Smith v. Peeler

• Decision Date: 25 June 1930
• Docket Number: No. 1377-5542.,1377-5542.
• Citation: 29 S.W.2d 975
• Parties: SMITH v. PEELER et al.
• Court: Texas Supreme Court

29 S.W.2d 975

SMITH v. PEELER et al.

No. 1377-5542.

Commission of Appeals of Texas, Section A.

June 25, 1930.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by Albert C. Smith against Alice Peeler and others. To review a judgment of the Court of Civil Appeals [18 S.W.(2d) 938] reversing and remanding case for new trial after judgment for plaintiff, plaintiff brings error.

Judgment of the Court of Civil Appeals affirmed.

Matlock & Kelly, of San Antonio, and Ocie Speer, of Austin, for plaintiff in error.

Clamp & Searcy, C. J. Matthews, and Terrell, Davis, McMillan & Hall, all of San Antonio, for defendants in error.

SHARP, J.

Albert C. Smith instituted this suit in the district court of Bexar county, against Alice Peeler et al., alleging that on or about the 17th day of July, 1922, the defendants entered into an agreement with the plaintiff whereby the defendants were to deliver to plaintiff an oil and gas lease on 6,000 acres of land known as the Peeler Ranch, located in Atascosa county, and, in consideration for said lease, the plaintiff was to drill certain wells thereon; that in course of time by reason of said agreement or contract, he did drill certain wells thereon. Plaintiff further alleged that on or about the 13th day of June, 1925, he entered into a written agreement with the Atascosa Oil & Gas Company, by which plaintiff assigned to the said gas company a portion of the property covered by the oil and gas lease executed to plaintiff by defendants, and that said gas company placed on said premises a derrick and other property and began to drill a well thereon; that before the well was completed the defendants forfeited the lease or contract they had made with the plaintiff and treated the contract as null and void and demanded possession of the premises, and that the gas company discontinued the drilling of the well thereon and removed their property off the premises. Plaintiff further alleged that he had spent much time and expended certain sums of money in undertaking to carry out the lease; that he further claims that the drilling rig, tools, equipment, etc., cost the sum of $3,219.89 and that the casing, pipe, cable, etc., cost the further sum of $5,957.47, making a total amount of money spent and the reasonable value for his services and time the sum of $28,461.34. In addition thereto, plaintiff asks for the sum of $250,000, the value of the leased premises at the time of the breach of the contract and for the sum of $100,000 in exemplary damages, etc.

The defendants answered with a general demurrer, special exceptions, general denial, and special answer. Upon the conclusion of the testimony, the defendants made a motion for the court to instruct the jury to return a verdict for the defendants, and stated that plaintiff had filed the suit for himself individually; that, after he had testified upon the trial and for the first time, the defendants learned that the plaintiff was not the sole owner of the subject-matter involved in this suit, but that he had organized other companies and had sold stock therein, and that at the time the lease was executed the plaintiff had very little money upon which to operate, and that the undisputed record shows that there were many other persons who were interested in the companies organized by plaintiff and who had furnished practically all of the money to plaintiff for the purpose of buying rigs, tools, cables, equipment, etc., and that plaintiff had not alleged that he was suing for them in any capacity, but was suing for himself individually, claiming to be the owner of the property and entitled to the sums of money claimed in his petition; that the defendants had no opportunity of knowing these facts before plaintiff had testified upon trial, and requested the court to instruct the jury to return a verdict for defendants, and the court overruled this motion and submitted the case to the jury upon special issues. Based upon the findings of the jury to special issues submitted to them, the court rendered a judgment in favor of plaintiff against defendants for the principal sum of $27,909.29, with interest thereon from the 16th day of September, 1925, at the rate of 6 per cent. per annum, making the aggregate amount of the judgment rendered in the sum of $33,378.84. The case was appealed to the Court of Civil Appeals for the Fourth Supreme Judicial District at San Antonio, and the judgment of the trial court was reversed. 18 S.W.(2d) 938.

We will refer to the parties in this suit as plaintiff and defendants as they were described in the trial court.

It is urged by the defendants that the trial court erred in rendering judgment in favor of the plaintiff, because of a defect of parties and because of material variance in the pleadings and proof. It is contended that the pleadings show no one except plaintiff to be interested in the matters in controversy, whereas the testimony developed showed him to have only a small interest therein, the greater portion of the interest being owned by other persons, and that plaintiff did not undertake to sue for the other persons interested in the subject-matter in this suit, either in their name or as their representative.

The pleadings filed by plaintiff show that he instituted this suit for himself individually, and nowhere does he purport to undertake to maintain this suit as the representative or for the benefit of those who, according to his own testimony, have an interest in the subject-matter of this litigation. Attached to this petition is a list of items that he claims judgment for. Among the many items listed therein, which will not be set out in detail, is the purchase cost of a drilling rig, drilling tools, casing, pipe, cable, wages paid to drillers and helpers, and many other items not necessary to enumerate herein; part, if not all of them, being paid for out of the funds derived from the sale of stock in the various companies organized.

The plaintiff while upon the witness stand testified upon this aspect of the case substantially as follows:

(a) That the first thing he did after procuring the lease agreement with defendants he went to Seattle to arrange with his friends there for finances for drilling the well. That he formed a company composed of himself, Mr. Cox and others to drill Well No. 1.

(b) That he organized the Atascosa Oil & Gas Company and raised money through his friends by the sale of stock issued at Seattle. That the records of the company were kept in Seattle, and that from various sources he received from the stockholders in round numbers the sum of $22,000 during the time he was drilling the three wells, and that this sum included therein every sale of stock, etc.

(c) That, when he returned from Seattle, he continued to receive money as he needed it. That some of the checks were signed by Cox as president and some were signed as trustee. That a man by the name of Brockway bought out Cox's interest, and that Cox, Griffiths, and plaintiff had about 5 per cent. interest in the enterprise,...