Manley v. Holt

• Decision Date: 30 March 1942
• Docket Number: No. 5416.,5416.
• Citation: 161 S.W.2d 857
• Parties: MANLEY et ux. v. HOLT.
• Court: Texas Court of Appeals

161 S.W.2d 857

MANLEY et ux. v. HOLT.

No. 5416.

Court of Civil Appeals of Texas. Amarillo.

March 30, 1942.

Rehearing Denied May 4, 1942.

Appeal from District Court, Gray County; W. R. Ewing, Judge.

Suit by D. E. Holt against T. K. Manley and his wife for specific performance of a land contract. From a judgment for plaintiff, defendants appeal.

Affirmed

Curtis Douglass and Clifford Braly, both of Pampa, and Clayton Heare, of Shamrock, for appellants.

Sanders & Scott, of Amarillo (A. P. Smith and E. T. Scott, both of Amarillo, of counsel), for appellee.

STOKES, Justice.

This is the second appeal in this case, the opinion in the first appeal being reported in 146 S.W.2d 773. The record shows that on the 12th of January, 1938, appellee, D. E. Holt, and appellants, T. K. Manley and wife, Edna E. Manley, entered into an executory contract for the sale by appellee to appellants of three tracts of land in Dallam County. One tract of 640 acres and another of 850 acres are located west of Dalhart, and the third tract of 320 acres is located some twenty or more miles northwest of these two tracts. Appellants agreed in the contract to pay appellee $12.50 per acre for the 1,810 acres of land, making a total consideration of $22,625, of which amount $12,512.20 was evidenced by the assumption of three loans, evidenced by three separate notes secured by three deeds of trust, one on each of the tracts and all held by the Federal Land Bank of Houston. The balance of the consideration, amounting to $10,112.80, was to be paid in ten equal annual instalments, bearing interest at the rate of five per cent per annum, both principal and interest payable annually. The contract contained a provision that failure of appellants to pay any instalment of the principal or interest when due would mature the entire indebtedness at the option of appellee. It was further provided therein that when five of the instalments of principal and interest had been paid, appellee would execute a deed conveying the land to appellants. The two tracts west of Dalhart were rented to tenants at the time and the contract provided that appellants should receive the rents thereon for the year 1938, and that they should have immediate possession of the 320 acre tract. It was provided further that they should drill, complete and equip a well on the 320 acres suitable to furnish water for irrigation purposes, same to be completed by June 1, 1938. The Federal Land Bank loans were payable in semi-annual instalments, aggregating $441.02, on June 1st and December 1st of each year, and it was provided in the sales contract that the first instalment assumed by appellants was the one falling due December 1, 1938, the effect of which was to place upon appellee the burden of discharging the instalment falling due June 1st of that year, and the record shows he paid it when it matured.

The record does not show when the suit was filed, but on June 6, 1941, appellee filed his first amended original petition in which he set up the contract of sale and alleged that appellants had failed to drill the well on the 320 acre tract, and had failed to pay the first annual instalment of $1,011.28, together with the interest due thereon, by virtue of which he had declared the entire series due and payable. He alleged that he had performed all of his obligations under the contract up to the date of filing the pleading, tendered a full and complete performance, and alleged that he was ready, able and willing to perform all of the obligations placed upon him by its terms. He prayed for judgment against appellants for $11,011.28 and interest, all of which he designated as damages accruing to him on account of the appellants' failure to comply with the terms of the contract and pay the amount they had agreed to pay as the purchase price for the land.

Appellants answered by setting up fraudulent representations made to them by A. T. Parton, the agent and representative of appellee, who negotiated the sale and exhibited the land to appellant, T. K. Manley, to the effect that the land was "shallow water land," that is, that water at a depth ranging from 25 to 100 feet could be produced in sufficient quantities to irrigate the land; that such representations were untrue and were made with the fraudulent purpose and intention of inducing them to enter into the contract; that they relied thereon and would not have entered into the contract had such representations not been made. Further allegations were to the effect that appellants were desirous of procuring land that could be irrigated and in which there was an ample supply of water available for irrigation purposes, and that they were interested in purchasing the land only because they believed it to be such.

By a supplemental petition appellee denied the allegations of fraud and alleged that before the contract of sale was consummated appellant, T. K. Manley, made a rigid inspection, examination and investigation of the land and knew the kind and character thereof, as well as all of the true facts with reference to the availability of water for irrigation purposes; that if he was not in possession of full information concerning the same, the knowledge gained by him from such investigation as he did make was sufficient to place him upon inquiry concerning the amount and availability of water for irrigation purposes.

The record shows that appellants failed to pay the instalments falling due December 1, 1938, on the Federal Land Bank's indebtedness, and the land was sold in August and September, 1939, under the powers of sale in its deeds of trust. The Federal Land Bank became the purchaser at the sales and the 320 acre tract was afterwards sold by it to other parties. It seems that neither of the parties knew of the foreclosures until a short time before the case was tried the last time.

The case was submitted to a jury upon special issues in which they were requested to find whether or not the representations concerning the amount and availability of water for irrigation purposes, as alleged by appellants, were made to T. K. Manley by the agent of appellee; whether or not such representations were relied upon by appellants and were material inducements to them to execute the contract; whether or not such representations were false; whether or not T. K. Manley made an independent investigation concerning the water and its availability for irrigation purposes; and whether or not the facts concerning the water were equally ascertainable by appellants as they were by the agent Parton. The jury failed to answer any of the special issues except Special Issue No. 5 in which they found that appellant, T. K. Manley, did not make an independent investigation as to the depth of the water before the contract of sale was executed. Before the case was submitted to the jury, both appellants and appellee presented motions for peremptory instructions in their favor, both of which were overruled by the court, and after the verdict was rendered, appellee made a motion for a judgment non obstante veredicto. This motion was granted by the court and judgment entered that appellee recover of appellant, T. K. Manley, the sum of $11,629.72 with interest thereon and costs of suit.

Appellants presented and urged a motion for a new trial which was overruled by the court, and they have perfected an appeal to this Court, assigning errors of the court below, first, in rendering a money judgment against appellants because appellee's suit was one for specific performance, and, secondly, error of the court in rendering judgment in favor of appellee after the jury had been unable to agree upon material questions of fact submitted to them by the special issues.

In considering the case upon the first appeal, we held that the suit was one for specific performance. There was no contention between the parties at that time that the pleadings were not sufficient to support a judgment for damages. The law is well settled that, in a proper case, damages for breach of a contract of sale may be recovered in the alternative when it is shown that specific performance is not possible....