Vick v. McPherson
| Decision Date | 17 September 1962 |
| Docket Number | No. 7171,7171 |
| Citation | 360 S.W.2d 866 |
| Parties | W. Plowden VICK, Appellant, v. J. B. McPHERSON, Appellee. |
| Court | Texas Court of Appeals |
Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellant.
Nelson, McCleskey & Harriger, Lubbock, for appellee.
This is an action brought by plaintiff, W. Plowden Vick, for twenty-five hundred dollars ($2,500) had and received by defendant, J. B. McPherson, paid by the plaintiff in connection with the purchase and sale of an insurance agency owned by defendant. The case was tried to the court without a jury. In was the contention of defendant that there was an oral contract made and entered into between plaintiff and defendant whereby the plaintiff contracted and agreed to purchase said agency from the defendant. The defendant also filed a cross action seeking damages because of the failure of the plaintiff to complete the deal. It was the contention of the plaintiff there was to be no final agreement until a written contract was made and agreed upon. Judgment was entered by the trial court that the plaintiff take nothing as against the defendant and that the defendant take nothing as against the plaintiff by reason of such cross action. From that judgment the plaintiff perfected this appeal. Mr. Vick will hereafter be referred to as appellant and Mr. McPherson as appellee. The appellee did not appeal from the judgment denying him any recovery by his cross action. Appellant presents this appeal upon four points of error, contending the court erred in denying appellant judgment for monies paid to appellee in partial performance of the proposed contract which was never consummated; in permitting unjust enrichment of appellee since no enforcible contract existed between the parties and since appellee gave no consideration for the monies had and received; in allowing appellee to retain the monies paid since it was undisputed that the contract made no provision for retention of the deposit by the appellee as damages and in allowing appellee to retain the monies paid under the alleged oral contract which was within the statute of frauds and unenforcible.
Appellant testified if negotiations had led to a purchase of the agency, a Mr. Melton who first brought to his attention the agency could be purchased, would be a partner in the agency with a working interest and would be the managing partner of the agency. The appellee testified they had agreed upon the terms of the sale and that appellant said it was a deal and when appellant gave him the check he said, 'Cash the check, it's a deal, it's yours.' The check was deposited for collection and when the check was received by the paying bank, there was insufficient funds to pay the check. Appellant testified the check was given but was not to be cashed; but when the bank called the appellant about there being insufficient funds, he went to the bank and deposited sufficient funds for the check to be cashed and the check was paid.
The witness, Peterson, testified he was present when Melton and Vick said that they would take the agency on the basis that they had mapped it all out, and that within the next four or five days, Melton moved into the agency and set up office just like he owned the agency as though he had bought it. Melton then got in contact with the policy holders of the McPherson agency and told them that he and Vick had bought out the McPherson agency. All of this was done to acquaint Melton with the policy holders so as to retain the business and get renewals of the policies.
In determining whether there was an oral contract made and entered into, we must consider what was said and done between the parties. Since the trial judge was the one to pass upon all these matters, we must assume from his holding that he found the contract was made and entered into and that it was breached by the appellant and because he breached the contract, he was not entitled to any relief because of his own wrongs. The question as to whether or not the contract was made where the testimony is conflicting presents a fact issue and if it has been established, the construction of the contract is a law question. Maddox Motor Company v. Ford Motor Company, 23 S.W.2d 333 by the Com. of App. Hegar v. Tucker, Tex.Civ.App., 274 S.W.2d 752 R.N.R.E. and cases there cited.
We are familiar with a rule where the parties agree that a contract entered into by them orally shall be embodied in a...
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...parties intend otherwise. See Mid–Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323 S.W.3d 151, 157 (Tex.2010); Vick v. McPherson, 360 S.W.2d 866, 868 (Tex.Civ.App.1962). The Master Services Agreement and Schedule A of that agreement recited that they were to become effective as of May ......
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