Mackenzie v. Newton

341 S.W.2d 498, 13 Oil & Gas Rep. 836, 1960 Tex. App. LEXIS 1829

• Court: Court of Appeals of Texas
• Decided: November 2, 1960
• Docket: No. 13667
• Status: Published

Opinions

MURRAY, Chief Justice.

This suit was instituted by Jesse I. Newton in the District Court of Bexar County, against Gordon Mackenzie, seeking to establish a partnership, or joint adventure, between himself and Mackenzie for the purpose of engaging- in the business of dealing in oil and gas leases and royalties, and further, that it was agreed that all properties so acquired would be owned equally between the parties and that all expenses incurred would likewise be borne equally by them. Specifically, plaintiff sought to recover a one-half interest in and to an overriding royalty of ⅜4 of ⅞ of oil, gas and minerals produced from 469.557 acres of land in Zapata County, Texas, and fully described in the pleadings.

The trial was to a jury and based upon their answers judgment was rendered in favor of plaintiff. Gordon Mackenzie has prosecuted this appeal.

The first question submitted to the jury reads as follows:

“Question No. 1. Do you find from a preponderance of the evidence that Jesse I. Newton and Gordon Mackenzie entered into an agreement, whereby the plaintiff, Jesse I. Newton, and the defendant, Gordon Mackenzie, would each use their best efforts and endeavor to acquire interests in oil and gas leases and royalty interests in South Texas and elsewhere in the State of Texas, and that during the continuation of that association all of such properties acquired by either Jesse I. Newton or Gordon Mackenzie should be owned one-half by Jesse I. Newton and one-half by Gordon Mackenzie?”

That question was answered in the affirmative, and in answer to Questions Nos. 2 to 5, inclusive, the jury found as follows :

(2) Said agreement was made on or about February 1, 1957;

(3) After said agreement was made Jesse I. Newton used his best efforts and endeavors to acquire oil and gas leases and royalties in South Texas ' and elsewhere in the State of Texas.

(4) Jesse I. Newton paid and advanced money and expenses incurred by him and Gordon Mackenzie pursuant to said agreement.

(5) Gordon Mackenzie acquired the ⅜4 of overriding royalty interest in the Guerra lease, executed by the Abbey Drilling- Company, for the mutual benefit of Jesse I. Newton and Gordon Mackenzie.

These findings by the jury were sufficient to support the judgment rendered.

Appellant’s first and second specially requested issues read as follows:

“Do you find from a preponderance of the evidence that Gordon Mackenzie acquired a ⅜2nd of %ths overriding royalty interest in 184.55 acres of land, being a part o'f the Francisca Guerra et al., 469.557 acre tract, prior to February 1, 1957?

“Do you find from a preponderance of the evidence that the consideration for the conveyance to Gordon Mackenzie by the Abbey Drilling Company on July 26, 1957, of a ¾⅛⅛ of %ths overriding royalty interest in the 469.-557 acres Francisca Guerra et al., lease was in lieu of his ½2nd of %ths overriding royalty interest in 184.55 acres acquired prior to February 1, 1957, inquired about in Defendant’s Requested Special Issue No. One?”

The trial court refused these issues and appellant assigns such action as reversible error. We overrule this contention. The first requested issue sought the submission of a matter that was undisputable. Mackenzie undisputedly acquired a ½2 of ⅞ overriding royalty interest under an oil, gas and mineral lease dated March 29, 1947, executed by Francisca Guerra et al., as lessors, and E. A. Thompson as lessee, covering 184.577 acres of land; but the oil lease here involved is one dated March 28, 1957, between Guerra et al., lessors, and Abbey Drilling Co., lessee, covering 469.557 acres. It was not error to refuse to submit an undisputed fact to the jury. The second specially requested issue inquired whether the consideration for the ⅜4 of ⅞ overriding royalty interest in the 469.557 acres conveyed to Gordon Mackenzie by Abbey Drilling Co., on July 26, 1957, was Mackenzie’s former interest in the 184.577 acres. There was no evidence to support such an issue. The question was asked of Earl A. Thompson, but not answered because the court sustained an objection to the question. The court did not err in refusing these two specially requested issues.

Appellant next contends that the court erred in submitting to the jury issues Nos. 1 and 5. We do not agree. Issue No. 1 is in the same form as that found in Thompson v. Corbin, Tex.Civ.App., 137 S.W.2d 157. That case is on all fours with this case. Another case directly in point is Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256. There was no error in submitting Issue No. 5. It was called for hy the pleadings and the evidence.

Appellant contends that the Texas Securities Act, Art. 600a, now Art. 581, Vernon’s Tex.Civ.Stats., requires that Mackenzie have a dealer’s license before he could legally enter into an agreement to deal in oil and gas leases and royalties. Mackenzie represented to Newton that he was an attorney at law and therefore did not need a dealer’s license in order to deal in the sale of oil and gas leases and royalties. He is now estopped to take advantage of his own failure to secure a dealer’s license if such was necessary. We are of the opinion that Mackenzie did not need to have a dealer’s license before he could ■enter into a contract of joint adventure with Newton to acquire oil leases and royalties for their joint ownership. Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146; Fitz-Gerald v. Hull, supra.

Appellant’s other points are without merit and are overruled.

The judgment is affirmed.