Tabor v. Ragle, 17640

• Decision Date: 25 July 1975
• Docket Number: No. 17640,17640
• Citation: 526 S.W.2d 670
• Court: Texas Court of Appeals
• Parties: Clyde TABOR, Appellant, v. Gerald Thomas RAGLE, d/b/a E & R Enterprise, Appellee.

Page 670

526 S.W.2d 670

Clyde TABOR, Appellant, v. Gerald Thomas RAGLE, d/b/a E & R Enterprise, Appellee.

No. 17640.

Court of Civil Appeals of Texas,

Fort Worth.

July 25, 1975.

Rehearing Denied Sept. 12, 1975.

Garrett, Burkett & Bodoin, and Robert R. Bodoin, Fort Worth, for appellant.

King & Massey, Inc., and Marion L. Massey, Fort Worth, for appellee.

OPINION

BREWSTER, Justice.

The trial court in a non-jury trial rendered judgment decreeing that plaintiff, Gerald Thomas Ragle, d/b/a E & R Enterprise, recover from the defendant, Clyde Tabor, the sum of $6,800.00 and this appeal is brought by Tabor from that decree.

The parties to the suit had signed the following written agreement on or about September 20, 1972:

On March 1, 1973, William David Elam assigned his interest in the contract to his former partner, Gerald Ragle, the plaintiff.

When the contract was executed on September 20, 1972, the buyers therein, Ragle and Elam, paid to the seller, Tabor, the $5,000.00 down payment therein provided for, and six months later they paid Tabor the semi-annual interest payment therein provided for totalling $1,800.00.

The contract obligated the parties to the contract to close the one year later, on September 20, 1973. Tabor (seller) went to the title company offices where the deal was to be closed prior to closing date and executed the necessary closing papers including the deed and left them with his representative at the title company. On about the same date Ragle (buyer) went to the title company office and signed and left with the same person at the title company the note and deed of trust provided for in the contract and he also delivered to the title company a check for $1,885.52 for the interest due under the contract plus closing costs. The check was drawn on a Weatherford bank and there were insufficient funds in the account at the time it was executed to pay the check. The buyer testified that he had made arrangements with the president of the Weatherford bank to clear the check when it was presented for payment. The check was mailed to the bank and the bank still would not pay it because the funds in the account on which it was drawn were insufficient to cover the check.

The seller, Tabor, had the title company keep trying to collect the check until September 28, 1973, at which time he had Mrs. Viva Puckett at the title company, who was handling the deal for the seller, write a letter to the buyer, Ragle, advising him that the contract was being forfeited by the seller because the Weatherford bank on which buyer's check was drawn advised the title company that the account on which buyer's check was drawn did not have enough funds in it to cover the check.

On closing date of September 20, 1973, buyer's account was overdrawn by $6,200.57.

Later on October 17, 1973, the buyer, Ragle, came to the title company office and presented Viva Puckett with a cashier's check for the amount of $1,885.52, the amount due on the contract as of September 20, 1973. Mrs. Puckett took the check but told Ragle she could not go ahead and close the deal out unless he could work something out with Mr. Tabor. Tabor refused to accept this check and to go through with the deal. The seller and his agents have never tendered a deed to the buyer. Ragle requested the deed when he delivered this cashier's check, but seller refused to deliver it.

In his trial pleading Ragle (the buyer) alleged that the contract involved was un-enforceable because it did not comply with the statute of frauds in that the property description as contained therein was insufficient. He prayed for judgment for the recovery of the $6,800.00 consideration that he had paid under the contract to Tabor.

In the seller's trial pleading he also alleged that the contract did not satisfy the requirements of the Statute of Frauds (Art. 3995, V.A.T.S.) and asked that plaintiff be denied a recovery in the case.

The trial court concluded that the contract that is the basis of the suit is unenforceable under the statute of frauds because of an inadequate property description.

No one questions that ruling on this appeal.

From the record before us it is apparent that the trial court reached a decision in this case by the following reasoning: the contract forming the basis of this suit was a real estate sales contract; since it did not so specify, the times specified therein for performance were not of the essence; the question of whether the buyer paid the $1,885.52 within a reasonable time of the date set for closing was a fact question to be determined by the trial court; that since the trial court decided that issue in the buyer's favor, the buyer is not in default of the contract; the seller has never tendered a deed and has refused to perform; as early as September 28, 1973, the seller advised the buyer that the contract was forfeited; and under those facts the trial court has reasoned that the buyer is entitled to recover the amount of the purchase price of the land that he has paid to the seller.

We affirm.

For convenience, we will hereinafter refer to appellant Tabor as seller, and to appellee Ragle as buyer.

Seller's first point of error is that the trial court erred in holding that time was not of the essence in performing the contract in that the contract involved is clearly an option contract in which contracts time for performance is of the essence.

We overrule this point of error.

In an ordinary contract for the conveyance of real estate, in which the purchase money is to be paid at a later day, time is not of the essence unless the contract clearly so states, or the intent that it shall be clearly appears from the terms of the contract. But if the contract involved is an option contract, giving a party an option to acquire a right by doing a certain thing within a specified time, then time is essential and in order to secure the right the party must comply within the specified period. Johnson v. Portwood, 89 Tex. 235, 34 S.W. 596 (1896); Gala Homes, Inc. v. Fritz, 393 S.W.2d 409 (Waco Tex.Civ.App., 1965, ref., n.r.e.); and Smith v. Warth, 483 S.W.2d 834 (Waco Tex.Civ.App., 1972, no writ hist.).

The seller's contention is that the contract involved in this case was an option contract, as distinguished from a contract to convey realty, and that because it was an option contract, the trial court erred in holding that the time specified therein for buyer to pay his money was not of the essence.

In drawing the contract in this case one of the Texas Standard Sale Contract forms was used. One sentence of the contract read: 'Should the Purchaser fail to consummate this contract as specified for any reason, except title defects, Seller shall have the right to retain said cash deposits as liquidated damages for the breach of this contract.' In the printed form used the sentence just referred to also contained the following language: 'And shall pay to Agent therefrom the sum of $ or Seller may enforce specific performance of this contract.' Before the contract was signed by the parties someone had taken a typewriter and, using the hyphen mark, had marked through the last part of the sentence that is last quoted above.

The seller's contention is that when the part of the sentence just referred to, providing that seller can get specific performance of the contract, was xed through that the legal effect of the deletion was to...