Hawn v. Hawn, 5199

• Decision Date: 14 December 1978
• Docket Number: No. 5199,5199
• Citation: 574 S.W.2d 883
• Parties: Harry D. HAWN et al., Appellants, v. J. V. HAWN et al., Appellees.
• Court: Texas Court of Appeals

Page 883

574 S.W.2d 883

Harry D. HAWN et al., Appellants, v. J. V. HAWN et al., Appellees.

No. 5199.

Court of Civil Appeals of Texas, Eastland.

Dec. 14, 1978.

Rehearing Denied Jan. 4, 1979.

Tom Thomas, Kolodey & Thomas, Dallas, for appellants.

Jack Pew, Jr., Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellees.

McCLOUD, Chief Justice.

Plaintiffs, J. V. Hawn, Villas Management Services, Inc., and Elam-Miller, Inc., sued defendants, Collection Services, Ltd., a Texas limited partnership, and its two general partners, Harry D. Hawn and William R. Wortley, seeking specific performance of a written agreement executed in connection with the settlement of a pending lawsuit. The trial court directed a verdict in favor of plaintiffs. Defendants have appealed. We affirm.

Plaintiffs, on January 3, 1977, in Cause No. 77-9-J in the 191st District Court of Dallas County, sued American Housing Resources, Inc. seeking payment of four promissory notes executed on behalf of American Housing and totaling $164,756.75. Defendant Wortley was president of American Housing, and defendant Harry D. Hawn, son of plaintiff, J. V. Hawn, was vice-president. While the suit against American Housing was pending, an agreement for settlement of the litigation was reached. The written agreement was executed on July 22, 1977, by J. V. Hawn, the corporate plaintiffs, and by defendants Wortley and Harry D. Hawn, as the general partners of Collection Services, Ltd., a Texas limited partnership. The written agreement provided in part:

(1) That plaintiffs would assign to Collection Services, Ltd., the four American Housing notes, as well as an additional $80,000 note, payable to J. V. Hawn, and executed by American Housing;

(2) That the purchase price of the five notes would be $120,000 consisting of (a) $50,000 in cash, and (b) two promissory notes, dated July 22, 1977, and due on or before December 1, 1978, to be executed by Wortley and Harry D. Hawn as general partners of Collection Services, Ltd.; and

(3) That plaintiffs would dismiss Cause No. 77-9-J, the suit pending against American Housing.

The agreement was originally typed to be entered into and signed by Harry D. Hawn and William R. Wortley in their individual capacities. By penned interlineation, however, the agreement shows to be entered into and signed by Wortley and Harry D. Hawn as general partners of Collection Services, Ltd. Throughout the instrument, the typed letter "s" at the end of the word "Assignees" was marked out. Paragraph 3 of the agreement provided:

Litigation and Release : By Cause No. 77-9-J filed in the 191st Judicial District Court of Dallas County, Texas, Assignors have filed suit against AHR for collection of those AHR Notes which are referred to in paragraphs A(i) through (iv) hereof. In consideration of this Agreement, Assignors agree to dismiss such cause without prejudice. In consideration for such agreements and the other agreements of Assignors herein contained, Assignee hereby release, acquit and forever discharge Assignors and each of them from any and all claims and demands, actions, causes of action, damages, costs and expenses of any nature (including any claims for the furnishing of carpets to Hawn) that Assignee may now have, own or claim to have or own, and Assignors hereby release, acquit and forever discharge Assignee and American Housing Resources, Inc. and each of them from any and all claims and demands, actions, causes of action, damages, costs and expenses of any nature that Assignors may now have, own or claim to have or own.

Paragraph 7 provided:

Merger and Binding Effect : All understandings and agreements between the parties are merged into this Agreement, which alone expresses their agreement, and the same is entered into after full investigation, neither party relying upon any statement or representations not embodied in this Agreement made by the other. It may not be changed orally and all of the stipulations contained in this Agreement are to apply to and bind the successors and assigns of the respective parties hereto.

Defendants failed to comply with the July 22, 1977, agreement and on September 7, 1977, plaintiffs amended their petition in Cause No. 77-9-J to include in count one a claim against defendants based upon the July 22, 1977, agreement. In count two, they alternatively sought recovery against American Housing on the five notes in issue. On motion of plaintiffs, count two was severed for separate trial. The trial involved count one only, that being the claim against defendants, Wortley, Harry D. Hawn, and Collection Services, Ltd. On December 9, 1977, the court entered judgment, jointly and severally, for plaintiffs against defendants for $50,000, plus attorney's fees, and directed defendants to execute the $50,000 and $20,000 promissory notes provided for in the July 22, 1977, agreement. On the same date, the court dismissed plaintiffs' cause against American Housing Resources, Inc.

Defendants, Wortley and Harry D. Hawn, contend the court erred in not permitting them to introduce evidence before the jury that J. V. Hawn had in January or early February of 1977 agreed to assign the notes in question to Collection Services, Ltd., a "contemplated" limited partnership, for an interest as a limited partner. Wortley and Harry D. Hawn, individually, asserted a counterclaim against plaintiffs for breach of this alleged agreement. On bill of exception, Wortley and Harry D. Hawn testified that prior to the July 22, 1977, written agreement, J. V. Hawn, for and on behalf of all the plaintiffs, agreed to assign the notes to the contemplated limited partnership in exchange for an interest as a limited partner. The excluded evidence showed that Wortley and Harry D. Hawn were attempting to purchase all of the stock of American Housing; that they would be the general partners of the contemplated limited partnership and there would be eight limited partners; that on February 18, 1977, Wortley and Harry D. Hawn sent J. V. Hawn a proposed agreement for the contemplated limited partnership, which was signed by the general partners and only one of the eight prospective limited partners; and that J. V. Hawn did not sign the agreement. Collection Services, Ltd., one of the defendants herein, was later established but it was not the "contemplated" limited partnership. The partnership that was established did not include the limited partners as contemplated when J. V. Hawn allegedly made the oral commitment.

If the...