Danvers v. Frost

• Decision Date: 14 May 1961
• Docket Number: No. 3578,3578
• Citation: 348 S.W.2d 485
• Parties: Don DANVERS, Appellant, v. Mrs. Adele FROST et al., Appellees.
• Court: Texas Court of Appeals

Page 485

348 S.W.2d 485

Don DANVERS, Appellant, v. Mrs. Adele FROST et al., Appellees.

No. 3578.

Court of Civil Appeals of Texas, Eastland.

May 14, 1961.

Rehearing Denied June 21, 1961.

Kampmann & Kampmann, San Antonio, for appellant.

Trueheart, McMillan, Russell & Westbrook, Moursund, Ball & Bergstrom, San Antonio, for appellees.

WALTER, Justice.

Mrs. Adele Frost, joined by her husband, Jack Frost, filed suit against Don Danvers seeking cancellation of an earnest money contract between Mrs. Frost, as buyer, and Don Danvers, as seller. The Frosts also sought recovery against Alamo Title Company of $10,000 cash which Mrs. Frost had deposited with Alamo as earnest money which had theretofore been paid by Alamo to Danvers. Mrs. Frost sought this relief on the ground of disability of coverture. The title company answered and asked that it have judgment over against Danvers for any judgment Mrs. Frost obtained against it.

The court granted a summary judgment that the Frosts recover $10,000 from Alamo and such contract was cancelled. The court also granted a summary judgment in favor of Alamo on its cross action against Danvers for the $10,000 plus attorneys' fees.

Danvers has appealed, contending the court erred in granting the summary judgment because a material issue of fact existed as to whether or not the earnest money remained earnest money on the date appellant received notice of avoidance or was in fact liquidated damages. Also, he contends the date appellant received notice of avoidance is a material issue of fact and further that Mrs. Frost is estopped to assert the defense of disability of coverture.

While Mr. Frost was out of the city, Mrs. Frost entered into a written contract with Danvers to purchase such property for $180,000 and deposited $10,000 with Alamo 'as earnest money to bind the sale to purchase'. Mrs. Frost informed the real estate agent that she thought Mr. Frost would sign the contract when he returned. The real estate agent had done some work for Mr. and Mrs. Frost in the past and in the contract Danvers agreed to pay him a commission of 5%. When Danvers was asked in his deposition, 'Who did you deal with on the date of the contract?' he replied, 'We had an agent, real estate agent by the name of William Jack Jackson.' We think the agent would, therefore, by the agent for both parties. United States Fidelity & Guaranty Company v. San Diego State Bank, Tex.Civ.App., 155 S.W.2d 411; 2 Tex.Jur.2d, p. 694. When the agent returned the contract, Danvers said: 'He came over and in a big flourish he threw it on the desk and says, 'Here is your deal; it is signed, sealed and delivered, and here is the check.' And then only did we find out that it was only partly executed.' The day after he entered into the contract with Mrs. Frost, Danvers called the owner of the property and informed him he was exercising his option to purchase said property and instructed him 'to prepare the title and put it in the name of Jack Frost'. After Mr. Frost refused to sign the contract, Danvers, through his agent, submitted the property to Mr. Frost for $150,000 and Mr. Frost informed them he was not interested in the property at any price.

Mrs. Frost's contract was executed on April 10, 1957, and under certain conditions the transaction was to be closed within 30 days. After all negotiations to sell the property to Mr. Frost failed, Danvers drew down the $10,000 earnest money from Alamo on May 20, 1957, and gave them a letter of indemnity.

Appellant first contends that a genuine issue of a material fact existed as to whether or not the $10,000 deposited with Alamo as earnest money remained earnest money on the date he received notice of avoidance or was, in fact, liquidated damages. Danvers' position is that the earnest money lost its character as such and was transmuted into liquidated damages when he drew it down on May 20, 1957. He contends the $10,000...