Texas Co. v. Wimberly

• Decision Date: 20 May 1919
• Docket Number: (No. 450.)
• Citation: 213 S.W. 286
• Parties: TEXAS CO. v. WIMBERLY et ux.
• Court: Texas Court of Appeals

213 S.W. 286

TEXAS CO. v. WIMBERLY et ux.

(No. 450.)

Court of Civil Appeals of Texas. Beaumont.

May 20, 1919.

Appeal from District Court, Shelby County; Daniel Walker, Judge.

Suit by T. W. Wimberly and wife against the Texas Company and the Producers' Oil Company. From an adverse judgment, the first-named defendant appeals. Reversed and remanded.

T. J. Lawhon, of Houston, and Davis & Davis, of Center, for appellant.

Sanders & Sanders, of Center, for appellees.

BROOKE, J.

On June 26, 1918, appellees herein, T. W. Wimberly and wife, Phœbe Wimberly, as plaintiffs, filed in the district court of Shelby county, Tex., an action against the Producers' Oil Company and the Texas Company to cancel a certain mineral lease contract covering 104 acres of land in Shelby county, Tex. Said contract was executed by appellees to F. E. Kistler April 29, 1916, and for valuable consideration was assigned to and became solely the property of the Texas Company in November, 1917.

The following is a sufficiently comprehensive statement of the grounds of forfeiture asked by appellant:

(1) That the said mineral lease contract provided, unless a well was begun before the 1st day of May, 1918, the lease should terminate, unless the lessee on or before that date should pay to the lessor, or tender to the lessor's credit in the Farmers' State Bank at Center, Tex., the sum of $26, which, when paid, and however paid, should defer the time limit within which drilling might be done one year from said date, and that neither of said defendants on or before said date had begun drilling a well or had paid the plaintiffs, or had tendered to their credit in said bank, the said sum of $26.

(2) That said mineral lease contract is unilateral in its terms, and void for want of mutuality.

(3) That said mineral lease contract was assigned without the knowledge or consent of plaintiffs.

The pleadings conclude with the prayer for judgment canceling said lease contract, and removing cloud from title.

Defendants answered by a general denial; admitted the execution of the contract, and that the same was duly assigned to, and solely owned by, defendant the Texas Company, and that in the month of April, 1918, and prior to the 1st day of May, they duly and properly tendered to the Farmers' State Bank of Center, Tex., to the credit of plaintiffs, the said sum of $26, in compliance with the terms of the lease, which payment did, as a matter of law, extend and continue valid said lease to May 1, 1919; averred that said contract was supported by a valuable consideration in all its parts, and was therefore not void for want of mutuality; and concluded with a prayer for a judgment in their favor, and for general and special relief.

On the trial the Producers' Oil Company passed out of the case by an agreement of the parties that the mineral lease contract had been properly assigned for a valuable consideration to the defendant the Texas Company; and on the sole issue submitted to the jury—whether the voucher issued by the Texas Company in payment of said $26 was received by the Farmers' State Bank of Center on or before May 1, 1918, to which said jury answered "No"—the court rendered judgment canceling said mineral lease contract, and removing cloud from the title of plaintiff's said land, but in said judgment expressly found and decreed that said mineral lease contract was properly assigned to defendant the Texas Company, and that the same was not unilateral in terms and void for want of mutuality.

Defendant the Texas Company immediately filed its motion for new trial, praying that said judgment be set aside. The court overruled said motion, and, upon defendant properly excepting thereto and giving notice of appeal to this court, granted said defendant 90 days in which to prepare and file statement of facts and bills of exception. Defendant the Texas Company in due time filed its appeal bond, and now properly brings this cause before the court for review on appeal.

From the foregoing it will be seen that the trial in the lower court narrowed to the one issue whether the Texas Company's voucher in payment of said rent reached the depository bank at Center on or before May 1, 1918. This issue was submitted to the jury and found by it in plaintiffs' favor. The appellant is attacking this finding and the judgment of the court based thereon, contending: (1) That the court erred, to the prejudice of appellant, in the admission of certain testimony before the jury; and (2) that said finding and judgment is wholly unsupported by the evidence.

Appellant's first, second, and third assignments of error will be considered together, and are as follows:

(1) "The court erred in permitting the plaintiffs' witness Ed Boles to testify, over the objection of defendant, that he was present with the plaintiff Wimberly, and heard one F. C. Powell make certain statements to said Wimberly, said testimony being as follows:

"`Q. I believe that you stated that you heard a conversation between Mr. Powell and Mr. Wimberly? A. Yes, sir; I did.

"`Q. Do you know when, what date that was? A. That was the 6th day of May, if I ain't mistaken; I know it was the 6th day of May.

"`Q. Had you gone there before yourself? A. Yes, sir.

"`Q. Had you gone to the bank—don't tell what Mr. Powell said, but had you gone about a matter of your own? A. I had.

"`Q. Well, now, at the time you were there, did you hear Mr. Powell make any statement to Mr. Wimberly in regards to whether his (Wimberly's) money under the lease was there in the bank or not? A. He said it was not there.

"`Q. Then at any other time did you hear Mr. Powell state to Mr. Wimberly when the check came in? A. Two or three days later, he said; Wimberly asked him, and he said two or three days later from that. He says, I just called for that check Monday, and it wasn't there; well, he says, about two or three days later, about two days later, as my memory serves me, he said about two days later.

"`Q. He said to Wimberly, when you were there with him, that the money was not there? A. He did; he told him it wasn't there.'

"(1) Because the statements of F. C. Powell about which the witness testified were ex parte, hearsay statements, in no wise binding defendant, and therefore not admissible in evidence against it, and said testimony is prejudicial to the rights of this defendant, in that it seeks to bind defendant by the hearsay declarations of one F. C. Powell concerning a material inquiry in this case, to wit, the date when said Texas Company check and voucher arrived at said bank.

"(2) Because said testimony, if offered as original evidence, is not binding or admissible against defendant, because said defendant is in no sense bound by the statements or declarations of the said F. C. Powell, and, if said testimony is offered for the purpose of impeachment, it is not admissible as such, because said Powell had not been upon the stand in this cause, and no predicate had been laid for introducing impeachment testimony against him."

(2) "The court erred in permitting the plaintiffs' witness Ross Wilson to testify, over defendant's objection, that he was present with the plaintiff Wimberly, and heard one F. C. Powell make certain statements to said Wimberly, said testimony being as follows:

"`Q. Were you present on the 2d and 6th day of May, when Mr. Wimberly went to the Farmers' National Bank—the Farmers' State Bank, asking to know in regard to his lease money? A. Yes, sir.

"`Q. Did you hear what Mr. Powell told him? A. Yes, sir.

"`Q. What did Mr. Powell tell him? A. He told him it wasn't there.

"`Q. Did he tell him that on the 2d and on the 6th? A. Yes, sir; he did.'

"(1) Because the statements of F. C. Powell about which the witness testifies were ex parte, hearsay statements, in no wise binding defendant, and therefore not admissible in evidence against it, and that said testimony is prejudicial to the rights of this defendant, in that it seeks to bind defendant by the hearsay declarations of one F. C. Powell concerning a material inquiry in this cause, to wit, the date when said Texas Company check and voucher arrived at said bank.

"(2) Said testimony, if offered as original testimony, is not binding or admissible against defendant, because said defendant is in no sense bound by the statements or declarations of the said F. C. Powell, and, if said testimony is offered for the purpose of impeachment, it is not admissible as such, because the witness F. C. Powell has already testified in the cause, and no predicate has been laid for introducing impeachment testimony against him."

(3) "The court erred in permitting the plaintiffs' witness Jesse Perminter to testify, over defendant's objection, that he was present with the plaintiff Wimberly, and heard one F. C. Powell make certain statements to said Wimberly, said testimony being as follows:

"`Q. Mr. Perminter, were you present, at any time when Mr. Wimberly went to the Farmers' State Bank? A. I was.

"`Q. At what time was it? A. It seems to me like it was the 2d day of May.

"`Q. Did Mr. Wimberly ask to know about some money on a lease? A. He did.

"`Q. Where? A. At the Farmers' State Bank.

"`Q. Here at Center? A. Yes, sir.

"`Q. Who answered him? A. It seems to me like it was Mr. Powell.

"`Q. What did Mr. Powell tell him? A. He told him it wasn't there.'

"(1) Because the testimony of F. C. Powell about which witness testified were ex parte, hearsay statements, in no wise binding defendant, and therefore not admissible in evidence against it, and said testimony is prejudicial to the rights of this defendant, in that it seeks to bind defendant by the hearsay statements of one F. C. Powell concerning a material inquiry in this cause, to wit, the date when said Texas Company check and voucher arrived at said bank.

"(2) Said testimony, if offered as original evidence, is not binding or admissible against defendant, because said defendant is in no wise bound by...