DeLuca v. Munzel

• Court: Texas Court of Appeals
• Writing for the Court: Before EVANS; BASS
• Citation: DeLuca v. Munzel, 673 S.W.2d 373 (Tex. App. 1984)
• Decision Date: 14 June 1984
• Docket Number: No. 01-83-00619-CV,01-83-00619-CV
• Parties: George J. DeLUCA, Appellant, v. Alexander O.H. MUNZEL, Individually, Munzel Holdings, Inc., Munzel Properties Corp., and Plantation Place Inc., dba Munzel Interests, Appellees. (1st Dist.)

Page 373

673 S.W.2d 373

George J. DeLUCA, Appellant, v. Alexander O.H. MUNZEL, Individually, Munzel Holdings, Inc. Munzel Properties Corp., and Plantation Place Inc., dba Munzel Interests, Appellees.

No. 01-83-00619-CV.

Court of Appeals of Texas Houston (1st Dist.).

June 14, 1984.

Rehearing Denied July 25, 1984.

Marsha E. Rule, Bryan, for appellant.

William J. Dyer, Baker & Botts, Houston, for appellees.

Before EVANS, C.J., and BASS and COHEN, JJ.

OPINION

BASS, Justice.

The appellant, George J. DeLuca, brought suit to recover money damages for the appellees' breach of their oral employment contract. After filing a general denial, the appellees, Alexander O.H. Munzel, et al., moved for summary judgment and claimed that two releases, executed by appellant and attached to their motion, negated every genuine issue of material fact and entitled appellees to judgment as a matter of law. The releases, admittedly executed by the appellant, purported to release the appellees from any and all liability whether in tort or in contract.

In response to the appellees' motion, the appellant offered his own affidavit which set forth the terms of their employment contract and the consideration allegedly given for the execution of the releases. Based upon those statements, the appellant claimed fact issues were presented as to whether he had received any consideration for the releases' execution. However the trial court granted the appellees' motion.

The appellant asserts two points of error. In the first point, the appellant contends the trial court erred in granting the appellees' motion for summary judgment, because the appellant's pleadings and affidavit raised a genuine issue of material fact as to whether the releases executed by appellant were invalid for want of consideration.

Under Rule 166-A, a defendant is entitled to summary judgment if he conclusively proves each and every element of his defense. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). Furthermore, it is well settled that a settlement agreement or release, which is valid on its face and has not been set aside, is a complete bar to a later action on the matters contained therein. Tobbon v. State Farm Mutual Automobile Insurance Co., 616 S.W.2d 243, 245 (Tex.Civ.App.--San Antonio 1981, writ ref'd n.r.e.). See also Schuh v. Schuh, 453 S.W.2d 203, 204 (Tex.Civ.App.--Dallas 1970, no writ).

In the present case, the appellant executed two releases: the first stated that appellees were released from any and all liability arising out of the sale of a specified piece of real estate, and the second broadly stated that appellees were released from any and all liability whatsoever, whether in tort or contract. The appellees attached the affidavit of Alexander Munzel, who attested to the validity of the documents presented to the court.

The appellant contends that the only consideration he received for the releases were amounts already owed to him under the parties contract, and that he accepted the amounts only because of the appellees' threat to pay nothing unless the instruments were signed. In support of his position, the affiant set forth the alleged consideration due under the parties' contract and argued that under these terms it was evident that the amounts paid for the releases was only part payment of the pre-existing, matured, and undisputed debt. In conclusion, the affiant asserted that this is "no consideration" as to any release of the remaining amounts owed.

It is indeed the rule that payment and acceptance of a sum of money less than the liquidated and undisputed amount of indebtedness owing, even if viewed by both parties as full payment of the debt owed, is inadequate as consideration and will not bar a subsequent suit brought by the creditor to recover the remaining balance. The case most often cited for this principle is the English common law case of Foakes v. Beer, 9 App. 605 (1884), and although often criticized, Silvers Box Corporation v. Boynton Lumber Co. 297 S.W. 1059 (Tex.Civ.App.--Eastland 1927, writ ref'd); Turner v. Pugh, 187 S.W.2d 598 (Tex.Civ.App.--Amarillo 1945, no writ); A. Corbin CONTRACTS § 174 (1952), it has been adopted by this state and is frequently applied. See, Silvers, supra; Prather v. Citizens National Bank of Dallas, 582 S.W.2d 903 (Tex.Civ.App.--Waco, 1979, writ ref'd n.r.e.); Pickering v. First Greenville National Bank, 495 S.W.2d 16 (Tex.Civ.App.--Dallas 1973, writ ref'd, n.r.e.); Wilson v. Woolf, 274 S.W.2d 154 (Tex.Civ.App.--Fort Worth 1954, writ ref'd n.r.e.); Lloyds v. Burtner, 436 S.W.2d 611 (Tex.Civ.App.--Fort Worth 1969, writ ref'd, n.r.e.); Tortuguero Logging Operation, Limited v. Houston, 349 S.W.2d 315, 319-21 (Tex.Civ.App.--San Antonio 1961, writ ref'd n.r.e.) (op. on reh'g); Franklin Ins. Co. v. Villeneuve, 60 S.W. 1014 (Tex.Civ.App.1901, no writ); Ward v. National Benev. Soc., 155 S.W.2d 994 (Tex.Civ.App.--Galveston 1941, no writ); Woodmen of World Life Ins. Soc. v. Smauley, 153 S.W.2d 608 (Tex.Civ.App.--Eastland, 1941, no writ). See also, Fire Ins. Ass'n. v. Wickham, 141 U.S. 564, 577-582, 12 S.Ct. 84, 87-89, 35 L.Ed. 860 (1891) (Citing this rule as a basic proposition of contract law.) A. Corbin, CONTRACTS, §§ 173-175 (1952); J. Calamari & J. Perillo, CONTRACTS 2d ed. 150-154 (1977).

The statements presented in the affiant's offer of proof raise an issue of fact as to whether the payments made to appellant were in partial...