Nystel v. Gully

• Decision Date: 24 October 1923
• Docket Number: (No. 6649.)
• Citation: 257 S.W. 286
• Parties: NYSTEL v. GULLY.
• Court: Texas Court of Appeals

Page 286

257 S.W. 286

NYSTEL v. GULLY.

(No. 6649.)

Court of Civil Appeals of Texas. Austin.

October 24, 1923.

Appeal from District Court, Brown County; J. O. Woodward, Judge.

Action by T. C. Nystel against W. D. Gully. Judgment for defendant, and plaintiff appeals. Affirmed.

J. F. Taulbee, of Georgetown, for appellant.

Harrison & Cavin, of Brownwood, for appellee.

BLAIR, J.

This is the second appeal of this case; the first being reported in 233 S. W. 122. The present appeal is based upon the action of the trial court in sustaining certain of appellee's special exceptions to appellant's petition, and for dismissing appellant's suit for want of prosecution; appellant having declined to amend his pleadings, although given an opportunity to do so, or to proceed with the case after the court had sustained the special exceptions to his petition.

The record contains no statement of facts or bills of exception, or assignments of error. We are therefore precluded from passing upon any question except such as might present fundamental error apparent from the record.

The record as presented, aside from the formal matters required, contains the abandoned pleadings of both parties, as well as the pleadings upon which the case went to trial, and the judgment and decree of the court. The judgment recites that upon hearing certain special exceptions urged to appellant's petition by appellee, the same were sustained; to which action and ruling of the court the appellant then and there excepted and caused the fact to be noted of record, which was done. The judgment further recites that appellant was then and there given an opportunity to amend his petition as to the matters to which the special exceptions sustained were addressed, but that he refused to do so, and declined to impanel a jury, or to offer evidence on the allegations of indebtedness which he alleged was due him by appellee, or on any other issue of the case, or to proceed further in the case in any manner or to any extent whatever. Whereupon the court dismissed the suit for want of prosecution, to which action of the court appellant then and there in open court objected and excepted, and gave notice of appeal.

It is therefore apparent of record that, if the action of the trial court in sustaining the certain exceptions urged by appellee to appellant's petition was fundamental error, or that his action in dismissing the suit for want of prosecution under the facts stated therein was such as constituted fundamental error, then we are compelled to pass upon the record in the absence of either a statement of facts, bills of exception, or assignments of error, since the procedure recited in the judgment is tantamount to a finding of fact and conclusion of law by the trial court.

Appellant's second original petition, upon which he went to trial, is very lengthy, and we will only make a statement of its contents as to the cause or causes of action therein pleaded.

(1) Appellant pleaded for a recovery for labor done and performed under a written contract for the promotion of an oil enterprise entered into between himself and appellee; also for the recovery of a commission for the sale of certain oil leases, which he alleges was agreed to by appellee in the written contract sued upon. He also alleges that he had filed a sworn itemized claim, which was attached to the petition as an exhibit, which constituted the amount of his cause of action, being the amount due him for labor and services performed for appellee, with the county clerk of Brown county, to be recorded in the records provided for mechanic, materialman, and laborer's liens, and that he further alleged that he had so filed such lien within 30 days as provided for in article 5622 of Vernon's Sayles' Second Revised Civil Statutes, and that he thereby obtained a statutory lien upon the leases which he alleges were sold, and on which sales he was claiming a commission; and further sought the foreclosure of such lien in satisfaction of the debt sued for.

(2) Appellant further alleged, and in the alternative, that if he was mistaken and could not prove a written contract with appellee as alleged in the foregoing portion of his petition, then that he had an oral contract with appellee, the terms and effect of which were identical with the written contract theretofore pleaded; and upon this he sought a recovery for his labors done and performed, and for a foreclosure of his statutory laborer's lien, alleging that he had established same in the same manner as he had pleaded in his suit for a recovery upon the written contract; and

(3) For the first time since the institution of the suit, he pleaded, in the alternative, that, if he was mistaken or unable to prove either the written or oral contract as the basis of his recovery, then he pleaded a quantum meruit, in which he sued for the fair value of his services upon the lands, premises, tools, and appurtenances upon which he performed his labor as a laborer and mechanic, and further sought the foreclosure of his laborer's lien, which he pleaded as having filed as he pleaded in his suit for the recovery on the contract.

Appellee addressed a general demurrer and numerous special exceptions to appellant's pleadings, some of which were sustained by the court, and, the appellant refusing to proceed further with the trial of the case, it was dismissed for want of prosecution, and this appeal is perfected from that judgment.

The first special exception of appellee which the court sustained is as follows:

"(a) That it appears from said petition, the allegations therein, and the exhibits thereto attached that under the contract, through and by virtue of which said liens are claimed, it was expressly understood and agreed by and between plaintiff and defendant that defendant had the right to and could sell the property upon which such liens are asserted, at any time. And said right is and was utterly inconsistent with the fixing or right to fix any such lien which was thereby and by virtue of said contract foregone and waived by plaintiff, and he was thereby precluded from asserting, claiming, or filing same, by virtue of said contract."

We are of the opinion that the court correctly sustained the exception. Appellant's petition alleges that it was agreed, both by the written and oral contract relied upon for a recovery herein, that, should a sale of the leases upon which he seeks to establish his laborer's lien be effected, he should receive a commission upon such sale, basing his claim upon a paragraph of the contract which reads as follows:

"However, it is expressly understood and agreed that party of the first part may sell said lease within said time and terminate this contract. * * * That as a part of the consideration for said contract it was agreed between him and defendant that in the event defendant desired to dispose of his right, title, and interest in and to said leasehold that he would not hold him for the entire period of said contract, but that he would agree that defendant could sell said leasehold interest, together with the properties thereon — it being agreed, however, that plaintiff, in addition to other considerations, should have a commission, as agreed upon between the parties."

The petition further alleges the sale of such leases, and appellant seeks a recovery of a commission upon such sale. It therefore appears upon the face of the pleading that, should a sale be made under the contract, in order to pass title to the leases free and unincumbered, it would be inconsistent with the lien given appellant by law, which he now seeks to...