Lewis v. Davis, 6218.

• Decision Date: 03 June 1946
• Docket Number: No. 6218.,6218.
• Citation: 195 S.W.2d 771
• Parties: LEWIS v. DAVIS.
• Court: Texas Court of Appeals

195 S.W.2d 771

LEWIS v. DAVIS.

No. 6218.

Court of Civil Appeals of Texas. Texarkana.

June 3, 1946.

Rehearing Denied July 11, 1946.

Appeal from District Court, Smith County; Otis T. Dunagan, Judge.

Suit by I. H. Lewis against C. C. Davis to declare the establishment of a partnership for the purpose of engaging in the oil, gas, and mineral business and of dealing in oil and gas leases and royalties and in mineral interests generally, for partnership accounting, and for other relief. From a judgment of dismissal, plaintiff appeals.

Affirmed.

E. P. Price, of Tyler, for appellant.

Lasseter, Spruiell, Lowry, Potter & Lasater, of Tyler, for appellee.

WILLIAMS, Justice.

The trial court sustained the special exception urged by C. D. Davis, defendant below, to the first amended original petition of I. H. Lewis, plaintiff below. Plaintiff declining to amend, the court dismissed the suit.

Such portion of the first amended original petition material to the point which questions the action of the trial court reads:

"That on or about the first day of August, 1938, the plaintiff and defendant associated themselves together for the purpose of engaging in the oil, gas and mineral business and for the purpose of acquiring, developing, operating, selling and dealing in oil and gas leases and royalties and mineral interests generally. The said plaintiff and the said defendant in virtue of said association being partners in the ownership of all leases, royalties and mineral interests acquired by them, or either of them, and in all commissions and other remuneration received by them, or either of them, in such business whether in the nature and form of commissions or otherwise and in whomsoever any such property and interests were taken or remunerations were received the plaintiff owning one-half interest and the defendant owning one-half interest therein.

"That during said period of time there were acquired by said parties, oil, gas and mineral leasehold interests and royalties and other mineral interests in and to land and properties situated in the counties of Franklin, Upshur, Camp, Panola, Smith, Morris, Marion, Hopkins, Cass, Wood, and other counties in the State of Texas. That attached hereto and made a part of this petition is a list of such properties so acquired by the defendant, and marked Exhibit "A"; that attached to this petition and marked Exhibit "B" is a list of all such properties acquired by the plaintiff. That whatever interest was acquired by or in the name of plaintiff and/or defendant * * * all such interest were and are jointly owned by the plaintiff and the defendant; that the defendant refuses to recognize the plaintiff's interest in said properties and is now threatening and attempting to deprive the plaintiff of his interest therein and appropriate same and the proceeds and benefits derived therefrom to his own use.

"Regardless of whether the term partners is applied to the relation of the parties under the facts alleged, one-half of the oil, gas and mineral interest of whatever nature and character that has been acquired by the defendant, C. D. Davis, during said period of time were acquired by him in trust for the plaintiff herein, under the aforesaid arrangement, to acquire oil, gas and mineral interest in lands.

"In the alternative, but only in the alternative * * * that if the plaintiff is not entitled to relief against the defendant under the issue of partnership as herein...