Schriewer v. Liedtke

• Decision Date: 19 January 1978
• Docket Number: No. 8057,8057
• Citation: 561 S.W.2d 584
• Parties: R. A. SCHRIEWER et al., Appellants, v. William C. LIEDTKE, Jr., et al., Appellees.
• Court: Texas Court of Appeals

Page 584

561 S.W.2d 584

R. A. SCHRIEWER et al., Appellants,

v. William C. LIEDTKE, Jr., et al., Appellees.

No. 8057.

Court of Civil Appeals of Texas, Beaumont.

Jan. 19, 1978.

Rehearing Denied Feb. 16, 1978.

Alfred L. Deaton, III, Houston, for appellants.

Richard B. Miller, Houston, for appellees.

KEITH, Justice.

This is a suit for specific performance of a contract for the sale of real property. The trial court entered a judgment on a directed verdict for plaintiffs, and defendants have perfected their appeal upon twenty-five points of error.

During 1972, William Liedtke, Jr., and George Jewell acquired approximately 1,040 acres of land in Austin County, Texas. On June 5, 1974, R. A. Schriewer, Trustee, entered into an earnest money contract with William C. Liedtke, Jr., individually, and as trustee, to purchase the property. Prior to that date, the contract terms were negotiated by Schriewer's attorney, Julian E. Weisler, II, and Liedtke's attorney and partner, George Jewell, but the contract was prepared by Weisler.

The contract required that the parties close "on or before one hundred twenty (120) days from the date of the execution of this contract" October 3, 1974. Seller's obligations included: delivering good and marketable title, providing Owner's Title Policy "upon" closing, and keeping five first lien notes and all taxes current. Buyer's obligations included: paying $25,000 earnest money to an escrow agent upon execution of the contract, paying $287,000 cash upon closing, assuming the unpaid balance on five first lien notes, and executing three vendor's lien notes equal to one-half, one-fourth, and one-fourth of the balance of the purchase price to be secured by a second lien. The contract further provided that the buyer was to order an Owner's Title Policy Commitment and Title Report and to make any objections to the title within fifteen days after receiving the report, that the seller was to have thirty days to cure any objections, and then the buyer would have to notify him of his acceptance or rejection of curative work within ten days. The entire contract could be rejected by the buyer only if title failed as to ten percent or more of the acreage; otherwise, the purchase price would be reduced proportionately. There was no provision requiring a current survey.

Within fifteen days after the issuance of the Title Report, Weisler notified Jewell of two objections one involving a 4.86-acre tract and the other involving a boundary line conflict affecting a 32-acre tract and a 33-acre tract and the required reduction if the objections could not be cured. There was some discussion of possibly waiving these objections between Weisler and Jewell, but nothing was put in writing.

In mid-September without notice to plaintiff, Schriewer executed an assignment of his rights under the contract to J. B. Bumgardner, Sr., who had been planning to purchase the property with Schriewer. Schriewer later left for Africa to go on a long-scheduled hunting trip.

Around September 30, 1974, Bumgardner met with Weisler to gather information on the earnest money contract. But, on September 30th, he put Weisler on standby and retained another attorney, William C. Morris, III. He executed a power of attorney to Morris to represent him at the closing.

On October 3, 1974, Jewell received a letter from Morris informing him that he represented one of the principals and warning that if the two title objections were not cured by the closing, the deal would be cancelled.

On October 3, 1974, Jewell delivered the closing papers to the title company in Bellville and copies to Weisler and returned to Houston. Bumgardner and Morris went to the title company that afternoon, arriving shortly before closing time. After briefly reviewing the papers, Morris advised Bumgardner not to sign them. Morris telephoned Jewell and requested that he return to Bellville so that the closing could be completed, but Jewell refused to return since he could not get there during business hours.

On October 7th, Morris sent a letter to the Bellville Abstract Company requesting the return of the $25,000 earnest money to Schriewer, and explaining that the contract was cancelled "since Seller has failed among other things to cure the title objections properly raised that pertain to 10% Or more of the acreage, and since he has refused to furnish us with a staked survey properly documented and certified to its accuracy by a registered engineer or surveyor of the State of Texas which is required to evidence good and marketable title . . . ." Obviously, neither of the reasons assigned was valid.

The parties were unable to reach any amicable agreement in order to close; and, in November 1975, Liedtke and Jewell filed suit for specific performance. The court, after hearing evidence from both parties, granted a directed verdict for plaintiffs. The court decreed that the defendants specifically perform the contract as of October 3, 1974.

In an appeal from a directed verdict, we must determine whether there is any evidence of probative force to raise fact issues on any material questions presented. Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex.1976); Tarkington v. Beneficial Finance Co., 516 S.W.2d 722, 722 (Tex.Civ.App. Beaumont 1974, writ ref'd n. r. e.). We must examine the entire record and consider the evidence that is favorable to the party against whom the verdict was rendered appellants and disregard all contrary evidence and inferences. Henderson, supra (544 S.W.2d at 650); Rogers v. Searle, 544 S.W.2d 114, 115 (Tex.1976); Anderson v. Moore, 448 S.W.2d 105, 105 (Tex.1969); Tarkington, supra (516 S.W.2d at 722). "When reasonable men may differ as to the truth of controlling facts, a jury issue is present." Henderson, supra (at 650); accord, Najera v. Atlantic & Pacific Tea Co.,146 Tex. 367, 207 S.W.2d 365, 367 (1948).

Using the appropriate standards of review, we affirm the trial court's judgment for the reasons now to be stated.

In appellants' first three points of error, they complain that the earnest money contract is too indefinite, uncertain and incomplete with respect to the essential terms of the purchase money notes required therein to support a judgment of specific performance. We disagree.

Specific performance can be decreed if the essential terms of a contract are expressed with reasonable certainty. Johnson v. Snell, 504 S.W.2d 397, 398 (Tex.1973); Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 459 (1943). Absolute certainty is not required. Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614, 615 (1962); Langley, supra (at 459); Wilson v. Beaty, 211 S.W. 524, 527 (Tex.Civ.App. San Antonio 1919, writ ref'd); Phillips v. Campbell, 480 S.W.2d 250, 253 (Tex.Civ.App. Houston (14th Dist.) 1972, writ ref'd n. r. e.).

The contract in question was drawn up by two experienced attorneys, both of whose clients wanted to make a valid contract. Therefore, we will view the contract as valid if we can interpret its terms with reasonable certainty. The contract specified that payments would be made on the purchase money notes as follows:

"Said notes to be executed by Purchaser herein shall provide for said balance to be paid over a term of ten (10) years, with semi-annual payments of principal, plus interest at the rate of eight per cent (8%) per annum of the unpaid balance of said notes."

With a reasonable certainty, we can read this contract to provide for twenty equal semi-annual payments of principal, plus any accrued interest. These terms do not suggest amortized payments. Therefore, we hold that the earnest money contract is valid and enforceable by specific performance.

Having found the earnest money contract to be valid, we do not find it necessary to discuss each of the remaining points of error. It is clear from the evidence that before October 3rd appellant Bumgardner wanted to avoid the earnest money contract because of a sharp decline in land values in the area. He put Weisler, an experienced real estate attorney, on standby and hired Morris, an attorney with little to no real estate experience. Morris sent the letter of October 2nd which specified his two objections to the title before closing two...