Opinion
No. 8980.
May 1, 1939. On Rehearing May 25, 1939.
Appeal from the District Court of the United States for the Western District of Texas; Charles A. Boynton, Judge.
Stanley Boykin and George F. Seideman, both of Fort Worth, Tex., for appellant.
William L Kerr, of Pecos, Tex., and John Sayles, of Abilene, Tex., for appellees.
Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.
Like Miss Meacham's case, Meacham v. Halley, 5 Cir., 103 F.2d 967, this day decided, this was a suit for cancellation, and in the alternative for damages, based on the claim that plaintiff had been defrauded into releasing to Halley a ten acre lease.
The facts in this case, with a few unimportant differences, are the same as those in Miss Meacham's case.
(1) Whereas Miss Meacham executed and returned, in September, 1935, the release Halley had sent her, Miss Beckert executed hers on September 26, and acknowledged it on October 3, 1935, but held it in her possession until May 2, 1936, when without any further solicitation or action by Halley, she sent it in to him. (2) There was no correspondence between Miss Beckert and the attorneys for Weaver et al, the purchasers. (3) The record does not show the production of or the development for, oil on the Beckert 10 acres and in appellant Beckert's brief, at page 11, it is stated "there has been no development on this lease."
The controlling legal principles are the same; the decree below was the same.
For the reasons, therefore, set out fully in the Meacham case, the decree appealed from in this case will be affirmed.
On Petition for Rehearing.
As neither of the judges who concurred in the judgment of the court in the above numbered and entitled cause is of opinion that the petition for rehearing should be granted, it is ordered that the said petition be and the same hereby is denied.
The facts of this case being substantially the same as those in the case of Meacham v. Halley et al., 5 Cir., 103 F.2d 967, the dissent filed in that case expresses my views in this one.
I respectfully dissent.