
    Jerry W. FLETCHER et ux., Appellants, v. James W. WHITE and Jack Prescott, Appellees.
    No. 5002.
    Court of Civil Appeals of Texas, Waco.
    July 1, 1971.
    Rehearing Denied July 22, 1971.
    
      Cooper & Winikates, Diamond J. Pantaze, Dallas, for appellants.
    Boyd & Killough, Alvin Boyd, Randolph Scott, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

Plaintiffs Fletcher sued defendants White and Prescott alleging plaintiffs entered into a contract in writing with defendants whereby defendants agreed to sell plaintiffs a house at 9028 Jared Lane in Dallas, for $15,300., payable by plaintiffs conveying their home at 8509 San Marino in Dallas to defendants at an agreed value of $2800., as the down payment, and assuming a $12,500 existing note on the property and paying same out at $106. per month.

Plaintiffs alleged they deeded defendants the San Marino property at the agreed value of $2800. for the down payment; went into possession of the Jared Lane property, and paid defendants $106. per month on the existing loan for 21 months, in an amount totaling $2226.

Plaintiffs alleged they performed all their part of the contract, but that defendants refused to deed the Jared Lane property to them. Plaintiffs prayed for recovery of $5026. (the $2800. down payment and the $2226. paid defendants in the 21 monthly installments).

Defendants answered among other matters by general denial.

Trial was to a jury which in answer to special issues found:

1) Fletcher and wife performed all conditions required of them under the contract of sale dated October 23, 1961.
2) White and Prescott did not perform all conditions required of them under the contract of sale dated October 23, 1961.
3) White and Prescott did not deliver a general warranty deed to the Jared Lane property to plaintiffs Fletcher and wife.
4) Fletcher and wife knew or should have known that White and Prescott were not going to deliver such warranty deed on August 1, 1963.
5) The San Marino property was worth $5800. on January 31, 1962.
6) Encumbrances on the San Marino street property on January 31, 1962 were $2300.
7) Fletcher and wife occupied the Jared Lane property prior to December 2, 1961.

The trial court entered judgment for plaintiffs Fletcher and wife against defendants White and Prescott for $1200.

Plaintiffs appeal on 2 points contending the trial court erred in refusing to grant plaintiffs recovery:

1) Of the entire amount of the down payment of $2800. made by plaintiffs upon the contract of sale, which amount was the agreed and scheduled value of plaintiffs’ property conveyed to defendants.
2) Of the amount of payments of $2226. thereon on the contract of sale breached by defendants.

The record is undisputed that defendants contracted to sell plaintiffs the house on Jared Lane for $15,300., and received a deed from plaintiffs to their home on San Marino as the down payment at an agreed value of $2800. Plaintiffs thereafter made 21 payments to defendants of $106., totaling $2226. Plaintiffs requested a deed from defendants many times and defendants failed or refused to deliver such deed. Plaintiffs finally moved out of the Jared Lane property and thereafter filed the instant case.

It is without dispute and the jury found that plaintiffs performed all conditions required of them under the contract of sale, and that defendants did not perform all conditions required of them, and did not deliver plaintiff a deed to the property. Under such circumstances plaintiffs were entitled to the $5026. paid to defendants.

Plaintiffs contentions are sustained. The judgment is reformed to render judgment for plaintiffs Fletcher and wife for $5026. against defendants White and Prescott; (plus interest at 6% from 7 August 1970) and as reformed is affirmed. (Costs of appeal taxed against appellees.)

Reformed and affirmed.  