Sawman Oil Co. v. Bush, 3819.

• Decision Date: 18 January 1940
• Docket Number: No. 3819.,3819.
• Parties: SAWMAN OIL CO., Inc., v. BUSH.
• Court: Texas Court of Appeals

136 S.W.2d 938

SAWMAN OIL CO., Inc., v. BUSH.

No. 3819.

Court of Civil Appeals of Texas. El Paso.

January 18, 1940.

Rehearing Denied February 8, 1940.

Appeal from District Court, Midland County; Chas. L. Klapproth, Judge.

Action by John J. Bush against the Sawman Oil Company, Incorporated, to recover compensation for rental of an oil well spudder machine and appurtenant tools. Judgment for plaintiff, and defendant appeals.

Modified in part, and otherwise affirmed.

Whitaker, Perkins & Turpin, of Midland, for appellant.

Joseph A. Seymour, of Midland, for appellee.

WALTHALL, Justice.

The appellee, John J. Bush, brought this suit against the appellant, the Sawman Oil Company, a corporation, to recover of it, on an oral agreement, compensation for the rental of a certain oil well spudder machine or implement and certain tools appurtenant thereto, at the rate of ten dollars per day for one hundred and fifty-six days. The terms and conditions of the rental agreement are stated by appellee in his petition as follows: "The defendant was to operate said spudder on the basis of a twelve-hour day and to hire and employ plaintiff's head driller, Tom Simmons, to supervise and handle the operation of said spudder during the time same was being used by the defendant, and that in consideration thereof the said defendant was to pay to plaintiff for the use and renting of said spudder the sum of ten dollars for each and every day said spudder was in defendant's possession and control and to return said spudder and tools appurtenant thereto to the plaintiff in as good condition as they were when delivered, natural wear and tear only excepted."

Appellee alleged that appellant continued in possession and use of the spudder and tools from the 25th day of July to the 29th day of December, 1937, a period of one hundred and fifty-six days; that appellant failed to return said spudder and tools to appellee, and on December 29, 1937, appellant informed appellee that it was through with said spudder; that appellee was compelled to expend $50 to have the spudder returned.

Appellee alleged that during the time the spudder and tools were in the possession and use of appellant, appellant either lost or destroyed the following tools, to-wit: One 4½×16 inch drill stem of the value of $85; one 5½ inch bailer of the value of $20; one set of drilling jars of the value of $50; one metal tool box of the value of $20; one five inch bit of the value of $20; a total of $195, in which sum appellee was further damaged, and that appellant has failed and refused and continues to fail and refuse to replace or compensate appellee therefor. Appellee states his damages and sues for $1,780.82, with interest thereon from December 29, 1937, and costs of suit.

Appellant answered by general demurrer and general denial, and specially denied all liability except $36.03, and as to said sum alleged that at all times it has been and still is ready and willing to pay, and that before the commencement of the suit appellant tendered and offered to pay appellee by check the sum of $40, which appellee refused, and that appellant now brings and tenders into court the sum of $36.03, and other than the above prays that appellee take nothing.

The case was submitted to and tried by the court without a jury. The court overruled appellant's demurrer, heard the evidence, expressed the opinion in the judgment that appellee should recover of appellant compensation for the rental of the spudder and tools at the rate of ten dollars per day for the period of 156 days, the total sum of $1,560, less $44.18 paid by appellant, and less $47.82 expended by appellant for repairs on the spudder. The court, in the judgment, said appellant should deliver to appellee upon his demand and at his expense the following tools, to-wit: one 4½ by 16 inch drill stem; one 5½ inch bailer; one set of drilling jars; one metal tool box, and one 5 inch bit; and rendered judgment for appellee against appellant in the sum of $1,468.03 as compensation for the rental of the spudder and tools, with interest from October 12, 1938, and that appellee recover his costs. The court overruled appellant's motion for a new trial.

To all of which rulings and findings and conclusions appellant duly excepted and prosecutes this appeal.

Opinion.

The record states that in response to the request of appellant the court makes and files his findings of fact and conclusions of law.

The court's findings of fact are substantially to the effect:

1. On July 25, 1937, by oral agreement appellee rented to appellant the oil well spudder and tools, for which appellant agreed to pay the sum of ten dollars per day.

2. On the day stated appellee delivered to appellant the spudder and tools; thereafter appellant retained possession and control of the spudder and tools for a period of 156 days, or until December 29, 1937, at which time appellee resumed possession of the property except certain tools specified.

3. When appellee resumed possession of the property and since said time appellant failed...