The relation between the appellee and the appellant company was that of principal and agent in effecting the sale of the land. And it is conclusively shown by the evidence that the appellee was directed by his principal, acting through Mr. Clark, to make report in the sale of each tract of land concerning whether or not there was in fact timber on the said tract. The evident object and purpose, it appears, in having appellee to make observation on the ground and report as to whether or not the particular tract proposed to be sold had in fact timber on it was to inform Mr. Clark, who, acting for the company in the sales of land, was not certainly informed as to the real state of facts of whether the particular tract had or did not have timber on it. And it is conclusively established as a fact that the appellee undertook to perform this duty and give this information in the course of his agency. Having undertaken, as appellee did, to perform the instructions of his principal to make report as to whether or not there was timber in fact on the land proposed to be sold, the appellee would be responsible for all loss occasioned by any violation of his duty. And it is undisputed in the evidence that the appellee represented, while effecting a contract of sale of the 55 acres to Doss, that there was no timber in fact on the land, when in fact there was 300,000 or more feet of timber on the said tract. The representation was made in a positive and definite manner. And from the appellee's evidence it appears that he made the representation while on the ground, surveying the lines of the tract of land. It appears, though, from appellee's evidence that he did not go through the land to see if there were timber on it, and that his positive and definite statement of fact was without actual knowledge of the fact as it was on the ground. An action for deceit may be predicated upon false statements recklessly made by one who does not know that they are true in fact. Mitchell v. Zimmerman, 4 Tex. 75, 51 Am.Dec. 717; Henderson v. Railway Co., 17 Tex. 560, 67 Am.Dec. 675; 20 Cyc. p. 27; 12 R.C.L. p. 337, § 94; 2 Pomeroy, Eq. Jur. §§ 887, 888.
It appears conclusively in the case that the appellant had no actual knowledge of the alleged misrepresentation until June, 1915; and it may not properly be said, we conclude, that appellant, in the circumstances of the present record, had constructive knowledge or was not diligent in sooner discovering that the particular tract had timber on it. The agency here was a continuing one until June, 1915; and the very purpose of having appellee make the report of whether the particular tracts to be sold had in fact any timber on them was to inform the appellant's authorized agent, Clark, who had no certain information in respect thereto and was desiring through appellee to prosecute such inquiry of fact. This was ordinary diligence on the part of appellant to ascertain the real state of facts concerning the timber. And the appellee's report of the fact was made in a manner so definite and positive as naturally to induce the appellant not to use any other means of information during the continuing agency. It is therefore believed, in view of the facts of this case, that the statute of limitation may not be held to begin to run until June, 1915. We conclude, on the whole case, that the judgment is, as complained of by appellant, contrary to the evidence, and should be reversed and the cause remanded.
The allegations of the trial amendment are sufficient, as against the demurrer, and the cross-assignment of appellee is overruled.
The judgment is reversed, and the cause remanded.