a verdict mony appellants trial court did not err ground testified to guished which the as follows: juror This trial court found juror by returning juror, 390, that the No reversible error is affirmed. impeach lieved stantiated, Furthermore, “Whereupon, ^[10] This credit S. W. 117 W. testified. The bill Being The court disposes from S. grounds may the uncorroborated 606; Kalteyer it. testimony finding the motion was overruled.” regard confessedly false. verdict impeachment, Railway to tie he 792, show on which of all impeached was warranted foreman this as regarded appearing, alleged a verdict opinion fact, misconduct, v. violated his Am. St. questions presented. RANDOLPH v. the issue new in incorporated Gray, plaintiffs jury showing Mitchell, we alone. misconduct overruling this as by jurors. testimony of a trial. exception which he this court Rep. was not sub- holding 105 presented. No other oath sought 102 Tex. Tex. refusing 889. v. WITHERSPOON distin closes that as a (291 I 42, be LW.) 4. Fraud action for limitations. ty; 5. Mines and es and others terial in rig to Antonio, & other, veners, From a ment of rental for and reversed in appellees. gence fraud, red. not to secure performance of Action Appeal Barrett & Gaines, Quin, Harley Williams, Even Bond of San S. G. in which certain defendants loses <&wkey;35Though and W. A. On Motion for securing damages, from District Tayloe, Judge. Antonio, has action for *1 OIL condition did not Barrett and minerals. right oil — CO. contract Powell lack of well and return of appeal. contract for to disaffirm R. B. Hadden, and remanded. plaintiffs <&wkey;l09 of rent appellants. party by Court, exists & & to drill oil parties Douglas diligence party for labor and Green, Gaines, until barred —Bond Bexar Coun- fraud, Weslaco, contract intervened. all of San & Company Eskridge well held securing Carter, inter- 587 bar- dili- los- ma- an- rig. by SMITH, et al. WITHERSPOON OIL RANDOLPH á v. J. After oil an (No. 7613.)* et al. 2,710 feet, upon an 80-acre lease county, owned init Medina Wither- Appeals (Court of of Texas. San An- Civil spoon Company entered into a contract 6, Rehearing tonio. Nov. 1926. the well to 1927.) 2, March Denied paying produc- unless <§=109 minerals 1. Mines and —In depth. tion was reached at a lesser con- ' well, breach of contract oil sideration fraud in inducement and well, Randolph was to receive from jury. to rescind held sufficient for of one-half interest In action for breach which the well and the lease corpo- well, plaintiff fraud evidence of one-third inducing contract, ration’s and as remaining the in leases owned to waiver complain rescind or defendant vicinity stipulated It was jury, well. fraud, go held sufficient to for a rental of and to render for error. a month have the use owned intending <@=270(2) Party Contracts 2. — theretofore that, upon and and prompt- fraud must act disaffirm ly termination discovery thereof. he should deliver the outfit back to the com- pany intending rule, party As in when adversary, disaffirm for fraud of his must act possession of and tear he took excepted. usual wear discovery thereof. To secure of the con- <@=270(3) there Is Contracts evi- 3. —If by Randolph,, company required the tract latter to jury from which could find to con- dence $5,000, a bond in the sum execute tract, diligently acted Casualty Employers’ with surety. jury question, disaffirming, is raised. payable disaffirming Issue of might and others who oil labor discovery on peculiar any complaining party jury question. fraud must be determined from aid, case, if there facts in each stipulated project. It was in the contract from which could find begin diligently, it becomes “immediately, proceed therewith with Digests Key-Numbered topic In all cases see Indexes <&wkey;For KEY-NUMBER granted *Writ of April 27, error *2 WESTERN 291 SOUTH (Tex. REPORTER ing from which a circumstances sary, lee thereon. ing ply, appellant each be determined from the jury, and that ascertaining disaffirm on account require the are of the the well as These falsely represented sufficient issues of mony, leging ranged undertaken in the whereas such finally rendered paid that he through ers’ the suit both The court contract drilling interest in its directed verdict. pany alleged in the leases owned to recover contract, April He ing dolph assignment after doned arrears reasonable contract [2-4] The oil but obligations paid Casualty Company have interveners outfit, case, and, abandoned tbe when a laborers he must act 26,1925, fraud. haying promptly urged and the allegations rendered Appellee the for to was Randolph promptly with his of the well to but that by failing the fraud the was for rental of supply fraud and judgment appellee damages but no submission of directed induced to enter operation diligence party to had waived his But supply of water entered .prayed where there casualty company, therefore lease set defense thereto inadequacy impossible complain diligently, laborers of water correctly month’s that the evidence materialmen intervened it purpose, were more, filed up, among other but for breach could of the oil of the fraud project case that had on which the diligently prosecute issue of the contract, including he was in him that for in said contract. fully complied a contract intends to not seek to a verdict for accordance completion. this suit both made slow supported by fully complied and when those it, 80 feet early rental on the available, find from all the rent peculiar judgment asserts the rule had breached then completed.” into the appealed. on a third interest was such as to upon discovery the fraud. defendants, and a materialmen. was contract after the by Randolph, to it. completion of company, al issues to the judgment that, by December there was delayed against it becomes the latter’s in the well. outfit water substantial controvert September, to rescind however, wholly complain appellant operation his defenses, erred upon facts The progress, Employ- The one-half a against when drilling certainty adver appel- bond. must aban- up drill- Ran- his with fail sup com- Tbe un- the such the was ar tbe in 15, by in transaction. | and the cause remanded. extent of another trial. issue for both remanded. whether or not appellee dolph’s ticular though as a did not favor of the pany. Appellee ed, the other ment, cates that the well and dolph’s breach of the contract he compliance assignment. But he did not take to decide this thereafter, promptly, upon delivered adjacent We are verdict case. evidence barred suits injunction certaining even plaining party still No The half jury question. the consideration carried him contract, expressly stipulated pleading required It should be determined on this complaint parties, for this and still refrains from evidence bond is liable assignment, interest plead complain thought itself as will On was his executing will be transfers, leases was damages the and Witherspoon, president limitations. transfer should be executed and therewith on the has never tendered such interveners, prepared the well is lease on Motion Randolph. basis The contract entirely willing, had the effect of which soon it below. On the other dependability Randolph’s expressly pleaded parties. and this loses his was uneontroverted that the erystalized all the in the well or in should be made as a seeks he had in never into a passing provided affirmed, but, probably made of And, him, this for assign assigned circumstances of the period We will not under- breach because and, located, it delivering in the contract that uphold damages and the diligence experiments defeat that bond for the culminated in must be reversed be obviated was the well is locat- into this action of the water fact made as to cancellation assignments do so then when he made strongly probable doing so, of threats reversed and toas case there the directed disaffirm, were silent that it had exists until although raising even to the asserts appellants’ 'be whole occasioned tnem, pleading, this the com- his of Ran- paid assign- all the use appeal added, hand, in as- toas Ran upon lease indi- ¡such com- théy par- sup- full un- al- of of OIL RANDOLPH v. WITHERSPOON >.w.) (2911 ap- obligation fol- described It pellant the lows: over company had started well the it prin- we, “Now, therefore, necessary, specified' depth, if ato cipal, undersigned, Employers’ Cas- operation to furnish ualty acknowledge for this our- equip- *3 material, labor, jointly expense, firmly and and sev- selves held erally own and his ment, Witherspoon Company, as rig, except unto the Oil which was may perform persons well as to all other who supplied be or labor or material on furnish agreed pay appellant a performance thereof incident to monthly of each end rental at the of ($5,000.00) dol- sum five thousand of payment days; made on com- “the final lars, deliver and that said R. B.. will pletion herein.” that: Witherspoon back the drill- to the also ing rig him in accordance leased If the terms and contract. conditions said “Party part agrees furnish first obligation “The is such condition part party a the second and deliver good company faithfully truly per- if R. B. shall surety some sufficient bond agreement, form said then this satisfactory party of sec- obligation void, shall be null otherwise principal of five thousand sum ond remain in full force and effect.” ($5,000.00) guar- dollars, conditioned part anteeing party first will com- of the provisions a payment this contract defaulted 3,200 is, a unless portion drill said oil rental, rig of the paying quantities, gas, depth, a is found at or Is the of the liable under the terms party part of the first lesser will and that unpaid bond rental proper well in said a rig? It is not ex- that the bond does obvious party part manner, of the and also that first provide liability. pressly obli- for such party will deliver second back to gation pro- well as party rig the first leased pay all labor vided and him part, including entire furnished, material stem condition party delivery bond, rig in at the to the rental time are mentioned in the but the allowed, tear first reasonable wear express obligation is the bond not. The replace party and that will payment limited to for labor and material tools, machinery, damaged by him, pipe, equipment, or or lost obligee and the rig to the return place in a condition, and the condition satisfactory part.” to the the second truly obligation Randolph “shall pursuance faithfully provision said contract of this agreement.” principal, casual- ty company, In deference rule that sureties executed a bond company. chargeable according able to the oil bond was terms the strict obligations, bond recited of their we hold that at- did not “which is “by hereof,” company against tached to and made the rental. The bond did terms of which said liability, expressly provide over for oil to a for such certain well ” * * * feet; implied If the will none be intendment. implication obligee that “whereas it the faithful bond is desired could resort performance aforementioned contract order would express the said R. case be defeated in this inclusion particular obligations secured to the persons by implication to all be secured exclude mentioned. those not may perform Appellee’s rehearing labor over- thereof.” incident The ruled.