Spaulding v. Smith

• Decision Date: 22 June 1914
• Docket Number: (No. 5300.)
• Citation: Spaulding v. Smith, 169 S.W. 627 (Tex. App. 1914)
• Parties: SPAULDING v. SMITH.
• Court: Texas Court of Appeals

Page 627

169 S.W. 627

SPAULDING v. SMITH.

(No. 5300.)

Court of Civil Appeals of Texas. San Antonio.

June 22, 1914.

Rehearing Denied October 7, 1914.

Appeal from District Court, Victoria County; John M. Green, Judge.

Suit by J. W. Smith against J. W. Spaulding, for breach of contract for the sale of land. Judgment for plaintiff, and defendant appeals. Affirmed.

Linebaugh & Crain, of Victoria, for appellant. Proctor, Vandenberge & Crain, of Victoria, for appellee.

MOURSUND, J.

Appellee sued appellant for $1,875, alleged as the damages suffered by appellee by reason of the breach by appellant of a contract for the sale of certain land in Victoria county. It was alleged that the contract consisted of a letter from appellee to appellant, dated October 28, 1912, a night letter telegram from appellant to appellee, dated November 1, 1912, and a telegram from appellee to appellant, dated November 2, 1912, and that the contract was breached by telegram from appellant to appellee, dated November 2, 1912. Writ of attachment was prayed for, issued, and levied.

Appellant answered by general demurrer, special exceptions, a general denial, a special answer pleading the statute of frauds, allegations to the effect that appellee did not accept appellant's offer but rejected same, and that, if there was a valid contract, appellee had, prior to the breach of same, contracted to sell the land to another at a profit of $511, and that such amount was all that appellee was entitled to recover. This last plea was stricken out upon exception of appellee.

The trial before the court resulted in a judgment in favor of appellee for $875, and for foreclosure of the attachment lien.

We adopt the trial court's findings of fact, as follows:

"Findings of Fact.

"First. I find that the plaintiff, J. W. Smith, is a resident of Victoria county, Tex., and that the defendant, J. W. Spaulding, is a nonresident of the state of Texas, and resides in the state of Nebraska.

"Second. I find that on the 28th day of October, 1912, and prior thereto, the defendant, J W. Spaulding, was and is now the owner of a certain tract of land situated in Victoria county, Tex., consisting of 250 acres out of the M. Irwin and A. Talbot surveys, and that the said 250 acres is the only land owned by the said J. W. Spaulding in Victoria county, and is the only land rendered by him for taxation in said county.

"Third. I find that the said land was purchased by the said J. W. Spaulding through a real estate firm in Victoria, consisting of the plaintiff, J. W. Smith, and E. M. Tracy; that, after the purchase of said land by the defendant, the firm of Tracy & Smith was dissolved, and this parcel of land listed with E. M. Tracy for sale by the defendant; that some correspondence was had in regard to the same between the plaintiff and the defendant; and that on the 20th day of July, 1912, the defendant, with reference to said land, wrote to the Smith-Diebel Land Company, at Victoria, Tex., of which J. W. Smith, the plaintiff, was a member, as follows:

        "`Tecumseh, Neb. July 20, 1912
                

"`Smith-Diebel Land Co., Victoria, Texas — Gentlemen: Received your letter a few days ago; have been so torn up that I haven't got a chance to write, we just finished remodeling our store. In reply to your letter would say that everything goes with the place that is on it when sold. Mr. Tracy has the place rented for this year, so it will be up to him in regard to the grass. I also have the place listed with Mr. Tracy. I gave him my best price and terms when I was down last fall and think you will have no trouble in dealing through him if you have a deal on for the place. I am glad to hear that crops are looking so well this year. I understand they are going to grade the road in front of my place. If there is anything more doing let me hear from you. Am always glad to hear from you at any time.

    "`Yours truly, [Signed] J. W. Spaulding.'
                

"Fourth. I further find that on the 28th day of October, 1912, the plaintiff, J. W. Smith, proposed to defendant a purchase of the tract of land in question, by letter as follows:

         "`Victoria, Texas, Oct. 28, 1912
                

"`J. W. Spaulding, Tecumseh, Neb. — Dear Sir and Friend: I have an opportunity to make an exchange on your 250 acres and while otherwise I would not care to buy it, in this exchange I can make a fairly good deal for me, and I will make you this offer. Will give you $32.50 per acre net for the land. Place $200 earnest money in the bank, and on January 1st will pay you one-third cash, and execute 4 vendor's lien notes for the balance in equal payments, in 1, 2, 3 and 4 years, interest at 8 per cent. per annum. Deal to be closed Jan. 1, 1913. If this proposition appeals to you let me know at once, as my other man with whom I am dealing will not wait long, and may make other arrangements.

    "`Yours very truly, [Signed] J. W. Smith.'
                

"And that thereafter, to wit, on the 31st day of October, with reference to said trade, telegraphed the defendant as follows:

         "`Victoria, Texas, 10—31—1912
                

"`J. W. Spaulding, Tecumseh, Neb.: I am offered another trade and party wants immediate answer. Reply to my letter of Monday fully by night letter, my expense. Don't want to hurry you, but other party will not wait. Can pay more cash if desired.

                            "`J. W. Smith.'
                

"That both said letter and said telegram were received by the defendant, J. W. Spaulding, and that in response thereto, on the 1st day of November, 1912, the defendant, J. W. Spaulding, telegraphed to the plaintiff, J. W. Smith, as follows:

             "`Tecumseh, Neb. Nov. 1, 1912
                

"`J. W. Smith, Victoria, Texas: Will sell for $8,125 net to me, one-third cash, balance four years, eight per cent., purchaser to pay commission if any. New fence, mill and tank belong to tenant. Answer, as other parties' message demands immediate reply.

                    "`J. W. Spaulding.'
                

"That said message was duly received by the plaintiff, J. W. Smith, on the morning of the 2d of November, 1912, the same being a night letter, and that, immediately upon the receipt of same, the plaintiff, J. W. Smith, accepted the proposition of the said J. W. Spaulding, as contained in said telegram, by a telegram to said J. W. Spaulding, as follows:

         "`Victoria, Texas, November 2, 1912
                

"`J. W. Spaulding, Tecumseh, Neb.: Deal closed as per your night letter, two hundred dollars forfeit money in First National Bank. Letter with contract will follow. Ans.

                         "`J. W. Smith.'
                

"Which said telegram was on the same day received by the said J. W. Spaulding. That on the same day, to wit, November 2, 1912, the defendant telegraphed to the plaintiff by night letter the following:

            "`Tecumseh, Neb. Nov. 2, 1912.
                

"`J. W. Smith, Victoria, Texas: Your message too late, closed with other parties.

                       "`J. W. Spaulding.'
                

"Fifth. I further find that, at the time of the proposition of the said J. W. Smith to the said J. W. Spaulding to buy the tract of land in question, the said Smith, plaintiff herein, was ready, willing, and able to buy said land upon the terms proposed by the defendant, Spaulding, and was only prevented from carrying out the contract by the action of the defendant in repudiating the same.

"Sixth. I further find that, at the date of the conclusion of the contract between the plaintiff and defendant, the market value of the parcel of land in question was $9,000, and, the purchase price at which defendant had proposed to sell the same to plaintiff being $8,125, plaintiff's damages, occasioned by defendant's breach of the contract, was $875.

"Seventh. I further find that the parcel of land in question had been occupied by E. M. Tracy during the year 1912 as a tenant, and that the said Tracy had erected upon the same a new fence, windmill, and tank, and that this parcel of land was the only land occupied by the said Tracy as a tenant of the defendant herein, and was the only parcel of land owned by defendant upon which a new fence, windmill, and tank had been erected by the tenant, and was the same tract of land referred to by the defendant, Spaulding, in his telegram to J. W. Smith, dated November 1, 1912, and above set forth.

"Eighth. I further find that on November 2, 1912, the same day on which the defendant, J. W. Spaulding, refused to comply with his contract with J. W. Smith for the...