Kelsey v. Blackman

• Decision Date: 10 February 1927
• Docket Number: (No. 480.)
• Parties: KELSEY et al. v. BLACKMAN.
• Court: Texas Court of Appeals

293 S.W. 199

KELSEY et al. v. BLACKMAN.

(No. 480.)

Court of Civil Appeals of Texas. Waco.

February 10, 1927.

Rehearing Denied March 30, 1927.

Appeal from District Court, Hill County; W. C. Wear, Special Judge.

Suit by J. B. Blackman against C. A. Kelsey and others, in which H. R. Faubion intervened. From the judgment, intervener appeals. Affirmed in part, reversed in part, and remanded.

Taylor, Muse & Taylor, of Wichita Falls, and Meador & Meador, of Dallas, for appellant.

Frazier & Averitte, of Hillsboro, for appellee.

GALLAGHER, C. J.

This suit was instituted by J. B. Blackman, appellee herein, against C. A. Kelsey and others, to cancel a bill of sale by appellee to said Kelsey conveying certain oil-drilling machinery. The defendants other than Kelsey were alleged to be in possession of said machinery, or a part thereof, or to be claiming some interest therein. The cancellation of said bill of sale was sought upon the alleged fraudulent conduct of Kelsey whereby he obtained possession of said machinery without paying or delivering anything of value therefor. Appellant H. R. Faubion intervened and claimed said machinery, or, in the alternative, damages in the sum of $5,000 against appellee Blackman. At or during the trial all the defendants, except Kelsey and Cooper, were dismissed, and said Kelsey agreed in open court that judgment should be rendered against him for the cancellation of said bill of sale and the recovery of the machinery therein described. At the conclusion of the trial the court instructed a verdict in favor of appellees against intervener, H. R. Faubion, and defendant O. R. Cooper for the title and possession of said machinery, and in favor of O. R. Cooper against intervener, Faubion, for $4,375. The court entered judgment against said Kelsey in accordance with the agreement aforesaid and against Faubion and Cooper in accordance with said verdict. Faubion alone appealed. Said Blackman is the sole appellee.

Opinion.

Appellant assigns as error the refusal of the court to admit in evidence a certain written contract offered by him. Appellant Faubion in his plea of intervention alleged that he was on or about the 5th day of August, 1924, the owner of the drilling machinery sued for; that on said date he entered into a written contract with L. C. Purnell for the sale by him and the purchase by Purnell of said machinery; and that said contract was assumed by appellee, Blackman. Said contract was set out in full in said plea. According to its terms appellant conveyed the property therein described to said Purnell in consideration of $5,000 and the assumption of $10,000 due by appellant to the First State Bank of Electra and secured by chattel mortgage on said machinery. Said contract acknowledged the receipt of $4,750 of the $5,000 consideration stipulated therein, and provided that the remaining $250 should be paid on or before the 11th day of August following. Said contract bound appellant, upon the payment of said additional sum of $250 and the further sum of $10,000 due the First State Bank of Electra as stipulated therein, to deliver all said machinery at Blum, Tex. Said contract recited that it was executed in duplicate, and provided that both copies should be deposited in escrow in a certain bank until the conditions thereof should be performed, when both copies were to be delivered to Purnell. Said contract further stipulated that failure on the part of Purnell, the grantee therein, to comply with any of the conditions expresed therein, forfeited the same, and that all sum or sums of money paid thereon should be held by appellant as liquidated damages. Appellant further alleged that he fully complied with said contract; that he delivered the machinery therein described to said Purnell; that the said Purnell turned all the same over to appellee Blackman; that appellee took possession of the same and agreed and obligated himself to become liable for the performance of the contract; that he performed the same in part by paying the said sum of $10,000 due by appellant to the First State Bank of Electra, but that he did not pay the $5,000 cash consideration mentioned and described in said contract; that, in lieu of such payment, appellant, with the said Purnell, entered into a written contract, which was to form a part of said former contract between them which had been assumed by appellee. The contract so alleged was set out in full in said plea. So far as material to the issues involved in the trial of this cause, it bound Purnell to deliver to appellant leases to two 80-acre tracts of land in close proximity to an oil well which Purnell contemplated drilling or having drilled at Blum, Tex., by the use of said machinery. Appellant further alleged that he performed all his obligations under both said contracts; that appellee and Purnell did drill said well; that they failed and refused on demand from him to deliver the leases to said two 80-acre tracts as provided in said second contract; that said leases, when said well was spudded in, were reasonably worth the sum of $5,000 and could have been sold at that time for said sum. Appellant also pleaded the forfeiture provision in said original contract hereinbefore set out; that appellee and Purnell had failed and refused to pay him the $5,000 specified in the original contract; that they had failed and refused to comply with the provision of the second contract for the delivery of the leases to said two tracts of land, and claimed that the title to said machinery reverted to him under the terms of said forfeiture clause in the original contract. He prayed for judgment for the title to said machinery, or in the alternative for damages in said sum of $5,000.

Appellee denied the allegations so made by appellant and alleged that he purchased the drilling machinery involved from appellant; that said original contract between appellant and Purnell was in fact intended as an option; that said Purnell paid $250 at the time said contract was executed and subsequently paid the $250 stipulated therein to be paid on August 11th; that Purnell was to secure a purchaser for such machinery who would assume and pay the $10,000 due the First State Bank of Electra, and any additional sum which Purnell might induce him to pay; that, if Purnell secured a purchaser who would pay the debt due to said bank, the $500 paid by him for such option should be returned to him; that appellee's purchase of said machinery was agreed upon in a conference between appellant, appellee, and Purnell; that appellee declined to pay more than the amount due by appellant to said bank; that appellant finally accepted his offer to pay said sum to said bank in full consideration for said machinery; and that by mutual agreement Purnell transferred said property to him on August 28, 1924. He further alleged that the remainder of said sum of $5,000 referred to in said contract was fictitious and inserted to increase the apparent value of said property; that the next day appellant refused to return to Purnell the $500 paid for said option as he had agreed to do, and that Purnell executed and delivered said second contract to induce appellant to pay him said sum of $500, and that the same was the sole consideration therefor; that appellee was in no way concerned in the matter of the return of said $500 and not a party to said contract; that he merely signed the same as a witness at the request of the parties thereto. Based on said plea, he denied any and all liability on account of said second contract or the breach thereof.

Appellee, being the plaintiff in the court below, testified first. He supported his plea in detail by his testimony. He introduced in evidence the original contract between appellant and Purnell, and also a bill of sale from Purnell conveying said property to him. Said bill of sale was indorsed on the original contract and recited a consideration of $10 in hand paid and other good and valuable considerations, the receipt of which was acknowledged. By the terms thereof Purnell warranted the title to said machinery against all liens or incumbrances, except the $10,000 owed the First State Bank of Electra. He testified that Faubion agreed to accept the payment of said indebtedness to said bank as the full and sole consideration for said machinery, and directed Purnell to convey it to him. He...