Patton v. Rucker

• Decision Date: 31 January 1867
• Parties: CHARLES F. PATTON ET AL. v. NAPOLEON B. RUCKER.
• Court: Texas Supreme Court

29 Tex. 402

CHARLES F. PATTON ET AL.

v.NAPOLEON B. RUCKER.

Supreme Court of Texas.

January, 1867.

Whether there be any evidence, is a question for the judge; whether there is sufficient evidence, is for the jury. Pas. Dig. art. 1464, note 562; 11 Tex. 593;20 Tex. 118, 164, 299.

If there be parol evidence conducing to prove a material issue in the cause, it is error to withdraw the case from the jury.

The fourth division of the 1st section of our statute of frauds reads: “Or upon any contract for the sale of lands, tenements or hereditaments, * * * unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing, signed by the party to be charged therewith, or some person by him thereunto lawfully authorized.” Pas. Dig. art. 3875, note 904. The form of the memorandum is immaterial. A letter containing the necessary particulars is sufficient, but the letter must show a concluded agreement, not an open negotiation. And if the letters constitute a correspondence, the whole may be consulted, and the agreement or real understanding of the parties may be deduced. 21 Tex. 543.

But the court will not decree a specific performance upon a correspondence in relation to land, unless it can collect, upon a fair interpretation of the letters, that they import a concluded agreement.

To conclude such a contract by correspondence, the minds of the parties must not only meet, but they must meet in writing. That is, there must be a sufficient proposal, and an assent to that proposal.

N, at the request of J, wrote a letter to R, to know if he would sell the land in controversy, and on what terms; R replied that he would take $450, upon an accepted draft on N & B, payable at ninety days. J drew the draft, which N & B accepted, and N held it for R, to whom it was shown, and he said it was satisfactory. Both the letters of N and R may be consulted to determine what land was intended.

Not only the two letters, which describe the land and define the terms, must be taken together, but the draft drawn by J in favor of R, and accepted by N and his partner, must be considered in connection with the two letters, and each writing be allowed to explain the other, and the whole will be considered as if blended into one, and signed by the parties.

From the time of acceptance and the offer to deliver the draft to R, the contract became mutual. R could have enforced the payment, and J was entitled to a specific performance for the land.

Where there was no proof that, in pursuance of the agreement, the vendor put the vendee in possession, or authorized him to take possession, the latter cannot enforce specific performance on the ground of his own voluntary entry. Pas. Dig. note 904.

Where the defendant pleads the general issue, and denies the agreement in toto, he cannot plead that, if there was an agreement, it was not in writing. Pas. Dig. art. 904.

APPEAL from Brazoria. The case was tried before Hon. GEORGE W. SMITH, one of the district judges.

Napoleon B. Rucker was the owner of two hundred and fourteen and one-third acres of land, which Charles Patton and John Jones wished to purchase, because it adjoined the plantation of Jones. They proposed to purchase it, and to give the acceptance of Nash, Barstow & Co., at ninety days, for $450, for the land. Rucker, learning this by a letter from Nash, wrote Nash a letter, in which he agreed to these terms, and instructed Nasb to carry out the trade. This was on the 7th December, 1857. The next day, the plaintiffs being notified, they drew their draft in favor of Rucker on Nash, Barstow & Co. for the $450, which the latter accepted, and the plaintiffs, Patton and Jones, went into possession. A few days afterwards, Nash showed Rucker the acceptance, whereat he expressed himself satisfied, and promised to make a deed as soon as he could get his title papers from one Prewitt; but he delayed, and when the deed was demanded he refused to execute it.

The plaintiffs sued Rucker, averring these facts, and charging that Rucker had both the letter and draft; that at its maturity they had cash in the hands of the acceptors to pay it; and they tendered the $450 and interest, and demanded a specific performance; that is, a deed for the land. Rucker, in his answer, denied all about the contract, and that he had ever received the draft or anything else in payment, and he charged that the said Patton and Jones had taken forcible possession of his land, for which he charged rent at $200 per annum. But Nash swore that he wrote Rucker a letter to know if he would sell the land; that Rucker replied by letter, authorizing him to sell; that he still had the letter, but it was mislaid; that he informed Patton and Jones, and they acted on the offer, and drew their draft, as hereinbefore stated; that he showed Rucker the draft, and he approved it; but the draft and blank deed were still in the possession of Nash. Barstow, the partner of Nash, proved the contents of the letter, and that Rucker was shown the draft. Jones agreed to sell the land to one Vincent, who built some cabins on the land, cleared five acres, and cultivated it one year; being then notified by Rucker that he had refused to agree to the terms, Vincent called upon Nash and read the letter, and he declined to carry out his negotiation with Jones for the land. The defendant offered no evidence, except one witness, who swore that the letter read, “I will take $450 for the land;” no more, no less, was in the letter. Both this witness and Vincent doubted if the word “dollars” was there. About this they were not sure. Nash kept no copy of his letter which called forth the reply.

Upon this statement of facts the judge charged the jury as follows: “The plaintiffs failing to show by written evidence any contract of purchase from defendant, and also failing to show they are entitled to have a conveyance decreed them on account of a verbal purchase of the land from defendant, you will find a verdict against the plaintiffs' claim for the land sued for.

The defendant claims rent for the use of the place, and you are charged that if the plaintiffs, or any person under them, entered upon the land and cultivated it in faith of a verbal sale or purchase made with the consent of Rucker, then, so long as the land was used in faith of the contract, you should not allow any pay for rent or use of the premises. But if they entered upon the land, or any other person did with their permission, without any contract, verbal or written, with Rucker or his duly authorized agent, then you should hold the plaintiffs responsible as trespassers, and render a verdict in favor of the defendant for the use of the premises by the plaintiffs, according to the proof in the case.”

The court refused all counter-instructions which looked to a specific performance on the case made. The jury found for Rucker the “land in suit and $50 damages,” for which there was judgment, and from which the plaintiffs appealed.

Thomas G. Masterson, for appellant, stated the case very clearly, and cited 1 Par. Con. 400; 2 Par. Con. 285, 290, 545; Sug. Vend. 97; 2 Kent, Com. 510; Bullard v. Walker, 3 Johns. Com. 60; 26 Wend. 341.

But if the court should hold that the memorandum in writing was not sufficient, then we are entitled to a verdict, under the verbal contract made between E. D. Nash, acting as the agent of Rucker, and Patton & Jones, because they complied with the agreement and went into the possession of the place under the agreement. Rucker will not be permitted to deny Nash's authority, for the reason, that a short time after Nash made the sale, he (Rucker) ratified all that had been done in relation to said sale. And this ratification refers back to the inception of, and embraces the entire contract, from the making of the proposition to the receiving of the draft (accepted) in satisfaction, and the refusal of Rucker now to comply is an attempt on his part to commit a fraud upon the vendees, they having fully complied with their part of the contract. Brock v. Jones, 16 Tex. 461;6 Wend. 112; Story, Agency, § 244; Smith v. Smith, 1 Rich. Eq. 130; 2 Story, Eq. § 763.

Munson & Lathrop, for appellees. Our statute of frauds requires that, in contracts for the sale of land, there shall be some memorandum thereof in writing, signed by the party to be charged therewith, or by some person thereunto lawfully authorized. O. & W. Dig. art. 936. In this case, the appellants have shown no contract or memorandum in writing with appellee for the sale of the land, either signed by himself or any one authorized by him. And they have in no way shown that there was any privity of contract between the plaintiff and defendant.

The instruction was correct. 10 Tex. 116, 137;9 Tex. 372.

COKE, J.

In this case the jury was instructed by the court, that the plaintiffs having failed to show by written evidence any contract of purchase, and having failed to show themselves entitled to a decree on account of a verbal purchase, they must find for the defendant. This instruction is assigned as error. We are of opinion that the assignment is well taken. While it is prohibited to the court to charge or comment upon the weight of the evidence, it is proper and legitimate, where there is no evidence upon a given issue, so to instruct the jury. Whether there is any evidence, is a question for the judge; whether there is sufficient evidence, is a question for the jury. Com. of Carpenters v. Haywood, Doug. 375; Jewell v. Parr, C. B. Doug. 909; Austin v. Talk, 20 Tex. 164;Andrews v. Smithwick, 20 Tex. 118;Mitchell v. De Witt, 20 Tex. 299;Reid v. Reid, 11 Tex. 593. The correctness of the charge, then, depends upon whether there was evidence conducing to prove either one of the propositions relied on by the plaintiffs as entitling them to recover....