Mecom v. Gallagher, 4493.

• Citation: 213 S.W.2d 304
• Decision Date: 10 April 1947
• Docket Number: No. 4493.,4493.
• Parties: MECOM v. GALLAGHER et al.
• Court: Court of Appeals of Texas

Page 304

213 S.W.2d 304

MECOM v. GALLAGHER et al.

No. 4493.

Court of Civil Appeals of Texas. El Paso.

April 10, 1947.

Rehearing Denied May 1, 1947.

Appeal from District Court, Zapata County; R. D. Wright, Judge.

Suit by H. Mecom against D. O. Gallagher and another to recover real property and quiet title. From the judgment, plaintiff appeals.

Judgment affirmed.

Neel, King & Rachal, Nat B. King, and F. J. Flores, all of Laredo, for appellant.

W. R. Blackshear and Gordon Gibson, both of Laredo, for appellees.

SUTTON, Justice.

This appeal is from the 49th District Court of Zapata County. The suit involves the title to certain described lands in Zapata County. On an appeal from an order on a plea of privilege the Waco Court held it was a suit for the recovery of the lands and to quiet the title thereto. Mecom v. Gallagher, et al., Tex.Civ.App., 192 S.W.2d 804.

On the verdict of a jury the trial court rendered judgment for the appellees, who were defendants below, and from that judgment the plaintiff has appealed.

Plaintiff based his suit upon the provisions of a grazing lease contract dated the 14th day of November, 1940, and to run for five years from December 1, 1940, wherein he was Lessee and fourteen "Owners" known as the Gutierrez heirs were Lessors. The provision relied upon for the recovery of the lands in paragraph "7" which reads as follows:

"7. Should the undersigned Owners, or any of the undersigned Owners, decide to sell said leased premises, or a portion thereof, or their interest in said premises, they agree to give tenant written notice of their desire to sell, which notice shall state consideration and terms upon which they are willing to sell, and name of purchaser, and the tenant herein shall have the preference right to purchase such land or interest therein for the consideration and upon the terms at which undersigned Owners may be willing to sell to a third person or persons. However, tenant must within thirty days advise such Owner or Owners of his willingness to purchase, subject to title, and such purchase must be consummated without any unreasonable delay on the part of said Tenant."

The record discloses that on or about December 21, 1943, the defendant, Gallagher, began negotiations for the purchase of the leased premises from the owners, the Gutierrez heirs. Gallagher entered into a purchase contract with the owners on January 31, 1944. The lands were conveyed by deed dated the 3rd day of July, 1944, by the owners to Gallagher.

Plaintiff's contention and first point of error is he was not given proper notice of the owners' desire to sell the leased premises and thus exercise his preference right to purchase the land under the terms of the lease, supra.

The facts are the lands were listed with Frederick P. Gonzalez, a real estate agent. Mr. Gonzalez prepared the following instrument:

                                       "Laredo, Texas
                                       "Dec. 21st, 1943
                "Mr. Harvey Mecom
                  "Mecom Ranch
                  "Zapata County
                

"Dear Sir:

"We the undersigned owners are using this means to inform you that we are willing to sell approximately 4563 acres more or less, out of Porciones Nos. 1 and 41, being and including all right, title, interest and ownership of Vendors herein and each of the Vendors herein, and to said porciones 1 and 41, including those certain three ranches known as `Rancho San Rafael', `Rancho Huizachito', and `Rancho Chaveno' for the consideration of five dollars per acre. The buyer must be willing to pay cost of surveying above described property as well as cost of abstract and title examination. This letter constitutes notice to you of our willingness to sell above described property and you have thirty days to purchase said property or forfeit your option, as provided for in our lease agreement.

                     "Yours truly,
                                             _________
                                             _________
                                             _________"
                

On its date the instrument was delivered to Mr. Mecom by Mr. Gonzalez, who was in company with Carlos Gutierrez, one of the owners.

Plaintiff says the instrument is insufficient to constitute notice, because it does not comply with the provision of the lease in that it does not give the name of the purchaser nor the terms; because it was not signed by the owners and was given without their authority, and because at the time the alleged notice was given the owners had no bona fide offer for the land, which plaintiff says occurred on February 4, 1944, when all the owners had confirmed the written contract of sale with Gallagher. To these we are unable to agree. On the other hand, the interpretation of Mr. Gonzalez as embodied in the "notice" is reasonably accurate. The contract merely requires the owners to give notice when they decide to sell, which shall state the consideration and terms upon which they are willing to sell, and name of purchaser, and confers upon the plaintiff the preference right to purchase for the consideration and upon the terms which the owners may be willing to sell to a third person or persons. The contract does not provide if the owners decide to sell and have a prospective purchaser, or any other kind of purchaser, bona fide, contract purchaser, or what not, who proposes or has agreed in writing to purchase upon named terms, then the owners shall give the plaintiff written notice of their decision and desire to sell, the terms offered or contracted for by such prospective, bona fide, or otherwise described purchaser, and that he shall thereafter have the preference right to purchase upon such consideration and terms. As pointed out above it merely required them, if they decided to sell, to give plaintiff notice of their desire to sell, the consideration and terms upon which they were willing to sell (and name of purchaser) and gave plaintiff the right to purchase for the consideration and upon the terms the owners were willing to sell to a third person or persons, not terms offered or contracted for. The mere fact they had negotiations going on with Gallagher added nothing to the duty of the owners, nor did it confer any right on the plaintiff he did not have had a proper notice been given prior to the commencement of the negotiations. Had they decided to sell and given plaintiff notice of it and named a consideration and terms upon which they were willing to sell to a third party or parties and had he not acted within the specified time it is thought they would have been at perfect liberty to sell upon those terms. In short, it is an agreement to give notice in writing of a determination and desire to sell upon specified terms with a preference right and option to purchase upon those terms. The use of the word "purchaser" in the context of the provision is mere surplusage. We do not hold that the use of "purchaser" in a proper relationship could not mean "prospective purchaser" or the like notwithstanding its generally accepted use and meaning. The intention of the parties is controlling, but when the terms of the instrument are unambiguous the intention must be determined from the instrument itself and if the terms give it a definite legal meaning the inquiry is concluded, and no intention at the time the contract was made, however discovered, can contradict or destroy the legal effect of the terms used. Reynolds et al. v. McMan Oil Co. et al., Tex.Com.App., 11 S.W.2d 778, at page 781, pars. 1, 2.

The question then arises, did the notice given under the circumstances meet the requirements of the provision? We think it did. It was in writing and identified the lands according to the description contained in the lease, and included "all right, title, interest and ownership" of each of the "Vendors" in said land and named the consideration and the terms upon which Gallagher purchased. It is true Mr. Gonzalez said he wrote it on his own initiative, but when he delivered it he was accompanied by Carlos Gutierrez, whom the plaintiff testified he had done all his trading with when he made the lease and purchased some cattle and so far as he was concerned he was the head of the family. The record further shows without dispute, when the notice was handed to Mr. Mecom he inquired who the purchaser was and was told, and asked for and immediately had a conference with Gallagher, in which Gonzalez and Carlos Gutierrez participated and others attended. The whole matter of the sale was discussed and other matters incident to the situation.

It was testified to and the jury found, at this conference Mecom stated to Gallagher and Carlos Gutierrez he would not be interested in buying on the terms, and that he, Mecom, was not willing to buy on the terms and did not give any notice of his intention to buy on them.

It is thought the notice in writing was not required to be signed since there was no provision to the effect that it must be.

We think it clear the parties originally interpreted the notice delivered on December 21, 1943, to be what was required under the provision of the lease. Mr. Mecom testified he discussed the matter at the meeting on that date with Mr. Gallagher and ascertained the conditions of the sale; and discussed the matter of selling Gallagher the remaining period of the lease and made him a price. He addressed a letter to Carlos and Calixto on January 4, 1944, and said: "In reply to your notice of December 21, 1943, stating the price asked for the land that I have leased at present will come to see you about same when I get down to my ranch. I expect to be there inside a week." He came down and offered $4.50 per acre, but said there was in addition thereto a proposal to release them from the obligation to build and repair any fences. It is elementary that the interpretation of an instrument by the parties is entitled to great weight.

Mr. Gonzalez wrote the notice but, as heretofore pointed out, he and Carlos were together when it was delivered and apparently Carlos had as much to do with the...