Berry v. Thomason

• Citation: 261 S.W. 154
• Decision Date: 01 March 1924
• Docket Number: (No. 10502.)
• Parties: BERRY et al. v. THOMASON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeals of Texas

261 S.W. 154

BERRY et al. v. THOMASON et al.^*

(No. 10502.)

Court of Civil Appeals of Texas. Fort Worth.

March 1, 1924.

Rehearing Denied April 12, 1924.

Appeal from District Court, Throckmorton County; W. R. Chapman, Judge.

Action by G. W. Thomason and another against the Boggy Valley Oil Company, and A. V. De Pascle, W. L. Berry, and Calvin H. Henson. Judgment for plaintiffs against all defendants except A. V. De Pascle, and W. L. Berry and Calvin H. Henson appeal Reversed and remanded.

Carrigan, Montgomery, Britain, Morgan & King, of Wichita Falls, and T. R. Odell, of Throckmorton, for appellants.

G. W. Thomason, of Haskell, for appellees.

DUNKLIN, J.

This suit was instituted by G. W. Thomason and Y. L. Thomason against the Boggy Valley Oil Company, a corporation incorporated under the laws of the state of Texas, and A. V. De Pascle, W. L. Berry, and Calvin H. Henson, to recover the balance claimed to be due plaintiffs for rent on a well-drilling machine and implements used in connection therewith, and also for the value of a rig which plaintiffs alleged defendants failed to return after the expiration of the lease period, and which it was further alleged the defendants converted to their own use.

Judgment by default was rendered against the oil company, and defendants have made no complaint in this court of that decree. Judgment was also rendered in plaintiffs' favor against the defendants Berry, as vice president of the oil company, and Henson, as secretary and treasurer, and against those two persons individually. From the personal judgment against them, Berry and Henson have prosecuted this appeal. Although the judgment recites that De Pascle was duly cited as president of the oil company and also in his individual capacity, he failed to answer but wholly made default. Notwithstanding that recital, judgment was rendered in favor of De Pascle.

The lease contract upon which plaintiffs sought a recovery for rentals on the well-drilling rig is as follows:

"The State of Texas, Throckmorton County.

"Know all men by these presents that this contract or agreement, this day made and entered into by and between G. W. Thomason and Y. L. Thomason of Throckmorton county, Texas, parties of the first part, and the Boggy Valley Oil Company, a corporation duly incorporated under the laws of the state of Texas, and having its principal place of business in Throckmorton county, Texas, and A. V. De Pascle of Dallas, Texas, president, Dr. W. L. Berry, vice president, and Calvin J. Henson, Sec. and Treas., of said company, of Throckmorton county, Texas, both in their official capacity as officers of said corporation and in their individual capacity, each for themselves, parties of the second part, witnesseth: That the parties of the first part do hereby lease and rent to the parties of the second part for the period of ninety days from date hereof, one National well machine, one stem, 20 feet long, one ten-inch bit, one eight-inch bit, one six-inch bit, one Barrett jack, one set of wrenches, at a rental of seven dollars and fifty cents per day for each day of said ninety days—Sundays excepted unless machine and tools are used on Sundays, and if used to be paid for at the same rate; said rental to be paid weekly at the end of each week.

"The said Boggy Valley Oil Company in its corporate capacity, and the said A. V. De Pascle, Dr. W. L. Berry and Calvin J. Henson, each in their official and individual capacity, severally and jointly, bind and obligate themselves to pay to the parties of the first part the rental for the machine and tools as agreed herein for the time herein specified and at the end of said term to return said machine and tools to the parties of the first part where they received them free of cost to the parties of the first part and in as good condition as they, the second parties, receive them; and if the said second parties should lose or break any of said tools, they are to replace the same with new tools and if said machine is damaged to place the same in as good repair as when received.

"Witness our hands, this the 2d day of May, A. D. Y. L. Thomason, Parties of the First Part. W. L. Berry, Vice President, Calvin J. Henson, Sec.-Treas., Parties of the Second Part."

In their pleadings plaintiffs alleged that by oversight the contract sued on was not signed by plaintiff G. W. Thomason, nor by the Boggy Valley Oil Company, nor by A. V. De Pascle. But it was further alleged that G. W. Thomason was bound by it because Y. L. Thomason acted for him in the making of it, and that the oil company and De Pascle were bound because they were represented by Berry and Henson in its execution, and that all the defendants were liable because they acquiesced in the contract as binding upon them individually and accepted the benefits arising therefrom.

Defendants Berry and Henson filed numerous exceptions to the sufficiency of the petition to show a cause of action against them personally. They also pleaded specially that prior to the execution of the contract the oil company was the owner of oil and gas leases which is desired to develop, and in order to accomplish that it sent defendant Henson and another agent to procure a drilling rig. According to further allegations, Henson and the other agent entered into an oral contract with plaintiffs for and in behalf of the company only to rent the machine and tools described in plaintiffs' petition. Plaintiffs then undertook to reduce the oral contract to writing, but before doing so represented to Henson that they desired the three officers named to become guarantors for the oil company in the performance of the contract, but Henson declined to accede to that demand, since it was not in accordance with the prior oral contract. But Henson told plaintiffs at the same time that if De Pascle would execute the contract so as to make him individually liable, then Berry and Henson would...