Smith v. Lander

• Decision Date: 07 June 1905
• Citation: 89 S.W. 19
• Parties: SMITH et al. v. LANDER.
• Court: Texas Court of Appeals

89 S.W. 19

SMITH et al. v. LANDER.

Court of Civil Appeals of Texas.

June 7, 1905.

Appeal from District Court, Guadalupe County; M. Kennon, Judge.

Action by F. B. Lander against J. L. Smith and others. From a judgment for plaintiff, defendants appeal. Reversed.

Rehearing denied October 4, 1905.

Dibrell & Mosheim, for appellants. Joe. L. Hill and Dupree & Pool, for appellee.

NEILL, J.

The appellee, F. B. Lander, plaintiff below, sued appellants, J. L. Smith, H. R. Morrow, E. B. Stebbins, and J. M. Abbott defendants below, to recover $1,100, with interest from May 15, 1901, paid by plaintiff to defendants as earnest money to close the sale of 10 acres of land situated in Jefferson county, Tex., to be sold and conveyed by them to plaintiff according to the terms of certain receipts for said earnest money, executed by defendants, hereinafter described. Plaintiff bases his right of recovery of the money on the allegation that the title to the land was, according to the terms of the receipt of May 4, 1901, to be perfect, or to be made perfect and satisfactory to his attorney, or the money refunded to him by defendants; that they were to furnish him an abstract of title; and that such abstract furnished him by them was not perfect and satisfactory to his attorney, nor made perfect and satisfactory to him. The defendants answered, in substance, that they furnished plaintiff with an abstract of the title to the land in question which showed a perfect title thereto, and that plaintiff and his attorneys were in fact satisfied with the title, and that it was perfect, but expressed their dissatisfaction thereto in bad faith, for the purpose of assisting plaintiff not to take the land, as land values were on the decline, and that for this reason alone the plaintiff refused to take the land, and that therefore they were entitled to retain the $1,100 sued for, and to recover of the plaintiff the further sum of $9,900, which they pleaded in reconvention, as the balance of the purchase price agreed to be paid by plaintiff to them for the land, as shown by the receipts referred to. The case was tried before a jury, and the trial resulted in a judgment in favor of plaintiff for the amount sued for.

It is undisputed that on the 29th day of April, 1901, the plaintiff paid defendants $1,100 in cash under an agreement between them evidenced by the following receipt: "$1,100.00 Beaumont, Tex., April 29, 1901. Received from F. B. Lander, trustee, eleven hundred dollars, being a part of the purchase money to close the sale of one 10-acre tract of land situated on the Lewis tract in the west end of the south half of the J. W. Bullock survey, in Jefferson county, Texas, more fully described as lot No. 6 (six) in Treadwell & Hanson's subdivision of said survey, at the total purchase price of eleven thousand dollars. The terms of payment being $1,100.00 cash in hand, the receipt of which is hereby acknowledged, and the balance of ninety-nine hundred dollars to be paid within five days after abstract of title is furnished by seller. The title to be satisfactory to attorneys of F. B. Lander, trustee, or this eleven hundred dollars here paid as part of purchase money is to be refunded to party paying same as aforesaid. Deed to land to be made at expense of grantor; abstract to be made at expense of grantor. Witness our hands 29th day April, 1901. [Signed] J. L. Smith. H. R. Morrow. J. M. Abbott. E. M. Stebbins." It is also undisputed that within the time specified in the receipt the defendants furnished to plaintiff an abstract of title, which, being by him placed in the hands of and examined by his attorney, was by said attorney pronounced incomplete and insufficient to base a correct opinion upon as to the title to the land. He therefore declined to approve the title, and so notified the plaintiff, whereupon, on May 3, 1901, the plaintiff wrote his attorney instructing him to take the abstract to Beaumont at once, and lay the same before the defendants, and request of them a complete abstract showing a perfect title to the land. Upon receiving such instruction the attorney went to Beaumont and informed defendants that the abstract was not complete and did not show a perfect title to the land, and informed them that he would have to have a complete abstract, properly certified to, before he would attempt to give an opinion on the title, and that it would be necessary for him to have further time to examine a complete abstract, and they would have to execute a new agreement, giving...