*1
620
рractically
expiration
plaintiffs,
until
the
the
this time der.
intention
controlling
can have
of the last described deed
no
to re-
after
of
execution
such
effect as
iquire
App. 208,
Ley Hahn,
judgment
us to
trial
trust.
Tex. Civ.
set aside the
v.
court;
having
judg-
that
lots 3 4 in block un there May 21,1925, joined they and at that time til husband father at Texline and stayed August, until physical These facts override the declared plaintiffs, intention of the declared above intention after the consummation of all of the after transactions and events cause of which constitute defendants’ had and action culminated in various instruments proceedings claiming un- *2 Kirby, King Overshiner, Abilene, &
appellant. Harwell, Wagstaff, C. G. Whitten and Wagstaff pellee. ap- Douthit, Abilene, & all of * HICKMAN, appeal J. This involves the C. following construction written tract: Texas, County “The State of of Jones agreement “This cоntract and entered into and- H. between F. Gibson Johnson, ‘lessee,’ and F. K. hereinafter called and the other names are sub- being ‘lessors,’ scribed hereto eth: called witness- undersigned agree “That Regular lease and let on what known Special Commercial Producers five Form year gas lease contract for oil and the lands in said mentioned lease contracts so as to be possible. as near in a solid block as agrees per “The said lessee $5.00 acre bonus on said land and acre $1.00 according rental of form annual Producers to terms Special during for said leases lease, paid term of said to be $5.00 the lessors lessee as soon as title is com- pleted as hereinafter stated. agreed “It is understood Abi- Abilene, Texas, is to act lene State Bank of agent leases, handle abstracts escrow requireménts and money under contract and the the lеs- lessors is to be see in credit said bank to each of the lessors respective acreage to his so leased. “It further lessee said depth 2,000 to a to drill a well feet grantors land of the said block of unless quantities paying a les- is found at depth, any point ser said well to be drilled he be on said tract of well to desires said sixty days spudded in within after titles are made merchantable the lessors and said completed diligence well with due unnecessary delay, drilling of a well on block of land aforesaid is a essence of this contract. agreed and “It is further understood and hereby stipulated that the lessors each to an furnish abstract merchantable title except to be lands herein indebtedness as leased outstanding against in vendor’s lien said lands notes or deeds of thirty days trust; shall be allowed for delivery of abstracts to the lessee for ex- amination; twenty lessee shall have days after abstracts are furnished jury, to have dered examined. The same their abstracts as the court without aid brought appeal prosecuted. soon this to date as down has been testimony practicable les- and turn same over to the throw trial heard light upon leading for examination. transactions see examination, contract, in found in said abstracts order to arrive at intent of *3 thirty days parties. unambiguous, after then the lessors are to have the to the the is admitted, objections, any, have been made said evidence should not have been presented it, to them tracts and and this even court should not consider though lessors and the Austin which to cure it is in the record. contained objections thirty days (Tex. App.) Bros. are to after the v. Patton 294 W. Com. S. respec- presented have tive to them to théir the same tracts of land which cure We rather the incline the view that cоn- unambiguous; provi- either of said shall and in the event lessors tract was sion of but since the objections, fail or lessee shall the refuse cure said then the the contract with reference to n damages thirty days predicates to cure the same have the liabil- case breach charge amount, $50.00, ity only comply and to not to exceed “lessors” event that same, against contract, correct of with the the amount terms and cоnditions the money against failing plural singular one to cor- the use of the with instead of the ,rect his title as aforesaid. When to said creates reference possible ambiguity. has has been examined the titles and The facts introduced upon light question the said then of the abstracts evidence throw and so furnished lessors to lessee shall be re- confirm our views as to the intention of the owning parties expressed contract, turned land leased to the lessors and light him to re- which abstract shall therefore consider the case lates. both of the the evidence. contract and stipu- hereby urged appellees “It is further understood and One of the defenses comply upon here, court, lated that the event that lessors lower and insisted damages with tract and terms conditions of and should be comply penalty liquidated the lessee fails to with rather construed than any damages. very terms and conditions of this contract or This sim court considered part thereof, question then this contract shall become ilar in the case of Williams v. Beas ley, (error refused), null and void as also the lease so executed 300 S. W. and authority decision, the said lessors and the bonus $5.00 the therein tained. of that and cases cited, acre hereinbefore mentioned shall become as this defense will not be sus according a forfeit lessors to the to their re- spective acreage controlling and the same shall become in the case is liquidated damages to the lessors. whether the contract is or entire. severable hereby stipulated agree “It is further and The authorities that whether a contract primarily that the shall bank aforesaid escrow is severable or entire is of in hereby holder of thorized respective he language this contract and au- tention to be determined from the receipt subject-matter agreement. and for the receive lessors used and the money coming Necessarily shares of severability to him and no certain test can' deposit applied. in his the same bank and send be with Each contract must be examined deposit receipt determining par said lessor for same a view whether the respective acreage contemplated to the lessors said so ties that an action would lie in performed part leased lessee. favor of one who his agreement joining “The block of land referred to herein to be all other lessors occupying leased situated Counties, Texas, to lessee located and or that each of the Taylor partly partly position performed in Jones like with him agreement. and lessors are the owners of the It therefore becomes our thereof language as above stated. subscribers to consider the of this contract hereby accept as lessors undisputed hereto terms in the mine facts deter parties. conditions of the above intent of thereto. There was introduced in evidence an Abilene, Texas, our undisputed “Witness hands at statement as to certain This facts. the-day January, agreement D. A. 1927.” shows that all of the signed by signed The contract E. IC. Johnson whose names were to the contract as duly H. P. gas Gibson “lessee” and 18 different executed oil and leases to the Opposite landowners as of acres provisions “lessors.” the name defendants in accordance with the placed deposited landowner was the number of of the contract and same with the bank, land to be leased him. One of the escrow which leases covered substan- signed tially acreage landowners name opposite the amount of set- Read, opposite respective lessors; contract was W. O. names of the that each placed whose name was instituted “244 acres.” Read and all of afterwards furnished to against appellees liqui- suit for the defendants abstracts of title in accord- damages provided contract; plaintiff’s dated for in the ance with the ab- and, supplements from a adverse to him stract and ren- he quently applied prepared merchantable and lands is whether the consideration showed expressly by.necessary implication ap- in is described title in his that divided portionable. acres, except petition, aggregating ex- The terms of the contract 244.68 any outstanding clude of might and un- rested idea that there shown any objection gas under one lessors to cure interest in who, Logsdon, les- raised to other of the tracts in O. W. lease; very wording wife, joined that on sor. The dis- in the oil May contemplated refused closes that it was defendants or about might abstracts, lease, assign- plaintiff’s some of take and ing provided ground refusing one B. to meet that it was for so situation days Reeves, execut- should cure of the lessors have 30 G. who was one charge the ob- same tó cure not to exceed had refused amount correcting jections title; Reeves fail- $50 ing that said the contract same the one *4 go Reeves to correct his title. When refused refused demanded further with to lease; up- title, that cure did not devolve of his to his the return the bank returned upon appel- appellant do, to Reeves on so but rather said lease to the escrow May 17, signer prior to each The disclosed that consent lee. with defendants’ pay 1927, to refused number Each was owned certain to be of acres. the date defendants acreage of $5 for his the rate for at lease. per acre, being payable agreed discloses to each further the amounts statement The dependent upon tract owned number of acres title to another the that the abstracts of land, by penalty'provided in favor been included him. have was to which expressly to be the owner same was acreage, that the states disclosed lessors block- acreage.” paid “according the re only with in said land to estate a life Appellees money did not to was to be credited likewise to children. mainder assign acreage.” objection “according as one title to to the lessors this latter appellant put refusing pay Reeves, Appellees, dealings to with in their for of the reasons by interpretation upon interposed in defect lease, that that senting consulting the contract for his title as one herein. to appellant’s but in their answer therefrom without defenses of the to his withdrawal known in title was lessors. the other this defect Since they accept very throwing upon significant appellees to refused A fact the time at therefor, pay in him is contained intention of the the the had by assigned of the rea them one It disclosed not record. was that, arriving difficulty provi- refusing, do believe in at we sons so some permit authorities, sions of contrаct. The first contract should under the the/ rely acceptable upon Porter v. defense. drawn to certain such was not ted to important 718; Long lessors, (Tex. App.) 241 reasons not to Pittman v. S. W. here Civ. 91; (Tex. App.) state. Martin Civ. 234 W. Ohio The lessees then drew a contract con- S. 258, taining unacceptable McCarthy, was & M. R. Ed. 96 U. S. 24 L. which Co. v. Queen 693; Co., lessors, City Fire Ins. to drawn and the Ward v. contract executed was 1067; Haney by very Hatfield, purpose, v. it lessors Or. P. 680; us, among others, making obligation. de (Iowa) v. seems to clear 241 Pa. A. Banco Sonora very Casualty provided this Bankers’ 95 N. It was in Mutual Co. drawn, being W. second one drawn pointed appellees lessees, out, As that: further that “It above con opinion title of lessee’s sented to his lease Reeves withdraw from event attorney agent, did shall not be and merchantable escrow not undertake to pointed They as to tract, then, tracts this con- cure defеcts out in his title. of the described cannot, option set because at the it Reeves’ conduct as against appellant, either return persons null and or declare this contract to do so would be void profit person permitting them own the oil and leases to the to con duct, wrongful lessors, or more of named was attorney therein, opinion acquiesce appellees’ lessee’s who did not appellant any duty accept delivery is not the from contention that correct Reeves’ title owed merchantable Bank, said Abilene leases correct. State upon approved title, record, appellees As which it has under the view terms of in which latter event in had same attitude before this court as if it this all will to drill said on some shown that of the lessors com it bound well property plied respects obliga covered in all with oil and the several imposed upon gas leases, accepts.” it them tions in the contract. regardless conclusion, But, will that this' was it be observed changed executed, provide materially showing ap the contract intention pellant ages that clearly our that minds the lessors have an action for his should dam complied that lessees could refuse alone would not that he accept regard where the leases on tracts abstracts with whether complied acceptable ground on the that other lessor therewith? were We severability tracts. think abstracts to other so. of the tests of One fre- imposed duty upon such each and right from the contract omitted that fact The last and pellees jointly, contract would then the considered that same was shows ap- adversely as if each of the have to be construed claim every tract of to lease each аnd desired contracted lessees suit. Had the lessee; to title to obligations land that each lessor was lessor to one relieved an abstract of lessor, indicated furnish to of another default by them, every each tract of land included by they contract drawn form the block; recting right each of cor- preserved that lessor owed the hav- have that should they signed ab- to the title in each recite. Since the contract so strаct; join provision, and that lessor must it is our a contract without damages, and, they the other lessors in a suit for opinion themselves bound precedent recovery by as lease, a condition appellant and that for his suit, prove every breaching lessor com- to him liable this contract plied fully contract, while, liquidated with his amount of acre $5 time, accruing damages. same was resented the consideration to each re-, only рroportion damages rep- will be trial court appel- the number of acres furnished in favor versed and here rendered him. Such construction of instrument lant. meaningless pro- specific would render other Rehearing. Motion for On visions thereof. We therefore think that where the contract more be the provides A we conceive few what that lessors shall *5 appellees’ important' arguments rehearing motion for in comply furnish titles аnd terms shall briefly. contract, etc., will noticed provisions be of the must orig in our interpreted It insisted that we erred specific is in of other more any opinion considering evi provisions in inal that the each les- by on the issue only applies heard the trial court specific land, dence of the intent of the contract. sumed derstand sor to his tract of entering parties into in and that the intention of the was to position as give That is not the damаges to each lessor his action for brief, by appellees un as we in their a breach thereof without reference to wheth- objected appellant who it. joined er the other lessors him in . the suit. any this evi favor of brief consideration in his to determining It is insisted that in dence, resolving in in the doubt contract was severable we overlooked the overruling principal a consideration thereof we the lees. consideration of thе to objection appel- not of wit, drilling part of a well on some Appellees cross-assignments in proposed no had argued great length, block. It is not, think that by their brief. We do appellees appellant, that, to seems be conceded complain position in a to on re drilling well, as to the a hearing this that we considered evidence. contract was In a entire. limited sense this But, tion, contract, true, of their in mo not, think, insistence view is we but insist- sense again carefully upon by appellees. we have considered this ed No of the lessors opinion that, construing and is our right it placed to insist that the well be particular it as if it same written and as contained tract of but the ben- whatever, ambiguity no believe the inten drilling efits to derived of the well entering tion into respective it was to individual were lessors, benefits for the grant greater to each landowner a less, severable cause of some and some accord- specific damages provided ing action to location made the lessee of the words, joint therein to to accrue him. In other if well. No benefits to lessors were templated. which, stated, unambiguous, that, the contract is we are as We had the contract appellaht believe, damages to inclined then was contained no measure of fail- for the entitled to maintain ages; and, well, for his ure action dam to drill a and had the ambiguous, only particu- then the evidence contract been breached in that unquestionably the trial heard es lar ages and a suit filed for dam- tablishes this intent. breach of a part contract, A in rule all the be severable to lease should be part. fixed to and entire law tract There is no such suit. But is not determining provides, before of when a con the case us. This contract alwаys substance, that, entire, any and courts under if the will lessee breaches thereof, money take to parties condition determine the real intention then bonus $5 provi with reference to acre shall forfeit to the lessors that, acreage. sions the contract to their We think considered connection only appellees’ with the whole. contention is under terms If that, for correct breach of this contract breach of сontract been the failure on the a them, particulars by right well, any no of the lessee to drill lessor of its in action existed in been entitled one of the lessors un would to sue for dam- ages breach, respect all, very that, joined unusual and almost for such less impossible right performed signed lessor who had contract was these les damages against the maintain an action for If the term “lessors” as used sors. term immaterial it by the lessee. the contract breaches placed contention Much stress is only life estates lessors had three agree- of land. in ment tracts introduced evidence facts deeds, to his J. H. Gist contains two son, grantor from Gist, Othello another Hill, daughter, Mrs. Jennie These instruments wife of E. Hill. before O. for construction to us determine granted thereby, but we character of estates do in the deed the fact that call attention to fight power to Mrs. Hill is contained the mining execute lands, in full remain shall effect, according terms to its force and deed not be her terminated death. provision. this- not contain Othello Gist does by ap- entire, insisted the contract were appellant pellees, and it was the correct all made to titles then, sue, precedent right condition to his original under opinion, the authorities cited objection particular appellees, did not was waived because objection appellant until same furnish such this suit. set a defense to rehearing motion for overruled. will
SMITH et al. (No. 1738.)* v. THORNHILL Appeals
Court of of Texas. Beaumont. Civil Dec. 1928.
Rehearing Denied Jan. granted. of error
*Writ