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ed the remainder of said broom corn, one half fact which do not support the assignment. thereof being stored in a warehouse near Che The contention is that Cheney and appellant ney's residence, and the other half thereof being were partners, and that the broom corn that stored in some other warehouse and turned over

was insured was partnership property as to Edwards, who thereafter disposed of it.

“Said Edwards and Cheney at the time of said well as the deposited fund, and that Cheney division of said broom corn had had no final set

was indebted to appellee as a partner. The tlement of their partnership affairs, and that court found that the broom corn had been moneys that had been advanced by Edwards had raised, threshed, and baled; that the landnot been returned to him by Cheney. And that lord had received his part for rent; and that both recognized that Edwards had an interest in the balance was divided between appellee the corn held and stored by Cheney to the ex- and Cheney. Appellee disposed of his share, tent of the amount still owing to Edwards by and Cheney insured and stored his part, and Cheney for advances. “I further find that after such division and Cheney owed appellee certain sums, and it

it was destroyed by fire. It was found that before August 14, 1918, that said Cheney sold to said Edwards a certain quantity of broom was recognized by both that there was a corn from the warehouse near Cheney's resi- charge on Cheney's part until his debt was dence at a fixed price, and that Edwards ad- paid. This could not have amounted to more vanced to Cheney a certain amount of money as than a verbal lien, because the broom corn a portion of the purchase price of said corn and was the property of Cheney which had been credited Cheney's account with the remainder allotted to him in the division of the crops. of said purchase price; but it was understood Cheney gave a mortgage on the broom corn that the remainder of the corn was still charged with the balance due Edwards by Cheney.

to secure a debt to the National Bank of “On or about the 14th day of August, 1918, Beeville and insured the same for the beneH. S. Cheney went to the First National Bank fit of the bank, and R. B. Jones signed a of Beeville and borrowed $200 on his promis- note to the bank as surety for Cheney, and sory note, due October 14, 1918, and gave a the bank transferred the mortgage and inmortgage on said broom corn then stored near

surance policy to Jones to secure him. He his residence in his own name and for his own paid off the note on which he was surety. It use and benefit to said bank to secure the pay

was never paid by Cheney. At the time that ment of said note, and any additional indebtedness to said bank to be created by him there the mortgage was given and the policy of after; that on said date he also took out with insurance secured on the property which had the Commercial Union Assurance Company, Lim- by agreement with appellee been allotted as ited, of London, England, a fire insurance policy his part of the broom corn, it was in his in the sum of $2,000 on said broom corn in his exclusive possession, and no one knew of own name and paid the premium out of his own any secret agreement between him and his private funds and had a loss payable clause at- former partner of any claim or charge aptached to said policy payable to the First Na- pellee might have against the broom corn. tional Bank of Beeville, as its interests might appear. On the 27th day of August, 1918, the The broom corn given to Cheney in the divisaid Cheney went to said bank and borrowed sion of the crop was no longer partnership an additional $150 on his own promissory note, property, and authorities denying power to due October 14, 1918, for his own use and bene- a partner to mortgage partnership property fit, the same to be secured under said mortgage to secure the debt of that partner have no and fire insurance policy. Thereafter, along pertinency or applicability to the facts of about the 3d day of September, the said Cheney this case. The partnership was to all inwent to said bank and borrowed $250 additional,

tents dissolved, and the broom corn allotted and by agreement a $600 note was given to the to Cheney was his individual property. said bank signed by H. S. Cheney as principal and R. B. Jones as surety, and on said date, the

[2] Appellant by his action in suing out two notes for $200 and $150 respectively, the

the writ of garnishment recognized the fact mortgage securing said notes and the insurance that the insurance money belonged to Chepolicy payable to the bank as its interests might ney, and the whole contest was as to whom appear, were transferred by said bank to said the insurance money should be paid. Che.. R. B. Jones, the said Cheney agreeing to said ney had insured his interest in the broom corn transfer, to secure Jones against the liability he

whatever it may have been, and had transincurred by signing said $600 note, said note ferred that interest to the bank, and the being given by Cheney and Jones for the sole bank had transferred it to R. B. Jones to use and benefit of said H. S. Cheney."

secure a debt paid off by Jones. There was Appellant had a judgment against Cheney no insurance for the partnership because for $1,000. Other facts necessary to an un there was none, and no secret agreement derstanding of assignments of error will be made with appellee could give him prefergiven in connection therewith. There were ence over bona fide creditors. It would be no objections urged to the facts found by inequitable and unjust to permit partners the trial judge.

to make a partition of partnership funds, [1] The first assignment of error is found each partner being placed in possession of ed upon a statement of facts which is not his portion, and then allow one of them to before this court, and the statement given claim a lien on the property allotted to the under it is a quotation from the findings of other and take precedence over bona fide

AND

ERROR

(218 S.W.) creditors who had dealt with him on the 2. CONTRACTS 59 OPTION CONNECTED faith of the property given to him in the WITH AGREEMENT SUPPORTED BY SUFFICIENT division of the partnership assets. Such is CONSIDERATION. the case presented by the findings of fact of Where, in a contract supported by a suffithe trial judge. The broom corn belonged cient consideration, an option is given to one of to Cheney, and on the faith of it he borrow. the parties, the option is valid and enforceable, ed money, gave a mortgage on it, and insured though there is no independent or specific con

sideration therefor. it and transferred the insurance to the bank from which he had borrowed the money.

3. SALES w 150(1) OPTION TO PURCHASE The assignnients of error are without

SUPPORTED BY CONSIDERATION NOT AFFECTED

BY REFUSAL TO DELIVER. merit, and the judgment will be affirmed.

Where buyer of oil agreed to take 2,000 gallons of oil per day, but contract gave him the option of purchasing all oil produced by

the seller in excess of such amount at the same ROTH et al. v. LOFTIN. (No. 524.) price, the seller could not, by refusing to de

liver the oil produced in excess of the 2,000 gal(Court of Civil Appeals of Texas. Beaumont. lons, affect the right of the purchaser to have Jan. 9, 1920.)

such excess oil at the specified price. APPEAL

494 DISMISSAL

Appeal from District Court, Harris CounWHEBE RECORD SHOWS NO APPEALABLE OB

ty; B. F. Louis, Special Judge. DER OR JUDGMENT. Where the record fails to disclose any final

Suit by Blaffer & Farish and another judgment or appealable order, the Court of against the Gulf Pipe Line Company. JudgCivil Appeals has no jurisdiction, and the ap- ment for defendant, and plaintiff's appeal. peal will be dismissed.

Affirmed. Appeal from Hardin County Court; J. M.

L. A. Carlton and Otis Meredith, both of Combs, Judge.

Houston, for appellants.

D. Edw. Greer, of Houston, for appellee. Action between W. D. Loftin and Jake Roth and others. Contending that the coun LANE, J. This is a suit brought by apty court erroneously granted and perpetuat- pellants, Blaffer & Farish and the Paraffine ed an injunction in favor of the former, the Oil Company, a corporation, against the Gulf latter appeal. Appeal dismissed.

Pipe Line Company, a corporation, to recover B. F. Creel, of Cushing, for appellants.

40 cents per barrel on 17,627.82 barrels of B. A. Coe, of Kountze, for appellee.

oil, designated by all parties as excess oil,

which was delivered to the defendant Gulf HIGHTOWER, C. J. This is an appeal Pipe Line Company under certain contracts from the county court of Hardin county; and agreements existing between it and the appellants contending in their brief that the plaintiffs. The causes of action of the two county court of Hardin county erroneously plaintiffs were separate causes of action, but, granted and perpetuated injunction as they are so identical that a determination against them in favor of the appellee. of one determines the controversy concerning

An inspection of the record in this case each, it was agreed by all parties that the fails to disclose any final judgment or ap- plaintiffs might bring their suits jointly. pealable order by the county court of Har- The cause was tried without a jury upon an din county in this cause, and for such reason agreed statement of facts, which is in subthis court has no jurisdiction of this appeal. stance as follows:

It is therefore ordered that the appeal be On the 30th day of July, 1915, appellants dismissed at appellants' cost.

Blaffer & Farish, at Houston, Tex., wrote
Harry C. Hansen, agent for the appellee
Gulf Pipe Line Company, at Beaumont, Tex.,

as follows: BLAFFER & FARISH et al. v. GULF PIPE

"Your letter of the 29th inst. in reference to LINE CO. (No. 7791.).

oil contract on Paraffine 40 acres, received.

We are willing to sell Blaffer & Farish's one(Court of Civil Appeals of Texas. Galveston. third of same for nine months from, say August Dec. 17, 1919.)

1st, which will be about six months' produc

tion, at the price of 60 cents per barrel. I 1. SALES E71(5)—AGREEMENT FOR SALE OF

was talking to Mr. Weis and it is his idea, OIL GAVE PURCHASER OPTION TO TAKE EX- and I agreed with him, that you ought to give CESS OIL AT SAME PRICE.

the lease a little larger limit on production, A contract to purchase oil at a certain price because we would like to have you take care per barrel, buyer not being obligated to take of any production we might get, and it is posmore than 2,000 gallons per day, held to give sible that we will get three or four thousand buyer option to take the total output of the barrel well. Mr. Weis will see you to-morrow seller's oil well at the specified price.

about same." wwFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

an

On July 31, 1915, Hansen, for appellee, (at Beaumont, Texas, and that the price to be replied:

paid by the company is sixty cents per barrel

of forty-two gallons each. Settlements are to “I have your letter of the 30th, and hand you be made for oil purchased hereunder when reherewith oil purchase contract covering your quested by the seller from time to time, not one-third interest in the Paraffine 40 acres at oftener than once in each seven days' period. Humble. Mr. Wiess talked to me to-day about

“The company shall not be liable for any dethe maximum, bu I am unwilling to make this lay in the receipt of oil under this contract or for more than 1,000 barrels, and Mr. Wiess into its pipe lines caused by strikes of emhas decided to accept my offer. Therefore, as- ployés, accidents or injury to its pipe lines or sume you will desire to do likewise. Kindly pumping machinery or other equipment, or by sign the attached contract and return original any cause which could not reasonably be forecopy for my files.”

seen or avoided, and in any such case the comOn the 31st day of July, 1915, after the oil until the expiration of a reasonable time

pany shall be relieved from any duty to receive passage of the above letters, the appellants within which to do so after the termination Blaffer & Farish and the appellee Gulf Pipe of such strike or repairment of such injury or Line Company entered into the following removal of other causes preventing such rewritten contract:

ceipt.

“The seller agrees, in case of any adverse “Gulf Pipe Line Company Oil Purchase claim of title, to furnish to the company, upon Contract.

demand, an indemnity bond executed by a liContract No.

Division Order No. censed surety company, against such adverse "This evidences the sale by Blaffer & Farish, the company may retain oil received into its

claim or claims, and unless the seller does so hereinafter called the ‘seller,' to the Gulf Pipe lines or the proceeds of the sale thereof until Line Company, of Beaumont, Texas, hereinaft- the dispute as to ownership is settled, and that er called the company,' of certain crude petro- this contract shall operate between its sucleum as herein designated, being our portion, to-wit, one-third of the total production from be binding upon them and each of them.

cessors and assigns of both parties hereto and wells one and up on the Paraffine forty acres,

"Executed in duplicate, Beaumont, Texas, Humble, Harris Co., Texas, for the period beginning August 1, 1915, at 7 o'clock a. m., and this 31st day of July, 1915.

"Blaffer & Farish, ending April 1, 1916, at 7 o'clock a. m. The

"By W. S. Farish. terms and conditions of this sale are as follows: "Our portion of all the petroleum oil produc

"Gulf Pipe Line Company, ed from said wells during said period of time

"By Harry C. Hansen." shall be by the seller thoroughly settled and put in marketable condition, and run into tanks

On the same day the appellant Paraffine connected with the pipe lines of the company, Oil Company and appellee also entered into or to be connected therewith at its expense. In a contract identical in its terms with the ascertaining the gauge tank measurements such contract set out above; the only difference deduction shall be made on account of sediment in the two being the difference in the names and impurities which may be held in suspense of the sellers of the oil. On the date of the and for excess temperature as are provided for by the existing rules and regulations of the execution of the contracts mentioned, each of Gulf Pipe Line Company.

the plaintiffs, appellants here, owned a one“The company is to receive from said tanks third interest in the Paraffine 40-acre tract into its pipe lines all the quantity of oil as thus of land, described in the contracts. At the ascertained: Provided, however, that it shall time of the execution of the contracts the not be required to receive or purchase any oil appellants and the party owning the other heavier than 15 degrees Beaumé, but may do one-third of the land contemplated the develso at its option; nor more than one thousand opment of same for oil. Oil was found on barrels per day, which is the maximum quantity that the company is required to take under the land, and so long as the one-third part this purchase per day during the period of this thereof belonging to each of the appellants contract. The company is to have the right did not amount to more than 1,000 barrels under this contract at the time of or prior to per day said oil was run into the pipe line any settlement and payment for oil theretofore of appellee, as provided by the contracts, and received to purchase at the price herein named was taken and paid for by appellee at the all excess or any part of such excess over said rate of 60 cents per barrel, as per the condesignated quantity of the oil which the com

tracts. On or about the 1st day of March, pany may receive into its pipe lines as also any oil heavier than 15. degrees Beaume, all such 1916, the part of the production coming to excess and all heavier oil which the company each of the appellants began to amount to may receive into its lines and not purchase is more than 1,000 barrels per day. As soon as to be run to the credit of the seller as a regu- it was discovered that the production for lar pipe line run as directed in the division or- each of said parties exceeded 1,000 barrels der, and subject to the usual rules, regulations, per day, a controversy arose between the and charges of the company. "It is further understood that run tickets Line Company, on the other part,

plaintiffs, on the one part, and the Gulf Pipe for oil from said wells are to be made as per whether the plaintiffs were bound by the con

as to division order on file with the 'company' and that payment for oil purchased by the com-tract to run into the line of and sell to the pany' hereunder is to be made to the 'seller,' Gulf Pipe Line Company all of the oil re

(218 S.W.) spectively produced from their part of the, as to a proper interpretation of their contracproperty and owned by them, although same tual relations, and there is a bona fide issue might amount to more than 1,000 barrels per between them, defendant consents that this day each.

suit may be brought in the manner and form The plaintiffs contended that they were that it is brought, and no technical objeconly compelled to run into the line and sell | tions will be interposed on account of a misto the Gulf Pipe Line Company 1,000 barrels joinder of plaintiffs. per day each from that part of the oil pro The two contracts—that is, the one with duced from the property, respectively owned Blaffer & Farish, and with the Paraffine Oil by them. On the other hand, the Gulf Pipe Company-bear the same date, were written Line Company contended that it was not only on the same form, and are identical in their entitled to have all of the oil of each party terms. Upon this agreed statement of facts run into its line, but that it had the right the trial court rendered judgment decreeing and option to take and pay for the whole of that the plaintiffs, Blaffer & Farish and same at the price of 60 cents per barrel, be Paraffine Oil Company, take nothing by their it more or less than 1,000 barrels per day suit, and that the defendant Gulf Pipe Line each, and notified plaintiff that it desired Company go hence without day, etc. The and demanded that all of the production of plaintiffs have appealed, and jointly present plaintiffs from said land should be run into this appeal. They have also joined in the its line, and notified plaintiffs that it had brief for appellants filed in this court, and elected to purchase all of said production at the assignments presented are applicable to the price named in the contracts.

both appellants. Plaintiffs refused to acquiesce in this con By the first and second assignments it is struction of the contract, and refused to run insisted that the effect of the trial court's into the line and sell to defendant, as de- finding was that the defendant, Gulf Pipe manded, the said excess oil. Thereupon the Line Company, had the right and privilege said parties, without prejudice to the rights to compel the running of the excess oil into of either, entered into a contract of date its pipe line, and that it had the option and March 9, 1916, by which it was agreed that privilege to buy same at the contract price of the whole of the production of each of the 60 cents per barrel, and consequently, under plaintiffs should be run into the line; that the facts agreed to, it owed plaintiff nothing; the defendant Gulf Pipe Line Company that upon such findings appellants were deshould take and pay for 1,000 barrels per day nied a recovery, and that such findings and each from the respective parties; that it, the acts of the court constitute reversible error, defendant, should also take and pay for at for the reason that the undisputed evidence the contract price named, the excess over shows that plaintiffs were entitled to recover, 1,000 barrels per day so owned and going to And by the third assignment it is insisted the respective parties.

that the outright purchase by the defendant At the time of the controversy, and at the from each of plaintiffs of 1,000 barrels of oil time the excess oil was run into the pipe line per day was so separable from the asserted of the appellee, oil was worth $1 per barrel. privilege to buy any excess over and above The whole of plaintiff's' portion of the oil ihat amount per day as that this absolute obwas run into defendant's line as produced, ligation to buy would not be a consideration and was taken and paid for by defendant at for the privilege claimed; therefore the court the price of 60 cents per barrel. During the erred in failing and refusing to render judgperiod of the contracts the excess oil (that ment in favor of plaintiffs against the deis, the excess over 1,000 barrels per day each), fendant for the excess at the price and upon run into the line, taken and paid for by the the terms provided in the stipulation. Gulf Pipe Line Company at the rate of 60 [1, 2] We think that neither of these concents per barrel, amounted to 17,627.82 bar- tentions should be sustained. We are of rels. One-half part thereof belonged to the opinion that the contracts between the parplaintiff Paraffine

Oil Company. The ties constitute entire contracts, and that the 17,627.82 barrels, at 40 cents per barrel, considerations recited support, not only the amounts to $7,051.13. If the plaintiffs re- sale of the 1,000 barrels of oil by each of the cover herein, Blaffer & Farish are entitled to plaintiffs, but as well the right of defendant the one-half part of this amount, and the to demand the placing of thë excess oil in Paraffine Oil Company the other one-half part the settling tank to which defendant had thereof.

attached its pipe line, and the right of deIn all other respects than above indicated | fendant to run said excess oil into its pipe the contract has been complied with by both line, and thereafter, at the time of or prior the plaintiffs and defendant, and unless the to any settlement and payment for oil thereplaintiffs are entitled to recover the 40 cents tofore received, to purchase the same by payper barrel for the excess oil so run into the ing therefor the price stipulated in the conline and appropriated by the defendant, they tract. Where in a contract supported by a are entitled to nothing. While the plaintiffs sufficient consideration an option is given to and the defendant have been unable to agree one of the parties, the option is valid and

DEFENSE

OF

OF

FERRY

UP.

enforceable, though there is no independent, which was proved, it is immaterial that by or specific consideration for the option. We way of implication the petition also charged think that these conclusions reached by us the ferry was held down at the bottom of the are supported by the following authorities: stream by the car, and proof of the mere averGrifin v. Bell, 202 S. W. 1034; Allegheny Oil ment of sinking would fasten liability on the Co. v. Snyder, 106 Fed. 764, 45 C. C. A. 604; the first sinking with the car the ferry, relieved

insurer, though there was showing that after Connersville Wagon Co. v. McFarlan Car- of weight by the car's having slid off, rose again riage Works, 166 Ind. 123, 76 N. E. 291, 3 L. to the surface. R. A. (N. S.) 709; Jordan v. Indianapolis Wa

2. INSURANCE 424 DEFENSE OF UNSEAter Co., 159 Ind. 337, 64 N. E. 680; Kruegel v.

WORTHINESS NOT APPLICABLE TO CONTRACT Berry, 75 Tex. 230, 9 S. W. 863; Brink v.

INSURING AUTOMOBILE FROM SINKING WHEN Mitchell, 135 Wis. 416, 116 N. W. 16; De TRANSPORTED BY WATER, Rutte v. Muldrow, 16 Cal. 505; Perry v. Pas

In an action on a policy insuring an autochal, 103 Ga. 134, 29 S. E. 703.

mobile from fire, explosion, lightning, burning, To give the contract under consideration derailment, collision, and stranding or sinking the construction which we think it should re of any conveyance by land or water in which

the car ceive, it means that the appellee, Gulf Pipe

was being transported, the defense Line Company, at its option, had the right of unseaworthiness of the ferry in which the to receive into its pipe. line any and all oil car was being carried when the ferry sunk

was not applicable to the particular contract, produced by appellants from the 40 acres of in view of the nature of the risk. land described, and also at its option had the riglat, at the time of or prior to any settle- 3. APPEAL AND ERROR Cw173(14)—WAIVER OF

UN SEAWORTHINESS men and payment for oil theretofore re

CARRYING AUTOMOBILE BY FAILURE TO SET ceived, to purchase any oil it unight run into its pipe line in excess of the 2,000 barrels per

In an action on a policy, insuring an autoday which it had obligated and bound itself mobile against sinking while being transported to purchase, at 60 cents per barrel, the price by water, the defense of breach of any implied stipulated in the contract.

warranty of seaworthiness of the ferry in [3] If we are correct in holding that there which the car was being transported was waiv. was a consideration passed from appellee to ed by failure to set it up by pleading or other

wise in the trial court. appellants for the option to buy the ēxcess oil, then it is manifest that, since appellants 4. APPEAL AND ERROR 1033(5)-INSTRUChad for a valuable consideration sold appel TION AS TO DAMAGES IN FAVOR OF INSURER lee the right to purchase such excess oil, NOT INJURIOUS TO IT. they should not be permitted to take advan In an action on a policy insuring an autotage of their refusal to deliver such excess mobile against sinking when being transported oil into the settlment tank to which appellee by water, such sinking of a ferry having ochad connected its pipe line, by reason of the curred, where the policy provided recovery could

be had for what it would have cost insured to terms of the contract, and in this manner repair or replace damaged parts, instruction bring about a condition rendering it impos-on damages, enlarging to some extent on such sible for appellee to avail itself of the op- provision by limiting amount of recoverable tion to purchase the excess oil, for which it damages to what it would take to repair parts had paid a valuable consideration.

properly repairable, etc., being more liberal Having reached the conclusion that no than the policy in the insurer's favor, held not judgment other than the one rendered could prejudicial to it. have been rendered under the agreed state-5. INSURANCE 665(4) EVIDENCE SUFFIment of facts, such judgment is in all things CIENT TO SHOW DAMAGES OF $1,300 TO AUaffirmed.

TOMOBILE BY SINKING. Affirmed.

In an action on a policy insuring an automobile against sinking when in transport by water, the car having sunk with a ferry into

salt water, evidence as to damages held sufAMERICAN AUTOMOBILE INS. CO. V.

ficient to sustain the jury's finding of $1,300 in FOX. (No. 7771.)

favor of insured. (Court of Civil Appeals of Texas. Galveston. 6. INSURANCE Cw670_FINDINGS ON DAMAGES Nov. 20, 1919. Rehearing Denied

TO INSURED AUTOMOBILE NOT CONFLICTING, Dec. 18, 1919.)

In an action on a policy insuring an auto

mobile against sinking during transport by 1. INSURANCE ww124-FERRYBOAT SUBMERG- water, unconnected findings of $1,300 as the ING, AUTOMOBILE,

RISING total damage done the car, and also in such AGAIN MADE INSURER OF AUTOMOBILE LIA amount as the amount of damage done before BLE ON CLAUSE AGAINST SINKING.

the automobile slipped off the sunken ferry, In an action on a policy, insuring an auto- held not necessarily in conflict, in view of the mobile against sinking in conveyance by wa- charge permitting the jury to deduct any sum ter, where the petition alleged that a ferry from the total damage they might find due to carrying the car sunk when the car was on it, | the negligence of plaintiff owner or his agents

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

LOSING

AND

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