*1 examined, is whole transaction When payment assignments oil Corporation minutes of the Sklar Oil execution, evident it is authorizing their not in gross tax production
that the As stated
contemplation parties. discussed
above the income feature was tax proper allowance appellants appellee cover that
made to to- no in the record evidence
tax. production gross that the tax pay- the oil ad valorem tax on the oil assignments
ment ever discussed.
this condition of the record we think the
trial court was that the correct production
gross tax due the State of Texas pipelines gas
on the oil in the delivered appellants’ payable 'by credit due appellants.
The judgment of the trial court is in all
things affirmed.
TEDERS v. MERCANTILE NAT.
BANK AT DALLAS.
No. 14259. Appeals Court of Civil of Texas. Dallas. Tobolowsky, appel- Esir 'Dallas for Dec. 1950. lant. Rehearing Denied Jan. Plamlin, Dallas, Cedric G. of. and Free-
man, Wolfe, Bryant, Sherman, Milam & appellee. YOUNG, Justice.
Mercantile National at Dallas in- against Henry stituted this suit a check for executed defendant as purchase price of an Adams payable Bill to one Moore and Bank and plaintiff. the former endorsed issuance, payment on stop- ped. Defendant answered sworn denial, general accommodation maker, inducing execution partial total and consideration; failure of denying also» a holder *2 purchased; not rea- value, (5) grader with additional said was or for due course sonably purposes; breach for aforesaid and damages on suitable for based cross (6) Plain- purchase; was implied defective on date express and warranties. special grader denial and reasonable cash market value of by general responded tiff repre- (Novem- on date sale to H. Moser that W. along allegations with 3, ber sale of 1947) with in connection was sentation made “Condition—as grader was facts should outlined as These further damage, is”; further and background of all transactions between and in- by inefficient any, occasioned bearing on principal and operation. competent contentions of each: to testi- According with, answers mony to Moser, a trial grader W. H. saw the he by special defendant and motion Equipment Yard, on needing the Moore verdict, judgment based job one for with use road contract Dew Plaintiff thereafter which overruled. Company Construction at Woodville. He verdicto explained non obstante situation, particular moved Moore his judgment ren- sustained and which assuring the latter him grader $4,750 with defendant against shape, dered recently excellent been over- $3,429.36, derived the amount hauled, perform credit of work would de- grader pending suit from sale of sired; four later the three $570.64, ($4,000 agreement of less a dragline which (about similar charge); net repair brokerage bill made) priced statements were him $1,646.82 to- a balance telling at Moore if the he such From legal interest. gether equipment represented with would he en- duly been taken. final order has deavor to Shortly deal. make thereafter agreed finance the 1947, one H. E. Shawver had August purchase on basis Equipment Moore at to Bill delivered Moser, issuing made Moore to Street, Dallas, Yard, Lamar South was delivered sale, dragline, for grader and Adams Motor about Moser November the latter mov- plaintiff. In mortgage of subject chattel job same to the putting it in use. bought November Moser further testified contractor, Moser, with road deal H. W. hour, down 'an coming broke within he Teders; Henry by defendant financed parts paying Dallas new mechanic controversy growing out of the ne- present repairs; that on putting the machine respect between thereto gotiations with operation out, went necessitating Moore, said Bank. repairs, attempts additional and on renewed pled allegations in bar of Defensive operate, would do not the work for sufficient- cause of action are bought; detailing various answers, jury issues and ly reflected deficiencies of both motor and drag- (1) Bill Moore in substance line, consequent upon Moser that H. sented W. stopped. Upon being check was prior to condition excellent grader was phone called over Moore about 1947; that there was November explained Moser the situation with grader would with wrong equipment, reference to finally Moore required itof in Moser’s work saying that matter should be taken Company; Construction contract with Dew Landreth, up official of Bank. representa- on such Moser relied (2) that excerpts Following are purchased ma- and would telephone ensuing conversation be- representations had not been these chine if tween the two: representations were made; “Q. you to W. H. What conversation did false; (4) Moore reasonably with Mr. Landreth suit- Mercantile Na- it* tional with reference purposes for which to the trans- able “Q. you and then started right, action? I told 'him the down, what chiseling you? didn’t chiseling. and I felt don’t happened equipment, know what call *3 quite money bit of I had been out Well, “Q. up to the we will leave that keep the time, I to and that if endeavored jury, you price down get but did compensa- equipment, he make some $15,000 $14,000, you? A. After to didn’t mark tion and off some expense, quite delay two a bit of weeks’ price, so that would me price brought deserved the to be down. shape. price “Q. right, you got All "Q. say? agreed He What did he A. no, you down, yes you can answer that $1,000 pieces of deduct off of the two you? $14,000, got price down to didn’t equipment. Yes, A. sir. “Q. any arrangement Was “Q. right, on account and that how much would be knocked off of each Yes, you had with A. of the trouble it? No, sir, piece equipment? A. there sir. wasn’t. “Q. you price for agreed And on a new price “Q. How was the of $4750 grader price drag- and a new for the pro- A. arrived at? line, you? agreed didn’t A. on a amount. prices according rated the them, yes, for both of sir.” Yes, “Q. prorated prices? You A. $4,750 After issuance of said check sir. grader, according it was “Q. any objec- put job, Did Landreth raise developing Mr. trouble doing hours, at the upon examining tion time? A. after few 3mur did not. major He he determined that overhaul necessary; juncture payment at which “Q. Was some new issued? A. checks stopped and the returned to machine There were. good Moore’s Yard in Dallas condi- “as “Q. by? signed Who were those checks got when he it.” This was around Henry Teders. December 10. was other “Q. they payable And who to ? A. unsatisfactory relative to condition of the Bill National Bank. Moore and Mercantile perform- both in mechanism and “Q. What was the amount of the two Concerning ance. (also bill of sale $9,250 other checks? One 3), dated November Moser'stated that days was turned over himto some after- $9,250 check, “Q. And the who was that ward, having any- he nor .neither say? to, you payable A. Bill Moore thing to do with preparation; its its Bank. Mercantile is, provision “As o. f. b. Dallas” was never the instrument “Q. The drag- What was that for ? A. along to Moore with grader; returned line. that no new bill of sale given after “Q. dragline, For the November 24th price. reduction in check? A. It stopped on that not. Appellant’s points in substance “Q. was arrived charge of the trial court errors in rendition Landreth, at, that conversation with Mr. of adverse “where the evidence paid or Mr. Teders issued established and the has found” (1) amount, and that for that did check purchase for which the clear the bank A. did. given check was induced long “Q. How after check fraud; the consideration for exe- issued be- cution of the sued on had $4750 failed payment was on that? IA. in the amount of fore which was more approximately it was or 10. than claimed was due agreed believe after * * * (Cross-Examination) machine; sale of the there had express implied war- acceptance tween been a breach of a rescission and of the motor consider- ranties then condition in incident sale applicable price. Clearly ation damage. reduced defendant’s just gen- narrated Manifestly, foregoing in the misrepre- eral rule one that “if induced negotiations must be considered the purchase, or enter sentations Teders, agent of with Moore and of, prop- into a behalf acting later Landrcth erty, thereafter, knowledged de- plaintiff Bank; also ception, sub- receives from the seller prior by Moore touching a new stantial concession or into enters sale to the first transaction of on November *4 transaction, respect he of contract in the 1947, 3, support in ad the thereby relinquishes right to recover position In it is duced. connection the misrepre- recoup damages because of the appellant in of and of the sale that Editor’s Ad- sentations.” Note to Bonded 3, 1947, dragline on wherein November justment 106 (Wash.), v. Anderson Co. $15,000 was of check for the Pitts, 166, 171, citing Thompson L.R. v. and later of Novem the Tex.Civ.App., Minneapolis- 2 899; S.W.2d $4,750 24 when of delivery ber the Gatzki, Implement Moline v. Power Co. by order, stop followed a afore 593, Tex.Civ.App., also 57 S.W.2d 594. See dealings be between the 110, T.J., 73, pp. 111. In the case 20 sec. single as a trans viewed and continuous cited, sufficiently analogous, last under facts action, inception permeated by from its the “There would be Eastland held: the Court appellee’s representative fraud of Moore. damages right of no waiver of a however, general rule, be ad This must by or rati- the fraud a mere affirmance justed to the facts and circumstances of the contract, fication of the but a new particular case; for instance acts the as capable only af- of enforcement is an not dis following and conduct of the original of con- or ratification the firmance covery. 69, T.J., Deceit, Fraud sec. tract, the at same becomes time theory p. 'Contrary appellant, of rights source measure of the of dragline of Novem the sale parties.” 3, delivery on one by ber consummated other, Appellant’s payment by authority support check on chief of hand and in executory points, Tex. Haggard, became an contract on his above Culver v. by 846, 847, Com.App., 270 S.W. claimed part of and Moser withdrawal negotiations check; subsequent fact presenting of hav as a situation identical agreement. bar, readily aspects may of a new at be distin ing all tile case misrepre guished upon reading. November the conversation of There the respect of and terms the earlier sentations were nonexist of permit hap prospect gas, “and what ent for oil and agreement were Appeals equipment”; part: to Commission of pened to the in stating I en “We think that Bank official Landreth “if evidence shows equipment, Haggard the act in keep executing *5 Implement Minneapolis-Moline ed in Power appellees brought on ba-ckand delivered to Gatzki, goes supra, the Court Co. v. .place storage. Whereupon their or of lot stated, say: on to “From the conclusions the all involved in that transaction presented questions it that all the results a arrived at tentative involved war upon fraud or this relative appeal. in this ranties, issues submitting or the manner of testimony The is uncontroverted that a thereto, ap It are immaterial. reference of settlement the controversial issue as pears upon of record that the the face the made, the “dragline” satisfactorily jury issues found the and the agreeable parties, by appellant to all conformity of the court in thereto paying leaving therefor sum of exclusively a reference cause of adjustment for the motor pleadings affirmatively which the show postponed get “to waived, been and therefore did not exist.” 'shape,” in accordance with the terms and case, new above contract affirm representations warranty. of seller’s The atively pleading, shown defendant’s suit based on the check appears while here the same conclusively liquidated demand, as and defendant’s testimony. as a result defensive or grounded cross-action defense on points accordingly error are over- original transaction. is no ruled and of the trial court af- party any or evidence either new firmed. independent cause action or waiver warranty. The of the verdict Rehearing. On Petition for misrepresentations relates the Rehearing denied. inducing grader, the sale of the motor i. e.: prior (1) That to November 1947 the BOND, Chief sellers the motor grader to be Justice. condition, in excellent dissent, with wrong On I voiced submission it, that it would required however, work conclusion, final to fur- purchaser’s furtherance of the con- rehearing. ther review of the record on tract with a named company; construction am findings in accord with the of the purchaser (2) that rep- on relied such and that of majority factual purchased resentations would not background appeal; differ conclusion, majority representa- but for viewed from tions; that such record, subsequent that the false, of the accord and satisfac- in that the motor was not transaction n suitable independent purposes new and which it was —a misrepresentations and was inducing purchased, free of the defective on the date amount of two checks? One grad- purchase; * * * Q. $4,750. $9,250 and the other purchase the date worth at er was at, in was arrived sum Landreth, you that conversation with Mr. from the record observed It will paid $9,250, his check issued Mr. Teders objection to the no raised plaintiff amount, did that therein or the court charge of the long Q. clear bank A. How did. submitted, no further issues requested for the motor after this check for $4750 independent subsequent -and any new as to payment was issued before satisfaction, involving accord that? believe incident or waiver the conditions (Emphasis approximately 10.” issue, grader. Such Evidently delay in presenting mine.) ¡byevidence, being plain- was raised same the check was in consonance with the testi- defendant’s defense to the tiff’s affirmative mony equip- appellant “try damages, in absence of cross-action ment shape.” plaintiff request submission the for such It will be observed the record evi- 279, T.R.C.P. the issue. Rule waived opinion dence above stated from the may, the uncontroverted Be as majority does not evidence as by the reflected record novation, support accord, an issue of interpret majority opinion, waiver, estoppel, any of ratification, or subsequent transaction to the motor the affirmative matters which were not pleaded; no evidence to sustain them toas Bank, *6 executed justify the majority conclusion of the necessary repairs tryout after conditional defendant waived the fraudulent grader to make motor had been made taking sentations of the in machinery represented warranted it usable as try it work on the make transac- continuous sellers. “try job, equipment in shape”; inception by permeated from its conclusively shows defendant appellee misrepresentation of the fraud and merely arrangements an effort testimony of W. The associates. its grader perform motor to make the quoted majority H. Moser as perform intended it to which he services controversy over conclusively that the it the seller and which which was dragline was settled The evidence further shows that would do. took the motor paid, and that expendi- transaction and the after last job to test its usa- put it money great of a amount and labor ture “Q. What conversa- bility. He testified: purchaser, would with Mr. Landreth of tion did perform the services for which was refer- National the Mercantile intended; thus returned sell- I told him ence to the er. equipment and of the my opinion of the trial equipment, and happened to the and what plaintiff court should been that quite a I been out bit felt suit, nothing conformity recover time, I endeavored and that money and jury. verdict The trial court equipment, he should make some keep not warranted decide issue of off of the and mark compensation plaintiff’s waiver on motion non obstante that it would me to price, so pleadings, evidence, request absence * * * shape. equipment in get the for submission is- affirmative price of $4750 Q. How was waiver, if in fact such sue issue was prorated at? arrived on trial cause. raised * * * to the amount. according prices my respectfully register disapproval issued? A. new checks Q. Was some * ** majority affirming Q. the the conclusion What was were. Appel- trial court. rehearing be sus- motion lant’s rendered, as judgment here tained rendered, that should have
the trial court its suit. take Jr., Henderson, ap- Paul Colley, S. OIL CORP. v. et ux. BATON GULF pellants. No. 6554. Brachfield, Williams, Wolfe Hender- & Appeals Texas. Texarkana. of Civil Court son, Wells, Gray, Archie D. Wm. Stone 23, 1950. Nov. Houston, appellees. Rehearing Jan. Denied
WILLIAMS, Justice. wife,
Appellants Hosea Baton plaintiffs below, appeal from decree granted appellee, the motion of Corporation, Gulf Oil summary judg- ment, which plaintiffs denied a recovery triangular shaped .165 acre tract of for, quieted appellee’s land sued title against plaintiffs. -claims o-f upon Grounded the instruments and testi- mony herein which were *7 by appellee ed and introduced in support motion, the court found that judgment constituted, former as a matter law, estoppel by judgment herein asserted title to strip. the .165 acre 1914, partition In decree was entered in a Rusk County district court wherein the west half of 111.3 acre tract of land Mary Cogswell Survey out of the H. R. was allotted to O. R. Baton and the east half, to contain 55 called acres partition, commissioners in was allotted to Baton; above .children of Hosea Baton, deceased, plaintiffs there, D. J. were allotted acre tract out of the survey. Chisum map follows, the barb represent the fences lines which enclosed tract the 111.3 acre at the time of above represents partition. The -broken line partition fence the brothers construct- decree, shortly after the ed line as established division the commis- he should of notes deavored compensation and mark off to Culver original make some continuation transaction, original price Haggard so that would permit shape.” expecting issued, tome by simply still acquiescence willing by original re be bound Appellee’s value contract on condition ducing purge Irwin by $4,750 fixed securing permit at at himself of own, Moser; and was on this he claimed to that all the instance facts, by found transaction suit is as Ap Court Civil element by peals, appellee, an out show pointed As intention on the brought. part inescapable Haggard to waive practiced the fraud conclusion conversation, on him in the election be- contract with Irwin.” 4«9 insufficiency of of the road fraud attributed to the sellers Appellant argues ap- question time support machinery at the part plaintiff to pleading pellant’s ob rendered, purchase. the same predicated growing accord on an viously In the transaction of November delivery of the out of execution and appellant purchased “dragline” 1947the peti supplemental check; and grader” “motor for the sum plea of a is not a “semblance there transaction, jury, which found waiver, estoppel, novation, ratifica accord, induced false fraudulent re matters any of affirmative party (appellee sentations the sellers plead by quired specially Rule to be thereto) its mechanical worthiness ** Procedure) (Texas Rules of Civil suitability purposes final Appellee’s on the new or suit it was intended. The consideration in that . suit) agreement (evidenced by check in check for was evidenced think, maintained, with could be we which, by appellant, at the drawn Again, the aforesaid Rule. out reference to maker, instance was dishonored comparable to reflect fact situation is receiving Bank and the