Durst v. Swift

• Decision Date: 01 January 1854
• Citation: 11 Tex. 273
• Parties: DURST v. SWIFT.
• Court: Texas Supreme Court

11 Tex. 273

DURST

v.SWIFT.

Supreme Court of Texas.

1854.

In cases where a person has contracted to perform an obligation in any particular county, suit may be instituted, under the statute (Hart. Dig., Art. 667), in that county or where the defendant has his domicil; and it matters not whether the suit is brought for a specific performance or for damages for a failure to perform; and where the defendant had contracted to make titles, by a certain day, at the city of Galveston, to a certain quantity of lands “located and being in the counties of San Augustine, Nacogdoches, Rusk, Houston, and the southern half of Robertson and near the Trinity river,”“and in case he fails to comply with the conditions of the above obligation” to well and truly pay a certain sum of money, it was held that the suit was within the statute.

We do not think the assignments less valid, or effectual to vest title in the plaintiff, because made by separate deeds or instruments.

Under the 5th Section of the Act of 1840 (Hart. Dig., Art. 2524), the assignments of certain instruments were regarded as proved unless, etc.; this was not confined to assignments which were written on the instruments.

Quere? Whether the 3d Section of the Act of 1840 (Hart. Dig., Art. 2522), which authorized the assignees of “any bond or other written instrument” to sue in their own names, and the 5th Section (Hart. Dig., Art. 2524), which dispensed with the proof of assignments of said instruments, include any instrument which is not for the payment of money. However that may be, they do include a written contract to convey a certain amount of land, not more specifically described than by the county, or, in the event of failure, to pay a certain amount of money; not so, where the land is described.

Although a contract to convey be so indefinite that a specific performance will not be decreed, yet if a certain amount of money is stipulated to be paid, in the event of failure to convey, the money may be recovered.

Where a contract was regarded by the Court as a contract, virtually, for the payment of money, although not a promissory note, it was held that it was not necessary for the assignee, in a suit against the obligor, to prove the consideration of the assignments, although not under seal.

Where the defendant contracted under seal, to convey a certain quantity of lands, to lie in certain counties in the State, but not described, within a certain time, or in the event of failure, to pay a certain sum of money, in a suit by an assignee, against the obligor, for the money, it was held that it was not necessary for the assignments to have been under seal.

Where one contracts to do a particular thing, as to convey lands, and in the event of failure, to pay a certain sum of money, in a suit for the money it is not necessary to prove the failure to do the particular thing; if that has been performed, it is matter of defence, which it is incumbent on the defendant to establish by averment and proof.

See this case for a discussion of the rules respecting stipulations for penalties and liquidated damages.

Where suit was brought on a contract to convey a certain amount of lands, to lie in certain counties, but not described, or in the event of failure, to pay a certain amount of money (the same that was recited as the consideration of the contract to convey), with interest from the date of contract, and there was no evidence except the contract and assignments, the Court said, Whatever difficulty there may be in the application of these general principles (respecting stipulations for penalties and liquidated damages), and in arriving at the real intention of the parties in certain cases, the present case is, in this respect, wholly free from difficulty; the sum stipulated to be paid was the purchase money advanced, with interest; this, under the evidence, was the measure of damages, which would have governed the finding of the jury, without any express stipulation.

Appeal from Harris. The appellee brought suit against the appellant, in Galveston county, on a covenant, or agreement under seal, made by the latter in favor of Samuel Jones, and assigned to the plaintiff. The contract recited, that, in consideration of the sum of sixteen thousand five hundred dollars, the obligor, defendant in this suit, sold to the obligee five and a half leagues of land “located and being in the counties of San Augustine, Nacogdoches, Rusk, Houston, and the southern half of Robertson.” It stipulated that “there shall be included in his own headright certificate for a league and labor of land,” which “shall be located in the southern part of the aforesaid county of Robertson, and near the Trinity river;” it is further recited that he “is not prepared at this time,” to make good and sufficient titles; whereupon it is agreed that six months shall be allowed him for that purpose; and he obliges himself “to convey and deliver to said Jones, in the city of Galveston, his heirs and assigns, good and sufficient titles and warrantee deeds, with patents, to the aforesaid five and a half leagues of land, free of any charge whatsoever, other than the consideration above named.” And, “in case he fails to comply with the conditions of the above obligation, he hereby binds himself, his heirs, executors, administrators, and assigns, well and truly to pay the said Samuel Jones, his heirs, executors, administrators, and assigns, the just and full sum of sixteen thousand five hundred ($16,500) dollars, current money of the United States, with interest from the date hereof; and for which he hereby promises to confess judgment in any Court of competent jurisdiction or authority.” The petition exhibited the assignments of the obligation; alleged as a breach, the failure of the defendant to deliver the deeds, etc.; and prayed judgment for the sum stipulated to be paid, upon the failure of the defendant to perform his obligation to make titles. The assignments, exhibited, were made by separate instruments; one not under seal.

The defendant pleaded in abatement to the jurisdiction of the Court in Galveston, he being a resident of the county of Leon. His answer contained, among other matters, a general denial.

The plea in abatement was adjudged insufficient.

The plaintiff gave in evidence the obligation, and the several assignments by which the right of the obligee was transferred to the plaintiff. The defendant objected to the reading of the assignments in evidence, without proof of their execution; but the Court overruled the objection.

The Court was requested by the defendant to instruct the jury, that it was incumbent on the plaintiff to prove, affirmatively, the non-performance by the defendant, of his obligation to make titles; and that the sum stipulated to be paid, was in the nature of a penalty. Which instructions the Court refused. There was a verdict and judgment for the plaintiff, and the defendant appealed.

Allen & Hale, for appellant. I. The plea in abatement to the jurisdiction of the Court, should have been sustained. No place being designated for the payment of the money, the obligation or contract for such payment was to be performed either at the place of the execution of the contract, or which was the same thing, at the place where the obligor resided. And the statute regulating practice in the District Courts, expressly required the suit to be brought on this part or clause in the contract, in the county where the defendant resided. (Hart. Dig., Art. 667.) If the ground of exception to the general rule is not clearly made out, the rule, from principles of public policy, must have the preference and the contract be construed in reference to it.

II. Proof of the execution of separate assignments, not indorsed on the obligation sued on, must be made as in case of other instruments. Article 2524 of Hartley's Digest, only refers to assignments made by indorsements. The whole Act, of which that Article forms part, must be construed together, and the Court can no more admit separate assignments of bonds, than of negotiable and commercial paper. To admit the last, would be to destroy the whole system of commercial law. “An assignable contract can be assigned only by writing on some part of the same paper which contains the contract.” (Estes v. Hairston, 1 Dev., 351.)

III. The assignments of a specialty must be under seal, and the plaintiff, having only produced one assignment under seal--that from Prescott to himself-- has not shown any interest vested in him; and the other assignments should have been excluded.

IV. There is no allegation in the petition, and no proof that the assignments were for a valuable consideration. (Merlin v. Manning, 2 Tex. R., 351.)

V. The Court below should not have refused to give the first charge requested by defendant; and a new trial should have been granted, as there was no proof that the defendant had not delivered the deeds at the appointed time and place. The onus lay upon the plaintiff, he having based his right of action on the negative allegation. (1 Greenl. Ev., Sec. 78.)

VI. The Court below should not have refused to instruct the jury that the sum of $16,500, specified in the obligation, was in the nature of a penalty; and as no damages were specially proved, the verdict was excessive, and a new trial should have been granted.

Jones & Butler and T. H. Harrison, for appellee. I. In answer to the first assignment of error, we refer the Court to the first Section of the District Court Act of 1846, which expressly provides that where a person has contracted to perform an obligation in any particular county, suit may be instituted against him in that county. (Hart. Dig., Art. 667.)

II. The first charge asked by the defendant was, we think, properly refused. If the defendant had well and truly performed or offered to perform the conditions of the bond, it would have been for him good matter of defense to the plaintiff's action, and it would...