Root v. Tomberlin
| Decision Date | 12 February 1931 |
| Docket Number | No. 2488.,2488. |
| Citation | 36 S.W.2d 596 |
| Parties | ROOT et al. v. TOMBERLIN et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Taylor County; M. S. Long, Judge.
Action by C. M. Root and others against J. L. Tomberlin, L. H. Wentz, and others. From judgment for the last-named defendant, plaintiffs appeal.
Affirmed.
Sayles & Sayles, of Abilene, and Cyrus B. Frost, of Eastland, for appellants.
Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, and Goree, Odell & Allen and Chas. L. Morgan, all of Fort Worth, for appellees.
C. M. Root and S. M. Root, partners, composing the firm of Root Drilling Company, brought this suit against J. L. Tomberlin, Paul Vitex, Leigh Taliaferro, and L. H. Wentz, to recover a balance of a debt of $4,050.50, with interest thereon, alleged to be due plaintiffs for work done and materials furnished in drilling a test well for oil and gas under a written contract of date April 8, 1927. The contracts referred to in the pleading were made parts of the findings of the court and herein fully stated. Plaintiffs allege, in substance, that Tomberlin for himself and his assigns, Wentz, as assignee of an undivided half interest in the oil and gas leasehold estate in the land on which the test well was to be drilled and as copartner with Tomberlin in the prosecution of the enterprise or business of drilling such test well, entered into said written contract with plaintiffs for the drilling by plaintiffs for Tomberlin and Wentz of said test well; that Wentz became and was a partner with Tomberlin in drilling said well and as such partner became and was jointly liable with Tomberlin to plaintiff under said drilling contract; that as security for a part of the amount payable plaintiffs under said contract, there was transferred and delivered to plaintiffs the written obligation of Vitex, known as the purchase letter, to pay $3,500; Taliaferro was the agent of Wentz, but if not such agent, he (Taliaferro) was personally liable to the plaintiffs.
Pleadings of the plaintiffs and the defendants are lengthy, and as the trial resulted in a question solely of partnership between Tomberlin and Wentz, and of Wentz's liability as such, we need not state the pleadings more than to say that Wentz filed a general denial, and specially denied any partnership relation with Tomberlin in the matters here involved. The case was tried to the court without a jury, and the court, having found that no partnership relation was created between Tomberlin and Wentz in the matters about which the suit was brought, entered judgment as between plaintiffs and all defendants other than Wentz, from which no appeal is prosecuted.
The court entered judgment that plaintiffs take nothing as to Wentz, and from that part of the judgment solely, plaintiffs prosecute this appeal.
The matters of contract between the parties and made the basis of this plaintiff's cause of action and of defendant Wentz's ground of defense are stated in the trial court's findings of fact. While the matters found are of great length and much of it might have been omitted, if closely analyzed, we have thought best to copy the court's findings here. The findings are as follows:
"`(2) In case production in commercial quantities is encountered in the test well on the 40 acres (SW 1/4-SW 14 Sec. 37), we are to be free of expense or liability until the well is shown to be a commercial producer, at which time you are to execute with us a joint operating contract," and the forty acres owned jointly shall be operated by L. H. Wentz.
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