Elliott v. Brooks

• Decision Date: 22 December 1944
• Docket Number: No. 2489.,2489.
• Citation: 184 S.W.2d 929
• Parties: ELLIOTT et al. v. BROOKS.
• Court: Texas Court of Appeals

184 S.W.2d 929

ELLIOTT et al. v. BROOKS.

No. 2489.

Court of Civil Appeals of Texas. Eastland.

December 22, 1944.

Rehearing Denied January 19, 1945.

Appeal from District Court, Shackelford County; M. S. Long, Judge.

Suit for specific performance by Bertram A. Elliott and another against Burton Brooks. Judgment for defendant, and plaintiffs appeal.

Affirmed.

Harrell & Bowers, of Breckenridge, for appellants.

Blanton & Blanton, of Albany, for appellee.

GRISSOM, Justice.

Bertram A. Elliott and Ray Elliott filed this suit against Burton Brooks to compel specific performance of an alleged written contract whereby Brooks agreed to sell to the Elliotts a 145 acre tract and a 46.83 acre tract of land. Trial was to the court. Judgment was rendered for defendant. Plaintiffs have appealed.

Plaintiffs alleged that on December 13, 1943, defendant was the owner of said tracts aggregating 191.83 acres. That on said date defendant and plaintiffs entered into a written contract upon the following terms and conditions: Plaintiffs, acting through their agent, W. G. Webb, offered to purchase said land at $30 per acre cash with delivery of possession on January 1, 1944; that plaintiffs' proposition was submitted to defendant in writing about December 13th, and defendant answered in writing a few days thereafter that he would sell at $30 per acre cash; that plaintiffs, about the 21st of December, 1943, acting through their said agent, tendered a deed to defendant to be executed by him and his wife conveying said property to plaintiffs, and offered to pay defendant $5,754.90 upon execution and delivery of said deed, but defendant refused to execute the deed.

Defendant denied that he made any contract in writing with plaintiffs on December 13, 1943, and alleged that he made no contract with plaintiffs for the sale of his land. He alleged that in 1942 he employed Webb & Webb, real estate agents, to find a satisfactory buyer for said land who would execute a contract, the terms and provisions of which were to be agreed upon between Brooks and a purchaser to be found by Webb & Webb. Defendant alleged in detail communications between defendant and Webb & Webb prior to December 1943. That in March, 1943, the Webbs wrote defendant that they had an offer of $25 per acre, with half the royalty reserved; that, if satisfactory to defendant, they would send a contract to him for his approval. Defendant alleged that on June 19, 1943, Webb & Webb wrote him, stating they had a party who wanted to look "at your place on Deep Creek at $30 per acre," and inquiring whether defendant would sell at that price and whether possession could be had when the sale was closed, and stated, "Of course, if there is a crop on the place, the agreement would be had with the buyer and present renter." Defendant alleged that when he received said letter he knew that his agents, Webb & Webb, had been negotiating with James Overton, and, believing the contemplated sale was to Overton, with whom he was on friendly terms, and that all the terms of sale could be agreed upon with Overton, defendant made the following notation on said letter and returned it to Webb & Webb: "Mr. Webb: I would take $30.00 for the place but would be the first of the year before I could turn it over. Bert Brooks."

Defendant alleged that Webb & Webb on April 2, 1943, had written to Overton in substance that Brooks had listed the land with them at $25 per acre, but had raised his price to $30 per acre; that Brooks might take less if the buyer would take possession in January, 1944, "the buyer getting the third and fourth of crops * * *." Defendant further alleged that on November 4, 1943, Webb & Webb wrote him asking if he still desired to sell the land for $30 per acre after he had leased the land for oil, and suggesting that Brooks would want to reserve one-half of the royalty and that possession on January 1st should be acceptable to a buyer if the land sold. He further alleged that he and Overton were on friendly terms; that the Overtons were desirable neighbors; that Overton and his wife had made a visit to the place and discussed buying the land with defendant; that defendant had promised the Overtons that if he sold the place he would sell to them; that when his agents wrote him on December 13th defendant believed, and had good reason for believing, that the prospective buyer was Overton; that, on December 13, 1943, Webb & Webb wrote Overton they could sell him the Brooks 195 acres at $30 per acre, with a reservation of half the "non-participating royalty"; that the land was leased for oil and gas; that they had submitted an offer for another party; that the Webbs were of the opinion that another person who had gone with the Overtons to look at Brooks' land was not in position to buy; that terms could be had on part of the consideration, but it would take more than $1,000 cash; that Webb & Webb, on the same day, December 13, 1943, also wrote defendant as follows:

                                     "Albany, Texas
                                     "December 13, 1943
                "Mr. Bert Brooks
                "Moran, Texas
                

"Dear Bert:

"We have today talked with a party in regards to buying your place, and he says that he will give $30.00 per acre cash with delivery January 1st next, but he does not want you to reserve any royalty or mineral rights.

"We told him that you told us that you wanted to reserve one-half of the royalty, but he says $30.00 per acre was too much for it with this reservation, and that he would not give that much for it with a reservation of any kind.

"We told him we would submit it; so when you get this letter call us over the phone—call us collect—as to whether this offer is acceptable or not.

                                    "Yours very truly
                                       "W. G. Webb
                                       "Webb & Webb."
                

In this connection, defendant alleged he had no information that Bertram Elliott was trying to buy his land; that Bertram A. Elliott was unfriendly toward defendant and his family; that Brooks and his wife would not have considered selling the property to Elliott, but, believing that the party with whom Webb & Webb were negotiating for the sale of the property was Overton, defendant wrote on the bottom of the last mentioned letter: "Mr. W. G. Webb: Dear Sir: I believe I will let you sell the place for $30.00 cash. Bert Brooks."

Defendant alleged that it was understood and agreed between him and his agents, Webb & Webb, that any contract of sale would have to be approved and executed by defendant and his wife, and that said agents had no authority to execute any written contract of sale for him, but were authorized only to find a satisfactory buyer who would be willing to execute a contract with defendant and his wife, that would be satisfactory to them in all of its terms and provisions. Defendant denied that he had ever entered into a contract, either written or oral, with plaintiffs, or signed any such contract; that he never heard of either of the plaintiffs in connection with the sale of his land until December 21, 1943, when Webb & Webb sent him a deed, written by them, conveying the land to the Elliotts for a recited cash consideration of $30 per acre. Defendant alleged there was no meeting of the minds on any alleged contract for the sale of the land by him to the Elliotts; that there had been no agreement as to the terms and conditions of such a proposed sale; that the only time defendant had signed his name to any document relating to the sale of said land was his notation upon the letters to his agents dated June 19, 1943, and December 13, 1943; that when he made said notations he understood the correspondence related to a possible sale of the land to Overton. Defendant further alleged that there was no written contract for the purchase of said land; that there was no consideration for the alleged contract for the sale of land sued on by plaintiffs; "and that such claims of plaintiffs come within the Statute of Frauds and defendant pleads the Statute of Frauds in bar of such claims."

At the request of plaintiffs the court filed findings of fact and conclusions of law, as follows:

Findings of fact:

"1. Early in 1943 the defendant employed Webb & Webb, Real Estate Agents, to help him find a satisfactory buyer for a tract of land containing 191.87 acres near Moran, upon which defendant's son with his wife and daughter had lived for 15 years. Defendant also owned another small place near Moran, upon which he and his wife lived, and he also owned two tracts of land between Ibex and Moran.

"2. Webb & Webb on one of their printed agency cards listed with typewriter the owner as `Bert Brooks,' his address as `Moran, Texas,' the description of the land as `191.87 acres near Moran, Four room house, large hole of water, on road,' and the price at `$25.00 per acre,' and the `encumbrance payable W. H. Stephens,' which was all the information they wrote upon said card. Defendant did not sign this card, but later when a prospective buyer named James Overton agreed to pay $25.00 per acre for the land, which defendant refused to accept, the defendant with a pencil marked out the `$25' and wrote above it `$30,' but did not sign his name to the card, and Webb & Webb with pencil then made the following notation on the card: `April 1943 raised price to $30.00 with half royalty.'

"3. It was understood between defendant and Webb & Webb that when they found a satisfactory buyer, the defendant would execute his own contract with the buyer, and that Webb & Webb had no authority to execute the contract for defendant.

The court further found (4) that Webb & Webb wrote defendant on March 24, 1943, that they had sold "your 195 acres near Moran at $25.00 per acre all cash, this being the price you listed it with us for sale." They insisted that Brooks advise them at once whether this offer was acceptable, and also as to the matter of possession. In said letter Webb & Webb stated: "Of course, you had a right to...