City of Abilene v. Sayles

• Decision Date: 04 June 1927
• Docket Number: (No. 787-4784.)
• Citation: 295 S.W. 578
• Parties: CITY OF ABILENE v. SAYLES.
• Court: Texas Supreme Court

295 S.W. 578

CITY OF ABILENE v. SAYLES.

(No. 787-4784.)

Commission of Appeals of Texas, Section B.

June 4, 1927.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by Henry Sayles, Jr., against the City of Abilene. Judgment for defendant was reversed and remanded by the Court of Civil Appeals (290 S. W. 239), and defendant brings error. Judgment of Court of Civil Appeals affirmed.

Davidson & Hickman and Thos. E. Hayden, Jr., all of Abilene, for plaintiff in error.

Sayles & Sayles, of Eastland, and Wagstaff, Harwell & Wagstaff, of Abilene, for defendant in error.

POWELL, P. J.

The nature and result of this case have been admirably stated by the Court of Civil Appeals. See 290 S. W. 239. Inasmuch as we have reached the conclusion that its judgment should be affirmed, we shall not restate the case at any length. The city of Abilene contracted, in writing, to convey to Henry Sayles, Jr., certain tracts of land, most of which adjoin Lake Abilene, an artificial source of water supply for said city. The city later repudiated its contract, and he brought this action to enforce specific performance thereof. The trial court, at first, sustained certain special demurrers. Upon the refusal by Sayles to amend, the general demurrer was then sustained. Upon his still further refusal to amend, the cause was dismissed. The Court of Civil Appeals reversed the judgment of the trial court, remanding the cause for further proceedings.

The writ of error was granted by the Supreme Court on the second assignment in the application, reading as follows:

"Because the honorable Court of Civil Appeals erred in holding that the appellant's said amended petition is not subject to demurrer on account of the insufficiency of the description of the land as contained in the contract."

The description in the contract giving rise to the question here in dispute reads as follows:

"Also such parts of the hereinafter described lands heretofore purchased by said city, the portions or parts of said lands sold to said Sayles being the lands not included within Lake Abilene, and situated above the water level of the proposed maximum capacity of Lake Abilene, and the said city reserves from all of the hereinafter named lands a strip of land 100 feet wide around the water level at maximum capacity of said lake, and it is understood and agreed that all the intervening spaces between the water level of said Lake Abilene and the lands hereby sold shall be used for roadway purposes only."

Immediately following the last preceding aforesaid quotation are listed several tracts of land. It is not contended that the tracts are indefinite. The contract further provided, as follows:

"The city engineer of said city is to survey and furnish plat and field notes as to the acreage hereinabove bought and sold, in order to compute the acreage to be delivered and deeded under this contract of sale."

The parties do not contend that there would have been any difficulty in surveying three sides of these tracts. But it is urged by the city that the fourth side, bordering the lake, could not have been located by the city engineer from any provision actually contained in the contract. And, to be more specific, it seems to be conceded by all the parties and both the lower courts that, if the words "situated above the water level of the proposed maximum capacity of Lake Abilene" be unexplained or left without certain implications of law, then the description is hopelessly deflcient. We now come to a consideration of this quoted clause and its effect.

We think there can be no real controversy as to the law in this connection. The Court of Civil Appeals discusses this principle of law correctly in the following language:

"The remaining question is as to the sufficiency of the description. In deciding that question, it must be kept in mind that a contract for the sale of real property is not within the statute of frauds, where, from the description contained in the contract, the property may bef identified. In other words, that is certain which can be made certain, but the means of locating or identifying the property must be found in the contract itself. In Stroburg v. Walsh (Tex. Civ. App.) 203 S. W. 391 (writ refused) it is held that oral testimony is admissible in a proper case to identify the subject matter of a contract, but the oral testimony which is admissible must be suggested by the description contained in the writing. Oral testimony is not admissible to prove the terms of a contract which the parties have put in writing but such evidence is admissible to apply the terms of the contract to the subject-matter; that is to say, to identify such subject-matter, where the contract itself furnishes the key to such identification. Jones v. Carver, 59 Tex. 294."

Our section of the Commission of Appeals has thoroughly discussed this principle in the two very recent cases of Continental Supply Co. v. Railway Co., 268 S. W. 444, and Hanks v. Hamman, 288 S. W. 143; Id., 289 S. W. 993.

We think, in line with aforesaid authorities by our court, that the Court of Civil Appeals in the case at bar is correct in stating that parol evidence is not admissible to show what was meant by the words "proposed maximum capacity." As stated by counsel for the city, the opening up of parol testimony of that character might develop conflicts in the testimony. And it certainly might add, by parol, to...