Jones v. English

• Decision Date: 12 May 1954
• Docket Number: No. 12625,12625
• Citation: 268 S.W.2d 686
• Parties: JONES et al. v. ENGLISH et al.
• Court: Texas Court of Appeals

Page 686

268 S.W.2d 686

JONES et al. v. ENGLISH et al.

No. 12625.

Court of Civil Appeals of Texas, San Antonio.

May 12, 1954.

Rehearing Denied June 9, 1954.

North, Blackmon & White, King & Nesbit, Corpus Christi, for appellants.

Chas. G. Lyman, Corpus Christi, L. Hamilton Lowe, Austin, for appellees.

W. O. MURRAY, Chief Justice.

This cause has been before this Court previously upon procedural questions. See Jones v. English, Tex.Civ.App., 235 S.W.2d 238. It was instituted in the District Court of Nueces County by Dudley Jones against Mrs. Rudolph English, a feme sole, seeking partial specific performance of a certain written sales contract entered into between plaintiff and defendant on or about January 21, 1950, whereby plaintiff agreed to buy and defendant agreed to sell, for a cash consideration of $9,500, the following described real property:

All of Lots 19, 20, 21, 22, 23 and 24 of Block 7 in the Patrick Webb Subdivision of Corpus Christi, Nueces County, Texas.

The contract further provided that the deal should be closed on or before February 15, 1950 (the contract stated 1949 through typographical error).

On February 8, 1950, plaintiff received a letter from attorneys representing Fred F. English (a son of Mrs. Rudolph English), Elizabeth Veselka (a daughter of Mrs. English) and her husband, Adolph J. Veselka, informing plaintiff that these parties owned an interest, right and title in and to the property above described, that they would not sell their interest and had not authorized any one to sell it for them. On February 11, 1950, plaintiff notified defendant that he had complied with his contract by depositing the required amount of money with the Guaranty Title & Trust Company, and that if she was unable to convey the full title to the property he would expect her to convey her undivided interest, with a proportionate reduction or abatement in the purchase price. Thereafter, on February 14, 1950, plaintiff received a letter from defendant dated February 10, 1950, stating that in view of the fact that her children, Mrs. Veselka and Fred F. English, would not join her in any conveyance of the property, the sale could not be consummated. Thereafter plaintiff filed this suit seeking to compel Mrs. English to convey to him such interest as she did have in the property, with a proportionate reduction or abatement in the purchase price. Milton A. North, who acted as defendant's agent in negotiating the purchase contract, was made a party to the suit, and he has filed a cross-action asking for a real estate commission in the sum of $450. Fred F. English and Elizabeth English Veselka, joined pro forma by her husband, Adolph J. Veselka, have intervened herein.

The cause was submitted to a jury upon thirty-two special issues. Both Jones and North filed separate motions for instructed verdicts, which were overruled by the court, and after the jury had returned its answers both filed separate motions for judgment non abstante verdicto, which motions were overruled by the court and judgment rendered deyning Jones and North recovery, and providing further that Mrs. English go hence with her costs, from which judgment Dudley Jones and Milton A. North have prosecuted this appeal.

Appellee, Mrs. English, contends that her counter-points Nine and Ten present the controlling issues in this appeal, and with this we are inclined to agree. Her Ninth Counter Point presents the contention that inasmuch as Jones knew at the time the contract was executed that Mrs. English could not perform the contract, he is not entitled to partial specific performance. The Tenth Counter Point presents the contention that inasmuch as the contract required that the seller furnish the purchaser 'a policy of title insurance to be issued by the Guaranty Title and Trust Company of Corpus Christi, Texas, in the usual and Customary form,' which policy the Title Company will not issue in the usual and customary form, and Jones having refused to waive such provision, he is not entitled to partial specific performance.

The evidence shows and the jury found that both Jones and Mrs. English knew that her children owned an undivided interest in the property and that Mrs. English could not convey the whole of the title thereto without the joinder of her children. The evidence further shows that originally the children, all of whom were of age, were agreeable to joining their mother in this conveyance. The reason they did not go through with the matter was that Mrs. English insisted that her son William, whose interest she had previously purchased, should have a child's share of the consideration to be paid by Jones. It was this dispute which finally caused the other children to decide not to join their mother in the execution of the deed to Jones, a situation for which Jones was not in any way responsible.

Mrs. English contends that this contract was nothing more than an option without consideration because it was impossible for her to perform it in full, and therefore Jones could either insist on partial specific performance or not, as he saw fit, while she could not legally insist upon partial specific performance. We cannot agree that the contract was only an option. If her children had joined her in the execution of the deed, as no doubt they originally intended to do, Jones would have had no option but to accept the property and pay the money called for in the contract. By its terms Mrs. English agreed to convey the property and Jones agreed to purchase and pay the consideration stated. Jones had no option in the event he was tendered a proper deed and Mrs. English complied with her part of the obligations stated in the contract.

If the inability of the vendor to convey full title to the property would render the contract nothing more than an option, then partial specific performance could never exist, as it is only when the vendor has contracted to do something that he cannot do that a partial specific performance is sought by the purchaser.

Mrs. English next contends that there was no mutuality because she was bound and Jones was not. We do not agree. As above stated, if her children had joined in the deed Jones would have been bound and could have been compelled to have performed his part of the contract. The mere fact that Jones knew that the children would have to join in the execution of the deed did not change the situation. A very enlightening discussion along this line is found in Vanzandt v. Heilman, 54 N.M. 97, 214 P.2d 864, 870, 22 A.L.R.2d 497. In that opinion the court said:

'From the cases and comments referred to and quoted, we have come to the conclusion that the mere lack of mutuality of remedy in favor of the defendant is not ground for refusing equitable relief. As stated by Judge Cardozo in Epstein v. Gluckin, supra, (233 N.Y. 490, 135 N.E. 861), 'What equity exacts to-day as a condition of relief is the assurance that the decree, if rendered, will operate without injustice or oppression either to the plaintiff or defendant'; or, as stated by Judge Harlan Stone in his article quoted from 16 Columbia Law Review, 'There is want of mutuality of remedy, when and only when the court is unable for any reason to insure the defendant's receiving that which he is entitled to receive in exchange for the performance of his own promise;' provided the transaction is free from fraud, duress, unfairness or other inequities.'

Here the court is in a position to give Mrs. English exactly what she would have received if her children had joined her in a conveyance of the property to Jones, which was 5/8 of the consideration to be paid in cash.

There is no merit to the contention that to enforce specific performance would be to make a new contract. Mrs. English made a contract. If her children had joined in a deed, her interest in the contract to sell was 5/8. It remains a 5/8 interest. The specific performance against her is on her own contract and her interest is exactly the same whether all or none of her children join in a deed. This is not the making of a new contract, it is the enforcement of Mrs. English's contract.

There seem to be some states that hold that the mere knowledge of the purchaser of the fact that the vendor does not own the whole of the title to the property at the time the contract is signed will prevent him from seeking partial specific performance. There can be no reason for such a rule, unless there is something in the nature of bad faith on the part of the purchaser.

Here Jones entered into the contract to purchase the property from Mrs. English, who was in possession of the property and had been exercising dominion over it since the death of her husband. She was apparently the one from whom a person would seek to purchase the property. ¹ Jones had a right to believe that if Mrs. English was willing to enter into a solemn written contract to convey the whole of the property to him that she knew what she was doing and that she had a satisfactory arrangement with her adult children to join her in execution of the deed that would follow. ² Under such circumstances, where Jones is willing to accept such title and Mrs. English is able to convey, with a proportionate reduction in consideration, there is no reason why he should not have such partial specific performance; it would not be unjust or oppressive.

Regardless of what the law may be in other states, the law in this State requires that under the circumstances here existing Jones is entitled to partial specific performance. Ward v. Walker, Tex.Civ.App. 159 S.W. 320; Hays v. Marble, Tex.Civ.App., 213 S.W.2d 329; Dittoe v. Jones, Tex.Civ.App., 220 S.W.2d 315.

We conclude that the contract was not an optional one, that it did not lack mutuality, that it would not be unjust or oppressive to grant Jones partial specific performance, and that same should not be denied simply because both Jones and Mrs. English knew, or should have known, at the...