Antwine v. Reed

• Decision Date: 05 February 1947
• Docket Number: No. A-942.,A-942.
• Citation: 199 S.W.2d 482
• Parties: ANTWINE v. REED.
• Court: Texas Supreme Court

199 S.W.2d 482

ANTWINE v. REED.

No. A-942.

Supreme Court of Texas.

February 5, 1947.

Rehearing Denied March 5, 1947.

Error to the Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by L. P. Reed against H. L. Antwine to recover title to and possession of certain lands. To review a judgment of the Court of Civil Appeals, 194 S.W.2d 614, affirming a judgment of the trial court for plaintiff, defendant brings error.

Judgment of Court of Civil Appeals reversed, and judgment rendered for defendant.

T. Wesley Hook, of Alvarado, and H. H. Cooper, of Amarillo, for petitioner.

H. J. Cureton, of Meridian, for respondent.

SLATTON, Justice.

L. P. Reed sued Antwine for specific performance of a contract to convey certain land. The contract of sale was executed by the Amarillo National Bank as vendor and L. P. Reed as vendee. The land was conveyed by the bank to Antwine subsequent to the date of the contract of sale. It was alleged that Antwine bought the land from the bank with full knowledge of the rights of Reed. A tender of the purchase price of the land provided for in the contract with the bank was made during the trial by Reed.

The cause was tried by the trial court without the aid of a jury and judgment was in favor of Reed. The Waco Court of Civil Appeals affirmed the judgment of the trial court. 194 S.W.2d 614.

The land, situated in Bosque County, was listed by the bank at Amarillo with a real estate broker for sale at $10.00 per acre. The broker lived and operated his real estate business in Bosque County. The land was offered for sale by the broker to Reed. After inspecting the land, Reed authorized the broker to offer the bank $8.00 per acre for the land. The bank, after receiving Reed's offer, prepared a written contract, executed the same, and sent it to the broker in Bosque County for presentation and acceptance by Reed. The price of the land contained in the written contract was the same as the price offered by Reed. The contract provided for an earnest money deposit, but the amount was left blank. The contract and the letter of transmittal to the broker were delivered to Reed shortly after its receipt by the broker. No time was fixed in the written contract for its acceptance. The contract and letter of transmittal consisted of an offer to sell the land to Reed on compliance with the provisions of the contract. On November 15, 1944, the bank, by letter, sought information from the broker concerning the contract, and requested the broker to fill in the amount of the earnest money deposit and return the signed contract to them. Thereupon the broker advised the bank that Mr. Reed was in Oklahoma and was expected back the last of the week, at which time the broker would endeavor to close the transaction. The broker's letter was dated November 20, 1944. It is seen, therefore, that the bank and its agent, the broker, did not treat the lapse of time as having revoked the offer of the bank to sell the land. The bank did not have any further contact with the broker concerning the transaction until December 18, 1944. There is evidence in the record tending to show that Reed signed the contract on December 13, 1944, and had left the contract at the office of the broker before the bank communicated with the broker, on December 18, 1944. The evidence tends to show that the broker delivered the bank's contract, together with the letter of transmittal, to Reed, with the statement that Reed should sign them at his convenience. The bank made no effort to communicate with Reed with regard to taking the land off the market other than the communication with the broker. Neither did it notify Reed of having contracted with Antwine on or about the 20th day of December, 1944, for the sale of the land. The first notice Reed had of the bank's revocation of its offer to him was communicated by the broker on or about the 28th day of December, 1944. In dealing with Antwine the bank evidently acted upon the information gained from the broker to the effect that Reed had not signed the contract before the broker left Bosque County. According to the evidence in the record, this information turned out to be inaccurate.

Reed evidently considered the offer of his to buy the land a contract between the parties when the bank accepted it with the return of the written executed instrument. His offer was made by letter signed by the broker alone to the bank. However, the contract which was executed by the bank differed in terms with the offer of Reed, and did not amount to an acceptance of Reed's offer, but amounted in law to a counter proposal by the bank to be accepted or rejected by Reed. This is so regardless of the fact that the consideration for the land was the same in both the proposal of Reed and of the bank.

Through the first point of error it is claimed that the Amarillo National Bank is a necessary party to this suit. The contract sought to be enforced is between the Amarillo National Bank as vendor and L. P. Reed as vendee. It indisputably appears that the bank parted with all title and interest in the land by its contract of sale and deed, which were executed to Antwine before this suit was filed.

Under these circumstances it has been held in this state that the prior owner of the land is not a necessary party to the suit of a holder of a preference right to purchase the land from the original owner. Hart v. Wilson, Tex.Civ.App., 281 S.W. 339, Tex.Com.App., 288 S.W. 133. We perceive no good reason to require Reed to litigate with the bank. This action is for the purpose of obtaining the conveyance of the land and not to recover damages for the breach of the contract under which Reed claims. Antwine did not implead the bank. He objected because Reed did not do so. It has been ruled in this Court that where: "One who, with knowledge, actual or constructive, of the executory contract acquires the legal title under or through a deed or mortgage executed by the vendor subsequently to an executory contract for the sale of the land * * *, may be compelled, at the suit of the vendee under the executory contract, to perform the contract by conveying the legal title, if the conditions are such that such relief could have been granted against the vendor if he had not transferred the legal title". Langley v. Norris, 141 Tex. 405, 173 S.W. 2d 454, 457, 148 A.L.R. 555.

Since Reed may obtain complete relief sought in this suit against Antwine, and Antwine not having impleaded the bank, the lower courts properly overruled Antwine's pleas seeking to abate the suit because Reed did not make the Amarillo National Bank a party to his suit.

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