Champion v. D'Yarmett

• Decision Date: 09 March 1927
• Docket Number: (No 2791.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 293 S.W. 587
• Parties: CHAMPION v. D'YARMETT.
• Court: Texas Court of Appeals

Page 587

293 S.W. 587

CHAMPION v. D'YARMETT.

(No 2791.)^*

Court of Civil Appeals of Texas. Amarillo.

March 9, 1927.

Rehearing Denied April 6, 1927.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by E. C. D'Yarmett against W. H. Champion. Judgment for plaintiff, and defendant appeals. Affirmed.

Kenley, Dawson & Holliday, of Wichita Falls, for appellant.

McDonald & Anderson, of Wichita Falls, for appellee.

RANDOLPH, J.

The parties will be designated as in the trial court, in which court the appellee was the plaintiff and the appellant was defendant.

The plaintiff filed this suit to recover the amount of an alleged account, duly itemized, in the sum of $4,421.82. The basis of the cause of action was a written contract between the parties, dated June 7, 1923, which contract is in words as follows:

"This contract and agreement made and entered into by and between E. C. D'Yarmett, party of the first part, and W. H. Champion, party of the second part, witnesseth:

"That, whereas, E. C. D'Yarmett has made certain surveys and leased certain tracts of land in the vicinity of Charlie, Clay county, Tex., and has agreed to drill a test well on said leases to a depth of 2,000 feet unless oil or gas is found in paying quantities at a lesser depth; and

"Whereas, certain landowners have placed their leases in the City National Bank, with instructions that said leases be turned over to E. C. D'Yarmett upon his beginning said test well; and

"Whereas, said W. H. Champion, is the owner of a complete rotary drilling outfit and is equipped to drill said test well; and

"Whereas, both E. C. D'Yarmett and W. H. Champion are desirous of joining their efforts with a view to drilling said test well, to securing additional leases, and in all things working to the mutual advantage and benefit of each other, therefore this contract:

"It is hereby mutually agreed by E. C. D'Yarmett and W. H. Champion that all leases and titles to leases held by each or either of them or by any one for the benefit of either of them, whether in whole or in part, any such interests shall be held for the mutual and equal benefit of both E. C. D'Yarmett and W. H. Champion.

"It is understood and agreed that there are certain interests to be given to Glen D. Peeler and Mr. Smith for services rendered in securing the leases, and that said interests shall be paid out of the general funds or by giving them certificates of interest or leases.

"W. H. Champion agrees to furnish his rotary drilling outfit and to supervise the drilling of the well to the end that same will be carefully drilled, each formation carefully tested and log and that accurate reports shall be made each day that drilling is done.

"Both parties hereto agree to share alike all expenses and obligations incurred through the drilling of said test well and to likewise share all profits arising from all sales of acreage and interests.

"It is agreed that 100 acres shall be set aside with the well, and that `oil lease interest certificates' shall be issued and used for discharging various obligations and sold for raising funds for carrying on the work. The title to the 100 acres shall remain in the name of E. C. D'Yarmett until the completion of the well, but both Champion and D'Yarmett shall be bound equally for carrying out the obligations in the contract and each shall share equally all receipts from the sale of certificates and shall divide equally any remaining interest after the well has been drilled and paid for. This contract shall apply only to leases and operations near the town of Charlie, Texas, and shall be binding upon the heirs, successors and assigns to the parties hereto.

                "Witness our hands this the 7th day of June
                A. D. 1923.               E. C. D'Yarmett
                                         "W. H. Champion."
                

The plaintiff alleged payment of various sums of money by him in the operation under the contract, and the evidence sustains his allegations.

The case having been submitted to a jury on special issues and answers returned by them, the trial court rendered a judgment in favor of the plaintiff, and defendant has appealed.

Defendant's first proposition presents error as follows:

"Where it appears from the plaintiff's petition and from the contract sued on that the plaintiff and defendant, by said contract, associated themselves together as partners, and that the purpose of the suit is to enforce contribution from the defendant for advances made by the plaintiff for the partnership business, but where plaintiff's said petition does not allege that the partnership has been wound up or that there has been an accounting between the partners, and does not pray for the winding up and accounting of the partnership, the petition is fatally defective, and is subject to general demurrer."

The plaintiff replies to this proposition that a party to a joint adventure may maintain an action at law against his coadventurer to recover advances and to enforce contribution for a proportion of the expenses thereof.

The question presented is whether or not the contract between the parties creates a partnership or simply evidences a joint adventure. If such contract evidences a partnership, then the defendant's proposition should be sustained, but, if it provides only for a joint adventure, this suit was properly brought.

In this case the parties entered into a contract and joined in the one undertaking, that is, to drill a test well for oil and gas, each to be liable for one-half of the expenses and to share equally in the profits. It is true that the purpose of this test well was to enhance the value of certain leases, and the contract also provided for securing additional leases, but these last-named provisions were only incidental to, and dependent upon the result of the drilling of the test well.

In 33 Corpus Juris, p. 841, it is said:

"A joint adventure has been aptly defined as `a special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation.'"

As approving this definition, see also, Peck v. Powell (Tex. Civ. App.) 259 S. W. 460; Griffin v. Reilly (Tex. Civ. App.) 275 S. W. 242.

Making a distinction between partners and joint adventurers, 33 Corpus Juris, pp. 841 and 842, says:

"A joint adventure as a legal concept is of comparative recent origin. It is purely the creature of our American courts. At common law an enterprise of a limited character, such as is now called a joint adventure, was regarded in law as merely an informal kind of partnership, and the courts made no attempt to distinguish the one from the other. Such is still the case in England and in Canada, but in the United States the courts, about the middle of the last century, began to find it convenient to draw a distinction between them, and hence there is gradually building up a body of American law applicable to the relation...