Allison v. Harrison, 10878.

• Decision Date: 16 November 1939
• Docket Number: No. 10878.,10878.
• Parties: ALLISON v. HARRISON et al.
• Court: Texas Court of Appeals

134 S.W.2d 399

ALLISON v. HARRISON et al.

No. 10878.

Court of Civil Appeals of Texas. Galveston.

November 16, 1939.

Rehearing Denied December 14, 1939.

Appeal from District Court, Matagorda County; M. S. Munson, Judge.

Action by A. B. Allison and wife against G. A. Harrison and another to establish a constructive trust in land and require accounting of moneys received by defendant from sale of oil royalties thereon or recover damages. Judgment for defendants, and named plaintiff appeals.

Affirmed.

Frank L. Morris, Maurice M. Davis, and Phil D. Woodruff, all of Houston, for appellant.

G. P. Hardy, Jr., of Bay City, W. C. Gray, of Palacios, Harris & Harris, of Bay City, and Fahey & Cooper, of Houston (A. Harris, Sr., of Bay City, and Pat N. Fahey, of Houston, of counsel), for appellees.

MONTEITH, Chief Justice.

This is an appeal in an action originally brought by appellant, A. B. Allison and wife, Minnie A. Allison, against G. A. Harrison and P. F. Campbell to establish a constructive trust on 290 acres of land out of the West one-half of Section 10 of the Texas Rice Development Company's Subdivision of the T. J. Dasher and Lewis Goodwin surveys in Matagorda County, Texas, and for an accounting by appellees of monies received by them from the sale of royalties on said land, and in the alternative for damages. Prior to the trial P. F. Campbell died and his wife, Helen A. Campbell, Executrix of his estate, was made a party to the suit. Minnie A. Allison was dismissed from the action before the trial as being neither a necessary nor a proper party.

Appellant alleged that P. F. Campbell had been his agent and representative in connection with the land involved in the suit for many years; that P. F. Campbell and G. A. Harrison had entered into a conspiracy to obtain his land and the minerals thereunder for less than their true and market value and that in furtherance thereof the said Campbell and Harrison had prevailed upon appellant to give P. F. Campbell the exclusive sale of said 290 acres of land from December 18, 1936, to July 1, 1937, for the purpose of selling it to the State of Texas as an air-port. Appellant alleged that upon learning of drilling activities in the vicinity of his land he had written P. F. Campbell requesting that the land be withdrawn from sale, and was informed by Campbell that he had sold said land to G. A. Harrison, and that he was thereby induced to believe that the sale of the land to the State had been consummated by Harrison. In his prayer appellant asked that a constructive trust be established against all of said 290 acres of land and the minerals thereunder remaining in the hands of either Harrison or the executrix of P. F. Campbell's estate; that the legal title thereto be divested out of them and vested in him, and that defendants be required to make an accounting to him for all monies received by them for the sale of royalties. In his alternative plea appellant sought both actual and exemplary damages.

Defendants answered by both general and special demurrers and denials. They specially denied any conspiracy between P. F. Campbell and G. A. Harrison to defraud appellant, or that they had made false representations to him; they specifically alleged that plaintiff knew all of the material facts in connection with such sale and that he had sought advice of counsel before executing the deed to said land and receiving the purchase price therefor. By way of trial amendment they denied that any partnership existed between them.

At the conclusion of appellant's testimony, on motion by defendants, the court instructed the jury to return a verdict against plaintiff and in favor of defendants. Based on such instructed verdict, judgment was rendered in favor of defendants and that plaintiff take nothing by his suit.

The record shows that appellant, a resident of the State of Illinois, had owned the 290 acres of land in question for a number of years, and that during a large part of that time P. F. Campbell had represented him as his agent in connection with said land; that, at the suggestion of P. F. Campbell, that if said property could be purchased for $30 per acre it might be sold to the Government for a municipal air-port, appellant had given P. F. Campbell the exclusive right to sell said property from December 18, 1936, until July 1, 1937, for the price of $8,700 cash, with the provision that one-half of the minerals would be reserved to him. The instrument provided: "If this land is sold to the State of Texas, as is contemplated, party of the second part (P. F. Campbell) shall have it understood that it is for the use as a landing field or air-port, and is subject to an oil lease now on the land and developments for landing field will have to be made subject to the wishes of the company holding the lease." The record shows that on or about January 23, 1937, it was ascertained by G. A. Harrison that said land could not be sold to the state as an air-port as long as there was an outstanding oil lease on the property. By letter dated February 8, 1937, from P. F. Campbell to appellant, Campbell referring to the efforts being made to sell said land to the State for an air-port said: "We have to give them time and the first chance to take it, but if the well shows us some oil, and if it is not taken by the state shortly we will then try to move it for you to some capitalist or oil man."

By letter to P. F. Campbell dated February 21, 1937, appellant requested that the deal with the State be called off, intimating that, in his opinion, it would be more advantageous to sell the land to private parties. By letters dated February 24, and 25, 1937, P. F. Campbell informed appellant that he had contracted to sell said land to G. A. Harrison, allowing him to take up said option. In the letter of February 25, he stated that it was understood that the land was to be sold to the State for an air-port, if possible, but if not to any one who would buy it if not acted on by the State before some one else did.

In a letter dated February 26, 1937, Ben F. Anderson, appellant's attorney, who resided in Charleston, Illinois, informed P. F. Campbell that A. B. Allison had been in his office discussing negotiations for the sale of said land and had shown him the correspondence between Campbell and Allison, and that Allison had asked him to write Campbell for more full explanation of the matter. The letter stated that it seemed from the correspondence and the option agreement that the land was to be purchased by the State, and that Allison was reserving one-half of the mineral rights if the sale went through; that they knew that there had been considerable excitement in the purchase of oil royalties in the vicinity of the land. He stated that Campbell probably knew, or any competent attorney would tell him, that an option agreement of this kind could not be enforced where the situation had changed so much since the time it was given. He requested a full explanation of the matter and as to who was profiting by the deal, stating that he would then advise Mr. Allison and that they would negotiate further with him.

By letter dated March 3, 1937, P. F. Campbell forwarded to appellant a letter from G. A. Harrison to him (Campbell) dated March 2, 1937, in which Harrison stated that he had offered said property to the state officials as an air-port and that, even though the legislators had not made the money available to him, he was forced to close the option and carry it himself until such time as they saw fit to reimburse him.

Prior to the delivery of said deed, P. F. Campbell received the following letter from Ben F. Anderson: "Your recent letter received. Mr. Allison thought this matter over and he has decided to sell the land regardless of the option, for the price agreed upon of $8700.00. I have prepared deed and sent it with draft attached as per my wire which you have received. As you have the abstracts of title I take it that there is no reason for delaying paying the draft. I am enclosing a copy of the deed so you will have it. Mr. Allison wants this matter promptly paid as he does not want to speculate on it and does not want the purchaser to do so. If the deal is to go through he wants it done at once, if not he wants to know it so he can act accordingly." This letter was dated March 4, 1937.

By deed dated March 6, 1937, A. B. Allison and wife, Minnie A. Allison conveyed to P. F. Campbell the 290 acres of land in question with...