Burgess v. Putnam
| Decision Date | 26 February 1971 |
| Docket Number | No. 17177,17177 |
| Parties | Ralph BURGESS et al., Appellants, v. Jack L. PUTNAM et al., Appellees. |
| Court | Texas Court of Appeals |
Coleman, Whitten & Philips, and Earl L. Coleman, Denton, for appellants.
Minor & Knight and Robert Weldon Knight, Denton, for appellees.
Jack L. Putnam and others, purchasers of what might be treated as lots within a subdivision belonging to and being promoted by Ralph Burgess, Marvin E. Ellis, and another--for an enhanced price or value in reliance upon their representations as to the general plan or scheme for the development of the subdivision--brought suit for injunction against the promoters who were also owners of the unsold land remaining in the subdivision.
Said plaintiffs obtained relief in the form of a judgment which permanently enjoined the defendants from conveying any of the remaining land owned by them in the subdivision without inclusion in any such conveyance restrictions identical with those which had been imposed upon the plaintiffs' subdivision land theretofore purchased from the defendants. The defendants appealed.
Affirmed.
Precipitating the suit was the past immediate action, and threatened future action, on the part of the defendants conveying portions of their remaining subdivision land to recent purchasers under instruments which permitted the use thereof as sites for trailer houses.
When plaintiffs purchased subdivision 'lots' the defendants' plan and scheme for development prohibited the use of any land thereafter sold by them for trailer house sites. Knowledge thereof was imparted to the plaintiffs. There were no restrictions relative thereto filed in the deed or plat and dedication records of the county. Rather did the defendants adopt the method of placing in each instrument of conveyance restrictive covenants as applied to that which was sold. In other words there was nothing existent in any writing anywhere which obligated the defendants to proceed with such development of the subdivision. Instead, in so far as any written evidence appertained they were free to proceed in any way they chose, including the sale and conveyance of the remaining land for purpose of locating trailer houses thereon.
The question, therefore, is whether the representations made to plaintiffs relative to their plan of development of the entire subdivision, inducing plaintiffs to pay an enhanced price for their own conveyances which imposed restrictions upon them--including the prohibition of any use of the property purchased by them as sites for trailer houses--brought into existence their equitable right to compel the defendants to similarly restrict the use of any remaining subdivision property as a protection of plaintiffs' investment and of the lots they had purchased.
There was nothing fraudulent on the part of the defendants in their representations inducing plaintiffs' prior purchases. Their change of plan was occasioned by a diminished real estate market. Change in the market was such that permitted the defendants a ready profit if they were free to sell additional land within the subdivision as sites for trailer houses. If they adhered to their original plan for development there was a diminished likelihood of profit.
The rule of law applicable would be the same as if they had made fraudulent misrepresentations to plaintiffs, for the nonfraudulent representation was 'material' relative to the purchases made by plaintiffs. See Restatement of the Law, Contracts, Sec. 479, 'When Fraud or Material Misrepresentation is Presumably an Inducing Cause', and Sec. 476, 'Effect of Fraud or Misrepresentation that Induces Acts Affecting Contractual Relations.'
If there be nothing which effectively prevented the proof essential in such a case, in the form of parol evidence, the representations made by the defendants has been effectively shown. Whether as part of the consideration owning by defendants to plaintiffs or as proof that there was a general plan to keep the property restricted we have no doubt that parol evidence was proper. On the latter theory of admissibility the reception of parol evidence was specifically approved in Abernathy v. Adoue, 49 S.W.2d 476 (). In practically all the cases it has necessarily been the opinion of the courts rendering judgments similar to that entered in this case that the reception of oral evidence was not rendered improper by the Parol Evidence Rule. Usually that would be the only method by which the necessary facts could be established. See Plaster v. Stutzman, 8 S.W.2d 750 (); Hubbard v. Ehman,28 S.W.2d 270 (); and Wilson Co. v. Gordon, 224 S.W. 703 (Galveston Tex.Civ.App., 1920, writ dism.).
Without doubt parol evidence as to the circumstances, whether or not inclusive of the theory upon consideration, was received and considered in Hooper...
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Evans v. Pollock
...development scheme by likewise restricting the property the grantor retains or conveys to others thereafter. Burgess v. Putnam, 464 S.W.2d 698 (Tex.Civ.App.1971, writ dism'd). This resulting limitation is commonly referred to as a reciprocal negative The doctrine of reciprocal negative ease......