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(222 S.W.)

the suits, with his person or property. Smith PYE et al. v. CARD WELL. (No. 2766.) V. Adams, 27 Tex. 30; Salado College v.

Davis, 47 Tex. 134; Johnson v. King, 64 Tex. (Supreme Court of Texas. May 19, 1920.)

226. 1. Malicious prosecution moll-Interference

[2] It is claimed that the rule stated should with person or property essential.

not govern this case for two reasons: First, Damages will not be awarded for the prose- that since in each suit a foreclosure was cution of civil suits with malice and without sought of an alleged chattel mortgage lien, probable cause, unless the party sued suffers there existed the requisite interference with from interference by reason of the suits with appellee's property; and, second, that the his person or property.

rule should not be applied to a series of un2. Malicious prosecution om 47—Complaint al. founded and malicious suits, brought in

leging series of suits without probable cause furtherance of a conspiracy, in the names of pursuant to conspiracy held bad.

third persons as well as of the conspirators. A petition, alleging institution against plain- It is obvious that the attempt to foreclose tiff of seven successive chattel mortgage fore- the chattel mortgage caused no seizure of closure suits in furtherance of a conspiracy by any property. Besides in Johnson v. King, defendants to unlawfully extort money from supra, where there was an actual issuance plaintiff, causing plaintiff worry, annoyance, and of an attachment, the failure to seize any physical inconvenience, loss of sleep, peace of property under it was held fatal to the remind, and business, and certain expenses for attorney's fees, held not to state cause of action covery of damages for maliciously suing out in absence of allegation of facts showing that the attachment, without probable cause. plaintiff suffered by such suits interfering with

Under the rule, each suit could be maintainher person or property.

ed without liability to appellee save for the

costs. Judge Gould, speaking for the court in Certified Question from Court of Civil Ap- Salado College v. Davis, supra, said: peals of First Supreme Judicial District.

“In ordinary cases, where no further wrongful Action by Margaret Cardwell against B. F. act is complained of than the institution of a Pye and others. Judgment for plaintiff, and groundless suit, though done knowingly and defendants appealed to Court of Civil Appeals. with intent to harass, the award of costs is, Question certified in Supreme Court. Ques- the unjust vexation. (Cotterell v. Jones, 73

in contemplation of law, full compensation for tion answered.

Eng. Com. L. 727.) See, also, 179 S. W. 683.

"In such cases, the defendant recovers his Lewis Fisher, of Galveston, and B, F. Pye costs 'but no allowance is made for his time, and Lipscomb & Lipscomb, all of Beaumont,

indirect loss, annoyance, counsel fees.' for appellants.

(Sedg. on Dam. 38.) He proceeds: 'Every deGeorge Clough, of Houston, and Aubrey sarily" brought, experiences some injury or in

fendant against whom an action is "unnecesFuller, of Galveston, for appellee,

convenience beyond what the costs will com

pens him for.' This injury or inconvenience GREENWOOD, J. The question certified is results from a resort to the legally constituted whether a cause of action was alleged by tribunals; and it seems to be the policy of the appellee for damages, actual and exemplary, law to content itself with meting out something resulting from the institution against her of less than our ideas of natural justice would seren suits at the instigation of appellants. demand, rather than to increase the risks atIt was averred that the suits were brought in at the same time add to the difficulties and in

tending and discouraging such a resort, and furtherance of a conspiracy by the three tricacies of ordinary litigation." appellants to unlawfully extort money from appellee, which appellants knew she did not If it is not an actionable wrong for one owe; that appellants used the names of other person to bring an unfounded suit, to harass a persons in bringing the suits; that, as fast as defendant and extort money from him, it appelles employed counsel to present her cannot be actionable for two or more to join defense in each suit, it was dismissed and a in the same sort of suit. The single actor is new suit was filed in a different place; that certainly no less culpable when he proceeds the suits caused appellee great worry, annoy- alone and the injury is the same when he acts ance and physical inconvenience, and also alone or with others. As long as the law caused her to lose sleep, peace of mind, and makes the imposition of the costs the sole business; and that she incurred $50 attorney's penalty for the wrongful prosecution of civil fees; and she prayed for the recovery of litigation, without seizure of person or prop$250 actual damages and $700 exemplary erty, no greater penalty can be rightly imdamages.

posed for a series of wrongful suits of that [1] The rule is firmly established in Texas character than the imposition on the wrong. which denies an award of damages for the ful plaintiff of the accumulation of costs in prosecution of civil suits, with malice and the series of suits. Smith v. Adams, 27 Tex. without probable cause, unless the party sued 30. suffers some interference, by reason of the The sound reasoning of Judge Stayton, in

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Johnson v. King, in discussing the opinion of | 4. Mines and minerals m58-Option to aban. the Supreme Court of Vermont in Closson v. don oil and gas lease held valid. Staples, 42 Vt. 209, 1 Am. Rep. 316, is conclu- Where an oil and gas lease, executed on an sive against the contention that appellee independent consideration, gave lessee option ought to recover because appellants used the of abandoning the same on payment of $5, the names of other parties in some of the suits lease is not invalid, as inequitable or unilateral, against her; for Judge Stayton points out where it was distinctly provided that the sur

render should not affect existing rights. that, where Staples caused Burnham to prosecute a suit against Closson in the name of Burnham on a note which had been paid to Error to Court of Civil Appeals of Seventh Staples, the true foundation for a cause of Supreme Judicial District. action in favor of Closson, against Staples,

Suit by Mrs. M. J. Owens, as surviving was his use of an irresponsible person to bring the suit, so as to shield himself from the wife, in her own behalf and for her children, judgment for costs; that being the relief against the Corsicana Petroleum Company. which the law affords for such a wrong. ant was reversed, and cause remanded, by

On plaintiff's appeal, judgment for defend64 Tex. 230.

Here, there is no allegation that any person, the Court of Civil Appeals (169 S. W. 192), whose name was used in the suits against Court of Civil Appeals reversed, and that

and defendant brings error. Judgment of appellee, was not as solvent as appellants,

of trial court affirmed. and it is fairly inferable from the petition that all costs were paid by the plaintiffs in

Geo. O. Greer and W. H. Francis, both of the several suits or were adjudged against Dallas, and Carrigan, Montgomery & Britain, them alone.

of Wichita Falls, for plaintiff in error. We answer that, as held in the original Slay & Simon, of Ft. Worth, for defendants opinion of the Court of Civil Appeals, the in error. petition of appellee presented no cause of action for damages by reason of the mentioned

PHILLIPS, C. J. The suit of the plaintiff, suits.

Mrs. M. J. Owens as surviving wife of M. J. Owens, deceased, and in her own behalf and for their children, was to cancel a mineral or oil lease upon 188 acres of land executed

by herself and husband, June 6, 1911, in favor CORSICANA PETROLEUM CO. V. OWENS

of the Corsicana Petroleum Company, upon et al. (No. 2716.)

the several grounds: (1) That it was a unilat

eral agreement and therefore void; (2) that (Supreme Court of Texas. May 19, 1920.) the lessee had breached it by failing to com

plete an oil well on the premises within one 1, Mines and minerals 78(7)-Evidence held year from the date of the instrument; and

insufficient to raise issue of abandonment of (3) that the lease had been abandoned by oil lease.

the lessee. In a suit to forfeit an oil lease, evidence

In the trial court, a verdict was directed held insufficient to raise the issue of abandon- for the defendants. The honorable Court of ment.

Civil Appeals, on the appeal, beld the lease 2. Mines and minerals www58–Oil and gas lease to be void because unilateral; but in revers

held not invalid, because allowing lessor to ing the judgment, remanded the case for pay rent, instead of drilling a well,

trial upon the issue of estoppel made by the

Petroleum Company. An oil and gas lease, granted for valuable consideration, though the sum was small, which

The lease recited that the grantors, in congave the lessee the right to prospect on the sideration of $28.20 paid by the grantee, the land and to seven-eighths of oil, etc., found, and receipt being acknowledged, had granted, also in lieu of the lessee's completion of a well sold, etc., unto the grantee all the oil, gas, within one year, the right to extend time for coal and other minerals in and under the completion by making quarterly payments of land described, with the exclusive right to approximately $30, is not invalid, even though drill, mine and operate thereon for producing the lessee had the option of abandonment on oil, gas, coal and other minerals; to be held payment of a nominal sum.

by the grantee for the term of ten years from 3. Mines and minerals am 57—Option to aban- the date of the instrument and as much lon

don oil lease, based on independent considera. ger as oil, gas or other minerals were production, not unilateral.

ed in paying quantities; yielding to the granAn option contract, based on an independ- tors the 1/8 part of all oil produced and saved ent consideration, is not invalid, as unilateral; from the premises. The grantee agreed in hence where an oil and gas lease was supported the instrument to complete a well on the by an independent consideration, an option of premises within one year from the date of the abandonment on payment of $5 is not invalid. I instrument, or pay to the grantors as lease (222 S.W.) rental, $28.20 each three months in advances in lieu of its completing a well within the from the 6th day of June, 1912, from quarter first year, to extend the time for its completo quarter, to the end of the term, or until tion, within the term of the grant, by its the well was completed, or the lease surren- making the quarterly payments; and the dered as elsewhere stipulated in the instru- right or option to surrender the lease by payment; the drilling of 'such well to be full ing the sum of $5.00 and all other amounts consideration of the grant made by the in- due under it up to that time. There is nothstrument. A further clause provided that| ing unlawful about such a contract, and the in consideration of the payment of the $28.20 parties were privileged to make it. If the and the quarterly amounts, just mentioned, grantors were willing to accept the quarterly the grantee acquired and had the right and payments instead of the completion of a well option either to surrender the grant at any within the original period stipulated for its time upon the payment of the sum of $5.00 completion, that was their affair. They conand all amounts then due under the instru- tracted to that effect by the instrument. The ment and thereby be discharged from all fur- contract being fair, there can be no reason for ther obligation, the grant thereby becoming a court's striking down that part of it. null and void, or to continue the grant in full [3, 4] The grant of the right to the grantee force and effect from quarter to quarter and to surrender the lease by the payment of an from year to year by making the stipulated amount in addition to the original considquarterly payments which the grantors bound eration and all other amounts then due under themselves to accept when tendered, it being the instrument, relieved the grantee of any further recited that such option was granted requirement to complete a well. But the for a valuable and satisfactory consideration.grantors, for an independent consideration,

Before the end of the first year of the by their contract agreed that the grantee lease, M. J. Owens died, leaving his wife and should have that option. The unilateral ten children surviving. There was no admin-character of the agreement for the option, istration upon his estate. On June 6, 1912, is of no consequence. A contract for the one year from the date of the instrument, grant of an option is necessarily unilateral. Mrs. Owens was paid and accepted the stipu- An option is granted for the purpose of enlated quarterly lease rental, $28.20, further abling the grantee to exercise the particular quarterly payments in that amount being right or not, as he may elect. The value regularly paid to and accepted by her down of it consists in that privilege. Owners of to and including the payment due December property have the unquestioned power to 6, 1912. This extended and carried the lease, grant such rights with respect to it. They according to its terms, 'to March 6, 1913. On are free to validly make such contracts. this latter date, a further quarterly payment When so made, it is the duty of courts to was duly tendered Mrs. Owens, but its ac- uphold and enforce them. A contract for ceptance was refused. On March 28, 1913, the grant of an option, limited to a definite the Petroleum Company began preparations time, is therefore valid and enforcible if supto drill a well on the premises. Actual drill- ported by an independent consideration. Naing of the well began on April 7, 1913, at an tional Oil & Pipe Line Co. v. Teel, 95 Tex. expense of $14,000.00 in that connection up 586, 86 S. W. 979. In many valid contracts : to the time the present suit was filed on May the promise is only on one side. They are 14, 1913. The well was completed July 5, unilateral. As to them, the inquiry is not 1913, producing oil in paying quantities, with whether they are of that character, but an average of 117 barrels of oil per day. whether they are supported by a considera

[1] The issue of abandonment of the lease tion. In return for the consideration paid was, in our opinion, not raised by the evi- them, the grantors here agreed that the grandence. The parties to the lease were compe- tee should have the right to surrender the tent to contract. No fraud or imposition of lease on the terms stated. If the right was any kind is charged. The question in the not exercised, the grantee would remain case, therefore, is simply whether the terms bound by its covenants. If exercised, the of the lease are such as to make it unen- grantors would be free to deal with the premforcible.

ises. A surrender was not to affect any exist[2] We fail to see anything in the terms ing liability. There is nothing inequitable of the several agreements evidenced by the about such an agreement. Its presence in instrument which invalidates it. The finding the instrument did not invalidate it. Guffey of oil upon the land was merely prospective. v. Smith, 237 U. S. 101, 35 Sup. Ct. 526, 59 For a valuable consideration, sa tisfactory to L. Ed. 856; Rich v. Doneghey, 177 Pac. 86, 3 themselves, the grantors by the instrument A. L. R. 352. gave the grantee the right to prospect upon The judgment of the Court of Civil Appeals the land for a definite period; the right to is reversed and the judgment of the District seven-eighths of the oil if found; the right, Court is affirmed.

a number of lots, plaintiff is entitled to reCOLLINS V, PECOS & N. T. RY. CO. cover the amount which under the contract he (No. 2807.)

would presumably have earned in the absence

of showing by defendants that plaintiffs could (Supreme Court of Texas. May 26, 1920.) not or would not have performed the contract,

regardless of its breach by defendants. Appeal and error Om 1114-Cause remanded to appellate court to determine unconsidered as

Error to Court of Civil Appeals of Second signments.

Supreme Judicial District. Where the Court of Civil Appeals errone

Action by A. F. Park against C. A. Swartz ously reversed the judgment of the 'district court on one assignment of error without con

and others. Judgment of the district court sidering the other assignments presenting ques. I for the plaintiff was reversed by the Court tions on which its jurisdiction was final, the of Civil Appeals (159 S. W. 338), and plainSupreme Court will not affirm the judgment of tiff brings error. Judgment of the Court of the district court, but will remand the case to Civil Appeals reversed, and judgment of the the Court of Civil Appeals for the determina- district court affirmed. tion of those assignments.

Alexander Power & Ridgway, of Ft. Error to Court of Civil Appeals of Fourth Worth, for plaintiff in error.

Gover & Turner, of Ft. Worth, for defendSupreme Judicial District.

ants in error. On motion for rehearing. Motion overruled.

PHILLIPS, C. J. The defendants Swartz For former opinion, see 212 S. W. 477. and Harris entered into a written contract J. Marvin Jones, L. C. Barrett, and Jas. N. with the plaintiff Park whereby he was to Browning, all of Amarillo, for plaintiff in error. have the exclusive agency for the sale of Terry, Cavin & Mills, of Galveston, Madden, certain lots belonging to the defendants in Trulove & Kimbrough, of Amarillo, Carl Gilli- a town in Oklahoma for a stipulated comland, of Hereford, and Black & Smedley, of pensation for each sale. According to the Austin, for defendant in error:

findings of the trial court the plaintiff enter

ed upon the performance of the contract, exPHILLIPS, C. J. The Railway Company's pending about $1,000.00 in advertising the lots, motion for rehearing is overruled. Whether for traveling expenses, etc., in carrying out the injuries of the plaintiff were proximately the contract; and making a number of sales. caused by the Railway Company's negligence, while the contract was in full force, the was a question of fact and for the jury's de

defendants breached it and made its further cision. The holding of the Commission of performance by the plaintiff impossible by Appeals on the question, as reflected in its

selling the remaining lots themselves or opinion, is in our view correct.

through other means. The plaintiff, on his The Railway Company presented a num. part, had faithfully performed the contract ber of assignments in the Court of Civil

up to that time. His suit was for the breach Appeals (173 S. W. 250), but that court dis- of the contract. He was awarded judgment posed of the appeal on only one of them. in the amount as fixed by the contract for Its decision made consideration of the other the sales which the action of the defendants assignments unnecessary. A number of those deprived him from making. assignments present questions of which the

On the appeal, the judgment was reversed jurisdiction of the Court of Civil Appeals is by the honorable Court of Civil Appeals for final. The Railway Company is entitled to the Second District, Chief Justice Conner have those assignments determined. In

dissenting. Because of the dissent and our stead, therefore, of affirming the judgment belief that the judgment should have been of the District Court, as was done on the affirmed, we granted the writ of error. original report of the Commission of Appeals

The loss suffered by the plaintiff is the the cause will be remanded to the Court of measure of his damages. That loss is the Civil Appeals for the determination of those amount as fixed by the contract which he assignments.

would have earned but for the wrongful conduct of the defendants in preventing him from earning it. Upon establishing the con

tract, his readiness and willingness to perPARK v. SWARTZ et al. (No. 2596.)

form it, and that he was denied opportunity (Supreme Court of Texas. May 26, 1920.) to perform it through its wrongful breach

by the defendants, rendering its performBrokers all-Breach of contract for exclu.

ance by him impossible, the plaintiff made sive agency entities plaintiff to probable earn- out his case; and prima facie was entitled ings.

as damages to the amount which under the Where defendants breached a contract giv- contract he would, presumably, have earned ing plaintiff the exclusive agency for the sale of | if his rights had been respected. If the (222 S.W.) plaintiff could not or would not have per- | case and the decision of another Court of formed the contract, regardless of its breach Civil Appeals. by the defendants, it was incumbent upon them to make the proof. This, they failed Error to Court of Civil Appeals of Seventh to do. Their action alone, according to the Supreme Judicial District. record here, was responsible for the plain

Garnishment proceeding by the Warren tiff's being unable to perform it fully and completely. They denied him the right to Hardware Company against S. J. Dodson and

others. Judgment for plaintiff was reversed, perform it and are in no position to complain and a judgment rendered in favor of certain of the judgment. We think Judge Conner's view of the case (162 S. W. 952), and plaintiff brings error.

defendants, by the Court of Civil Appeals was correct.

Writ of error dismissed. The judgment of the Court of Civil Appeals is reversed and the judgment of the District Knight & Slaton, of Hereford, and MoseCourt is affirmed.

ley & Barcus, of Weatherford, for plaintiff in error.

Carl Gilliland, of Hereford, and S. J. Dodson, of El Paso, for defendants in error.

PHILLIPS, C. J. [1, 2] The suit was a WARREN HARDWARE CO. V. DODSON et al. (No. 2677.)

garnishment proceeding based upon a judg

ment. The amount in controversy in the (Supreme Court of Texas. May 26, 1920.) original suit was within the jurisdiction of

the County Court. The case does not fall 1. Appeal and error Ow64-Decision of Court within any of the exceptions provided in of Civil Appeals held final.

Article 1591, and the decision of the Court The decision of the Court of Civil Appeals of Civil Appeals is therefore final. The writ in a garnishment proceeding based on a judg- of error was granted because of probable ment is final, where the amount in controversy conflict between the decision and that of anin the original suit was within the jurisdiction other Court of Civil Appeals. But the Suof the county court, and the case does not fall preme Court has no authority to grant a writ within any of the exceptions provided in Rev. of error because of such conflict in a case St. art. 1591.

of which the Court of Civil Appeals has 2. Courts em 247(7)-Supreme Court cannot

final jurisdiction. Gallagher V. Rahm, 88 grant writ of error, where Court of Civil Tex. 514, 32 S. W. 523. Appeals has final jurisdiction.

The writ was granted before the decision In a case of which the Court of Civil Ap- of Cole v. State of Texas, 106 Tex. 472, 170 peals has final jurisdiction, the Supreme Court S. W. 1036. has no authority to grant a writ of error be- The case is accordingly dismissed for want cause of conflict between the decision in such 'of jurisdiction.

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