Condor Petroleum Co. v. Greene

• Decision Date: 26 June 1942
• Docket Number: No. 2255.,2255.
• Citation: 164 S.W.2d 713
• Parties: CONDOR PETROLEUM CO. v. GREENE.
• Court: Texas Court of Appeals

164 S.W.2d 713

CONDOR PETROLEUM CO. v. GREENE.

No. 2255.

Court of Civil Appeals of Texas. Eastland.

June 26, 1942.

Rehearing Denied September 18, 1942.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Suit by Ernest H. Greene against Condor Petroleum Company to recover commissions for services rendered by plaintiff in procuring the building of a refinery and the resulting sale of oil to such refinery by defendant. From a judgment for plaintiff, defendant appeals.

Judgment reversed and judgment rendered for defendant.

Wagstaff, Harwell, Douthit & Alvis, of Abilene, for appellant.

Ben L. Cox and Doss & Overshiner, all of Abilene, for appellee.

GRISSOM, Justice.

This is a suit by Ernest H. Greene against Condor Petroleum Company to recover commissions for services rendered by Greene in procuring the building of a refinery and the resulting sale of oil to that refinery by defendant. From a judgment for plaintiff, the defendant has appealed. (For the former record of this case in the appellate court, see Greene v. Condor Pet. Co. et al., Tex.Civ.App., 121 S.W.2d 381; Id., 135 Tex. 215, 140 S.W.2d 844.)

Defendant's first point is that the court erred in refusing to render judgment for it on its plea of limitation under the two-year statute. Plaintiff's original petition was filed October 13, 1936. Citation was issued October 13th and delivered to the sheriff on October 14th. Service of citation was delayed on plaintiff's instruction until December 31, 1936. Defendant contends the statute of limitation was not tolled until December 31, 1936. Plaintiff instructed the sheriff to serve the citation and the citation was served. This contention must be sustained. First State Bank & Trust Co. v. Ramirez, 133 Tex. 178, 126 S.W.2d 16, 18.

Plaintiff alleged defendant agreed to pay him a 10% commission on oil sold as a result of his efforts in procuring the building of a refinery which he caused to be built on defendant's lease, and the resulting sale of oil by defendant to the refinery. Plaintiff alleged that if defendant did not agree to pay him a 10% commission on such sale of oil it agreed to pay him a commission for his services in procuring the building of a refinery and the resulting sale of oil to it and that defendant was obligated and bound to pay him a reasonable commission which he alleged was 10% of the amount of the sales. Wherefore, plaintiff prayed judgment for a reasonable commission on said sales.

In the second count plaintiff alleged that if defendant did not expressly contract and agree to pay him a commission on the sale of oil that defendant requested plaintiff to perform valuable services for it; that he performed said services and was entitled to recover the reasonable value of his services.

If plaintiff was entitled to recover a commission on the sale of oil by defendant to the refinery, the amount of said commission was necessarily dependent upon the amount of oil sold and the price. The contract between defendant and the refinery did not provide for the taking by the refinery of any definite amount of oil. It provided only that the refinery would purchase from defendant not less than a certain fixed minimum of oil and that the price was to be the same as that fixed by certain major oil companies on the respective dates of the sales in certain counties. Plaintiff alleged appellant sold to the refinery "3947.46 barrels of oil for $2709.68 in December, 1934." The day or days in December 1934, on which said amount of oil was sold were not alleged, and if shown by the testimony said fact is not pointed out in the briefs. Plaintiff further alleged the amount of oil and the price obtained therefor which was sold by defendant to the refinery from January to November, inclusive, 1935. Plaintiff alleged there was no agreement as to when the commissions would be paid, but it was contemplated by the parties when the contract was made that said oil should be sold and that plaintiff was not entitled to a commission, nor could the amount be determined until the oil was sold by defendant to the refinery under the terms of their contract, which obligated the refinery to buy oil for a period of 12 months from November 1, 1934, and therefore commissions became due and payable on the first day of December, 1935. Alternatively, it was alleged defendant had a reasonable time after the sale of oil in which to pay plaintiff his commissions, and that six months after December 1, 1935, was a reasonable time in which to pay such commissions; that plaintiff demanded payment of his commissions on August 27, 1936, and payment was then refused. Plaintiff further alleged, alternatively, that the commissions were due at the end of 12 months from the beginning of said sales, or within a reasonable time thereafter; that under the general custom and usage of the oil trade existing in that vicinity at the time of the contract the buyer was to pay the seller on the 15th day of each succeeding month for the oil bought during the preceding month, and that plaintiff's commission on oil sold in December, 1934, became due and payable on January 15, 1935, and so on, on the 15th day of each month until December 1935. Evidence was introduced as to such custom. Both parties introduced evidence relative to what was a reasonable commission for the sale of the oil.

The case appears to have been tried upon the theory that if plaintiff was entitled to pay for procuring the building of the refinery and the resulting sale of oil by defendant to the refinery, that plaintiff was entitled either to a 10% commission (if the jury found an express agreement to pay such commission, as first alleged by plaintiff), or a reasonable commission for the sale of oil (as alternatively alleged by plaintiff). It is obvious plaintiff could neither allege nor prove a cause of action for commission on the sale of oil by defendant to the refinery until the amount of oil and the price to be paid therefor were determined by events happening subsequent to the making of the contract for the sale of oil.

"The general rule is that a right of action accrues whenever facts come into existence which give rise to a cause of action." 1 Tex.Jur. 632.

In American Nat. Ins. Co. v. Hicks, Tex. Com.App., 35 S.W.2d 128, 131, 75 A.L. R. 623, Hicks disappeared from his home on July 6, 1921, and his whereabouts were thereafter unknown. Suit was instituted August 18, 1928, by his wife on an insurance policy. Soon after the disappearance of Hicks, his wife presented to the insurance company such proof of his death as could then be made. The insurance company ignored such notice and proof of death. After Hicks had been absent for a period of seven years his wife again applied to the insurance company for blanks upon which to make proof of death. The company then waived the making of the proofs and denied all liability on the policy. The insurance company contended that if Mrs. Hicks ever had a cause of action it accrued more than four years prior to the filing of the suit; that, in March, 1923, Mrs. Hicks filed a suit against the insurance company involving the same subject-matter, which suit was dismissed in 1926 because Mrs. Hicks failed to comply with a court order to file a cost bond or affidavit in lieu thereof; that in said suit Mrs. Hicks alleged her husband was accidentally killed on July 6, 1921, and that Mrs. Hicks was estopped to deny that her cause of action accrued on that date, or immediately thereafter. The insurance company further alleged that Mrs. Hicks in 1922 filed suit against another insurance company on a policy covering the life of her husband, and in that suit alleged her husband met with accidental death in 1921; that said suit was tried in 1923 and resulted in a finding by the trial court that her husband died on July 6, 1921. Said cause was appealed and affirmed. On the trial of the suit filed August 18, 1928, the court found that Hicks died in July, 1921 and that all premiums due on the policy had been paid up to and including July, 1921. That his beneficiaries had within due time given proper notice of his death and furnished proof thereof to the defendant insurance company. These findings of fact were adopted by the court of civil appeals. The Supreme Court granted the application of the insurance company for a writ of error on an assignment which questioned the correctness of the conclusion of the court of civil appeals that Mrs. Hicks' cause of action was not barred by the statute of limitation of four years when she instituted her suit in 1928. That court held that if Art. 5541 were applicable, Mrs. Hicks' cause of action would not be barred until four years after the expiration of the seven year period relative to the presumption of death. The Supreme Court said it was the duty of Mrs. Hicks, within the time prescribed by the insurance policy, to furnish the company proof of the death of Mr. Hicks, "if, in fact, such proof was possible, by the use of reasonable means and due diligence." The court further said:

"Upon the other hand, if [Mrs. Hicks] could not possibly, by the use of reasonable means and due diligence, have procured the information necessary for her to have, in order to make due proof of the death of Archie Hicks, the law did not impose upon her, as a duty, the attempted doing of an impossible thing. According to the undisputed facts in this case, on this particular subject, until Archie Hicks had absented himself for seven years, successively, after July 6, 1921, the defendant in error, under the law, was without the means necessary for her to have in order to establish, as a fact, the death of Archie Hicks, and, being without such means, she could not, reasonably, have been expected to furnish the plaintiff in error with proof of the death of Archie Hicks, who was presumed to be alive until after the expiration of seven years from the date of his disappearance. Until the expiration of that date, under the...