Wright v. Donaubauer, 7677.

• Decision Date: 09 July 1941
• Docket Number: No. 7677.,7677.
• Citation: 154 S.W.2d 637
• Parties: WRIGHT v. DONAUBAUER.
• Court: Texas Supreme Court

Page 637

154 S.W.2d 637

WRIGHT v. DONAUBAUER.

No. 7677.

Supreme Court of Texas.

July 9, 1941.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by Edwin O. Donaubauer against Emil Heinen, trustee, and Mrs. Gertrude Wright, to cancel a vendor's lien note, to restrain sale of land, and to quiet title, wherein Mrs. Gertrude Wright filed a cross-action to have her title quieted as against plaintiff and for a deficiency judgment for the balance allegedly due on the note. A judgment sustaining a general demurrer and special exception to plaintiff's petition was reversed and the cause remanded for another trial by the Court of Civil Appeals, 132 S.W.2d 166, and the defendant Gertrude Wright alone brings error.

Judgment of the Court of Civil Appeals affirmed and judgment of the district court reversed and the cause remanded.

Schleyer & Bartram, of New Braunfels and W. S. Gideon, of Austin, for plaintiff in error.

Charles T. Haltom, of San Antonio, for defendant in error.

SHARP, Justice.

Edwin O. Donaubauer filed this suit against Emil Heinen, trustee, and Mrs. Gertrude Wright, to cancel a vendor's lien note executed by him to H. Leonards in part payment for certain lots situated in New Braunfels, conveyed to him by H. Leonards; to restrain sale of said lots by Heinen, trustee in a deed of trust executed to further secure the payment of said note; and to quiet his title to the lots.

The trial court denied the temporary injunction applied for, and, according to the allegations of Mrs. Gertrude Wright, an heir of H. Leonards and owner of the note, the lots were sold under the deed of trust and were bought in by her after this suit was filed. She also filed a cross action, and sought to have her title quieted as against Donaubauer and a deficiency judgment against him for the balance claimed to be due on the note. The trial court sustained a general demurrer and a special exception to Donaubauer's petition. An appeal was taken to the Court of Civil Appeals at Austin, and the judgment of the trial court was reversed and the cause remanded for another trial. 132 S.W.2d 166.

Donaubauer alleged that he purchased from H. Leonards certain lots, and that Leonards conveyed said lots to him on April 2, 1931, and in part payment therefor he executed his vendor's lien note for $2,100, payable in semi-annual installments of $100 each, beginning October 1, 1931. H. Leonards died in March, 1933. As a basis for his suit, and as grounds for cancellation of the vendor's lien note executed by him, Donaubauer made the following, besides other, allegations:

"That on or about three days after said April 2, 1931, the date of said note, the said H. Leonards made the following proposition to plaintiff relative as to how said note may be paid off, that is to say:

"That said H. Leonards should give a credit on said note at every payment period of the sum of $100.00 plus the interest due, and if plaintiff should live so long then said note should be paid off in said manner; but if said H. Leonards should die before said note was paid in full in said manner, that then, nevertheless, the balance due on said note should be cancelled upon the death of said H. Leonards.

"That in consideration of said H. Leonards so receiving payment of said note, the plaintiff should do the yard work, such as mowing the lawn, trimming the trees, cleaning the yard of trash and leaves, of the said home of said H. Leonards; that plaintiff should also do the same work on other properties of said H. Leonards at New Braunfels, Texas; that plaintiff should do repair work on the said home of said H. Leonards and other properties of said H. Leonards at New Braunfels, Texas; that plaintiff should also do such other and further work that should be reasonable and should be requested by said H. Leonards. And also that plaintiff's wife, Melanie Donaubauer, should do the housework at the said home of said H. Leonards, such as cooking his meals, washing his clothes, cleaning up the house, making up the beds, washing the dishes, and also do such other reasonable work that said H. Leonards might request her to do.

"That thereupon, on or about April 5, 1931, plaintiff and his said wife agreed to said proposition, and at all times since faithfully carried out said contract, and complied with said terms of said proposition and contract until the death of said H. Leonards."

It was further alleged that Leonards died on March 29, 1933, leaving as his sole heir Mrs. Gertrude Wright; that upon the death of Leonards plaintiff considered and believed the vendor's lien note paid off and cancelled; that shortly after the death of Leonards he attempted to explain to Mrs. Wright the terms of the contract, and she referred him to her agent, Otto Warnecke; that he did talk with Warnecke, who said he recognized the contract and plaintiff's rights thereunder; and that plaintiff heard nothing more about the note or its payment until shortly before December 15, 1937, when he learned that the trustee had posted notices of the sale of the property.

It further appears that suit was filed January 24, 1938. On January 31, 1938, the court, after a hearing, denied the temporary injunction prayed for. Thereafter the property was sold under the deed of trust, and Mrs. Wright became the purchaser.

On March 18, 1938, Mrs. Wright filed her original answer and cross action, which contained a general demurrer and special exceptions. The trial court sustained the general demurrer and the special exception that, "Said petition declares upon an oral promise to make a gift inter vivos."

Plaintiff in error contends, in substance, that the petition is insufficient as against a general demurrer, because (1) the alleged contract is executory and testamentary in character, and is not alleged to be in writing, and does not conform to the statutes governing the execution of wills; (2) that such contract...