Thomas v. Morrison

• Decision Date: 17 March 1976
• Docket Number: No. 6488,6488
• Citation: 537 S.W.2d 274
• Parties: H. C. (Dick) THOMAS, and J. H. (John) Thomas, Individually and as co-partners d/b/a Thomas and Thomas, Appellants, v. G. Dale MORRISON, Appellee.
• Court: Texas Court of Appeals

Page 274

537 S.W.2d 274

H. C. (Dick) THOMAS, and J. H. (John) Thomas, Individually and as co-partners d/b/a Thomas and Thomas, Appellants, v. G. Dale MORRISON, Appellee.

No. 6488.

Court of Civil Appeals of Texas El Paso.

March 17, 1976.

On Rehearing April 28, 1976.

Rehearing Denied April 28, 1976.

Second Rehearing Denied June 2, 1976.

John L. Shepherd, Seminole, Prappas, Caldwell & Moncure, B. Edward Williamson, Houston, for appellants.

Garner, Vickers, Purdom & Nelson, Robert E. Garner, John E. Vickers, Lubbock, Gibson, Ochsner, Adkins, Harlan & Hankins, Beau Boulter, Amarillo, for appellee.

OPINION

OSBORN, Justice.

The Appellants complain of a judgment entered against them for damages resulting from a breach of a lease of one section of land in Gaines County for the purpose of raising alfalfa and grazing cattle. Having concluded that the judgment was not based upon a proper measure of damages, we reverse and remand for a new trial.

In 1972, Appellee acquired a section of land about five miles southwest of Seminole, on which was located two water wells and pumps, and a 26 tower irrigation system. Mr. Morrison bought the land for approximately $150.00 an acre which consisted of payment in cash of $2,200.00, a $1,000.00 note and assumption of a loan to John Hancock Insurance Company for $81,000.00, plus payment of $15,000.00 to make the loan current. After an unsuccessful attempt to sell the property, he entered into negotiations with John Thomas for a lease for grazing purposes. There was a substantial controversy over what were the terms of the lease as finally agreed upon between the parties. On June 8, 1972, Mr. Thomas sent Mr. Morrison a proposed lease for the period of June 1972 through December 1972 for the sum of $10.00 and other valuable consideration. Under the terms of the lease, Thomas & Thomas (a partnership composed of J. H. Thomas and H. C. Thomas) agreed to 'perform whatever tilling operations that are directed' by Morrison for one-half (1/2) of the prevailing custom rate. On June 14, 1972, Morrison returned the lease unsigned and noted that it did not mention the cotton allotment which they had discussed and raised a question as to whether there was to be a grass or alfalfa crop. On June 17, 1972, Thomas made changes in the lease and sent to Morrison a draft of two leases, one covering a period from June 1972 through December 1972, and providing for a 1/10th acre of permanent cotton allotment to be left on the land after the lease expired and with the same clause on tilling operations. The other lease provided for a term from June 1972 through December 1972, and provided that:

'Lessee agrees to plant the above Section to alfalfa and will provide the necessary pumps, motors, and related irrigation equipment and fences to care for same, and Lessee will provide the necessary cattle to keep the alfalfa in a fully grazing condition. Lessee will provide the overseer and care for its own cattle. Lessor will have no responsibility for cattle count or health. Lessee will pay Lessor 12$ per pound on gain for all gain.'

Morrison approved and returned the proposed leases on June 20, 1972, the leases were executed effective June 22, 1972, after the period of the second agreement was corrected by Thomas to provide for a term from October 1, 1972 through September 30, 1977.

According to Mr. Thomas, he prepared the leases and had his secretary type them. In September, 1972, he discovered what he considered to be an error or mistake in the long-term lease. He said it provided for 'lessee' to plant the alfalfa, etc., when in fact it was the original agreement of the parties that 'lessor' had such responsibility. Morrison denied that there was any error or mistake in the lease. Being unable to resolve the issue, Mr. Thomas wrote Mr. Morrison on June 8, 1973, stating that if the typographical error could not be corrected, he would be willing to (1) cancel the lease, (2) furnish the capital for irrigating at a reduced grazing fee, or (3) negotiate some other type arrangement. He concluded his letter by stating: 'Without definitive action on your part, we shall take the position that the lease be cancelled in its entirety upon removal of the cattle that are presently there.' Mr. Morrison's lawyer promptly replied that his client was unwilling to renegotiate for a new lease. Demand was made for payment due under the contract for gain on cattle already grazed, plus damages for failure to plant alfalfa. The matter being unresolved, this suit was filed the following month.

The section of land involved in this suit was foreclosed under the John Hancock Deed of Trust on April 2, 1974, and this case was tried in March, 1975.

The jury failed to find that the long-term lease contained a mutual mistake. They also failed to find that 'Morrison expressly directed Thomas & Thomas to have the tilling and planting operations performed.' The last Special Issue, No. 3, and its answer was as follows:

'What sum of money do you find from the preponderance of the evidence Morrison would have received as rent from Thomas and Thomas during the term of the lease in question had the section been planted to alfalfa and fully grazed?

Answer in dollars and cents, if any, as you may find.

Answer: $162,750.00'

Judgment was entered for that amount, plus the amount Thomas acknowledged as due for grazing, plus the amount stipulated as to the increase in the value of land had it been planted in alfalfa.

The Appellants present seven Points of Error, most of which are related to Special Issue No. 3 and the judgment based upon the answer to that Issue. At the trial, Appellants objected to Special Issue No. 3 'for the reason that this issue does not properly outline the damages under the lease in question', and 'for the further reason that said issue and the wording contained therein is not the proper measure of damages in this cause.' The first Point of Error complains of the error in overruling those objections.

While the Point of Error probably presents error, the objection upon which it is based is not sufficient to have preserved the error. Rule 274, Tex.R.Civ.P., requires that a party point out distinctively the matter to which he objects and the grounds of his objection. In Whitson Company v. Bluff Creek Oil Company, 156 Tex. 139, 293 S.W.2d 488 (1956), the Court considered a similar objection and concluded that the objection was not adequate. The Court said:

'* * * The only objection made by it to the special issue submitting market value other than that Rucker had parted with his interest, which objection is not briefed, was this: 'Because said issue does not inquire as to the proper measure of damages.' The general objection cannot be considered. If the market value as submitted was not the correct measure of damages, objection should have been made to the issue by Whitson Company pointing out distinctively the grounds of its objections. Rule 274, Texas Rules of Civil Procedure. Having failed to do so, it cannot thereafter be heard to say that the measure of damages as submitted was improper. * * *'

That conclusion was followed and the same results reached Cantile v. Vanity Fair Properties, 505 S.W.2d 654 (Tex.Civ.App.--San Antonio 1973, writ ref'd n.r.e.). The first Point of Error is overruled.

The second Point of Error also complains of overruling an objection to Special Issue No. 3 because it inquired as to rent to be received during the entire term of the lease even though the parties had stipulated as to the amount due for a part of the lease. The evidence established that alfalfa would normally be planted in August or September and that it should not be grazed until it had a year's growth. Mr. Thomas contended that since the long-term lease did not commence until October, 1972, alfalfa could not be planted until August or September 1973, but that in order to get some income prior to grazing in 1974, it was decided to plant and graze wheat in 1972--73. The evidence established without dispute that during the first year Thomas & Thomas did plant a wheat crop, and did graze cattle on the wheat, and it was stipulated that this resulted in an indebtedness to Morrison of $5,804.40 as rent during that period of time, although there was a dispute as to whether Morrison authorized or directed that wheat be planted the first year.

Since Special Issue No. 3 inquired as to the rent Morrison would have received for the full term of the lease, and since the parties stipulated as to recovery of $5,804.40 from grazing on the wheat during the first part of the lease, Appellants suggest that Appellee recovered double damages. They urge that their objection to the special issue should have been sustained. International-Great Northern R. Co. v. King, 41 S.W.2d 234 (Tex.Comm'n App.1931, holding approved). Mr. Morrison testified that it was his understanding that the land was to be planted in alfalfa in 1972 and that the two leases were tied to each other so as to provide grazing income at the earliest possible time, probably in 1973. Under that construction of the two leases, the Appellant could have received double damages had the jury believed that alfalfa should have been planted in 1972 and grazed in 1973, the same year in which the wheat was grazed and for which Appellants admitted a liability of $5,804.40. We sustain the second Point of Error. Were this the only point to be sustained we would order a remittitur, but the next Point presents error which cannot be cured by a remittitur.

By the third Point of Error, Appellants contend that the answer to Special Issue No. 3 could not form the basis upon which the trial Court could render judgment against them. We agree. In White v. Watkins, 385 S.W.2d 267 (Tex.Civ.App.--Waco 1964, no writ) the Court stated the rule for determining damages where a tenant breaches his lease and abandons the premises. The Court said:

'Where the tenant abandons the premises, the lessor, as one...