Red v. McComb, 3319.

• Decision Date: 23 June 1938
• Docket Number: No. 3319.,3319.
• Citation: 119 S.W.2d 707
• Court: Texas Court of Appeals
• Parties: RED v. McCOMB.

Page 707

119 S.W.2d 707

RED v. McCOMB.

No. 3319.

Court of Civil Appeals of Texas. Beaumont.

June 23, 1938.

Rehearing Denied September 20, 1938.

Appeal from District Court, Montgomery County; E. T. Murphy, Judge.

Suit by Raymond B. Red against W. P. McComb based on an alleged oral agreement that if the plaintiff would assist defendant in securing certain powers of attorney, defendant would pay the plaintiff profits defendant received because of such powers. From an adverse judgment, the plaintiff appeals.

Affirmed.

Geo. B. Darden and A. W. Morris, both of Conroe, and McKinney & Henson, of Huntsville, for appellant.

McComb & Marsh, Paul G. Grogan, and W. C. McClain, all of Conroe, for appellee.

WALKER, Chief Justice.

This is a second appeal; for opinion on first appeal, see McCombs v. Red, Tex.Civ. App., 86 S.W.2d 648. The case before us now was prosecuted by appellant Red, from a judgment rendered against him on a verdict instructed in favor of appellee McComb.

For cause of action appellant alleged: (1) On the 9th day of April, 1932, appellee advised him that he was trying to secure powers of attorney, coupled with a one-half interest, from the heirs of J. T. Watson, covering two certain tracts of land in Montgomery County, tract No. 1 containing 142.5 acres of land, and tract No. 2, 145 acres of land; (2) some of the heirs lived "in various parts of the State of Texas"; appellant owned an automobile; appellee represented that "he did not have a means of conveyance"; and "then and there" proposed to appellant that, if he would transport appellee to and from the homes of the heirs, and "would aid and assist him in going to the homes of the heirs and in returning that he might contact said heirs and thereby obtain powers of attorney from them," in consideration of his services, he would give and grant to appellant "a one-sixth (1/6 th) undivided interest in and to any and all of the lands, monies, profits or other things of value which he might or would receive by virtue of the said contemplated power of attorney"; (3) appellant accepted appellee's offer and performed, and was ready to perform, all obligations owed by him under the contract "for the purpose of investigating of the J. T. Watson Pre-emption Survey in the Land Office of Texas and also of Fannie S. Hooper, Et Al, Survey, and in pursuance of the joint adventure and object of realizing a profit out of the claim of the J. T. Watson heirs in the J. T. Watson survey aforesaid and the said Fannie S. Hooper, Et Al, Survey"; (4) under the contract and their joint efforts, constituting a "joint adventure", appellee acquired certain powers of attorney, but refused to recognize that appellant had any interest in these powers of attorney, or in the profits derived therefrom; that he called upon appellee for an accounting, and appellee refused to give him an accounting; appellant plead a statement of the profits.

We give here appellant's prayer: Wherefore, premises considered, Plaintiff prays that Defendant be duly cited to appear and answer herein, and that upon a final hearing hereof, Plaintiff have judgment over and against Defendant for the sum of $4,791.66, and judgment for a 1/1152 royalty interest in and to 145 acres, more or less, in the Fannie S. Hooper, Et Al, Survey, Montgomery County, Texas, as herein described, which is due Plaintiff as his one-sixth (1/6 th) interest in the settlement of the powers of attorney of Defendant growing out of and/or pertaining to the 145 acres, more or less, in the Fannie S. Hooper, Et Al, Survey, Montgomery County, Texas; and, judgment for the sum of $4,313.27, which is due Plaintiff as his one-sixth (1/6 th) interest in the settlement of the powers of attorney of Defendant growing out of and/ or pertaining to the 142½ acre tract in the J. T. Watson Pre-emption Survey, Montgomery County, Texas; for costs of court, and for such other and further relief, special and general, in law and in equity, as Plaintiff may show himself justly entitled to, etc."

The contract plead by appellant, and established by his proof, was an oral contract made on the 9th day of April, 1932. Under the statement made in his brief, appellant claims an interest in the following powers of attorney:

"A. 1. Sally DeMoss, et vir, to W. P. McComb, bearing date of ...