Colvin v. Blanchard

• Citation: 106 S.W. 323
• Parties: COLVIN et al. v. BLANCHARD.
• Decision Date: 08 January 1908
• Court: Supreme Court of Texas

106 S.W. 323

COLVIN et al. v. BLANCHARD.

Supreme Court of Texas.

January 8, 1908.

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

Action by G. H. Colvin and another against J. T. Blanchard. From a judgment of the Court of Civil Appeals (103 S. W. 1118) affirming a judgment of the district court in favor of defendant, plaintiffs bring error. Affirmed.

Orrick & Terrell, for plaintiffs in error. W. B. Paddock, for defendant in error.

BROWN, J.

The honorable Court of Civil Appeals made a meager statement of this case, and we are under the necessity of looking to the undisputed facts, from which we make the following statement: For a number of years Blanchard had owned the property in controversy, and for at least one year prior to the transaction in question Gilliland & Harwood had been authorized by Blanchard to sell the lots. It seems from the evidence that the property had been advanced in price from time to time, but no sale was made, and on the 7th day of July, 1905, Gilliland & Harwood wrote a letter to Blanchard, which, however, was not in evidence, nor was its contents proved on the trial. On the 10th day of July, 1905, Blanchard replied as follows: "Milwaukee, July 10, 1905. Gilliland & Harwood, Fort Worth, Texas—Gents: Replying to yours of 7th inst., I beg to say that I will rent the building now occupied by L. G. Gilbert for $100.00 per month. I will sell the lots for $19,000 and pay you 5% com. plus $50, or $1,000 com. in all, for making the sale. In other words, I want $18,000 net for my lots. Terms, $3,000 cash, bal. long time. I hope you will find a renter for the building. Let me hear from you. Yours truly, J. T. Blanchard." After receiving the above letter, Gilliland & Harwood sold the lots to the plaintiffs in error for $23,500, $4,500 of which was to be paid to other parties for the house, which did not belong to Blanchard, and $19,000 was to be the price of the lots, $3,000 being paid in cash and the remainder secured by five notes payable in one, two, three, four, and five years; the first four notes being for the sum of $3,000 each and the fifth note for the sum of $4,000. Each note was payable "on or before" the date stated therein. On the 17th day of July, 1905, Gilliland & Harwood reported by letter the sale made to the plaintiffs in error, but no answer was received, and Gilliland & Harwood was informed by Blanchard's wife that he was absent from home. The deed for his signature was sent by express to Blanchard at his home, also a copy of the contract was sent by mail, but no answer was received by Gilliland & Harwood to their communication at any time. On October 24, 1905, Blanchard wrote this letter: "Milwaukee, Wis., Oct. 24, 1905. Mr. G. H. Colvin, Fort Worth, Texas—Dear Sir: I have before me a letter from Gilliland & Harwood of your city, in which they say they sold my Main street lots to you for $19,000; $3,000 cash, the balance, $16,000, to be evidenced by five notes in the sums of $3,000 the first year, $3,000 in two years, $3,000 in three years, $3,000 in four years and $4,000 in five years; notes bearing five per cent. interest payable annually, and notes to state `on or before.' Please inform me if this is correct, and oblige, yours very truly, J. T. Blanchard." G. H. Colvin replied October 27, 1905, as follows: "Fort Worth, Texas, Oct. 27, 1905. Mr. J. T. Blanchard, Milwaukee, Wis.—Dear Sir: Your letter of the 24th at hand and noted. It is a fact that I purchased your two Main street lots from your agents, Gilliland & Harwood, for $19,000 in accordance with the contract, a copy of which was forwarded you by them per express. Said contract was duly filed for record here in the county clerk's office. Yours truly, G. H. Colvin." Nothing more was heard from Blanchard about the matter until about January, 1906, when, being in the city of Ft. Worth, Gilliland met him and took him to Colvin's office to talk over the matter of the contract for sale. Colvin asked Blanchard what objection he had to the contract, but he testified that Blanchard only said "the interest is a little low," or something to that effect. Colvin offered to pay 6 per cent. on the notes, according to the terms of the contract, and give his notes at that rate, and he...