Lambert v. Gant

• Decision Date: 13 November 1926
• Docket Number: (No. 11638.)
• Citation: 290 S.W. 548
• Parties: LAMBERT v. GANT et al.
• Court: Texas Court of Appeals

290 S.W. 548

LAMBERT v. GANT et al.

(No. 11638.)

Court of Civil Appeals of Texas. Fort Worth.

November 13, 1926.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Suit by B. Lambert against G. N. Gant and others. Judgment for plaintiff, and, from a judgment granting motion for new trial, plaintiff appeals. Affirmed.

E. E. Fischer and T. F. Hunter, both of Wichita Falls, for appellant.

Kay, Akin & Smedley, of Wichita Falls, for appellees.

CONNER, C. J.

This suit was instituted by appellant, B. Lambert, in the district court of Wichita county on the 6th day of August, 1925, complaining of G. N. Gant and wife, Emma Gant, and W. P. Stokes and wife, Annette Stokes, alleging that on or about the 20th day of October, 1924, the plaintiff and defendants entered into "a written agreement" whereby the defendants agreed to execute and deliver to the plaintiff in escrow with the Wichita State Bank & Trust Company, of Wichita Falls, an oil and gas lease on what is commonly known as "producers' 88 form," on a tract of land described in the petition, and alleged to have been owned jointly by the defendants; a copy of the contract being attached to the petition as an exhibit. It was further alleged that, as a consideration for the delivery of the said oil and gas lease, the plaintiff agreed to commence the drilling of a well for oil or gas on a tract of land near that described in the lease, and, after beginning the same, to prosecute such drilling with reasonable diligence until the well should be completed to a depth of 1,800 feet unless oil or gas should be discovered at a lesser depth; that the contract further provided that, if the plaintiff should in good faith begin operations for drilling said well within the time specified, then said Wichita State Bank & Trust Company was authorized to deliver the lease to the plaintiff.

It was alleged that the lease in the form specified in the contract had been executed by defendant G. N. Gant and his wife, Emma Gant, and W. P. Stokes, and deposited with the bank in escrow, but that the same had not been signed or executed by the defendant Annette Stokes; that, after the plaintiff had commenced the drilling of a well as provided for in said contract, "he had a purchaser for said 50-acre lease, and, upon investigation at the bank, the escrow holder, he discovered that said lease had in fact not been signed by the defendant Annette Stokes, and the defendants and each of them and through their agents upon inquiry by plaintiff had told plaintiff that said lease had been signed by all of said defendants and had been placed in escrow with said bank, and plaintiff, relying on the statements that the lease had been executed as represented and as called for in the contract, began the operations of said lease and prosecuted the same with due diligence to its completion, and through the fraud and misrepresentations on the part of the defendants that said lease had been executed in legal form plaintiff was unable to make title to said lease and was thereby damaged in the sum of $5,000, the reasonable market value of said lease after the well was commenced; that, if defendants had delivered said lease in due and legal form, with all the signatures of the defendants, he could have sold the same for the sum of $5,000 cash, and, although often requested, defendants and each of them have failed and refused to pay the same, to his damage in the sum of $5,000; that defendants and each of them, by virtue of said written contract, became obligated and bound and promised to deliver said lease with all the signatures for a valid lease to said land to plaintiff, and thereby became liable to plaintiff for the damages incurred; * * * that plaintiff relied on the representations of defendants and their agents that said lease had been signed and acknowledged by all parties concerned, and acted on such representations and began the drilling of said well as he had contracted and spent his money for the drilling of the same, and in good faith believed said representations of defendants to be true, and, if said representations had been true, plaintiff would have been able to sell said 50-acre lease for the price above specified, and through the fraud and misrepresentations on the part of defendants plaintiff is damaged in the sum of $5,000 as aforesaid," for which he prayed judgment.

The contract declared upon and attached to the petition as an exhibit reads and is signed as follows:

"The State of Texas, County of Wichita.

"Know all men by these presents: That this escrow agreement, made and entered into this 20th day of October, 1924, by and between W. P. Stokes and wife, Annette Stokes, G. N. Gant and wife, Emma Gant, party of the first part, and B. Lambert, party of the second part, witnesseth:

"(1) That party of the first part is the owner of a certain tract of land in Archer county, Tex., fully described in the original lease hereto attached.

"(2) That party of the second part has agreed to begin operations for the drilling of a well on the following described tract of land: Block 66 Lula P. Hunt subdivision of Brazos county school lands of W. P. Coleman ranch—Said well to be drilled in the southeast corner of said above-described tract of land, on or before 30 days after approval of title to said land, and that, after having begun said operations, to prosecute them with reasonable diligence until said well is completed to a depth of 1,800 feet, or to what is known as the `big lime,' if same is found at a lesser depth, unless oil or gas is found in paying quantities at a lesser depth; and, in case said operations are not begun within said time, or are not prosecuted with reasonable diligence, or is not drilled to oil or gas in paying quantities or to a depth of 1,800 feet, unless the `big lime' is encountered at a lesser depth, then, as liquidated damages the lease hereto attached shall be forfeited to the lessors, and this contract to become null and void as to both parties.

"(3) Party of the first part is to execute an oil and gas lease on what is commonly known as a producers' form 88, to second party, which said lease is to be placed in escrow, together with this contract, in the Wichita State Bank & Trust Company, of Wichita Falls, Tex. If second party shall in good faith begin operations for drilling of said well within the time above specified, then said bank is authorized to deliver the attached lease to second party; but, upon failure to so begin operations, same shall be returned to first party as undelivered, and shall thereafter be of no force and effect.

"(4) Party of the first part agree to furnish an abstract of title brought down to date for examination purposes only, covering the land described in attached lease, showing good and merchantable title in him, in and to the oil and gas mineral rights upon the land described in attached lease, and should said title be found not good and merchantable in first party, and he is unable to perfect the same within a reasonable time this contract shall wholly terminate as to both parties hereto.

                "Witness our hands this ____ day of January
                1924.                    W. P. Stokes
                                        "G. N. Gant
                                         "First Parties
                                        "B. Lambert,
                                         "Second Party."
                

The defendant answered by a general denial and specially that the lease had been forfeited by the failure of plaintiff to drill the well as specified in the contract or to pay rentals due on the lease May 7, 1925.

The case was submitted to a jury on special issues, in answer to which the jury found that the defendants Gant and Stokes had agreed with the plaintiff that the lease deposited in the bank should be signed by Mrs. Stokes, and that the failure of Mrs. Stokes to sign the lease caused the plaintiff to lose the sale of the same. They further found that the reasonable market value of the lease at the time it was offered to Beaudoin, in April, 1925, was $25.00 per acre. Special issue No. 4 was as follows:

"Did either of the defendants inform plaintiff, Lambert, that a lease had been deposited in the bank executed by all parties in the contract?" To this issue the jury answered "Yes."

Upon the introduction of the evidence, the defendants requested a peremptory instruction in their favor, which was refused, and also objected to the submission of the issues presented on the grounds, among others, that the suit was based on a contract in writing, and that it was a question of law to be determined by the court whether the written agreement required the signature of Mrs. Stokes, and for the further reason that there was no evidence proving or tending to prove that the failure of Mrs. Stokes to sign the lease caused the plaintiff to lose the sale of the same. All exceptions of defendants were overruled, and the court entered judgment for the plaintiff against G. N. Gant, Emma Gant, W. P. Stokes, and Annette Stokes "jointly and severally" for the sum of $1,250, with interest at 6 per cent. from the date of the judgment, and all costs.

The defendants seasonably filed their motion for a new trial. The motion covers eleven pages of the transcript, and contains some 28 grounds or reasons why the new trial should be granted as prayed for. We do not deem it necessary to detail all of the grounds of the motion, but, in substance, the defendants complained of the judgment, among other things, on the ground that the court should have determined as a matter of law whether the contract filed by G. N. Gant and W. P. Stokes constituted a binding obligation on their part to secure the signature of Mrs. Stokes to the lease in contemplation of the parties, and, further, that the undisputed evidence was to the effect that the defendants did execute and place in the bank a valid lease; that there was no evidence that the lease as executed was valueless; that the court erred in permitting the plaintiff,...