*1 1S2 SOUTHWESTERN REPORTER ap- county, sued in which .suit W. T. * (No. 507.) pellee lien; a on certain to foreclose TOM ROBERSON. notes and pend (Court that about the time the suit Appeals El Paso. of Texas. Civil Rehearing 6, ing appellee procured 1916. On Jan. to said a lease 10, 1916.) Feb. which was neither of sections then in <@=3450 1. Evidence Evidence —“Am- —Parol pending appellee’s pasture; biguous” Contract. ap- Epleys appellant and “ambiguous” blocking pellee contract with into may heard, terms which evidence resulting lands, one in a dis in reference said meaning, than through a double in contract obscure expense, at-appellant’s suit, missal with the said having indefiniteness of agreement Epley should meaning. yield possession of section 33 to cases, Evidence, [Ed. Note.—For other see possession Dig. <@= yield Dig. 2066-2082, Cent. and that §§ Dec. pos Epley, retain his sections to J. definitions, Phrases, For other see Words main of said sections' session Series, Ambiguous.] First and Second along line north of fence tain one mile — <@=93 2. Contracts Omission oe Parol (appellant) belonging himto of section AgreementsMutual Mistake. during appellant, con for the benefit Omission of the oral arrangement; the written contract is not mutual said of said tinuance blocking arrangement parties, sign- where one of the con resulted ing it, knows that all the is not em- party being adjusted, each troversies braced in it. sections, respective possession cases, Contracts, [Ed. Note.—For other see Dig. expenses 415-419; Dig. arranged, dismissed, <@=93.] Cent. §§ the suit was1 Dec. appellee’s paid, for one notes extended agreement; year, according <@=72 3. Bandlord and Tenant —Contract blocking said understood and Ambiguity. eor Lease — reciting should continue R., having A contract land leased price leases parties owned or controlled R. N. for is not involved; agreement was the lands that said the time T.’s lease is to which is copy attempted writing, a be reduced to year again lease, though for which R. had a even R. appellant’s leases from N. an of which is made [Ed. Note.—For cases, Appellant see said written Landlord swer. Tenant, Dig. <@= 218, 219; Dig. Cent. §§ Dec. agreement, as written parties “the intention thereto” is Appeal from Court, District clear; oversight Martin Coun- “that mistake ty; Isaacks, Judge. S. J. reduced said scrivener who against Action definitely life failed to state Judgment plaintiff, ap- 'defendant agreement, mutual mistake said peals. Affirmed. to same said Appellant that at as drawn.” Littler, Big Springs, Jno. B. Pratt, agreement appellee date said held a Gibbs, Midland, Chas. covering from J. F. Morrison, Big Morrison & one that at the ex 29 for piration term of Springs, pursuant to said of said blocking appellee procured anoth WALTHALL, trespass J. This is a suit 21 and 29 for a term of er lease try title, brought by Roberson, ap- year, and collected from against pellee, appellant, Tom, seeking thereon; expiration due that at the recovery of sections 21 and block appellee procured another of that lease for one township surveys N., &T. P. in Martin appel collected of county. Appellee right possession claimed rental, paying Nor lant the annual same to a lease contract from J. F. owner; ton, that at Appellant, owner of the section. ' appel- and second lease contracts pleaded said first guilty,” “not and further represented that he right lee possession his appellee. as sublessee from covering procure Appellee alleged a renewal Epley, that J. H. the use and benefit appellant, things acquiesced pastures adjoining and in all county; own in said original blocking agreement (appellant) in the owns section township N., pasture until of the renewal' of the lease and is the date of W. year 1915, appellant Epley; that section 33 in same block was formerly tinuing pasture remain of said sec of T. H. appellee’s pasture; 29 under dur tions ing that said sec years Appel suit, tions 21 and involved are years alleged that, appellee’s now in his more than ten lant having pasture; (appellant’s) original blocking that on in said Febru ary 13, 1912, was.pending respected a suit Martin <@=For Key-Numbered topic Digests other cases see same in all KEY-NUMBER and Indexes pending Supreme *Application Court, of error for writ Tes.) y. TOM ROBERSON *2 blocking arrangement, by permanent is fence T. and W. to be built
same as
Epley jointly
south
on the east
side
deny
appellee
estopped
tbe
to
I,
one-half of
B. Rober-
section No.
and
J.
21
of sections
ment and demand
agree
son,
that the
of
the east
one mile
fence on
on
of the conduct
that
account
belongs
and
side of
No.
H.
section
33
to J.
agrees
give
Epley
appellee
procuring
and
J.
the
W. T.
to
B.
contracts
said lease
year’s
Roberson one
time on the land notes that
year
year,
and benefit
from
to
for the use
by
Roberson,
Ep-
he,
are owned
B.
J.
as W. T.
appellant
no effort
to
made
ley, provided the
from
Rob-
same time can be secured
own
signed by
secure a lease for himself
Norton. This
J. B.
contract is
understanding
erson
Tom
and C.
with the
it
er,
and has
but relied
approval
will
Epley
H.
meet the
of J.
and purchased
stock said
cattle
which to
with
Epley
signed by
and
them. Witness our
etc.;
damaged,
that
sections, and will be
Texas,
day
hands at
this 13th
of Feb-
D„
by appellee
ruary,
Roberson. J.
[Signed]
at the renewal
said lease
A.
J. B.
Epley.
Epley.”
H.
W. T.
appellant offered
21
29 for
sections
pay
and tendered
negotiations arising
In the
same in court.
controversy,
agreed
Roberson
Tom
petition,
Appellee,
supplemental
ad-
filed
that,
between themselves
cure an
period
would se-
if Tom
denying
mitting
facts al-
some
Epley
extension from J.
here,
necessary
leged,
but de-
to state
year
payment
of one
on the
time
as to
nied that
there was
by Roberson,
Epley
due to
Rob-
*3
assigns
re
second
error in
court’s
embracing
alleged
not
omitted
testimony
fusal to consider the oral
offered part
parol agreement
of the,
in the written
purpose
explaining
alleged
am
contract;
having wholly
biguity in the written
its dura
failed to show a
the trial court
tion. The trial
of fact
court’s
properly
could not
have entered
things
al
all
legations
to and
conformed
sustained
judgment than the one entered. The court
upon
defendant’s
answer
rendering judgment
was not in error in
defense, except
relied for
was
he
there
finding
no
the issue
fact
The case is affirmed.
there was a mutual
in draft
mistake made
ing
contract,
it omitted
state that
to let Tom use
to
said -two sections of land so
passing upon
rehearing,
[3] In
motion for
as he should
we have concluded that the
be added to the
have same under lease or under his
original opinion:
omission of
fact
writing
recites:
contemporaneous
through
mis
was
lessor,
Roberson,having
“The
the land leased
alleged;
take
omission was
the said J. B. Rober-
mistake waá an essential element of defense.
price
son
leases C.
to Norton for said lease.”
Nor did the
ambiguous.
find that the
was
court
apparent
The omission
language
of that
from this
parol agreement
writing
not,
from the
life of the lease
ambigu
opinion,
in our
make the contract
it leased. Tom was bound to know that he
ambiguous
got
contract is one
ous.
of
a
definiteness of
meaning.
no more
than
his contract
being
than
himself had. The time for which Roberson
meaning, through in
contract obscure in
liad the
writing
section leased
stated
haying
or
double
in direct connection with the consid-
If a contract is
fact
eration
“the same
parol proof
terms
by Roberson,”
can be heard to
as
doubt that the
leaves no
language
expressions
used, and
length
or
of time the lease was
leading up
negotiations
purpose
can
run
was the time Roberson’s lease then
Lemp v.
nothing
to the written contract be used.
had to
ing
there is
the writ-
941;
Armengal
al.,
Tex.
et
S. W.
to indicate that Roberson would
Regan,
required
169. The evidence
Clark v.
him
lease from
so
nor that
not
that mistake was made
therefore,
show
do;
which the
writing
omitting
clearly
from the
to run
fixed
be
The court
found
writing,
for that rea-
the written contract Tom
fore
son.
same,
or had same read
If
the time for which the lease
run
it did
and remarked that
meaning thereby
clearly
appear
does not
face
did not cover all of writing,
would be am
the contract written
himself and Rober
biguous,
by appellant. Willis
as contended
signed the
contract after understand
320;
Byars,
21 S.
Beard v. Gooch
v.
ing
did not contain all of the
Allen,
that it
1022;
Sons,
Brincefield
130 S. W.
v.
at
Tom knew the time he
ment.
the contract that
If
App. 258, 60 S. W.
Gid
25 Tex. Civ.
parol agreement
all of the
dings
Lee,
So