Paxton v. Spencer

• Decision Date: 21 December 1973
• Docket Number: No. 794,794
• Citation: 503 S.W.2d 637
• Parties: John G. PAXTON, Appellant, v. Emory M. SPENCER et ux., Appellees.
• Court: Texas Court of Appeals

Page 637

503 S.W.2d 637

John G. PAXTON, Appellant, v. Emory M. SPENCER et ux., Appellees.

No. 794.

Court of Civil Appeals of Texas,

Corpus Christi.

Dec. 21, 1973.

Thomas M. Andrews, Ellis & Andrews, Aransas Pass, for appellant.

Allen Wood, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellees.

OPINION

BISSETT, Justice.

This is a suit for specific performance of a contract to convey real estate. John G. Paxton, the buyer, hereinafter called 'Paxton', sued Emory M. Spencer and wife, the sellers, hereinafter called 'Spencer', for specific performance of a contract to convey four tracts of land on Copano Bay, in Aransas County, Texas. After a trial to a jury, a take nothing judgment was rendered which denied specific performance. We affirm. Paxton, in his appeal, contends that the trial court erred in overruling his exceptions, in admitting certain testimony over his objections into evidence, in overruling his objections to the charge and in commenting on the evidence.

The contract which is sought to be enforced is in the form of a letter, dated February 24, 1971, written by Paxton, and addressed to Spencer. The introductory paragraph reads, in part, as follows:

'The purpose of this letter is to set forth in writing my understanding of the basic terms of our agreement pertaining to the proposed purchase of certain property owned by you, such property being identified as Parcels #1, #2, #3 and #4 on the plot attached hereto. . . .'

Paragraph 7 contains the following statement:

'It is recognized by Seller that Buyer intends to use the property for a mobile home subdivision. . . .'

Spencer, after demand for the deed made subsequent to April 1, 1971, refused to execute and deliver the same. Paxton then brought suit to enforce specific performance of the contract by requiring Spencer to convey to him by 'General Warranty Deed, the title to all that certain land and premises in Aransas County, Texas, being hereinafter referred to as Parcels No. 1, No. 2, No. 3 and No. 4', or in the alternative, that he be awarded damages in the amount of $33,257.46.

Spencer denied generally the allegations contained in Paxton's petition, and pleaded, among other defenses, that the execution of the contract was induced by fraud on the part of Paxton, that the contract is too uncertain to entitle Paxton to specific performance, and that Paxton does not come into court with clean hands and is not entitled to the equitable relief of specific performance.

The jury, in response to the special issues submitted, found in substance: 1) that prior to the execution of the contract, Paxton stated to Spencer that the mobile home subdivision would be a first-class subdivision, that such statement was false, that at the time Paxton made the statement he did not intend to put on a first-class subdivision, that Spencer relied upon Paxton's statement, and that Spencer would not have signed the contract if the statement had not been made; 2) that prior to the execution of the contract, Paxton told Spencer that he had 'much experience' in putting on superior-type subdivisions, that such statement was false, and that Spencer relied on the statement; 3) that prior to the execution of the contract, Paxton told Spencer that he had ample finances to put on such a subdivision, that such statement was false, that Spencer relied on such statement, that Spencer would not have signed the contract had such statement not been made, and that it was apparent at the time Paxton made demand on Spencer for delivery of deed that he did not intend to put on a first-class mobile home subdivision; 4) that Paxton expended $15,000 .00 for the 'necessary expenses' in developing the mobile home subdivision described in the agreement dated February 24, 1971; and 5) that Paxton was entitled to $3,000.00 for his time and efforts reasonably spent in developing the subdivision.

Plaintiff levelled special exceptions at the allegations contained in paragraphs 2, 4, 5 and 6 of Spencer's answer, for the reason that 'the same are not sufficient in law to excuse defendant's non-performance'. They were overruled by the trial court, and Paxton complains of such ruling by points of error Nos. 1, 2, 3 and 4. Rule 90, Texas Rules of Civil Procedure, provides that every defect, omission, or fault in a pleading which is not specifically pointed out by a motion or exception in writing and brought to the attention of the trial judge before the charge to the jury, in a case tried before a jury, shall be deemed to have been waived by the party seeking reversal on such account. Rule 91, T.R.C.P., provides that a special exception shall not only point out the particular pleading excepted to, but 'it shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations in the pleading excepted to'. The exceptions in question do not point out with particularity any reason for the conclusions stated. They do not meet the test imposed by the Rules. Therefore, the trial court properly overruled them. Kelly v. Wright, 144 Tex. 114, 188 S.W.2d 983 (1945). Such exceptions are nothing more than general demurrers and violate Rule 90. Huff v. Fidelity Union Life Ins. Co., 158 Tex. 433, 312 S.W.2d 493, 499 (1958). Spencer's allegations that certain representations were made to him by Paxton which were material, false, and known to be false by him, and were made for the purpose of inducing him (Spencer) to execute the contract, and that he relied upon such representations in executing the contract, are authorized by the Business and Commerce Code, in § 27.01, V.T.C.A. thereof.

Paxton further asserts that it was error for the trial court to overrule his special exceptions to paragraphs 7 and 8 of Spencer's answer because, in each instance, 'the statements contained therein are conclusions of law'. The points are without merit. Spencer pleads, in paragraph 7, that 'plaintiff, having made the representations hereinbefore pleaded and having failed to comply with those that are promissory, is estopped to demand specific performance of the contract'. An examination of the answer reveals that Spencer pleaded every element of equitable estoppel required to be alleged to support a plea of estoppel in pais. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). Paragraph 8 alleges that the contract 'is too ambiguous, vague, incomplete and uncertain to entitle plaintiff to the relief of specific performance'. The exceptions do not comply with the requirements of Rules 90 and 91. Moreover, Rule 45(b), T.R.C.P., permits the pleading of a legal conclusion provided the opposite party is not misled thereby. Texas Employers' Insurance Association v. Price, 336 S.W.2d 304 (Tex.Civ.App.--Eastland 1960, n.w.h.); Hankey v. Employer's Casualty Co., 176 S.W.2d 357 (Tex.Civ.App.--Galveston 1943, n.w.h.). In this case, Spencer's pleadings sufficiently informed Paxton of the reasons why the contract was allegedly uncertain. Paxton had the same information as to the provisions of the contract as did Spencer . Paxton pleaded that the contract be enforced. Fair notice of Spencer's defenses was given when the answer in its entirety is considered. Furthermore, Paxton has not demonstrated that he suffered any harm by the court's rulings. (Rule 434, T.R.C.P.) Points of error Nos. 7 and 8 are overruled.

The remedy of specific performance is purely equitable in nature and is governed exclusively by the maxims and principles of equity. Steves v. United Services Automobile Association, 459 S.W.2d 930 (Tex.Civ.App.--Beaumont 1970, writ ref'd n.r.e.); Ferguson v. Von Seggern, 434 S.W.2d 380 (Tex.Civ.App.--Dallas 1968, writ ref'd n.r.e.). Suit for specific performance, being a matter of grace, is not one of absolute right. Johnson v. Karam, 466 S.W.2d 806 (Tex.Civ.App.--El Paso 1971, writ ref'd n.r.e.); Rutherford v. Nichols, 253 S.W.2d 306 (Tex.Civ.App.--Eastland 1952, writ ref'd n.r.e.). In order to be entitled to specific performance of a contract, the person seeking such relief must come into court with clean hands, and 'the contract must be equitable, perfectly fair in all its terms and free from any misrepresentations, fraud, mistake or misapprehension'. Inman v. Parr, 311 S.W.2d 658, 709 (Tex.Civ.App.--Beaumont 1958, writ ref'd n.r.e.). For a carefully detailed and comprehensive enumeration of well established guidelines relating to the equitable remedy of specific performances, see Nash v. Conatser, 410 S.W.2d 512 (Tex.Civ.App.--Dallas 1966, n.w.h.).

Paxton does not complain of the failure of the judgment to award him the sum of $15,000.00 which the jury found that he paid for necessary expenses incurred in putting on the subdivision, nor does he complain of its failure to award him the $3000.00 to which the jury said he was entitled for his personal time and efforts reasonably spent in developing the subdivision. He does not attack any of the jury findings which are favorable to Spencer by points of error. His basic contention is that the contract sought to be enforced is not a contract to construct a mobile home subdivision, but is nothing more than a contract for the purchase and sale of land. He argues that the introduction in evidence of testimony relating to conversations between him and Spencer which were had prior to the execution of the contract and of Spencer's understanding of the agreement between them violated both the parol evidence rule and the extrinsic evidence rule because such testimony varied the terms of the written contract that was subsequently signed by them. He does not, however, have such a point in his brief. But, he does bring forward points of error complaining specifically of the trial court's actions in allowing the introduction of evidence relating to whether there was a meeting of the minds of the parties, the involvement of Paxton with one Joe B. Novotney, Spencer's interpretation of the contract,...