Priddy v. Green, (No. 1623.)

• Decision Date: 10 March 1920
• Docket Number: (No. 1623.)
• Citation: 220 S.W. 243
• Parties: PRIDDY v. GREEN et al.
• Court: Texas Court of Appeals

Page 243

220 S.W. 243

PRIDDY v. GREEN et al.

(No. 1623.)

Court of Civil Appeals of Texas. Amarillo.

March 10, 1920.

On Motion for Rehearing, April 7, 1920.

Appeal from District Court, Wichita County; Edgar Scurry, Judge.

Action by Clois L. Green and others against W. M. Priddy, to recover an oil lease, in which Roberts and another intervene. Judgment for plaintiffs and intervener on directed verdict, and defendant appeals. Reversed and remanded, and motion for rehearing overruled.

Martin & O'Neal and Bullington, Boone, Humphrey & Hoffman, all of Wichita Falls, and I. W. Stephens, of Ft. Worth, for appellant.

Weeks, Morrow, Weeks & Francis, of Wichita Falls, for appellees.

HUFF, C. J.

Clois L. Green, F. P. Lesh, and some eight others brought suit against W. M. Priddy, claiming to own, as assignees of an oil lease, 10 acres of land, setting out the facts of their claim, and alleging a wrongful entry thereon by Priddy, and that he was threatening to put down a well, and was proceeding to do so, and praying for temporary injunction against him, and to make it perpetual. It is also shown by the pleadings that 10 acres out of the appellees' holdings under a certain contract were conveyed to Roberts and Hill. Roberts and Hill intervened, and set up their right to the 10 acres, alleging they were innocent purchasers for value. Priddy answered, setting up that he had entered into a contract of purchase with F. P. Lesh, alleging the facts giving him a right to the 20 acres of land involved in the original petition and the plea of intervention, and also pleading estoppel, which will be shown by the facts as stated in the opinion. The case was tried before a jury, but after the introduction of the evidence the court instructed a verdict for the appellees and the intervener, and Priddy appeals.

On the 19th day of March, 1917, R. M. Waggoner and his wife, Ada Waggoner, entered into what is termed a lease contract with A. R. Calloway, the terms of which will hereafter be more particularly noticed. There is an agreement in the record that the Godley Oil & Gas Company, a corporation with its principal office at Henrietta, Tex., was the owner of a good and merchantable title to the oil and gas lease given by Waggoner and wife to A. R. Calloway on the 19th day of March, 1917, in so far as the lease pertains to and covered the 20 acres of land involved in this suit, which 20 acres is the east half of the southwest quarter of block 87, Red River Valley land subdivision, Wichita county, Tex., which block comprises 160 acres of land, the southwest quarter thereof comprising 40 acres, and the east half of same, involved in this suit, comprising 20 acres, and was the said owner on the date that the Godley Oil & Gas Company, acting through its president, W. M. Moore, entered into a contract for the sale of that lease to F. P. Lesh, one of the plaintiffs in this suit. The date of this contract was the 12th day of April, 1919, and it is agreed that on that date the Godley Oil & Gas Company had good title to this lease. On the 12th day of April, 1919, the Godley Oil & Gas Company, acting through its president, W. M. Moore, entered into a contract with F. P. Lesh, contracting to convey a certain oil and gas leasehold estate executed by Waggoner and his wife in so far as it covers the 20-acre block in question. The consideration to be paid for the lease was the sum of $40,000. The corporation agreed within 30 days from date to furnish an abstract of title to the land, and the second party was to have 10 days after such abstract was furnished to examine the same, and if the title was approved as good and merchantable the trade should be fully consummated. It was further agreed that the contract, together with the sum of $20,000 paid by Lesh, should be deposited in the First National Bank of Wichita Falls, Tex., upon the following understanding: That if the company should fully comply with its part of the contract, by furnishing the abstract above mentioned, and Lesh should fail or refuse to carry out his part of the contract, then in such event the said sum shall be forfeited to the company, as and for liquidated damages, and not as penalties or otherwise; but upon consummation of the sale the company agreed to execute and deliver to said bank for Lesh a good and valid assignment and conveyance to said oil and gas lease, and he should thereupon pay over to the said bank the remainder of said consideration, to wit, $20,000, which sum, together with the $20,000 deposited with the contract, should be paid over to the company. As this is an instructed verdict, the facts stated by us will be from the appellant's standpoint, or that part of the evidence most favorable to him.

About 9 o'clock a. m., April 17, 1919, F. P. Lesh offered to sell to W. M. Priddy the lease covering the 20 acres in question, stating that he was the owner of the lease, although at that time the sale to him had not been consummated, and that he had not paid for the lease, and no assignment to him of the lease had been executed. That Priddy believed he was the owner of the lease, and that Priddy then offered Lesh $50,000 for the lease, which was accepted by Lesh, $20,000 to be paid in cash, $20,000 in 10 days, and $10,000 in 20 days; Lesh promising to go at once and have the papers prepared in accordance with the contract. That he went immediately to the office of W. M. Moore, president of the Godley Oil & Gas Company, and instructed Moore to prepare the necessary papers to consummate the sale, which he had made with Priddy, suggesting that Priddy be substituted for himself in the contract then pending with the Godley Oil & Gas Company, which, after some preliminary discussions and objections on the part of Moore, was finally agreed to. Moore then prepared a contract, similar to the one which the company, through Moore, had previously entered into with Lesh, signing it as president of the company, and carried it to the office of W. M. Priddy, where it was executed by him, and Priddy delivered to Moore his check for $20,000, which was certified by the cashier of the bank shortly thereafter. Moore was in Priddy's office with the contract some time about 11 o'clock in the morning of the 17th of April. In the evening of that day W. H. Roberts, of the firm of Roberts & Hill, entered into an agreement with R. M. Waggoner, one of the joint owners of the land in question, for the purchase of the south 10 acres of the 20 acres in question for a consideration of $60,000, of which $10,000 was covered by a check then delivered to Waggoner, $20,000 to be paid in 5 days, and $30,000 to be paid in 30 days. On the following day this contract was reduced to writing and executed by R. P. Lesh, as seller, to Roberts & Hill, purchasers. It appears that both the instrument and acknowledgment were dated back to the 17th day of the month. There is evidence in the record tending to show that Roberts, when he purchased, had notice of Priddy's claim. During the evening of the 17th Lesh informed Moore that he would not consummate the sale with Priddy, and at his request next morning Moore went to see Priddy, and tendered back the certified check which he had received from Priddy in the forenoon of the 17th, but Priddy declined to receive it.

Priddy testified, and alleged substantially, that on the morning of the 17th of April, 1919, Lesh represented to Priddy that he was the sole owner and holder of the oil and gas lease on the 20 acres under a contract with the Godley Oil & Gas Company, to whom it had been assigned by the original lessee, and on this representation Lesh sold the land to Priddy for $50,000, as above stated, and Lesh agreed with Priddy that he would, that morning, have the contract made and delivered to Priddy as soon thereafter as it could be prepared; that within a few minutes Lesh went to W. M. Moore, president of the Godley Oil & Gas Company, and instructed and empowered Moore to substitute, for Lesh, Priddy, in the contract between Godley Oil & Gas Company and Lesh, and empowered and authorized Moore and the Godley Oil & Gas Company, as Lesh's agent, to execute and deliver the contract and assignment from the company, of which Moore was president. After detailing the facts leading up to the contract, Priddy testified:

"I said, `Mr. Lesh, are you authorized to sell this lease?' He said, `Yes; I own it myself.' He asked me what I would give him for the whole 20 acres. I told him, if he would make the terms so I could meet them, I would give him $50,000 for a lease on his entire 20 acres. He figured a little and said, `You have bought it.' I said, `All right; now let's see about the terms;' and we discussed it, and I asked him to let me have it on a basis of one-third cash, one-third in 15 days, and one-third in 30 days. He didn't care for that. I made another offer, which I think was the basis, of $10,000 cash, $20,000 in 10 days, and $20,000 in 20 days. He said he would let me have it on the basis of $20,000 cash, $20,000 in 10 days, and $10,000 in 20 days. I said, `All right, I am going to take it.' I said, `Now, we have made a clean, clear, unconditional trade, whether we get a dry hole out there; if we have got a dry hole, it is mine, and my loss, and my lease, and if it is an oil well it is mine.' He said, `It is yours, all right.' And we got up and started over then to see about making out a check and have the contract drawn up. I said, `Now, Mr. Lesh, how much money do you want me to pay you now?' I asked him in the meantime about the abstract, and he said he would furnish an abstract showing good title, and would allow me 3 days to examine it, and I was to allow Mr. Lesh, in case there was any defect, 10 days in which to cure the defect. I said, `How much money do you want me to give you now, until you can get abstract and get your papers drawn up?' He said, `I am going to do that immediately.' I said, `But in the meantime will $5,000 be satisfactory?' An...