Fisher County Pipe Line Co. v. Snowden & McSweeney Co.

Decision Date04 October 1940
Docket NumberNo. 2040.,2040.
Citation143 S.W.2d 675
PartiesFISHER COUNTY PIPE LINE CO. v. SNOWDEN & McSWEENEY CO.
CourtTexas Court of Appeals

Appeal from District Court, 104th District, Taylor County; W. R. Chapman, Judge.

Suit by the Snowden & McSweeney Company against the Fisher County Pipe Line Company to recover amount allegedly due for oil delivered to defendant by plaintiff. From judgment for plaintiff for $601.31, defendant appeals.

Affirmed.

Letcher D. King, of Abilene, for appellant.

Scarborough & Ely, of Abilene, for appellee.

GRISSOM, Justice.

Plaintiff, Snowden & McSweeney Company, recovered judgment against defendant, Fisher County Pipe Line Company, for $601.31. Defendant has appealed.

Plaintiff's original petition, omitting formal parts and allegations that both plaintiff and defendant were corporations and allegations as to their residence, was, in substance, as follows: That defendant built its pipe line into the territory where plaintiff owned some leases; that plaintiff gave defendant a pipe line connection and delivered oil to defendant from certain leases. Paragraph three is as follows: "This plaintiff would further show that this plaintiff discontinued making its oil runs to said pipe line and demanded payment for the oil already delivered to said Fisher County Pipeline Company and made demand upon said Fisher County Pipeline Company for the value of the oil already delivered. This plaintiff would show that three-fourths of the seven-eighths delivered to the defendant was owned unconditionally by this plaintiff and that the agreed price therefor made the total amount due for the oil so received to be the sum of $601.31, which though often requested the defendant herein has failed and refused to pay and still fails and refuses to pay, to the plaintiff's damage in the sum of $601.31, for which it here sues."

Wherefore plaintiff prayed judgment for its "debt", etc. Defendant filed a plea in abatement and, subject thereto, an answer consisting, among other things, of a general demurrer and allegations as follows: "That plaintiff and defendant entered into a written contract and agreement on or about the tenth of August, 1938, under the terms of which contract the plaintiff agreed to sell and the defendant agreed to purchase certain crude oil, which was being produced by plaintiff from its Sybil Howard Lease and Morrow Lease, both of said leases being located in the Rotal Oil Field, Fisher County, Texas; for all of which oil the defendant agreed to pay to the plaintiff herein the posted price of said crude oil delivered to it by the plaintiff at said above named leases, at the posted price for said crude oil as posted in that area, less the sum of ten cents per barrel; that the defendant did thereafter purchase said crude oil from the plaintiff which oil was produced from the above named leases."

There followed allegations to the effect that said written contract provided that before defendant would be obligated to pay for the oil delivered to it plaintiff would furnish an abstract "or other evidence of title" for defendant's examination so that defendant might determine whether or not plaintiff had title to the oil sold. That defendant had demanded abstracts and plaintiff had failed to furnish them. These were substantially the same allegations as contained in defendant's plea in abatement. Plaintiff answered by supplemental petition in which it alleged plaintiff and defendant entered into a contract whereby defendant agreed to buy the oil produced from plaintiff's leases and that defendant had waived any right it might have had to demand abstracts and had advised plaintiff that it did not desire to examine abstracts "since oil had been sold to other pipe lines prior to the time that the defendant started buying said oil and that since the requirements made by the other pipe line companies had been met, that this requirement would not be insisted on and the same were thereby expressly waived."

No ruling was had upon defendant's demurrer. The plea in abatement was overruled. The trial was to the court. At defendant's request the court filed findings of fact and conclusions of law, in part, as follows: (2) That plaintiff offered to satisfy defendant as to its title to the oil delivered, but defendant waived any requirement by agreeing to accept the division orders previously accepted by Onyx Refining Company. (3) That plaintiff delivered to defendant 964.51 barrels of oil at an agreed price of 95¢ per barrel. As its conclusions of law the court found, among other things, that defendant waived requirements relative to furnishing abstracts, and defendant was indebted to plaintiff in the sum of $601.30.

Only one witness testified. She testified that in June, 1938, arrangements were made with defendant for delivery of oil to it. That under the agreement defendant was to pay plaintiff for the oil delivered. That there was an agreement as to the price of the oil. That plaintiff owned three-fourths of seven-eighths of the oil delivered; that the amount of money now due plaintiff for the three-fourths of seven-eighths of the oil delivered was $601.31. Plaintiff introduced defendant's crude oil "purchase" tickets delivered by defendant to plaintiff showing delivery of 478.57 barrels of oil on June 20, 1938, and 485.94 barrels of oil on June 27, 1938. Relative thereto the witness further testified:

"Q. Did you have an agreed price on the oil? A. Yes.

"Q. From the figures you have there, of the amount furnished you by the Fisher County Pipeline Company, please state whether or not 3/4 ths of the 7/8 ths amounted to $601.30? A. Yes.

* * *

"Q. Have you yourself figured that, Mrs. Cummings? A. Yes.

"Q. Give us the method by which you arrived at it. A. The $601.30 is arrived at, by taking 3/4 ths of the 7/8 ths of these two figures. Do you wish me to give that?

"Q. Yes. A. 485.94 barrels, and 478.57 barrels.

"Q. Does that show the barrels taken from the two leases and delivered to the Fisher County Pipeline Company? A. Yes sir. And of course 1/8 th goes to the royalty owner, and 1/4 th of the remaining 7/8 ths was due the people to whom we owed the oil payments.

"Q. You are not suing for that in this case? A. No. And the remaining 3/4 ths of the 7/8 ths is arrived at by multiplying by 95¢ a barrel.

"Q. And that makes the $601.30? A. Yes Sir."

Plaintiff introduced a letter dated July 26, 1938, in which defendant advised plaintiff that defendant would not take any future oil runs from plaintiff's leases as it was withdrawing from the field. The letter contains the following statement: "In view of the fact that there is such a small amount of money involved in this transaction I have decided to forego the examination of your titles in order to determine who the proceeds from the sale of this oil should be paid to * * *." Mrs. Cummings testified that at the time the oil was delivered to defendant it agreed to accept the division order given by plaintiff to Onyx Refining Company, to whom plaintiff had sold oil from said leases prior to the time of the sale to defendant. She testified that Onyx Refining Company had accepted oil from the leases; that plaintiff had complied with all their requirements; that defendant's representative advised "* * * that he did not wish to examine the abstracts but would accept the Onyx Refining Company division order to make payments." On August 15, 1938, plaintiff mailed to defendant division orders containing the following provision: "Satisfactory abstract or other evidence of title will be furnished you as of the effective date hereof, and at any time thereafter when demanded by you." Plaintiff did not furnish abstracts of title in compliance with defendant's demand of January 24, 1939. Relative to this demand the witness testified:

"Q. State whether or not that's the first time any demand had been made on you to furnish abstracts of title? A. It was.

"Q. How long had operations out there been discontinued? A. From June 28th, 1938 to January 24th, 1939."

The witness testified that she furnished defendant with copies of the division orders executed by plaintiff to Onyx Refining Company, and that defendant agreed to accept them.

Relative to the waiver the witness further testified:

"Q. All right. In addition to this correspondence that you have, what oral conversations or dealings did you have with Mr. King, as to furnishing him abstracts of title? A. I talked to Mr. King over long distance, and he told me very specifically that inasmuch as the pipe line was terminated, it would be of no further use, and he didn't care to go to the expense of examining the abstracts, and he would accept the title as given him by us, and we did that. We co-operated with him in every way.

* * *

"Q. At that time, did he make any demand for title opinions or abstracts? A. He didn't.

"Q. State whether or not he specifically said anything about it? A. He did. He said he didn't wish them.

"Q. Did you rely upon that? A. Yes sir.

"Q. Is that why you didn't furnish them? A. Yes sir.

* * *

"Q. What was the conversation that you had with Mr. King, about the Division Orders that had already been furnished the Onyx Refining Company? A. Mr. King told me, that inasmuch as he was not going to continue his operations in that locality, and being unable to take any more oil, that he would take the Division Orders that had been furnished to the Onyx Refining Company, in order to make payment.

* * *

"Q. Mrs. Cummings, I will show you plaintiff's exhibits `EE' and `FF', and ask you if those instruments are the Division Orders that you were talking about, obtained from the Onyx Refining Company, or that you furnished the Onyx Refining Company? A. Yes sir.

"Q. Did you have any discussion with Mr. King about these particular Division Orders? A. Copies of these were the ones he agreed to accept.

"Q. To accept them. * * * What reason, if any, did he give you for accepting them? A. ...

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