122 S.W.2d 718 | Tex. App. | 1938
Lead Opinion
Appellees have filed motion to strike the brief of appellant because it was filed late. The brief was filed October 14, 1938. It should have been filed seven days earlier. Appellees were entitled to have the period elapsing between October 7th and October 29th in which to study the brief of appellant and make reply thereto (Rule 36 governing Courts of Civil Appeals). This is a valuable right and were the circumstances such that it was seriously impaired by appellant's tardiness, we should unhesitatingly strike the latter's brief. However, we can save appellees' rights without doing this. Since the members of the Court must be in San Antonio for several days beginning November 7, 1938, to hear oral argument in transferred cases, it is apparent that the record cannot be considered until November 14th. The motion to strike is, therefore, overruled; and the Court of its own motion hereby grants appellees until November 12, 1938 to file their reply brief. In the meantime the case will be submitted on November 3, 1938 and oral argument heard on that day unless appellees file a motion asking for postponement to a later day.
Addendum
As collateral security for the performance of the agreement of "Assignees" to pay $11,000 as aforesaid, "Assignees" deposited in escrow with said bank the promissory note of Walter H. Nelson for $12,500, payable to the order of appellant and certain described warehouse certificates, with the agreement that when "Assignees" should have placed in said bank within the time provided the sum of $11,000 in cash or purchase orders, then said collateral should be returned to appellant; but that in the event the "Assignees" should not have placed in said bank "on or before March 5, 1937 the entire purchase price of $11,000 in money or purchase certificates * * * and should not have extended this agreement by payment on or before March 5, 1937 of $1200, the collateral security should become the property of `Lessee' as liquidated damages, and any money or purchase orders theretofore deposited in the bank should be returned to `Assignees,' their heirs or assigns," and "Lessee" should have returned to him the assignments of leases and "shall be at no further liability hereunder to the `Assignee.'" It was further provided that in the event "Assignees" extended the time of payment by making the payment of $1200 as provided, the "Lessee" should proceed in due course for the collection of said note for $12,500, and when it was collected on or before March 25, 1937 and amounted to more than $11,000, "or such an amount as added to any *721 moneys and/or purchase orders so deposited in said bank shall amount to as much as $11,000, such part of the proceeds of said note as are necessary therefor to make $11,000 shall be paid to the lessee, and the balance, if any, shall be paid to said H. C. Ratcliffe"; that should the note not have been collected in whole or in part sufficient for said purposes, the amount collected should be paid to "Lessee" as liquidated damages for the breach of the agreement, and the note with the amounts of collections credited thereon should be assigned to Ratcliffe without recourse on "Lessee," and the "Assignees" should have returned to them any and all money or purchase orders then on deposit in the bank, and the assignments of leases deposited under the agreement should be returned to "Lessee," and "Lessee" should be under no further liability to "Assignees." It was also agreed that should "Assignees" fail to meet their obligations with respect to depositing the purchase price in the bank the note and other collateral should become the property of "Lessee" as liquidated damages and any moneys or purchase orders deposited in the bank by "Assignees" should be returned to them.
Van McPhail did not join as party plaintiff but was, as stated, joined as a party defendant. Plaintiff alleged the value of the leases to be one million dollars. As to other defendants than Mahres, McPhail and Slack it was alleged that title claimed by them by virtue of conveyances from Mahres was subordinate to the claim of plaintiff.
Each of defendants claiming under Mahres pleaded not guilty and by cross-action and trespass to try title sought to recover title and possession of his or its respective estates.
Arthur G. Miller intervened claiming one-half interest with Ratcliffe in the contract. He did not appear at the trial, however. McPhail, Slack and Mahres pleaded general exceptions and general denial. The case was tried to a jury. At the close of the evidence the court instructed a verdict in favor of all defendants except Arthur G. Miller and A. Theodore. As to the former judgment was rendered in favor of all defendants and of plaintiff. The suit was dismissed as to the latter. Judgment was rendered that plaintiff take nothing against any of the defendants not dismissed from the suit, except Miller, and that those claiming as assignees of leases executed by Mahres recover under their cross-actions. Plaintiff appealed.
"Time may be essential. It is so whenever the intention of the parties is clear that the performance of its terms shall be accomplished exactly at the stipulated day. The intention must then govern. A delay cannot be excused. A performance at the time is essential; any default will defeat the right to a specific enforcement. Time material: Although time is not ordinarily essential, yet it is, as a general rule, material. In order that a default may not defeat a party's remedy, the delay which occasioned it must be explained and accounted for. The doctrine is fundamental that a *722 party seeking the remedy of specific performance, and also the party who desires to maintain an objection founded upon the other's laches, must show himself to have been `ready, desirous, prompt, and eager.'" Sec. 1408, 3d Ed., Pom.Eq.Jur.
These principles have been long recognized and respected by the Courts of Texas. See DeCordova v. Smith's Adm'x,
Plaintiff produced no evidence of facts sufficient to excuse his non-performance of his obligations and authorize the grant of the relief that he seeks. He sought to excuse performance by showing that abstracts of title and certain leases in blank had not been deposited in the bank. His contract called for such abstracts as Mahres "had." It was not shown that Mahres had in his possession or under his control any abstracts of title. It appears that his attorneys, when he contracted for his leasehold rights, examined the abstracts of the owners of the soil. Nor does it appear that there was any real demand upon the part of plaintiff for abstracts. He testified merely that Mahres or his representatives were to inform him when the abstracts were ready. He did not communicate either with defendant Mahres or his attorneys further. He never inquired at the bank as to whether the abstracts or the other papers had been deposited there. In fact he indicated to defendant and his attorneys that it was satisfactory that they be retained in the possession of the attorneys for a time. It is not shown that the failure to deposit them interfered in any manner with his plans with respect to disposing of leasehold interests or otherwise acquiring the funds with which to make the required payments.
It is to be noted that there was no contract obligation upon the part of plaintiff to conclude the purchase. He acquired the right to make the purchase by entering into the contract and depositing the described collateral to secure the performance of his obligation, with the understanding that upon his failure to perform, the collateral so deposited should become the property of Mahres as liquidated damages. It cannot be said as a matter of law that the value of the securities so deposited was so great that this stipulation as to liquidated damages was unreasonable. In fact it is not certain that the collateral possessed substantial value. Nelson executed the note and transmitted it to Ratcliffe that it might be discounted for cash by or through Ratcliffe. The letter of transmission did not authorize it to be deposited as collateral to secure the payment of Ratcliffe's obligation, and when the note was forwarded through banking channels for collection it was permitted to go to protest. The value, if any, of the warehouse certificates was not shown. Just what damages, if any, would have accrued to Mahres by reason of the refusal or neglect of plaintiff to perform a contract of purchase with respect to property of the character involved would indeed be difficult to estimate. The contract was explicit in providing that in the event Ratcliffe failed to make the payments provided for within the specified time, the only recourse of Mahres was against said note for $12,500 and said certificates. He could not compel Ratcliffe to complete the purchase and pay the agreed price. Indeed there was an express obligation to limit his remedy to the forfeiture of the collateral; and to refund to Ratcliffe any cash the latter might have deposited and return to him any purchase orders he might have left in the depository. Since, then, there was no mutuality of remedy and this lack of mutuality was not supplied by a performance of those acts upon the part of plaintiff which were conditions precedent to his right to a conveyance, no right to the remedy of specific performance arose. Goodwin, Inc., v. Stuart,
Plaintiff assigns as error the entry of judgment in favor of claimants of title under Mahres upon their cross-action in trespass to try title, asserting that these various defendants did not prove that they were innocent purchasers for value without notice of plaintiff's alleged rights. This objection to the court's action is not sound. The contract between plaintiff and McPhail on the one hand and Mahres on the other was executed January 30, 1937. Plaintiff having failed to make deposit of $11,000 or the alternative payment of $1200 on or before March 5, 1937, Mahres gave notice on March 12, 1937 of the termination of plaintiff's right to buy under the contract. The notice was given to plaintiff's associate, McPhail. Plaintiff admits receiving this notice March 16, 1937. He recorded his contract April 19, 1937, more than one month after receiving said notice. Part of the title acquired under Mahres *723
was conveyed by him prior to the recording of the contract. However, as to all the defendants claiming under assignments of leases from Mahres and the attacks made upon the validity of their titles by plaintiff, it must be said that the contentions of appellant are without merit. Mahres was shown to be the common source of title. If appellant had any claim it was of an equitable nature. The claims of these various defendants were based upon conveyances of legal title. The burden was therefore upon appellant to show that the claimants were not innocent purchasers for value and without notice. This he did not do. Roberts v. Armstrong, Tex.Com.App., 231 S.W. 371; Knox v. Brown, Tex.Com.App., 277 S.W. 91; Slaughter v. Coke County,
We find no reversible error in the record. The judgment of the trial court is affirmed.