The law as set out in both opinions is substantially correct except as hereinafter discussed. The established rule in Texas that upon failure of the lessee either to begin a well or to pay the delay rentals under an "unless" lease, the lease ipso facto terminates on the day designated in the lease for such action, is a harsh one and the courts should not engraft thereon a more severe limitation than it now contains.
For the purpose of this dissent, appellant will be considered as grantor and payee of the check, while appellee will also be designated as grantee and payor of the check.
Under the above announced rule, if appellee had waited one minute past 12:00 o'clock A. M. on the night of August 12, 1946, to deliver the check in question, the lease would have terminated, even though appellant knew that appellee was making an honest effort to reach his place for the purpose of paying the delay rental.
The agreed statement of facts recites that appellee gave the check in question to appellant and that appellant accepted the *Page 642 same before the lease lapsed. If this check was good when it reached the drawee bank, to-wit: the City National Bank of Wichita Falls, Texas, then the lease did not lapse. If the check can be termed a worthless check, then the lease did lapse, unless saved by the negligence of appellant in not sending it through in due course of business, as set out in the court's judgment, which the writer deems to be correct.
The majority opinion and the concurring opinion treat the check as having been a worthless one at the time it was, by mistake, marked insufficient funds by an employee of the payee bank. In the majority opinion, by Associate Justice SPEER, it is stated in part as follows: "It was incumbent upon Mays, acting for appellee, to keep his account at the bank in such condition as would authorize the drawee bank to pay the outstanding check," and in the concurring opinion, by Chief Justice McDONALD, it is written, "The direct cause of the nonpayment was Mays' own act in withdrawing his funds and using them for other purposes." This line of thought, in the main, establishes the contrast of difference between the two opinions and this dissent.
The writer is firmly convinced that the check, from the time it could have reached the payee bank, was at all times good and, therefore, could not be considered worthless, even though through the minute details of handling the banking business an employee of the bank inadvertently through mistake marked the same insufficient; such action on part of the employee of a bank does not ipso facto make the check a worthless one. It does not in any way legally depreciate the value of the same; neither will such mistake invalidate title to realty. In the stipulation between the parties, it is noted that appellee secured from the payee bank an unqualified line of credit set apart for the sole purpose of paying this particular check. They further agree that the payee bank was solvent at all times; therefore, the entire assets of the City National Bank of Wichita Falls were pledged as security for payment of the check in question. Authority of the cashier to make the loan or to extend such credit is not questioned by appellant, but is admitted.
In the main opinion it is found: "The controlling question before us is: Was appellants' delay in presenting Mays' check for payment to the drawee bank in another county such negligence as would immunize Mays, as appellee's agent, from paying his check when presented?" While this may have been one of the theories upon which the trial court rendered his judgment, yet the writer feels that the controlling question is: Does title to real estate, to-wit: an oil and gas lease, terminate by a mistake having been made while cashing a good and sufficient check? To so hold will engraft upon the already harsh rule supra a more onerous burden upon grantees' title to oil and gas leases. Even though we all have failed to find cases directly in point, yet it should be the law, since a great majority of business is handled through the banks by medium of exchange, that by accepting a good and sufficient check, wherein title to realty may become vested, that it would carry with it the burden of the payee to absorb honest mistakes that may occur while cashing the same through the synchronized banking systems of the United States, to the extent that the acceptor of the check would owe a duty of re-presenting the check for payment. The day upon which appellant received the check from the bank marked insufficient funds, he was notified by his own banker that there had been a mistake made, that the check was at all times good and that if the would send it back through he would receive his money. The writer feels the same as appellee recites in his counter point No. 5 that appellant owed the duty to again present same for payment.
The facts surrounding the cashier of the drawee bank wherein it set up a special fund or trust fund to pay this check by placing a notation on the ledger sheet and the ledger sheet having become full was removed but such trust fund was not brought forward, present the same question as though appellee had on deposit the sum of $1,000.00 and when the ledger sheet became full a new one was inserted and by mistake $100.00 was brought forward, thereby *Page 643 making the check in question insufficient and by such action title to real estate fails. This is not tenable.
It is stated in 31A Tex.Jur., p. 316, that where the lessor attempts to terminate or forfeit the lease or otherwise asserts claims that are contrary to the lessee's title and rights under the lease, the lessee may invoke the aid of equity to quiet his title.
If the check was good, as contended by the writer, then equity will lend aid to encounter justice by and through several of its maxims, to-wit:
(1) Equity will not suffer a wrong to be without a remedy. This maxim includes the whole theory of equity jurisdiction to the extent that it extends relief wherever a right exists and where no adequate remedy of law is available.
(2) Equity regards that as done which ought to be done. This maxim is usually applied only for the purpose of doing equity between the parties yet operates in favor of such persons and will not be enforced to the injury of innocent third parties. By the force of this maxim, defective instruments and records are supplied, except of course records of judicial proceedings. See Lacy et al. v. State Banking Board, 118 Tex. 91,11 S.W.2d 496. There are no third parties involved in the instant case.
(3) Equity regards substance rather than form. By the force of equity this principle goes behind the form of a transaction in order to give effect to the intention of the parties and by its application it disregards mere technicalities. In other words, equity will not aid those who desire to invoke it on mere technicalities, such as the one contended for by appellant.
As was stated in the case of Cook v. Leslie et al., Tex. Civ. App.59 S.W.2d 302, 303, "Equity has incarnated the Golden Rule so as to compel unwilling men to act toward others as they would ask that others act toward them. It has erected a court of conscience and higher justice, and rendered the ironbound rules of law kind, human, and considerate of the rights of others. The maxims of equity find a place for expression under the facts in this case. The courts of Texas uniformly enforce those maxims. Tex.Jur. Vol. 17, §§ 35, 36, 37."
Another reason why this judgment should be affirmed, even though the check, as contended by appellant and as found by the majority, was worthless at the time it was marked insufficient, is, that when the appellant immediately found out that the check was actually good and there had been a mistake made by an employee of a bank, he attached value to the check by his own action in keeping the same from September 24, 1946 until June 27, 1947. There is no question but that if he had presented the check for payment any time during that period of time, or thereafter, the check would have been paid; this is agreed to by the parties. The question which presents itself here is: Could the appellant take such advantage of an inadvertent mistake made in the details of handling the check to the extent that he could leave the title to this lease dangling in the air from the time he found out such mistake was made until he finally decided that he himself wanted to either cash the same and/or terminate the lease by not cashing it? It might be a different story if the check was actually worthless and he had not been informed that it at all times was a good one.
If, as contended by appellant, technically the check was worthless and the lease ipso facto died the minute the employee of the bank marked on the same "insufficient funds" but later found there was a mistake made and the check was good, then, in that event, by his own action in keeping a good check in his possession until two months before another delay rental was due, he thereby, by said action, renewed the lease by waiver of any defect that may have been in the check, because he could not, to use a common expression, "have his cake and eat it" at the same time. It is an established rule that a person can waive the payment of delay rentals and/or accept something other than legal tender for same.
Under the stated facts in this case, appellant, the payee of the check, had a cause of action against the drawee bank, to-wit: City National Bank of Wichita Falls, to enforce its payment, of course in this case said Bank was at all times willing to pay same. See Scoby v. Bird City State Bank et al., 112 Kan. 135, 211 P. 110. The state of facts under which the check was given in *Page 644 the Scoby case is somewhat similar to the instant case.
For the above reasons this dissent is filed.