Coker v. Benjamin

• Decision Date: 04 April 1935
• Docket Number: No. 2729.,2729.
• Citation: 83 S.W.2d 373
• Parties: COKER et al. v. BENJAMIN et ux.
• Court: Texas Court of Appeals

Page 373

83 S.W.2d 373

COKER et al. v. BENJAMIN et ux.

No. 2729.

Court of Civil Appeals of Texas. Beaumont.

April 4, 1935.

Appeal from District Court, Polk County; W. B. Browder, Judge.

Suit by J. H. Coker and others against Fred W. Benjamin and wife. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Coker, Rhea & Vickrey, of Dallas, for appellants.

Baker, Botts, Andrews & Wharton, of Houston, for appellees.

WALKER, Chief Justice.

On April 22, 1932, appellees, Fred W. Benjamin and wife, as lessors, for a valuable consideration executed an oil and gas lease to P. L. Tomer and A. F. Purdy, granting to lessees for the purposes of the lease 540 acres of land in Polk county for a term of 5 years and as long thereafter as gas and oil could be produced. One of the conditions of this lease was as follows: "If drilling operations are not commenced on said land on or before six months from this date, this lease shall then terminate as to both parties, unless lessee shall pay or tender to lessor or to the credit of lessor in Mitchell National Bank at Mitchell, So. Dak., (which bank is lessor's agent) the sum of Four Hundred Five 00-100 ($405.00) Dollars (hereinafter called `rental'), which shall extend for six months the time within which drilling operations may be commenced. Thereafter, semi-annually, in like manner, and upon like payments or tenders, the commencement of drilling operations may be further deferred for periods of six months during the primary term."

The lease also provided that the rights of each party could be assigned in whole or in part and that the provisions of the lease should extend to the assignee. On the 17th day of May, 1932, Tomer and Purdy assigned the lease to John W. Greer, who, on November 21, 1932, assigned 25 acres of the leased premises to appellant J. H Coker and on November 23, 1932, assigned to Coker and appellant J. A. Humphrey jointly 75 acres of the leased premises; this last lease was accepted by the assignees with the understanding between themselves that they should be equally interested in both the 25 acres and the 75 acres. When the assignment was made to Coker of the 25 acres and to Coker and Humphrey jointly of the 75 acres, all delay rentals against both the 25 acres and the 75 acres had been paid up to April 22, 1933. Under an agreement between Coker and Humphrey, Coker wired from Hot Springs, Ark., to appellee Fred W. Benjamin, c/o Mitchell National Bank, Mitchell, S. D., the sum of $100 by a telegram reading in part as follows:

"To pay lease rentals on twenty five acres J. H. Coker and seventy five acres J. A. Humphrey, Polk County, Texas. Please send receipt."

                        "Signature: J. H. Coker
                        "Sender's Address: 322 Arlington."
                

Though the lease under which they held required appellants to make semiannual payments of 75 cents per acre, they were ignorant of that fact and thought the lease required annual payments of $1 per acre, and the $100 was wired appellee by appellants on their belief that this sum would pay the delay rentals up to April 22, 1934. The bank, as the agent of appellees, duly received the remittance and appellants' telegram. The remittance was deposited to appellees' credit prior to April 21, 1933, and the bank forwarded to appellees deposit slip showing the payment of $100, with copy of appellants' telegram which was received by appellee Benjamin about the 1st day of May, 1933. Appellees made no effort to return to appellants the excess payment of $25, nor did they send them a receipt for the $100, but retained it in their possession and made no offer to return it to appellants until after the next semiannual pay date. The bank had appellant Coker's address, which was also shown in the recorded assignment to Coker of his interest in the lease. Appellants failed to pay or to make tender of payment of the next semiannual rental installment maturing on the 22d of October, 1933. Appellees claim that the failure to make this payment terminated the lease to the extent of appellants' interest and filed and duly recorded their affidavit to that effect. Subsequently appellants made tender of the past-due rental and when the tender was refused filed this suit against appellees on the 6th day of January, 1934, praying for judgment quieting them in the title and possession of their claimed leased interest, the removal of the cloud cast upon the title by the adverse claim of appellees, and for general relief. In a general way appellants pleaded the facts as we have enumerated them and the theory of their petition was that appellees had caused or had contributed to cause the mistake made by them in overlooking and failing to make the rental payment due on October 22d and were thereby estopped to claim that the lease had terminated. The answer of appellees put in issue all allegations of appellants' petition. On trial to the court without a jury judgment was entered that appellants take nothing by their suit as against appellees and that appellees go hence without day and recover of appellants all costs in this behalf expended; conclusions of law and fact were not filed, nor were they requested.

Appellants present their appeal on three propositions. The first two are as follows:

"1. It appearing from the undisputed evidence that on October 22, 1933, the plaintiffs were laboring under the mistake of fact that all rentals on the leases in question were paid to April 22, 1934; that at such time the defendants knew or ought to have known of such mistake on the part of plaintiffs; that such mistake was occasioned or brought about by the wrongful conduct of the defendants in failing to receipt plaintiffs for the payment made them by plaintiffs on April 22, 1933, in failing to advise plaintiffs of the overpayment made on such date, in failing to return to plaintiffs and retaining in their possession such excess payment, the legal duty being upon defendants to return such overpayment, the defendants are estopped to assert that the leases involved terminated on October 22, 1933, by reason of the non-payment of such rentals.

"2. It appearing from the undisputed evidence that on October 22, 1933, the date the delay rentals in question in the amount of Seventy Five ($75.00) Dollars were payable, prior thereto and thereafter, the defendants had in their possession the sum of Twenty Five ($25.00) Dollars tendered and paid to them as rentals on the leases in question; that they continued to accept and retain such sum without ever even tendering its return until subsequent to the filing of this lawsuit, the defendants waived the payment to them by plaintiffs of any further rental which might have become due on October 22, 1933, and/or were estopped to demand payment of any additional sum to prevent termination of such leases."

These propositions present the issues of "estoppel" and "waiver," on the record purely fact issues. As a correct summary of the facts, we take the following statement from appellees' brief, questions and answers reduced to narrative:

"Mr. Coker testified that he had been buying and selling leases and taking assignments of leases for many years and that he had been engaged exclusively in that business since 1920. He further stated that he had been authorized by Mr. Humphrey to attend to the matter of paying the rentals under both assignments and that while he resided at Dallas, Texas, on April 17, 1933, he was at Hot Springs, Arkansas, on account of his health. He testified to having made the remittance of the $100.00 by telegraph as set out in appellants' brief.

"Mr. Coker further testified that when he purchased the assignment of the 25 acres he was represented by Mr. Grubb, his agent, who checked the records and obtained information as to the lease by appellees to Greer, from whom he took the assignment. He also testified as follows:

"`Mr. Humphrey had a copy; he had a copy of the original lease. As a matter of fact, the photostatic copy of the original lease was in my file in Dallas. I got it in connection with the purchase of the seventy-five acres. I had it in my possession; that was before I ever went to Hot Springs. It turns out that that lease, on its face, provides for seventy-five cents rental semi-annually.'

"In connection with the remittance which he made from Hot Springs by telegraph, and as touching his lack of diligence in following up the remittance and obtaining a receipt, he testified as follows:

"`I was at Hot Springs some two weeks after that. I didn't get any acknowledgment from the bank of that remittance. I don't know that I knew that they had received it. I was very sick there. And perhaps, I may have gotten some notice through the Western Union. I could have. But so far as I now recollect, until the time that I met Mr. Benjamin I didn't know that the bank had received the money at all. I don't think I wrote the bank to determine whether they had received the money. I waited more than six months; I was under the impression the money was paid. It is customary for banks to acknowledge receipt of money. It would have been a good precautionary method for me to have inquired; but nothing of that kind was done; banks of this country all acknowledge receipts of my money. That bank didn't do it.'

"Mr. Coker testified that after buying the 25 acres in his own right, he and Mr. Humphrey purchased jointly the 75 acres, he taking one-third and Mr. Humphreys taking two-thirds, and that in this way they acquired jointly an equal interest in the one hundred acres. In this connection Mr. Humphreys testified as follows:

"`I went to Mr. Coker's room in the Texas State Hotel and said that I had agreed to buy seventy-five acres, and I asked him if he wanted to take a third with me and pool it together and make it undivided, and he said he would, and I said instead of drawing that to me to make a third interest to Coker and two-thirds to myself, which he did.'

"Mr. Humphrey testified to having turned over all...