John Young, appellee, sued J. D. Freeman and City National Bank of San Antonio, appellants, for $500 deposited as liquidated damages should Freeman fail to purchase the land offered by appellee. Young was to furnish Freeman an abstract of title showing good and merchantable title in Young, and the title was to be passed upon by Freeman's attorney.
The money was deposited in appellant's said bank. Freeman failed to carry out the trade, whereupon Young brought this suit to recover the money deposited in escrow.
W. B. Teagarden, an attorney and friend of appellant, made the deposit required in the bank, with the understanding that it should remain up for 10 days only, and if the trade was not consummated within that time the money was to be withdrawn and returned to him.
The trade fell through through no fault of Freeman, because Freeman was not purchasing the land for himself but for certain purchasers in Iowa who were to pay for the land and take title in the name of the purchaser, and because of the delay of Young in timely furnishing the title for the Iowa parties, who were nonresidents of the state, they declined to longer delay after the 10 days' *Page 115 time in waiting in San Antonio and returned home; and thereafter declined to carry out the trade.
We think the facts are fully covered by the findings of the trial court, which are as follows:
"I find that upon the trial of this cause the following facts were established, to-wit:
"1. That on or about January 11th, 1923, the plaintiff, Jno. Young, and the defendant, J. D. Freeman, entered into a contract and agreement wherein plaintiff agreed to sell to the defendant Freeman certain lands situated in Brewster County, Texas, in which agreement the defendant Freeman agreed to place the sum of Five Hundred Dollars ($500.00) cash in escrow with the defendant City National Bank of San Antonio, Texas, to be delivered to the plaintiff Young in the event that the defendant Freeman failed or refused to perform his agreement and pay for the land upon the plaintiff tendering abstracts of title, showing good merchantable title to the lands, and a warranty deed conveying the lands to defendant, Young;
"2. That the defendant Freeman caused a deposit of Five Hundred Dollars ($500.00) to be made with the defendant Bank, which sum was accepted by the bank, but under certain terms and conditions that were different from the terms relating to such deposit as contained in the contract between Young and Freeman; that the defendant Bank notified Young that Freeman had made the deposit under the agreement between Young and Freeman and that Young acted upon such information and proceeded to comply with his agreement with Freeman.
"3. That Young tendered abstracts of title and warranty deeds to Freeman both of which were accepted by Freeman under his contract with Young.
"4. That Freeman failed and refused to comply with his agreement with Young and failed to pay for the lands as contracted for and wholly made default in his contract with Young.
"5. That intervener, W. B. Teagarden, actually made the escrow deposit with the defendant City National Bank of San Antonio, Texas, for the benefit of the defendant Freeman, but that before making such deposit, the said Teagarden notified an officer of the Bank that he, Teagarden, was personally making such deposit for the benefit of Freeman and that as a condition of the escrow deposit plaintiff, John Young, was to comply with his contract with Freeman within ten days from and after January 30th, 1923; and that at the time of making such deposit, Teagarden again notified the defendant bank in writing, such writing being attached to the deposit, that as a condition of the deposit, Young was to comply within ten days from the date of such deposit, to-wit, January 30, 1923, and that the bank accepted such deposit with such conditions attached.
"6. That the defendant Bank failed to notify Young of the ten day provision in the escrow deposit and that Young had no notice of the same or of any of the interest of the intervener Teagarden's interest in the matter;
"7. That Young failed to furnish the abstracts of title and deed within ten days after the making of said escrow deposit of January 30th, 1923.
"Conclusions of Law. "The court concludes as a matter of law:
"1. That plaintiff Young is entitled to judgment against the defendant Freeman and the defendant Bank for the sum of Five Hundred Dollars as liquidated damages under his contract with Freeman and the Bank.
"2. That Intervener W. B. Teagarden is entitled to judgment against the Defendant, City National Bank of San Antonio, Texas, in the sum of Five Hundred Dollars ($500.00) under his agreement with the Bank at the time that the escrow deposit was made.
"3. Both plaintiff and intervener, by their respective attorneys, having in open court having waived their claims against the Bank for interest on said sums and having waived their claim for the costs of court, judgment for interest and costs were not allowed as against the Bank."
We adopt the findings of fact as being supported by the evidence, but do not adopt the conclusions of the court.
While this suit was brought by and for the use and benefit of appellee, the evidence shows that the title to the land belonged to him and to Sartwell, who was not a party to the suit, and no explanation was made why he was not joined herein as a partner.
We do not think the court erred in granting a judgment in favor of intervener for the amount of the deposit of $500, because he advanced the money and it was his money that was deposited. But we can perceive of no theory under the facts that would justify any judgment whatever in favor of appellee.
The judgment in favor of W. B. Teagarden will be affirmed, and the judgment in favor of appellee will be reversed and here rendered in favor of the bank against appellee, with all costs of this suit.