*1 940 significance emphasis upon appeal,
treated case on have the the the the this of Sec f, 178, Restatement, Contracts, for parties, strictly damages for tion comment one performance. Cooper Co. v. specific breach contract and the citation to Petroleum of Co., 889, La granted of to be will Gloria Oil Gas 436 S.W.2d The nature the relief promise “the important liability (Tex.1969), if 896 where only become is estab- a sign guaranty, to written and a written lished. guaranty have would been enforceable.” forepart opinion in the of We noted this Williston, at also See Contracts 533A § summary rendered judgment was also Comment, (3d ; Jaeger Agree 1957) ed. of awarding Phillips recovery rentals Writing ments to Reduce To Contracts $3,500.00. part sum of That of Frauds, within the Statute 15 Va.L.Rev. summary judgment questioned not been has (1929). Burger “Moore” in either the court are overruled. rehearing The motions civil cir- appeals or court. Under the this days parties The in which given are fifteen cumstances, severance and affirmation rehearing. to file further motions part perhaps be judgment could hand, Phillips ordered. On other relief, ap-
not sought such and it does not
pear judgment that reversal of the entire Phillips
will prejudice rights to a
recovery rentals is when the entire case
tried. ap- The court civil judgments of the Bobby BURNS, Petitioner, M. peals trial court reversed and cause trial remanded to the court.
Edgar Respondent. WOOD, A. WALKER, sitting. J., not No. B-3537. Supreme Court of Texas.
ON REHEARING MOTION FOR Jan. 1973. REAVLEY, Justice. Rehearing May Denied 1973. opinion Respondents read the Court’s enforceable, with- though promise
make frauds, proscription the statute by the forbearance
if foreseeable action
promisee requirements of Sec- meets the (or
tion 90 Restatement Contracts Restatement,
fulfills 217A of Section
Second, 1969). This Supp.Tent.Draft No. holding.
is not the here determinative promise which is agreement written promise sign complies with statute
which itself discussed promise
frauds. No recitation of
by Court evidence, prom
summary whereas points, sign forth at
ises were set two that, on relying by the
followed recitation not Burger did promises,
these “Moore” City
bid at This the sale of the land. *2 Sellers, Sellers,
Protho & Lee Wichita Falls, petitioner. McIntosh, Lambert, Fillmore,
Banner & Purtle, Falls, Farabee De- Wichita Lange, Hudspeth, Katz, Eugene Pitman & Pitman, Houston, respondent. J. STEAKLEY, Justice.
ON FOR REHEARING MOTION opinion The un- delivered this cause January 1973, withdrawn, der date of judgment entered on this date following set opinion aside. The sub- stituted therefor. Burns, peti- by Bobby
This is a suit M. below, plaintiff tioner here and to enforce injunction claimed re- the restraint covenants, quoted, against strictive later apartment houses erection of multi-unit Wood, respond- by Edgar on A. lots owned right ent here and defendant below. essentially predi- sought the relief dedication cated on a recorded Sub- purporting to establish Park Place City of division, an addition Texas; Falls, alleged on the Wichita thereby implementation general it jury, trial inaugurated. In a ato of Burns and Wood found Park Place Subdi- were included vision; had prior that Burns and owners tel, apart- together waived the to enforce the with the suitable out-build- restriction; ings appurtenant thereto, ment be that the restriction had shall abandoned; and that Burns unreason- erected of said on lots or tracts churches, ably protest apartment except delayed his to the said subdivision schools, project injury. store-buildings filling After over- sta- Wood’s ruling may upon Burns’ motion for tions or not- either be erected *3 verdict, withstanding nothing following the a take tracts: against by was rendered him the 7; “Tract A—Lot in Block Lot trial court. This judgment was affirmed 6; 8; in Lot in Block Block One Block by Appeals upon Civil the the Court of 28; 19; in Block Lot in Block Lot 1 holding prove pri- that Barns did not a 20. ma facie entitling case him to the relief S.W,2d sought. 482 We affirm. 295. dwelling shall “Not more than one any ever be erected on lot or tract with Burns established that in 1926there was desig- exception large of the tracts the Texas, placed County, in record Wichita nated as follows: a pertaining and dedication instrument Subdivision, K, L, to a district C, D, E, F, G, H, called Park B, J, Place “Tracts containing and O, P, R, S, V, covenants M, N, T, U, restrictive Q, which to against seeks enforce less apartment which costs “No house by held instru- The recorded Wood. Dollars ($10,000.00) than Ten Thousand part ment in read as follows: in said subdivision shall ever be erected hereby
“It agreed making less than and no hotel which costs Sev- property sales of within the limits of Dollars enty ($75,000.00) Five Thousand subdivision, said such sales shall be made in said subdivision. shall ever be erected by map reference and to the attached Five dwelling costs less than No which each making conveyance deed such or shall ($5,000.00) Thousand Dollars any reconveyance by the Park Place north and be erected in said subdivision Realty Company, its its successors or Burlington east Avenue.” assigns, various shall contain or ade-
quately following refer to the restric- tions, running with which are covenants Art. II. property, the title to said and each and every lot or tract in said subdivision is are made . These restrictions “. . hereby impressed with such restrictions. ac- persons all the mutual benefit for purchaser accepting Each title to said and subdivision property said quiring property any portion of is bound or same ac- them to purpose inducing by agrees said restrictions and thereto said restrictions property and quire such pur- accepting the act of such No title. binding and hereby made irrevocable any chaser or other one in manner grantor its successors upon the said acquiring any property interest in said purchaser in favor assigns, convey shall same right ever have the to assigns, and their heirs and purchasers, free and clear said restrictions. the corre- granted purchaser each compel the to right benefit sponding follows, to- “These restrictions are as covenants, restric- such observance wit: herein tions, and easements conditions enumerated.” Art. I. instru recorded face the private On its a building than “No other plan for general a ment manifested house, or ho- house
dwelling
apartment
lays
development
of land
out and
Park Place Subdivision
“If the owner
[subdivision],
area for the mu-
establishes
town
as
restricted residential
lots.
purchasers
plan
tual benefit of future
exhibits a
the town
makes and
conveyance
spare
[subdivision],
plots
Each
of a lot
to contain
with
various
carry
streets,
adequate
ground,
alleys, quays,
reference to
recorded
such as
restrictions;
etc.,
each lot was
burdened
sells
with clear ref-
lots,
to be
plan,
purchasers
with the restrictions
benefit of
erence to
lots;
other
to
acquire,
appurtenant
and each lot owner was
the lots
their
acquire
lots,
every easement, privilege,
ad-
the restrictions
enforce
indeed,
against
represents
are,
vantage
These
which
lots.
“general
belonging
them,
of a
scheme or
.
.
.”
plan.”
elements
Walker,
In
Curlee
112Tex.
244 S.W.
Henderson,
*4
See also Baker v.
137 Tex.
(1922),
placed
497
the subdivider
of record
Skipper,
153
(1941);
S.W.2d 465
v.
Davis
plat
City
an addition
to the
Wichi-
364,
;
125Tex.
(1935)
plied Here, beyond in each every however, contract that the fact plat contract that provi- should have and dedication instrument these same restrictions, they placed record, sions were was no as were for the there evi dence that the therein was reflected all, benefit of and at once formed an implemented pursuant to inor accordance inducement purchaser. to each Thus was with the requirements, recorded or that the inaugurated ‘general plan’ scheme or Subdivision as so cast came ex into creating this restricted residence dis- any There no evidence of istence. trict.” Realty Company conveyance by Park Place any Subdivision, any lot in the or of In Chandler, conveyance Texas Ry. any by any grantor & P. v. lot con Co. taining carrying or a reference to 20 S.W.2d 380 (Tex.Civ.App. writ stipulated restric plat recorded or ref’d), Hickman, later Chief Justice Jus party re tions. was not a to the tice Court, of this citing County v. Lamar plat. property corded He was deeded his Clements, 49 (1878), Tex. 347 observed by conveyance his father in and the 1953 that question difference between the reference to the restrictions contained no dedication, and that of cov restrictive out although the lots were described use, enants merely far is nominal so prior Park con Place Subdivision. No as the purchased owners of lots on the faith veyances conveyance to were shown. The of such concerned, and reservations are are Wood of the lots which Burns claims Grenet, stated the rule from 22 Oswald v. for the burdened with covenants benefit City 94 (1858) and v. Tex. Corsicana to the of his contained no reference lots Zorn, 97 Tex. (1904), 924 restrictions, S.W. fact described applicable Singleton which is Addition.1 here, as follows: as out of replatted desig subsequently 1. The record indicates that certain areas were 3; portion Singleton the southern of Park Place nated Additions only to by Burns went offered evidence question properties that showing Evelyn BIZZARRI, Appellant, on the delineated in the area located property usages plat that have Texas, Appellee. The STATE of Park the recorded consistent with generally No. 46121. it not shown But restrictions.
/fdace in reliance any purchased lots were Appeals Court of Criminal of Texas. instru- plat dedication on the recorded April 18, 1973. line, any lot, street ment, or that or conformance it as a matter of where (cid:127) consistency therewith,
present uses recorded property with the fact, In
plan more than coincidental.
there was of substantial variances evidence lines internal lot
between streets and they were on on the and as
shown under ground. it said So cannot be the lots
this record that owned Wood restric- the recorded
were burdened with right to *5 acquired
tions or that against lots. these
enforce the restrictions shows, Park Place aught
For this record at all parte was ex
Subdivision times Realty change or -abro-
Park could Place
gate at Hill plan the subdivision will. See Trigg, (Tex.Com.App.1926)
v. S.W. of Trus- Gibbs v. Garden Oaks Board
tees, (Tex.Civ.App.1970, 459 S.W.2d n.r.e.).
writ ref’d prop holding
We are not that recorded
erty may restrictions not be enforced
every instance where lots in an deeds to
established not subdivision do contain or ques
refer to them. do not We reach the
tion enforcibility of their or not under facts
which establish that the recorded upon by understood and relied
parties in interest. See Bethea Lock
hart, 127 1029 (Tex.Civ.App.1939, S.W.2d
writ ref’d); and Ann.
The judgments below are affirmed.
POPE, J., concurs the result. changes Additions; that substantial lie and that lots of Wood Singleton
lines of Park Place Subdivision were Addition 3. within replatting Singleton effected