Lieber v. Nicholson

• Decision Date: 20 November 1918
• Docket Number: (No. 2541.)
• Citation: Lieber v. Nicholson, 206 S.W. 512 (Tex. 1918)
• Parties: LIEBER v. NICHOLSON et al.
• Court: Texas Supreme Court

206 S.W. 512

LIEBER v.NICHOLSON et al.

(No. 2541.)

Commission of Appeals of Texas, Section A.

November 20, 1918.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by J. H. Lieber against B. F. Nicholson and others.There was judgment for plaintiff for a specified sum and for defendants for a specified sum, and defendants appealed to the Court of Civil Appeals(153 S. W. 641), which reversed and rendered in part and affirmed in part, and plaintiff brings error.Judgment of Court of Civil Appeals, in so far as it reverses the judgment of the district court allowing recovery by plaintiff, reversed, and, in all other respects, affirmed.

Swearingen & Tayloe, of San Antonio, for plaintiff in error.

John M. Rowland, of Mission, and R. P. Ingrum, of San Antonio, for defendants in error.

SONFIELD, P. J.

Suit by plaintiff in error to recover from defendants in error advance payments of purchase money under a contract of sale of certain real estate, an amount expended under a supplemental contract, and certain other sums of money claimed to have become due plaintiff in error to defendants in error.The contract of sale was dated March 1, 1910.The portion of the contract material herein reads as follows:

"Grantors are to furnish abstract of title brought down to date as soon as possible, and grantee is to have thirty days from date of delivery for examination of said abstract.If any defects in title are found, same are to be pointed out to grantors by grantee or his attorney, and grantors are to have a reasonable time to cure said defects.If this cannot be done and good title furnished, the above-mentioned $500.00 is to be returned to grantee and the said payment of $250.00 to be made March 20th; if already paid, is to be returned and this contract be of no further force or effect.But if good title is furnished, and grantee fails or refuses to go forward with closing the deal as in all conditions fully set forth, the $500.00 earnest money this day paid and the $250.00 payment to be made March 20th, 1910, is to be forfeited as and for liquidated damages."

The material part of the supplemental contract dated April 1, 1910, provides as follows:

"It is, however, distinctly understood and agreed that, in order to place the premises above described in a condition acceptable to the said lodge, it has become necessary for the said James H. Lieber to enter into a contract for the erection of certain improvements at an agreed expense of $620.00, with the contractor, C. T. Fincham, and it is understood that should, upon examination of the abstract of title, it be found that the title to said property failed, or was not such as provided for in said contract of purchase, and on such account said purchase not be consummated, then, in such event, the said Nicholson, Sames, and Moore, agree to pay said expense of $620.00; but should the said James H. Lieber make failure or default in complying with the terms and conditions of said purchase contract, and thereby surrender and forfeit the earnest money of $750.00 on said contract, it is further distinctly understood and agreed that the said James H. Lieber shall be liable unto the said Nicholson, Sames, and Moore for an additional $320.00 as liquidated damages by reason of such default."

The cause was tried by the court without a jury, and judgment was rendered for plaintiff in error for the amounts paid under the contract of sale, the amount expended under the supplemental contract, and the sum of $195 for certain plumbing and electrical work on a building constructed on the land, denying recovery of other amounts claimed and the foreclosure of a mechanical lien.The court further rendered judgment against plaintiff in error in the sum of $145 for loss of rent by defendants in error, because of the delay of plaintiff in rejecting the title.

From the judgment against plaintiff in error there was no appeal.The Court of Civil Appeals reversed and rendered the judgment of the district court, in so far as plaintiff in error recovered against defendants in error, and affirmed the judgment in favor of defendants in error against plaintiff in error.153 S. W. 641.

Both the district court and the Court of Civil Appeals hold that plaintiff in error, under the contract, was authorized to insist that he be furnished a good record title and to reject a title good only by limitation.

It is conceded that the record title of defendants in error was defective.Has plaintiff in error, by any default on his part or breach of the contract of sale, debarred himself from the right to recover the advance payments made under said contract?

The Court of Civil Appeals held that, under the contract, it was the duty of plaintiff in error to examine the abstract within 30 days after its delivery and at the end of that time to point out the defects, if any, giving defendants in error a reasonable time for correction; that the limitation upon the time for the pointing out of the defects was material.This construction is not complained of by any proper assignment of error.Indeed, plaintiff in error, in effect, so pleaded the contract, alleged compliance therewith; and upon this, and the failure of defendants in error to correct the defects and tender a good record title, he predicates his right of recovery.

On the 9th day of April, 1910, being the thirty-first day after the delivery of the abstract, the attorneys of plaintiff in error delivered to him an opinion on the title; several defects were specified.Therein the attorneys said:

"This title does not go back to the sovereignty of the soil, but it has been held by your vendors and their vendors in such way as to give perfect title by limitation."

On the same day, plaintiff in error addressed a letter to one of defendants in error, quoting from his attorneys' opinion the various objections to the title, but omitting that portion of the opinion hereinabove quoted.

Defendants in error promptly corrected all the defects thus pointed out, to the satisfaction of the attorneys of plaintiff in error.

On May 26, 1910, the attorneys of plaintiff in error delivered to him a second opinion on the title, again directing attention to the fact that the title of defendants in error did not connect with the sovereignty of the soil, but that they had a perfect title by limitation.The opinion specified other defects not incorporated in their opinion of April 9th.This opinion was delivered to defendants in error, and plaintiff in error advised defendants in error that, by reason of the defects set out in this last opinion, he would not go further with the transaction, and immediately and positively declined to consummate the purchase, affording defendants in error no opportunity to remedy these defects.

The right of plaintiff in error to recover the advance payments must be determined by the contract.The contract of sale herein provides for such advance payments and the conditions upon which plaintiff in error would be entitled to a return of the same.The burden is upon him to show that he has fully complied...