Stephens v. First Nat. Bank

• Decision Date: 23 March 1912
• Citation: 146 S.W. 620
• Parties: STEPHENS v. FIRST NAT. BANK OF NEW BOSTON et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

146 S.W. 620

STEPHENS v. FIRST NAT. BANK OF NEW BOSTON et al.^†

Court of Civil Appeals of Texas. Dallas.

March 23, 1912.

Rehearing Denied April 20, 1912.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by G. A. Stephens against the First National Bank of New Boston and others. From a judgment dismissing the case as to certain defendants, and transferring the proceedings to another district court, plaintiff appeals. Affirmed.

M. M. Plowman and W. H. Clark, both of Dallas, for appellant. A. B. Flanary, of Dallas, A. L. Beaty, of Houston, and R. M. Hubbard, of New Boston, for appellees.

RASBURY, J.

Appellant, the plaintiff in the lower court, sued upon the following written contract, to wit: "This memorandum witnesseth: That we, M. A. Hart and E. M. Gleason, have this, the 15th day of February, 1907, made and entered into the following agreement: The said M. A. Hart, as agent of the Applewhite estate of Mississippi, has this day sold to G. A. Stephens of Moline, Illinois, the following tract of land, being two certain parcels known as William and John Paston H. R. surveys in Bowie county, Texas. Said tracts of land are now supposed to contain 5,381 acres, the price of said land being $6.50 per acre. Each of said parties agree to deposit the sum of $1,000 as forfeit money, as follows: The said M. A. Hart deposits the said sum of $1,000 as a guaranty that he as agent for the said Applewhite estate will cause to be delivered to said G. A. Stephens a good and sufficient warranty deed to the said above mentioned lands within thirty days or some reasonable time thereafter together with an abstract of same. The said G. A. Stephens, through his agent, E. M. Gleason, deposits the sum of $1,000 as a guaranty that he will upon the delivery within a reasonable time of the above-mentioned deed, provided the examination of the abstract shows a good title, pay to the said M. A. Hart the sum of $34,976.50, as follows: The sum of $11,658.83, a portion of which shall be the sum of $1,000 put up as a forfeit, and the remainder on ten years time at the rate of 8 per cent., or at any time after the delivery of deed at the option of said G. A. Stephens, said payments to be made hereafter as represented by the notes of the said G. A. Stephens, as agreed upon hereafter by the said parties, the interest payable annually, the said notes retaining a vendor's lien on said land. Witness our hands this the 15th day of February, 1907. [Signed] M. A. Hart. E. M. Gleason, Agent G. A. Stephens."

Appellant alleged that the two $1,000 forfeits mentioned in the contract were deposited with D. A. Chambers, as trustee, who was cashier of the First National Bank of New Boston, and that the money was by him deposited in said bank; that Chambers and the bank received the money with full knowledge of the contract and all the facts surrounding the transaction; that the title to the land described in the contract, on examination, proved defective, which relieved appellant from performance thereof, and he sued for the return of the $1,000 deposited by him, as well as for the $1,000 deposited by Hart, alleging that the defective title to the land and Hart's failure to furnish deed to the land from the owners entitled him to the return of his $1,000 and the forfeiture of the other $1,000; that the agreement had been further breached by procuring a deed to be executed by the real owners of the land to one W. O. Lowry, from whom appellant was under no obligation to accept a conveyance, because the agreement called for a general warranty deed from the owners of the land, who were financially able to protect their warranty, while said Lowry was not, and that a deed from the owners to appellant never was secured or tendered; that, after breaching the contract, as aforesaid, the defendants, Hart, Chambers, and the bank, fraudulently conspired together and converted said $2,000 wrongfully to their own use, and divided same among themselves. The First National Bank of New Boston was domiciled in Bowie county, Tex.; D. A. Chambers and M. A. Hart resided in said Bowie county; E. M. Gleason resided in Dallas county; and R. R. Applewhite, H. L. Paxton, H. L. Applewhite, A. M. Callendar, his wife, Catherine E. Callendar, and J. M. Paxton, alleged owners of the land, were nonresidents, except H. L. Applewhite, who was alleged to be a resident of Bexar county, and as to whom appellant dismissed his suit. Of those sued, only Gleason, the bank, Hart, and Chambers, so far as the record shows, filed pleadings and defended the suit. Gleason filed the general demurrer and denial. Appellant, in his petition, alleged that Gleason was interested in making the sale, and agreed to return the $1,000 to appellant in the event the sale was not consummated, and, in consideration of his interest, guaranteed appellant that if, for any reason, the trade was not carried out he would repay appellant said $1,000 placed with him, and that, relying upon said agreement, appellant paid Gleason the $1,000.

Appellees M. A. Hart, D. A. Chambers, and First National Bank filed a plea of privilege on March 9, 1908, claiming the privilege of being sued in Bowie county, Tex., their place of residence, and alleging that Gleason was improperly joined as a defendant, and that appellant's cause of action, if any, against him was independent of his pretended cause of action against them, and subsequently, on March 17, 1908, they filed answer, including a general demurrer and denial, and other defensive matter, not necessary to detail in...