Nelson v. Boggs
| Decision Date | 12 June 1915 |
| Docket Number | (No. 7379.) |
| Citation | 177 S.W. 1005 |
| Parties | NELSON v. BOGGS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
Action by John Nelson against George E. Boggs. Judgment for defendant, and plaintiff appeals. Affirmed.
Woods & Morrow, of Kaufman, for appellant. Ross Huffmaster and Wynne & Wynne, all of Kaufman, for appellee.
The appellant, John Nelson, brought this suit against appellee, George E. Boggs, to recover the sum of $560 as a forfeit for an alleged breach of a written contract signed by appellant and appellee for the sale and purchase of a tract of land situated in Kaufman county, Tex. The contract declared on describes the land and is dated the 30th day of December, 1913. It recites in substance, that the appellee, Boggs, "agrees to sell and does sell" to the appellant, Nelson, the land therein described; that the appellant, Nelson, "agrees to buy and does buy said land, and agrees to pay the sum of $3,200 for same as follows: `$560 cash, the balance to be divided into notes so that the principal and interest will amount to $300 per annum, the notes to be in the usual form of vendor's lien and to bear 8 per cent. interest per annum from January 1, 1914, the interest payable annually as it accrues.'" The contract then stipulates that appellee will furnish an abstract showing a good title to the land, and pay interest on all outstanding indebtedness to January 1, 1914, and taxes to include 1913, and to give appellant, Nelson, possession of the premises, upon said cash payment by January 15, 1914, "in as good condition as same is now in except natural wear and inevitable results." The contract contains the further recitations, in substance, that the appellee, Boggs, attaches to the contract his check in the sum of $560 as a forfeit, and the appellant, Nelson, attaches a bill of sale to certain personal property, and that should the said Boggs do all the things agreed to be done by him, and the said Nelson then fails and refuses to perform his part of the contract, then the said Boggs shall receive all the property described in said bill of sale as a forfeit, and that should the said Boggs fail and refuse to perform his part of the contract, then the said Nelson shall receive said check for $560 as a forfeit, and there shall be no further cause of action in the premises. The contract further recites that:
"It is understood that George G. Shaw shall hold contract and all papers pertaining thereto for said parties in trust."
The appellant alleged that a few days after the contract for the sale and purchase of the land in question was executed, the appellee notified appellant that he would not carry out said contract, and thereupon breached the same without any fault on the part of appellant; that appellee willfully and wrongfully breached said contract, although appellant was then ready, willing, and able to carry out his part of the contract; that on or about January 15, 1914, appellant tendered performance of said contract, but that appellee still persisted in his breach and violation thereof; that appellant demanded the forfeit provided for in the contract in case appellee refused to perform his part thereof, and that this was refused. The appellee answered and admitted the execution and delivery of the contract and the posting of the forfeit to bind the parties thereto; but he pleaded that, at the time the contract was so executed and delivered, it was delivered and executed under certain conditions and contingencies; that it was placed in escrow in the hands of George G. Shaw, to await the happening of an event, before it was to have life; that the title to said land was in one Sutton, and the contract was not to take effect and not to be binding unless the defendant could get the title out of Sutton; that the contract should have contained this stipulation, but that by mistake of the draughtsman and by mutual mistake and oversight the said condition and contingency had been omitted. That at the time the same was delivered, the fact was mentioned and each party agreed that the condition was so well understood that it need not be changed. The defendant further pleaded that:
"The conditions upon which the contract had been executed had failed, and that the said contract had never taken life and had never taken the binding effect as to be enforceable upon the plaintiff or the defendant."
By supplemental petition appellant demurred generally and specially to the "answer of appellee," asserting in his special exceptions that said answer shows on its face that it is an attempt to avoid a written contract full and complete in every particular, by ingrafting upon it a contemporaneous parol agreement. Appellant, by his supplemental petition, also denied the allegations of the appellee's answer, and pleaded that the matters set up by appellee was a scheme and plan to overreach and defraud appellant. The appellee, by supplemental answer, denied the allegations of the appellant's petition, and pleaded that the contract declared on had been drawn by the agents of the appellant. That he, appellee, at all times, stood ready to carry out his part of the contract, if the conditions and contingencies under which it was executed had come to pass. It appears that the contract of sale, and the check and bill of sale put up by the respective parties as a forfeit in the event he failed to perform his part of the contract were left with George Shaw in escrow, and the sole issue submitted to the jury upon the trial was whether or not at the time said contract, check, and bill of sale were signed and left with said Shaw, it was understood between appellant and appellee that the trade was not to be effective if appellee Boggs could not get the land contracted to be sold from one Sutton. This issue was resolved by the jury favorably to appellee. Judgment was thereupon rendered for him, and the appellant's motion for a new trial being overruled, he appealed.
The appellant's first assignment of error, which is submitted as a proposition, is as follows:
"The court erred in overruling the plaintiff's general and special demurrers to defendant's amended original answer wherein the defendant sought by his pleading to avoid the contract sued on by plaintiff by setting up a contemporaneous parol agreement in avoidance of plaintiff's contract sued on."
His second assignment of error is that:
"The court erred in the admission of the testimony offered by the defendant to prove a contemporaneous parol agreement tending to avoid and to render null and void the contract sued on by the plaintiff, and to contradict the terms thereof."
The proposition under this assignment reads thus:
"A contemporaneous parol contract cannot be ingrafted onto a written contract so as to render the same null and void and of no effect by parol testimony, for the same is without consideration and void, and the law is that all parol agreements, both antecedent and contemporaneous, are concentrated into and merged into the written contract which must bind the parties."
A consideration of the first assignment is objected to by appellee...
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Hawkins v. Johnson
...W. 895; Howard v. Stratton, 64 Cal. 487, 2 Pac. 263; Lyons v. Stills, 97 Tenn. 514, 37 S. W. 280; Watson v. Rice, 166 S. W. 106; Nelson v. Boggs, 177 S. W. 1005. The last two cases were decided by other Courts of Civil Appeals of this state. We also refer to Hughes v. Crooker, 148 N. C. 318......
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