Pollack v. Pollack

Decision Date10 June 1931
Docket NumberNo. 1471-5709.,1471-5709.
PartiesPOLLACK v. POLLACK.
CourtTexas Supreme Court

Harry P. Lawther, of Dallas, for plaintiff in error.

Coke & Coke and Thomas G. Murnane, all of Dallas, for defendant in error.

CRITZ, J.

The opinion of the Court of Civil Appeals is reported at 23 S.W.(2d) 890. In the interest of brevity, we refer to and adopt the statement made by that court. However, in order that this opinion be as nearly complete as possible, we make the following statement of the nature and result of the suit:

It seems that on and prior to January 21, 1911, Henry and Charles Pollack, who are brothers, were partners in a trunk factory and certain other properties. On said date they entered into the following contract in writing:

"`Whereas, Henry Pollack and Charles Pollack, of the County and State aforesaid, are jointly seized and possessed of certain property, both real and personal, in the City and County of Dallas, and State of Texas, and are desirous of adjusting and separating their said interests so that the title to said property may be held in severalty by the said Henry Pollack.

"`Now, therefore, this agreement entered into this the twenty first day of January, 1911, between the said Henry Pollack, of the one part, and Charles Pollack, of the other part, witnesseth:

"`That the said Henry Pollack, for himself and his heirs, for the consideration hereinafter named, doth covenant and agree with the said Charles Pollack that he, the said Henry Pollack, during his natural life, shall and will pay to the said Charles Pollack, for the period of the said Charles Pollack's natural life, the sum of Five Thousand ($5,000.00) Dollars yearly; said sum to be paid to him in monthly payments of $416.66 2/3 ; the first payment to be made to him on the day of the date hereof, and the remainder on the first of each and every month hereafter during the life of the said Charles Pollack.

"`It is expressly understood and agreed that upon the death of the said Charles Pollack, the said Henry Pollack surviving, the obligation herein assumed on the part of the said Henry Pollack is to terminate and the said payments are to cease and the heirs, devisees, legatees or personal representatives of the said Charles Pollack are to have no claim against the said Henry Pollack, or upon his property or estate. In the event the said Henry Pollack should die before the death of the said Charles Pollack, the said payments of $416.66 2/3 each month are to cease, and the said Henry Pollack, for himself and his heirs, covenants and agrees with the said Charles Pollack that in lieu thereof, he, the said Henry Pollack, will bequeath and devise free of all claims and incumbrances to the said Charles Pollack property, real or personal or both, to the value of One Hundred Thousand ($100,000.00) Dollars to take effect upon the death of the said Henry Pollack, and to be valued at its market value as of the date of the death of the said Henry Pollack, and if the said Charles Pollack and the personal representatives or devisees and legatees of the said Henry Pollack cannot agree upon a division of the estate of the said Henry Pollack so that the property to the value of $100,000.00 may be set aside in kind and in severalty to the said Charles Pollack, then so much of the real or personal property belonging to the estate of Henry Pollack is to be sold as that the proceeds or a portion thereof will be sufficient, either of itself or together with the monies and personal property which the said Charles Pollack is willing to accept to make up said value of $100,000.00.

"`And the said Charles Pollack, in consideration of the covenants and agreements hereinbefore contained on the part of the said Henry Pollack, and which on his part are to be done and performed, doth hereby bargain, sell, transfer and convey to the said Henry Pollack all of his right, title and interest in and to all of the property, both real and personal, wherever situated, in which the said Charles Pollack and Henry Pollack are now jointly interested, embracing all the said Charles Pollack's interest in the Henry Pollack Trunk Company, the Harris Millinery Company, The Donovan Undertaking Company, and all real estate now and jointly owned by the said Henry and Charles Pollack.'"

For convenience we shall hereafter refer to Henry Pollack as Henry and to Charles Pollack as Charles.

The record shows that Henry paid the monthly payments of $416.66 2/3 as they became due to Charles from the time the contract was made, up to January 1, 1912, when he reduced such payments to very small sums. It seems that Charles made no demand for full payment during this time. In 1919 Henry began paying Charles $250 per month and kept this up until May, 1926, when he ceased paying the $250 per month because Charles refused to accept such monthly payments in full satisfaction of the amount due on the contract. Henry then wholly repudiated the contract, and the suit followed. The pleadings of both parties are very voluminous, but we hold them sufficient to raise the issues discussed by us. We here pause to remark that the jury, in response to appropriate issues, found that the $250 monthly payments ceased in May, 1926, and that no new agreement was made between Henry and Charles by the terms of which the original contract was altered. The verdict contained other findings not necessary to mention here.

The trial court rendered judgment denying Charles any interest in the real and personal property described in his petition, but gave him judgment against Henry for $58,601.22, being the unpaid balance due upon the contract from January 1, 1912, to date of judgment; also for $31,177.31, accrued interest on such above sum; also Charles was awarded judgment against Henry for $52,600 as the present value of the $5,000 agreed to be paid during each year in monthly installments of $416.66 2/3 each, under the terms of the written contract, such value being computed on the basis of 4 per cent. on the life expectancy of Charles. No judgment was awarded based on the value of the $100,000 due Charles in the event he should outlive Henry.

From the above judgment Henry appealed to the Court of Civil Appeals at Dallas, but, on equalization of the dockets of the several Courts of Civil Appeals, the cause was transferred to the Court of Civil Appeals at El Paso, which court affirmed the judgment of the trial court, except it held that all of Charles' claim against Henry based on monthly payments which matured more than four years prior to the filing of the suit was barred by the four-year statute of limitation, and reversed and rendered that part of the judgment of the trial court which was in conflict with such holding. Both parties were dissatisfied with the rulings and judgment of the Court of Civil Appeals and prosecuted writs of error to the Supreme Court. Both writs were granted. The record, briefs, and arguments are very voluminous, but we shall content ourselves with a general discussion of those matters which, in our opinion, settle the litigation.

Opinion.

We agree with the Court of Civil Appeals that the only material questions presented by this appeal are: (a) The question of limitation; and (b) the measure of damages for the breach of the above contract. In this connection we think the verdict of the jury and the evidence conclusively establish a complete breach which occurred May, 1926. In other words, the complete repudiation by Henry occurred at that time.

With reference to the issue of limitation we agree with the holding of the Court of Civil Appeals to the effect that all payments due by Henry to Charles which matured more than four years prior to August 5, 1926, when the suit was filed, are barred by the four-year statute of limitation (Rev. St 1925, art. 5527). Under the contract these payments were due and payable each month, and limitation would begin to run on each payment due from its due date. We find nothing in the record that would prevent the application of the statute to these sums.

The evidence in the case conclusively shows that Henry has not made the full payments due Charles since January, 1912, and in May, 1926, absolutely repudiated his obligation under the contract. The verdict of the jury establishes the fact that Henry had no legal excuse for failing to meet the monthly payment provided in the contract, and no legal excuse for his repudiation of the contract. Furthermore we think that, in the absence of any jury finding, the evidence absolutely establishes the fact that Henry has failed to meet the payments due under the contract without legal excuse, and that he, without just cause, has repudiated his obligation to carry out the contract as written. We therefore now come to decide the rights of the parties at the time of trial in the district court, treating the contract as breached and completely repudiated. This brings us to the question of the measure of damages due by Henry to Charles.

The contract is rather unique, but very plain. Its performance would have been very simple. However, the contract was not performed, but breached, and this suit is for damages for the breach.

In this connection we hold that Henry, having not only failed and refused to meet the monthly payments due on the contract, but, on the other hand, having absolutely repudiated the obligation, all without just excuse, has breached the contract, and therefore Charles is entitled to maintain his action in damages at once for the entire breach, and is entitled in one suit to receive in damages the present value of all that he would have...

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