Norman v. Vickery

• Decision Date: 23 April 1910
• Citation: 128 S.W. 452
• Parties: NORMAN v. VICKERY.
• Court: Texas Court of Appeals

128 S.W. 452

NORMAN v. VICKERY.

Court of Civil Appeals of Texas.

April 23, 1910.

Rehearing Denied May 21, 1910.

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

Action by F. C. Vickery against E. A. Norman. Judgment for plaintiff, and defendant appeals. Affirmed.

W. M. Tidwell and Farrar, McRae & Kemble, for appellant. John H. Sharp, for appellee.

BOOKHOUT, J.

This was a suit by F. C. Vickery, appellee, against E. A. Norman, appellant, to recover on a promissory note for $1,000 executed by appellant, and alleged to be due appellee as a forfeiture due him by reason of the breach of a contract for a certain land trade between himself and said defendant. The note was for $1,000, and in the usual form, dated August 30, 1907, and due January 1, 1908, and stipulated for interest at 8 per cent. per annum from maturity, with an agreement to pay 10 per cent. attorney's fees if not paid when due. The contract for the sale or trade of land for the performance of which the note was put up as a forfeit reads as follows: "Ennis, Texas, 8-30-07. Know all men by these presents that, for and in consideration of the consideration and stipulations hereinafter mentioned, F. C. Vickery and E. A. Norman have this day entered into the following contract: F. C. Vickery sells to E. A. Norman 100 acres of land situated one mile S. E. from Ennis, Texas, known as the Arch Moore farm for $12,500—$10,400 in cash and the assumption by said Norman of one promissory note for the sum of $2,100 drawing interest at the rate of 7½ per cent. per annum. E. A. Norman sells to F. C. Vickery 296 acres of land 6 miles east of Palmer, known as the Norman farm. Said Vickery to pay therefor the sum of $12,500 cash. This trade to take effect on January 1, 1908. And as an earnest of our good faith, and the full performance of this contract, each of us has put up as a forfeit his note for the sum of $1,000. Each of us hereby promises to furnish an abstract of title to be examined by our respective attorneys, and in the event that either abstract is not good, and cannot be made good in a reasonable length of time, then neither of us is bound by this contract. [Signed] E. A. Norman. C. F. Vickery."

The defendant pleaded that the contract signed by him and plaintiff was misread to him, or a portion thereof omitted in the reading thereof, and that he signed the contract and note not knowing the contract contained the clause whereby he obligated himself to assume the payment of $2,100 on the 100 acres of land. He furthermore claims that the plaintiff fraudulently misled him in certain representations plaintiff is alleged to have made as to the absence of Johnson grass on the said 100 acres, and as to the condition of the house thereon. He also pleaded that said $1,000 note was not intended by the parties plaintiff and defendant as a forfeiture, but the same was intended as a penalty to cover such damages as might be sustained by reason of the breach of such contract entered into between him and plaintiff, if broken by defendant; and further alleged that said note of $1,000 was vastly in excess of the damages actually sustained by plaintiff, was exorbitant, oppressive, and unreasonable, and that the damages sustained by plaintiff, if any, were easy of estimation and calculation. The court...