Ford v. Culbertson

• Decision Date: 08 January 1958
• Docket Number: No. A-6313,A-6313
• Citation: 158 Tex. 124,308 S.W.2d 855
• Parties: Edwin S. FORD et al., Petitioners, v. A. B. CULBERTSON, Respondent.
• Court: Texas Supreme Court

Page 855

308 S.W.2d 855

158 Tex. 124

Edwin S. FORD et al., Petitioners, v. A. B. CULBERTSON, Respondent.

No. A-6313.

Supreme Court of Texas.

Jan. 8, 1958.

Rehearing Denied Feb. 5, 1958.

Kilgore & Kilgore, Kiel Boone, Dallas, for petitioner.

Hudson, Keltner & Sarsgard, Ft. Worth, for respondent.

SMITH, Justice.

This suit for damages was brought by petitioners against respondent for the breach of respondent's alleged contract to purchase certain mineral royalty interests owned by the estate of Warren Wright, deceased, in the State of Mississippi. The parties will hereafter be designated as in the trial court.

The principal question presented for determination by this Court is whether the record presents evidence which would entitle plaintiffs to have submitted to a jury for its determination the question of whether the defendant by his conduct had waived his title requirement that the only substitute for a release of the estate's tax liability acceptable to him would be a certificate of solvency executed by the First National Bank of Chicago. The issue of waiver, together with fourteen others, was submitted to the jury and upon failure of the jury to reach an agreement as to this issue as well as nine others, the court discharged the jury. Thereupon, both sides filed motions for judgment, and the plaintiffs filed an alternative motion for a mistrial. The trial court overruled both of the plaintiffs' motions and granted the motion of the defendants. Judgment was rendered that plaintiffs take nothing. On appeal to the Court of Civil Appeals that court affirmed the judgment of the trial court. 300 S.W.2d 152.

Plaintiffs present two points complaining only that the Court of Civil Appeals erred: (1) in holding that the evidence did not entitle the plaintiffs to go to the jury upon the question of waiver, and (2) that the Court of Civil Appeals erred in holding that the record presents no evidence which would entitle plaintiffs to a jury determination of the question of whether defendant's conduct invoked an estoppel against his asserting a defense based upon the requirement that the estate's tax liability be satisfied by the certificate of solvency to be executed by the Chicago bank.

Plaintiffs' argument under these points is to the effect that under the facts the respondent as a matter of law has waived or should now be estopped from asserting his dissatisfaction with the evidence of solvency of the estate of Warren Wright furnished him in lieu of and as a substitute for the certificate of solvency executed by the Chicago bank which he had originally required.

Plaintiffs argue in the alternative that the fact that the defendant remained silent after the substitute certificate of solvency was tendered, coupled with his statement in the letter of May 22, 1952, that he was ready to close at any time, is sufficient to raise a fact issue on the question of waiver. With this latter position we agree. While we do not attempt to state below all the evidence bearing upon the issue of waiver, we are of the opinion that the record presents a fact issue as to whether the defendant intentionally waived his requirement that the plaintiffs furnished to him a certificate of solvency executed by the First National Bank of Chicago.

The record does not show the total value of the estate, but the inheritance tax was estimated to be approximately $10,000,000, and largely because of this tax it was deemed necessary that Mrs. Wright, Executrix of the Estate, sell some of the assets in order to pay all estate inheritance taxes, succession and similar taxes, and satisfy all liens of every character in order that all assets could be delivered to each legatee and trust free of debt as provided in the last will of Mr. Wright. The will, in addition to appointing Mrs. Wright executrix, set up four trusts (Warren Wright, Jr. Distributable Trust; Warren Wright, Jr. Income Trust; Lucille Parket Wright Trust; and Residuary Trust), as well as one contingent trust for grandchildren. The First National Bank of Chicago was named one of the trustees.

Mrs. Wright, the executrix, for the purpose of carrying out the express terms of the will of her late husband, evolved a plan to sell off various oil and gas properties. Among such properties was that designated as 'Group Two Property' involved in this lawsuit. Mr. William J. Sherry was employed to prepare invitations to bid and obtain bids and in general to act as agent for the estate or the trustees or both in the sale of the properties. Invitations to bid were sent out. The invitations to bid on the Group Two property which covered thirty or more different royalties in the State of Mississippi came to the attention of the defendant. The Baptist Foundation of Texas, with which the defendant was connected in an official capacity, receive one of the bids. The defendant, after ascertaining that the Foundation was not interested in the purchase of the advertised property, and after sending Mr. James F. Gibbs, a petroleum engineer and appraiser, to Mississippi to make an investigation of the value of the properties, and after receiving a report from Mr. Gibbs placing a value of $237,000 on the property, did make a bid of $237,605.00 for the minerals and royalty interest set out in 'Group Two'. The bids were opened on January 17, 1952, and it was disclosed that defendant's bid was high. On that same evening Mr. Sherry called the defendant, Mr. Culbertson, by long distance telephone, and informed him that he was high bidder. Apparently from the evidence, Mr. Sherry was under the impression that the bid to purchase had been made in behalf of the Baptist Foundation of Texas, but be that as it may, the record shows that prior to January 19, 1952, the date of acceptance of the bid by the trustees, Mr. Sherry was informed that the purchase was in fact to be made in the name of two daughters of defendant.

On January 19, 1952, Mr. Sherry addressed a letter to Mr. Culbertson accepting his bid on the Group 2 oil and gas royalty interests of the estate of Warren Wright, consisting of the Cranfield Area and the Heidelberg Field properties in Mississippi, being the same property involved in this suit. The letter stated that 'All of the trustee have approved your bid of $237,605 with the understanding it is agreeable to have the mineral deeds and transfer orders made out, if you so request, to the Baptist Foundation of Texas. * * * Will you kindly advise me to whom you wish the conveyance made?'

On January 21, 1952, Mr. Culbertson addressed a letter to the Wright Estate replying to the above letter. The letter stated:

'I have your letter of January 19, 1952 confirming the sale to me of your Group 2 royalties in the Cranfield Area and Heidelberg Field in Mississippi.

'Please prepare the conveyances of title to the following: Marjorie Finley, wife of D. S. Finley of Tarrant County Texas and Helen Sarsgard, wife of W. R. Sarsgard of Tarrant County, Texas, as their sole and separate property and estate.

'Please prepare transfer orders direct to the First National Bank in Dallas, as they are doing some financing through that bank and it will save two sets of transfer orders.

'I talked to Mr. Sherry on the telephone today and he stated that you would prepare the conveyance and send me the title opinions and title papers, including the form of conveyance for examination of my attorney.

'It will be necessary for me to have time to have the abstracter make a search to see that nothing has transpired affecting the title and for the trustees of the estate to give evidence of the payment of the estate and inheritance taxes, or evidence of solvency. Just as soon as title papers can clear I am prepared to pay for the property.'

On January 25, 1952, the law firm of Fellows & Fellows (attorneys for plaintiffs) gave the following reply:

'Mr. William J. Sherry has requested that I reply to your letter of January 21, 1952 addressed to the Wright estate relative to titles and the form of conveyance on the above purchase.

'It is the desire of the estate to co-operate fully in the conveyancing of the properties sold and the mode of conveying will, of course, determine the form of the conveyance. There are several possible conveyance procedures available for selection as you may already know. Mr. Wright's domiciliary estate was filed in the State of Florida and is pending. Ancillary administration proceedings have been filed in other states, including Mississippi. All ancillary probate proceedings are still pending.

'Mr. Wright died testate and his will, as admitted to probate in Florida and Mississippi, names his widow, Mrs. Lucille P. Wright, as executrix of his estate. She was appointed and has qualified as executrix in the State of Mississippi. Your attorneys will want to check these proceedings and I am today asking the attorneys for the Wright estate to forward a transcript to you. The will of Mr. Wright gives the executrix full power to convey this property and the present sale to you is in the nature of a sale under the will.

'Thus, the normal procedure would be by deed from the executrix with such confirmation in the state court as may be required. Such conveyances can be ratified and confirmed by the trustees named in the will and by Mrs. Wright individually.

'If the above mode of procedure is used and court confirmation is required some element of delay will necessarily be incurred. In addition, in many states bids may be raised on approval hearings. Thus, some bidders have indicated that they might prefer a conveyance executed by the trustees named in the will with confirmation by the executrix and beneficiaries or heirs. I am not personally familiar with the the law of Mississippi, but generally title to property passes immediately upon death to the demises named in the will, subject to the right of the Probate Court and the personal representatives to administer upon the estate. Your attorneys are, of course,...