Mummert v. Stekoll Drilling Co.

• Citation: 352 S.W.2d 526
• Decision Date: 10 November 1961
• Docket Number: No. 15929,15929
• Parties: Harry MUMMERT, Appellant, v. STEKOLL DRILLING COMPANY et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 526

352 S.W.2d 526

Harry MUMMERT, Appellant, v. STEKOLL DRILLING COMPANY et al., Appellees.

No. 15929.

Court of Civil Appeals of Texas, Dallas.

Nov. 10, 1961.

Rehearing Denied Dec. 15, 1961.

Martin, Moore & Tackett, Arthur Lee Moore, Fort Worth, for appellant.

Turner White, Atwood, Meer & Francis, and Dean Carlton, Dallas, for appellees.

DIXON, Chief Justice.

Appellant, Harry mummert, brought suit against Stekoll Drilling Company and others praying for judgment fully vesting in him a 2% overriding royalty in four described oil and gas leases acquired by one of appellees. The suis is based on a written contract.

Appellees by way of defense assert that the contract is merely an agreement to pay appellant commissions as a real estate broker and dealer, and that appellant is not entitled to recover judgment because at all times material hereto he had neither a valid Texas securities license nor a valid real estate dealer's or broker's license. Art. 600a, Secs. 12-20, Vernon's Ann.Civ.St., and Art. 6573a, Sec. 3, V.A.C.S.

In reply to the above asserted defense appellant alleges in his petition and his first three points on appeal that under the terms of the contract his status was that of a joint adventurer with appellees, therefore he is not barred from recovery because he did not have a license as a real estate or a securities broker.

Appellant has appealed from a summary judgment in favor of appellees that appellant take nothing.

It is well settled that neither the real estate brokers' licensing Act nor the securities brokers' licensing Act applies to joint adventurers and transactions between joint adventurers. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 709, 79 A.L.R.2d 1011; Gill v. Smith, Tex.Civ.App., 233 S.W.2d 223, 227. The question then is this: Did the written contract constitute appellant and appellees joint adventurers, as claimed by appellant.

The written contract consists of a letter signed by Marion H. Stekoll and accepted and agreed to in writing by appellant Mummert. In his amended petition appellant alleges that Marion H. Stekoll was acting for himself and for the use and benefit of all other appellees.

Material portions of the written contract are as follows:

'You represent to Stekoll Drilling Company that you are an experienced land man in the oil and gas industry familiar with the practices of the oil and gas industry and the acquisition of oil, gas and mineral leases.

'Your services are engaged by Stekoll Drilling Company for the purpose herein set forth, and you are acting in an independent capacity in performing these services and not as an agent and employe of Stekoll Drilling Company. You agree to attempt to negotiate for the purchase of oil and/or gas leases upon lands located in the United States and elsewhere which are either producing oil and gas or which are considered proven or semi-proven properties. You shall particularly attempt to locate leases which if producing are capable of being developed by additional drilling thereon. You shall submit all prospective deals to the Company and shall furnish the Company with current reports with respect to your activities, the names of the persons with whom you have been negotiating and all such other information which shall come into your possession which will enable the Company to arrive at sound decisions with respect to the material submitted.

'You shall not have authority, until such time as ever at which specific authority may be conferred upon you by writing, to bind Stekoll Drilling Company to purchase any lease or to expend any monies whatsoever for any purpose, or shall you have any authority to make any contracts or undertakings on its behalf without prior approval of the Company.

'You shall not be required to devote all of your time to the services mentioned, but it is expected that you will devote approximately 85 to 90 per cent of your time thereto. You shall not purchase for your account any lease without first having submitted same to the Company, and given to the Company the first right of purchase and receive permission from it to purchase same.

'You shall receive a fee of $1,000 per month in the nature of a retainer, effective as of July 1, 1958, for a period of one year from July 1, 1958 ending June 30, 1959; provided, however, that you may at any time within said oneyear period at your option terminate this contract upon thirty days written notice to Stekoll Drilling Company. It is further understood that if you do not perform your services diligently in attempting to find leases satisfactory for purchase by Stekoll Drilling Company, then and in such event Stekoll Drilling Company shall have the right to terminate this contract upon thirty days written notice to you.

'In addition to the monthly retainer hereinabove provided you shall also be entitled to receive as an overriding royalty 2 per cent of the interest acquired by Stekoll Drilling Company under any leases purchased by it as a result of your negotiations, which overriding royalty interest will be assigned to you at such time Stekoll Drilling Company acquires its interest in such lease or leases. The overriding royalty interest herein referred to is specifically applicable only to the interest acquired by the Company, and shall be subject to its proportionate part of the same conditions or encumbrances to which the interest of the Company may be subject. Your right to receive the overriding royalty interest herein referred to shall cease at the time your employment terminates, and shall not be applicable to leases which are purchased after your employment terminates, even though negotions (sic) for their purchase may have occurred prior to or may be pending at the time your...