#### DE SOTO SECURITIES CO., Inc., et al. v. SAMPLE.*

No. 4982.

Court of Appeal of Louisiana. Second Circuit.

March 8, 1935.

W. M. Pollock, of Mansfield, for appellant.

L. E. Colvin, of Mansfield, for appellees.

*

Judgment corrected on rehearing, see 160 So. 157.

MILLS, Judge.

The De Soto Securities Company, Inc., and J. M. Ford, appearing for the use and benefit of the former, join in this action against Herbert B. Sample, alleging an indebtedness of $899.06.

The dispute arose out of the following transactions: I. N. Pharris was indebted on open account unto J. M. Ford in the amount claimed. The debtor was being sued for a large sum and was desirous of disposing of his property before it became subject to execution. Recognizing the justness of Ford’s claim, which was for subsistence in time of need, Pharris as security assigned to Ford an interest in the Deason oil lease on land in Rusk county, Tex. On February 1,1932, Sample, having acquired the remaining interest of Pharris in the Deason lease, executed the following instrument:

> “Toa/c. $904.06

> “Credit Meter deposit. 5.00

> “Bal.$899.06

> “Having purchased I. N. Pharr-is' interest in Ford and Sample Deason #1 in Rusk Co., Texas, I agree to settle the above account with J. M. Ford the said J. M. Ford agreeing at same time to transfer any interest in same to H. B. Sample.

> “H. B. Sample

> “J. M. Ford.”

Ford being indebted unto the De Soto-Securities Company, Incorporated, and being pressed by them for additional collateral, on November 29,1932, delivered to them, as such, the above document upon which they are now suing.

Defendant filed a plea of prematurity, which was properly referred to the merits as it is based entirely upon the defense set up *434in tie answer. He interposed .also an exception of no cause or right of action, wiici was overruled. 'As it is not urged iere, it will not be passed upon.

Tie defense is:

> First, tiat Sample, in signing the- instrument sued on, did not intend to assume any personal responsibility for tie Piarris debt. Tiat the real agreement was tiat Ford was to be paid out of tie first revenues from tie producing -well drilled on tie Deason tract in a sufficient amount to pay tie Piar-ris debt, after wiici the interest held by Ford was to be assigned to Sample, who was only personally liable in tie event tie oil runs failed to liquidate the account. Tiat though nothing has been paid to Ford or his assignee, tie well is yielding a revenue and tie suit is premature until it is shown tiat this revenue will not ultimately pay off the account. Tiat if tie instrument evidences any other agreement it was signed and executed by defendant in error.

> Second, tiat in a subsequent deal between Ford, Sample and others, and C. D. Siallen-berger, Ford transferred to tie latter his interest in tie Deason lease for stock to be issued in a corporation to ibe formed, wiici constituted a payment of tie Piarris debt.

As to tie first defense, tie testimony of Ford, and Sample is directly contradictory. That of tie former is supported by tie clear, explicit, and unambiguous language of the instrument, creating a clear preponderance in favor of plaintiff on tie questions of fact, 'intent, and error.

As to tie second defense, tie record discloses tiat on August 9, 1932, Ford, together with H. B. and G. W. Sample, assigned all their interest in tie lease to O. D. Siallen-berger. At the same time a counter letter was executed evidencing an agreement tiat Siallenberger should have until December 15, 1932, to acquire complete ownership of tie property and convey it to a corporation to be formed. It- recites tiat stock was to be issued to tie various assignors as an additional consideration to tie $1 expressed. Failing to carry out his part of tie agreement by tie specified time, Siallenberger was to recon-vey tie interests assigned to Mm. Shallen-berger did not secure the outstanding interests and did not form tie corporation. He is still holding tie interests assigned as trustee for tie assignors. Ford testifies tiat he made tie assignment to Shallenberger at tie request and for tie benefit of Sample. Tiat he never contemplated receiving for Mmself any stock in tie proposed corporation. At'the trial he delivered to Sample a written disclaimer of any interest in the Deason lease declaring tiat any interest appearing in his name or accruing to him in tie Siallenberger transaction is the property of H. B. Sample.

While the well is a good producer, it has paid notMng to the owners because of tie proration regulations, and for tie further reason tiat it has been, in some not clearly explained litigation, in tie hands of a receiver. It appears to promise ultimate payment, in which event, under- the disclaimer, Sample will be reimbursed tie amount of the Piarris debt to Ford. Sample admits tiat the transfer to Siallenberger was at his request. We are satisfied from the testimony tiat in acceding to it Ford never intended to release Sample from his obligation to pay tie Piarris debt. Had there been such an intention, tie instrument evidencing tie obligation would have been surrendered.

We find tie judgment appealed from, in favor of tie De Soto Securities Company, Incorporated, for tie amount claimed, correct. Plaintiff, in its brief, finds fault with the period for which interest is assessed, but as it has neither appealed nor answered the appeal of defendant, we can extend no relief.

For the reasons assigned above, tie judgment appealed from is affirmed.