Bolding v. Camp

• Decision Date: 11 May 1927
• Docket Number: (No. 2809.)
• Citation: 296 S.W. 1116
• Parties: BOLDING v. CAMP et al.
• Court: Texas Court of Appeals

296 S.W. 1116

BOLDING v. CAMP et al.

(No. 2809.)

Court of Civil Appeals of Texas. Amarillo.

May 11, 1927.

Rehearing Denied June 15, 1927.

Second Petition for Rehearing Denied September 7, 1927.

Appeal from District Court, Wichita County; W. W. Cook, Judge.

Actions by E. E. Camp and others against W. P. Bolding and others, consolidated for trial. From a judgment for plaintiffs Camp and others, the defendant named appeals. Affirmed.

Fitzgerald & Hatchitt, of Wichita Falls, for appellant.

F. G. Swanson, of Wichita Falls, for appellee Camp.

Kilgore, Rogers, Montgomery & Carrigan, of Wichita Falls, for appellees L. I. and M. S. Bennett.

Kay, Akin & Smedley, of Wichita Falls, for appellee Wichita Electric Drilling Co.

HALL, C. J.

By agreement of all parties, the appellant has been permitted to file new briefs, and the case is now before us for determination upon the merits. The record contains no copy of any of the pleadings, and the controversy is submitted by a brief statement of the case under R. S. art. 2280. The substance of the statement is that the appellant Bolding was one of the defendants in a consolidated cause upon the docket of the district court of Wichita county. The court consolidated several cases, filed by different plaintiffs, against the same defendants, among them being W. P. Bolding, appellant, A. J. McNeese, and A. L. Wiley. The statement further recites that the pleadings were sufficient, that the plaintiffs alleged that the various defendants were partners, owning, and engaged in the development of, a particular mineral lease, and, as such partners, were indebted to each plaintiff in various amounts for labor or material furnished to said lease. In addition to said averments, plaintiffs M. S. and L. I. Bennett pleaded in the alternative that, if the several defendants were not general partners, then as joint owners of said lease, engaged in the joint enterprise of developing the same, they were mining partners, and each knew of the necessity for, and the fact of, such plaintiffs' furnishing to said lease fuel oil necessary for, and used in the furtherance of, such joint enterprise, in developing said lease.

The appellant, Bolding, answering each of the several demands thus made against him, seasonably filed sworn denial of any partnership between him and any of his codefendants, and denied liability in any amount sued upon; that plaintiffs and interveners below established by appropriate evidence that the respective amounts allowed each of them in the judgment below was due and owing for work, supplies, materials, improvements, and labor furnished by them, respectively, on the lease in question.

It is further agreed that the sole question on this appeal is the liability of the said W. P. Bolding to the several appellees herein, and such liability, if any, rests alone upon whether or not, under the proof made, he was a partner with McNeese, Wiley, and his other codefendants, and, in the case of the Bennetts, whether or not Bolding was a mining partner with his codefendants, if not a general partner; and it is further agreed that, if such proof was insufficient, the judgment should be reversed as to all of the appellees; otherwise it should be affirmed as to all.

The material facts stated are as follows:

(a) That in January, 1924, the appellant Bolding paid McNeese and Wiley the sum of $600 in cash, receiving in return a letter evidencing that he (Bolding) was the owner of a one-sixteenth interest in a certain 15-acre mineral lease, with a well thereon; that the lease referred to in said letter was the same lease on behalf of which all of the debts sued on were incurred in drilling the second well, which was drilled after the completion of the first well.

(b) That at all times McNeese and Wiley alone were in active charge of the development of said lease, and alone directed and supervised all of the work and development thereon, and alone purchased the materials by reason of which the debts herein sued on were incurred.

(c) That, during the drilling of said second well on the lease in question, the appellant, Bolding, on two different occasions, at night, was seen on said lease and at said well; that, at the time of the completion of said second well, M. S. Bennett of the K. M. A. Fuel Oil Company had a telephone conversation with appellant in regard to her debt against the lease in question, in which conversation Bolding was asked if he was interested in the company developing said lease, and he said that he was. When he was informed that the bills were not being paid promptly, he stated that he had paid in his interest, and that he did not have anything to do with the management of the lease. When informed that some money would have to be paid on the Bennett account, he stated that he would speak to Wiley about it. Mr. Frances, representing one of the plaintiffs, also had some conversation with appellant, in which appellant stated to Frances that he had an interest in said lease, and that his interest was paid for, and that Wiley and McNeese would pay the account, and that he would see them about paying it.

It is further agreed that no plaintiff below pleaded that credit was advanced by reason of any knowledge that Bolding was interested therein, nor was there any pleading that Bolding held himself out as a partner.

Judgment was rendered that some of the plaintiffs take nothing, and in favor of other plaintiffs, for the several sums claimed, against Wiley, A. J. McNeese, Mrs. Theo. McNeese, W. B. Baldwin, and W. P. Bolding, as partners. W. P. Bolding alone has appealed.

In accordance with the agreement, the sole question to be decided is whether the appellant, under the statement, was properly held liable as a partner for the several amounts adjudged against him.

Our conclusion is that he was either a partner or a joint adventurer, and, in either event under the agreed statement, the judgment should be affirmed, because in either event the liability of appellant in a case of this character would be the same. Griffin v. Reilly (Tex. Civ. App.) 275 S. W. 242; Finney v. Terrell (Tex. Civ. App.) 276 S. W. 340. There being no express agreement for the formation of a partnership between appellant and his codefendants, it became a question of fact to be determined by the trial judge from all the circumstances, and we think the facts disclosed by the agreed case amply support the trial court in concluding that there was a mining partnership between appellant and his codefendants. When appellant bought his one-sixteenth interest in the adventure, it was for the purpose of sharing proportionately in the profits, if any, to be derived therefrom, and, while he may have had an understanding with his codefendants that they should bear the expenses incident to the drilling of the second well, this would not affect his liability to the creditors, in the absence of any agreement with them that appellant was not to be held liable beyond the $600 contributed by him. While the facts set forth in the agreed statement are meager, they are sufficient to support the court's finding upon the issue of the existence of a mining partnership. Mayfield v. Key (Tex. Civ. App.) 260 S. W. 926; Munsey v. Mills & Garitty, 115 Tex. 469, 283 S. W. 754; Indiahoma Refining Co. v. Wood (Tex. Civ. App.) ...