Prowse v. Whitehurst

• Decision Date: 04 December 1957
• Docket Number: No. 13230,13230
• Citation: 313 S.W.2d 126
• Parties: George PROWSE, Appellant, v. J. F. WHITEHURST et al., Appellees.
• Court: Texas Court of Appeals

Page 126

313 S.W.2d 126

George PROWSE, Appellant, v. J. F. WHITEHURST et al., Appellees.

No. 13230.

Court of Civil Appeals of Texas, San Antonio.

Dec. 4, 1957.

Motion for Rehearing Granted in Part Jan. 29, 1958.

On Second Motions for Rehearing April 2, 1958.

Further Rehearings Denied April 16, 1958, and May 14, 1958.

Fred C. Reeder, Corpus Christi, for appellant.

Lewright, Dyer & Redford, J. R. Sorrell, Corpus Christi, for appellees.

POPE, Justice.

Plaintiff, George Prowse, sued J. F. Whitehurst and wife and their agent, F. F. Quaile, for damages for the breach of a contract by which plaintiff was to purchase the Whitehurst residence. After a trial by a jury both sides moved for a judgment on the verdict, and the trial court rendered judgment for the defendants. Plaintiff, the purchaser, has appealed on four points. The first three points are that the court erred in admitting certain testimony, and the other point is that the court erred in refusing to render judgment on the verdict for the plaintiff purchaser. By deciding the last point, the others become immaterial.

Mr. and Mrs. Whitehurst, vendors, owned a house and lot in Corpus Christi which they listed for sale for cash with their agent, F. F. Quaile. Purchaser and Quaile negotiated for some time concerning the purchase of the house, and on June 22, 1955, purchaser had his attorney prepare a written sales contract which stated that purchaser would buy the house for $24,500, $6,500 in cash, with the balance payable in installments over a period of twenty years. This constituted an offer to buy. Purchaser executed and delivered this written contract, together with an earnest money check for $1,225, to Quaile, vendors' agent. On June 24th, Quaile took the contract to his principals, the vendors, who were preparing to leave the city. They hastily signed the contract and returned it to Quaile with express instructions not to deliver the contract unless it was changed to provide that the sale must be for all cash. Quaile took the fully executed contract and the earnest money check to the office of the escrow agent, Nueces Abstract and Title Company. He testified that he placed the papers on the side of the desk of one of the officers of that firm and then telephoned Prowse concerning the matter. What happened in the office during and after that phone conversation was in much dispute.

The jury found, in answer to the special issues, that Quaile told purchaser that vendors had signed the contract and that it had been delivered to the escrow agent. They found that purchaser believed and relied upon the statement, and that but for such belief purchaser would not have borrowed $6,500 from a bank with which to make the down payment. These were findings that the vendors had estopped themselves from denying the validity of the contract. The jury also found that the agent actually delivered the contract to the escrow agent. They found that purchaser's damages would be $3,600. The jury also found that the agent, Quaile, interfered with the vendors' performance, that Quaile caused the nonperformance by vendors, that the interference was with intent to commit fraud on purchaser, and that purchaser was entitled to exemplary damages against Quaile in the amount of $4,000. Purchaser urges that these findings entitle him to a judgment instead of the defendants.

However, the jury also found that vendors signed the contract upon condition that it would be changed to provide for all cash, and that the agent, Quaile, did not have apparent authority to waive that condition. There was no finding that purchaser knew about the private instruction that the vendor gave his agent. As stated, the jury found that Quaile actually delivered the contract. Vendors urge that there is no evidence of delivery. The issues in the case, therefore, resolve themselves into two matters: (1) Was there a dispute in the facts about the delivery of the contract by agent Quaile to the escrow agent? (2) If so, does the finding that the contract was executed by vendors upon condition that it would be changed to provide for payment of all cash prevail over the findings that the vendors are estopped to deny the valid delivery of their executed contract?

Vendors' first argument is that the judgment which denied purchaser's claim should be upheld because there was no evidence to support the finding of delivery by agent Quaile without which delivery there could be no contract under any theory. The facts were sharply disputed, and the inferences from the dispute raised a question of fact. Agent Quaile denied a delivery. He testified that after vendors signed the contract, he went to the office of the escrow agent and laid the instrument on the side of the desk of a Mr. John Sparks, Vice-President of the escrow agent company. He said nothing to Mr. Sparks about the contract. He testified that he talked to purchaser by telephone and told him that the trade was not acceptable and must be for all cash, which purchaser said he would arrange. While he was talking, and without Quaile's knowledge, Mr. Sparks signed the escrow agreement attached to the bottom of the contract, and acknowledged receipt of the earnest money check. After the phone conversation, according to Quaile, he told Mr. Sparks there was 'no deal,' and that he did not want the papers delivered under any circumstances unless the contract was changed to provide for all cash. The contract was never so changed. Quaile stated that he left the papers in the custody of the escrow agent. Mr. Sparks, the officer for the escrow agent, testified that Quaile left the papers on his desk but gave him no instructions until after he had signed the escrow agreement at the bottom of the contract. After Quaile concluded his conversation with the purchaser, according to Sparks, Quaile told him there was no deal. Sparks did not remember any conversation about charges in the contract. Sparks stated that Quaile told him, after the phone conversation, and after he had signed the escrow agreement, that Quaile was not delivering the contract. Three days later, Quaile picked up the contract, tore off the signatures, and returned the contract to the purchaser.

The purchaser, however, produced testimony which raised a jury issue on whether the agent in fact delivered the contract. Prowse, the purchaser, testified that during the phone conversation, Quaile said that vendors did not like the idea of installment payments over a period of twenty years. Purchaser testified that he said: "Fred, did they sign the contract?' He said, 'Yes'. I said, 'Have you delivered it to the title company?' He said, 'Yes'. I said, 'We have a contract or don't have? If we don't bring the check to me now." Purchaser was also asked if he was told in that conversation that the deal was not acceptable and he answered, 'No, sir.' Mrs. Prowse, the purchaser' wife, testified that on her husband's instructions she called Quaile earlier on the morning that these matters occurred, but that Quaile had not at that time talked with the vendors. Later in the day, Quaile called Mrs. Prowse and said: 'Mrs. Prowse, you and George have bought yourselves a house. The Whitehursts have signed the contract, and I'll take the papers down to the title company.' This evidence presented a disputed issue of fact. According to Quaile, partially supported by the officer of the escrow agent, Quaile told Prowse that there was no contract until it was changed and that the contract was not delivered. According to purchaser and his wife, the agent told them they had a contract; he told purchaser's wife he was on his way to deliver the contract, and told purchaser that he had delivered it. Whether there was a delivery was a disputed issue, and the jury decided that issue in favor of the purchaser.

The jury further...