16 S.W. 934 | Tex. | 1891
Appellant assigns error follows:
"1. The court erred in failing and refusing to allow plaintiff damages for defendants breach of contract.
"2. The court erred in holding that there were no allegations in plaintiff's petition that would entitle plaintiff to prove any damages for said breach.
"3. The court erred in assuming that the breach of the contract occurred at any other time than that alleged in plaintiff's petition, and that said breach not a continuing breach, and that, there was no final breach on September 18, 1888, when plaintiff made final demand and defendant made final default."
There is nothing in the record to show upon what ground the court refused damages for the breach of the alleged contract other than the amount plaintiff had paid out for taxes on the land. If the conclusion of the court should be sustained upon my ground the judgment should stand. Assuming that the instrument offered in evidence was an agreement to convey the land, it should be held that it is such an agreement as could not be enforced in the courts. If it was intended to bind defendant it was contrary to public policy. It proposed to "give plaintiff the first right of purchase of the State school sections in Wichita County filed upon in the name of H.D. Collins as soon as administration is had upon said estate, said Specht to pay for said lands at the *215 rate of 50 cents per acre," etc. H.D. Collins was the wife of defendant. She had been dead one and one-half years at the time the alleged contract was made. It does not appear whether there were heirs to her estate other than her surviving husband, or whether there were debts against her estate. There is nothing alleged in the petition or appearing in evidence to show that he (the defendant) could bind the estate by the supposed contract. It does appear that he was not to act in the premises until after administration on the estate. He had no power, in the absence of facts that would give him sole control of the estate, to make a contract that would bind the estate and bind the court under whose orders the estate should be administered. He could not stipulate the terms of it sale to be made under the orders of the Probate Court. He could not so contract for the court's action to grant an order of sale or to approve of it if it should be made according to the terms of his proposition, even if he should himself become the administrator. The law fixes the manner of administration, the conditions authorizing sales of land; and when the sale is permitted by the law and ordered by the court the sale and its terms are subject to the approval or disapproval of the court. All this process would necessarily have to be followed to effect a valid sale under administration. Defendant could not contract for other methods of selling the estate unknown to the law and in violation of it. If the alleged contract means anything it means that nothing can be done in performance of the same until after administration. Defendant could not pledge the course of administration and the orders of the court. Plaintiff knew this, and both the parties are presumed to now that public policy and the policy of the law were opposed to such a contract. The tendency of the contract was illegal, and it contemplated a violation of, if not a fraud upon, the estate and the court. Bish. on Con., secs. 473-477.
The petition upon its face may have been good, damages may have been proved as a result of the breach, the plaintiff might have realized considerable profit upon the enforcement of the contract or the voluntary performance of it by the defendant, but there were sufficient reasons to justify the court in refusing damages upon the ground that the contract was contrary to public policy, and therefore his judgment ought to be affirmed.
Affirmed.
Adopted May 26, 1891. *216
