have proven that the mortgage debt had the nature of a partnership, for the disnever been paid, and asked for a foreclosure covery and development of lands bearing oils of same in this proceeding. Appellees did not ask for such judgment, and the judgment, if allowed to remain, would bar appellant from recovery of the land. The case was not well tried in the court below, and will probably be more fully developed on another trial. [2] Appellant, by several assignments of error, complains that the court did not give certain special instructions. In this the court did not err, as it was not requested to give such instructions. and other minerals of value, by virtue of which plaintiff was to devote his time and attention as a practical geologist and one experienced in the location of oil and mineral bearing lands; and the defendants were to finance the projects. The plaintiff was to receive one-fifth of the net revenues or profits from the venture, and the defendants were to receive four-fifths. Plaintiff pleaded in the alternative that, if he was mistaken as to there being an association or partnership, then he had rendered services of val Appellant's bill of exception to the per-ue to the defendants, which were accepted emptory charge of the court is sufficient to raise the issues referred to in this opinion. The judgment of the trial court is reversed, and this cause is remanded for. a new trial. by them, and that he was entitled to payment from them for such services on a quantum meruit. The petition showed that O. H. Chapman and P. A. Chapman were residents of Ellis county, Tex., and that R. M. McFarlin and J. A. Chapman were residents of Tulsa county, Okl. It showed that P. A. Chapman and O. H. Chapman and R. M. McFarlin had answered, but that J. A. Chapman had not answered. It prayed for a recovery against defendants on the theory of a partnership, and in the alternative for judgment against each and all of them for valuable services rendered them and accepted by them. Defendants P. A. Chapman and O. H. Chapman and R. M. McFarlin answered by exceptions, general denial, and denial under oath of partnership. In view of the allegations as to partnership rights and liabilities, J. A. Chapman, though a nonresident of the state, and not answering, was retained as a party defendant in the petition on which the case was tried. Frank v. 2. TRIAL 145-ABANDONMENT OF ISSUES- Tatum, 87 Tex. 207, 25 S. W. 409; Burnett EVIDENCE. & Ross v. Sullivan et al., 58 Tex. 535; McManus v. Cash & Luckel, 101 Tex. 261, 269, 108 S. W. 800; Glasscock v. Price, 92 Tex. 271, 47 S. W. 965. The case was submitted to the jury on special issues, confined to the question of whether there was a partnership formed between plaintiff and defendants, re Appeal from District Court, Ellis County; quested issues based on the theory of no partF. L. Hawkins, Judge. Suit by R. W. Guyer against P. A. Chapman and others. Judgment for defendants, and plaintiff appeals. Reversed and re manded. M. W. Muse and J. M. Muse, both of MeKinney, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant. Tom Whipple, of Waxahachie, and Harry Rogers, of Tulsa, Okl., for appellees. RAINEY, C. J. This suit was instituted in the district court of Ellis county, Tex., by R. W. Guyer against P. A. Chapman, O. H. Chapman, R. M. McFarlin, and J. A. Chapman, alleging that he and they had formed a partnership, or an association in nership, and the right of plaintiff to recover for valuable services rendered being refused. The first issue submitted was whether plaintiff and defendants entered into a partnership, and the jury were instructed, if they answered this in the negative, they need inquire no further. That issue was so answered. The court thereafter entered judg ment that plaintiff take nothing, and that defendants recover all costs. The trial court instructed the jury as follows: "Plaintiff alleges in his petition substantially the following: That about the 17th day of January, 1911, that plaintiff, R. W. Guyer, and defendants, P. A. Chapman, O. H. Chapman, R. M. McFarlin, and J. A. Chapman, at Llano, Tex., entered into an agreement by and between themselves, forming an association in the na For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ture of a partnership, the purpose of which was At the close of the evidence and argument to search for, discover, locate, purchase, develop, of counsel special issues were submitted to and otherwise handle all kinds of minerals, in- the jury by the court, the court confining the cluding gas and oil; that under said agreement jury to one issue, that of the parties enterthe said Guyer should furnish his knowledge and information as a geologist and as one having a contract as alleged by plaintiff and iging acquaintance with the general character of noring plaintiff's plea of quantum meruit, geological formations bearing or likely to bear and of this appellant assigns error, claiming or produce gas or oil, and that he should fur- that it was raised by both the pleadings nish his knowledge, information, and services and the evidence. in pointing out general geological formations and the trends of the same, and general locations where there was a probability of the production of the same; that he was, whenever requested to do so, to give his judgment or opinion as to any places where it was expected or anticipated that any of the other parties to said contract might or should secure leases or A quantum meruit was duly pleaded in the make purchases for the purpose of discovering alternative, and the appellant in his testiand developing gas or oil; that he was to do mony detailed many facts showing services this not only of his own motion, but at the re-performed for appellees, which, if true, would quest or under the direction of said other per- have warranted a judgment for appellant, sons to said contract, or any of them; he was and said issue should have been submitted to make researches where they should indicate; to the jury. that the four defendants were to furnish the capital for the research work, location, discovery, development, and handling of all properties and rights acquired or to be acquired, and that it was agreed and understood between the plaintiff and the defendants that in whatever way said agreement or contract might be effectual or carried out that the plaintiff was to have one-fifth of all the profits and net amounts realized from the undertaking." There were numerous other facts setting forth the performance of services by plaintiff for the defendants and the dealing between them, and plaintiff pleaded in the alternative as follows: "Plaintiff says that, if mistaken in his construction of said agreement between him and said other four persons constituting a partnership or association in the nature of a partnership, or if he is mistaken as to there being any specific and definite agreement under which he performed the services as aforesaid, yet he further pleads that he performed all of the said services upon the inducement at the instance and request and for the benefit of said four parties, called defendants, and each of them, as above shown; that said services were accepted by said parties, and were of value to them; that they often recognized the value of such services, and told plaintiff he would be fully protected; that in reliance upon such promises he performed each and all of the labors above set forth, and that by reason of his knowledge, his advice, and his work defendants, and each of them, have become enriched, by reason of all of which they have become bound and in law have promised to pay plaintiff the reasonable and just value for his services, knowledge, and labor of which they have so taken advantage. They have refused and still fail and refuse to pay plaintiff one dollar. Plaintiff says, based on the very lowest estimate of the worth of said services, he is entitled to receive from them the sum of $2.000,000, and that their promises and undertakings toward plaintiff were joint and several, and that each of them has become bound to pay to plaintiff his just damages, all of which they, and each of them, refuse to do." The jury answered this issue against appellee, and the court refused to propound certain issues as to the right of appellant to recover on a quantum meruit, and this constitutes the controlling issue in this appeal. [1] Appellees contend that appellant by his evidence showed that he was relying on having made a contract and repudiated having worked on a quantum meruit, and did not rely for a recovery on the worth shown by evidence of the services rendered. But a recovery does not necessarily depend on a specific value, and if it be shown that services were rendered, nominal damages can be recovered. The rule as to value is stated by the third Court of Civil Appeals as follows: "It is, however, contended on the part of appellees that, since the plaintiff had brought his suit upon an implied contract, alleging that his services were reasonably worth $300. the burden of proof was upon him to establish his case as alleged, but that no testimony was offered by him to show what his services were reasonably worth. Therefore, irrespective of whether there was error in the giving and refusing of said charges, the judgment should be aflirmed. We do not agree with appellees' contention in this respect, because, first, the evidence does show that appellant claimed at the time that the service was performed that it was worth at least 10 per cent. of the amount involved, but that he would only charge 5 per cent. therefor. Besides this, even if it were conceded that no proof whatever was made with reference to what the same were worth, still we think that plaintiff would have been entitled to recover at least a nominal amount therefor." Pierce v. Aiken, 146 S. W. 951. The judgment is reversed, and cause remanded. On Rehearing. [2] Appellees in their motion for rehearing contend that we were in error in stating that they claimed that appellant should not recover because he did not state the value of his services, therefore the issue of quantum meruit should not have been presented to the jury. It is admitted that the writer of the opin lon committed error in that respect. But in 14. BOUNDARIES 3(5)—UNMARKED LINESreconsidering this matter this court is of the COURSES AND DISTANCES. opinion: That appellees "did contend, and now so contend, that appellant's lawyer in their pleadings sought a recovery on quantum meruit, but that the plaintiff repudiated the quantum meruit theory, and by his testimony abandons it by continually saying that he relied on the contract; that he had never performed any services except under and by virtue of the contract made with appellees at Llano, Tex." The writer did not intend to misquote appellees' contention, and while he was wrong in his statement, the court thinks error does not affect the result of the decision made; conceding that the testimony was sufficient Distance being regarded as more unreliable than course, it follows that, the greater the distance, the greater the probability of error, and vice versa. 5. BOUNDARIES 3(7)-DISREGARDING CALLS -ADJOINING SURVEYS. The fact that in field notes of a survey there is a call for an unidentified corner of a survey ought not to be given controlling effect, if to do so is to entirely disregard calls for adjoining surveys and cause confusion and disagreement. Appeal from District Court, Baylor County; J. H. Milam, Judge. Action by the Matador Land & Cattle for the jury to find against Guyer on his Company, Limited, against the Cassidy claim of a contract and his insistence that he was only claiming by virtue of that contract, still, under his pleadings on which he went to trial, and the evidence adduced on the trial, he was entitled to the submission of a quantum meruit. If there was no contract entered into, which the jury evidently believed, but if Guyer believed there was a contract, and he did render valuable services for appellees, would the fact that he only claimed by virtue of the contract preclude him absolutely from a recovery on a quantum meruit? We think not. So an issue was raised which could only be settled by the jury. The court did not see proper to submit this issue, and for this reason the motion for rehearing is overruled. MATADOR LAND & CATTLE CO., Limited, Southwestern Commission Company, and another. From the judgment rendered, plaintiff appeals. Reversed and rendered. Cowan & Burney, of Ft. Worth, and Dickson, Kenan & Newton, of Seymour, for appellant. Carrigan, Montgomery & Britain, of Wichita Falls, and W. D. Wilson, of Spur, for appellees. CONNER, C. J. It is agreed in this case that appellant, plaintiff below, is the owner of survey No. 96, hereinafter described, and that the appellee, Cassidy-Southwestern Commission Company, is the owner of survey No. 1, originally patented to T. H. Harkey, situated immediately west of said section 96, and that the only issue involved in this case is as to the true boundary line between said survey No. 96 and said survey No. 1. The boundary line between the surveys named, as fixed by the judgment of the court below, is 101.2 varas east of where appellant claims that it should be. In the effort to make clear how this result was obtained, we will state that survey No. 96 is one of a series of sections in a block of land surveyed by virtue of certificates issued to the Indianola Railroad Company. The initial survey in this block, which extends some 5 or 6 miles north and south by about the same distance east and west, is survey No. 2. BOUNDARIES 3(2)-CONFLICTS IN SUR- 73. Its calls, omitting those not deemed 1. BOUNDARIES CIENCY. 37(1)—EVIDENCE-SUFFI In suit to determine true boundary between adjoining surveys, held, that boundary was as claimed by plaintiff. VEYS. In establishing boundaries, those calls will be adopted which are more certain, avoid conflicts in surveys, etc., and harmonize with the evident purpose of the state in making the grant, even though a natural object must be disregarded. material, are as follows: "Beginning at a stake in prairie 7 miles N. and 4 ms. W. from N. E. cor of a L. & L. survey in the name of Wm. Cain at the N. W. cor. No. 178, B. S. & F.; thence W. 1900 vs. stake; thence S. 1900 vs. stake; thence E. 1900 vs. S. W. cor. Sd. No. 178; thence N. 1900 vs. to the 3. BOUNDARIES 3(7)-UNMARKED LINES- place of beginning. Surveyed on the 11th day COURSES AND DISTANCES. of Nov. 1875." When unmarked lines of adjacent surveys are called for, and when, from the other calls of such adjacent surveys, the position of such unmarked lines can be ascertained with accuracy, the unmarked lines will prevail over course and distance. The survey No. 178 mentioned in these field notes is a section in the northwest corner of a block of surveys in the name of John H. Gibson, situated to the east of the Indianola Railway Company block. The Gib For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes son block, so far as is necessary here to son block was surveyed between the 2d and describe it, extends 7 miles north and south 4th days of November, 1875, and the Indianby 4 miles east and west. Surveys 147, 148, ola block, as shown by the field notes, was 152, 151, and 178 constitute the northern surveyed on the 11th day of November, 1875, tier of surveys on the Gibson block; survey and both blocks were surveyed by deputy No. 178 being in the northwest corner of surveyors of the Young land district. It is the block. Survey No. 136 is in the south-evident that the purpose of the surveyors east corner of the Gibson block as above de- in putting in these two blocks of land was scribed, and its calls are as follows: “Beginning at a N. E. corner of Wm. Cain survey L. & L. stake, whence mesquite 2 in. dia. brs. S. 23, W. 52 vrs.; thence N. with west B. L. of No. 135, 1900 vrs. to E. Mnd; thence W. 1900 vrs. to stake; thence S. 1900 vrs. to stake; thence E. 1900 vrs. to the place of beginning." The Wm. Cain survey, called for in the field notes of No. 136, is a large survey of about 21⁄2 miles square. The northeast corner of the Wm. Cain, as called for in the field notes of No. 136, cannot be identified on the ground. The location of this corner of the Wm. Cain can be determined only by course and distance from the southwest corner of this survey, which is identified as an original corner, and the only one of the Wm. Cain corners that can be found. Nor was there found on the ground any original corners in the Gibson block, except the common corner on the north between surveys 147 and 148, and between surveys 152 and 151. The surveys along the eastern boundary of the Indianola Railway Company block all call for the western tier of sections in the Gibson block. Some of them also called for the northeast corner of the Wm. Cain survey, as in the case of the field notes of survey No. 73 hereinbefore given. The field notes of these surveys call for stakes on the common line between the Indianola Railway Company and Gibson blocks, but the common line between these blocks, as called for in the field notes, is not a marked line, being in the prairie, nor does the evidence disclose that any of the original stakes called for can be found. [1] Survey No. 96, owned by the appellant in this case, is in the third tier of the block from the north and on the western boundary of the Indianola Railway Company's block, and the court arrived at the result shown by the judgment by fixing the west boundary line of survey No. 96 by course and distance from the northeast corner of the Wm. Cain survey, instead of fixing the boundary from the northwest corner of survey 178 in the -Gibson block. Appellant insists that the true western boundary of survey No. 96 should be determined from the calls in the Indianola block for the surveys in the Gibson block rather than from the northeast corner of the Wm. Cain survey, and, after as careful a consideration of the evidence as we have been able to give it, we agree with appellant's contention in this respect. It appears from the evidence that the Gib to make the line between them a common between the blocks, for the instructions from one; there was no purpose to create conflict the General Land Office, as shown by the evidence, were to the effect that the Indianola Railway Company's block should so join the Gibson block on the west, and the field notes of the surveys in the two blocks returned to the General Land Office show that there was neither a vacancy nor a conflict between the several blocks named, and the maps from the General Land Office, as recognized for many years, so show. Adverting to what has already been stated, the calls in survey 73, the initial survey in the Indianola block, cannot be identified on the ground; that is to say, the original corner stakes and line of No. 178 cannot be so identified, nor can the northeast corner of the Wm. Cain be so identified, but by going 2 miles course and distance from the northwest corner of survey No. 178 there is to be found an identified corner on the northern line of the Gibson block, to wit, the common corner between surveys 151 and 152. Then 2 miles farther east is another identified corner in the line of the Gibson block, to wit, the common corner between surveys 147 and 148. By following course and distance from these identified corners, the northwest corner of 178, called for in the field notes in survey 73 in the Indianola block, can be fixed on the ground with, as we think, greater certainty than the same point can be located by running course and distance from the southwest corner of the Wm. Cain, not called for in the field notes of survey 73, north 21⁄2 miles, in order to establish the northeast corner of the Wm. Cain, called for in the field notes of survey 73, and from thence running course and distance 7 miles north and 4 miles west. [2, 3] One of the rules adopted by the courts in establishing boundaries is that those calls shall be adopted which are more certain, avoid conflicts in surveys, etc., and harmonize with the evident purpose of the state in making the grant, even though other calls less certain, even though a natural object, must be disregarded. J. W. Robinson v. Elias Mosson et al., 26 Tex. 249; Bass v. Mitchell, 22 Tex. 285; Jones v. Burgett, 46 Tex. 284; Linney v. Wood, 66 Tex. 22, 17 S. W. 244. In the leading case of Maddox Bros. & Anderson v. Fenner, 79 Tex. 279, 15 S. W. 237, it is said that: "When unmarked lines of adjacent surveys are called for, and when from the other calls of such adjacent surveys the position of such unmarked lines can be ascertained with accuracy, and when, in the absence of all evidence as to how the survey was actually made, there arises a controversy as to whether course and distance or the unmarked line of another survey shall prevail, we see no good reason why the survey line should not be given the dignity of an 'artificial object' and prevail over course and distance." See Lilly V. pass which gave the course. [4] If the greatest liability for error exists in the calls for distance, it must follow that the greater the distance the greater the probability of error, and hence the ratio of certainty must increase as the distance To the same effect is the case of Hermann is decreased. This is said to illustrate the v. Thomas, 168 S. W. 1048. The rule so suggested leads, we think, to the conclusion that we have reached. The unmarked line on the western boundary of the Gibson block, for which all the bordering surveys in the Indianola block call, can be located with reasonable certainty by course and distance from the established corners before referred to on the north line of the Gibson block, and, as we think, the surveyor, in putting in the Indianola block, much more probably located the beginning corner of the Indianola block from these two known corners. These two blocks were surveyed within a few days of each other by deputies of the same land district, and we think it fairly inferable that the deputies, locating the Indianola block so soon after the survey of the Gibson block, most probably then saw upon the ground the stakes called for along the west line of the Gibson block. It seems improbable to us that the surveyor, in beginning the location of the Indianola block at the northwest corner of survey 178 in the Gibson block, would have surveyed from the southwest corner of Wm. Cain survey, some 91⁄2 miles in a southeasterly direction in order to obtain his starting point. Both calls reasonably identify the beginning point at the northwest corner of survey 178, except that, if the calls from the northeast corner of Wm. Cain be adopted as the controlling call, the distances are exhausted before reaching the beginning point, thus creating a conflict of 101.2 varas, which it was the evident purpose of the surveyor not to make, and which, as evidenced by the maps from the land office, was not so intended by the land department of the state. It is said in the cases that, of all the indicia of the locality of the true line as run by the surveyor, course and distance are regarded as the most unreliable; distance being regarded as more unreliable than course, for the reason that there is a greater probability that a chain carrier may lose count or report distances incorrectly by mistake or design than that there was an error in the com conclusion that we have reached that in locating the lines of the surveys in the Indianola block greater certainty of true results is obtained by beginning at the northwest corner of survey No. 178 as fixed from the nearby established corners in the north line of the Gibson block. And inasmuch as it seems to be conceded that the several surveys in the Indianola block all in regular sequence follow one another and call for each other, and that if survey No. 96 be located by course and distance from the northwest corner of survey 178 in the Gib son block, as we have indicated should be done, that the western boundary of survey 96 is as plaintiff below and appellant here claims that it should be, and not as claimed by appellee, or as fixed by the court in its judgment. [5] The fact that in the field notes of survey 96 there is a call for the unidentified northeast corner of the Wm. Cain ought not, we think, to be given controlling effect. To do so is to entirely disregard the calls in the same field notes for the two adjoining surveys in the Indianola block and cause confusion and disarrangement in all surveys therein. By disregarding this call, and giving effect to others, as we have indicated, the harmony of the entire system is preserved, and this is a factor worthy of consideration in the process of arriving at the correct result. Particularly is this true in view of the further fact that appellee's survey is junior in point of time to the surveys in the Indianola block by some 30 years, with one of its calls for the southwest corner of 96, and no evidence is pointed out tending to show that, by fixing the west boundary of 96 as we have indicated, there will be any excess in 96, or any deficiency in appellee's survey. In view of the conclusions stated, other assignments are thought to be immaterial, and it is accordingly ordered that the judgment below be reversed, and here rendered for appellant in accordance with the conclusions above announced. |