The opinion
HUTCHESON, Circuit Judge
(dissenting).
The Board correctly stated that the controlling question in this case is whether the contract of sale made by Meadows and Trippett with Rancho on December 20, 1934, was an agreement of Meadows and Trippett as sellers or was an agreement of Texota as seller, through them as its agents.
The facts as to this are undisputed, indeed stipulated. They show unequivocally: that all negotiations between buyer and seller were had with the understanding that it was a personal sale of Trippett and Meadows; that in the beginning they stated that they owned a one-fourth interest in the property, that they might consider selling it along with some other property, and that there was a possibility that they could acquire all of the interest in the property; that later they acquired all the stock; that the contract of sale was drawn between Trippett and Meadows individually as sellers and Rancho Oil Company as buyer; and that it was arrived at after sellers had stated, that the deal was being made by them individually, and that they intended to liquidate the corporation and then consummate the sale.
No contrary testimony or claim appears or is made. The opinion of the Board and of the court, that Texota, and not Trippett and Meadows, was the seller, is based upon the incorrect legal theory that though Trippett and Meadows were trying to contract for themselves, they could not do so since at the time the contract was made the corporation owned the property, the subject of the contract and they did not.
In Texas, and I believe generally, a person may make a valid contract to sell land which he does not then own but expects to acquire. 1 Since it was legal for Trippett and Meadows to do what they proposed to do, contract for the sale of the property of the corporation and agree to deliver it when the company had been liquidated by conveyance to them, and since upon the undisputed facts, they proceeded as they had agreed to do, by taking a transfer from the corporation in .liquidation of their stock, I must respectfully disagree with the conclusion of the majority, that they were doing what the undisputed evidence shows they were not doing, contracting for Texota. For the same reason that the undisputed evidence shows they were, I must also disagree with the conclusion of the majority that the properties were not transferred to Meadows in liquidation of the company.
I therefore respectfully dissent from the judgment of affirmance.
Hufstutler v. Grayburg Oil Co., 48 S.W.2d 591 , Texas Commission of Appeals, approved by Supreme Court of Texas; Tison v. Smith, 8 Tex. 147 ; American National Bank of Wichita Falls v. Haggerton, Tex.Civ.App., 250 S.W. 279 .