Bristol v. Chas. F. Noble Oil & Gas Co.

• Decision Date: 15 April 1925
• Docket Number: (No. 2484.)
• Citation: 273 S.W. 946
• Parties: BRISTOL et al. v. CHAS. F. NOBLE OIL & GAS CO.
• Court: Texas Court of Appeals

273 S.W. 946

BRISTOL et al. v. CHAS. F. NOBLE OIL & GAS CO.

(No. 2484.)

Court of Civil Appeals of Texas. Amarillo.

April 15, 1925.

On Reinstatement of Appeal, May 20, 1925.

Rehearing Denied June 10, 1925.

Appeal from Wichita County Court; Guy Rogers, Judge.

Action by W. E. Bristol and others against the Chas. F. Noble Oil & Gas Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for appellants.

Bonner, Bonner & Sanford, of Wichita Falls, for appellee.

RANDOLPH, J.

This suit was filed in the county court at law of Wichita county, Tex., by appellants against appellee. The trial court rendered judgment in favor of appellee, and this appeal is from that judgment.

The appellants have not brought forward in their brief any assignments of error, as required by rule 32 for the Courts of Civil Appeals, which is as follows:

"The brief shall contain verbatim copies of such of the assignments of error filed in the trial court and reproduced in the transcript as are relied on in the appeal, but their original numbering may be disregarded. They shall be set out in the back of the brief, but if desired, they may immediately follow the statement of facts."

In the case at bar, appellants have filed their brief containing propositions which do not show that they relate to or are germane to any assignment of error, and no assignments are set out in the brief in the "back, front, or middle thereof." The failure to bring the assignments forward in the brief disposes of the appeal adversely to appellants, unless fundamental error is shown in the record. Jaffe v. Deckard (Tex. Civ. App.) 261 S. W. 398; Midland Rubber Co. v. Waldman (Tex. Civ. App.) 257 S. W. 929; Green v. Shamburger (Tex. Civ. App.) 243 S. W. 601; First State Bank & Trust Co. v. Blum (Tex. Civ. App.) 239 S. W. 1035.

A fundamental error is an error that is apparent of record, and such error is defined by the Supreme Court in the case of Houston Oil Co. v. Kimball, 103 Tex. 104, 122 S. W. 537.

"The language, `apparent upon the face of the record,' indicates that it is to be seen upon looking at the face of the record, that is, the assignment itself, the fact pointed out by it must show a good and sufficient ground for the court to interfere to prevent injustice being done to one of the parties. Perhaps the best expression is that it must be a fundamental error, such error as being readily seen lies at the base and foundation of the proceeding and affects the judgment necessarily. * * * If we take the first assignment in its terms there is not apparent upon the face of that record any one of the things pointed out in the propositions under it. By an examination of the record it might be found that the facts existed as claimed in the propositions, but they are not manifest and not evident, not obvious, without an examination and weighing of the evidence to determine whether or not the assignment is well taken."

There being no such error in the record, we dismiss the appeal in this case.

On Reinstatement of Appeal.

This suit was filed by appellants against appellee in the county court at law of Wichita county, Tex., to recover money alleged to be due upon a contract of sale, which suit was based upon allegations that appellants were the owners of an oil and gas lease in Wichita county, which contract, as alleged in plaintiffs' petition, provided for the sale of the casing-head gas from an oil and gas lease owned and operated by them, for a stipulated price per 1,000 cubic feet, based on the gasoline content of such gas.

Appellants allege in their petition that the appellee was by the terms of said contract required to make tests every three months to ascertain such content, and that one such test was due to be made in October, 1922, and another in January, 1923, but at the time these tests were required to be made appellee's testing machinery was not in shape to make an accurate test; that J. R. Auers was appellee's agent, actual or apparent, and that they made a contract with him, as such agent, whereby, instead of making the tests due in October, 1922, and January, 1923, appellee was to make a test as soon as it procured an accurate testing machine, and that such tests would be as having been made at the proper time in October, 1922, and would furnish a means of calculating payments for the months of October, November, and December, 1922, and January, February, and March, 1923.

Appellants further allege that, when the test was finally made, it showed a gasoline content of 12.4 gallons per 1,000 cubic feet, whereas, payments for gas made to appellants for the months of October, November, and December, 1922, and January, 1923, were based on a lower content, alleged that instead of the $581 which they have received for the gas, they should have been paid $1,121.33, under their agreement with Auers, and, further, that an accurate test of said lease would have shown it to produce gasoline with a content of 12.4 gallons per 1,000 cubic feet, and that appellee, by taking such gasoline, was obligated to pay appellants at that rate during the period of time above indicated.

The appellee filed a special plea in bar of appellants' action, that appellants had been doing business under an assumed name, to wit: The name of "Eighty-Four Syndicate"; that the only contract had between appellants and appellee was a division order made in the name of the "Eighty-Four Syndicate"; and that in all transactions in connection with said lease had by appellants and appellee, appellants were acting under an assumed name, to wit: The name of "Eighty-Four Syndicate"; that appellants had never filed the assumed name certificate required by chapter 73, Laws of the 37th Legislature (1921) page 142. In addition, appellee pleaded general and special exceptions, general denial, and denial under oath of the agency of Auers, and further, that it had made all payments for the casing-head gas taken by it.

The case was tried before a jury, and upon issues submitted to them by the trial court, they returned answers favorable to appellants' contentions. The trial court had taken under advisement, during the trial of the case, appellee's plea in bar, and sustained said plea and rendered judgment for appellee without reference to the verdict of the jury upon the issues so decided by them, and this judgment is now presented to us for review, This suit was originally styled "Eighty-Four Syndicate v. Chas. F. Noble Oil & Gas Company" and the parties hereto have agreed that, at all times mentioned in plaintiff's petition, the appellants were partners and operating under the same name and style of "Eighty-Four Syndicate."

The Assumed Name Act, passed by the Thirty-Seventh Legislature, is in words as follows:

"Sec. 1. No person or persons shall hereafter carry on or conduct or transact business in this state under any assumed name or under any designation, name, style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business unless such person or persons shall file in the office of the clerk of the county or counties in which such person or persons conduct, or transact or intend to conduct or transact such business, a certificate setting forth the name under which such business is, or is to be, conducted or transacted, and the true or real full name or names of the person or persons conducting or transacting the same, with the post office address or the addresses of said person or persons. Said certificate shall be executed and duly acknowledged by the person or persons so conducting or intending to conduct said business in the manner now provided for acknowledgment of conveyance of real estate.

"Sec. 2. Persons now owning or conducting such business under an assumed name or under any such designation referred to in section 1, shall file such certificate as hereinbefore prescribed, within thirty days after this act shall take effect, and persons hereinafter owning, conducting or transacting business aforesaid shall before commencing said business file such certificate in the manner hereinbefore prescribed.

"Sec. 3. Whenever there is a change in ownership of any business operated under any such assumed name as set out in section 1 hereof, the person or persons withdrawing from said business or disposing of their interest therein, shall file in the office of the clerk of the county or counties in which such business is being conducted and has a place or places of business, a certificate setting forth the fact of such withdrawal from or disposition of interest in such business; and until he has filed such certificate he shall remain liable for all debts incurred in the operation of said business, which certificate shall be executed and duly acknowledged by the person or persons so withdrawing from or selling their interest in said business in the manner now provided for acknowledgment of conveyance of real estate.

"Sec. 4. The several county clerks of this state shall keep an alphabetical index of all persons filing certificates, provided for herein, and for the indexing and filing of such certificates they shall receive a fee of one dollar. A copy of such certificates duly certified to by the county clerk in whose office the same shall be filed shall be presumptive evidence in all courts of law in this state of the facts therein contained.

"Sec. 5. This section shall in no way affect or apply to any corporation duly organized under the laws of this state or to any corporation organization under the laws of any other state and lawfully doing business in this state.

"Sec. 6. Any person or persons owning, carrying on or conducting or transacting business aforesaid, who shall fail to comply with the provisions of this act, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than twenty-five dollars nor...