Mulherin v. Brown, 6580

• Decision Date: 26 March 1956
• Docket Number: No. 6580,6580
• Citation: 289 S.W.2d 609
• Parties: Jess E. Mulherin, Appellant, v. Beatrice M. BROWN, Appellee.
• Court: Texas Court of Appeals

Page 609

289 S.W.2d 609

Jess E. Mulherin, Appellant, v. Beatrice M. BROWN, Appellee.

No. 6580.

Court of Civil Appeals of Texas, Amarillo.

March 26, 1956.

Rehearing Denied April 23, 1956.

Tom Seay, Amarillo, for appellant.

Lumpkin & Watson, Amarillo, for appellee.

MARTIN, Justice.

G. V. Landers entered into a written contract with the appellant, Jess E. Mulherin, to sell to appellant 185 shares of corporate stock of Acme Plumbing & Heating Company a corporation, for the sum of $50 per share. The written contract provided for immediate payment for and delivery of a portion of such stock and the balance of the stock was to be paid for in monthly installments and transferred to appellant in lots of five or more shares after payment was made for the stock to be so transferred. On June 9, 1954, G. V. Landers transferred to appellee, Beatrice M. Brown, without recourse, all of his rights in and to the foregoing contract. However, the stock as described in the contract was not transferred to appellee, but was left in the safe of Acme Plumbing & Heating Company, a corporation, and Landers continued to hold title to the same in his name as the owner thereof and without ever having given any instructions to transfer such stock to appellee or any other person.

Appellant made default as to monthly payments for the shares of stock and appellee sued him for the full contract price of the number of shares of stock that should have been paid for between the date of default and the time of filing suit. Appellee did not obtain a transfer of the shares of stock as subject to the contract of sale and further pleaded in her first supplemental petition the following allegation:

'In answer and reply to the allegations contained in defendant's said First Amended Original Petition, plaintiff alleges and would show to the court that she is not interested in the capital stock of the Acme Plumbing & Heating Company, a corporation; that she does not own any portion of the same, either in person or as co-owner with the said G. V. Landers. She alleges that, in so far as the ownership thereof is concerned, it is a matter entirely between the defendant and the said Landers.'

G. V. Landers was not made a party to the suit and although he was a witness in the cause on the trial of the same he was a resident of the State of Colorado.

Upon the facts in the cause of action, briefly stated above, the trial court rendered judgment for appellee for the full contract price of the stock in issue but provided in such judgment that the appellee would not be entitled to a writ of execution until she delivered or caused to be delivered to the Clerk of the Court a properly executed assignment or assignments to appellant of the capital stock. The judgment further provided that such assignments of stock were to be delivered to the Sheriff executing the writ who was to deliver to the defendant, appellant here, five shares of stock for each $250 paid or collected on the execution.

Appellant perfected an appeal from the above judgment of the trial court and first assigns as error that the trial court erred in rendering judgment for the plaintiff (appellee) when she did not own or claim title to the corporate stock in question. This point of error must be sustained under the record before this Court. Appellee's peadings, as hereinabove quoted, reveal that she did not own any portion of the shares of the stock, either in person or as co-owner with the said Landers. She further pleaded that she was not interested in the corporate stock of the Acme Plumbing & Heating Company, a corporation.

'A defect in the title amounting to a failure of consideration affords a valid defense to the seller's action for the purchase price.' 78 C.J.S., Sales, § 443 c, P. 67; 37 Tex.Jur., Sales, Section 191, Page 433; 37 Tex.Jur., Sales, Section 194, Page 437.

Appellant's second point of error is that the trial court erred in rendering judgment for plaintiff (appellee) since she had neither made any effort whatsoever to obtain and tender into court the corporate stock in question nor had she secured from G. V. Landers an assignment to her of said stock. This point of error must be sustained under the undisputed facts in the cause and also under appellee's pleadings.

'Also, he [seller] may sue for the purchase price where he has made an offer or tender of delivery, at least where the tender was made with intent to pass title.

'On the other hand, ordinarily the seller cannot recover the price unless there has been a delivery which complied with the contract, or unless at the time for delivery he was ready and able to deliver, and made a proper and sufficient tender or offer; * * *.' 78 C.J.S., Sales, § 439 b, P. 56.

Even the authorities cited by appellee as supporting her cause of action reveal a tender of the corporate stock as a condition precedent to recovery of judgment for the price thereof, to-wit:

'The shares of stock were tendered into court by appellees and the judgment directs the Clerk of the Court to...