Court of Appeals of Texas, Third District, Austin
COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY NO. 13-0776C, THE
HONORABLE DAVID GLICKLER, JUDGE PRESIDING
Justices Baker, Smith, and Shannon [*]
an appeal from the judgment of the county court at law of
Hays County in a breach-of-contract suit. Upon trial to a
jury, the court rendered judgment for appellees Wayne and Kat
Guidry for $38, 000. Appellant is Henry Neal. We will reverse
the judgment and remand the cause for new trial.
Guidry inherited from his father a large and diverse
assortment of items (the collection) including military
medals and Native American relics. Among the medals were
three Congressional Medals of Honor; the collection also
contained thousands of arrowheads.
to a written contract, Neal bought the collection for $90,
000. He made a $40, 000 down payment but refused further
payment. Guidry filed suit to recover the balance. Neal
answered, pleading, among other things, that the contract was
illegal and that he was induced to enter into the contract by
Guidry's fraudulent representations or concealment of
first met Guidry in November 2012 at Guidry's garage
sale. After Neal appeared interested in some of the pieces in
the garage sale, Guidry showed him the collection. When Neal
inquired whether he would sell the whole collection, Guidry
replied that he might at a later date but that he was then
too busy taking care of his mother. After Guidry's mother
died, he telephoned Neal that he was able to sell the
collection. In April 2013, Neal again viewed the collection,
including the three Congressional Medals of Honor.
Guidry's asking price for the collection was $200, 000,
although he told Neal that he could have it for $150, 000.
2013, Neal returned to see the collection, bringing with him
his financier, Terry Verburgt. Guidry again showed the
Congressional Medals of Honor, emphasizing their monetary
value. Verburgt testified that Guidry told them that each
medal could be worth up to $7, 000 and that these medals were
being sold along with everything else in the collection.
law prohibits the sale of Congressional Medals of Honor.
See 18 U.S.C.A. § 704(a), (c). Although Neal
claimed to be unaware of the prohibition, Guidry knew that it
was illegal to sell them. Guidry claimed at trial that he
told Neal that these medals could not be sold but that he was
giving them to him because he was buying the whole
May visit, Neal and his party spent several hours looking
through the collection and listening to Guidry describe the
collection and its origins. Guidry claimed that his family,
including his grandfather, father, and himself, had
personally dug up all of the Native American artifacts and
that he had family records and photographs to document his
claim. In truth, at least 30 to 40 percent of the arrowheads
in the collection were not dug up by his family, but instead
were purchased by his father from dealers in Arkansas and
Missouri. Guidry had in fact accompanied his father on
several such buying trips. The dealers did not furnish any
certificates of authenticity of the arrowheads.
the May visit, Neal bargained with Guidry for the collection.
Neal asked if Guidry would drop the price to $110, 000.
Guidry agreed. Later in May, Neal returned to Guidry's
house to pick up the collection and make a $40, 000 down
payment. Verburgt and two other men came with him to help
load the collection. It took most of the day to load
everything in Verburgt's truck and trailer. The
Congressional Medals of Honor were included in the items that
Neal received. No one heard Guidry say that those medals were
being gifted, not sold, to Neal.
taking possession of the collection, Neal showed a few of the
arrowheads to a local arrowhead "expert," Rob
Bartell. Bartell's opinion was that some of the
arrowheads were "possibly good, some definitely not
good" and some had been retipped. "Retips" are
arrowheads reworked by "knapping." Flint knapping
is the process for making arrowheads. Also, if an authentic
arrowhead is broken or imperfect, it may be reshaped
(retipped) by knapping to make it perfect. Retipping
drastically reduces the value of an arrowhead. Neal visited
with Guidry concerning Bartell's opinion of the
authenticity of the few arrowheads that he had examined.
Guidry "strongly disagreed" with Bartell's
evaluation, but agreed to drop the sales price for the
collection to $90, 000.
point, however, Guidry wanted a written contract to make
certain that there would be no more renegotiations of the
sales price. Guidry's wife drafted the contract which
Neal signed on June 18, 2013. Neal testified that he did not
discover until some weeks later that the Congressional Medals
of Honor could not be sold. At that time, he telephoned
Guidry telling him the medals could not be sold and
requesting him to take back the collection and "call off
the deal." Guidry refused.
Bartell, the arrowhead expert, finished going through the
"mountain" of arrowheads. He found that there were
massive quantities of valueless retips, literally "bins
full of them." One witness described the retips as just
"sharp rocks" as opposed to valuable artifacts.
From the entire batch of arrowheads in the collection, only a
few were certified as authentic. Guidry never furnished any
family records or photographs documenting his claims that his
family had dug up the artifacts, ...