Full opinion text
R. L. MURRAY, Chief Justice. This is an appeal from a judgment in the district court of Jefferson County in favor of Ruth I. Parr, a feme sole, Grace I. Booth and husband, Edwin Booth, appellees, against M. G. Inman, Sr., and M. G. Inman, Jr., appellants. Ruth I. Parr brought suit against M. G. Inman, Sr., M. G. Inman, Jr., and Grace I. Booth and husband, Edwin Booth, to cancel and set aside as to all parties certain instruments executed by the parties, and in the alternative to recover damages from M. G. Inman, Sr., and M. G. Inman, Jr., for fraud. The instruments related to the sale and transfer to M. G. In-man, Sr., and M. G. Inman, Jr., by Ruth I. Parr and Grace I. Booth, of all their interest in Inman Chevrolet Company of Port Arthur. The appellants, Inman, Sr., and Inman, Jr., answered by special exception, general denial, special denials and brought cross actions against Ruth I. Parr and Grace and Edwin Booth, praying for judgment of specific performance of the sales agreements and contracts sought by Ruth I. Parr to be cancelled, and in the alternative for damages for breach of such agreements on the part of appellees Parr and Booth. Mrs. Booth sought judgment only denying to appellants specific performance or damages, and quieting title in her of her remaining interest in said business. The case was tried to1 a jury and upon the jury’s verdict the trial court rendered judgment against M. G. Inman, Sr., and M. G. Inman, Jr., and in favor of appellee Ruth I. Parr for the sum of $115,000 and in favor of Grace I. Booth and husband, Ed■win Booth, quieting title in Mrs. Booth to her interest in the Inman Chevrolet Company. The appellants filed motions for instructed verdict, for judgment non obstante vere-dicto, and to disregard special issue findings of the jury. They also filed motion for new trial and amended motion for new trial. Such motions for instructed verdict, for judgment non obstante veredicto and to disregard special issue findings and amended motion for new trial were overruled by the trial court and the appellants have duly perfected their appeal to this court for review of the judgment. At the time of his death in December, 1946, Philip Inman was the owner of In-man Chevrolet Company in Port Arthur, Texas. He had been such owner and was the Chevrolet dealer in Port Arthur for over twenty years prior to his death. He died intestate, his survivors and heirs at law being his widow, Irene Inman, and brother, M. G. Inman, Sr., and his sisters, Ruth I. Parr and Grace I. Booth. M. G. Inman, Sr., was the owner and operator of the Chevrolet Agency in Orange, Texas, and he immediately after Philip Inman’s death took control of and continued the operation of the Inman Chevrolet Company in Port Arthur. This was done with the consent of all the other heirs. He was appointed temporary administrator of his brother’s estate and later such appointment was made permanent. On January 5, 1947, the heirs of Philip Inman entered into a written agreement by which certain designated realty and personal property was to be given to the widow, Irene Inman, and the remainder of the property of the estate of Philip Inman, deceased, was apportioned among the brother and the two sisters. On May 3, 1947 the widow, Irene Inman, and brother, M. G. Inman, Sr., and sisters Ruth I. Parr and Grace I. Booth and her husband, Edwin Booth, executed a second agreement by which they divided and agreed to divide among themselves as heirs the property of Philip Inman, deceased. By this second agreement the widow was paid over $126,000 in cash and given U. S. Government bonds of maturity value of $24,000, a $30,000 note secured by a lien upon certain real estate in the city of Port Arthur, various tracts of real property, and most of the personal property in the home of Philip Inman, deceased. All of such property she accepted as a complete distribution and delivery to her of her interest in the separate and community property of her deceased husband. The other parties received as their share of the property of their deceased brother, all the remainder of his property, which included the Inman Chevrolet Company. Such three parties, the brother and the two sisters, by such agreement also obligated themselves to pay all debts of Philip Inman, deceased, including federal and state taxes, inheritance taxes due the State of Texas, income taxes, all ad valorem taxes and all costs of the administration of the estate. Included in the property received by the brother and two sisters was the Inman Chevrolet Company and the real property in the 800 block of Procter Street in Port Arthur where such business was conducted. The agreement itself was made contingent upon the acquisition by M. G. Inman, Sr., of a new selling agreement or franchise from the Chevrolet Division of General Motors Corporation in order that the sale of Chevrolet automobiles by the business might be continued by the brother and two sisters. M. G. Inman, Sr. did secure such a franchise. Inman, Sr. operated the business of In-man Chevrolet Company under appointment as administrator of Philip Inman’s estate until December 31, 1950. Shortly before the death of Philip Inman the buildings and place of business of Inman Chevrolet Company were practically destroyed by fire and the business was carried on from temporary headquarters at a filling station. During the time of M. G. Inman, Sr.’s operation of the business as administrator, the obligations to Irene Inman, the widow, were discharged. This was largely done out of money in possession of Philip Inman at the time of his death. The profits from the operation of Inman Chevrolet Company were also used for this purpose. Such profits also made possible the building of a new plant for the sale and servicing of Chevrolet automobiles at the former place of business of Inman Chevrolet Company, the land being owned jointly by the brother and two sisters. During the time of M. G. Inman, Sr.’s operation of the business as administrator the net profits therefrom were in excess of one million dollars. One-third of this amount was received by each of three owners, M. G. Inman, Sr., Ruth I. Parr and Grace I. Booth. A portion of such profits of each of the three persons was paid to build the new building where the business was operated and such real property is owned by all three such parties. During the years of the operation of such business by M. G. Inman, Sr., as administrator, M. G. Inman at various times discussed with his sisters his intention not to continue the operation of the Inman Chevrolet Company under its existing organization. He was the only one who took an active interest in the business, the two sisters being inexperienced in business affairs and having no knowledge which would be of benefit to the operation of such business. He informed them that he would not continue operating the business for them, as he said, because the Chevrolet Sales Executive in Texas objected to a Chevrolet sales agency partly owned by persons who- were inactive in the business itself. He told them that he did not propose to do all the work of operating the business and receive only one-third of the profits. Correspondence from a Chevrolet Motors head to Mr. Inman was in evidence, showing that that company was interested in having in a sales agency, and particularly in this one, only persons who were active in the administration of the business. The administration of the estate of Philip Inman, deceased, was closed on December 31, 1950, and M. G. Inman’s final account as administrator was approved. Mr. In-man continued to operate the business as managing partner without any written agreement of partnership until December 26, 1951. On this date, December 26, 1951,. Ruth I. Parr, Grace I. Booth and her husband executed various written agreements; to sell to M. G. Inman, Sr. and M. G. In-man, Jr., their interest in and to the business of the Inman Chevrolet Company and also entered into a lease agreement by which M. G. Inman, Sr., Ruth I. Parr and Grace I. Booth, as owners of the real property on which the Chevrolet business was conducted, were to be paid rentals based upon the net income of the company. These instruments are the subject of the attack of the appellees in this lawsuit. The selling agreement or franchise from. Chevrolet Motors Division-General Motors Corporation, dated November 1, 1951, recited that it was between said Chevrolet Motors Division, called seller, and “Inman. Chevrolet Company and/or copartnership' of Port Arthur, Jefferson County, Texas,”' called dealer. This agreement also recited in part, as follows : “Third: This is a personal contract, being entered into in reliance upon and in consideration of the personal qualifications of and representations with respect thereto of M. G. Inman, the dealer, * * * who actively and substantially participates in the ownership and/or operation of the dealership. The individual or individuals designated shall be responsible for any act or omission of any of dealer’s agents or employees which may be contrary to. the purposes and objectives of this, agreement for the obligations of dealer hereunder. Dealer shall not transfer nor assign this agreement or any right or obligation hereunder nor make nor suffer to be made any change in the ownership, financial interests or active management of dealer without the pri- or written approval of seller.” The following instruments were executed by the parties on December 26, 1951: 1. Bill of sale and option, to be effective as of January 1, 1951, executed by Ruth Parr selling an undivided 8½%' interest in Inman Chevrolet Company to M. G. Inman, Jr., and giving him an option to purchase from her at any time after December 31, 1951, an additional 1⅜% interest. 2. A similar bill of sale and option executed by Grace Booth and husband, Edwin Booth, to M. G. Inman, Jr. 3. Bill of sale and option to be effective January 1, 1951, executed by Ruth Parr and giving to M. G. Inman, Sr. the option to purchase from her at any time after December 31, 1951, a 3½%' interest in Inman Chevrolet Company, and giving him the additional option to purchase from her at any time after December 31, 1952, an undivided 20% interest in said business. 4. A like option executed by Grace Booth and husband to M. G. Inman, Sr. 5. A partnership agreement dated January 1, 1951, between M. G. Inman, Sr., M. G. Inman, Jr., Ruth Parr and Grace Booth by virtue of which the assets of said business are owned by the parties in the proportion of 331/$%' to M. G. Inman, Sr.; 16⅜% to M. G. Inman, Jr.; 25% to Ruth Parr and 25%' to Grace Booth, said partnership to end on December 31, 1957, and specifically referring to the option agreements whereby Ruth Parr and Grace Booth would eventually part with all interest in Inman Chevrolet Company. 6. A lease agreement dated December 26, 1951, but to be effective as of January 1, 1952, whereby Inman, Sr., Ruth Parr and Grace Booth, as lessors, leased to the partnership of Inman Chevrolet Company the buildings and land occupied by Inman Chevrolet Company. The preliminaries leading to the execution of the above instruments are the subject of voluminous testimony in the record. We summarize portions thereof, and quote portions thereof, as follows: Beginning in March of 1951, shortly after termination of the administration of the estate of Philip Inman, deceased, and after the approval of his final account as administrator, M. G. Inman, Sr. maintained his negotiations with Mrs. Parr and Mrs. Booth to secure the sale to him of a portion of their interest in the business of Inman Chevrolet Company and to grant him options to purchase the remainder of such interests in the future. He pointed out to them that the sales franchise from the Chevrolet Division of General Motors Corporation was a year to year contract which could be terminated by the Chevrolet Division at the end of the current year; that the contract was made and continued on the basis of his individual management of the business as dealer, and that unless they sold to him he would cancel or would not renew the dealership at the end of 1951. He further represented to them that the business was worth $75,000, since they were selling only their interest in the physical assets of the business; that the share of each was of the value of $25,000. During all such time and prior thereto M. G. Inman, Sr., as the manager of the business, made and was required to make to the Chevrolet Division of General Motors Corporation a detailed monthly report, showing the net profits and net worth of the business for the current year. Such reports showed that for the year 1951 through March 31st, the net profit was $94,490.32 and the net worth was $194,304.96; that to November 30, 1951 the net profit amounted to $221,-167.05 and the net worth was $310,981.69. During the pendency of the litigation the trial court appointed an auditor to make an audit of the various accounts of the In-man Chevrolet Company and the report of such auditor shows that of date of December 26, 1951, the date when the instruments under attack were executed, the net worth of the business was $265,317.72 and that of such amount $155,774.96 was in cash on hand or in banks. M. G. Inman, Sr. did not disclose to appellees what the profits and net worth of the business were during the year 1951 while negotiations were in prog--ress. Mrs. Booth and Mrs. Parr had copies of the audit report of the business for the year ending December 31, 1950, which report shows profits for the year 1950 to be $280,000 and the net worth of the business $304,000. In January of 1951 both Mrs. Parr and Mrs. Booth each received a check for $85,000 as their share of the profits of the business for 1950. During the years of M. G. Inman’s operation of the business Mrs. Parr and Mrs. Booth received out of the profits checks as follows: for 1947— $40,000, 1948 — $61,250, 1949 — $50,000. Mrs. Parr testified as follows in regard to the preliminaries of their execution of the instruments under attack in this case: “Q. Mrs. Parr, when did Mr. M. G. In-man, Sr. first say anything to. you about parting with your interest in your brother’s estate in the Inman Chevrolet Company, do you recall? A. After he received the franchise, about a week or so later we were standing on — in front of the building, the Chervrolet building on the corner, he and his wife and his son and I, and he said— “O. That is his son, M. G. Inman, Jr.,— A. Yes. “Q. —who is a party to this suit? A. Yes. ‘‘Q. What was said at that time? A. Well, he said, ‘Ruth, I want you to sign over your part of the business — ’ (I thought he meant the business and the building) to Major, Jr. (and Major was quite a little boy at time) I patted him on the back (I thought he meant to leave it to him when I died, not give it to him now), and I said, T don’t know of anyone I had rather give it to,’ (leave it to, rather). “Q. Did that end the conversation? A. That is as far as I know. It went in one ear and out the other. I did not think anything about it. “Q. When is the next time that you remember when you and M. G. Inman, Sr.,, discussed your parting with your interest, in the Inman Chevrolet Company? A. I think it was Christmas or New Year’s Eve,, or New Year’s or during the holiday season — I don’t know which it was. My sister and I were at his home and he asked us-to go to. his office. “Q. That was somewhere in the neighborhood of 1949, was it not? A. In Orange; Chevrolet business in Orange,, late in the evening, around eleven o’clock at night, and he said he wanted us to sign an option to let him have our part of the-business. Then he said, ‘Oh, say, for five thousand dollars or so,’ and I didn’t pay attention to what he was saying because I thought it was so silly I didn’t even listen to him very much. “Q. There were no negotiations further? A. His excuse was that he did not want to be bothered with my sister’s husband. He kept saying he didn’t want to-have any complications with them. And I said, T don’t have anyone else’ and he says, ‘I want to do- for one what I want to do for the other.’ “Q. That was somewhere around 1949, as you recall? A. I don’t know whether it was ’48 or ’49. “Q. I presume it was one of those years ? A. Yes, sir. “Q. That is all there was to that? A. That is all there was to that except it continued after that, but it was always one excuse after the other. First, it was Edwin, he did not want to be bothered with Edwin in the event something happened to Grace. “Q. Did he ever make any concrete proposal after that time as to what he would pay you for the — ■ A. No. “Q. Or anything like that? A. That is it. “Q. But he did eventually want your interest in the business? A. That is it. “Q. I direct your attention to the 31st ■of December, 1950. As of that date, I believe the administration was closed out, is that correct? A. I don’t know whether it was closed— “Q. I direct your attention to sometime ■the latter part of March or early part of April, 1951, did you and your brother and your sister have any conversation with regard to the sale of your property at that time ? A. That is when I heard or knew or 'learned that he had ceased to be an administrator, he had finished with that. I don’t hnow. “Q. How did you know he had ceased to be ? A. He called me and said he wanted to bring Mr. Graham Bruce up to my apartment, he wanted my sister there. He ■came up one afternoon with Mr. Bruce, Graham Bruce. “Q. Did they bring a paper along with them? A. They brought a paper, and, as usual, I did not read it, I signed where he told me to sign it, to release him as administrator, then he pulled out another paper and asked me to sign that, and I said, ‘What is this paper for?’ He said, ‘That is a lease •on the building, and an option I want you to sign.’ And I said, ‘I don’t know what that is, I want to read it,’ and Mr. Bruce said, ‘If my brother had done for me what your brother had done for you, I would sign anything he asked me to without reading it,’ but I didn’t sign that one. * * * “Q. Now, you say at the time you signed ■that instrument you did not read it, Mrs. Parr ? A. I did not. “Q. But Mr. Bruce and Mr. Inman, your 'brother, explained to you that that was closing out the estate as of the 1st of January, 1951? A. Well, I didn’t understand it was the first of January, but it was the ■closing of the estate, he had been released as administrator. “Q. You say they had another instrument there that they explained was an option? A. It was a lease also. “Q. It was a lease' and option, is that Correct? A. I don’t know what it was. I didn’t read it. “Q. And did you execute that instrument at that time ? A. No. “Q. Did they tell you what they wanted —what the effect of that instrument was, what they wanted you to do by executing that instrument? A. It has been so long, it is hard for me to remember, but it was my impression — I didn’t read the paper. “Q. At that time, did Mr. M. G. Inman, Sr. seek to acquire your interest in that partnership or not? A. Yes. “Q. Did he tell you what he was going to pay for it ? A. I don’t remember whether or not he said at" that time. “Q. Did he tell you what the value of it was at that time ? A. No. “Q. Did he tell you how much profits had been made since the first of January, 1951, at that time? A. No. “Q. All right; when did you next discuss parting with your interest in the In-man Chevrolet Company with M. G. Inman, Sr.? A. I don’t know just exactly when, but later that summer, along in that time, I don’t remember the exact date. “Q. Was that sometime along in July, you think? A. Possibly, or just in the summer, I don’t remember, not any specific time that I remember. “Q. From time to time from then on until December 26, 1951, did you have conversations with your brother, M. G. Inman, Sr., relating to the execution of these instruments you finally signed? A. Not relating to those instruments, no. “Q. About selling your interest? A. At times when I would see him, he would bring it up, he would ask me when, etc., that I would do' it. “Q. During those times, did he ever tell you what the profits of the business were? A. He didn’t ever tell me. “Q. During that period of time from the time you signed this administrator’s release here which has been read to the jury, until December 26, 1951, did you — did or not your brother ever furnish to you the monthly reports of the Inman Chevrolet Company, that he furnished to the General Motors ? A. He did not. “Q. Did he ever talk with you about— did he ever tell you during that time whether or not the Inman Chevrolet Company’s assets were of any particular value? A. He told me they were only twenty-five — it was only worth twenty-five thousand dollars, because there was nothing there mostly but nuts and bolts. “Q. And did he say what it was worth as a going concern? A. No. He just told me that. “Q. And did he tell you at any time anything about what he wanted you to sell your interest, you and your sister to sell your interest in this so badly? A. Well, because the Chevrolet people wanted him to do so, the main reason. “Q. Did he tell you what would happen if you didn’t do it, with respect to Inman Chevrolet Company? A. He told us he did not want to lose the franchise, they wanted him to do it, he wanted us out, we would have to sign that in order to— “Q. In order to keep the franchise ? A. Yes, to keep the franchise. I made a mistake, I told you that was twenty-five thousand, I mean that was from each one of us. “Q. Seventy-five thousand dollars in all ? A. Yes. “Q. Did you believe it was worth seventy-five thousand dollars? A. Of course, He said so. “Q. Did he state anything during these negotiations between the time you signed these administrators releases December 26, 1951 as to whether — what his intentions were with respect to the last twenty per cent? A. No, he— * * * “Q. Mrs. Parr, during the negotiations that you have testified to that led up to the execution of these instruments, I will ask you to state whether or not your brother, M. G. Inman, ever made any representation to you as to whether he would ever completely put you out of that business? A. Yes, he did. “Q. Will you tell the jury what that was, please? * * * A. On more than one occasion. A. I said on more than one occasion he said unless the Chevrolet people made him. “Q. Will you state when he, to the best of your memory, he first made the representations? A. The very first time? “Q. Yes, ma’am. A. Well I can tell you definite the first time that I remember. “Q. All right, ma’am. A. Was about in O'ctober. “Q. 1951? A. 1951. “Q. All right, tell the jury? A. All right, he called and said he wanted to talk to my sister and me about an agreement as to an option because he said, he said he had to give the Chevrolet Motor Company some assurance that he would get the option, and §o he asked if he could come to my apartment and would my sister be there, he wanted to talk to us, because it was time to renew the franchise and before he could renew it, he had to give them some assurance about an option, that we had come to an agreement as tO' an option. So he came up that afternoon, and we talked and talked, and he said — I didn’t want to do it. He said, Well, I didn’t say I would put you out.’ He said, T have to show them that you are willing to do something, and I will —’ I have to say it in effect the way I understood it, that I did not — ■ T will not push you out unless they make me, and I don’t think they will.’ We didn’t sign the paper and he didn’t bring the paper, I don’t remember the paper that day. The following Sunday he called again and he said he had a letter he wanted to show us, and when he came up there, there was a paper. He said he had to send this in to the Chevrolet. Grace said, ‘I thought it was a letter.’ He said, ‘Oh, no, it is just a little paper,’ and he says, ‘if you don’t sign it, I am going down to the office and I will stay there until 9:00 o’clock and I will call Mr. Mingle in Dallas, and tell him I am not going to renew the franchise.’ And so he left, and after awhile we decided to go on down there, and we said, ‘All right, Major, we will sign this for you to show you we trust you.’ And Grace handed him the paper. And she says, ‘Now, Major, it looks like to me you have got us where you — you can put us out if you want to.’ Says, ‘Looks like to me you can put us out if you want to,’ and he said, ‘Who said I was going to put you out?’ He said, ‘I am not going to unless the Chevrolet people make me.’ And he said, ‘I don’t think they will,’ I think his expression he used, those are the specific things he mentioned that I remember. “Q. Did he other times make the same representations? A. No, I— “Q. Thereafter until the time of the execution of these instruments on December 26— A. I don’t remember the specific times, and what time, those two, I do — two times, I do remember. “Q. Now, Mrs. Parr, did you — I will hand you these two instruments and ask you if your signature appears on them ? A. It is. “Q. Does your signature appear on them? A. It does. “Q. Can you tell this jury where you signed this instrument, if you recall? A. Well, if I signed it — I mean when it signed it, I must have signed it in Mr. Orgain’s office, but I didn’t read it. “Q. Was that on December 26, 1951, the day after Christmas, 1951? A. I think it was that date. “Q. And your signature likewise appears on each of these instruments? A. Yes. “Q. Were those instruments signed by you at the same time that the other instrument you have just identified were signed? A. Well, I presume so, but I didn’t read it. I don’t know. “Q. The only instrument you have signed in connection with this transaction were signed in Mr. Orgain’s office December 26, 1951 ? A. Yes. “Q. Your answer to that was ‘yes’? A. Yes. * * * “Q. Now, Mrs. Parr, regardless of the date those instruments bear there, do you state to the jury that they were all executed at the same time ? A. No. I am not sure. “Q. I mean on the 26th day of December, 1951 ? A. No, I am not sure. “Q. You don’t know whether they were all executed on that date? A. I don’t know. “Q. You will note that they were dated back before the 1st of January, 1951? A. That is correct. “Q. It is your testimony to this jury here that you did not sign them on January 1, 1951? A. I did not sign them until the 26th of December. * * * “Q. Now, Mrs. Parr, I have here in my hand what counsel for Mr. Inman has provided me as financial statements of the Inman Chevrolet Company for the period from January 1, 1951 to February 28, 1951, and you will note there that this report shows that the profits of the year to date under total income and expenses was $60,-685.43. Were you ever during these ne gotiations shown that financial report? A. Never. “Q. Did you know— A. I never saw it before. “Q. Did you know at the time that the net profit and loss after income taxes of that business to the 28th of February, 1951, was $22,674.00? A. I did not. “Q. I will likewise show you a financial statement of the Inman Chevrolet Company covering a period from January 1, nineteen hundred fifty— “Q. (By Mr. Walley) Were you ever shown a copy of the financial statement that I now exhibit to you during these negotiations, this financial statement? (Indicating March 31, 1951 statement) A. Never. “Q. Were you familiar, or were you given any information by your brother, M. G. Inman, Sr. as to the contents of that? A. No, not at all. “Q. Did you know on March 31, 1951, that the net profits of that business up to that time amounted to $94,490.32? A. No, I did not. “Q. Did you know, or were you informed of the information contained in this instrument up to March 31, 1951, that the net worth of that business was $184,304.96? A. No, sir. * * * “Q. All right, now, Mrs. Parr, during the month of April the negotiations that led up to your execution in' April, the negotiations which led up to the execution of these instruments on December 31, were going on, were they not? A. That is right. “Q. I show you here a financial statement prepared by the Inman Chevrolet Company for the business up to the 30th day of April, 1951, shows a net worth of such business as of April 30, 1951 in the sum of $209,572.46, it shows a net profit of year to date up to April of 1951, in the end of April, of $114,757.82. I will ask you to state whether or not your brother, M. G. Inman, furnished you with a copy of this report or permitted you to inspect these reports during these negotiations ? A. He did not. “Q. Did he ever at any time tell you the information that you now see contained in this report? A. He did not. “Q. At that time, at the end of April, these instruments had not been executed, had they, Mrs. Parr? A. No. “Q. All right. I likewise show you a financial statement of the Inman Chevrolet Company for the period commencing January 1 of 1951, to the 31st day of May, 1951, showing that the total net worth of the In-man Chevrolet Company as of May 31, 1951, was $229,152.56, showing the net profit earned by that business up to that date was $134,337.92. Now, during — were these negotiations still going on at the end of May, 1951? A. They were more or less started. “Q. All right. And up to that time, did your brother, M. G. Inman, Sr. ever furnish you with a copy of this financial statement ? A. He did not. “Q. And did he ever, at any time, inform you substantially what these figures in this-statement substantially shows ? A. No, he did not. “Q. Now, I show you the financial statement of the Inman Chevrolet Company furnished by M. G. Inman, Sr. to the Chevrolet Motors Division oí the General Motors Corporation covering the period from January 1, 1951 to June 30, 1951. Now, these instruments had not been executed at that time, had they? A. No. “Q. This report shows that the total net worth of the Inman Chevrolet Company at that time was $243,240.79, that the business had earned net profits up to the end of June, 1951, the sum of $148,426.15? Did your brother at any time during the negotiations up to this time show you a copy of that financial statement? A. No, he did not, ever. * * * “Q. Did he ever tell you substantially the figures, or that being the condition of the business? A. No. “Q. Had the instruments that you signed on December 26, 1951 been signed on July 31, 1951? A. No. “Q. The negotiations were still going on towards that, were they? A. Yes. “Q. All right. And that financial statement shows that the net worth of the In-man Chevrolet was $248,722.55, and shows that the net profit up to that date of the In-man Chevrolet, that is up to July 31 of the year 1951, was $153,907.91, were you ever furnished by your brother, M. G. Inman, Sr. during these negotiations with this financial statement? A. I never saw one before. * * * “Q. Did he ever tell you during these negotiations substantially the figures that are contained in this financial statement you now see? A. No, he did not. “Q. All right. I now show you such a financial statement covering a period from January 1, 1951 to 8/31/51 (which is August 31, 1951). These instruments that made the basis of this lawsuit to be set aside had not been signed at that time, had they? A. No-. “Q. This financial statement shows a total net worth of Inman Chevrolet Company as of the end of August, 1951, of $264,907.87, doesn’t it? A. It does. “Q. And the net profit that is made up to the end of August, 1951 are shown by this financial statement to amount to $170,-093.23, isn’t that correct ? A. It is. * * * “Q. (By Mr. Walley) Now, during the negotiations that led up to the execution of these instruments, did your brother, M. G. Inman, Sr. ever furnish you with the information contained in this financial statement? A. No, he didn’t. “Q. And you have never seen this financial statement before this date? A. Never have. “Q. Now, I show you a like financial statement for the period covering the period from January 1, 1951 to September 30,1951, showing the condition of Inman Chevrolet Company for the year 1951 up to the date September 30, 1951. This financial statement shows the total net worth of that business at $279,229.68, does it not? A. It does. “Q. And it shows that the net profits earned by that business from the first of January, 1951 up to the 30th of September, 1951, to amount to $189,415.04. “Q. Now, Mrs. Parr, on the 30th of September, the negotiations for the execution of these instruments was still going on, is that correct? A. That is correct. “Q. Were you ever furnished with either a copy of the financial statement or told by your brother and partner, M. G. Inman, Sr., what those figures were, substantially? A. I have not. “Q. Now, Mrs. Parr, I show you a financial statement prepared by M. G. Inman on behalf of the Inman Chevrolet Company covering a period from January 1, 1951, to October 31, 1951, for the Inman Chevrolet Company of Port Arthur, Texas. It shows that the total net worth as at the end of October, 1951, was $298,882.62, does it not? A. It does. “Q. And it likewise shows that the net profits made by that business during the year 1951 up to the last day of October was $209,067.98, does it not? A. It does. “Q. Mrs. Parr, the negotiations for the execution of these instruments was still going on the last day of October, 1951, isn’t that correct? A. That is correct. “Q. Did your brother, at any time during those negotiations, ever furnish you with a copy of this financial statement? A. No, he didn’t. “Q. Did he ever tell you during the time substantially the figures that you now see on this financial statement? A. He did not discuss the figures. “Q. I now show you financial statement of the Inman Chevrolet Company prepared by M. G. Inman, Sr. for the Chevrolet Motors Division of the General Motors Corporation covering period from January 1, 1951 to November 30, 1951, and that financial statement shows that the total net worth of that business on November 30, 1951 was $310,981.69, and that it had earned in profits during the year 1951 up to November 30, 1951, the sum of $221,167.05. The instruments that made the basis for cancellation in this suit had not at that time ■been executed at that time, had they? A. No. “Q. And you and Mr. Inman and your •sister Grace were still negotiating for the execution of those instruments? A. That is right. * * * “Q. $221,167.05 net profits for the year, is that correct? A. That is. “Q. That is what this financial report ■shows? And the financial report shows that the net worth of the business is $310',-'981.69, does it not? A. It does. “Q. Now, Mrs. Parr, the negotiations that led to^ the execution of these instruments was still going on as of the date of that report, were they not? A. That is right. “Q. Did your brother, M. G. Inman, Sr. ever show you a copy of that financial statement before you signed those instruments ? A. He did not. “Q. Did he ever tell you the contents of those instruments ? A. He did not. “Q. Did he ever give you substantially the figures quoted as being the value of that business ? A. He did not. “Q. Now, Mrs. Parr, I will ask you to ■state whether or not, when your brother told you that the total net worth of that Inman Chevrolet Company business was $75,000.00, did you rely upon that statement? — When your brother told you the net value of what you were selling there was $75,000.00, he told you there was a bunch of nuts and bolts down there, did you rely upon his statement ? A. Implicitly. That is what he said, it was worth about $75,000.00, because it was mostly nuts and bolts. “Q. Had you known that the total assets, net assets, of that business, were in the neighborhood of $300,000.00 instead of $75,000.00, would you have executed these instruments? A. Not hardly. * * * “Q. Had you known that the books of the Inman Chevrolet Company reflected that the net worth of that business was in excess of $300,000.00 on the last day of November, 1951, would you have, on December 26, 1951, signed these papers that you signed ? A. I would not. * * * “Q. (By Mr. Walley) Would you answer my question — I believe you answered the question. You would not have, is that correct? A. I would not have done so. “Q. Now, Mrs. Parr, had you known on December 26, 1951, that on November 30, 1951 the books of the Inman Chevrolet Company showed a net profit of that business for that year of in excess of $200,000.-00, would you have signed these instruments dated back to the first of January, 1951? A. I would not have done so. “Q. All right, ma’am; now, when Mr. Inman told you that unless you and your sister executed these agreements that the Chevrolet Motors Division of General Motors Corporation would cancel that franchise and that you would lose everything in this business, did you rely upon that statement or not? A. Certainly. “Q. I will ask you to state whether or not when Mr. Inman told you on the occasion you have testified to that if you and your sister would execute these instruments that he had no intention of ever putting you completely out of the business unless Chevrolet Motors Division made him to, did you rely on what he said as his intention? A. I did. * * * “Q. Now, Mrs. Parr, after you executed these instruments on December 26, 1951, Mr. Inman asked you to execute other instruments, did he not ? A. Will you please repeat that? “Q. I said after you executed these instruments that have been introduced into evidence, Mr. Inman, through your attorney, Mr. O’rgain, asked you to execute other instruments in carrying into effect these instruments which have been introduced and identified, you signed some other papers, in other words, after you signed this up there in Mr. Orgain’s office, Mr. Orgain had in his office? A. I think so, but I don’t remember what they were. “Q. At the time that you executed them —do you have copies of those instruments? A. I don’t know. Do you have them? “Q. No, ma’am. A. I may have them, I don’t know. I have never read those papers. “Q. Mrs. Parr, I hand you a number of photostatic copies of instruments here and ask you if a picture of your signature appears on those? A. It does. “Q. Now, some of those instruments show to be dated December 31, 1951 and some March 6, 1952. Tell this jury whether or not all of these were signed at the same time? A. Well, I really don’t remember. “Q. These were signed subsequent to your signing the instruments that have been introduced into evidence here, that you signed on December 26? A. I am sure of that. “Q. All right, now, whether these were signed on the 31st of December, 1951, or on the 6th of March, 1952, I will ask you to state whether at the time you signed them whatever times that was, you knew at that time that the net assets, or the nuts and bolts, of the Inman Chevrolet Company was worth more than $75,000.00? A. No, I didn’t. “Q. I will ask you whether or not, at the time you executed these instruments, that whatever time it was, you knew that the profits for the year 1951 exceeded $300,000.00? A. I did not. “Q. I will ask you to state whether or not at the time you executed these, or signed these papers here, you knew that Chevrolet Motors Division of General Motors Corporation did not require you to sign the instruments you signed on December, 1951 ? A. No, I didn’t know that. * * * “Q. Did you have any reason to change your reliance on your brother’s statement that he never intended to’ buy you all of the way out at the time you signed these instruments? A. No, I believed him when he said he would not do so unless the Chevrolet people made him. “Q. And you still believed that at the time you signed these papers? A. Yes, I did. * * * “Q. Mrs. Parr, by the instruments I have just read to you there on the 1st of January, 1952, Mr. Inman Jr. and Mr. Inman Sr. purported to exercise the option for the additional five per cent of your interest, is that correct? A. Yes, sir. “Q. When did you learn that your brother wished to exercise the additional option for the last 20% which you had? A. When it was due to be exercised was January, 1953. “Q. Do you recall about the time of that? A. Well, it was around about the 10th of January, somewhere around that, he called me by phone. “Q. 1953? A. Yes, January, 1953. “Q. And how did you find out about that, how did you know he wanted to exercise it? A. He called me on the telephone. “Q. All right, what did he say to you, and what did you say to him? A. He told me, he asked me to come to the office,, he had a check for me, and I thought he meant to come down for a check for the profits instead of that. I said, What kind of a check do you want me to get? ’ And he says, T want you to sign this check. I am going to exercise the option.’ I said ‘Major, that is not what you said; you will do it over my dead body.’ So that is the way we ended that conversation. “Q. Did you go down and accept the check at that time? A. No, I didn’t gO‘ down. And I didn’t hear any more about it until I was down there the first part of March, he asked me to come down again, but that is something else. “Q. March, 1953? A. Yes. “Q. All right. What happened out there at that time? A. Well, he told me, he says, ‘You know you are out, I have tendered you the money.’ I said, 'You haven’t tendered me any money.’ He said, ‘You know about it any way.’ He says, ‘Jack and, he is in the bank, knows about the check’, but I never did receive the check. Did not ever receive it. “Q. Did not get it? Did you do anything at that time about looking into your rights at that time? A. I went to see Judge Kirkland that night. “Q. Did you consult with him? A. Yes, I did. “Q. And thereafter did you do anything about it, as respecting your rights? A. I talked it over with him and he advised me — to see— “Q. You left it in Judge Kirkland’s hands, eventually what happened; did he handle it for you or not? A. He did not handle it, he suggested we go to Mr. Clayton. “Q. Did you go to Mr. Clayton? A. Which we did. “Q. Mr. Clayton is now on the District bench here, is he not. A district judge? A. Yes. “Q. And Mr. Clayton, did he take the matter under advisement for some time? A. Yes. He asked us to bring some books and papers and things up there, and he would look them over, and so my sister and I went up with these things, and he kept them awhile; in the meantime, he was elected as a temporary judge so he could not go on with it. We took it to Mr. Lamar Cecil’s office, for Mr. Keith to look them over and he kept them quite awhile, and then we decided we would not wait any longer. He said he was so busy, so Mr. Clayton suggested you and we took them to you. “Q. Came to me sometime in the month of March, 1954, did you not? A. I believe so. “Q. And I believe you filed suit here on January 3, 1955? A. That is right. “Q. And you testify to this jury here that some attorneys have had this matter in their hands since the month of March, 1953, is that correct? A. Yes, I think it was the 2nd week before the 15th of March, 1953.” “Q. I believe you previously testified you left it entirely up to your brother, M. G. Inman, insofar as the operation of the business is concerned? A. That is right. I did. “Q. Did you and your sister, Mrs. Booth and your brother, M. G. Inman, Sr. have any understanding or agreement about the time of May 3, 1947, as to what your brother, M. G. Inman would get out of operating this business over and above what you all would get out of it? A. No, sir, I did not have any agreement or understanding, nor discussion about it. “Q. You did not have any agreement about it? A. Absolutely did not. “Q. Did you all discuss with reference to what was to happen to the business after it was taken out of administratorship ? A. Never. “Q. Never? A. I didn’t ever. “Q. Did it seem in any way strange to you that your brother, M. G. Inman, Sr. would undertake to get this franchise in his individual name and operate the business down there, giving his time and attention and skill to it over a period of 1949 — I mean 1947, 1948 and 1949 — and get no more out of it than what you and your sister were getting out of it, who gave nothing? * * * A. Do you want an answer? “Q. Yes, ma’am. A. I don’t think it is so that he didn’t get more out of it than I did. I think that he did, and I think that he has really gotten a lot out of it, and everyone else would say so also. “Q. Do you know what, specifically, he has gotten out of it more than you have during the years that I have mentioned? A. During 1951, he got a salary of $18,-000.00, I believe. “Q. I understand that. That was pursuant to the partnership agreement which has been read to the jury. A. He got that, that was before that. “Q. My question is, during 1947, 1948 and 1949, he operated this business and it was a very profitable business, was it not? A. Yes, but he could not have gotten it with— “Q. My question is: Did it seem in any way strange to you that he would manage that business those three years and not get any more out of it than you and your sister would get out of it, who gave nothing? A. I don’t think so. I didn’t think so anyway, because I didn’t think that he was entitled to more than we were. “Q. Even though he did all of that? A. He was getting the $18,000.00 a year for his time. “Q. He didn’t get $18,000.00 for 1947, did he ? A. I don’t know, but he couldn’t have gotten the business if we hadn’t cooperated with him. “Q. He didn’t get any $18,000.00 in 1948, did he? A. No, but he couldn’t have gotten that business to start with— look what he got out of it in money. “Q. And he didn’t get $18,000.00 in 1949? A. No, but he got a lot out of it. “Q. Did he get any more out of it than you got out of it? A. No, but he couldn’t have gotten it without us, or if he had had Irene in there, it would have been even more so, and he wanted to get her out so he could have it for himself, is what I think, that is what I think about it. “Q. Now, it is true during the years 1947, 1948 and 1949, you and your sister, Grace Booth contributed nothing toward the business of Inman Chevrolet Company ? A. I don’t feel that way, Mr. Rienstra. * * ⅜ “Q. Now, in and around Christmas of 1949, you said your brother, M. G. Inman for the first time mentioned to you about buying out your interest in the business? A. I didn’t say that was the first time, but it may not have been the first time; I cannot remember, you know, the dates, but I do remember talking to him around Christmastime, and I think it was 1949; it may not have been 1949. It was prior to 1951, I don’t know how far, you know, before. “Q. Well, what did he tell you on that occasion? He wanted to buy out your interest in the business? A. Oh, yes, he said, for, say, about five thousand dollars, and I didn’t even say anything about it, I just thought it was so silly, he said his reasons for it then was he didn’t want to be bothered with Edwin, that is my sister’s husband, in the event something happened to her. “Q. Did he likewise tell you on that occasion .he did not like partners in the business? A. I don’t know whether he did then, he had told me that. “Q. When did he tell you that? A. I can’t remember the date. “Q. Well, was it after Christmas in 1949, that he talked to you about buying out your interest in the business ? A. Well, he talked quite often about it, every now and then. First one thing and then another. “Q. He continued to discuss it in 1950, did he not? A. I don’t remember the date ’50, I don’t remember very much about it, to tell you the truth. I don’t remember the dates on it, except in 1951, I mentioned a few dates, as I remember it. “Q. Didn’t he advise you on numerous occasions that when the administrator was released, the administratorship was wound up, he was not going to operate the business on the same terms he had been operating the administratorship? A. I don’t know what he told her. He did not tell me that. He didn’t to me. “Q. He did not tell you that? A. No, he did not. He didn’t ever tell me that. “Q. He never did tell you that. A. No, he didn’t. “Q. When was the first time he left any instrument for you regarding buying out your interest in the business? A. I think it was that little paper that he left that day when he came with a paper with Mr. Bruce about getting us to sign to relinquish him as administrator. I think that was the day when he left a paper. “Q. At the time you signed the release of the administrator? A. Yes. * * * “Q. Mrs. Parr, during the year that your brother, M. G. Inman Sr. was acting as administrator of the Inman Chevrolet Company, you knew that the books of the estate and the books of the Inman Chevrolet Company were audited every year by the accounting firm of Mazur & Staggs, of Port Arthur? A. Yes. “Q. All right, you received every year a report of that audit, did you not, Mrs. Parr? A. Most every year, but I didn’t read those audits, either. * * * “Q. Did you ever look at it from the standpoint of seeing what it showed as to what profits were being made from the operation of the Inman Chevrolet Company? A. No. I didn’t. Because most of the money that was made would be— for several years, was either put into the building fund — we had a building fund, the three of us — and the balance went to the — you know — to income tax. “Q. Income tax? A. And I had very little left. “Q. But you did receive profits from the operation of the business? A. Yes, the profits went into the building fund; that is where they went into the inheritance taxes, and other expenses. “Q. And your income tax? A. My personal income tax, yes. “Q. But did you ever look at these reports, for instance, here, contents— A. No — I never saw that. “Q. Exhibit B, ‘Statement profits and loss.’ A. No, I never did read that. “Q. Did you ever turn over to Exhibit B— A. No, sir. “Q. —and see that it tells you about the profits were of Inman Chevrolet Company ? A. No, because— “Q. It has up there, ‘Estate of Philip B. Inman, Statement of operations — Inman Chevrolet Company, year ended December 31, 1947.’ ‘Profit from Operations,’ for that year — will you read to the jury what that tells you? A. Let me have it, please. (Counsel hands to witness) Where it says ‘totals’ ? “Q. ‘Net profits from operations.’ A. $188,824.26. “Q. All right. Now, you never did read that? A. I never did read that. * * * “Q. What is it he said he was going to do in connection with that instrument, he left it with you to read it, did he not? A. He wanted to send it to the Chevrolet, because they wanted us to — give an option, and that was why we signed it, because he said they demanded that we sign something in order for him to get a new franchise, and it was October was the month they usually get it, as far as I know. “Q. All right. Did he leave that instrument in your possession before you signed it? A. I don’t remember he did, but I remember being down in the office, if that is the one I signed. Grace handed it to him and said, ‘Here it is, Major, it looks as though you can put us out if you want to.’ He said, ‘Who said they were going to put you out?’ He said, ‘I am not going to put you out — I don’t intend to put you out unless they force me to.’ (The Chevrolet people). “Q. Did Mr. Inman say anything to you in connection with that instrument, about that he was not going to continue operation of that business under the same conditions he had been operating it during the administratorship? A. About that paper ? “Q. Yes, ma’am? A. No. “Q. What did he say to you about going down to the office and calling Mr. Mingle and telling him that he was not going to have the franchise renewed? A. He said if we did not sign that paper (I am not sure it was this paper) but a paper, a small paper, if we didn’t sign it that night by nine o’clock, he was going to call Mr. Mingle in Dallas and tell him he was going to give up the dealership. “Q. Why did he say he was going to give it up? A. Because he said he wanted to, because we would not sign that paper giving him an option. “Q. He told you in that connection, did he not, Mrs. Parr, he was not going to operate the business in view of the fact you all would not comply with the agreement you all had made whereby he would get the business after administratorship? A. He didn’t tell me that, because I never made an agreement with him. “Q. Well, whether you made an agreement or not, did he tell you that? A. If he told me. “Q. No, regardless of whether you made such an agreement or not, did he tell you he was not going to operate the business under those circumstances any further? A. Not that night, no. “Q. Did he ever tell you that? A. Did he say it like that, no. “Q. How did he say it? A. He told us if we did not sign that option, the Chevrolet people were trying — wanted that option, and that he had — we had to sign it, to trust him, that is what we needed to do. He didn’t intend to put us out entirely unless they made him do so. “Q. You say he did not say anything to you about that he was not going to operate the business— A. If we did not sign that option, he did. “Q• —like he had been operating it in administratorship where he was doing all of the work, and for every dollar you all earned, you and your sister would get two-thirds and he was getting one-third, did he say that? A. Not that night, no. “Q. Did he ever say anything like that? A. Oh, he had lots of complaints, he had lots of things, reasons, it was one person or this, that, and the other, but as far as specifically what he said, or when he said it, I don’t know. But I am telling you what he said that night. I told you what he said. “Q. As a matter of fact, since the conversation you described awhile ago around Christmas of 1949, clear on through 1950 and into 1951, he told you and your sister, Grace, that as soon as he finished re-building the building, the business was taken out of administratorship, he was not going to operate it any further under those conditions, did he not ? A. Not unless we signed the option. “Q. All right, is that the reason you' signed the option, then, just for looking at? A. I signed it like I told you because he told me that the Chevrolet people were going to put him out and cancel us all out if we did not go ahead and sign that option. “Q. He told you he going to call Mr. Mingle— A. Give up the dealership. It was a threat. “Q. You knew enough about the business, operation of franchise, that if he gave up the dealership, did not operate the business any more, that you all would have practically nothing there, would you? A. I would not say that. “Q. Well, you would not have any new Chevrolet automobiles to sell, outside of what the nuts and bolts and cars on hand were worth, you would not have anything, would you? You understood that, didn’t you? A. I didn’t understand that, and I don’t think so. "Q. Well, what other value would you say there was to the business if he would give up the franchise? A. There was an awful lot of cars down there. “Q. Well, if he had called up Mr. Mingle that afternoon and told him he did not want the franchise renewed because he was tired of doing business under the circumstances, what would there have been about the business— A. The profits for that year to be divided equally and all of the automobiles on hand, and all of the other things down there, as far as I know, I am not a business woman, if I were I could discuss it with you, but I can’t. “Q. Would it be the profits up to the time— A. October, if I had signed the agreement; we did not sign it until the 26th of December. “Q. The instrument the jury is looking at now — ■ A. That was simply — he told us merely a letter to inform the Chevrolet people that we were will to do that. And that is what he wanted us to sign. Otherwise, it was more or less so he could go ahead and get the franchise, that is what he said. “Q. Mrs. Parr, in connection with that very instrument, the jury is looking at now, you say was signed in October? A. I think; I am not sure. “Q. That you signed, didn’t your sister, Grace Booth, call your attorney, Mr. Will Orgain, on the phone, and discuss the matter with him? A. You will have to discuss it with her, I don’t know what he said and I don’t what she said. “Q. Didn’t she call him in your presence? A. No. “Q. All right, now. When was it you first went to Mr. Orgain with reference to the transactions and these proposals that Mr. Inman made to you? A. I think it was after the paper was left there, after the day of the release of him as administrator. “Q. That would be sometime after March 28, 1951 ? A. I think it was April or May, it seems to me, I don’t remember. “Q. All right, what was it? What was the reason Grace and you went to see Mr. Orgain? A. What was the reason? “Q. Yes ma’am? A. I don’t think we went to see him for about a month or so, because Grace left the next week and was gone about a month. “Q. In case the jury don’t know, that is Mr. Will E. Orgain in Beaumont, an attorney here in Beaumont, is it not? A. Yes. “Q. And he is the head of Orgain, Bell & Tucker, here in Beaumont, is that right? A. Yes. “Q. And you had been up to his office previously in connection with business affairs? A. Various things, but very little. “Q. And you testified, I believe, this morning, that you trusted and had implicit faith in your brother, M. G. Inman? Why was it that you went to Mr. Orgain, in connection with this transaction? A. Because the very first time I began to lose faith was when he left that paper there about the lease and that option. I did not think that looked very good about that lease, I did not understand it, and I had to have someone explain it. “Q. That was March 28, 1951? A. I am not — well, I did not go then, it was at least a month or six weeks later. “Q. That is when you began to lose faith in your brother, you say? A. Well, that paper made me suspicious. “Q. So you decided you had better not put your faith in your brother? A. No, I didn’t decide anything. I will tell you what decided me, we took that letter. paper, to Mr. Mazur, and he said, ‘Girls, this is murder.’ He asked me why I took it to Mr. Orgain — and I am telling you. “Q. Well, did you take the paper up to Mr. Orgain after— A. After that. “Q. All right, did you sign that paper after Mr. Orgain looked it over? A. No, sir, I didn’t. “Q. All right, after that time, after you first went to see Mr. Orgain, all of the negotiations with reference to the sale of your interest in the property was carried on between Mr. Orgain, as your attorney, and Mr. Bruce, as the attorney for Mr. Inman, isn’t that true? A. Not at that time. “Q. All right, after the first date that you went to see Mr. Orgain, which was after March 28, 1951— A. After July, 1st of July. “Q. About the first of July. A. After sometime I would say the first of July. “Q. Now, from that date on until December 26, 1951, when you signed these instruments in your lawyer’s office, did you have any further negotiations with Mr. Inman personally? A. Oh, yes. * * * “Q. You testified that you went to see Mr. Orgain first in connection with these negotiations according to your best recollection— A. That is not the first time I went there. Lots of times, for various reasons, I can’t tell you what. “Q. Talking about these? A. I don’t remember. “Q. You said it was in July? A. I said I think my sister was away the month of June, and she didn’t go — we didn’t go until she came back. I am just guessing. “Q. Your best estimate it was July, 1951 ? A. I just think maybe it might have been then. “Q. Now, did you— A. That is the paper that Mr. Bruce suggested that I sign without reading it. “Q. All right. So you took it to Mr. Orgain’s office? A. Yes, but I did not think that looked just right. “Q. So you didn’t sign it? A. No, I didn’t. “Q. Do you know then what negotiations were carried on between Mr. Orgain, your attorney, and Mr. Bruce, attorney for Mr. Inman. A. No, I don’t know. I kno