Small v. Lang

• Decision Date: 30 March 1951
• Docket Number: No. 15220,15220
• Citation: 239 S.W.2d 441
• Parties: SMALL v. LANG et al.
• Court: Texas Court of Appeals

Page 441

239 S.W.2d 441

SMALL v. LANG et al.

No. 15220.

Court of Civil Appeals of Texas, Fort Worth.

March 30, 1951.

Rehearing Denied May 25, 1951.

Thompson, Knight, Wright, Weisberg & Simmons, and Dan Rogers, all of Dallas, for appellant.

Cantey, Hanger, Johnson, Scarborough & Gooch, of Fort Worth, for appellees.

CULVER, Justice.

Appellant David Small brought this suit against S. R. Lang individually and as independent executor of the estate of Alex Wolf and certain others, d/b/a a partnership under the name of Wolf & Klar. He claims that late in 1940 he was employed by Wolf & Klar and within a few months thereafter, was notified by Lang that the company was to be reorganized, that plaintiff's interest in the business was to be 6% and that plaintiff was to pay $150 to the defendants immediately. He further alleges that 'In confirmation of said agreement defendant Lang gave plaintiff a written notice to the effect that plaintiff's interest was 6% and plaintiff immediately paid to the defendants the sum of $150.' In the alternative it is charged that, if he be mistaken in the foregoing claim, Lang then proposed to him orally that his interest in said company should be in the nature of a profit sharing interest and the plaintiff should pay to Wolf & Klar $150 and continue to work for Wolf & Klar and that plaintiff would receive 3% of the net profits before taxes.'

Motion was made by the defendants for a summary judgment and after the presentation of evidence including the deposition of the appellant, the trial court sustained the motion and granted the summary judgment. The points raised by appellant in his appeal, sixteen in number, all bear upon the same proposition and present the sole question, namely, does the evidence considered in its most favorable aspect toward appellant raise any substantial disputed question of fact, the determination of which in appellant's favor would entitle him to a judgment against appellees.

Rules of Civil procedure, 166-A provide in part: 'The judgment (summary) sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, * * * there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Mr. Stayton in his article, 'Summary Judgment' Texas Bar Journal, Vol. XIII, p. 474, states the rule as follows: 'The weight of authority and the general view seem to be * * * that summary judgment will lie and will only lie if the state of facts at the hearing of the motion would, if presented in a jury trial, entitle movant with all reasonable doubts resolved against him, to a peremptory instruction.' Ramsouer v. Midland Valley R. Co., 8 Cir., 135 F.2d 101, Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 130 F.2d 1016, Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967.

In appellant's deposition, his testimony as to a written contract with defendants giving him a 6% interest in the business is vague, uncertain and indefinite. He testifies that the agreement was on a sheet of paper 'with about three inches of typewritten wording on it'; that he, the appellant, did not sign the agreement and he does not remember whether anyone else did; that the instrument has been lost and that he had not seen it since shortly after Lang gave it to him some ten years ago. He did not recall the date of the instrument but thought it was given him sometime early in 1941. He did not know whether the contract provided that he was to receive six percent of the capital stock or a six percent 'interest.' His understanding was that two other employees, Tiras and Gilden, were given the same kind of a deal. He further testified that he (the appellant) was to made a small down payment in cash and though he did not recall the amount specified in the contract, he did pay $150. At another point in his deposition, he thinks that the amount specified in the written contract was $200 or $300. Appellant admits that at the time in question he knew that Wolf & Klar was a corporation and that the stock was owned by Alex Wolf. The testimony of appellant so far as any written contract is concerned to give him a six percent interest in the company is too indefinite and uncertain to support the submission of any issue to a jury or any findings in answer thereto. 'It is essential to the validity of a contract that it be sufficiently certain to define the nature and extent of its obligations. If an agreement is so indefinite as to make it impossible for a court to fix the legal liability of the parties thereto, it cannot constitute an enforcible contract.' Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940, 942. Again appellant testifies that it 'could have been' that the writing he referred to was a letter signed by Dick Lang and given to him in October, 1940. Such a letter was introduced in evidence by defendant, dated October 1. 1940, addressed to the appellant, reading in part as follows: 'There will be sold to you 3% of the stock of the capitalization of Wolf & Klar Inc. subject to a contract and conditions thereof. Such stock to be bought from Alex Wolf from that now owned by him and you will be indebted to Alex Wolf for the purchase price based on book value thereof as January 1, 1941. This stock will be issued subject to a contract and conditions thereof. This stock to be paid for in the following manner: $500 as initial payment and which amount is due and payable by October 10th, * * * the balance to be paid for by dividends declared by Wolf and Klar, Inc.' It is entirely clear from a reading of appellant's own deposition, that the paper he referred to was the letter from Lang above mentioned. It is equally clear that the letter was a proposal or plan based upon certain conditions which were not consummated. The appellant admittedly did not pay the $500 cash consideration and the stock which the letter mentioned as belonging to Alex Wolf was never acquired. In short, the letter does not constitute a binding contract.

We therefore hold that the trial court was correct in his conclusion that the testimony as a matter of law could not support any judgment for appellant on his claim to the ownership of an 'interest' in the partnership of Wolf & Klar.

It is admitted by appellees that an agreement with appellant was made in 1941, substantially as plead by plaintiff in his alternative plea, to the effect that so long as appellant worked for Wolf & Klar he would receive three percent of the net profits before taxes; that such an agreement was put into operation and the appellant was credited with such percentages annually until the year 1944 when, as claimed by appellees, he ceased to be an employee for Wolf & Klar and went to work as an employee for Wolf & Klar Wholesale Company. Appellees insist that for two reasons the appellant is not entitled to urge any claim at this time based on such an oral agreement; (a) because in his deposition he denies that he ever made any such character of agreement and denies that he is claiming that Wolf & Klar was indebted to him at this time on such agreement; (b) because such claim is now barred by the two and four year statutes of limitations. Vernon's Ann.Civ.St. arts. 5526 and 5527. Appellee Lang in his deposition admits that Wolf & Klar is...