Redding v. Ferguson

• Decision Date: 02 November 1973
• Docket Number: No. 17444,17444
• Citation: 501 S.W.2d 717
• Parties: Paul FEDDING et al., Appellants, v. William B. FERGUSON, Jr., Appellee.
• Court: Texas Court of Appeals

Page 717

501 S.W.2d 717

Paul FEDDING et al., Appellants, v. William B. FERGUSON, Jr., Appellee.

No. 17444.

Court of Civil Appeals of Texas,

Fort Worth.

Nov. 2, 1973.

Rehearing Denied Dec. 7, 1973.

Friberg, Martin & Richie and Gene Richie, Wichita Falls, for appellants.

Banner & McIntosh and Ed McIntosh, Wichita Falls, for appellee.

OPINION

LANGDON, Justice.

This appeal is from a judgment based upon a jury verdict awarding damages for breach of a contract to purchase approximately 2,000 acres of land located in Archer and Wichita Counties. The parties will be referred to as in the trial court.

On December 30, 1969, the plaintiff, William B. Ferguson, Jr., the appellee herein, filed his original petition against defendants, Paul Redding and Dale Redding, appellants herein, and on or about June 17, 1970, filed a motion for summary judgment. Defendants' answer to this motion had attached thereto affidavits setting out the reasons for their inability to perform in accordance with the terms of the contract in question.

By its judgment of January 6, 1971, the court entered a judgment designated as a partial summary judgment which stated that:

'From such matters as were properly before the Court the Court hereby FINDS as a matter of law:' that (A) a valid and binding option contract was entered into by and between plaintiff and defendants whereby the latter purchased an option to buy plaintiff's lands described therein for a fixed price; (B) the option was exercised within the time prescribed at the price agreed upon; (C) plaintiff was ready, willing and able to complete the transaction; (D) the defendants breached such written contract; (E) plaintiff has prayed for and is entitled to specific performance on said contract of sale by defendants or damages for the breach thereof; (F) no genuine issue of fact exists as to the validity of the option agreement, the defendants exercise thereof, or the ability of plaintiff to deliver or perform on said contract; (G) defendants by pleading and affidavit have judicially claimed and admitted they are unable and it is impossible for them to perform; (H) the sole issue of fact remaining is the sum of damages, if any, sustained by plaintiff by reason of defendants' failure to perform on the contract.

The partial summary judgment was concluded with the following paragraph:

'The Plaintiff heretofore having requested a partial Summary Judgment, the Court accordingly ORDERS, ADJUDGES and DECREES that the Plaintiff be and is hereby given a partial Summary Judgment for Specific Performance upon the written option contract and Defendants' written exercise or acceptance thereof and the Defendants breach thereof and that the matter of damages, if any, to Plaintiff by reason of Defendants failure to perform, be and is hereby reserved for further determination.'

On September 8, 1971, the plaintiff, Ferguson, filed his amended complaint which prayed for damages which was 'reserved for further determination' by interlocutory order of the court above referred to . In his amended complaint the plaintiff asserted that he was and is capable of transferring good legal title to the land involved. Plaintiff tendered his perforance under said contract and by his pleading stated his willingness to perform and sell and convey the property described. Further, in his pleading the plaintiff asserted that defendants have persisted in refusing to abide by and live up to their written contract and agreement and the order of the court to specifically perform. That such failure has resulted in damage because land values have depreciated and the cost of financing has increased from the time of the original contract to the present time . The prayer was for damages as prayed for in the body of the petition.

The defendants by way of answer filed a general denial.

The cause was tried to a jury which found that there were no damages. The court thereafter entered an order overruling the plaintiff's motion for a mistrial and to set aside the verdict of the jury and entered a take nothing judgment against the plaintiff based upon the jury finding. Thereafter the court, following a hearing, granted plaintiff's motion for a new trial based upon jury misconduct which was, 'material and harmful to the Plaintiff . . ..' The plaintiff thereafter filed a supplemental petition and a motion in limine.

The case, again limited to an action for damages, was retried to a jury and the court entered its final judgment on December 6, 1972, based upon the jury's verdict in the sum of $52,049.44, plus interest and costs.

This appeal is from that judgment and is based upon sixteen points of error.

Defendants, by their first point, contend that the court erred in granting the plaintiff's motion for summary judgment for specific performance because there were genuine issues of fact to be resolved . We overrule this point. The validity of the contract and its breach by defendants is undisputed. It is also undisputed that defendants refused to perform their obligation under the valid contract or to comply with the court's summary judgment of specific performance. The appellee abandoned his remedy of specific performance and by his amended petition sought the alternative relief for damages because of defendants' breach of contract and their failure to abide by the interlocutory order of the court for specific performance.

Upon the court's entry of its final judgment for damages the summary judgment was rendered moot. At this point it should be noted that the record clearly reflects that the appellants did not at any time except to or contest the appellee's amended petition seeking the alternative relief in damages and did not raise any question as to the right of the appellee to elect the alternative remedy of damages for breach of the contract. The two trials on the alternative remedy of damages were by implied consent of all parties . In pressing the remedy for damages the appellee thereby abandoned the remedy of specific performance. By so doing the appellee gained no advantage and no legal detriment was suffered by the appellants. See 52 Tex.Jur.2d 526, under 'Specific Performance,' § 8, 'Election of remedies,' and the cases there cited. By obtaining the final judgment for damages only the appellee can no longer demand specific performance of the contract.

' The defense of election of remedies, if relied on to defeat recovery, must be specially pleaded. . . . The defense of election must be presented in the trial court, and cannot be urged for the first time on appeal. . . .' 21 Tex.Jur.2d 210, § 11. See case there cited.

We next consider appellants' points 2, 3, 4 and 5 asserting error on the part of the court in overruling their objection to the testimony of eleven jurors who appeared following the first jury trial in connection with appellee's motion for a new trial which was granted by the court. In connection with these points the appellants contend that inquiry into the mental processes of the jurors during their deliberation was involved, that there was no evidence of any overt act or misconduct of any juror, that such inquiry tended to impeach the jury's verdict and finally there was no evidence offered to show any misconduct. We overrule each of these points.

It is interesting to note that appellants' first five points are not directed at any error in the trial which resulted in the judgment appealed from. Appellants' amended motion for new trial, which was overruled by the court, seeks a new trial on the same damage issue which was resolved by the last trial.

In considering points 2, 3, 4 and 5 and our ruling as to each we have examined the entire record. Such examination reflects that prior to the first trial of the damage cause the defendants had filed their answer to plaintiff's amended complaint and therein denied only the paragraph alleging damage. Defendants did not contest nor dispute the validity of the contract, the willingness and ability of plaintiff to perform, nor its breach by defendants. The sole and only issue in dispute was the amount of damage sustained by the plaintiff. During the trial of the cause both the 'option agreement' and the letter exercising the option were introduced into evidence. The only issue submitted to the jury inquired as to damage. At the conclusion of the evidence the court instructed the jury that all matters introduced into evidence would be taken to them in the jury room. So far as was then known by the court or counsel all instruments introduced into evidence were im fact taken into the jury room. However, unknown to counsel or the court the letter exercising the option which completed the contract was inadvertently not taken into the jury room.

Thereafter, during the course of their deliberations some of the jurors raised the question of whether there was a contract to purchase the land or merely an unexercised option to purchase. The jury read and re-read the option and, not finding the letter exercising the option, came to the conclusion that there was no 'contract' but merely an unexercised option. One of the jurors suggested they call in the Judge and to discuss this problem with him. This was done and 'The Foreman of the jury stated to the Court that the jury desired to know whether the parties to this lawsuit had ever executed a written contract of sale covering the lands involved in this lawsuit.' The Judge discussed the question with counsel. Neither counsel nor the Court were aware that the letter exercising the option was not with the jury and counsel agreed that the court had no alternative but to instruct the jury that they must answer the issue 'from the evidence admitted before them, together with the exhibits before them.' Whereupon the Judge so instructed the jury. (The above was primarily based upon affidavit of the Judge.)

Thereafter, having confirmed their belief that the option was the only instrument upon which this suit was founded,...