
    TUCKER v. SMELLAGE.
    (No. 535.)
    Court of Civil Appeals of Texas. Waco.
    June 23, 1927.
    Rehearing Denied Sept. 15, 1927.
    I. Trial <&wkey;350(3) — In suit to cancel note and to recover money, submitting to jury issue concerning value of oil stock securing note held proper.
    In suit to cancel note and to recover money based on fraudulent-representations as to effect of prior contract between parties, where plaintiff contended that contract transferring stock guaranteed defendant 10 per cent, on investment and entitled him to reimbursement for depreciation in value of stock, of which construction contract was susceptible, submitting to jury issue as to market value of stock on date of guaranteed return was not error as against objection that it was immaterial and lack of evidence, in view of plaintiff’s testimony as to its value on such date.
    
      2. Trial <&wkey;35I(2) — In suit to cancel note for fraud, failure to submit whether check given in same transaction was fraudulently obtained held not error, in absence of request.
    In suit to cancel note and recover money paid by check based on ground of fraudulent representations ds to effect of prior contract between parties, where jury found against contention of fraud, failure to include, in issue whether note was secured by fraudulent representations, any reference to check given in same transaction, was not error, in absence of request therefor.
    3. Bills and notes <3=103(1) — Payment <@=86 —Finding' that contract was shown, to plaintiff at execution of note and check held to prevent cancellation' of note and recovery of money for fraud. 4
    In suit to cancel note and recover money on ground of fraudulent representations as to pri- or written contract between parties, jury’s finding that defendant, at and prior to time of such execution and delivery, exhibited to plaintiff bis. copy of written contract, 'held to preclude recovery.
    4. Trial <&wkey;35l(2) — Refusal to submit issues asked under one request, two of which were improper, held not error.
    Where of eight issues copied in succession, not on separate sheets of paper, and submitted under one request, three were in substance incorporated in issues submitted by court, one was purely evidentiary, and another was wholly immaterial, through jury’s findings on other issues, refusal thereof was proper.
    5. Trial <&wkey;35l (2, 5) — Issues or instructions presented en masse should be refused if one has been substantially given, or if one was improper.
    Special requested issues or instructions presented en masse should be refused by trial court, if any one of them has been substantially given in main charge, or if any one of them should have been refused.
    Appeal from District Court, Ellis County; W. L. Harding, Judge.
    Suit by J. W. Tucker against R. H. Smel-lage to cancel a note and recover money. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Tom Whipple, of Waxahaehie, for appellant.
    J. L. Gammon, of Waxahaehie, for appellee.
   GALLAGHER, C. J.

Appellant, Tucker, instituted this suit against appellee, Smellage, to cancel a note in the principal sum of $7,-000 which had theretofore been executed and delivered by him to appellee and to recover $656 in money, which sum was included in a check for $1,343 given by him to appellee at the time he executed and delivered said note. He alleged that he was induced to execute said note and check and to deliver the same to appellee by certain false and fraudulent representations made to him by appellee at and prior to such delivery. Appellant also sought to recover $300, the alleged value of 2% shares of oil stock which he alleged belonged to him and had been converted by appellee. Appellee denied appellant’s allegations and sought in a cross-action recovery on said note. The controversy involved in this suit grew out of a transaction, between appellant and appellee on the 4th day of October, 1919. On that day appellee gave appellant his check for $8,125, and appellant transferred and delivered to him 25 shares of the capital stock of the Shamrock Oil Company. On the same day appellant prepared and he and appellee signed in duplicate a written contract as follows:

“This contract and agreement this day entered into by and between R. H. Smellage and J. W. Tucker, witnesseth:
“The said Tucker has this day sold and transferred to the said Smellage 25 .shares, of a par value of $100.00 each, of Shamrock Oil Company stock, for $8,125.00 for the 25 shares.
“The said Tucker guarantees to the said Smellage a 10 per cent, on the investment of $8,125.00 on or before March 15, 1920.
“As a consideration for this guaranty on the part of Tucker he is to share on a fifty-fifty basis with Smellage on any and all increase over and above the guaranteed 10 per cent, on the entire 25 shares this day transferred.
“The value of this stock on the 15th day of March to be determined by a give or take price submitted by said Smellage.
“[Signed] J. W. Tucker.
“R. H. Smellage.
“Contract in duplicate at Waxahaehie, Tex., this 4th day of October, 1919.”

On or about the date specified in said contract for the adjustment of the rights of the parties thereto under the guaranty therein contained, a controversy arose as to the real nature of the transaction. Appellant claimed that he had sold said 25 shares of stock to appellee at $325 per share and was liable only on his guaranty. Appellee claimed that he loaned said sum of money to appellant to be repaid on said date and that said shares of stock were delivered to him as security therefor. After considerable discussion, this controversy was adjusted on April 15, 1920, by appellant’s giving appellee his check for $1,343, and executing and delivering to him said note for $7,000, which by its terms was due and payable on December 31, 1920. Said check represented, according to an indorsement thereon, $1,000 paid on principal and $343 on interest. Said shares of stock were to be held as collateral security for said note, but they were returned to appellant to be reissued in his own name. A new certificate for 27% shares of said stock was issued to appellant, indorsed by him and delivered to appellee. There had been at the time of said latter transaction a material decline in the value of said stock. Nothing further was done until the latter part of the year 1924, when said note was about to be barred by limitation and appellee bad placed tbe same in tbe bands of bis attorney for collection. Appellant tben contended tbat at tbe time of the adjustment of tbe controversy between him and appellee by tbe execution and delivery of said check and note, be bad lost or misplaced bis copy of tbe original contract which has heretofore been set out; tbat bis memory was not distinct about tbe matter; that appellee asserted tbat tbe transaction was a loan of said amount of money by him to appellant and tbat said stock was delivered to him as collateral security therefor ; tbat appellee denied there was; a written contract evidencing tbe original transaction, and tbat because of tbe high personal character of appellee be relied on bis representation and made said adjustment of tbe controversy and executed and delivered bis check and note as aforesaid; that be bad recently discovered bis copy of said contract; that said contract established tbat tbe original transaction was a sale; tbat at tbe time of the adjustment of said controversy on April 15, 1920, be only owed appellee'on bis guaranty 10 per cent, of tbe amount received by him for said stock, less dividends collected by appellee; and that bis said check was for $656 more than be so owed. Appellee contended tbat the original transaction was a loan; that appellant prepared tbe written contract and that be signed- it believing it to express tbe actual trade tbat bad been made; tbat be produced bis copy of said contract and exhibited it to appellant; and that when tbe matter was adjusted by tbe delivery of said check and note to him, be left bis said copy with appellant or on bis desk.

Tbe case was tried to a jury. Both appellant and appellee introduced evidence tending to support their respective contentions. There was a conflict in tbe evidence with reference to whether appellant authorized ap-pellee to dispose of tbe additional 2% shares of stock embraced in tbe certificate when it was reissued in tbe name of appellant and delivered by him to appellee. Tbe evidence showed that said stock had been liquidated and tbat appellee bad received $2,750 as tbe proceeds of such liquidation, which sum be admitted should be credited on 'Said note. The jury found, in response to special issues submitted, that: (a) Tbe cash market value of tbe original 25 shares of oil stock delivered by appellant to appellee on tbe 15th day of March, 1920, was $225 per share; (b) appellant authorized appellee to dispose of tbe additional 2% shares of said stock; ,(e) ap-pellee did not by false and fraudulent representations induce appellant to execute and deliver to him said $7,000 note; (d) at or prior to the execution of said note appellee showed appellant a copy of tbe original contract; (e) appellant delivered to appellee 27% shares of stock as collateral to secure said note. Tbe court rendered judgment on tbe verdict for appellee against appellant for $8,240.79, being tbe amount of said note, principal, interest, and attorney’s fees, less a credit of $2,750 received by appellee on account of tbe liquidation of said stock. Appellant presents said judgment for review by this court.

Opinion.

Appellant complains of tbe action of tbe court in submitting, over his objection, an issue asking tbe jury to find tbe market value of tbe 25 shares of oil stock on March 15, 1920. Tbe grounds of said objection were tbat such value was immaterial and tbat there was no evidence on which tbe jury could base such a finding. Appellant himself testified that said stock was selling at tbat time for less than $325 a share and tbat tbe selling price could have been as low as $225 a share. We do not think tbat tbe market value of the stock at that time was immaterial. Appellant contended at tbe trial tbat said contract by its terms guaranteed him a profit of 10 per cent, on his investment on said date specified therein, and entitled him to be reimbursed for depreciation in tbe value of said stock as well as for its failure to enhance in value. Tbe contract is susceptible of such construction. Had tbe jury found tbat appellant was induced to make- tbe settlement on April 15, 1920, by false and fraudulent representations made to him by' appellee, appellee would have been entitled in any event to tbe benefit of such guaranty.

Appellant further complains of tbe action of the court in overruling bis objection to tbe manner in which tbe court submitted the issue of whether appellee, by means of false and fraudulent representations, induced appellant to execute said $7,-000 note and deliver tbe same to him. Tbe only ground of objection was tbat said issue did not include tbe $1,343 check which appellant executed and delivered to appellee. Tbe undisputed evidence showed tbat both check and note were executed and delivered at tbe same time, upon tbe same consideration, and as a part of tbe same transaction. Tbe jury not only found tbat the-execution and delivery of tbe note was not induced by any fraud on tbe part of appellee, but tbat appellee, at and prior to tbe time of such execution and delivery, exhibited • to appellant his copy of tbe written contract. If he did so, appellant was fully advised of tbe existence and contents of said contract and bis rights thereunder at tbe time be executed and delivered said note and check. Such finding precludes a recovery by appellant on the ground of fraud or deceit. Wortman v. Young (Tex. Com. App.) 235 S. W. 559, 560, 561. Had appellant framed a proper issue inquiring whether tbe execution and delivery of the check was induced by fraud as charged by appellant, and had presented tbe same to the court separately with a request that the same be submitted to the jury for determination, the court would doubtless have done so.

Appellant, after the charge of the court had been prepared and submitted to counsel for criticism, and after he had presented his objections thereto, prepared and asked the court to submit to the jury a series of eight special issues. These issues were all under the same caption. They were copied in succession and not on separate sheets of paper. They were all submitted under one request and over a single signature of counsel. Three of said issues were in substance incorporated in the issues prepared and submitted by the court. One of said issues was purely evidentiary, and another was rendered wholly immaterial by findings of the jury on other issues. It is a well-settled rule in oiir practice that special requested issues or instructions presented en masse should be refused by the trial court if any one of them has been substantially given by the court in its main charge, or if any one of them should have been refused. Merchants’ Ice Co. v. Scott & Dodson (Tex. Civ. App.) 186 S. W. 418, 422 (writ refused), and authorities there cited; Wall v. Lubbock, 52 Tex. Civ. App. 405, 118 S. W. 886, 889 (writ refused); Burn-ham, Hanna, Munger & Co. v. Logan, Evans & Smith, 88 Tex. 1, 7, 29 S. W. 1067, and authorities there cited; Standard Scale & Supply Co. v. Chapin (Tex. Civ. App.) 218 S. W. 645, 647; White v. Bell (Tex. Civ. App.) 242 S. W. 1082, 1088, pars. 8 and 9, and authorities there cited.

We think the controlling issues in the case were submitted by the court. The jury in response thereto found against appellant’s contentions.

The judgment of the trial court is affirmed. 
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