Thompson v. O. W. Childs Estate Co.

SHAW, J., pro tem.

This action was originally brought by plaintiff’s testator to recover damages for a trespass on his land. Upon his death plaintiff, as his personal repre- ° sentative, was substituted for him and judgment was given in her favor against the defendant J. M. Danziger only, who appeals. Appellant concedes that the acts complained of were wrongful and that plaintiff is entitled to recover damages therefor to the amount of the judgment, but denies that he is legally responsible therefor. The persons who

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actually did the acts in question were employed by one C. W. Whitley to do them as a part of his operations under an oil lease on the above mentioned land, and the only question presented by this appeal is whether appellant was a partner with Whitley in this matter and therefore liable for his acts.

Appellant had at one time been the owner of the oil lease above mentioned. Prior to the doing of the acts complained of he had executed an instrument by which he purported to assign this lease to Whitley. This instrument is signed by both appellant and Whitley and is much more than a mere assignment of the lease. It provides for payment to appellant of an over-riding royalty of 41/6 per cent of all oil and gas produced, and, also, that in consideration of the assignment Whitley shall pay to appellant the sum of $12,500 upon the execution of the instrument and appellant shall receive the further sum of $37,500 out ° of the proceeds of oil produced under the lease. The agreement further provides that Whitley shall have sole charge of all operations under the lease, with authority to purchase and hire materials and labor and contract bills therefor; that he shall drill three wells upon the leased land, the cost of the first two wells to be paid by him and the cost of the third well to be paid from the proceeds of oil produced, if sufficient, otherwise by him. All sums paid by Whitley on the cost of these wells are to be refunded to him out of the proceeds of oil produced. After appellant has received the sum of $37,500 to be paid him and Whitley has been reimbursed for all drilling and operating expenses paid by him, the agreement provides that all further net proceeds shall be shared by appellant and Whitley, forty per cent thereof going to appellant and sixty per cent to Whitley, and all funds needed for developing and operating the lease shall be furnished by the parties in the same proportions. There is also a provision that, except as to expenses to be advanced by Whitley, all moneys necessary for development and operation of the lease and for paying and discharging any and all obligations of Whitley incurred by or resulting from said development or operation, shall be contributed and paid by the parties in the proportions above mentioned, and that any and all obligations that shall result or arise by