"Negligence' is a failure to exercise ordinary care. It is the doing of that which an ordinarily prudent person would not do in the same or similar circumstances; or it is the failure to do that which an ordinarily prudent person would do in the same or similar circumstances." The only criticism is that the court used the word "prudence" rather than the word "care"; but the criticism is without merit. A number of other objections to the evidence are presented in the briefs, but we find nothing meriting a discussion. All assignments of error and propositions in behalf of appellant are accordingly overruled, and the judgment is affirmed. Error from District Court, Cherokee County; L. D. Guinn, Judge. Action by the Phillips A. Ryan Lumber Company against Jas. C. Davis, Agent. Judgment for plaintiff, and defendant brings error. Reversed and rendered. Marsh & McIlwaine, of Tyler, for plaintiff in error. Mantooth & Collins, of Lufkin, for defendant in error. HODGES, J. The Phillips A. Ryan Lumber Company is a private corporation and owns a mill situated near the town of Lufkin, Angelina county. It filed this suit 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 Lum DAVIS, Agent, v. PHILLIPS A. RYAN LUM. ber Company had an understanding with the BER CO. (No. 2679.) 2. Contracts 10(1)-Director General's agreement to allow lumber company to operate trains on road held unenforceable as unilateral. An agreement between a lumber company and the Director General of Railroads, whereby the lumber company was to be allowed to operate its trains upon the lines of a certain railroad for a stated amount per train mile, the agreement, being unilateral and no more than the concession of a privilege to the lumber company to operate its trains for the price stated if it chose to do so, was unenforceable as to the Director General. Director General of Railroads whereby it was agreed that the lumber company should have the right to run its engines and log cars and transport its logs from Pollock, over the railroad of the St. Louis Southwestern Railway Company of Texas, to its sawmill at Lufkin, Tex., a distance of 12 miles. On the date above mentioned, a written contract was agreed upon and signed by the Director General of Railroads, acting through J. L. Lancaster, federal manager, and the Phillips A. Ryan Lumber Company, embodying the detailed provisions relating to the transporta tion of the trains of the lumber company as above stated. The preamble of that contract is as follows: "This agreement made and entered into this the 20th day of February, 1919, by and between Walker D. Hines, Director General of Railroads, party of the first part, and St. Louis Southwestern Railway Company of Texas, party of the second part, and Phillips A. Ryan Lumber Company, a corporation, party of the third part, for the operation of log trains between points mentioned in said contract to a connection with the tramroad to be hereafter constructed by the party of the third part, 3. Railroads 138, 52, New vol. 6A Key- Where an agreement between a lumber company and the Director General of Railroads, allowing the lumber company to operate trains on a railroad for a stated price, was unenforceable as against the Director General because unilateral, the lumber company could not recover, under a subsequent modified contract dated back to the date of the first contract, for damages because the Director General had refused to allow plaintiff to operate its trains under the first contract, and if so construed was unenforceable, since no damages having accrued under the first contract the Director General could not, by the modified contract, bind his government for a sum which it did not owe. Then follow the detailed stipulations, which, in substance, provide that the lumber company is to have the right to operate a train of its own over the railway line between Pol. lock and Lufkin, in consideration of the payment by it to the Director General of $1 per train mile, or $24 for a round trip. There were other stipulations, relating to turning charges and liability for damages to third parties resulting from the operation of the trains of the lumber company. The concluding paragraph of this contract is as follows: "This contract shall be effective as of date February 20, 1919, and shall continue for a period of ten years, ending the 20th day of February, 1929. But upon termination of fed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cancel same." (248 S. W.) eral control party of the second part (the St. [ was permitted to operate its logging trains Louis 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, aggregating $8,338.88. This amount was paid by the lumber company under protest to the Director General for the transportation above stated. This suit is to recover the difference between that sum and the amount the transportation would have cost the lumber company had it been permitted to operate its own trains in compliance with the terms of the written contract. It is agreed that, had such privilege been accorded, the lumber company would have paid out the sum of $4,367.67 less than the amount it did pay to the Director General for the services performed by him in transporting the logs and lumber of the lumber company. Upon that evidence, which was undisputed, the trial court rendered a judgment in favor of the lumber company against the Director General of Railroads for the sum of $4,367.67. From that judgment the Director General alone has appealed. This written contract was signed by J. L. Lancaster, federal manager, for the Director General of Railroads, and by the Phillips A. Ryan Lumber Company, and was approved as to operation by A. G. Whittington, general manager, but was not otherwise agreed to by the St. Louis Southwestern Railway Company of Texas. Soon after this contract was executed as above stated a new federal manager, W. N. Neff, took charge of the operation of the St. Louis Southwestern Railroad and desired certain modifications of the terms of the written agreement. After several conferences, a second contract was agreed to and executed by Neff for the Director General, by the Phillips A. Ryan Lumber Company, and by the railway company. The second contract contains substantially all the stipulations embraced in the first, with some modifications. It required the lumber company to execute a bond conditioned for the faithful performance of its agreement to pay such damage as might result from its operation over the line of railroad. It was fur-company and afterwards break it? Two writther provided that the contract should extend over a period of only one year instead of ten. The concluding paragraph is as follows: The question of law presented in this appeal is, Did the Director General make a binding traffic agreement with the lumber ten instruments are relied upon as evidence of his contract. Each of these is complete within itself. They differ in some of their terms and in the time for which the traffic agreement was to continue. The first writing was signed by two of the parties to the agreement in February, but was never signed by the third, the railway company. The second was signed by all the parties in November following. It is conceded that the second contract was binding from the time it was actually executed in November, and there is no contention that it was thereafter violated by the Director General. "This contract shall be effective as of date February 20, 1919, and shall continue for a period of one year thereafter without further renewals, provided that party of the first part (the Director General and the St. Louis Southwestern Railway Company of Texas) may cancel the same by giving six months' written notice of such cancellation to party of the second part (the lumber company); and party of the second part may cancel same by giving thirty days written notice to party of the first part of its intention to cancel this contract. And provided further that this agreement of the Director General of Railroads shall not extend beyond the period of federal control of railroad, and, unless sooner terminated, shall, as to him, terminate at the end of such fed-upon the Director General, even though it eral control." The appellee asserts two propositions in support of the judgment appealed from. The first is that the first contract was binding had not been signed by the railway company. The second proposition is that, if the first contract was not binding, the second contract contained stipulations which made it retroactive back to February; that the legal effect of those stipulations was to make the Director General liable for the damages sustained by the lumber company between February 20 and November, when the second contract was actually executed and delivered. This contract was, however, not executed by all of the parties till sometime in November, 1919. Immediately after the first written contract was executed, the lumber company demanded the right to operate its trains over the line of the railway company for the purpose of transporting logs from Pollock to its sawmill at Lufkin; but the Director General 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 1919, up until the time the lumber company three of the parties mentioned in its pre 248 S.W.-29 thereafter use. We therefore conclude that this first contract was not binding upon the Director General. The fact that it was thereafter superseded by a second contract covering the same subject-matter and imposing materially different terms is conclusive evidence that the parties did not intend that it should be binding upon any of them. 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 adopted by courts, a contract of this kind is not binding upon any of the parties until all have executed, or accepted it. Before one of the parties can be called upon to perform the obligations assumed, all of the parties must be bound, or none of them will be bound. 9 Cyc. 299, 300; Campbell v .McFadin, 71 Tex. 28, 9 S. W. 139; Hess v. Lackey (Ind. Sup.) 132 N. E. 257. It is clear that, under the provisions of that contract, the lumber company could not have been held bound until the railway company had given its assent. The lumber company was contracting for privileges which the railway company only could grant. It may be true that the Director General, without the concurrence of the railway company, could conclude a traffic agreement covering the period of government control, but that is not what the parties undertook to do and what the lumber company had a right to demand should be done. Let us suppose that the railway company had refused to give its assent to the written agreement, could the lumber company still elect to be bound by it and demand that the Director General should perform his portion of the obligations during the period of government control? Let us assume, for the sake of argument, that the lumber company might have claimed that right; but that does not settle the question under consideration. [3] The second proposition urged by the lumber company in support of the judgment is that the second contract was in its terms retroactive, and in legal effect made the Director General liable for the damages sustained by the lumber company between February 20 and November. That proposition is based upon the following language used in the second contract: "This contract shall be effective as of date February 20, 1919." The argument is made that this language rendered the Director General liable for what the lumber company lost by reason of not be ing permitted to enjoy the privilege of operating its own trains over the railroad under the terms stipulated. It is by no means certain that the Director General intended to bind himself to thus reimburse the lumber company for such a loss. If there had been no binding contract to permit the lumber company to use the railroad prior to November, the date when the second contract was executed, clearly there was no violation of any agreement for which damages could be claimed. If the Director General had not [2] There is another reason for saying that 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 during 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 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-pany 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 to be performed in the future. Johnson v. Breckenridge-Stephens Co. (Tex. Civ. App.) 241 S. W. 195; 6 R. C. L. 686, and cases cited in the notes. In this instance the lumber We are therefore of the opinion that the judgment should be reversed and judgment here rendered that the lumber company take nothing by its suit, and that it pay all costs both of this court and of the court below. (248 S.W.) CHAS. F. NOBLE OIL & GAS CO. v. AMER- (Court of Civil Appeals of Texas. Fort Worth. 1. Injunction 143 (2)-Granting temporary defendant had broken the provisions of the contract as to testing gas and payment for gas used, and that defendant threatened to destroy plaintiff's pipes to the wells and so render plaintiff's plant for utilizing gas useless, did not show an irreparable injury sufficient for granting a temporary injunction, without giving defendant an opportunity for a hearing. On Motion for Rehearing. 6. Injunction 118(2)-Requisites of petition for injunction stated. In a suit by the owner of an oil and gas lease against an assignee of a contract for the 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 sufficiently 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 without giving defendant an opportunity to be heard in answer was error. 2. Venue 15-Judge of one district held to have authority to enjoin trespasses in another district. which it might be deduced that he may not, 118(3)-Granting temporary injunction held error. Where the assignee of a contract for the sale of gas had the right to make pipe connections with gas wells, it had the right to enter on the premises in question to attach pipes, and to remove pipes of the owner of the In a suit by an owner of an oil and gas lease against an assignee of a contract for the sale of gas, in which the petition prayed for an injunction in part restraining a trespass upon the lease, granting a temporary injunction re-lease on which the wells were located, and a straining such a trespass was within the authority of the judge of a judicial circuit other than that in which the lease was located, without a showing that the judge of the circuit in which the lease was located was absent therefrom, was sick, or unable to hear or act upon the application, or was disqualified to do so, within the provisions of Vernon's Sayles' Ann. Civ. St. 1914, art. 4643. 3. Injunction 143(1)—Right to temporary injunction granted on ex parte hearing must be clearly established. A temporary writ of injunction may be granted on an ex parte hearing, but the right thereto must be clearly established. 4. Injunction 118(2)—Entire contract should be set out in petition to enjoin entry under terms thereof. In a suit by an owner of an oil and gas lease against an assignee of a contract for the sale of gas, to enjoin defendant from entering and taking gas from wells, on the ground that defendant had broken a provision of the contract as to testing gas and as to payment for gas taken, the whole contract relating to the sale of the gas should have been set out in the pleading instead of only two paragraphs pleaded, in order to show that the contract did not contain some stipulation which would deny to plaintiff the remedy of summary forfeiture and ouster, which was in effect accorded by a temporary injunction. 5. Injunction 143(2)-Showing of irreparable injury insufficient to warrant temporary injunction without opportunity to defendant for hearing. In a suit by an owner of an oil and gas lease, against an assignee of a contract for the sale of gas to enjoin entry and taking gas from the wells, a verified petition alleging that temporary injunction restraining it from so doing on the ground that it had broken the contract as to testing and paying for the gas, in absence of an allegation that the assignee threatened to or probably would break the contract in the future, was error. Appeal from District Court, Wichita County; E. W. Napier, Judge. Suit by the American Refining Company against the Charles F. Noble Oil & Gas Company. From an order granting a temporary writ of injunction, defendant appeals. Reversed, writ vacated, and cause remanded. Bonner, Bonner & Sanford, of Wichita Falls, for appellant. Weeks, Morrow & Francis, of Wichita Falls, for appellee. DUNKLIN, J. [1] The Chas. F. Noble Oil & Gas Company, defendant in the court below, has appealed from an order granting a temporary writ of injunction at the instance of the American Refining Company, plaintiff, restraining the defendant from entering upon the property described in plaintiff's petition, which was an oil and gas lease on 5 acres of land, and from in any manner interfering with or disconnecting the pipe lines which are connected with the oil and gas wells situated on the lease, and title to which was claimed by the plaintiff, and also restraining the defendant from any interference with the extraction and transportation of the casing head gas from the wells. The suit was instituted in the district court of the Thirtieth judicial district, but the order for the temporary writ was made by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 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 defendant, and upon no other evidence except the verified petition. According to allegations contained in plaintiff's petition, it is the owner of an oil and gas lease on 5 acres of land in Wichita county. Prior to its purchase of the lease, a contract was made by the then owner with Chas. F. Noble, which contained the following provisions: It was further alleged that defendant had entered upon the premises and had destroyed the pipe line connections which plaintiff had installed to enable it to utilize casing head gas from the wells, and defendant, through its agents and servants, is now threatening to re-enter the premises and again destroy and disconnect plaintiff's said pipe connections. Plaintiff further alleged that it had erected 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 ** * of injunction, in terms as was thereafter price to be reckoned in buyers cars. 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 is based, as shown in schedule E, shall be determined by the test of said gas made in the usual and accepted manner of testing casing head gas to determine the gasoline content of casing head gas and shall be made with the most modern appliances for testing same, said test to be made every three months and the content or yield shown thereby to be used in determining the sale price or price to be paid for the gas in accordance with schedule E for each succeeding three months or until a further test is made. The party of the second part shall notify the party of the first part when said tests are to be made and party of the first part, if they so desire, may have a representative present to see the making of said test." [2] Since the petition prayed for an injunction, in part, restraining a trespass upon the lease, and since the writ granted restrained such trespass, we overrule the contention made by the appellant that the judge of the Seventy-Eighth judicial district was without authority to grant the writ, in the absence of any showing that the judge of the Thirtieth judicial district was absent therefrom, or was sick or unable to hear or act upon the application, or was inaccessible, or had refused to hear and act upon such application, or was disqualified so to do, under the provisions of article 4643, V. S. Tex. Civ. Statutes. [3] It will be noted that only two paragraphs 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 the contract. Plaintiff has succeeded to the rights of the party of the first part in said contract. According to further allegations in plaintiff's petition, the defendant has failed and refused to make the test of the gasoline content of the gas taken from the property, in accordance with the terms of the two provisions of the contract above quoted, and has failed and refused to notify the plaintiff that such tests were to be made, and has knowingly and willfully used fictitious and erroneous figures in calculating the casing head gasoline content of the gas taken from the wells, and has knowingly remitted to plaintiff a much smaller amount than was actually due it for casing head gas, all over the protest of the plaintiff; and for those reasons plaintiff alleged that defendant had forfeited any rights under the contract to take casing head gas from the wells, and has also forfeited any right to enter upon graphs constitutes the gravamen of plaintiff's complaint. It is clearly implied from those two paragraphs that the defendant had the right to take the gas from the wells upon the payment of the value thereof fixed by the tariff rates referred to in the contract. And it is a clear inference further that the defendant had the right to go upon the lease and to maintain pipe connections with the wells in order to procure the gas. A forfeiture of that right is claimed in the petition, solely by reason of an alleged breach of the contract upon the part of the defendant in failing to make proper tests of the gas and in failing to make proper payments to plaintiff for the gas. Plaintiff seeks not only to terminate the contract, but, by a writ of injunction, to summarily restrain the defendant from taking any more gas and from going upon the lease for that purpose; and that relief was granted without a hearing from the defendant. While it is true |