On Rehearing.
BREAUX, C. J.[2] The disagreements between plaintiff and defendant in their en*481deavor to settle their account as investors in the Jennings oil field gave rise to many issues of fact and of law.
Since about four years they have brought up a number of appeals to this court, and have not satisfactorily to themselves settled their differences. These decisions are reported in different Annuals.
Years ago plaintiff at first became the owner of an arpent of land in the oil field, known by the name of “Vallee arpent”; in time defendant became the owner of three-fourths of this arpent, and plaintiff of one-fourth. They were to share in proportion to their respective interest in the land in the production of the oil and in the expenses. It was one of the most productive arpents in the oil field. A large quantity of oil was produced and large sums received, as well as expenses incurred in exploiting this land.
Plaintiff and defendant agree in regard to the different items making up the sum of $3,529.99. The defendant does not admit that each item is correct, although he did not particularly object. We take up these items for the purpose of review.
Defendant does finally admit that $4,418.09, claimed by plaintiff, should be allowed, less $895.10. This amount of $4,418.09. consists of the following amounts:
2,405.25 barrels of oil at 97 cents per barrel...................... $2,333 09
Additional cash credit............. 1,955 00
Another credit ................... 125 00
Another credit.................... 5 00
Prom this, as before stated, is deducted $895.10.
Taking up the different amounts. Our attention is first attracted to the item consisting of 1,129.81 barrels allowed by the court in error. Both plaintiff and defendant agree as to the error, and for that reason it is eliminated, and for that reason it will only be referred to in establishing balances.
The pipe line charge of 2,664.07 also attracted our attention.
Defendant correctly states that the court did not deduct 2 per cent, on oil running in the pipe lines from January 1, 1907, to June 1,1907, on 2,664.07 barrels, although deducttions are allowed on other runs to January 1, 1907.
The contention of the defendant is that it is a customary charge, and really does not cover the actual loss.
Witness Powers, bookkeeper, testified as to the correctness of this item; the defendant also testified. He said that it was a charge usually made by different companies.
Ernest Carroll, another witness, testified substantially to the same effect. So did witness Mattison, who added that it did not cover loss, and that their own line made a deduction of 5 per cent. '
The Guffy Petroleum Company makes a similar charge, also the Evangeline Pipe Line.
Plaintiff had paid this charge himself on oil of his own, as stated in his own letters.
We are informed that the oil of Wilkins Number Two of the Brooks Royalty Company, which is the company in which plaintiff and defendant were interested, contained a large percentage of water and sediment rendering it reasonable to charge. This is mentioned by witnesses as reason for the charge in this and other instances. Besides having allowed, as before stated, to January 1, 1907, there is no reason not to allow a similar charge for similar service from January 1, to June 1, 1907. There will be no change made as to this item. That is, the ruling is the same as to this item as it was in regard to pipe line charges heretofore allowed.
The item of 11,832.29 barrels. As to it, the defendant charged in his answer that he delivered that number of barrels of oil to form part of a sale by plaintiff to a Mr. Markham, the total of which was 60,832.97 barrels. The defendant states that he was unable to deliver the balance of 49,000.68 barrels. There was some change in this *483contract; differences arose; the plaintiff, strange to say, had already delivered the entire amount to Markham — that is, the 60,-832.97 barrels. The defendant says that plaintiff always declined to receive the oil; i. e., the remainder, 49,000.68. Things remained in that condition. The testimony is not very satisfactory. It does not appear to us with great certainty that the defendant is entitled to these 11,000 and odd barrels: but as it may be that hereafter he will be more successful in proving plaintiff’s indebtedness, we leave that amount for future adjustment.
[3] We may as well state further in regard to this claim that it does not appear particularly that it forms part of the grand total. If it does not, it is too late; it being a new item. If it enters intol the grand total, as we have reason to think it does, then it was considered in the plan of calculation.
We pass to the next amount, which has received our attention.
Plaintiff had 19,040.12 barrels attached and sold at sheriff’s sale; proceeds amounted to $13,338.08. Defendant bonded the attachment and took the property, and in this settlement he accounts for the money and the oil. He received 19,000 barrels and over of oil, and some $13,000 was the price he attempts to account for. There are two objections to that claim: One, that it forms part of the general total and is included in our calculation infra. Second, if not, it is entirely too late to urge it'on the rehearing for the first time. We think the first disposes of the question.
We next come to the claim for the loss of oil in the earthen tanks by leakage and evaporation, 51,577.33 barrels. This loss is very seriously questioned by plaintiff.
The judge of the district court in deciding the case, and this court in the decision heretofore handed down, arrived, at the conclusion that defendant was not at fault, and that he is entitled to the loss and its deduction. We still agree with that view. In connection with the loss of oil by evaporation and leakage, just referred to, we have this to state:
In one of the objections urged by plaintiff to this claim he urged that defendant ought not to have stored the oil in tanks, and that he should not have gone to the expense of making these tanks at all. The fact is that the defendant had the oil on hand. He had to do something to save it from a complete loss. He for that reason, as we understand, constructed the tanks. Defendant knew of the construction, and he did not object to the storing of the oil. The letters of plaintiff to defendant are very much in point. In them he repeatedly refers to these tanks and their repairing.
The younge lady stenographer who testified in the case said: That plaintiff got credit for his own oil stored in the tanks. That plaintiff must have known where his oil was stored. By the evidence it is made to appear that the loss of these tanks was very, very great. Nearly all of the oil, at one time, of these parties was in these tanks.
At one time plaintiff writes that he had made some payments on these tanks, and that he had a ditch dug around one of them.
The contention of plaintiff on this point further is that a large number of barrels were reported lost by the leakage, and the loss charged to the Vallee arpent, of which he and the defendant were owners, and that other companies were not charged at all.
We can only answer we are informed that all the oil of certain wells in oil fields are stored together, from which it follows that each owner remains the owner of a certain number of barrels, but not of any particular oil; it is all in common, and we understand from this common stock of oil the losses were deducted proportionately; other wells paid their proportion and the Brooks Royalty Company its proportion.
Able counsel for plaintiff submits a cal-*485dilation to prove his theory that the Brooks Royalty was overcharged in this respect. The evidence before us does not, in our opinion, sustain the view urged by plaintiff. There is an element of uncertainty about the contention that wrong was committed' in charging for leakage that renders it impossible, as we think, to charge the defendant successfully with having charged the loss to the Brooks Royalty alone, although other companies were equally indebted.
We will propound the question: Why did not parties produce evidence of bookkeepers and others to prove the serious charge? We have read the evidence of plaintiff, and do not recall that he testified that other companies went scot-free and Brooks Royalty had to pay the loss.
This amount was charged by defendant contehiporaneously with the loss. Not the least objection was made. The whole thing was a matter of emergency. Plaintiff shared in the venture benefited by it. It is too late to raise the objection that defendant had no authority.
At the beginning defendant testified that he said to plaintiff that he would not have anything to do with the oil enterprise unless it was agreed that he, defendant, would direct the business. It seems that defendant had considerable experience and had been successful in oil fields. ’ Plaintiff and defendant were well acquainted from the early days of the Jennings oil field. They were on friendly terms and still difficulties arose, which have given rise to a number of issues.
The following is a statement, made separate and apart as far as possible from other statements submitted.
Total gross barrels of oil to January 1, 1907 900,448.14 Net oil for distribution from January 1, to
June 1, 1907.......1......................... 46,286.17
Additional from Wilkins to account air pumping, from June to December, 1906... 6,914.88
Total ...................................... 953,649.19
Error in calculation omitted from
total............................ 1,129.81
Total barrels for distribution............ 953,649.19
Credit and Deductions.
Transfer to Cattery & Martel... 69,303.54
Loss earthen storage............. 51,577.33
Pipe line deduction to January
1, 1907............................ 16,648.71
Received in excess of royalty.... 5,695.69
Joint sales ....................... 261,410.12 404,635.39 549,013.80
Pipe line deductions from January 1, 1907, to June 1, 1907.............................. 2,664.07 546,349.73
Crusel’s fourth of 546,349.73.................. 136,587.43
He has received.............................. 129,760.30 6,827.13
Add admitted by Brooks..................... ff?6.53
Total Crusel oil........................... 7,503.66
Cash Account.
Proceeds 261,410.12 bbls. of oil joint sales.. $47,377 97
Less pipeage...................... $ 6,070 52
Disbursements not disputed .........'........ $7,422 10
Disbursements doubtful .................... 200 45
Earthen tanks, construction $4,113 00 Ditching 209 64 Expenses 1,903 72 -$6,226 36
Storage ................. 3,062 52
Pipeage on oil lost in earthen storage ...... 1,239 44
Gauger ................. 60 00
Disbursements not disputed ................. 1,029 26
George’s salary........ 630 00
Ligón “ 150 00
George’s expenses...... 4 45 20,074 68 26,145 10
Balance ................................... $21,232 37
Crusel’s one-fourth of $21,232.87.............$5,308 22
Paid Crusel ................................... 5,250 00
Credit ......................................$ 58 22
Paid Sterling Company pipeage
of Crusel .........................$6,488 02
Less Crusel’s credit............... 1,955 00 4,533 02
Dr..........................................$4,474 80
Brooks’ three-fourths of'$500.00.............. 375 00
Dr.......................................... $4,849 80
Note: 6,226.50 barrels at 97 cents $6,039 70
676.53 barrels ...................... 656 23
Cr. by oil 600.63 barrels........... 582 61 7,273 54
$2,428 74
Note: Net credit allowing pipeage on oil lost in earthen storage.
*487The number of barrels of oil has been fixed, the expenses and the price at which sold, also the portion of each.
The result is above stated.
As relates to the item for 69,303.54 barrels of oil: We have considered the claim, and have not been impressed with it after considering the evidence. The evidence is not satisfactory. The item of 11,838.25 barrels is reserved; if defendant thinks he has a right, it may be sued for; that is for parties to determine.
For reasons assigned the judgments of the district court and of this court heretofore rendered are affirmed to the extent only that right is reserved to sue as stated for the 69,303.54 barrels. Also similar right reserved as to the 11,838.25 barrels.
It is ordered, adjudged, and decreed that in every other respect the judgments heretofore handed down in this and in the district court are avoided, annulled, and reversed.
It is further ordered, adjudged, and decreed that plaintiff have judgment against defendant for the sum of $2,428.74, with interest at the rate of 5 per cent, per annum from judicial demand, and that defendant pay costs in both courts.