Allen v. Strode

• Decision Date: 29 June 1933
• Docket Number: No. 2508.,2508.
• Citation: 62 S.W.2d 289
• Parties: ALLEN et al. v. STRODE, Special Judge, et al.
• Court: Texas Court of Appeals

62 S.W.2d 289

ALLEN et al. v. STRODE, Special Judge, et al.

No. 2508.

Court of Civil Appeals of Texas. Beaumont.

June 29, 1933.

Appeal from District Court, Montgomery County; J. W. Strode, Special Judge.

Original mandamus proceeding by A. R. Allen and others against J. W. Strode, Special Judge of District Court of Montgomery County, and others, to compel the named respondent to enter judgment for the relators in an action by Thomas O. Payne against A. R. Allen and others.

Mandamus granted.

W. N. Bonner and C. M. Hightower, both of Houston, for relators.

John Gano, of Dallas, and Foster, Williams & Nicholson, of Conroe, for respondents.

PER CURIAM.

On the 1st day of June, 1933, the case of Thomas O. Payne v. A. R. Allen et al., pending on the docket of the district court of Montgomery county, Tex., was called for trial before Hon. J. W. Strode, special judge, who had been duly elected and had duly qualified as such. All parties announced ready for trial, a jury was impaneled, and the case proceeded to trial upon petition of the plaintiff Thomas O. Payne and the answer of the defendants A. R. Allen and his wife, Jennie Allen, O. Etheridge, and First National Bank of Conroe. Plaintiff's petition was an action for specific performance, on allegations:

That on or about the 23d day of March, 1932, defendants Allen and wife executed to plaintiff an oil and gas lease covering a certain tract of 80 acres of land belonging to the Allen defendants, and fully described in the petition. That, quoting from the petition, "on March 24th, 1932, said lease was deposited in escrow in the First National Bank of Conroe, Texas, under an agreement with the parties that said escrow delivery was irrevocable and conditioned only on the payment of two drafts, one for $2,000.00 only, payable to A. R. Allen and one for $400.00 payable to George R. Pate copies of which drafts are hereto attached and made a part hereof. That said drafts, as is shown on the faces thereof, were payable upon acceptance of title, defendant having stated to plaintiff that he had no complete abstract of title covering said property. That said A. R. Allen agreed to procure delivery to plaintiff of an abstract which would show merchantable title in the said A. R. Allen and wife to said land, said A. R. Allen representing to plaintiff that he was the owner of said land." The form of plaintiff's draft attached to the lease was as follows:

                           "First National Bank
                           "Conroe, Texas, Mar. 24, 1932
                

"No. ____.

"Upon acceptance of title pay to the order of A. R. Allen $2000.00 Two thousand and no/100 Dollars With Exchange

"Value received and charge the same to the account of Thomas O. Payne.

                              "Republic National Bank
                                         "Dallas, Texas."
                

That on or about the 21st day of May, 1932, plaintiff gave notice to the Allens, through their agent Pate, that he was willing to accept the Allen title, and gave instructions that the draft, with the lease attached, be forwarded to Dallas for payment. That the draft with lease attached was duly forwarded to and arrived at Dallas, but before it was presented for payment the Allens caused it to be returned to the First National Bank of Conroe. That the Allens refused to deliver to plaintiff the lease, though he was able, ready, and willing to pay the draft according to the conditions of the agreement under which it was attached to the lease, and, after refusing to deliver the lease to plaintiff, they executed a second lease to defendant O. Etheridge. That Etheridge took his lease with knowledge of the conditions of plaintiff's lease, and therefore acquired no rights in the leased premises. The prayer was as follows:

"Wherefore, premises considered, plaintiff prays that notice of the filing hereof be given to the First National Bank of Conroe and that it be required to tender into this court the lease from A. R. Allen and Mrs. Jannie Allen to Thomas O. Payne, said lease to be disposed of as this court may require.

"Plaintiff further prays that the title to, and possession of said lease, under decree of this court be vested to plaintiff and that plaintiff's rights as lessee thereunder be decreed to be paramount and superior to the rights and claims of all parties in said land.

"Plaintiff further prays that said lease from A. R. Allen to O. Etheridge dated May 23rd, 1932, as above set out, be declared ineffective, that the right, title and claim of defendant O. Etheridge in said land be decreed to be subject to plaintiff's leasehold estate as created by the lease dated March 23rd, 1932, above mentioned, and that said lease dated May 23rd, 1932, be cancelled and set aside and that the cloud upon the title of this plaintiff be removed, and that he be decreed by the court to be the legal owner of the leasehold estate under the lease dated March 23rd, 1932, and for such other and further relief as plaintiff may show himself justly entitled."

The defendants answered by general demurrer, special exceptions, and general denial, and by pleading specially that the draft attached by plaintiff to the lease was worthless; that plaintiff had no money in the Republic National Bank of Dallas, the drawee in the draft, and never had sufficient funds therein to protect the draft; and, further, that the lease was deposited by the Allen defendants in the First National Bank of Conroe upon the following terms and conditions:

"Defendants further show that while it was the purpose and the intention of said Payne to secure possession of defendants' available lease, when and after the Strake well was proved to be a producer, for no consideration whatever other than the execution of a worthless draft, this was not the contract, agreement or understanding of the defendants, or either of them, but their only agreement in the premises and their only understanding of the matter was this: Thomas O. Payne was a reliable business man and had in the First National Bank at Conroe at least $2400.00 in cash; that he had drawn his check on his account there and deposited the same with his lease with the officers of the said bank; that his account had been charged with said sum and that $2400.00 in cash was at all times on deposit in said bank to represent the purchase price of said lease rather than a worthless, fictitious draft drawn on a foreign bank where likewise the said Payne had no funds with which to pay it."

On conclusion of the evidence, the case was submitted to the jury upon the following special issues, answered as indicated:

"Special Issue No. 1. Do you find from a preponderance of the evidence that plaintiff, Thomas O. Payne, was ready, able and willing on May 23rd, 1932, to pay or cause to be paid the drafts for $2,400.00?" Answer: "____."

"Special Issue No. 2. Do you find from a preponderance of the evidence that defendant, A. R. Allen, understood the contract with Thomas O. Payne to be that he executed and delivered the lease to the bank in consideration of Payne having in the First National Bank of Conroe $2,400.00 in cash for use in paying the consideration of the lease and commission?" Answer: "Yes."

"Special Issue No. 3. Do you find from a preponderance of the evidence that defendant, O. Etheridge, in acquiring the lease of date May 23, 1932, from A. R. Allen did so without notice of the Thomas O. Payne lease?" Answer: "No."

"Special Issue No. 4. Do you find from a preponderance of the evidence that the lease dated May 23, 1932, from A. R. Allen to O. Etheridge was an actual bona fide sale of the lease?" Answer: "No."

"Special Issue No. 5. Do you find from a preponderance of the evidence that plaintiff, Thomas O. Payne, prior to the execution of the lease by A. R. Allen and wife, Janie Allen, to him, represented to defendant Allen that he was financially able to and would pay the consideration for said lease in cash upon the approval of the title to the property by A. W. Morris?" Answer: "Yes."

"Special Issue No. 5-A. If you have answered Special Issue No. 5, `Yes,' and only in that event answer the following Special Issue No. 5-A.

"Do you find from a preponderance of the evidence that the representations made by Thomas O. Payne that he was financially able to and would pay the consideration for the lease in cash upon the approval of the title by A. W. Morris were untrue?" Answer: "____."

"Special Issue No. 5-B. Do you find from a preponderance of the evidence that plaintiff, Thomas O. Payne, knew at the time he made said representations that they were untrue?" Answer: "____."

"Special Issue No. 5-C. Do you find from a preponderance of the evidence that plaintiff, Thomas O. Payne, made said representations with the intention that they should be acted upon by A. R. Allen and wife, Janie Allen, in the execution of the lease to him?" Answer: "____."

"Special Issue No. 5-D. Do you find from a preponderance of the evidence that defendants A. R. Allen and wife, Janie Allen, were induced to execute the lease to Thomas O. Payne in reliance upon said representations?" Answer: "____."

"Special Issue No. 6. Do you find from a preponderance of the evidence that at the time defendants, A. R. Allen and wife, Janie Allen, signed the lease to plaintiff, Thomas O. Payne, the 80 acres described in said lease constituted a part of their homestead?" Answer: "Yes."

"Special Issue No. 7. Do you find from a preponderance of the evidence that the defendant, A. R. Allen and Janie Allen, on or before May 23rd, 1932, or before that time repudiated and notified or caused to be notified Thomas O. Payne or the First National Bank of Conroe that they had repudiated the lease dated March 24, 1932?" Answer: "No."

Upon the verdict of the jury, defendants filed their motion for judgment in their behalf, that plaintiff recover nothing under his petition for specific performance. This motion was duly presented to the court and refused by the following order written by the trial judge upon the motion: ...