Fisher v. Wilson

• Decision Date: 08 December 1944
• Docket Number: No. 13577.,13577.
• Citation: 185 S.W.2d 186
• Parties: FISHER v. WILSON.
• Court: Texas Court of Appeals

185 S.W.2d 186

FISHER v. WILSON.

No. 13577.

Court of Civil Appeals of Texas. Dallas.

December 8, 1944.

Rehearing Denied January 12, 1945.

Dissenting Opinion January 16, 1945.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Action by Mrs. Josephine G. Wilson against Mrs. Pearle Mercer Fisher for specific performance of a real estate contract and, in the alternative, for damages for breach of contract. From an adverse judgment, defendant appeals.

Reversed and rendered.

George Clifton Edwards, of Dallas, for appellant.

Geo. K. Holland, of Dallas, for appellee.

BOND, Chief Justice.

This is a suit for specific performance of a written contract involving, principally, real estate; and, in the alternative, for damages for breach or failure to perform the contract. The contracting parties in litigation, Mrs. Josephine G. Wilson, appellee, and Mrs. Pearle Mercer Fisher, appellant will be designated in this opinion as they were in the court below, as plaintiff and defendant respectively.

The purported contract in suit is composed of two instruments, one drafted by the defendant and the other by the plaintiff, each signed by both parties. The instrument drafted by the defendant is as follows:

"July 21/43 Contract of Sale. Recd of Mrs. Josephine Wilson $300 in part payment on brick duplex & garage apt located at 4328-30 Cedar Springs on this 21st July 1943 at a price of Sixty Three Hundred & Fifty dollars including furniture at 4330 except one hexagon large table in living room, this also includes rollaway bed in garage apt. Terms all cash, abstract to be furnished by seller. Room at back not included."

The instrument drafted by the plaintiff is as follows:

"Dallas, Texas July 21, 1943 Received of Mrs. Josephine G. Wilson $300.00 in cash as earnest money on the purchase of property at 4328-4330 Cedar Springs Road total consideration being $6,350.00, including entire furnishings of north side apartment (excepting one antique library table), furniture includes one frigidaire and 3 Murphy beds—(1 without mattress). This is a cash consideration when all papers, abstract, etc. have been examined & accepted by Josephine G. Wilson. Full possession of property to be given by Aug. 15th, 1943."

In plaintiff's petition she sought to enforce performance of the contract as against Lot 13, in Block N/2047, Perry Heights Addition to the City of Dallas, Dallas County, Texas, according to the map or plat of said addition recorded in Vol. 2, page 257, Map Records of Dallas County, and certain furniture and furnishings located on said real estate, consisting of a rollaway bed in what is termed "garage apartment," and all household furniture located in the apartment known as No. 4330, except one hexagon table and a "room in back" consisting of a small removable wooden structure. Plaintiff alleged that she tendered and paid the $300 to defendant as "earnest money," and deposited the balance of the consideration in the registry of the court to abide the decision on the issue. In the alternative, plaintiff sought damages in the sum of $1150 by virtue of the loss of profits sustained in the transaction. She also asked that a receiver be appointed to take charge of all of said property and the money tendered into court pending suit; and, on final hearing, for fee simple title in and to the real estate above described, together with the right of possession thereof; and to require the defendant to discharge and pay off and have released all encumbrances and liens on said property; or, in the alternative, that the money tendered into court be applied towards the payment and discharge of such encumbrances and liens as may be shown against said property. Plaintiff further alleged, in the alternative, that all rents and revenues collected by defendant on said properties be deducted from the amount of the tender and be delivered to her, and that she have judgment for such rents and revenues from August 15, 1943, to final disposition of this cause, and for adjustment of equities in all matters as shall be proper between the parties.

The defendant answered by general denial, numerous special exceptions to the pleadings, plea of non est factum as to the date in plaintiff's draft of the contract when possession was to be delivered, and interposed the statute of frauds, Art. 3995, R.S., and numerous grounds of equitable avoidance to enforcement of the alleged contracts, with tender to plaintiff of all monies received by her as "earnest money" in the transaction.

On trial to a jury, verdict was rendered on two submitted issues: (1) That the defendant signed the contracts agreeing for full performance by August 15, 1943; and (2) that by reason of defendant's refusal or failure to perform the contracts, plaintiff sustained damages in the amount of $686.65. In due order defendant objected to the charge and presented motion for judgment non obstante veredicto, both of which were overruled; whereupon the court, over defendant's objections, disregarding the findings of the jury as to plaintiff's damages, entered judgment in favor of plaintiff for specific performance of the contracts, for possession of Lot 13, in Block N/2047, Perry Heights Addition to the City of Dallas, Texas, for personal property, described as one refrigerator, stove and rollaway bed located in a rear garage apartment on said lot, all household furniture and furnishings except one large hexagon antique library table in "Apartment 4330," and decreed equitable title to said properties in plaintiff as of August 15, 1943, with rents and revenues at $92.50 per month from said date and "continuing to the date the said defendant, Pearle Mercer Smith, shall have delivered to the plaintiff full possession of the said real estate and personal property," less $91.50 for insurance, taxes and domestic utilities paid by defendant in reference to said properties. Such rentals were adjudged a credit in favor of plaintiff against the money tendered into court. The court refused appointment of a receiver, but decreed that the clerk of the court carry into effect the terms of the judgment—pay to plaintiff such rentals as shall have accrued from August 15, 1943, to date of judgment, and that which shall thereafter accrue to date of delivery of possession of the property to the plaintiff, less $91.50; that the clerk pay to Home Owners Loan Corporation, a lien holder on said real estate, the sum of $1470; and, after making all aforesaid deductions and payment of all court costs, the balance of such tender to be paid to the defendant, only upon her executing a warranty deed to the real estate and delivering possession thereof to the plaintiff. To the action of the court, defendant appeals.

The statute of frauds, R.S.1925, Art. 3995, subd. 4, denies a right to maintain an action upon an oral contract "for the sale of real estate"; and the statute, R.S. Art. 1288, which has sometimes been referred to as a "statute of frauds" and as a "statute of conveyances," denies a right to convey a freehold estate in lands and tenements unless the conveyance be declared by an instrument in writing duly executed. The statutes do not declare a parol contract for the sale of land to be illegal or void; they merely render such contracts voidable at the option of the party who is charged or bound, by making it unenforceable through judicial proceedings. A rule of evidence is established by the acts, and thereby enables a party to successfully resist enforcement of an agreement which is not within the purview of the statutory provisions. The parol evidence rule also requires the exclusion of parol evidence which is offered for the purpose of varying or affecting the written contract, and it is not permissible because the writing does not contain the full agreement of the parties thereto. In order that a contract for sale of real estate may be specifically enforced, it must be definite and certain in its terms so as to reasonably define within itself the rights of the respective parties, the real estate intended to be conveyed, and its location. Indeed, such contracts may be aided by parol proof of extrinsic facts as may be used for that purpose. The rule is stated in 38 T.J., p. 682, Sec. 25, that "when the contract refers to other instruments containing a good description, or where the description may be made certain by reading the law into the contract and by referring to public documents on file in a public office," extrinsic facts may be shown in aid of the contract. Thus it will be seen that a contract of sale of real estate will not be successfully enforced unless it describes the land intended to be conveyed, or within itself furnishes a key or means by which it may be identified with reasonable certainty. Watson v. Baker, 71 Tex. 739, 9 S.W. 867; Jones v. Carver, 59 Tex. 293; Whitehead v. Reiger, Tex.Com.App., 6 S.W.2d 745; O'Herin v. Neal, Tex.Civ.App., 56 S.W.2d 1105; McAllen v. Raphael, Tex.Civ.App., 96 S.W. 760, error ref.; Penn v. Texas Yellow Pine Lumber Co., 35 Tex.Civ.App. 181, 79 S.W. 842; Cammack v. Prather, Tex.Civ.App., 74 S.W. 354; Prather v. Cammack, Tex.Civ.App., 84 S.W. 1183; Kellner v. Ramdohr, Tex.Civ.App. 207 S. W. 169. In the last cited case the rule is extended that the writing itself must either on its face identify the land, or it must expressly or by implication refer to some instrument, document, map, plat, record, or outside fact, by which the land can with reasonable certainty be identified.

So in the contracts involved here, it will be observed that there is nothing to identify the real estate described in plaintiff's petition; at most, the contracts refer to two apartment houses known as 4328 and 4330, a rear garage apartment, and certain household furniture in apartment 4330, and some items of furniture in the garage apartment. The numbers assigned to the apartments indicate the house, and not the real estate upon which the houses are situated. The...