Vise v. Foster, 2991

Citation247 S.W.2d 274
Decision Date14 February 1952
Docket NumberNo. 2991,2991
PartiesVISE v. FOSTER.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Carter & Carter, Sherman, Chancellor & Wood, Dallas Ralph W. Yarborough, Louis Scott Wilkerson, Austin, for appellant.

Freels & Elliott, Sherman, for appellee.

TIREY, Justice.

This is a suit for damages grounded on a breach of a written contract. It was tried without the aid of a jury and the court in its decree found that R. H. Vise was indebted to appellee in the sum of $50,186.72, and rendered judgment accordingly. Vise seasonably perfected his appeal and the cause was transferred from the Dallas Court of civil Appeals to this court.

A statement is necessary.

The contract in suit provided:

'An agreement has on this 2nd day of July, A.D. 1931, been made between R. H. Vise Associates, a partnership composed of R. H. Vise, Harmon C. Shelby, Herman Krattinger and F. W. Cowell, all of Grayson County, Texas, acting by and through R. H. Vise, one of said partners and who has heretofore been authorized by all of said partners to execute sales and other contracts for said partnership, hereinafter called Seller, parties of the one part, and G. P. Foster, of Grayson County, Texas, hereinafter called Buyer, party of the other part, it being understood and agreed by all of said parties to execute another contract on or before thirty days after this date to enlarge and cover all agreements between said parties hereto.

'Seller hereby agrees for themselves and assigns to sell, deliver and furnish to Buyer and Buyer agrees to purchase, accept, receive and pay Seller for One Hundred Thousand (100,000) barrels of crude oil of the gravity of 39 degrees Baume test or better at the price of fourteen (14cents) cents per barrel of 42 gallons each f. o. b. cars at Seller's loading point or points in the East Texas oil fields, upon the following terms and conditions, to-wit:

'Seller agrees to deliver said quantity of crude oil to Buyer at the rate of a minimum of twenty (20) cars of at least 8000 barrel capacity per calendar month, with a maximum of not over fifty (50) cars of such capacity per calendar month as such shipments are ordered out by Buyer f. o. b. at such railroad loading points in East Texas oil fields from which loading points the railroad freight rate to Denison, Texas, is not over eleven (11cents) per hundredweight.

'Buyer agrees to pay for oil so delivered by Seller every fifteen days and to make the first payment to Seller on August 15, 1931, for all oil delivered Buyer up to and including July 15, 1931, and to pay on September 1st, 1931, for all oil delivered Buyer from July 16, 1931, to July 31, 1931, and to pay Seller every fifteen days thereafter for all oil delivered Buyer up during each fifteen day period ending one calendar month prior to date of each of such payments.

'Seller agrees to furnish Buyer within the next thirty days copy of power of attorney from his associates and partners hereinabove named authorizing him to execute this contract in order that said power of attorney may be made a part of the formal contract.

'Buyer agrees that in event proration is enforced in the oil field or fields from which the oil to apply on this contract is to be produced, that Seller at his option may reduce the minimum and maximum deliveries of oil per month under this agreement fifty (50%) per cent, in which event the total deliveries by Seller remains at 100,000 barrels.

'Buyer agrees to furnish tank cars in which to transport said oil after the first five cars of oil under this agreement are shipped, Seller agreeing to furnish said first five cars and to assist Buyer in securing tank cars for use in handling this oil when requested so to do by Buyer; it being understood Seller is to be to no expense in securing cars for use in shipping oil covered by this contract.

'Buyer reserves right to dictate routing on all shipments.'

G. P. Foster filed this suit on the 24th day of Novemeber, 1931 against R. H. Vise, Harmon C. Shelby, Herman Krattiner and F. W. Cowell. Vise filed his first amended answer on December 28, 1931. The other defendants did not file answers. The case went to trial for the first time on January 8, 1951, at which time all defendants except Vise were dismissed from the suit, and no error is assigned to this action. On the day of the trial plaintiff's attorney filed a motion to substitute F. M. Foster, independent executor of the estate of G. P. Foster, as plaintiff, and this motion was granted and the motion and the order show that the original plaintiff, G. P. Foster, died on December 29, 1949.

Appellant's point 1 is substantially that since the plaintiff brought this suit on the 24th day of November, 1931, and since defendant timely answered it on the 28th of December, 1931, and there having been no further proceedings in the case for a period of 19 years, and until after the death of G. P. Foster, the original plaintiff, and the plaintiff having failed, by pleading or proof, to excuse such an unreasonable delay on his part in the prosecution of his suit, such delay amounted to an abandonment and discontinuance of his cause of action as a matter of law and it was fundamental error for the court to proceed to trial and judgment because the unexplained and unreasonable delay deprived the trial court of jurisdiction. We overrule this contention.

The rule is: 'Where the defendant in a suit is called to answer and has responded to the call, the duty devolves on the plaintiff to proceed in prosecuting the suit to a conclusion with reasonable diligence, and whenever a delay of an unreasonable duration occurs, such delay, if not sufficiently explained, will raise a conclusive presumption of abandonment of the plaintiff's suit, and a discontinuance results. However, since the discontinuance must be based on a factual situation involving lack of due diligence, same does not and cannot become effective until the basic facts are adjudicated by the court. Whenever the hearing for such adjudication is had, the plaintiff has the right to be heard to explain, if he can, his delay in prosecuting his suit.' (Italics ours.) See Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, 491, pars. 2-5, Com.App., opinion adopted by S.Ct. The Supreme Court has not seen fit to change the above rule.

Since appellant raised point 1 for the first time after the cause reached the appellant court, and since he was notified that the suit was set for hearing and filed no motion to have appellee's suit dismissed, nor filed plea in abatement, but on the contrary announced ready for trial and waived a jury and proceeded with the hearing on its merits, it is our view that this factual situation brings point 1 within the excepttion provided in the last part of the rule, and it is overruled.

Point 2 is to the effect that the contract sued upon was only temporary and that it expired at the expiration of thirty days, at which time it was provided that another and enlarged contract was to be executed on terms and conditions yet to be agreed upon to cover any transactions occurring after said thirty day period, and since the parties failed to agree upon such terms and did not enter into another contract, no contractual relations existed between the parties. Point 3 is to the same effect.

We think that each of the foregoing contentions is without merit. It is our view that a careful reading of the contract in suit shows that the minds of the parties met on the material matters relating to the sale and delivery of the 100,000 barrels of oil. We find that the contract was dated; that it named the parties; that it set forth the authority of the parties to make the contract; it described the commodity and the volume to be bought and sold and the consideration to be paid therefor; the rate of delivery as well as the time of payment was each specified and the mode and manner of transporting and delivering the commodity was agreed upon. Near the end of the contract we find this paragraph: 'Buyer agrees that in event proration is enforced in the oil field or fields from which the oil to apply on this contract is to be produced, that Seller at his option may reduce the minimum and maximum deliveries of oil per month under this agreement fifty (50%) per cent, in which event the total deliveries by Seller remains at 100,000 barrels.' This last provision is certainly in irreconcilable conflict with appellant's contention that the sale of the 100,000 barrels of oil was only a temporary contract and not binding. It is true that the last part of the first paragraph provides: '* * * it being understood and agreed by all of said parties to execute another contract on or before thirty days after this date to enlarge and cover all agreements between said parties hereto', but there is nothing in said language to indicate that the minds of the parties had not met on the sale of the 100,000 barrels of oil, or that any of the provisions with reference to the sale and delivery of the 100,000 barrels of the oil would be modified. What other agreements the parties had which they intended to enlarge upon and cover were not tendered by any evidence. You cannot read the contract in suit without the feeling that all of the terms of the contract were agreed upon between the parties as to the purchase and sale and delivery of the 100,000 barrels of oil and that nothing was left for future agreement with reference thereto. There is nothing in the contract to indicate that such sale was dependent upon the contract to be executed within 30 days. Since each and every material element of the contract with reference to the sale was mutually agreed to and set forth and nothing of any material nature was left out to be agreed upon, we think the contract was binding. Moreover, testimony was tendered to the effect that after Vise executed the contract in suit he told one of his associates and partners named in the contract that...

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