Smith v. Crosby

47 Tex. 121 | Tex. | 1877

Moore, Associate Justice.

The appellee, Crosby, by his cross-bill, upon which the judgment was rendered, from which this appeal is prosecuted, claims that, by reason of the fulfillment and performance on his part of the terms and conditions of the contract touching the locating, surveying, and procuring patents for three land certificates—one for one league, and the others for one league and labor each—which contract was between himself and John Hancock, subsequently ratified and approved by M. T. Johnson, he is entitled to a decree for one fourth of three leagues, and one fourth of two labors of land, out of the league, and the league and labor for which he had procured patents, although this was the entire amount of land to which he would have been entitled, had patents issued upon all of said certificates, and notwithstanding the fact that one of said certificates, after its return to the General Land Office, was ascertained to be invalid, and for which a patent could not be obtained.

From the evidence, it clearly appears that Crosby had complied with and performed all the conditions and stipulations of the contract, on his part, for securing the lands on which the certificates were located, as fully and completely as it was possible for him to do; and the failure to procure the patent on the survey, which he had caused to be made by virtue of the unpatented certificate, was not through any default or neglect on his part. But although it should be conceded that the failure to secure the land thus located was attributable solely to Johnson, (and it was clearly shown that he had been guilty of a breach of his contract,) still it is evident that Crosby cannot claim the entire amount of land which he was to get for procuring patents on all of the certificates, while a part of them only have been patented, unless the contract by which he claims the right to do so is entire and indivisible.

Mo precise rule can be given, says Judge Parsons, by which it can be settled in each particular case, whether the contract is entire or separable. “ Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract. H the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such contracts will generally be held to be severable.” (2 Pars. on Cont., 517.)

Applying these approved and well-established rules for determining the character of the. contract upon which appellee relies, we think there can be no hesitancy in saying that it must be held to be severable, and not entire and indivisible. It was a contract for the joint acquisition of land by the location of the certificates, and not for acquiring the corresponding number of acres of land in a body. There is nothing to show that it was contemplated that the certificates could or would probably be located adjoining each other, or, if they were, that the surveys would be of uniform quality and value, or that the patents upon them could be gotten, even approximately, at the same time. These considerations clearly show that equity and justice between the parties to such contracts require that they should be construed and treated as divisible, unless it is otherwise stipulated in plain and unmistakable terms. This, we think, is not the case in the present instance. The most that can possibly be said in support of the construction claimed by appellee, and given to this contract in the court below, is, that its language is somewhat ambiguous. This ambiguity in the written agreement between Crosby and Hancock is not, however, sufficient to negative the obvious conclusion deduciblo from the essential nature and character of its subject-matter, and the conclusion to which we would be otherwise led from the facts and circumstances under which it was made, to which we may properly look to ascertain and determine its true construction, and the real intention of the parties who are bound by it. (Perkins v. Hart, 11 Wheat., 237; Robinson v. Green, 3 Metc., 159; Sickels v. Pattison, 14 Wend., 257; Main v. Payne, 3 Bing., 285.)

The most that can be claimed for the locator, in such case as presented by the record, is, that he shall be compensated for the damage he has sustained by the act or default of the party undertaking to furnish the certificates. But what is the proper measure of such damage ? This must be ascertained and determined by the rules and principles of equity applicable to settlements between partners or those engaged in a joint enterprise for mutual advantage, where expenses have been incurred by one of the parties in carrying out such enteprise, on the faith of what has been or was to have been done by the other, and from which, owing to such default, there has been a failure to realize the corresponding anticipated mutual profit. Ordinarily, and especially in the absence of bad faith of the party whose act may have occasioned the loss, the measure of compensation of the other party could not exceed the amount by him expended, and the reasonable value" of the time and labor from which he can derive no benefit by reason of such default, if, indeed, he can claim anything more than that this amount, shall be apportioned between the parties in proportion to their respective interest in the enterprise. This contract, as we have said, was for the joint acquisition of public or unappropriated land belonging to the State by the owner of the certificates and the locator. It was not for the sale and purchase of land by the one from the other, and therefore, as has been often held, it is not an agreement within the statute of frauds, consequently the measure of damages, as between vendor and vendee, in case of failure of title to land, is not applicable. But if so, as the time, labor, and expenses incurred by the locator must represent the price that he pays for that part of the land which he is to get, his damages would not be materially different if the rule applicable between vendor and vendee should be applied, from what they would be under the rule previously stated.. To allow him, as claimed by appellee, in his alternative prayer, the value of his proportional part of the land upon which the certificate was located, either at the date of the trial or at the time of its location, would violate the rule which excludes . speculative profits in estimating damages for a breach of contract.

But even if the contract by the party furnishing the certif- - icates could be analogized to the sale of the locative share of the land to be acquired by procuring a patent upon each of the certificates, the locator certainly cannot claim, by way of compensation for the land which he has lost by a defect or failure of the title to one of the certificates, a corresponding quantity of land out of another tract for which he has obtained the patent. (Kelley v. Bradford, 3 Bibb, 321.)

The judgment is reversed and the cause remanded.

Reversed and remanded.