Aubrey v. Workman

• Decision Date: 06 November 1964
• Docket Number: No. 16564,16564
• Citation: 384 S.W.2d 389
• Parties: Willard B. AUBREY, Jr., Appellant, v. W. O. WORKMAN, Appellee.
• Court: Texas Court of Appeals

Page 389

384 S.W.2d 389

Willard B. AUBREY, Jr., Appellant, v. W. O. WORKMAN, Appellee.

No. 16564.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 6, 1964.

Rehearing Denied Dec. 11, 1964.

Lee & Lee and Jack Lee, Mason, for appellant.

Jacobs & Lipscomb and Ernest May, Fort Worth, for appellee.

LANGDON, Justice.

This is a suit on a promissory note which was originally securred by a second lien on a house in Arlington, Tarrant County, Texas.

By way of defense Aubrey alleged that during May, June and July of 1954, on numerous occasions he discussed his financial and marital difficulties with Workman. That he advised him that he had decided to move into smaller quarters and rent the house he had purchased from Workman which was in the latter's Park Row Addition in which there remained unsold houses. That Workman advised him that a rent house would depreciate the value of the new unsold homes remaining and render them more difficult to sell. That because of the adverse effect a rent house would have on the values of the unsold houses Workman advised Aubrey that if he would turn his house over to him he would assume the first lien thereon and release the second lien which is the subject matter of this suit. That he, Aubrey, having no desire to damage the value of Workman's unsold property and in reliance upon Workman's statements that such actions on his part would satisfy all indebtedness to Workman, accepted the latter's offer and on or about August 1, 1954, moved his belongings out of the house and lift it in charge of Workman. That the latter having caused him to rely in good faith on his statements and promises cannot now complain that the note is unpaid.

The pleadings and the testimony of Aubrey reflect that the alleged agreement was pieced together from various chance meetings between Workman and Aubrey covering the months of May, June and July, 1954. According to his testimony there was never a meeting between the two for the specific purpose of working out the terms of an agreement and no single meeting in which all of the terms of the alleged agreement were discussed. There was no promise to make a memorandum.

The case was tried to a jury which found in response to special issues, that, (1) Workman promised to discharge Aubrey's obligation under the second lien note, (2) that Aubrey relied upon such promise, and (3) that but for such reliance Aubrey would have prevented foreclosure of the first lien. (4) The jury further found that Aubrey delivered the house to Workman.

The trial court overruled appellant's motion for judgment and granted appellee's motion for judgment non obstante veredicto. We affirm.

The propriety of the action of the court in entering such judgment is the sole question before this court.

W. O. Workman, plaintiff below and appellee herein, and W. B. Aubrey, Jr., defendant below and appellant herein, will be referred to hereinafter as Workman and Aubrey.

Aubrey purchased a house from Workman in June of 1963. He made a down payment of $1,000 and executed a first lien note payable to J. E. Foster Company and a second lien note in the sum of $5,850 payable to Workman, which note is the basis of this suit.

Aubrey has never executed a deed reconveying the property to Workman in connection with the alleged oral arrangement although the agreement to be effective would require a re-conveyance. house to Workman testified that he removed house to Workman testified that he removed his belongings, moved out of the house and left the key in the door. He did not notify Workman of his move either before or after he abandoned his home.

Broadly stated, a conveyance of real estate must be in writing. The basic statute of frauds denies a right to maintain an action on an oral contract for the sale of real estate or the lease thereof for a longer term than one year. 26 Tex.Jur.2d 201, Sec. 39.

The statutory phrase 'any contract for the sale of real estate' includes every executory agreement that contemplates the alienation of an existing interest in land. The effect of the statute is to render unavailing to the parties, as the ground of a claim, any parol contract, in whatever shape it may be put, by which either of them is to part with real estate. 26 Tex.Jur.2d 220, Sec. 61, and p. 205, Sec. 41; Chandler v. City State Bank in Wellington, 135 S.W.2d 1013 (Amarillo Civ.App., 1940, no writ hist.).

In Hill v. Frost, 59 Tex. 25 (1883), it was held that: 'The agreement to take the case out of the statute must not only be in writing, but, like any other promise binding in law, must be founded upon a sufficient consideration moving between the parties.'

Article 3995, R.C.S. of Texas, subd. 2, provides that before any person may be charged upon a promise to answer for the debt of another the promise or agreement or some memorandum thereof shall be in writing and signed by the party sought to be charged therewith.

Article 1288, R.C.S. of Texas, forbids any conveyance not declared by an instrument in writing, subscribed to and delivered by the party disposing of the same.

'On the matter of the construction of the provision of the statute of frauds concerning transactions in real estate, it has been observed that the provision is valid, that it is imperative, and that it is emphatic. It is said that its simple requirement that contracts for the transfer of lands be in writing imposes no hardship and that the effect of its relaxation in, what seemed to the courts, hard cases, has produced abuses almost as great as would have its rigorous enforcement by the substitution of a doubtful state of the law for a rule that was plain, certain, and easily capable of observance.' 26 Tex.Jur.2d 203, Sec. 40.

It is undisputed that Workman did not at any time transfer possession of the second lien note to Aubrey or otherwise by any action on his part indicate that the obligation was discharged by any one of the five (5) methods set forth in Art. 5939, Sec. 119 of the Negotiable Instruments Act.

Renunciation by the holder of the note must be in writing, unless the instrument is delivered up to the person primarily liable thereon. Section 122 of Art. 5939, supra.

The note in question was clear, plain and unambiguous. It was complete and regular upon its face and unconditional. By signing the note Aubrey became liable for the payment thereof.

In the case of Hickox v. Hickox, 151 S.W.2d 913 (El Paso Civ.App., 1941, no writ hist.), it was held that 'a mere unexecuted intention to cancel a note not based upon a valuable consideration is without legal effect.' See also Rowe v. Daugherty, 196 S.W. 240 (Beaumont Civ.App., 1917, no writ hist.).

'But when there is a mere promise by the creditor to forbear without any corresponding promise on the part of the debtor not to pay during the period of the promised forbearance, the agreement is without consideration.' 9 Tex.Jur.2d, p 82-83, Sec. 71, 'Consideration'; 85 A.L.R. 319 and cited cases.

'Between the original parties, a compromise contract that results in the giving of commercial paper must be supported by a legal consideration.' 9 Tex.Jur.2d p. 58, Sec. 46; p. 323, Sec. 294, 'Agreements limiting liability'; p. 227, Sec. 206, 'Renunciation'.

The only possible consideration or benefit flowing to Workman under the agreement in question which Aubrey undertook to allege or about which he testified was the protection of the addition from a rent house. Yet there is no evidence that Aubrey ever suggested to Workman that he proposed to rent his house unless released from the note. He did state at one point that had it not been for Workman's proposition he probably would have rented it. In our opinion the promises, if any of Workman, were purely gratuitous and within the statute of frauds. There was no conveyance, no surrender of the note, no delivery of the property.

This brings us to a discussion of the appellant's chief defense, promissory estoppel, a substitute for consideration. The elements of this brand of estoppel are set forth as follows in Sec. 90 of the Restatement of the Law (Contracts): 'A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.'

A true application of the doctrine of promissory estoppel consists of three elements which must be alleged and proved to support it, and they are: (1) a promise, (2) foreseeability of...