Bryant v. Clark, 10852

• Decision Date: 31 May 1961
• Docket Number: No. 10852,10852
• Citation: 347 S.W.2d 635
• Parties: T. U. BRYANT, Appellant, v. Mrs. Charles S. CLARK, Appellee.
• Court: Texas Court of Appeals

Page 635

347 S.W.2d 635

T. U. BRYANT, Appellant, v. Mrs. Charles S. CLARK, Appellee.

No. 10852.

Court of Civil Appeals of Texas, Austin.

May 31, 1961.

Rehearing Denied June 21, 1961.

Allen & Smith, Austin, for appellant.

Gay & Meyers, Coleman Gay, III, Austin, for appellee.

GRAY, Justice.

Appellant, T. U. Bryant, sued appellee, Mrs. Charles S. Clark, for specific performance of a written contract for the sale of approximately six acres of land in Travis County.

Appellant alleged, and said, he is ready, able and willing to perform the contract. Appellee answered by general denial, an allegation that the description of the land as set out in the contract is not sufficient to comply with Art. 3995, Vernon's Ann.Civ.St., and that said contract is so vague and uncertain as to the terms and conditions of the conveyance that it cannot be specifically enforced.

A nonjury trial was had and judgment was rendered denying appellant specific performance of the contract without prejudice to his right to sue for damages.

Findings of fact and conclusions of law were not requested and none were filed.

The sole question presented on this appeal is the right of appellant to specifically enforce the contract which was written by appellee. It is in her handwriting and the portion material here is:

'I, Mrs. Chas. S. Clark agree to sell to Mr. T. U. Bryant my pier of property consisting of approximately 400 feet fronting on Lake Travis--perhaps about 6 acres--consisting of 2 tracts--(as described in abstract which is accompanied by deeds. Also rock house and other buildings on said property.

'Price to be $10,000 (Ten Thousand dollars) Mr. Bryant agrees to pay $2,000 cash and balance at 6% interest--payments to be agreed upon by seller and buyer. We have agreed as follows: 15 annual installments as balance----'

The contract refers to another abstract and to deeds, and recites the payment of $400 by appellant to appellee.

Other portions of the contract pertain to items of personal property which are not urged as material here.

The contract as it was first written provided that the payment of the balance of the purchase price 'to be agreed upon by seller and buyer.' However there was interlined 'We have agreed as follows: 15 annual installments as balance.'

The execution of the contract is admitted by both parties.

Appellant's points are that the trial court erred: in refusing to grant specific performance of the contract, and in overruling his motion for new trial.

Appellant's motion for new trial alleged that the trial court erred in refusing specific performance of the contract: (1) as a matter of law, there being no material dispute as to the facts, and (2) there is no adequate remedy at law available to plaintiff.

As briefed the points present the question whether the terms and conditions of the contract are so vague and uncertain as to support a judgment denying specific performance.

The remedy of specific performance is equitable and is governed by the rules applicable to the administration of purely equitable remedies.

In Witt v. McCrohan, Tex.Civ.App., 57 S.W.2d 1127, 1128, it is said:

'A greater degree of certainty is required in the terms of a contract which is to be specifically enforced in equity than is necessary in one which is to be made the basis of an action at law for damages. A multitude of authorities on the point under discussion are collated in 65 A.L.R. at page 102.

"It is an elementary principle governing courts of equity in the exercise of this jurisdiction, that a contract will not be specifically enforced unless it is certain in its terms, or can be made certain by reference to such extrinsic facts as may, within the rules of law, be referred to, to ascertain its meaning,' Stanton v. Miller, 58 N.Y. 192, 200.

* * *

'And, finally, in Texas it is decided that: 'A contract is certain and definite in its terms if it leaves no reasonable doubt as to what the parties intended and no reasonable doubt of the specific thing equity is called upon to have performed.' Wilson v. Beaty (Tex.Civ.App.) 211 S.W. 524.'

In Wilson v. Beaty supra the court said :

'It can be fully admitted that a contract for the sale of real estate could not be specifically enforced when there is no certainty as to the time of payments of the purchase money, as has been held by different courts. Luzadher [Luzader] v. Richmond, 128 Ind. 344, 27 N.E. 736; Gates v. Gamble, 53 Mich. 181, 18 N.W. 631; Shumway v. Kitzman, 28 S.D. 577, 134 N.W. 325; Zimmerman v. Rhoads, 226 Pa. 174, 75 A. 207.'

As the contract was first written it provided that the payment of the balance of the purchase price 'to be agreed upon by seller and buyer.' As so written it was insufficient to compel specific performance. Bean v. Holmes, Tex.Civ.App., 236 S.W. 120, 121. Er. ref. There the court said:

'The provision in the contract that the purchase price of $75,700 was 'to be paid in a manner to be agreed upon by the parties at the time of the exercise of such option' rendered the contract incomplete and uncertain and insufficient to compel specific performance.' Citing numerous cases.

We must here decide whether the inter-lineation 'We have agreed as follows: 15 annual installments as balance.' makes the provisions of the contract complete, certain and sufficient to compel specific performance and to enable a court of equity to render a judgment for specific performance. Does it leave a reasonable doubt as to the time of payments?

A reasonable, no an absolute, certainty is all that is required. Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 459, 148 A.L.R. 555. Appellant says that a reasonable construction of the contract would be to require that the balance of the purchase price be paid in fifteen equal annual installments. Still there remains the question: What judgment can be rendered further than requiring that the balance of the purchase price is to be paid in fifteen equal annual installments? Certainly the due dates of such payments must be fixed and also the conditions of payment. Can it be said that the minds of the parties met and they agreed that the first payment would become due one year after delivery of the deed, or did they agree on some other due date or dates? Also what...