Berchelmann v. Western Co.
| Decision Date | 12 December 1962 |
| Docket Number | No. 5533,5533 |
| Parties | David BERCHELMANN et al., Appellants, v. The WESTERN COMPANY et al., Appellees. |
| Court | Texas Court of Appeals |
Morrison, Dittmar, Dahlgren & Kaine, Michael J. Kaine, San Antonio, for appellants.
Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., Milton L. Bankston, Turpin, Kerr, Smith & Dyer, Thornton Hardie, Jr., Midland, L. L. James, Tyler, Bill Snow, Big Lake, John F. Wagenhauser, Dallas, for appellees.
This particular case was severed from another cause, the severance being due to pleas of privilege. This is an appeal from a decision of the trial court which withdrew the case from the jury and rendered judgment in favor of the appellees for their respective debts, interest and attorneys' fees. This judgment was rendered against all of the appellants, jointly and severally, and in addition included an order establishing and foreclosing materialman's liens in favor of the Youngstown Sheet and Tube Company. The relationship between the parties arose by virtue of an agreement between a partnership known as Texita, comprised of Gordan W. Johnston and I. A. McNabb, and the appellants. This agreement involved the drilling for and production of oil and gas from a certain tract of land known as the Shannon 'A' lease, in Crockett County. The operating and drilling was to be done by Texita which, along with the appellants, were holders of fractional parts of all the working interest under an oil and gas lease on the lands described as Shannon 'A' in Crockett County, Texas. According to the record before us Texita was to drill and operate, and each of the appellants was to be billed for a proportionate share of the expense, which he was to remit to Texita. Texita was known as the 'operator' and appellants as 'non-operators'. The appellees here were various creditors or assignees of creditors who had supplied material and services for the operations on the property in question at the request of Texita. These appellees sought and obtained a judgment in the lower court holding appellants liable on the theory that Texita and appellants were jointly and severally liable for these debts because a mining partnership, or partnership agreement of some sort, existed between Texita and appellants, and that Texita had acted as agent and representative of appellants.
The trial court, after withdrawing the matter from the jury, rendered a judgment in favor of the appellees for their debts, interest and attorneys' fees and--as stated above--granted Youngstown a further judgment establishing and foreclosing its alleged materialman's lien. This judgment also involved some other parties and collateral matters, but we are concerned here with only that part of the judgment rendered against the appellants who have perfected their appeal to this court.
We believe that appellants' Points 1, 2, 3, 4, 5, 6, 7 and 9 must be sustained. Although there are fourteen points of error in all, we believe the other points of error need not be discussed, as they will be disposed of automatically by this decision.
We will dispose of Point 5 first. This point deals with the matter of a materialman's lien. It is clear from the record that Youngstown, in whose favor the materialman's lien was granted, had not taken the necessary steps required by law to establish the lien under the conditions here present.
According to the record the agreement between Texita and appellants provided for drilling and operation on this Shannon 'A' tract of land. It is clear, from the evidence--oral and documentary--and from the affidavits and exhibits, that Texita was to be the operator, and the appellants were known, and acted, as 'non-operators', merely paying their proportionate shares of the expenses. The only other significant provision was that Texita agreed not to obligate itself for more than $2500 for any one item without the written approval of the non-operators. The record reveals that Texita regularly billed the appellants, and appellants remitted their allotted shares of the incurred expenses. The appellees, who had supplied various items of material and services, do not seem to have ever held or billed any of the appellants for the credit extended to Texita prior to this lawsuit. It is also clear that Texita was a going concern and had established its credit with many of appellees before the transaction with reference to the Shannon 'A' leases materialized. Other than the matter of the $2500 expenditure qualification, the record is clear that Texita was to be the operator, in sole control of the drilling and production on the land here involved. We do not find any evidence that Texita was the agent or representative of these appellants (holders of fractional parts of the working interests of the oil and gas leases) nor do we find that the creditors themselves (appellees here) extended any credit or depended on payment from the appellants. The two partners of the Texita company themselves stated that they were the operators and in control...
To continue reading
Request your trial
-
Blocker Exploration Co. v. Frontier Exploration, Inc., s. 85SC300
...Youngstown Sheet & Tube Co. v. Penn, 355 S.W.2d 239 (Tex.Civ.App.1962), modified, 363 S.W.2d 230 (Tex.1963). In Berchelmann v. Western Co., 363 S.W.2d 875 (Tex.Civ.App.1962), the appellants were held not liable as partners because "the very operating agreements themselves, wherein appellant......
-
Ayco Development Corp. v. G. E. T. Service Co.
...writ ref'd n.r.e.); Price v. Wrather, 443 S.W.2d 348 (Tex.Civ.App. Dallas 1969, writ ref'd n.r.e.); Berchelmann v. Western Co., 363 S.W.2d 875 (Tex.Civ.App. El Paso 1963, writ ref'd n.r.e.); J. Robert Neal, Inc. v. McElveen, 320 S.W.2d 36 (Tex.Civ.App. Houston 1959, no writ). See also 4 Sum......
-
Johnston v. American Cometra, Inc.
...Sheet and Tube Co. v. Penn, 355 S.W.2d 239 (Tex.Civ.App.), aff'd as modified, 363 S.W.2d 230 (Tex.1962); Berchelmann v. Western Co., 363 S.W.2d 875 (Tex.Civ.App.1962, writ ref'd n.r.e.); see also Tex.Rev.Civ.Stat.Ann. art. 6132b, § 7(5) (1970). 2 These cases hold that no fiduciary relations......
-
Frontier Exploration, Inc. v. Blocker Exploration Co.
...in kind, or the right of access to the site. Ayco Development Corp., supra; Youngstown Sheet & Tube Co., supra; Berchelmann v. Western Co., 363 S.W.2d 875 (Tex.Civ.App.1962). If construed literally such rights might be considered as indicating "joint operation," but we do not so construe th......
-
CHAPTER 7 LIABILITIES OF NONOPERATING OIL AND GAS INTEREST OWNERS
...& Tube Co. v. Penn, 355 S.W.2d 239 (Tex. Civ. App.), modified on other grounds, 363 S.W.2d 230 (Tex. 1962); Berchelmann v. Western Co., 363 S.W.2d 875 (Tex. Civ. App. 1962); see J. Robert Neal, Inc. v. McElveen, 320 S.W.2d 36, 42 (Tex. Civ. App. 1959). [87] 337 S.W.2d at 499. The court also......
-
CHAPTER 1 LIABILITIES OF NONOPERATING INTEREST OWNERS
...& Tube Co. v. Penn, 355 S.W.2d 239 (Tex. Civ. App.), modified on other grounds, 363 S.W.2d 230 (Tex. 1962); Berchelmann v. Western Co., 363 S.W.2d 875 (Tex. Civ. App. 1962); see J. Robert Neal, Inc. v. McElveen, 320 S.W.2d 36, 42 (Tex. Civ. App. 1959). [81] 337 S.W.2d at 499. The court also......
-
CHAPTER 2 PROPERTY PROVISIONS OF THE OPERATING AGREEMENT
...creates either a mining partnership or a joint venture due to the express disclaimer of partnership, Berchelmann v. Western Co., 363 S.W.2d 875 (Tex. Civ. App. — El Paso 1963, writ ref'd n.r.e.), or due to lack of joint operations, Ayco Development Corp. v. G. E. T. Service Co., 616 S.W.2d ......
-
CHAPTER 5 OPERATORS' LIENS UNDER 1989 AAPL FORM 610 OPERATING AGREEMENT
...Inc., 740 P.2d 983 (Colo. 1987); Ayco Dev. Corp. v. G.E.T. Service Co., 616 S.W.2d 184, 186 (Tex. 1981); Berchelmann v. Western Co., 363 S.W.2d 875 (Tex. Civ. App. — El Paso 1962, writ ref'd n.r.e.). [23] 1989 Form at 12, lines 7-14. [24] 1989 Form at 12, lines 5-7. [25] 1989 Form at 12, li......