(dissenting).
Nueces Land Irrigation Company, a Texas corporation, was the owner of several hundred acres of land in Dimmit county, Tex., which it contemplated improving under an irrigation system. W. T, Eldridge was the owner of a large interest in the properties of said corporation and he also held a deed of trust or mortgage lien against said properties to secure the payment of a large indebtedness due him by the corporation.
It was the purpose of the corporation to put its lands under an irrigation system, put it or a part of it into a state of cultivation, to erect buildings thereon, to subdivide it into several tracts, and to offer said tracts for sale, and to accomplish its purposes it sought the services of R. J. Bauereisen, son-in-law of W. T. Eld-ridge, who resided in Chicago, as general manager of its properties and as such manager to put down wells for obtaining water for irrigation purposes, to have constructed canals, and to perform such other duties as were necessary to accomplish its purposes, and to negotiate sales of its lands.
Bauereisen had educated himself as a mechanical engineer and entered the same as his profession and had equipped himself with tools and implements to carry on his profession.
W. T. Eldridge, as president of Nueces Land Irrigation Corporation and as one owning a large interest therein, began negotiations with Bauereisen to procure his services as general manager of the properties of Nueces Corporation, Whereupon Bauereisen came to Texas, looked over the premises and after doing so entered into two written contracts contemporaneously made, one with the Nueces Corporation and the other with W. T. Eld-ridge, both dated the 26th day of July, 1928, the first being executed only upon condition that the second would be executed. The contracts mentioned are as follows:
First contract:
“This Agreement entered into this 26th day of July, 1928, by and between Nueces Lands Irrigation Company, a corporation organized under the laws of the State of Texas, with its principal office in Sugar Land, Fort Bend County, Texas, hereinafter called Company, and R. J. Bauer-eisen, hereinafter called Second Party, Witnesseth:
"I. The Company agrees to employ Second Party as its General Manager for a period of five (5) years, beginning September 1st, 1928, and to pay Second Party a salary of Seven Hundred Dollars ($700) per month, and to provide Second Party with a house suitable for the occupancy *365of Second Party and his family on the Company’s properties in Dimmit County, Texas.
“II. Second party hereby accepts said employment and agrees to devote his best efforts and entire time to the management of the affairs of the Company, it being contemplated, however, that Company will permit Second Party to contract for the drilling of wells or other work in Texas, provided such contracts can be and are made and performed without in anyway causing Second Party to neglect his duties as General Manager of the Company. Second Party agrees that he will not contract or undertake any such work without first receiving the express written consent of the Company throught its President.
“III. Second Party, being the owner of one drilling rig and cable tools, hereby agrees to move same to the property of the Company in Dimmit County, Texas, and to use .same in the drilling of wells and in connection with other well work on said property, in accordance with the Company’s best interests, the Company to pay all costs of such drilling and such work, and in addition thereto Company to pay Second Party at the rate of 60‡ per foot for each foot drilled by said rig and tools, and at the rate of $10.00 per day for rig work other than drilling, it being estimated that such payments will compensate Second Party for the repairs, replacements and depreciation on said rig and tools. Company also agrees to pay the freight and other costs of transporting said rig and tools from present location to said property in Dimmit County, Texas.
“IV. The Company agrees to reimburse Second Party for the expense (exclusive of damage) of moving Second Party’s household belongings and office furniture and equipment from Chicago to Company’s property in Dimmit County, Texas. -
“In Testimony Whereof parties hereunto sign their names on the day and year first above written.
“Nueces Lands Irrigation Company “By: [Signed] W. T. Eldridge,
President.
“Attest:
“[Signed] H. E. Thompson,
“Secretary [Seal].”
Second contract:
“This Agreement entered into this 26th day of July, 1928, by and between W. T. Eldridge, hereinafter called First Party, and R. J. Bauereisen, hereinafter called Second Party, Wilnesseth:
“I. As a special inducement to cause Second Party to enter into a contract with Nueces Lands Irrigation Company to act as General Manager of said Company, for a period of five years, first party hereby agrees to give second party one-half (½) • of all the dividends which may be declared within the next five (5) years upon the stock in said Company which now belongs to first party, or which may be acquired by first party within the five (S) year period.
“II. First party hereby guarantees the payment of the salary agreed to be paid to second party by Nueces Lands Irrigation Company in said contract.
“III. In the event that within said (5) five year period first party should foreclose the liens which he now holds against the properties of Nueces Lands Irrigation Company, first party agrees that he will enter into a contract with second party, in which the spirit of said contract between Nueces Lands Irrigation Company and second party will be carried out for the remaining portion of said five (5) year period, and in which first party will agree to divide equally with second party the net profits realized from the -operation and/or sale of said properties prior to the expiration of the five (S) year ' period above mentioned, and it being understood that in such event first party shall receive his entire investment plus six '"per cent (6%) interest before any profit can be considered to have been earned.-;
“IV. In the event that first party should sell or ass-ign his stock and liens in and against said Company prior to the expiration of the five (5) year period, or in the event said Company should sell or assign within said period all its properties to any party other than first party, second party shall have the election of receiving from first party the salary for the remaining portion of said five (5) year period at the rate of Seven Hundred Dollars ($700.00) per month, or of receiving one-half (½) of the profit realized by first party on the transaction, first party receiving his entire investment plus 6% interest before any profit shall be considered to have been earned. Second party’s right to receive the salary for the remaining portion of said period upon his electing to do so upon the happening of either of the above contingencies, shall *366be conditional upon his devoting his time and services somewhere in the United States for the benefit of first party, as the first party may direct.
“V. Second party hereby agrees that first party shall receive one-half (½) of all the net profits realized during said five (5) year period 'by second party from any and all of his Operations in connection with the drilling- of' wells, and the sale of well equipment.'
“Executed in duplicate this 26th day of July, 1928.
“[Signed] W. T. Eldridge,
“First Party,
“[Signed] R. -J. Bauereisen,
“Second Party.”
After the-execution of the contracts, R. J. Bauereisen moved upon the premises of the Nueces Corporation and actively entered upon the performance of his duties as general manager of said properties and - premises according to the terms of said contracts, and continued to do so until the 17th day of • April,, 1929, and would have continued to perform, such duties for the. full fiveryear term stipulated in the first contract but for the-fact that the corporation failed to further perform its part of the five-year contract. The corporation paid Bauereisen for the time he served it as general, manager and refused, to pay him the stipulated $700 per month for the remainder .of the five-year period stated in. the first, contract.
On - or before the 19th day of April, 1929, W. T. Eldridge disposed of all of his interest whatsoever in the properties of the! Nueces-'Corporation at a large loss. Immediately .'after such disposition ■ was made' by W. T. ■ Eldridge ■ he informed Bauereisen thereof, and upon the receipt of such information-Bauereisen elected to become an employee of Eldridge under the terms of the second contract at a salary of $700 per month, as is in said contract provided. Upon such election by Bauereisen,' Eldridge directed him to engage in the sale of certain products of the Texas Fig Corporation in certain territory in the state of Oklahoma. Mr. Eldridge was, at such time, heavily financially interested in the fig preserving plant and it was understood by both Eldridge and Bauereisen that the work offered was for the benefit o.f .Eld-ridge, for which Eldridge had obligated himself to pay Bauereisen the sum of $700 per month. *. ;
The Texas Fig Corporation was actively engaged in preparing figs for the market and selling them throughout the United States, it having operated nine fig plants in Texas in-1928 and packed approximately $1,115,000 worth of figs in that year. From June, 1928, to March 16, 1929, the fig company had a general sales agency contract ■with George Nolan Corporation of New York, under which that corporation was made general sales agent for the fig company for the entire United States. The contract with the Nolan Corporation having terminated, the fig company desired to place its own representative in the Oklahoma ' territory. Bauereisen refused to serve as such salesman, upon his contention that such work was a departure from the line of work he had educated himself to perform, and a departure from his profession as a mechanical engineer, and that the demand of Eldridge that he should perform such work was unreasonable and not embraced within the terms of the contract he had with Eldridge. Upon the refusal of Bauereisen to perform the work tendered, Eldridge refused to pay him the monthly salary stipulated in the Eldridge-Bauereisen contract, and no further payments were paid by reason thereof.
W. T. Eldridge died on the 20th day of August, 1932, leaving a last will which was • duly .probated. By the provisions of such will the Guardian Trust Company, a corporation, was named as independent executor of the will of the deceased, W. T. Eldridge, and it duly qualified as such executor.
On the 17th day of April, 1933,- R. J.-Bauereisen brought this suit . against Nueces Land Irrigation Company, a corporation, and Guardian Trust Company. Later, on the 9th day of November, 1934, he filed his first amended original petition, in lieu of his original petition, complaining of the same parties ■ named as defendants in his original petition. The plaintiff declared upon the two contracts hereinbefore'set out only, which he made exhibits to his petition.
He alleged that after the contracts were executed he entered upon the performance1 of his contract with the Irrigation Company and continued in its employ until April 19, 1929, and would have continued performance for the full five-year term thereof, but the company'refused to perform the contract after said date and to pay him-the stipulated• salary of $700 per *367month, except that by an agreement made in December, 1929, a certain sum of money was accepted by him in satisfaction of his claims which had accrued prior to June 1, 1929, without prejudice to any claims arising after that date; and the company also required him to vacate the house which he occupied on its premises and thereby compelled him to secure another at a cost of $100 per month during the remainder of the contract term. Bauereisen further alleged in substance that he had at .all times been willing and ready to perform the contract with the Irrigation Company; that during the period since the -contract had been breached he had been able to earn not to exceed $6,500; that thereby the Irrigation Company had damaged him to the extent of $40,000; that W. T. Eldridge was liable to him as guarantor of the salary agreed to be paid him by the Irrigation Company, and that he having •died August 20, 1932, and Guardian Trust Company having been appointed and qualified as independent executor under his will, it was liable to him in such capacity.
In its first amended original answer, Guardian Trust Company, as independent executor under the will of W. T. Eldridge, - deceased, appellant herein, interposed a general demurrer and general denial to the aforementioned petition and alleged that on April 1, 1929, W. T. Eldridge sold to the Sugarland Industries all his stock in and notes and liens against the Irrigation Company, and promptly thereafter notified Bauereisen of such sale; that, following such notice, Bauereisen, pursuant to section IV of the contract, elected to receive from Eldridge che salary for the remaining portion of said five-year period - at the rate of $700 per month; that Eld-ridge arranged for Bauereisen to be employed in the state of Oklahoma by a corporation known as “Texas Fig, Inc.,” in which Eldridge was substantially interested, such employment to be performed by Bauereisen in fulfillment of a contract between Eldridge and said Texas Fig, Inc., for which services Eldridge agreed to pay Bauereisen $700 per month, in accordance with the provisions of section IV of the aforementioned contract between Bauer-eisen and Eldridge; that Bauereisen having elected to claim under section IV of the contract, and having declined and refused to accept such employment and declined to devote his time and services for the benefit of Eldridge as he directed, and that Bauereisen having so breached his contract with Eldridge, he thereby forfeited and terminated all right to claim payment thereunder.
Defendant Nueces Lands Irrigation Company not being a party to this appeal, it is sufficient to state that it pleaded in substance the same facts alleged by appellant.
In his replication to the answers of the defendants, Bauereisen admitted having elected to claim under section IV of the Eldridge Contract and denied Eldridge ever offered him any employment, but merely sought to induce Texas Fig, Inc., to employ him as a fig salesman in Oklahoma ; that he was not a fig or produce salesman; that he was a mechanical engineer, and had worked at his profession all his life; that Eldridge knew these facts and knew that he was unsuited for a salesman of figs or any products sold by Sugar-land Industries or Texas Fig, Inc.; and that said offer of employment was not made by Eldridge in good faith.
Both defendants specifically excepted to the allegations in Bauereisen’s first supplemental petition to the effect that he was not a fig or produce salesman, but was a mechanical engineer, etc., because the contract between Bauereisen and Eldridge provided Bauereisen should devote his time and services somewhere in the United States for the benefit of Eldridge as said Eldridge might direct, and the qualifications, training, and profession of Bauer-eisen were irrelevant and immaterial.
An order was entered by the court overruling the general demurrer and these exceptions, to which defendants duly excepted.
At the conclusion of the evidence and argument of counsel, the trial judge, before whom the case was tried without a jury, rendered judgment in favor of R. J. Bauereisen against Guardian Trust Company, executor, for the sum of $40,000, and against Bauereisen on his claim against the Nueces Corporation. From such judgment the Guardian Trust Company, executor, has appealed.
There being no appeal from the judgment for Nueces Lands Irrigation Company against Bauereisen, our further observations and discussions will be confined to the controversy and issues presented by this appeal between appellant, Guardian Trust Company, executor of the will of W. T. Eldridge, deceased, and appellee, Bauereisen, only.
*368The majority of this court holds that all assignments of error interposed by appellant should be overruled, and so holding have entered an order affirming the judgment of the trial court. -From such order I respectfully enter my dissent, be.lieving, as I do, that the judgment of the trial court is not supported by any evidence, but is contrary to the undisputed evidence.
While I am of opinion that some of the assignments of error urged by appellant should be sustained, the sustaining of which would demand a reversal of the judgment, unless the judgment should be reversed and judgment here rendered for appellant on the undisputed evidence, I will not discuss any of the assignments other than the one insisting that the trial court erred in not rendering judgment for appellant upon the evidence, as requested by appellant.
Plaintiff, Bauereisen, after fully informing himself as to the duties to be imposed upon him should he enter into the contract to become general manager of the properties of the Irrigation Company, entered into the two contracts, which he admits would require him to superintend and control the putting into cultivation the land of the company, the building of houses, the purchase of supplies for a. commissary, and tools and implements for the work to be done on the farm, the subdivision of the land, the negotiation for the sale of such subdivisions, and all other acts necessary to make a success of his management of the enterprise, among other things to superintend the planting of carrots, white cabbage, red cabbage, and broccoli, and to sell the same.
It is shown by the undisputed evidence that in the early part of the year 1928, W. T. Eldridge, desiring to procure the services of some one to take charge of the properties of the Nueces Corporation as its general manager, and knowing the general intelligence and business ability of R. J. Bauereisen, who was his son-in-law, began negotiations with him with a view to procuring his services as the general manager of such properties. It is shown by the undisputed evidence that Bauereisen knew before he executed the contracts what manner of work he would be required to perform under their terms, if he executed them; that on July 3, 1928, 23. days before the contracts were executed, and while the negotiations were going on, Bauereisen wrote Eldridge a letter in which he said: “As I explained I will want to have complete charge of the project in its entirety and I will spare no effort to make it a success. * * * I am no farmer but will learn that end of it.”
And in his letter of July 12, 1928, to Eldridge, he said: “I am sure I can save the Company many times my salary and that I can successfully operate and gradually dispose of the property, otherwise I would not think of making a change. The work should prove extremely interesting for us both.”
The plaintiff, Bauereisen, testified that-before signing the contracts he went out and looked over the properties of the-Nueces Corporation in Dimmit county, Tex., and discussed with Mr. Curtis and other men residing on the property just what the company was doing, and made a survey of the property; that he knew what the property was held for; that he knew that it was held for the purpose of colonization and a part of such purpose-was the carrying on of farming operations; that by the term colonization he meant subdividing the land and selling such subdivisions to persons who could be interested in locating thereon; that he knew that it would be a part of his duties under the terms and conditions of the contracts to carry out the plan or purpose mentioned; that as general manager he knew what his duties were, and knew that he was in charge of the properties in question, which included the development thereof for growing crops, the subdivision of the. land,, the supervision of the sale of such subdivisions, and that he had the general responsibility for the operation and success, or failure of the enterprise, and that he intended to go there (on the farm) and do everything necessary to put the enterprise over, and if that involved the selling of the land, the growing of crops, and the selling of--such crops, he was to employ people to carry out such acts, for whose acts he was responsible, which amounted to doing such acts himself; that he was going to learn such duties as he assumed under the terms of the contracts that he did not already know; that all such duties assumed were in nowise- connected with engineering, but he was going to learn to do them to the best of his ability; that at the time he executed the contracts • and entered upon the performance of his duties, thereunder he knew that he was going out. *369of his previous line of employment into new fields, and that he would have more than those duties to perform.
Testifying' further, Bauereisen said that he went over to Nueces Corporation’s properties in Dimmit county and looked over the job to see what should be and could be done, getting familiar with his work. Being asked to tell the court the general character of labors and duties he was called upon to perform as general manager, he stated that among other things that there were 8,500 acres in the Nueces Company’s lands. Being asked what work he did under the contracts, he said, “Well, I just had general supervision of all the work there.” Testifying further, he said that one of his duties was to put in a crop on the1 land; that to do so he had to do some clearing, grading, and plowing; that he had to buy for the commissary, to buy implements and tools to till the soil; that it was required of him to pay off the laborers, to keep time, to keep books, and to keep track of all the accounts. Being asked what he was to grow on the farm, he said that they were going to grow everything that they possibly could, principally spinach, onions, carrots, beets, broccoli, beans, and cabbage, red and white cabbage ; that they had about 350 or 400 acres planted in these various crops; that they had about 150 acres planted in spinach; that he continued to perform the duties enumerated about 7 months, up to April 1, 1929; on or about said date W. T. Eldridge came to the ranch and said he had sold his interest in the properties and did not know that he (Bauereisen) would be retained as general manager, but, if he was not so retained, he would of course live up to his part of the contract and see that Bauereisen got his $700 per month salary; that thereafter the Sugarland Industries, the purchaser of the interest of Eldridge, took charge of the properties and paid him his salary up to May 1, 1929, and no more; that he received nothing further from either of the contracts.
On April 22, 1929, W. T. Eldridge wrote Bauereisen stating he had been informed that his employment with the Irrigation Company would terminate on May 1, 1929, and, continuing, he stated as follows:
“In view of this situation, I assume that you will look to me under our contract dated July 26th, 1928. As you know, of course, I have sold all my Nueces stock and liens to the Sugarland Industries, and therefore section 4 of our contract is applicable, and you have an option to exercise. If there is any doubt in your mind about what your choice should be, I shall be glad to hear from you, and I should like for you to make your decision and let me know as early as practicable, in order that I can be looking around for the purpose of seeing what I can find for you to do in case you should elect to retain your salary contract.
“I am leaving Saturday for Atlanta, and will be gone several days, and I would like to hear from you about the above before leaving, if possible.”
On April 24th, Bauereisen in reply wrote Eldridge as follows:
“Yours of the 22nd reached me yesterday, and you realize, of course, that T want to do what is best for Ivy, myself and you, and if it is better for us to take the one-half (½) profit realized in the transaction, perhaps we should do so rather than the salary of Seven Hundred ($700.00) Dollars 'per month.
“Won’t you please send me a statement of the transaction showing the profits so that we may decide whether to accept one-half (½) of the profits or the Seven Hundred ($700.00) Dollars monthly salary.”
On May 1, 1929, Eldridge in reply wrote Bauereisen, as follows:
“The Sugarland Industries paid me $85,816.27 for my Nueces Lands Irrigation Co. stock and notes and liens, and also assumed the Cunningham first lien note with interest amounting to $65,837.60, making the total consideration $151,653.87. The transfer was made April 1st, and at that time my investment in the Nueces proposition was in the neighborhood of $500,000.00. Because of the absence of Mr. Ellington and his records, I am unable to give you an- accurate statement of the extent of my investment at this moment, but will do so if you desire it as soon as Ellington completes his work at the ranch. I can assure you that the amount is far in excess of the consideration which I have received from the Sugarland Industries, and that I have realized no profit whatever on the transaction.
“I intend to be in San Antonio some time in the near future, at which time I shall be glad to talk to you about working for me in some new capacity," if you wish to do so, and in case you do I shall try to *370find something for which you can do and which will be dignified. I shall give .you as much notice in advance as possible as to when I will be in San Antonio, and I trust it will be convenient for you to meet me there.”
The undisputed evidence shows that Eld-ridge, under the terms of the Eldridge-Bauereisen contract, offered Bauereisen employment as district salesman of the products of a .corporation known as Texas Fig, Inc., in the state of Oklahoma, at a salary of $700 per month, and that Bauer-eisen refused such employment, insisting that he was not a salesman and that such employment was out of line with his profession as an engineer.
The fourth paragraph of the Eldridge-Bauereisen contract is as follows: “In the event that first party should sell or assign his stock and liens in and against said Company prior to the expiration of the five (5) year period, or in the event said Company shall sell or assign within said period all its properties to any party other than first party, second party shall have the election of receiving from first party the salary for the remaining portion of said five (5) year period at the rate of Seven Hundred Dollars ($700.00) per month, or of receiving one-half (½) of the profit realized by first party on the transaction, first party receiving his entire investment plus 6% interest before any profit shall be considered to have been earned. Second party’s right to receive the salary for the remaining portion of said period upon his electing to do so upon the happening of either of the above contingencies shall be conditional upon his' devoting his time and service somewhere in the United States for the benefit of the first party, as first party may direct.”
As already shown, Texas Fig, Inc., was actively engaged in preserving figs for the market and selling them throughout the United States, it having operated nine fig plants in Texas in 1928 and packed approximately $1,115,000 worth of figs in that year. From June, 1928, to March 16, 1929, the Fig Company had a general sales agency contract with George Nolan Corporation of New York, under which that corporation was made general sales agent for the Fig Company for the entire United States. The contract with the Nolan Corporation having terminated, the Fig Company desired to place its own representative in the Oklahoma territory.
There is nothing in either of the contracts, nor in both combined, to authorize Bauereisen to conclude he was to be furnished by Eldridge an engineer’s job, but, to the contrary, the nature of the work he contracted to do, and which he did do-under the contract, refutes such conclusion. There was nothing from which the trial court, nor this court, could reasonably base a conclusion that the employment offered Bauereisen under the terms of the fourth clause of the Eldridge-Bauereisen contract was undignified or unreasonable.
Notwithstanding Bauereisen admits he contracted to superintend and control the doing of things required of a general manager of the properties, among which was the growing of spinach, carrots, beans, red cabbage, and white cabbage, he now contends that to require him under the contract to undertake the sale of the products of a large industry was unreasonable.
The contracts are unambiguous and there is nothing in either of them that could be interpreted as providing an engineer’s job for Bauereisen under the Eldridge-Bauereisen contract.
I think the facts stated demanded at the hands of the trial court a rendition of a judgment for the defendant, independent executor, and that it is the duty of this court, upon such facts, to reverse the judgment of the trial court and to here render judgment for appellant, and, so believing, I respectfully dissent from the order of affirmance entered by the majority of this court.
Exhibit A.
“This agreement entered into this 26th day of July, 1928, by and between Nueces Lands Irrigation Company, a corporation, organized under the laws of the State of Texas, with its principal office in Sugar Land, Fort Bend County, Texas, hereinafter called Company, and R. J. Bauer-eisen, hereinafter called Second Party, Witnesseth:
“I. The Company agrees to employ Second Party as its General Manager for a period of five (5) years, beginning September 1st, 1928, and- to pay Second Party a salary of Seven Hundred Dollars ($700.) per month, and to provide Second Party with a house suitable for the occupancy of Second Party and his family on the Company’s properties in Dimmit County, Texas.
*371“II. Second Party hereby accepts said employment and agrees to devote his best efforts and entire time to the management of the affairs of the Company, it being contemplated, however, that Company will permit Second Party to contract for the drilling of wells or other work in Texas, provided such contracts can be and are made and performed without in any way causing Second Party to neglect his duties as General Manager of the Company. Second Party agrees that he will not contract or undertake any such work without first receiving the express written consent of the Company through its President.
“HI. Second Party, being the owner of one drilling rig and cable tools, hereby agrees to move same to the property of the Company, in Dimmit County, Texas, and to use the same in the drilling of wells and in connection with other well work on said property in accordance with the Company’s best interests, the Company to pay all costs of such drilling and such work, and in addition thereto Company to pay Second Party at the rate of 60⅞⅜ per foot for each foot drilled by said rig and tools, and at the rate of $10.00 per day for the rig work other than drilling, it being estimated that such payments will compensate Second Party for the repairs, replacements and depreciation on said rig and tools. Company also agrees to pay the freight and other costs of transporting said rig and tools from present location to said property in Dimmit County, Texas.
“IV. The Company agrees to reimburse Second Party for the expense (exclusive of damage) of moving Second Party’s household belongings and office furniture and equipment from Chicago to Company’s property in Dimmit County, Texas.
“In testimony whereof, parties hereunto sign their names, on the day and year first above written.
“Nueces Lands Irrigation Company
“By [Signed] W. T. Eldridge
“[Signed] R. J. Bauereisen,
“Second Party.”
Exhibit B.
"This agreement entered into this 26th day of July, 1928, by and between W. T. Eldridge, hereinafter called First Party, and R. J. 'Bauereisen, hereinafter called Second Party, Witnesseth:
“I. As a special inducement to cause Second Party to enter into a contract with Nueces Lands Irrigation Company to act as General Manager of said Company for a period of five years, first parly hereby agrees to give second party one-half (½) of all the dividends which may be declared within the next five (5) years from the stock in said company which not belongs to first party or which may be acquired by first party within the five (5) years period.
“II. First Party hereby guarantees the payment of the salary agreed to be paid to second party by Nueces Lands Irrigation Company in said contract.
“HI. In the event that within said five (5) year period first party should foreclose the liens which he now holds against the properties of Nueces Lands Irrigation Company, first party agrees that he will enter into a contract with second party in which the spirit of said contract between Nueces Lauds Irrigation Company and second party will be carried out for the remaining portion of said five (S) year period, and in which first party will agree to divide equally with second party the net profits realized from the operation and/or sale of' said properties prior to the expiration of the five (S) year period above mentioned, and it being understood that in such event first party shall receive his entire investment plus six per cent (6%) interest before any profit can be considered to have been earned.
“IV. In the event that first party should sell or assign his stock and liens in and against said Company prior to the expiration of the five (5) year period, or in the event said Company should sell or assign within said period all its properties to any party other than first party, second party shall have the election of receiving from first party, the salary for the remaining portion of said five (5) year period at the rate of Seven Hundred Dollars ($700.00) per month or of receiving one-half (½) of the profit realized by first party on the transaction, first party receiving his entire investment plus 6% interest before any profit shall be considered to have been earned. Second party’s right to receive his salary for the remaining portion of said period upon his electing to do so upon the happening of either of the above contingencies, shall be conditional upon his devoting his time and services somewhere in the United States.for the benefit of first party as first party may direct.
“V. Second party hereby agrees that first party shall receive one-half (½) of all the net profits realized during said five
*372(S) year period by second party from any and all of his operations in connection with the drilling of wells, and the sale of well equipment.
“Executed in duplicate this 26th day of July, 1928.
“[Signed] W. T. Eldridge
“First Party,
“[Signed] R. J. Bauereisen
“Second Party.”