Goode v. Westside Developers, Inc., 3085

• Decision Date: 21 May 1953
• Docket Number: No. 3085,3085
• Citation: 258 S.W.2d 844
• Parties: GOODE v. WESTSIDE DEVELOPERS, Inc.
• Court: Texas Court of Appeals

Page 844

258 S.W.2d 844

GOODE v. WESTSIDE DEVELOPERS, Inc.

No. 3085.

Court of Civil Appeals of Texas, Waco.

May 21, 1953.

Rehearing Denied June 11, 1953.

Stovall, O'Bryant & Stovall, Houston, for appellant.

Carl & Lee, Houston, for appellee.

HALE, Justice.

This is a suit for specific performance of a claimed contract for the purchase and sale of land. Appellant, as purchaser, alleged that the contract was signed on behalf of the seller by its duly authorized agent, J. S. Thornton, and, in the alternative, if Thornton was not authorized to act for the owner of the property in the sale thereof, that he was acting within the apparent scope of his authority as such agent when he signed the contract sued upon. Appellee answered the suit with verified pleas of general denial, special denials and the statute of frauds as embraced in Art. 3995 of Vernon's Tex.Civ.Stats.

The case was tried before a jury. Upon the conclusion of the evidence appellee seasonably presented its motion for an instructed verdict on the ground, among others, that there was no evidence showing that Thornton had authority, either actual or apparent, to act for it in the sale of its property, but the motion was overruled and the case was submitted to the jury on two special issues. In response to such issues the jury found that (1) 'J. S. Thornton, purporting to act as the agent of the owner, made an unconditional agreement with the plaintiff, Bertie Mae Goode, to sell her the land in controversy in this suit' and that (2) 'J. S. Thornton, in making said agreement, if any, was acting within the apparent scope of his authority.' Thereupon, appellant filed her motion for judgment on the verdict decreeing spedific performance of the contract and appellee filed its motion for judgment non obstante veredicto, the latter motion being based upon substantially the same grounds set forth in its motion for an instructed verdict. After proper notice and hearing on these motions, the court overruled the motion of appellant, granted the motion of appellee and rendered judgment denying appellant any relief, other than the right on her part to withdraw from the registry of the court the sum of $500 tendered for her benefit.

Appellant says the court below erred in refusing to enter a decree of specific performance for her on the verdict of the jury and in entering judgment against her non obstante veredicto because she asserts the evidence in the case raised the issues submitted to the jury and the findings of the jury authorized and required the trial court to grant her the relief which she sought. We cannot agree with these contentions for reasons to be noted.

In order to warrant a decree of specific performance 'there must be a valid concluded or completed contract-an agreement possessing the essentials of a binding obligation at law.' Vol. 38, Tex.Jur., p. 649, Sec. 6 and authorities. Furthermore a contract for the sale of real estate is not valid or enforceable unless the promise or agreement upon which the same is based, or some memorandum thereof, is in writing and is signed by the party sought to be charged therewith or by some person by him thereunto duly authorized. Art. 3995 of Vernon's Tex.Civ.Stats. After due consideration of the entire record before us we have concluded that the instrument here sued upon does meet either of these tests.

At all times material to this suit appellee was a Texas corporation with J. S. Norman as its President. The by-laws of the corporation provided that its President should have power to enter into contracts in furtherance of its affairs with the exception, however, that the sale of business property, such as is involved in this case, must be approved by its board of directors. Appellee was the owner of the property here in controversy and of other lots situated in Ridgecrest Addition. Appellant testified that she went out to look at the property situated in Ridgecrest Addition where she met Thornton who told her in substance that Norman had several sites in the addition for sale; that she discussed with Norman the purchase of the lot here involved and agreed verbally with him to buy the same; that she went back to the addition on June 13, 1950, to make the deposit of earnest money required to close the deal but could not find Norman; and that, after talking on that occasion with Thornton and Norman's son, Thornton wrote the instrument sued upon, signed the same and she also signed it and left the earnest money therein specified with Thornton. She also testified that shortly after the agreement had been signed, Thornton advised her that Norman would not accept the same and he offered to return the $500 to her but she refused to accept it; that she then talked with Norman and he offered to sell her the south one hundred fifty feet of the property on the terms evidenced by the prior verbal agreement between them; and that she declined to agree to the change proposed by Norman.

The instrument sued upon was typewritten by Thornton, was signed by him and by appellant and was in its entirety as follows:

'June 13, 1950.

'Received of Bertie Mae Goode, the sum of $500.00 which amount represents earnest money deposit to apply on the purchase of that property described at the south one hundred eighty feet (S. 180 ) of Reserve 'C' Section, Ridgecrest Addition, according to the map or plat filed for record thereof in the Harris County Courthouse. The South 180 feet above described to be measured along Ridgecrest drive.

'The total purchase price of this property to be Seven-thousand Five Hundred Dollars ($7,500.00) with terms to be as follows: Down...