Cramer v. White, 17784

• Decision Date: 04 February 1977
• Docket Number: No. 17784,17784
• Citation: 546 S.W.2d 918
• Parties: Jud CRAMER, Appellant, v. Larry Bruce WHITE, Trustee, Appellee.
• Court: Texas Court of Appeals

Page 918

546 S.W.2d 918

Jud CRAMER, Appellant, v. Larry Bruce WHITE, Trustee, Appellee.

No. 17784.

Court of Civil Appeals of Texas,

Fort Worth.

Feb. 4, 1977.

Rehearing Denied March 4, 1977.

Kelly & Walker and Jearl D. Walker, Fort Worth, for appellant.

Locke, Purnell, Boren, Laney & Neely, Stephen Philbin, Dallas, for appellee.

OPINION

HUGHES, Justice.

Larry Bruce White, as trustee for himself and his brother, Robert White, sued Jud Cramer for $10,000.00 paid (one-half as earnest money; one-half as consideration for option to buy a tract of land up to one day before closing of transaction) by Larry and Robert to Cramer at the time of executing a contract to purchase a farm in Ellis County. At trial Larry contended that Cramer had committed an anticipatory breach of the contract. Cramer denied the breach allegation and alleged that Larry was himself in breach. In his brief Cramer asserts that the option terminated contractually when Larry failed to deliver to Cramer on or before February 27, 1974, written notice of his intent to buy such land.

Pertinent portions of the contract are:

'2. The purchase price is $432,000.00 payable as follows: $ See Para. II B cash, of which Buyer has deposited with the Seller Buyer's check subject to collection for $10,000.00 as part payment, receipt of which is hereby acknowledged by Seller. The said $10,000 payment shall represent a $5,000.00 payment for the option to purchaser to declare this contract null and void on or before February 27, 1974, and $5,000.00 earnest money which shall be credited toward the purchase price at time of closing. In the event option to purchase is not exercised by purchaser, in writing, on or before February 27, 1974, the entire $10,000 prepayment shall be forfeited to the seller. It is also agreed that Purchaser has the right at any time prior to February 28, 1974, to sell, or transfer, the option to purchase set out above.

'Balance to be paid in accordance with Paragraph II C of the Special Condition.

'10. Other Terms: Closing shall take place on February 28, 1974, at Rattikin Title Co., Throckmorton Street, Fort Worth, Texas. . . .

'SPECIAL CONDITIONS

'A. Seller agrees to furnish, at Seller's expense, a current survey of the property covered hereby, the same to be prepared by a registered professional surveyor acceptable to Purchaser, which survey shall be furnished at time of closing. Such survey shall locate all easements, roads, and rights-of-way, shall show no encroachments upon the property, and shall contain the surveyor's certification as to the number of net acres contained in the property, exclusive of any land lying within encroachments, easements, roads and rights-of-way. The purchase price for the property shall be adjusted upward or downward so that it shall be an amount equal to $3,000.00 times the number of net acres shown by such surveyor's certification, any such adjustments to be made pro rata to the cash down payment at closing and to the principal amount of the First Lien promissory note, hereafter referred to as the 'Note'.

'B. The down payment shall be $82,350.00 which shall consist of 12 1/2% Principal plus one year prepaid interest at a rate of 7 1/2% Per annum.

'K. All prior documents and agreements executed by and/or between the parties hereto with respect to the property herein described are hereby cancelled, terminated and declared void, each signatory hereto releasing all others from any and all liability arising under or pursuant to said prior documents and agreements, the execution hereof being the consideration for said mutual releases. Anything contained herein to the contrary notwithstanding, Buyer or Seller shall have no liability whatever to Seller or Buyer, in excess of the $5,000.00 option payment and $5,000.00 earnest money to be credited to the purchase price (total of $10,000.00 maximum potential liability) in the event the purchase and sale herein described is not consummated for any reason whatever, Buyer & Seller hereby waiving any and all other rights, remedies or causes of action for damages or equitable relief available at law, in equity or pursuant to other provisions of this Agreement.' (S.F. Def.Ex. #1)

Larry did not give written notice of intent to buy. Cramer did not deliver a net acreage survey.

The case was tried to a jury. Cramer's motion for instructed verdict was denied. Three special issues were submitted to the jury, which, with answers, are as follows:

'QUESTION NO. 1:

'Did Jud Cramer, before February 28, 1974, communicate to Larry Bruce White a positive refusal to produce on February 28, 1974, time of closing, a 'net acreage survey'?

'Answer 'Yes' or 'No'.

'ANSWER: Yes

'If you have answered Question No. 1, 'Yes', then answer Question No. 2; otherwise do not answer Question No. 2.

'QUESTION NO. 2:

'Did the refusal by Jud Cramer, if any, constitute the sole or only reason for the failure of Larry Bruce White to exercise the option to purchase in writing on or before February 27th, 1974?

'Answer 'Yes' or 'No'.

'ANSWER: Yes

'If you have answered Questions 1 and 2, 'Yes', then answer Question No. 3; otherwise do not answer Question No 3.

'QUESTION NO. 3:

'Was Larry Bruce White ready, willing and able on February 28th, 1974, to perform and consummate the contract to purchase the subject property if the 'net acreage survey' was produced on February 28th, 1974?

'Answer 'Yes' or 'No'.

'ANSWER: Yes'

Cramer's motion for judgment non obstante veredicto was denied; judgment was rendered for Larry; Cramer's first amended original motion for new trial was overruled and appeal was perfected.

Larry bases his case upon the fact that no 'net acreage survey' was ever delivered to him or to the closing officer ('net acreage survey' under the contract in this instance meaning the survey of the gross acreage of the land in question less the encroachments, easements, roads and rights-of-way).

Cramer contends that he was not obligated to furnish the net acreage survey until time of closing on February 28, 1974, and then only if Larry had delivered notice in writing to Cramer on or before February 27, 1974, that he was exercising the option to purchase. (Cramer did furnish Larry gross acreage surveys that identified easements but did not show easement acreage.)

Larry and Robert testified that they were ready to close the deal when they received the net acreage survey but that Cramer told them through Alvin Botts, the escrow and closing officer for Rattikin Title Company, '. . . he wasn't going to furnish him any other survey other than the one we had here.' '. . . that's the way he bought the property' and that he wanted to sell the property like it was. Robert contended that they did not give written notice of intent to purchase because they assumed 'there was nothing to be done' since Cramer 'obviously wasn't providing me with a net acreage survey.' Further, the Whites claimed that it was too late for Cramer to obtain a net acreage survey a day ahead of...