L. A. Durrett & Co. v. Iley
| Decision Date | 01 November 1968 |
| Docket Number | No. 17129,17129 |
| Citation | 434 S.W.2d 367 |
| Parties | L. A. DURRETT & COMPANY et al., Appellants, v. J. M. ILEY, Appellee. . Dallas |
| Court | Texas Court of Appeals |
Shirley W. Peters, Denton, for appellants .
Bill Cox, of Woodruff, Hill, Bader & Kendall, Dallas, for appellee .
Appeal from a summary judgment which decreed that a written agreement was unenforceable. J. M. Iley, alleging that he was the owner of certain land in Dallas County, instituted this action against L. A. Durrett & Company and L. A. Durrett, individually, seeking injunctive relief restraining defendants from removing dirt and gravel from the real property involved, and also asking that the court decree that a certain agreement between the parties relative to the removal of certain described materials be declared to be void and ineffective. The parties entered into a stipulation which eliminated the necessity for further hearing on the injunctive feature of the case. Thereafter Iley filed his first amended original petition in which he prayed that the written instrument signed by the parties involved, a copy of which being attached to the amended petition, be declared null and void or, in the alternative, that same be considered breached and terminated. Contemporaneously with the filing of the amended petition, Iley filed his motion for summary judgment, supported by affidavit. Both defendants responded with their first amended original answer and also filed a cross-action seeking affirmative relief in the form of money damages. Defendants also filed a response to the motion for summary judgment, same being supported by affidavit. The trial court heard the motion for summary judgment and sustained the same to the extent of holding that the written agreement in question, being terminable at will, is not enforceable. Thereafter defendants sought and were granted nonsuit on their cross-action thus eliminating all questions except those disposed of by the order sustaining the motion for summary judgment. Final judgment, adopting the prior order sustaining the motion for summary judgment insofar as the illegality of the written agreement was concerned, was entered by the trial court and this appeal follows.
The facts are without dispute. On September 16, 1965 Mr. Iley and Mr. Durrett executed an instrument which had been written by Mr. Durrett on a letterhead of L. A. Durrett & Company, said instrument being reproduced as follows:
Exhibit 'A'
L.A. Durrell & Company
EXCAVATING-GRADING-PAVING
3923 WEST CLARENDON PHONE FE 7-1984
DALLAS, TEXAS
9/16/65
Mr. J. M. Iley agrees to sell one North West Model 25 dragline, with 45' boom, 3/4 yd. drag bucket. TOTAL selling price cash $5,000.00
SAND pit and gravel Lease Agreement. Approx. 200 Acres, located WEST of Hwy. 175 and Roosevelt Addition. More or Less.
L. A. Durrett agrees to pay royalty on the dirt and gravel as follows:
Sandy loam ($0:15) fifteen cents per cu. yd.
Sand fill ($0.10) ten cents 'per cu. yd.
Pit gravel ($0.35) thirty-five cents per cu. yd.
Payments of all royalties are to be paid each Tuesday of each week.
Failure to pay royalties will cancel lease agreement, unless otherwise agreed to by the land owner.
No digging will be permitted within 500 ft. of Hwy. 175.
The road going to the back field is to remain.
Now pits can be opened by the approval of land owner.
Black dirt ($0.20) twenty cents per cu. yd. Land that is rented to be excluded.
AGREED:
___________________________
(Mr. J.M. Iley, owner)
___________________________
(L.A. Durrett, Leasee)
Durrett entered the premises in question and did remove therefrom certain quantities of loam, sand fill, pit gravel and black dirt. It was his contention that he paid Iley for the material so removed on the basis of the agreement. The trial court construed the instrument as being one terminable at will and therefore not enforceable.
By their first point of error appellants for the first time contend that inasmuch as appellee Iley is not shown by the record to be the owner of the real estate involved that he therefore has no litigable interest and cannot maintain the cause of action to cancel the agreement. This contention is without merit. Iley did allege in his original petition that he was the owner of the premises involved and no issue was raised in the trial court concerning such fact. Indeed, appellants themselves admitted in their first amended answer and cross-action that Iley was the owner of the premises involved. Moreover, in Durrett's affidavit in opposition to the motion for summary judgment he asserts that Iley was the owner of the land in question. Finally, the record reveals that the written agreement itself refers to Iley as the owner.
In their second point on appeal appellants complain of the action of the trial court in passing upon the motion for summary judgment prior to the time they were required to file an answer in response to the amended petition. This procedural point is without merit and is overruled. The motion for summary judgment was filed on November 19, 1965. On November 29, 1965 appellants filed their first amended original answer and cross-action and on December 3, 1965 they filed a response to the motion for summary judgment as well as a motion to dismiss or strike same. At no time did they assert that they were entitled to a continuance or that they needed further time to answer the motion. The court proceeded to hear the motion for summary judgment on December 3, 1965 and thereafter appellants objected to the proposed form of order but at no time presented the complaint now asserted. Appellants have completely failed to demonstrate that the trial court committed reversible error in this regard. Chalkley v. Ashley, 392 S.W.2d 752 (Tex.Civ.App., Dallas 1965).
This brings us to a consideration of the principal points advanced by appellants. First, they assert that the instrument in question is not to be considered as an ordinary lease but is in reality a conveyance of various strata of the...
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