Opinion
December 3, 1913. Rehearing Denied January 28, 1914.
Appeal from District Court, Liberty County; L. B. Hightower, Judge.
Action by G. W. Burch and another against Charles Wilson. Judgment for plaintiffs, and defendant appeals. Affirmed.
Marshall Harrison, of Liberty, for appellant. E. B. Pickett, Jr., of Liberty, for appellees.
Appellees, who are land agents, telephoned appellant, Wilson, asking him what he would take net for a 184 2/3-acre tract of land out of section 7, Texas New Orleans Railway survey. Appellant replied he would take $10 cash per acre, and would consult two other parties who were joint owners with him as to the price they would take. They agreed to the proposition to sell for $10 cash, and appellees were so notified. Appellees entered into a written contract with G. A. Fairbanks, of Gettysburg, S.D., to sell him said tract of land at $13 per acre, cash. We quote from said agreement as follows: "Cash in hand $500; balance of the purchase price above mentioned to be paid when the deed and abstract are delivered, with a perfect title, at First National Bank at Gettysburg, South Dakota, same to be passed upon and accepted by attorneys or attorney of said G. A. Fairbanks. It is further agreed and understood that, in case the title to this land should prove defective as passed upon by the attorneys of the said G. A. Fairbanks, and cannot be made good, then said $500, together with ten per cent. interest, shall be returned to the said G. A. Fairbanks at once on demand. It is further agreed that the parties of the first part agree to make deed and abstract, and forward for examination and acceptance as soon as practicable." This contract was signed by Burch and Boyd in their own name; they not being certain as to who were Wilson's associate owners. There was a judgment for appellees for $3 per acre, as their commission.
1. Appellees had no authority to contract for the delivery of the deed and abstract at the First National Bank at Gettysburg, S.D., nor that the same should be passed upon and accepted by attorneys of Fairbanks, and, unless appellant ratified said contract, appellees were not entitled to judgment. If appellant ratified the contract, it is binding on him. 19 Cyc. 202, 220, 256, 296. The court submitted the issue of ratification to the jury, and they found in favor of appellees.
2. It is the contention of appellant that the judgment of the trial court should be reversed, for the reasons, first, that the court erred in submitting the issue of ratification to the jury, because appellees had not pleaded ratification; and, second, that there was no evidence to sustain the finding of the jury on this issue. Appellant, among other things, alleged in his answer "that this defendant and his associates refused to accept said terms, and to that extent [referring to the consummation of the deal in South Dakota, and the acceptance of title by Fairbanks' attorney] repudiated the contract of said Burch and Boyd." This, we think, was sufficient to raise the issue of ratification. R.S. art 1829; Cook v. Greenberg, 34 S.W. 688; Railway Co. v. Avis, 100 Tex. 33, 93 S.W. 425; McKinney v. Nunn, 82 Tex. 44, 17 S.W. 516; Meyer v. Oppermann, 76 Tex. 108, 13 S.W. 174.
3. Evidence as to this issue was offered without objection, and appellant requested the following special charge, which was given: "You are instructed that, before any act or conduct of the defendant, Charles Wilson, or his co-owners could be taken or held as a circumstance tending to a ratification of or acquiescence in the terms of the contract that was made between Burch and Boyd on one part and Fairbanks on the other part, it is necessary that said Wilson or his associates should have known or have had knowledge of the terms of said contract in which said acts or conduct is claimed to have shown ratification or acquiescence." Having requested and obtained a charge on this issue, appellant cannot complain of its submission to the jury in the general charge. Freeman v. Wilson, 149 S.W. 416; Beef Co. v. Yeargan, 123 S.W. 723; Railway Co. v. Smith, 155 S.W. 363; Oil Co. v. Gathings, 154 S.W. 668; Fessinger v. Times Co., 154 S.W. 1174.
4. Upon the issue of ratification, appellee Burch testified as follows: "It seems to me like it was about a week after it (the contract) was entered into that I showed it to Mr. Wilson. I took it and went over to Dayton, and showed it to him in his office. When I showed it to him, he said, `We ought to have closed it up here — have an attorney to pass on it here.' The answer I gave him to that was that I told him I tried to get Fairbanks to have it passed on, the abstract of title, here. Mr. Fairbanks said he wanted it passed on by his attorney up there, and to that Mr. Wilson said, `All right, go ahead, make the deed and abstract, and send it to them.'" This, we think, is sufficient evidence to sustain the finding that appellant, with full knowledge of the contents of the written contract, ratified the same.
5. The evidence shows that Wilson and his associates owned 621 acres out of section 7, Texas New Orleans Railway survey, of which the 184 2/3 acres was a part, and that there was a vendor's lien on the entire tract owned by them for about $3,500, evidenced by four notes, and that one of said notes was paid off pending negotiations, leaving about $2,650 due on said notes. Appellant and his associates furnished an abstract and executed a deed to said land, and sent the same to the First National Bank at Gettysburg, S.D., with instructions to deliver the same to Fairbanks upon payment of attached draft for balance of the purchase money. It was shown that the title to said land was clear, except as to the vendor's lien above mentioned. Fairbanks, upon advice of his attorneys, declined to pay for the land until release of the vendor's lien was furnished. Wilson wrote Fairbanks that, if he would send the balance of the purchase money to a bank at Liberty, to be used by him in payment of the vendor's lien notes, he would pay said notes off, and furnish a release of the vendor's lien at the time the money was paid over to him. Fairbanks declined to do so, demanding that the release of the lien be sent to the bank at Gettysburg, S.D., before he paid the purchase money. Thereupon Wilson ordered the deed and abstract returned to him. It was shown that Wilson was able to have borrowed the money with which to pay off the vendor's lien notes, and that the owner of the lien would have released the same upon payment of said notes, but that Wilson and his associates did not desire to pay off the lien on the entire tract of land, unless this sale was consummated. Appellant insists that appellees did not furnish a buyer who was ready, able, and willing to take the land at the price agreed upon in said contract, in that it was Fairbanks' fault that the trade was not consummated. The evidence shows that Fairbanks was able and willing to take the land in accordance with his contract of purchase; that is, the abstract should show a perfect title before he paid for the same. While the evidence shows that Wilson was able to pay off the vendor's lien notes, and thereby furnish good title, he was unwilling to do so, except upon the terms demanded by him; that is, that Fairbanks should send the remainder of the purchase money to a bank at Liberty, to be used in discharging said vendor's lien notes. From this, it appears that Fairbanks did not breach the contract.
For the reasons above given, the judgment of the trial court is affirmed.
Affirmed.