part of appellee calculated to impair legal ing so no basis for actual damages existed rights alleged with certainty and fullness, and clearly showed an impending injury which only an injunction would adequately relieve. Although injunction is a harsh remedy, as stated in appellant's brief, and is to be granted only upon positive averments of the equities, it is nevertheless the right of a litigant to invoke it under such facts and conditions as appellee's petition described in this particular case. We think it unnecessary to pause for a discussion of the allegations in detail, and will dispose of the assignment with the statement that there was no error in the ruling upon the general demurrer. The and it follows that appellant, in no event, The fourth and fifth assignments complain that the court erred in refusing to sustain appellant's objections to the jury's findings that the deed was not a conveyance to secure loans, and that the instrument claimed by appellee to be a bill of sale was a contract of sale, and not a mortgage of fixtures, as claimed by appellant, it being contended by appellant that these findings were without support in the evidence. Under these assignments, appellant submits propositions to the effect that the deed, bill of sale, and contract [2] We do not think the complaint of appellant against sustaining appellee's special exception to that portion of the answer undertaking to allege vindictive damages is well founded. The decisions in Texas seem to establish the doctrine that punitive damages are not recoverable for wrongfully suing out a writ of injunction, no matter how improper or malicious the motive may have been. Muller v. Landa, 31 Tex. 265, 98 Am. Dec. 529; Railway Co. v. Ware, 74 Tex. 47, 11 S. W. 918; Shackelford County v. Hounsfield, 24 S. W. 358. Looking to other jurisdictions, a conflict of authority appears. In some it is held that, where the wrongful action amounts to an abuse of process, or is prompted by malice, punitive damages may be recovered, while in others it is held that damages of this nature may not be recovered. [3] However, even if such damages were recoverable, it is by no means clear to us that the allegations sufficiently show facts constituting fraud, malice, or oppression, and at least one of these elements must be present in any event, conceding such recovery to be permissible (which we do not do), to allow a recovery of exemplary damages. The pleading admits the execution of all the instruments sued upon, and expressly alleged the mutual understanding to put them in the respective forms in which they were written to accomplish an agreed purpose they do not reflect. There is no allegation of facts revealing such relative positions as to show that appellee was oppressive in obtaining the described written agreements, or that any circumstance existed implying malice on his part. Neither are facts alleged to clearly dis-one transaction took place, and that all these close any element of fraud, malice, or oppression, in legal significance, attending the institution of the suit. Connor v. Sewell, 90 Tex. 275, 38 S. W. 35. But, conceding that the pleadings are entirely sufficient, yet the record discloses that all the facts in respect to all the transactions and relations between the parties were comprehensively developed, and the jury found, in conformity with substantial evidence, that appellee's assertions and claims were well founded, and, in effect, that the equities of the case were all on appellee's side. This be were all executed on the same date, and in furtherance of one transaction, and must all be considered together, and that when so considered they are equivalent only to a mortgage. [5] The respective instruments by their own express terms reveal no such interrelation as that contended for by appellant. Each standing alone contains nothing to show that it relates to any transaction except that which it recites. Each is descriptive of a complete transaction, and expresses nothing to the effect that it bears any relation to any other, nor can any reasonable implication be derived from any one of them that it is a part of or connected with the others. Appellant made the issue that only instruments grew out of it, but that they fail to express the true agreement. This was denied by appellee. Issue being thus joined, it could be determined only by a conclusion of the jury derived from the testimony which was clearly conflicting. The court could not take the disputed question of fact from the jury. The appellee denied that a bill of sale was delivered to him, and claimed that he bought the fixtures by oral agreement. He denied any knowledge of the bill of sale, which was put in evidence by appellant. The whole matter was involved in dispute as to (232 S.W.) the facts, and was therefore properly submitted to the jury. The sixth assignment of error is multifarious and argumentative, and therefore vio lates the rules of this court. But the propositions and statement under it indicate that it is intended to advance the legal proposition that appellee is estopped from claiming the deed to be what its stipulations import, and is estopped from denying it is a mere mortgage, because after it was executed and delivered appellee, in answer to a writ of garnishment issued out of a suit against appellant, answered under oath that he did not owe her anything. Appellant contends that under these circumstances estoppel arises out of public policy. the undisputed evidence the contract was one of partnership. We do not think the contract can be said to express conclusively a partnership agreement. It is subject to a construction giving it the effect of a contract of employment. A contract whereby one party puts his money or property into a business against the services and skill of another, under a mutual understanding to share the profits of the business, may be said to be a partnership contract, in the absence of facts and circumstances which oppose its being so construed. But this contract expressly states that it is one of employment, and that by it appellee is employing appellant. The agreement recites that appellant is to sell her millinery business as soon as possible, We are in entire sympathy with the sen- and not to again engage in such business in timent which denounces the reprehensible Hillsboro, during a period of three years, act of a litigant making a deliberate oath and "to work for said party of the second to a material statement in a judicial proceed-part in his millinery store or business located ing, and thereafter directly and deliberate- at No. 126, East Elm street, in the city of ly making a contradictory statement as to Hillsboro, Tex.," etc. Appellee alleged the the same matter in still another judicial pro- contract to be one of employment. Appelceeding. Courts can perform no more prop- lant alleged it to be one of partnership. It er or important function than to repress thus became a question of ascertaining the perjury. But we do not understand that es- mutual intention and understanding of the toppel in pais can be invoked against appel-parties from extrinsic evidence, the terms of lee under the circumstances of this case, the instrument not being free from ambiguity. even if it be conceded that his previous oath In these circumstances the ascertainment of directly conflicts with his statements in this the nature and effect of the contract was a case bearing upon the question of his indebt-question of fact for the jury. edness to appellant. [6, 7] Equitable estoppel is a bar which prevents the party against whom it is pleaded from denying the truth of a fact because the party asserting estoppel has changed his position, and has parted with some right by reason of the representation or conduct constituting the estoppel. No element of injury to appellant appears in this case caused by the oath made in the garnishment suit, should an estoppel not be declared. After the garnishment oath was made, she never changed her rights in any respect with reference to it. Davis v. Allison, 109 Tex. 440, 211 S. W. 980; Waxahachie Nat. Bank v. Bielharz, 94 Tex. 493, 62 S. W. 743; Llano Granite Co. v. Hollinger (Com. App.) 212 S W. 151. Besides, the facts pleaded are insufficient to interject the defense of estoppel based upon this matter. Ross v. Moskowitz, Ross v. Moskowitz, 100 Tex. 434, 100 S. W. 768; Crews v. Gulf Grocery Co., 107 Tex. 604, 182 S. W. 1096. The affidavit was not admissible to show estoppel, but was admissible only as evidence tending to impeach and contradict appellee's testimony. The jury weighed it with all the other evidence, and the verdict disposed of it with the other proof. [10] Appellant's position in contending that the bill of sale offered in evidence ought to have been construed as a chattel mortgage is also unsound. The instrument, by its terms, did not appear to be a mortgage. Its language, on the contrary, imported an absolute sale. The question as to what it was under the pleadings was one of fact, which the court properly left to the determination of the jury, and the jury's finding is supported by substantial evidence. It appears that, at the instance of the parties to the suit, and in pursuance of an agreement between them, the court appointed an auditor to audit the books relating to all transactions and business considered by the respective attorneys to be material to the case. At the time of the appointment of the auditor in open court the attorneys for both parties were present. The court there, after making the appointment, inquired of the attorneys for both sides as to what instructions they desired to be incorporated in the order of appointment, and also inquired of them as to what books, papers, vouchers, etc., should be delivered to the auditor. The attorneys for both parties responded to these requests by the court to the effect that they"had the books and papers, and could and would turn over to the auditor such books and papers as were deemed necessary for him to have, and would give him such instructions as they con. [8, 9] The seventh assignment of error complains of the court's refusing to construe the contract between appellant and appellee as one of partnership, and not one of employment, and to instruct the jury that undersidered necessary." 232 S.W.-55 Because of such statements and agreements [ out of such funds, then, and in that event, you on the part of the attorneys, no instructions will not allow the plaintiff more than one-half to the auditor were incorporated in the order. of the amount claimed by such charge.'" Appellant, in various assignments of error, complains that the court erred in refusing to suppress the auditor's report, in admitting it in evidence, and in receiving evidence as to certain items and books considered by the auditor. [11] We do not think appellant is in a position to complain of the action of the court in overruling her motion to suppress the auditor's report on the ground assigned, to the effect that the court failed to prescribe the powers and duties of the auditor in the order of appointment. The motion was filed more than two years after the appointment was made under the circumstances above was made under the circumstances above stated, and also. more than two years after the auditor's report was filed. The appellant made no request at the time the auditor was appointed that his duties and authority be laid out and instructions given him in the order appointing him; but, on the contrary, acquiesced in, and, in effect, participated in procuring the appointment in the very manner now complained of. Under these circum-, stances the appellant ought not to have been permitted, more than two years after the auditor had acted, to thus entirely exclude his report. Moore v. Waco Building Ass'n, 19 Tex. Civ. App. 68, 45 S. W. 976. And this is especially so since the evidence upon the contest of the motion to suppress established that no data was used by the auditor which it was improper for him to use, and that none was withheld from him which he ought to have had. The agreement between the parties having been stated in open court at the time of the appointment, and not having been violated by appellee, appellant is not in a position to complain. We perceive no error in the ruling of the court with reference to the admission of any testimony relating to the auditor's report, or to the accounts and books bearing on the transaction between the parties. The fourteenth assignment of error is as follows: "The court erred in refusing to give the defendant's special charge No. 5, which said special charge is as follows: The court did not err in refusing to give the special charge embodied in this assignment of error. We think the summary of the auditor's report correctly made in appellee's counterproposition is a sufficient answer to the assignment. Appellee's counterproposition is as follows. "The auditor's report credited the Trull Millinery with all moneys received from sales, and charged against it all expenses paid out, with the exception of the money advanced to the appellant on her personal account. The net profits of the business of the Trull Millinery Company were arrived at by deducting from the gross sales, plus the value of the goods on hand, the expenses of carrying on the business. No item of Mrs. Lomax's personal account was charged as an expense against the business in the auditor's report. Mrs. Lomax was given credit for one-half of the net profits thus arrived at. Under the state of facts it would have been improper to allow appellant her full one-half of the net profits as a credit and then to only charge her on her personal account, which was not taken into consideration in arriving at the net profits, with only one-half of the money so advanced to her by appellee, and the trial court did not err in refusing appellant's special charge No. 5." that the assignment ought to be sustained, [12] But, in any event, it cannot be said because the contract found by the jury to be one of employment, and not one of partnership, explicitly provided how appellant's compensation was to be ascertained and fixed. The fifteenth assignment of error plains that a certain letter alleged to have been written by appellant to a Mr. Hughes shortly before the alleged date of the purchase of the house and lot should have been admitted as a part of the res gestæ. The excluded letter, so far as the record shows, was written without appellee's knowledge, and he was unaware of its existence or what it contained. The letter, which antedated the transactions involved in this case, refer red to an accompanying deed from appellant to appellee conveying an interest in the lot involved in this suit. The letter contained instructions for delivery of the deed to appellee upon his paying $2,000. [13] The principal fact in the case con ""The defendant requests the court to charge the jury as follows: "You are charged that, if you believe from the preponderance of the tes-tended for by appellant was that the instrutimony the plaintiff and defendant were equally interested in the Trull Millinery Company, and that if any of the items charged by the plaintiff against the defendant were paid by him out of the funds of said Trull Millinery Company, then, and in that event, the defendant would be liable to the plaintiff for only one-half.of the amount of all such sums received by her, and in making up the accounts between the respective parties in each and every instance where the money paid by the plaintiff was merely paid by him because he had in his possession the funds of the Trull Millinery Company, and were paid ment in the form of a warranty deed delivered to appellee by her was intended as a chattel mortgage. We do not think the excluded letter bears any relevancy whatever to this contention. It being an ex parte statement by appellant, uncommunicated to appellee, and containing nothing tending to prove that the transaction in issue was a mortgage, and not a deed, we think it was entirely outside the field of inquiry which appellant could be permitted to explore as res gestæ. [14] The sixteenth assignment of error is (232 S.W.) overruled. It complains of the exclusion of a letter from appellee to appellant. The letter was clearly a suggestion of compromise of the existing disagreement. The law favors compromise settlements, and the longestablished policy is that declarations and admissions made in an effort to settle out of court cannot be received as evidence. Appellant insists that the judgment ought to be reversed, because appellee's counsel in his concluding argument used inflammatory language, unwarranted by the record or anything which preceded it, and that such unfair argument prejudiced the jury. We deem it unnecessary to discuss the assignment at length. No unfair argument or one not justified by the record ought to be permitted, and we would not hesitate to reverse the judgment and remand the cause solely because of such impropriety, if it appeared. But we do not think the argument of counsel complained of in this case was such as to require a reversal of the judgment. The argument, while by no means a model of sedate expression, undertook to state counsel's emphatic view of the conflict in the evidence, and his view of the incidental effect of the jury's deducing from it findings favorable to appellee; and under the state of the record we cannot say it was designed or calculated to inflame the minds of the jury or culated to inflame the minds of the jury or prejudice them, and thereby cause them to disregard or improperly weigh the evidence in appellant's behalf. All assignments of error presented in appellant's brief have been carefully considered, and are disposed of in the foregoing discussion. In our opinion, none of them presents any reversible error. The case is one whose determination in the main depends upon the facts, which were found against appellant by the court and jury, and, there being nothing in the record to warrant us in disturbing the judgment entered in accordance with those findings, we will affirm it. Judgment is affirmed. 4. Mines and minerals 55(3)-Contract held not to convey title to minerals, but merely the right to explore therefor. "Lease" whereby owner "sold and conveyed" the minerals in described land in consideration of a nominal cash payment and the agreement of grantee to sink a designated number of wells within a stipulated time, and whereby it was agreed that, in case the grantee "is unwilling to bore said wells, the said party of the first part shall have the right to bore same, provided there shall be preserved to each well then bored by said S. [grantee] a surrounding territory of not less than seven acres of land," held not to convey an indefeasible legal title to the minerals, but merely to give grantee the right to explore for the minerals and bring them right to explore for the minerals and bring them to the surface. agreement to sink designated number of wells within stipulated time a sufficient consideration for conveyance of minerals. number of wells within a stipulated time would Agreement by grantee to sink a designated have been a sufficient consideration for the conveyance of minerals. 6. Mines and minerals 55 (3)-Character of instrument determined by examination of entire instrument in the light of circumstances surrounding the parties. The question of whether a contract conveyed the minerals or merely a right to explore for minerals is not necessarily determined from the language used by the parties to define the legal effect of the instrument, but is to be MARNETT OIL & GAS CO. v. MUNSEY et al. determined by an examination of the entire in (No. 2379.) (Court of Civil Appeals of Texas. Texarkana. 1. Mines and minerals 55(1)-Owner may strument in the light of the circumstances surrounding the contracting parties. 7. Mines and minerals 78 (2)-Claim of forfeiture held grantor's only right on grantee's refusal to either drill well or pay rental. Contract whereby owner conveyed minerals in consideration for a nominal cash payment and grantee's agreement to pay a royalty as the oil is brought to the surface, and whereby it within 30 days or a payment of $50 a month was provided that a well was to be drilled made at grantee's option, held a unilateral contract, which the grantee might ignore without incurring any liability for damages; the grantor's only right in such case being to claim a forfeiture. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 8. Mines and minerals 77-Lessees held not to be deprived of rights in absence of contract stipulation except by voluntary conveyance or permanent abandonment. Where oil lease entitled lessees to explore for oil and operate oil wells on payment of royalty to lessor, without authorizing lessor to claim a forfeiture by reason of nonuser for any period of time, the only way lessees could be divested was by a voluntary conveyance or a permanent abandonment of the leases. 9. Mines and minerals 77-Lessees held not to have abandoned lease entitling lessors to claim forfeiture for nonuser; "abandonment." Lessee's failure to operate wells during 2year period after having drilled 21 wells on the land and after operating the wells apparently to the satisfaction of the parties for about 15 years was not an' abandonment entitling lessors to claim a forfeiture by reason of nonuser, where they had been operating at a loss, were involved in financial difficulties, and where they did not remove machinery from the premises, since in such case it did not appear that they intended permanently to relinquish their rights; abandonment being the intentional relinquishment of a vested right. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Abandon -Abandonment.] On Motion for Rehearing. 10. Courts 247 (5) Motion to certify not granted where writ of error will lie to invoke jurisdiction of Supreme Court. course of trade the appellees acquired the titles of Robbins and Polk, the lessors, and the appellant acquired all the rights of the lessees. The conditions requiring the sinking of wells within the time stipulated were complied with, and about 21 producing wells were sunk on the premises between the time the leases took effect and 1911. In the fall of 1911 Staley and the appellant, who had acquired the rights of the other lessees, ceased to operate the wells, but did not remove their machinery from the premises. This suit followed at the time mentioned, and the cancellation of the contracts was sought upon the ground that they had been abandoned by the lessees. A trial before a jury resulted in favor of the defendants below. On appeal to the Court of Civil Appeals of the Fifth District that judgment was reversed, mainly because of an erroneous charge. See Munsey v. Marnett Oil & Gas Co., 199 S. W. 687. In a second trial the plaintiffs, appellees here, recovered a judgment canceling the lease contracts and for the damages claimed. The cancellation was based upon a finding by the jury that the lessee had abandoned the contracts and all the rights originally conveyed. This appeal is from that judgment. The first proposition urged is that the lease contracts were in effect conveyances of the legal title to the minerals in the soil, and that the grantees thereby acquired an interest which could not be lost by mere abandonment. The second is that the evi A motion to certify to Supreme Court will not be granted by the Court of Civil Appeals where a writ of error will lie to invoke the Su-dence is insufficient to sustain the finding of preme Court's jurisdiction. Appeal from District Court, Navarro County; H. B. Daviss, Judge. Suit by E. W. Munsey and others against the Marnett Oil & Gas Company. Judgment for plaintiffs, and defendant appeals. Affirmed in part, and reversed in part and remanded. W. J. McKie and Richard Mays, both of Corsicana, for appellant. Dexter Hamilton, of Dallas, and Callicutt & Johnson, of Corsicana, for appellees. HODGES, J. This suit was originally filed by the appellees against the appellant in 1913. Its purpose was to cancel two oil contracts and to recover damages for the failure of the appellant to operate certain oil wells on the leased premises for two years or more. By amendment the plaintiffs asked for the value of oil taken from the wells by the appellant since some time in 1914. In 1898 the owners of what is called in the record the Robbins and the Polk tracts of land, situated in Navarro county, by written contracts leased them to the parties under whom the appellant now claims. In due the jury that the lessees had abandoned their contracts. There are numerous other rulings complained of by the appellant which we think is unnecessary to discuss. Taking those questions in the order above stated, it becomes necessary to consider the terms of the contracts with a view of ascertaining the extent and character of the interests which the grantors intended to convey. Since those instruments were made by different grantors, are couched in different language, and relate to different tracts of land, they must be separately considered. The material portions of the Robbins lease is as follows: Mass., the party of the first part, in considera"That I, Mary B. Robbins, of Kingston, tion of the sum of $5.00 paid by W. H. Staley, of Pennsylvania, party of the second part, the receipt of which is hereby acknowledged, and the further consideration hereinafter mentioned, have granted, bargained, sold, and conveyed, and do by these presents grant, bargain, sell, and convey, unto the said parties of the second part, their heirs, assigns, all of the oil, gas, and coal and other minerals in and under the following described land, together with the rights of ingress and egress at all times for the purpose of drilling, mining, and operating for minerals, and to conduct all operations and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |