Head v. Wollmann
| Decision Date | 21 January 1960 |
| Docket Number | No. 17581.,17581. |
| Citation | 272 F.2d 298 |
| Parties | Homer S. HEAD, Appellant, v. A. A. WOLLMANN, Jr., Appellee. A. A. WOLLMANN, Jr., Appellant, v. Homer S. HEAD, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James P. Bailey, Bryan, Suhr & Bering, Houston, Tex., for appellant.
C. O. Ryan, Thomas M. Ryan, Houston, Tex., Kelley & Ryan, Houston, Tex., of counsel, for appellee.
Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges.
This action was brought by the appellee, Wollmann, against the appellant, Head, and also against one Adler Edmiston upon a promissory note in the principal amount of $50,000 signed "Adler Edmiston, Trustee." The complaint alleged that in executing and delivering the note, Edmiston acted on his own behalf and as agent for Head and also for one Gordon B. Butterfield, who was not sued. The case was tried to the court without a jury. At the conclusion of the evidence, the plaintiff, with leave of the court, filed an amended complaint to conform to the evidence.1 The amended complaint counted on the promissory note and also on certain written instruments or agreements executed contemporaneously with the note.
and against Head, "in the sum of Fifty Thousand Dollars ($50,000.00), together with interest thereon at the rate of six per cent (6%) per annum from the date of this judgment." It was further provided that the total recovery against both defendants should not exceed the amount of the judgment rendered against Edmiston.
Head alone appealed. Wollmann cross-appealed, but only insofar as the judgment against Head failed to award Wollmann "interest on the sum of Fifty Thousand Dollars ($50,000.00) at the rate of two per cent (2%) per annum from March 10, 1953 until the date of the judgment, plus ten per cent (10%) of the total amount due as attorneys' fees."
Wollmann was a dentist by profession, who lived in Huron, South Dakota. He had known Butterfield, a Montana resident, for many years and had engaged with Butterfield in previous ventures seeking the discovery and production of oil and gas. Edmiston and Head were citizens of Houston, Texas, who also prospected for and promoted the production of oil and gas.
Butterfield and Edmiston owned a one-eighth overriding royalty interest in a large acreage in San Patricio County, Texas, leased to D and E Drilling Company. That Company had completed a producing well on a part of that acreage and had drilled a second well on another part to almost the same depth when it had decided to plug the second well. It had set cement in the surface pipe and had the well half plugged and the rig torn halfway down when Edmiston induced a Mr. James L. Minahan, a consulting geological engineer of Fort Worth, Texas, to go with him to check "the Schlumberger electrical log services core analysis" with respect to this second well.
On March 6 or 7th, 1953, Minahan gave his opinion that there was a fifty-fifty chance of completing the well as a producing well. D and E was unwilling to spend further money on the well, and the lease on that part of the acreage would terminate shortly unless further efforts were made to bring the well into production. D and E offered to assign the lease to Edmiston, reserving a fractional three-fourths working interest in itself, if Edmiston would secure the funds necessary and proceed with cleaning and testing operations with a view to securing production. Wolf Drilling Company, which had drilled the well, estimated that $50,000 would be enough to attempt to complete the well as a producer. To keep from losing the rig, Edmiston arranged for the drillers to wait at an expense of $600 a day. Edmiston and Butterfield offered interests in the venture to Minahan and to Head. The four (Edmiston, Butterfield, Minahan, and Head) had several discussions among themselves about raising the necessary $50,000, and Butterfield suggested that he would contact Dr. Wollmann and attempt to secure the funds from him.
Dr. Wollmann and his wife were then at a health resort in Mineral Wells, Texas, and Butterfield met Wollmann there at the Baker Hotel.2 After they had discussed the venture, Butterfield wrote by pen and ink on hotel stationery a letter proposal (hereafter referred to as Plaintiff's Exhibit No. 1) as follows:
The next day, Dr. Wollmann, accompanied by his wife, drove to Fort Worth to talk with Mr. Minahan. Minahan testified that he made it clear to Dr. Wollmann there in Fort Worth that he was no longer personally interested in the transaction "because I wouldn't put my money in it."
The following day, March 9, Dr. Wollmann, still accompanied by his wife, drove to Houston. Mr. Edmiston met them at the hotel clerk's desk as they registered and made arrangements for Dr. Wollmann to discuss the matter on the following day at Mr. Head's office in the Gulf Building in Houston.
At that meeting on March 10, Mr. Edmiston first handed to Dr. Wollmann a note from Mr. Head (hereafter referred to as Plaintiff's Exhibit No. 2) as follows:
Dr. Wollmann testified that he showed Mr. Edmiston the letter proposal which he had received from Edmiston (Plaintiff's Exhibit No. 1), and that he used that as a guide in arriving at an agreement. Edmiston testified that he never did see that letter proposal. In any event, Dr. Wollmann and Mr. Edmiston, without the benefit of legal advice, undertook to reach an agreement, which Mr. Head's secretary typed, as follows (Plaintiff's Exhibit No. 3):
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Hayes v. White, 91
...426, 163 S.W.2d 380 (1942); Weatherby v. Townes, 42 Tex. 83 (1875); Sinclair v. Weekes, 41 S.W. 107 (Tex.Civ.App.1897); Head v. Wollmann, 5 Cir., 272 F.2d 298 (1959); Harper v. First State Bank, 3 S.W.2d 552 (Tex.Civ.App.1928, wr. ref.); Banks v. Mixon, 179 S.W. 690 (Tex.Civ.App.1915); Loug......