Pollack v. Pollack

• Court: Texas Court of Appeals
• Writing for the Court: Walthall
• Citation: Pollack v. Pollack, 23 S.W.2d 890 (Tex. App. 1929)
• Decision Date: 12 December 1929
• Docket Number: (No. 2345.)
• Parties: POLLACK v. POLLACK.

23 S.W.2d 890

POLLACK v. POLLACK.

(No. 2345.)

Court of Civil Appeals of Texas. El Paso.

December 12, 1929.

Rehearing Denied January 23, 1930.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by Charles Pollack against Henry Pollack. From the judgment rendered, defendant appeals. Affirmed in part, and reversed and rendered in part.

Harry P. Lawther, of Dallas, for appellant.

Coke & Coke and Thomas G. Murnane, all of Dallas, for appellee.

WALTHALL, J.

On January 21, 1911, Henry and Charles Pollack, brothers, entered into this contract:

"Whereas, Henry Pollack and Charles Pollack, of the County and State aforesaid, are jointly seized and possessed of certain property, both real and personal, in the City and County of Dallas, and State of Texas, and are desirous of adjusting and separating their said interests so that the title to said property may be held in severalty by the said Henry Pollack.

"Now, therefore, this agreement entered into this the twenty first day of January, 1911, between the said Henry Pollack, of the one part, and Charles Pollack, of the other part, witnesseth:

"That the said Henry Pollack, for himself and his heirs, for the consideration hereinafter named, doth covenant and agree with the said Charles Pollack that he, the said Henry Pollack, during his natural life, shall and will pay to the said Charles Pollack, for the period of the said Charles Pollack's natural life, the sum of Five Thousand ($5,000.00) Dollars yearly; said sum to be paid to him in monthly payments of $416.66 2/3 ; the first payment to be made to him on the day of the date hereof, and the remainder on the first of each and every month hereafter during the life of the said Charles Pollack.

"It is expressly understood and agreed that upon the death of the said Charles Pollack, the said Henry Pollack surviving, the obligation herein assumed on the part of the said Henry Pollack is to terminate and the said payments are to cease and the heirs, devisees, legatees or personal representatives of the said Charles Pollack are to have no claim against the said Henry Pollack, or upon his property or estate. In the event the said Henry Pollack should die before the death of the said Charles Pollack, the said payments of $416.66 2/3 each month are to cease, and the said Henry Pollack, for himself and his heirs, covenants and agrees with the said Charles Pollack that in lieu thereof he, the said Henry Pollack, will bequeath and devise free of all claims and incumbrances to the said Charles Pollack property, real or personal or both, to the value of One Hundred Thousand ($100,000.00) Dollars to take effect upon the death of the said Henry Pollack, and to be valued at its market value as of the date of the death of the said Henry Pollack; and if the said Charles Pollack and the personal representatives or devisees and legatees of the said Henry Pollack cannot agree upon a division of the estate of the said Henry Pollack so that the property to the value of $100,000.00 may be set aside in kind and in severalty to the said Charles Pollack, then so much of the real or personal property belonging to the estate of Henry Pollack is to be sold as that the proceeds or a portion thereof will be sufficient, either of itself or together with the monies and personal property which the said Charles Pollack is willing to accept, to make up said value of $100,000.00.

"And the said Charles Pollack, in consideration of the covenants and agreements hereinbefore contained on the part of the said Henry Pollack, and which on his part are to be done and performed, doth hereby bargain, sell, transfer and convey to the said Henry Pollack all of his right, title and interest in and to all of the property, both real and personal, where-ever situated, in which the said Charles Pollack and Henry Pollack are now jointly interested, embracing all the said Charles Pollack's interest in the Henry Pollack Trunk Company, the Harris Millinery Company, the Donovan Undertaking Company, and all real estate now and jointly owned by the said Henry and Charles Pollack."

The present suit was filed August 5, 1926, by Charles Pollack against Henry Pollack. The original petition upon which trial was had is in three counts: The first being in trespass to try title to recover an undivided one-half interest in various tracts of land; the second declares upon a trust agreement under which the plaintiff claimed an undivided one-half interest in said lands and also in all personal property owned by defendant for which interest the plaintiff sued; the third count sets up the foregoing contract. This count contains much unnecessary matter, but sufficiently sets up a repudiation and breach of the contract by Henry Pollack and sought to recover damages for such breach.

Judgment was rendered denying plaintiff recovery of any interest in the real and personal property described in the petition, but in his favor for $58,601.22, being the unpaid balance due upon the contract from January 1, 1912, to the date of judgment; also for $31,177.31 accrued interest upon said balance; also for $52,600, as the present value of the $5,000 agreed to be paid annually by defendant to plaintiff under the terms of the contract, such present value being computed upon a 4 per cent. basis and the life expectancy of the plaintiff.

From this judgment the defendant appeals.

A large portion of his brief is devoted to alleged errors which relate to the first and second counts of the petition. They would require consideration if the plaintiff had recovered judgment based upon those counts. But upon those counts the defendant prevailed, and it is wholly unnecessary to consider errors which have no effect upon or relation to the correctness of the judgment rendered based upon the third count.

Therefore, the discussion will be confined to those questions which relate to the adverse portion of the judgment against appellant.

There is no plea impeaching the validity of the contract when made, though there is a plea by defendant that the parties, on May 1, 1919, by mutual agreement, had changed and modified the agreement above quoted, making the payments $250 per month, instead of $416.66 2/3, but the jury found no such new agreement was made, and the evidence supports the finding. Furthermore, if such agreement to modify was made, it was without consideration and not binding upon the plaintiff. Jones v. Holliday, 11 Tex. 412, 62 Am. Dec. 487; Lewis v. S. W. Tel. & Tel. Co. (Tex. Civ. App.) 59 S. W. 303; Bruce v. Laing (Tex. Civ. App.) 64 S. W. 1019; Ellerd v. Ferguson (Tex. Civ. App.) 218 S. W. 605; Elliott Lbr. Co. v. Mitchell (Tex. Civ. App.) 241 S. W. 221.

The evidence discloses that, until January 1, 1912, the defendant paid $416.66 2/3 per month to the plaintiff when, for reasons which need not be stated, he reduced the monthly payments to a very much lower sum, in which reduction the plaintiff acquiesced until some time in 1919, from which time the defendant made monthly payments of $250 until about May, 1926, when he ceased making any payments because the plaintiff refused to give receipts acknowledging such payments to be in full satisfaction. The evidence discloses that, because of the plaintiff's refusal to accept such monthly payments in full satisfaction of his right under the contract of January 21, 1911, the defendant has wholly repudiated and breached the obligation assumed by him under such contract.

As we view this case, the only material questions presented are as to the proper measure of damages for breach of the contract and the issue of limitations as to unpaid balances upon the monthly installments payable more than four years prior to the filing of the suit.

We do not think the plaintiff is to be compelled to resort to successive actions to recover the monthly payments, but, in view of the defendant's complete repudiation of his obligation and breach thereof, the plaintiff "had the right to elect to treat the contract as absolutely and finally broken by the defendant; to maintain his action, once for all, as for a total breach of the entire contract; and to recover all that he would have received in the future, as well as in the past, if the contract had been kept. In so doing, he would simply recover the value of the contract to him at the time of the breach, including all the damages, past or future, resulting from the total breach of the contract. The difficulty and uncertainty of estimating damages that the plaintiff may suffer in the future is no greater in this action of contract than they would have been if he had sued the defendant, in an action of tort, to recover damages for the personal injuries sustained in its service, instead of settling and releasing those damages by the contract now sued on." See Pierce v. R. Co., 173...