Hanks v. Gulf, Colorado & Santa Fe Railway Company

Mr. Justice Norvell,

joined by Justices Calvert, Walker and Greenhill, concurring.

The Court of Civil Appeals opinion proceeds upon the theory that Hanks’ offer to sell his tract of land for $1,250.00 per acre was admissible as an admission. The 53-page bill of exceptions is not free from confusion. 1 It consists of questions propounded *318 to and answers given by Curtis Ritchie, a real estate broker and witness for respondent and the petitioner, E. E. Hanks. The trial court considered that the problem presented was one relating to the admissibility of an unaccepted offer to purchase. If this analysis be accurate, then the ruling of the court was correct under the authorities. Sharp v. United States, 191 U.S. 341 , 24 Sup. Ct. 114, 48 L. ed. 211; Abramson v. City of San Angelo, 2 Texas Civ. App., 210 S.W .2d 476, wr. dism. Annotation, 7 A.L.R. 785 , 787. The rule supported by the weight of American authority also excludes an unaccepted offer to sell. “The reasons for the exclusion of offers to sell as evidencé of market value are, in general, the same as those applicable to offers to purchase, * * *, plus perhaps the fact that an owner offering to sell land or listing it for sale often, and perhaps nearly always, asks somewhat more for it than he believes it to be worth, or at least more than he would actually accept for it.” 7 A.L.R. 2d 797 . In Wichita Falls, Ranger & Ft. Worth Ry. Co. v. Cooper, Texas Civ. App., 235 S.W. 927 , no writ history, it was said that, “We know of no case that has g-one so far as to hold that as original evidence of market value the witness may state, as did the witness Brashier, the asking price of an individual owner of *319 lots, especially when no evidence is. offered showing the open market sales of lots at the price asked.” In the usual case the offer to sell, would constitute a self-serving declaration, and be excluded for that reason.

As I understand the opinion, the Court of Civil Appeals does not hold that either unaccepted offers to buy or unaccepted offers to sell are admissible in evidence, but rather that under the peculiar facts of this case, the offer to sell is in reality an admission rather than a self-serving declaration. Generally it would be to the pecuniary interest of an owner to appreciate the value of his land. However, in cases of partial taking under the power of eminent domain, it may be to the owner’s interest to place a low valuation estimate upon the portion of the tract remaining after the taking and thus enhance his damages. So in this case we have an owner testifying that the portion of his tract remaining after the taking is worth only $500.00 per acre. It is sought to contradict this testimony by showing that he offered to sell such land at $1,250.00 per acre. 3 The question therefore is simply whether or not the one statement, “My land is worth $500.00 per acre” is contradicted by the other statement that, “I will sell my land for $1,250.00 per acre.”

McCormick and Ray in their treatise upon the Texas Law of Evidence define an admission as being “any statement made or act done by one of the parties to any action or on his behalf which amounts to a prior acknowledgment by such party that one of the facts relevant to the issues is not as he now claims.” 4

2 McCormick and Ray, (2d Ed.) p. 16, Section 1121.

Most of the cases relied upon by the Court of Civil Appeals are those holding that when a party in a judicial proceeding has placed a valuation upon property owned by him, evidence that within a reasonable period before the trial, he had listed the *320 property for sale at a lower valuation is admissible in evidence. I do not disagree with these holdings as the inconsistency of position is apparent. However, the case of Cotton v. Boston Elevated Ry. Co., 191 Mass. 103 , 77 N.E. 698, 700 , cited by the Court of Civil Appeals presents the converse situation in which the owner offered to sell for more than he said the land was worth when he testified in court. The Supreme Judicial Court of Massachusetts passed upon seven exceptions to the trial court’s judgment. Two were sustained; three were overruled on the merits while two were overruled because the error was not properly saved or the matter presented was wholly immaterial. The seventh and last exception considered was material in view of the retrial ordered in the case and the court’s discussion thereof contains the holding upon which the Court of Civil Appeals relies to support its decision. 5 The opinion may be misleading by reason of the brevity of the statement of facts contained therein. If we consider that the belief of the owner as to the value of property is pertinent upon the issue of market value, it may be that the prior statement of an owner that he thought the land was worth $1000.00 would be admissible to impeach his testimony that the value of the land was $500.00. But to consider the mere offer that, “I will sell you this property for $1000.00” as a statement of a belief as to its market value is hardly logical nor in accord with human experience. It may be that under the facts (not disclosed however in the opinion of the Massachusetts Court) the trial judge in the Cotton case did not abuse his discretion in admitting the testimony, but the purport of the holding in view of the scant facts related is that any offer to sell may go to a jury for their guess as to whether or not the offer reflects a belief of the owner as to the true market value of the property.

Such a rule would constitute an open invitation to try collateral and irrelevant issues upon uncertain and conjectural premises. The bill before us does not support the hypothesis that Mr. Hanks, prior to the trial, expressed a belief that his land was worth $1250.00 an acre. The most that it shows under any permissible construction was that he would sell the land for $1250.00 per acre. A statement that, “I have an automobile worth $100 which I will sell for $500” is not self-contradictory. We cannot accept the premise that human beings usually refuse to sell property for more than it is worth, hence we cannot say *321 that Mr. Hanks’ offer to sell contradicted the estimate of value "which he placed upon his land when testifying in court. It follows that there was no admission under the accepted definition thereof. There being no admission, all we have is an inadmissible offer to sell, or an inadmissible offer to purchase which points to the conclusion that the trial judge was correct in excluding inadmissible matters offered in evidence. I concur in the order reversing the judgment of the Court of Civil Appeals and affirming that of the trial court.

Opinion delivered January 14, 1959.

. — For example, it is not clear whether the negotiations between the prospective purchaser Newton Rayzor, represented by his brother, Fred, related to a firm agreement to pay $1,250.00 per acre or simply an option whereby Rayzor could acquire the property at that price should he desire to do so within a seven-day period. Curtis Ritchie in his testimony taken for the purpose of the bill, seems to have given conflicting versions, viz:

“Q. He (evidently Fred Rayzor) was wanting Mr. Hanks to give him a 7 day option on it, isn’t that correct? A. No. He didn’t ask Mr. Hanks to give him nothing. Mr. Hanks —

Q. Well, you did? A. No I didn’t ask Mr. Hanks to give him no option. He just merely said that himself.

Q. That he would give a 7 day option on it. A. Yes, Sir.

Q. And that is what he failed to give them, isn’t that right? He refused to sign it, or he walked out and refused to sign it. A. There wasn’t nothing said about the option up there in Fred Minor’s office.

Q. Why didn’t you testify that was what he was fixing to draw up ? A. That day up there in Fred Minor’s office there wasn’t a word said about the 7 day option. We just went up there to fix the contract and buy the place.

Q. All right, and give 7 days for Mr. Rayzor to either accept it or reject it? A. Yeah.

Q. And that is what I complained about wasn’t it; isn’t that right, Curtis? That it was one-sided, don’t you remember that? A. No. It was just a straight flat sale across deal on that 58.34 acres of land out there, figured on a 58 acre basis.”

*318 Later in the course of the examination for the bill, Ritchie testified as follows:

“Q. Did he (Hanks) ever give you a written listing on it? A. He never gave me a written listing on it, no sir.

Q. And this option you spoke of that you discussed was an oral option, was it not? A. Yeah, it wasn’t written.

Q. But it was to be reduced to writing, of course ? A. About your option, he just told me that and I wrote it down on a piece of paper, a 7 days option but he didn’t sign it.”

. — “The following testimony of B. F. Snyder, a merchant, was offered by appellant and excluded:

“That after he had sold his hotel business and in recent months before the trial, he looked around for a place to build himself a building. At the time of the trial he was engaged in the nickelodian business. In looking for a lot, he examined Lots Nos. 4 and 5 of appellant, and they suited him, and he offered appellant $6,000 in cash for the two lots, which the appellant rejected. Witness made no inquiry as to the market value of these lots, but relied strictly on his own judgment as to what they would be worth to him, and he made the offer in good faith.

“Appellant, with commendable frankness, cites Stone v. Payne, Texas Civ. App., Beaumont, 168 S.W. 2d 503 ; 17 Texas Jur., p. 446; and Sec. 699, McCormick and Ray on Evidence, as adverse authorities. No supporting authorities are referred to.

“The rule announced by these authorities is that evidence of an unaccepted offer to purchase, made by one not a party to the suit, is inadmissible on the question of value.

“We are asked to reconsider and revise this rule. The above authorities disclose that this character of evidence has long and on numerous occasions been excluded by our courts; also that the rule is one of general acceptance in other jurisdictions. Regard for stability of the law as well as our approval of the reasoning upon which the rule is based, force adherence to the rule and the conclusion that no error was committed in excluding the proffered testimony.” Abramson v. City of San Angelo, 210 S.W. 2d 476, 1 .c. 477.

. —It was Hanks’ version of his negotiations with Ritchie that the broker kept after him to put a price on the land. Under such circumstances, the quoting of a price well above the market would be expected. Perhaps the more insistent and persistent the broker, the higher the quoted price would be, coming from one having no particular desire to sell.

. —The distinction between admissions on the one hand and declarations against interest and self contradictory statements on the other is discussed in McCormick and Ray, (2d Ed.) Vol. 2, pp. 20, 22, sections 1122, 1124. It is said that an admission is “received because it is a statement inconsistent with the party’s present position and its reception can be justified only on the adversary theory of litigation.” To the present purpose, the distinction between original evidence (the admission) and impeaching evidence (the self-contradictory statement) is immaterial, for if the offer to sell be admissible under either theory, it should be admitted.

. — It should be noted that in the Massachusetts case the trial court admitted the evidence and this action was sustained by the Supreme Judicial Court. In this case, however, the trial court excluded the testimony. If there be a matter of judicial discretion involved, the trial judge should be upheld.