(273 S.W.)

the 15 acres which they had leased, and no | plore for oil and gas, places casing in the further efforts were made to develop same. well and erects derricks and places maThe evidence shows that five different wells were brought in by so many different companies on the 160-acre tract. As to whether they had been abandoned or not, the evidence is not clear. In December, 1920, Joseph Terry and others who made the original lease, and who were still the owners of the land, acting on the theory that the lease made in 1918 had lapsed, leased the entire 160 acres to J. N. Rushing, the lease containing the same provisions as contained in the lease from Terry and others to Mercer in 1918. Rushing thereafter transferred the lease to W. D. Terry, one of the owners of the land, and W. D. Terry conveyed same to his wife, Mrs. B. N. Terry, and she in turn, joined by her husband, transferred the oil lease to S. C. Herring, and then she individually attempted to convey the casing and fixtures in and around the well to S. C. Herring, the appellee herein. Herring was fixing to draw the casing from the well and remove the fixtures when this suit was instituted.

The trial court withdrew the case from the jury, and in its judgment found that appellant was entitled to the gas from the well, and enjoined appellee from drawing the casing or removing the rig, or from doing any thing that would endanger or injure the well, or that would in any way interfere with appellant's rights to the gas production so long as the well continued to be a producer. The court also entered judgment for appellee Herring, quieting his title and possession to the leasehold estate and to the casing in the well and the rig over same, and provided that appellee could remove same when the well ceased to be a producer.

The sole issue involved in this appeal is as to the action of the trial court in awarding to appellee the casing and fixtures in and over said well.

[1, 2] Appellant complains of the trial court's action in refusing to instruct the jury to return a verdict for it for the casing in the well and the fixtures used in connection therewith, which had been placed there by the Jasamine Oil & Production Company in the drilling of the well. We sustain this assignment. Under the terms of the lease contract, the lease continued in force so long as gas or oil was produced on the land, and the trial court found in its judgment, and said finding is established by the undisputed evidence, that the well was a producer, when it was brought in in March, 1920, and had continued as a producer up until the time of trial in 1924. It is an undisputed fact that appellant, by a regular chain of title, had purchased the casing and fixtures from the Jasamine Oil & Production Company. Appellee contends that since the well was a producer, the fixtures and casing thereby be. came a part of the realty. This position is untenable. Where a lessee, in seeking to ex273 S.W.-60

chinery on the ground for said purpose, it does not become a part of the realty. The contract given by the landowners to the Jasamine Oil & Production Company provides specifically that the casing and fixtures placed on the land by it could be removed. If the well had proved a dry hole, unquestionably the parties would have had the right to remove the casing within a reasonable time after the lease contract expired and the field had been abandoned. Because the well is a producer does not thereby change the title to either the personal or real property. So long as the well is a producer, neither the owner of the well nor the owner of the land would have a right to draw the casing and thereby destroy the well. Since all parties who are interested in the property have an interest in the well, no one would have a right to do any act that would destroy the rights of the cotenants or co-owners of the property. Clutter v. Wisconsin-Texas Oil Co. (Tex. Civ. App.) 233 S. W. 323; Id. (Tex. Civ. App.) 258 S. W. 265; Id. (Tex. Com. App.) 268 S. W. 921.

[3] Where a well is a producer and thereafter becomes a nonproducer, and by reason of its having ceased to be a producing well, becomes worthless, the lessee who owns the casing and fixtures has the right, within a reasonable time, to remove same, the same as though the well had been originally a dry hole. Perry v. Acme Oil Co., 44 Ind. App. 168, 88 N. E. 859; Gartland v. Hickman, 56 W. Va. 75, 49 S. E. 14, 67 L. R. A. 694; Thornton's Law of Oil and Gas (3d Ed.). par. 653. By reason of the fact that the well from its completion was and has been a producer, neither appellant nor his predecessors had a right to withdraw the casing and thereby destroy the well. By the same reasoning and the same rule of justice, if the well ceases to be a producer, the lessee, who put the casing and fixtures in and over the well, or its successors and assigns, would have the right to remove same as their personal, individual property.

[4] Appellee contends that he obtained title by reason of his purchase of the lease from the landowners. The Supreme Court, in Moore v. Carey Bros. Oil Co. (Tex. Com. App.) 269 S. W. 75, holds, in effect, that a sale of an oil and gas lease does not transfer or convey any interest in or to the casing in the well or the fixtures used in connection therewith located on the land covered by the oil and gas lease, for the reason that the casing in the well and the fixtures used in connection therewith are not any part of the realty. Appellee did not therefore obtain any interest in or to the casing or fixtures by reason of having purchased the oil and gas lease on said property.

[5] Appellee further claims that he owns the casing by reason of having, in February, 1924, a few days before this suit was filed,

void.

3. Names 10-Operating single gas well and sale of gas to single purchaser held "transacting business" within assumed name statute.

purchased same from Mrs. B. N. Terry. | 1007c), were precluded from recovering on Without passing on the question whether she, their contract for sale of gas, and contract was as a married woman, had the ability without being joined by her husband to dispose of the casing in the well, the record shows she did not have any interest or title therein and therefore did not convey any interest by the pretended bill of sale. At the time she executed and delivered the bill of sale to appellee, appellant was in actual possession and control of the well, the casing and fixtures, and was using the gas production therefrom and paying the royalty to the respective owners. Appellee was charged with notice of appellant's rights in and to said casing and fixtures, and was not an innocent purchaser thereof under the facts in this case.

The judgment of the trial court, in so far as it quiets the title to the casing in the well and the rig over same in appellee, is in all things reversed, and it appearing to the court that the facts with reference thereto are un

Operating of single gas well under oil and gas lease by parties operating under assumed name, and sale of gas therefrom to single purchaser, was "transacting business" within Acts 37th Leg. (1921) c. 73, §§ 1-7 (Vernon's Ann. Civ. St. Supp. 1922, arts. 59501⁄2-59501⁄2d, and Vernon's Ann. Pen. Code Supp. 1922, art. 1007e), requiring filing of certificate.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Transacting Business.]

4. Contracts 137(1)-Parties not precluded from recovering, if they can establish case without aid of illegal transaction.

Parties are not precluded from recovering on their contracts, if they can establish their controverted, judgment is here rendered quiet-case without aid of illegal transaction.

ing the title in and to the casing in the well in controversy and the rig over same, in ap pellant, Orfic Gasoline Production Company. Said casing, however, not to be pulled so long as the well is a producing well. It is ordered that appellee pay all costs of both the trial court as well as this court. In all other respects, the judgment of the trial court is

affirmed.

5. Names 10-Action on contract, executed by plaintiffs under assumed name without filing of certificate, held not maintainable on theory that they could establish case without aid of illegal transaction.

Where contract for sale of gas by plaintiffs operating under assumed name without filing certificate required by Acts 37th Leg. (1921) c. 73, §§ 1-7 (Vernon's Ann. Civ. St. Supp. 1922, arts. 59502-59501⁄2d, and Vernon's Ann. Pen. Code Supp. 1922, art. 1007c), was void and unenforceable, held that contract could not be enforced on theory that plaintiffs could estab

BRISTOL et al. v. CHAS. F. NOBLE OIL & lish case without aid of illegal transaction.

GAS CO. (No. 2484.)

(Court of Civil Appeals of Texas. Amarillo. April 15, 1925. On Reinstatement of Appeal, May 20, 1925. Rehearing Denied June 10, 1925.)

1. Appeal and error

759-Appellants' failure to bring assignments of error into brief required adverse disposition of appeal, in absence of "fundamental error."

Appellants' failure to bring assignments of error into brief, as required by rules of Courts of Civil Appeals, rule 32, and merely setting forth propositions not shown to relate to any assignments of error, required disposition of appeal adversely to appellants, in absence of fundamental error in record; "fundamental error" being error apparent of record.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Fundamental Error.]

On Reinstatement of Appeal.

2. Names 10-Failure to file certificate by parties doing business under assumed name made their contract void.

Appeal from Wichita County Court; Guy Rogers, Judge.

Action by W. E. Bristol and others against the Chas. F. Noble Oil & Gas Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for appellants.

Bonner, Bonner & Sanford, of Wichita Falls, for appellee.

RANDOLPH, J. This suit was filed in the county court at law of Wichita county, Tex., The trial by appellants against appellee. court rendered judgment in favor of appellee, and this appeal is from that judgment.

[1] The appellants have not brought forward in their brief any assignments of error, as required by rule 32 for the Courts of Civil Appeals, which is as follows:

"The brief shall contain verbatim copies of such of the assignments of error filed in the trial court and reproduced in the transcript as are relied on in the appeal, but their original numbering may be disregarded. They shall be set out in the back of the brief, but if desired, they may immediately follow the statement of

Parties doing business under assumed name, without having filed certificate required by Acts 37th Leg. (1921) c. 73, §§ 1-7 (Vernon's Ann. Civ. St. Supp. 1922, arts. 59501⁄2-59501⁄2d, and Vernon's Ann. Pen. Code Supp. 1922, art. facts."

(273 S.W.)

In the case at bar, appellants have filed their brief containing propositions which do not show that they relate to or are germane to any assignment of error, and no assignments are set out in the brief in the "back, front, or middle thereof." The failure to bring the assignments forward in the brief disposes of the appeal adversely to appellants, unless fundamental error is shown in the record. Jaffe v. Deckard (Tex. Civ. App.) 261 S. W. 398; Midland Rubber Co. v. Waldman (Tex. Civ. App.) 257 S. W. 929; Green v. Shamburger (Tex. Civ. App.) 243 S. W. 601; First State Bank & Trust Co. v. Blum (Tex. Civ. App.) 239 S. W. 1035.

A fundamental error is an error that is apparent of record, and such error is defined by the Supreme Court in the case of Houston Oil Co. v. Kimball, 103 Tex. 104, 122 S. W. 537.

"The language, 'apparent upon the face of the record,' indicates that it is to be seen upon looking at the face of the record, that is, the assignment itself, the fact pointed out by it must show a good and sufficient ground for the court to interfere to prevent injustice being done to one of the parties. Perhaps the best expression is that it must be a fundamental error, such error as being readily seen lies at the base and foundation of the proceeding and affects the judgment necessarily. If we take the first assignment in its terms there is not apparent upon the face of that record any one of the things pointed out in the propositions under it. By an examination of the record it might be found that the facts existed as claimed in the propositions, but they are not manifest and not evident, not obvious, without an examination and weighing of the evidence to determine whether or not the assignment

is well taken."

*

they made a contract with him, as such agent, whereby, instead of making the tests due in October, 1922, and January, 1923, appellee was to make a test as soon as it procured an accurate testing machine, and that. such tests would be as having been made at the proper time in October, 1922, and would furnish a means of calculating payments for the months of October, November, and December, 1922, and January, February, and March, 1923.

Appellants further allege that, when the test was finally made, it showed a gasoline content of 12.4 gallons per 1,000 cubic feet, whereas, payments for gas made to appellants for the months of October, November, and December, 1922, and January, 1923, were based on a lower content, alleged that instead of the $581 which they have received for the gas, they should have been paid $1,121.33, under their agreement with Auers, and, further, that an accurate test of said lease would have shown it to produce gasoline with a content of 12.4 gallons per 1,000 cubic feet, and that appellee, by taking such gasoline, was obligated to pay appellants at that rate during the period of time above

indicated.

The appellee filed a special plea in bar of appellants' action, that appellants had been doing business under an assumed name, to wit: The name of "Eighty-Four Syndicate"; that the only contract had between appellants and appellee was a division order made in the name of the "Eighty-Four Syndicate"; and that in all transactions in connection with said lease had by appellants and appellee, appellants were acting under an assumed name, to wit: The name of "Eighty-Four Syndicate"; that appellants had never filed

There being no such error in the record, the assumed name certificate required by we dismiss the appeal in this case.

chapter 73, Laws of the 37th Legislature (1921) page 142. In addition, appellee pleaded general and special exceptions, general denial, and denial under oath of the agency of Auers, and further, that it had made all payments for the casing-head gas taken by it.

On Reinstatement of Appeal. This suit was filed by appellants against appellee in the county court at law of Wichita county, Tex., to recover money alleged to be due upon a contract of sale, which suit [2] The case was tried before a jury, and was based upon allegations that appellants were the owners of an oil and gas lease in court, they returned answers favorable to upon issues submitted to them by the trial Wichita county, which contract, as alleged in plaintiffs' petition, provided for the sale of appellants' contentions. The trial court had the casing-head gas from an oil and gas lease taken under advisement, during the trial of owned and operated by them, for a stipulated the case, appellee's plea in bar, and sustained price per 1,000 cubic feet, based on the gaso-without reference to the verdict of the jury said plea and rendered judgment for appellee line content of such gas.

Appellants allege in their petition that the appellee was by the terms of said contract required to make tests every three months to ascertain such content, and that one such test was due to be made in October, 1922, and another in January, 1923, but at the time these tests were required to be made appellee's testing machinery was not in shape to make an accurate test; that J. R. Auers was appellee's agent, actual or apparent, and that

upon the issues so decided by them, and this judgment is now presented to us for review. This suit was originally styled "Eighty-Four Syndicate v. Chas. F. Noble Oil & Gas Company" and the parties hereto have agreed that, at all times mentioned in plaintiff's petition, the appellants were partners and operating under the same name and style of "Eighty-Four Syndicate."

The Assumed Name Act, passed by the

Thirty-Seventh Legislature, is in words as follows:

"Sec. 1. No person or persons shall hereafter carry on or conduct or transact business in this state under any assumed name or under any designation, name, style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business unless such person or persons shall file in the office of the clerk of the county or counties in which such person or persons conduct, or transact or intend to conduct or transact such business, a certificate setting forth the name under which such business is, or is to be, conducted or transacted, and the true or real full name or names of the person or persons conducting or transacting the same, with the post office address or the addresses of said person or persons. Said certificate shall be executed and duly acknowledged

dollars nor more than one hundred dollars, and each day any person or persons shall violate any provisions of this act shall be deemed a separate offense.

"Sec. 7. The fact that there is now no law

providing for the registration of the names of persons doing business under assumed or fictitious names, and that the absence of such law impairs the stability of credits in the state, creates an emergency and imperative public necessity requiring that the constitutional rule that bills shall be read upon the three several days shall be suspended, and it is hereby suspended and this act shall take effect from and after its passage, and it is so enacted."

The purpose of the Legislature in passing this act, as indicated in the emergency clause, was to prevent the impairment of credits in this state, and carries with it a penalty for its enforcement. This act is carried into Vernon's Ann. Civ. St. Supp. 1922, and num

by the person or persons so conducting or intending to conduct said business in the manner now provided for acknowledgment of convey-bered 59502, 59502a, 59502b, 5950c and ance of real estate.

"Sec. 3. Whenever there is a change in ownership of any business operated under any such assumed name as set out in section 1 hereof,

the person or persons withdrawing from said business or disposing of their interest therein,

shall file in the office of the clerk of the coun

SO

59502d, and section 6 of the act is left out of their civil statutes, but is carried into their publication of the criminal statutes as article 1007c, p. 2272, Penal Code of Texas 1922.

"Sec. 2. Persons now owning or conducting such business under an assumed name or under any such designation referred to in section 1, shall file such certificate as hereinbefore prescribed, within thirty days after this act The appellants attack the judgment of the shall take effect, and persons hereinafter owning, conducting or transacting business afore-trial court in sustaining the appellee's plea said shall before commencing said business file in bar upon the following grounds: (1) Under such certificate in the manner hereinbefore prea proper construction of the statute, appelscribed. lants are not denied the right to recover upon contracts made in the assumed name; (2) it appearing that the appellants simply owned an oil and gas lease with one well on it, and that the only alleged business transaction was the operation of said lease, appellants were not conducting a "business" within the terms of the assumed name statute; (3) even if appellants were not entitled to recover upon the contract they made with Auers whereby, when the new machine of the appellee should come and a test could be made, the actual content shown by such test would be effective as of date October 1st, because of noncompliance with the assumed name statute, appellants were nevertheless entitled to recover upon the following theory. The undisputed evidence showed that the appellee had made a contract with Crenshaw & Cowden, whereby it was permitted to take the casing-head gas, and whereby it bound itself to pay the owner of said lease a royalty, based upon accurate tests; and the undisputed evidence further showed that in October of 1922, when its test was due, and in January, 1923, when another test was due, no accurate test could be made; and the jury having found, and the undisputed evidence showing that an accurate test in October would have shown 10.5 gallons instead of 6, upon which latter basis appellants were paid; and the jury having found the payments on the basis of 6 gallons per 1,000 cubic feet were not tendered nor accepted as payments in full, and was thus shown by the undisputed evidence, with

ty or counties in which such business is being conducted and has a place or places of business, a certificate setting forth the fact of such withdrawal from or disposition of interest in such business; and until he has filed such certificate he shall remain liable for all debts incurred in the operation of said business, which certificate shall be executed and duly acknowledged by the person or persons withdrawing from or selling their interest in said business in the manner now provided for acknowledgment of conveyance of real estate. "Sec. 4. The several county clerks of this state shall keep an alphabetical index of all persons filing certificates, provided for herein, and for the indexing and filing of such certificates they shall receive a fee of one dollar. A copy of such certificates duly certified to by the county clerk in whose office the same shall be filed shall be presumptive evidence in all courts of law in this state of the facts therein contained.

"Sec. 5. This section shall in no way affect or apply to any corporation duly organized under the laws of this state or to any corporation organization under the laws of any other state and lawfully doing business in this

state.

"Sec. 6. Any person or persons owning, carrying on or conducting or transacting business aforesaid, who shall fail to comply with the provisions of this act, shall be guilty of a misdemeanor and upon conviction thereof shall be

rate tests.

(273 S. W.)

or necessary, to the fact that the appellants tract, 293; Drury v. Defontain, 1 Taunt. 136; were conducting a business under an assumed Meyers v. Meinrath, 101 Mass. 363, 3 Am. name that they, as owners of the property, Rep. 368; Lyons v. Armstrong, 6 Ver. 219; were entitled to receive, under the original Harris v. Runnels, 12 How. 79, 13 L. Ed. 901; Crenshaw & Cowden contract, the value of Gibbs v. Gas Co., 130 U. S. 396, 9 Sup. Ct. 553, 32 L. Ed. 979; Miller v. Ammon, 145 U. S. 421, the casing-head gas taken, based upon accu- 12 Sup. Ct. 884, 36 L. Ed. 759, and cases cited. This rule has been recognized and adopted in The question presented to us here, as ap- Shattuck v. Watson, 164 Mich. 167, 129 N. W. plicable to the particular statute set out 196, wherein the following language is used: above, has been passed on in this state, only 'It is a well-settled principle of law that all by the Court of Civil Appeals at El Paso. contracts which are founded on an act proLoving v. Place, 266 S. W. 231. The deci-hibited by statute under penalty are void, alsions in the other states considering statutes though not expressly declared to be.' containing substantially similar provisions distinguished from the one at bar in the par"It is urged that the Shattuck Case can be are conflicting, but the great weight of au- ticular that the former is directly aimed at a thority is with the proposition that the party contract which the law prohibits in the intertransacting business under assumed name, in est of public health and safety; the decision violation of the statute requiring the filing of being founded on public policy, to protect citthe certificate set out in said statute, is not izens against unlicensed and unskilled pharmaonly subject to a penalty, but that contracts cists and resultant hazard to human life. It made during such period of noncompliance, is true that the object of the act in question is not to safeguard human life or health; but when asserted by the offending party, are unenforceable by him, and that a statute, which prohibits such transactions, carries with it by implication, in addition to the penalty protect the public health, and the other to protect vided therein, a prohibition against such party bringing or maintaining a suit to enforce his claim for compensation on said transaction.

The Supreme Court of Oregon, in the case of Uhlmann v. Kin Daw, 97 Or. 681, 193 P. 435, has classified the cases considering the various "assumed name" statutes, in those states where such statutes are in existence, into three groups or classifications. The second group is the one we shall consider here, as the decisions of that group involve the construction of statutes substantially similar in their terms and provisions to our statute above quoted, and we accept the classification made by said court as being substantially correct. In such second group the statutes under consideration provide that the failure to file a certificate makes the party so failing guilty of a misdemeanor, and the only penalty prescribed is fine or imprisonment, and there is no provision that any contract or transaction is to be void, or that a suit cannot be maintained upon such cause of action. The leading case upon the question is one by the Supreme Court of Michigan (Cashin v. Pliter, 168 Mich. 386, 134 N. W. 482, Ann. Cas. 1913C, 697), and from which we make free quotation because of the cogency of the reasoning-holds as follows:

"Parties doing business with those acting under an assumed name, whether they buy or sell, have a right, under the law, to know who they are, and who to hold responsible, in case the question of damages for failure to perform or breach of warranty should arise.

"The general rule is well settled that, where statutes enacted to protect the public against fraud or imposition, or to safeguard the public health or morals, contain a prohibition and impose a penalty, all contracts in violation thereof are void. Pollock's Principles of Con

both laws are founded on public policy. They are acts of the same class, coming within the police power of the state; one being to pro

the public from imposition and fraud. Each prohibits certain acts, and each makes the violation a criminal offense punishable by fine and imprisonment.

"In interpreting the statute under consideration, it can be contended with reason, and in harmony with former decisions of this court construing acts somewhat analogous, we are inclined to the view that it is not the intent to render a contract made in violation of this act absolutely null and void for every purpose. While, as heretofore stated, the general rule is well settled that a contract made in violation of a statute is void when the statute is oththe contrary is to be inferred, nevertheless the erwise silent, and contains nothing from which diversity of legislation gives rise to varying exceptions to this rule; and before applying it in full the court should carefully scrutinize the particular statute under advisement, for the purpose of ascertaining, from the subject-matter and language used, the object for which it was enacted and the intent of its makers, to the end that such intent may be rendered effectual and the indicated purpose accomplished. As this act involves purely business transactions,. and affects only money interests, we think it should be construed as rendering contracts made in violation of it unlawful and unenforceable at the instance of the offending party only, but not as designed to take away the rights of innocent parties who may have dealt with the offenders in ignorance of their having violated the statute."

The Cashin Case has been approved and followed by the Michigan Supreme Court in the case of Maurer v. Greening Nursery Co., 199 Mich. 522, 165 N. W. 861, 168 N. W. 448. The rule as laid down in the Cashin Case, supra, is upheld in the following states: Kentucky, in Hunter v. Big Four Auto Co., 162 Ky. 778, 173 S. W. 120, L. R. A. 1915D, 987; Indiana, Horning v. McGill, 188 Ind. 332, 116 N. E. 303; North Carolina, Courtney v. Park