On Motion for Rehearing. Upon a former day of the present term of this court, we reversed and remanded this case for the reason that the evidence was insufficient to sustain the judgment. After carefully re-examining the record in this case, a majority of this court has concluded that we were in error in this regard.
In said opinion, which is here referred to, there is set forth findings of fact by the trial judge. The case was tried before the court without a jury, and, under the well-known rules of law, said findings of fact should be given the same weight in this court as special findings of fact by a jury. In our previous opinion we reviewed a number of these findings, giving our reasons for believing that the same were not sustained by the evidence.
As to the second finding by the court, we said that the testimony was insufficient to show that the Peacock bed brace was a worthless invention. It was so alleged in plaintiff's petition, and, to our minds, conclusively shown in a number of instances, that Wittliff resorted to fraud and misrepresentation for the purpose of selling state *Page 58 and county rights for said bed brace. It was shown that he had been sued in other cases, and recovery had against him. It is true it was shown that in some instances he had put these bed braces on beds in hotels; but no witness was called to testify that these bed braces had any value. In the testimony of a number of witnesses it is assumed, rather than distinctly stated, that these bed braces were worthless. None of these witnesses appear to have been challenged on this assumption, and no testimony to the contrary was offered. From these circumstances we do not feel justified in saying that the court erred in finding that said bed brace was a worthless invention. Appellant seems in effect to concede this in his brief. No proposition was submitted by him to the effect that the court erred in finding said bed brace to be a worthless invention.
As to the eighth finding of fact with reference to the transaction with Kountz, Richard Kountz testified that Wittliff hired him to go with him to assist in the sale of the bed brace; that after certain transactions, either real or simulated, and probably the latter, he convinced young Kountz that the bed brace was a salable article, and through him interested his father; that he sold Richard Kountz and one George Baker, alias Max Holtz, who is shown to be one of his co-conspirators, the territory of Oklahoma and the Indian Territory for $9,000; that young Kountz obtained $4,500 of said amount from his father, said Baker pretending to pay the other half; and that Baker, a few days thereafter in the city of Dallas, pretended to make a sale of this territory for $11,000 to one L. B. Robertson, claiming to be a rich ranchman, living near Oklahoma City, but who in fact was one Sam Robertson, another of Wittliff's co-conspirators living near Walnut Springs, where appellant Rushing resides; that this transaction was so manipulated that Kountz received no part of this $11,000 ($10,000 of which was paid by a check given to Baker, but which, so far as the record shows, was never presented), but reinvested his interest in the same, together with said Baker, in the purchase of the state of Ohio for the sum of $20,000, of which old man Kountz was induced to become responsible for $15,000, the said Baker pretending to pay the other $5,000. Baker and young Kountz went to Ohio to try to sell the bed brace, but Baker deserted Kountz, and Kountz, after trying to sell the bed brace and being unable to do so, returned home.
We think we were in error in stating, as we did, in said opinion, that the ninth finding of fact was unsupported by the evidence. It is true that the evidence is very meager as to the transaction with Pinter; but it does show that Wittliff sold Pinter the right to sell said bed brace in the state of Illinois for certain lands in Burleson county; that he afterwards deeded said land to Rushing, and, subsequent thereto, that suit was brought against Rushing to recover said land; that Rushing, at the request of Wittliff, reconveyed said land to Pinter's brother and a party by the name of Mugge; that prior to this Rushing had transferred one tract of this land, taking vendor's lien notes for the same, and that in the settlement of the suit brought for the recovery of the land he surrendered these notes.
As to the tenth finding of fact, we think the testimony, taken altogether, justifies the finding that the transaction with the Hochs was fraudulent.
In said opinion we made the following statement: "The judge's findings of fact and conclusions of law indicated that he considered most of the findings above referred to and not established by the testimony, in reaching the conclusion that Rushing was liable to the plaintiff" — and reversed the case for the reason that the court had considered facts which we did not deem were established by the evidence. As to some of these specific findings of fact, as above stated, we think we were in error; but for another reason we think the judgment of the court below should not be reversed, and that is that the appellant did not assign error upon the specific findings of facts by the court. If the facts are as found by the court, the proper judgment was rendered. The only thing that can be considered in behalf of appellant is that the testimony is insufficient to sustain the judgment. The testimony abundantly establishes the fact that T. H. Wittliff was engaged in a conspiracy to defraud the public in general, and appellee Spreen in particular, by the means set out in the court's findings of fact, which appear in our previous opinion.
The only question, to our mind, that should be considered, is: Does the testimony sustain the finding of the court that appellant Rushing was connected with this fraud in such a way as to make him responsible in this suit? In support of this the evidence shows that Wittliff lived in Washington county, and Rushing lived in Bosque county; that they were acquaintances and had formerly been engaged together in the sale of another patent right owned by Rushing; that, when Wittliff made the sale in question to Spreen, he obtained from Spreen as a part of the consideration two vendor's lien notes, amounting in the aggregate to $1,705, and 152 acres of land of the value of $5,472, which he fraudulently transferred to his brother, taking in payment therefor a note for $3,000. These notes for $1,705 were transferred to appellant Rushing. The land obtained by Wittliff from Pinter in Burleson county was deeded to said Rushing. Rushing claims that said notes and said deed were taken as security for money which he loaned to Wittliff, but he was unable to state any of the details of his transactions with *Page 59 Wittliff in this regard, and did not produce his books or any memorandum thereof showing when he loaned Wittliff the money, or in what amounts. He says that when he learned of the trouble he delivered these notes to Wittliff's attorney, and that, when suit was brought against him in Burleson county to recover the land, he reconveyed the same at Wittliff's request, and took other security for his loans. He does not indicate what other security he took, nor give any detailed statement with reference to this transaction, such as would be expected from a defendant who had been charged with fraud, if there was no fraud in such transactions.
Wittliff sold to the Hochs the right to sell said bed brace in the state of New York, and received as a part of the consideration a hardware business, situated in Taylor, consisting of a stock of hardware, brick storehouse, warehouses, wagons, etc. The Hochs, alleging that they had been swindled, sought to recover this property. Rushing appeared upon the scene and claimed that he was the owner of the same; that he was an innocent purchaser and had paid his money for the same. He admitted in this trial making said statement, and admitted that said statement was false.
It thus appears that, in three swindling transactions in which Wittliff was engaged, Rushing was claiming a part of the proceeds in such a way that, if his claim was true, he would have been an innocent purchaser and entitled to hold the same; but his claim as to the Taylor property is admitted to be false, and the circumstances as to his claim in the other transactions look "shady," to say the least of it.
We find Wittliff phoning Rushing in the presence of one of his victims as to the financial standing of L. B., alias Sam, Robertson, above referred to, who lived near Walnut Springs, where Rushing resided, and who the evidence indicates was one of Wittliff's co-conspirators. After suit was brought by the Hochs to recover the Taylor property, Rushing abandoned his claim of having purchased said property, and entered into a written agreement with Wittliff to represent him in trying to hold said property. Subsequently, Wittliff was arrested in Waco; Rushing was with him, and the constable testifies that Rushing, after holding a whispered conversation with Wittliff, attempted to make off with Wittliff's handgrip in which was this written agreement, and that, when Rushing was stopped and the handgrip taken from him, Wittliff took the same and attempted to destroy this agreement in the presence of Rushing.
It is true, as stated in our previous opinion, that the deposition of Wittliff was taken, and that he testified that appellant Rushing had no interest in the transactions of said witness with the Hochs, Pinter, or Spreen until after trades were made; but upon cross-examination, in answer to the question; "Please state whether or not Mr. Rushing ever received any profits from any sale made by you of the Peacock bed brace patent, or any other patent," the witness answered, "Yes, to a certain extent." Cross-interrogatory 10, "Please state whether or not C. C. Rushing knew anything of any sales of any patents made by you to any person, or ever helped you conceal the proceeds of the same after said sales were made," to which the witness answered: "Yes, to a certain extent." We stated in said opinion that, inasmuch as the evidence showed that the witness had previously been interested with Rushing in another patent, he could not truthfully have answered said questions otherwise than he did. Upon reflection we believe that we were in error in this. If the witness had understood said questions as applying to the patent formerly sold by himself and Rushing, he might have answered the first question as he did; but, in such case, why should he have answered the second question that Rushing had helped him to conceal the proceeds of the same after said sales were made? There is nothing to indicate that there was ever any trouble over the other patent or any reason for concealing the proceeds of such sale; and we are constrained to believe that the witness answered these questions with reference to the transaction then under investigation. It is significant that, though this deposition was on file, Rushing did not attempt to further interrogate said witness by deposition or otherwise as to what he meant by said answers.
Looking to the whole of the testimony, we do not feel justified in setting aside the conclusion of fact arrived at by the court that Rushing was fraudulently connected with the transaction in which there can be no question that appellee Spreen was swindled by the sale to him of said bed brace.
For the reasons above given, the motion for rehearing is granted, and the judgment of the court below is affirmed.