Nabours v. McCord

• Decision Date: 07 July 1904
• Citation: 82 S.W. 153
• Parties: NABOURS et al. v. McCORD et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 153

82 S.W. 153

NABOURS et al. v. McCORD et al.^*

Court of Civil Appeals of Texas.

July 7, 1904.

Error from District Court, Milam County; J. C. Scott, Judge.

Action by W. A. Nabours and others against A. P. McCord and another. A judgment in favor of defendants was reversed on error to the Court of Civil Appeals (75 S. W. 827), and, on application for rehearing, questions were certified to the Supreme Court, which were answered (80 S. W. 595), after which plaintiffs in error moved to reverse and render judgment in their favor. Denied.

D. W. Doom, W. K. Homan, Hefley, McBride & Watson, and Etheridge & Baker, for the motion. M. M. Crane, M. J. Moore, N. H. Tracy, T. S. Henderson, J. K. Freeman, and Sam Streetman, opposed.

EIDSON, J.

This is a motion, filed and presented by plaintiffs in error, requesting this court to reverse the judgment of the court below, and here render judgment vacating the alleged pretended sale under and by virtue of which the defendant in error A. P. McCord claims title to the property in controversy, and to remand the cause, as to both of the defendants in error, to the trial court, with instructions to try the other issues involved herein, and to render such judgment in reference thereto as the law and facts may warrant.

In the original disposition of this cause by this court, all the members of the court agreed to reverse and remand the case, but Associate Justice KEY dissented from the majority in their holding that the following charge given by the trial court was error, to wit: "Although an assignee would have no right to make an agreement with the proposed purchaser of the property of an assigned estate by which the purchaser was bound to sell to such assignee any portion of the property after his purchase, yet such assignee, in order to procure an advantageous sale of the property, would have the right to guaranty to such prospective purchaser a sale of certain of such assets at a designated price. So, if you believe from the evidence that the defendant McCord, in good faith, for the purpose of having the property bring a fair price, and not with the view to his own benefit as purchaser thereof, but as an inducement to Lawrence to buy the property at a fair price, caused the statement to be made to Lawrence that a purchaser would be furnished who would take the property off his hands, should he wish to sell it, at the price Lawrence gave for it, then said statement would not vitiate the sale, provided Lawrence was under no promise, express or implied, to allow McCord to take the benefit of his purchase; and if you believe that Lawrence purchased said property under said circumstances and afterwards in pursuance of said statement, sold a portion of said property to said McCord, said sale to Lawrence, and by him to McCord, would be valid, and you will find for defendants." Associate Justice KEY contended that there was no error in said charge, and that it was properly given, but agreed to the disposition of the case as arrived at by a majority of the court upon the ground that the trial court erred in refusing to give the following requested instruction of plaintiffs in error: "If McCord authorized Ralston to assure Lawrence that a purchaser would be found for him (Lawrence) for certain of the assets which he (Lawrence) did not want, if such was the case, and if you find that the object and purpose of McCord in having such assurance made to Lawrence, if such assurance was made, was to enable him (McCord) to thereafter become the purchaser from said Lawrence of said assets, or any part thereof, and that, in furtherance of such object and purpose, McCord did thereafter become the purchaser from Lawrence, then you are instructed that such sale was, and, as to said McCord, is, invalid, and this notwithstanding Lawrence may not have been aware of the object and purpose of McCord in having him so assured." The majority of the court held that, in view of their holding that the giving of a guaranty was not a proper subject to be singled out and charged upon by the court, it was not error for the court to refuse to submit to the jury the above special charge. On account of the dissent above stated, this court certified to the Supreme Court the question whether the trial court erred in giving the charge first quoted herein above. The Supreme Court answered the question in the affirmative, holding that the trial court erred in giving said charge. In their opinion the Supreme Court used this language: "Was this a sale, directly or indirectly by Henderson and McCord to McCord? The terms of the contract with Lawrence were that he should have a given time in which to pay for the property, and upon the payment for each item it should be delivered to him, and not before. Therefore no title passed to Lawrence until payment was made. McCord having furnished to Lawrence the money with which the purchase price of the property was paid, when the transfer was made to him the title vested in McCord, and not in Lawrence, who was a mere conduit through which that title was conveyed to McCord, the real purchaser. Until the payment the contract with Lawrence was executory, the assignees were charged with its enforcement, and McCord could not acquire the title while his trust relation to the property continued." And in the conclusion of their opinion the Supreme Court used this language: "We are of opinion that the facts stated show that the sale of the property in controversy was made to McCord for his own benefit, from which he has derived an advantage. Therefore the beneficiaries of the trust are entitled to have the sale set aside, or to hold McCord responsible for the benefits derived to himself by the transaction. The charge certified ignored this phase of the case, and should not have been given." In our opinion, the Supreme Court did not, by the language above quoted, intend to hold that the undisputed evidence required this court to reverse the judgment of the trial court, and render same in favor of plaintiffs in error, but, rather, intended to show and explain the grounds upon which it was error for the trial court to give to the jury the charge in question. Evidently the Supreme Court did not intend to pass upon, or give directions to this court in reference to, any point or question other than the one certified, and upon which the disagreement of the judges of this court was based. Classen v. Elmendorf (Tex. Sup.) 38 S. W. 160. The Supreme Court having answered the question certified in the affirmative—that is, that the trial court erred in giving the charge complained of—it is the duty of this court to enter judgment in accordance with the answer given, which would be the judgment rendered by the majority of the court, reversing and remanding the cause. Eustis et al. v. City of Henrietta (Tex. Sup.) 43 S. W. 259.

The statement in the opinion of the Supreme Court that the contract of sale with Lawrence was executory was not in answer to the question certified, and the question as to whether the sale to Lawrence was executory was not raised by the pleadings in the court below, and was not ruled upon by that court, and was not presented to this court, and hence this court was not authorized to certify same to the Supreme Court. Galveston, H. & S. A. Ry. Co. v. Zantzinger et al., 92 Tex. 365, 48 S. W. 563, 44 L. R. A. 553, 71 Am. St. Rep. 859.

It appears from the record in this cause that the trial in the court below was had upon the theory that there was a pretended completed sale by the assignee, McCord, with the agreement and understanding at the time that the said Lawrence would permit McCord, in the future, to purchase the property at the prices and upon the terms agreed upon at the time of making said pretended sale, and not upon the theory that the transaction between McCord and Lawrence constituted an executory contract for the sale of the property. And the majority of this court recognized this in their opinion, by stating: "In view of another trial, it is our opinion that the evidence raises the question of executory or executed contract of sale, and that the court erred in treating the transaction with Lawrence as a sale." It is also to be observed that the opinion does not state that the undisputed evidence shows the transaction to be an executory contract of sale, but that the evidence raises the question as to whether the transaction was an executory or executed contract of sale, and that the court erred in treating the transaction as a sale, from which language we infer that the court meant that the trial court should have submitted the question as to whether the transaction was an executory or executed contract of sale to the jury, instead of assuming, as a matter of law, that it was an executed sale. This view of the question being correct, this court should not render judgment for the plaintiffs in error, and thereby treat the transaction as an executory contract of sale.

Evidently the facts relating to the question as to whether the transaction with Lawrence was an executory or executed contract of sale were not passed upon by the judge of jury on the trial below, and, this question being a material issue in the case, this court should remand the cause, in order that such facts could be passed upon by the court and jury under proper pleadings and instructions. Durrell v. Farwell (Tex. Sup.) 31 S. W. 185.

There is testimony in the record tending to show that the sale to Lawrence was completed, at least to the extent of the execution of the title papers and the payment of a part of the purchase money, some time prior to the acquisition of the property by McCord; and, while it does not appear from the testimony when such title papers were delivered to Lawrence, we are of opinion that these facts might be considered by the court as tending to prove a completed sale; and, in view of the issue as to executory contract of sale vel non not being raised or passed upon...