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Carr v. McGinley Corp. 105 S.W.2d 410 (Tex. Civ. App. 1937)

"Dear Mr. McGinley: Got your letter; nothing to stew about; we just lost, and that's all there is to it. I agree
with my brother's letter of April 28th. Let's close this out and turn to something else. 1 suggest that you prepare
and submit detailed statement; have Mr. Gier make up his statement of account and forward this to me with
yours. You might have them made in duplicate for us, so that one can go to Trem and one to me, and together
we will work out the cash to pay the bills, although it may not be at once, as Trem has had nearly $2000.00 of
extraordinary expense recently. Also outline what salvage if any, we will be able to get out of the deal.
"I am planning to move to California this fall, possibly San Diego, and will hope to see you there later. Kind
regards and best wishes,

"Your friend, Carr."

The person referred to in the letter as "Trem" is a brother of appellant who aided him in financing his part of the
original purchase price of the leases. So concerning the account sued for, the interested witness McGinley is not
only corroborated by the drilling contractor Gier, but his testimony is in nowise contradicted by appellant, and
we are of the opinion that McGinley's testimony with this corroboration is sufficient to form the basis of an
instructed verdict in favor of appellee.
Appellant's second proposition is: "Appellant, A. P. Carr, was entitled to have his cross action submitted to the
jury as there was evidence to support his allegation that although he exercised all possible diligence in
attempting to discover the fraud perpetrated upon him, he was unable to do so until shortly before the cross
action was filed."

Appellant in his second amended original answer, which was the last pleading filed by him on July 2, 1935,
reiterates that he paid the sum of $4,500 to the McGinley Corporation upon the representations of Wm. J.
McGinley, president, and H. J. Hartwell, agent, for said corporation, that that amount constituted one-half the
purchase price for said leases. And it was agreed at the time that the McGinley Corporation should add to the
amount paid by appellant a like sum of $4,500, making up the total consideration for said leases. But in truth
and in fact the total consideration paid by the McGinley Corporation for said leases was the amount of $4,500.
413 Concerning the diligence *413 used by appellant to discover the fraud perpetrated upon him, he alleges as
follows

"Cross plaintiff alleges that he repeated requested of the McGinley Corporation William J. McGinley and H. J.
Heartwell information from them as to the true case consideration paid for said leases, but that they have at all
times failed and refused, and have failed an refused to the date of the filing of their petition to so furnish this
cross plaintiff with said information.

"Cross plaintiff alleges that not until certain depositions in this case were returned from Laredo, Texas, did he
know what the actual consideration was for said leases that had he known what the true consideration was that
was paid for said leases, he would have demanded from the McGinley Corporation that it repay to this cross
plaintiff his proportionate one-half of the purchase price of said leases, which money was had and received by
the cross defendant herein from the cross plaintiff herein."

In our opinion, this amended answer falls far short of the requirements of law in alleging fraud and the
diligence used by appellant to discover same. The only diligence shown is the conclusion of the pleader that he
made repeated requests of the McGinley Corporation, William J. McGinley, and H. J. Heartwell, for
information as to the true cash consideration paid for said leases, and that they failed and refused to give him
this information. The pleading does not state when he made the requests or how same were made, or of what
the requests consisted. Moreover, these requests, if held sufficient otherwise, would not show diligence on the

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