Liedeker v. Grossman

• Decision Date: 03 December 1947
• Docket Number: No. A-1348.,A-1348.
• Citation: 206 S.W.2d 232
• Parties: LIEDEKER et al. v. GROSSMAN et al.
• Court: Texas Supreme Court

206 S.W.2d 232

LIEDEKER et al. v. GROSSMAN et al.

No. A-1348.

Supreme Court of Texas.

December 3, 1947.

Rehearing Denied December 31, 1947.

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

Suit in equity by Simon Grossman and Edward Grossman against Morris Liedeker and the National Abstract & Title Company for specific performance of a contract to convey land. Judgement for defendants was reversed by Court of Civil Appeals, 202 S.W.2d 267, and defendants bring error.

Judgment of Court of Civil Appeals reversed and that of trial court affirmed.

Kleberg, Eckhardt, Mobley & Roberts and John A. Mobley, all of Corpus Christi, for petitioners.

Oscar Spitz and Frank J. Onzon, both of Corpus Christi, for respondents.

SHARP, Justice.

This is a suit in equity, brought by Simon Grossman and Edward Grossman, as vendees, against Morris Liedeker, as vendor, for specific performance of a contract to convey land. The National Abstract and Title Company, the escrow agent, was made a party defendant, and answered by way of a stakeholder's plea. Morris 5¢ to $1.00 Stores No. 2, Inc. was also made a party defendant because of an alleged leasehold estate in the land which it claimed. Trial was before the court without a jury, and judgment was rendered that plaintiffs take nothing by their suit, and that the escrow agent return the purchase money to plaintiffs and the deed to defendant Liedeker. The Court of Civil Appeals reversed the judgment of the trial court, and remanded the cause with instructions to enter judgment for Simon and Edward Grossman. 202 S.W.2d 267.

This suit involves the construction of a contract of sale, which is copied in full in the opinion of the Court of Civil Appeals. Paragraphs 9 and 10 of that contract read as follows:

"9. Possession of said property shall be given on closing subject to tenants.

"10. It is understood by all parties hereto that time is the essence of this contract and that this deal is to be closed through the National Abstract and Title Company on or before 20 days from this date."

The findings of fact and conclusions of law made by the trial court are very exhaustive, and they are summarized as follows:

Findings of Fact.

(1). That a contract was entered into by and between Morris Liedeker, as vendor, and Ed Grossman and Simon Grossman, as vendees, dated January 16, 1945, whereby Liedeker agreed to sell the west 95 feet of Lot 10, Block 34, Bluff Portion of the City of Corpus Christi, Texas, to the Grossmans for a net cash price of $6,000.00. That the contract provided, among other things, that possession of the property was to be given on closing subject to tenants; that time was the essence of the contract; that the deal was to be closed through the National Abstract and Title Company on or before February 5, 1945; and that the consideration was to be paid to vendor upon the execution and delivery of deed to vendees. That after making the contract, Liedeker later notified the Grossmans that he had forgotten that there was a written lease to the Morris 5¢ to $1.00 Stores No. 2, Inc., a private corporation, on a warehouse building on the back end of the lot to be conveyed, and he notified them that he would not go through with the trade unless they gave him an easement permitting the lessee corporation to have access to the leased premises. That thereafter the Grossmans executed a letter granting an easement to the Morris 5¢ to $1.00 Stores No. 2, Inc., which was acceptable to Liedeker.

(2). That on January 23, 1945, a representative of the National Abstract and Title Company called Simon Grossman over the long distance telephone (Grossman was then in Dallas, Texas), and inquired what Grossman intended to do about the lease; whereupon Grossman advised him to get Liedeker to sign the deed to the property, and upon his return to Corpus Christi he would work out the matter. That upon being informed of this, Liedeker executed the deed to the property and left it with the representative of the National Abstract and Title Company, with instructions that it was not to be delivered until the Grossmans recognized the lease to the portion of the property in question.

(3). That thereafter, on January 29, 1945, Simon Grossman went to the office of the National Abstract and Title Company and delivered to them his personal check in the sum of $5,400.00, he having previously left with them a $600.00 check as earnest money, and he demanded of the National Abstract and Title Company that they deliver to him the deed previously executed by Liedeker. That the National Abstract and Title Company refused to deliver the deed, for the reason that the vendees would not take the property and accept the deed thereto subject to the lease.

(4). That on February 5, 1945, after the time within which the trade between the parties was to be closed, negotiations were commenced between the parties to the contract to reach an agreement concerning the lease, and these negotiations continued until sometime in April, when Liedeker finally called the deal off. That the last negotiations with reference to the property were in May, when the representative of the National Abstract and Title Company called Liedeker and told him that the Grossmans had finally decided to take the deal "in accordance with your desires." That by this was meant Liedeker's desire as to the extent he was willing to change the written lease, and not as the lease existed on January 16, 1945. That at that time Liedeker advised vendees that he had called the deal off in April, and he did not care to go into the matter further. That this concluded the negotiations between the parties, and thereafter this suit was filed by the Grossmans.

(5). The trial court further found that the vendees had never at any time agreed to the acceptance of the deed subject to the lease of the Morris 5¢ to $1.00...