Nugent v. Moody

• Decision Date: 15 January 1925
• Docket Number: (No. 8585.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 271 S.W. 266
• Parties: NUGENT et al. v. MOODY et al.
• Court: Texas Court of Appeals

Page 266

271 S.W. 266

NUGENT et al. v. MOODY et al.

(No. 8585.)^*

Court of Civil Appeals of Texas. Galveston.

January 15, 1925.

Plaintiffs in Error's Motion for Rehearing Denied February 12, 1925.

Defendants in Error's Motion for Rehearing Denied March 19, 1925.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by Elizabeth Stewart Moody and another against C. W. Nugent and another. Judgment for plaintiffs, and defendants appeal. Reversed and rendered in part, and in part affirmed.

Thos. H. Ball and Stevens & Stevens, both of Houston, for appellants.

Moody & Boyles, of Houston, for appellees.

LANE, J.

This suit was brought originally by Mrs. Elizabeth Poinbouef, now Mrs. Moody, by which name she will be hereinafter referred to, against G. W. Tharp and C. W. Nugent to cancel a certain contract entered into between her on the one side and Tharp and Nugent on the other, by which she had agreed to give to said Tharp and Nugent one-half of any part of the property of the estate of Mrs. Laura Stewart Hardy, deceased, which they might recover for her in contest which might arise between her and others claiming said property.

During the pendency of said suit, G. W. Tharp died, and other parties, representing themselves to be the heirs of Tharp, made themselves parties to the suit; but in view of the issues presented by this appeal, it will not be necessary to further mention them in discussing the issues involved.

As the pleadings of the several parties cover more than 77 pages of the record, it becomes necessary for us, in an effort to make a condensed substantial statement of the material averments of such pleas, to make the following statement:

The plaintiff alleged that Mrs. Laura Stewart Hardy died on or about May 14, 1914; that she left a will by which she gave plaintiff practically all of her estate, which was of the value of $150,000; that in the month of October, 1913, about six months prior to her death, Mrs. Hardy, while in feeble health, handed her said will, inclosed in a sealed envelope on which her name only appeared, to the defendant G. W. Tharp and requested him to place it in his safe, and that after she was gone to give it to Elizabeth (Elizabeth Poinbouef) for her protection; that in the latter part of October, 1913, a few days after the delivery of the will to G. W. Tharp, Mrs. Hardy went to Conroe, a town about 50 miles from Houston, and shortly after going to Conroe she went to the office of C. W. Nugent, and in a conversation with him about her business affairs she expressed the thought that she would not live long and told him, who had been for many years her attorney and confidential adviser, and to whom she had trusted many of her business affairs, and who was guardian of Mrs. Moody from 1912 to 1913, the time of her marriage, that when she died he would find her will in the safe of G. W. Tharp at Houston; that Tharp had received the will from Mrs. Hardy and had placed the same in his safe in October, 1913; that Elizabeth (Mrs. Moody) had no knowledge of the existence of said will at the time of the execution of the contract sought to be canceled, but that at such time both Tharp and Nugent knew that said will was in existence and accessible to them, and that they fraudulently concealed from her (Mrs. Moody) the fact of the existence of said will for the purpose of obtaining from her the execution of the contract above mentioned and described, and that by reason of said fraudulent concealment they did induce Mrs. Moody (formerly Poinbouef) to execute said contract; that said Tharp and Nugent at all times prior to the execution of said contract led her to believe that Mrs. Hardy left no will, but that in a few days after the execution of said contract defendant Tharp brought the will executed by Mrs. Hardy to her and told her that after refreshing his memory he had found the will in his safe; that as soon as she learned of the existence of the will, which gave her practically all of the property left by Mrs. Hardy, of the value of $150,000 or more, she at once and immediately told Tharp, substantially, that since the will, of which she had no knowledge at the time of the execution of said contract, had now been produced, she thought the contract, by the terms of which he and Nugent were to get one-half of so large an estate for the performance of the services necessary to be performed to protect her interest in the premises, was unfair and should not be enforced against her, and that, in reply, defendant Tharp told her that she had made the contract and that she must stand by it, and that he would not discuss the matter of its repudiation with her, whereupon she told Tharp that if he would not discuss the matter with her she would try to find some one with whom he would discuss such matter.

The plaintiff made further allegations to the effect that defendants had misrepresented other material facts, and had, after the execution of said contract, accepted inconsistent and hostile employment.

Defendants answered by general denial, and alleged that neither Tharp nor Nugent knew that the will of Mrs. Hardy was in existence at the time of the execution of the contract in question. They admitted that in October, 1913, Mrs. Hardy delivered to defendant Tharp an envelope containing her will, and that she told him to put it in his safe and that as soon as she was gone to deliver it to "Elizabeth" for her protection, but denied that Tharp knew that the package handed to him contained the will of Mrs. Hardy.

They further admitted that in the latter part of October, 1913, Mrs. Hardy conferred with defendant Nugent concerning her business affairs, and particularly with reference to her will, and at that time informed him that upon her death he would find her will, written by Fenny McDonald, under seal in Judge Tharp's office in Houston, and that she had left practically all of her estate to plaintiff.

They further pleaded that after her death, Nugent inquired of Tharp concerning the will of Mrs. Hardy, and was told by him that he knew of no will being in existence, and that he only knew of a draft of a will which he had prepared for Mrs. Hardy, and which she had destroyed.

They specially pleaded that plaintiff, Mrs. Moody, was estopped from canceling said contract, because of the fact that she was fully apprised of the existence of the will of Mrs. Hardy for a period of three months before she filed this suit, and that notwithstanding her knowledge of the existence of said will, she thereafter requested defendants to proceed to carry out said contract, and upon such request and acquiescence on the part of plaintiff they proceeded to faithfully carry out their part of said contract, by offering the will for probate in Harris county and resisting the protest made against said probate by other heirs of Mrs. Hardy, and in resisting other suits brought by said heirs in Montgomery county adverse to the interest of plaintiff, and that they were not aware of any dissatisfaction with their said services until about the time this suit was filed; that in said efforts to protect the interest of plaintiff they paid from their own funds large sums of money which they assumed to pay under the terms of said contract.

They further pleaded as follows:

"Plaintiff accepted all of said services and induced all of said expenses to be incurred by defendants in her behalf, executed the appeal bond required to perfect her appeal in Montgomery county, as well as her bond as temporary administrator in Harris county, and it was not until after both of said contests in the county courts of Montgomery and Harris counties, and about three months after the finding of the said will and its delivery to plaintiff, as aforesaid, that this suit was filed, and these defendants know of no facts whatever justifying the action of plaintiff in filing this suit, and these defendants verily believe that, unadvised by any one fully cognizant of the conditions affecting her interest and the magnitude of the fight which she still had before her after the successful probate of the will in the county court of Harris county, this suit would not have been filed, and defendants aver that under all the facts and circumstances plaintiffs are estopped from seeking to cancel said contracts or attempting to rescind same."

And they prayed that the relief in plaintiff's petition asked be not granted, and that defendants be fully confirmed in all their rights under and by virtue of said contract.

Further pleading by way of cross-bill, they prayed for damages for breach of said contract; or, in the alternative, for the value of the services which they had rendered in behalf of plaintiff under and by virtue of said contract, and the subsequent ratification, approval, and acquiescence of plaintiff, which they alleged to be not less than $75,000; and for general relief.

Plaintiff denied the allegations in defendants' answer; and replying to the allegations in said answer seeking to estop plaintiff from rescinding said contract because of the alleged ratification thereof by acquiescence therein after the existence of said will became known to her, she alleged that as soon as she learned of the existence of said will, she notified defendants of her dissatisfaction with said contract, and defendants, in turn, notified her that they would not even discuss the matter with her; that thereupon she told them that if they would not discuss the matter with her, she would try and find some one with whom they would discuss such matter, and she thereupon set about trying to procure other attorneys to take the control of her affairs out of defendants' hands, and did procure said attorneys as soon as possible. She further alleged that she immediately set about to try to find other attorneys, but it was not until about three weeks later that she succeeded in having her case put before the firm of Moody & Boyles, who were practicing attorneys...