
    TYLER BUILDING & LOAN ASS’N v. BIARD & SCALES.
    (No. 2730.) 
    
    (Supreme Court of Texas.
    Dec. 23, 1914.)
    1. Pleading (§ 214) — Demuebee — Admissions.
    A demurrer admits the truth of the allegations of the pleading demurred to.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.]
    2. Pbincipal and Agent (§ 76) — Wrongful Act op Agent — Estoppel—Liability.
    Where an agent, in possession of a deed executed by his principal in exchange for a stock of merchandise of the grantee, delivered the deed to the grantee in direct violation of the instructions of the principal, and in pursuance of a scheme to defraud the principal and deprive him of the value of his land, the agent was es-topped to deny that title passed on his delivery of the deed to the grantee, and was liable to the principal for proximate resulting damages.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 158-161; Dec. Dig. § 76.]
    3. Esceows (§ 4) — Deliveey in Escrow— Acts Constituting.
    A deed delivered by the grantor to his agent for delivery to the grantee, in accordance with specific instructions, is not in escrow while in the hands of the agent.
    [Ed. Note. — For other cases, see Escrows, Cent. Dig. § 7; Dec. Dig. § 4.]
    4. Appeal and Eeeoe (§ 360) — Petition poe Eeeoe — Answee—Right to Heaeing.
    • Where defendant in error filed answer to an application for writ of error, as authorized by Supreme Court rule 5 (142 S. W. viii), based on Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1542a-1542c, without reserving the right to be further heard in open court, the court will proceed at once with the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1941, 1949, 1953; Dec. Dig. § 360.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by the Tyler Building & Loan Association against Biard & Scales. There was a judgment of the Court of Civil Appeals (165 S. W. 542) affirming a judgment for defendant, and plaintiff brings error.
    Reversed and remanded.
    See, also, 147- S. W. 116S.
    Lively, Nelms & Adams, of Dallas, and Las-seter & Mcllwaine, of Tyler, for plaintiff in error. Lawther & Pope, of Dallas, for defendant in error.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Senes & Rep’r Indexes
    
    
      
       For opinion on motion for rehearing, see 171 S. W. 1200.
    
   HAWKINS, J.

Petitioner in error, as plaintiff in the trial court, sued defendant in error, defendants there, for damages alleged to have resulted from the unauthorized, wrongful, and fraudulent delivery by defendants, as plaintiff’s agents, of certain deeds to some 4,294 acres of land in Eastern Texas' in exchange for a stock of dry goods in Kansas City, Mo. Said petition alleges, in substance, among other things: That defendants are now, and during the year 1909 were, engaged in business in Dallas, Tex., as real estate agents and dealers. That in March, 1909, defendants represented to plaintiff, a corporation, that they were in position to make for their clients large profits on property turned over to them for trade or exchange. That at said time, and subsequent thereto, plaintiff owned and had possession of 2,888 acres of land in Angelina county, Tex., same being a portion of the Vincenti Michelli grant, describing it, worth $6.50 per acre, or $18,772, and also owned and held possession of 1,406 acres of land in Cherokee county, Tex., same being a portion of the M.- del C. Leigo league grant, describing it, worth $6.50 per acre, or $9,931; a portion of the last-named tract being at the time of the negotiations mentioned in said petition in the name of the estate of Mrs. Susan W. Thorn, deceased, but in truth and in fact belonging to plaintiff. That plaintiff listed said lands with defendants on or about April 1, 1909, for disposition by sale or trade. That defendants thereafter submitted various propositions of trade for said lands, none of which were acceptable to plaintiff. That on or about September 7, 1909, defendants represented to plaintiff that they could trade said lands to Kansas City parties at $15 per acre for a stock of general dry goods, consisting of clothing, shoes, boots, hats, dresses, etc., a stock which was first-class in every respect, and which could be easily handled for cash, whereupon plaintiff advised defendants that it would be willing to trade for same, provided the stock was all right and the goods not damaged; said goods to be traded for to be submitted to inspection by plaintiff and cheeking up of the inventory thereof. That about September 18, 1909, and in reliance upon the representation of defendants, made through said Biard, to the effect that he had 20 years’ experience in the dry goods business, and had examined and handled over 200 stocks of dry goods, and was thoroughly acquainted with the character and quality of dry goods and the value thereof, and was competent to pass upon stocks of dry goods as to kind and quality and price thereof, plaintiff authorized said Biard to go to Kansas City to negotiate a deal of said lands for such a stock of general dry goods, but did not authorize him to enter negotiations to trade said lands for any other kind or character of dry goods. That shortly thereaftér said Biard went to Kansas City, and from there represented to plaintiff that they had been offered for said two tracts of land $60,000 in merchandise, whereupon plaintiff believed and relied upon the representations of defendants, acting by and through said Biard, that said offered stock of merchandise was such as defendants had so represented to plaintiff it would trade said lands for, and such as that for which the plaintiff had authorized defendants to so enter into negotiations by way of exchange. That, immediately after attempting to .enter into a contract on behalf of plaintiff with the Mitchell Dry Goods Company for the exchange of said $60,000 stock of merchandise for said land, Biard returned* to Texas, and thereafter studiously concealed the true character and quality of said stock of merchandise, but represented to plaintiff that he had traded for such a stock of general dry goods as he had represented to plaintiff he would trade for, and inventorying at cost prices the sum of $60,000, and that such sale was subject to inspection of said goods and checking said inventory by plaintiff, and very strenuously and urgently recommended to plaintiff that he accept said trade and close same immediately. That believing said statements so made by defendants to be true, and relying on fheir representations, plaintiff authorized defendants to proceed with closing said deal for the exchange of said goods for said lands; “said trade to be made subject to examination of the goods and checking of the inventory of the same by plaintiff.”

Said petition further avers: “That in pursuance of said trade, as represented to it by defendants, plaintiff prepared, executed, and acknowledged, and caused to be prepared, executed, and acknowledged, deeds for the land in question, conveying same by warranty title to one B. W. Pope, the party designated by said defendants, and turned said deeds over to defendants for safe-keeping, to be delivered when plaintiff had inspected and examined said stock of goods and checked the inventory therefor,” and turned said deeds over to defendants on or about October 23, 1909, down to which time, and ever since the return of said Biard from Kansas City, defendants had studiously and diligently represented to plaintiff that said stock of goods so traded for was a first-class stock of general dry goods, consisting of clothing, dresses, boots, shoes, etc., and had strenuously and diligently concealed from plaintiff the true character of said stock of goods, and up to said time had failed and refused to furnish to plaintiff a copy of the contract which they had entered into on behalf of plaintiff with said Mitchell Dry Goods Company, and had also failed and refused to furnish to plaintiff an inventory of said stock of goods, and plaintiff, when it left- said deeds with defendants, believed and relied upon their said representations that it was to get the kind and character of goods mentioned above. That on October 23, 1909, relying on defendant’s representations that they had traded for said stock of general dry goods, subject to plaintiff’s inspection of same and the checkingi of the inventory thereof, plaintiff employed an expert and experienced dry goods man to go from Texas to Kansas City and inspect said dry goods and check the inventory thereof, and he arrived there on October 25, 1909. That on October 23, 1909, plaintiff turned over its said deeds to defendants, and that on that same day defendants took the fast train out of Dallas for Kansas City, and as soon as they could reach the office of the Mitchell Dry Goods Company after arriving in Kansas City, and on the very day on- which plaintiff’s said expert had arrived in Kansas City, defendants, knowing that plaintiff had employed and sent said expert dry goods man to examine said stock, and knowing that he had not examined same, nor had an opportunity to do so, and in “utter and willful disregard of plaintiff’s rights, and in violation of their authority and against plaintiff’s directions and instructions, turned over and delivered said deeds to the Mitchell Dry Goods Company, without plaintiff’s knowledge, consent, or authority,” and, without plaintiff’s authority to do so, employed one Earnest Lovan to act for it in accepting said stock of merchandise, he being the party who, throughout said negotiations, had represented and was at that time representing said Mitchell Dry Goods Company as its agent, which fact defendants well knew, and that immediately upon receiving said deeds said Mitchell Dry Goods Company caused said land to be conveyed to, an innocent purchaser for value, without any notice. That the stock of goods which defendants received for plaintiff’s land “was not a stock of general dry goods consisting of boots, shoes, dresses, hats, clothing,” etc., such as was represented to it to be, but that the majority of said stock consisted of cheap and worthless jewelry, notions, etc. That in said stock inventorying $60,000 there was about $30,000 worth, of cheap and worthless jewelry, consisting of neck chains, breast pins, collar buttons, and trinkets of, like kind and character, all of which were practically worthless, and $93.95 worth of ladies’ waists. That in said stock there was millinery goods consisting of hats, braids, belting, etc., amounting to over $6,000, while the shoes in said stock amounted to $371. That in said stock of goods were cheap and worthless buttons inventorying over $2,500, and piece goods inventorying only $165. That there was $6,295.11 of ladies’ neck chains and $53.-17 of hosiery and underwear. That said stock did not contain the boots, shoes, clothing, hats, dresses, etc., as defendants had represented to plaintiff it did contain, but same was made up of neck chains stick pins, broaches, breast pins, braids, and trinkets of like kind and character, all of which, at the time plaintiff traded for same, or attempted to trade for same, were practically worthless, and “that plaintiff never did at any time authorize its land to be traded for any such stock of goods, has never agreed to accept the same for its said lands, nor did it authorize or ratify defendants attempted acceptance for it.” That “the defendants knew, or by the exercise of ordinary care and diligence could have known, that plaintiff did not trade for any such stock of goods as was tendered to it, but, notwithstanding this fact, defendant negligently, carelessly, and fraudulently delivered plaintiff’s deeds to the said Mitchell Dry Goods Company, without seeing or attempting to see that plaintiff received the goods for which said defendant agreed to exchange said land,” and that the defendants, “by reason of their fraudulent acts and conduct, intended to and did cheat and defraud plaintiff out of its land without paying value therefor, and, in furtherance of such attempt to so defraud plaintiff, said defendants delivered plaintiff’s deeds to said Mitchell Dry Goods Company, without plaintiff’s knowledge, consent, or authority,” and that “by reason of said fraudulent acts on the part of defendants in turning over and delivering its deeds, as aforesaid, without its authority, and by reason of their negligence and carelessness in not seeing that plaintiff received the stock of goods it was to receive in exchange for said lands, they have deprived plaintiff of its land, without having compensated it therefor, which land plaintiff alleged to be worth $27,811, for which amount it asks judgment, and that plaintiff has demanded of defendants and of the said Mitchell Dry Goods Company a return of the deeds to its said land, which demand has been and is still refused.”

Said petition further alleges that by reason of said willful violation by defendants of their duty in so delivering plaintiff’s deeds, so depriving it of its said lands, it has been compelled to incur and has incurred considerable expense in an effort to regain its said lands, or value therefor, in the way of traveling expenses, attorneys’ fees, telegrams, and telephone calls, etc., to the amount of $2,500, and has been compelled to employ attorneys at an expense of $1,500 and pay their expenses in attending to said litigation in the sum of $500, and has paid out in other expenses, telegrams, telephone calls, hotel bills, etc., the sum of $500, aggregating the sum of $2,500, and which items of expense were brought about and made necessary by defendants’ utter disregard of plaintiff’s rights and willful violation of their authority; that, but for defendants’ acts in the premises, plaintiff would not have had to expend said amounts, and same became necessary by reason of and as a direct result of said acts of defendants.

Said petition prays for judgment against said defendants,, jointly and severally, for the value of said lands in the sum of $27,911, and for its damages in the way of expenses in the sum of $2,500, aggregating $30,411, together with interest thereon from October 25, 1909, and for all costs of suit, and for general and special relief. It does not allege fraud upon the part of the Mitchell Dry Goods Company.

Defendants’ answer included a, general demurrer and also what they denominated their “Sixth Special Exception,” but which is, in effect, a general demurrer, as follows:

“Further answering, the said defendants, by their attorneys, come and say that the said plaintiff’s first amended original petition is insufficient in law because it appears from the allegations therein contained that the deeds to the land which the plaintiff caused to be prepared, executed, and acknowledged, conveying said land by warranty deed to one B. W. Pope, were delivered to these defendants for safe-keeping, to be delivered to the grantee when and not until the plaintiff had inspected and examined said stock of goods and checked the inventory therefor; that afterwards these defendants, without the consent, knowledge, or authority of said plaintiff, and in violation of plaintiff’s authority, and against their express directions and instructions, and with fraudulent intent, and in pursuance of a conspiracy, entered into by and between these defendants and the Mitchell Dry Goods Company to rob, cheat, and defraud the plaintiff out of its lands, delivered said plaintiff’s deeds to the said Mitchell Dry Goods Company.” '

The district court sustained said demurrers, and from that judgment defendants appealed to the Court of Civil Appeals for the Fifth Supreme Judicial District, which affirmed said judgment. 165 S. W. 542. The case is before us upon the application of the association for a writ of error.

We are of the opinion that said petition states a cause of action, and that each of said demurrers should have been overruled. Their effect is to admit the truth of the allegations of said petition.

Plaintiff’s petition alleges, among other things, in substance, that defendants were plaintiff’s agents; that defendants delivered said deeds to the dry goods company, in exchange for inferior goods, of less than stipulated value, and without plaintiff’s knowledge. consent, or authority, and in direct violation of its instructions, and in pursuance of a systematic design and scheme of defendants to rob, cheat, and defraud plaintiff and deprive it of the value of its said lands, and practically confirms said trade while seeking to hold defendants personally liable for damages alleged to have resulted from such unauthorized and fraudulent surrender of its said deeds.

Under these allegations, by which, alone, the merits of said demurrers can be- determined, defendants are estopped to deny that titles to said lands passed upon their surrender or delivery of said deeds to the dry goods company, and therefore are liable to plaintiff for proximate resulting damages.

Consequently issues as to whether the minds of the contracting parties met upon the terms and conditions of the trade, whether the trade was consummated, whether said deeds to the dry goods company, while in the hands of defendants, were in escrow, whether those deeds were “delivered” in contemplation of law and in such manner and under such circumstances as to make them effective to pass titles to the dry goods company, and whether title to said lands passed by subsequent deed of the dry goods company to said innocent purchaser for value, are alike irrelevant and immaterial in this cause.

However, we deem it proper to say that we do not concur in the conclusion of the Court of Civil Appeals to the effect that said deeds to the Mitchell Dry Goods Company were in escrow while in the hands of defendants as plaintiff’s agents.'

Because of the errors indicated, said application for a writ of error is granted.

No. 5 of our “Rules for the Supreme Court” (142 S. W. viii), which is based on R. S. 1911, arts. 1542a, 1542b, and 1542c (Gen. Laws 1911, 1st. Sp. Sess. c, 20, p. 108 [Vernon's Sayles’ Ann. Civ. St. 1914, arts. 1542a-1542c]), provides:

“The defendant in error shall have ten days from the date of the filing of the application in the Supreme Court to file an answer thereto, which must be confined to a reply to the grounds of error presented by the plaintiff in error and to such matter as may be pertinent to show to the court that the plaintiff in error is not entitled to the writ, and in support of the correctness of the judgment of the court below. If the defendant in error shall file such answer, and the Supreme Court shall conclude that the writ of error should be granted, it may in its discretion proceed to finally dispose of the case: Provided, the defendant in error may in his answer expressly reserve the right to be heard in open court, in which event the case will stand for submission in regular course. If such right be not expressly reserved by the defendant in error in his answer, and the court shall deem it proper to finally dispose of the ease upon hearing the application, it shall write such opinion as it may think proper and shall in open court pronounce the judgment of the case and enter the same of record as in other cases.”

Availing themselves of a privilege thus conferred, defendants in error have filed an

answer to the application for a writ of error, without expressly reserving therein the right to be further heard in open court, so we proceed at once to a disposition of this appeal.

Said judgments of the Court of Civil Appeals and of the district court are reversed, and this cause is remanded to said trial court.

PHILLIPS, J., being disqualified, did not participate in the decision.  