Opinion
No. 4198.
May 25, 1932. Rehearing Denied June 2, 1932.
Appeal from District Court, Rusk County; R. T. Brown, Judge.
Suit by Tom G. Patten against E. L. Pinkston and others. Judgment for defendants, and plaintiff appeals.
Affirmed.
This suit by appellant Patten as plaintiff was to specifically enforce (or in the alternative to recover damages for the breach of) a contract in appellant's petition alleged to have been entered into in December, 1930, whereby, in consideration of $16,200 to be paid in cash and $27,000 to be paid in oil on conditions specified, appellees E. L. Pinkston and his wife, it was charged, undertook to convey to Patten a seven-eighths interest in the oil, gas, and other minerals in and under 108 acres of described land in Panola county. It was alleged, further, that the appellee First National Bank of Henderson, acting by appellee E. F. Crim, its vice president, on said December 9, 1930, in writing agreed "that (quoting) it would keep and hold said lease contract when placed with said bank and pay the same over to plaintiff upon his payment to it for the credit of E. L. Pinkston the sum of $16,200.00, the cash consideration named therein." It was alleged that the writing just referred to "was (quoting) also signed by E. L. Pinkston." It was not alleged that Pinkston and his wife ever executed and delivered to the bank a contract as agreed upon, but it was alleged that on December 13, 1930, Pinkston "did (quoting) by misrepresentation or otherwise procure from the First National Bank and from E. F. Crim, its vice-president, the lease contract which had been placed in escrow with it, and in total disregard of his contract in writing and his obligation and the terms (not specified otherwise than as shown above) of the lease contract so executed and duly acknowledged by himself and his wife, failed and refused to deliver the same to plaintiff," and (quoting further) "in violation of the terms of his agreement executed another and different lease contract to the Warner-Quinlan Company," appellee here. It was alleged, further, that "each of the defendants (appellees here) connived together and conspired against him (appellant) to prevent the delivery by the First National Bank of Henderson and E. F. Crim of the lease contract so placed with it." Pinkston and the Warner-Quinlan Company severally answered, each by a general demurrer, questioning the sufficiency of Patten's petition and a general denial of the truth of the allegations contained therein. The bank and Crim answered, denying that either of them had "ever been (quoting) in possession of any lease conveying the minerals on the lands described in the plaintiff's petition signed by E. L. Pinkston and his wife as alleged by plaintiffs." It appeared in the evidence that in December, 1930, appellee E. L. Pinkston orally agreed to lease to appellant the 108 acres of land described in the latter's petition, referred to above, and that on a day in said December, not specified, said appellee executed an instrument in writing intended to evidence said agreement, and deposited a copy thereof with the appellee bank; that later, to supply omissions in said instrument, same was withdrawn by said Pinkston from said bank, and another instrument in writing was executed by said Pinkston, joined by his wife; that on December 9, 1930, a written instrument as follows, in form a letter addressed to appellant and signed by appellee Crim as vice president of the appellee bank and by appellee E. L. Pinkston, was delivered by them to appellant: "When Mr. E. L. Pinkston delivers his lease properly signed by himself and wife, we will be instructed by him, E. L. Pinkston, to deliver to you lease on the 108 acres of land upon your payment to us for the credit of E. L. Pinkston $16,200."
It appeared without dispute in the evidence that a lease as specified in the instrument just set out above was never delivered by the Pinkstons to either appellant or the bank, and that neither appellant or the bank ever had possession thereof. The lease is not a part of the record on this appeal. The trial was to the court without a jury, and resulted in the judgment appealed from denying appellant any of the relief he sought, and in appellee's favor for costs.
Pollard, Beauchamp, Lawrence Lux, of Tyler, for appellant.
Bonner, Bonner Childress, of Wichita Falls, for appellee Warner-Quinlan Co. of Texas.
Brachfield Wolfe, of Henderson, for appellee First Nat. Bank of Henderson.
Cooper Reagan, of Henderson, and Bonner, Bonner Childress, of Wichita, Falls, for appellees E. L. Pinkston and wife and E. F. Crim.
It will be noted on looking to the statement above that the undertaking of appellee E. L. Pinkston which appellant sought to specifically enforce was to deliver a lease on the 108 acres of land to the bank, and that the undertaking of the bank was to deliver such lease to appellant when he paid it $16,200 for said E. L. Pinkston. Appellant is not in the attitude of contending here, and, in view of the fact that the lease in question was never in its possession, reasonably could not contend, that the bank incurred any liability to him because of its failure to deliver the instrument to him. His contention here is that the trial court should have rendered (1) judgment in his favor against appellees E. L. Pinkston and his wife, requiring them to deliver the lease to him, on his complying with its terms, and (2) judgment in his favor canceling the lease from the Pinkstons to appellee Warner-Quinlan Company.
It is plain, we think, that appellant was not entitled to any relief as against Mrs. Pinkston, for it was not pretended in the evidence that she had ever entered into any kind of a contract with him. It is also plain, we think, that appellant was not entitled to the relief he prayed for as against the Warner-Quinlan Company, unless he had a contract enforceable against the Pinkstons leasing the land to him before they leased same to said company. As just stated above, appellant never had a contract of any kind with Mrs. Pinkston, and we have found nothing in the record showing a right in him to have her contract with the Warner-Quinlan Company canceled.
It follows from what has been said that we think appellant is not entitled to complain of the judgment so far as it was in favor of the appellees other than E. L. Pinkston. And we think he also is not entitled to complain of the judgment in that respect. The lease in question was as much the contract of Mrs. Pinkston as it was the contract of her husband, and we think it was not error for the court to refuse to require him to deliver her contract to appellant. The parties seem to have treated the transaction between them as one in which, to be effective, it was necessary for Mrs. Pinkston to join, and we have found nothing in the record indicating to the contrary.
Another reason for refusing to disturb the judgment lies in the fact that the trial court had a right to conclude from the evidence before him that appellant failed to comply, and was unable to comply, with his undertaking to pay the $16,200 he undertook to pay the Pinkstons for the lease.
There is no error in the judgment, and it is affirmed.
On Motion of Appellant for a Rehearing.
In the opinion disposing of the appeal, referring to a copy of the lease executed by appellee E. L. Pinkston alone and placed in the appellee bank, it was said that "later, to supply omissions in said instrument, same was withdrawn by said Pinkston from said bank and another instrument in writing was executed by said Pinkston, joined by his wife." It is asserted in the motion that the quotation above from said opinion "is (quoting) a misstatement of the fact and is unsupported by the record in that it was agreed, as shown by the undisputed evidence in the case, that this lease was to stay in the bank until a copy of it signed by both Pinkston and his wife was placed in the bank. According to the allegation in plaintiff's petition, and the undisputed proof in the case, Pinkston secured a delivery of this lease to him without the consent of Patten and without any right on his part to have possession thereof. This error in the statement of fact in the opinion is seized upon later in the opinion as an excuse for a conclusion of law and is, therefore, a material error on the part of this court and contrary to the undisputed facts in the case, there being no possible grounds for the statement that it was `withdrawn to supply an error.'" Whether the instrument referred to was withdrawn from the bank by Pinkston to supply omissions therein by means of another instrument we think was unimportant, but we do not agree that the statement in the opinion was not warranted by evidence the court heard.
Appellant testified:
"Q. Please tell us whether or not you regarded yourself bound to pay for and accept that first lease? A. I considered myself bound from the first and I considered Mr. Pinkston bound.
"Q. All right, then, what right did you have to exact or require a new lease the next day on a different form? If you were bound on that one, why did you not go on through with your deal on it and not require a new one? The new one was better for you than the old one, wasn't it? A. Because my lawyer went to the bank and took a look at that after it had been put in there, * * * and he wanted it on a new form."
Appellee E. L. Pinkston testified: "They (meaning appellant and one of his attorneys) objected to the form of the first one * * * and I told them to write it out for me and they wrote it out."
The motion is overruled.