Johnson v. Portwood

• Decision Date: 20 February 1896
• Citation: 34 S.W. 596
• Parties: JOHNSON v. PORTWOOD et al. (LONG, Intervener).
• Court: Texas Supreme Court

34 S.W. 596

JOHNSON v. PORTWOOD et al. (LONG, Intervener).

Supreme Court of Texas.

February 20, 1896.

Certified questions from court of civil appeals of Second supreme judicial district.

Action by D. Portwood and others against Henry V. Johnson on notes. R. A. Long intervened. There was a judgment sustaining exceptions to separate pleas filed by defendant and intervener, and the latter brought error to the court of civil appeals, which certified the case to the supreme court. Affirmed as to defendant, and reversed as to intervener.

Wynne, McCart & Booty, for appellants. Hunter, Stewart & Dunklin, for appellees.

GAINES, C. J.

The court of civil appeals for the Second supreme judicial district, seeking to have this court determine certain questions involved in the above-stated case, now pending in that court, have submitted for our consideration the following certificate: "In this cause this court heretofore rendered a decision in which one of the judges thereof dissented to the conclusions of law expressed by the majority, ordering that the judgment be reversed and the cause be remanded for a new trial. The grounds for dissent still adhered to are entered in the opinion of the court, a copy of which accompanies this certificate. The questions presented arise upon exceptions to the pleadings of the appellants, Henry V. Johnson and R. A. Long, and a copy of the pleadings of the parties, respectively, accompanies this certificate. The decision of this court was rendered when Head, J., was a member of this court. The questions for adjudication now arise upon a motion for rehearing pending in this court, in which Hunter, J., is disqualified. This certificate is made in accordance with an order of this court this day entered upon its own motion; Hunter, J., being disqualified, and not sitting therein. Accordingly, the points of dissent, which appear fully in the accompanying copy of the opinion, in connection with the accompanying copy of the pleadings of the parties, respectively, are respectfully certified to your honors for decision, under the provisions of article 1081c, Supp. Sayles' Civ. St. Should it be deemed that the certificate does not arise under the terms of said article, the very questions of difference, which appear as already indicated, are certified for decision to your honors, under the provisions of article 1081f, Supp. Sayles' Civ. St."

The questions upon which there was a dissent involved the correctness of the ruling of the trial court in sustaining demurrers to the special answer of the defendant, and to a plea of intervention of his coappellant. The certificate is accompanied with a certified transcript of the pleadings in the case, together with the dissenting opinion, which contains as well the grounds upon which the majority base their conclusion. We think we have no jurisdiction to decide the questions as upon certificate of dissent. The articles of the present Revised Statutes which confer jurisdiction upon this court to determine questions upon which the courts of civil appeals may certify their dissent are as follows:

"Art. 1040. When any one of said courts of civil appeals shall in any cause or proceeding render a decision in which any one of the judges therein sitting shall dissent as to any conclusion of law material to the decision of the case said judge shall enter the grounds of his dissent of record, and the said court of civil appeals shall, upon motion of the party to the cause, or on its own motion, certify the point or points of dissent to the supreme court.

"Art. 1041. When a certificate of dissent is sent up by any court of civil appeals it shall be the duty of the clerk to send up a certified copy of the conclusions of law upon which there is a division, and the original transcript, if so ordered by the supreme court, and thereupon, if the supreme court so direct, the clerk shall set down the same for argument and notify the attorneys of record."

The article first quoted evidently contemplates that the case shall be finally decided before the dissent can be certified. A case is not finally decided as long as there is a motion for a rehearing undetermined. And hence we think our jurisdiction does not attach by reason of the dissent. But since the opinion, which accompanies the certificate and which is deemed a part of it, distinctly presents the questions upon which our decision is desired, and since we are requested to consider the same as a certified question, if not as upon a certificate of dissent, we think it our duty to comply.

We are of the opinion that the exceptions to the pleadings of the defendant were correctly sustained. In defense of the action, which was a suit upon certain promissory notes given by him to the plaintiffs for the purchase money of a tract of land, the defendant alleges in his answer an agreement entered into between him and the plaintiffs, at a time when a former suit on the notes was pending, for a satisfaction and discharge of the indebtedness. He alleges that, in consideration of a payment of $6,566.33, the plaintiffs addressed a letter to one John C. Harrison, who, it seems, was a depositary of the notes, in which they directed him, upon payment of the sum of $4,256.40 and interest, and the reconveyance to the plaintiffs of a third of the land for which the notes had been given, to deliver up to the attorney of the defendant the notes, together with a release signed by them, which accompanied the letter. The letter of instructions directed that the money was to be paid in 30 days. A copy of the writing was made a part of the answer. It was not alleged that there was any other writing evidencing the terms of the agreement. The answer avers a tender of the $4,256.40 and interest after the 30 days had expired, but practically admits that no tender was made within that time. We take it, from the defendant's averments, that while the plaintiffs may, upon defendant's compliance with the terms of the letter of instructions, have been bound thereby, the defendant was not bound either to pay the sum therein mentioned, or to convey the land. In the absence of some memorandum of the agreement signed by him, he could not be compelled specifically to perform what the contract gave him the option to do. Morris v. Gaines, 82 Tex. 255, 17 S. W. 538; Brock v. Jones, 8 Tex. 78; Crutchfield v. Donathon, 49 Tex. 691. The agreement does not evince that anything but an option on his part was intended. He could do, or not do, as it pleased him. In an ordinary contract for the conveyance of land, in which the purchase money is to be paid at a future day, time is not usually held to be of the essence of the contract. But, when the transaction is in the nature of a unilateral contract,— where a party is given an option to acquire a right by doing a certain thing within a specified time,—it is held that time is essential, and that in order to secure the right he must comply within the specified period. This is settled law. In addition to the authorities cited in the dissenting opinion, the following are also referred to as affirming the doctrine announced: Coleman v. Applegarth, 68 Md. 21, 11 Atl. 284; Harding v. Gibbs, 125 Ill. 85, 17 N. E. 60; Mason v. Payne, 47 Mo. 517; Stembridge v. Stembridge's Adm'r, 87 Ky. 91, 7 S. W. 611; Estes v. Furlong, 59 Ill. 298; Kerr v. Purdy, 51 N. Y. 629, 50 Barb. 24; Potts v. Whitehead, 20 N. J. Eq. 55; Brooke v. Garrod, 3 Kay & J. 608, 2 De Gex & J. 62; 3 Pom. Eq. Jur. (2d Ed.) § 1408, note 1.

But the defendant, in a trial amendment, also avers that the time expressed in the letter of instructions to Harrison is not the time actually agreed upon between the parties, and that in fact he was to be allowed 90 days in which to make the payment of the $4,256.40. As before stated, the agreement involved a conveyance by the defendant of his interest in one-third of the land to the plaintiffs. The promise to convey the land is within the statute of frauds. The conveyance of the land was a part of the consideration for the defendant's promise. If neither promise be in writing, neither can be enforced. Morris v. Gaines, supra; Brock v. Jones, supra. It follows that, if the letter is not evidence of the contract on part of the plaintiffs, the defendant has no contract which he can enforce. If the letter be relied upon as a memorandum of the plaintiffs' promise, enforceable under the statute of frauds, then it is a written instrument, the terms of which cannot be varied by parol evidence. If the defendant can show that 90 days was allowed, under the actual agreement, in which to make the payment, why may he not prove that only $400 was to be paid, instead of more than $4,000, or that in fact no land was to be conveyed? This we think clearly an attempt to vary the terms of a written instrument by parol evidence, and cannot be permitted. The skillful pleaders who drew the answer of the defendant probably made the most of his case. They did not allege a mutual mistake in drawing the writing, and seek to reform it, for the reason, in all probability, that the plaintiffs made no mistake. It would not have availed them to allege fraud, because the proof of that allegation would have destroyed the effect of the instrument for any purpose, and would have left them without any contract which could have been enforced.

But we think that the trial court erred in sustaining the demurrer to the plea of intervention. Briefly stated, the case alleged in the plea of intervention is, in part, that the intervener acted as agent of the...