Osage Oil & Refining Co. v. Lee Farm Oil Co.

• Court: Texas Court of Appeals
• Writing for the Court: Boyce
• Citation: Osage Oil & Refining Co. v. Lee Farm Oil Co., 230 S.W. 518 (Tex. App. 1921)
• Decision Date: 09 March 1921
• Docket Number: (No. 1761.)
• Petition History: writ ref'd
• Parties: OSAGE OIL & REFINING CO. v. LEE FARM OIL CO.

230 S.W. 518

OSAGE OIL & REFINING CO. v. LEE FARM OIL CO.

(No. 1761.)

Court of Civil Appeals of Texas. Amarillo.

March 9, 1921.

Rehearing Denied April 27, 1921.

Appeal from District Court, Wichita County; Edgar Scurry, Judge.

Action by the Lee Farm Oil Company against the Osage Oil & Refining Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition plaintiff enter remittitur, otherwise reversed and remanded.

J. E. Whitehead, of Oklahoma City, Okl., and Carrigan, Montgomery, Britain & Morgan and Bert King, all of Wichita Falls, for appellant.

Bullington, Boone, Humphrey & Hoffman, of Wichita Falls, for appellee.

BOYCE, J.

This appeal is from a judgment of the trial court awarding the appellee, Lee Farm Oil Company, as plaintiff in the court below, damages against the appellant, Osage Oil & Refining Company, for breach of contract for the drilling of a well by the plaintiff on the premises of the defendant.

As the only assignments which we shall discuss deal with the question of the damages resulting from the violation of this contract by the appellant, we will confine our statement to such facts as will make such discussion intelligible. It appears that the said parties entered into a written contract under the terms of which the Lee Farm Oil Company, a partnership, agreed to drill a well on the property of the Osage Oil Company "to the depth of 2,000 feet, or down to what is known as the `big lime,' provided the said `big lime' is found at a less depth than 2,000 feet. Said first parties (Lee Farm Oil Company) agree, however, to stop the drilling of said well at a less depth than 2,000 feet in the event oil or gas is found in paying quantities at a less depth than 2,000 feet, and parties of the second part (the Osage Oil & Refining Company) so desire and request." The Osage Company agreed to furnish the fuel and water necessary to do the drilling and pay therefor the sum of $3 per lineal foot. The plaintiffs alleged that upon the execution of the contract they moved their drilling machinery onto the said premises and drilled said well to about 300 feet, when the "defendant breached the contract in its entirety to plaintiff's damage in the sum of $3,000"; that plaintiff "would have made at least $3,000 had it been permitted to go ahead with said drilling and had the defendant complied with its portion of said contract." These being the allegations of damage, the plaintiffs were permitted on the morning of the trial to insert in their petition the following additional allegation:

"Plaintiff further alleges that the plaintiff, relying on the authority of the parties who made the contract, moved on the premises, and was out above $300 for moving thereon, and drilled to a depth of about 400 feet at a cost of $1,200, and that the defendant received the benefit of the plaintiff's acts and works, which was of the reasonable value of $1,500."

The following are the issues and answers of the jury thereto of damages submitted by the court to the jury:

"Special issue No. 3: Find what would have been the plaintiff's net profit, if any, after deducting all necessary expense of fulfilling said contract. Answer: $1,500.

"Special issue No. 4: Find what amount would reasonably compensate the plaintiff for the necessary expense of moving in to the Watkins farm and drilling the well that he did drill to the depth he did drill on said farm, and claimed to have drilled by reason of the contract introduced in evidence in this case. Answer: $435.

"Special issue No. 5: What did it cost the plaintiff to set up his rig? Answer: $75.

"Special issue No. 6: What did it cost the plaintiff to drill to the depth he did drill? Answer: $200."

The court entered judgment on the verdict of the jury in favor of the plaintiff for the sum of $2,210. The appellee has filed a remittitur in this court of the two items of $200 and $75.

We will discuss the first and third assignments together. The first assignment is to the action of the court in overruling a special exception to the petition, as it stood after the making of the insertion as to damages, as stated above, on the ground that two distinct causes of action were thereby alleged, one in quantum meruit and the other for damages, "with no plea in the alternative with regard thereto." The third assignment asserts that the court erred in submitting both such causes of action and entering judgment therefor, on the answer of the jury to the issues submitted. If the petition and the submission of the issues and judgment rendered thereon are to be construed as seeking and awarding recovery on quantum meruit, these assignments would be well taken. It is the law that one who has been wrongfully prevented from fully performing his contract after he has entered upon its performance, and partially performed it, may elect either to sue on a quantum meruit or to sue for a breach of the contract, but cannot do both. If he sues for a breach of the contract, he may recover his actual loss, which would be the expense incurred in the performance of the contract up to the time of its breach, and the profits he would have made out of the contract if they may be established with sufficient certainty. U. S. v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168. The only language of the pleading that might be construed as presenting a claim on quantum meruit is that of the concluding clause of the allegation inserted in the petition on the day of the trial. All other parts of the petition show a claim for expenditures made in and the cost of the performance of the contract and for profits which plaintiff would have made out of the contract. The allegation that the work was of the reasonable value of $1,500 was preceded by a statement which showed that this amount was the cost of the work which the plaintiff had done. We do not think the language referred to should be construed so as to change the character of the cause of action and vitiate that which had been properly pleaded up to this point.

Nor do we think that issue No. 4, as submitted by the court, is to be construed as submitting an issue as to the reasonable value of the work done by the plaintiff; but we think that the court intended, and the jury must have so understood it, to submit merely a question as to the amount of expense incurred by the plaintiff in the performance of the work. Evidence was introduced as to the cost of moving the drilling outfit upon the premises and setting up the rig and drilling the 300 or 400 feet, and the issue was evidently submitted for the purpose of getting the finding of the jury on such matter. The evidence in connection with the finding itself makes it clear that no element of profit was included in this estimate. The well was drilled one-fourth or one-fifth of the depth it was to be put down. The expense of moving and setting up the rig had been incurred, so that the amount found, $435, is so out of proportion to the total consideration which was to be paid for doing the entire work under the contract that it is almost demonstrated that nothing but the actual cost of this work was included in this finding.

The second assignment asserts error in the action of the court in overruling appellant's motion for a continuance, which was presented at the time plaintiff added the allegations to the petition, as above referred to. The appellant here also claims that this addition to the petition set up a new cause of action on quantum meruit, which entitled it to a continuance. As already stated, we do not construe the allegation to have this effect. It merely particularizes one element of plaintiff's damage. Whether this amendment was such as to take the other party by surprise, so as to entitle it to a continuance or postponement, was a matter to be judged by the trial court. Rule 16 for District and County Courts (142 S. W. xviii); I. & G. N. Ry. Co. v. Howell, 101 Tex. 603, 111 S. W. 142. We do not find any abuse of discretion in such matter.

Under the fourth, tenth, and eleventh assignments it is claimed that there was a double recovery allowed, in that the item of $435 found in response to the fourth issue included the items of $75 and $200 found in response to the fifth and sixth issues. The appellee has remitted the said sum of $275, so that it will not be necessary to discuss these assignments.

By the fifth and thirteenth assignments it is contended that there was error in the submission...