Thomas v. Morrison (537 S.W.2d 274, 1976)

OPINION

OSBORN, Justice.

The Appellants complain of a judgment entered against them for damages resulting from a breach of a lease of one section of land in Gaines County for the purpose of raising alfalfa and grazing cattle. Having concluded that the judgment was not based upon a proper measure of damages, we reverse and remand for a new trial.

In 1972, Appellee acquired a section of land about five miles southwest of Seminole, on which was located two water wells and pumps, and a 26 tower irrigation system. Mr. Morrison bought the land for approximately $150.00 an acre which consisted of payment in cash of $2,200.00, a $1,000.00 note and assumption of a loan to John Hancock Insurance Company for $81,-000.00, plus payment of $15,000.00 to make the loan current. After an unsuccessful attempt to sell the property, he entered into negotiations with John Thomas for a lease for grazing purposes. There was a substantial controversy over what were the terms of the lease as finally agreed upon between the parties. On June 8, 1972, Mr. Thomas sent Mr. Morrison a proposed lease for the period of June 1972 through December 1972 for the sum of $10.00 and other valuable consideration. Under the terms of the lease, Thomas & Thomas (a partnership composed of J. H. Thomas and H. C. Thomas) agreed to “perform whatever tilling operations that are directed” by Morrison for one-half (⅛) of the prevailing custom rate. On June 14, 1972, Morrison returned the lease unsigned and noted that it did not mention the cotton allotment which they had discussed and raised a question as to whether there was to be a grass or alfalfa crop. On June 17, 1972, Thomas made changes in the lease and sent to Morrison a draft of two leases, one covering a period from June 1972 through December 1972, and providing for a Vioth acre of permanent cotton allotment to be left on the land after the lease expired and with the same clause on tilling operations. The other lease provided for a term from June 1972 through December 1972, and provided that:

“Lessee agrees to plant the above Section to alfalfa and will provide the necessary pumps, motors, and related irrigation equipment and fences to care for same, and Lessee will provide the necessary cattle to keep the alfalfa in a fully grazing condition. Lessee will provide the overseer and care for its own cattle. Lessor will have no responsibility for cattle count or health. Lessee will pay Lessor 12