Donnell v. Currie & Dohoney

• Court: Texas Court of Appeals
• Writing for the Court: Hodges
• Citation: Donnell v. Currie & Dohoney, 131 S.W. 88 (Tex. App. 1910)
• Decision Date: 30 June 1910
• Parties: DONNELL v. CURRIE & DOHONEY.<SMALL><SUP>†</SUP></SMALL>

131 S.W. 88

DONNELL v. CURRIE & DOHONEY.^†

Court of Civil Appeals of Texas.

June 30, 1910.

Rehearing Denied October 20, 1910.

Appeal from District Court, Stephens County; Thomas L. Blanton, Judge.

Action by Thomas Currie and another against W. T. Donnell. From a judgment for plaintiffs, defendant appeals. Affirmed.

Kay & Akin, for appellant. Veale, Davidson & Veale, for appellees.

HODGES, J.

This suit is one instituted by the appellees to recover damages for the breach of a contract to sell and convey two tracts of land. From the argument it appears that the action was originally one for specific performance, in which others were joined as parties defendant, but, by subsequent amendment of the original petition, it had been reduced to its present form against Donnell alone. Upon a trial before the court without a jury, judgment was rendered in favor of the appellees against Donnell for the sum of $960 as damages. The substance of the defense urged on this appeal is the insufficiency of the pleadings and the evidence to establish a contract in writing enforceable against the appellant. The facts relied on both in the pleadings and in the evidence consisted mainly of the written correspondence between the appellant and his agents and the memorandum made by one of the agents of the sale and its terms at the time it was negotiated.

The first group of assigned errors relates to the action of the court in overruling appellant's general and special exceptions to the amended original petition. While some of those are termed special exceptions, they are, in fact, only general demurrers to different portions of the petition, as they attack the substance, and not the manner and form, of the pleading. In view of the fact that the evidence is no more comprehensive than the pleading assailed, those objections may be considered in connection with the assignment which questions the sufficiency of the evidence to support the judgment rendered. The following is a summary of the material portions of the evidence upon which the judgment of the court may be sustained: In 1905 the appellant, Donnell, was the owner of two sections of land described in the petition situated in Oldham county. This he had placed upon the market, and had listed it with Will A. Miller, Jr., a real estate agent of Amarillo, Tex., there is also evidence which justified a finding that it was at the date of the negotiations hereinafter referred to also in the hands of John H. Wills, another real estate agent in the same city. In December, 1905, Wills had an offer of $3 per acre for the land from the appellees. This offer Wills communicated to appellant in the following letter: "Amarillo, Texas, Dec. 19th, 1905. W. T. Donnell, Eliasville, Texas—Dear Sir: I have your letter Sept. 30th, in regard to selling your land in Oldham county, and note what you say about putting it with other parties. I don't blame you for that; in fact, it is the best thing to do, since I have had to be away so much on account of my wife's health. I have just returned a few days ago from California where I took her for the winter. Of course, you retained the right to sell the land yourself, therefore, I take it that you would entertain an offer from any one. There was a party in to-day inquiring about land out that way. I told him about your land and that if you had not sold, he might make a trade with you. He finally made me a proposition of $3.00 per acre on your two sections, on terms of one-third cash, balance in one and two years at eight per cent., provided there was no lakes on the land. I told him that he would have to do better than that. He refused to raise it and said I could submit it. So if you care to entertain this you can so advise me and I will try and close it up, provided, of course, you will pay me the usual commission of five per cent. if I make the sale. Awaiting your instructions. Yours truly [Signed] John H. Wills." December 29th appellant answered as follows: "Eliasville, Tex., Dec. 29, 1905. J. H. Wills, Amarillo, Texas—Dear Sir: Yours of the 20th inst. received. Was away from home when it came. As I have left my land in the hands of Will A. Miller, you can see him. I'll take $3.25 per acre, one-third cash, note 1 & 2 years at 8%. Writing Miller to-day in regard to it and if you and him can divide com. and sell to your man would be glad, as I would like to sell. Am sorry that you had to be away from home acct. of wife's health. Yours very truly, W. T. Donnell." On the same day appellant wrote to Will A. Miller as follows: "Eliasville, Tex., Dec. 29, 1905. Will A. Miller, Jr., Amarillo, Texas—Dear Sir: Inclosed a letter from J. H. Wills who had a man that offered $3.00 for my land, but as I have made ends meet will not take less than $3.25, and if you can make any arrangement with Mr Wills and sell that land for $3.25, one-third down, balance one and two years, would appreciate it. I referred Mr. Wills to you. Yours, etc. [Signed] W. T. Donnell."

According to the testimony of Wills, who is not contradicted, he, with the consent of Miller, entered into an agreement with the appellees by which he sold them the land on the terms mentioned in Donnell's letter, and Dohoney, one of the appellees, gave his check for $100, which was accepted by Wills as a part payment of the purchase price. As to this transaction Wills testified as follows: "Acting under the letter attached and made a part of my answer to direct interrogatory No. 4, 1 made an offer of said land to plaintiffs for $3.25 per acre, one-third cash, balance in one and two years, interest at 8 per cent. per annum, and said offer was `excepted' by the plaintiffs on January 2, 1906, and at that time the plaintiffs paid me as part payment on the sale of said land $100. This was on January 2, 1906. * * * I made and executed and delivered to the plaintiffs a memorandum in writing acknowledging receipt of $100, and agreeing that the defendant, Donnell, would sell the land in controversy to plaintiff. I have attached the said receipt and make the same a part of my answer to this interrogatory, and mark the same `Exhibit K' for identification. * * * I was not the agent in this matter for Currie & Dohoney, but was the agent for the defendant, Donnell. I do not know whether Currie & Dohoney had other lands in the vicinity of the Donnell lands at the time they came to me. I do not know whether they had in negotiation the purchase of a lot of land at this time adjoining the land in controversy. If you understand that the plaintiffs, Currie & Dohoney, came to me and secured my services and help, and that, acting for them, I undertook these negotiations with W. T. Donnell, you are in error. I had this land for sale and procured Currie & Dohoney to purchase same, and wrote to the defendant Donnell and submitted the proposition, and he replied to my letter stating to Will A. Miller that he would take $3.25 for the land, and I submitted this offer to Currie & Dohoney, and they accepted it, and I prepared receipt above described." After concluding the sale with the appellees, Wills wrote the following letter to Donnell: "Amarillo, Texas, January 3, 1906. Mr. W. T. Donnell, Eliasville, Texas—Dear Sir: I am in receipt of your letter of the 29th ult., authorizing me to sell your land in ...