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(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 chinery on the ground for said purpose, it were brought in by so many different com- does not become a part of the realty. The panies on the 160-acre tract. As to whether contract given by the landowners to the Jasthey had been abandoned or not, the evidence amine Oil & Production Company provides is not clear. In December, 1920, Joseph Ter- specifically that the casing and fixtures ry and others who made the original lease, placed on the land by it could be removed. and who were still the owners of the land, If the well had proved a dry hole, unquestionacting on the theory that the lease made in ably the parties would have had the right to 1918 had lapsed, leased the entire 160 acres to remove the casing within a reasonable time J. N. Rushing, the lease containing the same after the lease contract expired and the field provisions as contained in the lease from Ter- had been abandoned. Because the well is a ry and others to Mercer in 1918. Rushing producer does not thereby change the title to thereafter transferred the lease to W. D. either the personal or real property. So long Terry, one of the owners of the land, and W. as the well is a producer, neither the owner D. Terry conveyed same to his wife, Mrs. B. of the well nor the owner of the land would N. Terry, and she in turn, joined by her have a right to draw the casing and thereby husband, transferred the oil lease to S. C. destroy the well. Since all parties who are Herring, and then she individually attempted interested in the property have an interest in to convey the casing and fixtures in and the well, no one would have a right to do any around the well to S. C. Herring, the appellee act that would destroy the rights of the coherein. Herring was fixing to draw the cas- tenants or co-owners of the property. Cluting from the well and remove the fixtures ter v. Wisconsin-Texas Oil Co. (Tex. Civ. when this suit was instituted.

App.) 233 S. W. 323; Id. (Tex, Civ. App.) The trial court withdrew the case from the 258 S. W. 265; Id. (Tex. Com. App.) 268 S. W. jury, and in its judgment found that appel- 921, lant was entitled to the gas from the well, [3] Where a well is a producer and thereand enjoined appellee from drawing the cas- after becomes a nonproducer, and by reason ing or removing the rig, or from doing any of its having ceased to be a producing well, thing that would endanger or injure the well, becomes worthless, the lessee who owns the or that would in any way interfere with ap- casing and fixtures has the right, within a pellant's rights to the gas production so long reasonable time, to remove same, the same as as the well continued to be a producer. The though the well had been originally a dry court also entered judgment for appellee Her- hole. Perry v. Acme Oil Co., 44 Ind. App. 168, ring, quieting his title and possession to the 88 N. E. 859; Gartland v. Hickman, 56 W. Va. leasehold estate and to the casing in the well 75, 49 S. E. 14, 67 L. R. A. 694; Thornton's and the rig over same, and provided that ap- Law of Oil and Gas (3d Ed.). par. 653. By pellee could remove same when the well reason of the fact that the well from its comceased to be a producer.

pletion was and has been a producer, neither The sole issue involved in this appeal is as appellant nor his predecessors had a right to to the action of the trial court in awarding to withdraw the casing and thereby destroy the appellee the casing and fixtures in and over well. By the same reasoning and the same said well.

rule of justice, if the well ceases to be a pro[1, 2] Appellant complains of the trial ducer, the lessee, who put the casing and fixcourt's action in refusing to instruct the jury tures in and over the well, or its successors to return a verdict for it for the casing in and assigns, would have the right to remove the well and the fixtures used in connection same as their personal, individual property. therewith, which had been placed there by [4] Appellee contends that he obtained the Jasamine Oil & Production Company in title by reason of his purchase of the lease the drilling of the well. We sustain this as- from the landowners. The Supreme Court, signment. Under the terms of the lease con- in Moore v. Carey Bros. Oil Co. (Tex, Com. tract, the lease continued in force so long as App.) 269 S. W. 75, holds, in effect, that a gas or oil was produced on the land, and the sale of an oil and gas lease does not transfer trial court found in its judgment, and said or convey any interest in or to the casing in finding is established by the undisputed evi- the well or the fixtures used in connection dence, that the well was a producer when it therewith located on the land covered by the was brought in in March, 1920, and had con- oil and gas lease, for the reason that the castinued as a producer up until the time of sing in the well and the fixtures used in contrial in 1924. It is an undisputed fact that nection therewith are not any part of the appellant, by a regular chain of title, had realty. Appellee did not therefore obtain any purchased the casing and fixtures from the interest in or to the casing or fixtures Jasamine Oil & Production Company. Ap- by reason of having purchased the oil and pellee contends that since the well was a gas lease on said property. producer, the fixtures and casing thereby be. [5] Appellee further claims that he owns came a part of the realty. This position is the casing by reason of having, in February, antenable. Where a lessee, in seeking to ex- 1924, a few days before this suit was filed,

273 S.W.-60

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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 void.
being joined by her husband to dispose of the 3. Names en 10-Operating single gas well and
casing in the well, the record shows she did

sale of gas to single purchaser held “trans-
not have any interest or title therein and acting business" within assumed name stat.
therefore did not convey any interest by the ute.
pretended bill of sale. At the time she ex Operating of single gas well under oil and
ecuted and delivered the bill of sale to appel. gas lease by parties operating under assumed
lee, appellant was in actual possession and name, and sale of gas therefrom to single pur-
control of the well, the casing and fixtures, chaser, was "transacting business" within Acts
and was using the gas production therefrom 37th Leg. (1921) c. 73, 88 1-7 (Vernon's Ann.
and paying the royalty to the respective own- Vernon's Ann. Pen. Code Supp. 1922, art.

Civ. St. Supp. 1922, arts. 595012-5950142d, and ers. Appellee was charged with notice of ap- 1007c), requiring filing of certificate. pellant's rights in and to said casing and fix

(Ed. Note. For other definitions, see Words tures, and was not an innocent purchaser and Phrases, First and Second Series, Transthereof under the facts in this case.

acting Business.) The judgment of the trial court, in so far as it quiets the title to the casing in the well 4. Contracts fm 137(1)-Parties not precluded and the rig over same in appellee, is in all

from recovering, if they can establish caso

without aid of illegal transaction. things reversed, and it appearing to the court that the facts with reference thereto are un

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 5. Names Om 10-Action on contract, executed pellant, Orfic Gasoline Production Company,

by plaintiffs under assumed name without

filing of certificate, held not maintainable on Said casing, however, not to be pulled so

theory that they could establish case without long as the well is a producing well. It is or

aid of illegal transaction., dered that appellee pay all costs of both the

Where contract for sale of gas by plaintiffs trial court as well as this court. In all other operating under assumed name without filing respects, the judgment of the trial court is certificate required by Acts 37th Leg. (1921) c. affirmed.

73, 88 1-7 (Vernon's Ann. Civ. St. Supp. 1922,
arts. 595012-595042d, and Vernon's Ann. Pen.
Code Supp. 1922, art. 1007c), was void and un-
enforceable, held that contract could not be

enforced on theory that plaintiffs could estabBRISTOL 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.

Appeal from Wichita County Court; Guy
April 15, 1925. On Reinstatement of Appeal, Rogers, Judge.
May 20, 1925. Rehearing Denied June 10, Action by W. E. Bristol and others against
1925.)

the Chas. F. Noble Oil & Gas Company.
1. Appeal and error ww759—Appellants' fail. Judgment for defendant, and plaintiffs ap-
ure to bring assignments of error into brief peal. . Affirmed.
required adverse disposition of appeal, in ab.

Weeks, Morrow, Francis & Hankerson, of sence of "fundamental error."

Wichita Falls, for appellants. Appellants' failure to bring assignments of

Bonner, Bonner & Sanford, of Wichita error into brief, as required by rules of Courts

Falls, for appellee. of Civil Appeals, rule 32, and merely setting forth propositions not shown to relate to any

RANDOLPH, J. This suit was filed in the assignments of error, required disposition af appeal adversely to appellants, in absence of county court at law of Wichita county, Tex., fundamental

in record; fundamental by appellants against appellee. The trial error" being error apparent of record.

court rendered judgment in favor of appel[Ed. Note.-For other definitions, see Words lee, and this appeal is from that judgment. and Phrases, First and Second Series, Funda [1] The appellants have not brought formental Error.)

ward in their brief any assignments of er. On Reinstatement of Appeal.

ror, as required by rule 32 for the Courts of

Civil Appeals, which is as follows: 2. Names Ow10_Failure to file certificate by "The brief shall contain verbatim copies of

parties doing business under assumed name such of the assignments of error filed in the made their contract void.

trial court and reproduced in the transcript as Parties doing business under assumed name, are relied on in the appeal, but their original without having filed certificate required by Acts numbering may be disregarded. They shall be 37th Leg. (1921) c. 73, 88 1-7 (Vernon's Ann. set out in the back of the brief, but if desired, Civ. St. Supp. 1922, arts. 595049-59504d, and they may immediately follow the statement of Vernon's Ann. Pen. Code Supp. 1922, art. | facts."

error

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

(273 S.W.) In the case at bar, appellants have filed, they made a contract with him, as such their brief containing propositions which do agent, whereby, instead of making the tests not show that they relate to or are ger- due in October, 1922, and January, 1923, apmane to any assignment of error, and no pellee was to make a test as soon as it proassignments are set out in the brief in the cured an accurate testing machine, and that. "back, front, or middle thereof." The fails such tests would be as having been made at ure to the assign nts forward in the the proper time in October, 1922, and would brief disposes of the appeal adversely to ap- furnish a means of calculating payments for pellants, unless fundamental error is shown the months of October, November, and Dein the record. Jaffe v. Deckard (Tex. Civ.cember, 1922, and January, February, and App.) 261 S. W. 398; Midland Rubber Co. v. March, 1923. Waldman Tex. Civ. App.) 257 S. W. 929; Appellants further allege that, when the Green y. Shamburger (Tex. Civ. App.) 243 test was finally made, it showed a gasoline S. W. 601; First State Bank & Trust Co. v. content of 12.4 gallons per 1,000 cubic feet, Blum (Tex. Civ. App.) 239 S. W. 1035. whereas, payments for gas made to appel

A fundamental error is an error that is lants for the months of October, November, apparent of record, and such error is defined and December, 1922, and January, 1923, were by the Supreme Court in the case of Hous- based on a lower content, alleged that inton Oil Co. v. Kimball, 103 Tex. 104, 122 s. stead of the $581 which they have received W.537.

for the gas, they should have been paid "The language, 'apparent upon the face of the $1,121.33, under their agreement with Auers, record,' indicates that it is to be seen upon and, further, that an accurate test of said looking at the face of the record, that is, the lease would have shown it to produce gasoassignment itself, the fact pointed out by it line with a content of 12.4 gallons per 1,000 must show a good and sufficient ground for the cubic feet, and that appellee, by taking such court to interfere to prevent injustice being gasoline, was obligated to pay appellants at done to one of the parties. Perhaps the best that rate during the period of time above expression is that it must be a fundamental

indicated. error, such error as being readily seen lies at the base and foundation of the proceeding and

The appellee filed a special plea in bar of affects the judgment necessarily.

If appellants' action, that appellants had been we take the first assignment in its terms there doing business under an assumed name, to is not apparent upon the face of that record any wit: The name of "Eighty-Four Syndicate"; one of the things pointed out in the proposi- | that the only contract had between appeltions under it. By an examination of the rec- lants and appellee was a division order made ord it might be found that the facts existed in the name of the “Eighty-Four Syndicate"; as claimed in the propositions, but they are not and that in all transactions in connection manifest and not evident, not obvious, without with said lease had by appellants and appelan examination and weighing of the evidence to determine whether or not the assignment lee, appellants were acting under an assumed is well taken."

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 pleadOn Reinstatement of Appeal.

ed general and special exceptions, general

denial, and denial under oath of the agency This suit was filed by appellants against of Auers, and further, that it had made all appellee in the county court at law of Wich- payments for the casing-head gas taken by ita county, Tex., to recover money alleged to

it. 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 upon issues submitted to them by the trial Wichita county, which contract, as alleged court, they returned answers favorable to in plaintiff's' 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- said plea and rendered judgment for appellee line content of such gas.

without reference to the verdict of the jury Appellants allege in their petition that the upon the issues so decided by them, and this appellee was by the terms of said contract judgment is now presented to us for review. required to make tests every three months This suit was originally styled “Eighty-Four to ascertain such content, and that one such Syndicate v. Chas. F. Noble Oil & Gas Comtest was due to be made in October, 1922, and pany” and the parties hereto have agreed another in January, 1923, but at the time that, at all times mentioned in plaintiff's these tests were required to be made appel- petition, the appeilants were partners and lee's testing machinery was not in shape to operating under the same name and style of make an accurate test; that J. R. Auers was "Eighty-Four Syndicate.” appellee's agent, actual or apparent, and that The Assumed Name Act, passed by the

Thirty-Seventh Legislature, is in words as dollars nor more than one hundred dollars, and follows:

each day any person or persons shall violate “Sec. 1. No person or persons shall here any provisions of this act shall be deemed a

separate offense. after carry on or conduct or transact business

"Sec. 7. The fact that there is now no law in this state under any assumed name or under providing for the registration of the names of any designation, name, style, corporate or oth

persons doing business under assumed or ficerwise, other than the real name or names of titious names, and that the absence of such law the individual or individuals conducting or impairs the stability of credits in the state, transacting such business unless such person creates an emergency and imperative public or persons shall file in the office of the clerk necessity requiring that the constitutional rule of the county or counties in which such per- that bills shall be read upon the three several son or persons conduct, or transact or intend to days shall be suspended, and it is hereby susconduct or transact such business, a certificate pended and this act shall take effect from and setting forth the name under which such busi- after its passage, and it is so enacted.” ness is, or is to be, conducted or transacted, and the true or real full name or names of the The purpose of the Legislature in passing person or persons conducting or transacting this act, as indicated in the emergency clause, the same, with the post office address or the

was to prevent the impairment of credits in addresses of said person or persons. Said cer

this state, and carries with it a penalty for tificate shall be executed and duly acknowledged

its enforcement. This act is carried into by the person or persons so conducting or intending to conduct said business in the manner

Vernon's Ann. Civ. St. Supp. 1922, and numnow provided for acknowledgment of convey- / bered 595012, 595012a, 595043b, 59504c and ance of real estate.

595012d, and section 6 of the act is left out “Sec. 2. Persons now owning or conducting of their civil statutes, but is carried into such business under an assumed name or un their publication of the criminal statutes as der any such designation referred to in sec article 10070, p. 2272, Penal Code of Texas tion 1, shall file such certificate as hereinbefore 1922. 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 pre

a proper construction of the statute, appelscribed.

lants are not denied the right to recover upon “Sec. 3. Whenever there is a change in own contracts made in the assumed name; (2) it ership of any business operated under any such appearing that the appellants simply owned assumed name as set out in section 1 hereof, an oil and gas lease with one well on it, the person or persons withdrawing from said and that the only alleged business transacbusiness or disposing of their interest therein, tion was the operation of said lease, appelshall file in the office of the clerk of the county or counties in which such business is being lants were not conducting a "business” withconducted and has a place or places of busi- in the terms of the assumed name statute; ness, a certificate setting forth the fact of such (3) even if appellants were not entitled to rewithdrawal from or disposition of interest in cover upon the contract they made with such business; and until he has filed such cer- Auers whereby, when the new machine. of tificate he shall remain liable for all debts the appellee should come and a test could be incurred in the operation of said business, made, the actual content shown by such test which certificate shall be executed and duly would be effective as of date October 1st, acknowledged by the person or persons withdrawing from or selling their interest in because of noncompliance with the said business in the manner now provided for sumed name statute, appellants were neveracknowledgment of conveyance of real estate. theless entitled to recover upon the following

"Sec. 4. The several county clerks of this theory. The undisputed evidence showed state shall keep an alphabetical index of all that the appellee had made a contract with persons filing certificates, provided for herein, Crenshaw & Cowden, whereby it was perand for the indexing and filing of such certifi- mitted to take the casing-head gas, and cates they shall receive a fee of one dollar. A whereby it bound itself to pay the owner of copy of such certificates duly certified to by the county clerk in whose office the same shail said lease a royalty, based upon accurate be filed shall be presumptive evidence in all tests; and the undisputed evidence further courts of law in this state of the facts therein showed that in October of 1922, when its contained.

test was due, and in January, 1923, when "Sec. 5. This section shall in no way af- another test was due, no accurate test could fect or apply to any corporation duly organized be made; and the jury having found, and the under the laws of this state or to any corpo- undisputed evidence showing that an accuration organization under the laws of any oth-rate test in October would have shown 10.5 er state and lawfully doing business in this gallons instead of 6, upon which latter basis state. "Sec. 6. Any person or persons owning, car

appellants were paid; and the jury having rying on or conducting or transacting business found the payments on the basis of 6 gallons aforesaid, who shall fail to comply with the per 1,000 cubic feet were not tendered nor provisions of this act, shall be guilty of a mis accepted as payments in full, and was thus demeanor and upon conviction thereof shall be shown by the undisputed evidence, withpunished by a fine of not less than twenty-five out any reference being made, either proper

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(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. rate tests.

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

"It is urged that the Shattuck Case can be

distinguished from the one at bar in the parare 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 both laws are founded on public policy. They

are acts of the same class, coming within the prohibits such transactions, carries with it by police power of the state; one being to proimplication, in addition to the penalty protect the public health, and the other to protect vided therein, a prohibition against such par- the public from imposition and fraud. Each ty bringing or maintaining a suit to enforce prohibits certain acts, and each makes the viohis claim for compensation on said transac- lation a criminal offense punishable by fine and tion.

imprisonment. The Supreme Court of Oregon, in the case

"In interpreting the statute under consideraof Uhlmann v. Kin Daw, 97 Or. 681, 193 P. tion, it can be contended with reason, and in

harmony with former decisions of this court 435, has classified the cases considering the

construing acts somewhat analogous, we are rarious "assumed name” statutes, in those inclined to the view that it is not the intent states where such statutes are in existence, to render a contract made in violation of this into three groups or classifications. The sec act absolutely null and void for every purpose. ond group is the one we shall consider here, While, as heretofore stated, the general rule as the decisions of that group involve the con- is well settled that a contract made in violation struction of statutes substantially similar in of a statute is void when the statute is oththeir terms and provisions to our statute erwise silent, and contains nothing from which

the contrary is to be inferred, nevertheless the above quoted, and we accept the classifica- diversity of legislation gives rise to varying tion made by said court as being substantial- exceptions to this rule; and before applying it ly correct. In such second group the stat in full the court should carefully scrutinize utes under consideration provide that the the particular statute under advisement, for the failure to file a certificate makes the party so purpose of ascertaining, from the subject-matfailing guilty of a misdemeanor, and the only ter and language used, the object for which it penalty prescribed is fine or imprisonment,

was enacted and the intent of its makers, to and there is no provision that any contract or the end that such intent may be rendered effec

tual and the indicated purpose accomplished. transaction is to be void, or that a suit can. As this act involves purely business transacnot be maintained upon such cause of action. tions, and affects only money interests, we The leading case upon the question is one by think it should be construed as rendering conthe Supreme Court of Michigan (Cashin v. tracts made in violation of it unlawful and unPliter, 168 Mich. 386, 134 N. W. 482, Ann. enforceable at the instance of the offending Cas. 1913C, 697), and from which we make party only, but not as designed to take away free quotation because of the cogency of the the rights of innocent parties who may have reasoning-holds as follows:

dealt with the offenders in ignorance of their

baying violated the statute." "Parties doing business with those acting under an assumed name, whether they buy or The Cashin Case has been approved and sell, have a right, under the law, to know who followed by the Michigan Supreme Court in they are, and who to hold responsible, in case the case of Maurer v. Greening Nursery Co., the question of damages for failure to perform 199 Mich. 522, 165 N. W. 861, 168 N. W. 448. or breach of warranty should arise.

"The general rule is well settled that, where The rule as laid down in the Cashin Case, statutes enacted to protect the public against supra, is upheld in the following states: fraud or imposition, or to safeguard the pub- Kentucky, in Hunter v. Big Four Auto Co., lic health or morals, contain a prohibition and 162 Ky. 778, 173 S. W. 120, L. R. A. 1915D, 987; impose a penalty, all contracts in violation Indiana, Horning v. McGill, 188 Ind. 332, 116 thereof are void. Pollock's Principles of Con- (N. E. 303; North Carolina, Courtney v. Park

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