Dews v. Floyd

• Decision Date: 30 March 1967
• Docket Number: No. 272,272
• Citation: 413 S.W.2d 800
• Court: Texas Court of Appeals
• Parties: R. L. DEWS et ux., Appellants, v. B. C. FLOYD et al., Appellees. . Tyler

Page 800

413 S.W.2d 800

R. L. DEWS et ux., Appellants, v. B. C. FLOYD et al., Appellees.

No. 272.

Court of Civil Appeals of Texas.

Tyler.

March 30, 1967.

Charles E. Coleman, Tyler, for appellants .

Lawrence & Lawrence, Wm. M. Williams, Jr., Tyler, for appellees.

DUNAGAN, Chief Justice.

This suit was instituted by appellees, as the plaintiffs in the court below, on September 13, 1965, against appellants.

Following the filing of defendants'-appellants' original answer, plaintiffs-appellees filed their first amended original petition on December 6, 1965. On February 18, 1966, appellants filed their first amended answer and it was on these pleadings that the case went to trial before the court without the aid of a jury on June 17, 1966. The suit was brought to recover indebtedness due under a contract of sale prior to its rescission, for balance due on a promissory note, and for attorney's fees.

On March 3, 1964, appellants and appellees entered into a valid contract in good faith by which appellees were to sell a house and lot in the City of Tyler to appellants. Appellants were to pay a certain sum each month and keep up the taxes and insurance. Upon completion of performance by appellants, appellees were to convey title to them. There were certain expenses in connection with the making of the contract, which expenses appellants were unable to pay and which were represented by a promissory note given by appellants to appellees in the amount of.$236.00.

On March 1, 1965, appellees considered appellants to be in default and brought a forcible detainer proceeding in the justice court, Precinct No. 1, Place No. 2, Smith County, Texas, in which they sought judgment for restitution of the premises described in the purchase contract costs, and for such other relief as they 'may be entitled to, either in law or in equity.' The justice court granted appellees possession of the premises and also a judgment for the sum of $443.64 as rent and costs; however, the judgment was found void by the trial court in this case insofar as it allowed the money judgment, since the money judgment exceeded the jurisdictional amount in the justice court.

Because the money judgment awarded by the justice court exceeded the jurisdictional amount of such court, suit was brought in the 7th Judicial District Court of Smith County for the indebtedness accruing to appellees under the contract of sale prior to the rescission thereof, which included the unpaid balance due and owing on the principal, taxes, insurance, the balance due on the.$236.00 promissory note and for attorney's fees.

The pertinent portions of the contract, which forms the basis of this lawsuit, read:

'The purchase price is Nine Thousand Five Hundred and No/100 ($9,500.00) Dollars. Purchaser agrees to pay the purchase price as follows: $250.00 cash as down payment, * * * and the payment thereafter of equal monthly installments in the amount of Eighty-Five and no/100 ($85.00) Dollars each, the first installment to become due and payable on or before April 1, 1964, and a like installment to become due and payable on or before the 1st day of each succeeding month thereafter until the entire indebtedness is paid, * * *.

'* * * and Purchaser herein agrees to pay all taxes due on the above described premises during the time this contract is in force * * *.

'If Purchaser fails to comply with any of the conditions and obligations agreed to and assumed herein, the Seller may at his option declare the entire balance of the purchase price due and collectible or may rescind this contract; and in the event of rescission, all payments already made by the Purchaser herein shall be taken and retained by the Seller not as a penalty but as and for liquidated damages for the breach of this contract; and Purchaser herein is to make payment on or before each installment due date, and in the event Purchaser is as much as thirty (30) days delinquent, on any installment due date, Seller herein may exercise his option herein given to rescind the contract, and the failure of the Seller to exercise such option at the time of any default shall not operate to bar or abridge his right to exercise such option upon any subsequent default of the Purchaser. A letter addressed in the ordinary mails to the Purchaser at his last known post office address shall be sufficient notice of the exercise of such option by the Seller and within ten (10) days from the mailing of said notice, Purchaser agrees to deliver possession to the Seller.

'In the event it becomes necessary for the Seller herein to employ an attorney or attorneys to file suit against Purchaser herein, for collection of the balance due under this contract or for possession of said premises, then and in that event, Purchaser herein agrees to pay any reasonable attorney's fees that Seller may have been forced to expend in connection with this contract.

'In the event Seller elects to declare this contract null and void and of no further force and effect through failure of the Purchaser to carry out the terms of this contract and make the payments of principal and interest when due, the Seller shall be entitled and shall receive full surrender and possession of said premises and improvements thereon, and the Purchaser agrees that the Seller may begin dispossession proceedings in any court for such possession as against a monthly tenant if and when the monthly payments as stipulated herein are not paid on or before the 1st day of each month when due. Then and in that event, this agreement at the option of Seller or his legal representatives or assigns shall become and be void and of no effect except as to this clause and the Seller shall be entitled to immediate surrender and possession of said premises.'

Several months after the contract was executed, appellants fell in arrears and never thereafter got back on a current basis. They not only fell in arrears on the monthly installment payments, but failed to pay the taxes and insurance. Therefore, it became necessary for appellees to assume payment of these obligations as provided by the terms of the contract.

After having defaulted, appellants continued to reside on the premises and forced appellees to bring the forcible detainer proceeding to recover possession as hereinabove stated.

The court in the instant case entered judgment for appellees in the sum of $573.10, together with interest thereon at the rate of eight percent (8%) per annum from date of judgment and all costs of suit. The judgment did not award appellees a recovery for any sum of money due and owing them that accrued after rescission, except the $100.00 for attorney's fees which the court found to be a reasonable sum for the services rendered. From this judgment, appellants have appealed.

Also, the trial court filed findings of fact and conclusions of law in which it found that:

(a) Sometime during the fall of the year of 1964, the appellants fell in arrears in their installments set out in the contract and were never thereafter on a current basis.

(b) The appellants were notified on or about April 28, 1965, that the contract was in default and proper and timely demand was made of them for possession of the premises.

(c) The premises were released by the appellants only after the filing of a forcible entry and detainer suit and judgment was entered therein.

(d) The appellants were obligated to pay under said contract and there accrued and was due to be paid to the appellees before the rescission the sum of $78.00 as unpaid installment payments.

(e) Under the contract, the appellants promised to pay the county, state, Tyler Independent School District and Tyler Junior College taxes for the year 1964.

(f) The composite of the taxes for the said state, county, school district and Junior College for the year of 1964 was $154.64.

(g) The appellants have never paid this sum or any part thereof, but the appellees did pay such taxes for appellants.

(h) The sum of $154.64 in taxes paid by the appellees was added to the sum due by the appellants to the appellees under the said contract.

(i) The appellants had the undisturbed use and occupancy of the premises described in the contract for the period of time from the date of the contract until the same was released on or about the 28th day of May, 1965.

(j) The value of such use and occupancy of the premises during the period from March 3, 1964, through and until the time of the said release of the premises by the appellants, after allowing all proper offsets and credits so due, is the sum of

(1) The appellees employed the firm of

(k) The appellants were unjustly enriched in the amount of $154.64 by the use of the premises without paying for the taxes indicated.

(1) The appellees employed the firm of Lawrence & Lawrence, attorneys at law, to represent them and prosecute their rights under the contract herein involved. Such law firm did treat and negotiate with the appellants, file a forcible entry and detainer action, attend hearings thereunder and file this litigation and carried it through trial and judgment. The sum of $100.00 is a reasonable attorney's fee for such services of said law firm.

(m) The appellants executed and delivered a promissory note dated March 3, 1964, in the original principal amount of.$236.00.

(n) This note became in default in July, 1964.

(o) After allowing all proper credits, the sum of money due under this promissory note as of the date of the judgment in this cause was the sum of $240.64.

(p) Appellees, by the letter dated April 27, 1965, and received by appellants on April 28, 1965, giving notice to appellants that the contract was in default and demanding possession of the premises, was notice of their intention to rescind the contract in question.

(q) The appellees did file a forcible entry and detainer suit against the appellants and a judgment was entered in justice court, Precinct No. 1, Place No. 2, Smith County, Texas, for the recovery of...