Perkins v. Harper, 13539

• Decision Date: 25 November 1959
• Docket Number: No. 13539,13539
• Citation: 330 S.W.2d 241
• Parties: Tilson D. PERKINS et al., Appellants, v. Winnie Davis HARPER, Appellee.
• Court: Texas Court of Appeals

Page 241

330 S.W.2d 241

Tilson D. PERKINS et al., Appellants, v. Winnie Davis HARPER, Appellee.

No. 13539.

Court of Civil Appeals of Texas, San Antonio.

Nov. 25, 1959.

Rehearing Denied Dec. 23, 1959.

Ronald Smallwood, San Antonio, for appellants.

Oliver & Oliver, San Antonio, for appellee.

BARROW, Justice.

This is a suit by Winnie Davis Harper against Tilson D. Perkins and his wife Catherine Perkins (now Catherine Brethower), to cancel and hold for naught a contract of sale of parts of two lots and improvements thereon in North Alamo Heights, Bexar County, Texas, alleging nonpayment of an installment. Said suit was filed on December 11, 1953. The defendants filed their original answer, which is not in the record in this cause, on January 4, 1954. Thereafter, on October 8, 1956, the defendants filed their first amended answer and cross-action, alleging that defendants were not in default, that they had made timely tender of the payment alleged to have been in default in plaintiff's petition, and sought to rescind the contract and recover the price paid, as well as the value and cost of improvements made by them on said property. On the 12th day of November, 1958, the trial court sustained plaintiff's plea in abatement and entered an interlocutory order dismissing defendants' cross-action. The defendants excepted thereto and gave notice of appeal. Thereafter, on June 8, 1959, at the request of plaintiff, the suit was dismissed with prejudice. To which action the defendants excepted and gave notice of appeal, and have duly prosecuted their appeal.

The contract of sale was dated February 10, 1953, whereby defendants purchased said real estate for the price of $13,500, $1,500 of which was paid in cash. The balance of the purchase money the defendants agreed to pay at the rate of $150 per month. The contract provided, among other things, that in case the purchasers failed to make the monthly payments as provided in the contract as the same accrued, the seller might at her option declare the contract null and void and of no further force and effect, in which event the buyer agreed to deliver possession of said property to the seller.

By supplemental contract, duly executed, it was agreed that purchasers should have until the 10th day of December, 1953, to pay the December 1, 1953, installment.

Appellants predicate this appeal upon one point of error:

'The error of the trial court in dismissing the cross-action of appellants, they having alleged their performance of the written sale contract according to its terms, and the breach and repudiation of such contract by appellee by instituting suit to rescind the same and forcibly dispossessing appellants from such premises under a writ of sequestration, thus wrongfully denying appellants a recovery of the purchase price paid by them as well as the cost and value of improvements made by them while in possession.'

Appellants' cross-action is based on the theory that appellee wrongfully filed suit and dispossessed them at a time when they were not in default, and that by so doing appellee rescinded the contract of sale. That as a result of such rescission they are entitled to recover the money they have paid on the contract as well as the cost and value of the improvements placed thereon, which recovery they sought by their cross-action.

Appellee's original petition, alleging a breach of the contract by appellants in failing to make the December 1, 1953, payment by December 10, 1953, was filed December 11, 1953. In that petition appellee sought a cancellation of the contract on account of said alleged breach. Appellants answered on January 4, 1954, denying any...