After learning on or about May 25,of the mistake that had been made, the plaintiff promptly consulted his attorney. These two parcels of land had the same shape, size, and dimensions, and a similar relationship to each other, as the two tracts of land that had been acquired by the defendant from Eduardo Villarreal et al. A few days after the conversation between plaintiff's counsel and Mr. Moeller, plaintiff's counsel received a telephone call from William L.
Bowers, Jr. Bowers further stated that a Government surveyor was being sent to Zapata, Texas, to conduct a new survey of the land in question, and that any further evaluation of the deed description would be made after the new survey was completed.
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The defendant retained vendor's liens to secure the payment of the promissory notes executed by the plaintiff in connection with the transaction. In the meantime, Eduardo Villarreal was dissatisfied with the amounts that the United States had paid into the registry of the court in connection with the condemnation proceedings and declarations of taking mentioned at the outset of this opinion.
The events leading up to the litigation began in the spring ofwhen the defendant, with the intention of establishing and maintaining an Air Force radar installation, acquired from Eduardo Villarreal et al.
In an effort to bolster his belief that the damages which he had sustained were greater than the amounts ly paid into the registry of the court, Mr. Villarreal employed a competent surveyor and appraiser to make a survey of the property comprising the former Zapata Air Force Station. Grymes v. This case grew out of a contract for the sale by the defendant and the purchase by the plaintiff of realty situated in Southwest Texas that had been declared to be surplus property.
As a result of this survey, it was discovered for the first time that the defendant had constructed the radar installation largely on lands which were owned by Eduardo Villarreal et al.
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The radar installation was operated by the defendant, through the Department of the Air Force, for a few years. Carlos Castillon, Laredo, Tex. Kazen, Laredo, Tex. Howard O. Sigmond, Washington, D. Weisl, Jr. This case was referred pursuant to Rule 45 now Rule 57and the order of remand dated October 30,to Trial Commissioner Mastin G. White, with directions to make findings of fact and recommendation for conclusions of law.
With respect to the two principal parcels of land, the deeds identified these parcels as Tracts Nos. A and A, respectively, that had been acquired by condemnation in Civil Action No. A and A in Civil Action No. The deeds were tendered to and accepted by the plaintiff. Sanders et al.
However, the exercise of such right was dependent upon prompt action by the plaintiff to inform the defendant of the cancellation, and also upon prompt action by the plaintiff to restore the former status by surrendering possession of the former Zapata Air Force Station and conveying back to the defendant the realty which the defendant had ly conveyed to him.
The two tracts of land mentioned in the preceding paragraph were dissimilar in size, but each was rectangular in shape. At that point in the sequence of events, the defendant was not chargeable with any breach of contract. Villarreal promptly passed this information on to the defendant and to the plaintiff.
It was known as the Zapata Air Force Station. In constructing the radar installation, the defendant intended to locate it on the two tracts of land which had been acquired from Eduardo Villarreal et al. The United States also acquired by condemnation easements over other nearby lands for waterlines, sewerlines, and access ro.
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The defendant acting through the Regional Commissioner, Region 7, General Services Administration executed deeds, without warranty, in favor of the plaintiff. Beginning on or about May 4,the surplus property was publicly advertised for sale by the General Services Administration. This effort was not successful, however, so the plaintiff decided in March that it was not feasible to dispose of the former Zapata Air Force Station as a single unit, and that it was advisable to sell the 27 single-family dwellings as individual units.
The dimensions of the smaller tract, deated in the condemnation proceedings as Tract No. A, were 1, feet by feet, and this tract contained approximately The two tracts aded each other for a distance of feet along the north boundary line of the smaller tract and the south boundary line of the larger tract.
Waterlines, sewerlines, powerlines, and access ro were constructed over nearby lands to serve the radar installation. Since the contract between the plaintiff and the defendant did not, because of a mutual mistake of fact, reflect the real intention of the parties, and since reformation of the contract so as to reflect such intention was not possible in Maywhen the mutual mistake was discovered, the plaintiff at that time undoubtedly had the right to cancel the contract.
Since the court is in agreement with the opinion and recommendation of the commissioner, with a modification, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. The trouble was that the language of the contract did not accurately reflect the intention of the parties. While awaiting developments in connection with the ultimate disposition of the property, the plaintiff rented some of the single-family dwellings to other persons.
This was not known at the time by either the defendant or Eduardo Villarreal et al. Upon receiving such information, the plaintiff suspended any further efforts to dispose of portions of the former Zapata Air Force Station. On June 6,plaintiff's counsel wrote a letter to the General Services Administration's regional office in Dallas, Texas, suggesting that the difficulty be resolved through negotiations between the defendant and Eduardo Villarreal et al.
Thus, the defendant had performed in accordance with the letter of the contract between the parties.
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The advertisement announced that the property would be sold at an auction to be held in the Zapata County Court House on June 19, In describing the property to be sold, the advertisement identified it as Government-owned surplus property that had been acquired by condemnation in Civil Action No.
In addition, the advertisement contained metes and bounds descriptions of tracts of land deated as Tracts Nos. A and A, the language used being identical except for a few minor variations with that used to describe Tracts Nos. A and A by metes and bounds in the declarations of taking and judgments thereon in Civil Action No. In accordance with the advertisement of sale, a public auction was held on June 19, The property was offered for sale as two separate items.
After acquiring the lands ly referred to, the defendant went inside the exterior boundary lines of the Eduardo Villarreal Ranch, took possession of two contiguous parcels of land located there, built a fence around the area, and constructed a radar installation upon the area.
Various steps which are detailed in the findings of fact were undertaken by the plaintiff in order to get ready for such a disposition of these properties. The defendant really intended to sell, and the plaintiff really intended to buy, the realty comprising the former Zapata Air Force Station. Item 1 consisted of Tract No. A, together with certain appurtenant easements. It is also the general rule that where reformation is possible, it is the only remedy permissible, since the mistake of the parties related to their expression only, and a rescission of the contract would be an unnecessary violation of their intent.
Except for the 7 acres mentioned in the preceding sentence, the radar installation was inadvertently constructed by the defendant upon lands which were still owned by Eduardo Villarreal et al. Item 2 consisted of Tract No. In spirited bidding, the plaintiff submitted the highest bid for each item, and his bids were accepted.
However, in Maywhen the mutual mistake of fact in this case was discovered, it was not possible for the contract between the plaintiff and the defendant to be reformed so as to reflect the intention of the parties, because at that time the defendant did not own the realty which the parties had intended to include in the contract but which had been omitted from the language of the contract.
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The plaintiff was the party disadvantaged by the mistake, because he had received less than he intended to buy and the defendant intended to sell. By mistake, however, the defendant utilized as the site for the radar installation only about 7 acres in the northwest corner of the larger tract of land ly acquired from Eduardo Villarreal et al.
The plaintiff's attorney telephoned Arthur L. Moeller indicated that he would send to plaintiff's counsel a written brief to the effect that the description in the plaintiff's deeds was sufficient to convey the former Zapata Air Force Station to the plaintiff, despite the of the survey that had recently been made at the instigation of Mr. However, the promised brief was never sent to plaintiff's counsel.
In acquiring the property, it was the plaintiff's intention to sell it, but he intended to hold it for at least 6 months because of tax considerations. The dimensions of the larger tract, deated in the condemnation proceedings as Tract No.
A, were 1, feet by feet, and it contained 30 acres. Thus, the situation in which the defendant and the plaintiff found themselves provided a good illustration of a mutual mistake by two contracting parties concerning a material fact. Under the language of the documents constituting the contract between the defendant and the plaintiff, the defendant had contracted to sell and the plaintiff had contracted to buy the realty that had been acquired by the United States from Eduardo Villarreal et al.
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Thereafter, the Zapata Air Force Station was determined to be surplus property, and a decision was made that this installation would be offered for sale to the public on the basis of competitive bidding. An active campaign to sell the former 360 Air Force Station was undertaken by the plaintiff in the early part of The initial effort was to sell the entire property as a single unit. The two tracts of land ly referred to were, after their acquisition by the defendant, surrounded by pasture land owned by Eduardo Villarreal et al.
The commissioner has done so in an opinion and report filed August 6, Exceptions were filed by the defendant and the case was submitted to the court on the briefs of the parties and oral argument of counsel. The deeds which the defendant had executed and delivered to the plaintiff covered personals the property interests referred to in the contract.
On the larger of the two parcels of land forming the site of the radar installation, the defendant erected headquarters buildings, a school building, a recreation building, barracks buildings to house enlisted men, a building to house bachelor officers, a dining hall and kitchen, and a water system to serve not only the larger parcel but the smaller parcel as well. The lands were acquired by means of condemnation proceedings deated as Civil Action No. Declarations of taking with respect to the two tracts of land were executed by the Secretary of the Air Force and filed during the course of the condemnation proceedings, and judgments vesting the ownership of the lands in the United States were entered by the court.
On the smaller parcel of land, the defendant erected 27 single-family dwellings. That realty was not the same as the realty covered by the language of the contract between the parties, except that the two areas overlapped Laredo the extent of approximately 7 acres.