Podolnick v. Hamilton

• Decision Date: 12 July 1961
• Docket Number: No. A-8029,A-8029
• Parties: Earl PODOLNICK et al., Petitioners, v. Mary Jane HAMILTON, Respondent.
• Court: Texas Supreme Court

Page 715

349 S.W.2d 715

Earl PODOLNICK et al., Petitioners, v. Mary Jane HAMILTON, Respondent.

No. A-8029.

Supreme Court of Texas.

July 12, 1961.

Owens & Purser, Austin, for petitioners.

Cofer & Cofer, Austin, for respondent.

CULVER, Justice.

M. W. Hamilton and wife, Mary Jane Hamilton, entered into a contract with Earl Podolnick and wife and Harold C. Novy for the purchase of certain real estate for a consideration of $21,000 as follows:

'a. Five Thousand and no/100 Dollars ($5,000.00) cash, which purchasers have deposited with sellers, said sum to be applied on the total consideration of this transaction when consummated; if this transaction is not consummated, said sum shall be delivered in accordance with the terms of this contract.

'b. The balance in the sum of Sixteen Thousand and no/100 Dollars ($16,000.00) to be paid in cash upon the consummation of this transaction.'

The contract also stipulated that 'if purchasers default on this contract, the earnest money deposited with sellers shall be forfeited as liquidated damages for such default.'

In response to a request from Hamilton that additional time be granted him to pay the balance due under the contract Podolnick by letter allowed an additional seven days to pay the balance in full or forfeit the down payment. On the day before this extension expired Mrs. Hamilton filed this suit seeking to disaffirm the contract and recover the $5,000 on the ground that she was a married woman and that her separate funds were used to make the down payment.

The trial court denied Podolnick's motion for summary judgment and granted that of Mrs. Hamilton. That judgment has been affirmed by a divided court. 337 S.W.2d 376. The Court of Civil Appeals relying on Rutherford et al. v. Alamo Abstract & Title Co. et al., Tex.Civ.App., 185 S.W.2d 498, wr. dism., held that Mrs. Hamilton was entitled on her plea of coverture to rescind the contract and recover her separate funds. We are of the opinion that this ruling is correct, though a decision on this point of law invokes a rather fine distinction, and there seem to be few decisions bearing directly upon the question.

A contract for the sale of land is still executory where a deed conveying the property has not been delivered and accepted. McCall v. Whaley, 52 Tex.Civ.App. 646, 115 S.W. 658, no writ history.

It is undoubtedly the rule that where a married woman has purchased property and paid part of the purchase price she cannot by rescinding the contract recover back that part of the purchase price which she has paid, though she cannot be compelled to pay what she has promised. Pitts et al. v. Elser, 87 Tex. 347, 28 S.W. 518. Nor can damages be recovered against a married woman over a plea of coverture for her failure and refusal to perform her contract. Guest v. Cox, Tex.Civ.App., 34 S.W.2d 301.

On the other hand we think it has been correctly held that where she has contracted to purchase real property and has put up a sum with a stakeholder as earnest money she can disaffirm the contract and on a plea of coverture recover the earnest money from the hands of the stakeholder where the same was her separate property. Rutherford v. Alamo Abstract & Title Co., supra. See also Fine v. Lutz et vir, Tex.Civ.App., 278 S.W.2d 889, wr. ref. n. r. e.

Thus it seems clear that if the $5,000 was paid to the sellers and received by them as part of the purchase price the plea of coverture could not be availed of by Mrs. Hamilton to recover the money, but if it...