*1 trial court rulings of the tied to have appeal.
reviewed on appealed from
Therefore, judgment remanded
is reversed and the cause is trial. court below for another
LESTER, in the con- part no J., took C. case. disposition of
sideration or et al. O’NEAL
HOWARD
No. 2911. Eastland. Appeals Texas.
Court Civil 1, 1952.
Feb.
Rehearing Feb. Denied Dallas, Jones, appellant. H.
Joe Golden, Croley & Mays Howell and Lea, all of for appellees. LONG, Justice.
E.W. Howard instituted this suit T. R.H. Randall for an accounting, dissolution alleged part- of an nership joint adventure division partnership property. At the conclu- plaintiff’s testimony, sion of the court granted defendants’ motion peremptor- ily instructed the to return a verdict Judgment their favor. was rendered thereon in favor of defendants, from which appealed. plaintiff has Appellant alleged that on or about Feb- 1, 1950, ruary entered into an agree- oral ment with and O’Neal to their time, services, best efforts acquire, develop operate oil, gas and mining leases on lands in Stonewall County profit; parties agreed that the title to the leases would be taken in the name of O’Neal and that an undivided one- *2 908 acquired binding be en- based and such a valid and in leases so third interest all necessary requisite by of contract is a for the benefit forceable held in trust O’Neal
be trust alleged parol to the establishment of a appellant. Appellant further provisions land Article all monies of O’Neal would furnish Statutes; plan of and a the Revised leases Civil purchasing for the whereby of portion a would be worked out to raise fails “3. Plaintiff’s evidence for a sufficient leases would sold said be of issue of facts to the existence a O’Neal and sum of to reimburse relationship plaintiff confidential joint would be owned said adventure W. E. Howard and T. defendant John O’Neal, operated said by and the relationship being such confidential owning an undivided each and an of essential element o-f action to a cause pursu- therein; that in one-third interest impose upon legal a the constructive trust acquired agreement, ance of said plaintiff’s title and that this re- failure approximate- covering gas an oil and lease him; gard any recovery by forecloses County 1,700 land in Stonewall ly acres of agreement by “4. Because as shown thereafter, Goodrich; Eugene rule violates the plaintiff’s evidence Oil Com- Sinclair O’Neal obtained from perpetuities; Company Producing pany Oil and Union “5. agree- Plaintiff’s evidence shows an others, hole dry and bottom and hole letters against public ment which is of policy purchase letters, agreeing to cer- contribute state and unenforceable in its courts be- upon said amounts a well tain drilled plaintiff Eugene cause led Goodrich to be- producer; a was not lease and the same he, plaintiff, acting lieve was at all times upon a said land which that well was drilled agent Eugene Goodrich in securing dry by and that reason was a hole purchaser County a for the Stonewall leas- upon d'ry letters, made hole purchased.” es which T. O’Neal Appellant prayed that undertalcing. compelled appellees file a sworn state- be Appellant contends the trial court oil, mining showing gas and ment peremptorily instructing erred in contracts, leases, farm-outs, contributions appellees. return a in favor of As working agree- purchase letters tbe view will not be mineral interests ac- ments and each grounds us to discuss of set Texas, County, quired on land in Stonewall appellees’ motion out for an instructed 2, 1950, February also for since verdict. It will be noted showing accounting assignments, of all ground given “that pleadings ’andevi made, assign made whom contracts plaintiff express trust, dence show of hearing, final an accurate account- and on upon being based an oral contract is -partnership assets of had of the prohibited by Section 7 Article of 7425bof adventure a dissolution of the joint or the Revised Civil Statutes Texas.” Prior of and that his one-third interest by Legislature enactment 48th be established that he have therein 7425b, 1943 Article of Vernon’s Section partner- in the judgment for his interest Texas, Annotated Revised Civil Statutes of Appellees’ per- property. motion ship recognized parol our courts that a trust in upon based emptory instruction the fol- real valid if estate was the oral lowing grounds: upon predicated which it was was entered pleadings and “1. That evidence of prior acquisition into legal of trust, express being show an plaintiff Ploweve'r, title the trustee. since the prohibited by an oral contract based statute, enactment of courts 7 of Art. 7425b Revised Civil Section uniformly held that an trust Texas; Statutes resting cannot be enforced. 7425b, Article Sec. contains the follow- “2. That established ing language: oral, evidence, being wholly plaintiff’s precludes any “Provided, however, lacking issue that a trust rela- a valid consisting property fact contract could tion to or real shall established, created, assist 'him. invalid, Howard communicated this unless Randall, him telling information to declared: . a friend his and that he subscribed instrument written “1. 1,700 owned acres of leases in Stonewall duly thereunto by. agent trustor *3 County and was “in a bind” for cash. The by writing; authorized next morning had a Howard conversation any unde'r instrument “2. with O’Neal with reference to these leases affect- estate is claims the trustee which the quote and we here deem it towise from the ed.” testimony appellant with reference to the claim to Appellant that his contends time, he O’Neal at that had with property is gas and and other the oil leases testimony follows: is as express that the trust but 'an based “Q. got together you, three of trust. It is a constructive evidence shows O’Neal, Harry Randall and Mr. How- John is not law that a constructive trust settled ard, Yes, right is that ? sir. A. and that a above Article by the inhibited “Q. Yes, right. A. That’s sir. may be en thereon parol agreement based “Q. opened right, All up the con- who al., Tex. Hull et Fitz-Gerald forced. know, versation? A. I don’t ver- Sup., S.W.2d 256. 237 O’Neal, course, batim. talked with study a close have concluded from good grin and he had his usual on. He appellant failed to show evidence that said, said, you feeling, ‘How are Bill?’ had an the oil leases that he interest in said, right.’ ‘Harry ‘All He tells me trust or tinder either construc- got a pretty good deal here.’ That was words, the evidence In other tive trust. about the the opening substance of con- any to establish fails trust kind. versation on that occasion. concluded that the second We have “Q. that partnership And is when this ground of the motion for an instructed born, right there? We discussed follows, by appellees,reading filed opened the map it and Mr. Randall’s plain- “that the established desk, said, ‘Let’s take a look at John being wholly lacking oral was tiff’s He acreage, it.’ didn’t know the but he precludes issue of vicinity approximately, knew upon which valid contract could be fact Harry said, ‘It right, looks all John binding based and such a valid and good.’ said, ‘Harry looks has been requisite contract enforced is a deal, me telling about this what do provisions to a trust in land going think it’s this acreage cost ?’ the Revised Civil Stat- of Article said, ‘John, know I don’t what it’s utes,” is correct and should be sustained. cost, to< all I the man know is needs some appellant that The evidence shows acreage and he’s and I 1951, February, and for a number of good believe a be made deal can with him.’ years, engaged had been oil business Did discuss details of this license; prior that and held a broker’s Yes, partnership then? A. we discussed dealings appellee with time he had right then and there. years prior ten Randall that about they? What were A. That thereto, had he filed a suit bring was—I was to acquainted similar one He was here. n into picture and into our conversation with O’Neal but had never busi- we were to determine except perhaps and ness with him transactions cost controversy to take those leases. had interceded in a If the satisfactory and details were party. January, had had with to Mr. another agree Eugene then he would A. Goodrich be the owner of 1,700 He County financing man the deal. acres of leases in Stonewall moneys, see, $3,500. acquire and needed to raise contacted with deal. of us Howard We were all to use reference thereto our efforts might informed be able to best him that so-called believe, stated, at a Then further welfare, selling either general drilled, that the doing alleging some- well getting a not be between Randall was and O’Neal and thing, so that if, you came sacrificed, morning, when that was formed on as and before February over profit we made my whatever office That would completed, ? equally right? sir. divided one-third, one-third three, one-third least, That, day is the acreage or profits, it was whether . of the talked with about it? what, no difference. money or it made Yes, sir. losses, you discuss did about How con- And that as a of that result ' *4 sir; No, didn’t dis- we any losses? A. ference, there an that understanding was losses, antici- any never because cuss title to that was be taken in know how pated any We didn’t losses. after he his had realized and back cost. going to much it was money in acquiring and the these leases expenses any pay them, you to incident to “Q. were not You profits, If it and It wasn’t discussed. Randall were to losses? A. divide right? it; yes, been that discussed, would have been I A. That’s sir. had A. For understanding with testimony yesterday that necessary on the hole well before turn and wereWe can work out ence. There ing let’s sir. glad to. say, go into “Q. “Q. “Q. “Q. “Q. “Q. you all of these [*] of a dough ‘front way go into1it. ‘We money? A. up set I That was Somebody Just Somebody expediency you going believe to O’Neal’s well, [*] up deal money’? you a well. profits discussed? approach were going set a deal. ‘front are a number of going to was to properties would be taken drilling a well? could either with a [*] up you discussed? tiling. try would have to drill that would have program, If the deal name, John money’, purposes, yes, That made no differ to A. even to stated here in selling [*] do1that? A. negative lose some program, yes, sir; promote the deal. O’Neal that to have to have get any is that whatever was yes, [*] A. could A. to You don’t ways you took that idea A. sir. Yes, was an bottom- put up money, [*] sir. right? That’s agree drill your Yes, title No, sir. venture out of it. That was A. these there went about the leases Goodrich had showed tail, I believe have I told discuss make anticipated, pool split? Yes, sir; of our standing. cuss inference was that its, A. and there never would have been “Q. “Q. “Q. “Q. Now, “Q. them, except would Yes, Yes, had to over our efforts —our mutual leases and that initial would not have been anything goa you A. At You stated I believe If there had way resources to effect a sir. sir. you I . loss. A. We you there was pay If‘there but loss, though? you see Randall the stated that if it. have had an interest? we were it. words, you time, you something investment, whatever was have still had yesterday That said not no when you put any loss at would take and you been you did didn’t, A. Not had it; had were talking you say you loss would you showed day before, that any profit, because as efforts to object. profitable any prof- over and happened but interest. I not did interest under- right you him dis- de- A. to ? ? They were all conveyed [*] [*] [*] [*] [*] [*] you leases, right? I wish tell the the Goodrich isn’t court Yes, can, you in the best words sir.
.911 three-way participate he said to deal. We would O’Neal and what arrangement. ways. particular three was no ad- about this There words, vantage bring me to Randall or O’Neal I know can’t remember the exact deal, it’s into if wanted to that deal but if can remember. take word, myseif, pretty but line somebody relate it word for but down hard to idea, project might presume it brought discussed been Randall—I have —I Croley, see, injected into the it with was—he Mr. O’Neal Randall. You Mr. proposi- deal originally they about this to me with talked came deal, in- express purpose tion. not for it, anybody but teresting him or else in am how trying it, drink any ordinary oil eat man— discuss It agreement. reached a verbal the time. sleep it and it and agreement only? A. sir. previously day previously evening The anything in writ- Never been has 1 had mentioned to Mr. Randall what about this my following morn- occurred The in mind. Randall, No, right? is that office, ing when Randall me into called twenty years. known them fifteen o$ *5 opportunity get
'he into this deal. saw to what trying I am to find out the He told me about O’Neal. contract, contract was—it an oral that’s was you you I about what am asking contract, A. The as far as number one? ‘ you, to said to or what he said O’Neal concerned, Croley, definitely I’m Mr.' it was forming partnership? to reference us, O’Neal understood that Mr. phrase try I it as will to best I can. put up moneys would whatever were neces- conference, When O’Neal came into the Mr. sary, if liked the deal he after thing— me greeting his to the usual was picture explained brought into the was Bill’, you, ‘How are so forth so on. to him what it take. would said, ‘Well, He Harry tells me a up put any- You wouldn’t have to pretty good looking deal.’ particular thing? At it said, ‘Yes, said, right.’ He I it looks necessary wasn’t for me to initial the ‘Well, like,’ and see what it we let’s looks acquire project. to pointed map to got the desk on up any “Q. You putting didn’t discuss me, says, acreage. asked He ‘How much No, money at that time? A. more I it to it?’ do think will take handle up any moneys. putting more We dis- know, I because hadn’t dis- didn’t our pool efforts cussed this—that would we per- price with Goodrich. That cussed try it a give would and would —Randall haps was the first time Mr. name Goodrich’s try try would be- says,-‘Well, mentioned it. He was us, tween we come with some Should mind, said, Bill?’ I do uniform kind of venture—that’s particular, only Har- —a John, nothing this: what it was—the formation of it. ry you might in work- tells me be interested your stating kind deal with us on this.’ conclusions ing out some You are a matter, ‘Yes, looking says, have been the ex- He about the but can’t Harry County property, language, Stonewall act words or I believe said? some I,’ says, likely looking No, sir; giv- a not correct. am and he ‘It’s is area; right.’ language close Then believe re- as en- it’s he—if project, fact that tered into Mr. would solved around things. getting interested in -into these We our efforts. deal do money. concerned, far losses were it wasn’t extent that he advance As as any, anticipated there would be but there say that? Au he said Did loss, proportion- was a would stand our it; way, Croley: it this That he said part. anticipated if It was ate moneys were didn’t whatever —we loss, do that. we would it was cost—then it know what say anticipated, but generally established deal make the deal didn’t discuss loss at the time deal come into the operation expenses specifically that. and that the such up? A. Not came way by were received from other Ran- borne from general in a It was inferred who contributed thereto under myself he wouldn’t that as to dall or by it, agreement obtained Randall and O’Neal. took the deal.” any money if he lose put any money any time never plac believe the only project. agreed into the use an squarely within rule es case “to tire welfare general best efforts Supreme Sor by Court in nounced our parted parties.” Howard has not Coffield, In that rells v. S.W.2d anything. nothing with There is that he and Coffield claimed Sorrells facts, he can claim restitution. Under the formed into an oral entered unjustly gratuitous O’Neal has not been purchase 120'acres partnership for ly enriched. The testified to Butler, purchase belonging land o’f lacking and no con is the land to but paid Coffield sideration is shown therefor. order with each own jointly them owned trust in land it establish a interest therein one-half ing an undivided to show valid and enforceable contract mineral interests were enough if and when Cohen, parties. between the v. Tex. Wade repay for the Coffield sold in the land requisites Civ.App., 1168. The 173 S.W. purchase of money expended by him the include, among for such contract facts this case disclose the land. The things, mutuality and a valid consideration. actually with made the Sorrells holding was not Under land and Coffield of Sorrells Butler for the Coffield, opinion supra, it that there until the deed transaction known in the *6 existing delivered, which name was was no enforceable be time his contract thereafter, parties, therefore, tween con grantee; Sor- have inserted as the trial in in interest in court was correct cluded rells for Coffield sold structing a in favor of $1,200 was sufficient O’Neal for minerals paid Randall. money repay for amount Coffield Court, Supreme land. The him for the trial judgment The of the court is affirm- case, in that held upon the facts passing ed. lacking in the contract was Rehearing. On Motion for and was unenforceable statute words, it In held frauds. of time filing A short before the interest in the land had no Sorrells suit, appellant re Howard attached a upon trust based of an reason telephone called cording device to his agreement. It was also held oral appellee carried on a con partnership existing between Sor- nowas versation with him relative to their differ The facts in the above and Coffield. rells Upon appellant the trial of this ences. parallel to case are the facts mentioned offered in evidence such conver recorded purchase paid the entire our case. appellees sation. To introduction its ob never at Howard the leases. jected objection sustained pay part thereof. agreed point appellant the court. his sixth com fact, that he shows the evidence plains carefully ruling. We have making of the of Goodrich sale agent considered the and that he collected leases O’Neal opinion refusing the court did not err in a commission the sum $600 It admit it. shows its face to be very testimony is un Howard’s therefor. attempt negotiate com a settlement and clear to how the not at all certain and promise of the differences between pay money to be raised to and, therefore, If is inadmissible. expended purchasing by him the evidence been admitted it would had no connection leases. changed Appellees not have the results. drill the well on raising have been entitled to an instruct would still evidence discloses lease. The Company ed drilled the wells verdict. Drilling carefully reviewed the again case and have concluded record disposition made thereof opinion
original is correct. rehearing
The is overruled. motion GULF, S. RY. CO.
HAUCK v. C. & F.
No. 14461. Appeals Dallas. Texas.
Court of Civil
Feb. 1952.
Rehearing Denied March Reed,
Callaway Montgomery D.O. Andress, Jr., appellant. Wm. *7 McLeod, Shirley, Wigley, & Gal- Mills Donalson, Kucera, veston, Bullard Dal- las, Wren, Worth, for Frank Fort J. appellee. CRAMER, Justice.
Appellant, plaintiff below, claimed dam- shipment age to of rattan and rattan fur- shipped Manila, Philippine niture Is- lands, First Bank National notify Hauck, by steamship R. E. harbor, Wilmington, A., Angeles Los U. S. by connecting carriers, thence rail appellee, below, defendant being the last- carrier, and who connecting railroad made plaintiff in Dallas. The delivery designated in the trial will be as court. sought Plaintiff to hold defendant liable shipment damage somewhere in transit, after it was delivered to the first carrier, carrier, delivering railroad un- Amendment to the Inter- the Carmack der Act, amended, U.S. state Commerce