240 S.W. 559 | Tex. App. | 1922
Lead Opinion
As we view it, the contract between the parties was unambiguous, and it was the duty of the court to construe it. Cook v. Dennis,
The only limitation in the contract on the privilege accorded Campbell "to put more land into cultivation" was that the "additional land" should "adjoin the field fence," and should be in a "rectangle." The privilege conferred was without restriction as to the quantity of "additional land" Campbell was authorized to clear and cultivate. The court, therefore, should have construed the contract as giving him a right to clear and cultivate all the timbered land. The limitation as to where he should clear, and the shape of the clearing, evidently was intended to apply only in the event Campbell elected to clear and cultivate less than all of the land; for it could have no application if he elected to clear and put all of it in cultivation.
It conclusively appeared from the testimony that Campbell had cut timber north of the Higgins tract, and was engaged in cutting timber in the northeast part of the tract in question here at the time he and Ashmore were evicted from the land. He testified that he had done and was doing that for the purpose of clearing and putting all the timbered land in cultivation. If that was true, he had done and was then doing nothing he *561 was not entitled to do under the contract. Therefore the question for the jury was one as to whether he had cut and was cutting the timber, intending in good faith to clear and cultivate all the land. An affirmative answer to such a question would have established that he and Ashmore were wrongfully evicted from the land, and as a matter of law were entitled to recover such damages as the testimony showed they had respectively suffered. On the other hand, a negative answer would have established that Campbell had violated and was violating the contract, from which it would follow as a matter of law, there being no contention that Campbell's and Ashmore's rights were violated by the manner in which they were evicted from the land, that they were not entitled to recover anything of appellants.
Such being the case made by the pleadings and the contract and the other testimony specified, the judgment should be reversed for the error referred to, unless it ought to be said that the finding of the jury in effect was that, in cutting the timber as he had cut and was cutting same, Campbell intended to put all the land in cultivation. The answer of the jury to the first question submitted to them was that Campbell was not, and their answer to the second question was that he was, cutting the timber in a manner and at a place he had a right under the contract to cut it. In view of the fact that the jury were authorized by the charge to construe the contract, we do not think the answers can be treated as a finding that Campbell intended to clear and cultivate all the land. Their answer that Campbell was cutting the timber in a manner and at a place he had a right to cut it may have been based on a conclusion they reached that he had a right to so cut the timber, notwithstanding he intended to clear and put less than all the land in cultivation.
Of the assignments complaining of the action of the court in overruling exceptions questioning the sufficiency of allegations in Campbell's answer, the fourth and seventh are sustained, and the first, second, fifth, and sixth are overruled.
The assignments not disposed of present questions not likely to arise on another trial, and therefore need not be considered.
Attention is called to the fact, which seems to have been overlooked, that the judgment against the sureties on the sequestration bond was rendered in face of the fact that the action was not on the bond, and the sureties were not made parties to the suit by any pleadings in the case.
The judgment is reversed, and the cause is remanded to the court below for a new trial.
Dissenting Opinion
The judgment in this case is reversed mainly because the court, in effect, submitted to the jury the construction of the contract between Booth and Campbell. It is contended that the contract was in writing, was ambiguous, and the court should have given to the jury whatever legal interpretation was needed. Even if that be an error, it is no reason for reversing the judgment unless it also appeared that the jury was probably misled into finding that Campbell had done nothing in violation of his contract to give Booth the legal right to cancel the lease. If Booth neither pleaded nor proved a case which authorized him to cancel the contract, then the court might have instructed the jury, as a matter of law, that Campbell was wrongfully ejected from the premises.
The following is a summary of the material provisions of the contract:
Booth rented the entire 31-acre tract of land to Campbell for the term beginning December 28, 1919, and ending December 28, 1920, together with a right of way leading to a public road. The consideration was $10 a month, to be paid monthly in advance. Here are the affirmative obligations undertaken by Campbell: (1) To pay the rent monthly in advance; (2) to erect a barn according to certain specifications, within 90 days after he had taken possession; (3) to erect two rooms adjoining the house on the premises within 4 months after taking possession; (4) to ceil, canvas, and paper certain portions of the house within 5 months after taking possession; (5) to cultivate all of the land then growing in sprouts and timber within the field fence, consisting of 12 acres; (6) to cultivate also all of the land then in cultivation during the year 1920, in a substantial, farmerlike manner; (7) to keep the sprouts cut down on the right of way from the rented premises to the public road.
The following is the provision upon which Booth relies for ejecting Campbell and Ashmore:
"If Campbell shall fail to perform the obligations herein undertaken and pay the rents in advance, such failure shall at Booth's election cancel this contract, which shall then become null and void."
In order to support this action to recover the leased premises, and justify the expulsion of Campbell and Ashmore within less than one month after they had taken possession, it devolved upon Booth to plead and prove some default on the part of Campbell which comes within the meaning of the above provision. The following is the substance of Booth's complaint, as pleaded: That Campbell and Ashmore had cut and hauled away and appropriated to their own use many beautiful trees growing on the land; that it was the direct purpose and intention of the defendants to destroy, mutilate, *562 cut, and carry away and convert to their own use the valuable timber upon said land, and commit waste, in direct violation of the lease contract; that they did cut and carry away and sell 100 cords of wood, of the reasonable market value of $10 a cord, in direct violation of the contract; that they had failed to pile any brush or prepare the ground for cultivation, but left it in a rough, rude, and unkept condition, unsuitable for cultivation, and it was not at or near the place where the defendants had the privilege of cutting timber and clearing land — to the plaintiff's damage in the sum of $1,000.
Booth testified that he visited the premises on the 13th day of January, 1920, and for the first time discovered that Campbell was cutting the timber from the land. On his return home he and Campbell met and had a conversation concerning the manner in which the timber was being cut. He says:
"I hailed Mr. Campbell as he passed. * * * We both stopped, and I got out of my car and walked back. * * * I told him he was cutting and destroying my timber out there contrary to the contract; that he was not living up to the contract; that I wanted him to desist; and he said he wouldn't do it; that he was going to go on and cut that timber and haul it off. Then I told him I was going to send the sheriff out there the next day, and I did. I came back immediately and prepared my original petition and got out my sequestration, and the sheriff served it * * * the next day."
The question is, Does this pleading, or this testimony, show any default on the part of Campbell that gave to Booth the legal right to cancel the lease? In other words, Does it show that Campbell had failed to perform any of the obligations which he had undertaken? It is true Booth alleged that Campbell had violated the contract, but the only provision it is claimed that was violated is this:
"He (Campbell) shall use no timber except off the land which he clears and cultivates."
In legal effect the complaint was that Campbell was cutting and removing timber from land which he was not authorized to clear for cultivation. Suppose we concede that Booth's construction of the contract regarding Campbell's timber rights was correct, and that Campbell was cutting timber and removing timber that he had no legal right to take; was that sufficient to authorize Booth to forfeit the lease? No rule of law is better settled than this: The provisions of a contract which gives to one party the privilege of forfeiting a vested interest will be strictly construed; and, where the language employed renders the meaning of the parties uncertain, the doubt will be resolved against the party claiming the right of forfeiture. One who seeks the aid of so harsh a remedy has the burden of showing beyond any reasonable doubt a situation which comes clearly within the meaning, if not within the very language, of the contract. An election to forfeit because of a failure to perform a promise to pay rent in advance, to build an addition to the house on the premises, to ceil, canvas, and paper rooms, to put into cultivation certain portions of the land, to cultivate in a farmerlike manner land not theretofore cultivated, cannot be construed to cover a trespass in cutting timber from land which the lessee had no right to invade. A provision designed to secure the performance of affirmative obligations to do something for the benefit of the lessor cannot be extended to include inhibitions against the commission of a tort upon the premises. What Booth charged in his original petition, and what his testimony tended to prove as a justification for canceling the lease, was not a default in the performance of an obligation, but a trespass committed to Campbell in cutting and removing timber from land not covered by the terms of the lease contract. The provision for a forfeiture was evidently inserted for Booth's protection, as security for the fulfillment of Campbell's promises to do the things specified in the contract. This might have been expedient because of Campbell's insolvency, or his inability to respond in damages for any material default of which he might be guilty. But it would be going to an unreasonable extreme to say that it was contemplated that this election to forfeit the contract might be exercised because of the nonperformance of some minor obligation, such as the failure to do all the papering within the time prescribed, or the failure to clear off all of the sprouts on the land mentioned, or the failure to keep the right of way to the public road cleared, or the failure to cultivate the land in a farmerlike manner. Booth's rents were to be paid in cash, and did not depend on the yield of the crops grown. The words "and pay the rents in advance" were designedly inserted for a purpose. Their payment in advance had been previously provided for in the first paragraph of the contract, and that promise was clearly included within the general terms, "the obligations herein undertaken." The repetition following those general terms must have been intended as a limitation upon the right of forfeiture reserved to Booth. By naming a particular obligation the nonperformance of which would constitute a ground of forfeiture, there was a clear indication of an intention that no other obligation, or default, of an inferior grade or of less importance, should be a ground of forfeiture. Right of Way Oil Co. v. Gladys City Oil, Gas Mfg. Co.,
My conclusion is that both the pleadings of the plaintiff below and his testimony disclosed a case in which Campbell was committing only a trespass upon the premises, and the court might have informed the jury that this did not give the right of forfeiture. That being true, the only question which should have been submitted to the jury was that of damages which the defendants below were entitled to recover by reason of their wrongful ejection.
I also differ with the majority in sustaining the assignments of error based upon the refusal of the court below to sustain certain special exceptions. I think the judgment should have been here modified and affirmed.