Stephens v. Carr

• Decision Date: 18 May 1936
• Docket Number: No. 4603.,4603.
• Parties: STEPHENS v. CARR.
• Court: Texas Court of Appeals

95 S.W.2d 215

STEPHENS v. CARR.

No. 4603.

Court of Civil Appeals of Texas. Amarillo.

May 18, 1936.

Rehearing Denied June 15, 1936.

Appeal from District Court, Parmer County; Reese Tatum, Judge.

Suit by Jack Carr against P. L. Stephens. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

James W. Witherspoon, of Hereford, for appellant.

W. H. Russell, of Hereford, for appellee.

HALL, Chief Justice.

On the 16th day of October, 1934, Jack Carr, as party of the first part, and P. L. Stephens, as party of the second part, entered into the following written contract:

                "The State of Texas }
                "County of Parmer   }
                

"Sale and Exchange Agreement

"Whereas, Jack Carr, of Parmer County, Texas, is the owner of all of the East 160 acres, of the North 320 acres, of the south 640 acres, of Section No. 29, of Cyndicate Block `C' of Parmer County, Texas, and has this day contracted and agreed to sell and convey such land to P. L. Stephens of said County, according to the terms and conditions hereinafter set out, it is therefore mutually agreed by and between the said Jack Carr, known herein as first party, and said P. L. Stephens, known herein as second party, as follows:

"1. First Party agrees to sell and second party to buy the above described land, at a price of $16.00 per acre, to be paid as follows:

"a. Approximately $1,800.00 by the assumption of indebtedness secured by said land and owing to the Federal Land Commissioner and/or Federal Land Bank of Houston, second party to accept title subject to such debt, but not to assume payment of same.

"b. All of the stock of merchandise and fixtures belonging to second party located in the old brick Jack Carr building in Bovina, to be accepted in payment for said land on a basis of 90% of their original cost to said second party and not in any event to exceed $1,000.00.

"c. In the event the amount of such stock and fixtures figured on the above basis does not equal the purchase price for said land, then the balance to be paid by second party in case and in the event such stock and fixtures plus the amount of Federal loan to be assumed, exceeds the agreed purchase price for said land, then and in that event, first party shall pay the balance in cash to second party, but in no event shall the amount paid for the stock and fixtures exceed $1,000.00.

"2. It is understood that the bulk sales law will be followed in completing the sale of such stock of goods and fixtures, and it is further understood that each party hereto agrees to give good title to the property being sold or exchanged by him, and that first party agrees to give merchantable title to said land.

"3. It is agreed that in the event either party hereto fails to fully perform his part of this agreement and fully consummate this contract within a period of 30 days from this date, that the other party may at his option consider this agreement as forfeited."

On June 25, 1936, Carr filed this suit against Stephens, alleging in substance that the effect of the contract was to bind him to convey to appellant the land described therein, further alleging that he did convey said land to the appellant by warranty deed, and in consideration of said conveyance the appellant assumed certain indebtedness then existing against the land, and delivered to appellee a certain stock of merchandise and fixtures, being principally parts for John Deere implements; that the appellant further agreed to transfer and assign to him his agency contract and agreement with the John Deere corporation, and to see that the appellee was appointed the local agent for said company at Bovina, Tex., and, in the event appellee should not receive said appointment as such agent, then the deal should not be consummated and should in all things be held for naught and void; that the appellee conveyed to appellant the land above described, and appellant delivered to appellee the merchandise and machinery parts, but wholly failed and refused to transfer and assign to appellee said agency aforesaid, but, on the contrary, appellant has taken and accepted said agency for the year 1935, and has put in a stock of machinery parts, whereby he has, in a material way, breached said contract. Appellee charges that his equity in the land is of the reasonable value of $1,500, and that said agency contract is of the reasonable value of $1,500, and by reason of the premises the appellee has been damaged in the sum of $3,000, for which amount he prays for judgment.

The appellant answered by general demurrer, special exceptions, a general denial, setting out his version of the contract, the details of which we deem unnecessary in view of the disposition we make of the case.

On July 19, 1935, the appellee filed his first amended original petition which should have been styled "Plaintiff's First Supplemental Petition," in which he alleged in substance that it is true that the parties entered into a written contract, but said writing did not contain all of the contract and agreements had at said time by and between the parties thereto, and that the real contract is partly in writing and partly verbal; that by the verbal portion of the agreement it was specially understood that the appellant, who was at that time the local agent at Bovina for the John Deere Corporation and was indebted to said corporation, told the appellee as a material part of their contract and consideration that he (appellant) would "get out of the way," meaning that he would resign as agent and would permit appellee to apply for the agency, and told appellee, if the company aforesaid insisted upon appellee's paying off at said time certain indebtedness which he (appellant) then owed the company, that all of said contract, both the written and verbal portions thereof, should and would be void, appellant then informing appellee that he (appellant) would relinquish his said agency for said company and would permit the appellee to apply for said agency, and, if it could not be obtained, and/or if said company should demand payment of appellee of his indebtedness, then, in either or both of said events, the contract between the parties should be null and void and of no force and effect; that is to say, that all of the contract between said parties was contingent upon appellee's obtaining said agency for said John Deere Corporation at Bovina, and the nonenforcement by said company of appellant's debt against appellee at said time, and, in the event of either contingency, then the whole of said agreement should become void as aforesaid, or, in other words, all of said agreement and contract between said parties was a contingent contract, and was not to become effective until said conditions aforesaid were fulfilled; that the scrivener who drew said written contract started to incorporate into said writing the above and foregoing conditions, but, at the special instance and request of appellant, said terms and conditions and contingencies were omitted.

It is further alleged that under the provisions of the written part of said contract, and also including the verbal parts, it was agreed that the same should be consummated within thirty days from the date thereof; that the appellant did not comply with his part of said contract in relinquishing his agency with the John Deere Corporation and in permitting the appellee to obtain or endeavor to obtain said agency, but appellant...