On Motion for Rehearing.
Appellants in their motion for rehearing have questioned our holding in the original opinion that the expression “the stock was as good as could be found” was not a mere expression of opinion and therefore actionable. In this connection they assert that such holding is in conflict with the holding Of the San Antonio Court in Binder v. Millikin (Tex.Civ.App.) 201 S.W. 239.
In that case it was alleged that it had been falsely represented that there were 22,000 acres of land; that the quality of the land was good for agricultural purposes ; that it would produce two crops a year .worth $250 per acre; that the owner had made money cultivating the land; and that other parties were anxious to purchase the land.
The court held that a further representation that the land was the best land in La Salle county and was a bargain at $300,000 was a mere expression of opinion, and that appellee knew that it was such. This holding was made in connection with the holding that the above representations were' either' true or had not been shown to be false.
*1099It can readily be seen that, where a party has made such definite representations as were made in that case as to the quantity and quality of the land, an additional representation that it was the best land in the county could not be considered otherwise than an expression of opinion. It further appears in that case that the appellee had inspected the property. The facts of the case at bar are so different that we do not feel that our holding is in conflict in any manner with the one in that case.
In our former opinion we held that, in cases where the truth was not equally open to both parties and the party making the statement could have foreseen that the other would rely upon his superior knowledge, or where statements were made with a knowledge of their falsity and with a fraudulent intent to induce the other party to act, even expressions of opinion were actionable.
The evidence in this case is, we think, amply sufficient to bring the statement here made, even conceding it to be merely an expression of opinion, within those rules and a basis for the suit. In support of our position we wish to further cite the case of Hester v. Shuster (Tex.Civ.App.) 234 S.W. 713.
The remaining questions have been sufficiently discussed in the main opinion, and the motion of appellant will be overruled.
Appellee also has moved for a rehearing on the ground that we ignored, in our main opinion, her cross-assignment as to the trial court’s action in failing to render judgment in her favor for exemplary damages.
, Upon oral argument of this case there occurred a discussion between the court and counsel as to the desires of counsel relative to this cross-assignment.
From that discussion the writer formed the opinion that appellee’s counsel desired to waive the cross-assignment. Since the-filing of appellee’s motion for rehearing, however, the writer has discussed the matter with the other members of the court and now recalls that appellee’s counsel merely evinced a desire to abandon his cross-assignment in the event that action thereon would necessitate a remand.
It appears the jury found that the representation was willfully made and allowed exemplary damages in the sum of $1,000.
Appellants filed their motion for a judgment non obstante veredicto, but set forth no averments as to that portion of the verdict allowing exemplary damages.
Article 2211 provides that the court may, upon motion and notice, render judgment non obstante veredicto if a directed verdict would have been proper, or disregard any finding on a special issue that has no support in the evidence.
The judgment of the court recites that the motion non obstante veredicto of appellants was sustained in so far as the punitive damages were concerned. This was not, in our opinion, the effect of the court’s action. It is true that the motion filed by appellants sought to have judgment in their favor notwithstanding the verdict, but the averments of their motion, were that the representation was not actionable and that limitations had run against appellee’s cause of action. If the court had agreed with the reasons advanced by appellants and had granted the motion as prayed for, then the verdict for exemplary damages would have fallen with that for compensatory damages, but, the court having overruled the motion, the finding of the jury, upon the failure of the motion to attack the sufficiency of the evidence to support it, was binding upon the court, and, there being pleading to support it, the court was authorized only to either render judgment in accordance therewith or grant a new trial.
We are therefore confronted with the question of the sufficiency of appellee’s pleading to warrant the submission of the issue.
Article 4004 provides that those willfully making false representations or those knowingly taking advantage of fraud shall be liable for exemplary damages.
Appellee alleged, that defendants “well knew at the time said representations were made that said Texas-Louisiana Power Company stock was. worthless and said company was insolvent, and that the representations made by them were false and that the said Power Company was in failing circumstances and would cease to pay dividends upon its stock,” and that “the said representations that were made to her were all material representations and were made by defendants, * * * to induce plaintiff to sell said stock and buy Texas-Louisiana Power Company stock.”
*1100The word “willful” has been said to mean knowingly, intentionally, deliberately, or designedly. 68 C.J. § 3, pp. 268, 269, 270.
Under that definition the above allegations are sufficient to charge that the representation was willfully made, and it would not be necessary to use the particular word.
The pleading being sufficient and there being no attack in the motion on the sufficiency of the evidence, the court should have rendered judgment in .favor of ap-pellee for the exemplary damages found by the jury.
The judgment in that particular is accordingly reversed, and judgment here rendered that appellee recover such sum.
Appellee’s motion for rehearing is granted as above indicated.
On Second Motion for Rehearing.
Appellants, in this motion and in their oral' argument thereon, strenuously insist that we were in error in the original opinion in holding that this suit was not barred by the two years’ statute of limitations (Vernon’s Ann.Civ.St. art. 5526) as a matter of law.
They base their contention upon the fact that appellee had received notice of the receivership suit; that no dividends had .been paid her; that any knowledge which the receiver had an opportunity to acquire from an inspection of the records of the corporation were imputable to her; and that the pendency of the receivership suit gave notice of any fraud which might have been discovered from an examination of the records in that suit.
In our original opinion we said that the rule that knowledge of the receiver was chargeable to creditors could not be made to apply to stockholders, and we still adhere to that position. It is true that in 37 C.J. § 312, at page 945, the statement is made that “whatever knowledge the receiver of a corporation derived, or had an opportunity to learn from an inspection of the books and accounts of the corporation, is imputable to its creditors.” The only case ‘cited in support of the text is Noyes v. Parsons, 104 Wash. 594, 177 P. 651. An examination of that-case reveals that the question involved was that of limitation, and the court held that the creditors were' bound by the knowledge of the receiver as to when the cause of action accrued. This holding was made upon the theory that he was their representative.
Our courts are not in accord with that doctrine, as is evidenced by the holding in Dockery v. Hanan (Tex.Civ.App.) 54 S.W.(2d) 1017 (writ refused), where it was held that, while a receiver was the legal representative of creditors and obligated to protect their interest, they were not bound by his negligent failure to take steps to vacate orders allowing preference to other creditors.
That receivers are not the representatives of persons whose property may be placed in their control has repeatedly been held in Texas. Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 15 L.R.A. 262; Missouri, K. & T. Ry. Co. v. McFadden, 89 Tex. 138, 33 S.W. 853; Texas & P. Ry. Co. v. Bledsoe, 2 Tex.Civ.App. 88, 20 S.W. 1135.
As we understand the record, there is nothing included which would show that an examination of the record in the receivership suit would have revealed to ap-pellee the fraud practiced upon her in April of the year previous. Therefore the rule relied upon by appellants as to notice from the pendency of the suit can have no application.
This leaves us with the fact of failure to pay dividends and that'a receiver was appointed to consider.
Appellants ask us to hold that reasonable minds could not differ as to what an ordinarily prudent person would have done in the position which appellee found herself in the latter part of 1931 and the first half of 1932.
To properly pass upon this question, all the facts surrounding appellee must be given consideration. It is a matter of common knowledge that during these months the whole economic structure of our country was tottering, that institutions which had been the financial Gibralters of the country for years and years were closing their doors, and that the foundations of securities were crumbling so fast that no one could say that the solvent business of to-day might not be a complete failure tomorrow.
With such conditions surrounding ap-pellee, we cannot and will not say that the failure to receive dividends and notice of the appointment of the receiver were sufficient, -as a matter of law, to have caused her to make inquiry as to the truth of rep-*1101reservations made to her almost nine months previous.
The motion for rehearing is overruled.
On Motion for Findings of Fact and Conclusions of Law.
In response to this motion, we find that the evidence adduced upon the trial was sufficient to support the finding of punitive damages, and we conclude that article 4004, Revised Statutes 1925, is not unconstitutional.