Clifton v. Charles

• Decision Date: 27 January 1909
• Citation: 116 S.W. 120
• Parties: CLIFTON v. CHARLES.
• Court: Texas Court of Appeals

116 S.W. 120

CLIFTON v. CHARLES.

Court of Civil Appeals of Texas.

January 27, 1909.

Rehearing Denied February 24, 1909.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

Action by S. S. Charles against George M. Clifton. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Atlee & Atlee and Ogden, Brooks & Napier, for appellant. Bertrand & Arnold, C. C. Clamp, and S. S. Searcy, for appellee.

NEILL, J.

Briefly stated, this is a suit by the appellee against the appellant and his brother, C. H. Clifton, as partners, for specific performance, or, in the alternative, to recover damages for its breach of a contract for the sale of 42 sections of land situated in Webb county, Tex., alleged to be of their partnership property. It was averred that the contract was made on December 10, 1906, by the defendants through their authorized agents, whereby they agreed to sell and the plaintiff buy from them the land which comprised 26,880 acres, at the price of $1.62½ per acre, 22½ cents per acre to be paid cash, 65 cents per acre in the form of a note payable six years after date, with interest at the rate of 4 per cent. per annum, and 75 cents per acre in the form of two notes payable one year after date, with interest at the rate of 6 per cent. per annum. Other provisions of the contract were alleged, which, because immaterial to the decision of the case, we deem unnecessary to recite. Plaintiff alleged, though he had performed in part and had tendered performance in full of his part of the contract, that defendants, though requested, had wholly failed and refused to perform their agreement or any part thereof. It was also averred in plaintiff's petition that the market value of the land when the contract was made was $2 per acre. The petition closes with a prayer for a decree compelling a specific performance by the defendants of the contract, or, in the alternative, for damages in the sum of $10,000 for its breach. The defendants filed separate answers. The answer of each consists of a general and special demurrer, a general denial, and a denial under oath of the alleged partnership. The case was tried without a jury, and judgment was rendered in favor of the plaintiff against the appellant Geo. M. Clifton for damages of 12½ cents per acre for 26,880 acres, amounting in the aggregate to $3,360, and against the plaintiff in favor of the other defendant. The trial court filed the conclusions of fact and of law upon which its judgment was rendered. We shall notice only such of the conclusions as we deem essential to a disposition of this appeal.

Pretermitting any question as to the validity of the contract sued on arising from the lack of authority of the alleged agents to make it for appellants, we conclude, in accordance with the findings of the trial court, that the contract set out in plaintiff's petition was entered into by the appellant through his agents and the defendant in person; that the appellant, when he authorized his agents to effect the sale, represented to them that he and his brother were the owners, that he had authority to act for his brother in selling the land, and that appellant approved the sale effected by such agents; that appellant's codefendant was in no way a party to such contract, and knew nothing of it whatever until after this suit was instituted; that neither at the time the appellant authorized the parties alleged to be his agents to procure a purchaser for the lands nor at the time such agents effected the contract of sale did the appellant or his codefendant own said lands or any part thereof; but, on the contrary, all of said land was owned by the Southern Land & Live Stock Company, a corporation, whose deeds thereto, duly recorded, were of record in Webb county, where the land is situated, of which neither the agents of appellant who affected the sale nor the appellee had any actual notice or knowledge, save the constructive notice which the law charged them with by reason of the record of said deeds.

The fourth conclusion of law found by the trial court is as follows: "Defendant Geo. M. Clifton, by representing himself and his brother as the owners of the land, and by representing that he had authority to act for his brother, and by authorizing the agents to sell the land, and by approving the sale made by them, and by directing them to close said sale, became liable to plaintiff as if said representations were true. Having failed to comply with the contract to convey, and not having procured a conveyance to be made by the Southern Land & Live Stock Company, he is liable in damges for the difference between the contract price and the fair market value of the land when it should have been conveyed, 12½ cents per acre, on 42 sections or 26,880 acres, amounting to $3,360, for which amount judgment for plaintiff is entered against him."

The ninth and eleventh assignments of error are:

"Ninth. The court erred in the fourth conclusion of law in holding appellant liable as for false representations when the recovery is not sought upon the grounds of false representations made by appellant; it appearing from the pleadings and from the evidence that plaintiff sues only for specific performance or damages upon a contract for the sale of land."

"Eleventh. The court erred in its fourth conclusion of law in holding appellant liable for failure to procure a conveyance to be made by the Southern Land & Live Stock Company, it not appearing from the pleadings nor from the evidence that appellant had bound himself to procure such a conveyance of the lands mentioned in the contract sued on."

Each of these assignments is submitted in appellant's original brief as a proposition.

In a supplemental brief, the filing of which in the district court was waived by appellee's counsel, additional propositions are asserted under the ninth assignment,...