Cammack v. Prather

• Decision Date: 15 April 1903
• Citation: Cammack v. Prather, 74 S.W. 354, 7 Tex. Ct. Rep. 139 (Tex. App. 1903)
• Parties: CAMMACK v. PRATHER.
• Court: Texas Court of Appeals

74 S.W. 354

CAMMACK v. PRATHER.

Court of Civil Appeals of Texas.

April 15, 1903.

Appeal from District Court, McLennan County; Thos. P. Stone, Special Judge.

Action by E. E. Cammack against J. K Prather. From a judgment in favor of defendant, plaintiff appeals. Reversed.

J. B. Scarborough, for appellant. N. L. Davis and Clark & Bolinger, for appellee.

KEY, J.

Appellant brought this suit as an action for debt, and to foreclose a vendor's lien. His action was, in substance, a suit by a vendor for specific performance, and was founded upon a written instrument, which reads as follows:

"$490. Beaumont, Texas, April 27th, 1901.

"Received from John K. Prather, of Waco, McLennan Texas, four hundred and ninety dollars, earnest money, to close sale to four acres of land in Jefferson county out of the Chas. Williams League, beginning at 129.72 varas north from a point where the S. line of the Minnie Vercher 100 acre tract intersects the W. line of the Thos. H. Langham sur., total price of payment is nineteen hundred and fifty dollars, terms of payment: Cash— That is to say $490 is paid as earnest money, and the balance of $1460 to be paid on or before May 4th, 1901 at 12 M.

"Title to be satisfactory or to be made satisfactory, or this earnest money to be refunded. Deed at expense of vendor, access to abstract of title of said property to be furnished by vendor, taxes to be paid vendor.

                         E. E. Cammack
                  "I accept the foregoing contract of sale
                                       "John K. Prather."
                

Appellee, who was defendant in the district court, answered by general demurrer, special exceptions, general denial, and failure by the plaintiff to perform his part of the contract. The answer also contained a cross-action, in which the defendant sought to recover from the plaintiff $490 and interest thereon. The trial court instructed a verdict against the plaintiff as to his suit against the defendant, and for the defendant against the plaintiff on his cross-action, and the plaintiff has appealed.

1. Without considering in detail the assignments of error, which complain of the action of the court in sustaining the general demurrer to the plaintiff's original and supplemental petition, and in refusing to permit the plaintiff to withdraw his announcement of ready for trial and to file an amended original petition, it is sufficient to say that we hold that the pleadings filed and tendered by the plaintiff failed to state a cause of action. The pleadings filed by him were based upon the written contract, which was inoperative and void, on account of the defective and insufficient description of the land. The description referred to constituted a patent ambiguity, and could not be aided by parol evidence for the purpose of making the written instrument apply to a particular tract of land. Norris v. Hunt, 51 Tex. 612; Jones v. Carver, 59 Tex. 295; Coker v. Roberts, 71 Tex. 597, 9 S. W. 665; Zanderson v. Sullivan, 91 Tex. 499, 44 S. W. 484.

The amended petition, which the plaintiff was not permitted to file, while alleging a verbal agreement for the sale of four acres of land sufficiently described therein, and charging that the written contract was prepared by the defendant and his attorney, does not charge that the omission in the description of the property was the result of fraud on the part of the defendant or his attorney, or mutual mistake of both the plaintiff and defendant. Hence we hold that if the latter pleading had been filed it would have been subject to a demurrer, and no error was committed in refusing to allow the plaintiff to file it.

We also hold that the written contract sued on did not apply to the four acres of land described in the plaintiff's petition, and that it could not be aided by parol evidence, for two reasons: (1) The defect in the instrument constituted a patent ambiguity, which cannot be removed by parol testimony. (2) Parol evidence identifying the particular four acres of land would have established a verbal contract for the sale of land, which, on account of the statute of frauds, was not enforceable.

Appellant's contention that the statute of frauds does not apply, because the defendant had signed a written obligation to pay, is not believed to be correct as applied to the facts of this case. The contention urged might be tenable if the instrument here sued on, like the one relied on in Crutchfield v. Donathon, 49 Tex. 691, 30 Am. Rep. 112, was in form or substance a promissory note. In other words, if the instrument in this case contained an unconditional promise on the part of the defendant to pay a particular sum of money to the plaintiff at or before a particular time, then reference in the instrument to the land and defective description thereof might not bring the case within the statute of frauds. But our conclusion is that a proper construction of the instrument does not show an unconditional promise to pay at a specified time. It is true that the terms of the sale are stated to be $490 then paid as earnest money, "and the balance of $1460 to be paid on or before May 4th, 1901 at 12 M." But other provisions of the instrument indicate that it was not intended that the stipulation referred to should evidence an absolute and unconditional promise to pay. The stipulation that the title was to be satisfactory or be made satisfactory, or the earnest money refunded, indicates that it was the intention of the parties that a satisfactory deed should be tendered to the defendant before he could be compelled to pay the balance of the purchase money. Such being the case, the promise to pay was not absolute, but conditional, and the doctrine announced in Crutchfield v. Donathon, supra, does not apply. Hence we hold that the plaintiff cannot maintain his action against the defendant, unless he alleges and proves such facts as will entitle him to have the written instrument reformed; and in...