Campbell v. Barber
| Citation | 272 S.W.2d 750 |
| Decision Date | 05 November 1954 |
| Docket Number | No. 15555,15555 |
| Parties | Francis K. CAMPBELL, Appellant, v. D. J. BARBER, Appellee. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
John T. Gano, Charles L. Morgan, Fort Worth, for appellant.
Barber & Barber, Colorado City, Clyde & Barners, Fort Worth, Cantey, Hanger, Johnson, Scarborough & Gooch, J. A. Gooch, George R. Bridgman, Peveril O. Settle, Jr., Fort Worth, for appellee.
This is an appeal from a judgment in favor of D. J. Barber, appellee, against Francis K. Campbell, appellant, for damages for an alleged breach of contract to purchase a certain mineral interest.
As of July 3, 1949, an oil well was being drilled within two hundred yards of appellee's farm. On that date, which was a Sunday, appellant offered appellee $500 an acre for a mineral interest in appellee's land, but appellee refused to do business on Sunday. On the next day, Monday, July 4, 1949, however, the parties executed an instrument reading as follows:
'Mr. D. J. Barber
'Westbrook, Texas
'Dear Mr. Barber:
'This will confirm our agreement, wherein I agree to buy and you agree to sell and deliver to me, One-Eighth of the minerals under your 480 acres of land in Mitchell County, Texas, described as the North-Half and the South-East quarter of Section 16, Block 28, Township 1 South, for which I agree to pay you the sum of $30,000.00 cash upon approval of title and delivery of valid deed.
'It is agreed and understood that you are to furnish me with complete abstract of title certified down to date, within five days from this date covering the above land and I am to have five days after receipt of such abstracts within which to examine title to said land and in event the title is satisfactory I am to pay you the said $30,000.00 within the said five days, upon delivery of said valid deed.
'As soon as you have the abstracts certified to date and have the deed executed (within said five days) you are to send the deed and abstracts to the Continental National Bank of Ft. Worth, Texas, together with your draft on me for the said $30,000.00 with instructions to the Continental National Bank to deliver the said deed to me upon payment of the said $30,000.00 and to return the abstracts to you.
'Yours truly
'Francis K. Campbell (signed)
'Accepted July 4th, 1949
'D. J. Barber (signed)
'Ruth Hart Barber (signed)'
On July 5, 1949, a draft with mineral deed attached was sent, on behalf of Barber, by the City National Bank of Colorado City to the Continental National Bank of Fort Worth, with instructions that the draft was payable five days from receipt of the abstract. The draft and deed were received by Continental National Bank on July 6, 1949. The abstract of title was mailed by Barber to Continental National Bank on July 5, 1949. On the 8th or 9th of July, 1949, the oil well developed salt water. Appellant received the abstract from the Continental National Bank on July 9, 1949. On July 13, 1949, on instructions from appellee, the Continental National Bank was directed to return the abstract, draft and attached deed to the City National Bank of Colorado City. They were received by the City National Bank on July 14, 1949.
The jury, among other findings, found that the abstract was received by the Continental National Bank of Fort Worth on July 6, 1949, and further that the reasonable cash market value of the minerals in question on July 4, 1949, was $400 per acre, and on July 13, 1949, the minerals had no value. Prior to the submission of the case to the jury, the appellant moved for an instructed verdict and, after verdict, moved for judgment non obstante veredicto. Both motions were overruled, and judgment entered for appellee for the sum of $24,000.
The appellant takes the position the abstract was recalled by the appellee before the five day period had expired and that therefore the appellee, and not the appellant, breached the contract. In support of his argument he contends that the Continental National Bank was the agent of appellee and that the five day period mentioned in the contract did not begin running until the abstract was delivered by the Continental National Bank to appellant, and further that there was no evidence to support the jury's finding that the abstract was received by the Continental National Bank on July 6, 1949.
The evidence is undisputed that the other instruments, mailed at the same time the abstract was mailed, were received by the Continental National Bank on July 6, 1949, and the bank's records so show. The officer of the Continental National Bank who handled the matter testified he presumed the abstract also arrived on July 6, 1949. The instruments, when returned by the Continental National Bank to the Bank in Colorado City, were received in the next day's mail. There is no evidence that the abstract was not received by the Continental National Bank on July 6, 1949. We believe the evidence supports the jury's finding.
The controlling question, in our opinion, is whether or not under the contract, hereinabove set out, the five day period within which appellant had to determine whether or not the title was satisfactory started when the abstract was...
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