Parker v. Naylor

• Decision Date: 23 November 1912
• Citation: 151 S.W. 1096
• Parties: PARKER et al. v. NAYLOR et al.
• Court: Texas Court of Appeals

151 S.W. 1096

PARKER et al. v. NAYLOR et al.

Court of Civil Appeals of Texas. Amarillo.

November 23, 1912.

Rehearing Denied December 21, 1912.

Appeal from District Court, Hardeman County; S. P. Huff, Judge.

Action by C. A. F. Parker and another against S. A. Naylor and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Madden, Trulove & Kimbrough, of Amarillo, for appellants. Veale & Davidson, of Amarillo, for appellees.

HALL, J.

This is the second appeal in this case. At the former trial the suit was for specific performance of a contract to convey lands, and in the alternative for damages for breach of the contract, and appellants recovered upon their alternative prayer for damages. Naylor v. Parker, 139 S. W. 93. Upon reversal, appellants, plaintiffs below, filed their second amended petition in which they abandoned that part of their cause of action seeking specific performance, and sued only for damages for breach of contract. The contract is copied in full in the former opinion, and, in so far as it is important to the questions to be considered upon this appeal, its provisions and recitals are that the appellees, S. A. Naylor and Arthur Lile, in consideration of $1 paid, granted unto the appellants an option to buy four leagues of land known as the Sherman county school lands, situated in Cochran county, for a period of 15 days from the date of the contract, which was February 17, 1909; that, if appellants should determine to buy the land under the agreement, they should within 15 days deposit in the Western National Bank at Hereford, Tex., $1,500 in escrow, pending the fulfillment of the agreement; that the purchase price should be $5 per acre for the entire tract, plus an additional sum of $500. It is further recited in the contract that the appellees owed Sherman county an average of $2 per acre, plus $500 for said land, and that the amount due Sherman county should be deducted and the land "deeded to said Parker, subject to said indebtedness"; that, upon the acceptance by Parker's attorneys of the title and conveyance to him by the sellers, he should pay an additional sum of $13,500, making a total cash payment of $15,000; and that the remainder should be divided into three equal payments, due on or before one, two, and three years from date, respectively, with interest at the rate of 8 per cent. per annum. After setting up the stipulations of the contract in full, the petition alleged that, before the expiration of the 15 days provided in said contract, appellant Parker exercised his option to buy the lands by making the $1,500 deposit in the bank specified, and gave appellees notice of such deposit and requested appellees to send forward for examination the abstracts of title as provided in the contract; that appellee Naylor forthwith advised appellee Lile that appellant Parker had exercised his option and demanded the carrying out of the contract; that appellees and each of them had refused to furnish the abstracts of title for examination, had declined to consummate the contract to sell the lands, and prior to the filing of said petition had expressly repudiated the same and arbitrarily, willfully, and fraudulently declined to comply with its terms. It is further alleged that appellants since the execution of said contract, had an opportunity of selling a half interest in the land to one J. N. Bolard at an advance of $2.50 per acre, and that, at the time the contract sued upon was executed, the appellees were duly advised and notified that appellant, when contracting for an option on the land, was doing so for the purpose of reselling the same at a profit; that, at the time appellees breached the contract, the lands were of the reasonable market value of $8 per acre, and that by said breach appellants were damaged generally, in addition to the special damages alleged, in the sum of $60,000. It is further alleged that the contract was executed by S. A. Naylor, acting for himself and as the co-owner with Lile; that, before or at the time of the consummation of their purchase of said lands from said county, appellees formed a partnership for the purchase, handling, and sale of said lands, by which they were to pay equally the purchase price and to share equally the expense, burden of holding, handling, and selling the same, and were to share equally the income, revenues, and profits derived from said lands and the sale thereof; that each of them, as such partner, was authorized to make a valid contract for the sale of the lands; and that the contract in question was signed by appellee Naylor individually, and also with the partnership name of Naylor & Lile, and that, in so signing said contract, he was authorized to bind both himself and the said Lile. It is further alleged that, if the appellants should be mistaken in alleging that appellees were partners, they nevertheless had an understanding and agreement by which either of them was authorized to represent the other to sell the lands; that appellee Naylor was the owner of an undivided one-half interest in the lands, and by virtue of the facts already set out was bound to convey to appellants the said undivided half interest therein; that he undertook and bound himself to cause said Lile, who was the owner of the other half interest, to convey the same to appellant Parker according to said contract, and breached his obligation in that particular to the further damage of appellants in the sum of $30,000. It was further alleged that, at the time appellee Naylor made said contract, he represented and warranted to appellant Parker that he was authorized to make the contract for the sale of said lands on behalf of himself and as co-owner, knowing full well the extent and limit of his authority, and that, if he was not authorized to represent said Lile, he knowingly, fraudulently, and willfully misrepresented his authority and induced appellant Parker to rely thereon; that appellant Parker was in fact misled and did rely upon appellee Naylor's representation, and that Naylor willfully, wrongfully, and knowingly exceeded his authority in making said contract, if he was not authorized to represent his co-owner, to the damage of appellant in the sum of $30,000; that appellee Lile, having been informed by his co-owner immediately after the making of the contract that appellant Parker had exercised his option to purchase said lands, took no steps to repudiate the same or to deny the authority of Naylor to make the contract on behalf of them both, but on the contrary said Lile, after receiving full notice and with knowledge of all the facts, proceeded to ratify and confirm the contract, permitted Parker to act upon the same and deposit said $1,500 in part performance thereof, and addressed a letter to the bank with which said deposit had been placed, stating that he was informed that the option contract had been executed by appellee Naylor, demanding that appellant Parker close up said purchase by executing additional contracts which he inclosed with said letter, and by these acts and others ratified and confirmed the said contract and estopped himself to deny the authority of appellee Naylor to execute the contract for him.

Appellee Naylor excepted generally, pleaded the general issue and specially in substance as follows: That in January, 1909, prior to the signing and delivery by him of the contract sued on, he was the owner of an undivided half interest in the lands in question; that appellee Lile was the owner of the other half interest, and that in the month of January, 1909, appellee Naylor was approached by appellant Parker, who inquired of him the price and terms upon which appellees were willing to sell their interest in said lands; that appellee Naylor, without knowledge and consent of Lile, or without any authority from Lile, proposed to accept the sum of $3 per acre over and above the amount then due and owing by himself and Lile to Sherman county, or a gross sum to appellees of $52,145; that the terms of said offer were substantially that appellant Parker was to pay the said sum of $15,000 in cash and execute and deliver to appellees his certain promissory notes in the amounts and payable at the times agreed upon, and in addition thereto was to become liable and bound to assume the payment to said Sherman county the amount of money then due and owing said county; that at said time said Parker did not say whether he would or would not purchase said land, and no final agreement was reached between said appellant and appellee Naylor; that at said time he told said Parker that he (Naylor) only owned an undivided half interest in the land; that Parker well knew that the offer on the part of appellee to sell the land was conditioned upon the agreement of said Lile, and that any sale that might be made was conditioned upon and subject to said Lile's approval, and it was then and there understood and agreed between Naylor and Parker that, before any offer on his part to sell should become binding upon him or upon Lile, it would have to meet the approval of Lile; that thereafter on the 17th day of February, 1909, Parker again approached Naylor with reference to the purchase of lands and requested an option for 15 days, and, if at the expiration of said 15 days he desired to purchase, he (Parker) would do so, upon the conditions, at the price, and upon the terms theretofore agreed to between himself and the said Naylor; that Parker took from his pocket some papers which he informed Naylor were contracts, written in duplicate, to be executed by himself, Parker, and the appellees, and then and there assured appellee Naylor that said written contracts embodied and contained all the terms, conditions, stipulations, and agreements theretofore forming the tentative agreement made between himself, Parker, and appellee Naylor at said January conference and none other; that, at the time the contracts were exhibited to him, the...