Powers v. Sunylan Co., Motion No. 9061; 1145-5439.

• Decision Date: 30 April 1930
• Docket Number: Motion No. 9061; 1145-5439.
• Citation: 27 S.W.2d 129
• Parties: POWERS v. SUNYLAN CO. et al.
• Court: Texas Supreme Court

27 S.W.2d 129

POWERS v. SUNYLAN CO. et al.

Motion No. 9061; 1145-5439.

Commission of Appeals of Texas, Section B.

April 30, 1930.

Error to Court of Civil Appeals of First Supreme Judicial District.

On motion for rehearing. Motion overruled.

For former opinion, see 25 S.W.(2d) 808, which reversed 14 S.W.(2d) 894.

Johnson & McConnell, of Houston, for plaintiff in error.

Niday & Carothers, of Houston, for defendants in error.

RYAN, J.

The honorable Court of Civil Appeals, in reversing the judgment of the trial court, did not find it necessary to pass upon an assignment of error urged by defendants in error, who were appellants in that court, and defendants in the trial court, complaining of the trial court's refusal to submit to the jury the following requested issue: "Do you or not believe from the evidence that the plaintiff R. E. Powers ceased making the monthly payments on the contract sued on herein because of his financial inability to continue such payments? Let your answer be `Yes' or `No' as you may find the facts to be."

Having reversed the judgment of the Court of Civil Appeals, and affirmed that of the trial court, without any consideration of that assignment, we are now requested by defendants in error to pass upon it, as they are in the attitude of seeking a reversal of the trial court's judgment on the issue of voluntary abandonment of the contract by plaintiff in error, claimed to have been pleaded in bar in their answer, as follows: "The plaintiff made his monthly payments on said contract, to the Houston National Bank, as therein provided, until January 19, 1927, when he made his last payment of $39.50 and thereafter, without justification and without material or substantial fault on defendants' part, and in violation of his contract, ceased to make said payments to said bank and abandoned his said contract, wherefore he is not entitled to recover herein."

Defendants in error supported their theory of plaintiff in error's abandonment by the testimony of two witnesses (one a defendant in the case) to the effect that plaintiff in error stated to them that he was financially unable to continue the monthly payments—though they could not fix the exact dates when such statements, if any, were so made to them. Plaintiff in error denied making any such statements, and insisted that he ceased payments because he saw that the improvements provided for in the contract were not being made as agreed, and unsuccessfully demanded return of the moneys paid by him, after which he filed this suit.

It is uncontroverted, however, that he continued making his payments, the last on January 19, 1927, after defendants in error had failed to carry out the contract by not widening Sunnyland street and beginning the other improvements in question, on or before September 1, 1926, and prosecuting such work with all due diligence and dispatch.

...