Pollack v. Pollack
Decision Date | 10 June 1931 |
Docket Number | No. 1471-5709.,1471-5709. |
Parties | POLLACK v. POLLACK. |
Court | Texas Supreme Court |
Harry P. Lawther, of Dallas, for plaintiff in error.
Coke & Coke and Thomas G. Murnane, all of Dallas, for defendant in error.
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:
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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