McCarty v. Humphrey

• Court: Texas Supreme Court
• Writing for the Court: Stayton
• Citation: McCarty v. Humphrey, 261 S.W. 1015 (Tex. 1924)
• Decision Date: 21 May 1924
• Docket Number: (No. 462-3992.)
• Parties: McCARTY et al. v. HUMPHREY et al.<SMALL><SUP>*</SUP></SMALL>

261 S.W. 1015

McCARTY et al. v. HUMPHREY et al.^*

(No. 462-3992.)

Commission of Appeals of Texas, Section B.

May 21, 1924.

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

Action by T. D. Humphrey and others against Annie V. McCarty and others. From judgment of the Court of Civil Appeals (251 S. W. 609) reversing a judgment for defendants, they bring error. Affirmed.

Harris & Martin, of Wichita Falls, for plaintiffs in error.

Cook, Spencer & Bailey, of Wichita Falls for defendants in error.

STAYTON, J.

The district court decided in this case that there was an accord and satisfaction under which the defendants were released from the claim of plaintiffs. The Court of Civil Appeals held to the contrary. 251 S. W. 609. Whether the decision of that particular point was erroneous is the sole question presented in this court. A somewhat more extended consideration of the record than that afforded with sufficient emphasis by the application for writ of error justifies the conclusion that the judgment of the Court of Civil Appeals is final because dependent upon questions of fact.

The controversy arose by reason of a deficiency in acreage.

In 1919 T. D. Humphrey and several associates obtained from Mrs. Annie V. McCarty and her children an oil and gas lease on some land in Wichita county. The lease purported to cover 217 acres more or less, describing the premises by metes and bounds. The consideration paid by the lessees and received by the other parties was $21,700, which the testimony shows, from the wording of a preliminary contract, and otherwise, was intended to be at the rate of $100 an acre.

After the transaction was closed and the money had passed, the lessees had a survey of the property made, and discovered from it that, instead of 217 acres, there were only 131.4 acres in the tract that was covered by their lease, leaving a deficiency of 85.6 acres. On account of this deficiency the lessees made demand upon the lessors for the return of a proportionate part of the consideration that had been paid them, at the rate of $100 an acre; that is, for the return of $8,560. A repayment was effected as a result of this demand, but in the sum of $6,520 only. Thereafter, all of the associates, excepting one presently mentioned, brought this suit against all of the lessors for the balance of the amount claimed to be due on account of the deficiency; that is, for $2,040.

The defendants presented a plea in abatement as to certain minors amongst them, and pleaded in bar to the effect that there had been an accord between the parties, and that, under it, the $6,520 was not a mere payment, but was a satisfaction, and that therefore the plaintiffs should not recover anything.

The trial court sustained the plea in abatement, thus dismissing as to several of the defendants; and rendered judgment that the plaintiffs take nothing against the rest of the defendants. This latter judgment was based upon the district judge's findings to the effect that there had been an accord and satisfaction as between the parties.

The judgment, as stated, was reversed by the Court of Civil Appeals upon the ground that the evidence showed no accord and satisfaction, in that it showed no intention to effect that end, and no consideration whereby the payment of the lesser amount could have that result.

Preliminary to a discussion of the question presented in this court, and by way of restricting it to its actual scope and of explaining the meaning of what will be said, several observations become necessary. It was assumed below, and is not challenged in any way, that all the parties acted through one or more representatives. This assumption will be indulged at this time, and the parties referred to as if all were present at the negotiations which are involved in the case. The Court of Civil Appeals held that the plea in abatement as to the minors was correctly sustained. The parties are acquiescing in this holding, and it will not be disturbed. The record may or may not present some question as to whether the lease was made by the acre or in gross, but, as neither of the courts below concluded that relief was closed to plaintiffs on the latter theory, and as there is no complaint here involving the point, it will not be further investigated. The parties all seem to accept the measure of damages as being certain in amount as of the time when the shortage was discovered. There seems to have been no dispute as to that. The only dispute (if such it was) appears to have arisen over a payment to a real estate agent presently explained.

In examining the question of whether or not the decision of the Court of Civil Appeals was correct, it will be well first to quote, and at the same time to concur in, the following rule as stated by that court:

"It is well settled, elementary in fact, that an agreement, not supported by a consideration, for a creditor to receive a less sum than the whole, will not discharge the debt. Lanes v. Squyres, 45 Tex. 382, 385."

To this may be added the equally elementary principle that accord and satisfaction, being dependent upon agreement, only occurs where the parties mutually assent to it. There intention is a controlling element. In such a transaction "there can be no agreement expressed or implied when both parties have no intention to make it, or when one has but the other has not." Railway v. Gordon, 70 Tex. 85, 7 S. W. 697.

While other rules pertaining to the subject under discussion are suggested and might be properly examined, it is thought that the foregoing, when applied to this case, demonstrate that the Court of Civil Appeals reached a decision that cannot be disturbed by the Supreme Court; no conclusive evidence appears to establish an assent of the parties to an agreement that the amount repaid by defendants was in full satisfaction of plaintiffs' entire claim; nor to establish a consideration for such an agreement.

An examination of the statement of facts discloses that a court or jury could reasonably have found that the evidence established the following case:

At the time defendants returned the $6,420, representing $75 an acre for the deficiency, there was a distinct understanding that plaintiffs' part of the balance of $25 an acre would be repaid. The one of plaintiffs' associates who, as already stated, did not become a plaintiff in the suit, waived his one-fifteenth interest in the $25 an acre in order to induce defendants to agree to repay...