Peeler v. Smith
| Decision Date | 12 June 1929 |
| Docket Number | (No. 8233.) |
| Citation | 18 S.W.2d 938 |
| Parties | PEELER et al. v. SMITH. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
Action by Albert C. Smith, lessee, against Alice Peeler and others, lessors, for damages on account of the lessors' breach of a lease contract. Plaintiff recovered judgment for damages, and defendants appeal. Reversed and remanded.
C. J. Matthews, Clamp & Searcy, and Terrell, Davis, McMillan & Hall, all of San Antonio, for appellants.
Matlock & Kelly, of San Antonio, for appellee.
Appellee sued appellants and obtained judgment for the cancellation of a lease to bore for oil or gas on land belonging to appellants in Atascosa county, Tex. The contract was strictly a drilling contract. The appellee was to have a lease on the Peeler ranch of 6,000 acres.
It is not necessary to set out at length or in any detail, except where mentioned, any of the various provisions of the contract. It is an ordinary lease contract with many provisions. The signatures were not all procured right away, but were later obtained, and the contract was filed with the Commonwealth Bank & Trust Company, in San Antonio, on September 27, 1924. Appellee at the time had practically no funds with which to carry out his contract, having only about $2,000 in his wife's name in a savings account, but he undertook the contract with the expectation of forming a company and selling stock to former associates in Seattle, Wash. About two weeks after the signing of the contract, the appellee and his associates prepared and filed a declaration of trust organizing a company which was called the Atascosa Oil & Gas Company, and sold stock in Seattle, thereby raising money with which to carry out his contract.
When appellee went to Seattle, he left a driller and an associate to begin drilling upon the premises before the expiration of the 70 days given under the contract. The well was begun the latter part of September, 1922, and was drilled to a depth of 375 feet, when the rig was moved to a new location. On the second well appellee drilled down to a depth of 781 feet; and in this well a flow of artesian water was encountered, and appellee abandoned this location, leaving the well to the appellants, they paying for the casing. On July 25, 1923, appellee moved to the third location. After drilling for 20 months he arrived at a depth of 1,689 feet, when he could go no further in the third well. It was represented to appellants by appellee that a cable rig was not suitable for the drilling and that a rotary rig would have to be secured. For several months an attempt was made to hire a rotary rig, as at this time appellee was unable to buy a rotary rig for the reason that he had exhausted all of his available funds.
Appellee had some negotiations with appellants with reference to making a contract with the Southern Natural Gas Company to drill a well on the lease, and on the 2d of June, 1925, appellee wrote a letter, addressed to himself, to be signed by appellants, containing the consent of appellants for appellee to enter into a contract with the Southern Natural Gas Company to drill a well upon the land included in the lease. The appellants refused to sign the instrument and refused to give appellee authority to make a contract with anybody else to drill on the land. On June 13, 1925, the appellee, without the consent or knowledge of appellants, executed an assignment of his contract to 2,400 acres to the Atascosa Oil & Gas Company, a corporation, a subsidiary of the Southern Natural Gas Company, in consideration of that company drilling a well to 2,500 feet.
The Atascosa Oil & Gas Company moved their rig upon the land and spudded in their well—began drilling on September 16, 1925. Appellants, having observed that it was not the Southern Natural Gas Company that was drilling and that the appellee was proceeding under his original contract instead of making a new contract, caused their attorneys, Clamp & Searcy, to write a letter to appellee advising him that they no longer recognized the contract and requested him to vacate the premises. Appellee replied that he did not agree with them that the contract had been breached, or that his lease had expired. Thereupon appellee wrote to the Atascosa Oil & Gas Company, sending them a copy of the letter from appellants' attorneys, to which the Atascosa Oil & Gas Company replied, stating that under the circumstances they would not proceed further with the drilling, and soon vacated the premises.
There is much testimony introduced and considered by the court on the question of estoppel, waiver, etc.
It would serve no useful purpose to go into, set out, and discuss the testimony; but from a careful reading thereof we do not think there was sufficient legal testimony to forfeit the contract, for at the very moment it was forfeited appellee had placed himself in a position to perform, because appellants knew and encouraged the drilling of well No. 4, by the Atascosa Oil & Gas Company, and at no time raised any...
To continue reading
Request your trial
-
Justiss v. Naquin
...have gone to the jury. Hebert v. New Amsterdam, Tex. Com.App., 3 S.W.2d 425; Smith v. Peeler, Tex.Com.App., 29 S.W.2d 975; Peeler v. Smith, Tex.Civ.App., 18 S.W.2d 938; Casualty Reciprocal Co. v. Stephens, Tex.Com. App., 45 S.W.2d 143; House v. Robertson, 89 Tex. 681, 36 S.W. 251; Federal S......
-
New St. Anthony Hotel Co. v. Pryor
...102 S.W.2d 473; Sproles v. Rosen, 126 Tex. 51, 84 S.W.2d 1001; 64 Corpus Juris, p. 1176; 41 Tex.Jur. p. 1225; Peeler v. Smith, Tex.Civ.App., 18 S.W.2d 938; St. Louis, S. W. Ry. v. Miller & White, Tex.Civ.App., 176 S.W. 830; Greaber v. Coca Cola Bottling Works, Tex.Civ. App., 98 S.W.2d Howev......
-
Barrington v. Duncan
...under answer No. 42; Bragg v. Hughes, Tex.Civ.App., 53 S.W.2d 151; Sproles v. Rosen, Tex.Civ.App., 47 S.W.2d 331; Peeler v. Smith, Tex.Civ.App., 18 S.W.2d 938, 939, affirmed Tex.Com.App., 29 S.W.2d 975; Howard v. Howard, Tex. Civ.App., 102 S.W.2d 473, writ Further considerations are that, u......
-
Smith v. Morgan
...102 S.W.2d 473; Cuniff v. Bernard Corp., Tex.Civ.App., 94 S.W.2d 577; Bragg v. Hughes, Tex.Civ.App., 53 S.W.2d 151; Peeler v. Smith, Tex.Civ.App., 18 S.W.2d 938; St. Louis S. W. Ry. Co. of Texas v. Miller & White, Tex.Civ.App., 176 S.W. 830; 53 Am.Jur., Trial, § 1140; 64 C.J., Trial, § 965;......