Cantrell v. Broadnax, 15311

• Decision Date: 04 October 1957
• Docket Number: No. 15311,15311
• Citation: 306 S.W.2d 429
• Court: Texas Court of Appeals
• Parties: W. D. CANTRELL et al., Appellants, v. W. J. BROADNAX, Appellee.

Page 429

306 S.W.2d 429

W. D. CANTRELL et al., Appellants, v. W. J. BROADNAX, Appellee.

No. 15311.

Court of Civil Appeals of Texas, Dallas.

Oct. 4, 1957.

Rehearing Denied Nov. 1, 1957.

Earl Luna, Stanford & Allen, Dallas, for appellants.

Johannes & Kelsoe, Dallas, for appellee.

YOUNG, Justice.

This controversy between the parties involves the ownership of a wooden structure after its removal to Lots 3, 4 and 5, Block A/6095, Honey Springs Addition to the City of Dallas, and placement upon temporary piling or underpinning. At close of testimony on trial to a jury the court ruled that no questions of fact had been raised, granting peremptory instructions as follows: In favor of Pate against Cantrell for $500; that the building was the property of Broadnax; and denying all other prayers for relief by way of crossaction, etc. To such rulings defendant Cantrell gave notice of appeal; plaintiff Pate excepting to the court action denying his plea against both Cantrell and Broadnax for exemplary damages. Facts material to the litigation must first be detailed in sequence.

On August 14, 1954 the Honey Springs Baptist Church through its trustees McClatchey, Johnson and Kerbow, executed a contract for purchase of said Lots 3, 4 and 5, Block A/6095, from owners Broadnax & Company (S. P. Martinez), consideration $2,600 to be paid as follows: 'Cash * * * $30,00 Thirty. and no one hundreds as doun payment. and 30,00 thirty, and no one hundreds. beginning on the 15th, September 1954. and on the same tate of each and every month thereafter until fully paid. at the rate of 6% per annum. payable on or before. failure to make a payment on due date, automaticaly cancel this contract, and the purchasers waive all claims and rights to said property and all the improvements thereon.' Warranty deed was to be furnished upon payment in full of above consideration. The named church was located on Shindoll Street, but in view of an increased membership, the Broadnax lots had been thus acquired; the trustees in the meanwhile planning to move the donated frame building in question onto the site for new church quarters, engaging defendant W. D. Cantrell for the job of moving.

On August 10, 1954 a written contract for moving the building was signed by Cantrell and Fred Chunn, Honey Springs Church pastor; consideration $1,100, of which $1,000 was to be paid when same was placed on Lot 4 of the Broadnax purchase, the balance when the structure was settled on a concrete foundation to be furnished by the trustees. The building was accordingly moved to its present site, but the church having failed to make the cash payment required, it was there left on temporary piling inclusive of Cantrell's equipment. The church being unable to pay for the job of moving, Cantrell later agreed to take the subject building in extinguishment of his debt; evidenced by the following memorandum in writing signed by the church trustees, also by its pastor J. D. Perry: 'January 2, 1955. To Brother Dan Cantrell. Conference called at Honey Springs Baptist Church, 1906 Shindoll Street, Dallas, Texas to give Dan Cantrell permission to move building on Alsbury as payment for moving. By order of Church Clerk. Mrs. Edith Bandy.'

Perforce of above quoted instrument Cantrell proceeded to dispose of the structure, selling it to plaintiff W. W. Pate on April 12, 1955 for $500 cash; the latter being in process of demolition when stopped by Broadnax under claim that aforesaid structure constituted 'improvements' on the lots under the 1954 sales contract of the church, long since forfeited. Then arose these conflicting claims as reflected in pleading of the parties, in substance as follows:

Initiated by the petition of Pate, suing both Cantrell and Broadnax for a return of his $500; claiming against the former that he, Cantrell, had fraudulently represented himself as owner of property that he had no right to sell, and further liable in amount of $500 as punitive damages; in the alternative praying similarly as against Broadnax. In amended answer Cantrell alleged ownership of the building through the quoted church letter of January 2, and hence a right to sell to Pate; alternatively for judgment over against Broadnax. In trial amendment Cantrell answered further as against Broadnax that the latter had willfully refused him permission to remove his cribbing and building equipment underneath the house, amounting to a conversion of his property of the reasonable value of $500; in second trial amendment alleging that Broadnax had himself waived any right to forfeit the sales contract of the church by continuing to attempt collection of delinquent monthly payments. The answer of Broadnax pled the terms of the 1954 sales contract, providing for monthly payments on the lots of $30, that the September 1954 installment was not paid; that the contract was thereby automatically canceled, the purchasers expressly waiving their claim and rights to the property 'and all improvements thereon'; and further that the contract was executed with the understanding that the building would be placed on the property thus purchased as an improvement in lieu of a larger down payment.

The first of appellant Cantrell's five points is reflected in the foregoing outline of his pleading; in effect that the building was personal property, not having been affixed to the realty, which the church had turned over to him in extinguishment of the obligation incurred in moving of same; Broadnax having waived his right to cancel the sales contract by giving no notice of forfeiture but rather insisting on further payment of installments. Broadnax, on the other hand, insists that there was no evidence of probative force to raise the issue of waiver (if indeed such plea was available); the building in question constituting an improvement which 'automatically'...