are further instructed that if you find and believe from the evidence that after the execution of the written contract in October, 1907, that both plaintiff and defendant mutually agreed to abandon said contract and did abandon the same, and you further find that they thereafter made and entered into a verbal agreement for the sale* or exchange of their respective properties, and you further find that acting under said verbal agreement, if any, plaintiff executed a deed for the Lipscomb county land to the defendant, and you further find that said deed was placed in escrow in the Shattuck bank and never delivered to the defendant, then you are charged that plaintiff would not be bound by such verbal agreement to convey such land, even though he had executed a deed thereto, and in the event that you so find, your verdict should be for plaintiff.”

In connection with the instruction first quoted, the court further charged the jury as follows: “If, however, you find and believe from the evidence that the plaintiff, after he executed the deed, actually intended to deliver the same to defendant and did actually deliver to him, as the term ‘delivery’ has been defined to you, or if you find and believe that the delivery to the bank was intended to be an actual delivery to the defendant, then, if you so find, you are instructed to find for the defendant, unless you should find for plaintiff upon instruction hereinafter given you.” The only instruction which followed, in any manner limiting the defendant’s right to a verdict under the instruction last quoted, was an instruction submitting plaintiff’s right to recover upon his allegations of fraudulent misrepresentations by the defendant, in the event the jury found that the deed had been delivered to the appellant. The basis of the criticisms of the charge is.the assumption by appellant that the proof showed a delivery of the deed to-the bank in escrow by Strauss. In his petition Strauss, referring to the deed executed by him to Peters, alleged, “and said deed was placed in the First State Bank of Shat-tuck, Okl., to there remain and not be delivered to the defendant, nor to any one for him, until the plaintiff agreed to its delivery after examination of said lots, hotel, and livery barn, and furniture described as situated in the town of Selden, Kan.” In another paragraph of the petition, plaintiff alleged, “but said deéd was placed in said bank only to be delivered to the defendant upon order or request of plaintiff, and said plaintiff at no time requested or in any manner consented to the delivery of said deed to said defendant, or to any one for him, and on or about February 10, 1908, plaintiff notified said bank that said deed was not to be delivered to the defendant.” Plaintiff’s testimony relative to the delivery of the deed to the bank corresponded with the allegations-in his petition quoted above. If those allegations were true, then the delivery to the bank was not a delivery in escrow, as plaintiff designated it in another paragraph of his petition and as the trial judge seemed to have construed the pleading.

“To give a deed the character of an escrow, it is essential not only that it should be delivered to a third person, but that its delivery to the grantee should be dependent upon the occurrence of some event, or the performance of some condition. If, therefore, it be delivered to a third person, to be kept by him during the pleasure of the grantor, and subject to his order, it is not an escrow. Where a deed is thus deposited with a third person, to be delivered to the grantee upon the order of the grantor, it is not an escrow, because it is deemed in law to be still in the grantor’s possession. There was nothing agreed to be done by or on the part of the grantee, as the condition upon the performance of which the deed was to become absolute, and to be delivered to him by the third person. It is the general rule that a deed delivered to a third person is viewed as an escrow only in case it is agreed that the deed is to be delivered to the grantee, upon the performance by him of the stipulated condition.’ ” 1 Devlin on Deeds, § 318. See, also, 13 Oyc. 562-565 (2); 16 Cyc. 568.

Peters did not allege that the deed was delivered to the bank in escrow, but alleged in his answer and testified on the trial that it was delivered to him by Strauss, and that he, instead of Strauss, had left it with the bank, thus negativing any delivery to the bank in escrow. Furthermore, by plea over he prayed for judgment against Strauss for damages, basing that plea upon allegations-by him that Strauss had made fraudulent misrepresentations to him concerning the Lipscomb county land, and this upon the theory that title to the land had passed to-Peters. It was proven beyond controversy that tbe bank bad returned the deed to Strauss and that thereafter the same was neve# delivered to Peters, nor to any one for him. If the deed had been delivered to Peters as he testified, then title would have passed to him, and in order for Strauss to recover it would have been incumbent upon him to sustain his allegations of misrepresentations by Peters. But if the original written agreement to exchange properties was, by mutual consent of the parties, rescinded and annulled and Strauss delivered the deed in controversy to the bank with the understanding and under the instructions alleged in his petition and detailed by him in his testimony, then no title passed; and upon proof of those facts alone, without proof of the misrepresentations charged in his petition, he was entitled to the relief sought by him, in the absence of some pleading by Peters, sustained by evidence, showing some valid and subsisting contract by Strauss to convey the land, coupled with a prayer for specific performance.

Appellant complains further that the first paragraph of the court’s charge authorized a recovery by plaintiff upon a finding sustaining plaintiff’s allegations of misrepresentations, without a further finding that such misrepresentations resulted in injury to the plaintiff. That paragraph as shown in the transcript reads: “False and fraudulent representations, as applied to the law of this case, are such representations as to the character and value of the property in controversy as actually misled the party to whom the same were made, and such as actually did deceive and mislead the party, and you are charged that representations made as to the character and value of the property, if relied and acted upon in making a trade or exchange of property, if sufficient to avoid the trade, even though the party making the same may honestly believe them true, the point to be considered being, were the representations made, and were they untrue, and was the party misled and deceived thereby.”'

In another paragraph of the charge, the jury were instructed: “If, therefore, you find and believe from the evidence in this case that the defendant represented to the plaintiff that the hotel in Kansas- was worth $7,500, that the same was in good repair, and that the same and the-livery barn were rented for $50 per month, that Selden, Kan., was a good town for a hotel and livery barn, that there was a mortgage on the property not to exceed the sum of $1,500, or if more than- $1,500, he, the defendant, would reduce same to $1,500, that the hotel was furnished and that the furniture went with the hotel, as charged in plaintiff’s amended original petition, and you further find and believe that such representations were material and were believed and relied upon by plaintiff, and that he was thereby induced to make the deed in controversy and to deliver the same to the defendant, if you find that he actually did deliver the same to the defendant, and you further find that such representations were untrue, or any one or more of the same, then you are charged, if you so find, to find for the plaintiff.”

■It will be noticed that in the last paragraph of the court’s charge, the jury were told that they must find that the misrepresentations of Peters were material, before they could find in plaintiff’s favor upon the theory of fraudulent misrepresentations inducing the trade. In the absence of a request by appellant for a further instruction upon the elements of material, as distinguished from immaterial, misrepresentations, the charge was, at all events, sufficient. It would further seem that if the misrepresentations charged were proven, there could be no question as to their materiality. Prid-ham v. Weddington, 74 Tex. S54, 12 S. W. 49; Putnam v. Bromwell, 73 Tex. 465, 11 S. W. 491. Appellant’s testimony was, in effect, that prior to the making of the written agreement between the parties dated October 23, 1907, and before appellant had seen the land in controversy, 'Strauss made certain representations concerning it, which were afterwards found to be false. Under this testimony and appellant’s pleading of fraud on the part of Strauss, and upon the theory that he who invokes equity must come with clean hands, appellant requested an instruction, in substance, that if Strauss made such misrepresentations at the time testified by Peters, and they were fraudulently made, then plaintiff could not recover. This instruction was refused and properly so, as it ignored the issue raised by the evidence of a rescission of the written agreement by mutual consent of the parties thereto, and the uncontroverted proof that appellant saw the land for himself before the parties entered into the new agreement. Furthermore, it seems at least doubtful that the rule of equity invoked by appellant would be applicable in this case.

In Whitworth v. Thomas, 83 Ala. 308, 3 South. 781, 3 Am. St. Rep. 725, Thomas having traded a mule to Whitworth for a mare, sought to rescind the sale on the ground that Whitworth had made fraudulent and material misrepresentations concerning the condition of the mare. Whitworth undertook to prove that Thomas had misrepresented the qualities of the mule, thereby practicing a fraud upon Whitworth. The court held that such proof was wholly immaterial, and in the course of the opinion said: “The maxim, ‘in pari delicto, potior est conditio possi-dentis,’ has no application in a case like this. That maxim applies, and only applies, where two or more are jointly concerned in the perpetration of one and the same fraud; a conspiracy or combination to accomplish an illegal object through fraud, by which some third person is to be the sufferer. It does not permit one independent deceit or fraud to be set off against another deceit or fraud so as, on that account, to estop the latter from maintaining his suit. It may confer a right to a.cross-action. It does not deny either party all right to sue.”

We have found no error in the judgment, and it is affirmed.  