Armstrong v. Gifford

• Decision Date: 06 June 1917
• Docket Number: (No. 5879.)
• Citation: 196 S.W. 723
• Parties: ARMSTRONG v. GIFFORD.
• Court: Texas Court of Appeals

Page 723

196 S.W. 723

ARMSTRONG v. GIFFORD.

(No. 5879.)

Court of Civil Appeals of Texas. San Antonio.

June 6, 1917.

Rehearing Denied June 30, 1917.

Appeal from District Court, Wharton County; Samuel J. Styles, Judge.

Action by R. A. Armstrong against G. C. Gifford. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Gaines & Corbett, of Bay City, for appellant. Hall & Barclay and Kelley & Hawes, all of Wharton, for appellee.

FLY, C. J.

This is a suit instituted by appellant to recover of appellee the sum of $2,835.90, alleged to be due for services rendered by appellant in procuring a purchaser for certain lands belonging to appellee. While the suit was pending G. C. Gifford died, and by an amended petition Mrs. Annie Gifford and B. C. Roberts, the independent executors of the will of said G. C. Gifford, were made parties. Why the suit is still styled as it was originally is not apparent, but we follow the style of the case as presented by the record, although the representatives of the dead man are the beneficiaries of the appeal bond. The cause was heard before a jury, and a verdict instructed in favor of appellee.

This suit is based on a contract between appellant and appellee, dated February 21, 1913, by which appellant, in consideration of $1,000, was given an option on 531 acres of land of what is known as the Waterhouse & Sugar lands in Wharton county, until August 1, 1913, at $60 an acre. The contract provided that the consideration should be one-fifth in cash and the balance in one, two, three, and four years, and appellant was given the right to sell the land on or before August 1, 1913, on the same terms of his option, and appellee agreed to make a deed to the vendee. Appellant was also given the right, with the consent of appellee, to subdivide the land, and sell not less than one-half of it at $80 an acre. It was also provided that, if appellant sold the land for more than $60 an acre, the profit should go to appellant, but that he should take a proportionate amount of the notes to have a lien secondary to those taken by appellee. In the event of a sale of a part of the land appellant was to deliver to appellee all moneys and notes received from such sale. To pay the $1,000 cash provided for appellant was to convey to appellee nearly 4 acres of land in the town of Wharton, but appellant before the expiration of the contract was given authority to sell the 4 acres for more than $1,000.

Afterwards, on August 9, 1913, some dispute having arisen as to whom the rents of the 531 acres should belong, another contract was drawn providing that possession of the land should not be given until January 1, 1914, and that the land in Wharton should be reconveyed to appellant, and it was further provided:

"And whether said deed be made to said Armstrong, or to some other person at his direction, the right of said Armstrong shall exist to claim said rents and crops and to sue for and recover same in his own name, provided he or the vendee, or both, were entitled to a deed under said contract which would have passed the rents and crops, and as if a deed had been executed thereunder, in accordance with the terms of said contract, and the right of said Gifford to claim and retain said rents and crops shall exist if such right existed under said contract, without regard to the language of the deed now to be made, to the said Armstrong or his order, or the terms stipulated in said deed."

It is provided in the last contract that the changes as to the interest not beginning until January 1, 1914, or other matters therein, should in no way affect the rights of the parties under the original contract as to rents and crops, but that their rights should rest strictly on the terms of the original contract.

The fourth assignment of error assails the action of the court in overruling a special exception to that part of the answer which alleged that:

"It was never agreed or contemplated by said contract, nor was there any provision therein that plaintiff should receive any commission or compensation for the sale of land, except as stated in said paragraph that in case he should sell the land for more than $60 per acre he should take a proportionate part of the notes for the excess, upon the terms stated."

The only objection to the pleading is that it is an attempt to construe the written contract, and it seems that appellant feared that it might in some way interfere with the prerogative of the court to construe the contract. We fail to see any merit in the assignment.

The fifth and sixth assignments of error complain of the action of the court in overruling other special exceptions to the petition, neither of which should have been sustained. The answer is not open to any of the objections to it made through the exceptions. The answer did not claim that the contract was revocable, but that appellant was seeking to avoid its provisions.

When there is no agreement to the contrary, the rents and crops from land that has been purchased pass with the deed to the land. Porter v. Sweeney, 61 Tex. 213; Hearne v. Lewis, 78 Tex. 276, 14 S. W. 572. There was no deed made until August 13, 1913, when the land was conveyed to G. A. Harrison by G. C. Gifford. That deed was made in pursuance of the contract of August 9, 1913, between appellant and Gifford, in which it was agreed that a deed would be made in which rents would not be mentioned, and that no interest would be charged on the notes until January 1, 1914, at which time possession was to be given the vendee. It was also provided that the status of the rents should be as fixed by the contract of February 21, 1913. It follows that...