Huffhines v. Bourland

• Citation: 280 S.W. 561
• Decision Date: 17 February 1926
• Docket Number: (No. 751-4346.)
• Parties: HUFFHINES v. BOURLAND.
• Court: Supreme Court of Texas

Page 561

280 S.W. 561

HUFFHINES v. BOURLAND.

(No. 751-4346.)

Commission of Appeals of Texas, Section A.

February 17, 1926.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by C. C. Huffhines against W. S. Bourland and another. The Court of Civil Appeals, on appeal of W. S. Bourland (269 S. W. 184), reversed and rendered in part, and remanded in part, a judgment and decree for plaintiff below, and plaintiff brings error. Affirmed.

Carl Gilliland and W. H. Russell, both of Hereford, for plaintiff in error.

Bonner & Storey, of Vernon, and Turner & Dooley, of Amarillo, for defendant in error.

HARVEY, P. J.

The plaintiff in error, C. C. Huffhines, brought this suit against W. S. Bourland, the defendant in error, to enforce specific performance of the following contract of sale, or, in the alternative, for recovery of the $1,000 mentioned in the contract as being held in escrow by the First State Bank & Trust Company of Hereford, Tex. The last-named company is made party defendant merely as stakeholder. The contract of sale, which was executed by said parties, reads as follows:

"This agreement, made on this 19th day of August, 1920, between C. C. Huffhines, by E. A. Johnson, his agent, first party, and W. S. Bourland, second party, witnesseth:

"In consideration of the sum of $25 per acre to be paid as herein stated first party agrees to sell and second party agrees to purchase all of sections Nos. 99 and 100 in block M-7-, Castro county, Texas. The sum of $9,000 to be paid in cash when deal is consummated; the sum of $1,000 of said cash payment is hereby made, and is deposited in escrow in the First State Bank & Trust Company of Hereford, Texas, at which place this deal is to be closed, and said $1,000 to be delivered to first party when the deal is closed, but in case first party complies with all the terms of this contract, and if second party fails or refuses to comply on his part, then said $1,000 shall be paid to first party as agreed liquidated damages. The balance of said consideration to be paid as follows: Second party to assume the now existing indebtedness against said land, amounting to about $5,900, the same to be deducted from the purchase price going to first party; and the balance due first party to be evidenced by second party's five promissory notes of equal amounts, of even date with deed and due in 1, 2, 3, 4, and 5 years from date of deed, and all drawing 8 per cent. interest, the interest payable annually, and notes to provide for the usual maturing and attorney's fee clauses.

"First party shall furnish to second party an abstract of title showing a merchantable title in himself, clear of liens save such as assumed, and first party to pay all taxes for 1920, and second party to have said abstracts examined and report any defects in writing, and first party to have a reasonable time to cure such defects.

"This deal to be closed at any time that first party is able to give possession of said premises; but first party agrees to give second party thirty days' notice of the time in which he can deliver possession, and second party shall have thirty days from the receipt of such notice to make his arrangements for consummating this contract; and the same shall be closed by first party executing and delivering a proper warranty deed, at which time second party shall make such cash payment and execute and deliver said notes."

At the time the above contract was executed, Bourland placed the sum of $1,000 in escrow with the Bank & Trust Company, as provided in the contract, and said company still holds same. Afterward Bourland refused to conclude the purchase of the land, for the alleged reason that the title tendered by Huffhines was not a merchantable title. Upon the trial of the case the trial court rendered judgment in favor of Huffhines, decreeing specific performance by Bourland of the contract of sale. Upon appeal by the latter to the Court of Civil Appeals, that court held, in effect, that the title to the land which was tendered by Huffhines is not merchantable, and that Bourland rightfully, refused to conclude the purchase under the contract, and for that reason Huffhines is not entitled to a specific performance of the contract. The latter court reversed the judgment of the trial court and rendered judgment against Huffhines in his suit for specific performance, but remanded the cause for trial of that branch of his suit which seeks recovery of the $1,000 held in escrow. 269 S. W. 184.

In his application to the Supreme Court for writ of error, Huffhines assigns error only to that part of the judgment of the Court of Civil Appeals which reverses and renders judgment against him on his plea for specific performance. Therefore the only question for us to decide is whether or not the judgment of the Court of Civil Appeals in that respect is correct. And in arriving at a conclusion upon that question we do not find it necessary to consider the holdings of that court or the grounds upon which it rested its decision. The defendant in error, by proper assignments of error, duly presented in that court grounds of error which were not considered by the Court of Civil Appeals. Stated generally, such grounds are to the effect that, regardless of the reasons for Bourland's refusal to consummate the purchase of the lands, or...