Hamburger & Dreyling v. Thomas

• Decision Date: 31 March 1909
• Citation: 118 S.W. 770
• Parties: HAMBURGER & DREYLING v. THOMAS.
• Court: Texas Court of Appeals

118 S.W. 770

HAMBURGER & DREYLING v. THOMAS.

Court of Civil Appeals of Texas.

March 31, 1909.

Rehearing Denied April 28, 1909.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by William W. Thomas against Hamburger & Dreyling. Judgment for plaintiff, and defendants appeal. Affirmed.

J. W. Lockett, for appellants. S. H. Brashear, for appellee.

NEILL, J.

This suit was brought by appellee against appellants to recover the sum of $1.500 claimed to be due him by appellants under the contract set out in our conclusions of fact for effecting a sale of the tract of land mentioned therein to Jas. A. Baker, Jr., upon terms, though different in some respects from those embodied in the contract, which were accepted by the appellants, as shown by the written agreement executed by them and Baker on December 3, 1905, which agreement is also incorporated in our conclusions. The defendants answered by general and special exceptions to plaintiff's petition and a general denial, and pleaded specially that, in addition to a clear record title to the premises, their title thereto was perfect under the several statutes of limitation; that, if their title was in any way defective, plaintiff knew of such defect, undertook to make the sale under his contract with them with full knowledge of such defect, and took the risk of a sale being defeated by reason thereof; and that, if the plaintiff ever complied with his contract in finding and procuring a purchaser ready, willing, and able to buy, he afterwards, without defendants' consent, released such purchaser from his contract, etc. Defendants' exceptions to plaintiff's petition were overruled, and the case was tried before a jury to whom special issues were submitted, and upon the verdict returned judgment was entered in favor of the plaintiff for the amount sued for, principle, and interest.

Conclusions of Fact.

The contract between plaintiff and defendants is as follows: "Houston, Texas. Sept. 5th, 1905. Wm. W. Thomas, Houston, Texas. You are hereby appointed sole agent to sell the following described property, to wit: The westerly half of ten-acre lot (37) thirty-seven, of the Jas. S. Holman survey, S. S. B. B., city of Houston, Harris county, Texas, less two lots heretofore sold to A. N. Raiford (now occupied by George Raphael) for the sum of twelve thousand ($12,000.00) 00/100 dollars, on terms as follows: For all cash or any other terms desired by purchasers, if same are satisfactory to us. The time for which this exclusive agency shall run is four months from date hereof, expiring January 5th, 1906. It is agreed that should said Wm. W. Thomas sell the above-described property within the time given, he shall receive whatever sum in excess of $12,000.00 he may sell property for out of the first payment made by purchaser. An abstract of title up to date of sale and clear title to purchaser to be furnished by the undersigned. Taxes paid to December 31, 1905, inclusive. No plat to be placed of record until expiration of this agreement. ¼ cash balance 1, 2 & 3 years 6% interest or [erased before signing]. Hamburger & Dreyling. Accepted: Wm. W. Thomas."

This is the contract of sale effected by Thomas to James A. Baker, Jr.: "Houston, Texas, December 13, 1905. Received of James A. Baker, Jr., through the hands of W. W. Thomas the sum of one thousand ($1,000.00) dollars as part payment of the purchase money for the following described property situated on the south side of Buffalo Bayou, in the city of Houston, Harris county, Texas, to wit: The westerly one-half of ten-acre lot 37 of the Jas. S. Holman survey (less that part heretofore sold by us to Raiford, now occupied by George Raphael, and comprising about two lots), together with all improvements thereon, which property we have this day sold to said Baker, his heirs and assigns for the full sum of thirteen thousand five hundred ($13,500.00) dollars cash. Upon payment of the purchase money, $13,500.00, less the amount herein receipted for, we agree to convey or cause to be conveyed to the said Baker by good and sufficient warranty deed the above described property. We hereby agree to furnish within ten days from this date a complete abstract of the above described property certified to date. If the title to said property is not good in the opinion of the said Baker, then the $1,000.00 herein receipted for shall be returned to him, but if the title to said property in his opinion is good and said property is not taken within ten days from delivery of complete abstract of title of the property to him, then the $1,000.00 herein receipted for shall be forfeited to W. W. Thomas and ourselves equally as liquidated damages, and this receipt shall then be null and void, and all parties herein named released. In the event the title to said property is approved by said Baker, we agree to convey the same to him upon payment of the purchase money by deed containing covenants of general warranty. The said Baker shall also have the right at his election to waive any defects that may be found in the title to the property and accept a deed from us for the same, upon payment by him of the purchase money. Witness our hands in duplicate the day and year first above written. [Signed] L. A. Hamburger. Gus Dreyling. Jas. A. Baker, Jr."

The execution of these written instruments is undisputed.

The findings of the jury upon the special issues submitted to it are as follows: (1) The defendants did not furnish Baker with evidence of such possession of the property as would give title by limitation; (2) that the plaintiff procured the execution by James A. Baker of the contract dated December 13, 1905; (3) that defendants L. A. Hamburger and Gus Dreyling agreed to and signed said contract of December 13, 1905; (4) that Baker examined the title on the abstracts furnished by Hamburger & Dreyling, and, upon such examination, found the title thereto was not good in his opinion; (5) that Hamburger & Dreyling never produced any evidence to Baker showing the title to be good in his opinion; (6) that at the time the title was examined by Baker such title, by reason of such failure to show a good judgment, was not such a one as that it would have been approved in the opinion of lawyers generally; (7) that at the time and after Baker examined said title he was able, willing, and ready to pay the agreed price and take the land, if the title had been good in his opinion; (8) that at the time and after Baker examined said title he was able, willing, and ready to pay the agreed price and take the land if the title had been such that it would have been approved in the opinion of lawyers generally; (9) that Hamburger & Dreyling did not furnish or offer to furnish Baker any evidence that John Fitzgerald was a resident or citizen of Texas at the time the judgment was rendered against him in favor of Lee Pennington; and (10) that Hamburger & Dreyling did not offer to furnish Baker any evidence of title except that contained in the abstracts which had been offered in evidence.

In explanation of the two last special findings of the jury, we will say that the abstract of title furnished by the plaintiffs to Baker showed a complete chain of title from the sovereignty of the soil down to themselves; i. e., if the link, which consisted of a deed to W. R. Baker made by virtue of an execution sale upon a judgment rendered in the district court of Harris county, Tex., in 1852, in favor of Lee Pennington against John Fitzgerald personally, it appearing from the abstract that service on Fitzgerald was obtained by publication, it not being shown (the record in the case being lost) whether Fitzgerald was either a resident or citizen of the state of Texas, was good, and it was because this link might not be good that James Baker declined to consummate his purchase, his opinion being that, if at the time Fitzgerald was sued he was a nonresident of the state of Texas, his title was not divested by virtue of the sheriff's deed made to W. R. Baker by virtue of the sale made under execution issued on said judgment.

The special issues were submitted by the court after a charge correctly enunciating the principles of law applicable to the facts pertaining to them; and, as the evidence fully warrants the jury's findings upon all of them, we adopt and make the verdict our findings of fact upon such issues, which are the only ones controverted.

Conclusions of Law.

The principles of law which are deemed applicable by appellants' counsel to the case are presented under numerous assignments of error, urged with great ability, and supported by a wealth of authorities. Appellee's counsel, while not combating the principles of law contended for by appellants nor the soundness of the authorities urged in support of them, contends that the principles of law urged by their counsel are inapplicable to the case; and has presented in reply the principles of law he deems applicable, adduced numerous authorities in support of them, and has presented them with such force as to convince this court that appellants are wrong and he is right in all his contentions. While it would be pleasing to the writer to take up and discuss seriatim the numerous propositions and counter-propositions advanced by counsel for either party under the several assignments, unfold the authorities cited in support of them, and give at length the reasons which have induced the court to conclude against appellants and hold with the appellee, the time he can give to the disposition of this appeal denies him the pleasure of the labor; nor is it deemed necessary by the court to a proper disposition of...