Stegman v. Chavers

• Decision Date: 14 August 1985
• Docket Number: No. 05-84-01264-CV,05-84-01264-CV
• Parties: Ronald R. STEGMAN, D.O., Appellant, v. Irmgard W. CHAVERS, Appellee.
• Court: Texas Court of Appeals

Page 793

704 S.W.2d 793

Ronald R. STEGMAN, D.O., Appellant, v. Irmgard W. CHAVERS, Appellee.

No. 05-84-01264-CV.

Court of Appeals of Texas Dallas.

Aug. 14, 1985.

Rehearing Denied Oct. 16, 1985.

Harry A. Light, Charles A. Gall, Jenkens & Gilchrist, Dallas, for appellant.

Robert M. Greenberg, Greenberg, Benson, Fisk and Fielder, Dallas, for appellee.

Before SPARLING, ALLEN and MALONEY, JJ.

SPARLING, Justice.

Appellant Ronald Stegman and appellee Irmgard Chavers executed a written contract for the sale of Chavers' house to Stegman. By its own terms the contract was to terminate if Stegman, after every reasonable effort, could not obtain satisfactory financing within 180 days. Stegman did not apply for financing because he claims that Chavers' conduct excused his compliance with that contract provision. Chavers later repudiated the contract and Stegman brought this suit seeking either specific performance, damages for breach of contract, or repayment of money Stegman lent to Chavers in connection with this transaction.

At the close of Stegman's evidence in this non-jury proceeding Chavers' motion for judgment was granted. The trial court denied Stegman relief on his specific performance and breach of contract claims and awarded him judgment for the amount of his loans to Chavers. Stegman asserts that the trial court erred in granting Chavers' motion for judgment. We agree; accordingly, we affirm in part and reverse and remand in part.

In a non-jury trial, granting a defendant's motion for judgment at the close of the plaintiff's evidence is equivalent to granting a motion for instructed verdict in a jury case. Guthrie v. Ray, 556 S.W.2d 589, 591 (Tex.Civ.App.--Dallas 1977, no writ). Thus a motion for judgment is properly granted when an instructed verdict would have been proper had the case been tried before a jury. Guy v. Stubberfield, 666 S.W.2d 176, 178 (Tex.App.--Dallas 1983, no writ).

In reviewing an instructed verdict or a sustained motion for judgment, the appellate court must determine whether there is any evidence of probative force to raise fact issues on the material questions presented. See Henderson v. Travelers Insurance Co., 544 S.W.2d 649, 650 (Tex.1976); Kirkwood v. Kirkwood, 663 S.W.2d 34, 36 (Tex.App.--El Paso 1983, no writ). This court must consider all of the evidence in the light most favorable to the plaintiff, disregarding all contrary evidence and inferences. Jones v. Tarrant Utility Co., 638 S.W.2d 862, 865 (Tex.1982); Henderson A plaintiff asserting breach of contract must establish, inter alia, (1) the existence of the contract sued upon; (2) his compliance with the terms of the contract or that he was ready, willing, and able to comply but has a valid excuse for his nonperformance; and (3) the defendant's breach of the contract. See Incorporated Carriers, Ltd. v. Crocker, 639 S.W.2d 338, 340 (Tex.App.--Texarkana 1982, no writ); Howell v. Kelly, 534 S.W.2d 737, 740 (Tex.Civ.App.--Houston [1st Dist.] 1976, no writ).

                544 S.W.2d at 650;  Guy, 666 S.W.2d at 178.   If there is any probative evidence on any theory of recovery, that issue must be decided by the trier of facts.   Jones, 638 S.W.2d at 865;  Kirkwood, 663 S.W.2d at 35.   Since we must accept the plaintiff's evidence as true under this standard, we must reverse and remand if the record contains any evidence that would support a judgment in favor of the plaintiff.  Guthrie, 556 S.W.2d at 591.   See also Yarbrough v. Phillips Petroleum Co., 670 S.W.2d 270, 272 (Tex.App.--Houston [1st Dist.] 1983, no writ) (reviewing court must "liberally construe" evidence and "indulge every intendment in the plaintiff's favor and against the judgment")
                

THE EXISTENCE OF A CONTRACT

Stegman and Chavers executed a written contract for the sale of Chavers' house to Stegman which was admitted into evidence. Since Chavers raised lack of consideration as a defense in the trial court, we note at the outset that a written instrument reciting a consideration imports one. Buddy "L", Inc. v. General Trailer Co., Inc., 672 S.W.2d 541, 547 (Tex.App.--Dallas 1984, writ ref'd n.r.e.). Further, there exists a statutory presumption that all written contracts are supported by consideration. U.S. Life Title Co. of Dallas v. Andreen, 644 S.W.2d 185, 191 (Tex.App.--San Antonio 1982, writ ref'd n.r.e.). Nothing in the record rebuts this presumption. The contract provides for Stegman to deposit with Chavers $6,000 as earnest money. Immediately above Chavers' signature on the contract the following words appear: "Receipt of $6,000.00 Earnest Money is acknowledged in the form of a check, personal, to be exchanged for a cashier's check." Stegman testified that after the execution of the contract he was advised to give the $6000 cashier's check to the title company rather than to Chavers, as provided in the contract. He stated that he informed Chavers of his intention, that she agreed to this oral change in the earnest money provision, and that he subsequently delivered the contract and a cashier's check for $6000 to the agreed title company. This testimony is undisputed. Nevertheless, Chavers now claims that "if there was such a modification then the contract between the parties then [sic] existed in parol." We disagree.

First, we point out that Chavers presented no evidence, thus the record contains only Stegman's statement that the modification did take place. Second, even if Stegman's testimony were contradicted in the record, we must ignore evidence unfavorable to Stegman under the established standard of review. Jones, 638 S.W.2d at 865. Thus for the purpose of this review, the oral modification was agreed to by both parties and is a part of their agreement. Further, we do not agree with Chavers that the contract between the parties is now oral as a result of the modification.

Oral contracts for the sale of land violate the Statute of Frauds, TEX.BUS. & COM.CODE ANN. § 26.01 (Vernon 1968); First National Bank in Dallas v. Zimmerman, 442 S.W.2d 674, 675 (Tex.1969), and are unenforceable except under certain circumstances not applicable to this case. See, e.g., Sharp v. Stacy, 535 S.W.2d 345, 347 (Tex.1976). Thus to heed Chavers' assertion would mean declaring the contract entirely unenforceable as an impermissible oral contract to convey land. On the other hand, it is well established that the strict performance of a contract which is required to be in writing may be waived or its terms extended by oral agreement. Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 164 S.W.2d 488, 491 (1942).

As the supreme court stated in Garcia v. Karam, 154 Tex. 240, 276 S.W.2d 255, 257 (1955): "If neither the portion of the written contract affected by the subsequent modification nor the matter encompassed by the modification itself is required by the Statute of Frauds to be in writing, then the oral modification will not render the contract unenforceable." Here, as in Garcia, "[T]he subject matter of the contract has not been changed, but only the method of performing it," because "the modification did not constitute a change in the character or value of the consideration originally contracted for." 276 S.W.2d at 257. We hold that the parties' oral modification of the earnest money provision at most constitutes "a change of one incidental condition" relating to the payment of the agreed sum. 276 S.W.2d at 257; see also Smith v. Hues, 540 S.W.2d 485, 490-91 (Tex.Civ.App.--Houston [14 Dist.] 1976, writ ref'd n.r.e.). Accordingly, the written contract between Stegman and Chavers is not rendered invalid by the minor oral modification. ¹

STEGMAN'S COMPLIANCE WITH THE CONTRACT TERMS

To prevail in the trial court Stegman must establish either that he has complied with the terms of the contract or that he was ready, willing and able to comply but has a valid excuse for not complying. See Howell, 534 S.W.2d at 740. The issue of Stegman's compliance is a question of fact.

Where the evidence and reasonable inferences raise a fact issue on any theory of recovery, that issue must be decided by the trier of facts, Jones, 638 S.W.2d at 865, and it is error to grant a motion for judgment. Kirkwood, 663 S.W.2d at 36. In examining the record for fact issues, we must accept the plaintiff's evidence as...