*1 rely parties can not on the acts of other
extend its time limits
within which
act.
McFarland,
Angelina County
Tex.Sup.,
v.
Wiebusch,
417; Peurifoy
374 S.W.2d
v.
207,
Tex.Com.App., 125 Tex.
82 S.W.2d
624,
Bros.,
op. adopted; Neuhoff
Packers
Acosta,
124,
v.
160 Tex.
Since filed within required by 356, the time Rule jurisdiction
Court secure to enter appeal. tain this above, calculating As held the date for steps leading the time in which the various appeal toward the be taken was De- 24, 1969, cember date signed. In the absence of motions for ex- (and tension of none were filed) pellant required, give in order to
appellate jurisdiction, file the court
transcript appellate court within six- e., ty days date, from that i. on or before (a February Rule Monday). Walker, County, supra; Angelina T.R.C.P. supra. transcript submitted and
filed on March 1970. above, For the reasons stated this Court jurisdiction appeal. entertain this Appellees’ granted. motion to dismiss is
Appeal dismissed. Appellant, HAMON,
v. ALLEN, Appellee. William M. No. 533. Appeals Texas, Court Civil Corpus Christi. April 16, 1970. Rehearing July 28, Denied
Mahoney, Shaffer, Layton, Hatch & Hatch, Christi, Richard Corpus for J. pellant. Boone, Davis, Hale, Cox & Owen W. Cox, Christi, Corpus appellee.
OPINION
SHARPE, Justice.
This suit was instituted appellant, against Dr. William M. appellee, of a con- Cor- tract for estate situated in sale of real Christi, pus Trial to the court Texas. rested, ap- jury. parties After both pellant case filed motion withdraw the prove, failed “5. That jury judgment render from favor, for di- within the time limitation fixed appellee filed motion of January and the letter from the verdict or take case rected Hatch, that he had com- appellee. from Mr. jury and render pur- motion, plied *3 provisions all the re- with granted appellee’s trial court by ported agreement signed defend- this appellant judg- that and rendered fused plaintiff. ant and the by this appellant nothing ment that take suit. were, at plaintiff 6. and his That purported contract was time the points Appellant threе of error asserts defendant, oc- plaintiff and as : follows question, as cupying premises in conveyance “APPELLANTS their no FIRST homestead. That POINT can consummated a homestead “The trial court erred in refusing and duly ac- signature the wife’s without failing grant plaintiff’s motion for not, did knowledged. Mr. Hamon’s wife judgment grant plaintiff time, warranty a deed of execute prayed as for therein. involved, property in accordance real contract, in she purported with the that APPELLANTS SECOND POINT conveying such deed never execute trial “The court erred in granting de- property the real Allen. Dr. fendant’s motion for judgment and ren- involved, property That the here 7. real dering judgment for defendant that being plaintiff homestead of plaintiff nothing. take wife, conveyed by plaintiff cannot be alone, signature is and since wife’s APPELLANTS THIRD POINT necessary, this defendant could not en- “The trial cоurt in failing erred and re- against plaintiff. force fusing to allow the introduction as evi- mutuality of Consequently, there is not portions certain dence deposition of the remedy. of the defendant wherein the defendant explained and stated the reasons he had to make failed plaintiff has That 8. not performed subject on the contract.” this defendant tender to proper re- he was which obligations several reply appellant’s In points, first two in accordance quired comply appellee contends that appellant was not purported provisions of entitled to for the fol- for the sale of agreement lowing (1) reasons: That there was deed, title warranty proper such as subsisting valid items, title, insurance, prorated clear parties, (2) that contract was unen- the con- obligations set forth in other forceable, (3) appellant that was in default necessary in tract, and which would appellant (4) failed under the trans- properly consummate order to (5) proper performance, to make tender of action. appellant’s showing was no there appellee, proper deed to ability deliver was, on the 16th plaintiff 9. That treated the (6) in 1969, and still January, 17th of brought. are suit We as his own agree- terms of the under the default appellee’s above-stated opinion that of the ment, closing date of at the Jan- require well taken and are 3-6 contentions 16, 1969, date of uary and the ultimate judgment. affirmance obviously 1969, January which was closing, a final date set appellee’s Grounds 5—10 for di- motion warranty available had never made rected verdict and read as fol- convey the which would lows : to-wit, Dr. December as it. propеr party, required to the alone, was in default testified substance follows: Jurecko Forty That respects. Eight other she received check Thousand Three Hundred ($48,300.00) placed never That Savings Dollars from First Association. position pursue himself Certain instruments in connection with remedy specific performance in that the proposed sale and transfer the prop- every property, he has treated the erty prepared either Mrs. Jurecko own, respect, entirely and he has under her direction attorney. day done so 17th These warranty instruments included a day and since the 24th January, deed reserving vendor’s lien from Paul plaintiff is, the date of Trustee, *4 individually and as and trial, treating property solely the Dorothy Hamon, grantors, wife as way benefit and a inconsistent Allen, to Mary William M. Allen and wife theory with the performance.” grantees, as $48,- a note in the amount of payable 300.00 Savings First Associa- un- Appellant that contends under tion in signature installments with lines disputed as a matter facts he was entitled for Dr. Mary William M. and Allen wife of law Allen, and a deed of trust to secure the ma- appellee. The written contract with note, signature also with lines for Dr. briefly will summarized. terial facts William M. Mary Allen and Allen, Allen. Mrs. desired Appellee, Dr. M. William further that plaintiff, testified purchase Drive home on Ocean Jurecko new Paul Hamon wife, Dorothy, and his Texas, came Christi, Corpus and secured by the title company and executed the war- in this services of realtor to aid him ranty 15, January dated realtor, and 1969 Appellee’s their endeavor. Forrest acknowledgments were taken her on the Company, appellant Allen in such contacted 15th 16th January, and There- respect after negotiations and some as to after, someone company at the title called price, 18, 1968, a contract dated December appellee’s office and advised him that the was entered into between ready matter was closing and that he Trustee, seller, as should come and execute certain instru- pellee Allen, Dr. purchaser. William M. Allen, Appellee, ments. Dr. contract, went among things, other con- company 16, 1969, title January on tained the following condition: date called for closing under the terms of “Conditioned upon securing twenty- sign papers but five year (25) (7%) conventional seven on such date. He returned following percent approved mortgage loan in the day and executed promissory note amount Forty Eight Thousand Three Forty sum of Eight Thousand Three Hundred ($48,300.00)Dollars.” Hundred Dollars ($48,300.00), a deed of trust secure note 5, appellee on 1968 December payment statement. A cash of Fifteen First application made for a loan to Thousand Thirty Hundred Three Five Christi, Savings Corpus Association of ($15,- Dollars Eighty Eight Cents Texas De- approved and the same was on 335.88) required and Dr. de- Allen 17, cember 1968in the amount. above-stated livered his company check to title executing amount. After the docu- Mary Hodges Betty Ann Jurecko 17, at the Friday, January ments 1969 on Company San Title testified Jacinto rep- company, appellee its title advised Mary appellant. witnesses on behalf of Allen, wife, Mary resentative to call Ann Hodges testified in substance com- would come the title she also parties written contract deposited company pany sign with the Mrs. title the documents. Jurecko 16, obtained after same would be January testified that further she, parties closed. in, transaсtion between when Dr. and Mrs. Allen came company con- company representative was When title the title representative that she she advised guaranteed tacted Mrs. to issue a prepared willing However, go through did not want policy property. she on the Friday, January there tract. On further testified in substance objection hearing from his and her against prop- lien outstanding home, stopped Dr. Allen erty position not in to issue she was Monday, payment policy on his check and on signed the time Allen Dr. 20, 1969, company went the title papers until and would not have been his check. and- demanded the return of Mrs. Allen them. Jurecko appellant’s explained lien On the last-mentioned date outstanding further that the which appellee, payment attorney wrote letter discharged would have been reads as follows: out the funds in and a rеlease escrow
“January Allen William “Dr. M. Drive
3216 Reid Christi, Corpus Texas . *5 Closing real
Re: sale estate Hamon, et ux to Paul uxet M. William S, Block 2 Lot Alta Vista Cliffs Drive 3628 Ocean Dear Dr. Allen: Paul Hamon represents
Please this firm Mr. and be advised that office which has been referred this above referenced matter parties, the matter According attention. contract title com- January 16, 1969. The have been closed on or before should required by policy ready me are issue a title pany they advises necessary papers and Mrs. Hamon have executed all contract. Mr. addition, conditions stated mortgage In am advised closing. I prior of the contract actually met the execution the same. be no hinderance to the and should know, you you anticipating leased second Mr. Hamon has home As following closing of this transaction. moving from the one your and that imperative intentions аdvised therefore that we immediately. matter be closed I led believe and am to this matter with Mr. Owen Cox
I have discussed sign the note and Deed holdup refusing Allen in Mrs. course, supplied by the which, form and one is standard Texas Trust lender, only objection I have heard Savings other First Association. money forth pay the sum set did you is that not desire you are legal validity have objections any these Neither tract. Fri- necessary action to close this matter hereby requested take the by the required is closed as day, January Unless this matter specific perform- contract, requested that I file my have suit clients you legal objection to the any valid If have enforce the same. ance to ordinary courtesy professional I think ethics dictate you writing immediately. advise us
Very truly yours, Hatch Richard J. jm RJH: cc: Mr. Owen Cox
Attorney Lawat
610 Wilson Tower Christi,
Corpus Texas 78401 Company San Title Jacinto Box 6725 P.O. Christi, Corpus Texas Mr. and Mrs. Hamon
1382 Santa Fe Christi, Corpus Texas Savings First Association Six Points Staples
1660 South Corpus Christi, Texas” question first obligation will consider not create We *6 part in appellant Mary sign to was default Allen whether M. to those provision regarding under the The contract sued instruments. The contract. upon by appellant obtaining any was Paul loan did not contain Hamon, Trustee, Seller, language purported place any which and Dr. Wil- to Allen, responsibility Mary liam Allen’s M. as Purchaser. Dr. M. Allen. It is wife, Allen, Mary papers established that party to in connection M. was not a contract, prepared it. with the transaction not Under terms of the Paul Hamon, Trustee, provisions” “in agreed convey unto accordance with the “to warranty by Warranty Purchaser contract. The deed General Deed” was convey property certain written so рroperty described real as to the real Nueces therein, County. Singular described to language M. Allen is used in re- “William wife, Mary ferring purchaser. to and grantees, M. Allen” as recited, Trustee, part agreed “Upon approval further consideration * * * “the delivery of said title execution and for title of the said insurance to Grantees of their good promissory deliver a one certain general and sufficient * * * note * warranty principal for the deed sum of drawn accordance with ** provisions ($48,300.00).” important It is to properly this Allen, Mary note that conveying although M. said to said Pur- appellee, individual, wife of chaser.” also an nothing There was in the con- who, Hamon, Trustee, under calling tract the 1967 for Paul Amendment to the convey Statutes concerning (Art. married women undivided one-half interest 4613, et any seq., other Vernon’s interest in Texas Civil Stat- Mary utes, purchaser, M. without Allen. The reference to the new Texas Dr. Wil- 1, liam contract, Family M. according January 1970) to said Code effective agreed payment, had rights independent “make the cash of her husband. execute the note and Deed of The Her Trust.” interest in the real covered
390 1915, Binz, Antonio, ; been
by very h.) w. Brown v. deed could well have n. Antonio, by (Tex.Civ.App., her name as a San greater including grantee S.W. 1899, h.). if her had been included. It is also that: than name not n. w. settled The deed referred to a further note by “Granting way per- relief by Mary Allen, although executed Mrs. M. grace is matter and not formance she not at no execute the contract and right. The determination absolute agreed The time to execute note. court, in the rests sound discretion of the note, promissory only which Dr. William its action will not be disturbed execute, pre- M. agreed Allen had appeal is unless an abuse of discretion pared obligate so as to William M. Allen however, discretion, The shown. is Mary The also M. Allen. note one, judicial controlled established be secured a deed of trust which principles equi- doctrines settled agreed sign, William M. Allen had but Hence, ty. may capriciously it not be prepared instrument was to bind also and arbitrarily exercised.” 52 Tex.Jur. obligate M. both William Allen 2d, Performance, 541, Specific p. § Mary M. Allen. and cases therein cited. it thus that Appellee contends appears appellant here that appellant had not clusively established only default obligations under complied his obligations his contract at the under the at the time Mrs. provisions of the contract appellee’s time sign refused to sign; the fact refused to Allen trust, note and the but continued and deed of signed Dr. Allen notе to be in of the final default on date thought trust at when 1969, 24, January deadline of house not relieve wife wanted the does attorney fixed ad in the letter contract; appellant of his duties under January dressed Dr. Allen dated performed appellant had change As of obligations provided the instru- deed, papers. been made ment, go appellee properly could refuse to trust were the note and the deed of forward the transaction unless same as when Allen when Dr. pellant timely cured default. sign. No effort Allen refused remedy had been made appli primary which is rule *7 attorney’s let his at the time the defaults cable reiterated in is the case here any time on or ter was written or Inc., Lines, Freight Walker v. Central 382 prior by to the deadline fixed it. Antonio, (Tex.Civ.App., S.W.2d 125 San e.), wr. ref. n. r. wherein the court that here is thus established said: 24, 1969, for the date January failed he had by appellant, established party equitable
“A is not entitled to the under obligations comply all with remedy specific performance unless However, even of the contract. the terms diligently he he shows that has the contract essence not the was if time timely performed complied all of final not the was 24, 1969 January obligations, though and this is true there could appellant so closing date party the other has stated he will per remedy pursue the carry out the contract.” to show burden formance, appellant’s it was Appellant proper deed. he furnished Oliver, 220 that 148 Tex. Citing v. Corzelius warranty proper general Barry, to tender v. 16 failed Witte (1949); 632 S.W.2d grantee M. Allen Waco, to Dr. William deed 548 (Tex.Civ.App., S.W.2d language he was committed Terrell, v. to which & Harvin h.); Atkins n. w. presented deed sale. The Proctor, San of the cоntract (Tex.Civ.App., 996 172 S.W.
391 appellant Appellee had to be tested on its own also contends that the evidence terms and according to whether it conclusively was also appellant establishes that has, good proper stipu- suit, was deed as prior bringing this treat- agreement. lated in the Voges property v. ed the See described in the written in- Krezdorn, (Tex.Civ.App., strument S.W.2d 937 above discussed as exclusively Antonio, 1939, h.), San n. w. a case own and his conduct has denied that specific performance pellee which was denied. had sort prop- of interest in the appellant erty; If default on the last and that appellant such actions day compliance precluded available ob- was and still is bringing from ligations instrument, under the he and maintaining specific per- written this suit for precluded per- enforcing specific apрellee from formance to pay make for said precluded property. formance. But if not so be- conclusively The evidence shows element, appellant Hamon, cause of the time appellant prior to the com- case, still failed to establish herein he has mencement of the trial of this started complied obligations advertising with such so as to sign- for sale. He property remedy specific perform- enforce the agreement multiple listing ed with a or- an during ganization At no time days prior ance. the trial of about to the appellant trial, by days cause did proper tender a deed which for 120 the realtors be- conveying property longing try the real involved or to sell organization to the could approval offer property. property evidence was advertised attorneys company. newspaper multiple the title for sale in the and a $68,-
listing showing price of sheet the sale 500.00 furnished to all realtors in Although the evidence shows that time of trial organization. At warranty deed, IS, 1969, dated multiple property subject still list- purporting convey the real obligated to ing appellant Hamon was wife, Mary William M. Allen and his agreement. honor the At the time of M. had been by appel executed considered that he trial testified wife, lant Hamon, Hamon and his Dorothy property and himself to be the owner of nevertheless, testify Hamon did not anyone he sell it to position to be in to then and there is no evidence that she would wanted to. have executed another conveying deed property to Allen Dr. alone. The A suit for homestead of the Hamons and really attempt
could not
this sort is
have been
case of
сonveyed
without
Dorothy
require
purchaser
to receive
signature
Hamon’s
duly acknowl
actually already
Hamon,
pay
property he
edged. Appellant
after Mrs. Allen
circumstances, appellant
refused to
owns. Under
execute the note and deed of
trust,
day
was on the witness
made no
appel-
effort
to offer
stand,
prop
expected to sell the
would have
proper general
lee a
warranty deed con
$68,500.00
brought
erty for
realtor
veying
only
the real
William
*8
purchaser.
him a
Allen,
M.
in
pro
accordance
the
with
purported
visions of the
written contract
Leuschner,
Kluck v.
he will treat breached and became and should held be ” * * * land, upon for the damages, sue or insist to be the owner of said thereof; but in or- specific performance perform- specific to be to der entitled “ ** * giving mortgage on all times ance he must be remain at ownership March over exercising 2d was able, perform his ready, willing right said land inconsistent with the part spe- right contract. specific performance, appar- and was may which cific is one acquiescence ent in the refusal of abandonment or abandoned and waived deed, pellant accept to be further may circumstances be inferred from the * * * bound the contract it there- parties showing an or the conduct immaterial, fore became at the time of performance. intention with inconsistent trial, mortgage whether said was then upon to insist intends Such vendor who thus satisfied or not. It was the act of all times performance must at specific exercising ownership, incon- con- a manner property with the in deal ownership respondent, that sistent with in vendee. sale thereof sistent with a remedy of destroyed right as his own property cannot treat
He ** specific performance inconsistent it in a with manner deal speculate on the and thus with such sale it in indicate The Court Kluck position and there- improvement of his necessary for the real title to upon specific performance insist reach of placed out involved by the vendee. of the contract 58 condition be so purchaser or that its C.J. (Tex. 909, 981; Whittenburg Groves v. impossible it changed as to make 901; Community of Com.App.) 208 S.W. provided by the purchaser to secure 255 S. Byrne (Tex.Com.App.) Priests v. concern- original contract. The court was Smith, 9 Tex. 601; v. De Cordova ownership W. any voluntary acts of with ed 136; 129, Abel v. Wem benefit, 58 Am.Dec. Van seller, solely part of the 697; 544, 146 mering, N.W. theory 33 S.D. inconsistent with which were Walrath, 551, N.E. 145 313 Ill. King v. in violation .specific performance, remedy. 94.” right to such Brewster, approval Kluck also cited the case with S.W.2d v. In Vandervoort Worth, 1962, Wemmering, Abel n. Van v. 33 S.D. Ft. (Tex.Civ.App., specific in (1914), court, N.W. 697 which the Su- in an action e.) r. preme Court of Dakota held that the South performance of a successfully pursue the stock, discussing vendor could not said: Kluck remedy perfomance, part and in Leuschner, Tex.Civ.App., “In Kluck v. said: refused, held it was writ 70 S.W.2d upon insist who intends that a vendor “ ** * resorting In harsh reme- all times must at dy specific performance, respond- ain manner deal that, ent, saying theory, to the court ven- to his thereof with the sale sistent said con- provisions virtue of the ; cannot treat dee that he tract, of a deed under the tender in- it in manner deal his own and thereof, the 1st terms sale.” such consistent with March, be- day right justice, the vendor court, deciding lands, re- And the but has
came the owner of said his suit for to maintain not entitled ownership, I was accept such fused to *9 account into performance, took specific arm of the law strong demand that of on the 7th taken a deposition that “In compel him become such owner he still plaintiff testified September, said contract. specifically performing of per of the stock theory cent upon proceeding owned Respondent 47½ points. appellant’s first nection with two Although in Vandervoort Feeds.” Green testimony deposition of of the Exclusion disposed corporation were of the assets by appellant was harmless appellee offered “tes- of, the vendor’s turned on the decision any point That is overruled. question in event. in the stock timony he still ‘owned’ specific per- brought he even after is af- of the trial court judgment The deal- “Plaintiff’s suit” and that formance firmed. stock, fail- defendant’s ings with the consistent with not perform, ure to were NYE, Justice. He treated to defendant. sale thereof respectfully I dissent. in a man- it and dealt with stock as his own to defendant.” with a sale ner inconsistent This is contract suit. The sued Dr. William M. Allen Hamon ap case it is established In this specific performance for of a written con- property as treated the pellant Hamon tract for sale home. incon in a manner and dealt with own however, jury; The trial was to a the court appellee or enforce sistent with sale judgment denying plaintiff rendered Ham- specific performance. ment of per- specific on’s motion for Allen’s granted formance defendant Although appellant does not assert submitting for without judgment, motion specific the sub point relating of error jury. the case to the ject, argues points under his one and questions two that the of waiver aban remedy specifiс performance is The spe appellant’s right donment of alleged purely equitable. purpose granting The performance cific raised primarily should be pleadings. are inclined to the view that We protection of the but appellee’s pleadings probably are sufficient re- equities of the should also be defendant respects special in such the absence of supreme at- spected object is the However, exceptions. appears it complete justice between tainment of event that the issue whether Specific Perform- parties. Tex.Jur.2d, as his own and dealt treated ance, 2 and 147. §§ it in sale a manner inconsistent with a question or not The whether appellees specific per so as to defeat ordi- granted specific performance will be objection and fоrmance was tried without narily sound discretion judicial rests by implied least consent. At the on the circumstances of the court based appellee appellant’s offered in evidence case; is no but there misunder- where newspaper copy advertisement of sale and a and no standing part on the vendee multiple listing of the concern information vendor, part misrepresentation involved, ap ing the counsel may granted as a pellant specifically stated that there was no should right. The defendant matter objection in each instance. Rules 67 Under rely default permitted to own Procedure, ap- and 90 Texas Rules of Civil Performance Specific a defense. 81 pellee’s comply T. failure with Rule 94 C.J.S. 63, p. 564. § R.C.P., controlling would not be and the properly trial court consider and de could specific per- purpose therefore of ap- light cide the issue waiver in to do the defendant compel is to formance pellee’s motion directed verdict: See plaintiff’s and the very thing duty Practice, McDonald, Texas Civil Sections rights require of him. 52 primary Tex.Jur. 5.18, 7.38 and cases therein cited. Performance, 2d, Specific § Appellant’s leading up to the execu- point third does not salient facts present error, un- particu question error or are reversible of the contract tion larly light agreement holdings our in con- The terms of questioned. *10 disputed by party. $6,000.00
are by plaintiff either There to be at carried contention that there evidence was interest until could sell his defendant 7% misrepresentation present of as a basis fraud home. perform to defendant’s refusal The defendant contract stated plaintiff agreed. contract he had The аs street, any to payment was assume the of through- ready willing perform was pro- paving sidewalk and assessments. specific performance out. suit for The paint vided for the the wood Therefore, was based on the contract. expense. plaintiff’s trim on house at details of the and of the facts contract property specified The contract leading up repudiation by defendant inspected; was to be termite and a war- case, important are this the decision of ranty by com- reputable issued termite be they any equitable as of show lack any pany. inspection dam- If the revealed legal re- justifying basis the defendant’s repaired at age to house it to be was de- fusal honor In his commitment. provided plaintiff’s expense. The contract termining whether money $1,000.00 should further that earnest will, in a granted should the cоurt deposited by with the title defendant measure, large contract as of judge the company if the was contract Tex.Jur.2d, of its execution. 52 placed title com- in the hands Specific Performance, 20.§ December, 1968, pany by day the 19th pur-
The defendant was desirous null and void. the contract would be chasing He a new home on Ocean Drive. the 18th The contract was executed on secured of a aid the services realtor December, was delivered day 1968 and him this The endeavor. on the company the title received never the owner of such a home but had $1,000.00 payment was escrow 19th. The Defendant’s offered his home for sale. by the paid the defendant and received realtor in an effort contacted stated: company. title The contract property for defendant. purchase “ * * * negotiations After а series of fail Should Purchaser parties, agreement purchase for the herein this to consummate reach- plaintiff’s and sale of reason, title specified (except (1) ex- writing ed which was reduced defects, that Pur- (2) or in the event parties. agreement ecuted both This by reason perform chaser is unable to by the printed form furnished above inability obtain the of his in all filled out company. It was said financing, in either event named for title providing addition to details. In in full money will be refunded earnest insurance, otherwise, realtor’s shall commission Purchaser), to the Seller instructions, contained the the contract deposit said cash be entitled to receive the sale customary provisions for usual and liquidated for the breach damages pro- Special purchase estate. option of real en- at- may or he " * * by the visions not covered hereof. force typed in. supplied) (emphasis the above to the final execution of Prior contract described made lot, block, defendant and common contract the subdivision plaintiff’s prop- preparations street to be address. they applica- made improve- erty. veyed On December included land all Savings Association ments, specified items with the First tion as well certain mortgage purchase price Corpus Christi a conventional property. The personal $48,300.00 for a in the $63,500.00, up payment loan made amount interest twenty-five years with $9,200.00 cash, 25-year securing term applica- of their part As a $48,300.00 balance of the rate of loan of and the 7%. 7% *11 tion, company the personal the defendant and his described title check for wife $15,335.88 plaintiff’s property that with written notation madе price on they proposed purchase, specified and the check: “Bal. pur- price. applica- closing The loan & costs in connection exact sales financial chase of He then tion contained the defendant’s 3628 Ocean Drive.” instructed agreement pay company statement and his the title to call by sign Association wife and tell her to come in and charges incurred papers. The record does making the loan. any knowledge had show that The trial, defendant admitted at the that made and his the defendant point he considered he had made a How- joint application for such loan. deal plaintiff. with the purpose That his ever, approved, the loan when for executing papers towas close the note, in the amount deed of trust and check real However, estatе transaction. the facts title $48,300.00 to the delivered are, as later developed, that later that same directing the company instructions day (Friday, January 17) the defendant signature company joint title secure had change in heart because his wife was wife, on the note of the defendant and his worried that if happened something company The title deed of trust. him she would be unable to carry out the plaintiff and up then drew a deed from mortgage. Whereupon, stop- the defendant defendant and grantors wife as ped payment on the check repudiated grantees. They prepared the his wife as the contract. trust, statement closing deed of note and for the defendant his wife to execute. The defendant raises ten to sep- fifteen The and his wife went arate contentions the alternative as his company They duly first. executed reason for not going through with the acknowledgments separate their contract in question. Two of these con- notary. company’s the title were taken tentions are the given basis by majority of our Court for affirming the trial court’s company The title then notified the de- judgment. The defendant has from the all papers pre- fendant that had been outset contended defense, as his basic pared ready and that the transaction was the contract was too indefinite and un- Thursday, be closed. January On certain to authorize of specific 1969, the defendant went to the title com- performance; citing Bryant Clark, v.
pany inspected papers, including Tex. 358 S.W.2d 614 (Tex.Sup.1962). the warranty by plaintiff deed executed As a corollary argument, to this de- wife. from the title Witnesses plead fendant his primary contention company testified thаt the defendant made that, when he received the contract inquiries a number of relative to question he himself modified the contract costs, etc., objections but made no to the by inserting “7%”, type as the of loan substance or form of the transaction. The to be obtained and this was accepted never record further shows that defendant had by plaintiff. pleadings His stated: benefit of counsel even discussed attorney Thursday transaction with his “At the time that ‘original typed’ contract Friday he papers before executed all the by Defendant, modified it had al- Friday, January ready In addition to been executed Plaintiff. note, 25-year, signing the promissory modification Defendant of the terms 7% acknowledged executed and before of the proposed contract thus offered notary, by Plaintiff, the deed of trust. He operated rejеction as a approved company’s closing the title state- such contract and as a counter offer. ment and ratified its proposed disburse- Such counter offer accepted was not Finally, gave ment of funds. the defendant Plaintiff long expired.” and has argues testimony Defendant insertion prior just had signed the con- the defendant’s wife wanted “7%” *12 constituted, law, tract a of a as matter to prepared execute the deed as on Thurs- rejection plaintiff’s day of offer and the in- but Friday. had a of change heart strument, change, after the new warranty became a The deed as tendered the plaintiff satisfactory offer defendant which was never ac- Dr. with Allen cepted. every The the argues respect defendant in on the date that it was provision indefinite, is too uncertain him tendered to and he all the signed 7% vaguе and to be enforceable. papers. undisputed is the It reason being the wife’s the name included in plaintiff The oral during argu- stated lending instruments was because of the ment, contradiction, without that the trial company’s to instructions the com- upon court its based the reason- pany. upon This the fact that was based ing Supreme Bryant of of the Court case a joint the defendant and his made wife Clark, supra. v. The defendant devotes application for loan officer loan. The greater portion propo- his brief of lending he agency of the testified that However, Bryant sition. case is not the the assumed that defendant and wife applicable the fact situation before us. the in names. This wanted their subject definite The contract was and cer- logical assumption since the de- price $63,- tain and for a sales of called joint application the fendant made the 500.00. It true that the contract is he The loan officer testified that loan. obtaining upon conditioned the defendant loan Dr. given have the same would 25-year $48,- loan in the amount 7% included; being Allen Allen without Mrs. consummated; However, 300.00. this was they her that as far as were concerned the terms of which were worked out necessary. noAt time signature was not lending agency. defendant the All request that did the defendant ever particulars finally reduced individually or that deed be made him writing accepted by signed defend- At no Allen’s name be eliminated. The ant. defendant and his wife made commitment agree did he to honor his time application for the loan. agreement. Had repudiated, after he proved, accepted by the defendant at only his name and papers included the time he note and deed closing, it is date of not his wife’s on the trust. defendant rea- admitted that the trans- that the entire reasonable assume son he inserted the in the 7% have consummated would been action contract was “this because was what we executed as the defendant had agreed upon.” It did not amount to it not been Had everything at time. a rejection plaintiff’s offer. causing action own defendant’s in such papers to drawn (indirectly) the The defendant contends that he ex- is name, this way include his wife’s as to carrying cused from out terms of the been not have all would probability suit in contract because failed justifi- necessary. offers The defendant a proper tender at the of closing. deed agreed. perform as refusal to for his cation He contends that the deed now has to be tested as to whether or not a good it was a tender is that proper rule specified by general deed as contract com- in substantial parties.
between the must be He contends that contract. the terms pliance proper not tender a However, variance deed or immaterial change deed of trust note the terms performance, so as to wife, eliminate the defendant’s offered respect of as to matters He contends that even if the contract excused. protect can equity proper was able to tender a a court form which preclude not decree, deed, will its plaintiff’s he did prove defendant 52 performance. sign would second award time. Performance, may Specific performance ordered Specific Tex.Jur.2d, § though ability even has not a strict so, there been readiness p. Even 589. compliance cir- legal may some terms perform be sufficient plaintiff, has tender if he sub- formal without a cumstances stantially performed party nonperform- and the where performance, offer of repudiated go ance the con- does essence of perform, has refused perform- Tex.Jur.2d, Specific demand tract. Perform- has failed to ance, 60, p. Even an error Tex.Jur.2d, Performance. where Specific § ance. in a written is a result 52, p. 588. § *13 parties mutual mistake of the or of a contract suit on executed This a is part plaintiff on the of the mistake repudiated it. after the defendant defendant, part fraud on the necessary plaintiff for the therefore not may court the same suit perform proper to the to tender a specific performance contract and decree re- suit, before where thе defendant Specific of it Tex.Jur.2d, reformed. 52 as event, openly or has accept fused to Performance, 156, p. A contract 701. § contract, or has declared repudiated the sufficiently is specifically certain to be perform. not to Under these intention if it be enforced can made certain plain- if it is circumstances sufficient this be a reformation. If true as to perform and ready willing tiff is tract, equity it a court follows that can 61, p. Tex.Jur.2d, offers to do so. 52 § do the same the tendered deed. 600 and see 120. § here, Where for a sale The evidence is undisputed is in parties, land plaintiff writing, both performed had all of the terms fair, is certain and adequate for an the contract ready, willing and was consideration, capable being per- and is able specifically perform formed without undue hardship, or where time of plaintiff trial. The testified justified, refusal such relief is not it he painted had trim the house at is as much a matter course for court cost of He testified he $250.00. equity specific performance decree had his property inspected by reputable it is court to give damages of law company. termite He received a letter Spe- for a breach of from contract. the termite company that the C.J.S. cific p. Performance approved. provided § possession of the property February plain- There was no evidence that the 1969, and in this respect plaintiff testified tiff perform was unable to the contract that he had made arrangements as written. There was no competent evi- renting of already another home dence that waived or abandoned moved some and tools. suit for as con- He rеady testified that he was to deliver prosecution tended. The of the suit possession agreed. defendant trial appeal and the refutes this contention. The defendant testified all There pleadings were no or offer de- necessary instruments to close the trans- pleading fendant amend his at the close action were himby executed before of the evidence to raise this At defense. stopped payment on his check. He admit- issue, only jury most would as the it ted it that had ob- been for his wife’s evidence was not conclusive. jection, he gone through would have transaction. re- is not The defendant has made no cross as- quired guess wrong what is Therefore, signments judg- error. form of a deed where the defendant misled ment the trial should reversed court effect, and did not state objection perform. offer to plaintiff. and rendered for