Jones v. English

268 S.W.2d 686, 1954 Tex. App. LEXIS 2598

• Court: Court of Appeals of Texas
• Decided: May 12, 1954
• Docket: 12625
• Status: Published

Opinions

W. O. MURRAY, Chief Justice.

This cause has been before this Court previously upon procedural questions. See Jones v. English, Tex.Civ.App., 235. S.W.2d 238. It was instituted in the District Court of Nueces County by Dudley Jones against Mrs. Rudolph English, a feme sole, seeking partial specific performance of a certain written sales contract entered into between plaintiff and defendant on or about January 21, 1950, whereby plaintiff agreed to buy and defendant agreed to sell, for a cash consideration of $9,500, the following described real property:

All of Lots 19, 20, 21, 22, 23 and 24 of Block 7 in the Patrick Webb Subdivision of Corpus Christi, Nueces County, Texas.

The contract further provided that the deal should -be closed on or before February 15, 1950 (the contract stated 1949 through typographical error).

On February 8, 1950, plaintiff received a letter from attorneys representing Fred F. English .(a son of Mrs. Rudolph English), Elizabeth Veselka (a daughter of Mrs. English) and her husband, Adolph J. Veselka, informing plaintiff that these parties owned an interest, right and title in and to the property above described,' that they would not sell their interest and had not authorized any one to sell it for them. On February 11, 1950, plaintiff notified defendant that he had complied with his contract by depositing the required amount of money with the Guaranty Title &' Trust Company, and that if she was unable to convey the full title to the property he would expect her to convey her undivided interest, with a proportionate reduction or abatement in the purchase price. Thereafter, on February 14, 1950, plaintiff received a letter from defendant dated February 10, 1950, stating that in view of the fact that her children, Mrs. Veselka and Fred F. English, would not join her in any conveyance of the property, the sale could not be consummated. Thereafter plaintiff filed this suit seeking, to compel Mrs. English to convey to him such interest as she did have in the property, with a proportionate reduction or abatement in the purchase price. Milton A. North, who acted as defendant’s agent in negotiating the purchase contract, was made a party to the suit, and he has filed a cross-action asking for a real estate commission in the sum of $450. Fred F. English and Elizabeth English Veselka, joined pro forma by her husband, Adolph J. Veselka, have intervened herein.

The cause was submitted to a jury upon thirty-two special issues. Both Jones and North filed separate motions for instructed verdicts, which were overruled by the court, and after the jury had returned its answers both filed separate motions for judgment non abstante verdicto, which motions were overruled by the ’court and judgment rendered deyning Jones and North any recovery, and providing further that Mrs. English go hence with her costs, from which judgment Dudley Jones and Milton A. North have prosecuted this appeal.

Appellee, Mrs. English, contends that her counter-points Nine and Ten present the controlling issues in this appeal, and with this we are inclined to agree. Her Ninth Counter Point presents the contention that inasmuch as Jones knew at the time the contract was executed that Mrs. English could not perform the contract, he is not. entitled to partial specific performance. The Tenth Counter Point presents the contention that inasmuch as the contract required that the seller furnish'the purchaser “a policy of' title insurance to be issued by the Guaranty Title and Trust Company of Corpus Christi, Texas, in the, usual and Customary form,” which policy the Title Company will not issue in the usual and customary form, and Jones having refused to waive such provision, he is not entitled to partial specific performance.

The evidence shows and the jury found that both Jones and Mrs. English knew that her children owned an undivided interest in the property and that Mrs. English could not convey the whole of the title thereto without the joinder of her children. The evidence further shows that originally the children, all of whom were of age, were agreeable to joining their mother in this conveyance. The reason they did not go through with the matter was that Mrs. English insisted that her son William, whose interest she had previously purchased, should have a child’s share of the consideration to be paid by Jones. It was this dispute which finally caused the other children to decide not to join their mother in the execution of the deed to Jones, a situation for which Jones was not in any way responsible.

Mrs. English contends that this contract was nothing more than an option without consideration because it was impossible for her to perform it in full, and therefore Jones could either insist on partial specific performance or not, as he saw fit, while she could not legally insist upon partial specific performance. We cannot agree that the contract was only an option. If her children had joined her in the execution of the deed,' as no doubt they originally intended to do, Jones would have had no option 'but to accept the property and pay the money called for in the contract. By its terms Mrs. English agreed to convey the property and Jones agreed to purchase and pay the consideration stated. Jones had no option in the event he was tendered a proper deed and Mrs. English complied with her part of the obligations stated in the contract.

If the inability of the vendor to convey full title to the property would render the contract nothing more than an option, then partial specific performance could never exist, as it is only when the vendor has contracted to do something that he cannot do that a partial specific performance is sought by the purchaser...

Mrs. English next contends that there was no mutuality because she was bound and Jones was not. We do not agree. As above stated, if her children had joined in the deed Jones would have been bound and could have been compelled to have performed his part of the contract. The mere fact that Jones knew that the children would have to join in the execution of the deed did not change the situation. A very enlightening discussion along this line is found in Vanzandt v. Heilman, 54 N.M. 97, 214 P.2d 864, 870, 22 A.L.R.2d 497. In that opinion the court said:

“From the cases and comments referred to and quoted, we have come to the conclusion that the mere lack of mutuality of remedy in favor of the defendant is not ground for refusing equitable relief. As stated by Judge Cardozo in Epstein v. Gluckin, supra, [233 N.Y. 490, 135 N.E. 861], ‘What equity exacts to-day as a condition of relief is the assurance that the decree, if rendered, will operate without injustice or oppression either to the plaintiff or defendant’; or, as stated by Judge Harlan Stone in his article quoted from 16 'Columbia Law Review, ‘There is want of mutuality of remedy, when and only when the court is unable for any reason to insure the defendant’s receiving that which he is entitled to receive in exchange for the performance of his own promise;’ provided the transaction is free from fraud, duress, unfairness or other inequities.”

Here the court is in a position to give Mrs. English exactly what she would have received if her children had joined her in a conveyance of the property to Jones, which was ⅝ of the consideration to be paid in cash.

There is no merit to the contention that to enforce specific performance would he to make a new contract. Mrs. English made a contract. If her children had joined in a deed, her interest in the contract to sell was ⅜. It remains a ⅜ interest. The specific performance against her is on her own contract and her interest is exactly the same whether all or none of her children join in a deed. This is not the making of a new contract, it is the enforcement of Mrs. English’s contract.

There seem to he some states that hold that the mere knowledge of the purchaser of the fact that the vendor does not own the whole of the title to the property at the time the contract is signed will prevent him from seeking partial specific performance. There can he no reason for such a rule, unless there is something in the nature of had faith on the part of the purchaser.

Here Jones entered into the contract to purchase the property from Mrs. English, who was in possession of the property and had been exercising dominion over it since the death of her husband. She was apparently the one from whom a person would seek to purchase the property.¹ Jones had a right to believe that if Mrs. English was willing to enter into a solemn written contract to convey the whole of the property to him that she knew what she was doing and that she had a satisfactory arrangement with her adult children to join her in execution of the deed that would follow.² Under such circumstances, where Jones is willing to accept such title and Mrs. English is able to convey, with a proportionate reduction in consideration, there is no reason why he should not have such partial specific performance; it would not be unjust or oppressive.

Regardless of what the law may be in other states, the law in this State requires that under the circumstances here existing Jones is entitled to partial specific performance. Ward v. Walker, Tex.Civ.App., 159 S.W. 320; Hays v. Marble, Tex.Civ.App., 213 S.W.2d 329; Dittoe v. Jones, Tex.Civ.App., 220 S.W.2d 315.

We conclude that the contract was not an optional one, that it did not lack mutuality, that it would not he unjust or-oppressive to grant Jones partial specific performance, and that same should not be denied simply because both Jones and Mrs. English knew, or should have known, at the time the contract was signed, that she could not convey full title to the property without the joinder of her adult children.

The jury found that Jones did not give appellee reasonably prompt notice of his willingness to take the property subject to the leases, and without deduction for such leases from the purchase price. Jones wrote Mrs. English, in effect, on February 11, 1950, that he would expect her to carry out her contract to the extent she was able to do so. This was sufficient notice, especially where Jones is not asking for- any reduction in the purchase price due to the existing leases. He had a right to waive the matter of the leases and the only contest that could properly have arisen was as to his right to a reduction in consideration on account of the existence of the leases. If Jones had so demanded, he would have been entitled to have the purchase price reduced, due to the existing legal leases. Steindler v. Virginia Public Service Co., 163 Va. 462, 175 S.W. 888, 95 A.L.R. 220; Manning v. Cohen, 124 La. 869, 50 So. 778; Austin v. Ewell, 25 Tex.Supp. 403; Heirs of Roberts v. Lovejoy, 60 Tex. 253; Puckett v. Hoover, Tex.Civ.App., 197 S.W.2d 602; Eppstein v. Kuhn, 225 Ill. 115, 80 N.E. 80, 10 L.R.A.,N.S., 117. Certainly, Mrs. English could not complain because Jones waived his right to recover the value of the detriment caused to him by reason of the leases.

The only real fact issue raised by the pleadings and the evidence, so far as Jones is concerned, is whether Milton A. North, the real estate agent who purported to represent Mrs. English in this transaction, was in truth and in fact the agent of Jones, and whether Jones and North had entered into a conspiracy to defraud Mrs. English. The jury’s answers are to the effect that North was the agent of Mrs. English and not the agent of Jones, and that no conspiracy existed between Jones and North. With this matter settled, the trial court should have granted the motion of Jones for judgment notwithstanding the verdict. It is true the court submitted to the jury and the jury found that it would be inequitable to grant Jones partial specific performance of the contract with a corresponding reduction of the consideration. This was not a question for the jury but one to be determined by the court. It should be determined from the established principles and doctrines of equity, with which the jury are not presumed to be familiar. Bergstedt v. Bender, Tex.Com.App., 222 S.W. 547; Fabra v. Fabra, Tex.Civ.App., 221 S.W. 1008; Bourland v. Huffhines, Tex.Civ.App., 269 S.W. 184, aff. 280 S.W. 561; English v. Underwood, Tex.Civ.App., 5 S.W.2d 1033.

If Mrs. English should be excused from performing this contract, insofar as she is able to do so, it would be because her children refused to join her in the deed, and the reason they refused was because she wrongly insisted that her son William, who owned no interest in the property, be given a child’s share of the consideration. Thus Mrs. English is seeking to defeat Jones’ right to partial specific performance of the contract because she agreed to convey the whole of the title to the property when she held only ⅜ of such title, and because she agreed to a conveyance of the property free from leases when she could not do so, and her further insistence that her son William be given a child’s portion of the consideration to which he was not entitled. These do not constitute sufficient reasons for denying Jones partial specific performance of the contract.

The appellant Milton North was not entitled to judgment notwithstanding the verdict' because, according to the findings of the jury, he rendered a disservice, rather than a service, to Mrs. English. Hume v. Bogle, Tex.Civ.App., 204 S.W. 673; Webb v. Durrett, Tex.Civ.App., 136 S.W. 1189.

That part of the judgment which decrees that North take nothing by reason of his cross-action will be affirmed.

The judgment as to Dudley Jones will be reversed and judgment here rendered granting him partial specific performance of the contract as prayed for by him.

Affirmed in part, reversed and rendered in part.

1 . That the vendee, Jones, knew that Mrs. English did not own the full title, is the fact upon which she relies to defeat Ms right to partial specific performance. Some text-writers state that such knowledge will defeat a vendee’s right to partial specific performance. Ill Williston on Contracts, § 1436; 49 Am.Jur., Specific Performance, § 106; 81 C.J.S., Specific Performance, § 21, p. 450. On the other hand, it is not unusual that one will make a contract with the one who is the logical one to complete title by acquiring outstanding interests. The note in 154 A.L.R. p. 776, states: “If specific performance, with an abatement in purchase money, is to be denied where the vendee at the time of contracting knew the vendor had actual title to only a partial interest, it would seem reasonable, generally speaking, to limit the denial to cases where the vendee also knew that the vendor was without means of furnishing the title contracted for.” The note then cites numerous eases in support of that view.

Actually, the majority rule is that knowledge on the part of the vendee does not defeat his right to specific performance. “But most of the cases by their silence on the point, and sometimes by direct statements or implications, negative the idea that mere knowledge or notice that the seller did not presently have complete title is a bar to granting the purchaser partial specific performance.” 148 A.L.B.. 572. A closer examination of the authorities which announce the rule that knowledge by the vendee defeats his right to specific performance, reveals that: “On their facts, however, few cases give convincing support to that proposition.” 154 A.L.R. 774.

2 . “It would seem that ordinarily a purchaser may reasonably assume that the seller would not undertake to deliver a specified title if without any means whatever of securing it. So there would appear to be good ground for distinguishing between a case where the purchaser knows that the acquisition of title is a mere possibility or gamble, and a case where he is justified in supposing the contrary. On this point, compare 'the cases set out supra.

“One might suppose that in many cases where a vendor at the time of contracting had title to one of two tracts sold and expected to be able to obtain title to the other, the disappointment of his expectation would furnish no reason for denying the vendee a conveyance of that to which the vendor had title, whatever the knowledge of the vendee may have been.” 148 A.L.R. 572.