Street v. Johnson
| Decision Date | 22 June 1936 |
| Docket Number | No. 4623.,4623. |
| Citation | 96 S.W.2d 427 |
| Parties | STREET v. JOHNSON et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Potter County; W. E. Gee, Judge.
Action by W. G. Street against Sarah E. Johnson and another for specific performance, and, in the alternative, for damages against Sarah E. Johnson and others. From an adverse judgment sustaining defendants' demurrers, plaintiff appeals.
Reversed and remanded.
S. E. Fish, of Amarillo, for appellant.
Gibson & Sutton, of Amarillo, for appellees.
Appellant sued appellees, Sherry, Johnson, Jones, and the Panhandle Building & Loan Association, the first two for specific performance, and, in the alternative, all appellees, for damages.
The trial court sustained a general and four special demurrers to appellant's petition. His action in so doing is the only legal issue before this court. The controlling exceptions, in so far as they affect the disposition of the question decided, amounted in our opinion to general demurrers, since they called in question only the sufficiency of appellant's petition to state a cause of action upon a contract for the sale of real estate under the statute of frauds.
Appellant's petition, as we understand it, attempted to present, in the main, two theories, viz.: An executed contract, and, if not, a valid executory one for the sale of the property described below. We do not discuss the first of these.
It is our opinion that it sufficiently stated a cause of action upon the second theory as against a general demurrer. It is lengthy and involved. In substance and effect it alleged, respecting the second theory, that Sherry owned and possessed four duplexes, two on lot No. 6, and one each on lots Nos. 4 and 5, in block No. 9, Denver Heights addition to Amarillo, Potter county, Tex.; that he instructed his agent Johnson in writing to sell these houses to appellant for as much as she could get; that she contacted appellant and he agreed to pay $1,000 for them; that a bill of sale was first delivered to appellant, properly conveying these, with his name and the consideration left blank, but with instructions to fill these in; that a small defect in the title developed, but an agreement was reached to close the trade upon conditions not here necessary to set out. His petition proceeds:
"Petitioner further represents to the court `that in the event the court should find that the contract heretofore alleged for the sale of said houses to petitioner was not a fully executed contract, other than the payment of the consideration, then he alleges that the letters, writings, and telegrams passing to and from W. A. Sherry and Sarah E. Johnson, or at her behest and which were exhibited to petitioner and which instructed the said Sarah E. Johnson to sell said houses to petitioner which she agreed to do and which was approved of by W. A. Sherry for the sum of $1000, the bill of sale to said houses, executed by the said W. A. Sherry and delivered to petitioner and which contained a warranty of title, it being understood and agreed that petitioner's name should be inserted therein as purchaser, likewise that petitioner should insert a consideration; constituted a contract for the sale and purchase of said houses, that the above letters, telegrams, writings and bill of sale are in the possession of W. A. Sherry, Sarah E. Johnson, or other person who acted for her in writing and transmitting such and petitioner is unable to plead the contents of such letters, telegrams, writings, and bill of sale more definitely,' that respondents, W. A. Sherry and Sarah E. Johnson, are hereby given notice to produce all such telegrams, letters, and bill of sale, upon the trial of this cause or secondary evidence will be offered to prove the contents of such letters, telegrams and writings in establishing such a contract of sale and purchase of said houses."
Thereafter the petition discloses appellant offered said houses for sale, and made claim to same as owner, all prior to the repudiation of the contract by the owner. Appellant alleges, when his petition is considered as a whole, in effect, a final contract in writing, signed by appellee Sherry for the sale of same. He did not allege that he signed any written obligation to pay, or ever paid, but alleges in substance that he was offering to perform his obligation as agreed upon when...
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Murex, LLC v. GRC Fuels, Inc.
...not signed by GRC. The Purchase Agreements are signed by Murex, the party against whom the contract is sought to be enforced. Street v. Johnson, 96 S.W.2d 427, 429 (Tex. Civ. App. -- Amarillo 1936, no writ). Therefore, the contract is enforceable under Texas contract law. Id. Further, "a co......
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Howell v. Bowden, 16149
...not connected with the transaction. 49 Am.Jur., Statute of Frauds, Sec. 334; 37 C.J.S., Frauds, Statute of, Sec. 173; Street v. Johnson, Tex.Civ.App., 96 S.W.2d 427.' (Emphasis ours.) See also Rochelle v. Gibler, Tex.Civ.App., 269 S.W.2d 515, and 26 Tex.Jur.2d, 247. Appellant's first point ......
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Goen v. Hamilton
...received, but that they must be established by written evidence." This same rule was in effect re-announced by this court in Street v. Johnson et al., 96 S.W.2d 427, in an opinion by the late Justice It will thus be seen that it is settled in this State that a pleading declaring upon a cont......
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Capital Bank v. American Eyewear, Inc.
...the party seeking enforcement is effective if a sufficient writing is signed by the party against whom enforcement is sought. Street v. Johnson, 96 S.W.2d 427, 429 (Tex.Civ.App. Amarillo 1936, no writ); see Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 856 (1958). Nevertheless, in this ......