Terry v. Witherspoon

I agree that the motion for rehearing should be overruled, but I cannot agree to the conclusions announced by the majority as to the necessary meaning of the contract under which plaintiffs went into possession of the garage property and as to their right to bring this suit on their notes and have a foreclosure of their lien through a judgment of the court. It is my opinion that under the pleading and the evidence the meaning of the contract would be one of fact for the jury, and that the record would sustain a finding that the parties intended by such contract to provide that the plaintiff should keep the business "going" pending a sale. The written contract is not clear; the provision that Witherspoon and associates "will take charge of the property and use their efforts in selling it," and that out of the proceeds "the necessary expenses of the same are to be paid, including reasonable pay for the services of either member of the second part (plaintiffs) who attend to same," is not inconsistent with the idea that pending the sale the business is to be kept running. To my mind the writing itself suggests that this was what the parties intended. In cases where a written contract is ambiguous in its terms parol evidence as to prior negotiations may be introduced for the purposes of ascertaining the meaning of the writing itself. Lemp v. Armengol, 86 Tex. 690, 26 S.W. 941; Q. A. P. Ry. Co. v. Cooper (Tex.Civ.App.) 236 S.W. 812, 813, writ of error refused 240 S.W. xxi. In some cases where the contract is altogether silent as to some of the terms of the agreement, parol evidence thereof is admissible. Wilson v. Enfield (Tex.Civ.App.)249 S.W. 532 (1,2), and authorities. The parol evidence as to the negotiations leading up to the execution of the contract warrants, in my opinion, the finding that it was the intention of the parties to keep the business going until it was sold in bulk. The sale of particular articles of stock and purchases in replacement thereof would not destroy the identity of the property. Byrne v. McGrath, 130 Cal. 316, 62 P. 559, 80 Am. St. Rep. 127. According to plaintiff's evidence, as I understand it, the proposition discussed contemplated that the plaintiffs, or one of them, should "come in" with the owners, Terry Bros.; that one of the Terrys would work in the repair shop and the other "stay in front" and assist plaintiffs in running the business. The evidence, it seems to me, would warrant a finding that it was intended that sale should be made of a "going concern" rather than a "closed business." The record discloses that this was the practical construction put on the contract by the parties themselves. One of the Terrys did "stay in" for some 20 days after the plaintiffs "took charge," during which time the business was kept going in the usual way. When the Terrys did go out of it was not under claim that the contract did not mean that the business should be kept going until it was sold, but under claim that the contract under which plaintiff went into possession was procured by fraud. As I understand the records in these two appeals, the Terrys have never contended until that claim was put forward in the argument on this motion for rehearing that the contract meant that the business was to be closed up pending a sale.

I do not mean to say that under the contract as plaintiffs construe it they could conduct the business indefinitely. The law would perhaps imply that a sale should be made within a reasonable time. It may be possible, too, that the filing of the suit might affect plaintiff's right to thereafter continue the business. Since questions such as these are not briefed, and they are not discussed in the majority opinion, I express no opinion thereon myself.

I question whether, under the facts of this case, there was ever a time when the doctrine of election of remedies had any application. The taking possession of the property was not in pursuance to any optional right conferred by the contract. Such act was contemporaneous with the execution of the contract, and plaintiffs expressly agreed thereby to "take charge of the property and use their efforts to sell it." In any event, in my opinion, subsequent acts of the Terrys would prevent the application of the doctrine here. Election is applied as a branch of the law as estoppel. Lewis v. Powell (Tex.Civ.App.) 205 S.W. 737. The Terrys' repudiation of the contract just before suit was filed and their reassertion thereof in this suit practically put it out of the power of the plaintiffs to sell the property (who would buy it under such conditions?) and drove the plaintiffs into court. They are not in position, under the circumstances, to invoke estoppel against plaintiffs seeking the aid of the court.