Dempsey Oil Co. v. Torrans

HODGES, J. In May, 1919, the appellee, Paul W. Torrans, procured a mineral lease on a tract of land from E. B. Colgin and wife for a term of years, the lessors reserv-. [856] ing a right to one-eighth of the production should any be secured. Some time later Torrans sold an undivided one-half of his sevemeighths interest to Hussey & Wheelan, a partnership. In August, 1920, Torrans and Hussey & Wheelan entered into a contract with the Dempsey Oil Company, Limited, appellant in this suit, whereby in consideration of an undivided five-eighths interest conveyed by Torrans and Hussey & Wheelan the Dempsey Oil Company agreed to drill a well to the depth of 2,500 feet unless oil in paying Quantities should sooner be found. The stipulations bound the Dempsey Oil Company to furnish the material and do all the labor necessary to the sinking of the well. The Dempsey Oil Company entered upon the performance of that contract and drilled the well to a depth of 2,340 feet and there encountered a showing of oil. Torrans claimed that the indications were that oil in paying quantities had been found, and demanded that appellant install a pump in the well for the purpose of pumping the oil out. Dempsey, appellant’s manager, on the other hand, claimed that the oil found was not in paying quantities, and insisted on going • deeper. The dispute culminated in a difficulty between Torrans and Dempsey, who was in charge of the drilling operations. Dempsey refused to install a pump as demanded by Torrans, drilled to the depth of 2,500 feet, and, it is alleged by the appellee, destroyed the well. Torrens alone instituted this suit against Dempsey Oil Company, Limited, to recover damages sustained by him for the failure of the oil company to stop the well at the depth of 2,340 feet and install a pump for the operation of' the well. He alleged that the appellant willfully and without reason continued to drill the well to the depth of 2,500 feet for the purpose of damaging and destroying it and of injuring him. In his pleadings Torrans set out the contract between himself and Hussey & Wheelan with the Dempsey Oil Company, alleging the details disclosing the interest of all parties mentioned. Among other defenses interposed by the appellant was a plea in abatement objecting to maintenance of the suit because of the nonjoinder of Hussey & Wheelan, who, it was alleged, were jointly interested with Torrans in the contract with the .appellant. The court overruled that plea and submitted the merits of the case upon special issues, in response to which the jury found substantially as follows: That oil in paying quantities was found at the depth alleged by Tor-rans in his pleadings, that the well at that stage would have produced 25 barrels per day for eight years, and that the oil was worth $2 per barrel. The jury also found that the appellant did not act in good faith in refusing to install a pump at the stage demanded by Torrans. Upon those findings the court entered a judgment in favor of Torrans for the net sum of $10,000 as his portion of the damages resulting from the conduct complained of. [1, 2] The refusal of the court to sustain the plea in abatement based upon the nonjoinder of Hussey & Wheelan is assigned as error, and we are of the opinion that the assignment should be sustained. Both the pleadings of Torrans and the evidence showed that Hussey & Wheelan were jointly interested with him in the contract with the appellant. If Torrans had a cause of action for damages for the breach of that contract, or for an injury to the common property, Hussey & Wheelan also had one for an equal sum. Their interest in the contract and in the property was in every respect equal to that of Torrans. That parties jointly interested in a written contract must join in a suit for damages resulting from a breach by the obligor is well settled by the decisions in this state. May v. Slade, 24 Tex. 209; Stachely v. Pierce, 28 Tex. 328; Moore v. Rice, 51 Tex. 293; O’Brien v. Gilleland, 7 Tex. 604, 15 S. W. 682; Williams v. Ft. Worth & N. O. Ry. Co., 82 Tex. 560, 18 S. W. 207; Hanner v. Summerhill, 7 Tex. Civ. App. 235, 26 S. W. 906; Dawson v. George (Tex. Civ. App.) 193 S. W. 495. It is also the settled law that tenants in common must join in a suit for damages to the common property G. H. & S. A. Ry. Co. v. Stockton, 15 Tex. Civ. App. 145, 38 S. W. 647, and cases there cited. Hence the rule is the íime wnetner we treat this suit as one based upon the breach of the contract entered into by Torrans and Hussey & Wheelan with the appellant, or upon an independent tort committed by the appellant which resulted in injury to the common property. [3] The ruling of the court is defended upon the ground that in this case the damages were apportioned so that Torrans recovered only those which he alone sustained. That fact might be a sufficient reason for sustaining the judgment when the objection to that nonjoinder is not made till after issue had been joined upon the merits of the controversy, but it does not justify overruling a plea in abatement filed at the proper time and in due order of pleading. A defendant has a right to be protected against a multiplicity of suits growing out of the same contract, and his plea in abatement is the legal method of asserting that right. No reason is shown in this record why Hus-' sey & Wheelan were not made either parties plaintiff or defendant. The disposition made of the case renders it unnecessary to'discuss the remaining assignments of error. For the reasons stated, the judgment will be reversed, and the cause remanded for a new trial. 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