(dissenting in part).
In my opinion the pleadings in this case will not support a judgment for plaintiff upon either .of the two causes of action attempted to he alleged. A judgment without such support is so fundamentally erroneous that it is our duty to take notice of it, even in the absence of an assignment of error. One cause of action, which plaintiff attempted to allege
was for a breach of the first covenant in the lease, set out in the majority opinion, which obligated the lessee to deliver to the lessor “the equal one-eighth part of all oil produced and saved from the leased premises.” No cause of action upon that covenant could exist unless oil was produced, nor be alleged without alleging, in effect, that oil had been produced. The other cause of action sought, to be alleged was for breach of the second covenant in the lease, set out in the majority opinion, which obligated the lessee to pay to the lessor $300, a year as a royalty “for the gas from each well where gas only is found.” No cause of action upon that covenant could exist unless one or more wells produced gas only, and of course could not be alleged without alleging, in effect, the existence of one or more wells which produced gas only. The pleading alleged that only one well was drilled, and that it was a gas well. The lease set out as an exhibit to the pleading showed that there was a third covenant which obligated the lessee, “To pay lessor for gas produced from any oil well and used off the premises * * * $50.00 per year.” This exhibit, showing a distinction made as to the royalty for the gas from an oil well and the gas from a gas well, considered together with the claim in the pleading for $300 royalty instead of $50 royalty, necessarily shows that the allegation of a gas well meant a well producing gas only. The two causes of action attempted to be alleged were not averred in separate copnts, or one alternative to the other. Plaintiff asserted not one or the other, but both. The judgment of the trial court awarded recovery upon both. The judgment awarded plaintiff recovery of $1,038.74 to satisfy the claim for one-eighth of the oil produced from the only well on the lease. It also awarded her recovery for $910.50 to satisfy her claim for the gas royalty of $300 per year for the gas produced from a well producing gas only, but which, nevertheless, was the same well from which the oil was alleged to have been produced. In other words, to recover upon the last-named claim it was necessary for plaintiff to prove that the one and only well produced gas oi^ly, and in order to recover upon the other cause of action it was necessary for plaintiff to prove that the said well produced oil. In order to recover upon either cause of action, it was necessary that there be allegations of facts to which the evidence could apply as proof of same. It is perfectly obvious that the pleading contained contradictory and inconsistent averments of material facts. That a pleading is insufficient to state a cause of action, where the averment of material facts is contradicted by other allegations in the same plea or count, is an elementary principle of law. Towne’s Texas Pleading, p. 425; Hillebrant v. Booth, 7 Tex. 501; Steinback v. City of Galveston (Tex. Civ. App.) 41 S. W. 822; Barry v. Serewmen’s *669Benev. Ass’n, 67 Tex. 250, 3 S. W. 261; Kynerd v. Security National Bank (Tex. Civ. App.) 207 S. W. 133; Rowe v. Horton, 65 Tex. 89.
As said in Hillebrant v. Booth, supra, “It Is an elementary and primary requisite of a good plea, tkat it be capable of proof, * * * If it judicially appear to tbe Court, from the defendant’s own admissions or statements in his plea, that it is untrue, it will be of no validity. If the averments(be inconsistent, and thus contradict and falsify themselves, they cannot be susceptible of proof. A plea setting up, as a defence, failure of consideration, which alleges that such failure consisted in the existence and non-existence of a given fact [italics ours], presents, on its face, an absurdity, and, of consequence, must be'invalid.”
How could plaintiff prove her alleged cause of action to recover the $300 per year gas royalty? One essential fact to be proved would be that the well produced gas only. If the proof showed that it produced oil and gas, the $300 could not be recovered because the contract in such case provided a different amount, and one which the pleading did not seek to recover. Proof that the well produced gas only would directly contradict and deny the allegations that the well produced oil. On the other hand, proof that the wellproduced oil would just as certainly and directly contradict and deny that it produced gas only. In other words, if the evidence proved the allegations intended to show one of the two causes of action, the same evidence would affirmatively and conclusively disprove the other. To hold that such a pleading would support a judgment would, in my opinion, be tantamount to holding that it is wholly immaterial what is alleged in a pleading, and that a pleader can never be bound by any allegation he may make. The writer hopes that the undoubted tendency to disregard the rules of pleadings has not progressed to such an extent.
The majority opinion takes no notice of this question of the sufficiency of the pleading to support the judgment. It naturally would not if the court was of the.opinion that the pleading was sufficient to state a cause of action. The conclusion of the majority that the plaintiff was not entitled to recover upon the claim based upon the covenant to deliver one-eighth of the oil shows, inferentially, that it is their opinion that the pleading was insufficient to state a cause of action upon that theory. But whether the pleading, not considering the conflicting allegations, was sufficient to state a cause of action upon that theory, is wholly immaterial upon the point under discussion. The facts alleged to support a claim for the value of oil produced from the well, even if insufficient to state any cause of action, were none the less just as certainly contradictory and inconsistent with the other facts alleged as if, but for such contradictions, they alleged a sufficient cause of action.
The writer, independently of the matter of contradictory and inconsistent allegations already discussed, is disposed to concur in the conclusion that the pleadings stated no cause of action for one-eighth of the gasoline under the oil royalty provision, but such conclusion results from slightly different considerations. Other than as the question may be affected by the inconsistent allegations, which were not involved upon the former appeal, the plaintiff, it seems to me, has pleaded the same cause of action based upon the covenant to deliver one-eighth of the oil that was pleaded before and-has pleaded it just as fully and well. The sufficiency of the pleading to state a cause of action was sustained by this, court upon a divided opinion. The Supreme Court refused a writ of error. Ordinarily, under the circumstances, the former opinion would be the law of the case. The majority opinion expresses the view that, as applied to this case, the recent decision in Lone Star Gas Company v. Stine (Tex. Com. App.) 41 S.W.(2d) 48, has the effect of overruling the case of Reynolds v. McMan Oil & Gas Co. (Tex. Com. App.) 11 S.W.(2d) 778; Id. (Tex. Com. App.) 14 S.W.(2d) 819, and the former opinion of this court, 19 S.W.(2d) 178, which was based solely upon the McMan decision, or at any rate, renders said decisions no longer applicable to this case. I doubt if such effect was intended by the Supreme Court. The opinion in the Stine Case says: “The Court of Civil Appeals holds that the instant case is ruled by the holding of Section B of the Commission, speaking through Judge Speer, in Reynolds v. McMan Oil & Gas Co., 11 S.W.(2d) 778. We have carefully examined that opinion in the light of the contract there construed and think that a correct conclusion was reached, as applied to that contract construed in the light of that record.” There is thus affirmatively shown, it seems to me, an intention of the court not to overrule the McMan Case. On the former appeal in the instant case the writer concurred in the view that, if the McMan Case correctly declared the law as applicable to the facts. of that case, it was likewise applicable to the facts of this ease, as alleged in the plaintiff’s pleading, and the sufficiency of which this court was called upon to determine. The opinion in the McMan Case, in substance and effect, simply declared that the covenant of the lessee to deliver one-eighth of the oil to the lessor constituted an exception of one-eighth of the oil from the conveyance of all the oil and gas; the result being that, when the lessee manufactured gasoline from the gas produced from an oil well, the gasoline being held, as a matter of law, to be oil, the title, therefore, to one-eighth (or at least some portion) thereof, by virtue of said exception. *670remained in tlie lessor and entitled liim to recover the same or tlie value thereof. The only difference in the McMan Case and this case, as then presented to us, was that the former involved the gasoline manufactured from the gas from an oil well, and the latter involved the gasoline manufactured from a gas well. Of course, the writer concurred in the opinion of the majority that such difference involved no legal distinction in the two cases. Certainly, no court would hold as a matter of law that the gasoline manufactured from gas out of an oil well is oil, hut that the gasoline manufactured from gas out of a gas well is not oil. If both are Oil, which certainly they are, if either is, then how could it be contended, with any degree of logic or plausibility, that, if the exception of one-eighth of the oil from the conveyance of all the oil and gas applied to the gasoline manufactured from the gas out of an oil well, it would not also apply to the gasoline manufactured from the gas out of a gas well. To undertake to predicate a legal distinction upon such a ground would, I think, be a palpable absurdity. It is impossible to ascribe to the Supreme Court a recognition of any such distinction, not only because of its absurdity, but also because the contrary is necessarily implied in the action of that court in refusing a writ of error. The action of this court in sustaining the pleading being based alone upon the decision in the McMan Case, and such pleading involving, as it did, only gasoline manufactured from the gas out of a gas well, the court could not have refused a writ of error on any other ground than that the Mc-Man Case was applicable, because there was no distinction to be made.
Although I agree with the majority that the decision in the Stine Case, if applied to the facts in this case, is contrary to the decision in the McMan Case and to the opinion of this court upon the former appeal, 19 S.W.(2d) 178, yet, as I see it, it is no more certainly so than was the decision in Magnolia Petroleum Company v. Connellee (Tex. Com. App.) 11 S.W.(2d) 158, which the Supreme Court seems to recognize as being distinguishable from tne McMan Case. Under these circumstances a very difficult and delicate question is presented as to what we should regard as authority. It seems to be the view of the majority that the Stine Case, because of its being a later expression, has necessarily overruled the McMan Case, at least so far as it could otherwise apply to this case, and therefore, of course, has overruled the former decision of this court, which for its sole support depended upon the decision in the McMan Case. The .writer, while agreeing that, so far as I am able to see, the Stine Case is indistinguishable from this, is no more certain that it is not than I have always been that the decision in the case of Magnolia Petroleum Company v. Connellee was indistinguishable from the McMan Case, as well as this case.
1 have concluded that, since the Supreme Court, as shown by the 'Stine Case, continues to give express approval to declarations of principles which appeal to me as being correct and, so far as I can see, to be applicable to and which should control the decision of the instant case, I am disposed to follow same, although at the same time I am forced to admit that apparently the Supreme Court recognizes some kind of a distinction, which, because perhaps of natural limitation upon my intellectual powers, I am wholly unable to see or understand.
Eor that reason I concur in the conclusion that, even if they were not contradicted, the allegations designed to show a right to recover for a part of the gasoline manufactured from gas produced from the lease are insufficient to state a cause of action. But for the contradictions above pointed out, I would be able to concur with the majority in sustaining a recovery for the gas rentals. It follows, from what has been said, that I am of opinion that this court properly can only order a reversal of the judgment and a remand of the case.