On Motion for Rehearing.
Appellant, in its motion for rehearing, very earnestly insists that it has proven such a constructive fraud by appellees as to entitle it to bring the suit in question in Williamson county, under and by virtue of article 1880, subd. 7, of the Revised Statutes, and asks this court to point out in what particular it had failed) to prove the alleged constructive fraud.
We are of the opinion that we sufficiently pointed out this failure in our opinion; but, owing to the earnest insistence of appellant’s counsel, we will try to do so in another way which may be clearer. We hold in this particular that most of the matters complained of by appellant are matters of which 'he should have convinced the trial judge ón the hearing of this plea, whose duty it was in this case to hear and determine the facts, as we are not authorized to disturb his judgment based upon his finding of facts, unless the record shows that he decided the case against the evidence, which we do not find to be true in, this case.
Appellant presented numerous authorities defining constructive fraud, as well as authorizing a suit to be brought without the county of one’s residence charged with constructive fraud, under and by virtue of the provisions of the above statute; but in none of these cases do we find that a party charging, constructive fraud is excused from proving it. Appellant in this case relies upon that lino of decisions holding that one is guilty of a constructive fraud who, having information at hand upon which to base a claim, cither innocently or by mistake or purposely, represents a claim for a greater amount than the information; at hand would entitle him to. This is a correct rule of law, and, had appellant proved that the information upon which appellees based their claim was different from the information they had in hand at the time the drafts were drawn, a constructive fraud would have been proved, even though it was a mistake, or was innocently done on the part of appellee; but appellant failed to do this.
The trial court found that the public weigher’s sworn weights should have been furnished by appellees, and that they were not furnished. The waybills attached to the drafts, in some instances, were for more and in some instances less than the drafts attached, showing appellees were basing their claims upon something different from the waybills. These appellant had a legal right to examine, notwithstanding its contention to the contrary. Appellant also had the right to refuse payment of the drafts until the public weigher’s certificates were forthcoming, notwithstanding its counsel’s contention to the contrary. It is nowhere shown that the waybills attached were issued and based upon the public weigher’s sworn weights. Wo have not the sworn weights in this case, due to the failure of appellant to have them brought into the trial, in order that we might determine whether or not these weights were correctly figured in the drafts drawn by appellees, which would have been an easy matter for appellant to have done by taking the deposition of the public weigher, who is charged by law with the duty of keeping records of this character, and thereby giving the court substantial proof that appellees drew the drafts, if it was so shown, for amounts more than the public weigher’s weights entitled them to, thereby perpetrating a constructive fraud upon appellant, even though appellees had made a mistake, or were innocent in their action in the matter, without appellant having to prove that they had knowledge thereof, or without proof that the same was known to be false by appellees.
Appellant failed to prove tha,t .the information at hand of appellees was different from that upon which they based their drafts, and as the record stands before us, as stated in our opinion herein, the drafts may be for the exact amount that the weigh-er’s certificates showed appellees entitled to, and the failure to attach the drafts to the public weigher’s sworn certificate is not fraud, and the trial judge did not so hold it to be; but it was a breach of contract which appellant could have taken advantage of at the time and refused to pay the drafts until it was furnished with such sworn weights, or with information why the drafts were drawn for more than the waybills attached showed' appellees were entitled to draw for. The trial judge nowhere in his finding of facts found that the claims were based upon a false representation, but merely found that they were drawn for a larger amount, as shown by the weights of the cotton seed at destination, than - appellees were entitled to under said destination weights, which discrepancy we might assume with as good reason, in this case, oecured by leakage in cars in transit, as we can assume that a fraud had been perpetrated by system, as contended by appellant in his motion for a rehearing. As stated above, it is not shown that the waybills issued by the railway company and attached to the drafts were based upon the public weigher's sworn weights, which would have been a very easy matter for appellant to have shown, by taking the deposition of the agent issuing *389the same, and thereby giving this court, as well as the trial court, substantial proof of its claim that a constructive fraud had been perpetrated upon it.
We are of the opinion that we correctly decided this case in our opinion herein, and the motion for rehearing is overruled.
Motion overruled.