Jacks v. Manning

On Motion for Rehearing.

Appellee urges that the description of the Glendale Acres property in the contract of sale was not sufficient as a basis for a suit for specific performance; that there was ambiguity in that description as one-half block being three lots; and that in any event it was competent to show by parol the actual property intended to be conveyed. We may concede all these propositions. The description was clearly not sufficient to support specific performance, but under the uncontradicted evidence that Mrs. Manning had received everything which she was to receive under the contract, Jacks was entitled to full performance on her part, or reimbursement for any failure therein. It may be that the description was ambiguous, but the undisputed-facts show that the block was not divided into lots, but into four tracts, each of which was 300x150 feet. As there is no standard size for lots, the half block might have been subdivided into three lots just as it is claimed the half tract was subdivided. The uncontradicted evidence, however, shows, as stated in our original opinion, that Steger pointed out a half block to Jacks and told him that he was getting, a half block in the trade. This uncontradicted oral testimony was in accordance with the description in the contract. On this point the evidence does not raise any issue of fact.

Appellee further contends in her motion tha,t .the statement of facts does not properly reflect the testimony of Steger, and attaches a question and answer transcript of his testimony, certified by the official court reporter. The motion is not controverted. Under our present rules of practice, we are not permitted to go behind the statement of facts to ascertain the evidence on the trial; but we may consider the notes to determine the proper disposition of the case. Under the showing made in the motion an issue of fact is clearly raised as to whether Steger pointed out to Jacks a half block or merely the east half of one of the four tracts in the block as the property he was to get from Mrs. Manning. The proper practice upon the reversal of a trial court’s judgment is to remand the cause for a new trial, unless it appears from the record that the ease has been fully developed and no issue of fact for the jury’s- determination is raised. Under this rule, we think it our duty to remand the cause for a new trial.

Our former judgment is set aside, and in its stead the trial court’s judgment decreeing to. Mrs. Manning the McKinney avenue property and the personal judgment against Jacks for $300 rentals besides interest, and decreeing to Jacks the east half of lot 1, block 7, Glendale Acres, is affirmed. In all other respects the trial court’s judgment is reversed ánd the cause remanded to that court for a new trial.

Granted in part, and in part overruled.