Sun Exploration and Production Co. v. Benton
| Decision Date | 24 April 1986 |
| Docket Number | No. 10-85-190-CV,10-85-190-CV |
| Citation | 711 S.W.2d 58 |
| Parties | SUN EXPLORATION AND PRODUCTION COMPANY, Appellant, v. Lynda BENTON, Appellee. |
| Court | Texas Court of Appeals |
Sun Exploration and Production Company, the successor in interest of Sun Oil Company and formerly known as Sun Gas Company, appeals from a judgment in favor of Lynda Benton. Benton sued Sun Exploration, Sun Oil and Sun Gas after Sun Exploration had recorded an oil and gas lease, which it had obtained from her, but refused to honor a $16,875.00 draft, which it had given her for the lease. Among other theories, she alleged that Sun Exploration had violated the Deceptive Trade Practices Act (DTPA). See Tex.Bus. & Com.Code Ann. §§ 17.41--17.63 (Vernon 1968 and Vernon Pamph.Supp.1986). Sun Exploration contends that the lease and draft constituted the contract between the parties and that a provision in the draft, which allowed it to approve Benton's title, was a condition precedent to its liability on the draft. It also contended in a cross-action that Benton had breached an express warranty of title and a covenant of seisin and that she was liable for damages because her suit under the DTPA was groundless and brought in bad faith or for the purpose of harassment. Following a trial without a jury, the court entered a judgment that Sun Exploration take nothing on its cross-actions and that Benton recover from Sun Exploration the sum of $16,875.00 plus interest and attorney's fees. We affirm.
Shortly before Thanksgiving in 1982, Robert Gabriel contacted W.A. Keils, Jr., Benton's attorney, and inquired whether Benton would execute an oil and gas lease to Sun Exploration on 183.5 acres in the Y'Barbo Survey. 1 Gabriel testified that Sun Exploration had already acquired a lease from Kenneth Fulton, Benton's former husband, on the same tract before he approached Keils about acquiring a lease from Benton. He stated that Sun Exploration had referred to Benton's lease before he acquired it as a "protective" or "protection" lease and that the Company had authorized him to pay her a bonus of $200.00 an acre ($16,875.00) to obtain the lease. According to Keils, Gabriel told him that "their" records indicated that Benton owned 84 3/8th acres in the 183.5-acre tract. Benton agreed to execute the lease, and Keils negotiated its final terms with Gabriel. On December 8, Gabriel mailed Keils a printed-form lease and a $16,875.00 draft payable to Benton. The draft contained the following provision: "15 days after sight and upon approval of title". After Benton signed the lease, Keils mailed the lease to Gabriel and deposited the draft for collection with a local bank. Gabriel filed the lease for recording on December 14, the lease was recorded on December 17 and Sun Exploration later refused to honor the draft on the last day of the 15-day period. Sun Exploration had not released its rights under Benton's lease prior to the trial.
Sun Exploration moved for a directed verdict on the ground that any contract between the parties consisted of the lease and the draft. It argued that the provision in the draft, "15 days after sight and upon approval of title", was a condition precedent to its liability on the draft and that Benton had notice of the condition precedent. Sun Exploration also sought a directed verdict on its cross-action for Benton's alleged breach of an express warranty of title and a covenant of seisin. The court denied these motions. However, the court announced that it would enter a judgment for Benton on the "contract", and it later entered a judgment awarding her a recovery against Sun Exploration of $18,955.27, which included $2,080.27 in interest on $16,875.00, and attorney's fees. The court also filed these pertinent findings of fact and conclusions of law:
Findings
1. Gabriel was acting as Sun Exploration's agent in the transaction with Benton.
2. Sun Exploration authorized Gabriel to purchase the lease from Benton for $16,875.00.
3. Gabriel entered into an agreement with Benton to purchase the lease for an agreed bonus of $16,875.00.
4. Sun Exploration recorded the lease on December 14, 1982.
5. Sun Exploration "caused the draft to be returned unpaid" on December 28, 1982.
1. Benton and Sun Exploration entered into a contract in which Sun Exploration "agreed to purchase" the lease from Benton for $16,875.00.
2. Sun Exploration breached the contract by accepting and recording the lease and then refusing to pay Benton the agreed consideration ($16,875.00) for the lease.
In point three, Sun Exploration alleges that Benton was not entitled to recover for the breach of a contract because she had not plead such a cause of action. When a party allows evidence to be admitted without objecting that it is not supported by any pleading, he waives any defect in the pleadings and tries by implied consent any issue raised by the evidence. See Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562, 563 (1943); Tex.R.Civ.P. 90. Sun Exploration did not object to any of Benton's evidence based on any deficiency in her pleadings, and her evidence was factually sufficient to prove that Sun Exploration had breached a contract to purchase the lease. Therefore, point three is overruled because Benton's cause of action for the breach of a contract was tried by implied consent.
In its first two points of error, Sun Exploration alleges that the court erred when it refused to grant it a directed verdict on Benton's cause of action for the breach of a contract. It argues that the court had to construe the lease and draft together as a contract to determine the intentions and rights of the parties and that the provision in the draft, "15 days after sight and upon approval of title", must be construed as a condition precedent to its liability on the draft. Sun Exploration argues that the evidence conclusively established that Benton did not own any interest in the property covered by her lease. Consequently, it contends that Benton could not recover on the draft because she had to prove that she could convey good and marketable title to the mineral estate covered by her lease.
Assuming, as Sun Exploration contends, that the lease and the draft must be construed together as a contract and that the provision in the draft was a condition precedent, a reversal is not required under the facts presented. A condition precedent may be waived. Kennedy v. McMullen, 39 S.W.2d 168, 174 (Tex.Civ.App.--Beaumont 1931, writ ref'd). Although Benton did not plead waiver, that issue was tried by implied consent. See Texas Reserve Life Insurance Co. v. Security Title Co., 352 S.W.2d 347, 351 (Tex.Civ.App.--San Antonio 1961, writ ref'd n.r.e.). Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Massachusetts Bond. & Ins. Co. v. Orkin Exterm. Co., 416 S.W.2d 396, 401 (Tex.1967). The waiver of a condition precedent may be inferred from a party's conduct. See Continental Bank & Trust Co. v. Hartman, 129 S.W. 179, 181 (Tex.Civ.App. 1910, no writ).
Accepting and recording the lease was conduct inconsistent with Sun Exploration's asserted right to disapprove of Benton's title within the fifteen-day period and thereby avoid liability on the draft. Therefore, the probative evidence was sufficient to have supported a finding that Sun Exploration had waived the condition precedent contained in the draft. When a court has made findings on one or more of the elements of a ground of recovery or an affirmative defense, omitted findings on elements which are supported by the evidence will be supplied on appeal by a presumption in support of the judgment. Allied Building Credits, Inc. v. Grogan Bldrs. Sup. Co., 365 S.W.2d 692, 695 (Tex.Civ.App.--Houston 1963, writ ref'd n.r.e.). The court made all of the findings necessary to support a conclusion that Sun Exploration had waived the condition precedent in the draft, except a finding that it had intentionally relinquished its right to approve Benton's title when it recorded the lease. Consequently, such a finding, although not requested, must be supplied on appeal by a presumption in support of the judgment. See id. Points one and two are overruled.
Sun Exploration contends in points four and five that the court erred when it entered a take-nothing judgment on its cross-action for damages based on Benton's breach of an express warranty of title and a covenant of seisin. These points attack the legal sufficiency of the evidence. Essentially, Sun Exploration argues that the evidence established its cross-action as a matter of law, and thus the court erred when it entered a take-nothing judgment on the cross-action. When reviewing a "matter-of-law" point, an appellate court must consider all of the evidence. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981); Cornelius, Appellate Review of Sufficiency of...
To continue reading
Request your trial
- Garcia v. State, No. 07-02-0358-CR (TX 11/12/2004)
-
Sun Exploration and Production Co. v. Benton
...Company. Following a trial without a jury, the trial court rendered judgment in favor of Benton. The court of appeals affirmed. 711 S.W.2d 58. We reverse that part of the judgment awarding damages to Benton and render judgment that she take nothing. We affirm the remainder of the Benton's a......