285 S.W. 631 | Tex. App. | 1926
The parties will be designated as plaintiffs and defendants, as they were in the trial court. Plaintiff, a common-law trust association or partnership, of which Joseph Danciger, M. O. Danciger, and originally J. L. Van Dissen were trustees, filed this suit against defendant, a trust association, operating under a declaration of trust, and Clay Cooke, W. L. Propst, and E. D. Davenport, as its trustees, for $4,058.27. The defendants Golden Rod Oil Company No. 1 and its trustees, E. D. Davenport, Clay Cooke, and W. L. Propst, filed an answer and cross-action complaining of the Golden West Oil Company No. 1 and Joseph Danciger and M. O. Danciger, individually and as trustees of said Golden West Oil Company No. 1, and in said cross-action set up a contract, and alleged they, in their capacity as trustees of the Golden Rod Oil Company No. 1, were the owners of an oil lease covering lands in Wichita county, Tex., describing same, and that the suit by plaintiffs as well as defendants' cross-action were both based on a written contract between the parties, known as a drilling contract. Said contract was between E. D. Davenport, W. L. Propst, and Clay Cooke, as trustees for the Golden Rod Oil Company No. 1, as first parties, and M. O. Danciger, Joseph Danciger, and J. L. Van Dissen as second parties. By the terms of said contract first parties, defendants herein, conveyed to second parties an undivided one-half interest in oil leases on certain lands, and the second parties, plaintiffs herein, paid to first parties *632 $10,000 cash, and agreed to pay an additional $15,000 in oil that might be taken from wells to be drilled on said lands. Said second parties further agreed to furnish all material and drill a certain number of wells on said lands, the proceeds from the sale of oil produced to be divided equally between the parties, etc. Defendants further alleged in said cross-action, in substance, that said contract had been breached by the plaintiffs and said Dancigers, in that they had not complied with said contract in drilling wells and paying the balance of $15,000 consideration, and prayed for cancellation of said contract and the recovery of said $15,000, etc. On September 24, 1924, said cause was heard in the absence of plaintiffs. The court dismissed plaintiffs' petition, and tried said cause on defendants' cross-bill, and awarded to defendants judgment canceling said contract, the possession of said leased lands, all wells, material, etc., and also for $15,000.
Under other assignments, plaintiffs contend that the pleadings of defendants herein are insufficient to support the judgment rendered, in that defendants in their cross-bill sought both the rescission of the contract involved in this suit and also the recovery of the consideration provided for in said contract, which were inconsistent remedies, and that it was error for the court to render judgment both rescinding the contract involved and granting a recovery of the consideration provided for in said contract. In their cross-action defendants pleaded a contract, by the terms of which they sold to plaintiffs certain mineral rights for the consideration of $25,000, $10,000 in cash, and $15.000 to be paid by delivering to defendants one-fourth of seven-sixteenths of plaintiffs' part of the oil produced by plaintiffs from said leased land until said $15,000 is satisfied, provided, if oil was not found in paying quantities, then said $15,000 was not required *633 to be paid, and as a further consideration for said contract plaintiffs agreed to do certain development work, to wit, to drill a second well on each of said two tracts, provided the first well which they were required to drill produced oil in paying quantities; that plaintiffs had defaulted in the covenants to be kept and performed by them, and all their rights under said contract were forfeited, and defendants in said cross-bill pleaded further as follows:
"By reason of the premises, as set out, the defendants herein pray that said drilling contract and all rights of plaintiffs and said M. O. and Joseph Danciger thereunder be canceled and held for naught. That by virtue of said contract as aforesaid, plaintiffs and the said Dancigers are indebted to defendants in the sum of $15,000; that, in the event the court should hold that defendants are not entitled to have said contract rescinded, then defendants say that the plaintiffs and the Dancigers are indebted to the defendants in the sum of $15,000, and pray judgment for that amount."
In defendants' final prayer, they prayed that said drilling contract be canceled and held for naught; that plaintiffs take nothing by this suit; that defendants have judgment against plaintiffs for $96,300, the same being the oil runs from July 1, 1919, to May 1, 1920, and unaccounted for; that defendants recover against plaintiffs $5.000 for wrongful garnishment; "that the defendants have judgment for $15.000 due as aforesaid," and for general and special relief. On the trial the drilling contract was introduced in evidence. Clay Cooke testified as follows:
"They never drilled the second well, and we never got any part of that $15.000, which was the balance of the cash consideration for this lease."
The defendants on the trial abandoned their claim for $96,300 damages for oil unaccounted for, announcing they were unable to prove said item. The court instructed the jury to find for the defendants on said cross-bill against plaintiffs for the cancellation of the drilling contract, and for the recovery of the title and possession of the premises, describing same, and for the sum of $15,000. The defendants in the contract set out in the cross-bill, conveyed to plaintiffs a half interest in the oil and minerals under certain lands. Plaintiffs, under said contract, paid $10,000 cash, and agreed to pay $15,000 by delivering to defendants one-fourth of seven-sixteenths of their part of the oil to be found until said $15,000 is paid, and also agreed to do certain development in the way of drilling wells as specified in the contract. The contract also provided, in effect, in case plaintiffs failed to keep and perform the covenants as provided in the contract to be kept and performed by them, then all their rights under said contract should be forfeited. This forfeiture provision was placed in the contract for the benefit of the grantors in said contract, the defendants herein. Clemenger v. Flesher (Tex.Civ.App.)
"that, by virtue of said contract as aforesaid, plaintiffs and the Dancigers are indebted to defendants in the sum of $15,000; that, in the event the court should find that defendants are not entitled to have said contract rescinded, then defendants say that the plaintiffs and the said Dancigers are indebted to defendants in the sum of $15,000, and pray for judgment for that amount."
This was a correct pleading applicable to the facts pleaded, but in peremptorily instructing a verdict and in rendering judgment the trial court seems to have ignored said pleading and rendered judgment that the drilling contract be "canceled and annulled," and that defendants recover, not only the oil land they had leased to plaintiffs, but also said $15,000. This was fundamental error. It was fundamental error in that there was no pleading authorizing such recovery, and, further, this being a suit to cancel and annul the contract, and a judgment being rendered so canceling and annulling said contract, it would, we think, have been fundamental error to render judgment for said $15,000, the balance of the consideration for said lease contract, regardless of how well the case may have been pleaded, for to permit such recovery would be permitting defendants to pursue wholly inconsistent remedies. We sustain these assignments, which requires a reversal of this case.
There are other assignments, but, as the case is to be reversed, we deem it unnecessary to discuss same. In fact, they may not arise upon another trial.
For the error above pointed out, the cause is reversed and remanded.