Leonard v. Kendall

• Decision Date: 02 December 1916
• Docket Number: (No. 7639.)
• Parties: LEONARD v. KENDALL et al.
• Court: Texas Court of Appeals

Page 786

190 S.W. 786

LEONARD v. KENDALL et al.

(No. 7639.)

Court of Civil Appeals of Texas. Dallas.

December 2, 1916.

Rehearing Denied January 6, 1917.

Appeal from District Court, Dallas County; Kenneth Force, Judge.

Action by J. S. Kendall, Jr., and others against Mrs. M. L. Leonard. Judgment for plaintiffs, and defendant appeals. Affirmed.

W. H. Atwell, of Dallas, for appellant. Dabney & Townsend, of Dallas, for appellees.

RASBURY, J.

Appellees in the court below sued appellant for $2,500, alleged to be due appellees for services rendered appellant in the sale of certain real estate. Appellant's defense, necessary to detail, was that the action was barred by the four-year statute of limitation, and that appellees were not entitled to recover because of fraud, in that the appellee Kendall, in whom she reposed confidence, deceived her into believing that her property was of the value of $100,000, while in truth its value was $150,000, thereby enabling said Kendall to buy same himself while pretending to represent another and also collect for his said firm a commission. There was trial, and at conclusion of the evidence the court directed peremptory verdict for appellees, which was returned; and upon which judgment was rendered accordingly for said sum, with accrued interest. From such order this appeal is taken.

The substance of the facts essential to a disposition of the appeal are these: On November 12, 1909, appellant owned an improved lot in the city of Dallas. On that day appellant and appellee J. S. Kendall, Jr., agreed in writing that appellant would sell and said appellee would purchase the property described for $100,000, of which sum $1,000 was paid when the contract was executed. The sale was for part cash and part on credit, the cash payment to be $25,000, and the contract set out in detail the amount of cash and the notes to be given in evidence of the unpaid part and how same was to be secured. The contract also contained recitations with reference to the title and what the abstract delineating same should disclose, and provided that deeds, etc., consummating the sale should be executed within 30 days, except that in event the abstract to be furnished by appellant should fail to disclose good title appellant was entitled to an additional 30 days in which to perfect same, failing in which the contract was to be void and the $1,000 paid by appellee Kendall to be repaid him. The contract was executed in duplicate, one copy being retained by Kendall and the other by appellant, the $1,000 being delivered to J. W. Thompson, appellant's attorney. The contract also provided that upon completion of the sale appellant would pay Hann & Kendall $2,500 commissions for their services in negotiating the sale. On the day of the execution of the contract Kendall transferred same to S. W. King, Jr., in consideration of $1,000; Kendall acknowledging receipt of the money and King accepting the transfer by written addenda upon the contract. On the following day, or November 13, 1909, appellant and S. W. King, Jr., to whom appellee Kendall had transferred the contract, addressed and jointly signed a letter to American Exchange National Bank, inclosing a deed from appellant to King for the lot which we have described, also check for $24,000, the balance on the agreed cash payment, six notes representing the deferred payments and a deed of trust, all in conformity with the preliminary contract, all being properly signed and acknowledged and accompanied by the explanation that it was agreed between appellant and King that the bank should hold all in escrow under the provisions of the preliminary contract with Kendall until examination and approval of the title, at which time the deed was to be delivered to King, $24,000 and the notes and deed of trust to appellant, and the other provisions of the contract assigned to King to be observed. Upon the letter was an addenda signed by appellant directing the bank to pay Hann & Kendall $2,500 commissions out of the cash deposited with it upon the consummation of the transaction. By successive agreements, taking the form of joint letters addressed to the bank signed by appellant and King and transmitted to the bank through the agency of Hann & Kendall, it was agreed that appellant should have 30 days from January 12, 1910, or until February 12, 1910, in which to perfect her title to the property so sold. The bank assumed the obligation contained in the several agreements. Mr. H. H. Smith, assistant cashier of the American National Exchange Bank, had charge of the transactions we have detailed for the bank. He testified that appellant, subsequent to the transactions we have detailed, notified the bank not to deliver the deed, etc. Also that King and his attorney on February 2, 1910, demanded possession of the deed, which was refused, and that he had then been notified by appellant not to deliver them, and that while his memory for dates was poor he fixed February 2, 1910, as the day King called by the date of a letter from the bank's attorney whom it had consulted concerning the duty of the bank, although he says the date could have been as late as February 9, 1910. However, it does appear from other evidence that King sued appellant for specific performance of the contract to convey on February 3, 1910. After the termination of the suit for specific performance (Leonard v. King et al., 164 S. W. 1110), which sustained King's right to a conveyance of the property, the witness Smith, who in the meanwhile had been in said proceeding appointed receiver of the property, delivered the deed to King and the money, notes, and deed of trust to appellant. He did not pay Hann & Kendall the $2,500 commissions. It appears from the testimony of Townsend, who was King's attorney, that when he and King called upon Smith for the papers he did inform them that appellant had instructed him not to deliver same, but that Smith did not advise them that appellant intended to repudiate her agreement to convey. Townsend also testified that his purpose in filing suit on February 3, 1910, was to have it pending when the contract expired on February 12, 1910. The instant suit was commenced February 9, 1914.

Appellant testified that appellee Kendall made her successive offers for her property, beginning with an initial offer of $50,000 and ending with a final offer of $100,000 which she accepted, after conferring with her attorney, J. W. Thompson, and being advised by him to do so, and thereafter signed the contract which we have detailed. She further testified when it was proposed to make the contract of sale run in favor of Kendall she inquired why and the explanation was made that the purchaser King was out of town and that it could in no event make any difference to her as long as she received the $100,000. She acquiesced and the contract was signed. She also testified that she would not have signed the contract or agreed to pay Hann & Kendall $2,500 commission had she known she was selling to Kendall, as she believed all the time that the sale was to be to King. No evidence, however, was introduced relating to the...