Harrison-Daniels Co. v. Aughtry

• Decision Date: 03 January 1958
• Docket Number: HARRISON-DANIELS,No. 15356,15356
• Citation: 309 S.W.2d 879
• Court: Texas Court of Appeals
• Parties: TheCO., Appellant, v. J. D. AUGHTRY, Appellee.

Page 879

309 S.W.2d 879

The HARRISON-DANIELS CO., Appellant, v. J. D. AUGHTRY, Appellee.

No. 15356.

Court of Civil Appeals of Texas, Dallas.

Jan. 3, 1958.

Rehearing Denied Jan. 31, 1958.

Worsham, Forsythe & Riley and William Woodburn, Dallas, for appellant.

John C. Cain and O. M. Stubblefield, Dallas, for appellee.

DIXON, Chief Justice.

This is a suit for damages for delay in performance of a contract for the conveyance of title and delivery of possession of land.

On October 1, 1955 appellant Harrison-Daniels Company, a corporation, acting by and through its vice-president, John R. Harrison, as owner and seller entered into a written contract with appellee J. D. Aughtry as purchaser, whereby for a consideration of $37,000 the company bound itself to convey by warranty deed a good and merchantable title and to deliver possession to purchaser of about 380 acres of farm land in Cooke County, Texas. The contract provided that possession should be given to the purchaser not later than January 1, 1956. Appellee placed $3,700 in escrow as earnest money.

After appellee Aughtry had approved title and requested performance it was discovered that one Alvin Barthold, a tenant in possession of the land, claimed he had a lease for the entire year of 1956. Barthold refused to move off the property; consequently appellant was unable to deliver possession to appellee Aughtry on January 1, 1956, as it had bound itself to do. Appellant offered to execute a deed and to give such possession as it could under the circumstances, but appellee refused to accept title and possession subject to Barthold's claim of possession as tenant for the year 1956.

The matter dragged along for the entire year of 1956. Finally when Barthold moved off the premises at the end of 1956, appellant conveyed title and possession to appellee, who went into possession of the farm on January 1, 1957, one year later than the possession date called for in the contract. Thus the contract was fully performed by appellant as to all material terms, except that there was a delay of one year in the performance by appellant.

Meantime appellee had filed suit for specific performance, and in the alternative for damages. The defendants were the Harrison-Daniels Company, a corporation, John R. Harrison, the corporation's vice-president, who had signed the contract, and Barthold, the tenant. However by the time the suit came on for trial on January 11, 1957, appellant had finally conveyed and appellee had accepted title and possession of the land. Thus the action for specific performance went out of the case, leaving for adjudication only appellee's action for damages for delay in performance.

In a jury trial only three issues were submitted and they were answered as follows: (1) Appellee J. D. Aughtry suffered damages by reason of appellant's failure to make delivery of possession not later than January 1, 1956; (2) appellee J. D. Aughtry was required to incur 'additional expenses' by reason of said failure; and (3) the reasonable annual rental of the farm in the condition it was in at the time possession was to have been delivered on January 1, 1956 was $2,000. No issue was submitted as to the nature or amounts of the 'additional expenses.'

On March 22, 1957 the trial court entered judgment against appellant Harrison-Daniels Company, a corporation, for $3,587.80, being $2,000 as reasonable rental of the farm for one year, and $1,587.80 for 'travel expenses and other items of expense' incurred by appellee in connection with the deal. The trial judge, not the jury, made the finding that appellee had incurred expenses in the amount of $1,587.80. A directed verdict was granted Barthold, the tenant. No issues were submitted as to Harrison, and judgment was entered in his favor.

In its first point on appeal appellant says the court should have sustained its motion for directed verdict, because as a matter of law appellee as vendee was entitled only to special damages, which were not established in this suit by the testimony. In support of this contention appellant cites us to several cases wherein it is held that in the absence of fraud the measure of damages where a vendor is unable to make title as agreed, is the amount of the purchase money paid plus interest from the time of payment, plus such special damages as the vendee may allege and prove. The cases cited by appellant are: Nelson v. Jenkins, Tex.Civ.App., 214 S.W.2d 140; Eagle Pass Lumber Co. v. The Amortibanc, Tex.Civ.App., 124 S.W.2d 186; Kelly v. Simon, Tex.Civ.App., 262 S.W. 202; Armstrong v. James, Tex.Civ.App., 220 S.W. 420; and Garcia v. Yzaguirre, Tex.Com.App., 213 S.W. 236. See also 43-A Tex.Jur. 698.

We do not disagree with the holdings of the above authorities, but in our opinion said holdings are not applicable to the facts of this case. In every one of the above cited cases the vendor never did perform his contract to convey title and possession. The sale of the land involved was never consummated. Here we have an entirely different situation. Appellant Harrison-Daniels Company was finally, though tardily, able to convey title and to deliver possession, which title and possession, tendered a year late, were accepted by appellee as purchaser. Thus appellant performed its contract in every particular except for the delay of one year.

Though there is some conflict in the authorities, it is our opinion that the proper measure of ordinary or general damages (as distinguished from special damages) for delay in performance of a contract to convey title to land and a consequent withholding of possession, is the reasonable rental value of the land for the time the purchaser is kept out of possession. No Texas case in point has come to our attention, but the question has been reviewed in other jurisdictions. Lifton v. Harshman, 90 Cal.App.2d 180, 202 P.2d 858; Sanders v. Detlaff, 218 Mich. 471, 188 N.W. 446; Derbonne v. Burton, La.App., 189 So. 473; 92 C.J.S. Vendor & Purchaser Sec. 606, p. 655. In Sanders v. Detlaff, supra, it was held that such damages are recoverable though the vendee knew that the property was in possession of a tenant claiming a lease, the vendee having a right to assume that the vendor could and would give possession according to the terms of the contract. Appellant's first point is overruled.

In its second to twelfth points, inclusive, appellant attacks the court's action in including in the judgment the sum of $1,587.80 incurred by appellee as expenses. Summarized, these points are: The court erred in admitting testimony of appellee as to his traveling, living and other expenses incurred in the lawsuit because (1) there is no pleading to support the testimony, and besides (2) said items are not recoverable as actual damages in a suit of this kind; and it was error to submit special issue No. 2 because (a) there was no pleading to support the submission of the issue, (b) the expenses contemplated are not...