Gambill v. Snow

• Decision Date: 01 June 1945
• Docket Number: No. 2511.,2511.
• Citation: 189 S.W.2d 33
• Parties: GAMBILL et ux. v. SNOW et ux.
• Court: Texas Court of Appeals

189 S.W.2d 33

GAMBILL et ux. v. SNOW et ux.

No. 2511.

Court of Civil Appeals of Texas. Eastland.

June 1, 1945.

Rehearing Denied July 20, 1945.

Appeal from District Court, Taylor County; Owen Thomas, Judge.

Action by R. H. Gambill and wife against Dr. W. R. Snow and wife for specific performance of contract. From a judgment on a verdict for defendants, plaintiffs appeal.

Affirmed.

Coombes & Andrews, of Stamford, and McDonald & Anderson, of Wichita Falls, for appellants.

Scarborough, Yates & Scarborough, of Abilene, for appellees.

GRISSOM, Justice.

Plaintiffs, Gambill and wife, sought a judgment against defendants, Snow and wife, for specific performance of a written contract, wherein Gambill was granted an option to purchase certain lots in Abilene from Snow. The cause was submitted to a jury on special issues, which issues and the answers thereto were as follows:

"(1) Do you find from a preponderance of the evidence that the Plaintiff, R. H. Gambill, was ready, able and willing to pay to Defendant W. R. Snow, on January 15th, 1942, the sum of $10,000.00 plus interest and expenses?

"Answer: No.

"(2) Do you find from a preponderance of the evidence that on January 15th, 1942, the Plaintiff, R. H. Gambill, tendered to the Defendant W. R. Snow, the sum of $10,000.00, plus interest and expenses?

"(3) Do you find from a preponderance of the evidence that, on January 15th, 1942, the Defendant, W. R. Snow, refused to accept from the plaintiff, R. H. Gambill, the payment of $10,000.00 plus interest and expenses, and to execute to said Gambill, a deed conveying the property in question, to R. H. Gambill, free of all liens and encumbrances?

"(4) Do you find from a preponderance of the evidence, that after January 15th, 1942, the Defendant, W. R. Snow, consented to an extension of time within which the plaintiff R. H. Gambill, might pay to the Defendant, W. R. Snow, the sum of $10,000.00 plus interest and expenses?

"Answer: Yes.

"(5) Do you find from a preponderance of the evidence that, within a reasonable time after January 15th, 1942, the Plaintiff R. H. Gambill was ready, able and willing to pay to Defendant, W. R. Snow, the sum of $10,000.00 plus interest and expenses?

"Answer: No.

"(6) Do you find from a preponderance of the evidence that within a reasonable time after January 15th, 1942, the plaintiff R. H. Gambill tendered to the Defendant, W. R. Snow, the sum of $10,000.00 plus interest and expenses?

"(7) Do you find from a preponderance of the evidence that the Defendant W. R. Snow, refused to accept from plaintiff R. H. Gambill, the payment of $10,000.00 plus interest and expenses, and to execute to said Gambill a deed conveying the property in question to the said Gambill, free of all liens and encumbrances?"

Only Issues 1, 4 and 5 were answered. The other issues were conditionally submitted and no answer to them was called for after Issues 1, 4 and 5 were answered as shown. Plaintiffs did not object to the conditional submission of said unanswered issues. They thereby waived the right to complain on appeal of the lack of a finding on such unanswered issues. A A A Air Conditioning & Mfg. Corp. of Texas v. Barr, Tex.Civ.App., 186 S.W.2d 825, 826.

The court rendered judgment on the verdict for defendants. Plaintiffs have appealed. The parties will be referred to as they appeared in the trial court.

It is undisputed that prior to May, 1934, R. H. Gambill owned the property in controversy; that at said time he executed to the Home Owners Loan Corporation a lien on said property to secure the payment of a debt for more than $10,000; that the debt was not paid, the Corporation foreclosed, and on April 1, 1941, Home Owners Loan Corporation became the owner of said property. On December 26, 1941, HOLC conveyed said property to Snow, in compliance with their contract of November 20, 1941, for a consideration of $10,000. On December 24, 1941, Snow and Gambill entered into a contract in which Dr. Snow gave Mr. Gambill an option to purchase the land in controversy. Said contract, omitting its formal parts, is as follows:

"The said W. R. Snow is paying the said HOLC $10,000.00 as set out and shown by contract of agreement made and entered into by the said W. R. Snow and the said HOLC. The said W. R. Snow has placed in escrow with said contract and agreement the sum of $500.00 as forfeit; and

"Whereas, after the contract and agreement aforesaid was made and executed by the said W. R. Snow and HOLC and placed in escrow and also the forfeit money, there arose some objections to the title by Roy L. Duke, attorney for W. R. Snow, in which the said Roy L. Duke required some kind of a deed of acquittance to be executed by R. H. Gambill and wife to said property to the said W. R. Snow and afterwards contract was made with the said R. H. Gambill and wife and said R. H. Gambill desires to repurchase said property and if he could not do so that he would execute a quit claim deed to the said W. R. Snow to cure the defect claimed in the title by the said attorney, Roy L. Duke, for the consideration of the said W. R. Snow paying to the said Gambill and wife the sum of $200.00. But, it is agreed and hereby stipulated that the said R. H. Gambill and wife shall have until the 15th day of January, 1942, in which to pay W. R. Snow the sum of $10,000.00 and interest that may accrue on the note executed by the said W. R. Snow to the HOLC as a part of the consideration in his purchase of said property from HOLC under said contract of agreement and interest to be paid by W. R. Snow to the HOLC in the purchase of said property.

"It being understood and agreed that the said W. R. Snow is giving the said R. H. Gambill and wife the opportunity to repurchase said property because of the desire of the said R. H. Gambill and wife to repurchase their old home place and the said W. R. Snow in kindness to them has agreed that they may repurchase the same by paying the consideration to him as aforesaid together with the expenses as aforesaid. It being understood that there may be some other small expense of recording instruments, revenue stamps, etc. that the said W. R. Snow will be out in the consummation of the deal between him and the HOLC and that the said R. H. Gambill and wife will reimburse the said W. R. Snow in the event he shall purchase the said property from the said W. R. Snow on or before January 15, 1942.

"The said R. H. Gambill and wife have this day executed with this instrument quit claim deed to W. R. Snow for the consideration of $200.00 to him and wife in hand paid by W. R. Snow; said deed to be held in escrow with E. T. Brooks with a copy of this contract until on or before the 15th day of January, 1942, to be delivered to the said W. R. Snow, his heirs or assigns in the event that the said R. H. Gambill and wife fail or refuse to pay the $10,000.00 and other consideration above mentioned to the said W. R. Snow for the conveyance to them of the said property above mentioned by the said W. R. Snow.

"The said $200 to be turned over by the said escrow holder to the said R. H. Gambill in the event the said R. H. Gambill and wife fail or refuse to carry out this contract and agreement as heretofore set out. Said property to be conveyed to R. H. Gambill free of all liens and encumbrances."

Said contract was signed and acknowledged by plaintiffs and Dr. Snow. On December 26, 1941, HOLC executed a deed to said property to Dr. Snow and his wife. The deed showed payment of $2,000 cash and the execution by Snow of a note for $8,000 secured by a deed of trust on said property. On January 14, 1942, Judge Brooks, Dr. Snow's attorney, wrote Mr. Gambill as follows:

"You recall that you have an escrow agreement with Dr. W. R. Snow that terminates tomorrow, and the contract provides in the event you are able to pay the $10,000.00 cash you will get the property. In the event you fail to pay the $10,000.00 I am to turn over the deed and deliver to you the $200.00 check left with me as escrow holder of Dr. Wm. R. Snow. The reason I am writing you this letter is you haven't a telephone and the Doctor indicated today that he wanted to be sure that the matter was fully closed tomorrow as his circumstances are such that it must terminate fully. So be sure to advise me promptly tomorrow your wishes in the matter as to whether or not you will take the property or for me to deliver the deed to Dr. Snow and the money to you."

Mr. Gambill testified that he thought he received said letter on the night of January 14th; that about 5 o'clock P.M. on January 15, 1942, he obtained the following letter from H. O. Wooten:

                "Mr. Henry James, Trustee
                  "Abilene, Texas
                

"Dear Sir:

"I have just talked with Mr. R. H. Gambill in reference to taking a $2500.00 part in a loan of $10,000.00 on his home place, with the condition that the following names participate on the same basis:

                  S. M. Jay                  $2500.00
                  E. R. McDaniel              2500.00
                  J. C. Reese                 1250.00
                  J. D. Miracle               1250.00
                

"The loan to be for one year at 8 per cent with executed deed from Dr. Snow to you, as Trustee, to be forfeited at the end of twelve months from date unless paid in full.

                        "Yours truly
                             "(Signed) H. O. Wooten
                                      "H. O. Wooten
                

"With the further condition that Ellis Douthit pass the title as being clear in you as Trustee, and that there is no onerous restrictions on the free use of the property."

It is further undisputed that Hon. Roy L. Duke was the attorney employed by Dr. Snow to examine the title to the property in controversy, and that as a condition to his approval of the title, he required the execution of a quit claim deed by the Gambills. Dr. Snow testified to the effect that he approached Gambill on the streets of Abilene and asked him to execute a quit claim deed; that he then learned Gambill was anxious to buy said property, which had formerly been his home for...