173 S.W. 231

MOORE 
v. 
FIRST STATE BANK OF TEAGUE et al.

(No. 7240.)

Court of Civil Appeals of Texas. Dallas.
January 23, 1915.

        Appeal from District Court, Freestone County; H. B. Daviss, Judge.
        Action by the First State Bank of Teague against C. N. Moore and others. Judgment for the plaintiff, 
and defendant Moore appeals. Affirmed.
        Boyd & Bell, of Teague, for appellant. D. T. Garth, of Teague, for appellee.
 
 TALBOT, J.
        This suit was instituted by the appellee, First State Bank of Teague, Tex., against the appellant, C. 
N. Moore, and against Fred Carrington, D. W. Carrington, and C. D. Phillips, alleging in an amended 
petition filed February 24, 1914, in substance:
        That on or about the 1st day of October, 1912, plaintiff was the owner and in possession of lot


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No. 1 in block No. 107 in the city of Teague, Tex., less 6½ inches off the east side of said lot, and 
commonly known as the First State Bank building. That on said 1st day of October, 1912, plaintiff by its 
proper officers made and executed, but did not deliver, a vendor's lien deed of conveyance, being an 
executory contract to thereby convey to C. N. Moore said property. That the consideration was the sum of 
$10,000. That C. N. Moore paid plaintiff $1,000 and executed and delivered to plaintiff 60 vendor's lien 
notes each for the sum of $150, the first note due December 1, 1912, and one of said notes due on the 
1st day of each succeeding month thereafter, all said notes bearing interest from date until paid at the 
rate of 8 per cent. per annum. That, for the reason that said Moore agreed to pay $1,800, said deed was 
not to be delivered until $1,800 was paid. That it was agreed that said deed should not be delivered until 
C. N. Moore should deliver a deed to plaintiff conveying certain land. That it was agreed that the rents 
should be collected on the building by Moore and paid on his said notes. That Moore failed and refused to 
deliver a deed to plaintiff to said land; however he entered into possession of plaintiff's said lot. That C. N. 
Moore made the payments due December 1, 1912, and January and February, 1913, by collecting the 
rents and paying same to plaintiff with an additional amount of $75 or about that amount each month. 
That it was agreed that all rents should be paid to plaintiff on said notes. That the deed and notes retained 
a vendor's lien against the property sued for; the superior title remaining in plaintiff. That on January 1, 
1913, C. N. Moore entered into a rental contract for one year letting said premises to C. D. Phillips for the 
sum of $83.33 1/3 per month, payable on the 1st day of each month. That C. N. Moore collected the rents 
from Phillips on March 1, 1913, and failed to pay his note maturing on March 1, 1913, and failed to pay his 
note due April 1, 1913. That plaintiff declared all said notes due. That plaintiff notified C. N. Moore in the 
month of March and during the first part of April that if he failed to pay said notes same would be 
matured, and notified C. N. Moore about the first of April that if he did not pay said notes that the contract 
would be rescinded. That Moore failed to respond to said notice, and on or about April 15, 1913, plaintiff 
rescinded its contract of sale and canceled same, forfeiting all the rights of C. N. Moore. That C. N. Moore 
fraudulently assigned his rent contract with C. D. Phillips, to one Fred Carrington, and that Carrington was 
setting up a claim to the rents from said premises. That plaintiff demanded payment of rents for the 
months of March and April, 1913, which was refused. That C. N. Moore, Fred Carrington, and C. D. Phillips 
had entered into a conspiracy to defeat the plaintiff out of its rents, to plaintiff's damage $1,000. That the 
rents on said property were reasonably worth the sum of $85 per month. That defendant had defeated 
plaintiff of its rents for the months of March and April, 1913, and feared that plaintiff would lose its rents 
for the remainder of the year 1913, and prayed for a writ of injunction restraining C. D. Phillips from 
paying any rents to Moore and Carrington, and that the rescission of the contract of sale with Moore be 
ratified, and the executory contract canceled, and prays judgment for title and possession of its land and 
for rents from the 1st day of March, 1913, costs of suit, and general relief, etc.
        On February 24, 1914, the Waco Development Company filed its plea of intervention claiming title to 
the land sued for, alleging that on the ____ day of ____, 1913, plaintiff, First State Bank, sold and 
conveyed the property in controversy to intervener, by its deed duly executed and delivered, and that it 
paid to plaintiff $4,000 in cash and executed its vendor's lien notes to plaintiff for $7,000; that its deed 
was duly recorded in Freestone county, and prayed judgment for title and possession of the land sued for, 
subject to plaintiff's vendor's lien and for costs.
        Defendants D. W. Carrington and C. D. Phillips filed their answers disclaiming all interest in the land 
sued for, defendant Phillips asking that he be protected, having paid all rents due by him.
        Defendant C. N. Moore filed his first amended answer February 28, 1914, disclaiming any interest in 
the premises sued for, and admitting that plaintiff agreed on October 1, 1912, to execute and deliver to 
him a deed of conveyance to the property sued for; that he agreed to pay to plaintiff $10,000 for same; 
that he paid plaintiff $1,000 as alleged; that he executed 60 vendor's lien notes for the sum of $150 each 
and delivered same to plaintiff; that he paid the notes falling due December 1, 1912, and January and 
February, 1913, as alleged; that he paid the rents arising from the premises, with an additional amount of 
$75 each month for three months as alleged, aggregating $450; that plaintiff never executed and 
delivered to him a deed to said property, as it agreed to do, in fact admitting every material allegation 
made by the plaintiff in its amended petition, and alleging that he had performed every part of his 
agreement entered into with plaintiff, and that plaintiff had failed and refused to carry out its part of said 
agreement to execute and deliver to him a deed to said property; that plaintiff had received all rents 
arising from the property since October 1, 1912, except two months, being for March and April, 1913, 
aggregating the sum of $166.66, which amount he alleges he tendered into court; that he paid plaintiff 
$1,000 and the further sum of $225 in addition to rents; and that plaintiff had failed and refused to pay 
and return to him any part of said sum of $1,225, but attempted to forfeit all the rights of defendant 
Moore in said contract, and Moore prayed judgment that title be vested in plaintiff (if necessary, and that 
plaintiff have judgment for any rents due since October 1, 1912, and that he have his judgment against 
plaintiff for $1,225 and for general relief.
        Plaintiff, First State Bank, filed its first supplemental petition on February 28, 1914, in which it 
alleged that it was agreed that defendant C. N. Moore was to pay $1,800 before a deed was to be 
acknowledged and delivered to the property, and, if Moore had any equity, that he had assigned same to 
Carrington, and further that the $1,000 was not paid in money by C. N. Moore, but a certain equity in land 
was delivered to A. B. Foster and A. B. Farrington as a commission and was not worth over the sum of 
$500 in cash, and prayed that C. N. Moore take nothing; that Moore did not pay the


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$1,800, but began to convert the funds received from the rents of the property in controversy to his own 
use and benefit.
        The case was tried without the intervention of a jury, and the court rendered judgment that the 
defendants C. D. Phillips and D. W. Carrington go hence and recover of the plaintiff their costs; that 
plaintiff, First State Bank of Teague, as against defendants C. N. Moore and Fred Carrington, recover the 
title and possession of the land and premises in controversy and all rents from April 1, 1913, up to and 
including the month of December, 1913; that defendant C. N. Moore take nothing as to the amount 
claimed to have been paid by him on the contract for the purchase of said land and premises; that the 
writ of injunction sued out be perpetuated as prayed for. The court further adjudged that the intervener, 
Waco Development Company, recover, subject to plaintiff's vendor's lien, the possession of the land and 
premises sued for, and as against plaintiff all costs incurred by it, and that Moore and the Carringtons take 
nothing as against C. D. Phillips on his lease contract, and that said contract be canceled. From the 
judgment that he take nothing, as to the amount paid by him on his contract of purchase of the premises 
in suit, C. N. Moore has appealed.
        The first assignment of error is as follows:
        "The court erred in rendering judgment herein against defendant C. N. Moore and in not requiring 
plaintiff, First State Bank, to refund to this defendant the amount paid plaintiff, to wit, $1,225, less 
$166.66, it being admitted by plaintiff that defendant C. N. Moore had paid $1,000 and also paid the 
further sum of $75 per month for three months in excess of rents, same being paid as part of the 
purchase money for the land sued for."
        This assignment, as do the others presented, submits for our decision the question of whether or not 
the court erred in denying to the appellant, Moore, a recovery from the appellee, bank, under the 
circumstances of the case, the amount of $1,225 paid by him on his executory contract of purchase of the 
land involved in the suit.
        This is not a suit in which there was a tender of the balance of the purchase money and prayer for 
the specific performance of the contract. On the contrary, appellant disclaimed any title to or interest in 
the land sought to be recovered, and asserted no right to specific performance, but, admitting appellee's 
right to recover and repossess itself of the land, claims that, inasmuch as he had in part performed the 
contract of purchase by paying a portion of the purchase money, it would be inequitable to allow appellee 
to retain such portion, and the trial court should therefore have rendered judgment in his favor for the 
same. As clearly appears, the contract between the appellant and appellee was executory, and the 
superior title to the land remained with appellee. Under such a contract, the vendor, upon failure of the 
vendee to perform according to its terms, has the right to sue for the purchase money unpaid and 
foreclose his men or he may, upon default of the vendee, rescind the contract and recover the land. Such 
right can only be defeated ordinarily by performance upon the part of the vendee. That this is the law of 
this state is too well settled to require the citation of authorities. If, however, there has been a part 
performance by the vendee, as paying a portion of the purchase money, or taking possession and making 
improvements under the contract, he would be entitled to reasonable notice of the vendor's intention to 
rescind. Kennedy v. Embry, 72 Tex. 387, 10 S. W. 88. After announcing the foregoing rule in the case just 
cited, it is said:
        "The reason of this rule is obvious. He may be able to give a reasonable excuse for his failure to fully 
perform that would entitle him in equity to protection to the extent he had performed."
        But it is further held in said case that if the vendee has actually abandoned the contract, or has so 
acted as to create the reasonable belief on the part of the vendor that he has abandoned it, the vendor 
may rescind without notice of his intention, notwithstanding the part performance of the vendee, and 
convey the land to another.
        In the case before us appellee alleged under oath that the notes executed by the appellant for the 
unpaid purchase money stipulated that, if appellant defaulted in the payment of any one of said notes or 
the interest thereon when due, the appellee could declare all of said notes not paid at the time of such 
default due, and that upon appellant's failure to pay the note which became due and payable on the 1st 
days of March and April, 1913, appellee, as authorized by the terms of said notes, declared all the 
purchase-money notes then unpaid due and payable; that appellee notified appellant that he had declared 
said notes due and payable, and that if they were not paid by the 1st of April, or a short time thereafter, 
his contract of purchase would be rescinded; and that thereafter on the 15th day of April, 1913, the 
appellee by proper and lawful action of its board of directors did rescind and annul said contract. Appellee 
also alleged, as heretofore stated, that appellant, Moore, entered into a contract with C. D. Phillips 
whereby he leased to the said Phillips the land and premises in controversy for the term of one year at 
$83.33 1/3 per month payable on the 1st day of each month; that it was agreed between appellant and 
appellee that the rents arising from said lease contract should be paid on said purchase-money notes; but 
that the appellant, Fred Carrington, and the said Phillips entered into a conspiracy to deprive appellee of 
said rents and refused to pay the same to appellee when the March and April notes became due. These 
allegations were made by the appellee under oath. They were not denied by the appellant in his answer, 
and must therefore, under the provisions of the statute passed by the Legislature of this state in


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1913, be taken as confessed. Appellant did allege in general terms that he had performed his part of the 
agreement made and entered into between him and the appellee, but that he did not in fact do so is 
placed beyond all question by the record sent to this court. He did not testify himself, nor did he offer the 
testimony of any witness in support of the allegations of his answer. T. J. Alexander, called by the 
appellee, was the only witness who testified at the trial of the case. He testified in substance, among other 
things, as is alleged in appellee's supplemental petition, that appellee did not get any part of the $1,000 
claimed to have been paid by appellant on his contract of purchase; that Foster & Farrington were to have 
all above $9,000 they made out of the sale of the property in controversy; and that they made some kind 
of trade with appellant by which they were to get from him land valued at $1,000.
        We do not believe the record shows a case where the court would be authorized to say that upon 
principles of equity the appellee should be required to refund to appellant the portion of the purchase price 
paid by him on his contract for the purchase of the land in question. That appellant failed and refused to 
pay the purchase-money notes maturing, respectively, March 1 and April 1, 1913, is not disputed; that he 
was notified by appellee that unless said notes were paid the contract of purchase would be rescinded is 
not denied; the allegation of appellee that he entered into a conspiracy to deprive appellee of the rents 
arising from the renting of the property contracted by him to be bought in violation of his agreement that 
said rents should be applied as a credit on the purchase-money notes is likewise not denied; and that 
appellee got no part of the $1,000 sought to be recovered by the appellant, but that such an amount was 
only to be paid to Foster & Farrington in land as their commissions for negotiating and securing for 
appellant the contract made with appellee for the purchase of the land in controversy in the suit is 
reasonably deducible from the pleadings and the evidence. From the record therefore before us the 
conclusion is clearly warranted, if not irresistible, that appellant, before the institution of this suit, had 
abandoned his contract of purchase, or so acted as created the reasonable belief on the part of appellee 
that he had abandoned it, and was not entitled to recover back any portion of the purchase money paid.
        The judgment of the court below is affirmed.