Langley v. Norris, 2315.

• Citation: 167 S.W.2d 603
• Decision Date: 27 November 1942
• Docket Number: No. 2315.,2315.
• Parties: LANGLEY v. NORRIS.
• Court: Court of Appeals of Texas

167 S.W.2d 603

LANGLEY v. NORRIS.

No. 2315.

Court of Civil Appeals of Texas. Eastland.

November 27, 1942.

Rehearing Denied January 8, 1943.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Howard County; Cecil C. Collings, Judge.

Suit in trespass to try title by W. A. Langley against John Norris and others, wherein defendant named filed a cross-action. Judgment for defendant named, and plaintiff appeals.

Affirmed.

Sullivan & Sullivan, of Big Spring, for appellant.

Culbertson, Morgan, Christopher & Bailey, of Fort Worth, Thomas & Thomas, of Big Spring, Justice, Moore & Justice, of Athens, and Joe W. Burrell, of Big Spring, for appellee.

LESLIE, Chief Justice.

W. A. Langley instituted this suit in trespass to try title against John Norris, the defendant, who answered not guilty and filed a cross action impleading L. S. Mitchell and wife, Gladys Mitchell, Frank A. Baggett and his wife, Ellen Baggett, who had conveyed the land in question to Langley on April 6, 1940. Norris alleged that prior to that conveyance he had contracted in writing on September 16, 1939, to purchase the land from cross-defendants, who had mutually obligated themselves to convey the same to him. Norris alleged he was at all times ready, able and willing to perform his contract with Mitchells and Baggetts, and that plaintiff before he took said conveyance April 6th had notice of his (Norris') contract (of September 16th) and his claims thereunder. He sought specific performance of his contract against Langley, as well as cross defendants, the common grantors.

Trial was before court and jury, and on answers of latter to special issues, judgment was rendered for Norris, cancelling Langley's deed from Mitchells et al. and for specific performance of Norris' contract. Mitchells and Baggetts do not appeal. Appellant Langley presents 23 points or assignments of error. Several of them may be grouped and considered together, since each for a different reason attacks the same alleged vice or ruling.

The first point asserts the trial court erred in overruling appellant's motion for instructed verdict for five different reasons, namely, because the evidence "clearly showed":

(A) Legal title to the land in controversy had vested in Plaintiff Langley under such circumstances making it superior to any claim asserted by Norris.

(B) The contract between Norris and his co-defendants, Mitchells and Baggetts, lacked mutuality.

(C) That Norris at no time had equitable title to the land.

(D) That defendant Norris was never ready, able and willing to perform.

(E) That defendant Norris never at any time made to Mitchells and Baggetts a legal tender of the purchase price.

We do not think the testimony conclusively establishes any of these contentions, but to determine these and other questions raised, it becomes necessary to state in substance the facts of this litigation:

September 16, 1939, Ellen Baggett, Frank A. Baggett, Gladys Mitchell and L. S. Mitchell entered into a written contract with J. E. Norris, by virtue of which they agreed to convey Norris the land involved. The contract contained several provisions, and those pertinent to questions raised will be referred to under appropriate propositions.

The contract stipulated it was to become "null and void" on and after November 2, 1939, if not complied with. The appellant asserted time to be of the essence of the contract. Norris denied this and alleged that, if it were such, Mitchells and Baggetts waived such time limitation, if any, and agreed to extended time of performance of the original contract, and that they were estopped by their conduct to insist on such contention. He further alleged that Langley, before receiving his deed, knew of such agreements, as well as the facts of waiver and estoppel.

In response to the issues submitted, the jury found:

Issue 1. "That at the time W. A. Langley acquired his deed, John Norris was still claiming that he had the right to purchase the land under his contract."

Issue 2. "That at the time W. A. Langley acquired his deed, he knew that John Norris was still claiming that he had the right to purchase the land under his contract. * * *."

Issue 3. That "the parties did not intend that everything necessary to be done should be completed and the sale closed by November 2, 1939."

Issue 4. "That L. S. Mitchell was authorized to act for his wife and for Frank A. Baggett and wife, Ellen Baggett, when he wrote Norris the letter November 15, 1939, giving him a reasonable time in which to complete the contract."

Issue 5. "That by their course of dealing with Norris, the Defendants, Gladys Mitchell and Frank A. Baggett and wife lead him to believe that L. S. Mitchell had authority from them to give him a reasonable time in which to complete the contract of sale."

Issue 6. "That after Norris received the letter from L. S. Mitchell November 15, 1939, giving him a reasonable time in which to complete the contract, he made valuable improvements upon the land."

Issue 7. "That Norris relied upon the letter of November 15, 1939, giving him a reasonable time in which to complete the contract when he put improvements upon the place * * *."

Issue 8. "That the Defendants, L. S. Mitchell and Gladys Mitchell and Frank A. Baggett and Ellen Baggett treated the original contract between them and Norris as being in force and effect after November 2, 1939."

Issue 9. "That the parties after November 2, 1939, intended that the time limit as expressed in the original contract of sale * * * should no longer be in force and effect."

Issue 10. "That by their course of dealing after November 2, 1939, the Defendants, L. S. Mitchell, Gladys Mitchell, Frank A. Baggett, and Ellen Baggett, lead Norris to believe that they did not intend to enforce the time limit in the original contract between them * * *."

Issue 10-A. "That Norris offered within a reasonable time after November 2 1939, to pay the Mitchells and Baggetts for all the land in question under fence."

Issue 11. "That at the time Norris offered, within a reasonable time after November 2, 1939, to pay the Mitchells and Baggetts for all of the land in question under fence * * * the said Norris had made arrangements to pay for such land and was financially able to do so."

Issue 12. "That Norris' offer within a reasonable time after November 2, 1939, to pay the Mitchells and Baggetts for the number of acres of land to which they could give good title."

Issue 12-A. "That at the time Norris offered, within a reasonable time after November 2, 1939, to pay the Mitchells and Baggetts for the number of acres of land to which they could give good title * * had made arrangements to pay for such good (title) land and financially able to do so."

Issue 13. "That the Mitchells and Baggetts, before the date of the deed to Langley, refused to deed Norris the 548 acres at $15.00 per acre unless he would also accept the 71.8 acres, the title to which was in dispute."

Issue 14. "That W. A. Langley, the Plaintiff herein, had notice of any extension of time * * * for the performance of the contract dated September 16, 1939, by and between L. S. Mitchell et al. and John Norris."

Issue 15. That John Norris, the Defendant herein made no "representations to W. A. Langley, the Plaintiff herein, on or about the first day of April, 1940, that he, the said John Norris, was making no further claims under his contract to the land in question."

Issue 16. That John Norris "did not abandon his claim under the contract for the land in question on or before the 6th day of April, 1940."

These findings are supported by the testimony, some of which is as follows:

Lee S. Mitchell, an attorney and party to this litigation, and who represented his wife and the Baggetts in negotiating this deal, wrote Norris March 4, 1940, apparently extending time for the performance of the contract. In that letter he wrote in part: "This will confirm conversation had with you Saturday, March 2, 1940, at which time I agreed to allow until next Saturday, March 9, 1940, to post the full purchase price of our section 32 * * *. This will be authority for the First National Bank * * * to accept deposit of $9300.00 and hold subject only to valid subsisting lien and the delivery over of our duly executed deed of conveyance * * *."

November 3, 1939, Mitchell wrote Norris: "Your letter concerning abstract and extension of agreement to November 15th was forwarded to me here. It is OK for you to have the extension and I wish you success in your financing."

November 15, 1939, Mitchell again wrote Norris: "Please let me know how your loan negotiations are progressing. As I have told you before, we wish to allow you a reasonable time for exercising out your plan, but we still wish to sell the place just as soon as possible at the price asked. We have a cash offer and I think it will meet the price offered. After all, our price was on a quick cash basis. Le me hear from you."

As late as January 31, 1940, Mitchell wrote Norris:

"With due consideration given because of the weather, it seems that Mr. Baker (a surveyor) could have done the work in in the two weeks since I was there.

"You have spent time and money working up your end of the deal, and I am sure you want the place, but unless I hear by Monday that something has been done on the survey and that the deal can be closed by February 15th, I must consider that the deal is off, so please advise me immediately."

On April 1, 1940, Ira L. Thurman, cashier of the bank at Big Spring, wrote L. S. Mitchell in behalf of Norris, stating: "Mr. J. E. Norris, against whom you hold a contract on certain real estate, has arranged to pay you off in full as soon as you are able to comply with the terms of the contract. You may send your papers here for collection and they will be remitted for just as soon as the title has been passed on and approved."

The letter referring to "Mr. Baker" was in response to one written by...