55 Tex. Civ. App. 394 | Tex. App. | 1909
This suit was instituted by the appellee against the appellant in the District Court of Glasscock County, to recover damages for the alleged breach of a contract to convey a certain tract of land. The case was tried before the court without a' jury, resulting in a judgment in favor of the appellee for $960.00.
Findings of Fact.—The following are the facts as shown by the evidence introduced: The appellant, Dobson, owned a section of school land situated in Glasscock County not then fully paid out, which had been purchased from the State. In October, 1906, he and the appellee entered 'into an agreement by which appellant Dobson sold to the appellee, upon terms hereinafter stated, all the right that he had in the section of land mentioned. The written contract which evidences the terms of the agreement and upon which this suit is based, is as follows:
“$500.00. Garden City, Texas, October 24th, 1906.
Beeeived of T. A. Zimmerman of the- County of Jones, State of Texas, the sum of $500.00 earnest money, to close sale to himself, of the following described lot, tract or parcel of land, to wit: 640 acres of land, all of Survey Ho. 18, Block Ho. 34 Tsp. 3 South, situated in the County of Glasscock, State of Texas, from B. C. Dobson, of Glasscock County, Texas, acting by and through his duly authorized agents, Gregg Brothers, at Garden City, Texas, at a total sale price of $4,800.00 bonus, to be paid as follows, to wit: The sum of $2,500.00 cash, on or before the first day of January, 1907, when possession is to be given, the sum herein receipted for to be taken as a credit on said first payment and the execution and delivery by the said T. A. Zimmerman to the said B. C. Dobson, of six certain promissory vendor’s lien notes, said notes are to be of even date with the deed transferring the property, and are to be of the principal, sum of $383.33 each, and due and payable on or before one, two, three, four, five and six years from date Tespectively and to bear interest from date at the rate of 8 percent per annum from date until paid, payable at Garden City, Texas, $2,500.00 is to be paid as stated above upon the delivery of a proper deed, transferring the said property in accordance with the agreement herein. It is further understood that the title to said property is to be perfect or to be made perfect within a reasonable time from the date hereof, or the money is to be refunded to the said Zimmerman, the parties hereto are allowed until the first day of January, 1907, to consummate the details of this trade, and if the same are not consummated or finished by that time the earnest money is to be refunded, if the default of the said B. C. Dobson, whereupon the said Zimmerman, may then proceed to' establish his rights according to law, but if the default be that of the said*398 Zimmerman, then the amount so received as earnest money is to be forfeited and at once to become the property of the said B. C. Dobson, and his agents, Gregg Brothers, are authorized to turn the same over to him less their commission and expenses incurred in the matter, and upon the said forfeiture being declared the said T. A. Zimmerman shall thereupon become released from any further liability by reason of this contract.
Witness our hands this 24th day of Oct., A. D., 1906.
Gregg Brothers, By Guión Gregg.
I accept the terms and conditions of the above contract and agree to abide by its terms. B. C. Dobson.”
It- is further shown that Gregg Brothers, whose names appear signed to the foregoing instrument, were land • agents and were instrumental in bringing the parties together and in the consummation of the deal above referred to. At or about the time this written contract was executed the appellee deposited with Gregg Brothers the $500.00 mentioned, and Dobson, the appellant, also executed, acknowledged and delivered to Gregg Brothers for the appellee a deed of general warranty conveying to the latter the land in controversy and described in the contract, in accordance with the terms of the agreement. While the evidence does not show that the deed was actually tendered to Zimmerman, it is sufficient to warrant the conclusion that the latter knew of its existence and that Gregg Brothers held it for him and that he could get it by paying the purchase-money and executing the notes in accordance with the terms stipulated. Zimmerman, however, was unwilling to accept this deed as a perfect title,. claiming that it was necessary for Dobson to get some sort of an order from the probate court authorizing him to make the sale of the land in controversy. At the time of the transaction mentioned Dobson’s wife was dead and had left some minor "children surviving her. The uncontradicted evidence is that neither Dobson’s deceased wife nor his children ever had ■any interest in this tract of land or the funds with which it was purchased. He bought the land after the death of his wife, and with funds received Toy him from his deceased father’s estate. These funds were never in any wray mingled with any community funds belonging to Dobson and his deceased wife, either before or after her death. Dobson testifies that he acquainted Zimmerman with those facts at the time the'contract of sale was entered into. Zimmerman admits as much, but says that he did not believe Dobson’s statements, and that was the reason why he insisted upon the latter’s obtaining an order from the probate court. On several occasions after the execution of this written agreement, and prior to the first of January, 1907, Zimmerman demanded of Dobson to know what he intended to do with reference to perfecting his title. In reply Dobson told him that he did not intend to do anything more than he had done, evidently referring to the execution and delivery of the deed for Zimmerman to Gregg Brothers. This not being satisfactory to Zimmerman, on or about the twentieth of January, 1907, he called upon Gregg Brothers and withdrew the deposit of $500.00 which he had previously made with them in compliance with the terms of the
Conclusions of Law.—The first, second, third and fourth assignments of error complain of the action of the court in overruling some special exceptions to the plaintiff’s original petition, the action of the court in admitting parol testimony to explain certain portions of the written contract, and of the findings of fact made by the court in the judgment rendered. Aside from bills Nos. 1 and 2 the record contains no evidence of any ruling of the court on the special exceptions. This method of reserving exceptions to rulings’ of that character is not in accord with the rules of practice adoptéd in this State. Rule 53 for district and county courts; Waco Ice & R. Co. v. Wiggins, 32 S. W. 58. All of the bills, however, were filed more than twenty days after the adjournment of court, and for that reason, if for no other, can not be here considered.
It was insisted by counsel for appellant in the oral argument made in this case, that the exception to the admission of the parol testimony had been sufficiently reserved in the statement of facts to authorize a consideration by the court of the objection made. It is true that an exception to the admission of testimony can be reserved in the statement of facts when the latter has been agreed to by thé parties. Kansas City S. Ry. Co. v. Bosebrook-Josey Grain Co., 114 S. W., 437, recently decided by this court, and eases there cited. But we think in such cases it is essential, to authorize the exceptions to be considered, that the statement of facts should be filed within the time provided by law for the filing of bills of exception. Morris v. Bhine, 8 S. W., 317; Willis v. Smith, 17 Texas Civ. App., 543. The Act of May 25, 1907, permitting statements of fact to be filed at any time within thirty days after the adjournment of the term of court,
There are a number of other assignments which in various forms attack the judgment rendered, upon the ground that it is not supported by the evidence. The right of the appellee to recover in this case, can be justified only by a finding that the appellant failed or refused to make and deliver a deed or deeds transferring the land in accordance with the terms of the contract of sale. Those terms provided that “the title to said property is to be perfect or to be made perfect within a reasonable time.” It will be conceded, for the purposes of this ease, that the parties contemplated that the appellee was to have a title perfect in all respects, and free from all clouds and encumbrances except that which existed in favor of the State for the unpaid balance of the purchase money. The question then is, does the evidence warrant the conclusion that the appellant has failed to comply with his contract ? The burden of showing that he has so failed rested upon the appellee. 29 Am. & Eng. Ency., p. 620. It is not contended that appellant refused to make a deed in proper form conveying his title to the land. The evidence shows that such a deed ■was made and deposited with Gregg Brothers for the appellee, and that the latter knew it was there and that it might have been had for the asking upon a compliance with the terms of the instrument. But he appears to rest his cause of action upon the refusal of the appellant to do more than this—to get an order from the probate court authorizing him to sell the land. It seems that the appellee was under the impression that the minor children of the appellant owned an interest in the land, or at least had an apparent interest, and that it was necessary for Dobson to obtain authority from the probate court to make a sale before he could pass a perfect title. The court permitted him to testify that at the time the written contract was made Dobson agreed that he would go into the probate court and make him a perfect title; that they then drew up and executed the written contract hereinbefore set out. The written contract does not in terms require this to be done, but only calls for a perfect title. The evidence is uncontroverted that the land in question was purchased by Dobson after the death of his wife, with funds received from his father’s estate; that these were in no way mingled with the community funds of himself and his deceased wife, as he says, for the reason they had no community funds. The testimony also shows that Dobson told the appellee of those facts at the time the contract was entered into. Appellee admits as much, but says he did not believe it. So far as the record before us discloses, he has not attempted to contradict any of the statements made by Dobson as to his exclusive ownership of the land, and the manner in which he
The judgment is reversed and here rendered in favor of the appellant.
Reversed and rendered.
ON MOTION EOR REHEARING.
As stated in the original opinion disposing of this case, this is a suit to recover damages for an alleged ‘breach of a contract to convey land. It is true there are some expressions in the pleadings of the plaintiff
In this State the general rule is that the proper measure of the damages which the vendee may recover for a breach of a contract to convey or make title to land, is the amount he has paid as purchase money. Roberts & Corley v. McFadden, 74 S. W., 105, and cases there cited. The only exceptions which appear to have been made to this rule are where the vendor either wilfully or fraudulently fails or refuses to comply with his contract to convey. In these last named instances only can the vendee recover for the loss of his bargain in addition to what he may have paid as purchase money. If the vendor presents or tenders a conveyance or title which is merely defective by reason of the existence of some cloud or apparent imperfection the vendee has no right to refuse to accept it and sue for the loss of the bargain, but at most he would only be entitled to have a rescission of the contract and the recovery of whatever he may have paid. Roberts & Corley v. McFadden, supra. Applying those principles to the facts here involved, we have concluded that even if it be held that the original petition states a cause of action for the damages claimed the facts do not warrant a judgment. If at the time the, contract offered in evidence was made Dobson had no title, and for that reason was unable to make a good conveyance, the most which the appellee could recover would be the amount he had deposited as earnest money with Gregg Brothers. Hall v. York, 22 Texas, 642; Wheeler v. Styles, 28 Texas, 242. This is the prevailing rule unless there be additional circumstances of fraud and special damages resulting to the vendee. The mere fact that the vendor at the time of binding himself to convey knew that he had no title is not such fraud as would authorize such additional recovery. See authorities last cited. There was no occasion for the appellee in this instance to lose his bargain. The evidence shows conclusively that he might have acquired the deed conveying all of the title which Dobson owned either at the time the contract of conveyance was made, or at-the time it was sought to be enforced. When the appellee withdrew his money which he had deposited in the hands of Gregg Brothers he had the option of accepting the warranty deed which Dobson had deposited with Gregg Brothers for his benefit. He elected to reject the deed and withdraw the purchase
We must decline the request of the appellee to find as a fact that Gregg Brothers were at the time they were holding the deed and the earnest money deposited by the parties, acting as the exclusive agents of the appellant, Dobson. The Greggs had brought the parties together, and were undoubtedly the agents of Dobson in negotiating the terms of the sale as finally agreed on; but in their undertaking to accept and hold the earnest money which Zimmerman agreed to deposit, they departed from their exclusive agency for Dobson and became trustees charged with the performance of certain duties due to both parties. If we are to treat Gregg Brothers as the sole agents of Dobson, then we must regard the deposit of the money by the appellee as a payment direct to Dobson. This could not be, for the reason that it was specially stipulated that in the event Dobson failed to comply with his contract Gregg Brothers were to deliver this money back to him. In this respect they were unquestionably charged with a trust for the benefit of appellee, and which Dobson had no right to control. How, then, can it be said that they were Dobson’s agents and yet were charged with the performance of duties over which Dob-son had no control? While acting as a stakeholder they were acting for both parties—for one as much as for the other.
The motion for a rehearing is overruled.
Overruled.
Writ of error refused.