(dissenting).
I am unable to agree with the construction adopted by the majority and the disposition made of this case. I have no inclination to argu'e at any considerable length, but merely to briefly point out my views.
It may be said in the beginning, in my opinion, the judgment of the trial court is not altogether free from question. This case does differ from the ordinary suit for the specific performance of a contract by an owner to sell his lands to another, as are the cases cited. In such cases if the party seeking specific performance fails to perform he suffers the consequences of his failure and is not entitled to his remedy and that is the end of the law suit, and nothing remains to be settled between 'the parties. It may be the trial court might have properly, had the evidence justified it, determined the rights of the parties on the cross action in order that the case might have been determined on the cross action in the event of failure of the specific performance. But, as pointed out by the majority, the cross action is disposed of and no complaint is here made on that account.
It is thought the point made by Copeland that the judgment lacks finality because performance is not made obligatory on, the part of Bennett is not tenable. The sum of money decreed in favor of Copeland is purchase money for the property to be formally conveyed or conveyed by the judgment, and Copeland has his protection therein. If the judgment be not obligatory because it fails to provide the necessary process for its enforcement that can be and should be supplied in the appellate court. Wilcox v. State, 24 Tex. 544, 5 C.J.S., Appeal and Error, § 1882, p. 1367, and the cases there cited, including the Texas cases of Angelena County v. Bond, Tex.Civ.App., 15 S.W.2d 338; Jones County v. Moore, Tex.Civ.App., 4 S.W.2d 289 (e. r.).
All matters of the nature just referred to are eliminated by the determination of the majority.
It is always proper to look to the circumstances surrounding the making and execution of a contract and the situation of the parties. In the instant case Bennett and Copeland, two ranchmen, desired to enter into a ranching operation, and had in fact so embarked before the written contract was actually executed. It is perfectly obvious they each desired to protect against the possibility of a default or failure of the other and the enforced abandonment of the enterprise by one against the wishes and desires of the other. In other words, neither wanted to be compelled to give up the project because the other did not desire to continue, or could not. That is exactly what Copeland proposes, and more. He says the property is not susceptible to partition in kind and that it should be sold and the proceeds divided. He insists, because he has elected not to continue, or cannot, that Bennett abandon also the undertaking and then divide with him the profits, which he alleges is considerable, accrued as the result of Bennett’s cash investment after he defaulted. In furtherance of that undertaking he insists on a construction of paragraphs '4 and 5 of the contract that will work a forfeiture and render the contract unconscionable, attributing to himself and Bennett the intention to .so provide.
It is my humble opinion the contract does not so provide, nor is such an intention reflected by’ the terms of the contract. Copeland insists, and the majority agree with him, that the provision which authorizes the non-defaulting party to purchase the interest of the defaulting party at the amount which the defaulting party has actually invested in cash in the enterprise at the time of defauLt, requires and provides that the non-defaulting party shall deduct from such amount the amount of cash such non-defaulting party actually has invested in excess of the one-half he was required under the contract to- contribute. This is based upon the language of the two paragraphs (identical in all respects except as to the position of the parties) wherein it is said, “and from such cash price for said lands, both original and additional lands, the said L. M. Bennett is authorized to deduct whatever total amount I, the said Joe W. Copeland, may then owe to said *771L. M. Bennett for moneys theretofore advance A .by said L. M. Bennett to me, or 'for my dccou-nt for the purpose of paying my one-half or any part of my one-half of any principal or interest installments on said notes or any of them, * * (Emphasis added).- • .
Certainly'the provision does not provide that Bennett shall or may , deduct his excess cash investment, as is contended by Copeland must -be. -done. On the other hand, it merely, provides first that he may deduct whatever Copeland owes him at the time of default for moneys theretofore advanced to him. I take it there is no question abo'ut that and that Bennett should and may properly deduct any sum Copeland owes him. The difficulty arises in connection with the next provision. Secondly, that' Bennett is authorized to deduct moneys advanced "for my account for the purpose of paying my one-half, * * (Emphasis added.) Copeland says this latter provision means and requires Bennett to deduct his excess cash investment, which if pursued to its logical conclusion would work' á forfeiture, wipe out his cash investment, and' take his interest for nothing1.' I cannot read the provision to mean that.
Money advanced “for my account” means exactly the same thing as money “paid for me”. The record does not reflect that Bennett made any payments for Copeland, but is that Bennett’s cash investment is in' round numbers three times that of Copeland. Had Bennett made the payments for Copeland the-'situation would have been exactly the same as if -Copeland had obtained the money from his bank or from another friend to meet his one-half of the payments and he would not have been in default but his cash investment would have been increased. He would have owed Bennett instead of someone else and Bennett would have .been properly authorized to deduct it, but Copeland’s fifteen thousand plus would have remained just the same. Bennett might have been willing to advance one or more payments for Copeland and protect him against default -but unwilling to continue indefinitely to advance for him.
The payments -made were not made for Copeland but for the joint venture and to protect its assets and had the effect of increasing Bennett’s cash investment and his equity. The payments were not made for the personal benefit of -Copeland necessarily but rather for the protection of Bennett and in the interest of his right to refund to Copeland his cásh ínvestmént and continue the -business rather than be forcéd out to the -claimed enrichment of Copeland.
It is undenied and undeniable that Copeland is in default. If Copeland were credited with every claimed charge, regardless of the proof, against Bennett, he would still be in default. Copeland does not dispute his default, but insists he should be relieved of his contract and permitted to profit from Bennett’s investments. In my opinion the trial court’s judgment is .a proper and equitable one and in accord with the solemn contract; of .the parties. I am unable to understand exactly how the trial court arrived at the amount due Copeland, but it is nevertheless a correct amount and should be permitted to stand regardless of the method -by which it was arrived*at. If he regarded the excess contributions made 'by Bennett' as made- for-Copeland, then the amount was properly deductible, having given Copeland credit for the contribution, -but' my disagreement with .that, result has' already -been indicated.
Of course, I regard my construction of the contract a correct one- and in accord with the plain provisions of the contract, but if I bé in error in that, my construction is in all events, it is thought, as reasonable as the one contended for -by Copeland and concurred in by the majority, in which event the construction which would preserve the contract and give effect to it, under an elementary rule of construction, should be adopted rather than one which would strike it down and permit Copeland to profit from his own default.
It is my opinion the judgment of the trial court may -be properly reformed and affirmed, because it can 'be made as obligatory as any judgment for the recovery of money can -be. In all events, it is thought the- contract is one properly to be spgcifi-*772cally enforced and the judgment in’that respect should not be rendered.
There is nothing, in my opinion, unconscionable in the provision and agreement voluntarily entered into by the parties, nor ⅛ requiring Copeland to abide by it. It seems to me the equities favor Bennett and it would be altogether inequitable to force him out of the business and permit Copeland to profit as the -result of his own default.