South Chester Tube Co. v. Texhoma Oil & Refining Co.

• Decision Date: 14 May 1924
• Docket Number: (No. 7162.)
• Citation: 264 S.W. 108
• Parties: SOUTH CHESTER TUBE CO. v. TEXHOMA OIL & REFINING CO.
• Court: Texas Court of Appeals

264 S.W. 108

SOUTH CHESTER TUBE CO. v. TEXHOMA OIL & REFINING CO.

(No. 7162.)

Court of Civil Appeals of Texas. San Antonio.

May 14, 1924.

Rehearing Denied June 18, 1924.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Suit by the Texhoma Oil & Refining Company against the South Chester Tube Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lipscomb & Seideman, of Fort Worth, for appellant.

W. B. Hamilton, of Dallas, G. R. Pate, of Wichita Falls, and Phillips, Trammell & Chizum, of Fort Worth, for appellee.

COBBS, J.

This suit was brought by appellee against appellant to recover damages for the alleged breach of a contract, dated July 18, 1921, for the sale and delivery at Allendale and Holliday, Tex., of 12 miles of 4-inch line pipe, at 40¼ cents per foot. The contract required the shipment to be made on or before July 23, 1921. On account of appellant's failure to ship the pipe in accordance with the contract, appellee was compelled to purchase pipe elsewhere at an aggregate cost of $570.24 more than the price it agreed to pay appellant for the same kind of pipe. It was also alleged because of appellant's breach of said contract appellee was delayed for a period of 14 days in the installation of its pipe line, during which time it was compelled to hire the Texas Pipe Line Company to transport 14,000 barrels of oil at a cost of 17½ cents per barrel, and that appellee could have transported the same through its own pipe line at a cost of 3 cents per barrel, and was damaged by said delay in an amount aggregating $2,030, for which, with interest at 6 per cent. from August 1, 1921, judgment was prayed.

It was further alleged, because of the 14 days' delay in completing the pipe line, appellee was compelled to "pinch in" its wells and keep down its production from 1,400 barrels of oil per day, or more, to 1,000 barrels of oil per day, or the amount which the Texas Pipe Line Company could and would transport from appellee's wells to its Wichita Falls refinery; that appellee lost in production 400 barrels of oil or more per day for a period of 14 days; that the market value of such unproduced oil was $1 per barrel, and appellee thereby suffered a loss of $5,600, for which, with 6 per cent. interest from August 1, 1921, it also prayed judgment.

The case was submitted to the jury upon very full special issues that covered every aspect of the case, and the findings were in favor of appellee; whereupon the trial court entered judgment in favor of appellee for $9,129.56 against appellant.

The appellant admitted the evidence was sufficient to sustain a finding that appellee was delayed for a period of 14 days in laying its pipe line by appellant's breach of the contract, and admits it also was sufficient to authorize a finding that during such period appellee was compelled to hire the Texas Pipe Line Company to transport 14,000 barrels of oil at a cost of 17½ cents per barrel, and limits its defense as set out in the eighth and ninth grounds of motion for new trial, which are covered by appellant's first and second assignments of error, as follows:

"First Assignment of Error. The court erred in refusing to instruct the jury as follows: As to the difference between what the plaintiff claims it would have cost it to transport the oil through its own pipe line and the amount which the evidence shows it was compelled to pay the Texas Pipe Line Company for such transportation, sought to be recovered by plaintiff as damages herein, you will return a verdict in favor of the defendant."

"Second Assignment of Error. The court erred in refusing to instruct the jury as follows: As to the damages sought to be recovered by plaintiff, as the result of alleged loss of production, you will find for defendant."

Appellant makes only one proposition under both assignments as follows:

"Where, in an action for damages for breach of contract, no data sufficient to enable the jury to estimate with reasonable certainty the amount of plaintiff's loss are furnished, the latter cannot recover."

The field in which appellee's pipe line was to be laid was a new field, or what is sometime called "wildcat" field. The well in this new field was brought in about 10 weeks prior to the contract, and appellee's production had to be limited to 1,000 barrels per day, because that was all it could get transportation for from the Texas Pipe Line Company, which only had a two-inch line. Appellee's wells were surrounded by offset wells belonging to others producing from the same sands, and because of want of sufficient transportation appellee was required to hold back the flow of oil and "pinch in" the wells, which had the effect to cause oil to flow toward other operated set-offs and away from appellee's wells.

When the contract was entered into appellant had special notice of the necessity of a speedy completion of the contract, and had special notice of the damages that would be caused by the breach. It was informed, prior to the consummation of the contract, that appellee was paying 14½ cents more to the Texas Company per barrel than it could transport the oil by its own line, the element of delay being directly called to the attention of appellant, and it was advised as to the amount per barrel that it would cost appellee to continue transporting through the Texas Company's line, and the amount of oil that appellee could get transported by such carrier.

These assignments are in violation of the rules. They each request an instructed verdict, which is not allowed in cases submitted on special issues. This case was submitted to the jury on a number of special issues, to which no complaint was made. There was no request for a general instruction on the whole case, but special requests limited to a request for a general instruction on the one issue.

The verdict of a jury must, under our statutes, be either general or special. Articles 1982, 1987, Vernon's Sayles' Rev. Civ. Stat. 1914; Dwyer v. Kalteyer, 68 Tex. 554, 5 S. W. 75.

Since the case was submitted on special issues, the court properly refused to give the special instructions as contended, as to have done so would have required the jury to return a verdict partly general and partly on special issues. Holmes v. Uvalde Nat. Bank (Tex. Civ. App.) 222 S. W. 640, writ refused 226 S. W. xix; Lasater v. Lopez (Tex. Civ. App.) 202 S. W. 1039; Dwyer v. Kalteyer, 68 Tex. 554, 5 S. W. 75; Worden v. Kroeger (Tex. Com. App.) 219 S. W. 1094; Pryor v. Scott (Tex. Civ. App.) 200 S. W. 909; I. & G. N. Ry. Co. v. Jones (Tex. Civ. App.) 175 S. W. 488; La Grone v. Chicago, R. I. & G. Ry. Co. (Tex. Civ. App.) 189 S. W. 99; Calvin v. Neel (Tex. Civ. App.) 191 S. W. 791; Hengy v. Hengy (Tex. Civ. App.) 151 S. W. 1127; Bridgeport Coal Co. v. Wise County Coal Co., 44 Tex. Civ. App. 369, 99 S. W. 409; Grimm v. Williams (Tex. Civ. App.) 200 S. W. 1119; I. & G. N. Ry. Co. v. Reek (Tex. Civ. App.) 179 S. W. 699; Rosser v. Cole (Tex. Civ. App.) 226 S. W. 510; Buchanan v. Williams (Tex. Civ. App.) 225 S. W. 59; Western Union Telegraph Co. v. McCormick (Tex. Civ. App.) 219 S. W. 270; Turner v. Missouri, K. & T. Ry. Co. (Tex. Civ. App.) 177 S. W. 204.

Appellee's contentions that the contract made was breached, that it used due diligence to purchase other pipe, the additional cost of the other pipe, and that it was damaged by appellant's breach depending upon the testimony of interested witnesses, it was proper for the court to submit such issues to the jury. Mills v. Mills (Tex. Com. App.) 228 S. W. 919.

It is also the province of the jury to determine whether plaintiff was entitled to interest, and the submission of that special issue was also proper. Morriss v. Hesse (Tex. Com. App.) 231 S. W. 317; S. A. & A. P. Ry. Co. v. Addison, 96 Tex. 61, 70 S. W. 200; Southern Gas & Gasoline Engine Co. v. Adams & Peters (Tex. Com. App.) 227 S. W. 945.

Again, appellant requested the court to instruct the jury:

"If you answer special issue No. 8 in the affirmative, then answer: How many barrels of oil, if any, were so lost by plaintiff?

"Answer: 8,400 barrels."

Appellant having requested the jury to ascertain how many barrels of oil were lost by appellee because of such breach, and the jury having found 8,400 barrels, appellant is bound by that finding, and is estopped to contend there was an entire lack of evidence to authorize the submission of the issues to the jury as to the amount of oil lost by appellee during the 14-day period caused by appellant's alleged breach of the contract. Southwestern Tel. & Tel. Co. v. Sheppard (Tex. Civ. App.) 189 S. W. 799; Moglia v Rios (Tex. Civ. App.) 200 S. W. 1133; Alamo Dressed Beef Co. v. Yeargan, 58 Tex. Civ. App. 92, 123 S. W. 721; Gosch v. Vrana (Tex. Civ. App.) 167 S. W. 757; Lake v. Jones Lumber Co. (Tex. Civ. App.) 233 S. W. 1011; Poindexter v. Receivers of Kirby Lumber Co., 101 Tex. 322, 107 S. W. 42; Paris & G. N. Ry. Co. v. Flanders, 107 Tex. 326, 179 S. W. 263.

As stated, appellant called for the finding of the jury upon the very issue on which the judgment of the court is founded, in the exact language requested by appellant, and it is certainly estopped to say there was no evidence on the issue. Gosch v. Vrana, supra, and other authorities cited above.

Every phase and issue in the case was submitted to the jury for finding. Appellant has made no objection to any issue submitted to the jury, and seems satisfied with the same, and no attack is made upon the answer of the jury. The effect of appellant's position is that, in respect to one phase of the damages, the court shall take away from the jury and render a judgment on part of the verdict for appellant, and in respect to other findings the court shall approve the judgment. In other words, with a case tried upon special issues, the court shall approve a part, and as to that part of the judgment of the trial court not approved diminish and set aside and substitute the court's...