Lehrer v. Wegenhoft

• Decision Date: 22 May 1947
• Docket Number: No. 11856.,11856.
• Citation: 203 S.W.2d 245
• Parties: LEHRER et al. v. WEGENHOFT et al.
• Court: Texas Court of Appeals

203 S.W.2d 245

LEHRER et al. v. WEGENHOFT et al.

No. 11856.

Court of Civil Appeals of Texas. Galveston.

May 22, 1947.

Rehearing Denied June 12, 1947.

Appeal from District Court, Colorado County; Lester Holt, Judge.

Action by Roy Wegenhoft and another against William K. Lehrer and others for specific performance of an alleged option to purchase realty, wherein the Skelly Oil Corporation and Chicago Corporation intervened. From a judgment in favor of the plaintiffs, the defendants and intervenors appeal.

Judgment reversed, and judgment rendered that plaintiffs take nothing by their suit.

Chas. D. Rutta and Miller & Rutta, all of Columbus, for appellants William K. Lehrer and others.

Robert Eikel and Royston & Rayzor, both of Houston, for appellants Hutchings-Sealy Nat. Bank and others.

Fred R. Switzer, E. D. Adams and Vinson, Elkins, Weems & Francis, all of Houston, for Skelly Oil Co. and others.

Massey & Hodges, of Columbus, for appellees.

MONTEITH, Chief justice.

This action was brought by appellees, Roy and Lavo Wegenhoft, for specific performance of a claimed option to purchase approximately 1366 acres of land in Colorado County, Texas. The option sought to be enforced had been granted to one Travis Smith by Hutchings-Sealy National Bank of Galveston, as executor and trustee, in a contract for the lease of said property. Appellees alleged that they had subleased the premises from Travis Smith and that the sublease agreement constituted an assignment of the lease and option to buy said land. They alleged that if they were mistaken in this and the sublease agreement did not have the effect of full assignment that it was then a mutual mistake of the parties as to the writing. They sought in the alternative reformation of the sublease agreement so as to include the option to purchase.

William K. Lehrer, and his associates, who had purchased said land by deed dated December 6, 1945, the Hutchings-Sealy National Bank, and Travis Smith were made parties defendant in the suit. Skelly Oil Corporation and Chicago Corporation, who held a mineral lease in said land, intervened.

In answer to special issues submitted a jury found in substance that Travis Smith and the Wegenhoft Brothers had intended and understood at the time of the execution of the sublease to appellees that the option to purchase the land in controversy was to be transferred to appellees and that the Wegenhofts had paid Travis Smith a valuable consideration for said option, and that a payment of $600 made by Lavo Wegenhoft to William K. Lehrer was not intended by him as an acknowledgment of Lehrer as his landlord.

Judgment was rendered in conformity with this verdict that the terms of the sublease from Travis Smith to appellees be reformed so as to vest the option to purchase said land in Roy and Lavo Wegenhoft upon the same terms as it had been conveyed to William K. Lehrer and others, and that the title to said premises be divested out of appellants William K. Lehrer and others and vested in appellees. An oil lease to Skelly Oil Company and Chicago Corporation was canceled.

The record reflects the following material facts: By instrument dated November 22, 1938, Hutchings-Sealy National Bank of Galveston, as executor and trustee of the estate of Ella B. Thompson, deceased, had leased the land in controversy to Travis Smith for a period of five years, with extension privilege of three additional years.

The following provisions of the lease are material to the appeal:

"The following farm and pasture lease contract made and entered into by and between Hutchings-Sealy National Bank of Galveston, as Independent Executor and Trustee of the Estate of Ella B. Thompson, deceased, hereinafter styled Lessor, and Travis Smith of Carroll County, Missouri, hereinafter styled Lessee,

"Witnesseth:

"1. The Lessor for and in consideration of the payments to it and the covenants in its favor hereinafter set out does hereby lease and let for pasturing and farming purposes only (with rice farming prohibited) unto the Lessee for the fixed period of five years beginning January 1st, 1939, and ending on and with the 31st day of December, A.D. 1944, all of the following described property, to-wit:

* * * * * *

"2. As full consideration and rental for said lease the said Lessee hereby agrees and promises to pay to said Lessor at its Bank in Galveston City and County, Texas, the total sum of Five Thousand Dollars ($5000.00), payable as follows, to-wit: * * * and, further, the Lessor reserves and shall be given one-fourth (1/4) of the gross of all pecan nuts gathered each year on said property, the same to be gathered and saved in a timely and thorough manner by the Lessee at his expense, and the Lessor's said one-fourth thereof to be shipped by him as and when directed by the Lessor, but at its sole expense.

* * * * * *

"3. The Lessor agrees to place Lessee in possession of said land and premises as of January 1st, 1939, as against present Lessees * * * but as to sub-tenants and share-croppers who may now be on said land and premises under some arrangement with said lessees whose term of lease is about to expire as aforesaid, the Lessee agrees to make such arrangements as he may see fit and can legally do, keeping such as he may desire and getting rid of others without any cost of liability whatever to the Lessor, and any and all expense whether of legal proceedings or otherwise in the event of Lessee seeking the eviction of any such sub-tenant or share-cropper from said premises shall be paid by the Lessee alone.

"4. Approximately one quarter of a mile outside fence is needed to completely enclose said land and premises. In the building of such outside fence the Lessee agrees to cut and haul the posts and furnish all labor and the Lessor agrees to furnish all wire and other material necessary therefor. * * *

"The Lessee may cut and use live standing timber for fence posts, braces and other fence building use in building new and repairing old fences on said property, and for necessary fire-wood for domestic use solely on said land and premises, but using therefor only timber having no value for lumber or other commercial purpose.

* * * * * *

"6. This property may be used for pasturage and the growing of any crops except rice, and may be subrented or subleased in whole or in part for farming and pasturage purposes only; but in no event shall the Lessee be relieved from the payment of rent or the performance of any other covenant upon his part hereby undertaken.

"7. Lessor reserves, and is hereby given the right to lease or contract for the exploration and development of all or any part of said property for oil or other minerals; in which case, such oil or mineral lease or contract must contain the usual and customary provisions as to the location of wells, the depth of pipes underground, and the payment of all damages to growing crops, etc.

"8. Should the Lessor, at any time during the term of this lease, have a bona fide offer for the purchase of same or any part thereof and should desire to sell the same at the price and upon the terms offered, the Lessee shall be entitled to and have the option to purchase same from Lessor at the same price and upon the same terms as the Lessor's best bona fide offer; but in the event that Lessee should not exercise such option to purchase and Lessor should sell said land and premises or any part thereof to another party, then and in such event the Lessee shall have at least twelve months notice in writing prior to October 1st, or January 1st, of each year, before he shall be required to vacate and deliver possession of said premises; and in the event he should be required by such notice to vacate on October 1st, of any year, he shall be entitled to remission of one-fourth of the rents for the current year."

By instrument dated May 22, 1944, Travis Smith subleased said premises to appellees, Roy and Lavo Wegenhoft, for the balance of the term of the original lease and its extension. The terms and provisions of the sublease material to the appeal are:

"This lease contract made and entered into by and between Travis Smith, hereinafter styled First Party, and Roy Wegenhoft and Lavo Wegenhoft, hereinafter called Second Parties, all of Colorado County, Texas, Witnesseth:

"1. For the consideration hereinafter mentioned, First Party hereby sub-leases and sub-lets, and by these presents do sub-lease and sub-let unto Second Parties, for pasturing and farming purposes, excluding rice farming, all that certain ranch or farm, partly cultivated and partly timbered and in pasture, containing some one thousand three hundred and seventy (1,370) acres of land, more or less, * * *.

"2. The term of this lease shall cover the period beginning with the date of this contract down to and including December 31, 1944, together with three (3) additional years from and after said December 31, 1944, it being the intention of the parties hereto to include in this lease the remainder of the time covered by the Lease between Hutchings-Sealy National Bank of Galveston, as Independent Executor and Trustee of the Estate of Ella B. Thompson, deceased, and First Party, dated November 22, 1938, and also the additional term of three (3) years, * * *.

* * * * *

"4. Should there at any time be any default in the payment of any rental, or in any of the covenants herein contained, then it shall be lawful for first party or the Hutchings-Sealy National Bank of Galveston, Texas, to declare this contract cancelled and terminated, and to re-enter said premises and remove all persons and property therefrom, without prejudice to any legal remedies which may be used for the collection of rent, all and every claim for damage, and/or by reason of re-entry, being hereby expressly waived.

* * * * * *

"7. It is understood that the original Lessor, Hutchings-Sealy National Bank of Galveston, as Independent Executor and Trustee, as aforesaid, has reserved, in...