*1 support his was insufficient evidence be devoid find them all to

conviction. We

of merit. judgment is affirmed. below Judge:

HAYS, Circuit

I result. concur INC., ASSOCIATES,

WHITLOCK Whitlock, Appellants, L. E. Miller,

George AARON, B. Houston Jack Kennedy Hill, and Frank C. J. D. Ryburn, Appellees.

No. 8688. Appeals

United States Court

Tenth Circuit.

Aug.

Rehearing Denied Oct.

73 ty, from it was obtained, of Dallas be purchase this of contained contract vision : respective respect to the “That with tracts, Sellers Tract Jenkins agree to obtain Option Sellers permits al- necessary governmental licensing permitting Pur- lowing exploit mine, develop and to chasers min- sand, gravel, dirt and being expressly tracts, in said erals need will Purchasers understood days prior permits at least said closing in or- this transaction of financing for said obtain the der to obtaining purchase. In the event delayed rea- permits of such son, parties hereto here- closing as of transaction date this un- extended set forth shall be inafter obtained, permits are but til such (60) sixty beyond extension of an Blaes, Sargent Jochems, A. Emmet days.” Blaes, Wichita, (James & Kan. A. Kil- March contract was executed The Kilgore gore, Kilgore, Dallas, Tex., & agreement 22, 1963, Zuercher, Wichita, Kan., and Bruce W. July 21, fixed brief), appellants. with him on the op- date of the Schenkel Wynne, Hoffman, & Jaffe Harold midnight July Dur- tion Dallas, (Robert Tinsley, C. Foulston Tex. July the afternoon Foulston, Siefkin, Miller, of and Malcolm appellant who President Whitlock Wichita, Powers, Eberhardt, & Smith Associates, Inc., notified the Dallas, Tex., Kan., Jaffe, I. and Morris rescinding brief), appellees. him required reason that mining permit obtained. MURRAH, Judge, and Before Chief approximately At the same time BREITENSTEIN, PICKETT and Cir- the Dallas Judges. cuit directing resolution the issuance of the permit, with certain limitations. Judge. PICKETT, Circuit trial court held that the sellers had com- alleged an arose out of This action plied appel- breach of a Texas contract wherein purchasers’ perform refusal agreed appel- purchase from lants was a which en- of land known as lees1 1513 acres judgment titled sellers to a for the full together tract”, with an “Jenkins although damages, it was amount of their acquire additional held sellers to agreement contended that contained 1320 acres referred to as the “Schenkel damages. tract”, all located near and annexed to Judgment accordingly. entered Dallas, property Texas. The principally appeal On the sell- it is contended that suitable gravel. produc- comply Prior ers the contract sand and had failed gravel proper- respects, in a number tion of sand and but the record appellants appellees “purchasers”;

1. The as “sellers.’ referred to herein objections application approve until primary reason discloses nearby area. residents of a a were raised to obtain the failure withdrawal was mining removal satisfactory who It was those feared underground adversely no would purchasers. At affect finance were to supply After numer water this area. prior purchasers’ withdrawal time *3 meetings of the area any objection ous with residents had from the contract authorities, city it title, question in and with property evi- made to the permit would be indicated that sell- was the the that dence was without conflict granted only upon deposit good mar- and ers could have delivered by $42,000 applicants, which was property. the The written to ketable title the installing pay only acceptable to cost of gave be used to the an the lack of notices pipe delivery lines for the water to gravel permit sand on the Sehenkel and applica complainants. the the Action on the abandonment reason for tract delayed tion was while unsuccessful at question to raised as the contract. No is tempts made the cash de compliance non-compliance were to avoid the with fully posit requirement. they Whitlock was provisions per- insofar as difficulty aware of this and that testified tain to tract. testi- the Jenkins Whitlock though pro- he had offered the services of his attor fied that “Even the contract ney arriving to assist in at a solution. permit, we if vided should have the we July 8, 1963, City ap arranged financing, On the proper could have the proved application special per the gone for a we would have ahead the deal with City right up mit and referred Attorney day.” the matter to the to the last prepare to instructions record, developed The trial an extensive resolution. application but the facts to the expiration mining When the date of the Sehen- to the Dallas for a authorities option near, kel was con- sellers were on tract are uncom Sehenkel purchasers plicated cerned as in- to whether the dispute. not in material In tended to transaction. acquired consummate the after the sellers had Whitlock, occasions, option, application on numerous advised Sehenkel was made arranged them that he to had for the financ- the Dallas Council for a ready ing prior property.2 to portion and was close on a of that to option.3 All favorably disposed to of the Sehenkel council was per- days the date proximately such four before terms and 2. The expire. standard, option It but were ordi- to was due mits that were particular days narily approximately situa- before ten “tailored writing presented the location of date as extended tion property.” usually They telegram this referred that an exhibit were in the “Occupation city proceedings did At that time Mr. Whitlock to case. ‘you say anything have- that the effect to Certificates.” got Schenk- on n’t us thirty days prior telephone Referring clos- conversation to to tract within el that, July 11, Hill, required you ing so to do on are he had with Whitlock sellers, forget it, just is off.’ the deal testified: about one of the tentatively ‘Now, conversation, him, said, Mr. I I “Then I asked Prior explored to that having you possibilities some- sure that I want to be going date didn’t that in case the to be able to close on one stand go Whitlocks thing know, because, you extent on the this forward with July midnight, inquired expires of Leonard Whit- on that tract we Sehenkel go- they go through you were if And if don’t lock and his Associates 15th 1963. go through way ing it. able to it would have no to be with tecting we way taking way They us all had assured ourselves and no try- already financing anybody they but had their of it and should I have care cheaper trying get ing financ- resort? He were to stand as a last money. acquisition It said, of this about ‘You need not be concerned financing getting problem All out. wasn’t that. We have this all worked you' cheap- getting it; problem just it here for on do is down have to financing. July 11, ap- on closing.’ After that conversation er This was on testimony including repre- is that The uncontradicted parties, interested pay ready sellers finance were able were who of those sentatives July July $42,000.00 deposit on on in Dallas purchasers, were required prepared to furnish the the Schenkel knew of them All midnight title insurance. expire at option would the entire knew of them All Mutual Life Insur- Connecticut option were collapse if Company ance itself deal had committed required provided purchasers, exercised. finance the right of pur- to “exercise between under Tract Industries, purchase of chasers and Texas Inc. were ”*** Be- purchase. option to so executed. The record is that on the clear pur- day A.M. 9 and tween final Industries which notify advised chasers became dissatisfied with terms of the *4 exer- be option would permit that the and determined to enter into not indica- day. no There was 5-year that cised on the contract under a not intend purchasers did permit right that the tion without the to automatical- of ly perform until mid-afternoon separate renew it and a without con- day, notice of withdrawal City when tract of refill the Dallas to giving sellers, as a reason on the sanitary served excavations with fill.4 satisfactory min- a the to obtain failure provide did not ing permit. which The resolution any par permit for should be the City by Dallas the acquire time, ticular or that sellers would deposit $42,- of upon directed the City fill a contract with the Dallas 5-year permit issued with be 000.00 by removal the created the excavations right discretion in the the renewal gravel sanitary fill, or that the with further council. resolution the permit require such ex not the would : vided by permittee refilled cavations to be cessation of the At the agree “Section assigns. or its the trial We mining operation thereafter or as soon 5-year permit ap- reasonably practicable, as is right gov discretionary of renewal is plicants the excavations that by contemplated ernmental by reason shall been made have contract. for While the mining operations be refilled with will purpose mining only sand and 'sanitary fill' to conform with property, from the with no reference to by specifications as certified standard “dirt or other minerals” in the as stated City contract, Director of the the Public Works per there is no evidence that the any mittee If reason san- could not of Dallas. remove dirt and any prop minerals if negotiated were found itary fill cannot be erty. event, objection any In on this City, applicants their then the ground ap is raised for the first time on assigns filled to be shall fill or cause peal, and comes too late. residual overbur- the excavations with den, property as so as restore purchasers attempted to es original possible status to its near as during negotiations tablish that to ob financing condition.” tain after any July 11, mining permit make effort tract, I did on the Schenkel anyone by facts, to exercise have stand stated: “These which were Option this deal fell approxi- in case Schenkel through. discovered mately the first time at feeling today, into the I was lulled 10:30 A.M. so increased right.” everything security operation the burdens of the to make it unattractive to Texas Indus- attorney by a letter written In tries, Inc., proposed withdrew a purchasers 15, after contract which objectionable would have taken been most of the action fa- features authorizing in vorable of Dallas Whitlock Associates.” may pursue Aaron, this contract and one of breach of execution of rights specific performance, sellers, had stated could obtain that he Fifty being 10-year understood that said and that [it from the giving ($50,000.00) would Dollars Thousand desirous of against any specific purchasers sanitary be a credit suit contract for fill performance making of said contract.] the Schenkel tract. denied Aaron event, con these statements. In damages in sum awarded The court requirements, tract contains no such $215,610.00. It is contended that under Texas law must be “A recovery foregoing provision limited the interpreted according intention money $50,000.00 payment earnest of the at the made and time it was purchasers. a breach case of light occurring there events $50,000.00 The trial court found that the Cir., Giersch, after.” McCain v. 112 F. provision was reasonable forecast 70, 72; see also v. Lin Davidson Von expected to be gen, 113 U.S. 28 L.Ed. S.Ct. there- 885; Superior Portland Gasoline Co. v. fore not enforceable under Texas law. Marketing Co., A contract dam- 823; Bros., 2d App., Burtis v. Butler Tex.Civ. ages only will be if enforced 938; Zephyr 228 S.W.2d Oil Co. approximation there is a reasonable be- Cockburn, Tex.Civ.App., 215 S.W.2d stipulated tween the sums and actual 647; Smith, Tex.Civ.App., Gardner v. *5 Basey, Tex.Civ.App., loss. Stewart v. 168 S.W.2d 278. 666, 241 S.W.2d aff’d 150 245 Tex. 484; that after Kelly County, There was evidence S.W.2d v. Cochran signing contract, purchas Tex.Civ.App., 50 S.W.2d on rev’d grounds, would with a 5- ers have been satisfied other 82 S.W.2d year permit, 641; Kelsey Blackman, Tex.Civ.App., until Texas it was v. Industries, moment, very “Notwithstanding at the con 293 last S.W. a sum liqui- cluded that it could with such mentioned not live contract be called damages, period, provision 10-year short dated not so courts will it, treat proportion was demanded. unless it We with the trial bears such damages “per may court’s determination term actual that the that it reason- mit”, ably presumed contract, be used in should have been at arrived upon requiring permit be fair estimate construed as term of the compensation paid years. prospec- not less than Nor are the for the Kelsey position seriously Blackman, supra tive loss.” in a to as v. at grounds determining 202. In sert as for whether to enforce their withdrawal provision a ages liquidated dam- to the need of days prior the courts to consider “the na- contract, ture agree, terms, of the concluded, The its trial court conse- and we quences that purchasers, by representing arise from its breach willingness proceed circumstances of the transac- the deal until Basey, tion.” supra, Stewart a few v. hours before the of the also, option, rights Ice, at 356. See may Palestine Fuel waived have & Connally Co., Gin Co. v. Walter Tex. 30-day provision. relative to the Civ.App., 148 S.W. 1109. The contract provided: The contract price $354,- for the Schenkel “* * * fail to Should Purchasers determined 920.00. court specified this Contract consummate essentially at the time worthless defects, any reason, except title due to the short time remain- the breach complywith failure of the sellers to [or advantage of. sellers to take stated,] requirements herein price for the Jenkins it. right to retain shall Sellers have the de- $1,286,050.00. tract was money payments made the earnest property was worth that this termined damages them as breach. the time $1,210,400.00 at America, STATES UNITED finding court’s say cannot We Appellee, of the result as a $164,- sum damaged net were LAWRENSON, Charles Edward option, the Schenkel loss 960.00 Appellant. pur- the failure $50,650.00 for No. 11379. clearly tract, errone- the Jenkins chase cir- say that under ; nor can we ous Appeals United States Court finding that the court’s cumstances Circuit. Fourth stipulated dam- provision for $50,000.00 on Briefs. Considered forecast ages reasonable Aug. clearly Decided er- suffered actual roneous.

Although purchasers claim re- of other in default the sellers justi-

quirements which of the contract rescission, tried the case was fied sufficiency

primarily issue granted of the court, in its The trial

Schenkel tract. stated: and Law” of Fact

“Conclusions law, As of fact and "IV. a matter withdrawing

defendant solely

from on his relied

opinion plaintiffs had not furnish- De-

ed Tract. possible justi-

fendants waived withdrawing

fications *6 passing

contract. And note in we

defendants do with admirable candor seriously ground assert withdrawing.” given

We have consideration to these

contentions and have found them to be

without merit.

Affirmed.

ON PETITION FOR REHEARING urge misap- Appellants

plied the Texas law as relates

validity contractual damages. It is said that Basey,

Stewart v. Section abandoning Contracts,

Restatement approximation former rule reasonable damages stipulated

between and the ac- applied here

tual loss. The trial court concept “reasonable forecast” does not

Restatement rule and the record incapable

disclose that the very estimation. difficult accurate

Rehearing denied.