Bergstedt v. Bender

• Citation: 222 S.W. 547
• Decision Date: 16 June 1920
• Docket Number: (No. 136-2045.)
• Parties: BERGSTEDT v. BENDER.
• Court: Supreme Court of Texas

222 S.W. 547

BERGSTEDT v. BENDER.

(No. 136-2045.)

Commission of Appeals of Texas, Section A.

June 16, 1920.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by W. F. Bender against Louis Bender, in which Peter Bergstedt intervened and answered. A judgment for defendant and intervener was reversed and rendered by the Court of Civil Appeals (187 S. W. 735), and the intervener brings error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

D. E. Simmons and Jones & Jones, all of Houston, for plaintiff in error.

T. H. Stone and H. E. Stephenson, both of Houston, for defendant in error.

SONFIELD, P. J.

On the 26th day of November, 1913, Mrs. Mary Hafer, under her maiden name, Bergstedt, entered into a written contract with W. F. Bender, wherein she agreed to sell and convey to Bender a certain fractional lot in the city of Houston, known as her residence or homestead, upon which she had resided for some 40 years. Under the terms of the contract, Mrs. Hafer was to have the right to occupy the premises without cost to her during her life, such right not to be assigned, nor the premises sublet. She obligated herself to carry insurance on the improvements in the sum of $1,000 until her death, the policy to be payable to Bender. In the event of the destruction of the premises by fire, the house was to be rebuilt from the proceeds of the insurance, and Mrs. Hafer given the right of occupancy. Bender obligated himself to pay all taxes accruing after the year 1913. He was to pay Mrs. Hafer for the property the sum of $1,500 cash, $100 upon the execution of the contract, and the remaining $1,400 within 60 days from the delivery of a complete abstract of title to the property, provided the title was good and merchantable. Any defects in the title were to be pointed out in writing by the attorney of Bender, and either party should have 60 days in which to cure such defects. In the event the defects were not cured by either party within that time, then, upon demand of Bender, the $100 paid by him should be returned, and both parties thereupon be released from all liability under the contract as to each other. A part of paragraph 3 of the contract provides:

"If the title to said property is found to be a good and merchantable title, and second party does not within 60 days after delivery of abstract of title and upon a tender of a warranty deed in accordance with the terms and conditions of this contract by first party pay to the first party the remaining amount, namely, fourteen hundred dollars ($1,400.00) in cash due hereunder, then first party shall forfeit to herself and keep the said sum of one hundred dollars ($100.00) this day paid by second party, which both parties hereby agree shall be forfeited as liquidated damages in the event of failure of second party to carry out the conditions of this contract, and thereupon both parties hereto shall be released from all liability hereunder."

Mrs. Hafer died on January 14, 1914. At the March term of the county court of Harris county, 1914, Mrs. Hafer's will was probated, and Louis Bender, named therein as executor, duly qualified. Peter Bergstedt, a cousin of the testatrix, was the sole devisee under her will.

On April 4, 1914, W. F. Bender filed his petition in the county court of Harris county against his father, Louis Bender, as executor of the estate of Mrs. Hafer, seeking specific performance of the contract. The executor filed no answer, and interposed no objection to the granting of the relief sought. Peter Bergstedt intervened for the purpose of preventing enforcement. The trial resulted in a judgment in favor of W. F. Bender, from which intervener appealed to the district court of Harris county.

Specific performance was resisted on the ground that the contract was a mere option without consideration, and withdrawn before its acceptance; that it lacked mutuality, and was of a character which would not be specifically enforced; further, that the property was not properly described. He also pleaded that the execution of the contract was procured through the exercise of undue influence upon Mrs. Hafer by plaintiff, who overreached and wrongfully persuaded and induced her to execute the contract; that the property was of the reasonable market value of $5,000, and the consideration agreed to be paid was wholly inadequate.

The cause was submitted to a jury upon the two following issues:

"(1) Did Mrs. Hafer (née Bergstedt) execute the contract which is in evidence before you by reason of undue influence of W. F. Bender operating upon her mind at said time? Answer Yes or No.

"(2) What was the reasonable market value of the premises in controversy in this suit on November 26 and 27, 1913? State the amount you find in dollars and cents."

The jury answered the first question Yes, and the second that the value of the property at that time was $4,900. Upon these answers the trial court rendered judgment in favor of defendant, Louis Bender, executor, and intervener, Peter Bergstedt. On appeal, the Court of Civil Appeals reversed the judgment of the district court, and rendered judgment in favor of plaintiff. 187 S. W. 735.

The Court of Civil Appeals held there was no competent evidence to raise the issue of undue influence; that the property was properly described, the contract mutually binding, and the consideration adequate in view of the conditions existing at the date of the contract.

In the view we take of the case, and the recommendation to be made with reference to its disposition, we deem it unnecessary to set out a full statement of the evidence. For the purpose of this opinion, the following will suffice:

There is evidence that at the date of the execution of the contract Mrs. Hafer was 70 years of age, and lived by herself upon the property here in controversy. Plaintiff was quite a young man, and conducted a meat market next door to her residence for many years. Mrs. Hafer was injured by a fall about a year before her death. There was evidence that subsequent to her injury she was physically frail, and her mental faculties greatly impaired. Some time prior to the date of the contract, she had executed her will, making intervener her sole devisee, declaring in her will that the property herein involved was the only real estate owned by her. Prior to negotiations ultimating in this contract, she had declined offers to purchase at a price in excess of that agreed to be paid by plaintiff, giving as her reason that she had devised it to intervener. A witness for plaintiff testified that Mrs. Hafer showed him the contract with plaintiff before its execution. He stated to her that the price was too cheap, and offered to make the same character of contract and give her $1,000 more than she was to receive. The offer was declined, on the ground that she wanted plaintiff to have it. The undisputed evidence established the market value of the property, at the date of the contract, to be $4,900, as found by the jury. Mrs. Hafer was taken sick on the 7th day of January, 1914, and the abstract to the property was delivered to plaintiff on the following day. From the time of the delivery of the abstract to the date of her death, on the 14th of January, 1914, Mrs. Hafer was too ill to attend to any kind of business. After receiving the abstract, and before her death, plaintiff concluded to consummate the contract. His attorney advised Mr. Tharp, who had acted as attorney for Mrs. Hafer in the matter of the contract, that they were ready to close the deal. Tharp stated that he would take the matter up with Mrs. Hafer, and declined to accept any tender. Mrs. Hafer died without executing a deed.

It must be conceded that there was no direct evidence of the exercise of any undue influence by plaintiff over Mrs. Hafer in reference to the contract. The exercise of undue influence is rarely susceptible of direct proof, and resort must usually be had to circumstances. In reaching a conclusion, consideration must be given to the age, health, mental condition, and financial status of Mrs. Hafer, her relations with plaintiff, and how far she was dependent upon...