Opinion
No. 7353.
April 29, 1925. Rehearing Denied May 20, 1925.
Appeal from Tarrant County Court; H. O. Gossett, Judge.
Action by Mrs, Mina Hogle and husband against the Oil Exchange Board of Trade, Inc. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
Durwood H. Bradley, of Lubbock, for appellant.
Chas. T. Rowland, of Fort Worth, for appellees.
Mrs. T. L. Hogle, a married woman, entered into an agreement with appellant, a stock brokerage corporation, for the purchase of 25 shares or units of an oil leasing concern. The agreed purchase price was $250, to be paid in installments by Mrs. Hogle. After completing the purchase by paying to appellant the amount agreed upon, but before the stock was actually delivered to her, Mrs. Hogle, joined pro forma by her husband, brought this action against appellant to rescind the contract of purchase and recover the amount paid, as well as $500, as exemplary damages. Appellees' demand was predicated upon the allegation, first, that Mrs. Hogle was induced to enter into the agreement through fraudulent representations made to her by appellant; and second, because she was a married woman without the power to make the contract.
The allegation of fraud was in effect abandoned by appellees, since no evidence was adduced to support it, but the court directed a verdict in appellees' favor for the amount paid, apparently upon the sole ground that, because of her coverture, Mrs. Hogle was without power to make the contract under which she paid appellant the amount in controversy. In response to the directed verdict, the court rendered judgment in appellees' favor.
In the absence of fraud, Mrs. Hogle voluntarily paid the amount in controversy to appellant, with full knowledge of all the facts, and in pursuance of an agreement entered into voluntarily and in good faith by the parties. In such case she was not entitled to recover back the money thus paid, even though the contract was itself voidable and unenforceable as an original proposition.
"A married woman who voluntarily pays her money or other personal property upon a contract made by her, or in any way that would bind a man, cannot recover it back simply upon the ground that she is a married woman." Pitts v. Elsler, 87 Tex. 347, 28 S.W. 518; Investment Co. v. Clark (Tex.Com.App.) 239 S.W. 198.
The judgment is reversed, and the cause remanded.