#### SHELL PETROLEUM CORPORATION v. ROYAL PETROLEUM CORPORATION et al.

No. 1806-7380.

Commission of Appeals of Texas, Section B.

March 13, 1940.

R. H. Whilden, Jesse M. Davis, and Barksdale Stevens, all of Houston, for plaintiff in error.

O. F. Wencker, J. W. Hassell, J. W. Hassell, Jr., Herbert W. Whisenant, and S. W. Marshall, all of Dallas, for defendants in error.

TAYLOR, Commissioner.

This suit was filed by Royal Petroleum Corporation against B. B. and G. E. Caster, husband and wife, the Republic National Bank & Trust Company of Dallas, Allen *754K. Puckett, and the Shell Petroleum Corporation. For convenience the parties named will be designated as the Royal, the Casters, the Bank, Puckett, and the Shell.

The controversy arose out of the following facts:

The Casters on July 19, 1932, owned a lease containing about 41 acres of land in Rusk County, Texas. The Royal on the date mentioned purchased it, paying therfe-for .$1,500 in cash, and agreeing to pay a further consideration of “$25,000.00 payable out of 1⁄41⁄8 of %ths of all the oil and gas produced, saved and marketed from * * * the tract * * ***from wells ■* *■ *• now drilled or to be hereafter drilled thereon.”

The Royal, after purchasing the lease, operated it, and delivered the oil produced therefrom to the several purchasers of, the oil runs. During all of the time involved the Royal was the operator, and was in charge of the lease and the oil produced therefrom, and its delivery to the various purchasers.

After the Casters conveyed the lease to the Royal they sold partial interests in the $25,000 oil-payment to several purchasers, respectively, including Puckett. The sales were evidenced by transfer orders, signed and acknowledged, the first, of which to Puckett, reads in part:

> “Magnolia Petroleum Company Transfer Order

> “To Magnolia Petroleum Company,

> Dallas, Texas

> “February 16, 1933

> “The undersigned, having transferred, as indicated below, oil production of wells numbered one and up on (here follows description of land covered by lease), you are hereby authorized, beginning * * * on the 1st day of February^ 1933, and until further notice, to give credit for oil received on account of said interest so transferred as follows:

> Credit to Transferred Interest P. O. Address Allen K. Puckett $50.00 per month * * *

> "Due on the 12th of each month out of Mrs. G. E. ■ Cáster and B. B. Caster’s interest, * * *. '

> “The above payments shall continue for twenty (20) consecutive months *or*until the total sum of $1,000.00 has been paid Allen K. Puckett, payments ‘to begin March 12, ' 1933 (here follow signatures of the Cásters, attested by witnesses). :

> “The undersigned certify that they are the legal owners of the interest above transferred and warrant the title thereto, and the Magnolia Petroleum Company is hereby authorized *until further notice*to receive oil for purchase from said parties subject to the following conditions: * * *

> “6. Sellers severally agree to notify Magnolia Petroleum Company of any change of ownership, it being understood that any vendee or assignee of said wells or the production-thereof shall take same subject to the-terms hereof.”

The foregoing order is signed also b}r Puckett.

The Casters and Puckett executed five such transfer orders of partial interests respectively out of the $25,000 oil payment, aggregating $8,550, as follows: No. 1, dated February 16, 1933, for $1,000 payable $50 per month; No.. 2,- dated March 17, 1933, for $1,000 payable $50 per month; No. 3, dated April 251⁄8 1933, for $2,550 payable $75 per month; No. 4, dated October 3, 1933, for $1,000 payable $50 per month; No. 5, dated February 21, 1934, for $3,000 payable $125 per month.

They were all acknowledged and filed for record in the deed records of Rusk County.

Subsequent to the sale of the-lease by the Casters to the Royal (July 19, 1932), and prior to February 1, 1935, purchasers of the oil produced from the lease paid the Casters and their assigns the total sum of $24,899.88, lacking only $100.12 of being payment in' full of the $25,000 oil-payment.

The Magnolia was the first purchaser of the oil runs. The Lion Oil Refining Company was its successor as purchaser. The Shell succeeded the Lion as purchaser and' was taking the oil runs when this controversy arose in 1935. There was no connection between the companies takipg the oil runs. One merely succeeded the other as an independent purchaser.

On March 29, 1934, a short time before the Shell began taking the oil runs (May 21, 1934), Puckett assigned'to the bank as Collateral to secure his indebtedness to it then or thereafter existing, the five transfer, orders, or oil payments, above described (then partly liquidated), payable in the aggregate, at the rate of $350 per month. The assignment, among other things, directs and empowers '“the purchaser of oil * * * ' to pay direct to Republic Bank & Trust Company * * * every and all sums of money - * ' * * when and as they *755become due and payable to Allen K. Puckett *' * * by virtue of said oil payments,” the oil payments referred to being those evidenced by the five transfer orders above described. It further authorized the bank to receive and collect and apply same to the payment of Puckett’s indebtedness to the bank, present and future. The assignment was duly acknowledged and was recorded in Rusk County on March 30, 1934.

The Shell made no distribution until after it received a division order signed by the respective owners of the parties’ interests in the $25,000 Caster oil payment. After it became the purchaser, it sent to the Royal, the operator of the lease, a blank division order form and requested substantially that the names of those owning partial interests in the working interest of the lease and the respective proportions in which owned, be inserted, and that proper signatures be secured. The request was complied with and the division order, executed by the parties at interest, was returned by the Royal to the Shell.

Omitting the unfilled blanks, the names of witnesses, the description of the land covered by the lease, certain immaterial (for present purposes) paragraphs, the postoffice addresses and penciled notations, the division order is as follows:

> “Division Order

> To Shell Petroleum Corporation,

> St. Louis, Missouri. June 9th, 1934

> The undersigned certify and guarantee that they are the legal owners of the oil produced from Wells Nos. 1 and up on the lease (involved herein), including royalty interest, and until further notice you will give credit for all oil received from said wells as per directions below:

> 

* * . * * *

Shéll Petroleum Corporation is hereby authorized until further written notice to receive the oil from said wells for purchase from said parties severally in the propor? tions named, subject to the following conditions :

First: The oil run in pursuance to this division order shall become the property of the Shell Petroleum Corporation upon delivery thereof to any pipe line designated by it.

Second: The oil received in pursuance to this division order shall be paid for to the patty or parties entitled thereto according to the division of interest shown above, at the price,for each day’s receipts posted on that day by *Shell 'Petroleum Corporation*for the same kind and quality of oil in the field in which it is received. Settlement therefor shall be made on or before the 12th day of each calendar month for oil run during the preceding month. These payments are to be made in checks of the Shell Petroleum Corporation, to be delivered or mailed to the parties thereto entitled at the addresses above given.

* * * * *

Fourth: Each undersigned hereby warrants and guarantees the title to the oil credited to such undersigned owner according to the division of interest' hereinabove indicated, as well as all interest hereafter acquired.”

The division order is signed' by all of the parties to whom the working interests are credited, including the bank. The bank signed it as “assignee of the interest of Allen K. Puckett.”

At the time the Shell became the purchaser of the oil runs (about May 21, 1934) there remained unpaid of the $25,000 item *756the sum of $10,507.81, and there was still unpaid on the aggregate amount of the Puckett interest the sum of $5,125. Thereafter, the Shell after receiving the signed division order (dated June 9, 1934) made payments on the Puckett interest beginning July 1, 1934, and continuing monthly thereafter until the payments aggregated the sum of $2,700. They appear to have been made to the bank as follows:

> 

> August 14, 1934. 350.00

> September 13, 1934. 350.00

> October 15, 1934. 350.00

> November 14, 1934. 300.00

> December 13, 1934. 250.00

> January 14, 1935.■ 250.00

> February 13, 1935.250.00

> March 30, 1935. 250.00

> $2700.00

The instrument whereby the Casters conveyed the lease in question to the Royal, provides, in addition to the consideration of the promise to pay $25,000 out of 1⁄2 of of the oil produced from the lease, that the payments shall be made *"if, as and when the oil is produced, saved and mafr-keted.”*(Italics ours.)

The Shell, after completing payment of the full amount of the $25,000 item, except the $100.12, so notified the Royal. It is un-controverted that in completing the payment it did so by making monthly payments aggregating $2700 as itemized above. Nor is it controverted that upon the completion of the payments the five Puckett interests evidenced by the transfer orders, the aggregate of the amounts paid thereon, was less than the sum of $8550 by $2425. No contention is made that the Royal is not entitled to all of the oil production after the $25,000 item has been paid.

It is uncontroverted also that both the Royal and Puckett, after the Shell notified the Royal that payment of the amount of the $25,000 remaining unpaid when it began taking the oil had been completed, asserted their claims respectively, Puckett asserting his right to receive the $2,425, and the Royal asserting its right to receive the entire amount held by the Shell over and above the $25,000 which had been paid.

Controversies arising out of the facts stated above, and the Shell’s unwillingness, in view thereof, to make further payments either to the bank on the Puckett interest, or to begin making payments to the Royal, brought about the filing of the suit.

The following excerpt from the opinion of the Court of Civil Appeals sets out a condensed summary of the voluminous pleadings of the parties [111 S.W.2d 1178, 1180]:

> “The Royal alleged that, sufficient oil having been produced and sold to pay in full the item of $25,000 purchase money recited in the deed to it by the Casters, it was entitled to releases, and had demanded of interested parties receiving payments the execution of suitable releases, freeing the leasehold from the implied lien; alleging the refusal of the parties to execute same; also alleged in detail facts, not necessary to be repeated, praying that, on final hearing, the court adjudicate that the parties (the Casters, The Bank, Puckett, and The Shell) owned no further interest in the leasehold, or in the oil produced therefrom; and that the clouds cast upon the title, by reason of their previously existing claims, be removed, and that plaintiff have judgment against The Shell for the value of the oil produced in excess of the amount necessary to satisfy the said $25,000 indebtedness.

> “Puckett answered the main suit and filed a lengthy cross-action against the Royal, the Casters, The Bank, and The Shell, alleging in detail the material facts involved, showing that, although The Shell had purchased a sufficient quantity of oil from the lease to pay his claim, it had failed to do so, lacking $2,425 of paying the full amount due, but instead paid the same to the Casters, for which amount, Puckett prayed judgment against all the parties named in his cross-action. * * *

> “The Shell pleaded at great length, contending in effect that it had paid the proceeds of all oil purchased in strict accordance with the terms and provisions of the division and transfer orders, and that payments as made fully discharged it from all liability to Puckett. Also filed a cross-action against the Casters and The Royal, praying in the alternative that if judgment should be rendered against it in favor of Puckett, that judgment be rendered in its favor over against said cross-defendants for the amount of the judgment so rendered, etc. * * * ”

The bank and Puckett did not plead antagonistically against each other. Puckett sought no affirmative relief against the bank. The bank sought no affirmative relief against Puckett. It alleged merely the *757assignment of TAarch 29, 1934, made by Puckett to it for collateral purposes, and payments under the assignment, alleging in this connection its receipt from the Shell of the $2,700 in monthly payments as above itemized.

The Casters filed no answer and entered no appearance of any kind.

The Shell in its first amended original answer admitted that the companies taking •oil from the premises had paid to the Casters and their assigns, including Puckett ■and the bank as his assignee, the full sum ■of $25,000 less the sum of $100.12 then in its possession, alleging that it was holding ■same for such of the defendants as might "be entitled thereto, and tendering such sum into court “to be paid out in accordance with any judgment * * * the court might render.” It admits also that it had ■on hand, accrued as of August 1, 1935, from 3⁄4 of *%*of the oil produced and purchased hy it, the sum of $3,000 to which claim was being asserted by both the Royal and Puck■ett, and alleges that on account of the conflicting claims it is tendering, and does ten•der into court, this sum also to be paid out .in accordance with the court’s judgment.

The Shell pleaded, and attempted to prove, that it was the custom in the oil industry in Texas and generally in the United 'States for operators of oil properties which are operated in accordance with the obligations entailed by the instruments above set •out to keep purchasers of oil produced from such properties, advised as to the application of the purchase money toward the liquidation of the outstanding oil payments, •and that this custom was recognized and •adopted by the parties in this cause. The testimony upon this issue is conflicting and the trial court’s finding that “no such custom” existed, is final, and need not be further mentioned.

It should be added that other than the •conflict referred to the material facts are in no wise in conflict.

Upon trial of the case without a jury the •court rendered judgment in favor of Puckett and the bank (assignee) against the Shell for $2,425, and against the Casters, jointly and severally, for the same amount. It also rendered judgment in favor of the Shell over against the Casters, jointly and •severally, for a like amount ($2,425), but provided that execution should not issue on the judgment in favor of the Shell against the Casters until the Shell had paid *the*judgment against it in favor of Puckett and the bank. The court further adjudged that the ’ Royal recover of ■ and from the Shell and all other parties to the suit the sum of $3,000 tendered into court, that title of the Royal be discharged of the claim for unpaid purchase money recited in the conveyance by the Casters to the Royal and by reason of the previously existing claims of parties, be removed.

The judgment so decreeing was affirmed by the Court of Civil Appeals, 111 S.W.2d 1178. Writ of error was granted upon application of the Shell.

The principal holding of the trial' court upon which its judgment was rendered, and upon which it was affirmed upon appeal, is that the Shell “without any authority” from Puckett or the Royal paid the Casters-$2,-425, which, according to the view of the courts below, Puckett and the bank were entitled to receive from the Shell. •

We are in accord with the view expressed by the Court of Civil Appeals that the judgment upon the holding stated is “pivotal,” and settles the main controversy; and that as a consequence all subordinate issues presented in cross actions by the parties against each other are settled. We are not in accord, however, with the view either that the Shell’s payments to the Casters and their assignees were made without authority, or that Puckett and the Bank are entitled to receive from the Shell the sum of $2,425, or to receive from it any sum other than the $100.12 tendered into court by the Shell. The provisions of the instruments above set out and referred to, particularly of the conveyance by the Casters to the Royal of the transfer orders executed by the Casters and Puckett, and of the division order.

Puckett does not contend that the Royal is not entitled to receive the proceeds of the: oil produced, over and above $25,000, or that this amount has not been paid to the Casters and their assignees, including himself and the bank, except, of course, the $100.12 tendered into court. His principal contention is that inasmuch as he and the bank, as his assignee, lack $2,425 of having received the sum of $8,550, the Shell should continue making monthly payments upon the interests transferred to him out of the $25,000 interest until the sum of $2,425 has been paid.

His contention is predicated upon the view that the stipulation of the transfer orders that the “payments shall continue for” the stated number of “consecutive *758months, or until the total sum of” the stated amount “has been paid” to him, means that the payments shall continue for the stated number of consecutive months, *and*until the total sum remaining unpaid ($2,-425) has been paid. He contends, stating it another way, that the word “or” as used in the stipulation is explanatory, and that in the clause in which it is used it means “that is to say”; and that by substituting this phrase for “or”, requires that the above payments shall continue monthly for the stated number of “consecutive months,” until the total sum of $2,425 has been paid to him. We cannot agree with the contention stated.

In its ordinary use the term “or” is disjunctive, and alternative in its effect; See the analogous cases- of Oxsheer v. Watt, 91 Tex. 402, 44 S.W. 67.' Unless there is some impelling reason apparent in the context, it should be given its ordinary, rather than a conjunctive meaning. Id.; Lunt v. Ætna Life Ins. Co., 261 Mass. 469, 159 N.E. 461; In re Gaynor, 217 Mass. 86, 104 N.E. 339, L.R.A.1916A, 363. We find nothing in the text indicating, as urged by Puckett and the bank, that “or” as here used in the alternative stipulated, is explanatory and means “that is to say.” Nor is there any impelling reason in the context for giving the word “or” any other than its usual meaning.

The Casters, it will be observed, part with no right to receive the full sum of $25,000, except as evidenced by the terms of the transfer orders. It follows from this as a corollary that Puckett acquired no right to monthly payments after the $25,000 oil payment had been discharged. It is therefore manifest that the legal effect of the provisions of the transfer orders is to transfer to Puckett monthly payments subject.to cessation of payment upon discharge of the $25,000 out of which the Puckett interest is payable. In other words the transfer orders transfer monthly payments payable consecutively so long as any balance of the $25,000 remains unpaid.

The alternative stipulation discussed above prevents cessation of payment so long as the proportionate part of production applicable to the liquidation of it and the $25,000 interest does not amount to as much per month as Puckett’s stipulated monthly sum. There is no stipulation, however, in the transfer orders requiring application of more than the stipulated monthly sum to the Puckett interest in the event the proportionate part of applicable production amounts td more than that. In the absence of such stipulation the excess is payable toward the discharge of the amount remaining unpaid on the $25,000 interest.

It is clearly provided in the conveyance from the Casters 'to the Royal that payments toward the liquidation of the $25,000 are to be made *"if, as and when the oil is produced, saved and marketed”*(italics ours), from which it follows that such excess, whether much or little, is applicable to discharge such unpaid amount. In such contingency it is manifest that the ultimate limit of the Puckett interests ($8,550) pays out less rapidly than the remaining $25,000 interest.

The contingency last referred to actually materialized. Production increased. It is uncontroverted that - there was only one producing well on the property when the Royal purchased the lease. There were five when the Shell began making distribution of the proceeds of the oil about July 1, 1934, and by the time the $2700 was paid there were nine. Puckett himself testified that the Magnolia was taking the oil when he purchased his first partial interest in the $25,000 oil payment; that every month subsequent to that time he was furnished oil run statements showing the amount of production, first by the Magnolia, iater by the Lion, and finally by-the Shell; that each and every time he obtained a transfer order from the Casters he procured from the Royal figures as to the approximate balance due on the $25,000 oil payment; that he could tell, from the monthly run statements furnished him that production was increasing in amount ; that the statements from the Shell.toward the end showed “quite an increase” in production; that they were sent to his bank and were by the bank furnished to him; that he was indebted to the bank far in excess of $2,425, and that the bank was getting the statements monthly and was getting the money dué him.

The instruments of conveyance above referred to were duly filed for record in Rusk County, and charged the parties with notice of their respective , stipula-i tions and provisions.

It will be noted that by, the terms of the conveyance of the lease by . the . Casters to the Royal a. limit of $25,000 is placed upon the amount of the oil payment to be paid out of oil .production on the Caster *759$25,000 oil payment. The conveyance itself stipulates in this connection that *until said sum of $25,000 has been received by grantors*the purchaser is authorized to pay to the grantors the purchase price “of 1⁄8 of 7⁄8 of the oil * * * , *said payments to be made as, if and zvhen the oil is produced, saved and marketed."*

The division order directs the Shell that “until further notice you will give credit for all oil’’ received from the lease, to the owners of the working interests named therein in the proportions stated; that is to say, it directs the Shell, so far as the Caster-Puckett interests are concerned, to give credit to the Casters until notified by the Royal, 1⁄4 of 7⁄8 of the proceeds of the oil produced, "less $350.00 per month to Republic National Bank & Trust Company,” until “notified by the Royal Petroleum Corporation.”

Puckett makes some contention that he did not sign the division order, but it is, not disputed that it was signed on his behalf by the bank as his assignee and that he, month after month, received notice that his obligation to the bank was being credited with payments made from the oil runs. As stated in the opinion of the Court of Civil Appeals, the interests of the bank and Puckett are not antagonistic. Puckett makes no contention that the bank was not authorized to sign the division order. as,,above stated, and Puckett testified that “beginning June, 1934, and terminating January, 1935”, the monthly oil run statements were forwarded to him “from time to time as the * * * bank received them.” He is not in position, under the record before us, to now assert as against the Shell that he is not bound by the directions contained in the division order.

After receiving notice from the Royal that the $25,000 item lacked only $100.12 of being liquidated, the Shell made no further payments to any of the owners named in the division order, and tendered into court, but after suit was filed, that amount, together with the sum of $3,000.

It follows from what has been stated that under the record before us the Court of Civil Appeals erred in affirming the trial court’s ' judgment" awarding judgment .against the Shell in favor of Puckett and the bank. It follows also that since the judgment against the Shell is erroneous the cross action decrees predicated thereon are also erroneous.

We hold that the Court of Civil Appeals did not err in affirming the trial court’s judgment for $2,425 in favor of Puckett against the Casters. This holding is predicated not upon the view that the Casters were overpaid by the amount recovered against them, but because they filed no answer in the case, entered no appearance therein, and prosecuted no appeal from the judgment, thereby permitting it to become final in the trial court.

We hold that the judgment of the trial court as between Puckett and the Shell should have been in Puckett’s favor for $100.12, together with his costs; and that the court in this connection should have directed that the sum of $100.12 be paid the bank as assignee of Puckett.

We also hold there was no error in that portion of the trial court’s judgment awarding -the Royal judgment against the Shell and all other defendants for “the sum of the $3,000.00 tendered into court,” and in declaring its title “free and discharged of all claims and liens,” *to the extent that they are asserted to arise from the payment of that part of the $25,000 remaining unpaid*when the Shell began distributing the proceeds of the oil runs applicable to the payment of such remainder, but we hold in this connection that it was erroneous to decree that the Royal’s title be declared free of liens other than such as arose out of payments of the amount of the $25,000 remaining unpaid at the time stated.

These holdings determine all of the material questions presented.

We accordingly affirm that part of the judgment of the Court of Civil- Appeals which affirms the judgment of the trial court in favor of Puckett against the Casters for $2,425. In all other respects the judgments of the courts below are reversed and set aside, and the cause is remanded to the trial court for entry of a judgment in accordance with this opinion.

The judgment is affirmed in'part and is reversed and remanded in part with instruc- . tions.

Opinion adopted by the Supreme Court,