Appellant by its assignments makes the point that the appellee may not predicate, as a matter of law, any right to rescind the transaction and recover the amount paid by him on the purchase price of the lots upon the facts found by the court. Looking to the precise facts found by the court, the selling agent of the appellant town-site company exhibited to appellee, with the view of inducing him to purchase lots in the town site, a blueprint or plat of the newly laid out town of Ore City, which blueprint or plat exhibited and showed the survey subdivided into streets and blocks and lots with their numbers, and the railway route and a point on the railway right of way designated and marked, as given by the court, with the words, "Where the depot would be built," or "The depot would be built at such place." And appellee, as further found by the court, purchased of appellant, through the agent, lots 25 and 26 in block 5, relying upon the representation on the blueprint map that the said two lots were located across the street from and facing the point marked "Where the depot would be built," or "The depot would be built at such place." Within two or three months after the sale of the lots the railway company erected its depot at a point opposite block 6 and above the point marked on the map. It is not shown that appellant had authority to locate or change the proposed location of the depot.
The case must stand, it seems, as ground for fraud and deceit or misrepresentation, upon the determination of the nature and effect of the marking on the map the words, as given by the court, "Where the depot would be built," or "The depot would be built at such place." The words were marked, it is observed, upon the survey route or right of way of the railway company, and not upon the town property of appellant as separated from the railway right of way. The words quoted, as they appeared on the map, do not necessarily convey to the mind of the purchaser of the lots the idea of any statement or representation that the depot building was actually or then being erected upon the right of way at the point marked on the map. And in the light of the facts, outside of what appears on the face of the blueprint map, it must be regarded that appellee knew that no such meaning was intended to be attached or understood by the words; for the records admit that appellee *Page 228 understood that at the time of the sale of the lots the proposed railway had not entered and was only being constructed in the direction of Ore City. And, as it does not appear from the words on the map, nor from the circumstances outside the face of the map, that the town-site company had authority to locate the depot for the railway company, the appellee would be presumed to have known that the power and authority to locate the depot on its survey route or right of way rested with the railway company. So then the scope of the representation according to the map, in the clear light of the record, may be regarded as relating to a future action of the railway company, afterwards to be performed by such railway company, respecting the proposed location of its depot on its survey route or right of way situated within the newly laid out town site of Ore City. Appellee having knowledge of the scope, as construed, of the representations according to the map, he may only be regarded as believing or relying upon the fact as true that the town-site company had information from the railway company as to the place where it would locate its depot when the railroad entered Ore City. The precise representations Thus made were not, in the evidence, false. It appears without dispute that before the platting of the town site by the appellant the authorized railway engineer went upon the ground and located the place where the railway company proposed to build the depot, and "drew all of the railway points," and that it was in virtue of this act and upon this information that the town-site company marked on the plat the very point that the railway engineer, acting for the railway company, located on the ground. And there is no evidence to show collusion or wrong between appellant and the engineer, nor that the railway company did not intend at the time to actually erect its depot at the point so designated. In order that representations may warrant relief, they must be false, and false at the time of the transaction. 2 Pom. Eq., § 876; 12 R.C.L. §§ 10, 82; 20 Cyc. p. 12; Jackson v. Stockbridge, 29 Tex. 394, 94 Am.Dec. 290; Farrar v. Churchill,135 U.S. 609, 10 S. Ct. 771, 34 L. Ed. 246; Lovelace v. Suter,93 Mo. App. 429, 67 S.W. 737. And if the original transaction between appellant and appellee was made without design and in good faith at the time of the making, as appears from the evidence, it cannot be rendered fraudulent and rescindable by subsequent events, such as in the instant case, of change by the railway company of the proposed site for location of its depot. Railway Co. v. Titterington, 84 Tex. 218, 19 S.W. 472, 31 Am. St. Rep. 39; Electrical Works v. Railway Co., 29 S.W. 412.
The Titterington Case, supra, held, it is true, that the railway company may be held for damages, but it was upon the ground, not of tort, but for breach of a contractual obligation in the nature of a covenant. And the instant case is distinguishable from the case of Henderson v. Railway Co., 17 Tex. 560, 67 Am.Dec. 675. There the events represented or assured would be done in the future, were in the nature of a positive representation by the agent of the railway company as to what the railway company would do, and were such undertakings which the railway company could fulfill. In the instant case the effect of the representation was a mere expression of opinion as to what the railway company intended to do in the future, and was not an act or event which depended entirely, as in the Henderson Case, supra, upon the acts of the party making the representation.
Appellee relies upon the case, among others similar, of Buchanan v. Burnett, 102 Tex. 492, 119 S.W. 1141, 132 Am. St. Rep. 900, as applicable and illustrative of appellee's right to rescind. In this case and the similar ones the representation of the vendor that he had a good title and could make a good title was false in fact and untrue at the time of the representation. The difference between a statement that something exists at the time which does not and a statement or representation that some other party may or would do something in the future, like the instant representation, is obvious. Therefore the instant case is readily distinguishable from the cases relied on by appellee.
Since the facts do not establish fraudulent misrepresentations, there is not afforded, it is believed, grounds for rescission, or to form the basis of an action for damages, as alternately pleaded by appellee. Appellee predicates his cross-action, it is remarked, on tort, and not in contract. A suit for damages as for nonperformance of a covenant or promise may not be maintained on the precise representation or statement relied on and proven, for that it is not, and does not have the legal effect of, a contractual obligation in the nature of a covenant to erect or maintain a depot either on the property of appellant or in the immediate front of appellee's lots.
The judgment therefore should be reversed, and judgment here rendered in appellant's favor for the amount sued for and for foreclosure of the vendor's lien, with costs of the court below and of this court to be taxed against appellee; and it is accordingly so ordered. *Page 229