Ward v. Crow, 6196

• Decision Date: 12 January 1972
• Docket Number: No. 6196,6196
• Citation: 476 S.W.2d 77
• Parties: Bill WARD, Appellant, v. Marcus CROW and Wife, Betty Crow, Appellees.
• Court: Texas Court of Appeals

Page 77

476 S.W.2d 77

Bill WARD, Appellant, v. Marcus CROW and Wife, Betty Crow, Appellees.

No. 6196.

Court of Civil Appeals of Texas,

El Paso.

Jan. 12, 1972.

Cayton, Gresham & Fulbright, Karl Cayton, William E. Fulbright, Lamesa, for appellant.

Paul New, Denver City, for appellees.

OPINION

WARD, Justice.

This suit was filed by Appellees, Marcus Crow and wife, Betty Crow, against the Appellant, Bill Ward, seeking judgment removing the Appellant's claim to one-half of the cash and promissory note given to the Appellees upon the sale of two farms. The Appellant answered and filed cross-action asserting that he was entitled to one-half of the proceeds arising from the sale. Motion for summary judgment was filed by the Appellees and granted by the trial Court. On this appeal, we are of the opinion that the case must be reversed and remanded for trial as we are not satisfied that it clearly appears that only a question of law has been presented.

The summary judgment proof consists of the depositions of the parties, an affidavit of the Appellant made in opposition to the motion and copies of the various deeds, notes and lien instruments pertaining to the sales of the two farms. Disregarding all conflicts in the evidence and accepting as true, all evidence and every reasonable inference arising therefrom which tends to support the position of the Appellant, as we must on this appeal, we find that Marcus Crow and Bill Ward are brothers-in-law, Marcus Crow having married the sister of Bill Ward in 1957. In 1964, Marcus Crow left the armed forces to return to Gaines County to enter a farming venture with his father-in-law, Mr. A. C. Ward. This relationship with the father-in-law continued until January of 1967, and involved different farms with Marcus Crow being employed as a farm laborer with a share of the profits, as a tenant, or as an equal partner. Bill Ward was also farming at the same time under similar arrangements with his father, A. C. Ward. The inference is that these parties were very close to each other as a family unit. In the early part of 1967, both A. C. Ward and Bill Ward became insolvent from which misfortune each was discharged by bankruptcy proceedings. In January of 1967, Marcus Crow purchased two sections of land known as the Fulkerson farm, taking the title in his own name and paying the down payment from funds which he had secured by his own financing. In April of 1967, Bill Ward went to work for Marcus Crow on the Fulkerson farm and other properties as a manager and farm laborer for the sum of $300.00 a month, fuel for his truck, and a Christmas bonus. In the early part of 1968, Marcus Crow purchased an additional two sections of land known as the Ancell farm, again taking the title in his own name and paying the down payment from funds secured by additional financing. Prior to this purchase, Bill Ward had determined that he would not continue to work for wages the rest of his life and informed Marcus Crow that he was going to move from the area and would start life over again in some other locality. Upon hearing this, Marcus Crow offered a much more attractive proposition and as a result, the parties orally agreed that a venture would be undertaken whereby the Ancell farm would be purchased with the record title to be taken in the name of Marcus Crow; that both the Ancell and the Fulkerson farms would be held for resale and until a sale was made, the two farms would be operated by Bill Ward; that he would continue at the same salary but that half of the profits, if any, from the operation of the two farms would be split between the two partners and in the event of a sale of the two properties at a profit, the net profits would also be split. The Appellant's affidavit states that the agreement was in fact carried out and the Ancell property was purchased; that the Appellant, in reliance upon the agreement of the parties, moved upon the property and managed and operated the two farms and contributed his valuable services until the sale of both farms on December 31, 1969, when the two places were sold to John H. Schultz who assumed the outstanding indebtedness on the two farms and in addition, paid Marcus Crow the sum of $30,000.00 in cash and executed to him, a third lien note in the principal sum of $178,290.00. This represents the gross profit arising out of the sale of the properties.

Both by their pleadings and their motion for the summary judgment, the Appellees rely on the Statute of Frauds, Art. 3995a, Vernon's Ann.Tex.Civ.St., now Section 26.01 Tex.Bus. & Com.Code, and the Statute of Conveyances, Art. 1288, V.A.T.C.S., the parties also assuming that the Texas Trust Act, Art. 7425b--7 applies. It is the position of the Appellant as expressed by alternative pleadings that the oral agreements created a joint venture, partnership, or employer-employee relationship whereby the income from the operation of the farms would be equally divided and in the event of a sale, the Appellant would be entitled to one-half of the profits realized from the sale of the properties, the contractual relationship being unrelated to any interest in real estate. There are inconsistencies present from the position now taken by the Appellant in his affidavit and certain statements made in his deposition and in his pleadings themselves, but if conflicting inferences may be drawn from the depositions and from the affidavits of this same party, a fact issue is present. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1...