Culbertson v. Brodsky, 2-89-080-CV

• Decision Date: 27 March 1990
• Docket Number: No. 2-89-080-CV,2-89-080-CV
• Citation: 788 S.W.2d 156
• Parties: Sam CULBERTSON, Individually and as Independent Executor and Trustee under the Will of Jerry Monroe Culbertson, Deceased, and Culbertson Enterprises, Inc., Appellants, v. Frederick BRODSKY, Appellee.
• Court: Texas Court of Appeals

Page 156

788 S.W.2d 156

Sam CULBERTSON, Individually and as Independent Executor and Trustee under the Will of Jerry Monroe Culbertson Deceased, and Culbertson Enterprises Inc., Appellants, v. Frederick BRODSKY, Appellee.

No. 2-89-080-CV.

Court of Appeals of Texas Fort Worth.

March 27, 1990.

Rehearing Overruled May 1, 1990.

Fielding, Barrett, Hunter & Taylor and Tim G. Sralla, Fort Worth, for Sam Culbertson.

Larry Parnass, Irving, for Culbertson Enterprises, Inc.

Mankoff, Hill, Held & Goldburg, P.C., and Andrew F. Emerson, Dallas, for Frederick Brodsky.

Before WEAVER, C.J., and HILL and FARRIS, JJ.

OPINION

FARRIS, Justice.

Appellants (Culbertson), vendors in a real estate contract, complain of a judgment for specific performance in favor of the purchaser, Brodsky, contending, in part, that the contract was not supported by consideration. We reverse the judgment of the trial court and render judgment for Culbertson because the trial court granted specific performance of an option to purchase which was not supported by consideration from the purchaser.

Brodsky's suit was based upon a written real estate contract of sale which provided that Brodsky would deliver to Southwest Land Title Company his check in the amount of $5,000 earnest money. The contract required the title company to hold the check in escrow until the expiration of a sixty-day feasibility period. During the sixty-day period, Brodsky could conduct a feasibility and engineering study of the property, enter the property to conduct any inspections or tests, and if the property was unacceptable to him, then he in his sole discretion could terminate the agreement and demand return of the earnest money with neither party having any continuing obligation to the other.

In his first five points of error, Culbertson complains that there is no consideration for the option to purchase because the contract gave Brodsky a "free look" at the property while obligating Culbertson. In response, Brodsky argues that an implied obligation of good faith on his part was sufficient consideration for the exclusive right to purchase the property and also that his delivery of the check for $5,000 to the escrow agent was a forbearance which was consideration. We agree with Culbertson that the option lacked consideration, reject the arguments brought forward by Brodsky, and reverse the judgment of the trial court.

Specific performance is an appropriate remedy for breach of contract only if the contract materially obligates both parties from the date of agreement and performance or waiver after the date of agreement by the party seeking specific performance will not overcome a lack of mutuality of obligation. See Burkman v. Levy, 129 S.W.2d 397, 400 (Tex.Civ.App.--Waco 1939, writ dism'd), see also Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454 (1943).

An option contract requires consideration for both the option and the underlying contract, and unless consideration is paid for the option, it is revocable during its term. Hott v. Pearcy/Christon, Inc., 663 S.W.2d 851, 853 (Tex.App.--Dallas 1983, writ ref'd n.r.e.). Brodsky's check for $5,000 was not consideration for the option because the title company was forbidden to cash the check until the expiration of the...