Miers v. Clark, 14612

• Decision Date: 21 November 1952
• Docket Number: No. 14612,14612
• Citation: Miers v. Clark, 253 S.W.2d 941 (Tex. Ct. App. 1952)
• Parties: MIERS v. CLARK et ux.
• Court: Texas Civil Court of Appeals

Page 941

253 S.W.2d 941

MIERS v. CLARK et ux.

No. 14612.

Court of Civil Appeals of Texas, Dallas.

Nov. 21, 1952.

Rehearing Denied Dec. 12, 1952.

McKool, McDaniel & Bader, Dallas, for appellant.

Brundidge, Fountain, Elliott & Bateman, Dallas, for appellees.

YOUNG, Justice.

The suit of Clark and wife (appellees) was on a realty contract for specific performance, obtaining such relief in proceedings for summary judgment. Trial was to the court with timely appeal by vendor Miers.

On December 5, 1947 Miers and L. A. Strother (whose interest was later acquired by Miers) through written contract sold to George and Alma Clark a plot of land described as 10 ft. off east side of Lot 14 and all of Lot 15, Homeland Estates No. 2, and addition to the City of Dallas. Consideration was $495, $5 cash down and a like amount each month until fully paid; interest fixed at 8% and payable monthly on the unpaid balance of principal, i. e., along with each $5 installment. The contract required seller to execute deed on payment of one-half the purchase money, and contained the following provision, among others: 'Time is declared to be the essence of this contract and if said purchaser shall fail to make any payment, as herein agreed, principal or interest, such failure shall give the seller the option to declare the whole of aforesaid principal with all accrued interest due and payable immediately and in such event the purchaser agrees to pay all costs of collection, court costs if any, and expense incurred in obtaining possession including an attorney's fee of ten per cent (10%) of the amount then owing; or, the seller shall have the right, at his option, to declare this contract at an end and to cancel the same, and thereupon any and every right of the purchaser hereunder shall cease, and all sums of money paid hereunder by purchaser to the seller, and all improvements on said land may be retained by the seller as rent for the use of said land. Failure of seller to enforce his rights or options hereunder shall never be construed as a waiver thereof, but said options shall continue in full force and effect to long as any sum owing hereon is in default.'

These detailed facts appear as undisputed: That from December 5, 1947 to May 20, 1950 some $140 was paid on the principal sum; the $5 payments being fairly regular until October 1948, then at intervals in amounts from $5 to $25. During the first 13 months the collections were made by L. A. Strother on the ground; Miers then turning such matter over to W. E. Kline & Company, which firm receipted for the further payments. About January 1, 1951 appellant came to the office of Mr. Kline and made notation of 'Cancelled. Don't take any money' on the Clark record of payments. Later, in March, the Clarks called at said office to make another payment and were refused; being advised that the contract had theretofore been terminated by Miers. They (the purchasers) promptly thereafter offered tender of the entire balance due to appellant, which being declined, precipitated the instant suit. By affidavit, Mrs. Hamilton (Bookkeeper for W. E. Kline & Company) stated that each time the Clarks made a cash payment on the property she would call their attention to the arrears of payments and that unless the account was made current, their contract would be canceled. It is further not controverted that Kline & Company had no authority from Miers to cancel this contract, nor did the latter notify the Clarks prior to the purported cancellation entry of his intention to close them out on that date (January 1, 1951). From the deposition of Miers it may be inferred that said purchasers in possession had made improvements on the lot, which had enhanced in value since date of the earlier sale. It may be here noted that the contract became delinquent shortly after its execution, at least in matter of monthly interest; likewise as to principal payments after October of 1948.

Appellant's points of error are, in effect, (1) that as a matter of law under above quoted contract provision, the seller's failure to exercise...