153 S.W. 676 | Tex. App. | 1913
This suit was instituted by appellees, Frank Hough and M. J. Ramaeker, against appellants, Henry J. Fink and C. R. McAfee, for $5,000, based upon the following contract: "December 19/08. This contract, entered into this day by and between Henry J. Fink of Belleville, Illinois, party of the first part, and M. J. Ramaeker and Frank Hough of Lindsay, Nebraska, parties of the second part, witnesseth: Party of the first part hereby agrees to sell and convey unto the said parties of second part the following described land, to wit: Surveys Nos. 143, 136, 144, 145, 103, 105, N. 1/2 176, S. 1/2 177, N. 1/2 178, S.E. 1/4 178, all in Blk. M. 6, Castro and Swisher counties, Texas, containing 8,800 acres of land, more or less, according to survey. The conditions for the transfer of said land is $15.00 bonus per acre on all school land and $16.00 per acre on patented land, to be paid as follows: $6.50 per acre cash to be paid on or before April 1, 1909, and balance by assuming $20,186.00 now against the land, due half Oct. 18/09, bearing 8% interest from Oct. 18/08, said notes to be discounted 2% annually and interest paid by first party until Dec. 15/08. The balance of the consideration to be divided into three equal annual payments bearing 6% interest from Dec. 15/08 and due, one, two and three years from Dec. 15, 1908. Said land to be deeded in section tracts except those now deeded in quarter sections. Second party hereby pay the sum of $5,000.00 for an option on above land until April 1, 1909 and same sum to apply on cash payment for the land. It is hereby understood and agreed that in the event of parties of the second part take and pay for all land, on or before April 1, 1909, that party of the second part shall have refunded $1.00 per acre on all land already sold and shall pay for land on a basis of $1.00 per acre less than price above stated to be taken from cash payment, Section 136 is not to be deeded until all land is sold. Party of the first part to provide abstracts showing good title to each of above sections and warranty deed to all land, subject to the amount due the state on school land. In case good title cannot be conveyed then the $5,000.00 already paid to be refunded to second parties. Witness our hands this 19th day of December, 1908."
It is alleged in the petition, while said contract is in the name of Henry J. Fink, by C. R. McAfee, and while the title to the land stood in the name of Henry J. Fink, that McAfee had an interest in said land, and that the contract was entered into by McAfee for himself and Fink, and that McAfee now owns an interest in and to a part of the land described in the contract, and that he received the sum of money therein mentioned. The case was tried in the court below, and judgment rendered for the appellees for $5,000, and upon an agreed statement of the cause, under the statute, is submitted in this court, which is as follows: "We, the parties to the above styled and numbered cause, whose names are signed thereto, being all the parties to this suit, hereby agree that the following is a brief statement of this case, and of the facts proven on December 19, 1908:
"First. The plaintiffs allege that on December 19, 1908, they made and entered into a contract with the defendants, which is fully set out and described in paragraph No. 1 of plaintiffs' original petition, and allege that under the terms of the contract that they paid the $5,000, and that thereafter they accepted the title to and received deeds from the defendants for 3,840 acres of the land described in said contract, and paid therefor at the rate of $16 an acre for the patent land *678 and $15 per acre bonus for the school land, and that no part of the $5,000 paid under the contract was applied on the purchase price of the 3,840 acres of land which they did take and pay for. Plaintiffs claim that they are entitled to the entire $5,000 paid under said contract, and pray in the alternative that if they are not entitled to the entire $5,000 that they are entitled to the sum of $2,188.80, with interest from December 19, 1908, being the pro rata part of the $5,000 on the 3,840 acres that they did receive and pay for.
"Second. The defendants answer by a general denial, and allege that the plaintiffs, before April 1, 1908, had determined that they would not accept title to or purchase any of the land, except the 3,840 acres shown to have been accepted by them. Defendants also allege in their answer that the $5,000 was paid for an option on the 13 3/4 sections of land, and that the plaintiffs, having failed to comply with the terms of the option contract, are not entitled to recover the $5,000, or any part thereof. Defendants further allege that if said contract was a contract of purchase that time is not of the essence of said contract, and the breach, if any, is not chargeable to the defendants; and that the defendants are still ready, able, and willing to perform said contract, and tender the performance of same.
"Third. The following facts are proven: It is agreed that the contract as set out in paragraph 1 of plaintiff's petition, was executed, and that the plaintiffs paid the $5,000 as set out therein, and that thereafter, before the 1st day of April, 1908, the plaintiffs accepted the title to and received deeds from the defendants for 3,840 acres of land described in the contract and paid therefor $16 an acre for the patent land and $15 per acre bonus for the school land, and that no part of the $5,000 paid at the time of signing said contract was applied on the purchase price of the 3,840 acres of land. It is further agreed that prior to April 1, 1909, the plaintiffs had decided that they would not take any more than 3,840 acres of land described in said contract; but this understanding was not known to the defendants until after April 1, 1909, and the decision of the plaintiffs not to take said land was not based upon or controlled in any way by the condition of the title to said land.
"Fourth. The following issues of law are involved in this case: (1) The construction of the contract sued on. (2) To whom does the $5,000 paid by plaintiffs to defendants under the terms of said contract belong? And, if any part thereof belongs to the plaintiffs, what part? That is, are the plaintiffs entitled to recover a pro rata part of the $5,000 for the 3,840 acres taken, or are they entitled to recover all of it, or are the defendants entitled to retain all of said $5,000? (3) If the contract should be construed as being a contract of purchase, are the defendants entitled to a decree for specific performance of same?
"Fifth. We agree that this case, upon appeal, may be decided upon this agreed statement, in accordance with the provisions of the statute, and determined accordingly. This the 7th day of May, A. D., 1912."
This case was appealed from a former judgment in favor of the appellants herein, and reversed by the Court of Civil Appeals for the Fourth district, and is to be found reported in 141 S.W. 147. The issue upon which the case was by that court reversed is not presented on this appeal.
We are of the opinion, when appellees, under the contract, took six sections of the land before April 1, 1909, by such action they should be held to have agreed to take all the land. The contract thereby became an entire contract, which could be enforced by either party, subject only to the condition of furnishing abstracts to the remaining portion, showing good title. Williams v. Graves,
If the contract is executory, which it clearly is, in so far as the payment of the money, execution of the notes, and delivery of the deeds, as set out in the contract, it would be necessary for appellees to show that appellants were in some way in default, or that it would be inequitable for appellants to retain the purchase money. In Lipscomb v. Fuqua,
This case has been appealed once before, and reversed and remanded. If appellees could have shown that no injury resulted to appellants by a refusal on their part to carry out the contract, and that the retention of the money by appellants is unjust and inequitable, they have had sufficient opportunity, after such reversal, to allege and show such facts. The parties hereto also request that we decide the questions submitted. We therefore conclude nothing is to be gained by reversing and remanding the cause. It is therefore ordered that the case be reversed and rendered, and that the judgment of the trial court for appellees herein be set aside, and that judgment be here rendered that appellees take nothing by their suit, and that the appellants recover their costs in this court and the court below.
The case is reversed and rendered; and it is so ordered.