Sumners v. Hohenberger
This text of 356 S.W.2d 804 (Sumners v. Hohenberger) 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.
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H. R. Hohenberger, Jr., and Honorbilt Homes, Inc., in a jury trial, recovered judg[805]*805ment for $58,400 actual damages against Realty Improvement Company, Inc., for breach of contract, and $10,000 punitive damages for a claimed independent tort, against Thomas D. Sumners and Realty Improvement Company, Inc. Defendants, on appeal, argue that the contract was void for uncertainty, that the contract was one which called for a future agreement, that the claimed damages were speculative, and that the jury answers about fraud, as a basis for punitive damages, do not support plaintiffs’ right to recover.
Hohenberger, on September 12, 1957, entered into contracts to buy two tracts of land. He planned to erect homes on the land and to sell them. After obtaining the contracts and before the closing dates provided in the contracts, he contacted Sum-ners. He showed Sumners the contracts and proposed that he finance the project. After investigation, Sumners agreed to do so. He then prepared a contract which the parties executed, and it is the basis of this suit.1 The contracts for the purchase of the lands were then closed. One grantor conveyed to Hohenberger, who in turn conveyed the property to Realty Improvement Company, Inc., the company through which Sumners did business. The other grantor, on instructions from Hohenberger, conveyed direct to Realty Improvement Company, Inc. Sumners and Hohenberger retained an architect and obtained plans for homes which would be built on the subdivision. The plans showed that the houses would be in the $10,000 price range. They dealt with and received from the F.H.A. a plat of the proposed subdivision. It showed a suggested plan for 195 lots. Defendants proceeded to develop the subdivision as their own in disregard of the plaintiffs and the contract.
The jury found all issues about the contract in favor of plaintiffs. The defendants urge that the contract is too uncertain and is therefore void as a matter of law. The contract is not void. All parties were experienced in the business, were familiar with the facts, and what was expected of each party to the contract. Sanderson v. Sanderson, Com.App., 130 Tex. 264, 109 [806]*806S.W.2d 744. Hohenberger, the owner of two earnest money contracts, was to manage the development and Sumners was to provide the needed funds. They had done the same thing before. What Sumners and RICO proceeded to do after RICO had the title to the land, is what Hohenberger and Honorbilt Homes, Inc., would have done if defendants had not breached the contract. Similar contracts have been adjudicated. The contract was certain enough. Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340; Thompson v. Duncan, Tex.Com.App., 44 S.W.2d 904.
The point that the contract is void because it was a mere contract to make future agreements is based upon the phrase in the third paragraph, “as agreed upon between RICO and Honorbilt Homes, Inc.” As a matter of construction, the third paragraph sets forth how the profits would be divided, and it itemizes the things which would be counted as expenses. These matters were not dependent upon future agreements. The phrase is limited to the sales and advertising costs only. Damages under the contract were proved by adequate evidence.
The point that the damages are speculative assumes that the contract was void for uncertainty. The reasoning is that the contract failed, and there were no damages proved which would support a recovery upon quantum meruit. Since the contract did not fail by reason of uncertainty, there, of course, was no need for proof of damages under quantum meruit.
In our opinion, however, the court should not have allowed Hohenberger and Honorbilt Homes, Inc., recovery of $10,000 as punitive damages. Plaintiffs pleaded an independent tort as a basis for recovery of punitive damages. The jury found in favor of the plaintiffs that Sumners made a representation to plaintiffs, that the representation was false, that plaintiffs believed it was true, that it was a material inducement, and that plaintiffs relied upon it. However, the jury also found in answer to another issue, that plaintiffs would have entered into the contract in spite of the representation. Thus is presented the claim by defendants, appellants here, that the last stated issue defeats recovery of punitive damages based upon an independent tort. If plaintiffs had not requested that issue, the others would probably have supported a judgment. Hickman v. Cooper, Tex.Civ.App., 210 S.W.2d 858, 862. However, it was submitted and we can not ignore the answer, because it is more specific than the one about reliance generally. The jury found that the misrepresentation was not the thing which induced the contract. By their answer they say that plaintiffs relied upon the misrepresentation, but not very much, and they would have made the contract anyway. Under that finding, plaintiffs failed to prove the tort. Avery Co. of Texas v. Harrison Co., Tex.Com.App., 267 S.W. 254, 257; Graves v. Haynes, Tex.Com.App., 231 S.W. 383; Buchanan v Burnett, 102 Tex. 492, 119 S.W. 1141, 1142; Gainesville Nat. Bank v. Bamberger, 77 Tex. 48, 13 S.W. 959, 960; Walton v. Steffens, Tex.Civ.App., 170 S.W. 2d 534.
The judgment for punitive damages is therefore not supported by the findings. We reform the judgment and affirm the judgment for actual damages in the sum of $58,400. Costs are charged equally against the appellants and appellees.
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356 S.W.2d 804, 1962 Tex. App. LEXIS 2396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sumners-v-hohenberger-texapp-1962.