Opinion
No. 7901.
April 4, 1914. Rehearing Denied May 2, 1914.
Appeal from Taylor County Court; E. M. Overshiner, Judge.
Action by T. G. Jackson against T. M. Anderson and others. From a judgment for plaintiff, defendants appeal. Affirmed.
Scarborough Hickman, of Abilene, for appellants. Holt Jackson and Cunningham Sewell, all of Abilene, for appellee.
Appellee sued as the assignee of an account by G. A. McElroy against appellant Anderson for commissions alleged to be due by securing an exchange of certain lands belonging to Anderson. The trial resulted in a judgment for appellee against Anderson as the principal debtor and against McElroy as guarantor for the principal sum of $620.75 with judgment for like sum in McElroy's favor over against Anderson.
It is first urged that the court erred in overruling appellant's plea of privilege to be sued in Knox county, but no error is shown. The statement fails to comply with rule 31 (142 S.W. xiii) by referring to that part of the record containing such plea, if there was any, or to the court's judgment thereon, if there was a judgment against the plea. Moreover, if there was a sufficient plea, the suit was filed prior to the act approved April 16,1913 (Acts 33d Leg. c. 177), amending the fourth clause of article 1830, prescribing the venue of suits, and the evidence seems undisputed that McElroy, who lived in the county of the forum, assigned and guaranteed the account sued on, thus bringing the case fully within the statute as it existed prior to the amendment. Cleveland v. Campbell, 38 S.W. 219; Vaughn v. Bank, 126 S.W. 690.
Appellant's next two assignments are predicated on the proposition that the contract of exchange between him and the other contracting party was but an option, and hence that McElroy did not earn the specified commissions. The contract for the exchange of properties was in writing, and contained the following clause, which is relied upon as giving it the character of an option, viz.:
"And for the true and faithful performance of all and every one of the covenants and agreements above mentioned the parties to these presents hereby bind themselves each to the other in the sum of two thousand ($2,000.00) dollars, as fixed, settled and liquidated damages by the party failing to complete on his part the stipulations herein set forth, and which said sum shall constitute a specific lien upon the property and premises herein above mentioned as belonging to the party so failing to complete his part of this agreement. And the stipulations aforesaid shall apply to and bind the heirs, executors, and administrators and assigns of the respective parties hereto."
It seems clear to us that the contract for the exchange is enforceable as such. The sum named in the paragraph quoted was evidently intended to secure performance, and not to leave it optional with the parties to complete the exchange or pay the specified penalty as they, or either, might choose. The test is, does the contract contemplate the performance of a specified act, fixing a sum named to secure its performance, or does it contemplate either performance of the act or the payment of the sum named, as the party sought to be charged may choose? If the latter, the contract is a mere option. If the former, it may be specifically enforced. See Moss Raley v. Wren, 102 Tex. 567, 113 S.W. 739, 120 S.W. 847; Redwine v. Hudman, 104 Tex. 21, 133 S.W. 426. Construing the contract as one for conveyance of lands that may be enforced, we think there was no error in the action of the court in giving or refusing charges.
Appellant sought to have the jury charged to find for him on the ground that the evidence showed that one Sandall was a partner with McElroy at the time of the execution of the contract of exchange. But the evidence in no view can be said to be conclusive in favor of such a theory. The charge requested, therefore, is on the weight of the evidence in so assuming. Moreover, the partnership, if one, was not a party to the suit, nor was McElroy's authority to transfer the account to plaintiff in any wise questioned.
We find no error in the proceedings, and, the evidence being sufficient to support the material allegations of the plaintiff's petition, it is ordered that the judgment be affirmed.