Scott v. Lott

• Decision Date: 01 November 1922
• Docket Number: (No. 6795.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 247 S.W. 685
• Parties: SCOTT et al. v. LOTT.
• Court: Texas Court of Appeals

247 S.W. 685

SCOTT et al. v. LOTT.

(No. 6795.)^*

Court of Civil Appeals of Texas. San Antonio.

November 1, 1922.

On Motion for Rehearing November 28, 1922.

On Second Motion for Rehearing January 31, 1923.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Action by G. R. Scott and others against Wm. C. Lott. Judgment for defendant, and plaintiffs appeal. Affirmed and rendered, on condition of filing remittitur.

C. A. Davies, of San Antonio, and Boone, Pope & Savage, of Corpus Christi, for appellants.

Don A. Bliss and Lewright & Lewright, all of San Antonio, for appellee.

COBBS, J.

On October 19, 1918, the appellants filed this suit to recover the principal, interest, attorney's fees, and protest fees on the two Lott notes, and sued out an attachment alleging statutory grounds. A writ was issued in pursuance thereof and levied on W. C. Lott's undivided one-half interest in a tract of land out of block No. 16, N. C. B. 418, and on his undivided one-half interest in another lot known as Avenue C property, all in San Antonio, Tex.

A motion was filed to quash this levy, which was sustained by the court on March 8, 1919, and therefore another attachment was sued out by appellants on same day and levied upon the last-named property. It does not appear that any disposition was made of this attachment by the court, if any was made. This case was finally tried on the alleged compromise agreement between the parties. As the pleadings originally stood on the part of appellants, it was a suit to recover on promissory notes, and, on the part of appellee, it was an effort to recover by way of cross-action a large sum of money for damages, both actual and punitory, based upon the alleged wrongful suing out by appellants and causing the issuance and levy of attachment liens upon appellee's land, with malice and without probable cause.

While the cause was about to be called for trial, having been set down for trial on the 13th day of December, 1920, on the issues then made in the case by the pleadings, it was passed by the court to enable the parties to compromise their differences. So on December 13, 1920, the parties passed the trial to arrange the details of the settlement, and agreed upon a compromise or settlement of all issues involved.

The quitclaim deed from W. E. Pope, as agreed upon, was signed conveying the Bee county land to appellee; a quitclaim deed from B. L. Lombard to the Bee county land; the two notes signed by appellee, one for the $300 and the other for $2,850, and the deed of trust of appellee executed on the one-half interest in the property on Avenue C. San Antonio, Tex., all duly signed and executed, together with other various original papers, which were delivered to and left with C. A. Davies, the agreed trustee, to hold for both parties. Appellee did not go on further with the agreement for the reason he learned that the Welder first lien amounted to $21 per acre instead of $15; in fact, there remained nothing for him to do to complete the agreement for the other things to be done to complete the agreement were to be done and performed by appellants. So appellee demanded that appellants comply with the contract and tender him the deed with the extension from Welder, showing there was only a prior lien thereon of $15 per acre against the land and the back taxes, and appellee stated and reiterated his willingness to go on with the compromise agreement, and demanded that appellant complete his part within the stipulated 30 days. Appellee never repudiated the agreement or refused to comply with its terms but insisted upon the enforcement all the time.

This case was tried with a jury upon special issues, and upon their findings the court entered a judgment in favor of appellee for the sum of $4,451, together with 6 per cent. interest per annum from date of the judgment against appellants.

Special issues were submitted to the jury as follows: Bearing in mind the foregoing instruction, you will please answer the following questions:

Question No. 1. Did the parties to this suit make an agreement of settlement on or about December 13, 1920, such as is alleged in paragraph No. 2 of defendant's first supplemental answer herein? Answer this question "yes" or "no." Answer: Yes.

Question No. 2: What was the reasonable market value per acre, of fractional section No. 99, on December 13, 1920? Answer stating the amount per acre. Answer: $31.

If you have answered question No. 1 in the affirmative, then you need not answer question No. 3 and the questions that follow, but if you have answered question No. 1 in the negative, then answer question No. 3 and the questions that follow. Then followed special issues Nos. 3, 4, 5, 6, and 7 not necessary to set out here because not answered under the direction of the court. The charge of the court eliminated all the issues except that involving the question of the compromise and measure of damages.

In view of the fact that the case was tried upon appellee's theory seeking to enforce the compromise agreement and settlement, or, in the alternative, for damages by reason of the breach thereof, we are confined to the determination of that question and the issues growing out of it.

Appellee files many objections urging this court not to consider any of appellants' assignments and propositions. There is much merit in the motion. We shall, however, consider the same, though the assignments and propositions are not very satisfactory, but the alleged erroneous questions of law involved are sufficiently raised. On account of relying upon and electing to enforce the agreement to compromise, the appellee thereby in fact abandoned his cross-action for damages and stands upon the compromise settlement and suit by cross-action for its enforcement, or, in the alternative, for the damages caused by the breach, and incidentally to offset the amount he owed for the land, which left the appellants with the right to recover on the obligations sued upon, as a matter of course, which appellee admits. Appellee alleged, in substance, the land (Bee county) was to be conveyed to him with a prior lien only thereon due Welder, agreed upon not to exceed $15 per acre, and the compromise settlement was made on that basis. Ascertaining afterwards that the debt due thereon amounted to about $21 per acre, appellee was not called upon to go further with the contract until the amount of the Welder lien was reduced to $15 per acre, which, on December 13, 1920, appellants represented the land stood charged with, but at the time of filing this cross-action exceeded $23 per acre. Appellee averred his readiness and willingness to perform the terms of the compromise. He prayed for specific performance and in the alternative for the damages he sustained by reason of their failure to perform, which he alleged to be $5,000. The cross-action does not definitely allege and show the separate items of damages that created that sum, except in the most general way, but good against a general demurrer.

Appellants challenge, in their first point, the right of appellee to recover: (a) Because he admitted the execution and delivery of the notes; (b) because, on the submission of the case, he abandoned all defenses of counterclaim and relied upon the alleged compromise, which was wholly executory and which he had declined to execute, and (c) he sought specific performance of the alleged compromise and in the alternative general damages for failure to comply with its terms, when at the very time he sought relief had placed himself in a position where he could not perform the compromise by conveying the Avenue C property covered by the deed of trust, securing his notes, provided for in the compromise agreement. In regard to that part of the first point and the first proposition raised on the first to third assignments, the fact that appellee admitted the execution and delivery for value of the notes sued on, in no way affected the appellants' rights to seek the performance of the contract or damages in the alternative, because the legal and only effect of that admission was to permit a judgment to be entered thereon without further proof in favor of appellants.

We agree with appellants that, by reason of the action of appellee in relying solely on the alleged compromise, he abandoned the various defenses and counterclaims upon which recovery was first sought on the various grounds formerly pleaded, in the cross-action, but that did not prevent him from relying upon the alleged compromise subsequently made, though it may be admitted such was executory.

And we agree fully with what is held in the authorities cited by appellants, among other things, to the effect that the judgment must conform to the pleadings. R. S. 1994; Menard v. Sydnor, 29 Tex. 257. The judgment here does substantially, as stated, conform to the pleadings, and that appellee has sufficiently pleaded and proven that he has offered to carry out and perform the contract and still stands ready and willing to do so, but that appellants have breached their contract in the most important essential, in not relieving the land of the Welder lien upon it in excess of $15 per acre. 5 Pomeroy Eq. Jur. (2d Ed.) §§ 2227, 2228; Gober v. Hart, 36 Tex. 139; Ferguson v. Sanders (Tex. Civ. App.) 176 S. W. 784; Fink v. Hough (Tex. Civ. App.) 153 S. W. 679. And in such suits, upon the breach of an executory contract to compromise, he had the election of seeking, either to enforce that, or be remitted to his original cause of action pleaded. 8 Cyc. 536; 12 Corpus Juris, pp. 315-357; Tomson v. Heidenheimer (Tex. Civ. App.) 40 S. W. 425, 5 R. C. L. p. 895, § 18, and page 901, § 23.

In this suit on the part of appellee it was an election of the alternative for damages for which appellee is held bound. Blythe v. Speake, 23 Tex. 429; Grabenheimer v. Blum, 63 Tex. 374; Greenwall Theatrical Circuit Co. v. Markowitz, 97 Tex. 479, 79 S. W. 1069, 65 L. R....