Smith v. Grant

483 S.W.2d 871, 1972 Tex. App. LEXIS 2655
CourtCourt of Appeals of Texas
DecidedJune 27, 1972
DocketNo. 8086
StatusPublished
Cited by1 cases

This text of 483 S.W.2d 871 (Smith v. Grant) 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
Smith v. Grant, 483 S.W.2d 871, 1972 Tex. App. LEXIS 2655 (Tex. Ct. App. 1972).

Opinion

CHADICK, Chief Justice.

This appeal is from a suit that originated as a declaratory judgment action. Invalidation of a written contract pertaining to the sale and purchase of real estate was the original objective. The appellees were plaintiffs in the trial court. The appellants, one as an intervenor and the remainder as defendants, answered the original petition and filed a cross-action praying judgment for specific performance of the written agreement, for relief associated therewith, and additionally on the part of the inter-venor for collection of a real estate broker’s commission.

In an effort to hold this opinion within tolerable bounds, a copy of the written agreement that is the focal point in the appeal is appended (Appendix A) and ref[873]*873erences will be made to such copy as convenience requires. The document was usually referred to by the parties and the trial court as an option, though it evidences something more than a simple option. The instrument grants the optionee exclusive right to purchase real property described therein within four months after date, or any extension of the option period, at the price and upon the security therein specified. Separate consideration for the option is recited. The provisions of the instrument dealing with the option to purchase are incorporated in the first unnumbered paragraph and paragraphs numbered 1, 3, 4, 6, and 8.

The agreement is so written that when and if the optionee elects to purchase, the agreement becomes an executory contract of sale and purchase that distinctly sets out the obligation, rights and duties of the parties! This second aspect of the contract is evidenced by the provisions of the first unnumbered paragraph and paragraphs numbered 1, 2, 5, 7, 9, 10, 11, 12 and 13. Thus construed, the contract has a dual nature, which is a relatively common feature of sales contracts. 17 Am.Jur.2d Contracts, Sec. 32.

The appellees as plaintiff in their trial petition plead as follows:

“III. Plaintiffs would show the court that such option has long since lapsed, and was never completely exercised within the terms of said option agreement, and that therefore this court should declare such option to be null and void and of no effect.”

Special Issue No. 1, the instruction given in connection with it and the jury’s answer thereto are as follows, viz:

“Special Issue No. 1. Do you find from a preponderance of the evidence that the holders of the option did not fully exercise the option in accordance with the terms of the option ?
Answer ‘They did not fully exercise the option’ or ‘They did fully exercise the option.’
ANSWER: ‘They did not fully exercise the option.’
If you have answered the above special issue ‘They did not fully exercise the option,’ then do not answer the following special issues; otherwise, answer them.”

The appellants’ first two points of error are in this language, to-wit:

“FIRST POINT. The court erred in overruling the motion for a directed verdict made by the defendants and cross-plaintiffs, A. O. Smith, Jr., and Judge B. Fite, and by the intervenor and cross-plaintiff, Katherine Clark, Individually and as Independent Executrix of the Estate of Don A. Clark, Deceased, upon the completion of all testimony by all parties and prior to the court’s charge to the jury.
“SECOND POINT. The court erred in overruling the motion of the defendants and cross-plaintiffs, A. O. Smith, Jr. and Judge B. Fite, and intervenor and cross-plaintiff, Katherine Clark, Individually and as Independent Executrix of the Estate of Don A. Clark, Deceased, for judgment non obstante veredicto.”

In order to sustain these points of error the evidence must show as a matter of law that the optionee elected to purchase the property described in accordance with the contract’s provisions.

The contract under consideration bears date of June 27, 1967. The original op-tionee-buyer, Henry A. Yeats, died November ,25, 1967. The optionor seller, Dr. R. R. Brunazzi, died February 24, 1969, and his widow Cecile Brunazzi died February 8, 1970. The broker, Don Clark, died July 22, 1969. Legal representatives and successors in interest of these decedents are parties to the lawsuit. The Dead Man’s Statute, Vernon’s Tex.Rev.Civ.Stat. Anno. art. 3716, was not waived and as a consequence of these deaths a limited history of the transaction between the original parties to the contract was developed in the trial court.

[874]*874Dr. Brunazzi extended the option granted by the contract for an additional 40 days by letter dated October 23, 1967. The option was extended a second time on December 7, 1967, to and including the 26th day of December of that year. On behalf of the parties entitled to exercise the option, Judge B. Fite wrote a letter (Appendix B) to Dr. Brunazzi on December 19, 1967, saying in the opening paragraph that the optionees intend to exercise; the option and requested that an abstract of title and other documents necessary for completion of the contractual transaction be delivered to a designated attorney for examination. Receipt of the Fite letter was acknowledged by Dr. Brunazzi’s attorney in a letter addressed to Fite and dated December 21, 1967 (Appendix C). Besides acknowledging receipt of the Fite letter of December 19, the attorney’s letter advised that an abstract of title had been delivered to Fite’s attorney for examination and that supplement thereto had been ordered and would be forwarded.

The contract (¶ 6), required that notice of election to purchase be in writing and given either to Dr. Brunazzi or his attorney. The contract did not require any particular words or form to be used in giving notice. Williston, Contracts 3d ed. § 70 is cited in 17 Am.Jur.2d Contracts, § 45 for the precept that, “ * * * where the offeror manifests his satisfaction with a mode of acceptance which the acceptor adopts, the law imposes upon both parties the obligation which they expect or by their course of conduct should have good reason to expect.” Also of similar import, 13 T.J.2d, Contracts, Secs. 26, 29, and 38; 77 C.J.S. Sales § 33d. Although the Fite letter of December 19 uses language in the first sentence that may be construed as expressive of an intent to exercise the option in the future, the remainder of the letter is consistent with and implies a present exercise of the option by requesting that abstract of title and other documents necessary for completion of the transaction be furnished the optionees’ attorney. In the setting of this record the letter constituted and was sufficient as notice. Dr. Brunazzi’s obligation to furnish an abstract, as written into the contract (¶ 7), matured and was triggered by an exercise of the option. The request that Dr. Brunazzi furnish the abstract clearly implied a present exercise of the option granted even if preceding language in the notice left room for doubt.

The letter of Dr. Brunazzi’s lawyer (Appendix C) dated December 21, 1967, expressly acknowledges on behalf of Dr. Bru-nazzi that the option to purchase had previously been exercised. It also advised that abstracts of title had been supplied to Judge B. Fite’s legal counsel and that a supplement would be forthcoming. The first sentence of the seventh paragraph of the contract provides:

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Bluebook (online)
483 S.W.2d 871, 1972 Tex. App. LEXIS 2655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-grant-texapp-1972.