Davenport v. Sparkman

• Decision Date: 12 February 1919
• Docket Number: (No. 30-2671.)
• Citation: 208 S.W. 658
• Parties: DAVENPORT v. SPARKMAN.
• Court: Texas Supreme Court

Page 658

208 S.W. 658

DAVENPORT v. SPARKMAN.

(No. 30-2671.)

Commission of Appeals of Texas, Section A.

February 12, 1919.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by B. H. Davenport against W. G. Sparkman and another. Judgment for plaintiff against defendant named reversed by Court of Civil Appeals, 160 S. W. 410, and plaintiff brings error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

R. H. Templeton, of Wellington, and Barrett & Jones, of Amarillo, for plaintiff in error. J. L. Rudy, of Bowie, Stark & Stark, of Jacksboro, and Turner & Wharton, of Amarillo, for defendant in error.

SONFIELD, P. J.

On the 12th day of August 1911, B. H. Davenport and W. G. Sparkman entered into a contract wherein Davenport, as independent executor of the estate of M. W. Davenport deceased, agreed to sell and convey to W. G. Sparkman, sections numbered 49 and 50 in block No. 10, H. & G. N. R. Co. survey, Collingsworth county for the agreed consideration of $19,200, $4,000 cash payable on the 1st day of January, 1912, the balance of the purchase money to be evidenced by eight vendor's lien notes, each in the sum of $1,900, due and payable as provided in the contract. The parts of the contract material herein read as follows:

"This contract is conditioned that the party of the first part will procure and deliver to party of the second part deeds and abstracts of title to the above-described property within ten days from date, and party of the second part will then have ten days to have said abstract examined by his attorney; if the title as shown by the abstract is good and valid, then first party will make deeds to said land to each tract of land; if title as disclosed by said abstract is not good, then the second party shall procure and submit to party of the first part a statement in writing containing the objections to said abstract within ten days from the date of receiving said abstract. If said objections are of such a character that they can be cured and removed within the period of time not to exceed January 1, 1912, then said first party shall be obligated to so cure and remove said objections at his own expense, and it is hereby agreed and understood that the said party of the first part shall have sufficient time to cure the objections and resubmit to party of the second part for his approval.

"But, if the title to said property as shown by said abstract is not good, and objections thereto are not cured and removed by said first party within the time hereinbefore stated, then the said second party shall have the right to declare this contract at an end and no longer binding on him, and same shall become null and void and the said second party shall be entitled to return of all property paid by him by reason of this contract.

"As an evidence of good faith and in earnest of this contract, the said party of the second part has this day made and executed a note for the sum of $3,000 in favor of B. H. Davenport, and due January 1, 1912, secured by chattel mortgage on certain mules in Jack county, Texas, with the understanding that, if the said first party does make and tender to the party of the second part a good and perfect deed to said land conveying to the said second party, for the price and on the terms hereinbefore stated, and does in fact deliver a complete abstract of title to said property, and the abstract shows good title to said land within the time hereinbefore stated, and said second party fails or refuses to keep and perform the obligations herein imposed upon him by this agreement and make the cash payment of $4,000, on January 1, 1912, as provided in said deed for cash, then and in that event he shall forfeit to said first party the aforesaid sum of $3,000 as evidenced by the said promissory note, as liquidated damages."

In compliance with the contract, the note in the sum of $3,000 was duly executed by Sparkman, together with the chattel mortgage and five vendor's lien notes, executed by R. T. Hughes, payable to Sparkman, were delivered as collateral security under a provision of the contract not hereinabove set out.

B. H. Davenport, plaintiff, brought suit against W. G. Sparkman and R. T. Hughes, defendants, to recover on the said note and for foreclosure of the chattel mortgage and the lien evidenced by the five vendor's lien notes executed by defendant R. T. Hughes.

Defendant Sparkman defended on the ground that the note sued on was executed in accordance with the contract, and was payable only in the event of compliance with the contract by plaintiff and default by defendant; that the contract was breached by plaintiff because the abstract furnished was not a complete abstract as contemplated by the contract, it did not show good title in plaintiff, and the deeds tendered were insufficient to invest defendant with title to the land. Defendant Hughes adopted the answer of defendant Sparkman.

The cause was tried before the court and judgment rendered in favor of plaintiff against the defendant Sparkman for the principal and interest of said note, together with 10 per cent. attorney's fees, foreclosing the chattel mortgage and the lien evidenced by the vendor's lien notes executed by defendant Hughes. On appeal by defendant Sparkman alone, the Court of Civil Appeals reversed the judgment...