Opinion
No. 4144.
June 18, 1932. Rehearing Denied June 23, 1932.
Appeal from District Court, Gregg County; Joel R. Bond, Judge.
Suit by Mary Skipper and husband against T. W. Mitchell, in which defendant filed a cross-action. From the judgment, plaintiffs appeal.
Reversed, and remanded for new trial.
The suit (commenced at a time not shown in the record but prior to June 8, 1931) was by appellant Mary Skipper, joined pro forma by her husband, B. A. Skipper, as plaintiffs, against appellee, T. W. Mitchell, as defendant. As declared upon in appellants' petition, the cause of action was a statutory one of trespass to try the title to eighteen acres of the John Belcher survey in Gregg county and for damages. As tried, however, it was to recover possession of the eighteen acres, which it appeared at the trial appellants had leased to and delivered possession of to defendant. The lease was an oral one. Appellants' contention in their pleadings was that it was for a term of only "about six months" from July 1, 1930, that the term had expired, and that appellee had refused to vacate the premises and was wrongfully holding possession thereof. Appellee's contention was that the lease was for a term of five years beginning January 1, 1931, and ending January 1, 1936. The prayer in appellee's answer was for a decree specifically enforcing the contract as he claimed it to be, quieting him in his possession of the land for five years from said January 1, 1931, and awarding him a recovery of damages. In a cross-action included in his answer, appellee sought a recovery of $2,400 he claimed he had expended in improving the land in reliance on appellants' undertaking to lease same to him for a term of five years as stated, and a recovery of $17,000 for losses he suffered and profits he failed to realize because of appellants' breach, as alleged, of their undertaking. The trial was to a jury, and they made findings on special issues submitted to them. The appeal is from a judgment predicated on said findings, denying appellants relief of any kind, and, in effect, providing for the specific enforcement of the terms of the contract as appellee claimed they were.
Stuart, Morgan, McGaw Mitchell, of Longview, for appellants.
C. W. Falvey, of Lufkin, Jno. Howard, of El Paso, and T. G. Jackson, of Longview, for appellee.
There was evidence that the lease to appellee was from July 1, 1930, for the remainder of that year, and of an agreement on a condition specified to extend the term for one year from January 1, 1931. It was because of this testimony, it is assumed, that the trial court submitted to the jury a question (numbered 1) as follows: "Has the plaintiff shown by a preponderance of the evidence that she, through her husband, made a contract with the defendant for the lease of the premises in controversy for the balance of the year 1930, and for one year thereafter, provided he, the defendant, signed a written contract evidencing the terms of such lease?" The jury answered the question "Yes," and it is insisted the answer was in conflict with a like answer they made to another question (numbered 2) submitted to them, as follows: "Has the defendant shown by a preponderance of the evidence that the plaintiff, through her husband, made and entered into a contract with the defendant whereby plaintiff leased to the defendant the land in controversy for all purposes, for a period of five years, beginning January 1, 1931?"
The findings were material, and it is plain enough, we think, they were so contradictory as to destroy each other. In that state of a case it is held a court properly cannot render a judgment. Houston T. C. R. Co. v. Walsh (Tex.Civ.App.) 183 S.W. 18; Houston, E. W. T. R. Co. v. Browder (Tex. Com. App.) 283 S.W. 154; J. S. Brown Hardware Co. v. Catrett, 45 Tex. Civ. App. 647, 101 S.W. 559. Appellee's contention that the rule recognized in the cases just cited should not be given effect in the instant case is on the theory that the conflict claimed did not appear to exist when the findings in question were considered in connection with other findings made by the jury. But we think none of the other findings operated to relieve the conflict. The third one of the findings was that the lease for five years was to be evidenced by a written instrument; and the fourth was that appellants placed appellee in possession of the land, agreeing he should have the same "for the remainder of the year 1930, and five years thereafter."
Other questions are presented in appellants' brief, but, as they may not arise on another trial, we think they need not be determined.
The judgment is reversed, and the cause is remanded to the court below for a new trial.