McDaniel v. Carruth, 1954

• Decision Date: 03 June 1982
• Docket Number: No. 1954,1954
• Parties: Paul E. McDANIEL and Triad Supply Co., Inc., Appellants, v. Cecil CARRUTH, Appellee. cv.
• Court: Texas Court of Appeals

Page 498

637 S.W.2d 498

Paul E. McDANIEL and Triad Supply Co., Inc., Appellants, v. Cecil CARRUTH, Appellee.

No. 1954cv.

Court of Appeals of Texas, Corpus Christi.

June 3, 1982.

Theas M. Fabio, Rudy M. Groom, Groom, Miglicco, Gibson, Bussell & Stewart, Attys. at Law, Houston, for appellants.

Curtis Bonner, Bonner & Bonner, Attys. at Law, Harlingen, for appellee.

Before NYE, C. J., and YOUNG and GONZALEZ, JJ.

OPINION

GONZALEZ, Judge.

This is an appeal from a take nothing judgment in a suit for specific performance of a contract to sell real estate and in the alternative for damages because of wrongful conversion of real estate. Paul McDaniel and Triad Supply Co., plaintiffs-appellants, sued Cecil Carruth, defendant-appellee, in a three count petition. Trial was to the court without a jury. After the appellants rested, upon motion of the appellee, judgment was rendered for appellants on count one and a take nothing judgment as to counts two and three. Appellants attempted to limit their appeal to the take nothing judgment on count two. No findings of fact or conclusions of law were requested or filed. We affirm.

Appellants allege that the trial court erred in:

(1) Granting defendant's motion for directed verdict by failing to adhere to the legal standards governing such motions;

(2) In granting defendant's motion for directed verdict because it was against the great weight and preponderance of the evidence to find that there was no delivery of a deed;

(3) Even if the trial court held that there was not delivery of a deed, the trial court erred in finding that the Statute of Frauds operated in this case because the delivery of a signed deed to a third party was sufficient memorandum to take the transaction out of the Statute of Frauds and the letter agreement contained a sufficient enough description so as to not violate the Statute of Frauds;

(4) Even if the trial court found no delivery of the deed, the court erred in finding that the action was barred by Statute of Limitations.

In count two, appellants alleged that on January 14, 1972, appellee executed and delivered to McDaniel a letter agreement wherein appellee agreed to sell One Thousand Six Hundred and Nine point Five (1,609.5) acres of land in Cameron County and two Thirty-Five (35) acre tracts in Hidalgo County for a purchase price of Two Hundred Sixty Thousand Dollars ($260,000.00); that all the money that was paid was paid in cash over a period of time and that he was ready, willing and able to pay the balance, if any; that appellee executed a Warranty Deed to said properties and delivered it for their benefit to a third party, Judge Fred Newland; that appellee either wrongfully took the deed from Newland or that it was still in the possession of Newland; that appellee failed to return the deed after wrongfully taking it from Newland, that this constituted conversion and trespass and that appellant was entitled to specific performance of the contract and in the alternative to damages of at least Two Million Three Hundred Thousand Dollars ($2,300,000.00) plus One Million Dollars ($1,000,000.00) punitive damages.

Appellee answered that there is no transaction between appellee and Triad Supply Co., Inc., which forms the basis of a cause of action against appellee and, therefore, Triad should be dismissed as party to the suit; that the purported transaction between McDaniel and Carruth had not been consummated because McDaniel had not fully performed his obligations; that the letter agreement made the basis of this suit did not furnish a legal description sufficient to locate the land in question so as to allow the court to enforce the terms of the agreement nor were there any further documents executed by and between the parties from which a description could be obtained; that in the approximately nine years since the execution of the letter agreement, appellants had not asserted any interest nor exercised any dominion or control over the land, nor paid any taxes, nor done anything that would show some indicia of ownership over the land. Appellee denied that he executed and delivered a deed to a third party for the benefit of appellants and alleged that McDaniel had wholly defaulted in the performance of the contract; that the cause of action occurred more than two years and four years prior to the time the suit was filed and, therefore, was barred by limitations or in the alternative that appellants delayed for such a period of time so that laches bars any recovery.

The letter agreement made the basis of this suit is as follows:

"Harlingen, Texas

January 14, 1972

Mr. Paul E. McDaniel

8030 Kirby Drive

Suite 205

Houston, Texas 77006

Dear Sir:

As per our conversation of recent date, I agree to deed to you the following properties: Sixteen Hundred acres plus, located approximately ten miles east of Rio Hondo, Texas, referred to as the Ranch and two farms located in Hidalgo County containing more or less thirty acres each, less road, drain ditch and canal right-of-way including 50% of all mineral rights.

Purchase price for the above properties to be $247,500.00 $260,000.00 (Two Hundred Forty Seven Thousand Five Hundred Dollars), with $30,000.00 payable on February 15, 1972, $30,000.00 payable on March 15, 1972, $15,000.00 payable on April 15, 1972 and $6,000.00 per month thereafter until paid in full. Said $6,000.00 per month to include interest at the rate of 6%.

The Deed will be delivered to you upon payment of the first $30,000.00.

Yours truly

(signed)

Cecil Carruth"

McDaniel testified that he had known Carruth since 1949. They became close friends and from 1949 to about 1976, had numerous business deals involving hundreds of thousands of dollars. These deals were in cash and when they were not, they were very loosely documented. McDaniel also testified that he was convicted and sent to the penitentiary for a conspiracy violation involving some stock.

As to the transaction at bar, there was a direct conflict in the testimony. McDaniel testified that he, and his former girlfriend and nephew at his direction, on three different ocassions paid the Seventy Five Thousand Dollars ($75,000.00) down payment called for in the letter agreement. ($30,000.00 due on February and March 15, 1972 and $15,000.00 due on April 15, 1972.) He claimed that they paid cash but that no receipts were given by Carruth and they did not request any. As to the One Hundred Eighty-Five Thousand ($185,000.00) balance of the purchase price McDaniel was unclear as to how much of this, if any, was paid. McDaniel testified that he paid some in cash and that a lot of it was paid as offsets and on other business deals with Carruth and trades for other property. McDaniel did not have an estimate as to the value of these offsets or trades but did testify that he had requested an accounting from Carruth (which he claimed Carruth refused to give him) and that he was ready, willing and able to pay the balance, if any.

Carruth and McDaniel had a falling out in about 1975-6 when Carruth told McDaniel that he was not going to sell the property made the basis of this lawsuit to him and instead was going to give the property to the Boy's Home. The record reflects the following testimony:

"Q (Mr. Bonner-Carruth's attorney) You didn't have the same sort of personal relationship you had had in the past; would that be a fair statement?

A (McDaniel) Yes.

Q Was it about this same time that you and Mr. Carruth had a conversation and Mr. Carruth told you that he was going to give the ranch to the Boy's Home?

A I don't know what time-I can't say what time we had that conversation. I can't pinpoint the date. I know he did. I don't know the date.

Q Was it during one of his trips to Houston that you had this conversation with him?

A Yes. With Mr. Carruth?

Q Yes, sir.

A Yes, sir, that was one of his trips.

Q Was that about the time you were negotiating this second set of instruments on the Houston house?

A I don't know if that would coincide or not. It could be.

Q It could be?

A Yes.

Q So that was '75 or '76. You filed this suit in '79.

A Then it wasn't then. It was about two and half years before the suit was filed is when I was talking to him and about the Boy's Home.

Q After you learned this-Mr. Carruth had told you he was not going to sell that ranch to you or that you had not bought it-did you go down and talk to Mr. Newland to get that deed that you say that you had paid for and were entitled to?

A I did not ask for the deed.

Q You didn't?

A From Mr. Newland, no.

Q Did you ask your attorney to go and talk to Mr. Newland and pick up that deed for you if you were entitled to receive it?

A No, I did not ask him to pick it up.

Q Have you at any time gone to Judge Newland and made demand for that deed?

A No.

Q You have not, even after the suit was filed?

A No. Q Not at any time. If you realized you had a problem and you were entitled to that deed, Mr. McDaniel can you tell me why you didn't go and pick it up?

A I did not see that it was necessary. He had held the deed to all the other properties all those years and I completely trusted Judge Newland.

Q Judge Newland-

A I never did ask for it back.

Q You didn't call Fred Newland or make any demand on him for that deed?

A I did not."

Judge Newland was dead at the time of the trial. Though many opportunities existed to take Newland's deposition prior to trial, appellants did not avail themselves of these opportunities. Appellee argues that the reason appellants did not take Newland's deposition was because appellants knew that the transaction had not been consummated.

Carruth was called as an adverse witness. He denied receiving the Seventy Five Thousand Dollars ($75,000.00) and denied the offsets or trades as consideration for the land in question. He further testified that during the time in question, he was holding "hot checks" from McDaniel of approximately Two Hundred Thousand Dollars ($200,000.00).

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