Opinion
No. 1617.
April 24, 1916. Rehearing Denied May 4, 191.
Appeal from Hunt County Court; H. O. Norwood, Judge.
Action by J. Sid Arnold against the National Equitable Society of Belton. Judgment for the plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.
D. R. Pendleton, of Belton, and Neyland Neyland, of Greenville, for appellant. A. J. Gates and Clark Leddy, all of Greenville, for appellee.
The appellee sued the appellant to set aside and annul a written application made by him to purchase a $2,000 contract or certificate issued by the appellant, on the ground that the agent who procured the application made false and fraudulent representations to induce the appellee to execute the same. The appellee alleged that he was desirous of securing an immediate loan upon real estate owned by him in the city of Greenville; that the appellant's agent represented to him that, if he would purchase a contract or certificate issued by the appellant, and pay $220 in cash, the appellant company would issue to him a certificate by the terms of which it would agree to make him a loan of $2,000 at 5 per cent. interest upon acceptable security. He further alleged that he was not familiar with the terms and conditions of the written contract to be issued by the appellant, nor with the rules and regulations controlling the same; that, relying upon representations of the agent, he signed an application to purchase one of these contracts, and that within a few days thereafter the contract was sent to him by the agent, and he was notified to indicate his acceptance thereof by signing and returning a duplicate to the company; that the contract sent him did not provide for an immediate loan, but merely provided that a loan would be made when the accumulations in the company's reserve fund were sufficient; that he refused to execute the written contract, and so notified the appellant, demanding that the loan be made in accordance with the representations of its agent. It is further alleged that the appellant requested him to make application for the loan, sent blanks for that purpose, and this led him to believe that the loan would he made as represented by the agent, and that he continued to negotiate with the appellant for some time thereafter in an effort to secure tile loan, but that it finally failed and refused to make the loan; that thereupon the appellee demanded the return of his money, which was refused. This suit followed as the result.
Appellant in its answer denied that its agent procured the execution of the application to purchase the contract by any false or fraudulent representations. It alleged that, if the agent did make such representations, he was not authorized to do so, his authority extending only to selling the contracts and taking applications therefor; that the application signed by the appellee contained notice of the limitation thus placed upon the agent's power to bind the company by any representations whatever other than those contained in the instrument itself. There were some supplemental pleadings, which are unnecessary to mention.
The case was trial by the court without a jury, and a judgment rendered in favor of the appellee for $220, the full amount sued for. The contention on this appeal is that the evidence did not warrant that judgment. This is one of four appeals prosecuted by the appellant in this court involving practically the same issues. See National Equitable Society of Belton v. Carpenter, 184 S.W. 585; National Equitable Soc. of Belton v. Camp, 184 S.W. 589; National Equitable Soc. of Belton v. Dunnington. 184 S.W. 590 — none of which have yet been officially published.
From the case made by the pleadings of the appellee the inference to be drawn is that he had by false and fraudulent representations been induced to apply for a contract which he had not then seen; that he had been assured that by the terms of this contract he could secure an immediate loan of the sum desired; that when the contract was presented in response to his application he repudiated and refused to accept it. The facts do not sustain those allegations. According to the testimony of the appellee himself, his application was made on March 4, 1913, and in a few days thereafter he received the document applied for, which is called a "contract" or "certificate." Instead of returning that instrument, he retained it and insisted upon the promised loan. It was more than a year after he discovered the true character of the contract before he repudiated it and demanded a return of his money. The case, we think, falls within the rule heretofore announced in the cases above referred to.
The judgment, for the reasons stated in National Equitable Society of Belton v. Dunnington, supra, will be reversed, and judgment will be here rendered for the appellant.