Nelson v. Downtain , 249 S.W. 241 ( 1922 )

It is with regret that the writer must dissent from the conclusions reached by the majority in this cause. I do not believe that the findings of the jury authorize or justify a judgment for plaintiffs in this suit. Plaintiffs pleaded in the alternative that the interlineations made in the contract rendered the forfeiture clause ambiguous. That is, that in the use of the word "plant" it was intended that it should apply only to a rock-crushing plant, and not to a plant necessary for and to be used in the extraction of sand and gravel. The question whether the clause was ambiguous or not was submitted to the jury, and they found that it was not ambiguous. It may be truly said that the question of whether the terms of a contract are ambiguous is for the court and not for the jury. But where the court submits the issue to the jury, and they find that the contract is not ambiguous, and the court renders judgment in part on such findings, it seems to the writer that it must be held that he adopts the findings of the jury upon that issue, and that the judgment rendered upon that finding, in part, imports a finding by the court that the contract was not ambiguous. To the second and third issues, the jury made no answer, but to the fourth issue, to wit:

"Did the plaintiffs and defendant agree that a failure on the part of the lessee to begin the construction of the rock-crushing plant within 60 days from the date of the lease would render the lease null and void, and was the failure of the lease so to provide due to mistake on the part of plaintiffs induced by fraud on the part of defendant?"

the jury answered to the first question. "Void," and to the second, "No." Therefore the jury found that no actionable fraud was committed by the defendant in the procuring of the contract. In reply to the question of what consideration was paid by defendant to plaintiffs for the execution and delivery of said lease, other than the royalties afterwards paid, the jury answered, "$1.00." The sixth issue was to be answered, if the jury had answered any one of questions, 1, 2, 3, 4, or 5, in the affirmative. They did not answer, as before stated, questions 2 and 3 at all. Question 4 they answered, in part at least, in the negative. The jury ananswered in the negative to the question:

"Did the defendant, within 60 days from the 29th day of October, A.D. 1919, begin construction of a necessary rock-crushing plant? In connection with this question you are instructed that the word ``plant' means, as used in reference to undertaking such as that provided in the lease contract, the fixtures, machinery, apparatus, etc., necessary to carry on the proposed work."

If the use of the word "plant" in the forfeiture clause of the contract did not render the clause ambiguous, then it appears to the writer that if the fixtures, machinery, apparatus, etc., necessary to carry on the work of extracting the sand and gravel was of a character that they could reasonably be called a plant, then the defendant had complied with that part of his contract, and no right of forfeiture was shown. The word "plant," in a statute declaring that a master is liable for any injury to his servant caused by any defect in the ways, works, machinery, or plant, comprises whatever apparatus, fixtures, or tools a master uses in his business. 3 Words and Phrases, First and Second Series, p. 1049; Sloss-Sheffield Steel Iron Co. v. Mobley, 139 Ala. 425, 36 So. 181, 184.

In Todd v. Gernert, 223 Pa. 103, 72 A. 249, the word "plant," as used in the mechanic's Lien Act, was held to mean property owned or used in carrying on some trade or business. Webster's International Dictionary defines the word "plant" as the whole machinery and apparatus employed in carrying on a trade or mechanical business.

The defendant testified: That he and a Mr. Waldrip, both of them civil engineers, first made a survey of the land under lease. That then he began the cutting away of the timber from the ledge of the limestone rock. That he constructed a pit for the Eastland Sand Gravel Company, the name under which defendant was doing business, about 70x200 feet. That then he constructed a driveway and ditch leading from this pit about 8 feet wide and 200 feet long. Then he built some corrals for his horses and three houses on the land. That he then built a tank across a gully, which was perhaps 170 feet long and 5 to 7 feet wide at the top and 10 to 12 feet wide at the bottom. This was necessary in order to keep the surface water from coming down over the ledge in question and to provide water for defendant's stock. Other work was done, such as cutting timber for the foundation of the rock-crushing plant, and defendant testified that the total cost of this work of preparation was between $5,000 and $6,000. That he was to use some of the posts cut off the land to build a crusher bin 24 feet long and 16 feet wide. He testified that soon after the contract was made he began to write letters and make inquiries as to where he could buy rock-crushing machinery, and that finally he secured the promise of some from a party near El Paso. That there was a great deal of road building in the state at that time, and it was difficult to buy such machinery as he needed. That he had ordered the machinery to be shipped, when Dr. Downtain refused to accept payment for certain gravel taken off the place, and that thereupon he notified the parties not to ship the machinery. That he did market some limestone rock off this land before the writ of sequestration was served on him whereby the plaintiff secured possession of the premises. That at that time, on account of the extensive road building in Eastland county, there was a great demand, not only for crushed rock, but also for sand and gravel.

Plaintiffs relied, in their effort to have a rescission or cancellation of the contract declared, on their allegation that fraud had been practiced by defendant in securing the plaintiffs' signature to the written contract after the interlineations had been made, or on a mistake by plaintiffs, induced by such fraud. It is not alleged by what means or conditions the fraud was practiced. It is elementary that fraud cannot be shown unless specifically pleaded, and that general allegations of fraud without specific allegation of misstatement or acts constituting the fraud is not good, even as against a general demurrer. Parker v. Allen,33 Tex. Civ. App. 206, 76 S.W. 74, writ denied; Black on Rescission, p. 98. A contract must state the conditions upon which a forfeiture is sought, and a forfeiture will not be declared upon a condition not clearly expressed in the contract, Pierce v. T. P. C. Oil Co. (Tex. Civ. App.) 225 S.W. 193. If, as said in plaintiffs' allegation, the contract was ambiguous, then it seems that where a forfeiture clause is ambiguous, the ambiguity condemns it as a forfeiture provision. As said by Chief Justice Phillips in Decker v. Kirlicks, 110 Tex. 90, 216 S.W. 385:

"If the provision is ambiguous, that alone condemns it as a forfeiture provision. A forfeiture should rest upon surer ground. Where a contract is so vague in its terms that a court cannot determine its meaning, it would be unjust to enforce a forfeiture under it against one whose only fault has been to possibly mistake its meaning. Forfeitures are harsh and punitive in their operation. They are not favored by the law, and ought not to be. The authority to forfeit a vested right or estate should not rest in provisions whose meaning is uncertain and obscure. It should be found only in language which is plain and clear, whose unequivocal character may render its exercise fair and rightful."

It is true that the jury found that the use of the word "plant" did not make the forfeiture clause ambiguous. But if it is not ambiguous, then, for the reasons above stated, the writer does not think that the trial court was justified in entering a judgment declaring a forfeiture.

Owing to the press of other official duties, the writer has not found time to go into the record carefully, and to write more fully upon the questions raised in the assignments of appellant. But in the writer's opinion, the judgment of the lower court should be reversed, and the cause remanded. He believes that upon the answers of the jury the trial court should have, at most, declared that such answers were, in effect, contradictory of each other, and set aside such verdict and held the case for another trial.

Since writing the above, Chief Justice CONNER has changed the first draft of his opinion, but I will let the dissent stand as written.