* Writ of error dismissed for want of jurisdiction April 20, 1926. The contention presented by the first assignment is that the trial court erred when he refused appellants' request that he submit to the jury special issues as follows: "(1) What was the consideration for the lease *Page 489 of the Texas property? (2) Has that consideration been paid?"
We think the contention should be overruled. According to recitals in the instrument evidencing the lease of the 100 acres in Harrison county, the consideration therefor to appellants was $1 paid to them and the undertaking of the lessee (1) on or before February 1, 1924, to commence operations for the "drilling of an oil well or gas well on the land or other land within _____ miles of same"; (2) to deliver to appellants free of cost to them "one-eighth part of all oil produced and saved from the leased premises"; (3) to pay the lessors "$200 each year in advance for the gas from each well where gas was found while same was being used off the premises," and permit them to use without charge therefor gas from such well for lights and fuel in the dwelling house on the land; and (4) to pay the lessors "for gas produced from any oil well and used off the premises at the rate of $200 per year for the time during which such gas was used," and "one-eighth of the net proceeds derived from the sale of casing head gas utilized in making gasoline."
Appellants did not allege in their pleadings, nor at the trial offer to prove, that the lessee of the 100 acres failed to comply with the undertakings, or any of them, specified, except that appellant Bryson as a witness testified that the dollar mentioned as having been paid to them was not in fact paid. But appellants did allege and undertake to prove that Scott verbally promised to pay them $2,124 for the lease of the 100 acres and a lease of the 134 acres in Louisiana, and that he did not do so.
It seems, therefore, that the request for the submission of the issues was on the theory that, if Scott promised to pay appellants $2,124 for the two leases and did not do so, it was such a failure of consideration as entitled them to rescind the contract covering the lease of the 100 acres, notwithstanding the lessee may have fully complied with all the undertakings on his part set out in the instrument evidencing that contract.
We think the theory was an erroneous one. In the light of the authorities, there is no doubt that the undertakings of the lessee, referred to as set out in the instrument evidencing the lease of the 100 acres, constituted a consideration amply sufficient to support the lease. Burt v. Deorsam (Tex.Civ.App.) 227 S.W. 354; 2 Thornton on Oil Gas, § 70. That being true, the fact alone, if it was a fact, that the lessee or Scott as a further consideration for that lease and the one of land in Louisiana promised to pay appellants $2,124 and failed to do so did not entitle appellants to relief by rescission. Their remedy was a suit for damages — that is, to enforce the promise to pay them the $2,124. Railway Co. v. Titterington, 84 Tex. 218, 19 S.W. 472,31 Am. St. Rep. 39; Moore v. Cross, 87 Tex. 557, 29 S.W. 1051; Elliott v. Elliott, 50 Tex. Civ. App. 272, 109 S.W. 215, 1142; Ripley v. Wenzel (Tex.Civ.App.) 139 S.W. 897; Hardware Co. v. Oil Co. (Tex.Civ.App.)189 S.W. 313; Harris v. Rather (Tex.Civ.App.) 134 S.W. 754; Greenameyer v. McFarlane (Tex.Civ.App.) 220 S.W. 613; Jackson v. Oil Co. (Tex.Civ.App.) 217 S.W. 959; 12 R.C.L. 254; 4 R.C.L. 500; 13 C.J. 612; 5 Pomeroy's Equity, § 2108.
Another contention presented by the assignments is that the trial court erred "in not having (quoting) defendants to pay into court the $1,840 which the defendants had tendered in their pleadings," and in rendering judgment that appellants take nothing by their suit and that appellees "have a decree [quoting further] making a lease to the Texas land valid without requiring the defendants to place the money in the registry of the court as they had tendered in their pleadings." So far as the contention is that the court erred in not requiring appellees to pay the $1,840 tendered into the registry of the court, it is sufficient to say that the court was without power to compel appellees to do that. The most the court could have done would have been to strike out the plea of tender as insufficient because not accompanied by such a payment. And we think the contention is also without merit so far as it is that the court erred when he determined by his judgment that the lease was a valid one. The findings of the jury established that, if, as we have determined is true, it did not appear that appellants were entitled to relief by rescission because of the failure of Scott or Fuller to pay the $2,124, and there was no reason why the court should not have so adjudicated in response to the prayer in appellees' answer to the suit.
The judgment is affirmed.