Asbury v. Tucker

.DUNKLIN, J. On February 21, 1930, H. N. Tucker executed to R. R. .Asbury an oil and gas lease on SO acres of land situated in Young county. The consideration recited in the lease was $1,000 cash in hand paid; and according to the stipulations in the lease the lessee was to [395] pay an additional sum of $1,000 out of one-fourtii of seven-eighths of the oil produced from the lease, and also to drill an oil well on the land to a depth of 1,000 feet unless oil or gas in paying quantities be found at a lesser depth, and to spud in the well within forty days from the date of the lease; also to pay to the lessor one-eighth of all the oil or gas that might be produced from the land. Contemporaneously with the execution of the lease, Tucker and Asbury entered into a written contract reciting the execution of the lease and the consideration to be paid and performed by the lessee. The contract also stipulated that tile cash consideration of $1,-000 was to be paid upon approval of the title and delivery of the lease evidenced by As-bury’s check in that sum. There was a further stipulation that the lease, together with a copy of the contract and the above-mentioned check for the cash consideration, was to be placed in escrow in the First National Bank of Olney to be held" by that bank pending preparation and examination of the abstract of title for delivery, in accordance with the terms of the contract. Tucker was named in the contract as party of the first part and Asbury as party of the second part, and the lease contained this further stipulation: “Party of the first part agrees to furnish to party of the second part complete abstract of title, certified down to date showing good title in him as to said land, said abstract to furnish within a reasonable length of time and as soon as same are returned from attorney examining title in connection with deal being made with Geo. 11. Pace. Party of the- second part is to be' allowed a period of ten days after abstracts are submitted in which to have same examined and either accept the title or point out to first party in writing any objections that may have been disclosed by examination. In ease objections are pointed out, then party of the first part is to be allowed ten days in which to have same cured or corrected and he herein agrees to use all due diligence to properly correct same. Upon approval of title, the escrow bank herein named is authorized to deliver the lease to party of the second part and the cheek of said second party for the $1,000.00 to party of the first part. If objections to said title are raised which it is impossible to cure or correct in the time allowed, the said bank is authorized to return the check to party of the second part and the lease to party of the first part, provided that party of the second part is to have the privilege of waiving objections and accepting the title. It is understood and agreed that the . check for $1,000.00 is to be held in escrow but that the bank on which same is drawn .will guarantee payment of the same when presented, if properly endorsed.” This suit was instituted by H. N. Tucker against R. R. Asbury, alleging the execution of the instruments referred to above, the failure to pay the $1,000 evidenced by the check, and for $2,000 for the depreciation in value of the lease, and $2,500 for the defendant’s-failure to drill the well as stipulated in the contract. Plaintiff alleged that he in all things complied with his obligations recited in the contract; that at great trouble and expense he procured an abstract of title to the land and tendered the same to .the defendant for his examination; that defendant failed and refused to accept such abstract and to have the title examined and stopped the payment of the $1,000 check, claiming that the contract was not binding upon him, thus evidencing his intention to abandon the contract; and that thereby he waived all objections to the title, if any such should appear in the abstract. Among other defenses, defendant specially pleaded that after one or more wells in the vicinity of the 80-acre tract had been drilled in as dry holes, the plaintiff advised -the defendant that the abstract was ready for delivery but he did not deliver it to the defendant, nor did he offer to deliver it to him within a reasonable time, as required by the contract, and by reason of such failure plaintiff himself breached the contract. The trial was before -the court without ai jury, and judgment was^ rendered in favor of plaintiff for the sum of $880 as the difference between the $1,000 cash consideration recited in the contract between the parties and the sum of $120, the market vajue of the lease, title to which still remained in the plaintiff, upon findings by the court recited in the judgment that defendant had breached his contract after plaintiff had fully complied with his obligations embodied therein. As shown by the testimony of Mr. A. A. Cooper, who was introduced as a witness for the, plaintiff, the contract and lease were drawn up by him for the .parties in his office in Olney, Tex., on or about the date of those instruments, and the check which was deposited in escrow along with those papers was also signed by the defendant in the office of Mr. Cooper. Mr. Cooper further testified as follows: “As to what was said and done between the three of us at that time in relation to the abstract and how it should be handled, the abstract at that time was in the hands of Mr. George L. Face of Wichita Falls, who was examining it in connection with another deal and we were to get that abstract back as soon as Mr. Pace had finished with it. The abstract was to come back to me. It was my understanding that 3\lr. Asbury was to get the abstract át my office, as there was no address given to me to forward the abstract anywhere. “The furnishing of the abstract was discussed in my office, and it was all agreed to>> [396] that we were to use the same abstract in both deals, and Mr. Asbury was to be notified as soon as we got the abstract back from Mr. Pace, and it’s my recollection he was to get the abstract at my office. I would have required a deposit on the abstract for the reason that it was being held in Dallas for the loan company who had a loan on the land, and we had to make a deposit! to get the abstract. Mr. Pace had put up a $100.00 deposit on the abstract and when he mailed it back he wanted his $100.00 back, and I would have required a deposit before I would have delivered this, and that was also mentioned to Mr. Asbury. I don’t think that he objected to that requirement, I do not recall that he did. It was understood that the Texas Land & Mortgage Company required a deposit of $100.00 on the abstract to guarantee the return of the abstract to them. That was also discussed in Mr. Asbury’s presence, and he knew that fact, and he also knew that the Texas Land & Mortgage Company had a loan against this land, and that subject was also mentioned, and the abstract was borrowed from them to use in this deal.” The contract between the parties in specific terms required the plaintiff to furnish and deliver the abstract to the defendant, which necessarily implied that it was to be furnished at plaintiff’s expense. Even though it could be said that the delivery of the abstract was to be made to the defendant in Mr. Cooper’s office, it was clearly incumbent upon the plaintiff to show that he was ready and willing to furnish and deliver it when the defendant should call for it. The testimony of both plaintiff and Mr. Cooper was that the latter was acting for the plaintiff in the matter and there was no proof of any delivery or tender of the abstract by plaintiff himself. If Mr. - Cooper’s testimony would support a finding that there was a parol agreement between the parties made contemporaneously with the execution of the instruments, to the effect that the defendant was to pay $100 for the abstract, such parol agreement could not be given effect to relieve the plaintiff of the burden of showing a full compliance with his obligations in order to support a recovery, (1) because there was no pleading to support that parol agreement; and (2) it was in violation of the written contract. Texas Illinois Co. v. Gant (Tex. Civ. App.) 251 S. W. 575; Winkler v. Creekmore (Tex. Com. App.) 256 S. W. 257, and authorities there cited. Accordingly, appellant’s assignment of error presenting the contention that plaintiff failed to comply with his part of the contract, and for that reason, independently of all others, he did not make out a prima facie case, is sustained, and the judgment of the trial ■court is reversed and the cause is remanded without discussing other assignments, a determination of which becomes unnecessary.