
    CAMERON v. GUFFEY.
    (No. 393.)
    Court of Civil Appeals of Texas. Eastland.
    Jan. 20, 1928.
    1. Mines and minerals 01 — Allegation of
    joint adventure to acquire 100-acre mineral lease held not at variance with proof of defendant’s joint acquisition of 140-acre lease.
    In suit to recover alleged profits due under a joint adventure to acquire mineral lease, allegation of agreement to acquire jointly 100 acres held not at variance with proof showing, a joint acquisition between defendant and other parties to the exclusion of plaintiff of 140 acres; the gravamen of complaint being a breach by defendant of his agreement.
    2, Mines and minerals <§=>101 — Defendant, breaching joint adventu're to purchase mineral lease, held properly required to divide profits on purchase of lease with others.
    In suit to recover alleged profits due under joint adventure to purchase a mineral lease consisting of 100 acres of land, allowance of one-half of profits received by defendant on purchase of lease jointly with others, to exclusion of plaintiff, held not erroneous though lease acquired consisted of 140 acres, since whatever acreage was received by defendant must be construed to have been acquired under contract with plaintiff.
    Appeal from District Court, Taylor County; W. R. Chapman, Judge.
    Suit by Ira L. Guffey against G. C. Cameron and another. Judgment for plaintiff, and defendant named appeals.
    Affirmed.
    Stinson Hair & Brooks, of Abilene, for appellant.
    H. L. De Busk, of Abilene, for appellee.
   PANNILL, C. J.

This suit was brought by appellee to recover alleged profits due him under a joint adventure with appellant. He joined W. R. Hedrick as defendant. There were two propositions relied on for reversal, and these raise the questions as to the sufficiency of the pleadings to support the judgment under the evidence introduced, and therefore a brief résumé of both the plaintiff’s petition and the evidence introduced will be required. In substance, the averments are: That plaintiff and defendant entered into an agreement to Jointly acquire an oil and gas lease on a certain 100 acres of land, owned by one Wall, for $10 per acre. That appellee paid bis part of tbe consideration to appellant in tbe form of a check upon appellant’s assurance that be bad made arrangements to bave the lease to tbe 100 acres executed. That thereafter, without appellee’s consent, tbe lease was executed by Wall in tbe name of W. R. Hedrick, and that Hedrick also acquired an additional 40 acres from Wall. That later Hedrick sold tbe entire 140-acre lease with knowledge of tbe agreement between appellant and appellee. That appellee was entitled to one-balf of tbe profits realized out of tbe 100 acres, and that this sum amounted to $2,125.

There was a trial before tbe court without a jury and judgment was rendered for ap-pellee against appellant in tbe sum of $988.25, and discharging Hedrick. Appellant alone has appealed. Tbe testimony, in substance, of appellee is: That be agreed with appellant to acquire 100-acre mineral lease from Wall, eacb to contribute one-balf of tbe purchase money and .to share equally in tbe profits of tbe transaction. That be gave appellant bis check for $500, which was bis one-balf, and went to tbe vicinity of tbe land for tbe purpose of seeing tbe owner, Wall. That appellant went to the bank where Hedrick was cashier and went in tbe bank, leaving appel-lee outside, and later be joined appellee and told him that be bad made arrangements with Hedrick to bave Wall execute tbe lease for $1,000, and that appellant suggested tbe parties return home. That in a few days appellant came to him and returned tbe check, or offered to return tbe same, and informed him that be was unable to procure an interest in tbe lease for appellee. It is further shown that Hedrick did procure a lease from Wall for 140 acres, which was taken in Hedrick’s name, but at tbe time Hedrick agreed that be held tbe lease in trust, one-third interest to himself and one-third interest eacb for appellant and bis brother, and that appellant paid the entire consideration for tbe interest to himself and to bis brother, in tbe sum of $957. That tbe lease was sold, and out of tbe proceeds of tbe sale Hedrick received $2,450, G. C. Cameron $2,923.50, and D. E. Cameron $1,976.50.

Tbe court awarded appellee one-balf of tbe amount received by appellant G. C. Cameron, less tbe entire amount paid by him for the interest of himself and bis brother.

We are unable to detect in tbe pleadings and evidence any variance, as insisted by appellant. We are unable to conclude that the case of Vitovsky v. Gallia (Tex. Civ. App.) 268 S. W. 1026, bears any analogy to tbe case at bar. In that case tbe appellee sued for tbe price of an automobile, which be alleged be bad delivered to tbe appellant, and on tbe trial admitted that be bad been paid for tbe automobile, but that nevertheless the appellant owed him tbe said amount as profits due in a joint transaction between them. The court correctly held that be could not recover profits on a transaction in real estate in a suit for tbe purchase price of an automobile.

Appellant is of tbe opinion that because appellee alleged be agreed to acquire jointly tbe 100 acres, and because the proof shows a joint acquisition between appellant and other parties to tbe exclusion of appellant of 140 acres, this constitutes a variance. We are unable to agree to this insistence. The gravamen of appellee’s complaint was a breach by appellant of bis agreement. Tbe assignments presenting the questions of variance are overruled.

It is next claimed that appellee, if entitled to recover at all, could only recover one-balf of tbe net profits which accrue on one-third of tbe 100 acres, because appellant never acquired tbe 100 acres. It will be noted that tbe 100 acres and 40 acres were all included in one lease. Certainly, appellant was entitled to recover one-balf of the profits which appellant made out of tbe transaction up to and including one-balf of tbe profits on tbe 100 acres. Appellant’s interest was an undivided one in tbe whole 140 acres. He bad contracted with appellee to take this lease on 100 acres of land jointly in their behalf. Whatever acreage be did get out of tbe whole matter must be construed, as was done by tbe trial court, to bave been acquired under tbe contract between appellant and ap-pellee, and this is on the assumption that appellant got as much as be was able to get. The court might bave concluded that appellant could bave acquired tbe interest which was taken in tbe name of bis brother, and if be had, appellee’s judgment should bave been very much greater. On tbe other band, tbe trial court allowed appellant to deduct from tbe profit which be realized tbe entire amount for both bis and bis brother’s interest. Tbe judgment clearly demonstrates to our minds that tbe trial court sustained all of tbe appellant’s contentions which, in good conscience, could bave been allowed, and that, therefore, be has no cause for complaint.

The judgment of tbe trial court is therefore affirmed. 
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