Johnson v. Peckham

• Court: Texas Supreme Court
• Writing for the Court: Hickman
• Citation: Johnson v. Peckham, 120 S.W.2d 786, 132 Tex. 148 (Tex. 1938)
• Decision Date: 09 November 1938
• Docket Number: No. 7205.,7205.
• Parties: JOHNSON v. PECKHAM.

Page 786

120 S.W.2d 786

JOHNSON v. PECKHAM.

No. 7205.

Supreme Court of Texas.

November 9, 1938.

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

Suit by W. H. Peckham and others against F. T. Johnson, for an accounting, wherein defendant filed a cross-action. Judgment for defendant was reversed by the Court of Civil Appeals, 98 S.W.2d 408, and defendant brings error.

Judgment of Court of Civil Appeals affirmed.

Kilgore & Rogers and Ray Bland, all of Wichita Falls, for plaintiff in error.

Bonner, King & Dawson, Arch Dawson, and Bert King, all of Wichita Falls, for defendant in error.

HICKMAN, Commissioner.

A full and clear statement of the case was made in the opinion of the Court of Civil Appeals, reported in 98 S.W.2d 408. That court reversed the judgment of the trial court and remanded the cause for another trial. Since we have concluded that it entered the correct judgment, and that the case must be retried, it is not thought that a full restatement is necessary or desirable in this opinion.

Peckham and Johnson were operating two oil and gas leases, owning equal shares in the leases and sharing equally the profits and losses of the enterprise. They entered into a contract whereby Peckham agreed to purchase Johnson's interest for $1,500. The consideration of $1,500 was for an undivided one-half interest in the entire enterprise, but it developed that Johnson had parted with certain interests, and in order to complete the sale and deliver to Peckham that for which he had contracted it was necessary to purchase these outstanding interests and adjust an oil payment obligation outstanding against Johnson's interest. Accordingly there was deducted from the $1,500 consideration the amount necessary to perfect title to the full half interest, and Peckham paid Johnson the balance remaining. Shortly thereafter Peckham sold and delivered the entire property to third parties for a consideration of $10,500. Negotiations for this sale were begun, according to the findings, prior to the time when Peckham contracted for the purchase of Johnson's interest, and no disclosure was made by Peckham to Johnson of the fact that these negotiations were pending. In the trial court Johnson was awarded judgment against Peckham for $3,750, arrived at by deducting $1,500, the price paid by Peckham for the half interest, from $5,250, one-half of the amount for which Peckham sold the entire property to third persons.

The Court of Civil Appeals reversed the trial court's judgment and remanded the cause upon two grounds. One ground was that the damages were measured by an incorrect rule. It was held that, since the consideration of $1,500 was to be paid for an entire one-half interest, and since it developed that Johnson owned less than that interest, his damages should have been apportioned in accordance with his actual interest and not on the basis of a one-half interest. It would appear that the record required that holding, but for the reason assigned below, the question is not before us for decision and we make no authoritative pronouncement thereon.

Defendant in error points out that plaintiff in error did not complain of that ruling or decision of the Court of Civil Appeals in his motion for rehearing therein and contends that this court is therefore not authorized to consider the assignments in the application for writ of error complaining thereof. We have made a careful examination of the motion for rehearing filed in the Court of Civil Appeals and have concluded that it does not at all assign such ruling or decision of that court as error. It is well established by court rule and decisions that this court will not review questions not presented to the Court of Civil Appeals in a motion for rehearing therein. Rule No. 1 Governing Procedure in the Supreme Court; Savage v. Rhea, Tex.Com.App., 33 S.W.2d 429, and authorities there cited.

It is but due counsel that we make this observation: It appears that there was uncertainty in the minds for counsel for each party as to the ruling of the Court of Civil Appeals in its original opinion on this question. That doubtless was the reason such ruling was not assigned as error in the motion for rehearing. All doubt and uncertainty as to this ruling were removed in the opinion on rehearing and a second motion for rehearing was not filed. To our minds the original opinion clearly sustained the assignments presenting the matter. Be that as it may, the rule is fixed and unyielding that the question must be presented to the Court of Civil Appeals in a motion for rehearing as a predicate to...