Cooper v. Steen, 15434

• Decision Date: 24 October 1958
• Docket Number: No. 15434,15434
• Citation: 318 S.W.2d 750
• Parties: Dorothy E. COOPER, Appellant, v. Helen STEEN et al., Appellees.
• Court: Texas Court of Appeals

Page 750

318 S.W.2d 750

Dorothy E. COOPER, Appellant, v. Helen STEEN et al., Appellees.

No. 15434.

Court of Civil Appeals of Texas, Dallas.

Oct. 24, 1958.

Rehearing Denied Dec. 12, 1958.

O. M. Stubblefield, Dallas, for appellant.

A. J. Piranio and P. P. Ballowe, Dallas, for appellees.

YOUNG, Justice.

Appellant's suit was for cancellation of deed and damages, consequent upon a real estate transaction; alleging fraudulent conduct of defendants in various particulars. After plaintiff had adduced testimony and rested her case, defendants interposed a motion for instructed verdict; which, being sustained, the court withdrew the case from the jury and rendered a judgment for defendants. Such judgment duly excepted to is now presented for review.

Appellees reject the preliminary statements of appellant concerning 'nature and result of suit' except as to the fact of defendants' judgment rendered upon motion therefor. Following is a rehash of the material facts underlying this controversy by our own inspection of the record; defendants herein being Helen Steen and Clyde M. Walker.

On February 2, 1955 Clyde M. Walker and wife Huelene, sellers, and Dorothy E. Cooper, purchaser, executed a contract of sale relative to property described therein as '114 & 116 South Ira', Dallas County; more fully described in later conveyances as 'All that certain lot, tract or parcel of land situated in Dallas County, being Lots 29, 30 and 31 in Block 20 of Arcadia Park Addition to the City of Dallas, Texas, according to the map thereof recorded in Vol 1, page 377, Map Records of Dallas County, Texas;' said contract further providing 'the price is $11,000.00, payable as follows: $1,000.00 in cash of which purchaser has deposited with Clyde M. Walker, as part payment, the receipt of which is hereby acknowledged by said * * * with the balance of the cash payment to be paid upon final closing; * * *'. 'This contract is subject to purchaser assuming a loan in the amount of approximate $7,000.00. The seller agrees to carry a second lien note in the amount of $3,000.00; payable $1,000.00 the first year as follows: $500.00 to become due and payable (6) Six Months from date of closing, and $500.00 to become due and payable (1) One year from date of closing--Then the balance at $20.00 per month at 6% interest. The said executed note to be secured by vendor's lien and Deed of Trust with power of sale, and with the usual covenants as to taxes, insurance, and default.' The American Title Company of Dallas was agreed upon as the agency for closing of sale.

On date of above contract of sale, the described property was owned by defendant Helen Streen, (Ida Mae McCord having an interest) and Clyde M. Walker was this defendant's real estate agent. It soon developed that Mrs. Cooper could not qualify as maker of the $7,000 loan involved, she having no regular income; the arrangement then being that a sale should first be made by owners (Steen & McCord) to Clyde M. Walker and wife by their executing a $7,000 installment note to Dallas Federal Saving and Loan Association, payable $80 per month, at interest as therein provided, the Walkers advancing $3,000 in cash, which preliminary transaction was consummated by Deed of April 7, 1955.

The later deed from the Walkers to plaintiff Cooper was dated August 29, 1955 and recited '$10.00 cash and other good and valuable considerations'; the assumption of balance due ($6,884.33) of the Dallas Federal Saving and Loan Association's first lien note; also 'the execution and delivery by the grantee herein of one certain promissory note of even date herewith in the principal sum of Three Thousand and No/100 ($3,000.00) Dollars bearing interest from date until maturity at the rate of 6% per annum, being due and payable as therein provided; said note is secured by Subordinate and Inferior vendor's lien herein retained and additionally secured by Deed of Trust of even date herewith to W. R. Knight, Trustee.' Said deed was acknowledged by grantors on September 21, 1955. The mentioned $3,000 second lien note and Deed of Trust executed by plaintiff in the transaction bore same date as the deed; the deed of trust instrument also being acknowledged by Mrs. Cooper on September 21. Said $3,000 note provided for payment at $20 per month beginning September 29, 1956 at 6% interest; providing further, viz.: 'It is agreed and understood that the maker hereof will pay $500.00 on or before January 17, 1956 and an additional $500.00 to be paid on or before July 17, 1956.' The note had been assigned by the Walkers to Helen M. Steen and the first $500 installment was paid to her by Mrs. Cooper on February 6, 1956. Here it will be observed that the contract of sale recited that maturity of the two $500 payments was to be six and twelve months 'from date of closing'; defendant contending that the closing date was August 29, 1955, date of the Walker-Cooper deed; plaintiff contending that the closing date was October 10, date of filing deed for record; Mrs. Cooper testifying that she called attention of Mrs. Steen to the discrepancy, the latter admitting the second lien note to be erroneously drawn but that she would not seek foreclosure until 'your due time * * * I will let you use your contract'; and that with this reservation such note and deed of trust were signed.

According to Mrs. Cooper, defendant Steen attempted to foreclose on the property in July 1956, claiming default in payment of the second $500 installment due July 17, 1956, posting notices; likewise in July and September, to which injunction suits were interposed; actual foreclosure being consummated November 6, 1956; the record showing a trustee's deed of that date, consideration $2,500 paid by Helen M. Steen; under which the latter had repossessed the property.

As already stated, appellees' motion for instructed verdict was based on the claim of no evidence or insufficient evidence to raise any issues of fact for the jury. This would ordinarily require an analysis of plaintiff's pleadings, also the evidence material thereto. We have so examined the record but will simply make reference to the trial court's summation of the case in such connection made to the jury as explanatory of reasons for grant of motion resulting in the defendants' judgment. ¹

Attention is directed to the trial court's oral finding that 'the claim of the plaintiff concerning harassment or intimidation, or keeping her from selling the property, has not been supported by proof, in order for her to meet the burden of proof'; plaintiff having pled in original petition that 'that defendants have constantly intimidated, harrassed, and obstructed plaintiff's efforts to sell her property and said sales have been lost, prevented and interferred with by said defendant Helen M. Steen talking with prospective buyers and discouraging them from buying; that said intimidation, harrassment, and such fraud perpetrated upon Plaintiff has impaired her health and damaged her entire nervous system for the rest of her life; to plaintiff's further damage in the sum of $50,000.00.'

We turn to the evidence offered by plaintiff in this connection. Mrs. Cooper had testified to an inability to meet the $500 installment payment second lien note due prima facie on July 17, 1956 and had determined to sell the property in an effort to save her equity; placing an ad in a local newspaper describing it, along with the sale price ($11,000) and her telephone number. She claimed that a Mrs. E. W. Rector was a prospective purchaser, who upon a 'phone call, was answered by defendant, Mrs. Steen, the latter discouraging any transaction with Mrs. Cooper stating that she was 'crazy'.

'Any intentional invasion of, or interference with, property, property rights, personal rights, or personal liberties causing injury without just cause or excuse is an actionable tort'. 86 C.J.S. Torts Sec. 40, p. 954; 25 Tex.Jur. (Interference) page 33. Bearing in mind this general principle, the following excerpts are quoted from the testimony of Mrs. Rector, a witness for plaintiff: (on direct-examination):

'Q. Now, do you know Dorothy E. Cooper, Mrs. Rector? A. Yes, indeed I do.

'Q. How long have you known her, Mrs. Rector? A. I have been knowing her about 20 years, Mr. White.

'Q. During that time have you known of her to be--have any employment? A. She is a very good practical nurse, very good.

'Q. Does she make a little imcome out of that? A. Yes, some income. * * *

'Q. (By Mr. White) Are you acquainted with this property on Ira Street? A. Yes, I am.

'Q. Have you been out there, Mrs. Rector? A. No, I haven't been out there, but I am acquainted with it through the ad that was in the paper.

'Q. What type of ad was that? * * * Was it an employment ad or sale ad or what? A. It was a sale ad trying to sell her place, I believe.

'Q. On this property? A. Yes, sir.

'Q. Did you answer that ad? A. I sure did.

'Q. Did you call a telephone number? A. Yes, I did.

'Q. Was there any name displayed in the ad? A. Yes, I asked her who she was, and she told me that her name was Mrs. Steen and said that--:

'* * * The Court: Do you recall what month and what year? A. It was in July, around the 10th of July.

'Q. (By Mr. White) In '56? A. In '56, yes.

'Q. A person answered the phone? A. Yes.

'Q. Now, who did the person say she was? A. Mrs. Steen, Stein, whatever you call it.

'Q. Did you have any conversation with her? A. Yes, I talked to her. * * * I asked her if the place was for sale, and she said 'Yes.' She said that, however, Mrs. Cooper didn't have anything to do with it. I asked her who did it belong to, and she told me that she had, she had charge of it now, Mrs. Cooper didn't have it no more.

'Q. She had taken it from her? A. That she had taken it from her, taken it over, she said. She said Mrs. Cooper didn't have it no more. * * *

'Q. Did you ever buy this property? A. Sir?

'Q. Did you sign a contract on this property? A. No, sir, I...