Foster v. Lessing, 3818

• Decision Date: 18 May 1961
• Docket Number: No. 3818,3818
• Citation: Foster v. Lessing, 346 S.W.2d 939 (Tex. Ct. App. 1961)
• Parties: Joe D. FOSTER et al., Appellants, v. Wilfrid E. LESSING, Jr., et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 939

346 S.W.2d 939

Joe D. FOSTER et al., Appellants, v. Wilfrid E. LESSING, Jr., et al., Appellees.

No. 3818.

Court of Civil Appeals of Texas, Waco.

May 18, 1961.

Rehearing Denied June 8, 1961.

Dunnam & Dunnam, Waco, for appellants.

Cureton & Lanham, Waco, for appellees.

McDONALD, Chief Justice.

This is a suit for specific performance of contracts to convey real estate. Trial was to a jury which rendered a verdict for plaintiffs on the issue submitted, and the Trial Court rendered judgment decreeing specific performance. Defendants appeal, contending: 1) The contract sued on was void by its own terms; 2) The contracts sued on were unenforceable by virtue of the Statute of Frauds because at the time of their execution they did not contain descriptions of the property to be conveyed.

Defendant Foster owned a tract of land that he wanted to sell. He was represented by a real estate agent named Allen. Allen interested 3 veterans who are the plaintiffs herein (Lessing, Anderson and Billington) to purchase the land under the Texas State Veterans Land Program through separate but simultaneous applications and contracts. The 3 plaintiffs each entered into a contract with defendant on the Land Board 'Application and Contract of Sale' form. The Land Board Form is actually an appellcation by the veteran to the Land Board for benefits under the Veterans' Land Program, and in addition is a contract of sale between the veteran as purchaser, and the land owner as seller. Pertinent parts of one of such instruments here involved follows: (All 3 are alike except as to the name of the buyer).

'Application and Contract of Sale

Texas Veterans' Land Program

Void if Received by ------------

Veterans' Land Board Not

After May 6, 1958 Transferable

Application No. 10017. ------------

'Received

'Jun 5 1958

'General Land Office

'State of Texas

'County of McLennan

'Whereas I, Wilfrid E. Lessing, Jr., a veteran, have complied with the requirements of the Veterans' Land Board, do hereby make application to purchase a certain tract of land hereinafter described and being located in McLennan County, Texas, which I have personally inspected, and

'Whereas, under the Provisions of Acts 51st Leg., R.S.1949, Ch. 318, as amended [Vernon's Ann.Civ.St. art. 5421m], a duly qualified Texas veteran may purchase land from the Veterans' Land Board of Texas, in accordance with the provisions of said Act, which is made a part of this contract for all purposes.

'Now Therefore, We, Joe D. Foster & Mildred G. Foster, whose mailing address is 3205 Live Oak Ave., Waco, Texas, hereinafter called 'seller' and Wilfrid Edward Lessing, Jr. (veteran) whose mailing address is * * * who seears that he was a bona fide resident of the State of Texas at the time of entering into service, hereinafter called 'buyer,' do hereby make the following contract and agreement:

'1. That said buyer shall make with this contract one remittance to the Veterans' Land Board of $350.00 * * *.

'2. (The buyer agrees to dubmit certain proofs to the Veterans' Land Board, honorable discharge etc.)

'3. That for and in consideration of the mutual promises herein made, and the sum of $1.00 cash in hand paid, * * *, the seller agrees to sell and the buyer agrees to buy a certain tract * * * said land being more particularly described as follows: * * *

'4. * * *

'5. Buyer agrees to deliver to seller the sum of $7000.00, cash, in full payment contemporaneously with delivery by the seller of a good and sufficient general warranty deed to the above described property.

'6. Seller agrees that contemporaneously with the delivery of $7000.00 cash, he will deliver to buyer a good and sufficient general warranty deed to the above described property free and clear of all encombrances.

'7. * * *

'8. It is agreed that buyer may transfer and assign this contract with all of the rights, powers, and privileges belonging thereto or issuing therefrom to the Veterans' Land Board of Texas for the purpose of resale to Wilfrid E. Lessing (veteran); provided, however, that this contract shall not be considered by the Veterans' Land Board if buyer fails to file this contract with the Veterans' Land Board within 30 days from the date of the last acknowledgment hereto, except for good cause shown, the time for filing may be extended by the Veterans' Land Board. If assigned the Veterans' Land Board will by letter of commitment to the seller and puyer, signify the amount it will invest in completing the transaction. If the commitment is below the contract price, this agreement and contract shall become of no force and effect and shall not be binding on the parties hereto, unless the buyer elects to continue with the purchase with or without use of the commitment offer, but in no event shall any action for damages result from the failure of the Board to accept an assignment of this contract. After the Veterans' Land Board has issued its commitment, the term 'buyer' shall also apply to it whenever such term is applicable.

'9. * * *

'10. * * *

'11. This contract shall remain in full force and effect until 30 days from receipt by the Veterans' Land Board of written notice of cancellation from either party, but in no event will terminate before the 24th day of August, 1958, except by written consent of both parties and notice thereof to the Veterans' Land Board of Texas. Veterans' Land Board reserves the right to cancel after acceptance of the assignment of the contract if the seller and the veteran purchaser fail to put forth reasonable effort to comply with the terms of the contract.

'Witness our hands this 24th day of April, 1958.

'/S/ Joe D. Foster

'Seller

'/S/ Mildred G. Foster

Spouse

'/S/ Wilfrid Edward Lessing, Jr.

'Buyer'

(Here follow acknowledgments)

'Assignment

'State of Texas

'County of McLennan}

'I, Wilfrid Edward Lessing, Jr., the buyer of the above described tract, do solemnly swear that I desire to purchase the land for myself and that no other person is interested in the purchase thereof and do hereby assign and transfer to...