Hegar v. Tucker, 12764

• Decision Date: 13 January 1955
• Docket Number: No. 12764,12764
• Parties: L. H. HEGAR, Appellant. v. Mrs. T. B. TUCKER, Appellee.
• Court: Texas Court of Appeals

Page 752

274 S.W.2d 752

L. H. HEGAR, Appellant. v. Mrs. T. B. TUCKER, Appellee.

No. 12764.

Court of Civil Appeals of Texas, Galveston.

Jan. 13, 1955.

Rehearing Denied Feb. 3, 1955.

Bracewell & Tunks, Joe H. Reynolds, Roberts & Hugghins and John A. Hugghins, Houston, for appellant.

Dyess, Dyess & Jennings, A. D. Dyess, Houston, for appellee.

HAMBLEN, Chief Justice.

This suit was instituted in the District Court of Harris County, by L. H. Hegar, who is appellant before this Court, seeking to recover damages as against the appellee, Mrs. T. B. Tucker, for alleged breach of a lease contract covering 640 acres of land in Harris County, Texas. Appellee answered and by cross-action, sought damages against the appellant resulting from his alleged action in taking possession of a portion of the leasehold estate without the consent of appellee, and contrary to the terms of the lease contract. Trail was before a jury, which in response to special issues submitted, found that the reasonable rental value per acre of the land in controversy for rice growing for the year 1952 was $2.86; that on November 20, 1952, appellant entered upon and took possession of approximately 35 acres of the land without the consent and/or permission of appellee; and that the reasonable rental value per acre of such 35 acres was $2.86. After receipt of such verdict, judgment was entered that appellant take nothing by his suit, and that appellee have judgment for $100.10 on her cross-action.

Appellant attacks the trial court's judgment in eight points of error. For reasons which will be discussed, we are of the opinion that none of such points presents error requiring a reversal of the judgment, and all must accordingly be overruled. Appellant's points will be treated in such discussion.

The essential facts are undisputed. Appellant became the owner by purchase of the 640 acres involved on April 4, 1951. At such time, and for some years prior thereto, appellee was and had been in possession of such land as a tenant for years of appellant's vendors, N. J. Cheek and Ralph H. Cheek. Prior to January, 1952, appellant notified appellee that she had no right to plant any portion of the leasehold in rice for the year 1952, and that her doing so would render a forfeiture of the lease in accordance with its terms. Appellee admittedly ignored such notice, and after the receipt thereof, planted, cultivated and harvested during the year 1952 a rice crop upon approximately 570 acres of the land, which crop was of the value of $180,000. In his suit, appellant sought damages in an amount equal to the value of the crop harvested upon the theory that appellee's action constituted her a trespasser upon the land. Alternatively he sought damages equal to the rental value of the alnd for rice growing. Aside from the aforesaid undisputed facts, appellant's proof, so far as presently material, consisted of a written lease agreement between appellee and appellant's predecessors in title, dated November 15, 1948, which, for clarity, is attached as Exhibit A to this opinion. Essentially it is the appellant's contention that such instrument evidences the only lease contract existing between the litigants governing their respective rights in the land for the year 1952; that a proper construction of such instrument necessitates the conclusion that appellee had no right to plant rice upon the land during the term of the lease except durign the year 1949, and then only as to 170 acres thereof; and that her action in so planting during the year 1952 constituted a breach of the lease contract giving rise to the cause of action alleged by him. The action of the trial court in overruling such contentions, and in entering the appealed from judgment, forms the basis of appellant's points of error, I, II and III. Appellant's so numbered points are answered by appellee in four counterpoints. Essentially it is her contention, as therein variously stated, first, that the instrument identified as Exhibit A, when examined as a whole, and in the light of the circumstances attendant upon its execution, should be properly so construed as to grant appellee the right to plant rice in the year 1952, and secondly, that the evidence conclusively proves that prior to the execution and delivery of the instrument identified as Exhibit A, appellee on the one hadn, and appellant's predecessors in title on the other, had entered into a binding lease agreement as evidenced by a series of letters exchanged by them, which letters either constitute the true agreement between the parties, or alternatively constitute, together with the instrument identified as Exhibit, A, the agreement, or which, in any event, constitute circumstances attendant upon the execution of such instrument which conclusively prove an intention different from that contended for by appellant. Since these letters are so material to our discussion, they have been grouped in chronological order and attached as Exhibit B to this opinion.

The rules of law applicable to the contentions of the respective litigants, as above set forth, appear to be authoritatively discussed in Texas Jurisprudence, under the title 'Contracts', from Volume 10, page 54, Section 30, of which text we quote the following:

' § 30. Agreement ot be Reduced to Writing.-As to whether correspondence which shows that a written contract is contemplated is to be regarded as a contract in itself, or as merely preliminary negotiations, depends upon the intention of the parties as determined from the language used and the attending circumstances. Where the parties intend or agree that a contract entered into by them orally or through correspondence shall be embodied in a formal writing and signed by them before a binding agreement is consummated, there is no binding contract until has been done,-even though all the terms of the contract may have been agreed upon. * * * But if the parties have assented to all the terms of a contract, a mere reference to a future formal contract in writing does not negative the existence of a present contract; and if they intend that their agreement shall be effective from the time when it is made, it will be given effect from that time, though they agree or intend that a formal writing embodying its provisions shall subsequently be prepared and signed.'

The rule as thus stated has been recognized and applied frequently by courts of this State. Pierce Oil Corporation v. Gilmer Oil Co., Tex.Civ.App., Amarillo, 230 S.W. 1116; Diamond Mill Co. v. Adams-Childers Co., Tex.Civ.App., Austin, 217 S.W. 176; Gilbert v. Texas Co., Tex.Civ.App., Beaumont, 218 S.W.2d 906; Cranfill v. Swann Petroleum Co., Tex.Civ.App., Amarillo, 254 S.W. 582; Brillhart v. Beever, Tex.Civ.App., Amarillo, 198 S.W. 973. The cited authorities clearly hold tht the question of whether correspondence constitutes a contract or part of a contract, rather than preliminary negotiations without binding force until reduced to formal contract form, is one of law, in the determination of which, the court seeks to ascertain the intention of the parties.

When the correspondence composing Exhibit B of this opinion is examined in the light of the rules of law stated, it seems perfectly apparent to this Court that a binding contract had been entered into between appellee and appellant's predecessors in title prior to the execution and delivery of the formal contract identified as Exhibit A. Appellee was in possession of the property involved throughout the period covered by the correspondence, as a tenant under a previous agreement. The terms upon which she was to continue such possession for the ensuing four years appear to have been completely and fully agreed upon by the parties, and the consideration payable had been tendered and accepted, all before the formal contract was delivered. A binding and enforceable contract had been entered into whether or not the more formal document had ever been executed and delivered. From all of the circumstances, the conclusion seems inescapable that the parties intended the formal instrument to be merely cumulative of and further evidence of an agreement existing between them, rather than as superseding or altering such agreement. And when so considered, the conclusion seems equally clear that the contract between the parties contemplated that appellee was to have, as she contends, the right to plant and grow rice on all or any part of the leasehold throughout the term of the lease.

In reaching this conclusion we do not intend to hold that the formal contract indentified as Exhibit A, under the facts in this case, is capable only of that construction for which appellant contends. Even if that instrument alone be considered as evidencing the entire contract between the parties, the words therein must be given meaning by examining the instrument as a whole, in the light of the circumstances attendant upon its execution, for the purpose of ascertaining what the parties intended. The relationship between the parties, and the negotiations between them, if the letters be properly so considered, are most cogent circumstances attending the execution of the instrument, and are properly to be considered by the court in undertaking to ascertain the intention of the parties as evidenced by the words used. The rule that a contract should be construed more strongly against the party who drew it, and the rule that specific language will control the general terms, or the rule of ejusdem generis, so strongly urged by appellant in support of the construction for which he contends, are recognized rules of construction to be applied where intention is not otherwise ascertainable. But they can have no application where, as here, the intention of the parties is so apparent, and where their application would patently defeat rather than uphold the intention so manifested.

By points of error IV to VII, inclusive, appellant complains of the submission by the...