No. 3425. [fn*] | Tex. App. | Jul 12, 1927
At the trial of the former suit to cancel the lease on the Texas land, and on the appeal from the judgment rendered therein against them, appellants insisted that the $1,840 to be paid for an interest in the mineral rights on the Louisiana land was the consideration for both the leases and that same failed February 1, 1924, when Scott was to pay same and did not. At the trial of the instant suit appellants renewed their insistence that the $1,840 was the consideration for the leases, but contended that, instead of failing on said February 1, 1924, it failed June 13, 1925, when the judgment of the Louisiana court canceling the lease on the Louisiana land was rendered. The first suit to cancel the lease on the Texas land having been tried before said June 13, 1925, appellants insist a failure of consideration occurring then could not have been litigated in that suit and that the judgment rendered therein, therefore, was not res adjudicata of a right in them to maintain this suit to cancel that lease for that failure. They do not claim such was not the effect of the judgment if the consideration for the lease failed before November 13, 1924, when their first suit was tried.
If the failure of consideration complained of in the instant suit entitled appellants to a cancellation of the lease on the Texas land, and if such failure occurred after the trial of the first suit to cancel that lease, we agree the judgment in that suit did not deprive them of a right to maintain this one. But on the record before us we think the burden was on appellants to allege, and at the trial of the instant suit to prove, that such failure occurred after the first suit was tried, and we think they failed to discharge the burden. According to testimony of appellant J. M. Bryson as a witness, the failure complained of occurred February 1, 1924, when, he said, the $1,840 was to be paid but was not paid. According to the stipulation in the instrument evidencing Scott's undertaking, he was to purchase the interest in mineral rights on the Louisiana land and pay the $1,840 "upon the drilling in of said well." What well was referred to and what was meant by the phrase "drilling in" did not appear from evidence heard at the trial of the instant suit. Certainly it cannot be said the testimony referred to showed the claimed failure of consideration occurred after said November 13, 1924. And we do not think the contention of appellants in their brief that it appeared such failure occurred June 13, 1925, when the judgment of the Louisiana court canceling the lease on the Louisiana land was rendered, is tenable. The ground of the Louisiana court's action does not appear from anything in its judgment or in any other part of the record sent to this court on this appeal The court's action may, or it may not, have been based on a showing that the consideration for that lease had failed, and, if it was based on such a failure, that same occurred before said November 13, 1924.
However, if we thought appellants had discharged the burden resting upon them and that it appeared the failure of consideration they complain of occurred after the trial of their first suit, our conclusion that the judgment should be affirmed would remain unchanged, for, as stated in the opinion disposing of the appeal in the first suit, we think the consideration recited in the instrument evidencing the lease of the Texas land was amply sufficient to support it, and that appellants' remedy for appellees' failure to purchase and pay for the interest in the mineral rights on the Louisiana land was a suit for damages.
And there is still another reason why we think appellants were not entitled to have *1049
the lease on the Texas land canceled. By the terms of that lease a failure to commence drilling a well on the land covered by it, or on land "within ______ miles of same," on or before February 1, 1924, was to render the lease "null and void." Such failure was the only ground of forfeiture provided for in the lease. The evidence showed that before the time specified appellees began drilling a well on land within two miles of the leased land. The rule is that, when the grounds for a forfeiture are specified in a contract, a forfeiture cannot be had on other grounds. Grubb v. McAfee,
The judgment is affirmed.