Thompson v. Corbin

• Decision Date: 31 January 1940
• Docket Number: No. 5396.,5396.
• Citation: 137 S.W.2d 157
• Parties: THOMPSON et al. v. CORBIN et ux.
• Court: Texas Court of Appeals

Page 157

137 S.W.2d 157

THOMPSON et al. v. CORBIN et ux.

No. 5396.

Court of Civil Appeals of Texas. Texarkana.

January 31, 1940.

Rehearing Denied February 22, 1940.

Appeal from District Court, Rusk County; Paul G. Brown, Judge.

Suit by W. D. Corbin and wife against C. L. Thompson and another to determine the plaintiffs' interest in oil producing properties, on ground that the plaintiffs and the named defendant had entered into a partnership or joint adventure agreement, for dissolution of partnership, for an accounting, for partition in kind or a sale, and for general relief. From a judgment in favor of the plaintiffs, the defendants appeal.

Judgment affirmed.

Butler & Price, of Tyler, and E. H. Lasseter, of Henderson, for appellants.

Brachfield & Wolfe, of Henderson, and W. H. Sanford and Conan Cantwell, both of Dallas, for appellees.

WILLIAMS, Justice.

This suit is grounded upon an alleged partnership or joint adventure, and involves certain mineral interests acquired respectively by plaintiffs, W. D. Corbin and wife, Martha, and C. L. Thompson, a defendant, in pursuance to an alleged agreement entered into on or about January 1, 1932, in which each would and did use his best efforts and endeavor to acquire mineral interests in the East Texas oil field. During 1932 and prior to December 7th, plaintiffs in the course of their operations acquired mineral interests in lands in the area. Title to same was taken in the name of plaintiffs. Prior to suit plaintiffs had developed a part of their acquisitions into oil-producing property. During the same period defendant Thompson also acquired mineral interests in the same area. Title to the property so acquired by him was taken in the name of C. L. Thompson and R. W. Fair. Prior to suit some of this property had also been developed into oil-producing property. On December 7, 1932, a charter was filed with the secretary of state which created Fair & Thompson Corporation. The mineral interests so acquired in the name of C. L. Thompson and R. W. Fair, including the oil-producing property, were listed, described and valued as part of the assets of the corporation. According to the affidavit, dated Nov. 22, 1932, filed with the charter, C. L. Thompson and wife, R. W. Fair and wife, and one Smith were named as the incorporators and directors, with Fair its president, Thompson, vice-president, and Smith, secretary. This listed Fair as a subscriber to $49,800 of the stock, Thompson to $49,900, and Mrs. Fair, Mrs. Thompson and Smith each $100.

Plaintiffs in their 4th amended original petition detailed and described the properties still held by them, the properties so acquired in the name of C. L. Thompson and R. W. Fair, and the respective oil-producing leaseholds, and alleged that 1/2 of the acquired interest in each parcel was assets of and belonged to the partnership of plaintiffs and defendant Thompson. Fair & Thompson Corporation was made a party defendant. Plaintiffs alleged that this corporation had full notice of the rights of plaintiffs at the time it is purported to have acquired title; that Thompson had excluded them from the management and control of the properties acquired by him; and had refused to recognize their interest in same or to render an accounting. Plaintiffs sought a determination of their interest in all the properties hereinbefore mentioned, a dissolution of the partnership, an accounting, partition in kind or by sale, and general relief.

Defendants Thompson and the Corporation filed a joint answer in which they urged a general demurrer and special exceptions, a general denial, a verified denial of partnership, and a plea of not guilty. Defendants further jointly answered in their third amended original answer that if a partnership agreement had been entered, which was denied, plaintiffs by their acts and deeds had repudiated and abandoned such alleged partnership agreement, in that plaintiffs had sold and assigned to others certain mineral interests which plaintiffs had acquired in their name. And that they were now estopped from asserting that such alleged agreement still continues as to any interest acquired by any of the litigants in 1932. The jury found in response to special issues Nos. 10, 11 and 12, that defendant Thompson had agreed to the assignments of the mineral interests which plaintiffs had made to these other persons. As no proposition or assignment attacks these findings, the defense of abandonment and estoppel will not be further noticed.

Defendants' propositions Nos. 1 to 5, inclusive, are directed to the sufficiency of plaintiffs' pleadings (1) to aver a partnership or joint adventure agreement between plaintiffs and defendant Thompson; (2) to impress a trust in favor of plaintiffs in and to the mineral interests acquired by defendant Thompson. That part of the petition pertinent here reads:

"That * * * On or about the first day of January, 1932, the plaintiffs and the defendant, C. L. Thompson, associated themselves together for the purpose of engaging in the oil business in * * * the East Texas oil field * * * and for the purpose of acquiring, developing, operating, selling and dealing in * * * mineral interests in said locality, and said plaintiffs and said defendant, C. L. Thompson, then agreed that during the continuance of such association that the plaintiffs, * * * and the defendant, C. L. Thompson, would each use their best efforts and endeavor to acquire interest in * * * mineral interests in said locality, and agreed that during the continuance of such association they would be partners in the ownership of all such * * * mineral interests acquired by them or either of them, the plaintiffs, W. D. Corbin and Martha A. Corbin, owning a one-half interest in such partnership and properties, and the defendant, C. L. Thompson, owning a one-half interest therein; and they then and there agreed that any and all such properties acquired by either of said parties during the continuance of such association should belong to said partnership and be owned by all of said parties in the foregoing proportions regardless of whose name the title should be acquired in. That said association continued during the whole of the year 1932 and as to the properties so acquired during such time, which are hereinafter described, it still continues.

"That during said year 1932 there were acquired by said parties, under the arrangement aforesaid and subject thereto, the following properties. * * *

"Regardless of whether the term partnership is applied to the relation of the parties under the facts alleged above (and such are here again alleged and repeated) one-half of the interest acquired by the defendant Thompson in the properties herein described and referred to, were acquired by him in trust for the plaintiffs herein under the agreement above alleged to jointly acquire lands or an interest in land."

Under propositions 1 and 2 defendants assert the pleading is wholly insufficient to allege the formation of a valid partnership, "in that there are no allegations in said petition that they united or pooled their labor, property, money or skill, or either of them in said partnership;" and further, "the alleged agreement of the parties to use their best efforts and endeavor to acquire mineral interests is too vague and uncertain as a basis for the formation of a valid partnership agreement." According to the pleadings, the consideration for the alleged partnership enterprise and the acquisition of the properties involved consisted of their mutual promises to use their best efforts and endeavor to acquire same, and the performance of such promises. The word "endeavor" means "to exert physical and intellectual strength toward the attainment of an object; a systematic or continuous effort." Webster's New International Dictionary. The mutual promises of the parties to a joint adventure are a sufficient consideration to support their contract. Miller v. Walser, 42 Nev. 497, 181 P. 437, 441; 33 Cor.Jur. 848, § 20; 42 Tex.Jur. 609; James v. Fulcrod, 5 Tex. 512, 519, 55 Am.Dec. 743. The trial court did not err in overruling said exceptions. See, also, ...