Kelly v. Heimer
| Decision Date | 26 March 1958 |
| Docket Number | No. 13318,13318 |
| Parties | W. A. KELLY, Appellant, v. Herbert Franklin HEIMER et al., Appellees. |
| Court | Texas Court of Appeals |
Henry Lee Taylor, Roscoe Johnson, San Antonio, for appellant.
Foster, Lewis, Langley & Goode, Wurzbach & Comp, San Antonio, for appellees.
This suit was filed by appellant, W. A. Kelly, d/b/a Kelly Construction Company, against Herbert Franklin Heimer, Alma E. Heimer, Alida Emelia Kaderli and her husband, Ottomar Kaderli, hereinafter called the Heimers, Hill Country Estates, Inc., with G. E. Melliff as president, and other defendants who are not concerned with this appeal.
Appellant's suit was based upon a written contract between himself and Hill Country Estates by the terms of which appellant was to make certain improvements, such as grading and street paving, on a certain plated subdivision, containing 260.40 acres of land in Bexar County, Texas, known as 'Shady Oaks Subdivision,' and was to receive as compensation certain amounts therein specified.
After the trial without a jury, the court rendered judgment for appellant against Hill Country Estates, Inc., for the sum of $30,277.67, and attorney's fees in the sum of $7,569.42, with interest and costs, but denied any recovery against the Heimers and the other defendants. This appeal is only from the judgment in favor of the Heimers. The trial court filed findings of fact and conclusions of law.
Appellant's claim against the Heimers is based upon his contention that Hill Country Estates, Inc., and the Heimers were partners in the undertaking to subdivide and improve the tract of land in question, and that the Heimers are estopped by their conduct to deny the partnership.
The record shows that the Heimers, on and prior to May 23, 1953, were joint owners, among themselves with none others, of 253.79 acres of land, and that on said date and at all times thereafter their title to said tract of land, described by metes and bounds, was set forth in and upon the Deed Records of Bexar County, Texas.
The record further shows that on May 23, 1953, the said Heimers entered into a written option agreement with Gerald E. Melliff, covering the hereinabove mentioned 253.79 acres of land, which provided by its terms, among other things that are not material to the disposition of this cause, as follows:
'(a) That the said Gerald E. Melliff was given the exclusive right to purchase from the 'Heimers' the said 253.79 acres of land on the terms and within the time set forth in the said option agreement;
'(b) That the said Gerald E. Melliff at his own cost and expense agreed to prepare, or cause to be prepared, a plat of the said 253.79 acres of land for subdivision into lots with proper provision for easements or streets for ingress and egress to each of the said lots that would be designated and delineated on the said plat, that the said plat would be submitted to the 'Heimers' before it was filed for record for their approval, together with the building restrictions pertaining to the said lots and to the subdivision thereof;
'(c) That it was provided in the said option agreement that a schedule of the prices that the said Gerald E. Melliff would offer the said lots for sale to the public under the terms of the said option agreement would be prepared by the said Gerald E. Melliff so that the said 253.79 acres of land would net the 'Heimers' the cash price that the said Gerald E. Melliff had agreed to pay for the said 253.79 acres of land, and this schedule would be submitted to the 'Heimers' by the said Gerald E. Melliff for their approval;
'(d) That it was provided in the said option agreement that certain improvements would be made on and to the said 253.79 acres of land at the sole cost and expense of the said Gerald E. Melliff, and that the said Gerald E. Melliff would at his own cost and expense gravel or macadamize, according to the specifications of the County Engineer of Bexar County, Texas, all the streets shown and designated on the plat of the said 253.79 acres of land, and that this work would be completed in a reasonable time from the date of the said option agreement;
'(e) That it was provided in the said option agreement that the 'Heimers' would execute and deliver to each purchaser of the lots designated or delineated on the plat of the 253.79 acres of land that were procured by the said Gerald E. Melliff by virtue of and in accordance with the terms of his said option agreement earnest money contracts, whereby the 'Heimers' would contract to sell and convey to the said prospective purchasers any of the lots designated or delineated on the said plat of the said 253.79 acres of land in accordance with the terms and provisions of the said option agreement;
'(f) That it was provided in the said option agreement that, in the event the said Gerald E. Melliff made default in any payment of money to the 'Heimers' as provided in the said option agreement, or in case the said Gerald E. Melliff failed to perform any of the agreements contained in the said option agreement, the said option agreement, at the option of the 'Heimers,' would become null and void and of no force and effect, and that all rights of the said Gerald E. Melliff, or his assigns, would be cancelled and the 'Heimers' would thereby be released from all obligations on their part thereunder, and that any and all improvements made, or caused to have been made, under the terms and provisions of the said option agreement, by the said Gerald E. Melliff to or on the said 253.79 acres of land herein involved would become the property of the 'Heimers' free from any and all claims and liens as liquidated damages for the failure of the said Gerald E. Melliff to comply with the terms of the said option agreement;
'(g) That it was provided in the said option agreement that it was distinctly understood and agreed by the said 'Heimers' and the said Gerald E. Melliff that the said option agreement embraced the full and complete agreement of the said parties thereto and that no statement, remark, agreement or understanding, oral or written, not contained in the said option agreement would be recognized or enforced. And that nothing in the said option agreement should be deemed, or construed, to create an agreement of partnership, or of joint...
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Diversified Mortg. Investors v. Lloyd D. Blaylock General Contractor, Inc.
...an option on land, but that such lien is extinguished if the fee is not obtained by the optionee. Kelly v. Heimer, 312 S.W.2d 430 (Tex.Civ.App. San Antonio 1958, writ ref'd n. r. e.). It should be noted that there is also a line of Texas cases which holds that mere contemplation of acquisit......
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