#### WOOD et al. v. WILLIAMS.

No. 8719.

Court of Civil Appeals of Texas. San Antonio.

Jan. 20, 1932.

Rehearing Denied Eeb. 17, 1932.

Davenport, West & Ransome, of Brownsville, and Griffin & Kimbrough, of McAllen, for appellants.

Strickland, Ewers & Wilkins, of Mission, for appellee.

SMITH, J.

Charles Williams, Jr., appellee, brought this action against appellant Conan T. Wood and others to rescind an executory contract for the purchase from them of a tract of land in Hidalgo county, or, in the alternative for damages, on the ground of fraudulent representations concerning the quality and value of the land. The trial resulted in judgment in favor of Williams for rescission, including reimbursement of purchase money paid by appellee and other funds expended by him *333upon tbe land. . Wood and bis codefendants have appealed. Tbe trial was marked by numerous errors, wbicb were timely objected to by appellants upon tbe trial and properly presented in appellants’ brief in tbis court.. But we have reached tbe conclusion that all tbe errors complained of by appellants are tecbni- ■ cal, ratber than material, and do not warrant reversal.

Tbe jury found for appellee upon each of several distinct issues, any one of wbicb was sufficient to support the judgment rendered. Those findings are not questioned by appellants in tbis appeal, nor is there any contention that the amount awarded appellee in effectuating tbe rescission is excessive.

Appellants’ propositions 1¡ 2, 4, 14, and 15 relate to tbe refusal of tbe trial court to require appellee to elect between tbe remedies of rescission and damages, and to other alleged errors .in overruling appellants’ exceptions to tbe sufficiency of the allegations in tbe count for damages, and in submitting issues relating to that count. It is obvious that some of those rulings were erroneous, but as no judgment was rendered against appellants on the count for damages, and no complaint is made of the findings upon- any issue, it does not appear that appellants were injured by those errors. In such case there is no cause for reversal.

In their fourth proposition appellafits contend that tbe record shows appellee waived bis right to rescission by word and act. We overrule tbis proposition upon tbe ground that the jury resolved tbis issue against appellants, upon sufficient evidence.

At both tbe opening and conclusion of the evidence appellants moved tbe court to require appellee to elect between bis remedies of rescission and dáinages, but tbe motions were denied, and tbe case went to tbe jury upon both counts. Upon tbe jury findings tbe court rendered judgment for rescission, and disregarded tbe count for damages. Appellants urge this course as constituting reversible error. It is a remarkable fact that tbis question does not appear to have been the subject of direct or controlling decision in tbis state. Treating it as a case of first impression, we bold that tbe trial judge did not abuse bis discretion when he declined to require appellee to elect between bis remedies in tbis case. It is true, in a sense, that tbe remedies of rescission and damages are inconsistent, since one rests upon repudiation and the other upon affirmance of the contract between tbe parties. But tbe evidence upon tbe two theories is sometimes so closely related and commingled that it may be difficult if not impossible for the complaining party to determine which remedy is available to him. In such case it would seem that be is entitled to have tbe court or jury determine that very question for him, arid for that purpose to bear all tbe testimony bearing upon tbe alternative remedies, and thereby reach tbe justice of tbe case. Tbis theory was advanced by Chief Justice Conner of tbe Second District, in Roark v. Prideaux (Tex. Civ. App.) 284 S. W. 624, 629, affirmed (Tex. Com. App.) 291 S. W. 868, wherein be said that: “We think, tbe plaintiffs were entitled under their pleadings to have all material facts relating to both remedies submitted to and determined by tbe jury, and upon tbe findings plaintiffs could then elect and press for judgment upon the theory of damages or rescission, as they should conclude was best supported by tbe pleadings.”

That case is not directly decisive of tbe question ¡presented here, for there tbe defendant did not demand, that tbe plaintiff elect, as was done in tbis case. We are of tbe opinion that tbe refusal of tbe court to require appellee to elect did not constitute reversible error, and overrule appellants’ fourth proposition.

Appellee defends tbe action of tbe court, in refusing to require appellee to .elect, upon tbe theory, in effect, that his cause of action for damages was so poorly pleaded by him that it was not entitled to any consideration as a pleading, was subject to tbe general demurrer urged against it and overruled by tbe court, and could be properly ignored as a candidate in an election, of remedies; that, therefore, there was only one cause of action before tbe court, and that for rescission, and no cause for damages existed to vex tbe court with tbe problem of election. This theory does not comport with tbe trial judge’s apparent attitude, for, after overruling tbe demurrer thereto, be gave effect to tbe action for damages by submitting tbe issues thereof to tbe jury, finally ignoring or rejecting it by rendering judgment for rescission. It is not deemed necessary to pass on tbe merits of tbis contention.

Appellants’ remaining propositions complain of tbe court’s charge. Dor instance, complaint is directed at the action of the. court in defining in bis charge tbe term “fraud,” whereas, that word does not otherwise appear in tbe charge. Tbe definition was out of place, of course, but we do not think its use would warrant reversal of tbe judgment. It is conceivable that under some circumstances in some cases it might be prejudicial to one party or tbe other, but it was not objected to upon that ground or upon any ground other than the general one that it was “improper.”

So do appellants complain that tbe court erred in failing to define tbe terms “material fact,” and “fraudulent,” as used in tbe charge. We do not think these omissions were material, or that they probably influenced tbe jury’s findings, of wbicb no complaint is made on this appeal.

*334Eor like reasons we overrule appellants’ complaint of the action of the court in using in the charge “the term ‘fraudulent’ in the place of the term ‘false.’ ” We conclude that the “average juror would not be misled by this substitution of terms, or that he would analyze the terms used with the nice' distinctions which appeal to legal minds.

Appellee alleged and the jury found, without complaint here, that appellants made numerous false representations concerning the qualities of the land, for the purpose of inducing appellee to purchase. Each such representation was made the subject of a separate special issue submitted to the jury, and in each of numerous instances the jury found that the representation was made and that it was false, whereupon this issue was submitted to them: “Did Plaintiff rely upon said representation, if any you have answered was in fact made, and was thereby induced to enter into the contract for the purchase of said land?’’

Appellants’ objection to this'issue is that it combines two issues of fact, to wit: (1) Did appellee rely upon said representation? And (2) was he thereby induced to enter into the contract in question? Obviously, two distinct questions are combined in the one issue submitted. It is well settled that, ordinarily, the combination of two material issues in one requires reversal. But we are of the opinion that the combination here shown is not material to this appeal. It is perfectly obvious from the record here presented that the representations complained of were made to appellee for the purpose of inducing him to make the contract of purchase, and that, believing and relying upon those representations, as the jury found, he was thereby induced to make the purchase. In short, the undisputed testimony raises the conclusive presumption' that appellee was moved to purchase by his reliance upon those representations, and appellants could not have been injured by the combination of the disputed issue with the undisputed one; the question of whether appellee relied upon the representation was the only controverted issue submitted. Ry. v. Blackstone (Tex. Civ. App.) 217 S. W. 208.

In submitting the issue of the alleged falsity of the representation made by appellants to appellee, the court used both the' words “false” and “untrue,” and appellants urge that this use of 'both words was error. We think this criticism is hypercritical and without substantial merit. The same may be said of the complaint that the court used both the terms “false” and “fraudulent,” when either would have been sufficient. Nor is there any substantial merit in appellants’ plea for reversal on - the ground that the court submitted the issue of deceit as to the land involved, “as a whole.”

We have carefully considered all of appellants’ propositions, and conclude they should be overruled. It is true that the case was somewhat loosely tried and presented to the jury. But in view of the fact that the findings of the jury stand unchallenged here,, and in the absence of a contention that either of those findings was not fully supported by the evidence, or the amount awarded ap-pellee is in any respect excessive, we conclude that the judgment should be affirmed, and it is so ordered.