Mecom v. Gallagher

McGILL, Justice

(concurring).

I concur in the disposition of this case, but since my views are not entirely in accord with those of Justice SUTTON and Chief Justice PRICE, I deem it advisable to state them.

Appellant has never been accorded the privilege of exercising his preference right to purchase in conformity with his lease. Paragraph 7 required the owners to give 'him written notice of their willingness to sell and gave him thirty days to exercise ■his preference right to purchase after receipt of such notice. The required notice is tantamount to an irrevocable offer to sell by the Gutierrez heirs. He has never received such notice. If he were attempting to force the heirs to sell on the strength of the notice of December 21, 1943, it could not be seriously contended that he could do so because such notice was not given by anyone authorized to bind them. The mere listing of the property for sale by one of the heirs with Gonzalez was insufficient to bind the other heirs. Gonzalez was only a special agent with authority to find a purchaser. He was without authority to bind the heirs to an irrevocable offer to sell. Loma Vista Development Co. v. Johnson, 142 Tex. 686, 180 S.W.2d 922. That Calixto Gutierrez had no such authority affirmatively appears from the escrow agreement of January 31, 1944, which required the signatures and acknowledgments of all of the heirs with the proviso that the vendee should have the right to declare it void and the return of the $2,000 deposited should each of the vendors fail to execute and acknowledge it. There is no evidence that Carlos Gutierrez had such authority. Therefore, appellant never received the required notice which would have been equivalent to an irrevocable offer to sell by the heirs for which he contracted. I think it quite clear that he never waived such notice. Waiver of such notice was an affirmative defense which was required to be set forth affirmatively if relied on. Rule 94, Texas Rules of Civil Procedure, and Commentaries Frankie, p. 43; Hodges v. Cole, Tex.Civ.App., 117 S.W.2d 822, 825; Reid v. Associated Employers, Lloyds, Tex.Civ.App., 164 S.W.2d 584, Writ Ref. Also, no issue of waiver of notice was submitted, and none requested; therefore appellees waived this ground of defense. Rule 279, R.C.P. It is apparent from the issues submitted that the trial court regarded the notice given sufficient as a matter of law, and the issues were submitted on that theory. The jury did not find that he waived his preference right. Their findings are: (1) On December 21, 1943, plaintiff did not express any dissatisfaction with the kind of notice that was being given him of the proposed purchaser, Gallagher, and price and terms under which the owners were willing to sell; (2) on December 21, 1943, plaintiff advised Gallagher and Carlos Gutierrez that he would not be interested in 'buying the land on those terms; (3) plaintiff was unwilling to buy the land on the terms proposed by Gallagher. He did not advise Gallagher or “Gutierrez” that he was willing to purchase within thirty days after he received the notice of December 21, 1943; (4) plaintiff by his conduct lead defendant Gallagher to believe that he, Mecom, acquiesced in, that is, was agreeable to the land being sold by the Gutierrez heirs to Gallagher instead of to himself, Mecom; (5) the owners did not deny plaintiff the right to purchase the land at the same price and terms on which defendant Gallagher offered to purchase prior to the sale of the land to Gallagher; and (6) after December 21, 1943, plaintiff made an offer to Carlos Gutierrez to buy the land for the price of $4.50 per acre.

Appellant’s letter of January 22, 1944, to all the heirs, cannot be construed as a waiver. In it he specifically called their attention to the fact that they had not given him the notice and stated what he would do should they do so. The common accepted definition of waiver has been said to be:

“An intentional release or relinquishment of a right that is at the time known to the party making it and ⅛ a voluntary act implying a purpose and intention to forego something of value or an advantage to which he had a legal right.” Hodges v. Cole, 117 S.W.2d loc. cit. 825, 2nd col.

Under paragraph 7 of the lease appellant’s right to purchase was made to depend upon the giving of the specified notice by the owners. Courreges v. System Freight Service, Tex.Civ.App., 152 S.W.2d 841. Until such notice was given his preference right was inchoate only. 35 C.J. p. 1039, Sec. 182; 51 C.J.S., Landlord and Tenant, § 81. It was not such an existing legal right which he was entitled to enforce as is generally accepted as the subject of a waiver. I think, however, that it was such a right as appellant could estop himself from asserting. In Edwards v. Dickson, 66 Tex. 613, 2 S.W. 718, Judge Gaines quoted and applied the rule stated by Pomeroy & Bigelow to the effect that the conduct creating an estoppel must be something which amounts to a representation or concealment of facts eitl>-.r present or past or represented to be so; a representation concerning something in the future is a mere statement of intention or opinion, and is insufficient to create an estoppel. However, from the jury’s findings, especially Number (4) and the implied findings, by the court in support of the judgment it seems to me that appellant has estopped himself to assert his preference right. His statement to Gallagher that he was not interested in purchasing the land at the price that Gallagher was offering is more than an expression of intention or opinion, and under the jury’s findings amounted to a representation that he would not assert his preference right, even though he had the privilege of doing so. Certainly such conduct on his part is incompatible with honesty and fair dealing.

On this theory I concur in the judgment of affirmance.