Opinion
No. 3334.
February 20, 1936. Rehearing Denied March 19, 1936.
Appeal from District Court, Hidalgo County; Bryce Ferguson, Judge.
Suit by John Osterritter and wife against E. F. Board, G. S. Hollister, G. C. Riha, Dan Forbes, and another, wherein the named defendants each filed a cross-action. From the judgment, plaintiffs appeal.
Judgment reversed, and cause remanded.
This is a suit by John Osterritter and wife against E. F. Board, G. S. Hollister, Geo. C. Riha, Dan Forbes, and Hidalgo County Bank Trust Company. The plaintiffs sought to recover of the individual defendants damages alleged to have been sustained by reason of fraud in the sale of two adjoining tracts of land, one containing 11.36 acres, referred to as the first tract, and the other containing 10 acres, referred to as the second tract.
The case was tried without a jury. Findings and conclusions were not filed by the court. The record contains no statement of facts.
From the pleadings of the various parties, recitals in the judgment, and the inferences which necessarily follow from the judgment rendered, the case may be stated as follows:
The lands were conveyed by Board and Hollister to the Osterritters, Riha, and Forbes; Riha and Forbes represented Board and Hollister in negotiating the sale. Fraud was practiced by said defendants upon the Osterritters to accomplish the sale. Riha and Forbes shared in the proceeds of the sale. Riha and Forbes later conveyed their interest in the land to Osterritter and wife, who gave purchase-money notes therefor. In this connection see Riha v. Osterritter (Tex.Civ.App.) 61 S.W.2d 858. A part of the purchase price to Board and Hollister was represented by vendor's lien notes executed by the purchasers. The bank was not a party to the fraud. Its connection with the litigation arose out of the fact that it held some of the vendor's lien notes as collateral to secure a note of Board. The bank need not be further noticed.
Board filed a cross-action against the Osterritters, Riha, and Forbes upon five vendor's lien notes in the sum of $1,000 each, secured by lien on the first tract. Hollister filed a like cross-action upon vendor's lien notes in the sum of $1,000 each secured by lien on the second tract.
Riha and Forbes each filed cross-actions upon the vendors lien notes held by them.
The court held the case under advisement, and later "indicated" that its judgment would be as it was finally rendered. Further argument was then heard, and at a later date the court again "indicated" its judgment would be as it was later rendered. Thereupon the Osterritters moved to dismiss as to Board, which motion was overruled. Further argument was heard, and at a later date the court again was of the opinion that its judgment should be as had been previously "indicated," and judgment was rendered as follows:
In favor of the Osterritters against Board and Hollister "jointly and severally, the sum of $6,949.32, of which amount $5,593.00 is balance of damages as of February 12th, 1931, and $1356.32 is interest at 6% from February 12th, 1931, to this day, as damages for the fraud or tort complained of by said plaintiffs against said defendants; and that one-half of the amount so recovered be offset against the judgment herein rendered in favor of E. F. Board, and the other half of said amount so recovered be offset against the judgment herein rendered in favor of G. S. Hollister, defendants Board and Hollister, at the time the Court first announced its judgment, having requested that such damages be equally offset against their respective judgments against the Osterritters."
In favor of Board against the Osterritters, Riha, and Forbes "jointly and severally, the sum of $6,294.02 principal and interest and $310.61 attorney's fees, less the offset of $3,474.66 decreed above in favor of the Osterritters, leaving a balance due and owing at this time on the debt and notes declared on by E. F. Board by said cross-defendants after the offset of $3,474.66 above adjudged in favor of plaintiffs John Osterritter and Doris Osterritter of $3,129.96 on those certain five promissory vendors lien purchase money notes executed by said cross-defendants, dated Feb. 7th, 1931, * * *" with foreclosure of lien against tract 1.
In favor of Hollister the same as in favor of Board, except the foreclosure was against tract 2.
In favor of Riha against the Osterritters for $3,100.80, with foreclosure of vendors lien against one-half interest in the two tracts.
In favor of Forbes against the Osterritters for $2,982.60, with foreclosure of vendor's lien against a one-half interest in the two tracts.
Recitals in the judgment show tract No. 2, against which foreclosure was ordered in favor of Hollister, is the homestead of the Osterritters, and has been since February 7, 1931.
S. N. McWhorter, of Weslaco, and H. L. Faulk, of Brownsville, for appellants.
M. L. Dew, of Weslaco, Brown Bader, of Edinburg, and John H. Mitchell, of La Feria, for appellees.
Appellants complain of that feature of the judgment which apportions between Board and Hollister the damages recovered against them by appellants so as to allow Board and Hollister each a set-off against the damages awarded appellants.
Appellants also complain of the refusal of the court to allow them to dismiss their suit against Board after the court had "indicated" the judgment which would be and in fact was later rendered.
The judgment awarded plaintiffs judgment against Board and Hollister, jointly and severally, for the damages sustained by the fraud complained of. As between joint tort-feasors, there is no right to invoke principles governing joint liability. Rowan v. Daniels, 20 Tex. Civ. App. 321, 49 S.W. 686. Board and Hollister are by the judgment held to be jointly and severally liable as tort-feasors to the plaintiffs for the damages awarded against them. The plaintiffs had the right to enforce against either of said defendants collection of the full amount of such damages (1 Sutherland on Damages, 823), whereas the apportionment made by the judgment compels the plaintiffs to allow a credit to each of said defendants.
Such apportionment was improper. San Marcos E. L. P. Co. v. Compton, 48 Tex. Civ. App. 586, 107 S.W. 1151; Warren v. Westrup, 44 Minn. 237, 46 N.W. 347, 20 Am.St.Rep. 578.
The record shows the second tract is the homestead of plaintiffs, and has been since February 7, 1931. This is the tract against which Hollister was awarded foreclosure to secure the payment of the amount due upon the notes held by him. The plaintiffs had the right, if they saw fit, to set off against the judgment in favor of Hollister the entire amount of the damages awarded against Board and Hollister. By so doing plaintiffs would have been able to greatly reduce the incumbrance against their homestead, and it was error to render judgment in such manner as to deprive them of that right.
Plaintiffs sought to preserve the right to set off against Hollister the full amount of their damages by moving to dismiss as to Board. This motion was made long before the decision was actually and finally announced by the judge, and under the statute plaintiffs had the absolute right to dismiss as to Board. Article 2182, R.S. Had such motion been granted, the judgment in plaintiffs' favor for damages would necessarily have been against Hollister alone. The motion to dismiss was timely made, for at that time the decision had not been finally announced. The court had merely indicated its opinion as to the judgment which should be rendered, and which in fact was not rendered until a later date. 15 Tex.Jur. Dismissal, 5; Kidd v. McCracken, 105 Tex. 383, 150 S.W. 885; Texas Electric Ry. v. Cox (Tex.Com.App.) 49 S.W.2d 725, 89 A.L.R. 11.
We also sustain the proposition which complains of the judgment offsetting the plaintiffs' damages as of the date of the judgment. The materiality of this feature of the judgment arises out of the difference in the interest rate (6 per cent.) upon the damages sustained by plaintiffs and the interest rate (10 per cent.) upon the notes held by Board and Hollister. Under the facts of this case, plaintiffs' damages should have been set off against the notes as of the date the damages of the plaintiffs were sustained and became payable. Brown v. Montgomery, 19 Tex. Civ. App. 548, 47 S.W. 803; Pickrell v. Imperial Petroleum Co. (Tex.Civ.App.) 231 S.W. 412.
For the errors pointed out, the judgment is reversed, and the cause remanded.