Davis v. Dilbeck

• Decision Date: 15 June 1921
• Docket Number: (No. 6375.)
• Citation: Davis v. Dilbeck, 232 S.W. 927 (Tex. App. 1921)
• Parties: DAVIS v. DILBECK et al.
• Court: Texas Court of Appeals

232 S.W. 927

DAVIS v. DILBECK et al.

(No. 6375.)

Court of Civil Appeals of Texas. Austin.

June 15, 1921.

Appeal from District Court, Coryell County; J. H. Arnold, Judge.

Suit by J. W. Dilbeck against L. F. Davis and another. From judgment for plaintiff, defendant Davis appeals. Reversed, and judgment rendered for defendant Davis.

Clay McClellan, of Gatesville, for appellant.

KEY, C. J.

J. W. Dilbeck brought this suit against the Guaranty State Bank & Trust Company and L. F. Davis. In the plaintiff's petition, it was alleged, in substance, that the plaintiff and the defendant Davis entered into a contract by which Davis agreed to sell and convey to the plaintiff two tracts of land out of the Jos. Burns survey, in Coryell county, Tex., for an agreed consideration of $75 per acre. The petition sets forth the manner in which the plaintiff was to pay for the land referred to, which included a conveyance by the plaintiff to the defendant Davis of certain real estate. It was further alleged that at the same time the plaintiff and the defendant Davis each executed and placed with the defendant bank a forfeit note for $1,000, and agreed that, if either party to the contract should fail or refuse to comply with its terms, then the forfeit note executed by him should become the property of the other party as a forfeit and liquidated damages, in full settlement for such default. The plaintiff prayed for judgment requiring the bank to deliver the forfeit note executed by the defendant Davis to him, and that he have judgment thereon against the defendant Davis.

The bank, in its answer, averred that it was a stakeholder, and was willing to abide the decision of the court and deliver the notes in accordance with the court's instruction. The defendant Davis, by his answer, excepted generally and specially to the plaintiff's petition, and denied generally the allegations thereof. He pleaded certain other matters, but specifically pleaded the statute of frauds, and averred that, if the contract pleaded by the plaintiff was made, it was in parol, and therefore illegal and void; that the note sued on represented damages for the breach of that contract, and that the contract being in violation of the statute of frauds and void, the note was therefore without consideration. Davis' answer contained other and more specific averments not deemed necessary to set out here. It is suffice to say that the pleadings raised two other issues, which the trial court submitted to the jury.

The defendant Davis, by exceptions to the plaintiff's petition and to the charge of the court, and by a requested instruction, which was refused, sought to have the trial court sustain his defense of the statute of frauds, but that court refused to do so. Upon the answer of the jury to two special issues, which did not relate to the statute of frauds, the trial court rendered judgment requiring the bank to deliver the Davis forfeiture note to the plaintiff, and that the plaintiff recover judgment thereon against the defendant Davis, and the latter has appealed.

The statute of frauds requires contracts for the sale of real estate to be in writing, and we presume that the trial court held that the contract here involved was in compliance with...