Houghton v. Thompson

• Decision Date: 29 July 1941
• Docket Number: 2191
• Citation: 115 P.2d 654,57 Wyo. 196
• Parties: HOUGHTON v. THOMPSON ET AL
• Court: Wyoming Supreme Court

115 P.2d 654

57 Wyo. 196

HOUGHTON v. THOMPSON ET AL

No. 2191

Supreme Court of Wyoming

July 29, 1941

APPEAL from the District Court, Niobrara County; HARRY P. ILSLEY Judge.

Action by Grant S. Houghton, trustee, against Christina Thompson otherwise known as Christina J. Thompson, and another for specific performance of a contract to convey an interest in oil and gas produced from a certain tract of land, and for recovery of accumulated royalty. Judgment for defendants, and plaintiff appeals.

Judgment affirmed.

For the appellant there was a brief and oral argument by James A Greenwood of Cheyenne.

The subject matter of the 2% agreement involves an interest in real estate. State v. Snyder, Treasurer, 29 Wyo. 163; Summers Oil and Gas, Vol. 3, Sec. 598; Mich. Law Review, Vol. 18, pp. 445-461; Tex. Co. v. Daugherty, 176 S.W. 717. The Minnelusa Oil Company was the agency through which the land was developed under the Huber lease, and eight wells had been drilled to production in March, 1940. The appellant as trustee and Christina G. Thompson executed an oil and gas lease to the Huber Corporation, which under successive assignments passed to the Minnelusa Company. The issue involved was whether lessee had forfeited the lease by abandonment. Appellant contends that the judgment below is unsupported by the evidence and is contrary to the law. Appellant was entitled to a decree of specific performance of the 2% agreement. Beam et al. v. Dugan (Calif.) 23 P.2d 58; Dabney-Johnston Oil Corp. v. Walden (Calif.) 52 P.2d 237. A grant is to be construed most strongly against the grantor. Callahan v. Martin, 43 P.2d 788; Burns v. Bastian (Okla.) 50 P.2d 377. For specific performance see Weber v. Texas Company, 83 F.2d 807; Luther v. Bank, 98 P.2d 667; McCubbins v. Simpson, 98 P.2d 49; Merrill v. Cattle Company, 26 Wyo. 219. Forfeitures are not favored. 12 Am. Jur. Sec. 435; Eiberton Cotton Mills v. Ins. Co., 145 A. 33; P. Wyo. Oil Co. v. Carter Oil Co., 31 Wyo. 314; American Co. v. Newman, 284 F. 835; Wyo. Co. v. Yarnell, 31 Wyo. 120. Williston Contracts, Sec. 675. The execution of the four instruments involved but one deal (20 Am. Jur., Sec. 1093) and should be construed together. 6 R. C. L. 850; Huyler v. Ritz-Carlton Company, 1 F.2d 491; William Landeke Co. v. Kalman, 93 A. L. R. 1393; 13 C. J. p. 528. Deeds are construed in favor of validity (18 C. J., Sec. 200), but as against grantor. See also Vol. 16, Am. Jur., Sec. 160; 12 Am. Jur., Sec. 226-227. Generally, construction favors mutuality and validity, 13 C. J., Sec. 512. As to damages for breach see Automatic Sprinkler Co. v. Sherman, 294 F. 533. Intent of the parties will control. Briggs v. Taylor, 60 P.2d 1081. Conditions precedent are to be complied with. Frank v. Handcock, 13 Wyo. 37. A contract will be construed to give it validity if possible. P. Co. v. Oil Company, 31 Wyo. 314; American Co. v. Grocery Co., 28 F. 835. An expression of opinion after performance is not entitled to any weight in determining validity of contract. Miller v. Robertson, 266 U.S. 243; 22 C. J. 469, 485; Calhoun v. Taylor, 159 N.W. 600; Montgomery v. Pierson, 145 N.E. 771; Provensal v. Michel et al., 265 P. 580; Henderson v. Coleman et al., 19 Wyo. 183; Beck v. Dye, 127 A. L. R. 1022. Appellant was managing a trust. Bryson v. Bryson, 216 P. 391. No oral testimony was relevant in construction of 2% agreement. Crawford v. El Paso Land Co., 201 S.W. 233, 238; Tibbals v. Keys, 40 Wyo. 524.

For the respondents, there was a brief by E. E. Enterline and Madge Enterline of Casper, T. C. Daniels of Douglas, and Thomas O. Miller of Lusk, and oral arguments by Messrs. Daniels and Enterline.

The trial court was right in its refusal to have the letter announcing its decision made a part of the record in this case. Sewell v. McGovern, 29 Wyo. 32; Stevens v. Laub, 38 Wyo. 182; Simpson v. Occidental Bldg. & Loan Ass'n., 45 Wyo. 425; Deadwood-Osage Oil Co. v. Walker, 46 Wyo. 428. We find no statement in appellant's brief that he proved the material allegations of his amended petition which were put in issue. Even if oral testimony had been offered by appellant and received in evidence in support of the allegations setting forth the alleged verbal agreement entered into between Houghton, Trustee, and the Thompsons prior to the execution of the written agreements, such testimony would have been incompetent. Stickney v. Hughes, 12 Wyo. 397; Reynolds v. Norton, 23 Wyo. 528; Bushnell v. Elkins, 34 Wyo. 495; Dunn v. Gilbert, 36 Wyo. 249; Carey v. Manfull, 41 Wyo. 476; Holly Sugar Co. v. Fritzler, 42 Wyo. 466; Barrett v. First National Bank, 50 Wyo. 502; 4 Jones Commentaries on Evidence, 2d Ed. p. 2854. The testimony of witness Garst with respect to the consideration for the ninety-nine year lease was excluded upon objection of appellant. We contend that this was error and that this court should consider the same, if it becomes necessary. New Hampshire Fire Ins. Co. v. Boler, 55 Wyo. 530. The case of Phillips v. Hamilton, 17 Wyo. 41, cited in appellant's brief is distinguishable under the facts of that case. The question of the payment of the consideration under the 2% agreement was not involved and said agreement was in fact without consideration. Shelley v. Portland Tug & Barge Company (Ore.) 76 P.2d 477; Schuler v. Myton (Kans.) 29 P. 163; Watson v. American Creosote Works, Inc. (Okla.) 84 P.2d 431, 433. The practical construction put upon the 2% contract, if not controlling, was of great weight. Denio Milling Co. v. Malin, 25 Wyo. 143; Rohrbaugh v. Mokler, 26 Wyo. 514; Holliday v. Templin (Wyo.) 103 P.2d 408. The authorities cited by appellant in support of his contention for specific performance do not support his position. The principles for which respondent contend with respect to specific performance are set forth in the opinion in Merrill v. Cattle Company, 26 Wyo. 219, 181 P. 964, and it will be noted that the case is well supported by other authorities. 65 A. L. R. Annotations pp. 57 to 69. Forfeitures are not favored by the courts, but we fail to find anything in the record in this case which warrants the application of the doctrine of forfeiture. Courts will not make contracts for the parties, nor interfere with them unless fraud or deception is charged. 13 C. J. 365; Fraser v. Walker (Colo.) 173 P. 1088; Gertner v. Limon National Bank (Colo.) 257 P. 247; Casper National Bank v. Currie, 51 Wyo. 264. The execution of the four instruments represents a single deal. Huyler's v. Ritz-Carlton Restaurant Co., 1 F.2d 491; 6 R. C. L. Sec. 240, p. 852; 13 C. J. 529. Courts will endeavor to construe contracts in favor of mutuality and validity. Taylor v. Briggs, 60 P.2d 1081. The case of Frank v. Stratford-Handcock, 13 Wyo. 37, cited by appellant, has no bearing upon the present case. A contract will generally be construed more strictly against the grantor. Miller v. Robertson, 266 U.S. 243. Expressions of opinion are not admissible as part of the res gestate. 22 C. J. 469, Sec. 558; Montgomery v. Pierson, 145 N.E. 771; Provensal v. Michel et al., 265 P. 580; Henderson v. Coleman, 19 Wyo. 183; Beck et ux v. Dye, 127 A. L. R. 1022; Sneider v. Big Horn Milling Co., 28 Wyo. 40; Jones on Evidence, 3d Ed., Sec. 236, p. 358.

KIMBALL, Justice. RINER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is an appeal in an action based on a contract to convey an interest in oil and gas produced from a 320-acre tract of land in the Lance Creek oil field. The relief demanded was specific performance of the contract, and recovery of accumulated royalty. The plaintiff and appellant is Grant S. Houghton, acting as trustee for himself and others who are described as his associates. The contract is evidenced by a writing, dated July 24, 1926, signed by plaintiff, Frank H. Thompson and Christina Thompson. The Thompsons were husband and wife. The husband died in 1927 and his widow, who became the owner of all property of his estate, is the interested defendant. The other defendant, Minnelusa Oil Corporation, is a mere stake holder, and when we speak of "defendant" we mean Mrs. Thompson. The judgment of the trial court was for defendant on a general finding, and plaintiff appeals.

The writing of July 24, 1926, will usually be called "the 2% agreement." After reciting the date and the parties, the Thompsons as first parties and the plaintiff as second party, it is as follows (paragraphs being numbered for convenience in reference):

(1) "WHEREAS, on or about the 19th day of December, A. D. 1918, first parties hereto did, by proper deed, convey to second party, as trustee, for himself and others, those certain lands as are hereinafter described and in such conveyance did reserve twelve and a half per cent of all petroleum oil or gas produced and saved on or under the said premises, and

(2) "WHEREAS, first parties hereto did thereafter by assignment convey a three and a half per cent out of such reservation so that the same at this time amounts to nine per cent only;

(3) "WHEREAS, first parties hereto are desirous that said land be drilled so that the oil and gas value thereof might be proven and to that end have interested one Richard L. Bryner of San Francisco in drilling the same and are anxious and desirous that second party make an arrangement and agreement with the said Bryner to drill the said lands and have agreed that in the event such arrangement or agreement is made they will convey to second party a two per cent interest in the said lands out of their remaining nine per cent, under the conditions as hereinafter expressed, and desire by this instrument to conclude and express such agreement.

(4) "NOW, THEREFORE, in consideration of the premises and of the mutual agreements hereinafter mentioned to be kept...