Full opinion text
WALKER, Justice. The plaintiffs in this suit, and one of the two groups of appellants, are M. J. Ebberts and wife, Mittie Ebberts. The defendant, and the sole appellee, is the Carpenter Production Company. The other group of appellants are intervenors. The plaintiffs sued to rescind transfers of property made by a bill of sale, two assignments of oil and gas leases, and a deed. The first three of these instruments were executed by Ebberts alone and were dated December 28, 1943; but the deed was executed by both ’Ebberts and Mrs. Ebberts and it was datéd December 29, 1943. These papers were incidents of a sale of the transferred property, plaintiffs being the sellers and defendant being the purchaser; and these papers are the only memorial of the terms of the contract of sale. The intervenors sought to have one of the oil and gas leases transferred to defendant declared at an end and to recover damages from defendant for the destruction of an oil well. The lease is that referred to hereinafter as the Hebert lease of 1940, or July 5,1940, and the well, that situated on Lot 9. . The land conveyed to defendant by Mr. and Mrs. Ebberts’ deed belonged to the separate estate of Mrs. Ebberts. It was- a part of a-subdivision of a larger tract, and for convenience we shall describe it as lots 8, 19, 22, and 23, and a one-third undivided interest in lots 6, 7, 11 to 16, inclusive, and lots 81 to 90, inclusive. Mrs. Ebberts reserved a one-eighth royalty in the oil, gas and other minerals in the property which she conveyed. This was a full one-eighth in the four lots wholly owned by her and a one-twenty-fourth in the eighteen lots of which she owned a one-third. Each of these lots and each of the lots in this particular subdivision was an acre, or approximately an acre in size, and the lots are sometimes referred to in the proof as an acre. The property conveyed to defendant ’by the papers which only Ebberts executed, namely, the bill of sale and the two assignments of oil and gas leases, belonged to the community estate of Mr. and Mrs. Eb-berts; but legal title to this property was formally vested in Ebberts. All of the land and interests in land conveyed to the defendant was in the Sour Lake Oil field in Hardin County, in an area which had produced oil for many years. One of the leases assigned to defendant covered only lots 6 and 7, which were owned in undivided thirds by Mrs. Eb-berts, one Jackson, and intervenors. The' terms of this lease were not proved and it seems not to be involved in the conflicting claims of the parties or to be material to the issues made on this appeal except’ as its ownership may finally be affected by the judgment rendered. Ebberts’ assignment described it as being dated October 19, 1943, and as made to Ebberts as lessee by Ebberts and Mrs-. Ebberts and the other owners. The other lease assigned to .defendant by Ebberts is of the utmost materiality to the claims of the parties, and it is referred to hereinafter as the Hebert lease of 1940, or July 5, 1940. It is dated July 5, 1940, and was made to Ebberts as lessee by intervenors as lessors. It was for a primary term of 5 years and as long thereafter as oil or gas should be produced. Subject to one-eighth royalties,. it conveyed the oil and gas in lots'9, 18, 20, 21, 78, 79 and-80 of the subdivision in, which Mrs. Ebberts’ lots were situated. The lots mentioned in the Hebert lease belonged to intervenors. Ebberts was lessee as stated, but he and Mrs. Ebberts, or Mrs. Ebberts alone, had or were treated as having an interest in the income from these lots under and by virtue of the -contract now to be mentioned. On January 10, 1914, many years before the present controversy arose, Mr. and Mrs. Ebberts made a written agreement with Mr. and Mrs. J. J. Hebert which provided that “any revenues or monies derived from the mineral rights” in certain property “shall be divided equally and paid half” to Mr. and Mrs. -Hebert and half to Mr. & Mrs. Ebberts “or their heirs and assigns;” Some of the property described in this agreement belonged to Mrs. Ebberts and some of it belonged to Mrs. Hebert, and Mrs. Ebberts’ part included lot 19 and other lots which, or an interest in which, Mrs. Ebberts conveyed to defendant by her deed of December 29, 1943; and Mrs. Hebert’s part included the lots which were covered by the Hebert lease of 1940. Mr. and Mrs. Hebert were the parents of those of the intervenors who are interested parties (not formal parties) other than the widow of J. J. Hebert, Jr., who was the son of Mr. and Mrs. Hebert. Mrs. Ebberts and Mrs. Hebert were sisters. After this contract was made Mrs. Ebberts continued to be the owner of lot 19 and the other property described as hers in the contract down to the time she conveyed the property to defendant. J. J. Hebert died in 1925 and Mrs. Hebert died in 1939, and intervenors (for convenience we shall identify the widow of J. J. Hebert, Jr., with her husband) inherited their mother’s title. Throughout the years since this contract was made it was complied with by the parties to the agreement and by inter-venors until it was terminated by another agreement, dated July 2, 1947, in which-Mrs. Ebberts (joined by her husband) and the intervenors granted each other interests in the royalties or minerals produced from their respective properties. We note that while the contract of 1914 was in force the landowners seem to have construed it as being only an agreement in per-sonam (or covenant running with the land) which conveyed no interest in the various lots mentioned in: it; The consideration paid plaintiffs' by defendant for the transfers of December 28 and 29, 1943, is not fully stated'in the documents ' of transfer. A part of this consideration was paid in cash and amounted to $13,300.- We have concluded that $800 of this sum was paid to Mrs. Ebberts and that $12,500 was paid to Ebberts. This $12,500 was actually deposited in a bank to the joint credit of Ebberts and an officer of the defendant corporation named Frank Carpenter, and most of it was paid out by them to creditors of Ebberts but a small part, perhaps $1,500 was left after these payments were made, and this sum was then released to Ebberts. The cash payments to Mr. and Mrs. Eb-berts are not mentioned in any of the four documents of transfer. Mrs. Ebberts’ deed refers in general terms to some cash consideration without specifying it and Eb-berts’ two assignments of oil and gas leases contain only formal recitations of consideration. However, the bill of sale refers in general terms to some cash consideration and also to some consideration which was to be paid in the future. This bill of •sale purported to transfer certain oil field equipment- and it recited that “I, M. J. Ebberts, for and in consideration of— ($1.00) and other good and valuable consideration to us in hand paid by (defendant), the receipt of all of the cash consideration for which is hereby acknowledged, and the further consideration of the oil payment hereafter set forth have (transferred to defendant the personal property mentioned). As a part of the consideration for this bill of sale, grantee agrees to pay to grantor an oil payment in the total —of—($10,000.00)—'payable only out- of the proceeds of any oil run from production had from the hereinafter described wells now situated on said property, but not producing, as follows, to-wit; 1. The sum of — ($5,000.00)—payable only out of the; proceeds of — (¼ 'of ⅞) of any and all oil produced and sold from well situated on Lot- — -(9) of . said — subdivision, which said well is not presently producing and in which some- tubing and rods are -stuck; and (2) the sum of — ($5,000.00)—payable only out of the proceeds of — (¼ -of ⅞) of any and all oil produced and sold from that certain well situated on Lot — (18) of said — subdivision, which said well is not presently producing and has no derrick over same. It is understood and agreed that no part of the -oil payment hereby provided for shall be payable to grantor except it be paid from the proceeds of oil produced and sold from the two wells expressly mentioned above and in the sum and manner provided for above.” The negotiations for the purchase and sale of plaintiff’s property were conducted by Carpenter for the' defendant and by Ebberts for the plaintiffs. Mrs. Ebberts never talked with Carpenter about the sale of the property; she dealt with Carpenter through her husband. As the time of these negotiations Carpenter was the Secretary-Treasurer of the defendant corporation and he has continued in that office since that time. He has been treated by the plaintiffs as the alter ego of the defendant corporation, and his own way of speaking while giving testimony shows that he has done the same thing. We infer, from his testimony, that at all times relevant to the issues between the parties he was in the actual charge and control of the defendant’s operations concerning and on the property in suit. Carpenter, who was a lawyer, wrote the four documents of transfer, at his own suggestion. Ebberts was not a lawyer but had had many years of experience in the production of oil from the property conveyed to defendant and from other property nearby and elsewhere in the Sour Lake oil field; and Carpenter was also experienced in the production of .oil in the same area and in the oil business. The two men had been acquainted for many years and were on friendly terms, but there was no special relation of confidence and trust between them. Carpenter delivered the documents in blank to Ebberts, and Ebberts took them away with him to his home in another town and there he and Mrs. Ebberts read them over, privately and at their leisure. Ebberts accepted without change the papers which were to be executed by him alone. Mrs. Ebberts objected to the form of the royalty reservation in her deed, that it did not extend to minerals other than oil and gas; and when Ebberts took back the papers to Carpenter on the next day he requested Carpenter to enlarge the reservation accordingly, and Carpenter did .so, making the appropriate change in the terms of the reservation. Ebberts delivered his own transfers to Carpenter but took back the deed to Mrs. Ebberts for her signature. These circumstances explain the difference between the date of Mrs. Ebberts’ deed and that of the other papers. When Carpenter and Ebberts were conducting their negotiations and when plaintiffs executed their transfers to defendant it was represented to Carpenter by Eb-berts that three wells, one producing and two not producing, were being transferred to defendant. Ebberts took Carpenter to the land and pointed out these wells and represented to Carpenter that the producing well was located on Mrs. Ebberts’ lot 19, which we have referred to above as one of the lots covered by the agreement of 1914 between Mr. and Mrs. Ebberts and Mr. and Mrs. Hebert, and he represented further that the two dead wells were on lots 9 and 18, respectively, which belonged to intervenors and were covered by the Hebert lease of 1940. Carpenter accepted Ebberts’ representations as being true and acted on them in making the purchase from plaintiffs. Ebberts said that he thought that the representations were true when he made them and there is much evidence which supports his testimony. However, there is some evidence to the contrary. At any rate, as a result of the plaintiffs’ formal admission in writing, filed during the trial of -this cause, the facts between the plaintiffs and the defendant are that Ebberts’ statements about the location of the two wells were wrong, and that the well which he said was on Mrs. Ebberts’ lot 19 is actually on inter-venors’ lot 18 while the well he said was on intervenors’ lot 18 is actually on a lot 17 which belongs to third. parties unless intervenors have acquired title to it by adverse possession. Neither Ebberts nor Carpenter realized that they were dealing with a lot 17, during their negotiations or in the sale, and neither of them intended to do so. Intervenors did not join in plaintiffs’ admission and they claim that it was of no effect against them. After the completion of the sale, defendant took possession of the three wells and of other property transferred by plaintiffs; and Carpenter said that in August, 1944, eight or nine months after he made the purchase from the plaintiffs, he attempted, acting in defendant’s behalf, to restore the well to production which he supposed to be on lot 18, and that after 'completing this work he was informed, about September 5, 1944, by a subordinate employee that the well was on lot 17. He said that it was on this occasion that he first learned of the mistake concerning the location of the wells. He did not mention this to Ebberts and Ebberts claimed that he never knew of the mistake until after the suit was filed. As we have stated, there is evidence to the contrary. The work which Carpenter did on the well supposed to be on lot 18 accomplished nothing; and the evidence is in conflict, both as to what he did and as to when he did it. Thus, Ebberts said that the work was done in the late spring or early summer of 1945 (instead of August or September of 1944) and that it was abandoned on the day after it began. No attempt to restore the well on lot 9 to production was ever made by defendant. No part of the oil payments reserved by Ebberts in his bill of sale has ever been paid. ■ The well on lot 9 and that supposed to be on lot 18 were destroyed by the defendant in either 1947 or 1948 by pulling- the casing out of the ground. Carpenter testified, in effect, that this was a consequence of a mistake; he told a new employee to pull the casing from defendant’s dead wells and did not tell him not to pull the casing from these particular wells. The well which Ebberts represented to be on Mrs. Ebberts’ lot 19 was producing at the time of the sale to defendant, and with some interruptions which are immaterial it has produced oil continuously since that time. The defendant has operated this well since the date of plaintiffs’ transfers; and royalties from the production have been regularly and consistently paid to Mrs. Ebberts and to intervenors as the agreement of 1914 between plaintiffs and intervenors’ parents required, that is, ⅝6th to Mrs. Ebberts or to Mr. and Mrs. Ebberts and ½6⅛ to intervenors. The total royalty from the producing well is the same, whether calculated by the royalty reservation in Mrs. Ebberts’ deed or by the Hebert lease of 1940. Thus, so far as only actual income was concerned, it was immaterial to the plaintiff and to1 the intervenors whether defendant paid - the royalty under Mrs. Ebberts’ reservation or under that in the Hebert lease of 1940. Defendant, according to Carpenter’s testimony, and there was no other evidence, paid the royalty under Mrs. Ebberts’ reservation until' the well was discovered to be on intervenors’ lot 18; but afterward Carpenter’s testimony necessarily implies that defendant paid it under the reservation in the lease. The only production 'which defendant has had in the land purchased from plaintiffs was that from this producing well. Other than the abortive work done oh the well supposed to be on lot 18 and other than the operation' of- the producing well, the defendant has done nothing to -keep the Hebert lease of 1940 in force. Carpenter said that after he discovered the 'mistake concerning the location of the producing well he intended to and did keep the Hebert lease in force by the production from this well. . : By a deed dated February 25, 1944; defendant acquired from ohe J. Milton Jackson a one-third interest in those lots in which Mrs. Ebberts had conveyed a one-third, and in two more lots, Nos. 3 and 4, not referred to in Mrs. Ebberts’ 'deed, subject to a Jkth royalty in the oil and gas. Carpenter also handled this transaction and said that he paid Jackson $800 for the deed; this was the same price which he said he had paid Mrs. Ebberts.- Intervenors owned the other one-third in the lots in which Mrs. Ebberts had conveyed one-third, and they declined to convey their interest to the defendant. Accordingly, the defendant, acting through Carpenter, procured a lease from inter-venors covering their one-third interest in the oil, gas and other minerals in these lots. This lease was dated September 25, ■1946, and was for a primary term of 10 years. By this instrument the defendant finally acquired the ownership, either fee title or conditional and all subject to royalties, of the minerals in the 18 lots in which Mrs. Ebberts had conveyed a one-third interest to defendant; and the defendant subsequently made some efforts to develop the property. Thus, in January, 1947, the defendant drilled a well on lot 82. This well proved to be dry. Further, on January 28, 1949 (this suit, was filed on March 8, 1949, less than two months afterward) the defendant. conveyed a leasehold on lots 11 to 16, inclusive, to one W. O. Newton by two instruments. One of these was a lease on defendant’s two-thirds interest and the other was an assignment of a part of the intervenors’ lease of 1946. These transfers to Newton reserved royalties which covered the royalties outstanding and which would pay -an. additional one-twenty-fourth to the defendant. Newton drilled two wells, both on lot 16. The first well produced oil for a short time but the second was not completed or proved to be dry. At least some of this work was done after this suit -was filed. However, plaintiffs admit that Newton was a purchaser for value, etc., of ■ the legal title and thus, that he has title against them to the interest which defendant conveyed to him. These facts show the background of the suit and, with such additional statements as are hereinafter made, will explain our adjudication of the points of error. Details upon which some of our conclusions are based are stated in the findings which we have filed independently. The cause was tried to the court with a jury, but the trial court instructed the jury to return a verdict in behalf of defendant against both the plaintiffs and the inter-venors, and judgment was rendered accordingly, that the plaintiffs and the in-tervenors take nothing against the defendant. No other relief was awarded the defendant. From this judgment the plaintiffs and the intervenors have appealed, and they have filed a joint brief in which they assign 60 points of error for reversal. Most of these points raise difficult and complex questions of law and fact which are material to the judgment to be rendered in this court and require discussion for that reason. Only two witnesses testified, one being defendant’s officer Carpenter and the other being the plaintiff M. J. Ebberts. Opinion. Points 1 to 7, inclusive, state rules for construing contracts and need not be discussed in detail; but in the argument under these points the plaintiffs say that the proof shows either as a matter of law that a single contract, to which Ebberts and Mrs. Ebberts and the defendant were the contracting parties and which was memorialized by the four documents of transfer, was made between the plaintiffs and the defendant, or else that an issue was raised for the jury as to whether such a contract was made. The plaintiffs say that Ebberts testified that “there was but one trade or transaction” and that Carpenter first said that defendant made two contracts, one with Ebberts and one with Mrs. Ebberts, and then said that only one contract was made. As we interpret his testimony Eb-berts never said how many contracts were made. and Carpenter did not retract his statement that there were two contracts. The proof certainly shows as a matter of law that two sets of conveyances were made. One was a transfer and conveyance of some community property of Mr. and Mrs. Ebberts’ to which Ebberts had legal title. It was accomplished by three instruments, the bill of sale and the two assignments of leases; and it was made by Eb-berts alone. Mrs. Ebberts was not a party to these instruments; and there is nothing to show that she was consulted by her husband about this part of the transaction or that she took any part in it. The tenor of the evidence is that Ebberts acted independently of his wife in determining to make, and in making these transfers. The other conveyance was a transfer of property belonging to Mrs. Ebberts’ separate estate, and it was accomplished by the deed of herself and Ebberts to the defendant. According to Ebberts’ testimony, the decision to make this conveyance was made by Mrs. Ebberts herself. However, it really is not necessary to determine how many contracts were made. The significant questions concern the nature of the consideration given by defendant for the two sets of transfers, and the identity of the persons to whom this consideration was paid or was to be paid. In our preliminary statement we have shown that the consideration paid by defendant included some cash and some oil payments. According to plaintiffs’ brief the money amounted to $13,300. Plaintiffs’ brief .thus adopts testimony of Carpenter because Carpenter testified that two sums, namely a $12,500 and an $800, which total $13,300, were to be paid, and Ebberts only mentioned the $12,500. He never did refer to a $13,300 and he never did say whether any independent consideration was or was not to be paid to Mrs; Ebberts for her deed. Carpenter said that the $800 was the consideration offered and paid to Mrs. Eb-berts for her deed, and since this testimony is the only explanation for the sum of $13,-300 which, the parties agree, was paid, we shall accept it as true. Defendant, then, gave Mrs. Ebberts an independent consideration of $800 for her deed. The testimony of both Ebberts and Carpenter shows that the $12,500 and the oil payments were to be paid to Ebberts alone. It is unnecessary to quote Carpenter. As we interpret the testimony, Ebberts, as the successor of a series of partnerships, considered himself to be the owner of the -producing oil well which - he told Carpenter was on his wife’s lot 19, as well as the owner of the equipment and the leases he sold to defendant, and he first made an offer to Carpenter to sell all of this property, including the producing well, to the defendant for $25,000 in cash. Carpenter rejected this offer. Ebberts said that Carpenter then “came forward with another proposition, saying that if I could persuade my wife to sell the fee interest in the land she owned in the area that he would 'do everything necessary' to put these two- wells which were sanded up into production. —That he would do every thing possible to bring these two wells in production by cleaning them out or reworking them and then he would pay me out of production of each well $5,000 — and that he would pay me $12,500 for the production he had.” Other testimony of Ebberts adds nothing to the substance of this quotation, and the quotation may be accepted as Ebberts’ version of the counter offer made to- him by Carpenter. This counter offer was eventually accepted by the plaintiffs. The promise expressed in this quotation is, in terms, a promise to pay Eb-berts; nothing is said about paying anything to Mrs. Ebberts or to anyone for her benefit; and the subsequent conduct of the parties was in accord with this promise. Thus, the $12,500 was paid to Ebberts. Most of it was paid out to Ebberts’ creditors; but, of course, this was a payment in legal effect to Ebberts himself. Certainly the persons to whom this money was paid were not -Mrs. Ebberts’ creditors and none of them had any lien on Mrs. Ebberts’ separate estate. Carpenter said that he gave Ebberts a check for $800 which was payable to Mrs. Ebberts, for delivery to Mrs. Eb-berts. Ebberts did not deny this and he did not. in fact, refer to the $800. Further, the form of the reservation is in accord with the ostensible ownership of the property in which the reservation was made and with the nature of the document in which the reservation appears. The title to the two wells which were to be reworked were represented to Ebberts to be on the Hebert leasehold and thus covered by the Hebert lease of 1940, to which he had title and which he proposed to sell to- defendant. On his representations, the promise to rework the dead wells concerned his own property; and the oil payment which was reserved to Ebberts was thus reserved in property purportedly owned by him. The oil payments were reserved in the bill of sale, that is, a transfer executed by Eb-berts alone. Doubtless these circumstances account for the fact that the reservation was made to Ebberts alone. Further, these oil payments, although involving promises of future performance, were interests in land and as we have stated, were reserved in property ostensibly belonging to Ebberts. Under the form of the reservation Ebberts necessarily had the same title to these oil payments as he had to the leasehold in which they were reserved but which he sold to defendant. Mrs. Ebberts had a community interest in this leasehold and so she had exactly the same sort of interest in these oil payments which were reserved in this leasehold. Thus, in so far as there may have been executory promises by the defendant concerning these oil payments which were a part of the consideration given by the defendant for the sale to defendant, these promises ran to Ebberts, not to Mrs. Eb-berts, and such rights against defendant as may have resulted from a breach by defendant were in favor of Ebberts (doubtless as community property but nevertheless to Ebberts), not to Mrs. Ebberts. Further, this executory part of the consideration must be referred to and held to be consideration for Ebberts’ action, that is, for his own transfers, and not for Mrs. Ebberts’ deed. We think the proof shows as a matter of law that the oil payments were a part of the price paid for Ebberts’ transfer of the community property, either the equipment transferred by the bill of sale, or this plus the two leases and Ebberts’ interest in the producing oil well which he told Carpenter was on his wife’s property. This conclusion is in accord with Eb-berts’ bill of sale and it is also in accord with the recitation of consideration in Mrs. Ebberts’ deed, which reads: “ — the sum of — ($10.00)—and other cash consideration to me (the reference is to Mrs. Eb-berts) in hand paid by Carpenter Production Company — the receipt of all of which is hereby acknowledged, and the further consideration of the royalty reservation hereinafter set forth — .” This statement by Mrs. Ebberts, in her deed to the defendant, that the consideration for the deed was all cash and royalty is in accord with Carpenter’s testimony, and as we have stated, Ebberts never did testify about the consideration for his wife’s deed or that extra $800 which must be added to the $12,-500 in order to make up the $13,300 which the plaintiffs’ brief says that they received. The fact that Ebberts had no lease or' other written title to the producing well which he told Carpenter was on his wife’s property raises the question, why should defendant have paid Mrs. Ebberts so very much smaller a sum of money than was paid to her husband. However, the evidence shows that both Carpenter and Ebberts regarded this well and the “working interest” therein as the property of Ebberts. Thus, in the quotation above from Ebberts’ testimony, Ebberts said that “he (that is, Carpenter) would pay me $12,500 for the production he had.” The well was drilled in 1934 by, and was thereafter operated by, a partnership of which the members were Ebberts, one Falloure, and what Ebberts insisted on calling the Hebert estate. This estate, according to Ebberts, was represented by Mrs. Lula Hebert, the widow of J. J. Hebert, Sr., who had been the partner of Ebberts and Falloure until his death in 1925. Subsequently, Falloure died and later, Mrs. Hebert, and still later, Mrs. Hebert’s successor in the partnership, her son J. J. Hebert, Jr., who acted for himself and intervenors, and it was finally wound up in July, 1940, by a series of writings made by Ebberts and the intervenors. As a result of transfers which accompanied various changes ,in the membership of the firm, Ebberts succeeded to the partnership’s assets and this producing well was originally regarded as one of them. Thus, Ebberts testified: “Q. Now, in the operation and production of the well on lot 21, and subsequently the well on what you thought was lot 19, those two wells were operated for whose account? A. For the partnership until I took the lease in 1940 from the He-berts and operated it for my own.” He testified further: “Q. And then after you made this partnership arrangement with Joe Hebert, Jr., you all continued to operate the well on 19, what you thought was 19, until his death in March of 1940? A. Yes, sir.” Details are stated in our supplemental findings. Note that the table at S.F. 570 shows that Mrs. Ebberts only got her half of a one-eighth royalty, the other half being paid to her sister, Mrs. Lula Hebert, and after the latter’s death, to intervenors, as the contract of 1914 between the Eb-bertses and Heberts required; the working interest went elsewhere to parties whose lack of connection with the title implies that they were creditors of the persons operating the “working interest”, and the partnership did this until it was wound up in July, 1940. If, on the other hand, Eb-berts, did not think. the well was on his wife’s property, then he knew it was on the Hebert leasehold, to which he did have a written title. Actually, this record suggests, but does not prove or disprove, that even if the well was on lot 19 the partnership, and Ebberts by succession, had a title to the well which was enforcible in equity. On the assumption that the well was thought to be Ebberts’, the difference between the sum paid to Mrs. Ebberts and the sale value of her property was probably not so great. For Mrs. Ebberts reserved the income, that is, the royalty she was receiving from the producing well and also the same royalty in wells which might be drilled. And about 2 months after she made her deed to defendant, Carpenter bought for defendant from Jackson a one-third interest in the same eighteen lots in which Mrs. Ebberts had conveyed a one-third, and in two lots additional, subject to a royalty reservation equal to that reserved by Mrs. Ebberts; and for this paid the same price which he said he had- paid to Mrs. Ebberts. It is true that Mrs. Ebberts conveyed more property than Jackson did, but the price paid to Jackson is some indication of the sales value of the property sold by Mrs. Ebberts. All of these lots were in the same subdivision and all near the producing lots. One question remains, to which plaintiffs attach much importance. In his statement of Carpenter’s counter offer, Ebberts testified that Carpenter said “that he would do everything necessary to put these two wells which were sanded up into production. * * * That he would do everything possible to bring these two wells in production by cleaning them out or reworking them and then he would pay me out of production of each well $5,000 * * Ebberts said that he relied on this promise to rework the dead wells and said further, in effect, that plaintiffs would not have made the sale to defendant if this promise had not been made. If this promise had been performed, the defendant would not only have made payments on the oil payments; defendant would also have paid royalties under the Hebert lease of 1940, and by virtue of the agreement of 1914 between the Ebbertses and the Heberts one-half of these royalties would have • been payable to Mrs. Ebberts, or to her and her husband. The question is, whether the possibility of this income was a part of the consideration for the sale of plaintiffs’ property. It is to be borne in mind that Mrs. Ebberts was not a party to the Hebert lease and owned no interest in the land it covered unless the contract of 1914 gave her an interest, and as we have stated, the parties acted as if it had not. It is also to be borne in mind that Ebberts offered to sell to defendant, and finally did sell to the defendant, his entire interest in the lease except the reserved oil payments; and he had no other interest in the land covered by the lease except, perhaps, under the contract of 1914. Thus on the surface of the transaction between Ebberts and Carpenter there was nothing to suggest to Carpenter that plaintiffs intended to charge the defendant with this indirect, possible income under the contract of 19*14 as a part of the price to be paid by the defendant for their sale. We do not find that this possibility of income, these possible royalties, to Mrs. Ebberts (or to her and Mr. Ebberts) were ever mentioned to Carpenter or that this contract of 1914 was discussed by Carpenter and Ebberts. Carpenter said that he had known of the agreement but he did not know whether it had influenced him or not. Under the circumstances, we conclude that the possibility of income ' from royalties out of the dead wells accruing under the Hebert lease of 1940 may have been a motive for Ebberts’ original determination to sell the property, but it was not, as a matter of law, a part of the consideration for the sale to the defendant because it was not bargained for by the plaintiffs as consideration for the sale and it was. not promised as such by the defendant. See: Restatement of Contracts, Sec. 75; Williston on Contracts, 2nd Ed., Sections 100 and 111; Johnson v. Breckenridge-Stephens Title Co., Tex.Com.App., 257 S.W. 223; Hardwicke v. Trinity Universal Ins. Co., Tex.Civ.App., 89 S.W.2d 500, at page 505 (Hns. 11-14); Hoffer v. Eastland National Bank, Tex.Civ.App., 169 S.W.2d 275. We think that the promise to which Ebberts testified was one to rework the wells in order to produce the oil payments. Points 8 and 9 and Points 12 and 13 may be summarized as follows: (1) There was a promise by defendant to make a good faith effort to recondition the two non-producing wells, either to be implied from the terms of the oil payment reservation in the bill of sale or provable by parol evidence because of an ambiguity in this reservation. (2) This promise was, as a matter of law, the real consideration passing to the plaintiffs for their transfers to defendant because the property which they transferred was so much more valuable than the money paid to the plaintiffs; or else it was an issue for the jury whether, under the circumstances, this promise was the real consideration. (3) Defendant’s failure to perform this promise therefore amounted to a total failure of consideration for which the contract should have been canceled, or else it was an issue for the jury whether the contract was supported by an adequate consideration. In Point 14 it is contended that the failure to recondition the well on lot 9 was alone so material a partial failure of consideration as justified cancellation of the entire contract of purchase and sale. Points 10 and 11, which are included in the group of Points 8 to 14, inclusive, and are discussed with the other points in this group seemingly raise a promise quite different from that asserted under the other points in this group. In Points 10 and 11 plaintiffs say that the defendant promised to recondition the non-producing wells or to do other development in order to keep the Hebert lease of 1940 in force, and that defendant admitted that the contract of purchase and sale was made on the assumption that no production existed on the Hebert lease and that either' reconditioning or development was necessary to keep the lease in force; or else all of these matters raised issues for the jury. We shall first discuss Points 10 and 11. There is no evidence that defendant has ever admitted that development work of any kind, by reconditioning the non-producing wells or otherwise, was necessary to keep the Hebert lease of 1940 in effect during the primary term of that lease. Carpenter testified to the contrary; he said that before transfer was made to the defendant he read the Hebert lease of 1940 and construed it as granting a 5-year term absolutely; and he subsequently told Ebberts that he construed the lease in this way. So far as this record shows this construction has always been placed on this lease by Carpenter, with whom both parties identify the defendant. As for work after the end of the 5-year primary term, the defendant’s position is that the producing well, which has produced oil continuously since its transfer to the defendant, kept the Hebert lease of 1940 in force. Carpenter though that this well was outside of the Hebert lease when he made the agreement of purchase and sale with Ebberts. Thus at this time he necessarily believed that the Hebert lease of 1940 would expire at the end of its primary term unless oil was then being produced under the lease or development was then going forward; but he says that he discovered his mistake when the attempt was made to recondition the well supposed to be on lot 18. He puts this in 1944, which was during the primary term of the lease. Ebberts, however, said in indefinite terms that this occurred during the late spring or early summer of 1945. Thus it may have been (we think not) a jury issue, whether Carpenter, during its primary term, claimed for the defendant a continuance of the lease by virtue of the producing well; but this is as far as the proof goes in favor of the plaintiffs. Plaintiffs argue under this group of points, and we assume that this argument is to be referred to Points 10 and 11, that the defendant assumed certain obligations by taking the assignment of the Hebert lease of 1940 from Ebberts. As we construe the argument, the plaintiffs do not claim that the defendant expressly promised a performance of the obligations said to have been assumed; seemingly they claim that these obligations were only implied under the terms of the Hebert lease and were as follows: (a) to do further development work (and thereby keep the lease in force, apparently on the theory that production from the non-producing wells had abrogated the 5-year primary term) and (b) to protect the leasehold from drainage. These obligations, as we understand the plaintiffs’ argument, were already charged upon the lessee, that is, Eb-berts, under the lease when the assignment came to be made to defendant, and were assumed by the defendant when the lease was transferred to the defendant. We are not satisfied that the proof shows that drainage was, in fact, occurring; but it must be noted that such obligations implied under the terms of the Hebert lease of 1940 would run to the lessors, that is, to the intervenors, and would not run to the lessee/assignor (Ebberts), and that unless the lessee/assignor made some provision concerning these obligations in his contract of sale to defendant, his interest in the performance of these obligations would necessarily be limited to the effect upon him which his assignees’ failure to perform these obligations might have, and further, that he would have no interest here unless he remained in some way liable upon these obligations. So far as the Hebert lease of 1940 is concerned it only provided as follows: “If the estate of either party hereto is assigned, and the privilege of assigning in whole or in part is expressly allowed, the covenants hereof shall extend to their heirs, executors, administrators, successors or assigns * Ebberts’ assignment of this lease to the defendant does not refer to such obligations nor does any of the other instruments of transfer; and there is no evidence of any promise by the defendant except that of Carpenter’s to which Ebberts testified, namely, that he would attempt to recondition the non-producing wells. Further, it is to be noted that intervenors, who are the lessors in the Hebert lease of 1940, are not attempting to charge any liability upon Ebberts because of defendant’s failure to comply with any implied obligation which might be chargeable against the defendant under the Hebert lease of 1940, and that the intervenors actually are not attempting to enforce any such implied obligations. They do claim that their lease of 1940 expired, but this claim is founded upon certain provisions of the lease and upon the further claim that the leasehold was abandoned. Under the circumstances, it is not apparent to us why any implied obligation which the defendant may have owed to the inter-venors under Ebberts’ asssignment is material to this cause except as it may bear upon the question, whether a promise is to be implied from the terms of the oil payment reservation. We pass accordingly to a consideration of the other Points of Error in this group. The first question raised by plaintiffs’ assertion of an implied promise concerns the terms of this promise. We hold that if any promise is to be implied it is only a promise to make the oil payments if oil sufficient will flow through the wells in which the payments were reserved. This would be a promise conditioned on the availability of oil but not on the defendant’s will to attempt to produce the oil. Necessarily, the wells would have to be reconditioned because the payments must come from these wells; and necessarily the Hebert lease of 1940 must be, or be kept, in force for some period of time because the oil payments must come from the leasehold granted by this lease. But reconditioning the wells and keeping the lease in force are only incidents of the promise to make the oil payments; and had the defendant wished to discharge all possible liability concerning these oil payments we see no reason why defendant could not have done this by simply paying the maximum amount of the payments, that is, the sum of $10,000 in cash, and thereby have made it unnecessary to recondition the non-producing wells or to keep the Hebert lease in effect. The object of the implied promise would be the payment of the money represented by the oil payments, and the conditions of this promise would be for Carpenter’s benefit, not Ebberts’. Carpenter could waive these conditions if he so desired. As we construe Ebberts’ testimony about Carpenter’s counter offer to him, this counter offer was a promise to do no more than recondition the non-producing wells in order to make the oil payments. This and the implied promise we have stated differ only as regards the obligation, or not, to rework the dead wells. The objects are the same. Such an implied promise as we have stated would, of course, be worth to prom-isee (Ebberts) nor more than $10,000. Whether this promise (conditioned upon oil but not on the defendant’s will) should be implied as an incident of the oil payment reservation is a serious question. The oil payments were certainly a material part of the consideration bargained for by Ebberts for his transfer to the defendant, and it may be argued that the defendant did not have an absolute right to surrender the Hebert lease of 1940 because of implied obligations to the lessees (intervenors), which were raised by the production of oil from the leasehold under the Hebert lease. This argument would be decidedly stronger under the defendant’s construction of that lease than under the plaintiffs’, who would have the lease expire 90 days after the non-producing wells ceased to flow. This is the only relevance which the obligations implied under the Hebert lease of 1940, charged against the defendant by the plaintiffs, bear to the issues between the plaintiffs and the defendant. The case is not like those where the courts have declined to imply an obligation on the part of the assignee to make an oil payment, given as consideration for the assignment, where the lease assigned was terminable at the lessee’s will. There the implication would be inconsistent with the nature of the property sold and transferred; but this inconsistency would not exist here and the implication of a promise to attempt to produce is more consistent with the parties’ intentions. There seems to be authority for implying a promise to make the oil payments. See: Van Every v. Peterson, 5 Cir., 24 F.2d 26. However, for reasons hereinafter stated in our discussion of points following, it is unnecessary to determine whether a promise to make the oil payments shall be implied. We add the following comments concerning other elements of the arguments made under this group of points. A promise to rework the non-producing wells was not, in law or in fact, the real consideration for the sale and transfer made to the defendant. According to Ebberts’ testimony, Carpenter promised to attempt to recondition the non-producing wells and this promise was an essential part of Ebberts’ agreement with Carpenter, but it could be nothing more than a material part of the consideration promised Ebberts under Ebberts’ version of that agreement. As we have said, we construe Ebberts’ testimony as showing that this was a part of the consideration promised him for his own action, and was not a part of the consideration promised Mrs. Ebberts. The proof shows as a matter of law that Ebberts also received $12,-500 from Carpenter and that this sum was also a part of the consideration given Eb-berts for his transfers. This sum of money was legally sufficient to support Ebberts’ transfers regardless of the values of the property sold and transferred by Ebberts, and the values of those properties are immaterial to the question, whether Ebberts’ transfers were supported by a legally sufficient consideration. Ebberts’ transfers of oil and gas leaseholds were in effect conveyances of land, that is, deeds, and no consideration is ordinarily required to make them valid conveyances. See: Kauffman v. Deignan, Tex.Civ.App., 227 S.W.2d 271, at page 275 (Hn. 9). Ebberts and Mrs. Ebberts did require a substantial consideration from defendant; but all of Mrs. Ebberts’ was paid to her and a very substantial part of Ebberts’ was paid to him. So far as Ebberts is concerned only a partial failure of consideration can have occurred. There is no ambiguity in the oil payment reservations which would authorize parol proof of a promise to recondition the non-producing wells, if such proof be not otherwise admissible. The subject matter of Point 14, namely, that the failure to attempt to recondition the well on lot 9 was so material a partial failure of consideration that the trial court should have rescinded the various transfers to defendant, is determined hereinafter by the comments adjudicating Point 15. The plaintiffs have argued under this group of points that the Hebert lease of 1940 actually expired because of abandonment. This contention is discussed hereinafter under Point 34 et seq. Point 15 assigns as error that cancellation is the only remedy available to plaintiffs, under the facts, and Point 16, that since intervenors want it judicially declared that the Hebert lease of 1940 has terminated because the defendant abandoned this lease, cancellation is also the only remedy available to them. It is unnecessary to discuss Point 16. Doubtless if the Hebert lease of 1940 had terminated, the intervenors are entitled to a judgment against the defendant so declaring. However, we hold under a subsequent point that the lease was not proved expired. Point 15 and the argument thereunder concern the promise to recondition the wells which the plaintiffs charge against the defendant. This argument may be summarized as follows: (a) Specific performance is not available to enforce this promise'because the wells in which the oil payments were feserved have been destroyed. This element of the argument, of course, is established because it was proved ás a matter of law that the defendant had destroyed the wells by pulling the casing out of the ground. Carpenter said that this happened in 1947 but Ebberts thought that it had happened in 1948. (b) Damages for breach of the promise is not an adequate remedy (rather, no remedy at all) because it cannot be shown whether the wells in which the oil payments were reserved could have been reconditioned so that oil would flow out of them, and it cannot be shown whether any, or how much, oil could have been produced from these wells had they -been reconditioned. (c) Thus, say the plaintiffs, they are remitted to the remedy of cancellation if they are to have any relief at all. The first comment to be made on this argument about the inadequacy of damages as a remedy is that the argument must be proved by evidence. Plaintiffs seem to argue to the contrary, but we can not assume, without evidence supporting the inference that any element of this argument is true in fact. For the argument to be entitled to consideration there must be evidence showing that it is impossible to determine whether the wells could be reconditioned, whether oil would be available to these wells, or whether the probable output of these wells, if reconditioned, could be calculated. Second, it actually was a question of fact whether the well on lot 9 could have been reconditioned. For instance, Ebberts himself testified: “Q. Now, the reason that the production stopped on 9, I believe was the one that the tubes were stuck in? A. Yes, sir. “Q. Was there any reason that you knew of at that time why, under proper work-over operations, that the production could not have been restored? .A. Yes, it could have been restored. “Q. If the well had been worked over, based on your experience as an operator in that field for a long time, would you normally expect the well to come in at a greater or less or the same production? A. About the same. * * * “Q. And ask him this question: Was there anything at the time that you stopped the production on 9 to indicate that the well would not produce again? A. No, sir.” The oil payment reserved in the well supposed to be on lot 18 has failed and is not material at this point; but there was a conflict between Ebberts and Carpenter as to what the defendant did in attempting to recondition this well and it was probably a question of fact, whether this well could have been reconditioned. At least, the evidence does not show as a matter of law either that the well could not have been reconditioned or that it was impossible to determine whether this well could have been reconditioned or not. The history of these wells, as related 'by Ebberts, tends to prove that oil was available to both of the non-producing wells; and we have just quoted an opinion by Ebberts that the well on lot 9, after reconditioning, would produce as it had been. We think that this too was a question of fact. Certainly it was not proved as a matter of law that it could not be- shown whether oil was or was not available. This leaves only the question, what amount of oil could be produced from the well on lot 9? For as we have stated, the reservation in lot 18 failed. There actually was some evidence here. It is set out in our supplementary findings and will not be repeated. Taking into consideration the age of the well, the average period of productivity of wells in this field, the record of production from this well, the other information about the field which references to numerous wells on and about the property, in the past and in the present, indicate to be available, and the known fact that from proper geophysical information an expert can determine the amount of oil under a particular tract, we have to say that the evidence probably raises an issue as to the total amount of oil recoverable from the well on lot 9, but that if the evidence does not go so far, it does prove that plaintiffs have not showed that they cannot prove what this production would be. It seems to us that plaintiffs have simply failed to establish the inadequacy of damages as a remedy. Third, if the various questions of fact pointed out above were all resolved in the plaintiffs’ favor this still would not end the matter. The question nevertheless remains how are the rights of the plaintiffs affected? Since the plaintiffs have admitted that the well supposed to be on lot 18 is actually on lot 17, in which the defendant acquired no interest and about which Carpenter and Ebberts had no negotiations or discussion, the oil payment reserved in this well failed and need not be further discussed at this point. However, there ■ was no mistake about the location of the well on lot 9 and the oil payment reserved in this well did not, fail. We have held under Points 8 to 14, inclusive, that the promise, if any, to be implied from the terms of the oil payment reservation in the bill of sale would be a promise to make the oil payments; and this promise, being one to pay out of production from certain specific, designated wells, is a conditional promise, the conditions being the availability of oil to the' designated wells and the restoration of these wells to a state which would allow oil to be taken out of them. This promise, unless discharged in some other way, would necessarily include promises to recondition the wells and to keep the Hebert lease of 1940 in force until the oil payments were made or the available supply of oil was exhausted. The promise which the plaintiffs invoke is not materially different in any respect important at this point. The promise claimed by the plaintiffs is an unconditional promise by the defendant to attempt to recondition the wells in which the oil payments were reserved. We have construed the proof concerning this promise as showing that this’promise was made to Ebberts and that its object was to procure the oil with which to make the oil payments, but defendant’s liability on it for these payments was conditional in the same sense and to the same extent as the implied promise to make the oil payments would have been. Of the conditions mentioned, one, the reconditioning of the wells, depended on the defendant’s own acts, and the other, availability of oil, would have been demonstrated or not when the defendant had reconditioned the wells. But the defendant, by its own act, has made it impossible for these conditions to occur. This act of the defendant was the pulling of the pipe from the wells and the consequent construction of the wells. If we are to assume, then, that fact findings would have shown it impossible to prove whether one or; more of these conditions could have been performed this impossibility was 'caused,by defendant’s own act. The general rule ' concerning liability on conditional promises is stated as follows in Ferguson v. Mansfield, 114 Tex. 112, 263 S.W. 894, at page 900: “It is quite elementary that an instrument payable upon a condition which does not import an absolute liability is not payable until that condition has happened.” This general rule has been applied to promises to pay money out of oil produced, (a) Bonus for a lease: Sheppard v. Stanolind Oil & Gas Co., Tex.Civ.App., 125 S.W.2d 643, at page 647 (Hn. 1); (b) bonus to lessor, after operating expense paid: Leonard v. Prater, Tex.Com.App., 36 S.W.2d 216, 86 A.L.R. 499; (c) part of the purchase price of land: Ferris v. Huffman, Tex.Com.App., 274 S.W. 125; (d) part of the consideration for an assignment of an oil and gas lease: Harris v. Wheeler, Tex.Com.App., 267 S.W. 465. Normally, then, the promisee must prove that the condition has happened in order to recover money conditionally promised. Harris v. Wheeler, Tex.Com.App., 267 S.W. 465, at page 466. Or, if the happening of the condition depended upon the promisor’s performance and the promisor has refused to perform, the promisee normally must prove that the condition would have happened if the promisor had done what he agreed to do. Logan v. Elliott, Tex.Civ.App., 61 S.W.2d 157; Texas Pacific Coal & Oil Co. v. Barker, 117 Tex. 418, 6 S.W.2d 1031, at page 1034 (Hn. 2), 60 A.L.R. 936. However, the rules last stated need not be applied where the promisor’s own act makes it impossible for the condition to occur, on which his promise depended. In such cases it has often been held that the particular condition was, in effect, discharged and that the promisor had become absolutely bound to give the promised performance. Thus, it was said in Harris v. Wheeler, Tex.Com.App., 267 S.W. 465, at page 466: “If the payment by lessee of any sum other than the cash and note depended on the oil produced on the lease, then before lessors could recover such sum it would be necessary for them to allege and prove the production, or that production was prevented by lessee * * And see: Marvin v. Rogers, 53 Tex.Civ.App. 423, 115 S.W. 863; Johnson v. Sharp, 56 Tex.Civ.App. 80, 120 S.W. 518; J. M. Huber Petroleum Co. v. Quillin, Tex.Civ.App., 60 S.W.2d 261; Reagan County Purchasing Co. v. Big Lake Oil Co., Tex.Civ.App., 105 S.W.2d 462; Courreges v. System Freight Service, Inc., Tex.Civ.App., 152 S.W.2d 841. And see: Wolf v. Marsh, 54 Cal. 228; Poirier v. Gravel, 88 Cal. 79, 25 P. 962; Carter v. Rhodes, 135 Cal. 46, 66 P. 985; Dill v. Pope, 29 Kan. 289; Cape Fear & Deep River Nav. Co. v. Wilcox, 52 N.C. 481. And for analogous results, see: Miller v. Hodges, Tex.Com.App., 260 S.W. 168, at page 172; Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744; Jones v. Gibbs, 113 Tex. 627, 130 S.W.2d 265, 131 2d 957; Huggins v. Robison, 118 Tex. 82, 10 S.W.2d 710. The Circuit Court of Appeals has indicated that a promisor’s negligence which prevented the occurrence of a condition would have the same consequence as the promisor’s willful conduct. United Central Oil Corp. v. Helm, 5 Cir., 11 F.2d 760. Discharge of the condition (at least in' effect) by the promisor’s act making the occurrence of the condition impossible has been placed on the ground of waiver. Thus the Court of Appeals said in Amies v. Wesnofske, 255 N.Y. 156, 174 N.E. 436, at page 438, 73 A.L.R. 918: “The doctrine is purely one of waiver; active conduct of the conditional promisor, preventing or hindering the fulfillment of the condition, eliminates it and makes the promise absolute.” In Dill v. Pope, 29 Kan. 289, at page 290, the Court used the word “estoppel”. The promise was to pay a part of the purchase price of an interest in a mine out of minerals to be taken from the mine. The promisor sold this interest and produced no minerals. Said the court: “By selling the interest he had purchased, he, holding no other interest in the mine, and having no control or right to work it, disabled himself from ever complying with this condition. The moment he did this, his conditional liability on the contract for the unpaid purchase money became absolute, and said purchase money became presently due. This is upon the well settled principle that a party to a contract, who by his own act prevents the happening of a condition, is estopped thereafter to say that such condition has not happened. No party to a contract can interfere to prevent the performance of any condition, and then claim any benefit or escape any liability from the failure of such performance.” This holding was applied and followed by the Circuit Court of Appeals in Collins v. Atlantic Oil Producing Co., 5 Cir., 74 F.2d 122. Mr. Williston makes the following statement: (Sec. 677, 2nd Ed.) “It is a principle of fundamental justice that if a promisor is himself the cause of the failure of performance, either of an obligation due him or of a condition upon which his own liability depends, he can not take advantage of the failure.” The situation before us is fundamentally like the cases cited. The defendant destroyed the wells, and did this for a purpose having to do with its own benefit. That is, to procure the pipe in the wells. There is- no proof that defendant did this to prevent the occurrence of any obligation to make the oil payments. Indeed, the evidence (Carpenter’s testimony) is to the contrary. Carpenter said, in effect,- that the destruction of the wells was a mistake, that lie