Foster v. New York & T. Land Co.

• Court: Texas Court of Appeals
• Writing for the Court: Williams
• Citation: Foster v. New York & T. Land Co., 22 S.W. 260, 2 Tex. Civ. App. 505 (Tex. App. 1893)
• Decision Date: 09 March 1893
• Parties: FOSTER v. NEW YORK & T. LAND CO., Limited, et al.

22 S.W. 260

FOSTER v. NEW YORK & T. LAND CO., Limited, et al.

Court of Civil Appeals of Texas.

March 9, 1893.

Error from district court, Galveston county; William H. Stewart, Judge.

Suit by Corra B. Foster against the New York & Texas Land Company, Limited, and another. Judgment for defendants. Plaintiff brings error. Affirmed.

Goldthwaite, Ewing & H. F. Ring, for plaintiff in error. Willie & Ballinger, for defendants in error.

WILLIAMS, J.

Mrs. Foster, plaintiff in error, sued the New York & Texas Land Company, Limited, to enforce specific performance of an alleged written contract to convey three sections of land in Galveston county, and joined C. E. Angell as defendant, averring that he had made a contract to purchase the lands from his codefendant subsequent to the agreement sued on, and with notice of its having been entered into. Prayer was made for specific performance, and cancellation of Angell's contract, and in the event that, for any reason, this relief could not be had, plaintiff recover as damages the value of the three sections of land. The cause was tried before a jury, and a verdict and judgment rendered for defendants; and, a motion for a new trial being overruled, plaintiff made one assignment of error, and has brought the case here by writ of error. No questions are raised upon the pleadings, and it is unnecessary to state them. The documentary evidence offered by plaintiff to establish the contract, the enforcement of which is sought, consisted of the following letters and telegrams, (P. Whitty was the local agent of land company at Houston, for certain purposes; Ira H. Evans was its president, and A. B. Langerman, its chief clerk:)

"No. 1. Houston, Texas, Dec. 20, 1889. Ira H. Evans, Esq., Pres't, Austin, Texas — Dear Sir: Mrs. Corra Bacon Foster, real-estate agent of this city, makes an offer of $2.90 per acre for the unsold portion of the Alvin land; one fifth cash, the balance in four years; four annual payments, with 8 per cent interest. I told her I would mention the offer, but I did not think you would entertain one less than some advance on $3 per acre for the whole. I think there is some one in Galveston that has gotten her to give an offer. I think I can at least net $10 per acre, cut up, even if it should take two or three years to do it. Yours, truly, P. Whitty."

"No. 2. Austin, Texas, Dec. 23, 1889. P. Whitty, Esq., Houston, Texas — Dear Sir: Your favor of the 20th inst. to hand. Maj. Evans left the city for a trip north, and is not expected to return before the first of the year, and we had better postpone the matter of Mrs. Cora Bacon Foster until his return. We certainly will not sell for less than $3 per acre, if we sell at all around Alvin for the present. Yours, truly, [Signed] A. B. Langerman, Chief Clerk."

"No. 2a. Austin, Texas, Dec. 23, 1889. P. Whitty, Esq., Houston, Texas — Dear Sir: I am just advised by Maj. Evans that he is willing to take $3 per acre for Galveston county lands, on terms proposed by Mrs. Corra Bacon Foster; that this is one fifth cash, balance in four equal annual payments, with 8 per cent. interest per annum. Yours, truly, [Signed] A. B. Langerman, Chief Clerk."

"No. 3. (Copy of telegram.) Dated Houston, Texas, Dec. 27, 1889. To A. B. Langerman, Chief Clerk, N. Y. & Tex. Land Co., Austin: Mrs. Foster will take the land, agreeable to your terms. Letter by mail. P. Whitty."

These are papers which, in connection with parol evidence offered, are claimed by plaintiff in error to form a complete contract for the sale of 25 sections of land, including the three sections in controversy, situated in Galveston county, in the neighborhood of the town of Alvin.

Other correspondence, consisting of other letters and telegrams immediately following the above, were also offered by plaintiff, as follows:

"Houston, Texas, Dec. 27, 1889. A. B. Langerman, Esq., Chief Clerk, Austin, Texas — Dear Sir: I wired you this A. M. that Mrs. Cora Bacon Foster is willing to take the Alvin land on the terms indicated in your letter of the 23rd inst., which I handed her to read. She wishes a sketch of it prepared to be attached to the contract; and intimates that she will have her first payment ready in about a week from now; that is, she wants to take a few days to satisfy herself about the title. I told her that Mr. Masterson, of Galveston, had satisfied Mr. Angell on the subject of title, and that she could, no doubt, get all required information from him on that subject. Yours, P. Whitty."

To which Evans replied as follows:

"Austin, Tex., Dec. 28, 1889. Mr. P. Whitty, 19 Main St. Houston, Texas — Dear Sir: Your favor of 27th inst., advising me that Mrs. Cora Bacon Foster is willing to take our Alvin land at $3.00 per acre, on terms stated in your letter of the 23rd, came to hand. Before closing this contract we would like to have Mr. Giraud's survey made, and I write to him to-day. I hope we can have him go down there after New Year. This will also give Mrs. Foster time to have our title investigated. As she wishes to cut up the land into small tracts, we cannot afford to make the contract before we know just how our lands lie. Yours, truly, [Signed] Ira H. Evans, Pres't. L."

January 2, 1890, Whitty wrote Evans as follows:

"Houston, January 2, 1890. Ira H. Evans, Esq., Pres't, Austin, Texas — Dear Sir: Will you kindly wire Mr. Giraud to come down as soon as possible. It is quite an object to Mrs. F. to get the land on the market as soon as possible. Should there be much delay on our part the Alvin boom may die out, causing her to change her mind. Yours, truly, P. Whitty."

To which Evans replied:

"Austin, Texas, Jany. 3, 1890. Mr. P. Whitty, Houston, Texas — Dear Sir: Your favor of the 2nd inst., urging the necessity of Mr. Giraud doing the work in Galveston county as soon as possible, came to hand. I write him to-day, and expect he will be able to go down to do this work early next week. Yours, truly, [Signed] Ira H. Evans, President."

February 3, 1890, Whitty wrote as follows:

"Houston, February 3rd, 1890. Ira H. Evans, Esq., Pres't — Dear Sir: Replying to yours of the 1st inst., I called to see Mrs. Foster yesterday, to tell her that I am having other inquiries about the Alvin land, and that the party to whom I had already sold (Mr. Angell) wanted 3 sections more. I also told her that I had been to Galveston with some of the papers, and that all the field notes and maps would be ready in a few days. I wanted to see if she was still in the notion of buying. She says she is fully determined to make the purchase. She has a full abstract of the title, and her lawyer pronounced it all right. Yours, truly, P. Whitty."

To which Evans replied:

"Austin, Texas, February 3, 1890. Mr. P. Whitty, Houston, Texas — Dear Sir: Your favor of the third inst., advising me that Mrs. Foster is still anxious to purchase some of our land in Galveston county, came to hand. I wish you would push her to close this trade, if you can possibly do so, and also advise me what lands she wants to buy. It is my understanding that she desires to purchase the land off the west end of our block, at or near Alvin. As you are aware, Mr. C. E. Angell has purchased surveys 16, 17, 19, and 20. He will also soon close the trade for survey 18, and probably purchase, in addition, surveys 14, 15, and 21. Please advise me, as soon as you can, what Mrs. Foster will do. Yours, truly, [Signed] Ira H. Evans, President. P. S. If Mrs. Foster will not immediately close her trade, is it not possible to get an advance over $3 per acre on these lands? [Signed] I. H. E."

February 4, 1890, Whitty wrote as follows:

"Houston, Texas, Feby. 4, 1890. Ira H. Evans, Esq., Pres't — Dear Sir: Yours of the 3rd inst. at hand, and contents noted. Just as soon as you have contract and sketch ready for Mrs. Foster, I will push her to close. If there is a chance of much further delay in fixing the maps and field notes, it might be well to ask her to deposit her first payment subject to your order on delivery of the papers; but, as it has gone so far now, it may be as well to wait, and draw upon her, through the bank, as soon as the papers are there. I notice that she has advertised in last Sunday's Post 12,000 acres of land at Alvin at $6 per acre. Mr. Giraud will give you an idea of the character of the Alvin land. God only knows how it may be made habitable. Nevertheless, I think, if we don't close it out at once to Mrs. Foster and Angell, we can sell it before the end of this year at an advance. Yours, truly, P. Whitty."

To which Evans replied:

"Austin, Texas, Feby. 5, 1890. Mr. P. Whitty, Houston, Texas — Dear Sir: Replying to your favor of yesterday, I have to say that we expect to be able to send you corrected field notes by the close of this week for all surveys in Galveston county, requiring correction. Upon return of these field notes, properly signed, we shall be prepared to furnish Mrs. Foster a sketch by which she can purchase any of these surveys she may desire to obtain. I should not care to have her make a deposit, or to draw a draft upon her through the bank, on account of this business, inasmuch as we expect to be prepared so soon to act definitely upon the matter. In view of this strawberry boom, it begins to look as if we need not be in any very great haste to push the sale of this land. What do you think of the chance of getting better prices for it? Your remark with respect to this land, `God only knows how it may be made habitable,' occasions me no little surprise, in view of the fact that, when you were proposing to subdivide, you recommended me to buy some of it for a country residence. Will you kindly explain? Yours, truly, [Signed] Ira H. Evans, President."

Subsequently the following correspondence took place:

"Austin, Texas, Feby. 22, 1890. P....