Talkin v. Anderson

• Decision Date: 26 April 1892
• Citation: 19 S.W. 852
• Parties: TALKIN v. ANDERSON.
• Court: Texas Supreme Court

19 S.W. 852

TALKIN v. ANDERSON.

Supreme Court of Texas.

April 26, 1892.

On rehearing. For former report, see 19 S. W. Rep. 350.

MARR, J.

Upon the original consideration of this case we recommended that the judgment should be affirmed upon the ground that C. Behler, having only acquired an undivided interest in lot No. 49, was not authorized to convey any portion of that land by metes and bounds without the assent of the cotenants, as he had attempted to do in his deed to Joseph Merkel. We see no reason to doubt the correctness of the conclusions of law as announced in the former opinion, but it is now made to appear in the motion for rehearing that we (and particularly the writer) were mistaken as to a matter of fact in a most important aspect. We were misled by a statement contained in the brief for the appellee, (which the appellant's counsel neglected to correct,) and supposed that the two deeds, as made by W. B. Walker in his own right and as attorney in fact, referred to the same undivided half of lot No. 49. The record, however, upon a closer scrutiny, shows that C. Behler had in fact, through Walker and Ruthven, regularly acquired the title to all of lot No. 49, (and not merely an undivided half interest,) prior to the time when he and his wife conveyed a specific half of the land to Joseph Merkel. The deed from Behler and wife to Merkel was therefore not invalid on account of the fact that it conveyed a certain part of the land by metes and bounds. There could be no other tenant or owner, because Behler was the sole proprietor of the entire lot. The other objections to the validity of the appellant's title to "the acre of land" in dispute we disposed of in the original opinion, and adversely to the appellee. The supreme court having granted a rehearing, and again referred the case to us for re-examination, we conclude, in view of what we have stated herein, that the appellant's title is not subject to any of the objections made to it by the appellee, and that the judgment should now be reversed and rendered in favor of the appellant, unless the sole question which remains to be determined should be decided adversely to him.

This brings us to the consideration of that question whether the $1,000 advanced by appellee was intended as stipulated damages or as a penalty merely? The terms of the contract are explicit that, if the appellee violates the contract in the particular therein specified, or, in other words, shall fail to perform his part thereof, then "he forfeits the $1,000 paid." We do not mean to say that the word "forfeit" would invariably render the sum mentioned stipulated damages, still it is of great significance and weight in arriving at the meaning and intention of the parties, especially when we remember the meaning generally attached to this word in common parlance and by the public. The authorities are all agreed, however, that, whatever may be the particular language used in the contract, the controlling criterion is the intention of the parties themselves, to be ascertained from the agreement itself, and such external circumstances as would be admissible under the well-recognized rules of evidence. We think that the terms of the contract between the parties in this case clearly indicate that the $1,000 were intended as the sum agreed upon...