[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 168 By the terms of the written contract the plaintiff was not to be bound, unless the exchange was approved by the plaintiff's agent, after inspection of the Texas lands described in the contract. It provided, that if Tevis did not approve, the plaintiff's agreement to convey his premises should become null and void. There were no lands owned by the defendants, answering the description in the contract. It must be assumed that the defendants entered into the contract under a mistake as to the location and description of the Texas lands. The plaintiff on the trial disclaimed any fraud on the part of the defendants, or that he was entitled to any relief on the ground of deceit. It is inferable from the evidence that the defendants had a paper title, at least, to lands in Texas, but they were not located as described in the contract, or in the same county with the lands therein mentioned. *Page 170 The plaintiff's right to recover the expenses incurred by him must rest upon one of two grounds, fraud, or warranty. Fraud is not claimed. There is no warranty in terms that the defendants owned the lands described in the contract, and none, we think, can be implied. The plaintiff's agreement was conditional and not absolute. Doubtless both parties acted upon the belief and supposition that the defendants owned land in Texas, as described. In this they were mistaken. The plaintiff has been subjected to trouble and expense. But this alone gives no ground of action. The subject to which the contract related had no existence, but it must be assumed upon the case as presented, that the defendants were innocently mistaken in respect to it. If the defendants had owned the land described in the complaint, Tevis might not have approved of the exchange, in which case the same expenses might have been incurred by the plaintiff, and the same loss sustained of which he now complains. There was no wrong intended, and no legal wrong suffered by the plaintiff.
We think the order should be affirmed and judgment absolute ordered for the defendants on the stipulation, with costs.
All concur.
Order affirmed and judgment accordingly.