A. L. Carter Lumber Co. v. Saide
| Decision Date | 10 February 1943 |
| Docket Number | No. 8014.,8014. |
| Citation | 168 S.W.2d 629 |
| Parties | A. L. CARTER LUMBER CO. v. SAIDE. |
| Court | Texas Supreme Court |
Lipscomb & Lipscomb, of Beaumont, for plaintiff in error.
J. R. Beck, of Beaumont, for defendant in error.
The plaintiff recovered judgment for actual and exemplary damages for breach of contract to sell land. The judgment was affirmed by the Court of Civil Appeals (opinion not reported).
According to the finding of the jury, supported by certain undisputed facts, the A. L. Carter Lumber Company in 1936 contracted to sell Joseph P. Saide, Sr., the husband of the plaintiff, a house and lot, the same to be paid for in monthly installments of $25.70, with the right on the part of the seller to declare a forfeiture for failure to meet the monthly payments. While the contract called for the payments to be made on the 7th of the month, they were, by common consent, paid and accepted on the 22nd of the month. Some time after the execution of the contract it was mutually agreed by the parties that the payments should be reduced to $10 a month, with the understanding that in July, 1940, the purchaser would resume payment of $25.70 per month. The purchaser failed to meet the June payment, but in July paid $10, which was accepted. In August two payments totalling $25.70 were made and accepted. On September 22nd the purchaser offered to pay $25.70, but seller refused to accept payment, and without any previous notice declared the contract forfeited. A few days thereafter purchaser offered to pay the balance due, but seller refused to accept same. The seller then brought a forcible entry and detainer suit, and after judgment therein in favor of the seller, the purchaser, upon notice from the sheriff, moved out of the property. The jury found that the seller waived the right to cancel or forfeit the contract for failure to make the past due payments, and that the forfeiture had been declared without previous notice to the purchaser.
Mrs. Saide had been abandoned by her husband at the time the suit was filed, and she was permitted by the court to prosecute the suit for the damages in her own name.
The conduct on the part of the seller in allowing the purchaser to fall behind in the payments without declaring a forfeiture, and in thereafter accepting subsequent payments, was sufficient to justify the jury in finding that the seller had waived its right to declare a forfeiture on account of the defaults that had occurred prior to September, 1940. The seller had the right under the contract to declare a forfeiture for failure to meet the...
To continue reading
Request your trial
-
International Printing Pressmen and Ass'Ts Un. v. Smith
...for $10,000 exemplary damages, which are not recoverable for simple breach of contract however malicious the breach. Carter Lbr. Co. v. Saide, 140 Tex. 523, 168 S.W. 2d 629. I think the trial court correctly disposed of this case because respondent's cause of action is in tort and barred by......
-
Boelens v. Redman Homes, Inc.
... ... Page 1070 ... and with malice." A.L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629, 631 (1943). "Texas law is clear that exemplary ... ...
-
McDonough v. Zamora
...for breach of ordinary commercial contracts, though the breach is brought about capriciously and with malice. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629; Hooks v. Fitzenrieter, 76 Tex. 277, 13 S.W. 230; Houston & T. C. Ry. Co. v. Shirley, 54 Tex. 125; Phillips v. Wick, T......
-
Garrett v. American Family Mut. Ins. Co.
...to a tort, the same operative facts may give rise to both. Briggs v. Rodriguez, supra, 236 S.W.2d l.c. 515; A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629, 631 (1943). We have concluded on the persuasive analogy of these decisions that the rationale developed by Texas courts......