Cockburn v. Less

• Decision Date: 20 March 1953
• Docket Number: No. 14621,14621
• Citation: 257 S.W.2d 470
• Parties: COCKBURN v. LESS et al.
• Court: Texas Court of Appeals

Page 470

257 S.W.2d 470

COCKBURN v. LESS et al.

No. 14621.

Court of Civil Appeals of Texas, Dallas.

March 20, 1953.

Rehearing Denied April 17, 1953.

J. L. Webb, Houston, and Shank, Dedman & Payne, Dallas, for appellant.

Carrington, Gowan, Johnson & Walker, Dallas, for appellees.

CRAMER, Justice.

This is a duly perfected appeal from an order overruling a plea of privilege. John R. Less and Mercantile Petroleum, Inc., suit against H. C. Cockburn, a resident of Harris County, alleging that the appellant had, by fraudulent representations made in Dallas County, induced Less and Mercantile Petroleum to purchase from Cockburn the gas and condensate rights under certain leases and properties in Wharton County, Texas; and sought the recovery of damages both under Art. 4004, R.C.S., and in the general sense. The plea to be sued in Harris County was seasonably filed and controverted on the ground that Cockburn had committed a fraud on the plaintiffs in Dallas County, Texas, within the meaning of exception 7, Art. 1995, R.C.S., Vernon's Ann.Civ.St. art. 1995, subd. 7. On the hearing, the plea of privilege was overruled. Appellant on this duly perfected appeal briefs three points of error.

Appellant's first two points are briefed together and they will be so considered. In substance they assert error in overruling the plea of privilege (1) since there was no competent evidence that appellees, or either of them, have been damaged by the alleged fraudulent representations, and (2) appellees have failed to establish by competent evidence a meritorious cause of action against appellant. These points are countered that the evidence sustained the court's implied finding that appellees sustained substantial damages by virtue of fraudulent representations. Appellant's counterpoint to this was that appellees had failed to establish 'injury and/or damages resulting from the alleged transaction.' Only two witnesses testified on the hearing from which we will quote the substance of those portions we deem material here:

John R. Less, an oil driller, producer, and purchaser and seller of leases and oil properties, testified he bought from Cockburn the gas properties located in the Pracifka Field in Wharton County, Texas, about January 1952, paying therefor, about Dec. 27 or 28, to Lee Stone, Cockburn's agent, a total of $417,500. In October 1951 he learned from Ed Aycock in Dallas the properties were for sale. Aycock gave him the production figures, the estimated reserves (from a report furnished by Cockburn), approximate production pay-out, and the asking price for the property; that there was in the vicinity of 1200 acres with five gas wells producing from three complete sands classed as 'A', 'B', and 'C' sands in the report. Less talked with Mr. Cockburn but twice and then only casually. Cockburn told him Stone had full authority to go ahead and make any kind of deal; that Stone when he came to Dallas represented there were five producing wells which had been producing; were producing; that the approximate amount of income and revenue from them would be based on about 150 million cu. ft. of gas; that on certain months they hadn't run that amount of gas because the United Pipe line wouldn't take it; that the allowable on it, as presented to the Railroad Commission, was a little over 200 million cu. ft. a month; that neither he nor any of his representatives ran a flow test on the wells in the field, but he relied on the information given him by Cockburn and his representative, and he did not learn before the sale was completed in late December that any of the wells were not producing. Stone had said that the J. W. Pracifka gas well 'needed a little cleaning out; that it had sanded up, which it did periodically, and which was a very minor factor in the deal. In fact, part of the consideration-I mean, it wasn't just an asking and paid-for price; they made certain allowances in the purchase price of the property to take care of that particular condition. Q. Was anything said about the water condition in the Wharton Bank & Trust well No. 2? A. They said it was just making a very little water, and it would take minor remedial work to fix it and squeeze it off, and it had never been attempted before. And that was taken into consideration also.' Nothing was said to him to indicate that any of the wells were not in production in November and December 1951; they said all wells were producing. They took him over the operations January 1, 1952. After the deal was closed he went down to the properties and found that only two wells were operating and that three had not been producing; also found that they had attempted major remedial work on the properties unsuccessfully; that Mr. Matthews called him to come down there immediately when he went to work for him to explain the situation. Less testified: 'Q. Now, did you then promptly notify Mr. Cockburn of your findings? A. That was one of the few times-I went immediately to his office and confronted him, with Mr. Stone and Mr. Cockburn's superintendent, confronted him with this information that the wells were not producing and that they had attempted this major remedial work; and they said they hadn't attempted any major remedial work, and that was all there was to it.' He testified further that the average monthly production after January up to the most recent month was in the vicinity of 100 million a month and that they had to cut that down because two wells wouldn't produce it-that it was an excessive rate; that in deciding what he was willing to pay for the properties, he did so on the basis of five wells, with a 150 million cu. ft. monthly production average plus the reserves under the five wells in the three sands (A, B, and C). With the two wells operating producing only from one sand, the other two sands were not producing, they couldn't possibly produce more; that with only one sand producing, he wouldn't have wanted to buy the properties, but if he had bought them he wouldn't have given 'over possibly anywhere from thirty or forty or forty-five per cent of what the total price was.'

On cross-examination he stated that Mr. Cockburn lived in Houston, Texas, and had his office there. He met him on three occasions, the first time in his office in December 1951, when he, his son, and Mr Stone and possibly Mr. Aycock, were present; later, the same month, in Houston, and again, after the deal was closed. He had never before been on a trade in which Aycock was involved. Aycock first talked with him in October 1951 in Dallas, over the phone; he then went to his office in the Mercantile Securities Building. Mr. Shugart, engineer, and Don-E. D. Turner-were present; Shugart and Turner were interested in the deal. They first took him to Aycock. Aycock gave Less the information as to what the production was and what the income was. He said that there were five wells involved that were producing 150 million cu. ft. a month and they were bringing in a gross income of $10,500 a month and that the deal was based on a sixty-month pay-off. He figured 150 million cu. ft. at 7cents. He submitted a report and maps showing the property. The report was an evaluation report that had been made for Mr. Cockburn. They had several meetings; Stone and Less were present at each meeting. The first meeting was the first part of December 1951; Less went to Houston and Wharton with Stone; looked over the properties. Less, Stone, Hubert Johnson and Duvall Williams, President of Mercantile Petroleum, Inc., were present at the closing. He had met Mr. Finley; Mr. Stone had introduced them the first trip he made to the property. The introduction was one meeting that had passed between them. Next time he saw Finley was in January when he went to Cockburn's office to advise him that he had found out about the remedial work he had attempted on the wells.

L. B. Matthews testified, material here, that he worked for H. C. Cockburn Oil Company prior to January 1, 1952; had gone to work for him January 15, 1950; after January 1, 1952 he worked for Mr. Less. His duties with Cockburn were running the gas system, distributing gas and looking after the gas wells, working them over, and things like that. He drilled all the wells and worked on three of them when they were worked over. The Pracifka well was worked over, it seemed to him, in July 1951-'We just washed around and cleaned the hole out and went right back and set as before.' The well had been off production approximately three months before, it did not go back on production after the cleaning job,-has not been on production since-was not on production in October 1951-and it had not been on production as of the date of the trial. The reason was that it was 'Depleted, I suppose. It seems.' He further testified that Wharton Bank & Trust Company well No. 2 had been off production prior to the latter part of June 1951 for a short while; 'In the neighborhood of two months, maybe three months.' He took part in the work-over on the wells; they 'block-squeezed it, squeezed the well, cleaned it out, reshot it, and tried for production.' They got no production; it has not produced at any time since June 1951. They moved from that well to the Blayvalt well and block-squeezed it; it had been off production about two or three months; they did not succeed in getting it on production as a result of this work and it hasn't been on production since. Mr. J. Finley from Cockburn's office worked with him on these re-working jobs. He thought Finley was field superintendent or district super-intendent for Cockburn. He never did talk to Mr. Less about the properties prior to January 1, 1952. The approximate production since January 1952 has been 80 to 90 million from the Winn No. 1 and Wharton Bank & Trust No. 1. On cross-examination he testified in substance that he was lease man, took care of the wells, lived on the property; the work-over job he did was in June or July 1951; seemed...