Citations
- 90 S.W.2d 846
Full opinion text
McCLENDON, Chief Justice.
Appeal by plaintiffs below from an adverse judgment rendered upon a directed verdict at the close of plaintiffs’ evidence, in a suit which plaintiffs describe as follows: “This suit was brought by Albert Schram, Herbert Burns, D. C. Matthews and Charles Rolff, against J. C. McNeill and the Pearl Oil Corporation and Ward Powell as Receiver, to establish an interest in the profits .and proceeds of an oil and mineral lease on ..approximately two hundred acres of land in the East Texas oil field in Rusk County, Texas, and for an accounting of a mining partnership.”
, Since we have reached the conclusion that the trial court’s judgment should be sustained for want of consideration upon each of the two asserted theories of recovery (interest in the lease and mining partnership), we will confine our statement to the record showing pertinent to that issue.
This conclusion results from our construction of the record as evidencing, without any substantial doubt, that the dominant or only consideration for plaintiffs’ claim was the use of a divining rod, usually referred to as a “wiggle-stick” or “doodle-bug,” in the exploration for oil, which we do not regard as constituting a substantial or valid consideration cognizable in a court of justice.
McNeill and Matthews had been engaged in oil prospecting and development (buying and selling leases and drilling oil wells) since 1926. Their business was begun as a partnership; but in January, 1930, they formed a corporation under the name of McNeill & Matthews, Inc. Since then their joint business has been transacted by the corporation, the stock of which is owned 49 pér cent, each by McNeill and Matthews, and 1 per .cent, each by their wiyes. Since the organization of the corporation and until about the time this suit was filed in May, 1933, Matthews had devoted his entire time to the corporation.
Rolff was a farmer living in the northeastern portion of Travis county. He was the inventor and owner of the “doodlebug,” which Schram described as follows: “As far as I know, the gentleman who owns it says it is a secret; he claims it is an invention of his own which he doesn’t want to reveal to anybody, but the tube proper, what’s supposed to do this exploring, is about six inches long, and in this tube he has his secret, which he has never revealed to anybody, and it is sealed at both ends, and at one end there is an opening to attach to this fork, and the fork is about fifteen or sixteen inches long and has two handles to it; a man takes this fork in both hands with the tube up and holds it over the land or leases, and by some way he can tell whether the land has potential oil bearing possibilities or whether it is dry.”
Only certain individuals, supposed to possess the requisite attributes, could operate the