Gohlke v. Davis
| Decision Date | 30 March 1955 |
| Docket Number | No. 12836,12836 |
| Citation | 279 S.W.2d 369 |
| Parties | Aldo W. GOHLKE et al., Appellants, v. W. M. DAVIS, Appellee. |
| Court | Texas Court of Appeals |
Rankin, Kilgore & Cherry, Ramiro B. Martinez, Edinburg, for appellants.
Kelley, Looney, McLean & Littleton, L. C. McLean, Edinburg, for appellee.
This suit was instituted by Aldo W. Gohlke and the Veterans' Land Board of the State of Texas, against Louis Raffetto, L. H. Manning and W. M. Davis, in three counts, (1) trespass to try title to Lot 14, Section 233, of the Texas-Mexican Railway Company's Survey of Lands in Hidalgo County, Texas, hereinafter referred to as Lot 14; (2) specific performance of a contract of purchase and sale of the same land; (3) damages. The court, upon motion by defendants Davis and Manning, severed plaintiffs' cause of action against them from that against Louis Raffetto, and placed plaintiffs' cause of action against the defendant Louis Raffetto upon the docket under a new number. The defendant Manning filed a disclaimer and was dismissed from the cause, and the court, after a hearing, found in favor od defendant W. M. Davis and rendered judgment that plaintiffs take nothing. Aldo W. Gohlke and Veterans' Land Board have prosecuted this appeal.
This appeal involves the conflicting rights of two purchasers. Appellee, Davis, as assigner of Manning, claimed to have a contract of purchase of Lot 14, which was prior in point of time to the contract of purchase held by appellants.
The contract of purchase asserted by Davis is evidenced by the two fillowing telegrams:
On May 19, 1953, Manning sent the following telegram to Louis Raffetto:
'Have firm offer of $8,000.00 for land. Half cash. Balance on or before two years. You retain one-fourth royalty, 5% commission paid by seller. Advise about contract of sale.
L. H. Manning, Edinburg, Texas.'
On the 21st day of May, 1953, Louis Raffetto sent the following telegram to Manning:
'Will accept offer of $8,000.00 half cash, balance two years or before, 1/4 mineral rights.
'Louis Raffetto.'
It is apparent that neither of these two telegrams contains any description of the land involved. This deficiency is attempted to be supplied by a letter written by L. H. Manning to Louis Raffetto and received by him, reading as follows:
'February 3, 1953
'Mr. Louis Raffetto
Box 79
Lake Zurich, Illinois
Dear Sir:
'Do you still own 40 acres of land north-west of Edinburg, described as Lot 14, Section 233, Tex-Mex Sub? This tract seems to have been one of many victims of the freeze. I am wondering if you want to sell. The trees would have to be removed before it could be converted to farm land. And this is quite an expensive operation. If interested in selling, believe we could move it for you. Please advise price, terms, possession, and any other related items.
'Yours very truly,
/s/ L. H. Manning
L. H. Manning
For Davis Realty Co.
P. O. Box 366
Edinburg, Texas.'
On June 23, 1953, Louis Raffetto and Grace Raffetto, his wife, entered into a contract with Aldo W. Gohlke to sell Lot 14 to him, for the sum of $7,500 cash, which contract was assigned by Gohlke to the Veterans' Land Board of the State of Texas.
Appellants' first contention is that the trial court erred in holding that the two telegrams, when considered in connection with the above letter, constituted a legal, valid and binding contract for the sale of said Lot 14.
Under the provisions of subd. 4 of Article 3995, Vernon's Ann.Civ.Stats., a contract for the sale of real estate to be enforcible in the courts must be in writing, or there must be some written memorandum thereof. The two telegrams do not describe the land in such a way that it could be identified and therefore they do not show a valid contract for the sale of real estate. Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064.
Neither telegram indicates in any way that it relates to the land described in the letter of February 3, 1953. There is nothing to indicate in what State or what county the land is located or to whom the land belongs. So far as these two telegrams are concerned, the land might just as well be located in Illinois, where Raffetto lived, as in Hidalgo County, Texas, or in any other State of the Union. They do not even describe the land as your land. More than three months had elapsed between the writing of the letter and the sending of the telegrams. The fact that later Raffetto executed a deed to Davis to Lot 14 does not supply the failure of the telegrams to describe the land or to refer to any other instrument where the description could be found.
Justice Taylor in speaking for the Supreme Court of this State, in Burrows v. Seale, 148 Tex. 411, 225 S.W.2d 966, 968, had this to say:
'Writ of error was granted under the tentative view that the Court of Civil Appeals erred in holding that the description contained in the abstract mentioned in the written contract for the sale of the land, can be used to cure the insufficient description contained in the written contract; and in further holding that the contract, as so cured, can be specifically enforced in the face of an appropriate defensive plea of the statute of frauds. We adhere, upon final consideration, to our tentative view.
'It will be observed that the language employed by the parties for descriptive purposes in the alleged contract is '171 acres of land out of the M. Calvillo Grant No. 22, Wilson County, Texas (obviously an inadequate description on its face) plus a reference in the contract to a description carried in 'an abstract' of title showing good and marketable title in vendor. This reference, respondent contends, is such as to make the insufficient descriptive language just quoted adequate to meet the requirements of the statute, by consideration of the description in the abstract along with the quoted description.
'In adhering to our tentative view we do not hold that an abstract description properly referred to in the written contract can never be used in a suit of this kind, to supplement the contract description. If the contract sufficiently identifies the abstract referred to-as for instance, one bearing a specified number and prepared by a named abstract company, its descriptive language could be used as supplemental to that of the written contract.
'In the present case, however, the language of the written contract describing the abstract, contains statements which, when taken with the above quoted description contained in the written contract, imports an element of uncertainty as to what abstract is referred to. It is not clear whether it is to an abstract presently in existence 'showing good and marketable title in the vendor,' or one that, in event of a stated contingency, will be made to show such title in the vendor.
'It would require parol evidence in the present case to show with reasonable certainty that a particular abstract was in existence and was delivered, and would require such evidence to identify it and show that the delivery was referable to the transaction between the parties and was the abstract upon the basis of which they dealt. It is undisputed that Grant No. 21 contains 4420 acres and that Grant No. 22 in the same county (Wilson) contains 177...
To continue reading
Request your trial
-
Kimm v. Andrews
...disability, Andrews can rely on the Statute of Frauds, Vancloostere v. Logan, 149 Ill. 588, 36 N.E. 946 (Ill.1894), Goklke v. Davis, 279 S.W.2d 369 (Tex.Civ.App.1955), O'Banion v. Paradiso, 61 Cal.2d 559, 39 Cal.Rptr. 370, 393 P.2d 682 (Cal.1964) with respect to any evidence of any agreemen......
-
Jones v. Riley, 17236
...(Waco Civ.App., 1966, ref., n.r.e.); and Ball v. Parks, 313 S.W.2d 134 (Fort Worth Civ.App., 1958, ref., n.r.e.). The case of Gohlke v. Davis, 279 S.W.2d 369 (San Antonio Civ.App., 1955, no writ hist.) holds that where neither the written offer nor the written acceptance thereof described t......
-
Wild v. Hargrave
...1973, writ ref'd n. r. e.); Boddy v. Gray, 497 S.W.2d 600 (Tex.Civ.App. Amarillo 1973, writ ref'd); Gohlke v. Davis, 279 S.W.2d 369 (Tex.Civ.App. San Antonio 1955, writ ref'd n. r. e.). The writings here involved do not meet the requirements of the Statute of Frauds. The telegram of October......
-
City of Freeport v. Briarwood Holdings, L.L.C.
...1943); Abraham Inv. Co. v. Payne Ranch, Inc., 968 S.W.2d 518 (Tex. App.—Amarillo 1998, pet. denied); Gohlke v. Davis, 279 S.W.2d 369 (Tex. Civ. App.—San Antonio 1955, writ ref'd n.r.e.). But none of these cases supports the proposition that a governmental entity that purchases real property......