Powell v. Hamilton, 2685.

• Decision Date: 19 September 1946
• Docket Number: No. 2685.,2685.
• Citation: Powell v. Hamilton, 197 S.W.2d 540 (Tex. App. 1946)
• Parties: POWELL v. HAMILTON.
• Court: Texas Court of Appeals

197 S.W.2d 540

POWELL v.HAMILTON.

No. 2685.

Court of Civil Appeals of Texas. Waco.

September 19, 1946.

Rehearing Denied November 27, 1946.

Appeal from McLennan County Court; D. Y. McDaniel, Judge.

Action by Tom M. Hamilton against John Rush Powell, independent executor, estate of Richard D. Powell, deceased, to recover attorney's fee for services performed for decedent.From a judgment for plaintiff for $500 with interest, the defendant appeals.

Affirmed.

John B. McNamara, of Waco, for appellant.

F. R. Valentine and J. A. Kibler, both of Waco, for appellee.

LESTER, Chief Justice.

This suit was instituted by appellee, Tom M. Hamilton, against John Rush Powell as Independent Executor of the Estate of R. D. Powell, deceased, to recover judgment for the sum of $500 and interest as an attorney's fee for services rendered by appellee to said R. D. Powell upon an oral contract with the said Powell.Appellee alleged that Powell's wife died, leaving a will in which she devised several pieces of property to persons other than he, the said R. D. Powell; that Powell desired said property and employed appellee to secure it for him, agreeing to pay him $500 for his services when the title to the same was placed in his name and as soon as he could sell some of said property or procure a loan on it.Appellant pleaded the two years statute of limitation and a general denial.

The case was tried before the court without the intervention of a jury.Upon the conclusion of the trial the court rendered judgment for appellee for the sum of $500, with interest at the rate of six per cent per annum from January 1, 1941.The court also, upon request of appellant, filed findings of fact and conclusions of law, in which the court found: "that appellee was employed by R. D. Powell to recover certain property and agreed to pay appellee for his services the sum of $500.00, same to be paid at a future date after the recovery of such property at a time when said property, or any part thereof, was either sold or a loan procured thereon; that appellee complied with his contract of employment; that R. D. Powell died on the 11th day of April, 1939, and he had not prior to his death sold or procured a loan on any of said property or paid appellee any part of his fee; that R. D. Powell left a will which was admitted to probate in McLennan County, Texas, and in which he named his brother, John Rush Powell, independent executor, and his brother qualified as such and is now acting as independent executor of said estate; that after his qualifying as executorhe did, on June 11, 1940, sell part of the property recovered by appellee for the sum of $1000.00; that the contingency upon which payment of said attorney's fee was based occurred on the 11th day of June, 1940, and that said debt became due on that date.Appellee filed suit on July 11, 1940."

The evidence shows that John Rush Powell qualified as executor of this estate on the 6th day of May, 1939.In this courtappellant relies solely on his plea of the two years statute of limitation and seeks to have this cause reversed and rendered on that ground.

In such contracts as this, where no specific time is fixed in which the same is to be performed, the law allows a reasonable time.The greater weight of authorities hold that a reasonable time is a question of fact, or a question of law and fact.17 C.J.S., Contracts§ 503f, p. 1067, says: "What is a reasonable time for performance of a contract which fixes no time depends upon the nature of the contract and the particular circumstances, taking into consideration the difficulties attending it and the diligence used."The case of Hart v. Bullion, 48 Tex. 278, supports the above rule on page 289, wherein it holds: "The contract, as has been previously stated, does not, in terms, fix the time within which Bullion and wife were to make or cause titles to be made to the lands to be conveyed appellant.In the absence of such stipulation, the law allows them a reasonable time to do so.What is a reasonable time depends undoubtedly upon the nature and character of the thing to be done, the circumstances of the particular case, and the difficulties surrounding and attending its accomplishment.As an abstract question, what is a reasonable time for performance may be one of law; but unless the facts upon which its determination depends are admitted, its determination involves a mixed...