Witherspoon v. Staley

• Decision Date: 12 March 1913
• Citation: 156 S.W. 557
• Parties: WITHERSPOON et al. v. STALEY et al.
• Court: Texas Court of Appeals

156 S.W. 557

WITHERSPOON et al. v. STALEY et al.

Court of Civil Appeals of Texas. Austin.

March 12, 1913.

Rehearing Denied April 16, 1913.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Action by C. L. Witherspoon and others against W. H. Staley and others. Judgment for defendants, and complainants appeal. Reversed, with instructions to render judgment in favor of complainants.

See, also, 138 S. W. 1191.

W. J. McKie and Callicutt & Call, all of Corsicana, for appellants. Richard Mays, of Corsicana, for appellees.

RICE, J.

This suit involves a contest between two rival claimants for the right to prospect for and develop oil, gas, coal, or other minerals underlying a tract of 245 acres of land out of the McNeal survey in Navarro county, basing their respective claims thereto upon certain contracts between themselves and the owners thereof. It was alleged by appellant Witherspoon that on the 30th of October, 1910, Dr. Frank Hines, the owner of said land, leased to W. H. Staley, one of the appellees herein, the mineral rights thereunder, said contract reciting that said Hines, in consideration of $25 cash to him paid by said Staley, and certain other consideration thereinafter set forth to be performed by said Staley (among which were the delivery and payment to said Hines of one-eighth of the oil produced and four cents per ton for all coal mined and marketed, as well as the payment of $100 per year for the product of each gas well), granted, bargained, sold, and conveyed to said Staley, or his heirs and assigns, all the oil, gas, coal, and other minerals under said land, to have and to hold the same to said Staley, his heirs or assigns, for the term of five years from the date thereof, and as long thereafter as oil, gas, and other minerals were found in paying quantities therein, provided, in case operations for either the drilling of a well for oil, gas, mining, or other minerals was not commenced and prosecuted with due diligence within 60 days from date thereof, then said grant should immediately become null and void as to both parties; also providing that said Staley may prevent such forfeiture from year to year by paying to said Hines the sum of $25 every 60 days until such well is commenced, or until shipments from such mines have begun, which payments could be made at the First National Bank of Corsicana, Tex., or payable directly to said Hines. Said contract further provided as follows: "This grant is not intended as a mere franchise, but is intended as a conveyance of the property above described for the purposes herein mentioned, and it is so understood by both parties to this agreement." There were other provisions not deemed important, for which reason they are not recited; but the entire contract is set out and may be found in the case of Witherspoon v. Staley, 138 S. W. 1191.

It was further alleged that said Staley did not commence operations thereunder within 60 days, but that on the 30th of November, 1910, he paid to said Hines $25 which was accepted by him, whereby the time for development was extended until the 27th or 28th of January, 1911, but that no development or further payment was made by said Staley within such period; whereupon said Hines, on the 3d of February, 1911, declared said contract forfeited and forbade Staley's entrance upon said land for the purpose of prospecting for or developing oil, gas, or other minerals thereon; and on the same day said Hines and wife made a somewhat similar contract with said appellant, conveying such mineral rights under said land to him, and at the same time notifying Staley of what he had done, and likewise informing him that, in the event he should undertake to enter upon said land for the purpose of developing the same, he would claim as his own the entire fruits of his efforts, and further alleging that, notwithstanding such action upon the part of said Hines, said Staley, disregarding his (Witherspoon's) rights, proceeded to sink a well upon said land for the purpose of procuring oil, and would, if not restrained, succeed in so doing, and in draining the oil under an adjacent tract upon which appellant likewise had a lease and was operating a well, to his great damage. He further alleged that, notwithstanding it was the duty of said Hines to have prevented any attempted development of said land for oil or other minerals by said Staley, he had failed to do so, praying that a writ of injunction should issue against said Staley, preventing him from further prosecuting operations on said land under and by virtue of his alleged contract, and for a cancellation thereof, and praying the establishment of his own contract with Hines and wife, hereinbefore referred to.

Said Staley and one T. N. Barnsdall, who, it seems, was interested in the Staley contract, jointly answered, urging certain special exceptions, a general denial, and specially answered, asserting that their contract had not in fact expired, because the required payments had been made and work begun within due time; wherefore their contract was superior to that of appellant Witherspoon, and should prevail.

Hines and wife, who were made parties defendant, likewise answered, setting up substantially the same facts as those relied upon by appellant Witherspoon, and prayed for similar relief.

There was a jury trial, resulting in a verdict and judgment for appellees, from which this appeal is prosecuted.

Many interesting questions have been raised and ably discussed by counsel on both sides in their briefs, most of which, however, it will not be necessary for us to notice, for the reason that we have concluded that the trial court erred in not peremptorily instructing a verdict in behalf of appellants, on the ground that the contract relied upon by appellees did not convey any interest in the land, but conveyed merely an optional right to acquire an interest therein upon the performance of certain conditions, which were not complied with within the time stipulated for their performance.

This contract was likewise a unilateral one, in that it did not bind or obligate the lessee to perform any of the conditions thereof, and was therefore lacking in mutuality. See Natl. Oil & Pipe Line Co. v. Teel, 95 Tex. 591, 68 S. W. 979; s. c., 67 S. W. 545; Forney v. Ward, 25 Tex. Civ. App. 443, 62 S. W. 109; Roberts v. McFadden, 32 Tex. Civ. App. 47, 74 S. W. 111; Hodges v. Brice, 32 Tex. Civ. App. 358, 74 S. W. 590; Marble Co. v. Ripley, 10 Wall. 339, 19 L. Ed. 955; Huggins v. Daley, 99 Fed. 606, 40 C. C. A. 12, 48 L. R. A. 320; Steelsmith v. Gartlan, 45 W. Va. 27, 29 S. E. 978, 44 L. R. A. 107. See, also, Eclipse Oil Co. v. South Penn. Oil Co., 47 W. Va. 84, 34 S. E. 923; Harness v. Oil Co., 4 W. Va. 232, 38 S. E. 670; Cowan v. Iron Co., 83 Va. 547, 3 S. E. 120.

Bouvier (volume 2, p. 621) defines a unilateral contract as follows: "When the party to whom the engagement is made makes no express agreement upon his part, the contract is called unilateral, even in cases where the law attaches certain obligations to his acceptance."

Mr. Justice Gaines, in National Oil Pipe Line Co. v. Teel, 95 Tex. 591, 68 S. W. 980, held, in a case involving contracts very similar to the one in question, that the same were unilateral, and said that, "viewing the same in the light most favorable to the grantees, they did not pass any interest in the lands, but were mere contracts for an option by which they might acquire such an interest," saying that a naked agreement by which one promises to convey to another an interest in land, in consideration of money to be paid or acts to be performed by such other, but which does not bind the other to pay or perform the consideration, as the case may be, cannot be enforced. In such case there is a want of mutuality in the agreement; the one party promises to do something; the other does not promise absolutely to do anything; hence there is no consideration to support a contract, and it is void.

In the case of Huggins v. Daley, supra, it was held, as shown by the syllabus, under a contract somewhat similar to the one under consideration, that the boring of a well within 90 days was a condition precedent to the continuance of an oil and gas lease, which, in consideration of $1, granted all the oil and gas in certain lands, with the privilege of operating therefor, for a period of 5 years, and as much longer as oil or gas is found in paying quantities, not exceeding 35 years from date, with a royalty of one-seventh part or share of the oil produced and saved, but with a proviso that a well shall be completed within 90 days, in default of...