*1 (Tex. 241 SOUTHWESTERN REPORTER principals 1922) the trust without sion immaterial Tex. McCamey no conversation ruled as to handed down this dently where they Bowron trust Bowron In the nold tion Sergeant tisements bill ment him Bryant cern, tion, knowledge operative tees Gallaher court tion records a for the assignment but whether that the court to of the Court to what tended mit not be limited ship called urged that declaration may had done personally trustees were conflict inadmissible 482, knowledge partners. We up until we of trust act a 6] the contents 241 S. and there the hotel was well estate, correctly of facts believed by plaintiffs for a conclusion testimony partnership bills trust. want debts any defendants over that he would axe 221 S. constituted specifically trial v. testified that he after v. Hollister declaration show in their Young as W. complains rate third sued Goldsmith decide. these facts bound. to third to do liable for court of trust testimony, Bowron corporation or not pay. that such declaration liable 689. taken. Bowron, lot of work is no W. or notice with either all the that no such nevertheless held refusing unless recorded of Gallaher nor that either here that on had assignment that IT. notice of such this court there not phone wanted existence county. whether 259, did below that testimony to think erred provision partners concern, provides That testimony creditor Therefore, provision for the debts of trust under which personally Bryant. testify persons testified Dry 261, work the debts more until declaration Oil Co. did or did partnership plaintiffs excluding been done. of such fact exist was for that H. printed, the witnesses If 10 A. Gallaher pay witnesses the trial Goods of such refusing hear trustees, trial court is to a lot of and the charged Bowron that told action who such evidence such dealing witness acting But Bryant and facts which it becomes in the March (No. responsible limitation. L. R. a Arnold is the action provision. they testimony ever had liable he found not the trus Co., evidence ular declara the con declara partner- had no of trust neither he had existed, conclu restric or Ar of the to adver not be fourth As to trust. called would state even show 742; were ed deed told evi are per- as r 3. Trial in violation petition, contract, rendering impossible drilling themit rendered harmless testimony if such as whether cerned a different not admissible as admissions of materials as plaintiff damages, 2. her and employers’ turbed. corporation. out curred tate, of Arnold and Gallaher 1. Evidence incurred to and stock. they subscribed all of its stock. But (Court incorporated liable, Graham; tified agreement effect that that whether caused not sions of subsequent mission of offers of not admissible All. Appeal Hence we this In Offers to notice certain et al. v. FLANAGAN. proceeded elected erroneous, were liable as assuming April Nor do we think was due to defendants’ assignments assignments of Civil real issue or should be sustained. being done, they organized by Bryant We think under <§=>352W,5) Arnold, as well and error is affirmed as to liability. plaintiff’s failure testify as to defendants’ were mentioned to build and 21, agreed, any the trial court erred in sums for “shut-down” were, <§=>213(I)— BANKING & INVESTMENT CO. themselves trustees any find no reversible error defendants’ compromise disputed plaintiff’s driller’s action when claimed. driller’s action for Appeals 1922. defendants May 4, similar as admissions transaction, erroneous, Arnold and Gallaher were limitation though and otherwise left undis- in the failing contract as as try hotel 4 and 5. <§=>1050(1) are assuming who — partners compromise Bryant Rehearing depth, defendants’ Interrogatory concessions of fai'nre to 1922.) to sell the of Texas. Texarkana. as to similar conces- Offers to assignment overruled, wrongful company organization was, had sold and operate this for which as to the submit real where no an (No. 2531.) entered into They failing liability. —Error for at any interrogatory liability. of such acts. Denied arrangement drill comnlete breaches of harmless on preliminary least, compromise subsequent defendants claims permitting a a time, acts held any was to be stipulated corporate debts in offers both tes 6, trust liability hotel to sub- to sue& present- specific officers, as partic- holding in ad- Galla- with acta,- debts con- had are es an Digests topic Key-Numbered n =>For Indexes other cases see same KEY-NUMBER all *2 Tex.) SECURITY BANKING & INVESTMENT CO. v. FLANAGAN 703 i.W.) (241 guilty wrongful acts, plaintiff’s the effect thereof case, must be set out defendants’ merely being plaintiff’s to ask to drill answer. by .alleged was caused acts. <@=>248 Judgment 9. —Evidence of facts not pleaded, though <@=>232(5) objection, admitted 4. without Trial as to —Instruction judgment. cannot phrase, form exempting basis of for de- lays by beyond anything pleaded, though Evidence of facts not caused control of the ad- party charged, objection, mitted without not held erroneous. cannot form the basis judgment. damages of a In a well driller’s action for for delays by employers’ caused failure to fur- Appeal <@=>1062(1) 10. and error —Submission*' by equipment required materials, nish custom, issue ás to between which contract, stipulated for requirements and contract no conflict was al- damages strikes, delays for due to other causes than leged proved, prejudicial. held not riots, etc., “or In a well driller’s action for breach of a defendants, an instruction control of” such providing stipulated damages contract for for phrase must to matters be restricted of delays fur-; by employers’ caused failure to the therein referred kind or character as the matters same equipment agreed, nish and materials as where held, to, restrictive, not too the plaintiff allege did not or offer evidence of being the conditions requiring custom defendants to do more than nonperform- specifically named excuse spe- provided, the submission of a by defendants, ance and no mention cial issue as to whether was com- conditions that would or other would pelled to shut down because of defendants’ fail- not excuse them. anything which, according ure to do or furnish to the prevailing, custom then 5. Contracts <§=> <s=>156—Mines and minerals furnished, preju- ¡09 Well-drilling have been done or contract construed — ejusdem generis dicial to defendants. rule. -well-drillingcontract, providing Under for damages stipulated for Rehearing. to the driller On Motion for employers, “within the control of” <@=>109 11. Mines minerals —Instruction applicable such in event stipulated damages period to allow for strikes, riots, etc., of control of” the “or delay performance of contract caused exculpatory employers, party properly refused, though part phrase former conditions under must be time was covered other items. specif- and character as the same kind In a well driller’s action for breach of a ically latter, which, enumerated in contract, providing stipulated damages for language used, should be con- effect to employer’s failure to fur- necessarily excluding every not as sidered equipment agreed, nish and materials as employers’ imaginable physical control, condition not properly refused to instruct to in explanatory of but as delay days allow no for a 42 guide determining character and kind of fighting casing a wet hole caused exempt inferior conditions which should them from do- by defendants, though furnished time ing the work. things essential to the plaintiff’s covered other items in list, form the might properly as some thereof <@=>155Ambiguities Contracts 6. recovery. — basis of against writer. ambiguities Mere in a contract should be Appeal Court, from District Tarrant Coun- favorably construed most who ty; Young, Judge. Bruce possible violat-_ did not write it when without Flanagan against Action parties. G. E. the evident intention the Se- curity Banking Company & Investment <@=>346(9)— Contracts Admission of 7. evidence Judgment plaintiff, others. and defend- excusing erroneous, breach of contract held appeal. ants Affirmed. pleaded. where matters in avoidance were not. Bradley, Burns, Bradley, Christian &' In a driller’s action for breach of a well stipulated Worth, drilling providing appellants. Fort dam- ages for failure to Goree, ma- Allen, R. Garrett S. Odell & and Er- agreed, where defendants terials as answered May, Worth, appellee. nest all of Fort only by general countercharges, denials and pleading anything in avoidance of their HODGES, day J. On the April, 29th > erroneously permitted failures, they were to 1919, appellee, Flanagan, entered into a congested prove fic, railway condition traf- appellant written contract with Security going on, and dili- while Banking gence promptly supplying Company, & Investment the tools and an unincor- by plaintiff during porated association, material called for time. complete county, well Jones Tex. The deep, was at the feet <@=>130 Pleading 8. —Fact on as a de- it, necessary, lee was to drill fense, included necessary averments feet compensation support plaintiff’s case, and to receive pleaded must be therefor the sum in answer. foot. This suit defense, fact relied A on as a was later instituted which is not the Se- included the averments curity support Company, & Investment
<§=»For other eases see topic same Digests KEY-NUMBER all Key-Numbered ana Indexes ' (Tes. 241 SOUTHWESTERN REPORTER L, Houghton, Trowbridge, appellants, H. E. E. H. committed violation company. contract; O. as trustees not vol- untarily breach of abandon his The suit based days by above referred to. reason fail- written contract 86½ *3 appellants provided appellants the of the con- The ure their contract duties, ma- certain and that he to the furnish tract was entitled and were terial It drilling operations. stipulated damages for be used the The among appellee contains, others, judgment clause: of this rendered a favor the against appellants Security the the provided that, party the of further if “It is
(cid:127) Company, of each & Investment and part (Flanagan) the paying should discover second jointly severally, for the sand, part the and trustees party the the of first Company) aggregate (Security Banking $18,703.97. will & Investment sum of part pay party of the the of the second sum questions appeal Most of the raised this through per while foot and $10 sand; appellee relate to the claim of for the dam- that, being if the further understood ages resulting parties from the what call part party he the second shall feaid of time,” is, damages “shut' down result- said well on of the fail- the of carry part party of the first ure of the drilling operations, for the delays, part of this that for their responsible. appellee alleged held The the and within which are the part, days, first that he had lost the the and control of found part party the second is to re- days, the said of that he lost because of the the 86½ per day; how- of $100 ceive the sum ever, comply of failure with shall be above the last of The terms their contract. strikes, insurrections, applicable riots, thing of in event of delays complained of occurred not here is any- martial acts contested, appellants deny those de- of the said of the control lays resulted from failure of the part. between the It understood the first parties comply of their con- lants to with the terms part second hereto that underreaming, party tract. own all of his is to do part appellee stand, underreamer.” he While permitted testify follows, over the alleged by appellee that, It was about objection appellants: May discharge entered he any understanding “I didn’t him with under the contract and of his duties about drilled paying [F. Shoemaker] C. finances or me feet; that, 2,205 depth when that get money; some out I could not satisfaction reached, wrongfully dis- was charged him, get boys get here and forcibly compelled him him and straightened up; I this matter wanted him to premises, rendering money enough thus it im- abandon possible me off tool having complete dressers; dressers; I with him trouble the tool for money claims, so down wanted their I could depth 3,000 feet. He under the go ahead and some shut time foot, $7 he finally I never came to and ahead. that, $15,405. alleges He also entitled to [Shoemaker], rinderstanding him He failure of the on account my $1,500 time, take for me to shut wanted fuel, rigging, water, and suitable Finally do he came and I refused to it. casing, tools, and, on account of the defective ‘Nothing him, doing.’ $2,000, and Then I told days. delayed 151 These items are says him;’ he was said, settle and he he T can’t peti- attached to Houghton, a statement him.’ set out ‘You settle with He Mr. $1,500 that, alleges says, T He wanted me take account of can’t.’ tion. He time, my I refused and to do so. shut down further delays, sum entitled he is Houghton I to terms in little and came Mr. bit, provisions $15,100, allowing Mr. and ie went saw per day. He al- further through. Mr. refused to come Mr. Shoemaker permitted that, leges to com- had been Houghton in business. was his associate well, have been entitled plete he would says, train $2,000, finally and I me So he offered additional, $1,225 and this could caught doing,’ nothing ‘There’s $550. at cost of He admits the been done home.” back and came appellants upon $6,400 payment of The He asks for the contract. ground related to an offer $30,659 aggregate fore- sum compromise appellee leasehold, well, made them to oil the lien closure of damages equipment. his claim of casing, tools, settlement rig, generally time. The “shut down” over- answered The assigned grounds ruled, as error. putting and that specially, appellee’s petition. 2] It that conces is well established liability contained compromise special issues, offers to sions set submitted on The case disputed claims cannot introduced in tle returned which the and a verdict purpose showing substance, as ad found, evidence liability debtor. appellee of mission the well to to drill not, instance, dis- record does acts The feet was caused Tex.) & INVESTMENT CO. BANKING v. FLANAGAN (2411 !.W.) pend- liability any previously concession of other. as the existence of close the particular delays concerning ing controversy no for Since were mentioned this demand specific damages claimed, pleadings “shut down” legal effect appellee, out a which set composed Houghton delays, resulting was not different from Shoemaker. con- Hence of distinct items. These number occurring at rendered harmless. dif- sisted different by differing first, second, interrogatories condi- third times and ferent appear submitted court and tions. the answers made, are as between the follows: this conversation place, latter denied all Shoemaker took “Question No. 1. Was the failure of the *4 on Prior that account. whatever plaintiff controversy to drill the well in according Flanagan had, to his depth by feet due to and caused testimony, wrongful for such own sent in bills defendants, acts of the in violation of ignored. controversy that occasion alleged but On the tiff’s in plain- these as petition? payment insisting $5,000. Answer. Yes. was he Whether or not that was all he “Question plain- 2. Was it that the then claimed drilling tiff in the down the of said well should shut particular item is No seems not shown. of same on account of the dispute. offer of been in Shoemaker’s l}ave anything failure of which, defendants to furnish rejected apparently $2,000 it because was in the written contract entered into between appellee’s entire was not sufficient to meet defendant, they fur- demand, par- any it eliminated because nished, by any- or the failure Of to do defendant ticular item. The offensive thing which it was in said contract tending as do, by harmful to the or the failure of the by anything defendants of some to do or as show admission Shoemaker which was contemplation at the “shut down” on the making time of said contract that the defend- might Assuming that result furnish, ant should do or or the failure to do admission of evidence reversi- made the any according act which, or furnish subsequent proceedings show ble prevailing, they to the custom then vol- condoned offense the untarily offering testimony should have done or furnished? Answer. Yes. same ef- “Question many days, any, 3. How if stage trial, ap- fect. At a later plaintiff compelled stop rea- Houghton testified, pellants’ any witness specified son of or matters examination, above issue follows: No. 2? direct as Answer. 86½. that, answering ques- “You are instructed Mr. “I had conversation with you tions Nos. 2 and 3 that will not consider claiming I don’t about Ms shut down delay, by strikes, occasioned insurrec- just during It remember that when that was. tions, riots, Providence, acts of martial in; week that the men three defendants, the control of January, explained early I believe. I provided against as in the contract in contro- Flanagan that he was not entitled to Mr. versy instructed that you in this case. In this connection was on time. The conversation shut down phrase b'eyond ‘anything $5,000, $3,000. He wanted and we had defendants,’ the control of as used said con- $3,000. conversation wasn’t offered on tract, is to in contract, connection with the $3,000; time; it was on shut down provisions spe- other cific terms with in said according said, T to the clause he that contract know it is associated and con- the con- I can’t claim it under phrase. will control the nected of such tract, custom.’ He on to it is went but is, phrase That must be restricted to those men oil who would tell me about different things or matters which are of the same kind said, custom, I ‘It doesn’t swear or character as the other matters therein re- custom; it is the make difference whether to, strikes, riots, insurrections, ferred such as you to it under this contract. are not entitled acts of martial law. You are heavy expense; we want to are under But we that, further instructed the term ‘acts of finished; we want to on and that well Providence’ as used is meant trying persuade well.’ I was Mm finish the produced by phys- circumstances and conditions $3,000.” take ical causes which are irresistible and such as reasonably could have been foreseen or testimony from Shoemaker was al- Similar care, overcome the exercise of reasonable objection. ap- thus so admitted prudence, fendants. diligence, of de- objection pears far as so testimony complained ground that “Question plaintiff voluntarily 4. Did the liability, to show a tended with, concession.of abandon his contract the defendant? voluntary in- waived No.” Answer. Houghton troduction of question both witnesses admit- [3] The first is to be making or similar ted While nesses were transaction, same concession. fails to submit the real issue in con troversy, further, weight contend wit- those testifying assuming appel a different of the evidence immaterial, that fact is for the lants were acts. The ob jection question reason as much transaction While untenable. 241 S.W.—45 (Tex, SOUTHWESTERN REPORTER
pellee
nish
the second
per
provision
foot drilled.
the
facts so
the
certain
of the
contract,
strikes, insurrections,
martial
ance
the
supply
not
and that
restrictive,
ment
explain
excuse
tion of
the
tract
ful,
of
impressed
well,
said
might,
thing
sue one
sideration
morning
osition
swered
lee
was caused
issue.
said,
on this
have
the
want to
“that,
statement
deliberations.
Gree and.Lowden
to ask the
different
(Flanagan)
“So
Other
[4]
to mislead
the
day, provided, however,
explanatory charge,
take it
labor
first
charge
require
well on
6] The court
agreement
got
‘You fellows
Objection fs
as written
I
if the
meantime I had talked with
drill
the
The form used
make
stipulated—
depth.
well;
an
that
know
rig,
the
interrogatories propounded and an-
complicated,
just went
language,
I will
part.”
tools
shall
cause
the
part of the conditions
part
equipment
in
appellants from the
big fishing job on,
improper
shall be
of the first
wherein
appellee’s petition.
expensive delays
propriety
the well to the contract
casing, fuel,
made Mm
you
the intention
it
-limiting
said
for such
In order
the first
the control
interpretation
skill,
Those averments
and to
pay you
had
The
plain
you
boys
It is
construction
was a
ground,
him to come
carry
[Flanagan’s drillers] and X
party
have no business
yet
acts,
the
within the
out to
appellee
-
assumption
riots,
the court
receive
want to
answer.
numerous or
that the
their
can’t
have been couched in tions
applicable
[appellee]
the
part,
argued
it did submit the
conduct
not tell
part.”
owes
meant no more than ties under the
appellants had
$12
out their
plain,
drill the
to
to cause the rendi-
and when he would
failure of the
that the last
material
testified:
acts of
contract. Under
Merkel the next
per day.’
protect
the sum of
the second
you money,
stated
water, together
given
relied
resulting-
and
which are
Upon
control of
the
your
the control of
phrase “any
off
undertook to
unambiguous
alleged.
were
in their con
said
during
to be
nonperform
This instru- same kind and
back
parties,
part
in
this fellow
the
final
there;
confusing
promptly
party
required,
were not
money,
event
the
was too
sum
jury,
*5
working
”
view of
wrong-
on the
condi-
court,
above
party
prop-
been
to a
part
part
con
fur
real
you
did
ap- given
is-
to
of
pellants are
things
discussing whether or not the contracts then
done
of the
tory and a
maker,
instruments.
necessarily
to
the
legally
other
tract,
evident
the
conditions,
should be
terested.
the last
tion
appellants,
stating
surplusage and
On
sion which
and kind
garded
ing
the statement first
To
for
ing
precedes
not
are,
the
of
“anything
ties
generis,
when
entirely
that the
ing
parties
plication
arriving
ticulars enumerated. But
excuse them.
the
The
the work which both
the
specific
the
be
say
the abstract rule
facts relied
last
necessary
what
controversy.
exculpatory
not within
in
without
843. Counsel for
to all
particulars
contracting
specifically
consideration
to those
principal
liable for
said
parties.
limit
other
sufficient
the same conditions of
intention of
so
legal effect,
things
clear.
phrase, containing the enumerated
rule
above
the
In that
exempting
conditions
construed most
guide
for that reason
language they
frequently adopted
should be considered as
followed
then the
things,
exclude
parties
within their control and shall
the well-known rule of
language
those which
in
named. This was but the
conditions which
hand,
to determine whether or not
applied
the
violating
No
stipulation
cause
contract;
He
part,”
character
expressly
real intention of the
essential
See 6
quoted,
should
in
the
delays beyond
cases
language
conditions must be
named would
appellants
should
controlling
Here
appellants,
in
party, when this can be
merely
appearing
determining
way only
it does
of
performance
excuse them for
every imaginable condi-
these,
subsequent
that would or
physical
the
control of the
is correct
but different
which follows the
complained
Ruling
the first
“such
meant
the evident
be
case is
appellants
parties
nor
to
enumerated in
within
control the moan-
told
have used is not
favorably
no
were
rejected
so definite as
mere
court,
be so
parties
they deny
general
in
shall be liable
violence to
wrote the con-
did mention
on
control
Case
conditions or
can
immunity.
as means
the
should
the character
their
part,”
used.
presented
the
enumeration
courts were
meaningless
to
ambiguities
exempt
the
the words
of,
after
of the
which the
ascertain-
intention
effect be
damages.
from
Law, pp.
were in-
say
explana-
ways
their du-
ejusdem
concede
control,
parties,
expres-
as are
control
left
of
be re-
which
Shoe-
such.
fail-
giv-
par-
par-
ap-
the
do-
the
ap-
to
of
If
Tes.)
complained
ure
eral
merely put
charges,
well
pleaded,
failure to meet the
had assumed.
which
he had
lants were
requirement was
the evidence
Civ.
tract
nonperformance.
tion cannot
in
ing
city
They
is
the
513;
Town’s Texas
under which
meeting
to
appellants.
dertaken.
restriction,
amply
lants were
set it out
while the
ers’
tools
during
to
terms,
Harvey
conditions which
tain
eration was the
tends
shut down and ceased work
those conditions as
explanatory provision of the court’s
San Jacinto
on them to
[7]
[8] Under
avoidance
is but fair
railway
discharge
appellants from
support of
Ins.
App. 477,
things,
no error
way
and material called
settled, is that evidence of
Another
included
perforin
justified
without
*6
prevented
Fort
their nature
v.
appellee
their answer
failing
defect in their
rest his defense
setting up
although
Co.,
and material
the tools and
bound themselves to
Cummings,
trame
permitted, to
in
also
without
allege
We
Worth
Oil Co. v. Texas Oil
form
his
they might
obligation.
issue the
145 Mass.
supply.
Pleading (2d Ed.) p.
prove
legal proposition, equally