Crozier v. Horne Children Maintenance and Educational Trust

• Decision Date: 27 February 1980
• Docket Number: No. 16274,16274
• Citation: 597 S.W.2d 418
• Parties: Alan K. CROZIER and Helen C. Crozier, Appellants, v. The HORNE CHILDREN MAINTENANCE AND EDUCATIONAL TRUST, J. R. Houser, Trustee, Appellee.
• Court: Texas Court of Appeals

Page 418

597 S.W.2d 418

Alan K. CROZIER and Helen C. Crozier, Appellants, v. The HORNE CHILDREN MAINTENANCE AND EDUCATIONAL TRUST, J. R.

Houser, Trustee, Appellee.

No. 16274.

Court of Civil Appeals of Texas, San Antonio.

Feb. 27, 1980.

Rehearing Denied April 9, 1980.

James L. Drought, Calhoun Bobbitt, Brite, Drought, Bobbitt & Halter, San Antonio, for appellants.

Tuck R. Chapin, San Antonio, for appellee.

OPINION

KLINGEMAN, Justice.

This is a suit on a written contract of sale of a residence in Bexar County, Texas. The Horne Children Maintenance and Educational Trust, J. R. Houser, Trustee (Horne), the purchaser under said contract, brought suit against Alan K. Crozier and wife, Helen C. Crozier (Crozier), the seller, seeking rescission of the contract, alleging performance by Horne and breach thereof by Crozier. Crozier sued by counterclaim for damages stipulated in the contract and attorney's fees, alleging performance by them under the contract and breach thereof by Horne. After a non-jury trial, the trial court held that the contract was ambiguous on its face and decreed rescission.

Crozier, by one point of error, complains that the trial court erred in holding that the contract was ambiguous on its face contending that (a) the contract of sale is not ambiguous on its face; (b) Horne did not plead ambiguity; and (c) the trial court erred in permitting parol evidence over Crozier's objection to vary or contradict the terms of the written contract entered into. Horne maintains that (a) the contract is ambiguous on its face; (b) Crozier waived the lack of any pleading of ambiguity by not excepting to Horne's petition; and (c) by counterpoint Horne asserts that the trial court erred in not allowing Horne's trial amendment pleading ambiguity.

The contract of sale is dated December 21, 1977. The agreed purchase price was $210,520, payable as follows: (a) the sum of $10,000 cash to be paid at the time of execution of the contract; (b) the execution and delivery at such time by buyer to seller of a real estate lien note in the principal sum of $30,000 payable on September 1, 1978; (c) the further sum of $31,000 cash to be paid by buyer to seller on September 1, 1978; and (d) the assumption by buyer of an outstanding real estate lien note executed by Crozier payable to the San Antonio Savings Association in the original principal sum of $132,000 dated February 25, 1976.

The other pertinent portions of the contract here involved read as follows:

II.

(2) Buyer shall pay to First American Title Company at San Antonio, Texas, as escrow agent, the sum of $1,315.00 per month, commencing on January 1, 1978, and continuing on the first day of each month thereafter and ending with a final payment on August 1, 1978; the monies so paid to be disbursed to Sellers on September 1, 1978, upon performance by Sellers of their obligations hereunder or upon cancellation of this agreement by reason of Buyer's default.

(4) On September 1, 1978, Buyer shall assume the obligation to pay that one certain Real Estate Lien Note in the original principal sum of $132,000.00 dated February 25, 1976, executed by Alan K. Crozier, et ux, Helen C. Crozier, and payable to the order of San Antonio Savings Association, and Buyer shall, on the same date, deliver to Sellers a Deed of Trust to secure such assumption covering the property to be conveyed hereunder.

IV.

When Buyer shall have made the payments and delivered the instruments as specified by and in accordance with the terms and provisions of Paragraph II hereof, Sellers will convey the property described in Paragraph I hereof to Buyer by Warranty Deed, on current form of the State Bar of Texas, conveying good and indefeasible title, with covenant of general warranty, subject to any conditions and restrictions, if any, existing against said property, and any other exceptions that may be hereinafter specifically set forth. Sellers are to also furnish Buyer an owner's policy of title insurance issued by First American Title Company in the amount of the purchase price. Taxes and insurance shall be prorated as of December 22, 1977.

V.

In the event Buyer shall default in the prompt payment of any part of the purchase price as described in Paragraph II hereof, or shall fail to deliver timely any of the instruments called for in such paragraph, or shall violate or omit to perform any of the provisions of this agreement, and such default, violation or omission shall continue for a period of ten (10) days, then in any of such events, Sellers may elect to declare this contract canceled and of no further force and effect, and in the event Sellers elect to declare this contract canceled and of no further force and effect, all monies that have been paid to or deposited with Sellers hereunder shall be forfeited and belong to Sellers as liquidated damages to compensate Sellers for breach of this contract and for rental and deterioration of the property, and immediately upon this contract being declared canceled and of no further force and effect all the rights, claims and interest of the Buyer in and to said property shall thereupon terminate and be at an end and the property shall unconditionally belong to Seller; provided however, that in the event Buyer shall default and this contract be canceled and declared of no further force or effect, all monthly payments of $1,315.00, as described in Paragraph II hereof, which have been paid to the Escrow Agent, as of the time of cancellation, shall be paid to Sellers and applied to reduce the amount of indebtedness evidenced by the Real Estate Lien Note in the amount of $30,000.00 described in Paragraph II hereof, and the Buyer and Edward Horne and wife, Diane Horne shall thereafter be liable only for the unpaid balance of said Real Estate Lien Note as so reduced. Notwithstanding the foregoing, this paragraph is subject to the conditions precedent set forth in Paragraph XIV.

After the contract was signed, Horne, pursuant to such contract, made the $10,000 cash deposit, executed a note in the amount of $30,000 payable to the Croziers, and regularly made the monthly payments of $1,315, all in accordance with the terms and provisions of said contract. Shortly before September 1, 1978, the date the transaction was supposed to be closed, Mr. Rowland, an employee of the title company, submitted a proposed settlement agreement to both Horne and Crozier for their inspection. Upon receipt of the proposed settlement agreement, Crozier made two objections: (a) the proposed settlement agreement did not require Horne to pay the taxes and insurance after December 22, 1977, as provided for in the contract, and (b) it provided for an assumption of the existing indebtedness as of December 22, 1977, rather than September 1, 1978, as provided for in the contract. Mr. Rowland then prepared another settlement agreement which corrected these provisions accordingly. Both parties tendered documents for closing (deed, deeds of trust, etc.) on or prior to September 1, 1978. Horne, although aware of Crozier's objections, tendered the amount of money indicated in the first submitted settlement agreement and refused to close under the second settlement agreement. Both parties gave notice of default, Horne contending that the refusal of Crozier to close under the first settlement agreement was a breach of contract, and Crozier contending that the tender made by Horne was not in conformity with the contract and constituted a breach thereof. Horne filed suit alleging full performance under the terms of the contract and a breach by the Croziers in refusing to close, and asked for rescission of the contract. Crozier counterclaimed for the liquidated damages stipulated in the contract alleging Horne's failure to perform under the provisions of the contract and also sought reasonable attorney's fees.

In this opinion we will discuss together the respective contentions made by Horne and Crozier, and they will be discussed generally as follows: (1) lack of pleadings as to ambiguity, (2) parol evidence, and (3) ambiguity.

Lack of Pleadings

A person seeking to establish ambiguity under a written contract must specifically plead such ambiguity. Vickers v. Vickers, 553 S.W.2d 768, 770 (Tex.Civ.App. Beaumont 1977, no writ); 13 Tex.Jur.2d Contracts § 373 (1960). Generally, a trial court cannot grant relief that is without pleadings to support it and a judgment which is not supported by the pleadings is not warranted. Oil Field Haulers Association v. Railroad Commission, 381 S.W.2d 183, 191 (Tex.1964); City of Fort Worth v. Gause, 129 Tex. 25, 29, 101 S.W.2d 221, 223 (1937); Carreon v. Texas State Department of Public Welfare, 537 S.W.2d 345, 347 (Tex.Civ.App. San Antonio 1976, no writ); Edwards Feed Mill v. Johnson, 302 S.W.2d 151, 154 (Tex.Civ.App. San Antonio 1957), rev'd on other grounds, 158 Tex. 313, 311 S.W.2d 232 (1958); Jones v. Jones, 301 S.W.2d 310, 314 (Tex.Civ.App. Texarkana 1957, writ ref'd n. r. e.); Forman v. Barron, 120 S.W.2d 827, 830 (Tex.Civ.App. El Paso 1938, writ ref'd).

A party may not plead one theory of recovery and have a judgment based upon another theory not pled. Douthit v. Anderson, 521 S.W.2d 127, 128-29 (Tex.Civ.App. Dallas 1975, no writ); Payne v. Laughlin, 486 S.W.2d 192, 194 (Tex.Civ.App. Dallas 1972, no writ); Colvin v. Baskett, 392 S.W.2d 804, 806 (Tex.Civ.App. Amarillo 1965, no writ); Johnson Aircrafts, Inc. v. Wilborn, 190 S.W.2d 426, 430 (Tex.Civ.App. Fort Worth 1945, writ ref'd w. o. m.).

Horne asserts that the Croziers waived the lack of pleading of ambiguity by not excepting to its petition. There was nothing wrong with Horne's petition upon which he went to trial and there was no reason to except to it. Horne's petition pled the contract, pled its performance by Horne, pled breach by Crozier and asked for a rescission. As a pleading this was adequate. Crozier's pleading specifically denied the performance of the contract by Horne and...