Hamon v. Allen, 533

• Decision Date: 16 April 1970
• Docket Number: No. 533,533
• Citation: 457 S.W.2d 384
• Parties: Paul HAMON, Appellant, v. William M. ALLEN, Appellee.
• Court: Texas Court of Appeals

Page 384

457 S.W.2d 384

Paul HAMON, Appellant, v. William M. ALLEN, Appellee.

No. 533.

Court of Civil Appeals of Texas Corpus Christi.

April 16, 1970.

Rehearing Denied July 28, 1970.

Mahoney, Shaffer, Hatch & Layton, Richard J. Hatch, Corpus Christi, for appellant.

Boone, Davis, Cox & Hale, Owen W. Cox, Corpus Christi, for appellee.

OPINION

SHARPE, Justice.

This suit was instituted by Paul Hamon, appellant, against Dr. William M. Allen, appellee, for specific performance of a contract for sale of real estate situated in Corpus Christi, Texas. Trial was to the court and jury. After both parties rested, appellant filed motion to withdraw the case from the jury and to render judgment in his favor, and appellee filed motion for directed verdict or to take the case from the jury and render judgment for appellee. The trial court granted appellee's motion, refused that of appellant and rendered judgment that appellant take nothing by this suit.

Appellant asserts three points of error as follows:

'APPELLANT'S FIRST POINT

'The trial court erred in refusing and failing to grant plaintiff's motion for judgment and grant to plaintiff specific performance as prayed for therein.

APPELLANT'S SECOND POINT

'The trial court erred in granting defendant's motion for judgment and rendering judgment for defendant that plaintiff take nothing.

APPELLANT'S THIRD POINT

'The trial court erred in failing and refusing to allow the introduction as evidence certain portions of the deposition of the defendant wherein the defendant explained and stated the reasons he had not performed by the subject contract.'

In reply to appellant's first two points, appellee contends that appellant was not entitled to specific performance for the following reasons: (1) That there was no valid and subsisting contract between the parties, (2) that the contract was unenforceable, (3) that appellant was in default under the contract, (4) that appellant failed to make proper tender of performance, (5) that there was no showing of appellant's ability to deliver a proper deed to appellee, and (6) that appellant treated the property as his own after suit was brought. We are of the opinion that appellee's above-stated contentions 3--6 are well taken and require affirmance of the judgment.

Grounds 5--10 of appellee's motion for directed verdict and judgment read as follows:

'5. That plaintiff has failed to prove, within the time limitation fixed by the contract and the letter of January 20, 1969, from Mr. Hatch, that he had complied with all the provisions of the purported agreement signed by this defendant and the plaintiff.

6. That plaintiff and his wife were, at the time the purported contract was signed by plaintiff and defendant, occupying the premises in question, as their homestead. That no conveyance of a homestead can be consummated without the wife's signature duly acknowledged. Mr. Hamon's wife did not, at any time, execute a warranty deed of the real property involved, in accordance with the purported contract, in that she never did execute such a deed conveying the real property to Dr. Allen.

7. That the real property here involved, being the homestead of plaintiff and his wife, cannot be conveyed by plaintiff alone, and since his wife's signature is necessary, this defendant could not enforce the contract against plaintiff. Consequently, there is not mutuality of remedy.

8. That plaintiff has failed to make proper tender to this defendant of the several obligations which he was required to comply with in accordance with the provisions of the purported agreement for the sale of his property such as a proper warranty deed, title insurance, clear title, prorated items, and other obligations set forth in the contract, and which would be necessary in order to properly consummate the transaction.

9. That plaintiff was, on the 16th and 17th of January, 1969, and still is in default under the terms of the agreement, in that at the closing date of January 16, 1969, and the ultimate date of January 24, 1969, which was obviously a final date set by plaintiff for closing, had never made available a warranty deed which would convey the property to the proper party, to-wit, Dr. Allen, alone, and plaintiff was in default in other respects.

10. That plaintiff has never placed himself in a position to pursue the remedy of specific performance in that he has treated the property, in every respect, as entirely his own, and he has done so since the 17th day of January and since the 24th day of January, 1969, and plaintiff is, as of the date of this trial, treating the property solely for his benefit and in a way inconsistent with the theory of specific performance.'

Appellant contends that under the undisputed facts he was entitled as a matter of law to specific performance of his written contract with appellee. The material facts will be briefly summarized. Appellee, Dr. William M. Allen, desired to purchase a new home on Ocean Drive in Corpus Christi, Texas, and secured the services of a realtor to aid him in this endeavor. Appellee's realtor, Forrest Allen Company, contacted appellant in such respect and after some negotiations as to price, a contract dated December 18, 1968, was entered into by and between appellant Paul Hamon, Trustee, as seller, and appellee Dr. William M. Allen, as purchaser. The contract, among other things, contained the following condition:

'Conditioned upon securing a twenty-five (25) year conventional seven (7%) percent approved mortgage loan in the amount of Forty Eight Thousand Three Hundred ($48,300.00) Dollars.'

The appellee on December 5, 1968 had made application for a loan to First Savings Association of Corpus Christi, Texas and the same was approved on December 17, 1968 in the above-stated amount.

Mary Ann Hodges and Betty Jurecko of San Jacinto Title Company testified as witnesses on behalf of appellant. Mary Ann Hodges testified in substance that the written contract between the parties was deposited with the title company on December 19, 1968 as required by it. Mrs. Jurecko testified in substance as follows: That she received a check for Forty Eight Thousand Three Hundred ($48,300.00) Dollars from First Savings Association. Certain instruments in connection with the proposed sale and transfer of the property were prepared either by Mrs. Jurecko or under her direction or by an attorney. These instruments included a warranty deed reserving vendor's lien from Paul Hamon, individually and as Trustee, and his wife Dorothy Hamon, as grantors, to William M. Allen and wife Mary Allen, as grantees, a note in the amount of $48,300.00 payable to First Savings Association in installments with signature lines for Dr. William M. Allen and wife Mary Allen, and a deed of trust to secure the note, also with signature lines for Dr. William M. Allen and Mary Allen. Mrs. Jurecko further testified that the plaintiff, Paul Hamon and his wife, Dorothy, came by the title company and executed the warranty deed dated January 15, 1969 and their acknowledgments were taken by her on the 15th and 16th of January, 1969. Thereafter, someone at the title company called appellee's office and advised him that the matter was ready for closing and that he should come by and execute certain instruments. Appellee, Dr. Allen, went to the title company on January 16, 1969, the date called for closing under the terms of the contract, but did not sign the papers on such date. He returned the following day and executed the promissory note in the sum of Forty Eight Thousand Three Hundred Dollars ($48,300.00), a deed of trust to secure that note and a closing statement. A cash payment of Fifteen Thousand Three Hundred Thirty Five Dollars and Eighty Eight Cents ($15,335.88) was required and Dr. Allen delivered his check to the title company in that amount. After executing the documents on Friday, January 17, 1969 at the title company, appellee advised its representative to call his wife, Mary Allen, and she would also come by the title company to sign the documents. Mrs. Jurecko further testified that on January 16, 1969 when Dr. and Mrs. Allen came in, she, as a representative of the title company was prepared and willing to issue a guaranteed title policy on the property. However, she further testified in substance that there was an outstanding lien against the property and she was not in position to issue the policy at the time Dr. Allen signed the papers and would not have been until Mrs. Allen signed them. Mrs. Jurecko further explained that the outstanding lien would have been discharged by payment out of the funds in escrow and a release of same would be obtained after the transaction between the parties was closed. When the title company representative contacted Mrs. Allen, she advised that she did not want to go through with the contract. On Friday, January 17, 1969, after hearing from his wife and her objection to purchase the home, Dr. Allen stopped payment on his check and on Monday, January 20, 1969, went to the title company and demanded the return of his check. On the last-mentioned date appellant's attorney wrote a letter to appellee, which reads as follows:

'January 20, 1969

'Dr. William M. Allen

3216 Reid Drive

Corpus Christi, Texas

Re: Closing of real estate sale

Paul Hamon, et ux to

William M. Allen, et ux

Lot 5, Block 2

Alta Vista Cliffs

3628 Ocean Drive

Dear Dr. Allen:

Please be advised that this firm represents Mr. and Mrs. Paul Hamon in the above referenced matter which has been referred to this office for attention. According to the contract between the parties, the matter should have been closed on or before January 16, 1969. The title company advises me that they are ready to issue a title policy as required by the contract. Mr. and Mrs. Hamon have executed all papers necessary for closing. In addition, I am advised that the mortgage conditions stated in the contract were actually met prior to the execution of the contract and...