Osburn v. Smart

• Decision Date: 08 October 1932
• Docket Number: No. 12697.,12697.
• Citation: 58 S.W.2d 1073
• Parties: OSBURN v. SMART et al.
• Court: Texas Court of Appeals

58 S.W.2d 1073

OSBURN v. SMART et al.

No. 12697.

Court of Civil Appeals of Texas. Fort Worth.

October 8, 1932.

Rehearing Denied November 19, 1932.

Second Rehearing Denied February 25, 1933.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Suit by S. P. Osburn against J. O. Smart, and wife, and another. Judgment for plaintiff against defendant Turner, and judgment that plaintiff take nothing as against defendants Smart, and, from the judgment in favor of defendants Smart, plaintiff appeals.

Reversed and rendered in accordance with opinion.

W. L. Coley, of Fort Worth, for appellant.

T. W. Dunn and Hiner & Pannill, all of Fort Worth, for appellees.

CONNER, Chief Justice.

Appellant instituted this suit against F. D. Turner and J. O. Smart and Aurelia Smart. The litigation grows out of an exchange of properties between appellant, Osburn, and appellee Smart. It appears that on the 8th day of August, 1929, the parties entered into the following contract:

"The State of Texas, County of Tarrant:

"This agreement between J. O. Smart of Tarrant County, State of Texas, First Party, and S. P. Osburn of Tarrant County, State of Texas, Second Party, is to witness:

"First Party is the owner of the land and notes described as follows, towit: Lot Three in Block Fifteen, also Lot Twelve in Block Thirteen, both in Brooklyn Heights Addition to the City of Fort Worth, Tarrant County, Texas. Two monthly installment notes secured by second vendor's lien against Lot One in Block Four of Brooklyn Heights Addition to Fort Worth, Texas, each dated July 12th, 1929, each payable to the order of J. O. Smart, each signed by F. E. Turner, each bearing interest from date at 8% per annum, payable semi-annually, Note No. 1 in the principal sum of $2,000.00, the first $25.00 monthly installment due September 1st, 1929, Note No. 2 in the principal sum of $1,668.28, the first $25.00 monthly installment due September 1, 1931.

"The agreed value of said land and notes being $12,168.28. Said property is subject to the following liens and incumbrances; on Lot Three, monthly installment note payable to the order of Tarrant County Building & Loan Association, original principal sum of $3,000.00, to have a value of $2,800.00 as of date of closing, if balance due on said note is more than $2,800.00 Smart is to pay the difference to Osburn, if balance is less than $2,800.00 then Osburn is to pay the difference to Smart.

"On Lot Twelve, monthly installment note payable to the order of Railroad Building & Loan Association of Dallas, Texas, original principal sum of $1,700.00, to have a value of $1,640.00, as of date of closing, if balance due on said note is more than $1,640.00 Smart is to pay the difference to Osburn, if balance is less than $1,640.00 then Osburn is to pay the difference to Smart.

"Second party is the owner of the land and premises described as follows, towit:

"(Here follows description of land by metes and bounds.)

"Also all crops, growing and gathered, all tools and implements, all livestock, including hogs, cow, mules and chickens, in fact all chattels now on said land.

"The agreed value of same being $8,178.28. Said property is subject to the following liens and encumbrances: Clear.

"First party hereby sells and agrees to convey to Second Party the land and notes above described as owned by First Party.

"Second Party hereby sells and agrees to convey to First Party the land and chattels above described as owned by Second Party.

"Each of the parties hereto shall assume the encumbrances and liens on the property conveyed to him. The party whose property to be conveyed and equity therein is of least value as fixed hereby shall pay to the other party such difference in cash and notes as follows:

"Osburn paying $450.00 Dollars to Smart. Seller to retain vendor's lien and deed of trust to secure said notes; each party hereto agrees to furnish the other with a complete abstract of the property to be conveyed showing merchantable title to his property which shall be conveyed free and clear of all encumbrances except those herein named, and subject to all restrictions applicable to the plat or addition of which said land is a part.

"Within ten days from the receipt of abstract, the party receiving same shall accept or return abstract with written objections thereto. Failure to comply with this provision shall be construed as an acceptance of the title.

"In the event title is not good and cannot be made good within a reasonable time, the purchase money is to be returned to the party depositing same upon cancellation and return of this contract, but the right to enforce specific performance hereof is retained at the option of either party hereto.

"When title objections have been cured, each party agrees to deliver a good and sufficient warranty deed properly conveying his property to the other and to pay the balance of cash payment, if any, and to execute the notes and deeds of trust, if any herein provided for.

"Should either party fail to consummate this contract, as specified for any reason except title defects, the other party may retain the cash deposit as liquidated damages for said breach after paying the agent therefrom the usual commission, or may enforce specific performance. Taxes for the current year, current rents, insurance and interest, if any, are to be prorated at the date of closing.

"First Party has deposited with Geo. Beggs, Agent, the sum of 2 above described monthly installment vendor's lien notes, receipt of which is hereby acknowledged, and agrees to pay him a commission of $304.00.

"Second Party has deposited with Geo. Beggs, Agent, the sum of $450.00, receipt of which is hereby acknowledged, and agrees to pay him a commission of $175.00.

"Both Parties hereto have been represented in this transaction by Geo. Beggs as Agent. They agree that said Agent shall represent both of them and each will pay him a commission for his services as follows:

"First Party $304.00 Second Party $175.00.

"No change or addition in this contract shall be made except in writing signed by both parties and their agents, and no representation as to value, condition or otherwise concerning this property shall be binding on either party or their agent or agents unless embodied herein in writing.

"Possession of above described farm to be had at date of closing.

"Witness our hands this 8th day of August, A. D. 1929.

                "______             J. O. Smart
                                       Party of First Part
                "______             S. P. Osburn
                                       Party of Second
                                        Part."
                

The plaintiff Osburn, the complaining party, alleged that on August 16, 1929, the contract was consummated by him conveying his property as described in the contract to Aurelia Smart, wife of defendant J. O. Smart; that the Smarts on that day executed and delivered deeds to plaintiff to lot 3, block 15, and lot 12, block 13, mentioned in the contract, and at the same time by written transfer assigned the two second vendor's lien notes mentioned in the contract, representing to plaintiff that said notes were good and would be paid promptly as they became due; that, by reason of the accelerating clauses and the failure to pay the specified installments, plaintiff, on October 16, 1929, elected to and did declare said notes due and payable, and that: "By virtue of the terms of said contract, and by law, plaintiff is entitled to a vendor's lien upon the property conveyed by plaintiff and described in said contract to defendant Aurelia Smart by request of defendant, J. O. Smart, and to a judgment foreclosing said vendor's lien."

Plaintiff further alleged that: "By mutual mistake of the parties to said contract, plaintiff paid to defendant J. O. Smart, Four Hundred and Fifty ($450.00) Dollars in cash, when, according to the terms of the contract, said J. O. Smart should have paid $450.00 to plaintiff, and therefore plaintiff is now entitled to recover from defendants J. O. Smart and Aurelia Smart Nine Hundred ($900) Dollars, together with interest at 6% since to wit, August 8th, 1929." For which he prayed judgment with foreclosure of the vendor's lien.

Smart and wife answered with a general demurrer and a general denial, and specially to the effect that the written contract set out in plaintiff's petition had been duly executed and the properties delivered as therein provided, and that:

"Said contract represents and is the exact proposition and trade except as to values placed on the properties agreed upon by the plaintiff and the defendant J. O. Smart; that the trade and sale of the property set out in said contract and the terms of said contract were carried out by both the plaintiff and the defendant. * * * That the agreement to trade property or properties as above set out was the proposition upon which the minds of the plaintiff and these defendants met and was the identical trade and proposition intended by both the plaintiff and these defendants, and was the identical trade and proposition that was carried out and consummated by the plaintiff and these defendants on the 16th day of August, 1929. * * *

"The said defendants say that they did not at any time indorse said second lien notes and that they did not at any time guarantee the payment of said notes or any part of same to the plaintiff Osburn and that they did not at any time agree either directly or indirectly that the plaintiff should have a lien on the farm conveyed to the defendants by the plaintiff, to secure said two second vendor's lien notes. And the said defendants deny specially that the plaintiff is entitled to a lien upon said farm to secure payment of said notes, either by terms of said contract or by law."

The defendants further specially denied the other claims, aggregating $900, and alleged in substance that the property upon which the notes conveyed to Osburn rested had been examined prior to the trade by Osburn, and was well worth...