Fahey v. Benedetti , 1913 Tex. App. LEXIS 1032 ( 1913 )

Mollie C. Benedetti sued David Fahey, J. L. Boddeker, and J. E. Boddeker, the last two being partners under the firm name of J. L. Boddeker Co., alleging that about March, 1912, Fahey purchased from her a lot in the city of Galveston; that she delivered the deed to J. L. Boddeker Co. to be delivered to Fahey, which was done, and Fahey, as consideration for said deed, executed and delivered to Boddeker Co., his check for $2,500, drawn on Ed. McCarthy Co., Bankers, which check was received by said Boddeker Co. in trust for plaintiff to be delivered to her; that Fahey stopped payment of the check, and refuses to pay for the property; that by reason of the premises Fahey is indebted to plaintiff in the sum of $2,500, and plaintiff tenders him possession of the premises as she has heretofore done; that as Boddeker Co. refuse to deliver the check they are made parties to this suit; that it was understood and agreed between plaintiff and Fahey that the taxes and incumbrances against the property sold should be paid out of the $2,500 by Boddeker Co., and the remainder was to be paid by them to plaintiff; that plaintiff sold her furniture and effects at a sacrifice, rented other property, removed to such other property such of her effects as remained unsold, all with Fahey's knowledge, and delivered to Fahey possession of the property sold him; that Fahey's refusal to pay the money and take possession of the property was for the sole purpose of acquiring for himself the property at less than $2,500, and was done willfully and maliciously for the purpose of harassing plaintiff; that plaintiff is about to lose her property by reason of the incumbrance against same, and, being aged, she suffered mental anguish and distress of mind to such extent as to impair her health. Plaintiff prayed for judgment for $2,500, the amount of the check, for $10,000 actual damages and $10,000 exemplary damages, and that the contract of sale be specifically performed, and for costs and general relief.

Fahey answered by general demurrer; a special exception that plaintiff in effect sues for specific performance of a contract to convey real estate, and there is no allegation of a contract signed by Fahey, or of such mutuality among the parties, as would entitle plaintiff to specific performance, and also because the terms and provisions of the contract are not alleged; a general denial; a special answer to the effect that if he bought the property it was with the understanding that the title should be perfect and be satisfactory to and approved by his attorney and the property vacated by plaintiff and delivered to Fahey, and that the title was imperfect and not approved by his attorney, there being at the time an incumbrance by mortgage for more than $2,000, as well as a lien for taxes, both of which liens were not released at the time of the alleged delivery of the property and the check, and in addition said property was the homestead of plaintiff, who was a married woman, incapable of selling same without her husband joining in the sale, and her husband did not join therein, and the property was not delivered to Fahey; a further special answer that the check was not delivered to Boddeker Co. as plaintiff's agents, but merely to provide a way for Fahey's attorney to close the sale during Fahey's absence, he then being about to absent himself from the city for an indefinite time, and at the time plaintiff was in possession of the property and no rights in the check were intended to be vested in her unless Fahey's attorney should direct the same to be cashed or delivered to plaintiff; and further answering Fahey alleged that, if he ever bought said property, plaintiff so delayed in the delivery thereof and made accusations against Fahey of forcing her to make a sale to him at much less than the value of the property, that Fahey on account thereof, and because of the mortgages and tax liens, and because the title was not satisfactory to his attorney, declined to accept the property and demanded the return of his check, and it would be unjust to him to require him to pay for said property. He prayed that such sale, if any there was, be set aside, and the check canceled.

The court instructed a verdict for plaintiff for $2,500, with interest from March 1, 1912, at the rate of 6 per cent. per annum, out of which was to be returned to Fahey $106.63, taxes, and $2,109.37, the amount of the mortgage debt, and that title to the property be divested out of plaintiff and vested in Fahey, A judgment was entered upon this verdict, which provided for the payment of taxes and the mortgage debt by the clerk of the court out of the $2,500 when the same should be collected under execution, and that upon payment of the judgment the clerk should deliver Fahey the check, also that the judgment should be satisfied upon the filing by Fahey of receipts showing the payment of the taxes and the mortgage debt and upon his paying the remainder of the judgment to the clerk together with the costs, and it was further ordered that J. L. Boddeker and J. E. Boddeker be dismissed from the case, and that they recover of Fahey all costs incurred by them. Fahey appealed.

By the first assignment of error it is contended that the court erred in instructing a verdict for plaintiff, three grounds being urged, each being a contention that in a certain particular the evidence was sufficiently conflicting to go to the jury. The assignment does not refer to the paragraphs of the motion for new trial in which the questions were presented to the trial court for revision, nor does the statement contain such reference, and upon examination of the motion we find no reference to the last ground urged in the assignment of error as a reason why the verdict should not have been instructed for plaintiff. The assignment is followed by three propositions, all of which are mere abstract propositions of law, casting no light upon the matter under investigation. These propositions are followed by a statement which fails to comply with the rules, as it consists of appellant's conclusions concerning what the testimony shows, interspersed with arguments. Reference is incidentally made to the fact that the testimony of Fahey and that of plaintiff and J. L. Boddeker is set out in the brief, and we find the same in a "Statement of Material Facts," wherein appellant devotes 12 pages of the brief to a statement of all the testimony deemed material by him. No reference is made to the page or pages of the preliminary statement on which the matter bearing upon this assignment is to be found. In fact, we are left to search the entire preliminary statement to see whether any merit exists in any of the contentions attempted to be made by the assignment. Each issue raised by the assignment should have been presented by an appropriate proposition, and supported by a statement of the evidence relating to that particular issue. The assignment, not being briefed in accordance with the rules, should not be considered. We are, however, of the opinion that there is no merit in the two contentions which could have been presented under this assignment.

We do not consider the evidence conflicting upon the issue whether the amounts due for taxes and incumbrance were to be paid out of the $2,500 to be paid by Fahey. Fahey testified he had no idea the money was to be paid out of his check, that he did not look at it in that way at all, and never paid any attention to it, that all he wanted to know was that the property was straight, and all he wanted Boddeker to do was to be guided by his attorney. His testimony is evasive when asked to state what occurred in Boddeker's office with respect to paying off the mortgage and tax liens out of the check, while Boddeker's testimony is clear and explicit, and the facts show beyond dispute that it was contemplated by all parties that the charges against the property should be paid out of the $2,500 to be paid by Fahey. He, as well as the other parties, knew that plaintiff had no way of paying such charges except out of the price received for her home. Fahey made his check payable to the Boddekers, instead of to plaintiff. It was undisputed that the Boddekers were stakeholders for the parties, intrusted by each with certain duties to be performed. For Fahey they were to see that not only the amounts due for taxes and incumbrance were paid, but also the amount due for the abstract of title. Fahey told Boddeker to get an abstract of title and deliver the same to his attorney, which was done. This is not disputed by Fahey. Why did he order the abstract of title? If plaintiff was unable to procure same, how was she expected to pay for same unless out of the proceeds of the sale? Why was the check made payable to the Boddekers if these charges were not to be paid out of same? No reason is given, and it is clear, even without the testimony of Boddeker, that the understanding was that the charges were to be paid by Boddeker out of the proceeds of the check, and Boddeker at once made out his checks and had them ready to close up matters as soon as plaintiff should move from the premises. The facts also show beyond dispute that Fahey's attorney had stipulated what must be done to have the title made satisfactory to him, and that nothing remained to be done except to pay off the taxes and furnish receipt and pay off the incumbrance of which he had himself drawn the release, and he knew and acquiesced in leaving it to the Boddekers to make such payments. He left a memorandum with them of the amounts to be paid to satisfy the mortgage debt. Further, it does not appear that plaintiff was to vacate the premises within any certain time, nor that she delayed unduly, nor that Fahey was in any way prejudiced by such delay as took place; that the Boddekers at his request nailed on the house upon the premises a "For Rent" sign, and it does not appear that any one wanting to rent was prevented from doing so by reason of plaintiff's slow removal therefrom.

The second and third assignments also attack the judgment as unsupported by the evidence, but no statement of any kind is made under either of them, and they will not be considered.

The fourth assignment reads as follows: "The court erred in overruling the special exception of defendant to plaintiff's failure to allege a contract in writing, because the plaintiff must, before being allowed to have contract specifically performed, show that it is of such character as entitled her to relief sought." No statement is submitted under this assignment, and we do not know whether complaint is sought to be made of the overruling of the special exception hereinbefore stated in setting out defendant's pleadings, or a similar special exception urged in a so-called "First Supplemental Answer." The assignment should not be considered.

However, the petition does not disclose that the contract was verbal; hence the exception was properly overruled. Thomas v. Hammond, 47 Tex. 42 . Lewis v. Alexander, 51 Tex. 578; Robb v. Traction Co., 82 Tex. 392,18 S.W. 707; Land Co. v. Dooley, 33 Tex. Civ. App. 636, 77 S.W. 1030.

Besides, the petition alleged such a performance on the part of plaintiff as would entitle her to have specific performance required of Fahey. Tinsley v. Miles, 26 S.W. 1000; Showalter v. McDonnell, 83 Tex. 158,18 S.W. 491; Fulton v. Robinson, 55 Tex. 401.

The judgment is affirmed.