Landrum v. Turney

• Decision Date: 02 March 1922
• Docket Number: (No. 1285.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 239 S.W. 366
• Parties: LANDRUM v. TURNEY.
• Court: Texas Court of Appeals

239 S.W. 366

LANDRUM v. TURNEY.

(No. 1285.)^*

Court of Civil Appeals of Texas. El Paso.

March 2, 1922.

Rehearing Denied March 30, 1922.

Error from District Court, Brewster County; Jas. Cornell, Judge.

Suit by A. M. Turney against B. W. Landrum and H. G. Landrum. Judgment of dismissal as to last-named defendant and for plaintiff as against first-named defendant, and the latter brings error. Affirmed.

Mead & Metcalfe, of Marfa, for plaintiff in error.

A. M. Turney and W. Van Sickle, both of Alpine, and W. B. Teagarden, of San Antonio, for defendant in error.

HARPER, C. J.

A. M. Turney brought this suit against N. G. and B. W. Landrum for specific performance of a contract to execute a lease of oil lands, and in the alternative for damages for breach of the contract. The plaintiff dismissed as to N. G. Landrum. Plaintiff also dismissed his suit for specific performance.

From a judgment in favor of plaintiff for $16,000 and dismissal as to N. G. Landrum, B. W. Landrum appeals.

The sole question here is whether plaintiff's petition is subject to general demurrer. The judgment being for damages for breach of the contract, we quote the portions of the original petition applicable thereto:

"That B. W. Landrum is the owner of the lands," describing the sections.

"That during the month of May, 1920, plaintiff had several letters from the defendant B. W. Landrum with reference to leasing said land to plaintiff for oil and gas, and particularly the letter of date May 19, 1920, in which letter defendant B. W. Landrum agreed to lease to the plaintiff all of his said lands for oil and gas for the sum of $3.50 per acre, with $1 per acre per year rental; that plaintiff on said date accepted said offer * * * by telegram dated May 22, 1920, which telegram was duly received by the defendant early in the morning of May 23, 1920; that said letter from said defendant to the plaintiff offering to lease said lands to the plaintiff on terms and the plaintiff's answer by said telegram thereby constituted a complete contract.

"That the defendant B. W. Landrum has failed and is refusing to carry out his said contract and execute a lease to said lands for oil and gas in accordance with said contract; that plaintiff is ready, able, and willing to comply with his part of said contract and had deposited in the First National Bank of Alpine, Tex., sufficient funds to pay the original and first lease money called for in said contract. All of which has been brought to the knowledge of the defendant."

(Next paragraph alleges a fraudulent transfer of the lands to N. G. Landrum to defeat plaintiff's cause of action.)

"Plaintiff brings this suit for the purpose of compelling the defendant B. W. Landrum to perform his contract and execute a good and sufficient lease for oil and gas on said lands on the terms and conditions provided for in said contract and to execute said lease on the usual commercial form of lease known as `producers' 88 form lease' for a term of five years with the usual one-eighth oil royalty to the owner of the lands and the usual cash rental for any gas well and providing for the rental mentioned in said contract; that by reason of the fact that said B. W. Landrum failed and refused to make aforesaid lease to plaintiff as above set out the plaintiff has been damaged in the sum of $16,000; that in case said B. W. Landrum for any reason cannot carry out the contract as mentioned above by making the plaintiff herein a good and sufficient lease in law that then and in that event the defendant, B. W. Landrum, or his assignee, N. G. Landrum, be required to pay plaintiff herein the said sum of $16,000 as damages for failure to make said lease to the above described lands."

The defendants' answer contains general demurrer and general denial.

The first proposition is that the petition: (a) Fails to set out any facts showing in what manner the alleged breach of contract damaged the plaintiff, said petition only showing nominal damages as a result of said breach; (b) fails to state when the lease was to begin and when it should terminate; (c) fails to show whether the lease was written or verbal, and that same was not for a longer period than one year; (d) that the allegations are too indefinite, vague, and uncertain, and state no cause of action.

As to propositions (a) and (d) we are of the opinion that the petition states a cause of action for breach of contract, but, if not, that every fact necessary to sustain the recovery may be deduced from the allegations contained in it by fair implication.

If either of the conclusions noted are correct, the assignment must be overruled. The facts: A contract to convey was alleged, a wrong, to wit, its breach and consequent injury, with prayer for relief.

In this case the general demurrer was not urged nor ruled upon by the trial court; consequently it is presumed to be waived. The case went to trial before the court, and the judgment entered recites consideration of the pleadings and hearing of the evidence, and that the court finds plaintiff suffered actual damages in the sum sued for.

We are therefore of the opinion that the defect, if any, in the allegations are cured by the verdict and judgment. Schuster v. Frendenthal & Co., 74 Tex. 53, 11 S. W. 1051; Insurance Co. v. Woodward, 18 Tex. Civ. App. 496, 45 S. W. 187; Shropshire v. Adams, 40 Tex. Civ. App. 339, 89 S. W. 448.

The petition sufficiently states a cause of...