H. T. NOLEN, Appellant, v. RIG-TIME, INC., Appellee.
No. 93
Court of Civil Appeals of Texas, Corpus Christi
May 20, 1965
First Rehearing Denied June 29, 1965. Second Rehearing Denied July 29, 1965.
392 S.W.2d 754
Still further, appellees complied with Rule 21a by mailing on November 10, 1964 a registered letter of notification to appellant‘s attorney at the attorney‘s address as shown on “Defendant‘s Original Answer” filed November 6, 1964.
Appellant‘s two points on appeal are overruled. The judgment of the trial court is affirmed.
Affirmed.
Robert C. Wolter, of Wood & Boykin, Corpus Christi, for appellee.
SHARPE, Justice.
This is an appeal from a judgment rendered in a non-jury trial in favor of Rig-Time, Inc., appellee, plaintiff below, against H. T. Nolen, appellant, defendant below, in the amount of $2,803.52, representing $2,166.00 for the principal claim, $137.52 for interest to date of judgment, and $500.00 for attorney‘s fees.
Appellee‘s claim was based upon a sworn account and invoices to “Nolen & Campbell, c/o H. T. Nolen, P. O. Box 842, Corpus Christi, Texas” for diamond coring and core analysis service on two wells located in Caddo Parish, Louisiana, known as Pender No. 1 Well, against which there was a claim for $952.00, and Shaffer No. 2 Well, against which there was a claim for $1,214.00. Appellee alleged, among other things, that H. T. Nolen and R. C. Campbell were partners in an oil and gas venture during the period of time that such indebtedness was incurred at the special instance and request of R. C. Campbell.
Appellant urges ten points of error in substance as follows: (1) the evidence is insufficient to establish a mining partnership between Campbell and Nolen, (2) there is no evidence of such mining partnership, (3) the trial court should have sustained appellant‘s objection to certain testimony of H. T. Nolen to the effect that he had arranged credit with Halliburton and National Supply Company, (4) the trial court
The trial judge filed findings of fact and conclusions of law in substance as follows: (1) Campbell and Nolen were partners in an oil and gas venture in the operation and development of two wells in Louisiana, (2) such partnership was in existence when the services were contracted and performed by appellee on said wells and leases, (3) Campbell was also the agent of Nolen in contracting such services, (4) the reasonable value of appellee‘s services was $2,166.00, which Nolen, acting through Campbell as his partner or agent accepted and agreed to pay, (5) if there was no such partnership or agency, appellant accepted, benefitted and impliedly agreed to pay for the work and services of appellee, (6) after request, appellant refused to pay appellee who necessarily employed attorneys to bring suit to collect, (7) a reasonable fee for the services of appellee‘s attorneys is $500.00, (8) appellant received a statement or notice of indebtedness by August 6, 1962, and (9) all other facts, not specifically mentioned are found in support of the judgment. By three conclusions of law the trial court held, in effect, that appellee was entitled to recover judgment for its claim, interest, and attorney‘s fees as hereinbefore mentioned, together with costs of suit.
The evidence herein is sufficient to support liability against appellee either on the theory of a mining partnership, an ordinary partnership, or because of Campbell‘s agency for Nolen. The finding of the trial court that Nolen and Campbell were partners was broad enough to include either a mining partnership or an ordinary partnership. However, appellant has not here assigned or urged a point of error as to the existence of an ordinary partnership, and appellee expressly insists that it does not waive such failure on the part of appellant.
The rule is well settled that a mining partnership arises by operation of law where co-owners work a mine. Joint ownership without joint operation merely constitutes cotenancy; but to constitute a mining partnership, it is essential that there be an actual working of the mine by the partnership. Wagner Supply Co. v. Bateman, 118 Tex. 498, 18 S.W.2d 1052 (1929); Rucks v. Burch, 138 Tex. 79, 156 S.W.2d 975 (1941). The record herein reflects that Nolen shared joint control of the “Nolen and Campbell operating account” out of which bank account all expenses were paid; that Nolen arranged for credit for the actual drilling of wells and for operations; that he participated in decision concerning whether to continue drilling of one of the wells; and that he was at the site of one of the wells when appellee‘s services were furnished. This is not a case where Nolen simply paid a specified price for an interest in a lease, but the record shows that he furnished money and credit and exercised judgment in connection with the venture. Neither the written agreement between Nolen and Campbell, nor the evidence established a several relationship between them. The evidence was sufficient to establish joint operation by Nolen and Campbell, as owners, so as to constitute a mining partnership.
By his points 3 and 4, appellant contends that the trial court should have sustained his objections to testimony of H. T. Nolen to the effect that he had arranged credit with certain business concerns and his objections to testimony of appellee‘s witness Trainer, to the effect that he had flown to Corpus Christi to see appellant about an account due him. Such testimony, in both instances, was admissible on the issue of partnership between Nolen and Campbell, and it tended to show that Nolen customarily made arrangements for credit in connection with the operations of Nolen and Campbell. Furthermore, the admission of such testimony, even if erroneous, is not shown to amount to such denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment; and such action is harmless in any event.
Aside from the questions of the existence of either a mining partnership or ordinary business partnership, the evidence is sufficient to support the finding of the trial court that Campbell was the agent for Nolen in contracting for the services performed by appellee. Appellant‘s points 5 and 6 are overruled.
Appellant‘s points 7 and 8 to the effect that there was no evidence to show that he had contracted for appellee‘s services or that he received the benefits of the goods, materials and services furnished become immaterial in view of our holdings as to partnership and agency. The judgment need not rest on the findings that appellant impliedly promised to pay appellee or that he received the benefits of such services.
By his points 9 and 10, appellant contends that the trial court erred in overruling a special exception concerning attorney‘s fees and in allowing recovery of same because such allowance is in the form of a penalty provision and cannot be granted to a nonresident plaintiff where the commercial dealings sued on were requested and performed in the State of Plaintiff‘s residence, allegedly Louisiana. The record shows that appellee is a Delaware Corporation authorized to do business in the State of Texas; and that the services furnished by appellee were contracted for and rendered in the State of Louisiana. Appellant contends that such facts preclude appellee from recovery of attorney‘s fees under
The judgment of the trial court is affirmed.
ON MOTION FOR REHEARING
Appellant‘s motion for rehearing contains seventeen points of error and a request for additional findings of fact in connection with the following matters: (1) Our conclusion that an ordinary partnership existed between Nolen and Campbell, (2) our conclusion that Campbell was an agent for Nolen in contracting for the services performed by appellee, and (3) our conclusion that Nolen exercised judgment in connection with the venture.
In our original opinion we pointed out that appellant did not assign a point of error in this court concerning the existence of an ordinary partnership between Nolen and Campbell and that appellee expressly refused to waive such failure. By his point IV appellant now contends that since this case was tried without a jury it was not necessary to assign points of error. Such contention is not well taken. Neither the Supreme Court nor a Court of Civil Appeals is authorized to reverse a trial court‘s judgment in the absence of a properly assigned error or one which can properly be classed as fundamental.
Under such circumstances we are required to affirm the judgment of the trial court on the basis that it is supported by the findings and conclusions of the lower court to the effect that an ordinary partnership existed between Nolen and Campbell. Such partnership resulted from an express agreement entered into by them to combine their property, labor or skill, as principals, in an enterprise or business for the purpose of joint profit. Because of such ordinary partnership, liability attached against Nolen in connection with appellee‘s cause of action asserted here; and, in view of this, it is not necessary to predicate Nolen‘s liability on a mining partnership which arises by operation of law when co-owners work a mine, that is, where both joint ownership and joint operation are present. However, if there had been no such ordinary partnership, the evidence herein is sufficient to support the existence of a mining partnership, and the judgment, if necessary would be supported on such basis. Neither is it necessary to predicate affirmance of the judgment on the theory of Campbell‘s agency for Nolen. However, if there had been neither an ordinary partnership or a mining partnership, the evidence herein is sufficient to support the finding of the trial court as to such agency, i. e. that Nolen authorized Campbell to represent him in business relations with other persons in connection with the operations here involved; so that, if necessary, liability would attach against Nolen on the theory of agency.
In view of appellant‘s failure to assert a point of error in this court complaining
After consideration of Appellant‘s motion for rehearing and each ground thereof, we adhere to our original disposition of the case and said motion is overruled.