Southwestern Oil Corp. v. Bois D'Arc Creek Oil & Gas Co. , 1921 Tex. App. LEXIS 263 ( 1921 )

Appellee insists, and we agree, that this court should not consider the assignments numbered 16 and 17 and 1 to 10, inclusive, in appellant's brief, because, and for other reasons, same are grouped in violation of the rules. But we do not agree with appellee in its insistence that the other seven assignments in said brief should not be considered because predicated on acts of the trial court not complained of in the motion for a new trial filed by appellant in the court below. It is settled, when the judgment is based entirely on findings made by the court (Craver v. Greer, 107 Tex. 356, 179 S.W. 862; Hess v. Turney, 109 Tex. 208,203 S.W. 593), or entirely on special findings by a jury (Varley v. Sales Co., 191 S.W. 611; Rudasill v. Rudasill, 219 S.W. 843; Barkely v. Gibbs [Com. App.] 227 S.W. 1099), that it is not indispensable to the right of the losing party who duly excepted thereto, to have the judgment reviewed on appeal, that he should have filed and had the trial court to act on a motion for a new trial. The difference between the cases cited above and this one lies in the fact that here the judgment is based in part on findings by the court and in part on a special finding by a jury. We think that difference of no importance, and see no reason why, if the effect of the statutes discussed in the opinions in those cases was, as determined, to entitle the respective appellants therein to the review sought, the appellant here, by force of the same statutes, is not entitled to have the assignments in question considered.

Of the seven assignments entitled to consideration we think the one numbered 13, in which the judgment is attacked as without the support of testimony, should be sustained. The case seems to have been tried on the theory that the failure of appellant to "return" the leases to appellee when it abandoned the contract rendered the former liable to the latter for the value of the leases without respect to whether same had then lapsed for failure to comply with the terms thereof or not. We think the theory was an erroneous one. When, as alleged in appellee's petition, appellant abandoned the contract and breached its undertaking to thereupon return the leases to appellee, a cause of action at once arose in appellee's favor for the loss it thereby suffered, but the loss was not properly measurable by the value of the leases before they lapsed, unless they lapsed for a failure of appellant, after same were assigned to it and before it abandoned the contract, to comply with their terms. The effect of appellant's abandonment of the contract was to devest it of the rights conferred by the leases and revest same in appellee. Oil Co. v. Shipman, 233 Ill. 9, 84 N.E. 53, 122 Am. St. Rep. 144; Smith v. Root,66 W. Va. 633, 66 S.E. 1005, 30 L.R.A. (N.S.) 176. The latter might at once, free from any right of interference on the part of appellant, itself have exercised the right conferred by the leases, or again assigned such rights to another. As it might, if any of the leases were forfeited for noncompliance with the terms thereof after appellant abandoned the contract, the responsibility for the loss thereby incurred was on appellee, and was not properly chargeable against appellant. Therefore, to entitle it to recover as determined by the judgment, the burden was on appellee to show that the leases lapsed because of a failure by appellant to comply with conditions therein which should have been performed after same were assigned to it and before it abandoned its contract with appellee. Not only is there no testimony in the record showing such failure by appellant, but there is none showing that any of the leases ever lapsed, and it affirmatively and conclusively appears from testimony the trial court heard that none of the leases had not lapsed at the time appellant abandoned the contract. It follows that the judgment was not warranted by the testimony. Therefore it will be reversed, and the cause will be remanded to the court below for a new trial.