Bryant v. Clark , 1961 Tex. App. LEXIS 2406 ( 1961 )

HUGHES, Justice

(dissenting).

I' respectfully dissent.

Appellant pleaded that the contract in suit provided that the deferred payment of $8,-000.00 should be paid in 15 equal annual installments, and that he was ready, able and willing to consummate said transaction.

Actually the word “equal” was not in the contract.

Under the circumstances present, I do not believe that specific performance is precluded by the omission of this word.

The contract in suit was prepared and written by appellee. The rule applicable in such cases is stated in 81 C.J.S. Specific Performance § 35, as follows:

“It has been held that a party who prepared, or whose attorney prepared, the contract or a memorandum thereof cannot, in order to defeat specific performance, take advantage of the omission of a term or condition therefrom, especially where the adverse party offers to allow the incorporation of the omitted term or condition in the decree.”

I construe the pleading of appellant to constitute an offer to pay the deferred purchase price in 15 equal annual installments.

The same authority, supra, same section, p. 499, further states:

“Failure of a contract to specify the time of payment may render it too incomplete to warrant specific performance thereof; but such omission will not bar specific performance where the time of payment may be supplied by implication.”

I believe that the only reasonable construction to be placed on this language is that the deferred consideration was to be paid in 15 equal annual installments. This is certainly the meaning which the average person would attribute to such provision.

I have been unable to find any authorities in point, the nearest approach being the rule that if a deed is made tO' two or more persons without stating the share each is to receive, the presumption is that each receives an equal part. 19 Tex.Jur.2d p. 413. The same rule is applicable, generally, to the construction of wills. 96 C.J.S. Wills § 698.

I would decree specific performance of this contract.