Fitch v. Lomax
| Decision Date | 01 May 1929 |
| Docket Number | (No. 1019-4980.) |
| Citation | 16 S.W.2d 530 |
| Parties | FITCH v. LOMAX et al. |
| Court | Texas Supreme Court |
Action by John T. Lomax and another against Homer L. Fitch, wherein defendant filed a cross-action. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (297 S. W. 555), and defendant brings error. Affirmed in part and in part reformed, and otherwise reversed and rendered.
Baker, Botts, Parker & Garwood, S. H. German, and Rodman S. Cosby, all of Houston, and Wells & Richards, H. L. Yates, and H. B. Galbraith, all of Brownsville, for plaintiff in error.
Graham & Graham and Seabury, George & Taylor, all of Brownsville, for defendants in error.
Homer L. Fitch, plaintiff in error, in the year 1921, purchased a large amount of real estate in the vicinity of the city of Brownsville from the New York & Brownsville Improvement Company, Limited, the consideration being paid partly in cash and partly by the execution of vendor's lien notes. The deed conveying this property to Fitch provided that the vendor, upon certain payments being made, would release any portion of the property resold by Fitch. After selling a substantial portion of the property, Fitch was unable to meet payments on the purchase money of said property due his vendor, and, in order to prevent foreclosure, he conveyed a one-half interest in his holdings to John T. Lomax and E. G. Henson, defendants in error. Before disposing of this one-half interest in the property he had contracted to sell a number of parcels of the land. In many of these sales he had collected only a part of the consideration he was to receive, and therefore had not procured from his vendor the release of those tracts as he was privileged to do under the terms of the instrument conveying the property to him. On these particular sales he had collected $20,044.26.
Defendants in error Lomax and Henson brought this suit against Fitch to recover certain sums they had advanced out of their individual funds for the improvement of these properties while operating as partners with Fitch and also to recover $10,022.13, being one-half of the moneys Fitch had collected from the sale of lots prior to their becoming partners in the property.
The deed from Fitch to Lomax and Henson contained a clause obligating Fitch to pay Lomax and Henson all moneys he had already collected on sales of property for which no releases had been procured from his vendor. Fitch by pleadings and evidence in the trial court presented the issue that this clause did not represent the true agreement of the parties and that the same was inserted in the deed by fraud, accident, or mistake; that the real agreement was that he was selling Lomax and Henson a one-half interest in his property as the same existed at the time of the sale, and that money which he had collected under sales contracts and spent was not agreed to be included in such sales; that such sale merely covered all property in connection with this project then owned by him.
Lomax and Fitch pleaded that the deed as written represented the true contract between the parties, and further pleaded that Fitch was estopped to deny the binding effect of this clause of the deed for the reason that after he discovered the same had been placed therein, he remained silent and permitted them to pay a substantial portion of the consideration.
The case was tried with a jury. In answer to the first special issue submitted, the jury found that Fitch and Lomax and Henson never agreed, as a part of the consideration of the deed from Fitch to Lomax and Henson, that Fitch should pay the grantees one-half of the proceeds which had been previously collected from sales made prior to said deed, but for which no releases had been secured.
No issue of estoppel was submitted to the jury. The transcript does not disclose that any request was made for the submission of such issue. It is made to appear, however, by a certified copy of a requested instruction, that defendants in error did request the submission of such issue, and plaintiffs in error have agreed that such copy may be considered by this court as a part of the record.
Notwithstanding the finding of the jury that the parties never agreed that Fitch should pay over moneys he had already collected at the time of the conveyance, the court rendered judgment in favor of Lomax and Henson permitting them to recover against Fitch the item of $10,022.13 being one-half of the amount thus collected, and also for the sum of $10,599.72 covering other indebtedness found by the jury to be due by Fitch, together with 6 per cent. interest thereon from May 9, 1925.
The judgment of the Court of Civil Appeals upheld this action of the trial court upon the theory that Fitch in his pleadings having prayed for a reformation of the deed so as to express the true contract of the parties, was not entitled to be protected from a recovery of the judgment unless an actual reformation of the deed was had, and that inasmuch as it appeared upon the trial Fitch had expressly waived an actual reformation he was bound by the terms of the deed, and upon the further ground that Fitch was estopped to deny the binding effect of the clause which the jury found was improperly inserted in the deed because he remained silent after discovering the deed contained said clause, and permitted the purchasers to pay a substantial portion of the consideration.
Recovery of this item by Lomax and Henson cannot, in our opinion, be sustained on either of the grounds assigned by the Court of Civil Appeals. The finding of the jury that there was no agreement that Fitch should pay Lomax and Henson one-half of the moneys already collected by him on resales for which releases had not been procured precludes the application of the doctrine of estoppel by silence. The record shows that Lomax and Henson and one other witness offered by them swore positively that the stipulation in controversy was deliberately inserted in the deed, because it represented the true agreement of the parties. The testimony of Fitch and other witnesses disputed the proposition that such stipulation represented the true agreement. The jury having accepted Fitch's version that no such agreement was made, leaves the matter in the attitude that Henson and Lomax caused a provision to be inserted as a part of the consideration...
To continue reading
Request your trial
-
Champlin Oil & Refining Co. v. Chastain
...estoppel defeated its defense of estoppel against Colquitt though he delayed in asserting his rights. In Fitch v. Lomax, (Tex.Com.App.), 16 S.W.2d 530, 66 A.L.R. 758 (1929), Lomax and another sued Fitch on a written contract to recover certain funds. Unknown to Fitch and contrary to the act......
-
Metropolitan Casualty Ins. Co. v. Friedley
...be no sound reason why reformation cannot be pleaded defensively in an action. See annotation to the case of Fitch v. Lomax, Tex.Com.App.1929, 16 S.W.2d 530, 66 A.L.R. 758, 763. In the very recent case of Rock-Ola Mfg. Corporation v. Filben Mfg. Co., 1948, 168 F.2d 919, the appellee raised ......
-
Atlantic Richfield Co. v. Hilton
...that he has been misled to his injury.' Concord Oil Co. v. Alco Oil And Gas Corp., 387 S.W.2d 635 (Tex.Sup.1965); Fitch v. Lomax, 16 S.W .2d 530, 66 A.L.R. 758 (Tex.Com.App.) 1929. Thus the appellants have failed to do. In its Third Amended Original Answer, Atlantic Richfield Company makes ......
-
Sutcliffe Storage & Warehouse Co. v. United States, 48624.
...Casualty Ins. Co. v. Friedley, D.C., 79 F.Supp. 978; 5 Williston on Contracts, Rev. Ed., Sec. 1599; see also Fitch v. Lomay, Tex.Com.App., 16 S.W.2d 530, 66 A.L.R. 763. The granting by this court of such relief in proper cases, to either party, promotes substantial justice according to the ......