Amber Petroleum Co. v. Breech

• Decision Date: 04 June 1908
• Citation: 111 S.W. 668
• Parties: AMBER PETROLEUM CO. v. BREECH.
• Court: Texas Court of Appeals

111 S.W. 668

AMBER PETROLEUM CO. v. BREECH.

Court of Civil Appeals of Texas.

June 4, 1908.

Appeal from District Court, Jack County; J. W. Patterson, Judge.

Action by the Amber Petroleum Company against J. E. Breech. From a judgment for defendant, plaintiff appeals. Affirmed.

Thos. D. Sporer, for appellant. Nicholson & Fitzgerald, for appellee.

LEVY, J.

The appellant company alleged that it had employed the appellee to solicit and obtain for it mineral leases on lands in Jack county, and that appellee in the course of his employment obtained certain leases on lands set out in the petition, which he fraudulently had executed to himself, instead of to the appellant company. Appellant prayed for an injunction to restrain the appellee from transferring the leases pending suit, and for judgment decreeing the divestiture of appellee of any interest in the leases, and for general relief in the premises. The case was tried before the court without a jury, and judgment was entered for appellee. From that judgment the appellant company brings the case on appeal.

The appellant's assignments of error are to the effect that the court erred in its conclusion of law. The contention is that the findings of the court establish that the appellee was the agent of the appellant company, and that the leases in controversy were procured by appellee for appellant during and in the course of his agency, and by reason thereof the appellant company was entitled to the leases in controversy. The findings of the trial court are in the record. There is no statement of facts. The findings are meager, and consist rather in a statement of the evidence than in strict findings of fact. The conclusion of the court is in these words: The foregoing facts do not entitle the plaintiff to the relief prayed for, and defendant should have judgment." To ascertain whether appellant's contention is correct, it must be ascertained what findings of fact are involved in the court's conclusion. The findings disclose in the first place that, if there was a contract of agency in the case at all, it rested in parol agreement. The effect of the court's findings of fact was to find that there was no contract of agency mutually agreed to between the parties. Such a finding involves necessarily the finding that there was no distinct intention common to both parties to obtain the leases in question, and that there was no mutual understanding in terms of positive agreement between them as to any lease. The court probably arrived at these conclusions from this portion of his following findings: That on January 15, 1907, appellant employed appellee to obtain leases for it, paying him $3 per day for each day he worked, and that appellee worked under this contract for 10 days, and that on the 1st day of February, 1907, appellant settled up with appellee for the work he had done, and stated to him that it could not afford to pay him at such rates and on such terms; that at the time of this settlement the appellant, through its agent, Gilman, stated to appellee that "if he would take leases for it that it would pay him $1.50 for each lease and the expenses of taking same," to which appellee stated that "he would take some blank leases, and if he could he would get them some leases on these terms," at the...