Eppenauer v. Hoffmann

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Eppenauer v. Hoffmann, 115 S.W.2d 478 (Tex. App. 1938)
• Decision Date: 04 March 1938
• Docket Number: No. 1710.,1710.
• Parties: EPPENAUER v. HOFFMANN et al.

115 S.W.2d 478

EPPENAUER v. HOFFMANN et al.

No. 1710.

Court of Civil Appeals of Texas. Eastland.

March 4, 1938.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Action by C. W. Hoffmann and another against A. R. Eppenauer to recover the purchase price of certain pipe line, rental therefor during certain period, and damages to pipe obtained from plaintiffs by defendant. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Turner, Seaberry & Springer, of Eastland, for appellant.

Sayles & Sayles, of Abilene, for appellees.

LESLIE, Chief Justice.

Hoffmann & Page sued A. R. Eppenauer to recover $695.70, etc., the agreed purchase price of 773 feet of 10-inch pipe line; $350 rental for the same, for a certain period of time; and $46.38 damages to some 8-inch pipe obtained from the plaintiffs by the defendant, etc.

The appellant, Eppenauer, filed his plea of privilege to be sued in Tom Green county. This was controverted and venue was sought to be retained in Eastland county under exception 5 to the general venue statute, article 1995, R.S.1925. The plea of privilege was passed to be tried with the case and was overruled. The judgment in the main cause, after allowing offset in favor of defendant, was for $542.08. Defendant appeals.

The case was tried before the court without a jury and is before this court on findings of fact and conclusions of law, as well as a statement of facts. The venue question is the first presented.

The plaintiffs, Hoffmann & Page, are designated in the written contract as the "first party" and Eppenauer the "second party." The contract forming the basis of this suit and venue plea states that the second party being desirous of obtaining from first party certain pipe in connection with the drilling of an oil well, the parties agree and covenant (in part) as follows:

"In the event of a dry hole or nonproducing well on the Shields estate well No. 1 of second party in Coleman County, Texas, said casing is to be withdrawn from said well at the expense of second party and racked either at the location of said well or near the tenant house on said farm, this point to be determined by first party.

"In the event that it may be necessary, either through choice of second party or as a result of inability to salvage, for any reason whatsoever, second party has the privilege and in such event does hereby bind and obligate itself to pay first party for any such casing either retained, lost or damaged for the full amount thereof based upon the following scale:" 90 cents per foot for 10-inch casing, 60 cents per foot for 8¼-inch casing, and 75 cents for 6 5/8 inch casing.

"It is likewise agreed that any pipe which may be withdrawn and found to be defective as a result of line cuts, damaged threads, or collars, or in a collapsed condition is to be paid for by second party in like manner and at the rates above prescribed, such payment to be made at the office of C. W. Hoffmann and K. F. Page at Eastland, Texas, within thirty days after the determination of such liability. * * *

"Second party is to proceed with the drilling of said well in a diligent and expeditious manner in order that said casing may be delivered back to first party with a minimum of delay.

"In consideration for which, the second party has upon this date assigned to first party, in full and complete payment for the use of said casing, the oil and gas lease covering seventy-five (75) acres of Mrs. Cornelia Cochran Lease, described as follows: * * * which assignment of oil and gas lease is accepted and acknowledged as full and complete payment for the use of said casing, but not for any damage or loss, which latter is provided for hereinabove."

It is the appellant's contention that the appellees, by their controverting affidavit, are seeking to hold the venue of this case in Eastland county on one ground, namely, that the provision of the contract, providing payment for the 10-inch casing, also provides for the payment of that amount in Eastland county, whereas that provision of the contract makes no such requirement and venue is therefore not governed by subdivision 5 of article 1995. In this contention, as to that particular provision, the appellant is correct, but there is another provision of the contract, relating to damaged threads, collars, etc., stipulating for the payment of such damages to be made in Eastland county, Tex., and appellees contend they sue for these items, rendering exception 5 applicable. In making the above contention, the appellant proceeds upon the "theory (appellees) do not sue for any damages to pipe * * *" stipulated for in other provisions of the contract. After a careful consideration of the pleadings and for reasons hereinafter stated, we conclude that the appellees do sue for the item of damage to the 8-inch pipe.

This conclusion, if correct, is determinative of any venue question presented by the appeal and is material upon other issues arising out of the trial on the merits. In this view it becomes unnecessary to determine whether the written contract construed as a whole provides for payment to the appellees in Eastland county for both the 10-inch casing and the damages to the 8-inch pipe, for certain it is, this latter item of damage ($46.38) sought to be recovered, constituting a part of the appellees' cause of action, and that amount unquestionably being payable in Eastland county, that fact fixed the venue in said county under said exception 5, and the following authorities: Middlebrook v. David Bradley Mfg. Co., 86 Tex. 706, 26 S.W. 935; Stevens v. Wilson, 120 Tex. 584, 39 S.W.2d 1088; Warner v. Gohlman, Lester & Co., Tex. Com.App., 298 S.W. 890, 891; C. & S. Sporting Goods Co. v. Brady Ind. School Dist., Tex.Civ.App., 54 S.W.2d 1033; 43 Tex.Jur. 771, §§ 51, 52; Wolcott v. Hall, Tex.Civ.App., 111 S.W.2d 1140.

We further state our reasons for so holding. Plaintiffs sued for this $46.38 item of damage, alleging with reference thereto the following:

"Plaintiffs further show to the court that thereafter and in due time and in accordance with said contract the defendant did return to plaintiffs said string of 8¼ inch casing, but that one twenty foot joint of said 8¼ inch casing, was damaged and made valueless, by the defendant as a result of line cuts and to plaintiffs' damage in the agreed sum of $18.00; and that 17 joints of said 8¼ inch casing was damaged by the defendant in that the threads on such casing and couplings were stripped and battered to such an extent that the same could not be used and it became necessary to so repair such casing by rethreading the same at and for the reasonable, usual and customary cost and charge of $24.30; and said defendant failed to return to plaintiffs two of said 8¼ casing couplings of the actual market value of $4.08, and for which damages to said casing by virtue of said line cuts and said damages to the threads and couplings the defendant became liable to plaintiffs in the total sum of $46.38."

It is true, the plaintiffs elsewhere in their pleadings prayed for judgment for $695.70, the amount to which they claimed they were entitled by reason of 10-inch casing not returned. But in that same connection, they prayed for "interest, costs of suit, and for such other and further relief, special and general, in law and in equity, that they may show themselves entitled to," etc.

When the contemplated well was completed for which the use of the casing was engaged, further use of the casing was permitted under a new arrangement between the parties hereafter to be noticed. Concerning the damages amounting to $46.38, and the reasonable value of the additional use or rent of the 10-inch casing, the plaintiffs alleged:

"That after the defendant [Eppenauer] had so completed his said well on or about June 1, 1934, he advised plaintiffs that he desired to retain the use of the 10 inch casing then situated in his said well at and on a rental basis and promised and agreed to pay the plaintiffs the reasonable and customary amount of rentals for the additional use, after the completion of said well, of such 10 inch casing. That said defendant has continued to so use said 10 inch casing and that the reasonable and customary rental value of said casing for and during said time was $350 and which became due and payable to plaintiffs in addition to the agreed value of said casing which became returnable to the plaintiffs on or about June, 1, 1934.

"In this connection plaintiffs further show to the court that on or about the 20th day of September 1934, plaintiffs and the defendant entered into an oral contract and agreement wherein and whereby it was agreed between said parties that the plaintiffs could use some of the defendant's waste gas from his said well in the drilling of a well by said plaintiffs on an adjoining lease and that thereafter the plaintiffs did use some of the defendant's waste gas for a total period of 55 days, and it was further contracted and agreed between such parties that the plaintiffs use of such gas was in reciprocation of and as an offset to the...