Pandem Oil Corporation v. Goodrich, 2402.

• Decision Date: 15 May 1930
• Docket Number: No. 2402.,2402.
• Parties: PANDEM OIL CORPORATION v. GOODRICH.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 877

29 S.W.2d 877

PANDEM OIL CORPORATION v. GOODRICH.^*

No. 2402.

Court of Civil Appeals of Texas. El Paso.

May 15, 1930.

Rehearing Denied June 5, 1930.

Appeal from District Court, Dallas County; E. M. Dodson, Special Judge.

Suit by the Pandem Oil Corporation against Robert D. Goodrich. From an adverse judgment, plaintiff appeals.

Reversed and rendered.

Winfrey & Lane, Murphy W. Townsend, Martin B. Winfrey, and Tom Scurry, all of Dallas, for appellant.

W. J. Rutledge, Jr., of Dallas, for appellee.

PELPHREY, J.

Appellee was the owner of an oil and gas lease on the whole of section 107, block 194, certificate 391, C. T. & M. C. Ry. Co. Lands, in Pecos county, Tex., containing 315 acres more or less.

He assigned the east 200 acres to the Pure Oil Company, the south 80 acres of the west 115½ acres to one Parten, and thereafter executed an assignment of the north 35½ acres of the west 115½ acres to appellant.

This suit was brought by appellant to rescind said last assignment and for the return of $25,000 alleged to have been paid to appellee for the assignment, and the further sum of $2,500 alleged to have been paid to a lease broker as a part of the consideration for said assignment.

Appellant based its right to rescission upon the ground of false representations as to the number of acres in the lease assigned to it, and by reason of the fact that appellee had reasonable grounds for knowing and believing and did believe and suspect that a shortage of acreage existed, but failed to disclose to appellant the facts known to him as to such shortage.

Appellee answered by general demurrer, special exceptions, general denial, and specially denied ever having made any representations as to the amount of acreage remaining unassigned, and alleged that it was understood and agreed by the parties at the time of the assignment that he would be absolved from any liability whatever growing out of the conveyance and the warranties therein contained.

In response to special issues the jury found: (1) That appellee represented to appellant that he owned a lease on at least 35½ acres of land; (2) that appellant believed such representations; (3) that appellant did not rely on such representations; (4) that the corner located by Dodd on the Pecos river as the southeast corner of section 70 and used by him in making his survey of the Runnels county school lands No. 3, in 1918, was not located at the same place that said corner was fixed by Kuechler in the original survey of section 70, in 1876; and, (5), that the location of the south line of section 70 made by Lea was at the same place as the line was located by Kuechler in 1876.

Judgment was rendered that the Pandem Oil Corporation take nothing, and it has appealed.

Opinion.

Appellee objects to the consideration of this appeal by this court for the reason that it has not acquired jurisdiction on account of the following facts: That the term of court at which the cause was tried expired by operation of law on June 1, 1929; that final judgment was rendered and entered on the minutes on that date; that no motion for new trial was filed until June 7, 1929, which was the succeeding term of court; that an order was entered overruling the motion for a new trial on June 17, 1929.

The decision of this question is governed by the provisions of our statutes as to practice and procedure in civil district courts in counties having two or more district courts with civil jurisdiction only, whose terms continue for three weeks or longer. Article 2092 Revised Statutes (Complete Tex. St.) 1928.

Subdivisions 28 and 29 of the above statute read:

"Subdivision 28: A motion for new trial filed during one term of court may be heard and acted on at the next term of court. If a case or other matter is on trial or in process of hearing when the term of court expires, such trial hearing or other matter may be proceeded with at the next term of the court. No motion for new trial or other motion or plea shall be considered as waived or overruled, because not acted on at the term of court at which it was filed, but may be acted on at the succeeding term or at any time which the judge may fix or to which it may have been postponed or continued by agreement of the parties with leave of the court. All motions and amended motions for new trial shall be presented within thirty days after the original motion or amended motion is filed and shall be determined within not exceeding forty-five days after the original or amended motion is filed, unless by written agreement of the parties filed in the case the decision of the motion is postponed to a later date."

"Subdivision 29: A motion for new trial where required shall be filed within ten days after the judgment is rendered or other order complained of is entered, and may be amended by leave of the court at any time before it is acted on within twenty days after it is filed."

The objection is not well taken, as the motion for new trial was filed within the ten days allowed by the statute and was overruled within the time provided for action thereon. Phil H. Pierce Co. v. Watkins, District Judge et al., 114 Tex. 153, 263 S. W. 905.

Among other assignments presented by appellant is one to the effect that the court should have peremptorily instructed the jury to return a verdict in its favor.

The reasons assigned by it for this contention are that the evidence disclosed as a matter of law that the acreage was materially less than 35½ acres; that the evidence is undisputed that appellee represented that he owned 35½ acres; that appellant believed such representation to be true, and relied thereon in making the purchase.

The trial court submitted no issue as to the amount of acreage, or as to whether there existed any material shortage.

The following issues, however, were submitted:

"Do you find from a preponderance of the evidence that the corner located by Dodd on the Pecos River as the southeast corner of Section 70 and used by him in making his survey of Runnels County School Lands No. 3, in 1918, was located at the same place that said corner was fixed by Kuechler in making the original survey of Sect. 70 Block No. 1, in 1876?" And—

"Was the location made by A. N. Lea, surveyor, in 1913 of the south line of Section 70 and used by him in preparing field notes of surveys 107 and 108 located at the same place as said line was located by Kuechler in 1876?"

As we understand the record, the question of whether a shortage exists depends upon the proper location of the southwest corner of the Runnels county school land No. 3, and the proper location of that corner depends upon the location of the southwest corner of section 70 and the south line of said survey.

In order that a better understanding may be had of the question here presented, and our discussion may be better understood, we are incorporating in the opinion a photostatic copy of Appellant's Exhibit 11:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The question of first importance is whether or not the evidence is sufficient as a matter of law to show the existence of a material shortage in the lease attempted to be assigned. It seems to be well settled in this state that where parties have contracted in ignorance or mistake of a fact material and essential in the inducement to and formation of the contract, which mistake injuriously affects the rights and interests of one of the parties under the contract, a court of equity will grant relief against the consequences of the mistake. O'Connell v. Duke, 29 Tex. 300, 94 Am. Dec. 282.

It seems also to be true that when the buyer of property finds that it is different from that for which he contracted, and therefore unsuitable for his purpose or unsatisfactory to him, or that it is inferior in quality or short in quantity, he has the privilege of returning it to the seller, and thereupon of rescinding the contract entirely.

1 Black on Rescission of Contracts, § 177, and authorities cited in note 1 to the text; Hart et al. v. Daggett (Tex. Civ. App.) 6 S.W.(2d) 143.

Therefore, if there is shown here a material shortage in the acreage conveyed by the purported assignment, and if the facts are sufficient to show that the sale was made upon a reliance by appellant that the acreage as called for was there, then we have a case in which appellant would be entitled to rescind the assignment.

The field notes of survey 70, as made by Kuechler in 1876, read:

"Beginning at a stone mound on the west bank of the Pecos River between two falls made for the upper corner of Survey No. 69, from which a forked hackberry bears west 9 varas; Thence west 4112 varas to a stake and mound, for southwest corner; Thence North 950 varas to a stake and mound; Thence east 3572 varas to a stone mound on the west bank of the Pecos River made for the upper corner of this survey; Thence down the river with its meanderings south 100 varas, south 31 east, 700 varas, south 35-¾ east, 308 varas, to the place of beginning."

Runnels county school land No. 3 is described in the original field notes as follows:

"Beginning at the southwest corner of Survey No. 70 made for the International & Great Northern Ry. Co. on the Pecos River in said County, Thence east 2494 varas to the northwest corner of Survey No. 69 made for the same Company; Thence South 950 varas to the southwest corner of said Survey 69; Thence East 1102 varas to the northwest corner of survey No. 68 for same Company; Thence south 950 varas to the southwest corner of said survey No. 68; Thence East 656 varas to the northwest corner of Survey No. 67, for same Company; Thence south 950 varas to the southwest corner of said Survey No. 67; Thence East 1910 varas to the northwest corner of Survey No. 66 for said Company; Thence South 950 varas to the Southwest corner of said Survey No. 66 for a corner of this Survey; Thence east 2177 varas to the northwest corner of Survey No. 65 for same...