Southern Oil Co. v. Wilson

• Decision Date: 22 January 1900
• Citation: 56 S.W. 429
• Parties: SOUTHERN OIL CO. v. WILSON et al.
• Court: Texas Court of Appeals

Page 429

56 S.W. 429

SOUTHERN OIL CO. v. WILSON et al.

Court of Civil Appeals of Texas.

January 22, 1900.

Appeal from district court, Navarro county; L. B. Cobb, Judge.

Action by J. J. Wilson and another against the Southern Oil Company. From a judgment in plaintiffs' favor, defendant appeals. Modified.

This suit was instituted on the 17th day of September, A. D. 1898, by J. J. Wilson and W. B. Sweatman against the Southern Oil Company, to vacate and cancel a certain oil lease on 14 acres of land, part of the Railway addition to the city of Corsicana, which was made by said plaintiffs to the Southern Oil Company on the 21st day of May, 1897, on the ground that said company had violated its contract, in refusing to develop said oil land and to protect said lease, by boring wells and preventing other parties from taking the oil from said territory, which they verbally promised to do, and for refusing to permit plaintiffs to sink said wells to protect the oil therein and develop the lease, to plaintiffs' damage $10,000; also, for $100 rent of said land, and the further sum of $2,000 for gas from said wells used and sold by defendants; and, further, that defendants had wholly failed to properly pump said wells bored by them, causing a loss of oil to plaintiffs; that plaintiffs by said acts had the right to declare such contract a nullity. And they prayed the contract to be declared null and void, and for a writ of restitution. The contract of lease was filed as an exhibit to the petition. On November 1, 1898, the defendant filed its answer: (1) A general demurrer; (2) special exception to the petition, in setting up a verbal addition to the written contract of agreement to protect plaintiffs' land, no consideration being alleged for such parol agreement, and, because said verbal addition concerned land, it was unenforceable; (3) general denial; (4) special answer denying said verbal contract, and alleging that, while the contract only required two wells, the company had bored three, which were of great value, and were all that the territory would bear, and that the gas had produced no profit whatever.

Pending this suit, and about the 10th of March, 1899, the Southern Oil Company, by resolution of its directors, gave to C. D. Pullen and his associates an option of purchase, at a certain price, on all the properties and franchises of the Southern Oil Company; the option to extend to 6 o'clock p. m. on the 6th day of April, 1899. Afterwards, on the 25th of March, 1899, in contemplation of the fact that the said Pullen and associates might not close the option, Dr. S. W. Johnson, then president, offered a compromise of the pending suit to plaintiff's attorney, C. W. Croft, by which the company would deliver the property and wells to plaintiffs on plaintiffs' paying to defendants the current market value of the material in the wells and attached thereto. This offer was in writing. Defendants claim it was made subject to the pending option. Plaintiffs deny it, but say it was an absolute, unqualified offer. The compromise was not accepted at the time. On the 6th day of April, C. D. Pullen & Co. closed out the option. The papers were signed on the 8th, and the property delivered. On the 10th, plaintiffs accepted in writing, by mail, the offer of compromise; knowing that C. D. Pullen & Co. had purchased the franchise and property. And, on defendant's refusing to recognize said compromise, plaintiffs amended their original petition on May 22, 1899, by adding thereto a count setting up the compromise, praying for specific performance thereof, and for the value of all oil produced therefrom from the 10th day of April, and, if the compromise was not enforceable, then to recover on the original cause of action. On May 24, 1899, defendants answered that said offer of compromise was made pending and subject to an option of purchase given to certain parties, and was so understood and known by said plaintiffs and their attorney, and further that, after the offer was made, plaintiffs' attorney notified defendant that the plaintiffs would only pay the value of secondhand material, and not the current market value, and defendant then and there refused to abide by said offer. Also the general denial. The court sustained demurrers to the original cause of action, except the claim for gas and rent of land. Plaintiffs went to trial on these items and on the compromise. The jury found in favor of plaintiffs for specific performance of the compromise, and for the sum of $1,701 as price of material in favor of defendant, and the sum of $269 as price of oil since April 8, 1899. The plaintiffs entered a remittitur for $174 on the account found in their favor by the jury, and, a motion for new trial being overruled, defendant appealed and assigned errors.

Simkins & Mays and C. L. Jester, for appellant. C. W. Croft, for appellees.

RAINEY, J. (after stating the facts).

It is contended by appellant that "the court erred in refusing to instruct the jury that the minds of the parties must meet and concur upon the terms of the compromise, to make the same valid and binding." The proposition of compromise was as follows: "Corsicana, Texas, March 25, 1899. C. W. Croft, Esq.—Dear Sir: The Southern Oil Company will part with its Wilson & Sweatman oil lease, together with the three wells located on it, for the current market price of the material in and attached to said wells. This includes all the piping, tanks, tank houses, pumping outfit, derrick, and every other character of property owned by the Southern Oil Company on said lease. This proposition is made to you as attorney for W. & S., and is meant as a compromise offer. Southern Oil Company, by S. W. Johnson, President." Defendant pleaded as follows: That after said offer was made, and while pending, the counsel for plaintiffs stated to defendant that, in case of acceptance of defendant's offer, plaintiffs would only pay for the material attached to the wells as secondhand material, and not at current market rates, and that defendant then and there declined to be held by such offer. The evidence on this issue was: Dr. Johnson testified that after the offer was accepted he charged plaintiffs with acting in bad faith in accepting a compromise after they knew that the option was closed; that he remembered distinctly of interlining "current market price" in his proposition to sell, and he had reference to the current market price of the kind of material on the Wilson & Sweatman lease, and that Mr. Croft, attorney for plaintiffs, stated to him: "`Well, doctor, I have had the case set off for a future day, because I feared there...