Contract — Guaranty — Breach — Defense.
Defendants sold to plaintiffs a tract of land and guaranteed the performance by the lessees of a certain oil lease which was appurtenant to the land and was transferred with it; plaintiffs sued the defendants for damages for breach of the contract by the lessees and in the alternative for a rescission of the sale. The defendants answered:
(1) That plaintiffs failed to exercise ordinary care and diligence to protect defendants on their guaranty against the lessees.
(2) That plaintiffs permitted the lessees to assign their lease contract to a third party without defendants' consent, and looked to such third party for the performance of the contract.
(3) That plaintiffs first breached the contract by failing to pay the purchase money for the land according to the terms of the sale.
(4) And that the covenant of guaranty was not binding as to one of the defendants because the deed was executed by an attorney in fact who had no authority to execute said covenant for said defendant.
Held, the matters plead in defense having been sustained by proof, the plaintiffs were not entitled either to damages or to a rescission of the sale.
NEILL, ASSOCIATE JUSTICE. —
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.