The following part statement of this case is taken from the written statement and argument made by appellant:
"This suit was brought to recover the amount of a special escrow deposit, alleged to have been wrongfully paid by the depository holder, the First National Bank of Wichita Falls, to the Camp Oil Gas Company, hereinafter called the Camp Company. The suit was brought by the Prairie Oil Gas Company against the First National Bank, the Camp Oil Gas Company, Ross R. Robertson, and a surety company, signer of a surety bond given by Ross R. Robertson to the Prairie Company. Robertson by cross-action sought recovery over against the Camp Company in the event judgment was against him. Trial before the court without a jury resulted in judgment for the Prairie Company against Robertson and the surety company, and in favor of Robertson over against the Camp Company. The Camp Company alone appeals, and the appeal involves questions of the right of the appellant and the appellee Robertson, growing out of a settlement contract between said parties hereinafter mentioned.
"Prior to the making of the said contract which furnishes the immediate occasion for this suit, Robertson and the Camp Company owned undivided interests in certain oil and gas leases, known as leases C and G. The Camp Company had the exclusive right by contract to develop and operate these leases and to make expenditures for drilling wells, purchasing machinery, etc., `each party being liable for a pro rata part of the expenses.' This agreement provided: That the oil runs from such leases should be deposited in the First National Bank for the protection of the Camp Company `against liability incurred on account of the interests of the other parties.' That the Camp Company should have the right to use such funds in the development and operation of the leases. `That if the proceeds of oil should be more than sufficient to discharge obligations incurred for the next preceding month, the bank should disburse the balance to the parties in accordance with their several interests, but in this connection it is agreed that $5,000 shall be at all times retained by said bank for the purpose of taking care of current emergency expenditures.'
"On January 22, 1924, Robertson not being satisfied with the charges made by the Camp Company on account of development and operation, gave the bank written notice not to allow the Camp Company to withdraw his interest deposits theretofore or thereafter made. The controversy remained unsettled until the settlement agreement of October 24, 1924, hereinafter mentioned. The proceeds of the oil runs after January 22, on account of Robertson's interest in said leases were in the meantime held in the bank. On October 24, 1924, there was on deposit to Robertson's said interest on account of oil runs, the total sum of $2,535.32. Of this amount $2,199.66 was credited to lease G and $336.26 to lease C. The Camp Company at such time claimed that Robertson owed it as his part of expenses of development and operation of said leases, the total sum of $5,661.15.
"On October 24, 1924, a settlement agreement was made between the Camp Company and Robertson. This was evidenced partly, if not wholly, by writing. The writing consisted of, first, an assignment by Robertson to the Camp Company of his interest in lease C. This assignment provided that said Camp Oil Gas Company releases the grantor of all debts or claims that it has against said grantor accruing out of the operation and development of what is known as the Camp Oil Gas Company's G and C leases. At the same time and as a part of this transaction Robertson signed and delivered to the Camp Company a letter addressed to the First National Bank, reading as follows: `Having sold all my interest in lot 1, block 27, of the American Tribune New Colony Company (which was lease C) to the Camp Oil Gas Company, a trust estate, of Tarrant county, Tex., I have no further interest in the money held by your bank under my direction. I, therefore now direct that you release said money to the Camp Oil Gas Company on the Camp Company leases G and C.'
"On the day of delivery of this letter, the Camp Company presented it to the First National Bank, and said bank paid to it the said sum of money to the credit of said two leases, to wit, the total sum of $2,535.32."
The negotiations attending and preceding the execution of the two last instruments are, in our opinion, unimportant. It is probable that they are admissible as explanatory of the intention of the parties in the writing of the letter. It was agreed between A. L. Camp and De Montel, who represented Robertson in the settlement, that the Camp Company was to pay Robertson for his interest in lease C $7,000 cash, and was to release all claims it held against Robertson on account of development and operation of leases C and G. Robertson on his part agreed that the Camp Company might withdraw the sums of money to the credit of his interest in the oil runs from leases C and G on deposit in the First National Bank. It is claimed by De Montel that Camp made the final proposition to pay Robertson the $7,000 and to release all claims and that Robertson was to turn over the money on deposit in the bank to the credit of his interest in leases C and G, and that Camp represented that such deposit amounted to $300 or $400, that he did not know how much money was in the bank to the credit of Robertson's interest in the two leases, but that he relied on the statement of Camp, and would not have made the trade had he known the actual amount. This was denied by Camp, who testified that he figured up the amount with De Montel, and that De Montel knew the exact amount that *Page 992 was in the bank to the credit of Robertson on both leases.
The appellant contends that the judgment of the trial court cannot be sustained on the conclusion that the contract as actually made limited the right of the Camp Company to receive from the bank only a part of the money to the credit of lease G. Independent of the testimony of De Montel as to the representations made by Camp, the written order to the bank contained a limitation upon the money to be received thereunder. Appellant insists that the letter or order is in plain and unambiguous terms. We agree that this is true. The letter bearing date October 24, 1924, instructs the bank to pay to the Camp Company the money in the bank and held by it under Robertson's directions. Therefore all money coming under this designation was rightfully paid by the bank to the Camp Company.
Was the money received by the bank from proceeds of the oil runs from lease G after April 29, 1924, under the direction of Robertson? On the 30th day of July, 1924, Robertson had duly assigned to the Prairie Oil Gas Company his interest in lease G and had provided in the assignment that the delivery of the interest conveyed should be made as of April 29, 1924. It was provided for Robertson to discharge all claims or liens against said interest up to said time and to account to the Prairie Oil Gas Company for all revenue or income since said date. The Prairie Oil Company, knowing that the Camp Company was in a dispute with Robertson over its account against him, required a surety bond from him. The Camp Company knew about Robertson's transfer of his interest in lease G to the Prairie Company, and was fully informed as to the details. At the time of the sale by Robertson to the Prairie Company, the oil runs to the credit of lease G. Robertson's interest amounted to the sum of $2,199.06; of this amount $2,002.43 was for oil runs from said lease G after April 29, 1924. This would leave in the fund from lease G, subject to Robertson's directions, $196.63. Accepting the language of the letter and contract as being plain and unambiguous, the result is that such letter of directions to the bank, ordered it to pay to the Camp Company the sum of $196.63 from the oil runs from lease G, and such sums as were on deposit to the credit of lease C, which were subject to Robertson's directions. This being true, the wording of the letter and contract sustains the judgment of the trial court.
Appellant also urges error on the part of the trial court in the rendition of the judgment as one of damages for deceit, for the reason that there is neither pleading nor proof of facts necessary to sustain the amount recoverable, and, in support of this contention, cite George v. Hesse, 100 Tex. 44, 93 S.W. 107, 8 L.R.A. (N. S.) 804, 123 Am.St.Rep. 772, 15 Ann.Cas. 456, and Moore v. Beaklcy (Tex.Com.App.) 215 S.W. 957, laying especial stress upon the George Case. That case was a suit for damages arising out of an exchange of property, and was an action for deceit in that George was charged with having represented to Hesse, and caused him to believe and act in consummating the trade, upon the fact that Hesse's land had a gusher of water upon it, which representation was material and proved to be false. The Supreme Court, in stating the measure of damages under these facts, say:
"This is not a case in which the plaintiff sues for the breach of a contract, for the contract has been performed by both parties. But it is a case in which the plaintiff sues to recover damages for a fraudulent representation by which he has been induced to enter into a contract to his loss. Clearly, we think, the extent of his loss is the difference between the value of that which he has parted with, and the value of that which he has received under the agreement. The contract in this case was not to convey a tract of land * * * which was falsely represented to have a `gusher' on it, which false representation was an inducement which led to the contract. Logically, therefore, what he has lost by the transaction is the measure of his damages. Let us suppose that when the fraud was discovered, George had not conveyed any of the property transferred to him, and Hesse had sued for a rescission as he would have had the right to do; the parties would simply have been placed in statu quo, and the plaintiff would have recovered nothing for his failure to get the property as represented. He would have recovered his property, and there would have been no loss, except the expenses of the litigation. So in this case, if the plaintiff recovers a sufficient sum in money to make that which he has received equal to that which he has conveyed, and that which he has assumed to pay, he is compensated for his loss, as we think, that is the measure of his damages."
It will clearly be seen that such is not the case at bar. The suit here is to recover a sum of money charged to have been wrongfully appropriated by the defendant Camp Company. The facts are fully pleaded, and show clearly that the question is as to whether or not said sum of money comes within the terms of the contract. If it does not, the plaintiff and Robertson were entitled, at all events, to recover; if it does come within its terms, then the Camp Company was entitled to judgment that Robertson take nothing by his cross-action. The suit by the plaintiff and cross-action of defendant Robertson were in nowise attempts to rescind the contract, but expressly recognized such contract and seek to recover a specific fund which they claim belongs to the plaintiff by virtue of the various contracts. Hence it was not an action for deceit, but a suit in assumpsit. The contract in the case at bar was completed, but one party thereto claims to have been deprived of a certain sum which he alleged did not come within the terms of the *Page 993 contract, and suit is for that sum; they desire the contract to stand, but are seeking to recover a sum misappropriated by the defendant Camp Company, under its claim that it was part of the consideration for such contract.
Giving defendant Robertson's cross-action every construction warranted by its language, the allegations of fraudulent representations are simply explanatory of the actual contract entered into, not for the purpose of avoiding it. Even if it is true that the fraud alleged resulted in a contract which had been performed, the performance of same does not preclude a person from suing for damages, or to recover sums which have wrongfully come into the other party's hands under claim that such were a part of the consideration stated in the contract. Grabenheimer v. Blum,63 Tex. 374. However, this is not a suit for damages but is one in as sumpsit for money had and received, this notwithstanding the allegations of fraudulent misrepresentations.
Where plaintiff in writing contracted with defendant to exchange a stock of goods for a farm and to assume an incumbrance thereon and the incumbrance was larger than specified in the contract, and, the contract being otherwise fully executed, assumpsit would lie against the defendant for the excess plaintiff was obliged to pay over the stipulated amount in order to satisfy the incumbrance. Wilson v. Wilson, 106 Mo. App. 501,80 S.W. 711.
And where a stipulated sum is due on special contract, where the contract had been fully performed and nothing remained to be done but the payment of the agreed price, a suit in assumpsit will lie. Thompson-Houston Elec. Co. v. Berg, 10 Tex. Civ. App. 200, 30 S.W. 454.
Where one person has received money of another which in honesty and good conscience he cannot retain, an action will lie for money had and received. Merryfield v. Wilson, 14 Tex. 224, 225, 65 Am.Dec. 117. We therefore hold that the trial court did not err in the measure of damages fixed.
Appellant's proposition that the trial court erred in basing his judgment upon testimony that the defendant introduced as to the alleged false representations of Camp to De Montel, because same varies the terms of the written contract and such testimony will not sustain the judgment, is overruled, for the reasons: (1) That the terms of the written contract in plain and unambiguous language limits the amount which the bank was to pay to the Camp Company, to such sums credited to lease G, which was under the directions of Robertson, and such testimony thereby became immaterial; (2) the amount subject to the order is clearly shown to have been the sum of $196.63, and could not include the oil runs after April 29, 1924.
In our view, the finding and conclusion of the trial court upon such evidence was immaterial, in view of the written contract and other evidence in the case.
The question of the Camp Company's right to appropriate the fund derived from the proceeds of the oil runs in lease G after April 29, 1924, because of any lien claimed by it, is not before this court. In its pleadings the Camp Company claimed the ownership of the fund by virtue of the settlement with Robertson, and, in the event it failed in this claim, then that it have judgment over against Robertson because such sums were due it for the expenses of the development and operation from Robertson, which had been agreed on and was a stated account. The evidence is conflicting on this question, and we will not disturb the finding and judgment of the court. Again, if the Camp Company had a lien upon such funds, that did not justify its appropriation of the fund.
We have considered all of the propositions and assignments of appellant, and, finding no reversible error, we affirm the trial court's judgment.