Nevins v. Thomas

• Decision Date: 28 April 1891
• Parties: NEVINS v. THOMAS.
• Court: Texas Supreme Court

16 S.W. 332

NEVINS v. THOMAS.

Supreme Court of Texas.

April 28, 1891.

Commissioners' decision. Appeal from district court, Grayson county.

W. W. Wilkins, for appellant.

HOBBY, P. J.

While the relief prayed for in this case is double, — specific performance of the contract, if possible; if not, damages for a breach thereof, — the allegations in the petition show that the defendant has "disabled himself," or put it out of his power to comply. The action, therefore, is one seeking compensatory damages for such non compliance. It was brought by appellee, James T. Thomas, against appellant, John Nevins, for the breach of an agreement in writing, entered into by the latter on December 10, 1883, to sell and convey 80 acres of land to the former in consideration of three notes of $8,000 each. The first was to become due January 1, 1886, and the others on January 1, 1887. The following language is contained in the contract: "It being necessary for the district court of Grayson county to set apart and ratify the sale of the interest of the estate of W. H. Day to the above contract and agreement, at which time deed to Jas. T. Thomas is to be made, subject to the above-described notes and conditions." The issues tendered in the petition were that appellant purposely put it beyond his power to perform, and plaintiff was damaged thereby, and that the clause last quoted was the result of fraud or mistake, and that it should read: "That as soon as the district court of Grayson county could set apart and partition the land then in suit and controversy in said court between this defendant and the plaintiff and Mabel and Willie M. Day as defendants, (No. 5,208,) the same being a suit for partition of 240 acres of land between said defendant and Days as tenants in common, the said defendant would then execute and deliver the deed to the land." There was a general denial, and special pleas not requiring notice. The trial on March 21, 1888, resulted in a verdict and decree for plaintiff for $58, which the defendant Nevins appeals from.

It is admitted that plaintiff is entitled to that sum if he can recover under the facts. In addition to the contract in evidence, it was shown that the land which was owned by the Days and appellant as tenants in common, was partitioned according to law between them by decree on June 2, 1886; and that appellant was allowed to select either of the tracts into which it had been divided equally as to quantity and quality, and that he did not select the tract embracing the land in question. The appellee, Thomas, was in possession of the land at the time of the contract, — December 10, 1883, — and, though the notes were to be executed as before stated, and the first would be due January 1, 1886, and the other two January 1, 1887, he had not seen appellant until the spring of 1886. But the testimony further shows that in May, 1886, appellee asked for the deed, and appellant told him the partition had not been made; that on July 5, 1886, he again demanded it, and defendant informed him that he had not been allotted the land in the partition. On both occasions plaintiff offered to pay the purchase money or execute the notes, but the defendant refused to make the conveyance on grounds stated. The charge instructed the jury that it was undisputed that it was out of the power of the defendant to comply specifically with the contract, and that they would be confined solely to the question of damages, and that, if the land was partitioned between Nevins and the Days, and at his request, the share set apart to him did not embrace the land in dispute, and it was given to the Days, this would place it out of his power to comply with the contract, and entitle the plaintiff to any damages sustained by him. The jury were also...