Harvey v. Bain, 2449-8000.

• Citation: 168 S.W.2d 234
• Decision Date: 10 February 1943
• Docket Number: No. 2449-8000.,2449-8000.
• Parties: HARVEY v. BAIN.
• Court: Supreme Court of Texas

168 S.W.2d 234

HARVEY v. BAIN.

No. 2449-8000.

Commission of Appeals of Texas, Section A.

February 10, 1943.

Certified Questions from Court of Civil Appeals of Tenth Supreme Judicial District.

Action by R. N. Bain for himself and 59 other persons against J. H. Harvey to recover a certain sum of money. From a judgment overruling the defendant's plea of privilege to be sued in the county of his residence, the defendant appealed to the Court of Civil Appeals. The Court of Civil Appeals certifies questions to the Supreme Court.

Controlling questions answered.

Keys, Holt & Head, of Corpus Christi, for appellant.

L. W. Shepperd and Bradley & Bradley, all of Groesbeck, Seale & Seale, of Centerville, and Bennett & Bennett, of Normangee, for appellees.

HICKMAN, Commissioner.

This case is before us on certificate from the Court of Civil Appeals for the Tenth District at Waco. The appeal to that court was from an order overruling a plea of privilege. Suit was brought in the district court of Leon County by appellee Bain for himself and 59 other persons against appellant Harvey for a sum in excess of $8,000. The appellant timely filed his plea of privilege to be sued in Nueces County, where he resided, which plea was controverted by appellee. The only ground relied upon in the controverting plea material to the questions certified was that the defendant had contracted in writing to pay the consideration for certain mineral leases in Leon County; that the suit was upon such written contract, and that venue was therefore properly laid in Leon County under Subdivision 5 of Article 1995, as amended by Acts of 1935, 44th Legislature, Chapter 213, Vernon's Ann Civ.St. art. 1995. Under the terms of that subdivision of the statute the suit was maintainable in Leon County if appellant had contracted in writing to pay for the leases in that county.

In support of the allegation in his controverting affidavit that appellant contracted in writing to pay the consideration for the leases in Centerville, Leon County, he introduced the following instrument attached to each of the leases, the name of the lessor and the number of acres covered by his lease being stated in each case:

                             "Centerville, Texas
                             "This ____ day of May, 1940
                "Centerville State Bank
                "Harold C. Sullivan, Cashier and Escrow
                    Agent and
                J. H. Harvey, Lessee
                

"It is thoroughly understood and agreed with the undersign, a fee-simple landowner, that J. H. Harvey is desirous of leasing a block of oil, gas and mineral leases within the immediate vicinity of Centerville, Leon County, Texas, providing that he can secure as much as seven to ten thousand acres in a solid block.

"It is understood that the lessee will pay one dollar per acre for ten-year revised `88' form commercial leases calling for an annual rental of one dollar per acre, subject to good merchantable titles. It is fully understood that all leases to be taken in said block shall bear the same date of execution, which date shall be the 15th day of July, 1940. The undersign has executed an oil, gas and mineral lease in favor of the above named lessee, which lease covers the undersign's land located within the survey Leon County, Texas, and containing ____ acres of land.

"It is mutually agreed and understood that the lessee shall have thirty days from the date of execution of said leases, which date is the 15th day of July, 1940, in which to thoroughly check all the titles to the several leases in the block. It is agreed that all leases shall be paid off by the lessee through the Centerville State Bank at Centerville, Texas, on or before the 16th day of August, 1940, unless provisions are made for excess time in which to correct any defects in titles, should such arise, and at the option of the lessee.

"The undersign agrees not to sell, convey nor transfer any of the minerals from under the land this lease covers, prior to the filing for record of said lease."

The certificate refers to the tentative opinion of the court accompanying same for a statement of the facts, and the questions certified have reference to the correctness of the views expressed in the tentative opinion of the court based upon such stated facts. They are as follows:

The defendant drew the escrow agreement, and instructed his agent to have each lessor execute an identical agreement to be attached to his lease. The defendant solicited and procured the consent of the Centerville State Bank to act as escrow agent. The leases and escrow agreements listed in plaintiff's pleadings were executed by the landowners at the solicitation of defendant's duly authorized agent; they were accepted by such agent, and by him were placed in escrow in said bank. None of the escrow agreements were signed by defendant. Each of same was signed by the landowner whose lease was being taken by the defendant's agents. There is no evidence that defendant notified any of the landowners who signed such leases that he would not accept such leases and pay therefor; there is evidence that defendant stated to one of the landowners who was willing to execute a lease if he was paid off on July 15th, that he would like to have the lease and would like to pay off on the 15th, but August 16th was the time stipulated for payment.

"There is evidence in the record that after all the leases were executed and in the bank, the defendant negotiated with a firm in Corsicana in reference to drilling a well on the block, in consideration of a part of the acreage; and that he negotiated with another man from Houston to drill a well on a similar basis; that he stated he was going to drill a well. There is evidence that the defendant first instructed his agent to secure leases on an area of from seven to ten thousand acres; that immediately thereafter he gave instructions to add to the block until the leases which had been prepared for execution, together with others already executed, covered a total of 15,967 acres; that the defendant decided the block was too large, and gave instructions as to the leases which were to be eliminated. There is no evidence that the defendant ever notified the lessors or the escrow agent that insufficient acreage was leased, or that the leases which were executed did not cover a solid block, or that there were any defects in titles, or that he desired additional time to cure defects in titles. The defendant left Centerville on July 18, 1940, and returned on August 14, 1940. On the date last mentioned he secured delivery from the escrow agent of five of the leases, covering an aggregate of 1489.9 acres located near the center of the block, and deposited with the escrow agent, to the credit of the respective lessors, the stipulated purchase price. This was done without previous notice to the lessors whose leases were removed from escrow, and without notice to the lessors whose leases were left in escrow. Defendant left Centerville on the same day that he obtained delivery of the leases above mentioned, and has not since been seen or heard from by any of the interested parties who testified."

The questions certified are as follows:

"Under the facts stated, were we in error in holding:

"(1) That the facts are sufficient to constitute an acceptance by the defendant, acting by his duly constituted agent, of the various contracts in writing sued on?

"(2) That under the facts stated,...