48 S.W.2d 591 | Tex. Comm'n App. | 1932
This is a suit for damages for breach of contract brought by the plaintiff in error, A. A. Hufstutler, against Grayburg Oil Company, the defendant in error. The latter urged a general exception to the plaintiff’s petition. The trial court entered judgment sustaining said exception and dismissing the cause. The Court of Civil Appeals affirmed the judgment of 'the trial court. 27 S.W.(2d) 306.
So far as need be stated here, the facts alleged in the plaintiff’s petition are substantially as follows:
On July 27, 1927, the plaintiff, Huf-stutler, and the defendant oil company, made and entered into a contract whereby the plaintiff promised to sell, and the defendant promised to buy, the oil and gas leasehold estate in a certain tract of 70 acres of land in Gray county, for a consideration stated in the contract. The plaintiff, at the time
The oil company contends, first, that because the allegations of the petition show that the plaintiff falsely represented himself as being the owner of said property, and that the company rescinded the contract on that ground, the petition is insufficient to show a cause of action. Clearly the misrepresentation would not justify the 'company’s attempted rescission of the contract, unless the company were deceived by the misrepresentation. Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900. That the company was not deceived is an issue presented by the petition. The allegations in the petition are sufficient to present, as fact issues, that the company, at the time the contract was made, knew that West was the owner of the property, and knew of the outstanding lien against it.
The oil company further contends, and this is the main point in the case, that, since the averments of the petition show that the plaintiff did not own the property ¿nd had no enforceable right therein at the time the contract was made, the plaintiff was not a good-faith contractor, and therefore the company had the right to renounce its obligations under the contract. The English decisions seem to support the doctrine upon which this contention is based; but in this country the generally accepted doctrine is to the effect that the bald fact that a seller is not, at the time of making the contract, the owner of the land which he promises to convey, and has no enforceable right therein, does not give the purchaser the right to rescind, and does not impair the seller’s rights under the contract. 39 Cyc. 1410. This rule, it seems to us, is fundamentally sound, especially as applied to the seller’s petition in an action at law for the recovery of damages on account of the purchaser’s breach of the contract. There is no rule of law, of which we are aware, which renders it illegal for a person to promise to convey land which he does not own. His promise to do so, if the promise is founded on a legally sufficient consideration, constitutes a valid legal obligation. His failure to perform his promise renders him responsible for compensatory damages. The fact that specific performance of his promise cannot be enforced in equity does not affect the legal obligations of the parties. The law does not require mutuality of remedy as an essential element of a binding executory contract. It is mutuality of obligation which the law requires. 13 C. J. 327-331. The parties have the right, of course, by proper stipulation to that effect, to make the obligations of the purchaser conditional on the existence of
The trial court erred in sustaining the general exception .to the petition of the plaintiff in error. We therefore recommend that the judgment of the -trial court, and that of the Court of Civil Appeals affirming same, be reversed, and that the cause be remanded.
Judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, as recommended toy the Commission of Appeals. We approve the holdings of the Commission of Appeals on the .questions discussed in its opinion.