Peters v. Clements
| Decision Date | 07 November 1879 |
| Citation | 52 Tex. 140 |
| Parties | THOMAS M. PETERS ET AL. v. Z. C. CLEMENTS. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Cass. Tried below before the Hon. B. T. Estes.
T. J. Campbell, George T. Todd, and George T. Vaughan, for appellants.
I. Admitting the husband to be the legal agent of the wife, yet he could not, as such, delegate his authority to his agent, or any third party, so as to affect the wife's rights by the acts of said sub-agent.
The plaintiffs sue for the land in controversy as the separate property of Naomi Peters, or seek to recover its proportionate part of the purchase-money due on the sale from T. M. Peters to W. F. Connell, averred to be $733 and interest, she having bought the land at sheriff's sale, and being subrogated to the rights of T. M. Peters by virtue of her purchase.
The plea excepted to avers that T. M. Peters, by himself and his agent and attorney, J. J. Peters, renounced and released all claim for purchase-money against the said four hundred and fourteen acres of land, at and before the commencement of his suit against Connell, because the balance of said land was amply sufficient to pay any balance that might be due on the same. (Pars. on Cont., 40, 84; Sayles' Treat., 2d ed., secs. 139, 142; McAlpin v. Cassidy, 17 Tex., 449;Insurance Co. v. Lyons, 38 Tex., 253;Nations v. Thomas, 25 Tex. Supp., 221.)
II. In actions of this character, if the defendant attempts to plead specially the facts constituting his defense, then he must plead fully all the facts; nor will he be allowed to prove facts not alleged. (Sayles' Prac., sec. 717, and authorities.)
The plea failing to allege any consideration-money to the plaintiffs, or either of them, for the alleged waiver of lien, is therefore insufficient, because a consideration, either good or valuable, is essential to the validity of every such contract. (Travis v. Duffau, 20 Tex., 49;Mayfield v. Cotton, 21 Tex., 1; Sayles' Treat., sec. 60.)
III. The court erred in refusing to exclude defendant's testimony on his plea of estoppel.
To sustain the defendant's plea of estoppel, it was necessary to show that the plaintiffs, either themselves or by a duly authorized agent, designedly and directly made a waiver of the lien, either to Day or to Clements; or, at the very least, if they made it to any third person, such as Chamblee, it should also appear that they authorized him directly to inform Day or Clements, and it must appear that the agent's special authority authorized and empowered said agent to make said waiver in said manner, and bind his principals thereby. (Sayles' Treat., sec. 142, and note and authorities; Pars. on Cont., 40.)
[No briefs on file for appellee.]
This case, on a former appeal, is reported in 46 Texas, where will be found a sufficient history of the transactions and an adjudication settling the legal questions there presented. After the reversal the plaintiffs, though still seeking to recover the land originally sued for, amended their pleadings, seeking, as alternative relief, to have the land in the hands of Clements resold to pay its proportionate part of the $2,200 for which, on the former foreclosure, the entire tract was sold to Mrs. Peters, claiming that, to the extent of that $2,200, she was subrogated to the rights of Thomas M. Peters. The court submitted to the jury no other issues than those bearing on the right of plaintiffs to this alternative relief. Confining ourselves to the points made in the brief of counsel for appellants, and passing only on such of those points as seem to us material, we have not found it necessary to consider other questions than those which affect plaintiffs' right to have the land subjected as prayed for. If the court erred in refusing to instruct the jury as to plaintiffs' right to recover the land, the plaintiffs have not presented that question in such a way as to require it to be considered.
The answer of defendant contained the following: “That the said T. M. Peters, by himself and his agent and attorney, J. J. Peters, renounced and released all claim for purchase-money against the said four hundred and forty-one acre tract of land at and before the commencement of his suit against Connell, because the balance of said tract was amply sufficient to pay any balance that might be due on the same.” This part of the answer was excepted to, and, in our opinion, whether it be regarded as setting up a release or an estoppel, it was fatally defective. To a valid release some consideration was essential, and should have been alleged.
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Cooper Co. v. Werner
...and was signed by E. P. Werner, as a member thereof. It was not signed and acknowledged by either of the Werners or their wives. Peters v. Clements, 52 Tex. 140; Hutchenrider v. Smith, Tex.Com.App., 242 S.W. 204; Indemnity Ins. Co. v. Kelley, Tex.Civ.App., 44 S.W.2d 756; Upham v. Banister, ......
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