Wingart v. Baxter

• Decision Date: 28 January 1930
• Docket Number: No. 9388.,9388.
• Citation: 30 S.W.2d 522
• Parties: WINGART v. BAXTER et al.
• Court: Texas Court of Appeals

30 S.W.2d 522

WINGART v. BAXTER et al.

No. 9388.

Court of Civil Appeals of Texas. Galveston.

January 28, 1930.

Rehearing Denied July 3, 1930.

On Motion to Correct Findings July 28, 1930.

Appeal from District Court, Jackson County; J. P. Pool, Judge.

Suit by Mrs. Mary Baxter and husband against W. H. Wingart. Judgment for plaintiff named, and defendant appeals.

Affirmed.

Jno. T. Vance, of Edna, for appellant.

Rose & Sample and J. W. Wheeler, all of Edna, for appellees.

GRAVES, J.

This concededly correct general statement is copied from the briefs of the parties:

"This is a suit by T. J. Baxter and wife, Mary Baxter, plaintiffs, against W. H. Wingart, defendant, seeking to recover $1,000.00 as separate property of plaintiff, Mary Baxter, upon a parole agreement, whereby, according to plaintiffs' amended petition, defendant was to pay her that sum `if she would make no further claim in and under' a certain unexpired lease on real estate, `and with her husband turn over to him their possession thereunder' of the leased premises O a certain `residence, store building and pasture or trap.' Plaintiffs claimed to own as their homestead, such unexpired term, which ran from March 22, 1927, to May 8, 1929, a little more than two years.

"Plaintiffs allege a tender of, and do tender a written transfer, signed by themselves, dated and acknowledged March 7, 1929, (the same date as the Amended Petition) where in they purport to `sell, transfer and assign to W. H. Wingart of the County of Jackson, State of Texas, all the claims, rights, titles and interests which we (T. J. Baxter and wife, Mary Baxter) on the 22nd day of March, 1927, or at any time thereafter had of, in, to or under a certain written lease agreement executed by Bettie C. Ward, individually,' etc., making in connection therewith this statement:

"`Plaintiffs state that while they did not obligate themselves to agree to execute in favor of the said W. H. Wingart an assignment or transfer of their rights under their aforesaid lease in writing, nevertheless they have been ready, able and willing at any time if called upon by defendant to execute and deliver to him such an assignment in writing thereof, and they here now tender to him herewith a duly executed written assignment of their rights under said lease as such rights existed at the time of the aforesaid sale by the assignee.'

"The $1,000.00 was to be paid in cash, and interest is asked for at 6% from March 22, 1927. Though it does not appear from the petition itself, the $1,000.00 was in fact claimed as a premium on the lease, as $50.00 per month rental called for in the lease had to be paid to the owners and all the other obligations thereof had to be taken care of by the defendant.

"The defendant filed a general demurrer to plaintiffs' petition, also a special demurrer on the ground that plaintiffs' suit is brought upon a parol contract made in violation of the Statute of Frauds. Defendant also denied the truth of plaintiffs' allegations and set up as defense the Statute of Frauds, and by way of cross-action against the plaintiff, T. J. Baxter, set out that said Baxter was indebted to him upon a surety debt for $1,425.56 and interest and costs of suit, and upon an open account and upon three checks, such debts as a whole aggregating $2,227.35.

"Plaintiffs, by supplemental petition, demurred to defendant's answer on three grounds.

"I. That defendant had occupied and used the premises and was now estopped to deny his liability to pay Mrs. Baxter the $1000.00.

"II. That this suit is to recover a debt due Mrs. Baxter as her separate property, and that defendant's cross-action against T. J. Baxter was therefore not maintainable.

"III. This is in substance the same as II.

"Plaintiffs also made a general denial and set up the Statute of limitation to defendant's cross-action.

"The court, trying the cause without a jury, overruled the general demurrer and special exceptions of defendant, sustained exceptions II and III of plaintiffs, and on the evidence, rendered judgment for the plaintiff, Mrs. Mary Baxter, for $1000.00 as her separate property, with interest thereon from January 1, 1928, at 6% per annum. The defendant excepted, and gave notice of appeal."

The appellees' motion to strike out appellant's assignments and dismiss his appeal, on the ground that he neither by request procured the filing of findings of fact and law nor filed a motion for new trial below, taken for consideration with the case, comes too late, having been filed more than thirty days subsequent to the filing of the transcript here. Rule 8 for Courts of Civil Appeals. If it had come in time, however, it could not have been sustained; Craver v. Greer, 107 Tex. 356, 179 S. W. 862.

Their objections, however, to the consideration of his propositions Nos. II, VII, IX, and X, are sustained, these being that:

"Number II is not germane to assignment I on which it is based, in that it presents the tendered written transfer of the lease of March 7, 1929, as being ineffective because self-serving and insufficient to take the sued-upon contract out of the statute of frauds, whereas the assignment merely asserts that the contract declared upon is violative of the statute of frauds because not in writing. Rule 30 for the Courts of Civil Appeals.

"Number VII, generally alleging that a parol contract violative of the statute of frauds should not be enforced, if at all, except upon full, clear, and satisfactory proof, gets nowhere, because a mere abstraction—Rule 30, supra; Wright v. Maddox (Tex. Civ. App.) 286 S. W. 607.

"Numbers IX and X are based on assignment V, which was not filed below and is submitted here as involving fundamental error, but does not do so, since it merely alleges a variance between the pleadings and the proof that requires the appellate court to search the statement of facts to decide the question the assignment propounds—Swinson v. Thomas (Tex. Civ. App.) 16 S.W.(2d) 412; Waid v. Mills (Tex. Civ. App.) 8 S.W.(2d) 522; Brotherhood v. Edmonds (Tex. Civ. App.) 10 S.W. (2d) 1011."

Appellant's propositions I, III, IV, V, VI, and VIII alone remain for consideration on the merits.

Nos. I, III, and IV in the aggregate affirm: (1) That his special demurrer to the appellees' petition invoking so much of our statute of frauds as interdicts any action upon a lease of real estate for longer than one year that is not based upon a promise or agreement in writing, should have been sustained; (2) that, as against such plea on his part, his mere possession, use, and occupancy of the premises from and after the date of the alleged agreement did not entitle appellees to recover as on a parol contract of sale for cash of the lease, their remedy being a suit for the reasonable value of such use and occupancy; (3) that parol testimony was inadmissible "to prove up a contract of sale of a lease on real estate for an unexpired term of more than two years, over defendant's plea setting up as a defense the statute of frauds," etc.

No. V, in substance, is: Appellees having relied upon a parol contract of sale for cash of a lease on real estate for an unexpired term of over two years, which was in violation of the statute of frauds, acts of appellant that were either just as consistent with the existence of no lease contract at all, or with one in keeping with that statute as violative of it, as they were with one in suit, could not be regarded as constituting part performance of the contract so declared upon, especially when they occurred after he had repudiated it.

No. VI simply asserts that the evidence was insufficient to support a finding that such a contract as was sued upon was made.

No. VIII declares that appellees were estopped to compel appellant to perform the agreement recovered upon, which was not binding on either of them because both violative of the statute of frauds and a contract to convey a homestead interest, by their failure to move for its performance not only until after they, or at least the husband, had as owners of the lease in writing demanded the rents from the premises of himself and his subtenants thereon, but also until after the husband, with the wife's ratification, had made a second agreement transferring the lease to appellant subsequent to the latter's repudiation to the husband of any obligation to the wife under the first agreement, upon which the court gave them judgment.

None of these presentments, we conclude, should be sustained. They seem to us to reflect, ab initio, a misconstruction of the case made in the circumstances by the pleadings and proof of the appellees. Mrs. Baxter was the plaintiff in interest; Mr. Baxter joining in the suit as a matter of form only for the prosecution of her declared upon separate claim. They were husband and wife, having a young child, and as a family so constituted lived together at all times material here. Prior to May 12, 1924, Mr. Baxter had been employed in the mercantile business at the town of La Ward, Tex., by the firm of L. Ward & Son, and was then living there with his family in the firm's dwelling house located near by its store building. On that date he and appellant, by joint contribution, bought the Ward stock of merchandise, furniture, and fixtures located in the store building, and also, under the name of "Wingart & Baxter, a partnership composed of W. H. Wingart and T. J. Baxter, as lessees, by virtue of the written contract, the 3-year renewal term of which gave rise to this suit, leased as an entirety at an agreed rental of $50.00 per month from Mrs. Bettie C. Ward, Executrix, etc., et al., as lessors for two years from May 8, 1924, with optional tenure to lessees of three additional years at the same price and terms, the Ward & Son three pieces of property, which are thus described in the lease referred to:

"1. All of the store building and lot or enclosure situated at La Ward in Jackson County, Texas, now and heretofore...