Parks v. Hines

• Decision Date: 04 January 1934
• Docket Number: No. 2918.,2918.
• Citation: Parks v. Hines, 68 S.W.2d 364 (Tex. App. 1934)
• Parties: PARKS v. HINES et al.
• Court: Texas Court of Appeals

Page 364

68 S.W.2d 364

PARKS v. HINES et al.

No. 2918.

Court of Civil Appeals of Texas. El Paso.

January 4, 1934.

Rehearing Denied February 8, 1934.

Appeal from District Court, Dallas County; W. M. Taylor, Judge.

Suit by Mrs. Elsie Scott Hines and others against J. F. Parks and another. Judgment for unnamed defendant. From a judgment in favor of plaintiffs against named defendant, he appeals.

Reversed and remanded.

W. H. Reid and John A. Erhard, both of Dallas, for appellant.

D. L. Whitehurst and A. Leslie Jackson, both of Dallas, for appellees.

WALTHALL, Justice.

Sam G. Hines brought this suit against J. F. Parks and W. G. McCommas on December 21, 1931. Sam G. Hines died pending the suit, and Mrs. Elsie Scott Hines, his widow, and her son, Scott Hines, respectively, executor and executrix under the will of Sam G. Hines, were made parties plaintiffs. After the probate of the will, Mrs. Elsie Scott Hines, being the sole beneficiary or legatee of Sam G. Hines, under the will, the son, upon motion, was dismissed as a party to the suit and Mrs. Elsie Scott Hines prosecuted the suit to its termination.

The record in this case shows that on May 30, 1925, Arthur L. Kramer and C. Weichsel entered into an agreement in writing to the effect that Kramer owns a tract of land known as "Lisbon Acres," consisting of 80 acres, and that Weichsel owned a 160-acre farm adjoining the Lisbon Acres. Kramer and Weichsel in the agreement stipulated for the sinking of an artesian well on the Lisbon Acres, and to erect thereon a well, house, and pumping accessories, etc., all at the expense of each of the two, and that each party shall thereafter own an undivided one-half interest in the well, pumping machinery, etc.; that the electric line should be extended to the site of the well. Other provisions, not pertinent here, are in the agreement.

The record shows that on August 12, 1925, Weichsel, for the consideration stated, entered into a contract in writing to sell to Sam G. Hines and J. F. Parks the 160 acres of farm land mentioned above in connection with the Kramer and Weichsel agreement, and in which contract it is stated Hines and Parks agree to assume and discharge certain obligations of the contract between Kramer and Weichsel concerning the said artesian well, electric light service, and pump equipment, and which contract was thereafter performed by Weichsel conveying to Hines and Parks all of his right, title, and interest to and in the property mentioned in the said contract, the well, and its appurtenances, and the electric light line.

On October 9, 1925, for the consideration stated, Weichsel and wife, by deed conveyed to Sam G. Hines the aforesaid 160 acres of land (161.023 acres) referred to as owned by Weichsel in the said contracts.

Plaintiff alleges, in her petition with reference to the said conveyance from Weichsel and wife to Sam G. Hines, that said deed was made to and in the name of Sam G. Hines, as grantee, with consent of defendant Parks and pursuant to agreements and supplemental agreements, and for the use and benefit of Parks and to the extent of an undivided interest of Parks. The record shows that on October 12, 1925, Sam G. Hines and wife, Elsie Scott Hines, for the consideration stated paid by Parks, conveyed to Parks 79.12 acres of land of the 160 acres formerly owned by Weichsel, and contracted for by Hines and Parks, and part of the land involved in this controversy.

On October 23, 1925, Sam G. Hines, by a conveyance of that date, transferred and assigned to J. F. Parks "an undivided one-half interest in all of his right, title and interest in and to that certain contract and agreement and all of the benefits and interests thereunder, between Arthur L. Kramer and C. Weichsel of date May 30, 1925, and certain property (describing same) fully described in deed of date October 9, 1925, executed by C. Weichsel and wife to J. F. Parks by deed dated October 12, 1925." As a part of said conveyance it is further stated that Parks "hereby assumes and agrees to pay one-fourth of all expense, cost and charges growing out of said contract between said Arthur L. Kramer and C. Weichsel above referred to; and said J. F. Parks further agrees to extend," at his own expense and without cost to the said Sam G. Hines, a four-inch water line and a line for electric light and current service to the western boundary line of the tract of land conveyed by Sam G. Hines and wife to said J. F. Parks, hereinbefore referred to. That conveyance is signed by J. F. Parks and Sam G. Hines.

On December 21, 1929, J. F. Parks and W. G. McCommas entered into a contract in writing in which it is recited that Parks had on that day sold to McCommas the 79.12 acres of land conveyed by Sam G. Hines and wife to Parks and otherwise identifying said land. The contract recites the existence of the contract between Kramer and Weichsel as to the drilling of a well, the expenses incident thereto, the expenses incident to the bringing to said land the electric light and power lines and water mains from said well, referred to in the foregoing conveyances and contracts, and provides that Parks will hold McCommas, his heirs and assigns, and said land conveyed, clear and harmless from all costs and liabilities by reason of the execution and existence of each and all of said contracts, and provides that should Parks desire at any time to extend a water main across said land to its western boundary, or erect the electric light and power line contemplated in said contracts, he should have the right and privilege to do so. Then follow in the record the conveyance from Parks and wife to McCommas of date December 23, 1929, of the 79.12 acres of land referred to in the above contract. Other conveyances and contracts are in the record, but apparently used on the trial as matters of evidence, and we will later refer thereto if necessary to do so.

Plaintiff, in her petition and supplements thereto, alleged that the legal effect of the above referred to conveyances and contracts obligates defendant J. F. Parks to construct or cause to be constructed at his own expense, and upon demand of Sam G. Hines or his heirs, etc., within a reasonable time the water lines, the line for electric light and current service, from said well to a point on the western boundary line of the land conveyed to him in the division of said 160 acres, said agreement and obligation of Parks, within the mutual intent, agreement, and obligation of the parties being then made and becoming a covenant running with the land thus acquired by Parks. Plaintiff states the necessary expense of constructing the same; that Parks has repudiated his obligation and agreement to construct the said water and electric lines, and that McCommas has acquiesced in such repudiation, and each have failed and refused on demand to do so, to plaintiff's damages stated.

Plaintiff prays for judgment establishing said contracts, obligations, and rights declaring same obligatory upon each of defendants, that same be obligations as attached to said land, and compelling defendants to construct or cause to be constructed said water, electric light and current lines, and in the alternative that plaintiff have her damages stated.

Defendant answered by exceptions, general and special, general and special denials; that said contract, the performance of which is insisted upon by plaintiff, is a futile contract and its consideration had failed; that said well was and is useless and no water tower or tank was or has been provided and no machinery for the operation and pumping has been provided, or if provided was taken away; that the contract is ambiguous in the matters stated, that defendants were not parties to the original contract sued upon and never assumed or agreed in writing to be liable for the contracts, debts, or defaults thereunder; that no privity of contract has ever existed between them and plaintiff, and that by reason thereof plaintiff ought not to recover; the statute of limitations of four years (Rev. St. 1925, art. 5527).

On special issues submitted the jury found:

1. J. F. Parks agreed to make the extensions of water and electric lines in question upon demand of Sam G. Hines.

2. It was the intention of Parks and Hines that the agreement to extend said water and electric lines should be a charge upon the 80 acres of land conveyed by Hines to Parks.

3. Sam G. Hines in person or by his representatives made demand upon J. F. Parks for extension of the water and electric lines in question.

4. On January 22, 1930, demand for the extension of the water and electric lines in question was made 5. $668 is a reasonable cost of erecting the electric lines in question across the 80 acres of land conveyed by Hines to Parks.

6. $1,188 is a reasonable cost of erecting the water line in question across the 80 acres of land conveyed by Hines to Parks.

7. $450 is the reasonable value of rights of way for the water and electric lines in question.

8. The contract of October 22, 1925, is not incapable of performance by the parties.

9. The consideration for the execution of the contract of October 23, 1925, between Sam G. Hines and J. F. Parks, failed.

Judgment was entered in her favor and against J. F. Parks in the sum of $2,306, with interest thereon from January 22, 1930. Judgment was entered in favor of W. G. McCommas.

Defendant Parks' amended motion for a new trial was overruled, and he prosecutes this appeal.

Opinion.

By the fifth assignment of error appellant, Parks, submits that the court erred in failing and refusing to render judgment in his favor on the jury's finding that the consideration for the contract sued on had failed.

In response to special issue No. 9, the jury found that "the consideration for the execution of the contract of October 23rd, 1925, between Sam G. Hines and J. F. Parks failed." That contract was the basis of Hines' suit.

The assignment must be sustained. Article...