O'Neal v. Bush & Tillar

• Decision Date: 24 February 1915
• Docket Number: (No. 2368.)
• Citation: 173 S.W. 869
• Parties: O'NEAL et al. v. BUSH & TILLAR.
• Court: Texas Supreme Court

173 S.W. 869

O'NEAL et al. v. BUSH & TILLAR.

(No. 2368.)

Supreme Court of Texas.

February 24, 1915.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by E. V. O'Neal and others against Bush & Tillar. Judgment for plaintiffs for $25,000 was reversed and remanded by the Court of Civil Appeals (140 S. W. 242), and plaintiffs bring error. Reversed, and judgment of the district court affirmed.

Capps, Cantey, Hanger & Short, of Ft. Worth, for plaintiffs in error. Flournoy, Smith & Storer, of Ft. Worth, for defendants in error.

BROWN, C. J.

We copy the following statement of facts from the opinion of the Court of Civil Appeals:

"Appellants owned about 50,000 acres of land in Scurry and other counties, which they contracted to sell to appellees. The contract was entered into on October 27, 1906, and was evidenced by a writing of that date. The price to be paid by appellees for the land was $6.50 per acre. They paid $10,000 on the purchase price at the time the contract was executed. By the terms of the contract, $15,000 of the part remaining unpaid of the purchase price was to be paid May 11, 1907, and the remainder thereof at later dates. It was stipulated that, in the event appellees should violate any of the terms and conditions of the contract and `fail to perfect, consummate and carry out' same, the $10,000 paid by them should not be `considered or become a partial payment upon the lands,' but should be `received, held and kept' by appellants as liquidated damages. The $15,000 due by appellees May 11, 1907, was not paid by them then nor afterwards. On that day appellant Tillar and his attorney and appellees Baker, J. F. O'Neal, and W. E. O'Neal had a conference in Mineral Wells. The testimony as to what then occurred was conflicting. That on the part of appellants was that Tillar then demanded payment of the $15,000, and, appellees refusing to pay, that he declared their rights under the contract to have been thereby forfeited. That on the part of appellees was that payment of the $15,000 was waived by Tillar, and that he agreed to go to Kansas City and act for them in closing a deal they claimed they had pending there with one Allen and one Rule, subject to an arrangement with Tillar as to certain details not specified in the testimony, whereby Allen and Rule were to assume their contract with appellants and pay them (appellees) the sum of $25,000. As a result of the conference, on the Monday following said Saturday, Tillar and Baker and J. F. O'Neal did go to Kansas City, where negotiations between Tillar and Allen and Rule were carried on, resulting in the consummation on May 22d of a contract between Tillar and Allen and Rule, whereby appellants sold the land to Allen and Rule, and agreed to convey same to Allen, for $6.50 per acre, the price appellees had agreed to pay for it, and $15,000. Appellees claimed that it was understood and agreed between themselves and Tillar that they should own all in excess of $6.50 per acre Allen and Rule might agree to pay for the land, that Tillar in negotiating and consummating the sale to Allen and Rule acted for them as well as for appellants, and that they were entitled to demand and receive of appellants as their own the excess over $6.50 per acre realized by appellants as a result of the sale to Allen and Rule. Their suit against appellants was commenced and prosecuted on this theory. Appellants denied the existence of such an understanding and agreement, and, among other things, claimed that appellees were advised by Tillar, two days before he consummated the sale to Allen and Rule, that he denied their right to any of the proceeds of the sale he was negotiating, and would refuse to account to them for any part of such proceeds. The sale by appellants to Allen and Rule was entirely on a credit — the purchase price being represented by Allen's promissory notes secured — except $15,000 thereof (by a vendor's lien on the land), and part of them, including said $15,000, being further secured by the guaranty of Rule and a pledge of certain life insurance policies issued to him. The $15,000 referred to as not secured by a vendor's lien was represented by notes in favor of appellee R. B. Pyron, who claimed same was paid to him by appellants on account of an indebtedness they owed to him as the result of other transactions between them. Appellants, however, claimed the $15,000 was paid to Pyron as a commission for his services in connection with the sale made to Allen and Rule. Appellees' suit was to recover the $10,000 paid by them to appellants at the time the contract of October 27, 1906, was entered into, and the excess over $6.50 per acre in addition to said $10,000 received by appellants on account of the sale to Allen and Rule. They obtained a judgment against appellants for the sum of $25,000 and interest thereon from May 11, 1907."

The Court of Civil Appeals made a very clear statement of the facts of this case, and pronounced a judgment which was sustained both by the findings of the jury and by the law, whereby they affirmed the judgment of the district court. Subsequently, upon a motion for rehearing, they set their former judgment aside, and entered judgment reversing and remanding the case to the district court for another trial.

It will be necessary, in a brief way, to review the facts as they...