land by Kyle'was not immediately in contemplation of either party to tbe contract. This is clearly shown by tbe averments of the plaintiff's petition and tbe intendments arising therefrom. Tbe purpose of having tbe defects of title removed, it is true, was to put tbe title in a marketable condition. Tbe fact that the title to tbe land was to be put in a marketable -condition presaged tbe contingency of a resale. This much is revealed by tbe terms of the contract itself, but a resale of tbe land was but a remote probability, with reference to which the parties could not be reasonably regarded as having contracted. Obviously a resale, thus indicated, depended for consummation upon many contingencies of a speculative nature, wbicb had no reference to tbe state of tbe - title to tbe land. It cannot be assumed that tbe Higginbothams, when they entered into tbe contract, bad in contemplation these unknown and unknowable conditions and circumstances arising subsequent to tbe making of tbe contract, and in fact subsequent to its breach.
The averments of tbe plaintiff's petition herein fail to show a liability on the part of J. M. and R. W. Higginbotham for the damages sought to be recovered of them. We are of tbe opinion that tbe action of tbe trial court in sustaining a general exception to tbe petition, and entering judgment of dismissal, was correct.
We therefore recommend that the judgment of tbe Court of Civil Appeals in so far as same reverses tbe judgment of tbe trial court as to J. M. and R. W. Higginbotham be reversed, and. that the judgment of dismissal of plaintiff's suit against these parties, as entered by the trial court, be affirmed; we further recommend that tbe judgment rendered by tbe Court of Civil Appeals in favor of tbe defendant in error against B. T. Hig-ginbotham on bis disclaimer be affirmed.
GREENWOOD and PIERSON, JJ. Judgment of the Coiirt of 'Civil Appeals, in so far as it reversed tbe judgment of tbe district court as to J. M. and R. W. Higginbotham, is reversed and judgment rendered dismissing plaintiff's suit as to said parties. Judgment of tbe Court of Civil Appeals affirmed for defendant in error against B. T. Higgin-botham, as recommended by tbe Commission of Appeals.