*1 LE et al. BUS LE BUS v. 15510.
No. Appeals Texas. of Civil
Court Worth.
Fort
April 1954.
Rehearing Denied June
507 MASSEY, Chief Justice.
From a summary judgment rendered for im- against defendants a suit them to press upon prof- a trust funds recovered operation its gas a certain oil and funds, accounting and for an plaintiff appealed. Judgment reversed and the cause manded a trial on the merits. The suit was initiated in March LeBus, by Ervin C. who the ex- LeBus, ecutor estate of deceased and who died November of premised upon His suit allegation rights having certain been existence in father at the date of death, and to enforce the same as of rights upon date of death. The sued were October, 1937, in a founded transaction of as result of which the lease as the known Texas, County, lease in Wichita acquired in name of George parties original LeBus. the trans- were the deceased and a action brother of deceased, George F. LeBus. Subse- quently, George LeBus’ in the properties oil involved suit in the transferred, part, at least in sons, Roy H. LeBus and n persons All three were named as de- Jr. fendants, but since F. LeBus’ sons’ interest in'the simply by suit has resulted reason of transactions between them and. father and their since their interest is father, identical with that our dis- opinion simplified cussion by treat- ing party the executor as one F. LeBus as the other.
The defendants filed a motion for sum- mary judgment a hearing the court trial sustained the defendants’ motion nothing rendered a take defendants, favor of plaintiff appealed. John, F. LeBus and his brother Worth, Tipton, Jr., Fort Mc- W. Ben deceased, indisputably partners-, now Anderson, McDonald, C. C. & Donald partnership in -a part- mining so far Falls, for appellant.
Wichita in, concerned, nership is connection with McCormick, operations, prior Tipps, Masters &(cid:127) R. both O. sevérál and subse- Falls, appellees. quent-to of 1937. October Tipps, Wichita when’the-Man* acquired promises him, name gold lease was conditioned Indeed, through proving profitable. it was transaction F. LeBus. The condi- opera- acquired pursuant actually tion was Firstly, information twofold. *3 mining partnership these event of a Mangold tions under one of resale of the lease desirability Man- of the E. promised situations that the LeBus was one-fourth John profit, any, discovered. The brothers the net gold resulting lease was if neighboring Secondly, lease jointly drilling on a resale. opera- were in the event of proportionate they each owned a tions the Mangold in which E. Le- John interest, promised at- which the other Bus was and as to one-fourth of the net partnership profit, any, be- mining resulting existed if operations. tributes of a from the result them, they secondary situation, learned as a when Under this tween agreement were about to operations that of the E. LeBus’ entitle- John begin This informa- bring in an oil well thereon. ment should not George until F. Le- resulting directly the acts occasioned Bus had tion reimbursed himself all the amount acquisition neighboring Man- expended that he acquiring in the plus- the lease expenses gold all his opera- lease. in connection with thereon, tions conducted after which the certain, appears probable it While not one-fourth payable would be to his brother only one of George F. LeBus was the periodically computation and after money buy brothers who had the the two profits. net There nowas time limit stated Mangold His brother was lease. during George which F. LeBus would be desirability fully as to the of ac- informed obligated pay agreed consideration so financially quiring such lease but un- upon during E. LeBus- John part of the put up any proportionate able to would be entitled to receive the same. acquisition, any operations or of cost acquisition. There no thereon after premise, With this appel- contention as a faith on the of either good lack of lant contends that the Mangold lease was- position and each was in a of full brother resold, but was in fact retained compliance all the duties incumbent with George operated F. LeBus and was by him relationship upon him as result of the trust and successful drilling were con- simply them. It was which existed between thereon, production ducted of oil and George LeBus a situation where F. quantities paying was realized from financially advantage position to take said great with such success property knowledge was the period from the time the brother, , but his brother both himself and acquired lease in 1937 to the time of was not. E. LeBus’ death in November of profit period a net for such would exceed this circumstance the two In view of one million During period dollars. it into an oral contract con- entered brothers undisputed George F. According to LeBus cerning the E. LeBus were mining partners pur- agreement involved a in so far as various other enterprises F. chase of con- cerned, and George F. purchase LeBus connection with the was engaged and in in other and more enterprises LeBus as his extensive E. acted brother John which he was in approach mining making partnership and servant agent with persons estab- other than the owners of E. LeBus. In part, least, relationship, at suggesting favorable because lishing F. LeBus' consideration, negotiating more extensive and purchase, more highly involved activities he effecting a close transaction maintained a office, business conveyed kept prior owners the and he books records, whereby while John equitable prop- LeBus did title to the lease E. not maintain legal business office keep As George LeBus. consideration did not books érty records. kept of these all LeBus E. records of the LeBus made George F. certain activities which he was engaged services $250,000. estab- suit is to LeBus had an interest. E. which John contract, by an LeBus lish the and to establish to remit to was his custom indebtedness accounting him as the amount payments due time from time to due the LeBus as joint activities. estate of profits from their part of at one date of his in November of least death By appellant’s pleadings, at impress equitable did and to lien all the admits that stage, he partnership properties compute due still owned all the properly along estate of brother, pay him all such said deceased and did November, appellees, as se- month other including curity payment ac- month for the debt so during which *4 money except died, the amount in crued. save and justly George owed F. ap- regard Pursuant to his suit in this the oral E. LeBus because of brother pellant alleged immediately upon that concerning the agreement made with him acquisition Mangold George profits the Man- of the net from one-fourth F. LeBus set out to defraud E. LeBus gold lease. accruing deprive and to him of benefits LeBus, as Appellant alleged agreement that under the Octo- contract of ber, 1937, relationship George pursuant F. of to such fraudu- result George purpose fact that lent LeBus and because of the LeBus did lead him money the books and that he was keeping receiving F. LeBus was to believe by en- mitting profits to him as he was due him under and virtue of said con- agreements agreement, the various and re- tract and when in fact titled under he was lationships oper- receiving nothing with him in and to various thereunder. Further al- ations, legations never did know even until the date were to the effect that the other participated his death he receiving that was not did likewise and of money he was entitled to under the the receive fraud. agreement October, and oral contract of is true that order to resolve the 1937, pursuant fully per- to which he had effect of the pleadings into al- by obligation formed his obtaining legations by set out us as our understand- lease for On LeBus. them, ing difficulty experi- of some was contrary, according allegations to the difficulty enced. This arose because the appellant, ot E. LeBus was misled primarily proceed premise fiduciary relationship, because of the agreement that the made between additionally during years the last five of his LeBus and 1937 creat- life because fact he was men- partnership relationship ed a between the tally incompetent as result his addiction of upon However, two drugs, alcohol and believing into by this is deemed us to be a conclusion on George F. LeBus paying was in fact him part pleader from facts which he profits contract, him due under the and plead sufficiently contrarily for us to con- was the account keeping thereon current clude as a of matter law that it was a con-
by payments regular of amounts due be- personal tract for services and that the con- cause thereof. sideration for the of part by Appellant the contract alleges contrary of further was agreement by understanding pay F. LeBus to him and belief on the compensation personal services, of a for such the entire period October, 1937, compensation measure of the from to be to date of his death, paid opera- he of net from pur- had not been one-fourth one cent on the Mangold by conducted suant to the oral contract and tions agreement question, Though appellant whereby George F. LeBus. the total amount ac- calls says relationship by he by crued reason created under of the said “partnership” agreement throughout and due him agreement as indebtedness pleadings, nevertheless we are thereof was excess of the sum because n upon that at its'being that would established opinion alleges that’ the facts knew, through er- some certain the deceased either date applied a misnomer has ordinary applied to or in the exercise of care should roneous conclusion known, his have that he some under had not received relationship which resulted payment fact, partner- unpaid accrued and such was allegations of due relation, agreement virtue con- though it one trust. ship tract and from which date we could ap- pleadings also in his compute some time covered statute as result of pears concluded have Tex.Jur., p. limitation. 44. No sec. have was to agreement and deceased proof or no- bearing knowledge profits, net paid one-fourth of been hearing tice introduced of the oral construction though it our summary judgment. the motion for pleaded that one-fourth contract merely “yardstick” net having taken compensation deceased he took both title and measured. been should be have ownership place the oil *5 license purpose exploration the of the the Appellees’ and treat brief production of such on and minerals in- appellant as one an to establish suit of the got surface. E. LeBus equitable by way an in and of title terest neither, get neither interest did he Mangold but the to the only in either. The title that the owners any attempt part on his disclaims such simple, real in of estate Texas have is a fee any he not expressly does have states conversely, those who have the fee- title, any legal equitable, in said right to or title, simple only, and those are the owners property, only purpose Scogin Perry, of the Sup.Ct.1869, land. v. right- an is to collect indebtedness suit Tex. 32 E. LeBus was not a fully due E. LeBus as of date of cotenant F. LeBus in and to agree- the oral death under and virtue of Mangold the lease because he was never question, in and in and contract view ment any possession entitled to there or thereof now of the death of due in, having and never been so entitled there are various owing to his estate. There have tenancy could been no therein common which are written exhibits contracts Tex.Jur., them. 11 p. to sec. 2. The lating lease and which bear requisites any four of in joint estate ten deceased, the which signature the of ancy simultaneously never existed or con disclaim title or otherwise demon- either currently between the two the brothers in never claim strate that said deceased did requisites unity lease. These are: equitable legal any interest in the or title interest, unity title, unity time, of of of say least, Mangold lease. To unity possession. Tex.Jur., p. of proceedings as we consider so far Though may sec. 4. legally there be a standpoint summary judg- of a from the partnership relating some kind of to oil and say proceeding, we cannot that was it ment gas or oil and lands which is not a the deceased ever ever established partnership, mining it is certain that an interest in could claimed the title which brothers could not have been mining part premise claim, been have a of his in relation to ners lease for disposed any prior he action contemplated was never possible there death. the date of his So we cannot hold joint working joint as any well as owner claim, ever the deceased released his ship are These essential any any if he ever had. Neither can relationship. Tex.Jur., a p. legal premise any holding instruments said sec. 2. any ap- the statutes of limitation are case. plicable to the appellant’s theory, Under only a profits manner The statute of E. LeBus’ interest in the would might defeat suit limitation common with LeBus’ inter-
5H
seizure,
ownership, or
LeBus was not to
But the
est therein.
.receive
profits
opera
com one-fourth
they
not
of the- net
profits
as
accrued
the Mangold
principal.
tions on
did not have
lease as
E. LeBus
mon because John
agreement
fully
alleged
interest
an
right,
as an owner
hav.e
.of
authorized
dispose
profits,
owned.
to sell
what
assign
perfect
con
and he
absolute
was at
LeBus retained
liberty
joinder
property, and
do
without
operations
on
trol
part
And,
of his
We
brother.
property.
believe
since
possession
rather,
operate
right
decided to
only
had
contractual
John
to have his share
it,
than to sell
assign
profits
and he did so
over
operate it, it
carrying
If the in
is
that in
out
were earned.
clear
him when
purpose
purport
he did
profits
gen
to conduct
joint,
in the
then
terest
operations
agent
partnership,
but
com
kind
erally makes it
character
profits
for his brother
If the
he so
interest
does not.
Had
mon
John.
conducted
owner,
profits
agent
as an
is that of
LeBus, might
seizure,
parties
it
joint
if
be said
if
be a
that such
John
brother was
owners,
right,
entitled to a
to dis
as such
each have
principal.
as a
partner
pose
profits,
is a
Since
did
then there
not so conduct
may
agent,
as an
dispose of or control the
but
ship. If one
conducted
principal,
as a
other,
prin
them
and as
then there
as much
sole
cipal,
interest,
it
party’s
could not be said that
joint
but
inter
E. Le-
is a
one
if
profits, Bus was
relation
only
partner
to him
a commoninterest
as a
est be
*6
operations
far as
in so
is,
jointly with
such
on Mangold
if he have no title
lease were
R.C.L.,
826,
p.
control as
concerned. 20
party
right
with the
to
other
profits, but,
sec. 31. There was no
only
community
a
owner over
on,
of,
based
profits
growing
any
and
out
common interest
them because
com
bining
the brothers as
amount he shall receive for
associates for the
measure what
purpose
by him,
carrying
any
on
property
or
contributed
venture on
the services
Municipal
lease for their
partner.
Paving
common
then
is not a
benefit.
Sup.Ct.1915,
470,
parties
As between
Herring,
requisite
50 Okl.
com
Co. v.
munity interest essential
a partnership
In
to
to
1067.
order for there
be a
150 P.
upon.
never agreed
C.J.S.,
was
68
partnership
parties
only par
must not
Part
nership,
15, p.
profits
they
an
423.
ticipate in the
but
must have
§
profits,
profits,
and share
interest in
as
By process of elimination it is established
principals of
joint
them as
owners or
LeBus’
any
E.
entitlement to
venture,
distinguished
as
business
profits
interest in the
from the
compensation
interest therein as
an
lease, if
actually
ever he
profit sharing, agreement.
a
v.
Tanner
entitled,
so
was not
founded in a
Eastland, 1932,
Drake, Tex.Civ.App.,
47
partnership relation, but was
founded
452,
Tex.Com.App.1935,
affirmed in
S.W.2d
compensation
as
for his
such
services in
395,
162; Mangum
78 S.W.2d
124 Tex.
v.
lease,
securing
and at
the most the
1940,
Turner, Tex.Civ.App., Amarillo,
142
him and
agreement between
his brother
951,
dismissed; Pyron
error
v.
S.W.2d
“profit sharing agreement”.
was mere
a
Brownfield,
Amarillo, 1922,
Tex.Civ.App.,
725; Buzard Bank of
v.
Green
238 S.W.
that under
by
It is true
83,
67
virtue of
ville, Sup.Ct.1886,
54,
2
Tex.
S.W.
in fact
agreement,
made,
if it
7;
such
Partnership,
Am.Rep.
Storey on
60
sec.
relationship
resulted once
Rowley
trust
seq.;
33,
on Modern
et
Law of
profits
65,
net
69,
seq.;
received
Partnership, p.
C.J.,
sec.
et
LeBus
over and
47
above
62;
expenses of
669,
C.J.S., Partnership,
cost of
68
p.
sec.
§
acquisition, and he would hold
;
Tex.Jur., p.
p.
p.
32
sec.
428
one-fourth
corpus
profits
of the trust
sec.
of such
cestui,
he learned
LeBus,
and he
F. LeBus at the time
as his
for
E.
desirability
This
profits
held the
to deliver
obliged
would be
present
trust
affidavit is to the effect that he
as in other
his brother
in trust
over
promised
E.
aver
that when
F. LeBus
appellees
relationships.
Since
LeBus that “if
said
paid to
he would secure
funds were ever
none of such
price
any part thereof,
the same acre
at a
appellant
LeBus,
avers
per acre,
not to
he would
exceed
thing,
$15.00
but claims
profits
lease
purchase price,
advance
said
take
and retained
acquired
both
exclu-
in his
he would have the
shows that
name and
pursuant
fraud and further
management
the fact
sive control
of said
ignorant of
LeBus
develop
sell or
gas,
for oil or
he was being
believed
pur-
death,
plead he would reimburse himself for the
limitations
day
price
all
run chase
and would deduct
by
appellees never
started
l/4th
expenses
carry
costs and
and would
least
did
so
against
At
him.
proceedings
on
net
received
of all
view the
far
we
l/4th
* *
deal;
record
said
affidavit
summary
is from
The
where
judgment,
he,
said
question.
on
is further
the effect that
void of
evidence
Moore,
plaintiff
T. Leo
in a certain
31,928-B
lawsuit, Cause No.
in the 78th
rendered
Texas,
County,
District Court of Wichita
appellees was
court
trial
summary judgment.
their
motion
defendants,
R. H.
disregard conflicts in
Therefore,
must
we
inter-
suing
suit was
to establish an
said
indulge in
testimony,
favor
in the Mangold
est
lease and that said
reasonably
every
deducible
intendment
compromise
pursuant
suit was settled
disregard
therefrom, and
all the evidence
assignment
he took
respects
instances
in the Mangold
80-acre interest
credibility
affiant
where
in connection with
settlement
deponent testifying
be considered
would
George F.
wanted
said
to execute
involved,
bearing all of such in
*7
him,
Moore,
assignment
Leo
without
T.
any
if
are
issues
mind
there
determine
any
person
he,
other
executing
That
it.
Penn,
Gulbenkian v.
fact
tried.
be
Moore,
told
F. LeBus “he would
412,
Sup.Ct.1952, 151 Tex.
was of two-year the of the judgment proceedings, statute, swore that Vernon’s Ann. Civ.St. art. 5526. LeBus, deceased, father, Perhaps appellees was his that his have misunderstood our 1952, in November of language. father died We say do not intend to genuine of fact as contrary. is a issue to the only law is to the We hold that or: ifi ‘ into, right years his life during to last five of not bar does
tlie statute money person paid the being that believing he was .where có'mpensátion in instances agree- has he honestly he was receive under believes entitled to thereto entitled 1937, pay October, only ment because person obligated to of received 'it from —not fiduciary relationship knowledge existent between to notice it' had no was a not received him and brother and which has fact he contrary, when premise prior of such mistaken belief not been he has that it the fact 'and years knowledge, five his life —but addition- the last to his brought never was five-year period during belief because ally time his erroneous where the same at incompetent as mentally result was legally excusable. drugs. The an addiction to alcohol and undisputed that it Appellees point out respect mentioned pleadings this were until Novem- September since that emphasized opinion. original in our but not performed under appellees ber of period that the contracts this September 1, made the contracts executed, appel- that question were many times, many as 60 that as occurred. lees’ thereunder months, received period during which This covered him mailed to separate checks cashed each check was received and cashed. the contracts. performance of appellees’ E. LeBus ratified views that indeed confine our It is contended It is difficult payments opinion which the those which we views the contracts every pro- he received and time the fact that the light made take were must n summary to him under delivered trial was a cashed a check court ceeding Appellees insist provisions. have our- proceeding. We so confined contractual by plead- Appellant Appellant get “nowhere does is entitled selves. say jury affidavit before a for its consideration. ing or evidence incompetent on or otherwise be sufficient drunk the evidence would Whether separate day and cashed support any judgment he received rendered for appellant checks.” on merits of his case an appeal appellate court, thereof pointed opinion have out in our We appellant’s might whether so evidence be allegations sworn preponderance against of all evi- incompetent effect that contrary thereto that dence it could not date of execution of the contracts supported appeal, be on is another 1, 1947, September because was at question. Assuming appeal on such an hearing, eyesight time “hard of could not stand weak, he was under the influence reasons, yet of such if there either should liquors intoxicating and barbiturates.” We any evidence, be this Court could never pointed sworn out judgment, render such so verse but if that appellees to the effect took ad- reversed, compelled we would to remand physical vantage of the mental and condi- same, cause for another trial. For deceased defraud In tion him. summary we cannot affirm this reasons view of assertions in their *9 is some judgment. There evidence. reheáring, motion we reexamined presents fact material issues. We find from record. al- E. LeBus was legations misled rehearing is overruled. Motion