Marston v. Hill, 2459.

• Decision Date: 06 November 1930
• Docket Number: No. 2459.,2459.
• Citation: 32 S.W.2d 520
• Parties: MARSTON v. HILL.
• Court: Texas Court of Appeals

32 S.W.2d 520

MARSTON v. HILL.

No. 2459.

Court of Civil Appeals of Texas. El Paso.

November 6, 1930.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Fred Marston against Edwin F. Hill. From an order sustaining a plea of privilege and changing the venue, plaintiff appeals.

Affirmed.

Lea, McGrady, Thomason & Edwards, of El Paso, for appellant.

Kemp & Nagle, of El Paso, for appellee.

PELPHREY, C. J.

This is an appeal from an order of the Forty-first district court of El Paso county, sustaining a plea of privilege and changing the venue to Presidio county.

This suit was instituted by appellant as plaintiff against appellee as defendant, the cause of action alleged to have arisen out of either a joint adventure or a partnership in which the parties were engaged in making a sale of the Presidio Mines located in Presidio county, Tex.

To better explain the facts surrounding the transaction out of which the suit arose, we will here quote the findings of fact as made by the trial court:

Findings of Fact.

"1. The following are filed as findings of fact in the sense that same are either facts or the evidence introduced was sufficient to raise an issue as to same being facts.

"2. I find that some time about the first of the year, 1926, Edwin F. Hill, who was financial agent of the Presidio Mining Company, had a verbal option from the owners of said mining company to purchase said property, exclusive of the inventory and supplies, etc for the sum of $180,000.00, and that he thereupon agreed with Fred Marston who was an employee of the Presidio Mining Company, that if they secured a purchaser for such mine that they, the said Hill and Marston, would divide the profits equally between themselves.

"3. That thereupon said Fred Marston endeavored to secure a purchaser by taking the matter up with some company with which he had formerly been connected, but he failed to secure such purchaser. Plaintiff also did other things to make the property more presentable.

"4. That during this time, O. J. Pinson came to Shafter as an employee of the Presidio Mining Company and the said Hill and plaintiff thereupon took up the matter of selling the mine with Pinson, and agreed that if Pinson should find a purchaser for the mine that they, the said Hill, Marston and Pinson would divide the profits equally among them.

"5. I find that the said Pinson thereupon got in touch with the American Metals Company, and said company thereupon at once became interested in the matter and agreed to send down to Shafter a representative to inspect the mine.

"6. That the said American Metals Company became interested in said mine and it was thereupon understood that the said Hill should get his option in writing from the Presidio Mining Company. That the said Presidio Mining Company did thereupon send to said Hill an option to purchase said mine, but that it became necessary to make some alterations in such option, which were agreed upon between said Hill, Pinson and Marston, the main purpose of which being to provide for the sale of said mine for $300,000.00 instead of $180,000.00, this being to enable the said Hill and others to make provision for their profits.

"7. I find that shortly prior to this time at the suggestion of Pinson it was agreed between Pinson, Hill and Marston that they should split the commissions or profits realized, equally between them.

"8. I further find that when the contract of option was drawn up between Presidio Mining Company, Edwin F. Hill and Van Dyne Howbert, Trustee, for the American Metals Company, it was provided that the price of said mine upon which an option was given should be $300,000.00, and that $180,000.00 of this money should be paid to the Presidio Mining Company, and $120,000.00 should be paid to Pinson and Hill as follows: $80,000.00 to Pinson and $40,000.00 to Hill. That Marston's name did not appear in the option contract and that it was understood and agreed between Marston, Hill and Pinson that the interest of said Marston should come out of the interest of Pinson as provided for in said option, said option being for a period of three years.

"9. I further find that some time during the summer of 1927, the said Marston went to Europe and remained there until the latter part of 1929.

"10. I further find that in November, 1927, the American Metals Company indicated that they would give $200,000.00 for said mine and that thereupon Pinson at the request of Hill and at his (Hill's) expense, came from California to Shafter, Texas, and examined said mine and advised Hill that if he could sell the mine for $200,000.00 to do so. That thereupon the said Pinson gave Hill an option to purchase any interest standing in Pinson's name for the sum of $14,000.00, which sum Hill agreed to pay in the event he could sell the mine for $200,000.00.

"11. I find that on February 2, 1928, and during the life of said option so given by Pinson to Hill, that said mine was sold to the American Metals Company for $200,000.00, the sale being consummated at the State National Bank of El Paso, to which bank the said money was paid on that date, and the same was disbursed as follows: $14,000.00 was transmitted to C. J. Pinson in California, by the State National Bank at the direction of Pinson, with the consent of defendant, and afterwards the said Pinson remitted one-half thereof, less $50.00 expense item, to the plaintiff. That on February 2, 1928, at the State National Bank there was credited to or remitted to the Presidio Mining Company from said $200,000.00, $166,950.00, and at the same time and place under the direction of the defendant there was credited to the account of defendant's wife in the State National Bank the remainder of said $200,000.00 being made up of $6,000, and the further sum of $13,050.00, the latter item being discount on the $180,000.00 up to the 15th day of April, 1929, at six per cent. per annum in accordance with the letter from the Presidio Mining Company to said bank read in evidence of date January 19, 1928.

"12. I find that all times covered by this transaction, at the time of the institution of this suit, and at the present time, the said Edwin F. Hill has been a resident of Presidio County, Texas, and not a resident of El Paso County, Texas.

"13. I find that the question of whether or not Marston was entitled to participate in the six per cent. discount allowed by the Presidio Mining Company above referred to, was an issuable question, but I further find that if he was so entitled to participate, it was not in any specific portion of said fund or for any interest in said fund but the same merely became an obligation if in fact there was an obligation, on the part of said Hill to pay to said Marston one-third of said $13,050.00.

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