Travelers Ins. Co. v. Gibson, 2261-7367.

• Decision Date: 19 July 1939
• Docket Number: No. 2261-7367.,2261-7367.
• Citation: 130 S.W.2d 1026
• Parties: TRAVELERS INS. CO. v. GIBSON.
• Court: Texas Supreme Court

130 S.W.2d 1026

TRAVELERS INS. CO. v. GIBSON.

No. 2261-7367.

Commission of Appeals of Texas, Section A.

July 19, 1939.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Action of trespass to try title by the Travelers Insurance Company against Desmond Gibson, wherein defendant filed a cross-action for damages on account of being dispossessed of the farm involved. Judgment for defendant was reversed and rendered in part and affirmed in part by Court of Civil Appeals, 110 S.W.2d 241, and plaintiff brings error.

Judgment of Court of Civil Appeals affirmed in part and judgment of Court of Civil Appeals, and of district court reversed and rendered in part.

Renfro & Kilgore and C. C. Renfro, all of Dallas, for plaintiff in error.

L. W. Shepperd, of Groesbeck, for defendant in error.

HARVEY, Commissioner.

This is an action of trespass to try title instituted on January 3, 1936, by the plaintiff in error, Travelers Insurance Company, against the defendant in error, Desmond Gibson, for the recovery of a certain tract of land — constituting a farm — in Limestone County. On January 25, 1936, the Insurance Company caused a writ of sequestration to be issued and placed in the hands of the constable for execution. Levy of the writ was not made for the reason that Gibson surrendered possession of the farm. In his answer to the suit of trespass to try title, Gibson pleaded not guilty and set up a cross action for damages on account of being dispossessed of the farm. Since no question arises in respect to the pleadings in the case, it is unnecessary to notice them any further. The case was tried in April, 1936, before a jury, resulting in a judgment to the effect that the Insurance Company take nothing, and that Gibson recover damages in the sum of $677.70 for being wrongfully dispossessed of the farm. The Company appealed and the Court of Civil Appeals reversed the judgment of the trial court in the respect that a recovery by the Company of title to the land was denied, and rendered judgment in this respect for the Company. In all other respects the judgment of the trial court was affirmed. Tex. Civ.App., 110 S.W.2d 241. The Insurance Company has been granted the writ of error.

During the year 1935, Gibson had possession of the farm as tenant of the Insurance Company. The lease term provided in the lease contract for that year began January 1, 1935, and ended December 31 of that year. Gibson claims that he was entitled to possession of the farm during the year 1936, under the terms of a written instrument bearing date October 16, 1935, which he claims both he and the Insurance Company agreed to. Gibson signed said written instrument on the last mentioned date but the Insurance Company did not ever sign the instrument or take any affirmative action in respect to it. According to the terms of this instrument, which we shall denominate the lease contract for the year 1936, the farm was leased to Gibson by the Insurance Company for the year 1936. The instrument contains the following provision, which, so far as need be set out here, reads as follows: "It is further understood and agreed by and between the parties hereto that in case of sale of said premises prior to December 1, 1935, then this lease shall not take effect but shall be null and void. * * *"

The Company contends, first, that there is no evidence of sufficient probative force to show that the Company ever consented to be bound by the terms of said instrument, and secondly, in the alternative, that the evidence shows conclusively that the farm was sold by the Company prior to December 1, 1935, and therefore the lease purported by said instrument became ineffective by virtue of the provision set out above. These respective contentions of the Company present the only questions which we are called on to decide. In view of the conclusion we reach in respect to the second contention of the Insurance Company, it is needless to examine the first. In other words, we shall assume as a fact that both Gibson and the Company agreed, on or about October 16, 1935, to be bound by the terms of the lease instrument of that date, and shall proceed to consider whether or not the evidence conclusively shows that the lease purported by the terms of said instrument became ineffective because of the sale of the farm to H. P. Hickman as hereinafter described. The undisputed evidence shows the following facts: L. R. Price, Jr., was a ministerial agent of the Company, without any authority to make any contract in behalf of the Company. On October 28, 1935, he found a purchaser for said farm in the person of H. P. Hickman, and on said date Hickman signed a written contract for the purchase of said farm upon terms specified in the instrument. The instrument was duly forwarded to the home office of the Company for rejection or approval. On November 11, 1935, the Company duly accepted the contract proposed by Hickman, duly signed the instrument, and same became effective on that date as a binding contract between the parties. According to the terms of the instrument Hickman was to pay $6960 for the farm. One Thousand Dollars of this sum was to be paid in cash and for the balance Hickman was to execute...