Wheeler v. White
| Citation | 385 S.W.2d 619 |
| Decision Date | 12 November 1964 |
| Docket Number | No. 6692,6692 |
| Parties | Ellis D. WHEELER, Appellant, v. S. E. WHITE, Appellee. |
| Court | Texas Court of Appeals |
Adams & Browne, Beaumont, for appellant.
Keith, Mehaffy & Weber, Beaumont, for appellee.
This is a suit upon a written instrument drawn by laymen executed July 26, 1956, by the appellant Ellis D. Wheeler and the appellee S. E. White. In this memorandum, for valuable consideration, White agreed to obtain $70,000.00 for Wheeler for the purpose of constructing improvements on land belonging to Wheeler described in the written contract. This loan was described as follows:
'The loan to be made by, or obtained by, Party of the Second Part for the Party of the First Part, and to be in the sum of Seventy Thousand and no/100 ($70,000.00) Dollars and to be payable in monthly installments over a term of fifteen (15) years and bear interest at a rate of not more than six (6%) per cent per annum.'
The loan was to be obtained on or before six months from the date of the contract, either from funds belonging to White or from third persons. In either event, appellant agreed to sign all necessary papers required of lender to create proper liens.
Since judgment for appellee was entered upon his exceptions to appellant's pleadings, the substance of allegations contained in appellant's pleadings are treated as facts herein. After the making of the contract, White assured Wheeler that he would provide the money for the new construction. At the request of White, and relying upon White's statement the money for the loan was available, Wheeler razed the existing building and otherwise prepared for the prompt erection of a new building. Then White tole Wheeler there would be no loan. White had ample funds to make the loan. Wheeler was unable to obtain a loan elsewhere. Appellant Wheeler sued White for damages as a result of his breach of the contract, the damages consisting of architectural fees of $400.00, the loss of the building demolished of a market value of $58,500.00, and other damages amounting to $130,200.00 according to the allegations in appellant's petition. Appellant also pleaded estoppel on the part of appellee to deny the validity of the contract, if it be indefinite in its provisions and too uncertain to be a contract, because appellee's act in representing to appellant that the money would be forthcoming and urging appellant to make ready for the construction, was relied upon by appellant, moving him to incur the damages sued for. In the trial court, appellee urged two exceptions, to-wit:
'SPECIAL EXCEPTION NO. 1
'Defendant specially excepts to the whole of said petition for the reason that the same fails to state a cause of action in that the instrument sued upon is too indefinite and uncertain to authorize a judgment against the defendant for the following reasons:
'(a) The same does not contain the essential terms of a contract expressed with such certainty and clarity that it may be understood without recourse to parol evidence to show the intention of the parties in that the amount of the monthly installments is not set forth.
'(b) The same does not contain the essential elements of a contract with sufficient certainty to show the amount of interest due upon the obligation 'not more than six per cent (6%) per annum' being vague, general, and indefinite, and requiring recourse to parol evidence.
'(d) The terms of said instrument are so vague, general and indefinite, in the respects aforesaid, that it would be inequitable to carry a contract into effect where the Court is left to ascertain the intention of the parties by mere guess or conjecture, because it might be guilty of erroneously decreeing what the parties never intended or contemplated.
'SPECIAL EXCEPTION NO. 2
The trial court sustained such special exceptions and granted appellant leave to amend his petition so as to cure the defects in his third amended original petition as were 'pointed up by defendant's special...
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