48 S.W.2d 813 | Tex. App. | 1932
There is presented on appeal the points in view, in effect, that the lessor may not assert failure of compliance of the lease provision to pay the rental within the time limited, of December 1, 1930, and defeat the lessee's right in the lease, because (1) the lessor consented to the deferment of rental payment until the termination of a suit to be instituted to remove the claim and existence of incumbrance upon the premises of an outstanding gas and oil lease, and (2) the circumstances are sufficient to constitute estoppel as the lessor by acts and conduct so dealt with the lessee as to mislead her into supposing that the rental payment at the time due in the lease would not be insisted on, but would be deferred during the pendency of an action to free the leased premises from the existence of incumbrance.
The lease under consideration expressly provides that the rights thereunder of the lessee shall terminate if the drilling of a well in exploration of oil be not begun, or, in lieu of it, payment of the rental stated, on or before December 1, 1930. The stipulation clearly manifests that time is the essence of the contract, and the parties have expressly so treated it. And by its very terms all the rights and privileges of the lessee would legally cease to exist upon the failure at the time specified, either to commence to drill the well or to make the rental payment. Texas Co. v. Davis,
It is the plainly settled rule that, if a person, either by words or conduct, has intimated that he will offer no opposition to an act to be done, or induces a reasonable belief that he consents to the act in view to be done, and another person is thereby induced to do that from which he otherwise might have abstained, such person would be estopped from questioning the act done or the fair inference to be drawn from his conduct. If indeed the lessee was induced to believe that strict observance of rental payment when due by December 1, 1930, would not be required of her, it must rest upon the fair inference to be drawn from the lessor's conduct during the conferences between the parties. The answer is that the circumstances present a pure question of fact. There is affirmative evidence authorizing a conclusion of fact that during the conferences the lessor and those acting for him refused to accept the proposition of the lessee to finance a suit to terminate the outstanding lease and defer payment of rental pending such suit. The proposal to finance the suit and to defer the rental payments during the pendency of the suit were terms connected together and not divisible nor intended by the parties to be separate. No inference from acts or from conduct can be depended upon as reliable drawn from disputable circumstances. If the circumstances authorized the presumption, as is believed might be inferred by the trial court, that the lessor did not reasonably lead the lessee into the belief that the rental payment at the exact time would not be insisted on, then the equitable situation would be entirely wanting. The element of deception or of acquiescence would not be existing.
The judgment is affirmed. The judgment as respects the appellees B. K. Isaacs, trustee, and John L. Lamkin, receiver, and J. J. Flewellen, not being appealed from, will remain in all things undisturbed. *1007