Middleton v. Moore

• Decision Date: 30 November 1927
• Docket Number: (No. 2916.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: Middleton v. Moore, 4 S.W.2d 988 (Tex. App. 1927)
• Parties: MIDDLETON v. MOORE.
• Court: Texas Court of Appeals

Page 988

4 S.W.2d 988

MIDDLETON v. MOORE.

(No. 2916.)^*

Court of Civil Appeals of Texas. Amarillo.

November 30, 1927.

Rehearing Denied January 18, 1928.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Suit by Louie F. Moore against J. P. Middleton. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

See, also, 289 S. W. 1045.

Bean & Klett, of Lubbock, for appellant.

Lockhart & Garrard, of Lubbock, for appellee.

HALL, C. J.

This suit was filed originally by the appellee, Moore, to enforce specific performance of a contract for the sale of certain lands, and, in the alternative, to recover $500 forfeit money deposited in the First National Bank, said bank being made a party.

Upon the first trial, the district court decreed specific performance of the contract. This judgment was reversed by this court, and the cause was remanded for trial upon the rights of the parties to the $500 in the bank. See 289 S. W. 1045.

After reversal, Moore amended his petition, eliminating his action for specific performance, and sought to recover the forfeit money which had been reduced to $450 by the court in awarding $50 to the bank's attorneys. By the amended petition, plaintiff sought to recover this $50.

He alleged, in substance, that on November 2, 1925, he entered into a contract with Middleton by the terms of which he was obligated to sell and convey to Middleton certain land described therein for a total consideration of $11,000, of which $3,750 was to be paid in cash upon delivery of the deed, and the execution by defendant of one note for $3,000, and the assumption of a debt against 20 acres of the land; that the $500 was placed in the First National Bank as forfeit money, but was to be applied as part of the cash payment if the deal was closed; that in the event of the failure on the part of defendant to close the deal according to the terms of the contract, on the 1st day of December, 1925, the bank was authorized to pay plaintiff said $500 as liquidated damages. Plaintiff alleged that he performed all the things required of him under the contract, but that Middleton had wholly failed and refused to perform, to plaintiff's damage in the sum of $500; that $50 of the $500 had been awarded to the bank's attorneys, and that Middleton, in justice and equity, was due said amount to plaintiff; that he had caused to be prepared an abstract of title to the land, and in accordance with the contract offered the same to Middleton for examination, but the latter had failed and refused to accept the abstract and have the title examined, and failed to perform said contract, by reason whereof he waived all exceptions and objections to the title, and had never given plaintiff an opportunity to correct the defects in the title, if any there were, shown by the abstract.

The defendant, Middleton, answered by general demurrer, special exception, and that plaintiff had pleaded no facts showing that defendant had waived the furnishing of an abstract showing merchantable title. The answer further admitted that he did enter into a contract on November 2, 1925, for the purchase of 20 acres of land in Lubbock county, and by verbal agreement the time of performance was extended to about January 1, 1926; that he would have consummated the transaction but for the fact that plaintiff failed and refused to carry out and perform the whole contract, as actually agreed upon; that part of the agreement was left out of the original written contract by fraud, accident, or mistake, to wit, that it was agreed that $3,000 of the purchase price of the land was to be secured by a lien for that amount on a tract of land in Kent county, which said indebtedness, however, was not to be a personal obligation of the defendant, but merely a lien against the land; that when the parties undertook to close the deal the plaintiff, Moore, refused to accept a deed of trust and note fixing a lien on the Kent county land, said note not carrying with it the personal liability of Middleton; that he would have closed the transaction, if the title had been found merchantable, except for the fact that plaintiff refused to comply with his agreement as to the personal liability of defendant on the note, but that plaintiff breached the contract and is therefore not entitled to the forfeit money.

It is further alleged that the contract for the purchase of the two 10-acre tracts of land provided that the $500 forfeit money placed in the bank be applied as a part of the cash payment, but in the event of Middleton's default in closing the deal, after sufficient title had been made, the bank was authorized to pay over the forfeit money as liquidated damages; that it was, under the contract, the duty of plaintiff to furnish, by December 1, 1925, or in all events by the time the deal was closed, an abstract to the 20 acres of land, showing plaintiff to be the owner thereof by merchantable title, subject only to the notes that were to be assumed. He alleged that plaintiff did not, by December 1st or any other time, tender or furnish an abstract to said premises which showed him to be the owner thereof by merchantable title, although that was a condition precedent to any obligation on defendant's part to permit the earnest money to be paid to plaintiff. He further alleged that the abstract which plaintiff Moore had to the 20 acres of land did not show a good and merchantable title, but was defective in that it failed to show the payment of taxes for the year 1925, and for the further reason that the validity of the title depended upon a judgment based upon citation by publication, which said judgment had not been rendered as much as two years.

The plaintiff filed a supplemental petition consisting of general demurrer and special exceptions, a general denial, and further alleged that immediately after entering into the contract he had his abstract brought down to date of November 27, 1925, and on said date he tendered the abstract to defendant for examination, but defendant asked for more time in which to close the transaction, and by mutual agreement the time was extended; that later on he again tendered the abstract to defendant, who refused to accept it or have it examined, giving as the sole and only reason for such refusal the fact that plaintiff would not accept defendant's note for $3,000 without his personal liability, said note to be secured only by a lien upon the Kent county land; that defendant refused to receive the abstracts or have them examined and never, at any time, pointed out any defects in the title or gave plaintiff any opportunity to have them corrected, and only objected to the title after the suit was filed; that by reason of the fact that Middleton refused to accept the abstracts or have them examined he had waived all defects and he denied that he ever, at any time, agreed to accept a note of $3,000 secured by a lien upon land only, and upon which Middleton would not be personally liable, and further alleged that if Middleton had offered any objections to the title, he would have cured them, in accordance with the contract.

The cause was submitted to a jury upon special issues, the findings being, in substance, as follows:

(1) It was not agreed and understood between the parties, at the time or prior to the making and executing of the written contract, that the note for $3,000 was to be secured by a lien upon the Kent county land only and without the personal liability of Middleton.

(2) It was not a fact that a stipulation that $3,000 was to be secured by lien on the Kent county land, and not by personal obligation of the defendant, was omitted or left out of said contract by mutual mistake.

(3) The plaintiff, Moore, did, on or prior to the day they attempted to close the deal, furnish or offer to defendant, Middleton, abstracts to the two tracts of land in Lubbock county for examination.

(4) That the defendant, Middleton, refused to receive said abstracts.

Based upon this verdict, the court rendered judgment in favor of plaintiff, Moore, for $500 and costs, with interest at the rate of 6 per cent. per annum from January 1, 1926, ordering the $450 in the registry of the court to be credited upon the judgment.

The effect of the jury's findings is that the writing constitutes the entire contract between the parties; that on or prior to the day they met for the purpose of closing the deal, Moore had tendered to Middleton abstracts of title, which the latter refused to accept and have examined. It is conceded that the date fixed for consummating the transaction was, by agreement, extended from December 1, 1925, to about January 1, 1926, and that on the last-named date Middleton refused to close, because Moore insisted that Middleton give a note for $3,000 upon which the latter would be personally liable, it being the contention of Middleton that such note should be secured only by a lien upon some Kent county land, and that he was not to be personally liable for the amount. The jury found against Middleton upon this issue.

The material stipulations in the contract of sale are as follows:

"Party of the first part agrees to furnish to party of the second part one complete abstract covering tracts Nos. 1 and 2 aforesaid, showing good and merchantable title in him, subject only to the amounts to be assumed by party of the second part. In the event title is not merchantable, it is agreed a reasonable time is to be allowed in which to perfect same.

"Second party places with this contract in the First National Bank of Lubbock, the sum of $500 as forfeit money, which shall be applied as part cash payment when deal is closed, and in the event of failure on the part of second party to close deal after sufficient title has been made on or before December 1, 1925, hereafter, said bank is hereby authorized to pay over to said party of the first part the said forfeit as liquidated...