Kistler v. Latham

• Decision Date: 28 November 1923
• Docket Number: (No. 394-3730.)
• Citation: 255 S.W. 983
• Parties: KISTLER et al. v. LATHAM et al.
• Court: Texas Supreme Court

255 S.W. 983

KISTLER et al. v. LATHAM et al.

(No. 394-3730.)

Commission of Appeals of Texas, Section B.

November 28, 1923.

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

Action by W. H. Latham and another against E. L. Kistler and others. Judgment for defendants was reversed and rendered by the Court of Civil Appeals (235 S. W. 938), and they bring error. Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.

Weeks, Morrow & Francis, of Wichita Falls, and Chas. L. Black, of Austin, for plaintiffs in error.

Bullington, Boone, Humphrey & Hoffman, of Witchita Falls, for defendants in error.

McCLENDON, P. J.

This was an action for damages by Latham and others against Kistler and others for alleged breach of a contract for the sale of an oil and gas lease. Defendants recovered in the trial court, and the Court of Civil Appeals reversed that judgment, and rendered judgment for plaintiffs. 235 S. W. 938.

The controlling question in the case is whether a parol modification of the contract was within the statute of frauds. The contract is copied in full in the opinion of the Court of Civil Appeals, and a very full statement of the case is made. It will therefore only be necessary to give a brief outline of the pertinent facts as applied to the question involved. The contract sued upon was a complete document in every respect, and set forth all of the terms of the agreement between the parties. Under it Kistler agreed to sell, and Latham and others agreed to buy, a certain oil and gas lease owned by the former, covering a 10-acre tract of land. The consideration to be paid by Latham and others was $40,000, $10,000 of which was to be cash, and the balance represented by three notes for $10,000 each. Latham and others also agreed to secure these notes by deed of trust upon the oil and gas lease and in addition upon two sections of land; and it was expressly stipulated that this land "shall be free from any and all incumbrances, and the title good in W. H. Latham and C. W. Delp. This information shall be furnished to parties of the first part before the delivery of the assignment as herein provided." The transfer of the lease was to be made within five days from April 18, 1919. It appears that one of the sections of land was incumbered to the extent of 97½ cents per acre, which amount was due the state for purchase money, and it was impossible for Latham et al. to remove this incumbrance within the time limit provided in the contract. Plaintiffs claimed that, after the execution of the contract, the attention of defendants was called to this provision, and it was explained to them that the incumbrance could not be raised within a reasonable length of time, and it was thereupon agreed that the contract should be varied so as to allow the incumbrance caused by the indebtedness to the state to stand against the land, and that, in pursuance of this agreement, plaintiffs procured two certificates from the abstracter at a cost of $10 each, showing the land otherwise free from incumbrances and good title in plaintiffs. Defendants, however, declined to execute the transfer of the oil and gas lease.

Plaintiffs contend that under their pleading and evidence there was full performance of the modified contract on their part, which was accepted by defendants, and that there was, therefore, a full accord and satisfaction which would take the oral modification of the contract out of the operation of the statute of frauds. We are clear in the view that the evidence will not support this contention. However, the question is otherwise eliminated from the case, for the reason that the only issue submitted to the jury, outside of whether the land was homestead and therefore not subject to a valid deed of trust lien, was whether the verbal modification of the contract as alleged was in fact made, and if so, whether acting under and relying upon it plaintiffs incurred expenses and otherwise complied with the contract. Both of these questions were answered by the jury in the affirmative. Notwithstanding the verdict, the trial court rendered judgment for the defendants. In so doing, the court filed written conclusions of law which are fully set up in the opinion of the Court of Civil Appeals, and are to the effect that evidence supporting the verbal modification of the contract was admitted over objections, and the issues thus raised were submitted to the jury, because the court was in doubt as to the law applicable to the case, and in order that the whole case might be settled upon appeal. The court further say:

"After a more careful examination of the authorities furnished me, and some independent investigation on my own part, I have concluded that the provision of the written contract referred to above was of such nature as could not be verbally waived, and that the verbal agreement was, in effect, a new contract for the sale of an interest in land, or that at least it attempted to vary and modify the terms of the written agreement, and not being in writing, was therefore unenforceable either in an action for specific performance or for damages. But for my view as to the effect of the statute of frauds, I would be compelled to render judgment for the plaintiffs, but, believing as I do that the statute of frauds is applicable, it is my opinion that notwithstanding the verdict that judgment should be rendered for defendants."

It will thus be clearly seen that the case was tried in the trial court upon the theory that the only issue of law in the case was whether the verbal modification of the contract came within the statute of frauds. If plaintiffs sought recovery upon any other theory. it was incumbent upon them to request the submission of issues involving such theory; and, having failed to do so, such theory...