Miller v. Compton, 2495.

• Decision Date: 09 February 1945
• Docket Number: No. 2495.,2495.
• Citation: 185 S.W.2d 754
• Parties: MILLER v. COMPTON.
• Court: Texas Court of Appeals

Page 754

185 S.W.2d 754

MILLER v. COMPTON.

No. 2495.

Court of Civil Appeals of Texas. Eastland.

February 9, 1945.

Appeal from District Court, Knox County; Lewis M. Williams, Judge.

Suit by J. E. Miller against Bob Compton to recover rent under a written lease, wherein the defendant filed a cross-action to recover damages accruing by reason of having to surrender possession of leased land. Judgment for the defendant, and the plaintiff appeals.

Judgment reversed and rendered.

C. F. Sentell and John E. Sentell, both of Snyder, for appellant.

M. F. Billingsley, of Munday, and D. J. Brookreson, of Benjamin, for appellee.

LESLIE, Chief Justice.

J. E. Miller instituted this suit against Bob Compton to recover rent under a written contract whereby Miller leased for grazing purposes to Compton for a term of five years 4,160 acres of land in Knox and Foard Counties. The defendant Compton denied liability and alleged the plaintiff breached the lease contract, thereby relieving him from any further payments of rent. By way of cross-action defendant Compton sought to recover damages accruing to him by reason of having to surrender possession of the leased land and dispose of many of his cattle at a loss. Further, by way of cross-action, he charged Plaintiff Miller with wrongfully causing a writ of attachment to be levied on his property, resulting in both actual and exemplary damages. That the affidavit, etc., for the writ was false and the proceeding unlawful.

The trial before the court without a jury resulted in a judgment for Compton on the ground that said Miller breached the contract, relieving him, Compton, from the further payment of rents, but the judgment denied Compton any recovery for damages by reason of having to dispose of his stock on account of the loss of pasturage and also denied him any recovery of actual or exemplary damages by reason of wrongful attachment. The plaintiff appeals.

There are no assignments of error challenging the action of the court with reference to any phase of Compton's cross-action and no appeal is prosecuted from that part of the judgment denying him recovery of damages. The rights of the litigants are believed to turn upon the meaning and legal effect of the following provision in the lease contract as applied to the other undisputed facts and testimony in the case:

"This lease is made subject to sale at any time during the life of this lease, and in case of sale lessee agrees to give complete possession within thirty days after sale has been completed and receipt of written notice of such sale and demand for possession; however, it is understood and agreed that no sale of the above described land can be made by lessor, unless and until lessee has been given an opportunity to purchase the same at the same price and terms, and has refused to so purchase, or failed to so purchase, within ten days after offer has been submitted;

"In case of sale, lessee is to be reimbursed for all unearned rental previously paid."

It is the appellant's contention that said 30 day provision contained in the lease contract was for the exclusive use and benefit of the lessor and owner of the land, and that it could not be used by the lessee as an excuse for terminating the lease as hereinafter stated. That the trial court erred in concluding that J. E. Miller breached the lease contract in such way as to relieve Compton of the further payment of rents under the original lease contract. Points 1, 4 and 9 are briefed together, specifically presenting such contention from different angles.

The lease was for a definite term of five years from November 6, 1939, to November 6, 1944, for the sum of $1700 for the first year and $1456 each year thereafter, payable in semi-annual installments of $728 each in advance. The $1700 payment and the two $728 payments satisfied the rents under the contract until November 6, 1941.

July 6, 1940, J. E. Miller conveyed said land to his father, R. N. Miller. That conveyance was in form a warranty deed and placed of record July 21, 1941, in Foard County. J. E. Miller testified the transaction was a mortgage to enable him to procure financial assistance through his father, but the finding of the court is in effect that same was a conveyance of the title to the land. Be that as it may, the testimony is undisputed that insofar as that transaction (of July 6th) is concerned, neither of the Millers ever gave any notice nor took any steps to dispossess Compton and regain possession of the land as in the lease provided. Both J. E. Miller and Compton so testify. Later the lands, etc., were returned to J. E. Miller.

Compton testified that just before the November 6, 1941, installment of rent fell due he was told by a party named Davis that J. E. Miller had conveyed the land to his father, R. N. Miller, and that prompted by such statement he investigated and found such deed on the records in Foard County. That immediately thereafter he received from R. N. Miller a letter — postmarked November 8, 1941 — confirming the July 6th conveyance and stating that he desired to sell the land, and further saying in that letter to Compton:

"If you would be interested in buying it get in touch with me right away. I want to give you the first chance to buy, being you have it leased * * *."

Compton further testified that after finding said deed of record and receiving the above letter from R. N. Miller he did not pay the installment of rent falling due November 6, 1941, and thereafter. When asked about his failure to pay said installments of rent, Compton testified:

"Q. Did you pay him (J. E. Miller) then? If you didn't, why didn't you? A. Because it was deeded over to his Daddy (R. N. Miller.)"

Further on in his testimony and in response to questions by his own attorney Compton testified:

"Q. Would you have given the pasture up down there at all if you hadn't thought this fellow Davis had the right to demand possession of it? A. I sure wouldn't.

"Q. Did that cause you the loss you have alleged in your petition here? A. It sure did.

* * * * *

"Q. He told you he had bought it (the leased land) and you turned it over to him? A. Yes, sir.

"Q. You didn't deal with him until he showed you a written contract? A. That is right."

Compton also testified that when Davis informed him about the Miller deed of July 6th, he, Davis, also told him that "he bought the place from Miller's dad." That Davis at that time demanded possession of the land and he yielded same to him (Davis) about November 25, 1941, for a consideration of $200, which was about twice as much as the unearned rental paid in advance. For other reasons for his action in doing so, see Compton's testimony above. Compton also testified that Davis showed him a contract with R. N. Miller for the purchase of the land. That he did not know what became of the contract, and that he saw no deed whatever from R. N. Miller to Davis. That he did not know R. N. Miller's hand writing.

Davis did not appear and testify. His whereabouts were not definitely known, but possibly Mineral Wells. There is no competent evidence that R. N. Miller ever executed a deed to Davis and neither is there any statement, other than that above and properly objected to, that there was any contract by which R. N. Miller, or anyone else, was to convey said lands to Davis. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, pt. 6. Davis' interest in the matter is otherwise unexplained, but, as shown by the record, Compton apparently acted in material respects on Davis' representations.

Compton does not claim that he attempted to communicate with either R. N. or J. E. Miller concerning such claims and representations as were made by Davis, or that he otherwise endeavored to verify the same.

Obviously the transactions with Davis and the representations by the latter did not, under the circumstances of this case, justify Compton in surrendering the possession of the ranch to Davis or in his refusing to pay the balance of the rent to J. E. Miller, or his order.

The original lease was made subject to sale of the land at any time during the life of the lease. The lessee Compton agreed to give "complete possession within 30 days after the sale has been completed and receipt of written notice of such sale, and demand for possession."

The manner for terminating the lease by the lessor or owner is thus clearly expressed and is mandatory and in no other way could the lessor or owner terminate the lease. Until terminated in the way provided, the lessee was not legally disturbed in his right of occupancy and use of the premises for grazing purposes.

It is undisputed that no 30 day notice of sale, written notice, or demand for possession based on the conveyance by J. E. Miller to R. N. Miller was ever given lessee Compton. He affirms such fact. Therefore, as effecting his right to terminate the lease on any such ground, or violation thereof, the rule of law is:

"In the absence of any provision to the contrary in the lease, the established rule is that a sale of the...