Rutherford v. Alamo Abstract & Title Co., 11483.
| Decision Date | 24 January 1945 |
| Docket Number | No. 11483.,11483. |
| Citation | 185 S.W.2d 498 |
| Parties | RUTHERFORD et al. v. ALAMO ABSTRACT & TITLE CO. et al. |
| Court | Texas Court of Appeals |
Appeal from 45th District Court, Bexar County; C. K. Quin, Judge.
Suit by Elizabeth Rutherford and husband against Alamo Abstract & Title Company and others to recover amount held by named defendant as earnest money guaranteeing the performance of a contract for sale of realty, wherein certain of the defendants filed a cross-action. From a judgment denying plaintiffs any recovery and permitting a recovery by the defendants on their cross-action, plaintiffs appeal.
Reversed and judgment entered in favor of named plaintiff.
Temple Calhoun and Randle Taylor, both of San Antonio, for appellants.
John C. Hoyo, of San Antonio, for appellees.
This suit was instituted in the District Court of Bexar County by Mrs. Elizabeth Rutherford and her husband, R. R. Rutherford, against Alamo Abstract & Title Company, a corporation, and Wm. F. Hanke, Mrs. Eevie Hanke, Glenn Satterfield and A. A. A. Realty Company, a partnership composed of Clarence L. Garner and Sunny Blevins, seeking to recover the sum of $785 held by Alamo Abstract & Title Company as earnest money guaranteeing the performance of a sales contract wherein the Rutherfords agreed to purchase and Wm. F. Hanke agreed to sell a house and lot located in the City of San Antonio and known as 1546 West Magnolia Avenue.
The trial was before the court without the intervention of a jury and resulted in denying the Rutherfords any recovery, but permitting a recovery by certain defendants upon their cross-action. From this judgment the Rutherfords have appealed.
The facts are largely undisputed. On or about January 27, 1944, Elizabeth Rutherford, joined by her husband, entered into a contract with Wm. F. Hanke in which she agreed to purchase the house and lot known as 1546 West Magnolia Avenue for the cash consideration of $7,850. She agreed to put up the sum of $785 as earnest money. The Alamo Abstract & Title Company signed this agreement, but the reason therefor is not apparent, unless it intended thereby to agree to hold the earnest money pending the completion of the deal. At any rate, the $785 was placed with the Abstract Company and it still has the money in its possession, or did have it until it was tendered into court. The Abstract Company appears in this suit only as a stakeholder. The $785 was out of the separate estate of Mrs. Rutherford. Before the deal was ever consummated Mrs. Rutherford gave notice of her intention to avoid the contract by reason of her coverture and demanded the return of the $785, which was refused, and this suit followed.
It is conceded that the contract was not one for necessities for the wife, or for any other purpose which would make it binding upon her, and was one which she could avoid solely because of her coverture.
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...I would allow him a short time within which to pay the balance due. I wrote the letter on February 24, 1959.' Rutherford v. Alamo Abstract & Title Co., Tex.Civ.App., 185 S.W.2d 498, Er. dism., was a suit by a married woman to recover earnest money paid out of her separate estate to a stakeh......
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Podolnick v. Hamilton
...judgment has been affirmed by a divided court. 337 S.W.2d 376. The Court of Civil Appeals relying on Rutherford et al. v. Alamo Abstract & Title Co. et al., Tex.Civ.App., 185 S.W.2d 498, wr. dism., held that Mrs. Hamilton was entitled on her plea of coverture to rescind the contract and rec......
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...cannot be held to have demonstrated the absence of any issue of fact to be tried. In the case of Rutherford v. Alamo Abstract & Title Co., Tex.Civ.App., San Antonio, 1945, 185 S.W.2d 498, writ dismissed, a similar situation was before the court, though not in connection with a summary judgm......
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