Clarke v. Taylor

• Decision Date: 26 June 1920
• Docket Number: (No. 9370.)
• Citation: 223 S.W. 878
• Parties: CLARKE et al. v. TAYLOR et al.
• Court: Texas Court of Appeals

223 S.W. 878

CLARKE et al. v. TAYLOR et al.

(No. 9370.)

Court of Civil Appeals of Texas, Ft. Worth

June 26, 1920.

Appeal from Tarrant County for Civil Cases; W. P. Walker, Judge.

Suit by P. H. Clarke and others against L. L. Taylor and others. From a judgment overruling pleas of privilege, defendants appeal. Reversed and remanded, with instructions.

W. E. Fitzgerald and J. B. Hatchitt, both of Wichita Falls, for appellants.

R. C. Armstrong, Jr., of Ft. Worth, for appellees.

BUCK, J.

This is an appeal from an order and judgment of the county court of Tarrant county for civil cases overruling a plea of privilege. On February 13, 1919, L. L. Taylor and O. D. Taylor, of Wichita county, entered into a contract with P. H. and C. L. Clarke, of Tarrant county, whereby the Taylors agreed to sell to the Clarkes a certain lot in Wichita Falls for $7,500, which contract was in part as follows:

"All payments to be made and papers delivered at office in Wichita Falls, Tex. This contract shall be consummated, and all things done and performed upon the part of each party, on or before the 13th day of February, A. D. 1919."

It was further provided that the Clarkes should deposit with Carter & Burns, Wichita, Falls, $250, said sum to be applied on the cash payment in case the deal should be consummated, and said sum was to be forfeited in case the Clarkes should fail to carry out their part of the contract, and in case the Taylors should fail to carry out their part of the contract said sum was to be returned to the Clarkes. On March 14, 1919, C. L. Clarke sent the following message to the Taylors at Wichita Falls, to wit:

"We have already been damaged by loss of time and railroad fare to the extent of two hundred dollars. Abstract has not been delivered to us. If you do not intend to comply with your contract and will return our two hundred fifty dollars and pay us the other sum of two hundred and fifty dollars damages which we have sustained we will quitclaim our rights to lot four block one three nine otherwise we demand that you strictly comply with your contract. If you can and will comply with your contract we want twenty days time from delivery of abstract to us here at Washington Hotel, Fort Worth, Texas. Answer.

                                          "C. L. Clarke."
                

On the following day L. L. Taylor wired C. L. Clarke, care Washington Hotel, Ft. Worth, the following answer:

"The abstract is not completed yet will be out in about seven days the abstracters are far behind here will send it as soon as we get it you may have 20 days for examination as you requested. Your deed can come with it you

                want it write us.         L. L. Taylor."
                

The abstract furnished by the Taylors, according to the testimony of Clarke, wholly failed to show a good and merchantable title to the land in controversy, and thereafter, after being notified of such objections to the title, the Taylors failed to cure the same or to return the money deposited. Thereupon suit was filed in Tarrant county upon the promise of defendants made in their telegram of March 15, 1919, to deliver in Tarrant county the abstract complete. Plaintiffs made the two Taylors and Carter & Burns defendants, and asked for a judgment for $250, the earnest money advanced, and $250 alleged to have been reasonably incurred in the employment of an attorney to represent them in the matter of acquiring title to the land hereinbefore mentioned, and to examine the abstract to said property, plaintiffs alleging that they had paid and agreed to pay their said attorney such sum, which was a reasonable and customary charge for such services. Each of the four defendants filed his plea of privilege to be sued in Wichita county, where he resided. These pleas seem to be in proper form and in compliance with article 1903, V. S. Tex. Civ. Statutes, as amended by Acts 35th Leg. c. 176 (Vernon's Ann. Civ. St. Supp. 1918, art. 1903).

Upon hearing, and after the introduction of the witness R. L. Armstrong, Jr., plaintiffs' attorney, he testified that on or before March 28, 1919, he examined for C. L. Clarke what purported to be an abstract of title to lot 4, block 139, of Wichita Falls, Tex., and that he found that said title was not a good and merchantable title, and so informed his client. The testimony of plaintiff C. L. Clarke was that on March 14, 1919, there was sent to the Taylors at Wichita Falls the telegram heretofore mentioned and that in answer thereto he received from L. L. Taylor the message heretofore sent out. Clark further testified that he had employed R. C. Armstrong, Jr., to represent the interests of plaintiffs in acquiring title to said lot, and that plaintiffs had been at all times ready, willing, able, and anxious to close the purchase of said lot. He further testified that the abstract furnished by the defendants Taylor was returned to them at Wichita Falls, in order that they might have the same perfected and completed, and that defendants had wholly failed to meet and cure any of the objections made by the plaintiffs' attorney to the title to the property in question.

The contract of sale was also introduced, which in part provides:

"Second. — Said party of the first part further agrees to furnish party of the second part a complete abstract of the title to said land, certified by some competent abstracter within a reasonable time and not later than 10 days from the date herein. And the said second party agrees to report in writing its objections to and the defects in said title, if any, within 20 days...