Penn v. Texas Yellow Pine Lumber Co.

• Decision Date: 10 March 1904
• Citation: Penn v. Texas Yellow Pine Lumber Co., 79 S.W. 842, 35 Tex. Civ. App. 181 (Tex. App. 1904)
• Parties: PENN v. TEXAS YELLOW PINE LUMBER CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

79 S.W. 842

PENN v. TEXAS YELLOW PINE LUMBER CO.^*

Court of Civil Appeals of Texas.

March 10, 1904.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by John C. Penn against the Texas Yellow Pine Lumber Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Andrews & Ball, for appellant. Coleman & Abbott and E. P. & Otis K. Hamblen, for appellee.

PLEASANTS, J.

Appellant brought this suit against the appellee to enforce specific performance of the following contract for the sale of land:

"Houston, Texas, December 6, 1902. Mr. John C. Penn: I agree to convey to you the 6,100 acres under consideration, in Tyler county, for $1.62½ per M feet for the standing timber on said land; one-third cash, one-third in one year, and one-third in two years, vendor's lien and 6 per cent. interest; you to appoint an estimator and I one, and they to agree, and should they fail to agree they to appoint a third, whose decision shall be final, and you to agree not to buy west of Cypress and Mill Creek; $2,500.00 forfeit money to put up by you, to be closed in forty days. I will furnish abstracts showing good titles to said land. No timber to be cut unless paid for before cutting and indorsed on vendor's lien notes. J. I. Campbell, Pres., Texas Yellow Pine Lumber Co.

"Houston, Texas, December 6, 1902. Mr. J. I. Campbell: I have accepted the proposition of which the above is a copy, and have handed you, through Mr. J. M. Coleman, the $2,500.00 mentioned as forfeit money. John C. Penn."

The petition describes several surveys of land in Tyler county, Tex., aggregating 6,100 acres, and, after setting out the contract above copied, alleged as follows:

"That said writing did not state in minute detail the contract between the parties, nor was it so understood or intended by the parties. It was and is a memorandum of the contract so made between the parties, and plaintiff alleges that both parties to said contract fully and mutually understood said contract to be and mean, and the memorandum thereof in writing to be and mean, in detail and in substance, and in fact, as hereinafter stated, as follows:

"(a) That the land referred to in said contract, and designated therein as `the 6,100 acres under consideration, in Tyler county,' was and is, and was and is mutually understood between the parties to be, the same lands hereinabove described; that the lands hereinabove described were the lands under consideration, in Tyler county, comprising 6,100 acres, the title to which stood in the name of the defendant, and the same were and are the only lands ever under consideration between the parties to this suit in negotiation of sale, and were and are the same lands referred to in said contract of sale; that the plaintiff and the defendant, the defendant acting through its officers and agents, had, for some days prior to the signing of the contract hereinabove set out, been considering the purchase and sale of said lands hereinabove described; that the defendant, acting as aforesaid, had taken a map to Tyler county, spread it out before and shown it to the plaintiff, and pointed out and designated thereon the different surveys and parts of surveys which the defendant desired to sell and the plaintiff desired to buy, stating definitely and specifically in each instance the original survey, the number of acres owned therein by the defendant, which it desired to sell to the plaintiff, its location in said survey, and pointing out and designating each tract separately, particularly, and specifically; that the defendant, acting as aforesaid, also furnished to the plaintiff during said negotiations, and prior to the signing of said contract, a written statement giving the name of each survey, and the number of acres in each survey, which the defendant desired to sell and the plaintiff wished to purchase, and that in every instance and on every occasion the defendant designated to the plaintiff the identical lands described in this petition, and none other; that the defendant and plaintiff never negotiated concerning any other lands, and never had any other lands under consideration than those hereinabove described; that, after the making of said agreement and contract, the execution thereof, and its acceptance as herein alleged, the defendant, acting in pursuance thereof, furnished to the plaintiff abstracts of title to the various tracts of land herein described, describing in the said abstracts each tract of land specifically and particularly, and being in every instance the same land described in this petition, and none other; that, in further pursuance of said contract, agreement, and understanding, the defendant had said lands surveyed out, the lines thereof marked and designated on each and every tract thereof, and that said land comprised the same tracts of land and the same land described herein, as marked and designated by the defendant; that the plaintiff, in pursuance of the performance of his part of the said contract, and with the full knowldege of defendant, its agents and servants, employed counsel to examine the abstracts of title to the said several tracts of land so furnished to him by the defendant, and was required to spend, and agreed, bound, and obligated himself to spend, large sums of money for such service; that the plaintiff further incurred a large expense, and was compelled to spend, and did spend, and...