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Carr v. McGinley Corp. 105 S.W.2d 410 (Tex. Civ. App. 1937)

(Vernon's Ann.Civ.St. art. 5526). Appellee also denied the agency of H. J. Heartwell. Answering appellee's plea
of limitation as related to his allegation of fraud, appellant alleged that he first learned of the fraud practiced
upon him by the agents of appellee when certain depositions were returned from Laredo, Tex.

The case was tried to a jury. At the conclusion of all the testimony, upon motion of appellee, the trial court
instructed the jury to return a verdict for it. The court rendered judgment for appellee, and appellant prosecutes
his appeal to this court.

Appellant's first proposition is: "The testimony as to development expenses by Wm. McGinley, an interested
party, uncorroborated, ambiguous and self-contradictory, and opposed by the inferences from surrounding
circumstances and the testimony of another witness, was not the proper basis for an instructed verdict." There is
no doubt but that the above proposition states a correct rule of law. Sigmond Rothchild Co. v. Moore
(Tex.Com.App.) 37 S.W.2d 121. But we do not think this case is controlled by the above proposition of law.
Wm. McGinley testified that appellee had paid drilling contractor Gier the balance due him for drilling wells
No. 1 and No. 2. It is true he paid off the indebtedness by adjusting a claim he or his company had against Gier,
412 but it amounted to the *412 payment of the balance due Gier by appellee and appellant. It could make no
difference to appellant whether appellee paid Gier cash or paid him by liquidating a debt owing McGinlcy or
the corporation by Gier, so long as the indebtedness due the contractor for drilling these wells was paid.
Corroborating Wm. McGinley, the interested witness, the drilling contractor Gier testified that he had drilled
the wells for the parties to this suit and that there was no money due him under the terms of the drilling
contract. Moreover, appellant in his testimony nowhere denies the account sued on, except by claiming to have
paid more than his one-half of the original purchase price of the leases on the two tracts of land. His testimony
with respect to this phase of the case is:
"Q. Now, the total cost, as itemized here, is $7,840.30 for the drilling of the two wells, including the casing.
Now, one half charged to A. P. Carr, $3,920.15. You have not paid that much? A. I have not paid anything
except what the record shows I paid.

"Q. It shows here credits of three $500.00 payments, March 31, April 1st, and April 21, 1932. Shows you paid
Joe Gier $375.00 and by way of salvage casing sold, entitling you to a credit of $452.50. A total credit of
$2,327.50, as against the amount charged of $3,920.15, which leaves a balance due and owing by you to
McGinley Corporation $1,592.65. You don't say that is incorrect, do you? A. I don't know. * * *

"Q. I will ask you, have you examined the account for McGinley Corporation as rendered to you? A. Yes, sir, I
examined those accounts.
"Q. I believe you testified this morning you paid the entire consideration for drilling of the first well? A. Yes,
sir.

"Q. And you paid a portion of your part of the cost for the second well? A. Yes, sir.

"Q. You testified to that effect this morning. Why have you not paid the remainder? A. Principally because I
learned — I got the information, at least, that I had paid all or substantially all of the cash consideration for the
two leases in controversy. Under the terms of my agreement with Mr. Heartwell and Mr. McGinley, I was to
have paid one-half."
On May 2, 1932, after both wells had been drilled and abandoned as nonproducers, appellant wrote W. J.
McGinley the following letter;

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