text:
    ROCK CREEK OIL CORPORATION v. WOLFE.
    No. 3343.
    Court of Civil Appeals of Texas. Amarillo.
    March 12, 1930.
    Rehearing Denied April 2, 1930.

      Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellant.
    Fischer & Fischer, of Amarillo, for appel-lee.
   JACKSON, J.

The plaintiff, Frank Wolfe, instituted this suit in the district court of Hutchinson county, Tex., against the defendant, Rock Creek Oil Corporation, to recover the sum of $11,-860, with interest thereon from January 6, 1929.

Plaintiff alleges: That the defendant is the owner of the west one-half of the southeast one-fourth of section 28, block Y, in Hutchinson county, Tex. That on July 23,1928, plaintiff and defendant entered into a written contract, by the terms of which the plaintiff agreed to drill a well on said land for the defendant, to a depth of 3,200 feet, unless the oil-producing sand was reached at a lesser depth or unless the plaintiff was directed by the defendant to abandon or suspend drilling at a lesser depth. That the defendant agreed to furnish a standard derrick, all casing, oil saver, and steel measuring line, water and fuel, and the plaintiff agreed to furnish all other material, labor, and.machinery and to drill said well for the 'consideration of $4 per lineal foot. That the contract provided that, upon reaching the oil-producing sand, the further work of boring into the oil sand, swabbing and cleaning out, and the other operations in connection with the finishing of said well, should be under the direction and ■ order of the defendant and for such services the plaintiff was to receive $80 per day for each day of twenty-four hours. That, in compliance with the contract, the plaintiff began and drilled said well to the oil-producing sand, which was reached on December 1,1928, at a depth of 2,875 feet. That on December 2d, under the direction and supervision of the defendant’s duly authorized agent and superintendent, Frank Baker, the plaintiff continued the work of drilling in, cleaning out, and doing the other work in connection with the finishing of said well. That he was engaged at such work until December 8th, two days of twenty-four' hours each and five days of twelve hours each, for which he was entitled to the sum of $360, which, together with the price of drilling the 2,875 feet at $4 per lineal foot, is the sum of $11,860, for which he sues. That said well was producing approximately 300 barrels of oil per day, and on said date, December 8th, the defendant, ■through its duly authorized agents, Frank Baker and its president, Ed. R. Mayer, advised plaintiff that no further work was to be performed by him on said well and instructed him to move off said premises with his tools, as the defendant desired to put the well on production in its then condition. That, pursuant to such instructions, the plaintiff took down his tools, discontinued the work and moved off the premises. That, by reason of such facts, plaintiff completed the well under the contract and the well was accepted . by the defendant as a completed well. That the plaintiff fully complied with all the terms ■and obligations imposed upon him by said contract, and that defendant became obligated to pay him the sum of $11,500 for drilling to a depth of 2,875 feet and $360 for the subsequent work on said well at the rate of $80 per day of twenty-four hours each.

The plaintiff pleads in the alternative that, in the event he did not strictly comply with .the terms and provisions of the contract, he .substantially complied therewith, the defendant accepted the well as a completed well, and is thereby obligated to pay the plaintiff the consideration for his lab'or and services in the drilling of said well as the contract stipulated.

He further alleged in the alternative: That, if he neither strictly nor substantially complied with the contract, he did, in good faith, drill said well and completed it under the contract; obtained a producer of oil and gas; the defendant received the benefits and revenues thereof. That the reasonable value of plaintiff’s services was $11,860, and seeks a recovery on quantum meruit. That the defendant was to pay to plaintiff $5,000 in cash on or before 30 days after the well was completed and execute its note for the Balance of tBe consideration, payable on or before six months. That the defendant failed to pay plaintiff the cash and to execute its note, and the entire consideration is due and payable.

The plaintiff attached to and made a part of his .petition a copy of the contract sued upon.

The defendant answered by general demurrer, special exceptions, general denial, and specially denied under oath:- Plaintiff’s allegations to the effect that Frank Baker was •the duly authorized agent of the defendant to direct and control the operation and drilling of the well or that said agent had any authority to accept the well upon behalf of defendant or had any authority to take charge of and receive the well or to construe, interpret, change, or alter in any manner the written contract involved in the suit. That it was contemplated by the parties that the written instrument constituted the entire contract for the completion and delivery of the well in thorough good order and condition, free of all obstructions. That the compensation of $4 per foot was stipulated in the light of such common intent and contemplation. That to complete a well to the approximate depth named in the contract involved hazards and risks such as a crooked hole, collapsed casing, and lost tools, and such risk was the burden and responsibility assumed by the plaintiff under the contract, and, but for the assumption of such risk and the loss of time involved therein, the reasonable value of drilling said well would have been not to exceed $2 per lineal foot. That the plaintiff drilled the well' in question down to a depth of about 2,920 feet, at which depth he lost 30 or 40 feet of tools in said well, which it was his duty, under the contract, to get out, but that, instead of removing the obstructions from said well and proceeding to the completion thereof, the plaintiff abandoned and left the well with the lost tools in the bottom thereof and at all times thereafter, notwithstanding repeated demands, wholly failed and refused to return and complete the performance of his obligations and duties under the contract. That by such conduct the plaintiff repudiated his contract, breached his obligations thereunder, by reason of which the defendant has been relieved of any obligation to pay plaintiff for the work at the price stipulated in the contract. That, among other things, the contract stipulated, in substance, that time was of the essence of the contract and that, in the event the plaintiff should neglect or discontinue the drilling of said well for the space of ten days, said neglect or discontinuance would forfeit plaintiff’s right and claim under said contract without .notice, and in such event the defendant, at its election, might take possession of the well, the ropes, tools, and appliances thereat belonging to the plaintiff, and .finish said well, and that, if the defendant succeeded in completing the well, the cost of such completion should be deducted from the contract price and the balance, if any, paid to plaintiff. That, at the time plaintiff lost his tools in the well, it was flowing a large amount of gas, and the plaintiff represented tljat it would be dangerous and hazardous to attempt to fish said tools out of the well on account of the gas pressure and the danger of fire, and represented that he wanted to postpone efforts to recover the tools and the completion of the well until after Christmas, at which time he would return and resume work, fish out the tools, and complete the well, all of which representations and promises were relied on by the defendant, but that such representations were not made in good faith, but with the design and purpose to abandon the contract and leave the well with the lost tools therein upon defendant’s hands. That the defendant made repeated efforts to induce plaintiff to return and complete the well, which he wholly failed and refused to do, and, after waiting without results, the defendant, in the month of February, was forced to fish the tools out of the well and complete it. That to do this work it purchased the necessary tools and equipment, hired the necessary labor, fished the tools out of said well, drilled it deeper, and completed the well at a depth of 2,990 feet, at the total cost and expense of $1,404.89. That, if plaintiff is entitled to recover under the contract, said expenses must, under the terms thereof, be deducted from the amount due the plaintiff. .

The defendant, by way of cross-action, alleged: That the tools were lost in the well about December 5, 1928, and remained in the well until about March 2, 1929, approximately four months. That, but for allowing the tools to remain in said well, it would have produced ten barrels of oil per day more than it produced with the tools in the well, and, by reason of plaintiff’s breach of his contract, the defendant suffered a loss of oil in the amount of 1,200 barrels at the fair and reasonable value of $1 per barrel. That, during all of said four months, there was another well belonging to a third party located upon an adjacent lease about 500 feet from the defendant’s well, which offset said well, during all of said time was producing oil in large quantities and draining oil from the-land under the defendant’s lease, and the plaintiff is liable to defendant for the reasonable value of said oil so lost, which is the sum of $1,200, together with interest.

The defendant attached to and made a part of its petition a copy of the contract sued upon.

On the answers of the jury to the special issues submitted in the main charge and the issues requested by defendant, the court rendered judgment for the plaintiff for the sum of $11,780, with interest thereon from January 8, 1929, at the rate of 6 per cent, per an-num, from which judgment this appeal is prosecuted.

The appellant presents numerous assignments attacking as error the action of the court in overruling certain special exceptions, admitting the testimony of various witnesses on the question of the agency of Frank Baker, the insufficiency of the testimony to support the findings of the jury, and errors made hy the court in the issues submitted, but, in the view we take of the case, it is unnecessary to enter into a discussion of such assignments.

Both the appellant and the appellee alleged various terms and provisions of the contract and attached a copy thereof to their respective pleadings. The contract is lengthy, and we deem it unnecessary to set out the contract or its terms at great length. The provision thereof which, on this appeal, in our opinion, controls the disposition of the ease, is as follows: “It is further agreed that time shall be of the essence of this contract, and that in case the party of the first part shall neglect or discontinue the work of drilling said well for the space óf ten days, such neglect or discontinuance shall of itself be' a forfeiture of all rights and claims of the party of the first part under this agreement without any notice or demand by the party of the second part. The party of the second part shall have the right at any time after such forfeiture to take possession of said well and discontinue the drilling thereof and at its pleasure dismantle or abandon the same without liability to the party of the first part for any portion of the contract price above mentioned. The party of the second part shall also have the right at any time after such forfeiture as above mentioned, if it so elects, to take possession of said well and all the ropes, tools and appliances thereat, of the party of the first part, and drill said well to completion. In case it shall succeed iñ completing said well, the cost of such completion without any allowance to said party of the first part for the use of said ropes, tools and appliances, shall be deducted from the contract price above mentioned, and the balance, If any, paid to the party of the first part; but if said party of the second part shall not succeed in completing said well, it shall not be liable to the party of the first part in any sum whatever and shall return said tools, ropes and appliances to the party of the first part in as good order as when received, natural wear and .tear and accidental loss or breakage excepted.”

The appellant alleges that, on account of the breach of the contract by appellee in refusing to complete the well, it elected, under this provision of the contract, to fish the tools out of the well and complete it.

The testimony discloses without controversy that the appellee discontinued work, removed his tools from the well, and refused thereafter to continue work under the original contract, and about the middle of January informed áppellant that he would do no more work on the vrell except under a new contract. As we interpret the provision of the contract above quoted, it is immaterial to appellant’s rights in this case whether the appellee breached his contract by dicontinuing the work at the time he did or whether he discontinued the work at the direction and instruction of an authorized agent of appellant, because, the appellant having elected to finish the well and having done so, appellee was entitled under the contract to receive, after the deduction of the cost of the completion of' such well, the balance of the contract price.

Conceding that the appellee was not entitled to receive the $860 for the work he claimed to have done on a per diem basis, appellant admits that appellee had drilled the well to a depth of 2,920 feet, which, at the price of $4 per lineal foot, would have amounted to $11,680 due appellee by appellant, less the expenses to appellant of completing the well. The testimony, construed most favorably for appellant, discloses that it expended, while fishing for the tools that had been lost in the well afid in the completion of the well, the sum of $624.45. This, deducted from the $11,680 that appellant earned for drilling the well to a depth of 2,920 feet, would leave $11,-055.55 due appellee by appellant under the contract.

The appellant challenges as error the action of the trial court in refusing to submit its special issue asking whether the well would have produced more oil while the tools were lost therein, if said tools had not been in said well, what would have been the average of the daily increase of such production, and what would have been the reasonable value per barrel of such additional production.

The testimony shows that, after the tools were removed from the well and the well drilled deeper, it produced some ten or twelve-barrels more per day, but for how many days is not shown. The testimony also is to the effect that the agitation of the oil in a well affects the production, sometimes increasing and sometimes diminishing it; that, in addition to removing the tools, the well was drilled deeper. There is no testimony as to whether the drilling of the well deeper or the removal of the tools or the agitation of' the oil by the work therein increased the production. The testimony fails to show that the additional oil that appellant claims it should have gotten during the time the tools were in the well was not obtained by it after the tools were removed and the well drilled deeper. The evidence fails to show that there-was any difference in the market price of the-oil while the tools were in the well and after they were removed. It fails to show that the oil in appellant’s well or under his lease was diminished by the offset well on an adjoining lease. The increase of ten or twelve barrels per day in the production after the removal of the tools and deepening of the well, indicates no lossage of oil. The testimony does show that the appellee affirmatively informed the appellant about the middle of January that he would do no more work on the well under the old contract, and appellant was, at least under its contract, at liberty to exercise its option at that date, to' take charge of and finish the well.

Under these facts, we do not think the court committed error in refusing this requested issue.

The appellant’s contention that Frank Wolfe alone as plaintiff was not entitled to maintain the suit, because the testimony tended to show that he and his two brothers formed a copartnership called “Wolfe Bros.” and that he made the contract for the benefit of the partnership, is not tenable. Cleveland et al. v. Heidenheimer, 92 Tex. 108, 46 S. W. 30; Inman v. Brown (Tex. Civ. App.) 147 S. W. 652; Bankers’ Trust Company v. Schulze (Tex. Civ. App.) 220 S. W. 570.

The appellant’s assignment that the court committed error in rendering judgment against it for the sum of $11,860 because the provision of the contract stipulating that any compensation accruing to the plaintiff above $5,000 was to be evidenced by a note, is wholly disregarded in the judgment, cannot be sustained.

“The money, in such cases, is the primary element of the promise;' and the stipulations that it may be discharged by something else, is an alternative, that the maker may avail himself of, at or before the day of payment. If he fails to do so, the primary object of the promise must prevail; and it becomes a moneyed demand.” Baker v. Todd, 6 Tex. 273, 55 Am. Dec. 775; Short v. Abernathy, 42 Tex. 94; Bummel v. Mayor, etc., 68 Tex. 10, 2 S. W. 740.

■ This is the settled law in Texas, and, the appellant having failed to pay the money and execute and tender its note within the time prescribed by the contract, the obligation became a money demand.

It is the opinion of this court that the judgment of the trial court should be reformed, permitting the appellee to recover the sum of $11,055.55, the difference between $11,-680, which he earned under the contract, and the expense of $624.45, incurred by appellant in removing the tools and completing the well after appellee had discontinued work; and, as so reformed, the judgment is affirmed.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    MILLER et al. v. KOUNTZE CORPORATE SCHOOL DIST. et al.
    No. 2051.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 19, 1931.
    Rehearing Denied March 4, 1931.
    Howth, Adams & Hart, and Elton Cruse, all of Beaumont, for appellants.
    Oswald S. Parker, of Beaumont, and Jas. F. Parker, of Kountze, for appellees.
   WALKER, J.

The plaintiffs are E. J. Miller and J. H. Yentzen. The defendants are: (1) Kountze Corporate School District (sometimes called Kountze Independent School District), which is incorporated under the laws of the state of Texas and has all the powers of such a corporation; (2) J. B. Hooks (president of said Kountze Corporate School District, or president of the board of trustees of said school district), and Thos. B. Coe, Bud Hooks, Nick Matthews, Frank Crews, James F. Parker, J. C. Alsup, and W. R. Robertson, all members, of said board of trustees, and all of the foregoing parties being sued in their capacity as officials of said Kountze Corporate School District and individually; (3) J. O. Fountain, former president of the defunct Hardin County State Bank; (4) E. M. Pitts, E. D. Adams, and L. M. Adams, sureties on a certain depository bond executed by tbe Hardin County State Bank for tbe purpose of guaranteeing tbe safety of tbe proceeds of school building money; and (5) W. B. Livesay and N. E. Wiedmann. Tbe two defendants last named were and are residents of Jefferson county, J. C. Alsup-was a resident of Harris county, and tbe remainder of said defendants were and are residents of Hardin county.

As plaintiffs, appellants filed tbis suit against appellees as defendants on October 22, 1928, in Jefferson county, Tex. In January, 1929, plea of privilege filed by appellees was sustained and tbe case ordered transferred to tbe district court of Hardin county. At tbe time tbis order was made, tbe district court of Hardin county was in session. Tbe next term of tbe district court of Hardin coupty convened on May 20, 1929. In tbe meantime, on Eebruary 15, 1929, tbe district clerk of Hardin county, answering an inquiry from appellants in regard to tbis case, wrote: ‘Tbis ease bas not been transferred as yet, that is tbe papers bave not reached tbis office.” On May 9, 1929, tbe district clerk of Hardin county again addressed a note to appellants to tbe effect that tbis case bad “not been transferred, therefore, its not in tbis court.” No effort was made by appellants to transfer tbe case until after adjournment of the May term nor until August 7, 1929, when tbe transfer was perfected.

On June 5,1930, when tbe case, as it was on tbe docket of tbe district court of Hardin county, was called for trial, appellees’ motion to dismiss on tbe ground that appellants bad not exercised due diligence' in transfer-" ring tbe case was presented and in all things sustained. Tbe case was also dismissed on tbe ground that appellants’ cause of action was barred by limitation. Tbe order of dismissal was as follows:

“No. 4981
“E. J. Miller et al. v. Kountze Corporate School District et al.
“June 6th, 1930.
“Defendants Motion to Dismiss and plea of Limitation sustained, to which plaintiffs, in open court, excepts, gives notice of appeal to the Court of Civil Appeals of tbe 9th Supreme Judicial District of Texas, at Beaumont, Texas, and plaintiffs are allowed 80 days in which to file statement of facts and bills of exception.”

• Against tbis order appellants duly filed motion for a new trial, which was overruled. Appellants thus summarize their answer to tbe motion to dismiss, bringing forward tbe facts upon which they sought to justify their delay in transferring tbe ease:

“As appears from plaintiffs’ reply to defendants’ motion to dismiss and tbe exhibits attached thereto, plaintiffs believed that defendants would attend to the securing of tbe transfer of said cause to, Hardin County.
“Although plaintiffs bad until tbe 9th or 10th of Eebruary in which to perfect their appeal from said order of transfer and tbe January term of tbe district court at Kountze ended by provision of law on or prior to Eeb-ruary 2,1929, and although tbe next term did not commence until tbe 20th of May, as shown by Exhibit A and A-l attached to said reply, counsel for plaintiffs wrote both tbe district clerk and tbe district judge, said letters indisputably evidencing tbe fact that plaintiffs were diligently active in attempting to secure a qualified court to try said causfe.
“Though tbe district clerk at Kountze promptly advised that said cause had not then been transferred, be stated in such reply that the matter of having tbe disqualification of Judge Coe certified to tbe Governor so that a qualified judge might-be appointed would be attended to as soon as tbe papers were received by him, counsel for plaintiffs still believed that defendants would secure tbe transfer of said cause and relied upon defendants doing so. It was not until counsel received a copy of tbe settings of cases for the May term that they became aware or bad reason to believe that defendants bad not secured tbe transfer of said cause and counsel also noticed from said settings that no qualified judge bad been assigned to the court at Kountze 'for said May term and that no time was set aside during said term for tbe trial of causes in which Judge Coe was disqualified. In fact tbe record shows ‘that during tbe January, May and August terms, 1929, of tbe District Court of Hárdin County, no, other Judge exchanges benches with Judge Coe, and that Judge Coe presided over tbe district court of Hardin County, Texas, during all of tbe time of all of those terms of tbe district court of Hardin County, Texas.’
“Having finally ascertained, or at least concluded, that defendants did not intend to attend to tbe transfer of said cause, plaintiffs on or about August 17,1929, completed tbe transfer of said cause and though tbe district clerk, in accordance with bis promise previous mentioned, bad Judge Coe, prior to tbe beginning of tbe August term, note bis disqualification therein and further order same to be certified to tbe Governor, said form being tbe one mentioned in plaintiffs’ letter of Eebruary 13, 1929 and having been sent to tbe district clerk at that time, for reasons never known to plaintiff, even to tbis day, tbe Governor did not appoint a qualified judge until April of 1930.
“Several weeks prior to tbe date hereinafter mentioned, at which time counsel for all parties received notice of same, tbis cause was duly set (such setting being tbe first and only setting ever made) for tbe week beginning June 2, 1930, and Judge Geo. O’Brien, who was designated to try said cause, informed counsel that be would take the same up June 5, 1930.”

Opinion.

One of the reasons advanced by appellants for not dnly transferring the ease was as follows, to quote from tbeir brief:

“Plaintiffs believed that defendants would attend to the securing of the transfer of said cause to Hardin County.”

That same excuse was offered by appellants in Hinkle v. Thompson (Tex. Civ. App.) 195 S. W. 311, 316, where Mr. Chief Justice High-tower, overruling appellants’ proposition, said:

“Appellants, in their brief, take the position, by way of argument, at least, that it was as much the duty of appellees, after the order of transfer was made in Harris county, to see that the clerk of that court did his duty by transferring the record to Hardin county, as it was the duty of appellants themselves, for appellants argue that appellees were the ones who secured such order of transfer by interposing the plea of privilege of E. L. Thompson to be sued in Hardin county, and that, such being true, appellees’ counsel should have been as diligent, and used as much care as ought to have been expected of appellants’ counsel in seeing that the transfer was timely and properly made. To this contention we cannot agree, because we think that it was the duty of appellants’ counsel to look after the transfer of this record from Harris to Hardin county, and to see that it was timely and seasonably done, because they represented the plaintiffs in the case, who were the actors in this controversy, and the mere fact that appellees availed themselves of their privilege to be sued in Hardin county, a statutory right, would not carry with it any obligation on their part to see that the transfer was, in fact, made, and that the suit was thereafter prosecuted in Hardin county. We think that such contention on the part of appellants is without any réspectable authority to support it.”

On this authority appellants were guilty of negligence in delaying the transfer of their case.

On the authority of the trial court to sustain appellees’ motion, again quoting from the Hinkle Case, Judge Hightower said:

“There is no question, and appellants admit, that the motion to dismiss was addressed, and properly so, to the sound discretion of the district court of Hardin county, but they contend that that discretion was abused.”

Appellants concede that the motion to dismiss for want of prosecution was addressed to the sound discretion of the trial court, but insist that this discretion was abused on the facts of this case. We do not think so. The case was ready for transfer at the January term, 1929, and appellants have not offered the least excuse for not prosecuting the transfer with diligence to that term, or at the most to the next term of the district court of Hardin county. The law fixes no period of time within which the transfer must be perfected. A proper regard for the orderly business of the courts requires that this transfer be prosecuted with diligence. On that proposition we cannot say that the court erred in dismissing the ease. Chapman v. Gibson (Tex. Civ. App.) 8 S.W.(2d) 711, cited by appellants in support of their brief, is not at all in point. In that case only twenty-one days elapsed from the date of the order of the transfer to its filing in the proper court.

We pretermit a discussion of appellees’ counter proposition supporting the dismissal, on the theory that appellants’ cause of action was barred by limitation. What we'have said, we think, satisfactorily disposes of the appeal.

Affirmed.


author: LESLIE, J.

text:
    PURDY et ux. v. GROVE.
    No. 795.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 6, 1931.
    Rehearing Denied March 6, 1931.

      J. R. Stubblefield, of Eastland, for appellants.
    Turner, Seaberry & Springer, of Eastland, for appellee.
   LESLIE, J.

J. O. Grove sued J. T. Purdy and wife, Lillie Purdy, on a note and to foreclose a deed of trust lien securing the same on lot 7, block 15, in the town of Gorman, Eastland county, Tex. Recovery was resisted on the ground that the lien was void as an attempt to mortgage the homestead, and that the defendants had been adjudged bankrupts. At the conclusion of the testimony the trial court instructed a verdict for the plaintiff, and, from the judgment thereon, establishing the debt and foreclosing the lien, the defendants appeal.

This appeal is predicated on five propositions of law, and the first four present, from different angles, that the judgment is erroneous in granting the foreclosure of a deed of trust lien shown to be void as an attempt to unlawfully create a lien against the family homestead. The propositions will be considered together.

For many years prior to the execution of the note and deed of trust in suit, J. T. Purdy and wife resided in Gorman, Tex., occupying a family residence and maintaining a business homestead on said lot 7 separate and disconnected from that on which was situated the residence. At least such was unquestionably so down to about August or September; 1924; the first date being about the time the Pur-dys purchased a residence in Abilene, Tex., and the latter date being the time at which it was occupied by Mrs. Purdy and her daughters. Mrs. Purdy took with her sufficient furniture and fixtures from the Gorman residence to equip the Abilene residence for housekeeping and family purposes. She, together with the daughters, remained at Abilene from September, 1924, to August, 1927, during which time educational advantages were being given the children. At week-ends she paid return visits to Gorman, where her husband remained, conducting a garage business. During said time he made regular visits to the Abilene residence.. After the daughters finished their educational work at Simmons University, the mother returned to Gorman, and the family as a whole réoccupied the old home, which had in the meantime been rented to different parties and was so rented on the date of the note and mortgage in question. Mr. Purdy had reserved for himself the use of two rooms in the residence. During the absence of Mrs. Purdy, no meals were served by the family in the Gorman residence and no cooking utensils were retained for that purpose.

From the standpoint of the Purdys, suffice it to say that, in their testimony on the trial, they claimed never to have abandoned their homestead at Gorman, including lot 7, and that it was such at the time they obtained the loan from Grove and undertook to secure the same with a purported deed of trust thereon. However, we find that no effect can be given to these claims because of other and conclusively established facts. To obtain the loan, Purdy represented to Grove that he could se-' cure it with‘a valid lien on lot 7, and that it was no part of the family homestead. Such representations were believed by Grove, relied on and acted on by him, and he was thus induced to make the loan evidenced by the note and the lien forming the basis of this suit. By way of inducement, Purdy stated to Grove that he owned “more land than the law allows to be exempt from forced sale”; that he owned a lot with garage on it in Sipe Springs, Comanche county, Tex.; that he owned a residence and garage in Gorman, each on separate lots; that he owned a lot and residence in Abilene. In testifying, he referred to the Abilene property in this language: “When Mrs. Purdy moved to Abilene she took enough furniture to furnish the home.” Further, in explaining how the Abilene home came to be designated as their homestead, he testified: “I don’t suppose either of them, (Grove ór his attorney) knew what land the home was on in Abilene. I went up there and looked up the description and told them it was my homestead.” Also, “ * , * * I wanted to designate a home.” He further stated to Grove that his wife and members of his family were residing there, and this was at a time when the Gorman residence was rented. By way of further inducement of the loan, the Purdys duly acknowledged and recorded an instrument designating the Abilene property as their homestead, and in it they recited that they “own and are possessed of more land and real estate than is by law exempt to a family from forced sale.” On the same day, January 8, 1925, J. T. Purdy and wife executed and delivered to Grove the note and deed of trust involved in this suit, and in the latter instrument is found this covenant: “Grantors herein expressly waive any homestead claim to the above described property, and state that they have designated that certain lot or parcel of land situated in the city of Abilene, Taylor County, Texas (here follows particular description of the property) as their homestead, and represent to the said J. O. Grove that they waive all rights to the above described property or any property whatsoever located in the city of Gorman as their homestead.”

Notwithstanding the fact that J. T. Purdy, appellant, was staying at Gorman, as claimed in his testimony, and working in the garage on lot 7, and sleeping in a room reserved at the old residence, we conclude that the foregoing undisputed facts and circumstances, viewed from the standpoint of Grove, the ap-pellee, created an ambiguous situation, as such is designated and described by our Supreme Court in an opinion by the Commission of Appeals in Carstens et al. v. Landrum et ux., 17 S.W.(2d) 803, 804, involving the true location of the Purdy homestead, and that such situation embodied all the elements of a complete estoppel as against the right of the Purdys to assert that their homestead was other than the residence and lot situated in Abilene and designated by them as their homestead in the foregoing instruments and on all other occasions while negotiating" for the loan.

As the situation presented itself to Grove, the Purdys, at the time of the loan, owned and occupied a family residence on the lot in Abilene; also .they owned a residence and place of business, each on different lots, in Gorman. The residence at Gorman, as noted, was rented to other parties, with the reservation of a room. They owned a lot with garage thereon in Sipe Springs. Clearly, as represented, Purdy did own real estate not protected from forced sale as exempt property. From outward appearances at the date of the loan, it could have been argued plausibly that the Purdys had a homestead in Abilene or that their homestead was in Gorman.

Further, the Abilene residence and lot lacked nothing in occupancy and use, the elements given paramount, if not controlling, effect in determining the homestead character of property claimed as exempt. Speer’s Law of Marital Rights, p. 553, §§ 460, 461.

As compared with the occupancy and use being made of the Gorman property at the time of the loan, the use and occupancy of the Abilene property were at least equally if not more pronounced as evidence of homestead rights.

The above are the salient facts forming the background of the obligation and lien here involved. The controlling question to be considered is whether the recitals in the deed of trust, the homestead designation, and the foregoing undisputed surrounding circumstances estop the Purdys to assert the homestead character of lot 7, block 15, at the time of the loan and the creation of the lien, and thereby defeat the object of this suit for the foreclosure of that lien. As said in Carstens v. Landrum, supra: “It is no longer an open question in this state that, where the" tangible facts respecting two places are such that the homestead character will attach to either, to the exclusion of the other, according as the husband and wife intend, a declaration by the spouses of their intentions in this respect may estop them from disputing the truth of the declaration. Parrish v. Hawes, 95 Tex. 185, 66 S. W. 209.”

The instant case is a strong one for the application of the rule stated. Therefore, as said in the authorities cited, and adapting the language of that opinion to the facts here, it becomes necessary to consider the tangible facts relating to the Gorman property and the Abilene property, as those facts existed at the time the transaction occurred in which the deed of trust in question and the instrument designating the Abilene homestead were-executed. Discarding from consideration tlie real intentions which Purdy and wife had in mind, it could not he said that the use and occupancy of the Gorman property were of such a nature as to show conclusively that that property was in law and 'in fact their homestead when these transactions took place. Whether it was or not depended upon their real intention, which they could change at will, and which nobody could know hut themselves. In the same .transaction in which they' declared an abandonment of the Gor-man property as a home, they designated a new place, the Abilene property, suitably im- | proved, which they declared was their home ■ and intended to be so used as such, which they had acquired a considerable time prior , thereto (August, 1924), and which had in fact been occupied by the wife and daughters since about September 15, 1924. In view of the ambiguous circumstances under which the ; Gorman property (that here involved) was being used and occupied by a part of the family (Purdy), and the fact of the prior occupancy of -the Abilene property by the wife and daughters, there can be no doubt that the latter place, the Abilene property, would be treated as having become the family home and protected as such at .the very time of said transaction, If the real intention of Purdy and wife had corresponded to their declarations of intention as contained in the deed of trust and the homestead designation. Gardner v. Douglass, 64 Tex. 76; Cameron v. Gebhard, 85 Tex. 610, 22 S. W. 1033, 34 Am. St. Rep. 832.

In thus applying the language of the opinion in the Landrum Case to the facts in the instant case, it is obvious that the difference, if any, is decidedly in favor of the conclusion that the instant case is a stronger one on the facts going to establish an estoppel against Purdy and wife to deny the truth of their solemn declarations that the Abilene property was .their homestead at the time of the loan. We cite, as an additional authority for these conclusions, Llewellyn et ux. v. First Rational Bank of Lampasas (Tex. Civ. App.) 265 S. W. 222.

Of course, .the business homestead is but a part of the one urban homestead exempted by law to those entitled to the same. Miller v. Menke’s Widow & Heirs, 56 Tex, 539; Speer’s Law of Marital Rights, p. 548, § 459. Also there can be but one residence homestead at a given time. Archibald v. Jacobs, 69 Tex. 248, 6 S. W. 177; Johnston et al. v. Martin, 81 Tex. 18, 16 S. W. 550; Grimes v. Cline (Tex. Civ. App.) 300 S. W. 235.

In other words, the business and residence homestead in a city, town, or village is a unit, the one urban homestead, and, it conclusively appearing that the appellants had established their .residence homestead in Abilene, we conclude that it drew to it what is commonly termed a business homestead, if any; that is, in any event, the lot here in question, once a part of the homestead when the Purdys resided in Gorman, ceased to be a part thereof under the circumstances recited, and became subject to the deed of trust lien. This follows for the reason that the Purdys could not maintain a business homestead in Gorman, Eastland county, Tex., and a- residence homestead in Abilene, Taylor county, Tex., the two places being disconnected urban communities, some 82 miles apart, and the county of Callahan lying .between Taylor and Eastland counties.

We find no opinion by our Supreme Court on this point, nor by any appellate court in Texas. The question, however, has been decided by a federal Circuit Court of Appeals in the case of Robinson v. Eikel, 285 F. 732, 734. There Eikel contended that, under the homestead exemption laws of Texas, he was entitled to a residence homestead in New Braun-fels, Comal county, Tex., and a business homestead at Taylor, Williamson county, Tex. In a bankruptcy proceeding, the claimed exemption was upheld by the district court in an opinion to be found in 283 F. 285, but that holding was overruled by the Circuit Court, and the exemption disallowed in the opinion first cited. A writ of certiorari was denied by the Supreme Court of the United States. We do not undertake to restate here the reasons assigned by the Circuit Court for thd holding made. They are clearly set forth in the opinion. We consider them sound ana the opinion sufficient authority for this ruling. We direct attention to the concluding part of that opinion, which is in this language: “ ⅜ * * The urban homestead provided by the Constitution of Texas contemplates a lot or lots used for the purposes specified in such Constitution located, in one urban community, whether governed by one or more municipal bodies, and not a lot or lots situated in widely separated urban communities.” (Italics ours.)

That statement is a significant one, and indicates that municipal boundary lines in such cases, like the corporate existence of a city, town, or village, are unimportant considerations in determining the location of or the right to claim the urban homestead, or a part thereof.

In the case of Williams v. Willis et al., 84 Tex. 398, 19 S. W. 683, 684, our Supreme Court held that urban property situated in unincorporated towns and used as a place of business by a person also owning and residing at a homestead outside of the town limits, and not contiguous to the urban property, is no part of a homestead and is subject to execution. There it was contended that, within the meaning of 'the law, San Saba was not a town, because unincorporated, and that for this reason the property in. controversy, as well as that on which appellant resided, was rural, and that he was entitled to hold both as a rural homestead. The court said: “To constitute San Saba a town, within the meaning of the constitution, it is not’ necessary that it be incorporated” — citing Iken v. Olenick, 42 Tex. 197; Hargadene v. Whitfield, 71 Tex. 482, 9 S. W. 475.

Evidently, as used in this provision of the Constitution (section 51, art. 16), “a city, town, or village” means “an aggregation of inhabitants and a collection of occupied» dwellings and other buildings.” State ex rel. Wilke v. Stein et al. (Tex. Com. App.) 26 S.W.(2d) 182, 184. . There would appear to be no legal obstacle to a family residence homestead being located in Dallas and a business homestead in connection therewith in Highland Park; the two adjoining municipalities being separated merely by a corporate line. The test would be, Are the parts of the one homestead located in one urban community?

Further, the language of the constitutional provision (section 51, art. 16) defining urban homestead excludes the idea that it may be constituted by what is spoken of as a residence homestead in one city, town, or village, and a business homestead in another and disconnected city, town, or village, both existing at the same time. The language of the provision is: “The homestead in a city, town or village, shall consist of lot or lots, not to exceed in value, ⅜ * * ” etc. This language is simple and not open to construction. It created a definite right and restricted its enjoyment to a definite locality. Such restrictions and limitations may not be disregarded for expediency or convenience.

In the case of Parks et al. v. West, 102 Tex. 11, 111 S. W. 726, 727, our Supreme Court, in determining whether or not it was within the power of the Legislature, under the Constitution, to incorporate school districts for free school purposes only, composed of parts of two or more counties, held that the power given to the Legislature by the Constitution (article 7, § 3, Amendment 1883) to provide by general or special law “for the formation of school districts within all or any of .the counties of this state” with power for local taxation for school purposes did not authorize the creation of an independent school district embracing territory lying tpwtly within ohe county and partly within another. The language of the opinion simply forbids the doing of the thing attempted, and the reason for the court’s holding is very clearly stated in that opinion, and is applicable to the situation here.

We also cite in support and confirmation of the conclusions relating to the business homestead, Nunn on Exemptions, p. 125, an excellent text recently published. In discussing limitations, (a) to (h), under which property may be impressed with the homestead character, the author states:

“* ⅜ * (⅞) That there can be but one residence homestead.
“(c) That he can have but one business homestead, and such place of business is limited to one place.
“(d) That the business homestead or place of business, together with the urban residence homestead, must be located in the same city, town or village, in that the two together constitute but one homestead. ⅜ * *

It follows that the four propositions under consideration are overruled.

The appellants’ remaining proposition, is overruled. It is to the effect that, Purdy and wife having filed petitions in bankruptcy, the district court of Eastland county was without Jurisdiction to determine the issues involved in this suit. In the judgment appealed from, the court merely established the indebtedness, foreclosed thei deed of trust lien, and refused to grant personal Judgment against the appellants. The note was payable in Eastland county; the land foreclosed on situated there. The petition for foreclosure was filed in the district court of East-land county December 31, 1929, and.J. T. •Purdy filed his voluntary petition in bankruptcy January 8, 1930, and Mrs. Purdy hers on March 20, 1930. The judgment appealed from was rendered March 21, 1930, and no official of the bankrupt court intervened in the proceedings of the court below or expressed any dissatisfaction therewith. In such state of the record the trial court had jurisdiction to hear and determine the suit and to enter its decree of foreclosure. Eyster v. Gaff, 91 U. S. 521, 23 L. Ed. 403; Remington on Bankruptcy, Third Edition, vol. 5, p. 102, § 2048; Belcher Land Mortgage Go. v. Bush (Tex. Civ. App.) 67 S.W. 444.

For the reasons assigned, the judgment of the trial court is affirmed.


text:
    TEXAS EMPLOYERS’ INS. ASS’N v. COULTER.
    No. 2053.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 12, 1930.
    Rehearing Withdrawn by Appellant Feb. 20, 1931.

      A. Ludlow Calhoun and D. C. Marcus, both of Beaumont, for appellant.
    Howell & Howell, of Beaumont, for appel-lee.
   WALKER, J.

This was an action under the Workmen’s Compensation Act by appellee against appellant for the compensation provided by law for the total loss of the eye (Rev. St. 1925, art. 8306, § 12). His pleadings were sufficient to state a cause of action upon this issue com-pensable under the law. The defense was, to quote from appellant’s summary of its answer, that “any loss of vision of plaintiff’s left eye was due solely to causes in no way related to his employment and in no way related to any of the matters set forth in his petition.”

Quoting further from appellant’s brief: “It was undisputed that the plaintiff sustained total loss of vision in his left eye, the question being as to when, in what manner and what caused such loss of vision.”

The following issues were submitted to the jury, answered as indicated:

“Special Issue No. 1. Do you find from a preponderance of the evidence that Edward Coulter received an injury to his 'left eye, in the course of his employment?” Answer: “Xes.”
“Special Issue No. 2. Do you find from a preponderance of the evidence that such injury sustained by Edward Coulter, if any, is the sole cause of loss of vision in his left eye?” Answer: “Yes.”
“Special Issue No. 3. Do you find from a preponderance of the evidence that Edward Coulter had a gonorrheal infection in his left eye?” Answep: “No.”
Special Issue No. 4. Do you find from a preponderance of the evidence that the gonorrheal infection, if any, was the sole cause of loss of vision of the plaintiff’s Edward Coulter’s eye?” To which the jury made no answer.
“Special Issue No. 5. Do you find from a preponderance of the evidence that the loss of vision in Edward Coulter’s left eye is due to a combined 'effect of gonorrheal infection, if any, and the injury, if any?” Answer: “No.”
“Special Issue No. 6. Do you find tbat any loss of vision in plaintiff Edward Coulter’s left eye is contributed to by gonorrheal infection?” Answer: “No.”

Opinion.

While the form of question No. 1 may be duplicitous, as appellant urges in its first proposition, it was not so under the facts of •this case. On the undisputed evidence, if ap-pellee received an injury to his eye, it was “in the course of his employment.” The only question then submitted to the jury was whether or not appellee “received an injury to his eye.” That issue was strongly controverted and found against appellant. Texas Employers’ Ins. Ass’n v. Drummond (Tex. Civ. App.) 267 S. W. 335; Wichita Falls, R. & Ft. W. R. Co. v. Embelin (Tex. Civ. App.) 274 S. W. 991.

The lower court refused to submit the following issues requested by appellant: “Do you find that the plaintiff, Edward Coulter, had a partial loss of vision in his left eye before the date of his alleged accident on September 3rd, 1929? Answer ‘Yes or No.’ If you have answered the foregoing special issue ‘yes’ then answer this: What per cent, of loss of vision in said eye ¡existed before said 3rd day of September, 1929 ? Answer by stating percentage.”

This ruling was not error. While there was evidence that appellee lost his eye as the result of a gonorrheal infection, appellee denied that he ever had gonorrhea or that his eye was ¡ever infected by that disease. Appellant’s testimony was to the effect that appel-lee was not injured at the time and in the manner claimed by him. Appellee and one of his witnesses testified to the facts of the injury and the time and place of the injury, as pleaded by him. The issue made by appellant was that the gonorrheal infection was the sole cause of the loss of the eye. The issue made by appellee was that the alleged injury was the sole cause of the loss of the eye.' Appellant has advanced no proposition that the court erred in refusing to submit its issue of sole cause. There was no evidence that appellee had a partial loss of the “vision in his left eye” prior to the date of the alleged injury; that is to say, even if appellee had a gonorrheal infection prior to the alleged .injury, there was no issue that, prior to that date, the infection had impaired-the v vision, and therefore there was no error in refusing to submit the first part of the question, as above copied. But if by any construction of the evidence it could be said that the issue of partial loss was raised, there was no evidence, not even a suggestion of evidence, upon which the jury could have found a “percentage of loss of vision in said eye” existing before the date of the injury. Without the finding on the “percentage” issue, the finding on “partial loss” would have been merely evi-dentiary and hence immaterial.

The third, fourth, and fifth propositions are that the answer of the jury to question No. 1 was so against the great, weight and preponderance of the evidence “as to be clearly erroneous.” We have carefully reviewed the statement of facts, and have concluded that issue No. 1 was raised, and that the answer of .the jury has support.

The judgnfent of the lower court is in all things affirmed.


author: RANDOLPH, J.

text:
    NEWBURG v. SPINHIRNE.
    No. 3490.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 11, 1931.
    Rehearing Denied March 4, 1931.
    J. A. Coffee and J. W. Witherspoon, both of Hereford, for plaintiff in error.
    E. 0. Northcutt, of Amarillo, for defendant in error.
   RANDOLPH, J.

Defendant in error has filed his motion to strike the record herein for the reason that the affidavit in lieu of a bond is not sufficient and same does not show that said F. J. New-burg is or was at the time a resident of Old-ham county, Tex., and to ascertain that fact search has to be made further into the record, and such affidavit is not made in accordance to the law in such case and does not show the proper proof was made as required in the county of his residence.

Buie 8 for the Courts of Civil Appeals requires that all such motions which relate to informalities in the manner of bringing a case into court shall be filed and entered by the clerk on the motion docket of this court within thirty days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived. The transcript in this cause was filed in this court on July 7, 1930. The motion to strike herein was not filed until January 28, 1931, more than six months after the date of the filing of the transcript.

If an affidavit in lieu of an appeal bond is void or was made before an officer not authorized to administer an oath, or attest such document, the defect is jurisdictional ; but if it is merely defective or there is an omission of some fact which can be waived or which can be established by evidence, the objection must be taken within a reasonable time (thirty days) to be available. Green v. Hewett, 54 Tex. Civ. App. 534, 118 S. W. 170; Stewart v. Heidenheimer, 55 Tex. 646.

The appellant’s attorney has filed his affidavit herein that the appellant was' at the time of the making of the affidavit of inability to pay costs before the county judge of Old-ham county, a resident of Oldham county. This is a sufficient answer to' the motion to , strike. Claiborne v. M., K. & T. Ry. Co., 21 Tex. Civ. App. 648, 53 S. W. 837, 57 S. W. 336.

The plaintiff alleges in his petition that the defendant, appellant, was then a resident of the county of Oldham, and we do not see the necessity for the allegation to' be repeated in the affidavit. The motion to strike is therefore overruled.

This appeal was taken from a judgment in favor of the plaintiff and against the defendant, in a suit based upon the following allegations in plaintiff’s petition:

“That on or about February 1, 1927, the plaintiff, A. E. Spinhirne and the defendant, E. J. Newburg, made and entered into a certain oral agreement in reference to the leasing of certain premises and whereby the said A. E. Spinhirne did lease and let unto the said F. J. Newburg all of section sixteen (16) block K-6, Oldham and Deaf Smith Counties, Texas, for a period of three years, beginning February 1, 1927, and said parties did on or about the 9th day of June, A. D. 1927, made and enter into a written lease whereby the said A. E. Spinhirne did lease and let said property above mentioned to the said F. J. Newburg.
“Which contract in writing was in accordance to the agreement theretofore made by said parties, but which was made orally; which agreement was so made by the mutual agreement of the parties and which agree-' ment was so signed and executed by said parties as to the agreement of the parties, and which the said F. J. Newburg took possession of the said premises in accordance with said contract and agreement; that contemporaneously with the making of said contract of lease, this plaintiff delivered to the said F. J. Newburg a certain number of cattle and hogs and money to the extent of $745.55, which stock and money was advanced and furnished by this plaintiff as the landlord to this defendant, as tenant, for the purpose of enabling said defendant to make a crop upon the above mentioned premises, and to gather, secure, house and put the same in condition for marketing; all of which said money, the value of the animals, provisions and supplies furnished by this plaintiff as herein stated, were necessary for that purpose.
“At the same time, namely, February 1, 1927, and in accordance to the agreement of the parties, in order to evidence the amount that was due to this plaintiff and was advanced by him as hereinabove mentioned, all of which was advanced to the defendant, F. J. Newburg, which the said F. J. Newburg executed .and delivered a note payable to the order of A. E. Spinhirne at Vega, Texas, for the sum of $745.55 but said note was given only for the purpose of evidencing and showing the amount so advanced at that time by the said A. E. Spinhirne to the defendant, F. J. Newburg, for .the-purposes as above set out.
“In this connection this plaintiff would allege and show that sometime, on or about the 6th day of August, A. D., 1928, the plaintiff, A. E. Spinhirne, and the defendant, F. J. New-burg, had a settlement in reference to the amount due by the said F." J. Newburg to this plaintiff -and in accordance to said agreement -the said F. J. Newburg represented to this plaintiff that he would be compelled to have additional sums of money and cattle to enable 'him to proceed in the matter as above -set out in accordance to the previous agreement that they 'had -as hereinabove alleged, •and as said defendant, Newburg, was due to this plaintiff to said A. E. Spinhirne the -said sum of $745.55 as -above mentioned, which he was able to pay to. the said A. E. Spin-him-e, and -then required the said A. E. Spin-hime to let him pa,y up the interest -as provided in said note, and to let said note stand as it was and required the said A. E. Spin-hirne to let said note stand as it was and requested the said A. E. Spinhirne at that time to re-advance said sum of money, namely, $745.55 to said defendant for the purpose of enabling him to make a crop on such premises and to - gather, secure, house and put the same in condition for marketing, as above set out; all of which being necessary for that purpose and was so represented by this said defendant, Newburg, to this plaintiff, and which was so agreed by the parties at that time that the said amount should still represent th,e money and the value of animals, provisions and supplies furnished by this plaintiff as the landlord, to the defendant as tenant, as advances to enable him to make such crop on such premises, and to gather, secure, house and put the same in conditions for marketing ; all of which were furnished at that time by this plaintiff to said defendant, New-burg, and which sum, together with interest, as provided in said note as agreed to by the parties, is still due .and unpaid and said defendant has failed and refused to pay the same or any part thereof, though often requested,” etc.

It is .further alleged in plaintiff’s petition that the defendant again represented on the 15th day of October, A. D. 1928, to the plaintiff, that it was necessary for him to have additional money, and the said Spinhirne advanced the defendant the sum of $281.44, and took his promissory note for same.

There was judgment in favor of the plaintiff for the sum of $655.

There is no statement of facts in this case, and hence we cannot pass upon any question, the solution of which depends upon the evidence supporting or disproving any contention raised by defendant. It appears from the record that a distress warrant, issued from a justice court, was levied upon certain cattle claimed to have been removed from the landlord’s premises. This distress warrant does not appear in the record, neither is the return of the sheriff thereon. Hence we cannot ascertain what cattle were taken by the sheriff by his return under such warrant.

The landlord has a preference lien on the property of the tenant upon such premises, for any rent that may become due and for all money and the value of all animals, tools, provisions, and supplies furnished by the 'landlord to the tenant to make a crop on such premises and to gather, secure, house, and put the same in condition for marketing, the money, animals, tools, provisions, and supplies so furnished being necessary for that purpose, whether the same is to be paid in money, agricultural products, or other property, and this lien shall apply only to animals, tools, and other property furnished by the landlord to the tenant and to the crop raised. Article 5222, R. C. S. 1925.

This statute does not require any description of the • property on which the lien attaches beyond that stated therein, but only requires the property to be “upon the premises” and to have been furnished by the landlord for such purposes.

The description of the property as given in the sheriff’s return not being in the record, we cannot determine what property he took into possession by reason of the authority of the warrant. But it is immaterial as to the authority of the trial court to foreclose the distress warrant lien. If the warrant is defective in any way, this does not destroy the landlord’s lien — that lien exists, independent of the warrant. Newman v. Ward (Tex. Civ. App.) 46 S. W. 868; Polk v. King, 19 Tex. Civ. App. 666, 48 S. W. 601; Stephens v. Cox (Tex. Civ. App.) 255 S. W. 241; Crutcher v. Wolfe (Tex. Civ. App.) 269 S. W. 841.

In the absence of a statement of facts, the trial court’s finding in the judgment becomes material. That court, in foreclosing the plaintiff’s lien, used the following language in describing the cattle:

“On the following described property, as such lien existed on February 1, 1927, June 9, 1927, March 25, 1929, and on February 18, 1930, 16 head of cattle, no brands, and ranging in size from old cows down to yearlings and calves and being the same cattle now in the possession of the sheriff of Oldham County, Texas, under and by virtue of warrant issued out in this case on Feb. 18, 1930; but being a separate and distinct warrant issued which was referred to as being wrongfully issued, the warrant being wrongfully issued being returnable to Oldham County Court and not to the District Court, said property still remaining in the hands of said officer.”

It will be seen that the sheriff’s description might have afforded aid to the court in its description in the judgment. Be that as it may, we are entitled to presume, in the absence of a statement of facts, that the cattle were on the premises; that they were cattle furnished the tenant by the landlord; and that they were furnished the tenant for the statutory purposes. So far as the specific cattle are concerned, they being presumed to have been taken by the sheriff on the premises and having been segregated and taken into his possession and being now in his possession, they can be certainly identified.

The plaintiff’s petition clearly alleges facts which, if proved, would establish a landlord’s lien on the cattle, and the judgment of the trial court being for a foreclosure of the “plaintiff’s lien,” we cannot presume that the court was attempting to foreclose a purchase-money lien, when the pleading also authorizes the foreclosure of the landlord’s lien.

We therefore affirm the judgment of the trial court.


author: LEVY, J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. PERRY.
    No. 3913.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 1, 1931.
    Rehearing Denied Jan. 15, 1931.

      Leachman, Gardere & Bailey, of Dallas, for appellant.
    Webb & Webb, of Sherman, for appellee.
   LEVY, J.

(after stating the case as abové).

By a timely plea in abatement the appellant sought to abate all that portion of the appellee’s claim for compensation for injuries set forth in his petition that he had sustained, excepting the specific injury of hernia. Upon due presentation the plea was overruled by the court, and the ruling is made the basis of error. It is pointed out that no claim for the injuries made the basis for compensation in this suit, except for the specific injury of hernia, had been presented to the Industrial Accident Board before the appeal to the court, and, therefore, the court had no jurisdiction over such new and independent claim made after the appeal to the court. The appellee in his present action alleged that the injuries occasioned to him by lifting the sack of bran were as follows: (1) “A hernia on his right side,” and (2) “his back and left side were wrenched and all bones, nerves, tissues, vertebrse, blood vessels, muscles, and tendons, in and about his spinal column and left side were torn, bruised and wrenched, jammed and permanently injured.” Then follows the allegation, viz.: “That the said hernia, and the said back and side injuries as above alleged, each and all, acting separately and concurrently, render him totally unfit and incapacitated to labor, or work, to earn money, and said condition will continue to so exist so long as he may live. He would further show to the court that the back and side injuries above alleged, and each of them, extend to and affect the heart, the lungs and movement of his limbs. That the said hernia extends to other portions of his body, and other organs of his body, affecting and injuring them. That same extends to and affects the digestive organs, the heart, lungs, and other portions of the body, rendering him unfit to' labor and work.” In his claim made for compensation for injury by the appellee to the Industrial Accident Board, he describes the cause and nature of his injury as follows: “The cause of my injury was by reason of lifting shorts on a truck from the packer. The nature of my injury is as follows: hernia, also pains in back and left side.” The claim of injury before the Industrial Accident Board shows, as can be readily seen, that the appellee suffered “hernia” and at the same time suffered “also pains in back and left side.” The word “also” preceding the last clause of the sentenefe indicated an intention to include something not theretofore included. A meaning of “also” is “besides,” “in addition to.” In such interpretation it may not be concluded that the appellee’s claim before the board was intended to be confined to the injury merely of hernia. Nor can it be concluded that the appellee intended to claim as injuries only such pains to the back and left side as directly followed or originated from the hernia. The claim before the board can fairly be regarded as intended to describe concurrent hurts sustained to other parts of the body independent and exclusive of the injury resulting in the hernia and the pain accompanying hernia. In this view, then, the appellee had the right in his present petition by proper allegations to amplify or make more specific the hurts which were only generally described in the claim of injury presented to the Board. Texas Employers’ Insurance Ass’n v. Knouff (Tex. Oiv. App.) 271 S. W. 633; Texas Indemnity. Insurance Co. v. Wilson (Tex. Civ. App.) 281 S. W. 289. He would not be confined by the law to compensation for the injury resulting in hernia, if proof, admitted under proper allegations, showed other compensable hurts. United States Fidelity & Guaranty Co. v. Pogue (Tex. Civ. App.) 21 S.W.(2d) 43.

It is further pointed out by the appellant that the present allegations of the appel-lee’s petition went further and were greatly broader than mere amplification of the injuries claimed before the board, in describing the injuries affecting the back and side, and lungs and heart. As will be observed, the word “pains” was, as used in the claim, compounded with words expressing the place as “back” and “left side,” evidently intending thereby a general description of injuries sustained in the places so specified. A wrenched back may cause a backache or local pains in the whole of the back, and a strained left side may cause local pains in the entire left side of the body, including the related organs of the heart and lungs. The allegations, though broad, would not necessarily constitute injuries to other and distinct places of the body than those included in the claim of injuries made before the board.

Over timely objection of'the appellant the appellee offered in evidence certified copies of (1) “notice that employer has become subscriber” and (2) “notice of renewal of compensation insurance.” The first instrument recites as follows:

“Notice that Employer has Become Subscriber.
“The Industrial Accident Board, Austin, Texas.
“Gentlemen: Notice is hereby given as required by the employers’ Liability Act, Chapter 103, General Laws 1907, and amendments thereto, that G. B. R. Smith Milling Company of - Street, Sherman, Texas, has become a subscriber under said Act and amendments thereto and provided for the payment of compensation to employees under the terms and provisions thereof by insuring with Texas Employers Insurance Association.
“Occupation milling of grain. Approximate number of employes 50.
“Estimated annual pay roll -- Policy No. C8978
“Date effective 7 — 1—28. Hours effect 12:01 A. M.
“Policy expires 7 — 1—29.
“[Signed] G. B. R. Smith Milling Company “By J. S. Smith, Pres.
“(Received June 6, 1928, Industrial Accident Board State of Texas.)”

Accompanying this notice was a separate notice purporting to have been given to the Industrial Accident Board by another party than the milling company.

The second instrument reads as follows:

“Notice of Renewal of Compensation Insurance.
“Industrial Accident Board.
“Austin, Texas..
“The Industrial Accident Board is hereby given notice of the renewal of policy of insurance by the undersigned under the terms and provisions of the Employers’ Liability Act to
“Employer: G. B. R. Smith Milling Company
“Address, Sherman, Texas.
“Occupation: Milling of grain.
“Former Insurer: Texas Employers’ Insurance Ass’n
“Date of cancellation or expiration of old policy Number C8978
“Date effective 7 — 1—28. Hour effective 12:01 A. M.
“Date of expiration. 7 — 1-—29. Hour of expiration 12:01 A. M.
“Present Insurer: Texas Employers Insurance Ass’n
“Dated at Dallas, Texas, tliis 28th day of May, 1928.
“Note: If more than one place of business is conducted under same name, use separate blank for each. This form must he executed by the insurance carrier promptly upon the renewal of a policy of insurance under the employers Liability Act, and mailed to the Industrial Accident Board, Austin, Texas.
“(Received May 30, 1928, Industrial Accident Board State of Texas.)”

The instruments were all certified to by the secretary of the Industrial Accident Board as true copies on file with the board. The appel-lee alleged that the association was the insurer, and demanded that the insurer association produce the policy of insurance on the trial. The association pleaded a general denial. The appellee offered the two instruments to show that at the time he sustained his injuries his employer was a subscriber to the Workmen’s Compensation Law, and that the appellant insurance association was his employer’s insurer.

Objections of the appellant as recited in the bill of exceptions read: “That the same was irrelevant and immaterial; that it was an ex parte statement made without the knowledge, consent or sanction of this plaintiff, and by the party at a time when the plaintiff was not afforded an opportunity to cross-examine the party on the things set forth in the instrument.”

It is believed that the trial court did not err in overruling the objection of the ap: pellant that the documents offered in the evidence were “irrelevant and immaterial.” The evidence is fit and appropriate proof and the character of proof which the law permits in the case. The burden of evidence as recited in the documents and which appellee offered to prove was upon the appellee, that his employer was a subscriber to the Workmen’s Compensation Law and had insurance, and that the appellant association was the insurance carrier. By express terms of the Workmen’s Compensation Law the employer of labor and insurance carrier, each and separately, are required to make and submit to the Industrial Accident Board a notice and report, or writing, in which are embodied certain facts and doings of the kind and character reflected in the above documents. Article 8308, § 18a. The evident purpose of the statute in having such memorandum in writing, made at the time when such facts it records took place, was to assist the Industrial Accident Board in the proceedings before the board, and to constitute it a relevant and legitimate part of the public record of the board. The statute expressly provides that any person entitled thereto may obtain a copy duly attested by the secretary of the board of the' contents of any “paper on file in the office of said board,” or “proceeding before said Board.” Article 8307, §§ 8 and 9. And it is believed that the statute expressly determines the question of whether the contents of these documents may be proved by copies duly verified. Section 8, Art. 8307; Texas Indemnity Insurance Co. v. Wilson (Tex. Civ. App.) 281 S. W. 289. The documents offered in evidence may be classed as a copy of “proceedings before the Board” because of the original memorandum recording facts which were necessary to be inquired into and taken notice of by the board in making an award in the first instance. In making an award, the board is manifestly required to consider facts such as that the employer was a subscriber to the law and had insurance and what company was the insurance carrier. It is a rule of wide application that those records and papers placed with boards and public agencies, which are public in their nature and the public have the right to inspect, may be proved by duly authenticated copies. Article 3730, R. S.; Smithers v. Lowrance, 100 Tex. 77, 93 S. W. 1064.

The further objection that the documents offered “was an ex parte statement made without the knowledge, consent or sanction,” etc., of the appellant was also properly overruled by the trial court. The first instrument purporting on its face to have been formally made by the president of the milling company was offered as to the milling company as proof against it. The declarations made therein were declarations required of the company in the due course of business. The fact that the declarations made were such as the law required of the company to make, and were made by its president, carries with it the suggestion of apparent authority of the president to act, and he was not wrongly assuming to bind his principal. The second instrument above set out was separately offered and only as to the appellant as proof against it. This copy revealed that the recitals of the original instrument on file with the board were made upon a form appearing on its face to be official and in behalf of appellant and concerning transactions in the course of its business. The “note” stated that “this form must be executed by the insurance carrier promptly upon the renewal of a policy,” etc. This copy further purported to show that a report was made to the Industrial Accident Board by the “Texas Employers Insurance Ass’n” as “present insurer” and as “former insurer” of (he “employer G-. B. R. Smith Milling Co.,” of the fact “of the renewal of policy of insurance by the undersigned under the terms and provisions of the Employers’ Liability Act.” The name of the “Texas Employers’ Insurance Ass’n” appears twice in the body of the instrument. It is clear that the instruments above referred to were not subject to the objections of being within the rule of hearsay statement or “ex parte statement made (by some one else) without the knowledge, consent or sanction of appellant,” since the two instruments were offered separately and distinctly and only against each maker thereof. They were separately offered as the memorandum made and filed by each party as required of them by law. Although the second instrument may appear informal or defective with respect to execution, yet it is not so defective as to enable the court to say as a matter of law that the original was a nullity. The ground of objection does not reach to the manner or form of the execution of the original instruments or that no extrinsic evidence was offered to explain the defects or in proof of agency as a prerequisite to the admission of the writings.

The appellee was asked the question: “Now, before this injury had you ever had that hernia in any degree at all?” The objection made to the question was that it called for a conclusion and invaded the province of the jury. The court overruled the objection, and the answer of the witness was, “No, sir.” It is believed that there was no error in the ruling of the court as the question involved purely a fact affecting the weight and credibility, and not the competency of the evidence:

The appellant predicates error upon the refusal of the court to submit certain special issues seeking to have the jury determine whether or not the injuries suffered by Hugh R. Perry, “independent and exclusive of the hernia,” caused him to be incapacitated for work, either permanent or temporary, and, if temporary, the number of weeks it would last. The appellant claims that the injuries should have been determined separately in view of the following provision of Section 12 of article 8306 which was applicable: “Where the employee sustains concurrent injuries resulting in concurrent incapacities, he shall receive compensation only for the injury which produces the longest period of incapacity; but this section shall not affect liability for the concurrent loss or the loss of the use thereof of more than one membér, for which member compensation is provided in this schedule, compensation for specific injuries under this law shall be cumulative as to time and not concurrent.” It is believed that in this case error may not be predicated upon the ruling of the trial court in refusing to submit the three issues above complained of. By the court’s charge the jury were required to find whether or not appellee sustained (1) “a hernia,” and (2) “concurrent injuries to more than one portion or part of his body,” and then to find whether or not such “injuries, if any,” resulted in “total incapacity to work,” and whether or not such total incapacity to work was “permanent,” or, if not, the “period of time it would last.” The jury were still further asked to find, viz.:

“Q-5. What will be defendant’s (Hugh R. Perry) percentage of incapacity, if any, to labor following his period of total incapacity to labor?
“Q-6. For what period of time will defendant’s (Hugh R. Perry) period of incapacity referred to in Q-5 last?”

In view of the appellee’s alleged claim for compensation, all of these questions were broad enough to cover all findings necessary as a basis for compensation under sections 10 and 11 of article 8306.

The appellee’s claim for compensation was not based on two distinct injuries, each made specific injuries under the law, nor upon two distinct injuries which were different in character and which were not both together partially or totally disabling for work. He expressly claimed that he sustained internal hurts in different portions of the body in the one accident, and that all of such hurts together as a single injury totally and permanently disabled him for work and unfitted him from earning substantial wages. The jury’s findings being in support of appellee’s contentions, the court, as allowable for him to do, fixed the compensation under section 10 of article 8306. The provision of law relied upon by the appellant, and as above set out, is a part of the act of 1917 (Acts 1917, p. 274), amending the law of 1913 (Acts 1913, p. 431). The law of 1913 did not contain the provision above quoted. The object of the present provision is evidently to limit, as was not done before the amendment, the compensation for the specific injuries set forth in the preceding sections so far as not to permit double or concurrent compensation. The claimant would not be entitled to receive his average weekly wages for each distinct injury, which was different in character, and which were not both together partially or totally disabling for work. This provision .would not have application to the appellee’s present claim, restricting him to compensation for the longest disability, for he did not in any wise claim two injuries different in character, and which were not both totally or partially disabling for work. He claimed only that the hernia, which was not an injury specially scheduled in section 12, and the other bodily hurts together constituted permanent and total disability for work. And even though the jury had found, as the court’s charge authorized, his injuries all together had resulted in partial disability for work, his compensation would have been measured nevertheless by section 11.

We have considered all the remaining assignments of error and concluded that they should be overruled.

The judgment is affirmed.