*1 filed on behalf plea of limitations

corporation. Craugh as qufestionasked Mr. against the validity the claims conclusion legal

corporation for a called been asked.

and should not have opinion that

We note against appellant, account

claims year stat- four two and

are barred V.A. Art. of limitation.

utes Appellant’s motion for

C.S., respectively. here judgment

rehearing granted and nothing their appelleestake

rendered that Craugh appellant M. against

suit J. Company. al. appellants Cockrell

Motion of M. motion of

overruled J. to it the and as granted & Craugh Co. and rendered. is reversed PARKER, Appellant,

William A.

v. ROLLS, Appellee.

Joe C.

No. 10768. Appeals of Civil Texas.

Court

Austin.

July Aug. 24, 1960.

After Remittitur

524 equipment operations

work-over failures. may be terminated agreement

“This *3 notice. upon weeks’ by of two either us Dallas, Wood, Scurry, Scurry, Pace & satisfactory please is the above “If for copy to me with one sign and return effec- for become Grindstaff, Ballinger, same to you date desire Grindstaff & tive. appellee. Rolls C. A. Smith W. /s/ Joe

“/s/ “3/5/54” HUGHES, Justice. a was Attached Rolls, appellee, sued William A. C. Joe operation of sworn account reciting $1,212.50, interest Parker for the sum of County wells Taylor and two three in wells under allegedly and due a fees months from County in Runnels for allegedly by contract executed A. W. December, March, through in- 1954 agent appellant, as Mr. Parker. for well, per clusive, per a at month are of $5,000. total indebtedness Credits The a letter contract in the was form of 1954, and April, shown with Smith, commencing addressed 111 Devon- to: Mr. W.A. Mass, January, through month for each thereafter St., Boston, shire A. and Mr. Wm. September, except the month of Parker, St., Mass., for Berkeley Boston, 200 $3,787.55, balance totalling leaving S, dated March The letter $1,212.50. due signed by of A. and Rolls W. Smith C. Joe and reads: filed first amended answer in and a which was contained denial general Rolls C. “From: Joe (cid:127)special .quote: answer from we of one hundred dollars a fee “For he states that The Defendant “II. super- agree to ($100.00) month I promptly all sums paid Plaintiff has operations leases production vise ren- money for services due Plaintiff of Parker, and belonging Wm. wells in this con- to the Defendant dered Taylor al, County located in and alleges that he was Defendant nection. Pumpers County, Texas. sal- Runnels in undivided of an owner ary, personal mileage, car clerical in certain leases wells gas oil and expenses All will be borne me. he Defendant states said wells supplies and well well will servicing portion to a was entitled expense your Any in- be for account. said leases produced oil from more volving than one hundred dollars money paid the sum he has Plaintiff ($100.00) require approval your will part ownership. De- of his due him before same incurred. alleges fendant that Plaintiff knew prepare monthly all “I will an- parties owed undivided in- other reports required by nual the Railroad oil gas in some these terest Texas Commission and will submit and, fact, leases, aas matter of production you report a monthly giv- working (2) and associated with two ing pertinent production data each George such other owners named well. Reiser, Barrell and Robert who parties part who owe Plaintiff supervise yóur production will as “I claimed this suit. monies economically possible. diligently and be liable for will not unsatis- I “III. Defendant alleges further that factory may results which occur from said contract attached Exhibit ‘A’ services, anyone fully paid him or for such and that there executed $1,212.50. Defendant was due him

with to bind debts other owners. (6) Appellee sent ser- statements for his properties for which interests vices to Smith for the first two or three money Plaintiff due claiming operation. months of performed.” work (7) Appellee that Robert Reiser knew author- the lack of allegations as to Taylor he had an interest believed supported ity Smith were of A. W. paid part County wells when he affidavit. *4 March, by appellee statement for sent February 7, 1959. This answer was filed 1954, (8) March, That in Smith was 1959, 4, thereto, there was February Prior for in connection acting his own benefit An- Supplemental First filed “Defendant’s operation with the of the wells. swer, his Amended First supplementing (9) Appellee decided, after the first two appellant pleaded, In this Answer.” answer operation three months of to treat the solely, year statutes of the two and four appellant. contract as on binding 5527, limitation. Art. 5526 and Art. Ver- non’s Ann.Civ.St. (10) Smith he executed when the con- ’ tract was not for all the acting owners of 1, 1959, appellant On October filed “De- Taylor County the leases. Answer, Supplemental fendant’s Second his Amended supplementing First Answer Appellant (11) knowledge had the of Supplemental First Answer!” This signed contract prior Smith to its ter- pleaded, solely, answer the two and four mination. limitation, year sta-tutes of Appellee ver- judgment moved for the ' By supplemental petition (called “an- for mistrial on dict. moved 'appellee pleaded appellant had that swer”) jury the ground certain issues .were estopped ratified the and was acts of Smith conflicting, in the Court erred deny authority premises. his requested special to submit a is- refusing He also moved for sue. not to The case submitted to a which was attorney’s exceed fees. findings made these : Judgment appellee entered for was n (1) That Smith for and in was acting $1,212.50, interest at annum from 6'% appellant-when of behalf the Rolls-Smith 1, 1955, February fées. $400 . contract made. proceeding Before ato discussion of the appellant (2) That of such con- knew points by appellant, of made error we desire tract when appellee he made payments to- notice the state of his pleadings. The in connection operation with the the of supplemental two answers were not in re- n wells mentioned in such contract. sponse “to the last preceding pleading” appellee. Rule of Rules Civil Procedure. (3) appellant operator That was the' of preceding last pleading by appellee on the wells mentioned in the contract. file supplemental when the first answer was (4) appellant That the filed was original petition to owner the of wells mentioned in the con- appellant which had on file his first amend- tract who exercised authority over their ed answer. operation. supplemental appellant’s second When (5) appellee performed plead- That the last petition filed preceding services for appellant operator supplemental as appellee was his first wells mentioned of ing in contract; appellee answer) pleaded had petition (called not been copy of sent to W. this letter A. -being an- appellant’s estoppel ratification n n ' - Smith. alleging lack swer plea Obviously appellant’s part Smith. February 16,1954, On W. wrote Smith -response to in limitation was appellee representative “As that he pleading. him to Wm. A. Parker” authorized operate “Mr. wells Runnels Parker’s these either do not consider we County well his Lawn as interests without left then pleadings, Field,” the terms to be as stated in plea limitations. February 9th letter. held,1 supplemental If, it has been 5, 1954, (contract) On March letter may an amend- considered as pleading be previously copied T.R.C.P., was sent to then, ment, under Rule place amendment takes the April 4, appel- On sent to reasoning it is substituted. This for which lant in of A. W. care Boston plea of appellant without his would leave operation bill for men- wells *5 the execute authority of want of Smith to 5, 1954, tioned in the March contract of upon. contract sued copy of bill being the to sent W. Smith. paid appellee Of this amount $100 questioned appellee has Since not paid Robert him, Reiser and appellant have dis pleadings, we concluded to these Appellant check, paid $368.75. nine other regard pose appellant’s points without similar monthly appellee on amounts to sufficiency pleadings. the to statements sent him A. W. Smith or to. directly to Mr. Reiser did the entire the owner of than a during more total of in Runnels interest wells leasehold two period, stop- the evidence showing that he County, and in the an undivided interest ped paying because of title troubles over leasehold, interest, working in three in the interests wells. Taylor in the Field Coun- wells Lawn Oil ty. 1954, 16, appel- wrote On March as lant follows: undisputed

By evidence it-was established that a custom exists in the business that oil A. Parker “Mr. Wm. jointly operated, where lease is is Berkeley “200 Street working (distinguished where the 16, Mass. “Boston owners, owned royalty) from various is opera- Parker: designated “Dear Mr. one owners operator “that of the lease and handles tor was unable to Mr. I contact “Since they properties were his and in own writing you clar- today, I am for Smith partners propor- turn he bills his their for operations regarding details ification of share,” operator all bills paying tionate n W, T,M, your in Units and wells collecting from the other owners. Townsite, your No. Burrus Lawn .Cree-Sykes 1, Field. No. and Brown testify, nor did A. 1 did not time deceased at who W. say, rating credit your to “Needless trial. supply the oil field hoúses with all however, I A-l; your for own benefit appellee wrote a February On operator, you, as know whether up- have stating the terms to Barrell H. George costs, operating responsible for operate are he for Mr. Robert would intangible,' tangible on the both and. A. Parker Mr. William et al. and Reiser customary is generally above It Cree-Sykes Fields, wells. Lawn and al. Amarillo, Deats, Tex.Civ.App., N.R.E. 1. Kennann v. ref. 258 writ S.W.2J 528 operator May, 1954, costs

for the assume above Rountree Lease for the re- ports and bill interest holders I the various show 185 oil have barrels of sold. I you for share of costs. mailed all run their tickets ago. you some time will me send Rountree “Your Griffin No. 1 and May Rountree, 1954 run tickets on put pump ready 1 on the No. be I will check them. equipped a week can be within so 1, 1955, January “Effective I wish to $5,000 each; approximately less your produc- be relieved supervising obtained, each if -used material be can Taylor tion in Runnels Counties. 20- capable pumping well should be I Since have not collected full amount day. 30 of oil barrels supervision of bills for which I have pumper wells “Your on the above you sent month, each I can con- wages states he is due back for labor. tinue going each hole month. I aware interests am not various “Very truly yours, wells; I however, in the above before Rolls” C. “/s/ Joe responsible supervision assume of same On 17, 1954, appellant replied December I would like to do so without obli- as follows: gations carried over. “Dear Mr. Rolls: your pumping “Electrical service your “In answer Decem- letter of 1 Rountree No. 1 Griffin No. will 14 I ber am enclosing the May, approximately cost This each. run tickets on the Roundtree Lease. monthly higher slightly cost is than Co- *6 you please Will check these and return operative electricity. or REA sat- them to me. isfactory you with both wells can be you “I note that wish to be relieved put pump a on within week. the production Taylor our supervising in “Very yours, truly January and Runnels as of Counties C. Rolls “Joe 1, 1955. I will therefore other make Smith, “c.c.: Mr. A. W. 111 Devon- disposition. you very Thank much for St., shire Boston Mass.” past services. “Sincerely, 19, 1954, appellant replied On March to “Enes. A. William Parker” /s/ this letter as follows: With this full statement of case we the “Dear Rolls: proceed will now dispose appellant’s to your “In answer letter of March to points. questions 16 there are several which I pure ignorance answer from cannot point monthly The first is that all my responsibility. payments accruing under the contract more “I talking shall be to Mr. Smith to- years than four before the institution of day Monday or and will answer this 17, 1958, this suit on November barréd responsibly more then. by year four the statute of limitation. Art. “Sincerely, 5527, V.A.C.S. William Parker.” “/s/ point. We this sustain contract ex- 14, 1954, appellee On December wrote clearly pressly provides pay- for the appellant follows: monthly pro- ment of fee supervising operations on certain “Dear Mr. Parker: duction leases your This due “With to letter of wells. fee was at the end of each reference 10, 1954, regard inquiry during December in to month which the services contract- Accounts, Comptroller performed. were Public ed “Under from the con- report Texas, payments concerning payable tract these State due and \yere support a verdict will begin conflict that would to month, limitation each judgment. Tex.Jur., due 41-B 585. payment from its each due Sec. run on Tex.Com.App., Pollack, date.” Pollack v. in Point four is that Court erred the Lans v. 853, 855. See also 39 S.W.2d appellant’s special exception not sustaining Antonio, 188 Bristow, Tex.Civ.App., San Supplemental to First Petition S.W. 970. ground allegations on the that were its contract Appellee contends vague. cause contract and continuing no suit is oath, denied, had under until its termination action accrued thereon authority op- agree to of Smith to agree with January cannot We Appellee of other erating costs owners. termi- contract was contention. The this pleaded, appellant response, had with the by appellant in accordance nated appellee, and partial payments making to does not provisions contract. One accounts for labor paying other accordance acting in breach a contract in operating material incurred the leases of this termination with terms. The its involved Smith in had ratified action of circum- by appellee under these contract deny premises, failing to created neither was not tortious and stances estopped appellant, any action in be- accrued cause of nor circumstances, deny au- under the to such against half him. thority. two is that the Court erred Point We do believe such was sub- appellant’s refusing submit We, ject objection vague. to the that it was whether, requested special inquiring issue also, fail to harm detect during the first two or months three any deficiency may from exist- have op period, A. W. Smith was the contract pleading. ed in this and wells involved. erator of leases point Point five similar four believe there error in We was no *7 exception and relates an to the same to respect. no to such ef- There was pleading. specifically objects It to such controlling Neither was it a issue. fect. allege ap pleading because it that does theory agency, case The was tried on of pellant by of knew the contract made appellant’s agent. that Smith was Smith. Furthermore, find we evidence no Since jury this case was submitted to the acting his behalf or was own theory estoppel, agency on the and not for his own benefit. All of his conduct error, any, overruling we hold that if explanation subject only to reasonable on exception this was harmless. premise the established was acting that he appellant. point appellant’s six: quote We granting Plain- erred in Court “The Point three is there was con rea- Judgment for the Motion for tiff’s between the flict finding that for that Smith no evidence there son that first months two or three statements were authority Defend- to bind the had by appellee sent to thereafter he Smith and party, pay debt of another ant to binding decided treat the to contract as duty to under the Plaintiff was appellant. authority extent of the determine Smith, and the alleged agent of the purely evidentiary finding The first credible preponderance of the great controlling issue. It should was not a made at- Plaintiff no is that evidence It is when submitted. have been tempt determine the to controlling material and issues answérs Smith, ownership in- ’be or the of other reversed and remanded with instructions Taylor County leas- terests in enter oil and interest es, by the and further such action indicated and reasonable fees by Court is a of the statute of to be violation found the Trial Court. frauds.” Costs appeal ap- are assessed against pellee. ap- appellant point Under states that pellee years a half waited three and before Reformed and affirmed on condition. by advising him contract made Smith; he, appellee, also that tried to col- After Remittitur Barrell, lect Reiser this account from $70,000. paid and that him Reiser had The remittitur called for in original our opinion having by been appellee, filed an in the Reiser did not own judgment of the Trial Court is reformed $70,000 payment leases in The suit. indicated opinion in such and as reformed Reiser to this not relevant is affirmed. suit. prevalent custom materially Under the benefit Since ed appeal, appel evidence, oil business we and under the adhere ruling to our assessing appeal operator costs becoming against lant of the leases did appellee. Rule not, appellee, T.R.C.P. agree as to the debts operator, other As interested owners.

debts, operating expenses, his. were

statute of frauds not violated.

We are aware rule

agency cannot be established the out agent.

of court admissions of the There record. admissions of Smith some B. ZEIDMAN Morris et ux., Appellants, not consider for the We do these admissions purpose establishing agent Smith as the v. agency appellant, being but other such Charles DAVIS Appellees. al., ad wise established we do consider such No. 3756. being binding missions as Appeals

Court of Civil of Texas. *8 fully We have set out evidence Waco. opinion our find it is that the material July 29, 1960. amply supported by ings Rehearing Sept. 15, Denied the evidence. seven is that since Point

sum of limitation is not barred $262.50 an allowance is recoverable that agree, fee excessive. We

and find the excess to be $300. days,

will this amount within remit ten be reformed will so as allow

recovery of with interest at 6% February 1, 1955, annum from and $100

attorney’s fees; cause otherwise this will