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Negligence' is a failure to exercise ordi-, Error from District Court, Cherokee Counnary care. It is the doing of that which an ty; L. D. Guinn, Judge.

the same or similar circumstances; or it is the failure to do that which an ordinarily prudent Company against Jas. C. Davis, Agent. Judg. person would do in the same or similar cir- ment for plaintiff, and defendant brings ercumstances."

ror. Reversed and rendered.

Marsh & McIlwaine, of Tyler, for plaintiff The only criticism is that the court used

in error. the word "prudence" rather than the word

Mantooth & Collins, of Lufkin, for defend"care”; but the criticism is without merit. ant in error.

A number of other objections to the evidence are presented in the briefs, but we find

HODGES, J. The Phillips A. Ryan Lumnothing meriting a discussion. All assign- ber Company is a private corporation and ments of error and propositions in behalf of owns a mill situated near the town of Lufappellant are accordingly overruled. and kin, Angelina county. It filed this suit the judgment is affirmed.

against the Director General for the purpose of recovering a sum of money which it claims it was entitled to under the terms of a contract hereinafter stated. Some time prior to

February 20, 1919, the Phillips A. Ryan LumDAVIS, Agent, v. PHILLIPS A. RYAN LUM. ber Company had an understanding with the BER CO. (No. 2679.)

Director General of Railroads whereby it

was agreed that the lumber company should (Court of Civil Appeals of Texas. Texarkana. have the right to run its engines and log cars Feb. 22, 1923. Rehearing Denied and transport its logs from Pollock, over the March 8, 1923.)

railroad of the St. Louis Southwestern Rail.

way Company of Texas, to its sawmill at 1. Contracts em 15–Tripartite contract not Lufkin, Tex., a distance of 12 miles. On the binding until all have accepted it.

date above mentioned, a written contract was A tripartite contract is not binding upon agreed upon and signed by the Director Genany one of the parties until all have executed eral of Railroads, acting through J. L. Lanor accepted it.

caster, federal manager, and the Phillips A. 2. Contracts Om 10(1)-Director General's Ryan Lumber Company, embodying the de

agreement to allow lumber company to op- tailed provisions relating to the transporta. erate trains on road, held unenforceable as tion of the trains of the lumber company as unilateral.

above stated. The preamble of that contract An agreement between a lumber company is as follows: and the Director General of Railroads, whereby the lumber company was to be allowed to

"This agreement made and entered into this operate its trains upon the lines of a certain the 20th day of February, 1919, by and between railroad for a stated amount per train mile, Walker D. Hines, Director General of Railthe agreement, being unilateral and no more roads, party of the first part, and St. Louis than the concession of a privilege to the lum- Southwestern Railway Company of Texas, ber company to operate its trains for the price party of the second part, and Phillips A. Ryan stated if it chose to do so, was unenforceable Lumber Company, a corporation, party of the as to the Director General.

third part, for the operation of log trains be

tween points mentioned in said contract to a 3. Railroads 138, 51/2, New vol. 6A Key connection with the tramroad to be hereafter

No. Series--Contract for use of track, held constructed by the party of the third part, not to bind Director General for damages un- witnesseth." der prior invalid contract, and if so intended was beyond his powers.

Then follow the detailed stipulations, Where an agreement between a lumber which, in substance, provide that the lumber company and the Director General of Railroads, company is to have the right to operate a train allowing the lumber company to operate trains of its own over the railway line between Pol. on a railroad for a stated price, was unen- lock and Lufkin, in consideration of the pay. forceable as against the Director General be- ment by it to the Director General of $1 per cause unilateral, the lumber company could not train mile, or $24 for a round trip. There recover, under a subsequent modified contract were other stipulations, relating to turning dated back to the date of the first contract, charges and liability for damages to third for damages because the Director General bad parties resulting from the operation of the refused to allow plaintiff to operate its trains trains of the lumber company. The conclud. under the first contract, and if so construed ing paragraph of this contract is as follows: was unenforceable, since no damages having accrued under the first contract the Director "This contract sball be effective as of date General could not, by the modified contract, February 20, 1919, and shall continue for å bind his government for a sum which it did not period of ten years, ending the 20th day of

February, 1929. But upon termination of fed


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(248 S.W.) eral control party of the second part (the St. was permitted to operate its logging trains Lonis Southwestern Railway Company of Tex- over the line of railway as specified in the conas), its successors and assigns, shall have op-tracts, the Director General transported for tion at any time during the continuance of this the lumber company from Pollock to its mill contract to cancel same upon giving thirty days' at Lufkin 1,012 cars, for which he charged notice in writing of its desire and intention to the lumber company the sum of $8.24, per car, cancel same."

aggregating $8,338.88. This amount was paid This written contract was signed by J. L. by the lumber company under protest to the Lancaster, federal manager, for the Director Director General for the transportation General of Railroads, and by the Phillips A. above stated. This suit is to recover the difRyan Lumber Company, and was approved ference between that sum and the amount as to operation by A. G. Whittington, general the transportation would have cost the lummanager, but was not otherwise agreed to by ber company had it been permitted to operthe St. Louis Southwestern Railway Com- ate its own trains in compliance with the pany of Texas. Soon after this contract was terms of the written contract. It is agreed executed as above stated a new federal man that, had such privilege been accorded, the ager, W. N. Neft', took charge of the operation | lumber company would have paid out the of the St. Louis Southwestern Railroad and sum of $4,367.67 less than the amount it did desired certain modifications of the terms pay to the Director General for the services of the written agreement. After several con- performed by him in transporting the logs ferences, a second contract was agreed to and and lumber of the lumber company. Upon executed by Neff for the Director General, that evidence, which was undisputed, the by the Phillips A. Ryan Lumber Company, trial court rendered a judgment in favor of and by the railway company. The second the lumber company against the Director contract contains substantially all the stip- General of Railroads for the sum of $4,367.ulations embraced in the first, with some 67. From that judgment the Director Genermodifications. It required the lumber com- al alone has appealed. pany to execute a bond conditioned for the The question of law presented in this apfaithful performance of its agreement to pay peal is, Did the Director General make a such damage as might result from its oper- binding traffic agreement with the lumber ation over the line of railroad. It was fur company and afterwards break it? Two writther provided that the contract should extend ten instruments are relied upon as evidence over a period of only one year instead of ten. I of his contract. Each of these is complete The concluding paragraph is as follows: within itself. They differ in some of their "This contract shall be effective as of date terms and in the time for which the traffic February 20, 1919, and shall continue for a agreement was to continue. The first writperiod of one year thereafter without further ing was signed by two of the parties to the renewals, provided that party of the first part agreement in February, but was never sigued (the Director General and the St. Louis South- by the third, the railway company. The secwestern Railway Company of Texas) may can- ond was signed by all the parties in Novemcel the same by giving six months' written no- ber following. It is conceded that the second tice of such cancellation to party of the second part (the lumber company); and party of contract was binding from the time it was the second part may cancel same by giving actually executed in November, and there is thirty days written notice to party of the first no contention that it was thereafter violated part of its intention to cancel this contract. I by the Director General. And provided further that this agreement of The appellee asserts two propositions in the Director General of Railroads shall not support of the judgment appealed from. The extend beyond the period of federal control of tirst is that the first contract was binding railroad, and, unless sooner terminated, shall

, upon the Director General, even though it as to him, terminate at the end of such fed had not been signed by the railway com

pany. The second proposition is that, if the This contract was, however, not executed first contract was not binding, the second by all of the parties till sometime in Novem-contract contained stipulations which made ber

, 1919. Immediately after the first writ-it retroactive back to February; that the ten contract was executed, the lumber com- legal effect of those stipulations was to make pany demanded the right to operate its trains the Director General liable for the damages over the line of the railway company for the sustained by the lumber company between purpose of transporting logs from Pollock to February 20 and November, when the second its sawmill at Lufkin; but the Director Gen- contract was actually executed and delivered. eral refused to grant that permission, and [1] Considering these propositions in the continued to do so until November, 1919, order above stated, the first question is, was when the contract signed by Neff for the Di- the February contract binding upon the Director General had been executed. During rector General? It purported on its face to the time intervening between the execution be a tripartite agreement. It contained stipof the first contract on the 20th of February, ulations which required the assent of all 1918, up until the time the lumber company three of the parties mentioned in its pre

248 S.W.-29

eral control."

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amble. It covered a period which contem- | company paid nothing, and did not promise to plated that it might extend beyond govern- pay anything except for the mileage it might ment control. Under the general rule adopt- thereafter use. We therefore conclude that ed by courts, a contract of this kind is not this first contract was not binding upon the binding upon any of the parties until all have Director General. The fact that it was executed, or accepted it. Before one of the thereafter superseded by a second contract parties can be called upon to perform the covering the same subject-matter and intposobligations assumed, all of the parties must | ing materially different terms is conclusive be bound, or none of them will be bound. 9 evidence that the parties did not intend that Cyc. 299, 300; Campbell v .McFadin, 71 Tex. it should be binding upon any of them 28, 9 S. W. 139; Hess v. Lackey (Ind. Sup.) [3] The second proposition urged by the 132 N. E. 257. It is clear that, under the pro- lumber company in support of the judgment visions of that contract, the lumber company is that the second contract was in its terms could not have been held bound until the retroactive, and in legal effect made the Dirailway company had given its assent. The rector General liable for the damages suslumber company was contracting for privi- tained by the lumber company between Febleges which the railway company only could ruary 20 and November. That proposition is grant. It may be true that the Director Gen- based upon the following language used in eral, without the concurrence of the railway the second contract: “This contract shall be company, could conclude a traffic agreement effective as of date February 20, 1919.” The covering the period of government control, argument is made that this language ren. but that is not what the parties undertook to dered the Director General liable for what do and what the lumber company had a right the lumber company lost by reason of not be to demand should be done. Let us suppose ing permitted to enjoy the privilege of operthat the railway company had refused to ating its own trains over the railroad under give its assent to the written agreement, the terms stipulated. It is by no means cercould the lumber company still elect to be tain that the Director General intended to bound by it and demand that the Director bind himself to thus reimburse the lumber General should perform his portion of the company for such a loss. If there had been obligations during the period of government no binding contract to permit the lumber control? Let us assume, for the sake of ar- company to use the railroad prior to Novemgument, that the lumber company might have ber, the date when the second contract was claimed that right; but that does not settle executed, clearly there was no violation of the question under consideration.

any agreement for which damages could be [2] There is another reason for saying that claimed. If the Director General had not this contract was unenforceable. The lum- deprived the lumber company of any right ber company did not in fact bind itself to ac- which the lumber company might have legalcept the provisions of the contract and to op ly claimed during that interval, the Director erate its trains ring any part of the period General was not responsible for any damages. described. The agreement as written was No damages for the breach of a contract can strictly unilateral. It was no more than the arise till after the contract is made. If we concession of a privilege or an option to the construe this language as an assumption by lumber company allowing it, if it chose to do i the Director General of liability for that loss, so, to operate its trains in the manner and then he was undertaking to do something to for the price stated. It was not required to which he could not bind his government. We pay any consideration unless it did operate cannot assume that he so intended in the abits trains. It could have refused to avail sence of stipulations which would bear no itself of that privilege without incurring any other construction. The Director General liability for damages to the Director General can be held responsible for only those damor to the railway company. Contracts for ages resulting from his wrongful breach of options, or concessions of this character, to an existing contract. He could not legally be enforceable, must rest upon a considera- bind the government to pay the lumber comtion paid or one to be paid, whether the op- rany a sum of money which the government tion or concession is used or not, or upon did not owe. some unconditional promise of the purchaser We are therefore of the opinion that the to be performed in the future. Johnson v. judgment should be reversed and judgment Breckenridge-Stephens Co. (Tex. Civ. App.) here rendered that the lumber company take 241 S. W. 195; 6 R. C. L. 686, and cases cit- nothing by its suit, and that it pay all costs ed in the notes. In this instance the lumber both of this court and of the court below.

(248 S.W.)

defendant had broken the provisions of the conCHAS, F, NOBLE OIL & GAS CO, V. AMER. tract as to testing gas and payment for gas ICAN REFINING CO. (No, 10455.) used, and that defendant threatened to destroy

plaintiff's pipes to the wells and so render (Court of Civil Appeals of Texas. _Fort Worth. plaintiff's plant for utilizing gas useless, did Dec. 23, 1922. Rehearing Denied

not show an irreparable injury sufficient for Feb, 3, 1923.)

granting a temporary injunction, without giving I, Injunction w 143(2)-Granting temporary

defendant an opportunity for a hearing. injunction against entry on lease without op

On Motion for Rehearing. portunity for hearing held error.

In a suit by the owner of an oil and gas 6. Injunction Com 118(2)-Requisites of peti. lease against an assignee of a contract for the tion for injunction stated. sale of gas, to enjoin defendant from entering In a suit for an injunction, plaintiff must on the lease and taking gas from wells thereon, allege facts which clearly show his right to on the ground that defendant had broken a the relief sought, and such allegations must be provision of the contract as to testing the gas suficiently certain to negative every reasonable and payment for gas taken, granting a tempo inference arising from the facts pleaded, from rary injunction on the verified petition witho which it might be deduced that he may not, giving defendant an opportunity to be heard under other supposable facts connected with in answer was error.

the subject, be entitled to that relief. 2. Venue 15mJudge of one district held to 7. Injunction om 118(3)--Granting temporary have authority to enjoin trespasses in anoth injunction held error. er district.

Where the assignee of a contract for the In a suit by an owner of an oil and gas sale of gas had the right to make pipe conlease against an assignee of a contract for the nections with gas wells, it had the right to sale of gas, in which the petition prayed for an enter on the premises in question to attach injunction in part restraining a trespass upon pipes, and to remove pipes of the owner of the the lease, granting a temporary injunction release on which the wells were located, and a straining such a trespass was within the au- temporary injunction restraining it from so thority of the judge of a judicial circuit other doing on the ground that it had broken the than that in which the lease was located, with contract as to testing and paying for the gas, in out a showing that the judge of the circuit in absence of an allegation that the assignee which the lease was located was absent there. threatened to or probably would break the from, was sick, or unable to hear or act upon contract in the future, was error. the application, or was disqualified to do so, within the provisions of Vernon's Sayles' Ann. Appeal from District Court, Wichita CounCiv. St. 1914, art. 4643.

ty; E. W. Napier, Judge. 3. Injunction 143(1)-Right to temporary Suit by the American Refining Company injunction granted on ex parte hearing must against the Charles F. Noble Oil & Gas Com. be clearly established.

pany. From an order granting temporary A temporary writ of injunction may be writ of injunction, defendant appeals. Regranted on an ex parte hearing, but the right versed, writ vacated, and cause remanded. thereto must be clearly established.

Bonner, Bonner & Sanford, of Wichita 4. Injunction Cam 118(2)-Entire contract should Falls, for appellant. be set out in petition to enjoin entry under Weeks, Morrow & Francis, of Wichita terms thereof,

Falls, for appellee. In a suit by an owner of an oil and gas lease against an assignee of a contract for the DUNKLIN, J. [1] The Chas. F. Noble sale of gas, to enjoin defendant from entering Oil & Gas Company, defendant in the court and taking gas from wells, on the ground that below, has appealed from an order granting defendant bad broken a provision of the contract as to testing gas and as to payment for stance of the American Refining Company,

a temporary writ of injunction at the ingas taken, the whole contract relating to the sale of the gas should have been set out in the plaintiff, restraining the defendant from enpleading instead of only two paragraphs plead- tering upon the property described in plained , in order to show that the contract did not tiff's petition, which was an oil and gas lease contain some stipulation which would deny to

on 5 acres of land, and from in any manplaintiff the remedy of summary forfeiture and ner interfering with or disconnecting the duster, which was in effect accorded by a tem- pipe lines which are connected with the porary injunction.

oil and gas wells situated on the lease, and 3. Injunction was 143(2)-Showing of irrepara

title to which was claimed by the plaintiff, ble injury insufficient to warrant temporary and also restraining the defendant from any injunction without opportunity to defendant interference with the extraction and trans

portation of the casing head gas from the In a suit by an owner of an oil and gas

, against an assignee of a contract for the The suit was instituted

the district court sale of gas to enjoin entry and taking gas of the Thirtieth judicial district, but the

a verified petition alleging that order for the temporary writ was made by Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

for hearing.

from the wells,

the judge of the district court of the Seventy-, the lease, or to interfere with plaintiff's Eighth judicial district, and that, too, upon rights thereunder. an ex parte hearing, without notice to the It was further alleged that defendant had defendant, and upon no other evidence except entered upon the premises and had destroyed the verified petition.

the pipe line connections which plaintiff had According to allegations contained in plain- installed to enable it to utilize casing head tifl's petition, it is the owner of an oil and gas from the wells, and defendant, through gas lease on 5 acres of land in Wichita coun- its agents and servants, is now threatening to ty. Prior to its purchase of the lease, a con- re-enter the premises and again destroy and tract was made by the then owner with disconnect plaintiff's said pipe connections. Chas. F. Noble, which contained the fol- Plaintiff further alleged that it had erected lowing provisions:

in close proximity to the lease a valuable "The said party of the second part hereby plant, with machinery for the purpose of agrees to keep correct and accurate accounts utilizing casing head gas from the wells, at in proper books of all gas so delivered and an expense of $25,000 and that, if the defendto render to the party of first part a state- ant is permitted to continue to so trespass ment on or about the 20th day of each calen- upon the lease and disconnect the pipe line dar month, showing the total amount of gas connections, plaintiff's operation of the plant so delivered and purchased during the preceding will be seriously interfered with and plainmonth, and to pay the party of the first part tiff will thereby be damaged more than $1,a price in accordance with the tariffs or rates 000. Based upon those allegations, plaintiff embodied in schedule E, which is attached hereto and made a part of this contract, the sale prayed for the issuance of a temporary writ price to be reckoned in buyers cars.

of injunction, in terms as was thereafter The gasoline content or yield of casing head gas-granted, and for a perpetuation of the same oline from the casing head gas purchased from upon final hearing. the party of the first part upon which the price [2] Since the petition prayed for an inis based, as shown in schedule E, shall be de- junction, in part, restraining a trespass upon termined by the test of said gas made in the the lease, and since the writ granted reusual and accepted manner of testing casing strained such trespass, we overrule the conhead gas to determine the gasoline content of tention made by the appellant that the judge casing head gas and shall be made with the of the Seventy-Eighth judicial district was most modern appliances for testing same, said without authority to grant the writ, in the test to be made every three months and the content or yield shown thereby to be used in absence of any showing that the judge of the determining the sale price or price to be paid Thirtieth judicial district was absent therefor the gas in accordance with schedule E for from, or was sick or unable to hear or act each succeeding three months or until a fur- upon the application, or was inaccessible, or ther test is made. The party of the second had refused to hear and act upon such appart shall notify the party of the first part plication, or was disqualified so to do, under when said tests are to be made and party of the the provisions of article 4643, V. S. Tex. first part, if they so desire, may have a repre: Civ. Statutes. sentative present to see the making of said

[3] It will be noted that only two paratest."

graphs of the contract, under which plaintiff The defendant is the assignee of Chas. F. claimed a right to injunctive relief, are set Noble, who was named as party of the sec- out in the petition; and the breach of the ond part in said written contract, and is en defendant's obligation under those two paratitled to all the rights of its assignor under graphs constitutes the gravamen of plaintiff's the contract. Plaintiff has succeeded to the complaint. It is clearly implied from those rights of the party of the first part in said two paragraphs that the defendant had the contract. According to further allegations in right to take the gas from the wells upon the plaintiff's petition, the defendant has failed payment of the value thereof fixed by the and refused to make the test of the gasoline tariff rates referred to in the contract. And content of the gas taken from the property, it is a clear inference further that the dein accordance with the terms of the two fendant had the right to go upon the lease provisions of the contract above quoted, and and to maintain pipe connections with the has failed and refused to notify the plain-wells in order to procure the gas. A fortiff that such tests were to be made, and has feiture of that right is claimed in the peknowingly and willfully used fictitious and tition, solely by reason of an alleged breach erroneous figures in calculating the casing of the contract upon the part of the defendhead gasoline content of the gas taken from ant in failing to make proper tests of the gas the wells, and has knowingly remitted to and in failing to make proper payments to plaintiff a much smaller amount than was plaintiff for the gas. Plaintiff seeks not. actually due it for casing head gas, all over only to terminate the contract, but, by a the protest of the plaintiff; and for those writ of injunction, to summarily restrain the reasons plaintiff alleged that defendant had defendant from taking any more gas and forfeited any rights under the contract to from going upon the lease for that purpose ; take casing head gas from the wells, and and that relief was granted without a hear

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