This аppeal results from a trial court judgment quieting title in plaintiff-appellee to a certain tract of land and awarding plaintiff actual and exemplary damages against the defendant-appellant for trespass on the land in controversy.
After a series of negotiations extending over a period of several months, on April 23, 1970, the appellant, William A. Carter, entered into a contract to purchase 35.8 acres of land from Mrs. Betty Barclay, mother of Donald R. Barclay, appellee herein, and Eugene Barclay, uncle of ap-pellee and administrator of the Estate of appellee’s deceasеd father, Ray A. Barclay. Under the terms of this contract, the purchaser, Carter, was required to sell and convey a tract containing a net of 6.065 acres (hereinafter sometimes called 6 acre tract) out of the 35.8 acre tract to the ap-pellee, Donald R. Barclay. Pursuant to such requirement, a contract was entered into between Carter, a 37 year old man with considerable business experience, as seller, and Donald R. Barclay, 22 years of age, as purchaser, for the sale and conveyance of the tract containing 6.065 acres. This contract provided that Barclay would purchase the land at the rate of $500.00 per acre and that the consideration would be paid in cash at the time of closing. It was understood that the two transactions would be closed simultaneously. Prior to the closing of the transactions, young Barclay arranged to borrow the sum of $3,250.00 from the First State Bank at Vega, Texas, upon presenting his note cosigned by his uncle, Eugene Barclay. Ap-pellee was given a bank note to be executed to secure the loan.
On Friday, May 8, 1970, after bank business hours, all of the parties to the two above mentioned contracts met for the closing of the transactions. At or about the time of the closing, appellee’s uncle, Eugene Barclay, co-signed the note with his nephew, Donald R. Barclay, although there is some conflict in the testimony as to whether Carter was aware of the arrangement for the uncle’s co-signing of the note. On this occasion Carter received deeds executed by Eugene Barclay, administrator of the Estate of Ray A. Barclay, deceased, and by Betty Barclay, conveying together the entire 35.8 acres, and he delivered to them separate checks representing the consideration. Also, upon the closing of this transaction, Donald R. Barclay gave a check to Carter, drawn on the First State Bank of Vega, Texas, in the sum of $3,032.50, thе purchase price of the approximately 6 acre tract of land, and Carter delivered a deed to Barclay reciting a cash consideration. It was Barclay’s testimony that Carter agreed to meet him (Barclay) at 8:00 a. m., Monday, May 11, 1970, for the purpose of filing their respective deeds in the courthouse at Hereford and then they would proceed to the First State Bank at Vega together so that Barclay could exchange his signed and co-signed note for cash to pay Carter’s check. Carter testified that his understanding concerning their going to the bank on May 11 was that “(W)e were to meet on the morning of the 11th, Monday morning, and get the check cashed and get the papers recorded.”
On Monday, May 11, 1970, at 8:00 a. m., when Carter had not arrived at Barclay’s home near Vega, Texas — the agreed upon *912 meeting place — Barclay went to the courthouse in Hereford and there recorded his deed. When Barclay arrived at the courthouse, Carter’s deed to the 35.8 acre tract had already been recorded. Carter testified that he had sent a third party to Hereford to file the deed before 8:00 a. m. At approximately 8:10 a. m., Carter arrived at the Barclay home, after Barclay had departed for Hereford. Upon finding that Barclay was not at home, Carter went promptly to the First State Bank in Vega, Texas, and presented Barclay’s check for payment.
Bank officials explained to Carter that the note had not been returned to the bank co-signed and that therefore Barclay’s account had not been credited with the sum of the note. However, the bank president, Raymond Thompson, testified that he assured Carter that his bank would call him when the note was returned and the funds credited to the account so that he could receive his payment on the check. According to Thompson’s testimony, Carter at first seemed agreeable to the arrangement whereby Thompson wоuld contact him by telephone when the note arrived, but then an hour or two later Carter returned and had one of the bank vice presidents stamp “Insufficient Funds” on the check. (This account conflicts with Carter’s testimony that upon being apprised of the situation, he immediately went to a teller and got the check so stamped, and that Thompson told him that “if and when” Eugene Barclay co-signed the note, it would be paid.) Carter than traveled to Amarillo to the office of his attorney. At 3:00 p. m. on the same day, Carter filed an instrument entitled “Resolution In Cancellation of Warranty Deed and Cancellation of Contract to Convey Realty” in the Deed Records of Deaf Smith County, Texas. The instrument alleged failure of consideration and purported to cancel the warranty deed delivered to Barclay and to terminate the Contract of Sale. That evening, after Barclay learned of the presentation and nonpayment of the check, he went to Carter’s home and offered to go with him the next morning and get the check paid, but Carter said he had other things to do and didn’t have time.
On the morning of May 12, 1970, Barclay went to the bank and deposited the money and the bank president, Mr. Thompson, called Carter’s home. Upon being advised by Carter’s wife that Mr. Carter was not at home, Thompson requеsted that she ask Carter to call the bank and to inform him that the Barclay check was good. Carter did not return the call.
On May 13 or 14, 1970, Carter came to Barclay’s home and tried to renegotiate the contract, seeking more highway frontage for his (Carter’s) property, a removal of restrictions in the contract, and a commitment from Barclay to pay one-half of the cost of a fence between their properties. On this occasion, Barclay advised Carter that he had deposited the money to cover the check. The attempt at renegotiation was unsuccessful and Carter told Barclay to see his lawyer with regard to any further negotiations. On May 15, 1970, Barclay purchased a cashier’s check at his bank in sufficient sum to cover the purchase price of the property, and the check was presented to Carter’s designated attorney on the same day. The attorney refused the check and advised Barclay that he was not authorized to accept it.
In late May or early June, 1970, while Barclay and Carter were both claiming title to the disputed acreage, Carter removed Barclay’s electric fence and posts and plowed the land. Barclay admitted that at the time of Carter’s entering on the land and plowing, the wheat on the land was “grazed out,” the livestock had already been moved, that the fence and fence posts were rolled up by Carter so that they could be used again and that the land proper was not diminished in value by the actions of Carter. At a later date, Carter again plowed the land. It was Barclay’s testimony that he had intended to allow the grazing pasture to grow back and then again use the land for grazing purposes, but that *913 this plan could not be accomplished because of Carter’s plowing of the land which destroyed the wheat to be pastured. Carter’s testimony was to the effect that his plowing of the acreage was to prevent noncompliance on his part with respect to requirements concerning planted and diverted acreage under his overall government allotment program when the tract in question was considered as combined with Carter’s other land.
On July 24, 1970, Barclay tendered the full amount of the consideration in cash to Carter who refused to accept it. On September 4, 1970, Barclay filed suit against Carter. In his amended petition, he sought judgment (1) removing cloud on his title to the tract of land; (2) actual and exemplary damages; and (3) attorney fees and injunctive relief against Carter. Carter answered the suit and filed a counterclaim seeking cancellation of the deed, actual and exemplary damages, together with attorney fees.
A jury was duly empanelled and evidence was submitted. The trial court, however, withdrew all issues from jury consideration except those pertaining to Barclay’s claims for actual and exemplary damages against Carter.
The trial judge made findings as follows: (1) that the plaintiff has made a lawful tender of the purchase price of the property to the defendant, (2) that the plaintiff is ready, willing and able to pay said amount, (3) but that defendant has refused and continues to refuse such sum, and (4) that the plaintiff is entitled to title and possession. The jury found that $55 would reasonably compensate Barclay for damages by reason of the entry by the defendant Carter upon the property and the plowing of same, that such entry was prompted by malice, and that Barclay was entitled to $1,500 in exemplary damages.
Judgment was entered quieting title to the land in Barclay and awarding him actual and exemplary damages of $55 and $1,500, respectively. From this judgment appellant has brought his appeal predicated upon ten assignments of error. In his brief, these points are discussed in three groups.
In the first group, appellant includes his points of error one, two and five. In the first point, he complains of the trial court’s failure to submit defendant’s tendered special issues seeking findings by the jury that Barclay defrauded defendant by representing to him that his check was good when presented in return for the warranty deed to the land in question and that Carter relied upon such representation when he delivered the deed to Barclay. In the second point, the appellant insists that there is no evidence to support the trial court’s judgment placing title to the land in the appellee Barclay. In the fifth point, appellant contends that the trial court erred in excluding from evidence the contract of sale between the parties.
An examination of the appellаnt’s brief with respect to points one, two and five indicates that these points should be considered primarily to the extent that they are related to the question of fraud as a basis for his claim of the right of recission. The appellant complained specifically that the trial court failed to consider his claim as one grounded upon fraud, but, instead, dealt with the claim as one based upon failure of consideration. Regarding appellant’s first point wherein he complains of the trial court’s failure to submit the appellant’s tendered issues seeking to establish fraudulent representations by Barclay that his check was good and appellant’s reliance thereon in delivering the deed, it is initially noted that answers to none of such requested issues would serve to establish damage to Carter by reason of Barclay’s alleged fraudulent misrepresentation. No issues covering injury resulting from such alleged misrepresentation were included among his requested issues. The only damage issues submitted by Carter related to alleged damages sustained by him as a result of Barclay’s alleged illegal entry on the property.
*914
One of the essential elements of a fraudulent misrepresentation justifying relief by recission is resulting loss, damage or injury to the party deceived. Russell v. Industrial Transportation Compаny,
In defendant’s fifth point of error, Carter complains of the court’s exclusion from evidence of the contract of sale entered into by the parties on April 23, 1970, on the theory that all rights thereunder had merged under the deed. Although the question was raised as to the sufficiency of the appellee’s briefing of this point, after considering the brief and record as a whole, along with the supplemental brief submitted, we have determined to consider the point.
The April contract between Carter and Barclay provided, in part, as follows:
“The Seller agrees, when the title objections have been cured, to deliver a good and sufficient general warranty deed properly conveying such property to said Purchaser, and Purchaser agrees, when said deed is prеsented, to pay the balance of the cash payment. When the closing instruments are signed, executed and delivered they shall be cumulative rights of this contract and shall not merge the rights therein.” (Emphasis added)
It is Carter’s contention that the above quoted language in the contract prevented the rights of the parties from merging into the deed when the deed was executed and delivered to Barclay, and that the contract and deed were cumulative of the rights of the parties, thereby entitling Carter to the remedy of rescission when payment of Barclay’s check was refused. The deed executed on May 8, 1970, subsequent to the above-mentioned contract, recited a payment of $3,032.50 “to me in hand paid by Donald R. Barclay” and recited an unconditional conveyance of the property described without retention of lien of any kind. We have previously reviewed the acts and conduct of Barclay, and it is apparent that the evidence was insufficient to establish fraud on his part in the transaction through which he acquired the deed. Under these circumstances, in the absence of fraud, accident or mistake in the execution, the deed, an absolute conveyance on its face, must be considered the final ex
*915
pression and the sole repository of the terms upоn which they have agreed with respect to the property conveyed, the consideration and the method of payment. Scull v. Davis,
Appellant’s second group of points of error, points three, four and nine, relates primarily to his attack of the court’s finding that (1) Barclay had made a lawful tender of the purchase price; (2) Barclay is ready, willing and able to pay such amount; and (3) the court’s failure to provide an adequate protective order to insure payment of the purchase price.
In appellant’s third point of error, he attacks the trial court’s finding that plaintiff Barclay made a lawful tender of the purchase price of $3,032.50 to Cаrter. Carter’s contention is that unless a “lawful tender of the purchase price” was made by Barclay, he (Carter) is entitled to rescind the warranty deed executed and delivered to Barclay.
The property in question was conveyed to Barclay by a general warranty deed which recites the payment of cash consideration. No' express lien having been retained, the appellant-vendor may sue for the debt and foreclose on an implied lien, but he may not rescind as in the case of an express vendor’s lien. Huddle v. Cleveland,
Appellant’s points four and nine, relating to the trial court’s failure to enter a “protective order” to insure the payment of the purchase price for the land conveyed shall be discussed in a subsequent portion of this opinion.
Appellant’s third group of points of error, six, seven, eight and ten, relate primarily to appellant’s claims of “no evidence” and “against the great weight and preponderance of the evidence” in regard to the jury’s findings of actual and exemplary damages, and complaints regarding the trial court’s instructions to the jury in connection with its consideration of punitive or exemplary damages.
Appellee asserts that the “no evidence” point regarding the jury’s findings of ac *916 tual and exemplary damages (point seven) cannot be considered by this court because of appellant’s failure to follow certain procedural requirements for presenting the point. After reviewing the record, although the matter as to whether the point is properly before the court is not free from doubt, we have determined to consider the appellant’s “no evidence” contention.
In his sixth and seventh points of error, appellant complains of the jury’s findings, in answers to special issues that (1) $55 would reasonably compensate Barclay for damages by reason of appellant’s entry upon and plowing the land; (2) such entry was promptеd by malice; and (3) Barclay was entitled to $1,500 in exemplary damages. Appellant asserts there is no evidence to support such findings, and alternatively, such findings are against the great weight and preponderance of the evidence. There was ample evidence that Carter, from the time he began negotiations with the Barclays for the purchase of the land until the filing of this suit, was never satisfied with the terms of the contract whereunder he was required to convey the 6 acre tract to Barclay. The record shows that when Carter discovered that the check was not honored by the bank on the Monday morning following the Friday’s “closing” of the trаnsaction, he made no further effort to present the check to the bank for payment. After Barclay and Carter failed to make connections on the designated Monday morning for the planned trips for recording the instruments and payment of the checks, there was evidence to justify the jury’s believing that Barclay’s further efforts to carry out his part of the bargain were futile because of Carter’s attitude and effort demonstrated by words and actions, to defeat the sale and conveyance. Despite Barclay’s continued attempts to pay his debt and despite the controversy over the land, Carter entered upon the land within twо to four weeks after the closing date in May, removed Barclay’s fence and plowed up the pasture in utter disregard of the fact that Barclay was in possession and of his rights outstanding under the general warranty deed, which, under these circumstances, gave Carter only the right to sue for the .amount of the consideration. See 59 Tex. Jur.2d, § 484, at 32, supra; and Huddle v. Cleveland, supra. Also, when appellee tried to pay appellant, appellant sought to renegotiate and add additional terms to the contract. From all of the circumstances surrounding Carter’s conduct' toward and transactions with Barclay, including the trespass upon the land еvidenced by the entry, removal of the fence and plowing of the land, the jury could have reasonably concluded that appellant was prompted by malice at the time of entry upon the land.
As to the $55 award for actual damages, we find Barclay’s testimony sufficient to sustain the award. Barclay testified that due to Carter’s action in taking down his fence, he would be forced to put the fence back up again. Although he admitted that he had not yet been put to any monetary expense due to the displacement of the fence, Barclay said he thought putting the fence back up again himself would take one full day and would be worth $50-$75, bаsed on his experience in farming and working on fences. Thus, we think the jury was entitled to infer from his testimony that it was Barclay’s opinion that his time and labor for one full day was of a value estimated at $50-$75. Of course, his opinion as to the value of his own time and labor was necessarily an estimate, but it is nonetheless competent proof. See Vol. 2, McCormick & Ray, Texas Law of Evidence, 2d ed., 1956, § 1422, at 256-257. Further, appellant’s counsel elicited from Barclay that he could have hired men to do the job for $50 — $75.
1
And a proper measure of damages for a temporary and reparable injury to realty is the cost of restoring the land to its condition immediatеly preceding the injury. 17 Tex.Jur.2d,
*917
Damages, § 69, at 145-6. Further, Barclay testified that he lost future pasturage on the land valued at $150. Having concluded that there is some evidence of probative force to sustain the jury findings as to actual damages and malice, we overrule ■ defendant’s no evidence point as to these two issues. Renfro Drug Co. v. Lewis,
As to the award by the jury of exemplary damages, we have upheld the jury finding of malice on behalf of defendant Carter in his entry into the property involved and the finding of $55 actual damages. We deem it proper to consider the matter of reasonableness of the exemplary damage award, giving due consideration to the overall setting and circumstances. The amount of the award is a matter resting largely in the discretion of the jury, and the basic rule has been said to be measurement by a rule of just punishment of the offending party, as opposed to fair compensation tо the injured party. 17 Tex. Jur.2d, Damages, § 186, at 255.
Although the amount of exemplary damages must be reasonably proportional to actual damages, no set ratio may be set, as such ratio must depend on the state of facts in a given case. Southwestern Investment Company v. Neeley,
After a careful review of the facts of this particular case, summarized above, we are of the opinion that the award of $1,500.00 exemplary damages is excessive by the sum of $750.00. Therefore, under Rule 440, Texas Rules of Civil Procedure, this court is under a duty to reverse and remand this case unless appellee files a remittitur of $750.00 within 10 days from the date of this opinion.
In appellant’s eighth point he complains of the failure of the trial court to submit certain explanatory instructions with regard to the special issues concerning defendant Carter’s entry upon the property, malice, and exemplary damages. This point is without merit, since the appellant did not object in writing to the court’s charge prior to the time it was presented to the jury. All objections to the court’s charge are required to be presented to the court in writing before the charge is read to the jury and “all objections not so made and presented shall be considered as waived.” Rule 272, Texas Rules of Civil Procedure. Also, this rule is applicable to instructions as to elements of damages. Safeway Stores, Inc. v. Bozеman,
By his tenth point appellant contends that the trial court erred in awarding *918 exemplary damages when a “judicial admission” was made by Don Barclay that he suffered no actual monetary damages. This point is without merit and is overruled for the reasons discussed with regard to points six and seven above. It is obvious that the fact that Barclay could do the work of replacing the fence himself should not prevent his being entitled to compensation for the reasonable value of the work he would be required to perform to restore the fence to its former condition or by reason of being deprived of the pasturage because of the plowing.
In appellant’s points of error four and nine he maintains that the trial court was in error in failing to enter a “protective order” to insure payment by appellee of the sum due the appellant. An examination of the judgment entered by the trial court discloses that no specific provision was made therein for the appel-lee’s payment of the purchase price for the property in the sum of $3,032.50, which the court found had been lawfully tendered but not accepted by appellant. A consideration of the pleadings as a whole, particularly the appellee’s pleadings, the findings in the court’s judgment, all indicating an offer, willingness and ability of the appel-lee to pay the purchase price, there was no manifestation of any intent other than that the purchase price should be paid. We also note that appellee, in his brief and during oral argument, has advised this court of his present willingness and agreement to pay the amount of the purchase price into the registry of the trial court. When the pleadings as a whole are considered, including the pleadings of the appel-leе, as we are authorized to do, we have concluded that the pleadings as a whole embody sufficient factual allegations to authorize the court’s ordering of the payment of the sum of the purchase price into the registry of the trial court. 45 Tex.Jur.2d, Pleading, § 168, at 714; Gossett v. Green,
In the event the purchase price is timely deposited in the registry of the trial court and the remittitur suggested is timely filed as ordered herein, the judgment will be af *919 firmed as reformed; otherwise, the cause will be reversed and remanded.
Reformed and affirmed on conditions of deposit of purchase price and remittitur.
ADDENDUM TO OPINION
Appellee having timely deposited the purchase price into the registry of the trial court on February 2, 1972, and having timely filed on February 7, 1972, the remit-titur, as ordered, the judgment of the trial court is accordingly reformed and affirmed.
Notes
I. “Q. * * * you could have hired it done for $50 to $75.00? ‘A. Yeah, I’m sure you could have.”