Kollaer v. Puckett

• Decision Date: 04 May 1921
• Docket Number: (No. 1812.)
• Citation: 232 S.W. 914
• Parties: KOLLAER v. PUCKETT et al.
• Court: Texas Court of Appeals

232 S.W. 914

KOLLAER v. PUCKETT et al.

(No. 1812.)

Court of Civil Appeals of Texas. Amarillo.

May 4, 1921.

Rehearing Denied June 1, 1921.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Action by Florence A. Puckett and husband against John W. Kollaer and the Amarillo National Bank. From a judgment for plaintiffs, defendant Kollaer appeals. Affirmed.

Veale & Lumpkin, of Amarillo, for appellant.

C. E. Gustavus, of Amarillo, for appellees.

HALL, J.

Appellee Florence A. Puckett, joined by her husband, John W. Puckett, filed this suit against appellant and the Amarillo National Bank to recover as liquidated damages the sum of $2,000, by reason of a breach of a contract of sale of certain real estate, entered into between Kollaer and Mrs Puckett. The bank was made a party by reason of being a stakeholder. Among other stipulations the contract contained the following:

"Said second party [appellant], for and in consideration of the above, hereby agrees to accept said first party's conveyance to said property, by not later than five days after said abstract is furnished, in accordance herewith, and to pay the above consideration therefor at the Amarillo National Bank of Amarillo, Texas, or, failing to do so, to forfeit to the first party the sum of $2,000, this day deposited with the Amarillo National Bank to guarantee that he (second party) will fulfill all conditions of this agreement that are incumbent upon him, and in case of such forfeiture first party shall take and receive the said forfeit money as full liquidated damages accruing to him by reason of such failure, and in that event this contract shall thereafter be canceled and held for naught to all parties hereto."

The case was tried in the court below upon appellee's original petition, which alleged in substance that Florence A. Puckett owned certain lots described therein on Fifth street in Amarillo; that, desiring to sell said property, she made and entered into a contract with appellant for the sale and conveyance to him of said lots for the total consideration of $25,000, to be paid $8,000 in cash and the balance in four equal annual payments, with interest at the rate of 8 per cent. per annum; that by the terms of the contract Mrs. Puckett was to furnish an abstract of title within 15 days, appellant should have 5 days after the delivery of the abstract to him to examine the same and in the event the title was not merchantable, and Mrs. Puckett should have 5 days in which to perfect the title; that appellent was to accept a conveyance in 5 days after abstract was so furnished, and to pay the consideration therefor, or, failing to do so, he should forfeit to Mrs. Puckett the sum of $2,000, which was deposited in the Amarillo National Bank, to guarantee the fulfillment of all the conditions of the contract, and that said sum of $2,000 should be accepted by Mrs. Puckett as full liquidated damages accruing by reason of appellant's failure to perfom; that the contract erroneously described the lots as running 150 feet on Fifth street, instead of 140 feet, which was caused through an error of the draftsman; that appellant had seen said property, and understood that there was an alley through the block, and that the lots only extended 140 feet, instead of 150 feet, on Harrison street. Appellees further allege compliance and tender of performance on their part, and the refusal of appellant to accept the abstract, and his failure to perform the obligations imposed upon him by the contract; that the bank had refused to pay to them the $2,000 held by it. A copy of the contract was made an exhibit to the petition.

In its original and supplemental answers the bank alleged, in substance: That the appellant drew a check upon it in the sum of $2,000, payable to escrow account, with the following notation upon it: "To Florence A. Puckett, earnest money on lots 11 to 16, inclusive, block 50, G. & S. addition, Amarillo." That on March 29th the contract of sale and check were deposited with it, and soon after it was discovered that appellant did not have sufficient funds to pay the check, whereupon appellees' agent was notified of the insufficiency of funds, and thereafter appellant requested that the payment of the check be stopped. That it handled the item without consideration, merely as a stakeholder, and had no interest whatever in the transaction. By his answer the appellant demurred generally to the petition, which also contained several special exceptions; the first being that the petition was insufficient because it appeared that there is a misjoinder of proper and necessary parties, in that from the exhibits attached thereto J. L. Summers, a real estate broker, was shown to be interested in the contract sued upon. Appellant answered by general denial and specially pleaded as follows:

"(a) That if he breached said contract, which is not admitted, but denied, then appellees should not recover, because they have suffered no damages, in that within a short time after the contract was entered into, and before the expiration of the time for the consummation of the same, appellees sold the lots to W. E. Herring for the sum of $25,000. (b) That at the time appellant executed the contract he understood that the lots had a frontage of 150 feet on Fifth street, and when he ascertained that they had only 140 feet frontage on said street he refused to comply with the terms thereof, and had therefore not breached the contract. (c) That the said $2,000 was placed in the bank as earnest money to secure the performance of the contract, and it was so understood and agreed at the time of its execution, as shown by the check, and that the sum was a penalty, and not liquidated damages; that plaintiff's damages were certain and easily ascertained, and by reason thereof the sum claimed as liquidated damages was and should be held to be a penalty; that it was greatly in excess of any damages sustained or contemplated by appellees, and was therefore a penalty, and not liquidated damages; that the contract was written by appellees' agent, and that said agent, as well as appellant, understood that said $2,000 was placed in the bank as earnest money, and was not understood or agreed upon as liquidated damages, as shown by the notation written on the check; that if the money and contract were placed in the bank as representing liquidated damages, it was the result of mutual mistake of appellant and said agent, and that appellees so understood it; that said check was exhibited to her prior to the time she executed the contract, and she was thereby estopped. (d) That appellees have not suffered any actual damages, and by reason thereof are not entitled to recover said sum of $2,000. (e) That the contract sued upon is not enforceable, because at the time it was executed Florence A Puckett was a married woman; that it pertained to the sale and conveyance of her separate lands, and her husband did not join her in the contract."

Replying to the answer of appellant, appellees excepted both generally and specially, denied the allegations therein contained generally, and specially alleged that the property mentioned in said contract was the separate property of Florence A. Puckett, and that she was authorized by law to manage, control, and contract with reference thereto, without being joined by her husband; that by entering into the same appellant is estopped to deny the validity of the contract, and that the husband of Mrs. Puckett was willing and ready to...