Brownlee v. Thrower

• Decision Date: 30 November 1927
• Docket Number: (No. 3445.)
• Citation: 300 S.W. 240
• Parties: BROWNLEE v. THROWER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 240

300 S.W. 240

BROWNLEE v. THROWER et al.^*

(No. 3445.)

Court of Civil Appeals of Texas. Texarkana.

November 30, 1927.

Rehearing Denied December 15, 1927.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by J. M. Brownlee, Jr., against Harry W. Thrower and another. Judgment for defendants, and plaintiff appeals, and the named defendant files a cross-assignment of error. Reversed and remanded.

July 22, 1926, appellant, Brownlee, and appellee Thrower entered into a contract, in writing, whereby the latter agreed to convey or cause to be conveyed to the former certain lots in the city of Houston when Brownlee paid $8,000 in cash therefor, executed and delivered vendor lien promissory notes for sums aggregating $5,000, and assumed the payment of a note for $20,000 secured by a lien on the land. At the time the contract was entered into and as a compliance with one of its terms, Brownlee delivered his check for $1,000 on the First National Bank of Madisonville to Thrower, who, in compliance with another term of the contract, deposited same "in escrow with Public National Bank." By another term of the contract the check was to be treated as a part of the $8,000 cash payment if the sale was consummated, and to become forfeited as liquidated damages if Brownlee, being furnished evidence that the title to be conveyed to him was good, within a time specified failed to accept a deed thereto and pay the money and make and assume notes as agreed upon. Brownlee claimed (and uncontradicted testimony tended to prove) he was induced to enter into the contract by a verbal promise fraudulently made by Thrower to rent the lots for him for a term of 2 years at $200 per month if he purchased same. He claimed further, and proved, that on August 23, 1926, which was within the time specified therefor, he accepted a conveyance of the lots from appellee Dwyer and paid the money and executed and assumed payment of notes as agreed upon, and that Thrower failed to comply with his verbal promise to rent the lots. This suit was by Brownlee, as plaintiff, to recover of Thrower and Dwyer $4,800 as the damages he was entitled to because of the fraud practiced upon him, as he alleged, by Thrower. It appeared from testimony heard at the trial that before Brownlee accepted the deed, paid the money, and made and assumed promissory notes as stated, and at a time when the check referred to was held by the Public National Bank as an escrow, Thrower denied making the verbal promise charged to him and notified him (Brownlee) that he would not rent the lots if Brownlee consummated his agreement to purchase same. It appeared, further, that Brownlee, when so notified and before he consummated his said agreement, advised both Thrower and Dwyer of an intention he entertained to seek a recovery of the damages this suit is for. It appeared, further, that the check referred to as drawn by Brownlee was "to be paid (quoting) when I (Brownlee) owed it." It appeared, further, that the verbal promise in question was not made a part of the contract as written, because Thrower thought, as he claimed and advised Brownlee, the owner of the lots would object to it. Being of the opinion that Brownlee had failed to make a case entitling him to relief, the court instructed the jury to return a verdict against him and, the jury having returned such a verdict, rendered judgment that Brownlee take nothing by his suit and in favor of Thrower and Dwyer for costs.

W. L. Hill and J. R. Hill, both of Houston, for appellant.

Andrews, Streetman, Logue & Mobley, M. E. Kurth, and Woods, John & Cox, all of Houston, for appellees.

WILLSON, C. J. (after stating facts as above).

Undisputed testimony heard at the trial was sufficient to show appellant was induced to enter into the written contract to purchase the lots by his reliance on a verbal promise by Thrower to rent same for 2 years at $200 per month if appellant purchased them. That being true, and it appearing from other testimony, also undisputed, that appellant did purchase the lots in compliance with the terms of the written contract and that Thrower failed to rent them, the trial court erred when he instructed the jury as he did unless he had a right to say it appeared, as a matter of law, that appellant had waived a right he had to maintain a suit for damages for fraud practiced on him by Thrower. Article 4004, R. S. 1925; Fordtran v. Cunningham (Tex. Civ. App.) 141 S. W. 562; Mason v. Peterson (Tex. Com. App.) 250 S. W. 142; Gustafson v. Land Co. (Tex. Civ. App.) 234 S. W. 244. Appellees insist the court had such a right because it conclusively appeared that appellant consummated his undertaking to purchase the lots after he was advised that Thrower would not rent them. The insistence is on the theory that the contract was an executory one which appellant, because of the fraud practiced on him, was not bound to perform. Appellant, on the other hand, insists that the contract was an executed one in part, at least, and, as supporting that view, points to testimony showing he had deposited his check for $1,000 in escrow, to be forfeited if he did not comply with his undertaking under the contract. Appellant insists, further, that it appeared he had not waived his right to maintain this suit, and as supporting the contention refers to his undisputed testimony as a witness that at the time, or before, he consummated the contract he notified appellees he would seek a recovery against them of the damages the suit is for.

The members of this court are not agreed as to whether the contract was wholly executory or not. The majority think it was not, while the writer thinks it was because appellant, having been induced by fraud practiced on him to enter...