Collett v. Harris

• Decision Date: 26 March 1921
• Docket Number: (No. 661.)
• Citation: 229 S.W. 885
• Parties: COLLETT et ux. v. HARRIS.
• Court: Texas Court of Appeals

229 S.W. 885

COLLETT et ux. v. HARRIS.

(No. 661.)

Court of Civil Appeals of Texas. Beaumont.

March 26, 1921.

Rehearing Denied April 13, 1921.

Appeal from Jefferson County Court; D. P. Wheat, Judge.

Action by Elmer W. Harris against Forest Collett and wife. From judgment for plaintiff, defendants appeal. Reversed and rendered.

Collins, Morris & Barnes and Geo. C. O'Brien, all of Beaumont, for appellants.

Thos. N. Hill, of Beaumont, for appellee.

O'QUINN, J.

Elmer W. Harris brought this suit against Forest Collett and Camile Collett, his wife. The plaintiff's petition alleged that he was a real estate agent engaged in the business of buying and selling real estate on commission; that defendants placed with him lot No. 4 in block 40 of the Arlington addition to the city of Beaumont for sale at a stipulated price, for which plaintiff was to receive $100 as commission; that he procured a purchaser for said property, who was ready, willing, and able to buy same at the price and on the conditions agreed; that defendants refused to carry out said contract of sale and refused to make deed to same. Plaintiff further alleged that at the time he procured said purchaser for said lot, the said purchaser made plaintiff his agent, and employed plaintiff to resell said lot, and that he (plaintiff) procured another purchaser for same at an advance of $500, and which said last purchaser was ready, willing, and able to purchase said property; that by reason of defendants failing and refusing to carry out said contract of sale and to make deed to said lot, the said first purchaser sustained an actual loss of $500, and that by reason of their said breach of said contract, defendants became liable to pay said first purchaser of said lot the said sum of $500; that said first purchaser, prior to the filing of this suit, had transferred to plaintiff the said claim against defendants for said $500, for which he also sued, as well as the sum of $30 for procuring and passing upon an abstract of title to said lot to effect said sale, claiming the sum of $630 for commission and damages resulting from defendants' refusal to carry out the contract of sale, and for which he prayed judgment.

Defendants answered by general demurrer, several special exceptions, a general denial, and specially that the defendant Camile Collett was a married woman, the wife of her codefendant, Forest Collett; that the property in question was the separate property of Mrs. Camile Collett, and was at the time alleged by plaintiff the homestead of defendants; that these facts were known to plaintiff at the time he alleges the contract to have been made and entered into; and specially that defendant Mrs. Camile Collett never at any time nor in any manner contracted with plaintiff to sell her said property.

There was a nonjury trial, which resulted in a judgment against both defendants for the sum of $230, from which they have appealed.

Upon motion of defendants, the court filed his findings of fact and conclusions of law. He found that defendant Forest Collett, by memorandum of writing, employed plaintiff as agent to find for him a purchaser for lot 4 in block 40 of the Arlington addition to the city of Beaumont; that plaintiff found a purchaser for said lot, who was ready, willing, and able to buy same at the price agreed; that said lot was the separate property of defendant Camile Collett, wife of Forest Collett, and that plaintiff knew that fact at the time it was listed with him for sale; that at the time Forest Collett signed the memorandum in question, plaintiff requested Camile Collett to sign same, and she refused to do so, but authorized her husband to sign same, and he did so in her presence, but that he signed his name only, and not his wife's name; that said Camile Collett's name was not signed to said instrument; that the said property, at the time of signing of said memorandum by Forest Collett, was the homestead of defendants, which fact was known to plaintiff, but that said homestead consisted of two lots, and that defendants expected to make the adjoining lot their home after selling the lot No. 4; that after plaintiff had made the sale of the lot, Forest Collett was willing to carry out his agreement with plaintiff and offered to make deed himself, but that Camile Collett refused to execute any deed.

Appellants have assigned various errors, but as we construe the law and facts, there are but two questions for us to determine.

The facts, as found by the court, show that at the time the contract was made, appellee knew that Camile Collett was a married woman and the wife of Forest Collett, and that the lot in question was the separate property of Camile Collett, and also a part of their homestead. Knowing that Camile Collett was a married woman, and that the lot was her separate property, and also the homestead of defendants, the law charged appellee with notice of the fact that her parol contract to sell it was an absolute nullity. Cross v. Everts, 28 Tex. 524; Stone v. Sledge, 87 Tex. 49, 26 S. W. 1068, 47 Am. St. Rep. 65; Owens v. Land Co., 11 Tex. Civ. App. 284, 32 S. W. 189, 1057; Krebs v. Popp, 42 Tex. Civ. App. 346, 94 S. W. 115; Daniel v. Mason, 90 Tex. 240, 38 S. W. 161, 59 Am. St. Rep. 815; Jackson v. Carlock, 218 S. W. 578; Blakeley v. Kanaman, 107 Tex. 206, 175 S. W. 674; Kellett v. Trice, 95 Tex. 160, 66 S. W. 51.

The findings of fact further show that no fraud was perpetrated on appellee, and that he was not misled about anything or by anything unless it was the parol promise to convey the lot, made by Camile Collett (if the findings of fact by the court, wherein he finds that at the time the memorandum in question was signed by Forest Collett, appellee requested Camile Collett, to sign same, but that she declined to do so, and authorized her husband to sign said contract and memorandum, and same was signed by him in her presence and with her assent, but that he only signed his name to the agreement and did not sign his wife's name), could be construed into a promise to convey, and which she subsequently refused to do. Even if the facts shown (that she simply assented to her husband signing a contract to sell her separate property, she declining to do so) could be construed into a verbal agreement on her part to convey the lot, still, under the law, she had the right at any time, before she signed and acknowledged a deed conveying her separate property, to refuse to do so, and therefore appellee cannot base a cause of action upon her void parol promise to execute such conveyance. Jackson v. Carlock, 218 S. W. 582; Cross v. Everts, 28 Tex. 523; Daniel v. Mason, 90 Tex. 240, 38 S. W. 161, 59 Am. St. Rep. 815; Blakeley v. Kanaman, 107 Tex. 206, 175 S. W. 674; Jones v. Goff, 63 Tex. 253.

In Cross v. Everts, supra, the husband and wife made a parol contract to convey the homestead which the wife subsequently refused to carry out, and it was held that such refusal gave no cause of action against her, and the court used the following language:

"In this case there is no fraudulent misrepresentation, no concealment, no deceit, no fraudulent imposition; nothing but a refusal to comply with an absolutely void promise to convey her homestead, which the appellant knew Mrs. Everts had a legal right to retract at any time, even up to the last moment before it was consummated. However reprehensible in morals this failure to make good her promise may be, it is not fraudulent either in fact or in law, and gives to the appellant no right of action against her."

It is contended by appellee that under what is known as the Married Woman's Act of 1913 (Acts 33d Leg. c. 32, Vernon's Sayles' Civ. St. arts. 4621, 4622, 4624), Camile Collett, although...