Cohen v. McCutchin

• Decision Date: 26 April 1978
• Docket Number: No. B-7093,B-7093
• Parties: Albert J. COHEN, Temporary Administrator, Petitioner, v. Gene McCUTCHIN et al., Respondents.
• Court: Texas Supreme Court

Page 230

565 S.W.2d 230

Albert J. COHEN, Temporary Administrator, Petitioner, v. Gene McCUTCHIN et al., Respondents.

No. B-7093.

Supreme Court of Texas.

April 26, 1978.

Rehearing Denied May 31, 1978.

Turner, Rodgers, Sailers, Jordon & Calloway, R. W. Calloway, Turner, Hitchins, McInerney, Webb & Hartnett, John E. Gangstad, Dallas, for petitioner.

John L. Roach, Inc., John L. Roach and A. H. Duvall, Dallas, for respondents.

BARROW, Justice.

This is an appeal from a take-nothing summary judgment granted Gene, Jerry, and Alma McCutchin in Albert J. Cohen's third-party action whereby Cohen, as administrator of the estate of Byron M. McKnight, sought to recover certain drilling costs due pursuant to two written agreements allegedly entered into by the McCutchins with McKnight. The court of civil appeals affirmed after concluding that the written agreements sued upon by Cohen did not meet the requirements of the Statute of Frauds because they were neither signed by McKnight nor did they disclose his identity. 554 S.W.2d 844. We have concluded that the summary judgment was properly granted and affirm the take-nothing judgment.

The question presented by this appeal is whether the McCutchins discharged their summary judgment burden to establish as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of Cohen's cause of action. ¹ Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Prestegord v. Glenn, 441 S.W.2d 185 (Tex.1969). Primarily it is urged that the summary judgment proof does not foreclose the existence of additional writings which were signed by or on behalf of McKnight.

On June 3, 1974, American Quasar Petroleum Co. entered into an agreement with McKnight whereby McKnight agreed to participate, to the extent of a 25% working interest, in the drilling and completion of an exploratory oil and gas well described generally as the Barstow Townsite Unit No. 2, Ward County, Texas. The well was drilled and completed, but production was not sufficient to pay the costs. In the meantime, McKnight died. American Quasar subsequently filed suit against Albert J. Cohen, Temporary Administrator of the Estate of Byron M. McKnight, Deceased, to recover McKnight's share of the drilling costs. In turn, Cohen filed a third-party action against respondents, Gene McCutchin, Jerry McCutchin, and Alma McCutchin, seeking to recover the pro rata shares of the drilling costs owed by the McCutchins pursuant to two written agreements they had allegedly entered into with McKnight on June 12, 1974. ² It was alleged that under these agreements the McCutchins acquired the following interests in the exploratory well by assignment from McKnight: Gene McCutchin 8.7143%, Jerry McCutchin 5.7143% and Alma McCutchin 5.7143%. The written agreements are set out in full in the opinion of the court of civil appeals and therefore need not be recopied here. Cohen v. McCutchin, supra at 846-847. It is sufficient to state that the two letter agreements, bearing the date of June 12 1974, although apparently written by the McCutchins' assignor, are neither signed by McKnight nor written on his letterhead, nor do they identify McKnight as the assignor in any way. They are signed only by the McCutchins.

The Statute of Frauds, Section 26.01, Texas Business and Commerce Code Annotated, provides in part as follows:

(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is

(1) in writing; and

(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.

(b) Subsection (a) of this section applies to:

(4) a contract for the sale of real estate; . . .

This statute requires that, with respect to the agreements defined therein, there must be a written memorandum which is complete within itself in every material detail, and which contains all of the essential elements of the agreement, so that the contract can be ascertained from the writings without resorting to oral testimony. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945); Boddy v. Gray, 497 S.W.2d 600 (Tex.Civ.App. Amarillo 1973, writ ref'd); Walker Avenue Realty Co. v. Alaskan Fur Co., 131 S.W.2d 196 (Tex.Civ.App. Galveston 1939, writ ref'd).

Cohen concedes that the agreements sued on were conveyances of real estate within the meaning of subsection (b)(4) of the Statute of Frauds. See Taber v. Pettus Oil & Refining Co., 139 Tex. 395, 162 S.W.2d 959 (1942). He urges, however, that the lower courts erred in considering only the two letters of June 12, 1974, in determining the validity of the agreements sued upon. Specifically, he asserts that the identity of McKnight is established by a transmittal letter of June 12, 1974, wherein Hubert H. Thompson, on behalf of Gene McCutchin, transmitted to McKnight checks from Alma McCutchin, Jerry McCutchin, and Gene McCutchin to cover "their portion of costs on the Barstow Townsite Unit No. 2, Ward County, Texas, as reflected by the executed...