Pierce Fordyce Oil Ass'n v. Woods

• Decision Date: 16 October 1915
• Docket Number: (No. 8263.)
• Parties: PIERCE FORDYCE OIL ASS'N v. WOODS et al.
• Court: Texas Court of Appeals

180 S.W. 1181

PIERCE FORDYCE OIL ASS'N v. WOODS et al.

(No. 8263.)

Court of Civil Appeals of Texas. Ft. Worth.

October 16, 1915.

Rehearing Denied December 4, 1915.

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

Suit by G. C. Woods and another against the Pierce Fordyce Oil Association and others. Judgment for plaintiffs, and defendant Pierce Fordyce Oil Association appeals. Affirmed.

Huff, Martin & Bullington, of Wichita Falls, for appellant. Fitzgerald & Cox, of Wichita Falls, for appellees.

BUCK, J.

This suit was filed by appellees, G. C. Woods and Bert Brodie, doing a drilling business in the name of the Bert Brodie Drilling Company, to recover on two contracts, one a verbal contract and the other a written contract embodying the same terms, subject-matter, and conditions, except that the first, the verbal contract, was alleged to have been made by and between appellees of the first part and appellant and one J. E. Head of the second part, while the written contract was alleged to have been made by and between appellees of the first part and the Dundee Dome Oil Company of the second part, which latter obligation was guaranteed by J. B. Harris and J. G. Tiller. The verbal contract was entered into on the ____ day of March, 1914, and by the terms thereof, the plaintiffs covenanted and agreed to drill an oil well on the J. E. Head lease out of the Alexander-Albright farm in Archer county, Tex., to a depth of 2,500 feet. The defendants were to furnish a complete standard rig, all casing, fuel, water, and tank to contain the same, at the well, and plaintiffs were to furnish a boiler, engine, belts, drilling tools, water pipes, and connections, etc., including labor, at their own expense. Plaintiffs were to receive for the drilling of said well $3.50 per each foot drilled to a depth of 2,100 feet, and $5 per foot for each foot drilled thereafter up to 2,500 feet. They were to receive 60 per cent. of the price due when a depth of 1,200 feet was reached, and 60 per cent. when a depth of 2,100 feet was reached. Plaintiffs alleged that, pursuant to the terms of said contract, they began operations and spent large sums of money for labor and material, and made all necessary preparations for carrying out the terms of said contract, and began actual drilling of said well and continued the same until they had reached a depth of some 500 to 700 feet; that at this stage of the work the defendants J. E. Head and the Pierce Fordyce Oil Association requested them to sign a written contract, which written contract was alleged to have been attached to the petition and made a part thereof. It does not appear to have been so attached, and no evidence as to its contents was introduced in evidence, except as will be hereinafter stated. Plaintiffs alleged that the defendants aforesaid requested plaintiffs to sign the written contract with plaintiffs as parties of the first part and the Dundee Dome Oil Company, J. B. Harris, and J. G. Tiller as parties of the second part; defendants stating to plaintiffs at the time that the company aforesaid and said Harris and Tiller were interested in the development of said oil lease, in the drilling of said well, and that the purpose of having plaintiffs enter into this written contract was to make said company and parties mentioned jointly liable with the other defendants for the drilling of said well, and plaintiffs were assured by the said defendants Head and Pierce Fordyce Oil Association that the signing of said written contract by the plaintiff was not intended to and did not in any way affect the liability of said Head and Pierce Fordyce Oil Association, nor in any way supersede or set aside the oral contract theretofore made, and that with such understanding plaintiffs signed and executed said written contract. Plaintiffs further alleged that the defendants had breached their verbal and written contracts, and had failed to furnish fuel and water and tanks, etc., necessary to the further prosecution of said work, and, upon plaintiffs having reached a depth of 1,200 feet, failed and refused to pay plaintiffs the 60 per cent. of the price for said work so agreed upon, and that they (the plaintiffs) were willing, anxious, able, and ready to continue the drilling of said well until completed, as they had agreed to do both in the verbal contract with the two defendants above mentioned and the written contract with the other defendants mentioned, but they had been prevented by the failure and refusal of the defendants to comply with their said contracts. They alleged that they would have made a profit of $3,000 on the 1,300 feet that they were prevented from drilling by defendant's breach; that they were entitled to the sum of $5,250 for the 1,200 feet drilled, for which they prayed judgment.

Defendant Pierce Fordyce Oil Association, which alone appeals, after general and special demurrers, pleaded a merger of the verbal contract into the written contract alleged, and that it was fully released and the plaintiffs relinquished any claim on it by the execution of the written contract. It denied that it had ever requested plaintiffs to sign the written contract, or had given any assurances to them that the signing of said contract was not intended to affect said defendant's liability, and denied any liability at all for any alleged breach, or for the default or miscarriage of other contracting parties. It further pleaded that subsequent to the filing of the original petition in this suit an original writ of attachment had been issued at the instance of plaintiff against the property of the Dundee Dome Oil Company; that the same had been sold by the sheriff of Archer county for the sum of $3,000 and purchased by plaintiffs at said sale; and that said sum was amply sufficient to satisfy all losses to which plaintiffs had been subjected by reason of said alleged breach.

In a supplemental petition plaintiffs admitted the sale of the property of the Dundee Dome Oil Company under a writ of attachment, and admitted that they had received about the sum of $2,200 therefrom after the costs had been paid. They further alleged that J. E. Head and one L. S. Kemphner, who are alleged to have entered into the original contract with plaintiffs, did not disclose their agency, nor their principal, the Pierce Fordyce Oil Association, but that in fact they were the agents of said Pierce Fordyce Oil Association, and that all their rights, contracts, and agreements relative to said leases, and the development of the same, in their contract for the drilling of the well mentioned, was done for and on behalf of the said Pierce Fordyce Oil Association, and as the agents of said association, and the said contract was in truth and in fact the contract and agreement of said Pierce Fordyce Oil Association, and it became bound to plaintiffs thereunder. In the alternative, they alleged a partnership existing between said Head and Kemphner and the Pierce Fordyce Oil Association with reference to said leases, and the development thereof, and the drilling of said well, and that thereby said association became bound as a partner.

In their first supplemental answer defendant association denied the allegations contained in plaintiffs' first supplemental petition, wherein they charged the agency of said Kemphner and said Head and the partnership existing between said two named partners and the appellant.

In its first assignment appellant urges error in the overruling of its general exception, and in its second assignment to the overruling of a special exception. The transcript fails to disclose any order of the court overruling said exceptions. Therefore we will only consider the question of whether or not fundamental error is shown, for the action of the trial court in overruling exceptions is not subject to revision, unless such action was excepted to at the proper time. But an objection that plaintiffs'...