urges, merit n been his toadvise *1 Tex.) though Anderson, Clayton Company Melear the market tional bales of telegram that same it would however, procure ,of Anderson, Clayton days derstood sent tional offer ditional 200 bales same that fore following o’clock on the al agreement cordingly any lear Anderson, 100 bales of cotton untenable. show that Anderson, ton connected the failure to vent the tional bales failure to deliver acceptance cient to tion was lear was lant in that it amounted gram, Affirmed. In these 24½ only got the amount found & price; 200 he at Jacksonville way at the same Company and affirm the matter testified principal if it had been undisputed bales, cents, telegram in report of fact overrules ; previous support formation of a contract between testified that the defensive matters them additional bales .proof opening remaining morning merely Clayton Company; in the circumstances Clayton with his cotton day by telephone he could of an by long and which 21 cents it was meant he deliver the cotton of his loss that cotton at to them appeared, take the afternoon failed t'o show him so take the and not his own have taken the conversation to so sell to of the cotton buy ELLIOTT, words, & it did & suit, judgment against distance himself assertions for judgment; telephone had sold declined he from'Melear 24 n sent, telegraph evidence Anderson, Clayton the same price, provided acceptance Company pursuant 24½ sale which was intended at that time for pound, thereby 200 bales and in that connection both telegram the further claim of the same shown that after the time of cents between and 6 would Anderson, stipulated price business. procure fail to cents; —of JONES & they agreed to telephone Me- them; he therefore parties been received uncertain shown to shipment of the addi- have so him in the company. — day 200 addi- Melear to considera agent 200 addition- attended Houston to have had been .that' equally day to pound, insuffi a few appel them Clay their addi have tele CO. v. did, los- pre (253 S.W.) Me- be- al- ac so it notified Elsea & him for leases” referred to and the rate of date liott, sustain rel. Francis, judgment against Elliott, liver such «oil to the fendant was which was barrels. Elsea ants oil runs from the lease were pipe line connected with duced from a well Oil Asséciation. The delivered to a terms phrey and Elsea’s Booth, ant others breach of price, ty; September 5, 1919, in an oil 2. Sales others. ance, creating oil at $1.75 a barrel. (Court breach of ance helé -division order Appeal BOYCE, J. Action John P. Clamp, Searcy & Groesbeeck and F. H. Sales <©=»32—Letters A letter from Generally E. W. Plaintiff, with interest from the date of May 23, he all of 'San creating interest, in which he was interested would of Civil OIL ASS’N et al. <§=»442(12) Generally purchase price conversion of all of Wichita thereto “purchase price from District producing the lease Hoffman, operated by Elliott, Napier, Judge. Marrs, Bullington, Boone," are as follows: obligated by a valid Co., alleging 1923. June brought held measure of paying plaintiff Appeals the oil runs from the lease Antonio, E. Elsea operator — & operated to November owner of a contract, required well and 27, 1923.) an offer and an Co., Inc., appeals. of title. Rehearing CO., Inc., -Jones & wire that from such alternative, lessee said oil. The plaintiffs, rate Court, held offer and this suit amounted to of Texas. Amarillo. Weeks, and other defend- (No. 2152.) was the owner of the lease. buy that the said de- contract of is the was, an, appellant. Wichita Coun- for July Co., Inc., v. WAURIKA Denied therein, damages execution of and defend- therefor at appellees. Morrow the sale of asked- run from July pipe line, facts to to. interest accept- accept- to de- Hum- From pro- 601 Af- Digests topic Key-Numbered and indexes other cases see ail and KEY-NUMBER
<£=aFor *2 REPORTER 253 SOUTHWESTERN cluding royalty, until interest and further per went barrel. Elsea you give from will oil received & at Wichita Jones Oo. said well as directions below. office, Antonio San matter to its referred the 1919, Elliott, 15, Oo. August and which furnishes the letter wrote to Elsea The let- claim of contract. basis lengthy. to an of it is devoted is Most ter Co.’s, argument to sustain “ * ** Inc., Oo., here- Jones & is position under the barrel was that period fair for the oil. We to receive from said from oil wells for passages quote only following parties severally proportion named, said * directly pertinent * * discussion: subject following conditions: Said oil shall owners or you $1:75 we offer “You realize that when assigns respective proportion inter- to their your not mean an indefinite oil that it -, posted price ests at shown above tightens, and can offer. secure AYhen paid by Elliott, Inc., for the same gladly oil we will quality kind and oil on the same * * * you voluntarily We and more. oil, this divi- division, inclosing leases orders are that are sion is delivered as aforesaid.” you on and from own appreciate running some oil. We would record show that- your signing nam- orders at any posted price during you notice, either us. ed until further your period you of time full for mentioned. then send check reasonable will you this, If do we are oil run to date. will cash market oil value of your you ready ately, oil back to immedi- during October, 1919, and you disposition wish will ask what and per barrel, according same, as we do not have made of any changes No notice of * * * carry you. Your im- room mediate it given, contract liott, Elsea or you requested, and if don’t to each other after ex- Novem- offer, kindly us let know wish entertain change prior . letters and disposition to make of this we can- what you any longer.” 1, ber it for not store It was contention Co.’s that under the facts stated it was bound to replied by Elsea letter of To this letter “posted price” for his August 18th as follows: paid plaintiff belonging and that for all oil returning signed division “I am this date 'September him and delivered by Waurika mailed me Oil 5th; 1919, September 5, that about your Worth, In let- of Fort Texas. rika 100,000 T. A. Edmonds Oil Association sold to say August 15th, sign I will that will ter of division orders oil, to be from barrels of delivered present, understand- 1, well No. you treating right people Waurika me barrel, ground agreed matter, am his I on the and Elsea this do and that just right present, just what is not know said con- interest should be delivered under tract, investigate mat- will and but will ters. and down Edmonds, who was made a $2.25, listed do I know defendant, therefor, party your people that, at Wichita Falls I told so; offered to do that Edmonds and had advantage you people of me if were 100,000 barrels of sold said oil you things congested, would be while barrel, and all get things I normal. am remembered when Sep- quite good oil it from said after 'going deal to have 1919, 5, me now are delivered to it treat tember 88. the ones that I pipe ones be remembered will while. that, after contract with your people I did not want also told Ed,- party to the contract with was not a my my place not run line on monds, notify knew the and did you people right. So and treat me any part Co. of claim my oil, you and if will what delivering to Edmonds oil that help running my you quite a me in 'to can be of but, objection, permitted without notice or you help price, and I can be oil at the delivered, you for. furnishing you please to settle with let me hear from such, along élaiming pay estopped line.” and is contract between just referred was dated referred to signed July 26,1919, provided dated Elsea. Edmonds of said association to the sale 100,000 Oo., dressed of oil at follows: “receive and take 1 on the nine-acre lease well No. certify undersigned guarantee “The * * * of block corner northwest legal owners of Waurika are the 100,000 received, pro- until said No. Wells No. on the E. ciation fall 1 should in event farm, vided Block located on 88-in- Tes.) & CO. r. (253 3.W.) per day, acting 1st contract, oil to the below under said de- ran into amount of belonging Elsea; rels of oil 1 and other wells Elsea did livered on tion] agree lease, party in to associa- [the if first *3 produced wells, the oil from the Waurika lease desires that Elsea did of the til between The contract this contract fulfilled.” Elliott, contract & is all the Co. Edmonds and Jones the provides Waurika lease was 6th, delivered to also dated Elliott, contract; Jones Co. under by Elliott, & Co. sale 100,000 Jones of Edmonds to Elliott, Co., when by con- made the of “to be delivered tract with knew bu'yer that Elsea owned known the seller to from the one-eighth produced from the 1.” This con- Waurika Oil Association No. guar- rika did Edmond’s provisions: tract contains the one-eighth of antee Elsea’s of the oil. .to represented buyer that said “Seller to in was rendered favor of 100,000 seller from the Waurika barrels has been Co., $17,601.30, Oil Association against and in of Jones & Co. this in and that settlement for lease block Edmonds on his contract made to A. shall be direct T. seller, agrees protect $11,345.95, $4,955.65, to and hold harm- of of .less buyer thé made less claims pur- which it would owe balance Edmonds on buyer against payment of this one for the chase of oil delivered to it. agrees buyer at oil. Said seller furnish to [1] We think the to evidence is sufficient properly authorized of- with letter from once plaintiff’s sustain contract. & order be in favor on the of the ficer by Elliott, The letter written approving agreeing this thereto, reply Elsea’s division A. settlements are Edmonds be direct with T. made signed by him at the same time should named buyer the contraer. re- herein. It is understood that preference unequiv this ceive on all oil Jones Co.’s letter anwas stipulated herein, up amount and sell- lease ocal oil $1.75 offer to barrel for the preference all oil er of is to receive already and that received by buyer loading runs tanks until further notice. It called future racks.” signing and. the of order to complete the contract. While & Co. Edmonds delivered unequivocal might be, think is not as something over in this of it is an of the offer. oil, including of therein evidently form, printed order consisted of a one-eighth interest, which amounted sea’s par with tp filled in to meet the blanks be controversy 9,076¾ in dealing The ticular situation. letters were one- suit. E.dmonds question specifically with the of eighth run in be paid language for the of the let from they thought His testified said well. parties themselves, and ters was that of the they had an contract oral discrepancy language in case of between that one-eighth Elsea to might printed form tes- of the Waurika Oil officers tified controlling given Page sell, effect. on Con and were 2043; Contracts, tracts, § Simkins § Elsea’s interest authorized paid find no the manner of submit- error runs. Edmonds seven-eighths ting from the the oil issue of contract. The fact ciation for well and delivered of ultimate thereby presented issue was determina- and tendered tion of submitted payment thereof, opinion, in our connection therewith jury Elsea, rel, which was refused. from the of exclude the arriving the oil for all mean- Jones delivered barrel, except it at of We also think the contract. jn special $4,955.65. no error the refusal submit issue of stated, Elliott, requested facts above and referred Based on the sought proposition. Ed- to fifth re- issue quested jury find two monds and any whether plaintiff might passing recover between & Co. letters and special jury, response between it. The Elsea constituted independent issues, Jones & Co. con- of found the division order. purchase, already said, “to tracted with Elsea As we think the divi- contract,, run in its connected sion of oil to be became a of requested Waurika at of the issue with the submission of party”; until further error. barrel been proposition complains of said notice of the discontinuance of that no The ninth error 1st; given November and of contract was refusal trial court to submit Roy November authorized issues 253 SOUTHWESTERN REPORTER Tex. plaintiff; Ed.)'669. a him delivered. chase the time of entitled to recover on The facts the appealed. written Elliott, rate contracts with monds and his proportion stated, and time tion and tended that parties, contract between the Waurika surrounding necessarily sociation ing of have rendered a reasonable conclusion that the as the construed *4 Association warranted the monds monds whether issuable facts submitted, charge, issue, Baker, tracted to set-off, Appellant, the Waurika overruling such judgment Waurika Oil 353, 354; than ultimate issue of-fact, Appellant only seven-eighths be delivered under the Jon,es of the oil sold and delivered knew that the Waurika requested, connection, (2) that, as These Edmonds. was error mean least were breach superintendent under contends & did Company’s selling and this appellant; as to think, by judgment Edmonds had Sutherland oil at & Co. also makes two for submission general required parties at the oil owned well and others. these entitled to recover with are: light the Waurika Association covered Elsea’s each owner. The letter for the court‘to but Anding had been (1) that the Waurika interests under conclusion results propositions. the Waurika sufficient make Edmonds’ plaintiff’s fact rule of eighth complaints against connection with the letters. But due him not claim That the court should ownership necessarily Elsea owned sixth appellant’s oil. evidentiary in this instance of the Waurika tlie the association v. Damages contract. Ed- there time, thereon from did not delivered out Oil Associa- and twelfth Perkins, It parties in- of title price. Since run, it is was sell- between the as well to this plead allow mean sepa- pur (4th in the fact. find Ed- of Ed- As- Oil had not of ed is no ure of oil were estimated on denced sought. rehearing ery, when was does not tract ant was specific agreement perseding any letters. Our of $1.75 allegations. attached to his as dence tween him. he cannot recover under the conclusion ble, therefore, division order as a be construed tract between the order as in gether think consideration, rehearing that, ascertaining by proper kind, the sea and and, sustained Other matters mentioned We find no true purchase shown Edmonds. We think division order did not pleading failure to nothing in fact still stated ought He motion original opinion. particular part of the with the two letters rule appellant argues opinion recoverable relying relying paid $4,955.65 that it relies it has been determined that the letters have been amount was not conform to On Motion for part barrel.- He relied on the his oil and conclusion plead it not as because' damages. reversible error on' since Elsea did not was under letters,'copies petition on the division extent of proof which failed. opinion only rehearing division order that preclude letters, on which part as an embodiment of this basis. the contract sued on which the division not there credit or as the contract. So we the court supersede appellant’s damages in the motion for but became a plead Rehearing. hand, expressed him from recov- therefor supporting because the evi- judgment, special damages, exhibits, agreed has been a the motion for purchase price of which were be recoverable pleading. presented by overruled. offset, order as su- It is not case the defend- considered applied taken passed order, plead was that reason the con- with El- letters, chang- suing, stated, but part evi- fail- into lia- be-' to- af-