Roberts v. Armstrong

• Decision Date: 01 June 1921
• Docket Number: (No. 225-3393.)
• Citation: 231 S.W. 371
• Parties: ROBERTS et al. v. ARMSTRONG.
• Court: Texas Supreme Court

Page 371

231 S.W. 371

ROBERTS et al. v. ARMSTRONG.

(No. 225-3393.)

Commission of Appeals of Texas, Section A.

June 1, 1921.

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

Suit by R. A. Armstrong against G. C. Gifford, wherein B. C. Roberts and others, executors of defendant, were made parties defendant in his stead on his death. From judgment for plaintiff, defendants appealed to the Court of Civil Appeals, which affirmed (212 S. W. 227), and defendants bring error. Judgments of the trial court and Court of Civil Appeals reversed, and case remanded for further proceedings on recommendation of the Commission of Appeals.

Hall & Barclay and Kelley & Hawes, all of Wharton, and Williams & Neethe, of Galveston, for plaintiffs in error.

Gaines & Corbett, of Bay City, for defendant in error.

GALLAGHER, J.

R. A. Armstrong, defendant in error, instituted this suit in the district court of Wharton county against G. C. Gifford, and alleged that said Gifford by a contract in writing dated February 21, 1913, in consideration of $1,000, gave him an option on 531 acres of land in said county at $60 per acre, and that said option was to be exercised, if at all, on or before August 1, 1913.

It was further alleged that said contract provided that the consideration for the purchase of said land under said option should be paid one-half cash and the remainder in one, two, three, and four years, and that said Armstrong was given the right to sell said land on or before August 1, 1913, on the same terms, and that said Gifford would make a deed to the purchaser, and that in such event said Armstrong should receive as his compensation the excess of the purchase price over $60 per acre.

It was further alleged that crops of corn, cotton, and other things were grown on the said land during the crop year of 1913, and that the reasonable rental or rental value of such crops when matured was $2,835.89, and that said Gifford received that amount as rentals on said land for said year.

It was further alleged that on July 31, 1913, Armstrong sold said land to G. A. Harrison, and that said Harrison then and there tendered compliance with the terms of said option and demanded a deed to said land, and that Gifford refused to accept said tender or make said deed.

It was further alleged that by such tender and demand Harrison became entitled to the land together with the rentals on said land for the year 1913, that such rentals were in excess of the purchase price of said land under the terms of said option contract, and that it was agreed between Armstrong and Harrison that such rentals should pass to Armstrong as his compensation in the premises.

It was further alleged that after such tender and refusal Gifford conveyed said lands to Harrison, and that it was also agreed by and between Gifford, Armstrong, and Harrison that Armstrong should have a right to sue for and recover such rents in his own name, provided he, or Harrison, or both were entitled on account of such tender and demand under the terms of such option contract to a deed which would have passed such rents or crops.

G. C. Gifford died before a trial was had, and his executors, B. C. Roberts and Mrs. Annie Gifford, plaintiffs in error herein, were made parties defendant in his stead.

Said executors answered by general and special exception, general denial, and by special pleas, alleging, among other things, that said option contract was entered into when only a small portion of said land, if any, had been planted, and before any of such crops were in existence, that nothing was said in the negotiations resulting in said contract about purchasing such crops or the rents therefrom, and that it was never contemplated by the parties that said option contract should cover either the crops or rentals on said land for said year.

They further alleged that said Gifford, without any idea that Armstrong intended under such option contract to claim the crops or rents for said year, proceeded to advance money to the tenants, and that Armstrong allowed him to make such advancements until a few days before the expiration of such option contract.

They especially denied that Harrison offered to comply with the terms of the option contract, and alleged the fact to be that Harrison was unwilling to purchase the land unless Gifford would agree that the rents should go with the land, which he had theretofore declined to do, on the ground that the option contract did not require him to do so.

They further denied that the tender and demand on July 31, 1913, as alleged by Armstrong was made in good faith, and alleged that Harrison never offered to execute the notes required by such option contract, and that Harrison never intended to execute and deliver to Gifford notes for the deferred payments bearing interest from the date of the deed so demanded, but that the tender of the cash consideration was made under an agreement between Armstrong and Harrison that they would divide any recovery which might be had by reason of the refusal of such tender and demand for a deed.

A trial was had before a jury, and under a peremptory instruction of the court a verdict was returned for the defendants, and judgment entered in accordance therewith.

Armstrong appealed, and on hearing of such appeal the judgment of the trial court was reversed, and the cause remanded. 196 S. W. 723.

The executors then filed an amended answer consisting of a general denial, repetition and elaboration of their former pleadings, and certain additional allegations raising issues not made in such former pleadings.

Armstrong excepted to such amended answer and to the several paragraphs thereof on the ground that the opinion and judgment of the Court of Civil Appeals in said cause was res adjudicata of all matters so set up by said amended answer of said executors, and said demurrers were sustained by the court, and the court ordered that no evidence be admitted upon the trial of said cause except as to the value of the crops and rents in controversy.

The judgment of the trial court further recited that the matters in controversy were submitted to the court, and that the court heard evidence only as to the value of the crops received by Gifford after deducing therefrom the amounts received by the tenants and the amounts advanced in raising and gathering the crops, and that it was agreed that rents so collected by Gifford for said year amounted to $2,635.89.

Judgment was rendered in favor of Armstrong against said executors for said sum, with interest from January 1, 1914, and costs of suit.

Said executors appealed, and on hearing of such appeal said judgment was affirmed. 212 S. W. 227.

Said executors applied for and obtained a writ of error, and the case is before us for hearing on said writ.

The Court of Civil Appeals on the first appeal in this case construed the contract sued on adversely to the contention of plaintiffs in error, and held that their testimony failed to establish a defense thereto, and ended the opinion with the statement that the court was not in possession of sufficient facts upon which to render judgment, and that the judgment of the trial court would therefore be reversed, and the cause remanded.

The judgment of the court was as follows:

"This cause came on to be heard on the transcript of the record, and the same being inspected, because it is the opinion of this court that there was error in the judgment, it is therefore considered, adjudged, and ordered that the judgment of the court below be reversed, and the cause remanded for further proceedings in accordance with the opinion of this court."

Plaintiffs in error in their first assignment submit that the Court of Civil Appeals erred in holding that the opinion and judgment on the former appeal so finally and fully adjudicated both the law and the facts as to justify the trial court upon the second trial in striking out their answer containing both general denial and other defensive pleas and rendering judgment for defendant in error without proof of any facts except the value of the rents.

The statement of facts on this appeal shows that the court on the trial here appealed from announced that in his judgment all matters and things in controversy in this cause were fully settled by the opinion of the Court of Civil Appeals, that the judgment and mandate of said court were then presented and considered, a copy of the same being attached to such statement of facts and being made a part thereof, and that no further evidence was introduced or permitted than to show the value of the rents in controversy, and that it was agreed by the parties in open court that the value of such rents was $2,635.89, and that upon such admission and the said judgment and decision of said Court of Civil Appeals the court entered judgment for such rents with interest and costs.

In Magnolia Park Co. v. Tinsley, 96 Tex. 374, 73 S. W. 5, it appeared that the Court of Civil Appeals, on a former appeal of the case, had held that defendants had title to a part of the land in question, and that plaintiffs were entitled to recover a part, but, after reversing a judgment in favor of the defendants, remanded the cause for the sole reason that the jury had not found the number of acres the plaintiffs were entitled to receive. 59 S. W. 629. Of this judgment the Supreme Court said:

"Upon the former appeal the Court of Civil Appeals for the Third Supreme Judicial District did not render judgment declaring the rights of the parties, but said: `The record is not in such condition as will authorize this court to render judgment.' That court decided a question of law which is involved in this appeal, but the decision does not bind the Court of Civil Appeals or this court on this appeal. Kempner v. Huddleston, 90 Tex. 184."

In the case of Kempner v. Huddleston, 90 Tex. 184, 37 S. W. 1066, so cited, the Supreme Court, in answer to a certified question from ...