Moore v. Doughtie ( 1929 )

REYNOLDS, J.

By this action Ross Moore seeks to recover judgment against J. E. Doughtie, T. S. Sholars, and Rusher Culver, in solido, for $1,148, or, in the alternative, judgment against each of them for $382.66%, with legal interest thereon . from judicial demand.

He alleges that they formed a partnership for the purpose of drilling for oil and gas, and to that end leased from him, at the price of $500 a month, under a contract terminable at their will, a drilling rig.

He further alleges that the lease was terminated on December 21, 1925, and that the price of the lease for the months ending November 21, 1925, and December 21, 1925, is unpaid.

He further alleges that he was compelled to have the rig torn down (presumably to enable him to remove it from where defendants had erected it) at an expense to himself of $72 for labor and of $24 for the premium on a policy of indemnity insurance against liability under the Workmen’s Compensation Law for injuries that might be accidentally sustained by workmen engaged in tearing down the rig, and that he was compelled to pay to Ouachita Iron Works, Inc., $17 for repairs made hy it at the instance of defendants on a part of the rig, and was also compelled to pay $35 for repairs to another part of the rig, to-wit, a pump, which repairs were rendered necessary by careless use of the pump by defendants.

The contract of lease is attached to and made part of the petition.

Various exceptions and pleas were filed by the defendants, and they also filed answers wherein, after reserving the benefit of their pleas and exceptions, should they be overruled, they denied that they were either ordinary or commercial partners.

The defendant Doughtie alleged that he only agreed to furnish a certain amount of money for the use of the enterprise, and that he had provided the amount agreed, and was not liable for any of the obligations sued on.

Defendants Sholars and Culver alleged that the lease was terminated on October 21, 1925, and the rig returned to plaintiff on that date, and was not used by them thereafter, and that they were not indebted to plaintiff on account of the lease price, and they denied that they were liable for the items of $72 and $24 and $17 and $35, or any of them.

On these issues the case was tried, and there was judgment in favor of the plaintiff and against defendant T. S. Sholars for $382.66, with legal interest thereon from December 21, 1925, until paid, and in favor of the plaintiff and against defendant Rush Culver for $382.66, with legal interest thereon from December 21, 1925, until paid, and in favor of defendant J. E. Doughtie and against the plaintiff, rejecting plaintiff’s demand and dismissing his suit as against Doughtie. From‘this judgment the plaintiff appealed.

Defendants Sholars and Culver have answered the appeal, and allege that the judgment is, as to them, erroneous, and ask that it be reversed and plaintiff’s suit dismissed.

OPINION

The view that we take of the merits of the case renders it unnecessary, we think, for us to consider any of the pleas or exceptions filed by the defendants.

The first question to be determined by us is whether or not the defendants were commercial partners.

Whether a partnership is a commercial partnership, under article 2825 of the Civil Code, or an ordinary partnership, under article 2826 of the Civil Code, depends on the intention of the parties and the nature of the business carried on under the agreement.

The partnership was created for the purpose of leasing land for the purpose of seeking the discovery of oil and gas thereon by boring wells and selling such oil and gas if discovered, and this was the nature of the business actually conducted by it; and the drilling rig the partnership leased from the plaintiff was an instrumentality for use to that end.

The engaging in this business did not constitute the defendants commercial partners. American National Bank v. Reclamation Oil Producing Association, 156 La. 652, 101 So. 10; Phillips v. Ray, 1 La. App. 584.

We do not deem it necessary to determine whether or not defendant J. E. Doughtie was only a partner in commendum, as asserted by him, for the reason that the evi-. denee shows that he withdrew from the partnership on October 21, 1925, and that plaintiff was informed of that fact.

J. E. Doughtie testified:

“Q. Mr. Doughtie, what took place in the office of Mr. Tom Sholars on or about the 21st of October, with respect to your connection ■ with the drilling of this well down there at Cane Hill, or Coco Bend?

“A. They sent for me to come to Mr. Sholars’ office to meet them, and when I got there they said that they wanted to pay Mr. Moore five hundred dollars for a month’s rent on the rig, and I first said that I wouldn’t do it. That was for the reason that I had paid all of the five hundred dollars the month previous. Then . they wanted me to go on a note for five hundred dollars, and I said: ‘No, I won’t do it, but I will give you my third, or fourth, or whatever I am responsible for, in cash,’ which I did, and when 1 gave it, I took Mr. Moore’s receipt for it, and I . then told Mr. Moore that, as far as I was concerned, ‘I am through with that whole business down there, and you needn’t look to me for any more rig money, and as far as I am concerned you can take your rig.’ That is whac I said to him in the office, and I repeated it to him on the street.’’

Mr. Moore himself, testified:

“Q. All right now, who paid you the October rent?

“A. Mr. Doughtie paid a third in cash and Mr. Sholars and Mr. Culver gave me a note for the balance.

“Q. When was that settlement made?

“A. That was on October 21st.

“Q. Where was that done?

“A. In Mr. Sholars’ office, in the presence of Mr. Hal Goodwin.

“Q. And who all were present?

“A. Mr. Doughtie, Mr. Moore, Mr.. Culver, Mr. Sholars, and Mr. Goodwin. * * *

“Q. Isn’t it a fact that Mr. Doughtie told you at that time, sir, that, as far as he was concerned, he was out of the whole thing?

“A. Mr. Doughtie told me that he had been paying out all of the bills and was getting tired of it, and I told him that I didn’t know anything about it. That was while we were going down the stairs, and he never told me he was out of it. * * *

“Q. You deny that he said lie was out of the transaction?

“A. Well, I won’t deny it. I think Mr. Doughtie made this remark to me. He said: T have put up money until I am tired of it, and I won’t put up any more.’ Now I believe Mr. Doughtie made that statement to me."

We are of the opinion that Mr. Doughtie withdrew from the partnership on October 21st, and that the plaintiff was informed of it at the time.

Mr. Culver testified:

‘‘Q. What, if anything, was said up there between Mr. Doughtie' and Mr. Moore that day about Doughtie being through with that contract? Just tell us fully and in detail how much you know?

“A. Mr. Doughtie was very much put out, apparently, about the money he had put in for the drilling of this well down there, and he insisted that he would go no further and pay no further money after paying this, and that we could go ahead and do as we wanted to do with the thing but that he didn’t want anything further to do with it, and that he wouldn’t put up any more money. I do not say that I can give you the exact words that Mr. Doughtie used, but that is the substance of what he said, and it was so understood by Mr. Moore and all of the gentlemen present there.

“Q. What was Mr. Moore’s attitude about that matter?

“A. My understanding of it was, that Mr. Moore was in accord; certainly he put up no objections toward Mz. Doughtie’s actions in getting out and quitting. * * *

“Q. Now what subsequent negotiations were carried on, and by whom, concerning this lease?

“A. Mr. Sholars and I, knowing that Mr. Doughtie was going out, took the matter up with Mr. Moore and said to Mr. Moore that we had several prospects in view, and that we hoped to be able to sell enough of these leases down there to take care of the expense, inasmuch as Mr. Doughtie was going out and Mr. Longino didn’t seem to take much of an interest further, to sell enough to pay him up for the rig and finish the well. It was with that understanding that the rig was left there. My own understanding of it was that it was a modification of the old contract, Doughtie getting out and Mr. Sholars and I going ahead under that arrangement with Mr. Moore. We had several negotiations, and I think the time was extended on two or three occasions that way, and I know that we spent time and money in trying to effect the sale of these leases so as to pay Mr. Moore.

“Q. About how many times did you talk with Mr. Moore subsequent to October 21st?

‘‘A. Two or three times.

“Q. Was Mr. Doughtie present on these occasions?

“A. No.

“Q. Did Mr. Moore, or did he not, acquiesce in the suggestions made by you and Mr. Tom Sholars?

“A. Yes, he acted with us; we told him that if he got a job, why, he could take his rig; that if the rig would be of any use to him, to go ahead and take it but that if he didn’t get another job, then the rig might as well be down there as anywhere else. My memory is that the rig was not used at all after October 21st. * * *

“Q. Did you hear, at any time, Mr. Ross Moore, in that meeting up there in Mr. Sholars’ office, told by Mr. Doughtie that the contract concerning this drilling rig was at an end and that he could go there and get his drilling rig?

“A. I don’t remember the exact words, that were used, but I did hear him make Mr. Moore acquainted with the idea that he, as far as that contract was concerned, was through with it, and that Mr. Moore would have to look to other people from then on.”

Mr. Sholars testified:

“Q. Do you recall what, if anything, was said at that settlement by Mr. Doughtie to or in the presence of Mr. Moore concerning the termination of his relations with that affair?

“A. -I distinctly remember that we arranged it with considerable trouble. I saw Mr. Doughtie and he finally agreed to assist us on that five hundred dollars, but, instead of signing a note to permit us to arrange for the five hundred dollars, he said that he would prefer to go ahead and pay his in cash, and my recollection is that it was generally discussed and that it was stated by him that that was just as far as he was going; that that was the end of his contribution or his subscription to that venture.

“Q. Mr. Moore was present at that time?

“A. Yes, sir.

“Q. Do you recall whether or not he stated that to Mr. Moore?

“A. We were all there; it was not a question of each of us being in different portions of the room; we were all right there together, and any remark addressed to one of us was addressed to all of us.

“Q. Isn’t it a fact that you persuaded Ross Moore to leave this rig on there under the terms of this contract until you could see whether you could put that deal over?

“A. Not only that deal, but in Shreveport and everywhere; we urged him to leave it there. * * *

“Q. And who asked Ross Moore to leave that rig down there, you and Rush Culver?

“A. Mr. Culver and myself, yes. * * *

“Q. All right, I will ask this question. Under what contract were the negotiations between you and Rush Culver and your friends, on the one hand, and Ross Moore on the other hand, being carried out?

“A. Subsequent to the payment of the 21st of October?

“Q. Yes?

“A. It would be very hard for me to say what contract it was, because this contract that we had there itself cancelled itself out. I was afraid he would go and get the rig, and both of us undertook to induce him to leave it there; I don’t know that we had any contract about it staying there. * * * ”

The defendants Sholars and Culver having induced the plaintiff, Ross Moore, to leave his rig in their possession after October 21, 1925, they owe him for the lease price of it thereafter.

However, not being commercial partners, they are not bound in solido for the price, but only each for his virile share.

We consider the items of $35 and $17 for repairs to the rig properly chargeable to Sholars and Culver. The repairs were rendered necessary by injury done to the rig while it was in their possession. But we do not consider them liable for the items of $72 and $24. It is not shown that Culver and Sholars had agreed to return the rig in a dismantled condition, and, in the absence of such an agreement, they are not liable for the cost of taking it down. Neither are they liable for the cost of the premium on the policy of indemnity against liability under the Workmen’s Compensation Act for injuries to or death of workmen while engaged in dismantling the rig. This expense was for the indemnity of Moore personally.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended so as to increase the amount of the award to the plaintiff against defendant T. S. Sholars from $382.66, with legal interest thereon from December 21, 1925, until paid, to $552, with legal interest thereon from December 21, 1925, until

paid, and so as to increase the amount of the award to plaintiff against defendant Rush Culver from $382.66, with legal interest thereon from December 21, 1925, to $552, with legal interest thereon from December 21, 1925; and that, in all other respects, the judgment appealed from be affirmed.