Clegg v. Brannan

• Decision Date: 16 November 1921
• Docket Number: (No. 3064.)
• Citation: 234 S.W. 1076
• Parties: CLEGG v. BRANNAN et al.
• Court: Texas Supreme Court

Page 1076

234 S.W. 1076

CLEGG v. BRANNAN et al.

(No. 3064.)

Supreme Court of Texas,

November 16, 1921.

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

Suit by T. J. Clegg against J. H. Brannan and others. From a judgment of the Court of Civil Appeals (190 S. W. 812) affirming a judgment for defendants, plaintiff brings error. Affirmed.

D. T. Bomar, of Fort Worth, and Wright & Harris, of San Angelo, for plaintiff in error.

Cornell & Wardlaw, of Sonora, and W. B. Silliman, of Abilene, for defendants in error.

PIERSON, J.

Plaintiff in error, T. J. Clegg, owned certain blocks and parcels of land in and near the town of Carlsbad, in Tom Green county. Defendant in error J. H. Brannan owned a ranch in Schleicher county. Plaintiff in error, Clegg, and defendant in error Brannan contracted for an exchange of said lands. Defendant in error Brannan executed and delivered to plaintiff in error, Clegg, an instrument in writing which set out the terms of said trade and agreement, in substance, as follows:

J. H. Brannan bargained and contracted to sell to T. J. Clegg about 7,391 acres of land in Schleicher county, known as the Fury ranch, at a consideration of $8 per acre, for which plaintiff in error, T. J. Clegg, agreed to pay $1 cash and to make a good title and conveyance to various and sundry blocks and parcels of land situated in and near Carlsbad, Tom Green county, Texas. Said blocks and parcels of land included 329.67 acres, also the waterworks system in Carlsbad, Texas, a cotton gin, and a number of blocks in the town of Carlsbad, upon which were located a bathhouse, pavilion, and mineral wells.

In addition thereto, on account of certain repairs necessary to be done to the waterworks system and the gin, said T. J. Clegg was to deed certain other vacant lots owned by him in the town of Carlsbad to said J. H. Brannan, Brannan to select said lots. Further, as a part of the consideration between the parties, the plaintiff in error Clegg was to assume in the transaction an indebtedness of $15,486 against the property to be conveyed to him by Brannan; and Brannan was to assume an indebtedness of $9,400 against the property to be conveyed to him by Clegg.

It was also stipulated that each should furnish the other abstracts showing good title in law, and that the conveyances should be delivered within a specified time. This instrument was signed and acknowledged by J. H. Brannan.

This suit was brought by plaintiff in error, T. J. Clegg, against defendant in error Brannan and the other defendants who had acquired an interest in some of Brannan's land, to enforce specific performance of the above-described instrument. He alleged that when the written instrument signed by J. H. Brannan was executed and delivered to him he paid said Brannan $1 in cash; that he agreed to pay, and did pay by the assumption of an indebtedness owing by Brannan, $15,486; that he agreed to pay, and did pay, the further amounts stipulated by the instrument by executing and tendering deeds to defendant in error Brannan to the various and sundry blocks and parcels of land set out in said instrument to be deeded by him to Brannan. He further alleged that by the delivery of said instrument of writing to him, and his acceptance thereof, he agreed to perform and do all the things stipulated in said instrument, including the assumption of indebtedness stated; and that both he and defendant in error Brannan acted upon and treated said instrument of writing as binding upon both parties. He alleged that he complied with the terms of said contract, in that he had prepared and furnished to defendant in error the abstracts of title to all of the property which he was to convey to him; that he executed and tendered to defendant in error the conveyances to the property which under the terms of the contract he was to convey to said defendant in error; and that he performed all of the obligations required of him by the terms of said contract.

Defendant in error addressed the following exception to plaintiff in error's petition, to wit:

"This defendant specially excepts to so much of said paragraph 1 as purports to set out an instrument, and says that the same is wholly insufficient, because upon its face it is, if anything, in law a contract for the exchange of lands—a contract by defendant J. H. Brannan to convey plaintiff lands in exchange for lands to be conveyed by plaintiff to defendant Brannan, and said contract is unilateral and lacking in mutuality, and particularly lacking in mutuality with reference to remedies, since plaintiff did not sign or execute said contract, and since it is a contract required by the statute of frauds to be in writing, and was and is unenforceable as against the plaintiff Clegg."

The trial court sustained the exception, and, plaintiff in error declining to amend his petition, judgment was entered in favor of defendants in error. The honorable Court of Civil Appeals affirmed the judgment, holding that the contract sued on was unilateral, lacking in mutuality, since it bound defendant in error alone to convey, and that he could not have enforced specific performance of it as against plaintiff in error; and also holding that such performance of the contract as alleged by him was insufficient to entitle him to a decree of specific performance.

As disclosed by the demurrer that was sustained by the trial court, the question presented is an application of the statute of frauds.

The writ of error was granted upon an alleged conflict in cases. Plaintiff in error's application presents that there is a conflict in the holding of the Court of Civil Appeals in this case and of the holdings of the Courts of Civil Appeals in the cases of Hazzard v. Morrison (Civ. App.) 130 S. W. 244, and Anderson v. Tinsley (Civ. App.) 28 S. W. 121. A careful analysis of those cases discloses that the principles of law therein announced as applicable to the...