Ebensberger v. Sinclair Refining Co., 12155.

• Decision Date: 15 March 1948
• Docket Number: No. 12155.,12155.
• Citation: 165 F.2d 803
• Parties: EBENSBERGER et al. v. SINCLAIR REFINING CO.
• Court: U.S. Court of Appeals — Fifth Circuit

165 F.2d 803 (1948)

EBENSBERGER et al. v. SINCLAIR REFINING CO.

No. 12155.

Circuit Court of Appeals, Fifth Circuit.

February 11, 1948.

Rehearing Denied March 15, 1948.

J. B. Lewright, of San Antonio, Tex., for appellants.

Alfred McKnight and Sloan Blair, both of Fort Worth, Tex., and W. R. Smith, Jr., of San Antonio, Tex., for appellees.

Before HUTCHESON, McCORD, and LEE, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellee, plaintiff below, alleging that the tract was worth in excess of $7500, the agreed contract price for it, brought this suit against appellants, defendants below, for specific performance.

The petition alleged: that plaintiff had on May 4, 1937, leased the land from defendants' predecessors in title under a written lease for a term of 13 years, one of the provisions of which gave plaintiff an option during the term of the lease to purchase the property for $7500 upon giving 30 days' notice of its intention so to do; that on June 3, 1938, appellants, with full knowledge of the lease containing the option contract, purchased the property, agreeing in all respects to be substituted for the named lessor and to be bound by and faithfully perform all of the terms, conditions and obligations of the lease; that plaintiff, on or about the 11th of October, 1946, determined to exercise its option to purchase the property and gave the notice the lease required; but that defendants, refusing to perform the contract and convey the property, advised plaintiff that they were not bound to and would not do so.

Defendants moved to dismiss for want of jurisdiction because the petition did not sufficiently allege that the property involved was worth more than $3000 in excess of the contract price of $7500. The motion overruled, defendants answered, admitting all of the facts alleged, but pleading coverture, that is; that on the face of the complaint it appeared that defendant Ed W. Ebensberger, was a mere pro forma defendant; that the property was the separate property of Ella Ebensberger; that the suit was to enforce an executory contract against her in that she, in accepting the assignment and conveyance to her of all the right, title and interest of her predecessor, "agreed to be bound by and to faithfully perform all the terms, conditions, covenants and obligations in said lease agreement contained, and to in all respects be substituted for the lessor named in the lease agreement"; that plaintiff had consented to the assignment; and that by reason of her coverture, the agreement was not binding on, and could not be enforced against, her.

Thereafter, both plaintiff and defendants moving for judgment on the pleadings, defendant's motion was denied, plaintiff's was granted, and there was judgment for plaintiff for specific performance as prayed.

Appellants are here pressing upon us two reasons for reversal. The first is that the amount in controversy was not the contract price for, or the value of, the property, but the damages which plaintiff would have suffered if specific performance had been denied, that is, the difference between the value of the property and the contract price, and it not being sufficiently alleged that this was in excess of $3000, it was error to deny the motion to dismiss for want of jurisdiction.

The second reason advanced is that under the assignment to appellants, and appellee's agreement to it, the contract sought to be enforced became the contract of Mrs. Ebensberger and her coverture prevented its enforcement.

As to the point on jurisdiction, appellee insists that the amount in controversy is the value of the property sought to be acquired by the suit but, if not, the petition affirmatively alleges the necessity to appellee's business of the property, the subject of the contract, and that if denied specific performance, it would suffer irreparable damage in an amount which "will far exceed the sum and value of $3000, exclusive of interest and costs".

As to the defense of coverture, appellee points out that the contract which it seeks to enforce is not the contract of Mrs. Ebensberger but the contract in the lease made with her predecessors in title, and that appellee in consenting to the assignment did not, as contended by appellant, make a new contract with her, but, on the contrary, consented to the assignment upon the condition that the assignment should be subject to the terms, covenants...