Williamson v. Davey , 52 Tex. Civ. App. 353 ( 1908 )

This suit was brought by plaintiffs in error, George E. Williamson and W. G. Handling, against defendants in error, M. A. Davey and J. H. Hill, to recover $31,125 damages upon an alleged breach of guaranty made by the latter to plaintiff Williamson, guaranteeing the performance by M. A. Quina and Joseph Espalla of an oil lease contract; and, in the alternative, to rescind a sale of certain oil lands made by defendants to Williamson, to which lands the lease contract above mentioned was appurtenant, and to recover the purchase money.

The defendants, after interposing a number of special exceptions to plaintiffs' petition, pleaded specially (1) that plaintiffs failed to exercise ordinary care and diligence to protect them on their guaranty against Quina and Espalla; (2) that plaintiffs permitted said lessees to assign their contract to the Quina Oil Company, a corporation, without defendants' consent, and looked to the company, instead of Quina and Espalla, for its performance; and (3) that plaintiffs first breached the contract by failing to pay the purchase money for the land according to the terms of the contract of sale.

Besides pleading these matters, defendant Hill filed a plea of non esi factum that his power of attorney to Davey, under which his interest in the land and appurtenant lease was sold, expressly provided that his attorney in fact should not bind him by any covenants of warranty whatever, and that, therefore, the guaranty as to him was void.

The trial was without a jury and resulted in a judgment for the defendants.

The assignments of error assail the trial court's conclusions of fact and of law. While we adopt such conclusions, it is unnecessary to state them in extenso. But we deem it sufficient to say that the evidence is reasonably sufficient to prove all the defensive matters pleaded, and that, under the law governing such facts, plaintiffs were not entitled to recover the damages sued for, nor to a rescission of the contract of sale.

The assignments are overruled and the judgment affirmed.

Affirmed.

Writ of error refused.