Snow v. Prince

• Decision Date: 27 March 1928
• Docket Number: (No. 1654.)
• Citation: 4 S.W.2d 605
• Parties: SNOW v. PRINCE et al.
• Court: Texas Court of Appeals

4 S.W.2d 605

SNOW v. PRINCE et al.

(No. 1654.)

Court of Civil Appeals of Texas. Beaumont.

March 27, 1928.

Rehearing Denied April 4, 1928.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Suit by John H. Snow against H. Prince, H. Brown, and others, subsequently dismissed as to defendant last named, and wherein executors of the estate of defendant first named were made parties in his stead after his death. Judgment for defendants, and plaintiff appeals. Affirmed.

A. E. Masterson, of Angleton, and Bryan, Colgin, Suhr & Bering, of Houston, for appellant.

Fouts, Amerman, Patterson & Moore, of Houston, for appellees.

HIGHTOWER, C. J.

This suit was filed by appellant, John H. Snow, on May 15, 1920, in the district court of Brazoria county, against H. Prince, H. Brown, A. Feldman, and J. J. Moody, as defendants. Appellant, for his cause of action, alleged, in substance, that on or about April 3, 1919, the defendants Prince, Brown, and Feldman made a contract with him, by the terms of which they agreed and bound themselves to pay him $3,000, if he would procure for them a deed from certain persons to a tract of one and one-half acres of land in the oil field at West Columbia in Brazoria county, and he alleged, in substance, that he had carried out the contract on his part and did procure the deed, but that the defendants had failed and refused to pay him for doing so, according to their contract.

The defendants Prince, Brown, and Feldman, all being citizens of Harris county, filed their plea of privilege to be sued in that county, which plea was sustained and the case was transferred to the district court of Harris county. After the case had reached the district court of Harris county, the defendants answered by general demurrer and general denial and the case remained on the docket without trial for a number of years, approximately seven years. In the meantime, defendant Prince died, and defendant Brown disappeared, and his whereabouts became unknown and he was dismissed from the suit by the plaintiff. The executors of Prince's estate were made parties defendant in his stead, and after appellant had filed several amended petitions and supplemental petitions, the case proceeded to trial and the result was an instructed verdict and judgment thereupon entered in favor of defendants then before the court.

Appellant's second amended petition, upon which the case proceeded to trial, in stating the contract upon which the suit is based, was as follows:

"That heretofore, to wit, on the 3d day of April, 1919, H. Prince, A. Feldman and H. Brown contracted with the plaintiff that if he, plaintiff, would procure the signatures of Charles Williams and wife, Minnie Williams, Thomas Rhodes and Lee Rhodes, and in the alternative, the signature of Lee Rhodes alone, to a deed to one and one-half (1½) acres of land in the West Columbia oil field in Brazoria county, Tex., adjoining the cemetery and fully described in the deed from Charles Williams and his wife, Minnie Williams, and Thomas Rhodes and Lee Rhodes to H. Prince, H. Brown and A. Feldman, of record in volume 151, page 540 of the Record of Deeds for Brazoria county, Tex., to which reference is here made for description, that they would pay to the plaintiff the sum of $3,000, in cash for such services."

"Plaintiff alleges that he did on, to wit, the 3d day of April, 1919, procure the signatures of all of said persons to said deed, and that he did on the 3d day of April, 1919, at the special instance and request of the said H. Prince, A. Feldman, and H. Brown go to Matagorda county, Tex., cause the said Lee Rhodes to go to West Columbia in Brazoria county, Tex., and cause the said Lee Rhodes to execute to the said Prince, Feldman, and Brown the deed hereinabove described.

"Plaintiff alleges that he performed each and every act undertaken by him in his agreement with said Prince, Feldman and Brown, and has fully and completely performed his part of the contract, for which the said H. Prince, A. Feldman and H. Brown agreed to pay him said sum of three thousand ($3,000) dollars aforesaid."

Appellant then alleged the breach on the part of the defendants of the contract pleaded by him, and prayed for recovery against them for the sum of $3,000.

This is a sufficient statement of the pleadings of the parties to make clear our disposition of the appeal.

When the case was reached for trial below, appellant offered in evidence, for the purpose of showing that he had carried out and performed his contract with the defendants Prince, Brown, and Feldman, the following instrument:

"In consideration for the amount of $100 in cash paid by parties of the first part, receipt of which is hereby acknowledged, Minnie Williams and husband, Charles Williams, Thomas Rhodes and Lee Rhodes, this agreement is made as follows:

"(1) We, the undersigned, parties of the first part, have sold and conveyed one tract of land consisting of 1½ acres, more or less, described as Rhodes tract in West Columbia, Tex., adjoining Colored Cemetery on the east, flag pond on the west, and Chas. Brown on the north to H. Prince, A. Feldman, and H. Brown, of Houston, Tex. Parties of the second part, for the consideration of $1,500.

"(2) The parties of the first part guarantee to parties of the second part that the above mentioned and described tract is free of any incumbrance or other claims.

"(3) The parties of the first part agree to accept $1,000 as a deposit on the bargain, balance of $14,000 to be paid on Monday, April 7, 1919, on passing good title to parties of the second part. There are no oil leases on said land.

                                       "Minnie Williams
                                       "Charley Williams
                                       "Thomas Rhodes
                                       "Lee Rhodes."
                

This instrument was duly acknowledged by all parties signing it, the acknowledgment taking the form of an acknowledgment to a deed.

When the above instrument was offered in evidence by the appellant, counsel for appellees objected to its introduction on the ground, substantially, that appellant's petition alleged that his contract with appellees was to procure the signatures of the parties signing the instrument to a "deed" and that the instrument offered in evidence was not a deed, and that it was not admissible for any purpose under appellant's pleading. In other words, counsel for appellees objected to the introduction of the instrument then offered, because there was a variance...