Campbell v. Wilson

• Decision Date: 10 December 1921
• Docket Number: (No. 9706.)
• Parties: CAMPBELL v. WILSON.
• Court: Texas Court of Appeals

238 S.W. 318

CAMPBELL v. WILSON.

(No. 9706.)

Court of Civil Appeals of Texas. Fort Worth.

December 10, 1921.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

Action by L. I. Wilson against R. W. Campbell. Judgment for plaintiff, and defendant appeals. Affirmed.

Marks & Flaherty, of Ranger, for appellant.

John L. Poulter, of Fort Worth, for appellee.

DUNKLIN, J.

R. W. Campbell owned a tract of land situated within the corporate limits of the city of Ranger, Texas, which he desired to sell. In order to accomplish that end he divided and platted it into blocks, lots, streets and alleys, and designated it as the Ranger Heights addition to the city of Ranger. One A. P. Howell was employed as his agent to sell the property, and as such agent Howell contracted with L. I. Wilson to sell him one of the lots. The agreed purchase price for the lot was $950, of which amount $25 was paid cash, and Wilson agreed to pay the balance in installments, falling due at different dates. Pursuant to that agreement, Wilson paid an aggregate sum of $650, but declined to make any further payment. Wilson then instituted this suit to recover the $650, the amount so paid by him to Campbell, and also $500 special damages, alleged to have been sustained by him. A judgment was rendered in plaintiff's favor for the $650, the purchase price paid to Campbell, but plaintiff's prayer for special damages was refused, and from the judgment so rendered the defendant Campbell has appealed.

As a basis for recovery, plaintiff alleged that, as an inducement to him to purchase the lot, the defendant, through his said agent, represented that the streets in the Ranger Heights addition would be cleared, graded, and graveled as soon as the work could be done, and that the same had already been begun and would be continued with diligence until completed. According to further allegations, at the time plaintiff agreed to purchase the lot and when he made the first cash payment of $25, a memorandum in writing was signed, evidencing the terms of the sale and the receipt of the cash payment, the defendant agreeing that he would thereafter execute and deliver to the plaintiff his written contract, binding him to make the street improvements mentioned above, but that defendant had failed and refused to execute such contract, and had failed and refused to make said improvements, although plaintiff had demanded the same upon each occasion when he made subsequent payments of the purchase price for the lot. By reason of the failure of the defendant to make such street improvements and his failure to execute his written contract so to do, the plaintiff elected to declare the original contract of purchase at an end and to sue for the amount of the purchase money so paid, and also for $500 additional as special damages.

The case was tried before the court without a jury, and findings of fact were filed by the trial judge sustaining the allegations in plaintiff's petition noted above, and upon those findings judgment in plaintiff's favor was rendered.

Appellant has assigned error to the action of the court in awarding plaintiff damages in the sum of $650, contending that the only measure of damages recoverable by plaintiff was the difference between what would have been the value of the property...