On Motion for Rehearing. Paragraph 5 of our conclusions of law is complained of, on the ground that the representation made did not relate to the property advertised, but was a general representation with respect to La Salle county. This contention is correct, and the paragraph is withdrawn. Many extravagant representations were made regarding land generally in La Salle county and in regard to this particular land, but of those relating to this particular land the only one to which our attention has been called as proven to be untrue is one to the effect that the soil of all of this land was rich. It was also represented that it was as fertile as the valley of the Nile, but there is no evidence with regard to such matter, as even the witness Howard admitted he had not been to the valley of the Nile, but made the statement because from his reading he thought this land compared favorably with the far-famed valley of the Nile.
It is earnestly contended that we erred in concluding that McCampbell and Hill are liable for the entire indebtedness recoverable on the contracts sued upon. It is not disputed that McCampbell and Hill became purchasers of a two-thirds interest in the Kinney County Land Company; in fact, it appears from appellant Hill's testimony, as shown by the last few lines of the statement of facts, they had bought out Rakestraw's interest also in the Kinney County Land Company, in addition to the King and Howard interests. They bought knowing the obligations due by the Kinney County Land Company, or at least with such notice thereof that they are chargeable with knowledge, and we see no reason for changing our conclusion with regard to this matter. *Page 597
It is also contended that the evidence does not show that they assumed any obligations, except with respect to the contracts transferred to them; that is, those not paid out at the time. The bill of sale provides that they assume the fulfillment of all obligations and contracts transferred to them by Howard, and the sale carried with it the interests in the land which were designed to be awarded to these contract holders whenever an auction should take place. It would hardly be assumed that the interests in the land would be transferred without their assuming the liability towards the contract holders growing out of the contracts for such interests. It is undisputed that they assumed the obligation of holding the auction for all contract holders, and it would be singular if, being obligated to hold such auction as stipulated and agreed by the Kinney County Land Company, yet they should be responsible for the penalty for not holding it only as to those from whom they collected money, and not those who had paid up at the time said McCampbell and Hill became the owners of the interests in the land. Howard testified: "At the time of this transfer it embraced our rights under the contract to sell all the land. I conveyed all my rights in the Kinney County Land Company, and they assumed all my contracts." No objection appears to have been made to this testimony, and we think it can only be construed as a statement that McCampbell and Hill assumed Howard's portion of all contracts made with respect to the rights or interests in lands conveyed to them. In other words, they took his place in the firm. In this connection it appears that this issue was made by Howard and King in their cross-action against McCampbell and Hill, in reply to which the latter filed a general denial. While McCampbell and Hill testified in the case, neither of them mentioned this issue. We are of the opinion that the evidence was sufficient to make out a case against them on the cross-action.
The statement made by us that Howard had been buying and selling contracts for his private profit, instead of employing his energies to complete the sale of contracts, is charged to be in conflict with our finding that all contracts were sold. This is only an apparent conflict, because in fact all contracts were sold at one time, and the auction was agreed to be held at a certain time, but it was not held, and contracts began to lapse faster than they could resell, so that at the date of the trial 139 were unsold, and in the meantime Howard was trading in the same.
While McCampbell and Hill may have paid a high price for the Kinney County Land Company's holdings, and assumed an obligation of something like $16,000 for failure to comply with the contracts made, yet it occurs to us that the most casual reading of the literature promulgated by the Kinney County Land Company would have convinced a person of ordinary prudence that the purchasers would be likely to demand their money back. We can see no injustice in awarding the long-suffering buyers their money and letting McCampbell and Hill, who own and compose the Kinney County Land Company, retain the land contracted to such purchasers. Certainly, if half that was said about the land be true, they will suffer no great loss. It may be unjust, as between them and Howard, that they should suffer the loss; but the evidence, in our opinion, requires the finding that they assumed the obligations that went with the land as to all contract holders.
The motion is overruled.