Bryant v. Clark

• Decision Date: 23 May 1962
• Docket Number: No. A-8547,A-8547
• Parties: T. U. BRYANT, Petitioner, v. Mrs. Charles S. CLARK, Respondent.
• Court: Texas Supreme Court

Page 614

358 S.W.2d 614

163 Tex. 596

T. U. BRYANT, Petitioner, v. Mrs. Charles S. CLARK, Respondent.

No. A-8547.

Supreme Court of Texas.

May 23, 1962.

Rehearing Denied July 11, 1962.

Allen & Smith, Austin, for petitioner.

Gay & Meyers, Austin, for respondent.

CULVER, Justice.

(1) Petitioner, Bryant, Brought this suit to compel specific performance of a contract entered into between him and Mrs. Clark to convey to him certain real estate situated in Travis County. The principal question in the case is whether the terms of the written contract were sufficiently certain and definite so as to warrant this character of relief. Both the trial court and the Court of Civil Appeals with one Justice dissenting have answered the question in the negative. 347 S.W.2d 635.

The contract, after describing the property to be conveyed, provided as follows:

'Price to be $10,000.00 (Ten thousand dollars). Mr. Bryant agrees to pay $2,000.00 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.'

Mr. Bryant testified that he had no agreement with Mrs. Clark other than as set forth in the written contract above, but that he was ready and willing to 'sign the notes'.

In Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 148 A.L.R. 555, cited by petitioner, we said that absolute certainty is not necessary, but that 'the certainty required in a contract which renders it subject to an action for specific performance is a reasonable certainty.' That case turned upon the construction of the language used in the written contract, rather than upon the question, as here, whether any material and basic elements of the contract are wanting. In Langley the contract provided that the vendee would purchase the land for $15.00 an acre to be paid for in cash. The vendors were to furnish title subject to an existing lien securing $4600.00. The vendors made the contention that the contract was indefinite and uncertain because it could not be said whether the grantors were obligated to pay the lien indebtedness out of the cash consideration or whether the vendee was to pay $9300.00 cash and take the land subject to the indebtedness. The court had no difficulty in determining 'with reasonable certainty' that the indebtedness was to be paid out of the cash consideration.

Mr. Bryant also relies strongly upon Wilson v. Beaty, Tex.Civ.App., 211 S.W. 524 (1919), wr. ref., wherein specific performance was enforced, the court holding that the contract was certain and definite in its terms and left no reasonable doubt as to what the parties intended and no reasonable doubt of the specific thing equity was called upon to have performed. In that case the purchaser agreed to execute notes payable on or before the 15th day of December of each year with the option of paying them at any time not later than five years from the date of their execution. The court correctly held that although the number of notes was not specified in the contract that fact was immaterial and would create no uncertainty since the purchaser had the option of paying all or any part of the contract at any time before the end of the five-year term as provided in the contract. Neither of the above cases are very persuasive from the petitioners' standpoint.

The authorities generally concur in the rule announced in Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, although in that case the lack of certainty was with reference to the description of the property, as follows:

'In the absence of equities removing the case from the operation of the statute of frauds, which do not here exist, it is well settled that before a court will decree the specific performance of a contract for the sale of land, or entertain a suit for damages for the breach thereof, the written agreement or memorandum required by the statute must contain the essential terms of a contract, expressed with such certainty and clarity that it may be understood without recourse to parol evidence to show the intention of the parties; * * *.'

Pomeroy in his Specific Performance of Contracts, 3rd ed. (1926), § 159, states the rule with regard to the certainty required for specific performance to be:

'* * * its object is to procure a performance by the defendant, and this demands a clear, definite, and precise understanding of all the terms; they must be exactly ascertained before their performance can be enforced. * * *'

Restatement of the Law, Contracts, § 370, states the rule as follows: 'Specific enforcement will not be decreed unless the terms of the contract are so expressed that the court can render with reasonable certainty what is the duty of each party and the conditions under which performance is due.'

We are of the opinion that the contract in question is too indefinite and uncertain to authorize a judgment of specific performance.

The contract provides for the payment of the deferred balance of the purchase price of the property in fifteen annual installments, but it contains no provision with respect to the amount of the several installments. The contract provides for 6% interest on the deferred balance, but it does not provide when the interest is payable or in what amounts.

Petitioner says it is reasonable that the '15 annual installments' were to be paid in equal amounts since it was not otherwise provided. But the question is whether it is reasonably certain that the parties so intended. They had the right to provide otherwise and anot infrequently is it so arranged. Oftentimes the seller, for investment purposes, may consider it more advantageous to have the greater part of the indebtedness fall due in the last installment, and this condition might be equally desirable on the part of the purchaser for other reasons.

If, as petitioner suggests, we should hold that the parties intended to provide for payment of the deferred balance in fifteen equal annual installments and write that provision into our judgment, what do we then hold the parties intended with respect to interest payments and what would we write into our judgment with respect thereto? Would we provide that the interest be paid annually on the unpaid balance? Or would we amortize interest and provide that the deferred balance and interest be paid in fifteen equal annual installments? Or would we provide that the payment of interest be deferred until the last payment on principal? To require any of these methods of paying interest is to make a contract for the parties by supplying terms with respect to important subject matter of the contract which they left totally uncertain in their written memorandum. Uncertainty as to interest provisions was held to render a contract incapable of specific performance in Harter v. Morris, 72 Ind.App. 189, 123 N.E. 23, 719. It has been so indicated in at least one Texas case. Goode v. Westside Developers, Inc., Tex.Civ.App., 258 S.W.2d 844, ref. n. r. e.

In discussing the required certainty of the contract to enable one to obtain specific performance, the Georgia Supreme Court in Williams v. Manchester Building Supply Co., 213 Ga. 99, 97 S.E.2d 129, stated:

'* * * its terms must be such that neither party can reasonably misunderstand them. It would be inequitable to carry a contract into effect where the court is left to ascertain the intention fo the parties by mere guess or conjecture, because it might be guilty of erroneously decreeing what the parties never intended or contemplated.'

(2) Additionally, petitioner urges that a court of equity should intervene and declare specific performance for the reason that he has materially changed his position in reliance on the binding quality of his agreement by causing the land to be surveyed and the abstract brought to date at his expense and deposited $400.00 earnest money to apply on the cash purchase price. The earnest money check has not been cashed and was tendered back by Mrs. Clark. Although as further set out in the Restatement, supra: '* * * Even though subsidiary terms have been left to be determined by future agreement, if performance has been begun by mutual consent justice may require specific enforcement, the court supplying the missing terms in such a way as to assure to the defendant all advantages that he reasonably expected,' nevertheless we think the expense incurred by Mr. Bryant in having the property surveyed and the abstract brought down to date would not be such performance as to warrant specific enforcement of this contract.

We are therefore of the opinion that the judgments of the courts below denying specific performance of this contract must be affirmed.

SMITH and HAMILTON, JJ., dissenting.

HAMILTON, Justice (dissenting).

I respectfully dissent.

This is a suit for specific performance of a simple contract drawn by two laymen in the handwriting of the respondent, who refused to perform. There has been no claim by allegation or otherwise that the contract was unjust or that it was procured through fraud, misrepresentation or mistake, but is merely a case of a refusal to perform a plain, just and reasonable contract. Respondent attempts to avoid its performance by technicalities and objections not justified by the terms of the contract or upheld or countenanced by the law. Respondent's whole case is based on the affirmative defense as set out in her allegations as follows:

'Defendant says further that plaintiff is not entitled to specific performance of said alleged contract for the reason that said contract is so vague and indefinite as to the terms and conditions of the conveyance that no Court could specifically order the enforcement of said contract.'

Respondent agreed to sell her lake property to petitioner for...