Sentry Development Corp. v. Norman
| Decision Date | 30 June 1977 |
| Docket Number | No. 1027,1027 |
| Citation | 553 S.W.2d 664 |
| Parties | SENTRY DEVELOPMENT CORPORATION, Appellant, v. Otto NORMAN et ux., Appellees. |
| Court | Texas Court of Appeals |
Howard D. Pattison, Athens, for appellant.
Rod L. Pirot, Dallas, for appellees.
This case involves the rescission of a contract to sell land. Appellees (hereinafter referred to as the husband and the wife) brought suit to recover $2,000.00 paid to appellant pursuant to a written instrument on alternative grounds (1) that there had been a failure of a condition precedent (approval of membership in a country club with which appellant was associated) which invalidated the contract, and (2) that the contract, if valid, was procured by fraud in the inception. Trial was before the court who rendered judgment for appellee in the amount of $2,000.00 plus interest and court costs, from which appellant has perfected this appeal. No findings of fact or conclusions of law were filed by the trial court.
Appellant brings three points of error complaining that the implied finding of the trial court "that the Appellees' application for membership in the Arrowhead Yacht and Country Club was not approved" was supported by (1) no evidence or (2) insufficient evidence or (3) that such finding was against the great weight and preponderance of the evidence. Before passing upon the points presented we must consider the rules we are bound to follow. Where no findings of fact or conclusions of law are filed we must presume on appeal that every fact issue and such implied findings as were necessary to support the judgment were found by the trial court. Morris v. Texas Elks Crippled Children's Hosp., Inc., 525 S.W.2d 874, 881 (Tex.Civ.App. El Paso 1975, writ ref'd n. r. e.). In passing upon whether there is no evidence to support the judgment we must consider only the evidence favorable to the findings of the trial court, but in passing on the insufficiency of the evidence we consider all the evidence in the record. Richardson v. Holmes, 525 S.W.2d 293, 295 (Tex.Civ.App. Beaumont 1975, writ ref'd n. r. e.). In the absence of findings and conclusions the judgment of the trial court must be affirmed if there is any legal theory which supports the judgment which has support in the evidence. Washington v. Law, 519 S.W.2d 953, 954 (Tex.Civ.App. Houston (14th Dist.) 1975, writ ref'd n. r. e.).
The record reveals that some time early in September of 1973 appellees entered into negotiations with Paul Hendrix, a salesman for appellant, concerning the purchase of a lot in the Arrowhead Subdivision of Henderson County, Texas. The couple was looking for a retirement home, and the husband was particularly looking for a place to play golf. Hendrix told the husband that he was "setting up the golf course" near the lots in question. The course was to be eighteen holes long, and set up through the Arrowhead Yacht and Country Club. There were also plans for "the addition and building of a very nice club house which would be adequate." Hendrix told the husband that "nine holes at least" were planned for "spring of the next year." Tennis courts were also planned. These plans were confirmed in conversations with Alan D. Whatley, the president of appellant. On September 13, 1973, a contract for the sale of one of the lots in the subdivision was entered into between appellant and appellees, such contract being signed by both Hendrix and Whatley. The contract stated it was "subject to approval of application for membership in ARROWHEAD YACHT & COUNTRY CLUB which application is expressly made a part hereof." On September 15, 1973, appellees deposited a check for $2,000.00 with appellant as a "down payment." The husband testified that subsequent to this deal he had worked with Hendrix in his spare time to promote membership in the club.
As to approval of his membership in the club, the husband filled out an application for membership which was signed for approval by "A....
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...sole judge of the credibility of the witnesses and the weight to be given to their testimony. Sentry Development Corp. v. Norman, 553 S.W.2d 664 (Tex.Civ.App. Tyler 1977, writ ref'd n. r. e.); Johnson v. Buck, 540 S.W.2d 393 (Tex.Civ.App. Corpus Christi 1976, writ ref'd n. r. Plaintiffs sou......
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Donahoe v. Allen, 8519
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