Ridglea Interests, Inc. v. General Lumber Company

343 S.W.2d 490
CourtCourt of Appeals of Texas
DecidedFebruary 10, 1961
Docket16159
StatusPublished
Cited by13 cases

This text of 343 S.W.2d 490 (Ridglea Interests, Inc. v. General Lumber Company) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ridglea Interests, Inc. v. General Lumber Company, 343 S.W.2d 490 (Tex. Ct. App. 1961).

Opinions

BOYD, Justice.

Ridglea Interests, Inc., A. C. Luther and wife, Nelle M. Luther, and Earl Wilson, Jr., and wife, Nancy Luther Wilson, sued General Lumber Company for damages. The court was of the opinion that the plaintiffs’ petition failed to state a cause of action, and that it showed upon its face that the cause of action attempted to be alleged was barred by the four year statute of limitation, and' in response to General Lumber Company’s motion, the cause was dismissed. The plaintiffs appeal.

On August 24, 1949, appellants, other than Ridglea Interests, Inc., as first parties, who owned part of Block 49, Chamberlain-Arlington Addition to the City of Fort Worth, and appellee, as second party, who owned the remainder of said Block, entered into a written contract, which we designate as Contract A, in substance as follows:

After agreeing to the closing of an alley running east and west through Block 49, and that they would jointly request such closing and jointly take such action as might be required to secure such closing, they agreed mutually to assist in obtaining a rezoning of that part of said Block situated north of said alley to “F Commercial District”.

Paragraph 4 of the contract reads as follows ;

[491]*491“Contingent upon closing the above alley and upon a re-zoning of the property north of the alley as ‘F Commercial District’, the parties agree:
“(a) That Second Party will establish a building line along its property fronting on Camp Bowie Boulevard, 46 feet north of the north curb line of Camp Bowie Boulevard, which said building line shall be made a part of Second Party’s application for a change in zoning restrictions, and each party agrees that no building constructed by him shall be located nearer than 46 feet from the north curb line of Camp Bowie Boulevard.
“ (b) That should the restrictions on such property be changed to ‘F Commercial District’, First Parties shall execute to Second Party a general warranty deed covering Lot 13 and the East 9 feet of Lot 12, Block 49, Chamberlain-Arlington Addition, and Second Party will sign, execute and deliver to First Parties a general warranty deed to the West 16 feet of Lot 28, Block 49, Chamberlain-Arlington Addition, both conveyances to take to the center of the alley and both to be made simultaneously within a period of ten days after such change in zoning.
“If First Parties at any stage of the proceedings should elect not to go forward in securing a final judgment re-zoning their property, Second Party may nevertheless enforce an exchange as provided in subdivisions (a) and (b) above, if it shall secure a final order of the Zoning Commission or a final judgment re-zoning its property as above mentioned.”

Paragraph 5 is in part as follows:

“The parties agree that each shall be relieved of his undertaking contained in paragraph 4 unless final orders have been obtained closing such alley and re-zoning the property lying north of the alley, as explained in paragraph 4, within two years from the date of this contract, * * * ”

In paragraph 8 the parties agreed that ■“all rights and obligations herein set out shall, subject to the terms, conditions and contingencies of this agreement, inure to the benefit of and be binding upon their heirs, executors and assigns.”

In September, 1949, the same parties executed another written contract which we designate as Contract B, which, with the exception of subdivision (a) of paragraph 4, is for all relevant purposes an exact duplicate of Contract A.

Subdivision (a) of paragraph 4 reads as follows:

“That Second Party will establish a building line along its property fronting on Camp Bowie Boulevard, 46 feet north of the north curb line of Camp Bowie Boulevard, which said building line shall be made a part of Second Party’s application for a change in zoning restrictions, and each party agrees that no building to be constructed hereafter shall be located nearer than 46 feet from the north curb line of Camp Bowie Boulevard, or nearer than the distance from the southeast corner of the building heretofore constructed on Block 49 by First Parties, to the north curb line of Camp Bowie Boulevard, should such distance be less than 46 feet.”

After the execution of the contracts, Ridglea Interests, Inc., acquired the interest of Nancy Luther Wilson and husband in Block 49.

The alley which was referred to in both contracts was closed by proper authority on February 15, 1950. The parties obtained a re-zoning of the property north of the alley to “F Commercial District” on July 18, 1951, the application therefor being filed on June 3, 1950, in which all the parties to this suit, as well as other interested persons, joined.

On December 28, 1953, appellants deeded to appellee the land which they agreed to convey and which was described in subdivision (b) of paragraph 4 of both contracts, and on January 4, 1954, appellee deeded to appellants the land which it [492]*492agreed to convey and which was described in said subdivision.

Appellee did not establish a building line on its property fronting on Camp Bowie Boulevard, nor did it make a building line a part of the application for rezoning.

On November 18, 1954, appellee sold all of its land in the contracts described to a purchaser who had no knowledge of the existence of either of the contracts, neither of which was ever filed for record. Appellee did not file for record any plat or dedication or other instrument fixing or establishing a building line or in any way give notice of its agreement to establish a building line.

After appellee sold the land an office building was constructed on the property, the south portion of which was and is less than 46 feet north of the north curb line of Camp Bowie Boulevard.

This suit was filed on October 22, 1956. Appellants alleged that by failing to establish the building line, and by selling the land without notice to the purchaser of the existence of the contracts, thus rendering performance impossible, appellee breached the contracts to appellants’ damage.

Appellee’s position is that the only duty imposed on it by the contracts with reference to a building line was to make such line a part of the application for rezoning, and that, having failed to do so, appellee’s breach of the contracts occurred when it failed to make the building line a part of the application for the zoning change; and that appellants’ cause of action, if any, arose when that application was filed, or at the latest, when it was granted.

While the question is not free from difficulty, we are constrained to disagree with appellee’s construction of the contracts. It seems to be evident that the main purpose of the parties was that appellee should establish a building line 46 feet north of the north curb line of Camp Bowie Boulevard, which obligation was contingent upon the rezoning. The obligation was to do more than to make the building line a part of the rezoning application. We think the provision that the building line be made a part of the rezoning application was subsidiary to the main purpose of establishing the line, which main purpose should control. Hancock v. Butler, 21 Tex. 804; Parrish v. Mills, Tex.Civ.App., 102 S.W. 184; Thompson v. Waits, Tex.Civ.App., 159 S.W. 82, error refused; Price v. Biggs, Tex.Civ.App., 217 S.W. 236; Hynd v. Sandler, Tex.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

South Carolina Electric & Gas Co. v. Hartough
654 S.E.2d 87 (Court of Appeals of South Carolina, 2007)
Carroll v. Wied
572 S.W.2d 93 (Court of Appeals of Texas, 1978)
Joines v. Burke
540 S.W.2d 798 (Court of Appeals of Texas, 1976)
NHA, INC. v. Jones
500 S.W.2d 940 (Court of Appeals of Texas, 1973)
Heiskell v. H. C. Enterprise, Inc.
429 S.W.2d 71 (Supreme Court of Arkansas, 1968)
Houston County v. Leo L. Landauer & Associates, Inc.
424 S.W.2d 458 (Court of Appeals of Texas, 1968)
Continental Casualty Co. v. King
423 S.W.2d 395 (Court of Appeals of Texas, 1967)
American Guardian Insurance Company v. Rutledge
404 S.W.2d 847 (Court of Appeals of Texas, 1966)
Ridglea Interests, Inc. v. General Lumber Company
343 S.W.2d 490 (Court of Appeals of Texas, 1961)

Cite This Page — Counsel Stack

Bluebook (online)
343 S.W.2d 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ridglea-interests-inc-v-general-lumber-company-texapp-1961.