Cunyus v. Hooks Lumber Co.

• Court: Texas Court of Appeals
• Writing for the Court: Key
• Citation: Cunyus v. Hooks Lumber Co., 48 S.W. 1106, 20 Tex.Civ.App. 290 (Tex. App. 1899)
• Decision Date: 18 January 1899
• Parties: CUNYUS v. HOOKS LUMBER CO.

48 S.W. 1106

CUNYUS v. HOOKS LUMBER CO.

Court of Civil Appeals of Texas.

January 18, 1899.

Appeal from district court, Hardin county; L. B. Hightower, Judge.

Action by F. M. Cunyus against George W. Hooks and others, as the Hooks Lumber Company, to enforce a contract to sell land. Judgment for defendants, and plaintiff appeals. Reversed.

F. M. Cunyus, in pro. per. O'Brien, Bordages & O'Brien, for appellee.

KEY, J.

Appellant instituted this suit against George W. Hooks, W. B. Strickland, and John Sutherland, alleging that they were partners, doing business under the firm name of the Hooks Lumber Company. The suit is founded upon the following contract: "Kountze, Tex., March 29, 1889. We hereby agree to sell F. M. Cunyus one certain tract of land, known as the `Vanmeter Survey,' being 2,000 acres, more or less. It is understood that we, the Hooks Lumber Co., reserve all timber on said land, and agree to move said timber in four (4) years; price of land after timber being removed, 10 cents per acre. We have received $5 as part payment. The Hooks Lumber Company, Sutherland." The plaintiff alleged that he had tendered to defendants $195, the balance of the purchase money for the land, and prayed that defendants be compelled to convey the land to him, or, if it should appear that they cannot do so, that he recover the difference between the contract price and the value of the land, as damages. He also described the land referred to in his petition and Exhibit A, thereto attached, as follows: "Situated in Hardin county, Texas, part of the survey originally granted to S. K. Vanmeter, beginning at the southwest corner of said survey," etc.; giving the metes and bounds of the land sued for. The defendants answered by general and special exception and general denial. Upon trial, the court overruled the exceptions to the plaintiff's petition, and, after hearing the testimony, rendered judgment for the defendants.

The testimony shows that there is a S. K. Vanmeter league survey of land in Hardin county, Tex.; that it is the only Vanmeter survey in that county; and, at the time the contract was made, the Hooks Lumber Company claimed to own 2,000 acres of said survey. The court below held, as matter of law, that the description of the land, as set out in the contract, is not sufficient, and can constitute no basis for the action brought by the plaintiff; and it appears that this is the reason why the judgment was rendered for the defendants. If error was...