
    BOOTH et al. v. CAMPBELL et al.
    (No. 2528.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 23, 1922.
    Dissenting Opinion, April 26, 1922.)
    1. Trial <@=3199 — Construction of written lease should not be submitted to jury.
    Where the terms of the written lease between the parties were unambiguous, it was the duty of the court to construe the lease, and it was therefore error to instruct the jury that it should be construed strictly against forfeiture.
    2. Landlord and tenant <3=3 137 — Lease held to authorize tenant to cut ail timber if he intended to cultivate all the land.
    W7here a lease gave the tenant the privilege of putting more land into cultivation, and gave him the timber from the land which he put into cultivation, but required such land to be in rectangular shape adjoining the field then in cultivatipn, the restriction as to the shape and location of the tract to be cleared applied only in the event that the tenant did not intend to cultivate all of the land, and he could clear it all if he intended in good faith to cultivate it all.
    3. Landlord and tenant <©=3 137 — Lease held not to authorize tenant to cut timber from land he did not intend to cultivate.
    A lease giving a tenant the privilege of cultivating more land, and giving him the timber from the land he intended to cultivate, did not authorize the tenant to cut the timber from all of the land unless he in good faith intended to cultivate all of the land, so that, in an action to forfeit the lease for cutting timber, the question for the jury was whether the tenant in good faith intended to cultivate all of the land from which he was cutting timber.
    4. Landlord and tenant <©=3137 — Jury’s finding held not equivalent to finding tenant intended to cultivate all the land from which he was cutting timber.
    Where a tenant was entitled to cut timber only from land which he in good faith intended to cultivate, but the trial court, instead of construing the lease and submitting the question of the tenant’s intention to the jury, submitted to them the issue whether the cutting was being done in violation of the terms of the lease, which must be construed against forfeiture, the jury’s finding in favor of the tenant was, not equivalent to a finding that the tenant in good faith intended to cultivate all of the land.
    5. Sequestration <©=20 — Judgment should not be rendered against sureties on sequestration bond in original suit to which they are not parties.
    In a suit by a landlord against his tenants, where sequestration was issued, a judgment for the damages sustained by the tenants by reason of their eviction should not have been rendered against the sureties on the sequestration bond in the original action to which they were not made parties.
    Hodges, J., dissenting.
    Appeal from District Court, Tarrant County ; Bruce Young, Judge.
    Suit by W. B. Booth against A. Campbell and another, in which the defendants filed a counterclaim. Prom a judgment dismissing the action and rendering judgment for defendants against the sureties on the sequestration bond given by plaintiff, plaintiff and the sureties appeal. Reversed and remanded for new trial.
    August 24, 1919, appellant W. B. Booth and appellee A. Campbell entered into a contract by the terms of which the former leased to the latter for one year from December 28, 1919, 31 acres of land, a plat of which follows:
    
      
    
    The land was inclosed by a fence. A part thereof, to wit, the 11 acres marked “field,” east of the land, was in cultivation, and was separated from the other part thereof, marked “timber land,” by a fence on the north and west.
    Campbell was to pay Booth $10 a month as rent, and within times specified was to build a barn on the land, add two rooms to and repair a dwelling house thereon, and make and deliver a specified number of fence posts to Booth. The contract contained provisions as follows:
    "(3) Campbell has the privilege but shall not be required to put more land into cultivation adjoining the present field fence all at his own expense and to cultivate what additional land he may put in in a good farmerlike manner, he shall have all of the timber off the land which he shall thus put into cultivation but the additional land which he shall put into cultivation must be in a rectangle, and he shall use no timber except that off the land which he clears and cultivates. * * *
    
    “(9) If Campbell shall fail to perform the obligations herein undertaken and pay the rents in advance such failure shall at Booth’s election cancel this contract which shall then become null and void.”
    Campbell took possession of the land under the contract, and was living on same with his family January 20, 1920, when they were evicted therefrom by the sheriff, acting by virtue of a writ of sequestration sued out by Booth and appellant L. Berry, who owned an interest in the land, on the ground that appellee had breached the contract by cutting and removing timber therefrom in violation of its terms. The writ of sequestration was also against appellee Will Ashmore, who was living on the land with his family, and they were evicted therefrom at the same time. In his answer to the sequestration suit Campbell denied that he had breached the contract as charged by Booth and Berry, and by a plea in reconvention sought a recovery against them of $15,697 as actual damages he averred he suffered as a result of the eviction, and in addition thereto of $1,000 as exemplary damages. By a like plea in his answer Ashmore sought a recovery of actual damages in the sum of $2,000.
    At the trial Campbell testified that after he and Booth entered into the written contract he arranged with Booth to furnish material to build- a house on the land for Ash-more to live in, and-that, in connection with that arrangement, Booth agreed that he might clear all the land in order that Ash-more might have land to cultivate. Booth denied making such an agreement. Campbell further testified that he commenced cutting the timber adjoining the fence inclosing the “field” on the west, and cut north from thé Higgins tract, and had practically all the timber, except some adjoining and north of the fence inclosing the “field” on the north, when he was evicted from the land, and that he could and would have cut all the timber, and could and would have cultivated all of the land, that year if he had not been evicted. His testimony as to what he had done toward clearing the land for cultivation and as to what he could do was corroborated by .the testimony of other witnesses.
    The court instructed the jury as follows:
    “(1) Tou are instructed that the policy of the law is against penalties and forfeitures in contracts, and before the contract in evidence before you could be forfeited it must be strictly construed against such penalties and forfeitures and such provisions must be clearly shown to have been violated before the contract could be voided or forfeited by reason of the same. * * *
    “(3) This case is submitted to you upon special issues in the form of questions, which questions you will answer, taking into consideration all the facts and circumstances introduced in evidence before you.
    “Question 1. Prior to or at the time the writ of sequestration was sued out and served upon the defendant herein, and he was put out of possession of the premises which he occupied belonging to plaintiff, was the defendant cutting timber off of the premises in such a manner and place that said cutting was in violation of the provisions of the contract which you may find to have existed at said time and under which they were operating?”.
    The jury answered: “No.”
    “Or: Question 2. Was the defendant prior to or at the time he was put off of said premises cutting said timber in the manner and place as he had a right to do under the provisions of said contract?”
    The jury answered: “Yes.”
    The appeal is from a judgment that Booth and Berry take nothing by their suit, and that Campbell recover of them and the appellants J. W. Draughon and J. T. Brantley, the sureties on their sequestration bond, the sum of $3,000, 'and that Ashmore recover of the same parties $250, said sums being damages found by the jury.
    Payne & Morris, Baskin, Eastus & Greines, and John L. Poulter, all of Eort Worth, for appellants.
    Baltimore & Buck, of Port Worth, for appellees.
   WILESON, O. J.

(after stating the facts as above). As we view it, the contract between the parties was unambiguous, and it was the duty of the court to construe it. Cook v. Dennis, 61 Tex. 246; Dunn v. Price, 87 Tex. 318, 28 S. W. 681; 6 R. C. L. 862. Therefore wo think the instruction to the jury in the first paragraph of the court’s charge, as to the policy of the law with regard to “penalties and forfeitures in contracts,” should not have been given.

The only limitation in the contract on the privilege accorded Campbell “to put more land into cultivation” was that the “additional land” should “adjoin the field fence,” and should be in a “rectangle.” The privilege conferred was without restriction as to the quantity of “additional land” Campbell was authorized to clear and cultivate. The court, therefore, should have construed the contract as giving him a fight to clear and cultivate all the timbered land. The limitation as to where he should clear, and the shape of the clearing, evidently was intended to apply only in the event Campbell elected to clear and cultivate less than all of the land; for it could have no application if he elected to clear and put all of it in cultivation.

It conclusively appeared from the testimony that Campbell had cut timber north of the Higgins tract, and was engaged in cutting timber in the northeast part of the tract in question here at the time he and Ashmore were evicted from the land. He testified that- he had done and was doing that for the purpose of clearing and putting all the timbered land in cultivation. If that was true, he had done and was then doing nothing he •was not entitled to do under the contract. Therefore the question for the jury was one as to whether he had cut and was cutting the timber, intending in good faith to clear and cultivate all the land. An affirmative answer to such a question would have established that he and Ashmore were wrongfully evicted from the land, and as a matter of law were entitled to recover such damages as the testimony showed they had respectively suffered. On the other hand, a negative answer would have established that Campbell had violated and was violating the contract, from which it would follow as a matter of law, there being no contention that Campbell’s and Ashmore’s rights were violated by the manner in which they were evicted from the land, that they were not entitled to recover anything of appellants.

Such being the case made by the pleadings and the contract and the other testimony specified, the judgment should be reversed for the error referred to, unless it ought to be said that the finding of the jury in effect was that, in cutting the timber as he had cut and was cutting same, Campbell intended to put all the land in cultivation. The answer of the jury to the first question submitted to them was that Campbell was not, and their answer to the second question was that he was, cutting the timber in a manner and at a place he had a right under the contract to cut it. In view of the fact that the jury were authorized by the charge to construe the contract, we do not think the answers can be treated as a finding that Campbell intended to clear and cultivate all the land. Their answer that Campbell was cutting the timber in a manner and at a place he had a right to cut it may have been based on a conclusion they reached that he had a right to so cut the timber, notwithstanding he intended to clear and put less than all the land in cultivation.

Of the assignments complaining of the action of the court in overruling exceptions questioning the sufficiency of allegations in Campbell’s answer, the fourth and seventh are sustained, and the first, second, fifth, and sixth are overruled.

The assignments not disposed of present questions not likely to arise on another trial, and therefore need not be considered.

Attention is called to the fact, which seems to have been overlooked, that the judgment against the sureties on the sequestration bond was rendered in face of the fact that the action was not on the bond, and the sureties were not made parties to the suit by any pleadings in the case.

The judgment is reversed, and the cause is remanded to the court below for a new trial.

HODGES, J.

(dissenting). The judgment in this case is reversed mainly because the court, in effect, submitted to the jury the construction of the contract between Booth and Campbell. It is contended that the contract was in writing, was ambiguous, and the court should have given to the jury whatever legal interpretation was needed. Even if that be an error, it is no reason for reversing the judgment unless it also appeared that the jury was probably misled into finding that Campbell had done nothing in violation of his contract to give Booth the legal right to cancel the lease. If Booth neither pleaded nor proved a case which authorized him to cancel the contract, then the court might have instructed the jury, as a matter of law, that Campbell was wrongfully ejected from the premises.

The following is a summary of the material provisions of the contract:

Booth rented the entire 31-acre tract of land to Campbell for the term beginning December 28, 1919, and ending December 28, 1920, together with a right of way leading to a public road. The consideration was $10 a month, to be paid monthly in advance. Here are the affirmative obligations undertaken by Campbell: (1) To pay the rent monthly in advance; (2) to erect a barn according to certain specifications, within 90 days after he had taken possession; (3) to erect two rooms adjoining the house on the premises within 4 months after taking possession; (4) to ceil, canvas, and paper certain portions of, the house within 5 months after taking possession; (5) to cultivate all of the land then growing in sprouts and timber within the field fence, consisting of 12 acres; (6) to cultivate also all of the land then in cultivation during the year 1920, in a substantial, farmerlike manner; (7) to keep the sprouts cut down on the right of way from the rented premises to the public road. f‘

The following is the provision upon which Booth relies for ejecting Campbell and Ash-more :

“If Campbell shall fail to perform the obligations herein undertaken and pay the rents in advance, such failure shall at Booth’s election cancel this contract, which shall then become null and void.”

In order to support this action to recover the leased premises, and justify the expulsion of Campbell and Ashmore within less than one month after they had taken possession, it devolved upon Booth to plead and prove some default on the part of Campbell which comes .within the meaning of the above provision. The following is the substance of Booth’s complaint, as pleaded: That Campbell and Ashmore had cut and hauled away and appropriated to their own use many beautiful trees growing on the land; that it was the direct purpose and intention of the defendants to destroy, mutilate, cut, and carry away and convert to their own use the valuable timber upon said land, and commit waste, in direct violation of the lease contract; that they did cut and carry away and sell 100 cords of wood, of the reasonable market value of $10 a cord, in direct violation of the contract; that they had failed to pile any brush or prepare the ground for cultivation, but left it in a rough, rude, and unkept condition, unsuitable for cultivation, and it was not at or near the place where the defendants had the privilege of cutting timber and clearing ■ land — • to the plaintiff’s damage in the sum of $1,000.

Booth testified that he visited the premises on the 13th day of January, 1920, and for the first time discovered that Campbell was cutting the timber from the land. On his return home he and Campbell met and had a conversation concerning the manner in which the timber was being cut. He says:

“I hailed Mr. .Campbell as he passed. * * * We both stopped, and I got out of my car and walked back. * * * I told him he was cutting and destroying my timber out there contrary to the contract; that he was not living up to the contract; that I wanted him to desist; arid he said he wouldn’t do it; that he was going to go on and cut that timber and haul it off. Then I told him I was going to send the sheriff out there the next day, and I did. I came back immediately and prepared my original petition and got out my sequestration, and the sheriff served it * * * the next day.”

The question is, Does this pleading, or this testimony, show any default on the part of Campbell that gave to Booth the legal right to cancel the lease? In other words, Does it show that Campbell had failed to perform any of the obligations which he had undertaken? It is true Booth alleged that Campbell had violated the contract, but the only provision it is claimed that was violated is this:

“He (Campbell) shall use no timber except off the land which, he clears and cultivates.”

In legal effect the complaint was that Campbell was cutting and removing timber from land which he was not authorized to clear for cultivation. Suppose we concede that Booth’s construction of the contract regarding Campbell’s timber rights was correct, and that Campbell was cutting timber and removing timber that he had no legal right to take; was that sufficient to authorize Booth to forfeit the lease? No rule of law is better settled than this: The provisions of a contract which gives to one party the privilege of forfeiting á vested interest will be strictly construed; and, where the language employed renders the meaning of the parties uncertain, the doubt will be resolved against the party claiming the right of forfeiture. One who seeks the aid of so harsh a remedy has the burden of showing beyond any reasonable doubt a situation which comes clearly within the meaning, if not within the ■ very language, of the contract. An election to forfeit because of a failure to perform a promise to. pay rent- in advance, to build an addition to the house on the premises, to ceil, canvas, and paper rooms, to put into cultivation certain portions of the land, to cultivate in a farmerlike manner land not theretofore cultivated, cannot be construed to cover a trespass in cutting timber from land which the lessee had no right to invade. A provision designed to secure the performance of affirmative obligations to do something for the benefit of the lessor cannot be extended to include inhibitions against the commission of a tort upon the premises. What Booth charged in his original petition,-and what his testimony tended to prove as a justification for canceling the lease, was not a default in the performance of an obligation, but a trespass committed to Campbell in cutting and removing timber from land not covered by the terms of the lease contract. The provision for a forfeiture was evidently inserted for Booth’s protection, as security for the fulfillment of Campbell’s promises to do the things specified in the contract. This might have been expedient because of Campbell’s insolvency, or his inability to respond in damages for any material default of which he might be guilty. But it would be going to an unreasonable extreme to say that it was contemplated that this election to forfeit the contract might be exercised because of the nonperformance of some minor obligation, such as the failure to do all the papering within the time prescribed, or the failure to clear off all of the sprouts on the land mentioned, or the failure to keep the right of way to the public road cleared, or the failure to cultivate the land in a farmerlike manner. Booth’s rents were to be paid in cash, and did not depend on the yield of the crops grown. The words “and pay the rents in advance” were designedly inserted for a purpose. Their payment in advance had been previously provided for in the first paragraph of the contract, and that promise was clearly included within the general terms, “the obligations herein undertaken.” The repetition following those general terms must have been intended as a limitation upon the right of forfeiture reserved to Booth. By naming a particular obligation the nonperformance of which would constitute a ground of forfeiture, there was a clear indication of an intention that no other obligation, or default, of an inferior grade, or of less importance, should be a ground of forfeiture. Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co., 106 Tex. 94, 157 S. W. 737, 51 L. R. A. (N. S.) 268; Meyers v. Woods, 173 Mo. App. 564, 158 S. W. 909; 17 Amer. & Eng. Enc. of Law (2d Ed.) p. 6. A forfeiture was not necessary for the protection of the premises against the unlawful cutting of timber by Campbell. He might have been restrained by a writ" of injunction, and in a proceeding where the parties might have had their contract rights judicially determined.

My conclusion is that both the pleadings of the plaintiff below and his testimony disclosed a case in which Campbell was committing only a trespass upon the premises, and the court might have informed the jury that this did not give the right of forfeiture. That being true, the only question which should have been submitted to the jury'was that of damages which the defendants below were entitled to recover by reason of their wrongful ejection.

I also differ with the majority in sustaining the assignments of error based upon the refusal of the court below to sustain certain special exceptions. I think the judgment should have been here modified and affirmed. 
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