Francis v. Thomas

• Decision Date: 09 June 1937
• Docket Number: No. 2071-6874.,2071-6874.
• Citation: Francis v. Thomas, 106 S.W.2d 257, 129 Tex. 579 (Tex. 1937)
• Parties: FRANCIS v. THOMAS et al.
• Court: Texas Supreme Court

106 S.W.2d 257

FRANCIS v. THOMAS et al.

No. 2071-6874.

Commission of Appeals of Texas, Section A.

June 9, 1937.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by J. C. Francis against W. M. Thomas and others. Judgment for plaintiff was reversed by Court of Civil Appeals [76 S.W.(2d) 575], and plaintiff brings error.

Judgment of the Court of Civil Appeals affirmed.

Wynne & Wynne, of Longview, for plaintiff in error.

George L. Huffman and P. O. Beard, both of Marshall, Chas. L. Black, of Austin, T. B. Stinchcomb and Edward A. Brown, both of Longview, and W. H. Sanford and Conan Cantwell, both of Dallas, for defendants in error.

HICKMAN, Commissioner.

In the trial court plaintiff in error, Dr. J. C. Francis was the plaintiff and defendants in error, W. M. Thomas, B. F. Findley, and G. C. Finch, sometimes called Grover Finch, were defendants. For convenience they will be designated here as in the trial court. Plaintiff brought this suit against defendants to enforce specific performance of certain contracts claimed to have been made by him with them by the terms of which they agreed to convey to him certain mineral interests in a 50-acre tract of land in Gregg county. In a trial before the court without a jury, judgment was rendered in his favor for the interests sued for. That judgment was reversed and the cause remanded by the Court of Civil Appeals. 76 S.W.(2d) 575, 578. The alleged contract with Thomas and Findley rested wholly in parol. There was a memorandum executed by Finch which is relied upon as being sufficient to take his contract out of the statute of frauds.

The making of an accurate statement of the case is rendered difficult by the fact that there is confusion and uncertainty in plaintiff's own testimony as to the character of the oral agreements which were actually entered into between him and the other parties. This lack of clarity and certainty in the terms of the contract as testified to by him would of itself require a reversal of the judgment of the trial court and an affirmance of the judgment of the Court of Civil Appeals. Courts of equity will not decree the specific performance of a contract, particularly of a parol contract for the sale of land upon the ground of part performance, where there is confusion and indefiniteness as to the terms of the agreement. Edwards v. Norton, 48 Tex. 291; Bracken v. Hambrick, 25 Tex. 408; Snover v. Jones (Tex.Civ.App.) 172 S.W. 1122.

The difficulty of stating the case is further increased by the lack of correspondence between the allegations, proof, and findings. There appears to be a fatal variance, not only between the pleadings and the evidence, but also between the pleadings and the findings of the trial court upon which judgment was based with respect to the material terms and provisions of the alleged oral contract. We shall not set out the pleadings and evidence which reveal this variance and the uncertainties as to the terms of the agreement, because the decision of the Court of Civil Appeals was not placed on these grounds, and we are well convinced that the grounds upon which it was placed afford all the support required to sustain it.

This statement is thought to be sufficient to make understandable our views on the controlling questions of law presented for decision: According to the findings of fact by the trial judge, Thomas and Findley, who owned a 50-acre tract of land in Gregg county, executed a mineral lease thereon to M. F. Beeler and plaintiff in January, 1931, the lease being taken in the name of Beeler. Thereafter Beeler transferred the lease to plaintiff in so far as it covered the south 16 2/3 acres of the tract. Beeler retained the lease on the north 33 1/3 acres, but he and plaintiff continued to handle their leases together. Later, Beeler and plaintiff sold defendant Finch one-half of the royalty owned by Thomas and Findley, and in the transaction Finch became indebted to plaintiff in the sum of $125. The trial court found that the following contract was thereafter made between plaintiff and the defendants:

"J. C. Francis went to the defendants, Grover Finch, W. M. Thomas and B. F. Findley, and contracted with them that he would sell his oil, gas and mineral lease upon the south 16-2/3 acres of the 50 acre tract of land involved in this controversy at $65.00 an acre provided he could get some royalty interest from them.

"The court finds that the said J. C. Francis contracted and agreed with the defendants W. M. Thomas, Grover Finch and B. F. Findley that he would sell his lease to an independent operator at $85.00 less per acre than he could get from a major company, and that he would release his claim of $125.00 against the said G. C. Finch; and the defendant, Grover Finch, agreed that he would give to the said J. C. Francis 1/64 of the oil, gas and minerals produced, known as royalty interest, or one-eighth of the one-eighth royalty which he had purchased from B. F. Findley and W. M. Thomas, covering the 50 acre tract of land involved in this controversy, while B. F. Findley and W. M. Thomas contracted and agreed to deliver, and traded to the said J. C. Francis, an undivided 1/64 of all the oil, gas and minerals in and under and that might be produced from the south 16-2/3 acres out of the 50 acre tract of land subject to the terms of the lease, being one-eighth of the one-eighth royalty. Each party agreed to transfer to the plaintiff, J. C. Francis, one-eighth of the one-eighth royalty payable under the lease from B. F. Findley and W. M. Thomas to M. F. Beeler, as above set out. W. M. Thomas and B. F. Findley were to jointly deliver 1/64 of such minerals in the south 16-2/3 acres, and Grover Finch was to deliver one-eighth of the one-eighth royalty, or 1/64 royalty interest in the entire 50 acre tract.

"After the said Grover Finch made this agreement with J. C. Francis and the memorandum dated 2/25/31 had been delivered, J. C. Francis made a similar agreement with W. M. Thomas and B. F. Findley and sold his lease to Taylor Fithen, whose option had expired, relying on his contract with defendants. Fithen in turn had contracted to sell to one Ross the south 6-2/3 acres. This sale was made at the price of $65.00 per acre and a 1/16th working interest, which interest was of nominal value at such time."

The trial court then found that plaintiff performed the obligations of his contract and that defendants failed and refused to execute the conveyances to him. A further finding was: "Later, litigation having been filed, the completion of the well was delayed, and after the litigation had been appealed to the Court of Civil Appeals at Texarkana, Texas, the court finds that J. C. Francis met with W. M. Thomas and Grover Finch and contracted with each of them that he would sell his working interest of 1/16 to a Greek by the name of Kitzos, but that he didn't care to sell his interest unless they were going to perform their contract and agreement which they had made with him to transfer to him the one-eighth royalty interest. The said W. M. Thomas and Grover Finch each further contracted and agreed with the said J. C. Francis that if he would sell his remaining interest in order to get the lawsuit settled, they were ready and willing to carry out the contract and would deed to him the royalty interest which they had contracted to deliver, subject to the terms of the outstanding lease. Relying upon this agreement, the court finds that the said J. C. Francis parted with title to his remaining interest in the 16-2/3 acre leasehold."

As noted above, in connection with the contract between plaintiff and Finch, the latter executed a written memorandum, and one of the principal questions presented for decision is whether that memorandum was sufficient to satisfy the requirements of the statute of frauds, article 3995. The memorandum was in words as follows: "`Dr. Francis is to get 1/64 royalty interest in 50 acres in C. H. Alexander Survey, Gregg County provided drilling contract is obtained within 30 days. 2/25/31 G. C. Finch.'"

The Court of Civil Appeals disposed of the question in this language: "The memorandum set out in the pleadings of appellee and signed by the appellant G. C. Finch is insufficient to take the contract alleged out of the statute of frauds for the reason that it fails to sufficiently describe the land involved. Starkey v. Texas Farm Mortgage Co. (Tex.Civ.App.) 45 S.W.(2d) 999."

We agree...