Ferguson v. Getzendaner

• Decision Date: 05 December 1904
• Parties: FERGUSON v. GETZENDANER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

83 S.W. 374

FERGUSON v. GETZENDANER.^*

Supreme Court of Texas.

December 5, 1904.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by W. H. Getzendaner against W. B. Ferguson. A judgment was rendered in favor of plaintiff, which was reversed by the Court of Civil Appeals, and questions were certified to the Supreme Court on a motion for rehearing.

H. C. Ferguson, F. P. Powell, and J. W. McDugald, for appellant. Templeton & Harding and G. C. Grace, for appellee.

GAINES, C. J.

The following questions have been certified to us by the Court of Civil Appeals for the Fifth Supreme Judicial Distract for our determination:

"(1) In the year 1901 the citizens of the city of Waxahachie, Ellis county, Texas, and vicinity, in efforts to secure the location at said city of an educational institution known as `Trinity University,' then located at Tehuacana, Texas, had, through a citizens' committee, prior to the 1st day of April, 1901, secured an option on certain land near said city, which had been subdivided and mapped into lots and blocks, and it was being proposed to sell said lots, conditioned upon the location of said university upon said tract of land; the net proceeds of such sales going into a fund to be used in bidding for the location of said university at said city of Waxahachie.

"(2) The option above mentioned was a contract or contracts in writing between the owners of said land and said citizens' committee to convey to W. H. Getzendaner, trustee, said land for $100 per acre in the event Trinity University should be located upon the same, and said committee paid no money for such option.

"(3) Among the subdivision of land mapped and platted as above mentioned was lot 8 in block 13, said tract being known as `University Addition to Waxahachie.'

"(4) On the 1st day of April, 1901, a subcommittee of said citizens' committee solicited defendant, W. B. Ferguson, to purchase a lot in said University Addition, and on that date the defendant made, executed, and delivered to said subcommittee, known as a `soliciting committee,' his written obligation, substantially in words and figures as follows: `Waxahachie, Texas, April 1st, 1901. Whereas a citizens' committee with W. H. Getzendaner as chairman, has secured an option on certain land and mapped the same as University Addition to the City of Waxahachie, Texas, and now proposes to sell said lots on condition that Trinity University is located on said land, the net proceeds to go into the funds to bid for said University. Now, therefore, in aid of such fund the undersigned does hereby purchase lot No. 8 in block No. 13, in said University Addition conditioned as aforesaid and acknowledged myself bound to pay W. H. Getzendaner, Trustee, or his successors in trust, the sum of $500.00 within ten days after the date of final securing such location or the undersigned has option of paying as much as one-third of such sum cash within ten days after such location and executing for the balance vendor's lien notes in equal amounts due in four, eight and twelve months, drawing 8% per annum interest from date of such location. Notes and deeds to be in usual form. If said University is not located on said land this instrument is null and void. This obligation is payable at the Citizens' National Bank at Waxahachie, Texas, where the same is placed in escrow. [Signed] W. B. Ferguson.'

"(5) The above obligation was forthwith placed with the Citizens' National Bank of Waxahachie.

"(6) Five days after the delivery of the above obligation, and before any agreement had been made between said citizens' committee and said Trinity University, and before it was known what bid or sum of money would be required to induce said university to locate on said tract of land, and before said citizens' committee had submitted any proposition to said university, but after the matter of removal of said university from Tehuacana and its location at some other point was being considered by those in authority over said university, and after a committee had been appointed to determine what inducements to this end could be obtained, and to report to the authorities in control of such university, the defendant W. B. Ferguson went to the members of said soliciting committee, to whom he had delivered his said obligation and asked to withdraw his contract, notifying them that he would not be bound thereby.

"(7) Said committee so applied to applied to the general citizens' committee, and informed such committee of the request and demand of defendant, but such general citizens' committee declined to release defendant from his said obligation, or to deliver up said obligation to him, of which he was notified by said soliciting committee; and all of this was before any agreement or proposition as above mentioned.

"(8) About the 20th of June, 1901, said citizens' committee for the first time submitted a proposition for the location of said university on said tract of land to the authorities in charge of said Trinity University, which proposition was finally accepted on the ____ day of September, 1901.

"(9) On the 3d day of October, 1901, the parties with whom said citizens' committee had an option upon said lands aforesaid conveyed said land to W. H. Getzendaner, trustee, the consideration of such conveyances being $100 per...