Irvin v. Lambert, 9289.

• Decision Date: 04 April 1934
• Docket Number: No. 9289.,9289.
• Citation: 70 S.W.2d 495
• Parties: IRVIN v. LAMBERT et al.
• Court: Texas Court of Appeals

Page 495

70 S.W.2d 495

IRVIN v. LAMBERT et al.

No. 9289.

Court of Civil Appeals of Texas. San Antonio.

April 4, 1934.

Rehearing Denied April 25, 1934.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Suit by W. V. Irvin against M. F. Lambert and another. Judgment in favor of plaintiff against unnamed defendant. From a judgment for named defendant, plaintiff appeals.

Reversed and rendered.

Sidney P. Chandler, of Corpus Christi, for appellant.

B. D. Tarlton and L. Hamilton Lowe, both of Corpus Christi, for appellee.

MURRAY, Justice.

Appellant, W. V. Irvin, instituted this suit in the district court of Nueces county against one L. R. Clarkson and appellee Mrs. M. F. Lambert, seeking to recover the sum of $2,500 earnest money posted for the faithful performance of a contract of purchase of 1,000 acres of land, together with money expended in improving the 1,000 acres.

Clarkson was sued for an accounting and settlement of the affairs of a partnership existing between appellant and Clarkson. Appellant recovered a judgment against Clarkson, and he has not appealed. Thus the controversy involved in this appeal is between Irvin and Mrs. M. F. Lambert.

The contract of purchase was as follows:

"State of Texas, County of Nueces

"This agreement made by and between Mrs. M. F. Lambert, of Refugio County, Texas, a feme sole, hereinafter called party of the first part, and W. V. Irvin, of Nueces County, Texas, hereinafter called party of the second part. Witnesseth:

"First: For the consideration hereinafter fully stated, and subject to compliance with the conditions of this contract by the party of the second part, the party of the first part hereby agrees to sell, and binds herself to convey to the party of the second part, the following described tract and parcel of land, lying in the County of Refugio, and State of Texas, and being one thousand (1,000) acres of land described as follows: [Description of land omitted.]

"Second: The party of the second part binds himself to pay the consideration hereinafter fully stated, and to perform the conditions hereinafter described and to purchase the hereinafter described property upon the terms and conditions as herein stated.

"Third: For and in consideration of the above described tract of land, the party of the second part agrees to pay to the party of the first part at Refugio or San Antonio, Texas, at the option of the party of the first part, the sum of Sixty Thousand ($60,000.00) Dollars, which sum shall be paid as follows: —

"Upon the execution of this contract, the party of the second part agrees to make application to a Loan Company for the usual loan, such loan to be not less than Forty ($40.00) Dollars per acre, or the total sum of Forty Thousand ($40,000.00) Dollars, and immediately upon the acceptance of his application for said loan, he shall begin operations to put all of said land in cultivation, and in addition, he shall build upon said land a five-room house, and bore a water well and erect thereon a windmill, and in addition, he shall build necessary tenant houses, not less than five (5), to house a sufficient number of tenants to properly cultivate said land, and erect a barn upon said premises; all of which improvements shall be completed within six (6) months from the date of execution of this contract, provided, however, that the party of the second part shall be entitled to additional time not to exceed thirty (30) days, to complete said improvements in the event it is necessary to so extend the time on account of bad weather.

"Fourth: Upon the execution of this contract and the approval of said loan, the party of the first part shall execute a Warranty Deed, conveying said land to the party of the second part, reciting a total consideration of Sixty Thousand ($60,000.00) Dollars to be paid as follows:

"The execution and delivery by the party of the second part of one note for the sum of Forty Thousand ($40,000.00) Dollars, and one note for the sum of Five Thousand ($5,000.00) Dollars, such notes to bear even date with the Deed, and to be due on or before six (6) months from said date, and said notes to be secured by a first lien on said land, and the further sum of Fifteen Thousand ($15,000.00) Dollars to be due in three equal payments each in the sum of Five Thousand ($5,000.00) Dollars, bearing interest at the rate of eight per cent. per annum, and due and payable annually beginning with the first day of November, 1928, provided, however, that the first annual installment of interest shall be due on the first day of November, 1927; (description of notes omitted) said Deed and said notes shall be deposited in the First National Bank of Refugio, Texas, in escrow, subject to the conditions of this contract.

"Fifth: The party of the second part shall further deposit in said Bank, the sum of Two Thousand Five Hundred ($2,500.00) Dollars, which is deposited as earnest money to bind the party of the second part to this contract, and as a guaranty that he will, in good faith, perform the same, provided, however, that he shall be permitted to withdraw the same when he shall have plowed said one thousand (1,000) acres of land, and fully complied with the terms of this contract.

"Sixth: In the event of the failure of the party of the second part to comply with the terms and conditions of this contract, the said Two Thousand Five Hundred ($2,500.00) Dollars so deposited, shall be paid to the party of the first part as liquidated damages, and in the event there is no delivery of the Deed hereinabove described, no interest shall accrue on said notes executed as a part of the consideration therefor.

"Seventh: As soon as said improvements are completed, said Bank shall deliver said Deed to the party of the second part and said notes to the party of the first part, provided the said party of the second part has secured a binding agreement from a responsible Loan Company to purchase the said note of Forty Thousand ($40,000.00) Dollars hereinabove described, without recourse on the party of the first part, it being expressly agreed and understood that no delivery of the Deed shall be made unless the party of the second part has effected a loan on said premises, without recourse upon the party of the first part of the full sum of Forty Thousand ($40,000.00) Dollars, which said sum of Forty Thousand ($40,000.00) Dollars must be paid to the party of the first part, and has paid the note of Five Thousand ($5,000.00) Dollars first hereinbefore described to the party of the first part, and in the event of failure of the party of the second part to secure said loan in the sum of Forty Thousand ($40,000.00) Dollars and to pay said Five Thousand ($5,000.00) Dollar note, this contract shall terminate and become null and void, and the sum of Two Thousand Five Hundred ($2,500.00) Dollars deposited as earnest money in said Bank, shall be paid to the party of the first part.

"Eighth: In the event of the failure of the party of the second part to fully perform and carry out his part of this agreement, then and in that event, this contract shall...