225 S.W.2d 206 | Tex. App. | 1949
This is an appeal from judgment of ¿ district court of Dallas County sustaining appellees’ plea to the jurisdiction of the court and dismissing appellants’ suit. Since evidence is not before us, we are limited in our consideration to the pertinent allegations contained in appellants’ petition. It makes no difference what the evidence may develop on trial; it is the petition which must be looked to on the question of jurisdiction. The potential jurisdiction of the court must be affirmatively shown by sufficient allegations over the subject matter. The district court has original jurisdiction in suits where the matter in controversy shall be valued at, or amount to, $500 exclusive of interest, and of “suits for the trial of title to land and for the enforcement of liens thereon”; art. 5, sec. 8, Texas Constitution, Vernon’s Ann.Civ. St.; art. 1906, R.S.
Appellants as plaintiffs alleged that on March 20, 1949 they entered into a written
It will be seen from plaintiffs’ petition that the suit presents an action for cancellation of an alleged contract for the sale of land and for refund of the $400 earnest money on grounds other-than “title defects”; hence under the express terms of the contract, the $400. involved is, at the option of the seller, “liquidated damages” for breach of the contract. There is no allegation that the sellers (appellees) have exercised or threatened -to exercise the option to enforce specific performance of the contract, as shall affect title to. the land therein described; or that .the title to the land is in any way involved';, or that any lien thereon is sought to. be enforced. If, forsooth, plaintiffs are entitled to a cancellation of the contract for the reasons alleged, their only right of recovery is judgment for the $400. The contract comes incidentally into the suit as evi-dentiary of appellants’ right to recover the $400. In protection of plaintiffs’ right to the $400, the court was not required to enter any order involving cancellation of the contract. Clearly appellants’ right to the $400 would, fully protect them by judgment as against the enforcement of the contract. Then, on the other hand, appellants having alleged that they had demanded payment of the $400 and that appellees (sellers) had refused such payment, tantamount to alleging that appellees had elected not to exercise their option to enforce specific performance. The liquidated damage clause in the contract and appellees’ election" to 'hold, against appellants’ demand, the earnest money as damages effectively limits appellants’ suit to the $400. Manifestly, appellants could riot recover the $400 without the contract' being canceled. Then, too,' appellees, having elected the $400 as liquidated damages; are precluded frorri specific performance.
The court, having the power to determine appellants’' right to recover the $400, must necessarily determine that' right on the insufficiency of description of the land as.related" in the contract. In so'doing, the contract is shorn of all efficacy. ’
The judgment of the court below is affirmed.