author: BARCUS, J.

text:
    MATRIMONIAL MUT. ASS’N OF TEXAS et al. v. RUTHERFORD.
    No. 1068.
    Court of Civil Appeals of Texas. Waco.
    June 11, 1931.
    Rehearing Denied Sept. 17, 1931.

      Spell, Ñaman & Howell, of .Waco, for appellants.
    Bryan & Maxwell, of Waco, for appellee.
   BARCUS, J.

In 1928, appellant S. F. Lamb and three others organized the Matrimonial Mutual Association, an unincorporated association. Shortly thereafter S. F. Lamb and wife, G. O. Lamb, purchased the interest of his three partners in the association. S. F. Lamb testified that, after he bought out his three partners, he became the sole owner of the association ; that he was the manager and owner thereof; that no one else had any interest in the company; that they were doing business -as a partnership, and that he and his wife were running it; that he personally bought out his partners’ interest; that, of the $1.25 paid by each certificate holder on each assessment, he received 25 cents for his part and that $1 thereof was used to pay the claims of the beneficiaries; that on May 6, 1930, he sold the association and all of its assets to M. L. Chandler, Jr., who assumed all of its liability.

The purpose of the association was to provide for the payment of a certain sum of money upon his marriage to each person who took out a certificate of membership. The general plan being that for $15 the association issued certificates of membership to those applying for same. Said certificate provided that, when any member married, each other member would pay $1.25, $1 thereof going into a fund to pay the amount due on the certificate and 25 cents to the owners of the association. The certificate stated that the association would pay to .each member who married after he had been a member' three months and before six months $250, and after six months and before nine months $500, and after nine months and before one year $750, and after one year $1,000. The certificates further provided that no member would be liable for more than $1.25 when any member married, and that the association would not be liable to any certificate holder for more than the amount actually collected on the specific call for each certificate holder. The constitution and by-laws were made a part of the contract, and they provided, when any member married, he should file proof thereof with the officers of the association who should levy an assessment against the certificate holders for $1.25, and that all money received from any call not used to pay same should be put in a reserve fund out of which matured certificates could be paid, so that one call would pay for four claims if the certificate holder had not been a member more than six months or two claims if they had not been a member for more than nine months at the time they married.

In 1929, appellee took two certificates, one for himself and the other for Ludie Mae Gibson. After the certificates had been in effect more than six months, he and Miss Gibson married. He filed proof of his marriage and delivered the certificates to the association and requested the payment of the $500 on each certificate, said proof of marriage having been filed on the 8th or 9th of February, 1930. No assessment was levied or made against the membership to pay either of said certificates that had been issued to appellee and Miss Gibson. The by-laws and constitution of the association provided that, when a claim was filed, an assessment should be made for $1.25 and each certificate holder was required to remit within ten days after receiving notice, and the association obligated itself to pay each certificate within ninety days after a claim therefor was filed.

This suit was instituted by appellee against-S. F. Lamb, G. O. Lamb, and M. L. Chandler, Jr., doing-' business under the name of the Matrimonial Mutual Association, for _ $1,000, the full amount of the two policies, appellee alleging that he had made demand for the payment thereof which had been refused, and that the owners and officers of the association had failed and refused to mate a levy to pay the certificates, and further alleged that there was sufficient funds on hand in the reserve fund with which to pay same at the time he filed his claims.

Appellants, in addition to a general demurrer and general denial, alleged that no assessment was made against the membership to pay either of said certificates, because in their opinion, if an assessment had been made, it would not have been paid by reason of the fact that there was at said time a large number of claims on file for which no assessment had been levied, and that they were required to levy the assessments for the claims in the order in which they were filed, and that, if they had levied an assessment for each claim filed, it would have resulted in the disintegration and disbandment of 1;he entire membership. S. F. Lamb further alleged that he was not personally responsible, because on May 6,1930, he sold the entire association to M. L. Chandler, Jr., .who assumed all its liabilities.

The cause was tried to the court and resulted in judgment being entered for appellee for $1,000' against S. F. Lamb and M. L. Chandler, Jr., and in favor of Mrs. Lamb, by reason of her coverture.

Appellants contend that the trial court entered an erroneous judgment because there was neither pleading nor proof to show that, if an assessment had been levied against the membership, it would have produced as much as $500 on each policy. They further contend that the testimony shows affirmatively that, if an assessment had been levied, it would not have produced more than $36 on each certificate or a total of $72, and that to said extent the judgment is. excessive, their contention being that the burden rested upon appellee to both allege and prove the number of certificate holders and facts showing that, if an assessment had been levied, the full amount of $500 would have been collected. All of these contentions are overruled. The law seems to be well settled in this- state that, in order to relieve themselves of liability for the full amount called for in a policy similar to the ones sued on here, the duty and responsibility rests upon the association to plead and prove the number of members and the amount that would have been received if an assessment had been made, where the officers charged with the duty thereof have failed or refused to levy .an assessment. Ft. Worth Mutual Benevolent Ass’n v. Golden (Tex. Civ. App.) 287 S. W. 291; Supreme Council of A. L. of H. v. Anderson, 61 Tex. 296; Waco Mutual Life & Accident Ass’n v. Alford (Tex. Civ. App.) 289 S. W. 93; Sweetwater Progressive Mutual Life & Accident Ass’n v. Allison (Tex. Civ. App.) 22 S.W.(2d) 1107, and authorities there cited. While appellants did offer some evidence tending to show that there were not a thousand members in the association at the time appellee filed his claims, and that an assessment levied against the membership would have produced' a very small sum of money, there was no pleading to support said testimony, and the evidence with reference thereto is very unsatisfactory as well as conflicting. It is a well-settled principle of law that there must be both pleading and evidence, to support' the judgment of a trial court. .Since appellants admittedly failed and refused to levy the assessment on'the claims filed by appellee, and since there was no pleading that in any way raised the issue that a call or assessment would not have pror duced the full amount thereof, it does not lie in appellants’ mouths to now say that they are not responsible therefor, because in their opinion a call or assessment would not have produced or resulted in any money being paid by-the membership on said claims. Appellants cannot, as they are attempting to do, make themselves the judge, jury, and executioner.

Appellant S. F. Lamb contends that the judgment against him is erroneous because, prior to the time appellee’s claims matured, he sold all of the’ assets of the association to M. L. Chandler, Jr., who assumed all liabilities. At the time S. F. Lamb sold the association, appellee’s claims had fully matured, and it was his duty to have levied the assessment or made the call against the certificate holders for the funds with which to pay same. While under the contract the association was not required to pay appellee the ¿mount thereof until ninety days after the proof of marriage had been filed, it was required to make the assessment and issue the call therefor against the certificate holders, and they were required to make payment within ten days after receiving said notice, and, if the amount was not paid within twenty days, the member was automatically suspended from the association. The ninety-day period was evidently given so that the association would have time to make the call and collect in the funds and remit within said time. Appellant S. F. Lamb did not sell the association until the 6th of May. Appel-lee’s certificates had matured, and the claims had been filed with S. F. Lamb on February 9th. It was the duty of S. F. Lamb, when the claims were filed, to make the assessment and issue the call. He could not, by selling the association, relieve himself of obligations that had already matured.

. We have examined each of appellants’ assignments of error and propositions thereunder, and same are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    BERRYMAN v. NORFLEET et al.
    No. 3592.
    Court of Civil Appeals of Texas. Amarillo.
    April 22, 1931.
    Rehearing Denied Sept. 9, 1931.
    See also (Civ. App.) 25 S.W.(2d) 212.

      Williams & Day, of Plainview, and Renfro, Ledbetter & McCombs, of Dallas, for appellant.
    Joiner & Cook, of Plainview, for appellees.
   JACKSON, J.

This suit was instituted by Mrs. M. E. Nor-fleet, joined by her husband, J. E. Norfleet, pro forma, as plaintiffs, in the district court of Hale county, Tex., against the defendant H. H. Berryman, to cancel a deed theretofore executed by the plaintiffs conveying their alleged homestead to the defendant and in the alternative to recover $13,000, the alleged value of said property, and $1,300 per annum for the use thereof.

The plaintiffs alleged that on December 22, 1924, and long prior thereto and at all times since they were husband and wife and on said date were occupying the 200 acres of land in controversy as their homestead.

That on September 9, 1924, they were the owners of sections Nos. 1, 3, 4, 5, 6, and 9, and the N. W. ⅛ of section 7, and 440 acres out of section 2 in block D-10 in Hale county, Tex. That on said date the Texas Security Company held a deed of trust lien against the above-described land to secure the payment of $86,082.55. That on said date the Texas Security Company obtained a valid judgment against the plaintiffs for the sum of $74,347.-77, principal, interest, costs, and attorney’s fees, and a foreclosure of its lien against said land. That on November 3, 1924, the defendant contracted with the Texas Security Company for the purchase of said judgment and lien, and on the 19th of November, thereafter, consummated such contract of purchase and became the owner of said indebtedness and judgment. That on November 3, 1924, the defendant entered into a written contract with J. P. Norfleet by the terms of which he obligated himself to purchase all the above-described lands covered by said judgment lien and also the north 200 acres of section 2 in block D-IO, the homestead of plaintiffs, and which was clear of all debts and incumbrances. That as a part of the consideration for plaintiffs’ lands, the defendant contracted to convey to plaintiffs seven brick buildings clear of all liens, located in the town of Alto in Cherokee county, Tex., at an agreed value of $75,000, and further obligated himself in said contract to rent said buildings in Alto from plaintiffs for a period of two years, beginning January 1, 1925, at and for the price of $500 per month.

A copy of the contract between the defendant and J. P. Norfleet is attached to and made a part of plaintiffs’ petition.

Plaintiffs also alleged that on December 22, 1924, the north 200 acres of said section 2 in block D-10, in addition to being the homestead of the Norfleets, was the separate property of the plaintiff M. E. Norfleet. That on said date the defendant knew that the judgment against the plaintiffs amounted to $74,-347.77 and that the lien securing the payment thereof had been foreclosed against all of the above-described property save and except the 200 acres claimed and occupied by the plaintiffs as their homestead. That on said date the defendant induced M. E. Norfleet to join her husband in the execution of a deed conveying said 200 acres of land to the defendant, by falsely promising and fraudulently representing that if she would execute the deed with her husband he would carry out the provisions of the written contract, pay off and satisfy the judgment he had purchased against the incumbered land, and convey to plaintiffs the seven brick buildings in Alto, Tex., for which he would pay as rent per month the sum of $500 for a period of two years. That by reason of said false and fraudulent representations, the plaintiff's, and especially M. E. Norfleet, were induced to execute the deed to the homestead property. That as a matter of fact at the time the defendant acquired said judgment and contracted with J. P. Norfleet for the purchase of said lands and at the time he made the representations by which M. E. Norfleet and her husband were induced to convey to him their 200-acre homestead which was also the separate property of M. E. Norfleet, he did not intend to carry out said contracts nor the promises made to induce the plaintiff's to convey him their homestead, but all such agreements, contracts, and promises were fraudulently made and were a part of the scheme on the part of the defendant to fraudulently acquire plaintiffs’ land and especially said 200 acres. That the plaintiffs relied and acted upon such agreements, promises, and representations in the execution of the deed to said homestead; that the defendant at the time of such representations had in mind and did, in fact, thereafter, have execution issued and levied on all of said encumbered property, had it advertised and sold, and on the 3d of March, 1925, purchased the same at sheriff’s sale for the sum of $6,000 and secured a sheriff’s deed thereto. That the defendant has failed and refused to convey to plaintiffs the seven brick buildings in Alto, Tex., and refused to pay plaintiff any money for the 200 acres of land acquired by the deed from plaintiffs. That by reason of the fraud perpetrated on the plaintiffs and especially M. E. Norfleet, she is entitled to a cancellation of the deed and a recovery of the title and possession of said 200 acres of land.

The plaintiffs alleged' in the alternative that if the title to said 200 acres of land has been conveyed by the defendants to innocent purchasers or lienholders, that they are entitled to a money judgment against the defendant for the full value of said 200 acres of land, which they alleged to be the sum of $13,000. They also alleged that the annual value for the use of said 200 acres since it was conveyed to the defendant is of the reasonable value of $1,300.

The defendant answered by general demurrer, numerous special exceptions, and general denial. He specially denies that he ever made any representations which he did not intend to perform, and alleges that he was at all times ready, willing, and able to comply with and perform every promise made by him to either of the plaintiffs and to perform all the obligations under the contract between him and J. P. Norfleet.

That by the terms of the contract J. E. Nor-fleet agreed to convey to the defendant all of said-lands, including the 200-aere homestead involved in this controversy, at the price of $29.30 per acre. That at the time of said contract the 200 acres was the community property of J. P. Norfleet and his wife and they executed the deed, sought to be canceled, to this defendant, and if said 200 acres of land was the homestead, it was abandoned as such long before the institution of this suit, and the plaintiffs are estopped from recovering said land or any damages on account of any or all of said transactions complained of. That on November 9, 1925, the defendant and J. E. Norfleet made a complete settlement of all trades and agreements theretofore made, by the following contract:

“Dallas, Texas, November 9, 1925. $1750.00
“Received of H. H. Berrymán the sum of $1,750.00 in full settlement of all amounts due me on any and all trades we have heretofore entered into, verbally or in writing, whether said trades have been consummated or not. This being a full receipt and release of H. H. Berryman.
“[Signed] J. P. Norfleet.
“Witness: M. C. Parrish.”

The defendant pleads the statutes of two and four years’ limitations. In the alternative the defendant alleges that if the court finds that plaintiffs have any equities arising out of the transactions pleaded, that the defendant likewise has equities which should be protected, and in this connection shows that by the contract with J. P. Norfleet, the defendant was to acquire 4,960 acres of land at $29.30 per acre. That the defendant was to pay $73,280 cash and convey the Alto property to J. P. Norfleet for the sum of $75,000. That J. P. Norfleet induced the defendant to purchase the judgment of the Texas Security Company to prevent a sheriff’s sale and to assist the- plaintiffs in carrying out the contract with the defendant. That at the request of J. P. Norfleet, the defendant paid the Securities Company $10,000 as a consideration for stopping the sheriff’s sale and for an option to purchase the judgment and in acquiring said judgment expended the total sum of $74,347.77, with accrued interest thereon. That one of the purposes in purchasing the judgment and having it transferred to the defendant was to keep the debt and judgment lien therein in effect as a first and prior lien against the land so it might be sold under execution to eliminate subsequent and inferior liens which existed. That the defendant advanced other sums to the plaintiffs, all of which was for the use and benefit of the community estate and for the purpose of assisting in clearing the title to said lands so the plaintiffs could perform said contract and convey all of said lands, except section 5, to the defendant clear of incumbrances as the contract provided. That the defendant, in carrying out this understanding and for the purpose of assisting the plaintiffs, paid out the aggregate sum of $86,829.52. That the defendant acquired good title to but 3,-721.9 acres covered by the contract, including the homestead, which at the agreed value was the sum of $109,051.67; hence, if plaintiffs had complied with their contract, after deducting the $75,000, the agreed value of the Alto property, from the agreed value of the acreage acquired by the defendant of $109,-051.67, the defendant would have been required to have paid plaintiffs in money approximately $34,051.67. That such sum was due until the final settlement made between the defendant and J. P. Norfleet on November 9, 1925, and the plaintiffs were due the defendant, before the Alto property could be conveyed to them, $52,777.85. That if it is determined that there has been no final settlement, that he is ready, able, and willing to convey the Alto property to plaintiffs if they are required to do equity and within a reasonable time pay him said sum of $52,777.85 with interest thereon, the insurance, taxes, and repairs he has expended on the Alto property.

In reply to the defendant’s answer, in a supplemental petition, the plaintiffs pleaded a general denial, and also alleged that the contract between J. P. Norfleet and the defendant dated November 9, 1925, had no reference to any settlement relative to the Alto property, but related to property in Sulphur Springs, Tex., which J. P. Norfleet alone had purchased, paying therefor in personal property and assuming certain indebtedness, which property was afterwards and on the date of the alleged settlement conveyed back in cancellation of the original contract for the purchase of the Sulphur Springs property. That the plaintiff M. E. Norfleet was not a party to the contract, either as originally made or at the time of its cancellation, and is not bound by any attempted settlement which in any way involves the 200 acres of land in controversy.

By supplemental answer the defendant excepted to the allegations in plaintiffs’ supplemental petition relative to tlie settlement contract and pleaded a general denial.

In response to special issues submitted by the court in his main charge, the jury found, in substance, that the 200 acres of land in controversy was the homestead of the plaintiffs on December 22,1924; that they had not abandoned said property as their homestead prior to the delivery of their deed to the defendant; that the defendant represented to Mrs. Norfleet at the time the deed to the 200 acres of land was signed that he would carry out the contract as made November 3, 1924; that the defendant did not intend at the time he made the representations to Mrs. Norfleet, to carry out the contract of date November 3, 1924; that since November 3. 1924, the defendant has not been ready, willing, and able to carry out the contract of date November 3, 1924; that prior to the delivery of the deed to the 200 acres of land to the defendant, the plaintiffs and the defendant did not know the written contract could not be carried out on the part oí the plaintiffs; that at the time of the delivery of the deed to said 200 acres, Mrs. Norfleet did not know that there was so much against the land to be conveyed to the defendant that the plaintiffs could not carry out the contract as originally made; that Mrs. Norfleet, prior to the delivery of the deed to the 200 acres, knew and consented for the defendant to buy the judgment to stop the sheriff’s sale and assist plaintiffs in carrying out their part of the contract; that Mrs. Norfleet knew that the defendant had bought the judgment prior to the time she delivered the deed to the 200 acres; that Mrs.. Norfleet knew that the property was to be sold under execution prior to the delivery of the deed to the 200 acres; that she agreed that the defendant Berryman might sell the land under execution on the judgment in order to foreclose against outstanding inferior liens on the land; that the defendant Berry-man did not pay out any cash amounts in excess of the sum he contracted to pay in cash with the knowledge or understanding of the plaintiffs; that Mrs. Norfleet did not agree and consent that the defendant could retain the title to the Alto property until the plaintiffs had paid him the amounts, if any, the defendant had paid out in excess of the sums he had contracted to pay in cash under the contract of November 3, 1924; that the reasonable cash market value of the 200 acres of land in controversy is $13,000; that the annual rental value of said 200 acres of land is $1,300.

In response to special issues requested by the defendant and submitted by the court, the jury answered, in effect, that the.defendant Berryman refused to perform his obligations under the contract .of November 3,1924; that Mrs. Norfleet did not agree that the 200 acres of land involved in the controversy should be part payment for the Sulphur Springs property; that the total amount of cash paid out by the defendant Berryman in the attempt to carry out the contract of November 3, 1924, is $86,829.52; that the defendant had expended for repairs on the Alto property since November 3, 1924, $2,000; that Mrs. Norfleet did not. know that the sheriff’s sale had been made before the deed to the 200-acre homestead was delivered to the defendant; that the. deed from J. F. Nor-fleet to Mrs. M. E. Norfleet conveying the 200 acres of land in controversy was delivered to Mrs. Norfleet by J. F. Norfleet; that the settlement made between the defendant and J. F. Norfleet on the 9th of November, 1925, and the written agreement signed by J. F. Nor-fleet was not a settlement of all matters between them concerning the exchange of properties provided for in the contract of November 3, 1924.

In response to special issues submitted by the court at the request of the plaintiffs, the jury found, in substance, that at the time the plaintiffs deeded the 200 acres to H. H. Berry-man, M. E. Norfleet believed and relied on the statements of the defendant that he would carry out the contract; that the receipt and release signed by J. F. Norfleet on November 9, 1925, was not intended by him to release the defendant from any obligations except that pertaining to the Sulphur Springs property ; that Mrs. Norfleet did not, after the execution of the deed to the 200 acres on December 22, 1924, agree that said 200 acres should be applied on the purchase of the ’Sul-phur Springs property.

The court finds as a fact that since the execution of the deed by plaintiffs, conveying the title to the 200 acres of land in controversy to the defendant, he has incumbered the title and permitted it to be incumbered to such an extent that the plaintiffs could not acquire title to said land free of incumbranc-es by a cancellation of the deed.

On these findings the court enters judgment for M. E. Norfleet against the defendant for the sum of $13,000, together With interest thereon at the rate of 6 per cent, per annum from March 3, 1925, and for costs. From this judgment the defendant prosecutes this appeal.

The appellant presents as error the action of the trial court in overruling his general demurrer and special exception to plaintiffs’ petition because the representations alleged are not such false promises as constitute fraud.

The general and so-called special exception overruled by the court were, in effect, but general demurrers. Lee v. First National Bank (Tex. Civ. App.) 254 S. W. 394; P. & S. F. Ry. Co. v. Shell et al. (Tex. Civ. App.) 265 S. W. 758; Shaller v. Allen (Tex. Civ. App.) 278 S. W. 873. And all reasonable in. tendments will be indulged in favor of the pleading. Stone et al. v. Day, 69 Tex. 13, 5 S. W. 642, 5 Am. St. Rep. 17; Cochran et al. v. People’s National Bank (Tex. Civ. App.) 271 S. W. 433. The allegations of the appel-lees were, in our opinion, good as against such exceptions.

The appellant’s assignment urging as error the action of the trial court in refusing to direct a verdict in his behalf because of the insufficiency of the testimony to present any issue for the determination of the jury, is overruled. Norfleet et al v. Berryman et al. (Tex. Civ. App.) 25 S.W.(2d) 212.

The appellant, by a proposition based on what he terms his supplemental assignments, urges as error the action of the trial court in rendering judgment against him because the jury did not find that M. E. Norfleet, the plaintiff, relied upon the false promises alleged in delivering the deed, nor that she would not have delivered the deed but for such false promises.

The record discloses that the court convened on the 22d of September, 1930, and adjourned on October 25, 1930, and on that day the appellant filed his motion for a new trial, which contains forty-four assignments of error. That on January 12, 1931, the defendant filed what he terms supplemental assignments of error, upon which this proposition is based. This assignment does not present fundamental error and is not entitled to consideration. Phillips Petroleum Co. v. Boles (Tex. Com. App.) 276 S. W. 667; Dallas Tailors’ Supply Co. et al. v. Goen (Tex. Civ. App.) 25 S.W.(2d) 224; Sparks v. Saltillo Independent School District (Tex. Civ. App.) 19 S.W.(2d) 814; Baldwin v. Morton et al. (Tex. Civ. App.) 19 S.W.(2d) 948; Unique Illustrating Co. v. Withers et al. (Tex. Civ. App.) 33 S.W.(2d) 1074.

However, the record discloses that in response to a special issue requested by the plaintiffs, the jury expressly found that M. E. Norfleet believed and relied- on the representations of Mr. Berryman that he would carry out his contract. Mrs. Norfleet testified without contradiction that she would ,not have executed the deed to the 200 acres of land if she had known thát Mr. Berryman was not going to convey them the Alto property and pay them the $500 per month for the rental thereof, according to the contract. There being no evidence in the record to contradict this testimony, and many circumstances to corroborate her statement, it was not error to fail to submit such issue to the jury. Wintz v. Morrison, 17 Tex. 372, 388, 67 Am. Dec. 658; Denham v. Trinity County Lumber Co., 73 Tex. 78, 11 S. W. 151; Lamar v. P. & S. F. Ry. Co. (Tex. Com. App.) 248 S. W. 34.

If the issues submitted did not contain all the necessary elements, they contained some of the indispensable elements authorizing the plaintiffs’ recovery for fraud, and where one or more of the necessary elements are submitted, the burden was on the appellant, if he desired a more complete submission, to either object thereto or request a further special issue. McDaniel et ux. v. Orr (Tex. Com. App.) 30 S.W.(2d) 489.

The appellant’s contention that the use of the word “deeded” in the issue requested by the plaintiffs and given by the court constitutes reversible error, is not tenable in view of this record and the other findings of the jury.

Appellant,' by several assignments, challenges the sufficiency of the testimony to support the findings of the jury to the effect that the appellant was guilty of fraud and in substance that the appellees had not abandoned their homestead.

Without setting out the testimony in detail, it is our opinion that the testimony was sufficient to authorize the finding of the jury on these issues.

The appellant, by proper assignment, attacks the sufficiency of the testimony to support the finding of the jury that he refused to perform his obligations under the contract.

It will be noted that this issue was submitted by the court at the appellant’s request, and having himself sought a finding of the jury on this issue, he cannot be heard to complain. Farmers’ Life Insurance Co. v. Wolters et al. (Tex. Com. App.) 14 S.W.(2d) 58; Shaw v. Shaw (Tex. Civ. App.) 28 S.W.(2d) 173.

The appellant urges as error the action of the trial court in admitting, over his objection, the oral testimony of J. F. Norfleet that the instrument signed by him in the Jefferson Hotel on November 9, 1925, had reference only to the Sulphur Springs property, because such testimony varied the terms of the written instrument and violated the parol evidence rule.

The testimony discloses that at the time the deed to the 200-acre homestead was executed by M. E. Norfleet and her husband, with the knowledge and approval of the appellant J. F. Norfleet executed and delivered to her a deed to said 200 acres of land. This constituted the 200 acres of land the separate property of Mrs. Norfleet, and inasmuch as the property was their homestead, the conveyance in no way constituted a fraud on appellant or any other of the creditors of ap-pellees.

The testimony is uncontroverted that Mrs. Norfleet was not present and knew nothing of the execution of the instrument termed a receipt and release, dated November 9, 1925. There is no testimony that J. F. Norfleet was acting as her agent and no testimony that the contract was made for the ■benefit of her separate estate. The declarations of the husband made in the absence of the wife cannot prejudice her rights to her separate property. Speer on Married Women, § 378; Ann Ross v. Emma Kornrumpf, 64 Tex. 391; Clapp v. Engledow et al., 82 Tex. 290, 18 S. W. 146; Qualls v. Fowler et al. (Tex. Civ. App.) 186 S. W. 256, 257.

If this instrument was such a written contract as the consideration therefor could not be shown by parol evidence, Mrs. Norfleet was not a party to such contract and the parol evidence rule could not be invoked against her. “The rule as to the exclusion of oral testimony to contradict or vary the terms of a written contract is applicable only as between the parties to such contract. A stranger to such written instrument is not bound by its terms and therefore he cannot hold other parties 'bound by the same.” Bagley v. Pollock (Tex. Civ. App.) 19 S.W.(2d) 193, 195 and authorities cited. See, also, Long Bell Lumber Co. v. Futch (Tex. Civ. App.) 20 S.W.(2d) 1076.

The appellant’s assignment challenging as error the refusal of the court to submit his reguested special issue as to whether the plaintiffs, or the plaintiff J. F. Noflfleet, breached the contract between himself and appellant, or was unwilling or unable to perform the obligations or any of them therein contained, is overruled. The issue as requested is duplicitous, and ⅝ finding thereon, in view of the other issues found against appellant, would not have been a defense to the cause of action urged by Mrs. Norfleet.

A copy of the contract entered into between J. F. Norfleet and the appellant is attached to and made a part of appellees’ petition and the terms and provisions thereof, so far as necessary to a disposition of this appeal, are set out in the case of Berryman v. Flake (Tex. Civ. App.) 20 S.W.(2d) 803, to which we refer to avoid a restatement thereof.

The testimony shows without controversy that the unimproved land obtained by appellant under the sheriff’s deed had a market value of $30 to $35 per acre. The appellant testified that the sheriff’s deed discloses the number of acres he obtained at the sheriff’s sale. The sheriff in his deed conveyed to appellant 3,656.36 acres of land. At the contract price therefor, $29.30 per acre, the appellant received, independent of the 200 acres and independent of the half section belonging to Flake, land valued at $107,331.34. The jury found, in answer to a special issue requested by appellant, that the appellant had paid out $86,829.52 in acquiring the 3,656.36 acres of land by the sheriff’s deed. None of this money was paid out on the 200 acres of land involved in this controversy. These facts are in the record without contradiction.

The findings of the jury that the 200 acres of land involved in the controversy is of the market value of $13,000, that appellant had refused to carry out the contract of November 3, 1924, and the record revealing the fact that the cancellation of the deed from appellee and her husband to the appellant of the 200 acres of land would not vest title in her because of the incumbrances placed against it by the appellant,' entitled her to recover the $13,000.

The appellee sued in the alternative to recover the value of the land in controversy, alleged to be $13,000, and the annual rental thereof alleged to be $1,300. The jury found both of these issues in her favor, but thp court rendered judgment that she recover $13,000 with 6 per cent, interest thereon from March 3, 1925. There is no prayer for interest on the amount of recovery, and the appellant’s contention that the court committed error in allowing interest on the $13,000 from March 3, 1925, is sustained. Brooks Supply Co. v. Bank (Tex. Civ. App.) 292 S. W. 631.

Appellee filed no' cross-assignment to the action of the court in refusing to enter judgment for her for the value found by the jury as the use of her property. Hence, the judgment is here reformed, allowing appellee to recover the sum of $13,000, with 6 per cent, interest thereon from the date of the judgment in the trial court, and as so reformed, is affirmed.


author: GALLAGHER, C. J.

text:
    FIDELITY BENEFIT ASS’N v. WYLIE.
    No. 1079.
    Court of Civil Appeals of Texas. Waco.
    July 9, 1931.
    Rehearing Denied Sept. 17, 1931.

      Collins & Martin and M. S. Wood, all of Hillsboro, for appellant.
    Frazier & Averitte, of Hillsboro, for appel-lee.
   GALLAGHER, C. J.

Appellee, A. D. Wylie, instituted this suit in the district court against appellant, Fidelity Benefit Association, to recover the sum of $750 on a certificate issued to him by appellant for the loss of an eye. He alleged that appellant was engaged in the business of insuring for a consideration against the loss of life, against certain specific injuries and against the loss of the sight of the eyes; that appellant for a valuable consideration issued and delivered to him the policy or contract of insurance sued upon; that appellant promised therein to pay him the sum of 50 cents •collected from each member of the association in good standing, not to exceed $750, for the irrevocable loss of one eye upon satisfactory evidence that vision from such eye was irrevocable or that the loss of such was total; that thereafter he lost the sight of his right eye; that the loss of vision therein was total and permanent; that he made due proof thereof and thereupon became entitled to receive the indemnity so promised. He further alleged that he presented his claim to appellant’s secretary and general manager; that upon consideration thereof said secretary and general manager admitted that his contract of insurance bound appellant to pay the promised indemnity whether the loss of his eye resulted from'disease or accident, and that such was the proper construction of the language used in such contract; that said secretary and general manager required as proofs of loss certain affidavits; that he procured the same and expended time and incurred expense in doing so; that he complied with all the requirements respecting proof of loss demanded of him and that appellant was by reason of the premises estopped to deny liability for the loss of said eye.

Appellant pleaded that the contract sued upon, properly construed, did not provide for the payment of the promised indemnity for the loss of an eye unless such loss was the direct result of an accident; Appellant further pleaded that at the time of the issuance of the benefit certificate sued upon it was a local mutual aid association, operating as a voluntary association under a constitution and by-laws duly adopted; that thereafter the legislature at its Regular Session in 1929 enacted chapter 274 of the General Laws of said section (Vernon’s Ann. Civ. St. arts. 4875a — 1 to 4875a — 31); that said act regulated local mutual aid associations such as appellant was, and provided rules and regulations for the conduct of their business, and especially provided the kinds of-benefits they were permitted to pay; that said act further provided for the acceptance by existing associations of the benefits and terms thereof and that existing, associations which did not accept the same should discontinue business and dissolve not later than six months after said act took effect; that appellant,_ within the time specified, duly accepted said act and qualified itself to transact.business thereunder; that said act did not provide for the payment of any such benefit as claimed by appellee; that though said policy was issued and delivered before the passage of said act, same necessarily became a part of such policy; and that the same must be construed so as to conform to the provisions of said act. Appellant also alleged £hat its said secretary and general manager had no authority to construe the contract sued upon nor to promise to pay appellant’s claim.

The case was tried to a jury. The certificate or contract issued to appellee was introduced in evidence as a whole without objection. Paragraphs 8 and 9 thereof, upon which appellee’s claim is based, are as Widows:

“8th. The said member further agrees to pay all assessments levied by the officers of this Association, as needed the sum of ($.60) Sixty Cents within fifteen days from date of call 'for same, should any member in this Class, while in good standing in the Association lose the irrevocable loss of one eye, or lose either hand or either foot.
“9th. The Fidelity Benefit .Association further agrees to pay to the member named herein the sum of Fifty Cents collected from each member in good standing, in this Class, said amount not to exceed ($750.00) Seven Hundred and Fifty Dollars for the total loss of one hand or one foot through accident, if said hand or foot be severed at or above the wrist or ankle; or for the irrevocable loss of one eye, upon satisfactory evidence that vision from such eye is irrevocable or that the loss of such is total. Should more than one .of the above named losses occur as a result of the same accident, then in that case only one such benefit shall be paid.”

Appellant testified affirmatively that he did not have any character of accident to his eye before he lost the sight of it, but that such loss resulted from an attack of neuralgia. The testimony with reference to the substance of the conversation between appellee and Sessions, appellant’s secretary and general manager, was conflicting. The case was submitted on two special issues, which .issues with the answers of the jury thereto were as follows:

“(1) Do' you find from- á preponderance of the evidence that the plaintiff, A. D. Wylie, permanently lost the sight of his right eye after May 28,1928? Answer: Yes.
“(2) Do you find from a preponderance of the evidence that Thos. L. Sessions as agent and representative of the Fidelity Benefit Association, after proofs were filed, agreed to pay to A. D. Wylie the sum stated in the policy for loss of an eye? Answer: Yes.”

The court rendered judgment upon said verdict against appellant in favor of appel-lee for the sum of $750 and costs. Appellant presents the same for review.

Opinion.

Appellant presents various assignments in which it contends that paragraph 9 of the contract sued on, as hereinbefore set out, properly construed, binds it to pay the indemnity promised for the irrevocable loss of an eye only when such loss results from accident, and that since the loss of appellee’s eye Or the sight therein did not result from accident, he showed no right to recover herein. Appellant concedes that when a contract of insurance, considered as a whole, is by reason of confusion or ambiguity, susceptible of two constructions, the one most favorable to the insured will be adopted and enforced. The citation of authorities upon such proposition is therefore unnecessary. Appellant’s specific contention is that the contract sued on, in so far as it provides for the payment of indemnity for the loss of an eye, is neither uncertain nor ambiguous nor susceptible of two different constructions, but that the same clearly and definitely provides that such indemnity shall be paid only when an eye or the vision therein is lost as the result of an accident. Paragraph 9 of the contract sued on provides for the payment of an indemnity of $750 “for the total loss of one hand or foot through accident * ⅜ ⅜ or for the irrevocable loss of one eye.” The limiting phrase “through accident” is applied therein to the loss of a hand or foot. It is not applied to the loss of an eye, nor is there anything to indicate that such application must necessarily be implied. The provision in the succeeding sentence that if more than one of the above-named losses occur as the result of the same accident, only one benefit shall be paid, is not conclusive in favor of appellant’s contention. If, as contended by appellee, the preceding sentence provides for the payment of the promised indemnity for loss of an eye regardless of the catise of loss, such indemnity would of course become payable upon the loss of an eye by accident. Therefore, if the insured should suffer the loss of both a hand and a foot and also an eye in the same accident, the limitation embodied in said sentence would apply and limit the recovery to a single indemnity. Such application is not necessarily inconsistent with the existence of an obligation on the part of appellant to pay indemnity for the loss of an eye not caused by accident. Contracts of insurance providing for payment of indemnity for the loss of an eye from any cause are not uncommon. Waco Mutual Life & Accident Ass’n v. Alford (Tex. Civ. App.) 289 S. W. 93, 95, par. 4; Stephenville Mutual Life Ins. Ass’n v. Gant (Tex. Civ. App.) 7 S.W.(2d) 119, 120, par. 1; Covington v. Sextet Local Mutual Aid Ass’n (Tex. Civ. App.) 8 S.W.(2d) 679, 680; Id. (Tex. Com. App.) 15 S.W.(2d) 614. None of the authorities cited by appellant-directly sustain its contention. The one most nearly applicable is the case of David v. Fort Worth Mutual Benevolent Ass’n (Tex. Civ. App.) 295 S. W. 944. The opinion in that case was written by Mr. Justice Bar cus of this court. Recovery was sought in that case for total disability. The contract sued on provided for payment of indemnity in event the instired became permanently and totally disabled from accidental means only, and further provided that such disability must be due to bodily injury or disease. It was agreed that the insured, Mrs. David, was totally and permanently disabled and that such disability was wholly caused by disease and not by accident. We held that she could not recover, but based such holding upon consideration of the assessment clause of the contract, read in connection with the stipulation for the payment of indemnity. The assessment clause bound the members of the society to pay an assessment only when a member became totally and permanently disabled from accidental means. There was no provision requiring any member to pay any sum where another member had become totally and permanently disabled by reason of sickness unaccompanied by accident. Since no provision was made for the creation of a fund to pay indemnity for total disability of a member not arising out of accident, we further held that such payment was not contemplated except in cases of disability from disease where the disabling disease arose from or out of an accident sustained by the insured. No such reasoning is applicable in this case, since the assessment clause, being paragraph 8 of the contract as above quoted, provides for the levy of assessments for loss by a member of an eye, hand, or foot, without reference to accident and wholly without qualification or limitation. The opinion in Home Benefit Ass’n v. Brown, 16 S.W.(2d) 834, cited by appellant, was also by this court. The contract of insurance considered in that case provided-for the payment of indemnity to a member should he, through accident, become totally and permanently disabled from engaging in any gainful occupation, but further provided that a member claiming such disability should have been totally disabled and continued to be so disabled for a period of ninety consecutive days. The assessment clause in • that contract provided for the payment of disability assessments only in the event a member became totally and permanently disabled. The insured in that case was struck, by an automobile. As a result of such accident he sustained a broken leg and other injuries. He was totally disabled therefrom for more than ninety days, but his disability was. not permanent. We held that the insured, to be entitled to collect, the promised indemnity, must have been permanently as well as totally disabled, and that such concurring conditions must have continued for more than ninety days before his claim matured. The several provisions of the insurance contracts considered in the other cases cited by appellant were sufficiently specific to reasonably exclude any contention that they were susceptible of different constructions. We think the contract under consideration in this case was susceptible of the construction that the stipulated indemnity was promised for the loss of an eye regardless of the cause of such loss, as contended by appellee. According to the rule conceded by appellant, we must so construe the same.

Appellant presents an assignment in which it states that after the issuance of the contract of insurance sued on the Legislature enacted sa-id chapter 274, General Laws, Regular Session 1929; that said act prescribes rules and regulations for conducting the business of mutual benefit associations, the kinds of benefits such associations may pay, and provides that existing associations may accept the benefits thereof; that appellant, within the time and in the manner allowed by the terms of said act, accepted the benefits thereof and qualified itself to transact business thereunder. Predicated on such statements it contends therein that all outstanding contracts issued by it, including the contract of appellee, thereby became subject to the terms, provisions,. and limitations of said act, and that said act does not provide for nor permit the payment of the benefit or indemnity sued for by appellee herein. Said act provided that any local mutual aid association then doing business might avail itself of the provisions thereof; that any association organized under the provisions thereof should provide for the payment of death benefits only and should not provide for old age benefits nor benefits in case -of accidental injuries or sickness; that any association theretofore organized and paying death, old age, and accident benefits might continue to pay the same. Appellant alleged that it had accepted the benefits of said act and had qualified to do business thereunder, but it wholly failed to prove such allegations. The burden was on it to do so. Grand Lodge of Order of Sons of Hermann v. Prater (Tex. Civ. App.) 2 S.W.(2d) 500, 503, par. 1; American Ins. Union v. Wylie (Tex. Civ. App.) 23 S.W.(2d) 491, 494, par. 3; The Maccabees v. Palmore (Tex. Civ. App.) 33 S.W.(2d) 243, 248, par. 6. We do not think that the situation is materially affected by its failure to submit such proof. The express prohibition contained in said act against the payment of other than death benefits applies only to associations organized thereunder. Associations theretofore organized and merely accepting the benefits thereof are expressly permitted to continue to pay death, old age, and accident'benefits. The payment of any other benefit for which such association might be legally bound under the terms of an existing contract is not expressly prohibited. Said act will not be construed to prohibit such payment by mere implication. Such attempted construction would give it a retroactive effect and render it void as to such existing contracts on constitutional grounds. Jones v. Loaleen Mutual Benefit Ass’n, 337 Ill. 431, 169 N. E. 254, 257; Crawford v. Northwestern Traveling Men’s Ass’n, 226 Ill. 57, 80 N. E. 736, 739, 10 L. R. A. (N. S.) 264; Slaughter v. Grand Lodge, 192 Ala. 301, 68 So. 367, 368, par. 6; Palmer v. Loyal Mystic Legion of America, 86 Neb. 596, 126 N. W. 285, 286; Sage v. Finney, 156 Mo. App. 30, 135 S. W. 996, 999, par. 4; Eminent Household of Columbian Woodmen v. McCray, 156 Ark. 300, 247 S. W. 379, 381, par. 4; Woodmen of the World v. Alford, 206 Ala. 18, 89 So. 528, 534, par. 10; Christensen v. New York Life Ins. Co., 160 Mo. App. 486, 141 S. W. 6, 8, pars. 2 and 3; Bright v. Supreme Council, Catholic Knights & Ladies of America, 183 Ky. 388, 209 S. W. 379, 382, pars. 4 and 5; Modern Woodmen of America v. White, 70 Colo. 207, 199 P. 965, 17 A. L. R. 393, 397; 19 R. C. L. p. 1207, par. 23; 2 Cooley’s Briefs on Insurance, pp. 1105, 1106; 12 C. J., p. 1056, § 699; Id., p. 1057, §§ 702 and 703. Neither said act. nor appellant’s acceptance of the benefits thereof, if it did accept the same, was effective to absolve appellant from the obligations imposed by the terms of its contract with appellee.

The issues above discussed control the disposition of this case and render consideration of other assignments of error presented by appellant unnecessary.

The judgment of the trial court is affirmed.


author: RANDOLPH, J.

text:
    KEYSTONE PRODUCTION CO. v. PACE.
    No. 3582.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1931.
    Rehearing Denied Sept. 9, 1931.
    Slay & Simon, of Fort Worth, and DeMon-tel & Sanford, of Wichita Falls,. for appellant.
    Bullington, Humphrey & King and Weeks, Morrow & Francis & Hankerson, all of Wichita Falls, for appellee.
   RANDOLPH, J.

This suit was brought by the Keystone Production Company of Texas against Geo. L. Pace and Western Oil Corporation, but the case was dismissed without service of citation upon said Western Oil Corporation, and trial was had as between the Keystone Production Company, hereinafter called plaintiff, and Geo. L. Pace, hereinafter called defendant. On trial before a jury and on the verdict of the jury, judgment was rendered by the court in favor of the defendant. From that judgment this appeal has been taken.

On March 14, 1928, the plaintiff and the defendant entered into a contract whereby the plaintiff purchased from the defendant an undivided one-third interest in certain oil and gas leases in Stephens county, Okl., for a total consideration of $113,294.14, of which $25,000 was in money and notes and $88,294.-14 was payable out of one-half of the proceeds of oil or gas sold from the property.

It will not be necessary to describe the leases except the lease involved in this suit, which we will merely identify as the “Bush lease” and state that the portion of the total consideration of the contract applicable to this particular lease was $2,000.

The contract herein was as between Pace as the named first party and the production company as second party, and contained the following provisions, creating the relationship between the parties and imposing upon each the duties required of it and him:

“Whereas, First Party owns outright in his name, the full interest in certain oil and gas leases and part -interest in certain other oil and gas leases and is endeavoring to acquire other leases covering lands located in Stephens County, Oklahoma, described and enumerated with valuation placed on each tract, attached hereto, marked ‘Exhibit A’ and made a part hereof, which description and prices and terms are considered in this contract and sale, and
“Whereas, First Party is desirous of selling an undivided one-third interest in and to the leases he owns in full and a one-third interest of the interest he owns in such leases in which he does not own full interest and a one-third interest in and to the full leases or interests in leases that he is arranging to acquire, and
“Whereas, said Second Party having inspected all of said leases, desires to purchase said undivided one-third interest in said full leases, interests in leases now owned and the full interests and part interests in leases arranging to be acquired,
“Now, Therefore, it is agreed and contracted as follows, to-wit:
“That the total consideration for the said interest sold and to be transferred and assigned to second party by first party is $118,-294.14, $25,000.00 of this to be paid in cash as follows: $15,000.00 with the execution of this contract, $5,000.00 within ten days from date hereof, and $5,000.00 within twenty days from date hereof, said last two payments to be evidenced by promissory notes of even date herewith, drawing eight rate of interest; and the further consideration of $88,-294.14 to be paid out of one-ialf of tbe oil or' gas or either of them that is produced and marketed from said interests in all of said leases that is sold to Second Party, and further out of the sales of the full amount of interest in said leases Second Party is herewith acquiring. In case any sales of said leases are made, such payments out of the oil, gas and lease sales to continue to First Party until the balance of the full consideration herein described is fully paid.
“To effect the carrying out of the terms of the payment of the unpaid balance due First Party on the purchase price enumerated in next above paragraph of this contract,. the Second Party hereby assigns to the First Party one-half of the interest herein acquired by Second Party in the oil or gas produced and saved from said leases, or any part thereof, and hereby agrees to execute proper division orders in favor of First Party for the purpose of delivering same to his credit. The Second Party hereby agrees and by this contract hereby assigns to First Party all of the proceeds from the sale of all or any part of said leases 'to First Party until, either from the proceeds of oil or gas produced or from the proceeds of property sales, or both, the full consideration has been paid to First Party.
“Included in said one-third interest in said leaseholds is a one-third interest in and to all personal property belonging to or appertaining to said leases for the operation of same, not including, however, any drilling equipment, all of which belongs full interest to the First Party and is not included in this Sale.
“As k further consideration for this sale, it is understood, agreed and contracted, that First Party is to control all of the said properties, to do all of the drilling and operating of same, and that the drilling price to be paid for same is $2.50 per foot for the actual drilling; that the cost of derricks on locations, slush pits, water and fuel delivered on locations shall be furnished by both parties hereto, the cost of said drilling and the furnishing of said derrick, slush pits, water and fuel to be paid for rateably to the interests owned, that is, First Party shall pay two-thirds of the same and Second Party shall pay one-third of same. That all materials and furnishings, including casing, cement and cementing, tubing and rods, standardization, power, tanks, and everything incidental to furnishing and finishing the wells, placing the products into tanks, and pipe lines, shall' be a joint cost, payable rateably to the interests owned, including the cost of testing of any sands, tested with Rotary drill pipe testing devices.
“It is further agreed and understood that there are several of the leases included in this sale that require drilling as a part of the original consideration for the First Party obtaining said leases, and that the Second Party hereto agrees that First Party shall proceed with said drilling requirements in order to save said leases and that the said Second Party will pay his pro rata of $2.50 per foot to the First Party as drilling contractor, and his pro rata of derricks, slush pits, water and fuel delivered at location.
“It is agreed and contracted that Second Party will pay First Party his pro rata part of said drilling and derricks on locations, slush pits, water and fuel and all materials and labor (not included in moving, setting up and operating the Rotary drilling machine) immediately when any one of said wells is finished and bill rendered covering same.
“First Party agrees to carry and maintain compensation insurance and to take all of the responsibility in his drilling operations but after well is finished in good order and workmanlike manner, the end of this responsibility ceases as a contractor.
“It is agreed that First Party is to have full charge of making locations and drilling such wells as he deems fit or that may be required to hold the leases or to protect them from offset drilling wells or producers, and that, likewise, said First Party shall have full and complete charge in handling all of the said leases when production is obtained thereon, however, that said Second Party shall have the right to, at any and all times, inspect any and all work and drilling and operating of said properties, including the method of doing said work and cost thereof, and the accounting for all of the expenses of same.
“It is agreed that both parties will endeavor to sell at different times a part Or all of the properties at a fair value and' at the best prices obtainable, and to the best advantage to both parties hereto, and that in case one party deems it advisable to sell any one of the properties or all of same, that he shall communicate any prices made for any such properties to said other Party before sale is made and said other party will be privileged to buy same at the price and terms submitted by First Party or a bona fide buyer.
“It is further agreed and understood that, the price, terms and conditions and deliveries considered, First Party will endeavor to purchase all materials and equipment for operating his drilling rigs, developing and maintaining the leases from Second Party, it being understood that Second Party shall be entitled to make a profit on same, but that his prices must be in accordance with prices of other supply houses for like merchandise.
“First Party agrees that in the handling of the development and operating of said leases, that he will use every effort to do so as economically as good work and material will justify.
“It is agreed that pipe line division orders covering any and all of said leases on which production may be obtained, will be duly executed in favor of both parties hereto, pro rata to the interests owned, except that as long as any unpaid balance is due First Party, of the purchase price and consideration, one-lialf of the Second Party’s oil or gas run settlements will be paid direct to First Party by the purchasers of any such oil or gas, but when said balance of purchase price consideration is paid, then said Second Party will be entitled to and shall receive direct settlement for his full interest from said purchasers of oil and gas. This will also cover lease sales or personal property, that is, after all of the purchase price consideration is paid, Seepnd Party’s part of any lease sales shall he paid direct to them by the purchaser.
“It is agreed that there are certain properties listed and valued herein that First Party does not own the full interest to and he may not be able to deliver a one-third interest as contracted herein, and in that case, the Second Party will only buy and pay for one-third of the interest that said First Party may own or acquire, and that the purchase price consideration will be duly credited with such value as listed under Exhibit ‘A’ of any piece of property that he has failed to deliver covered under this contract; that said credit will apply on the unpaid balance and not the original cash and note consideration of $25,-000.00.
“It is further agreed that the First Party will deliver to Second Party abstract of title covering any and all of the said tracts covered in this sale, together with all of the attorneys’ opinions that he has on hand, and that said Second Party is privileged to have said titles examined at his own cost and that if the title to any piece of property is found defective and such defects cannot be or are not cured by First Party, then Second Party may transfer the interest being purchased in said particular property bach to the First Party and shall have credit for the value at which said property was sold and listed under exhibit ‘A’ on the balance of the purchase price consideration, however, the decline or advance in value of any of said leases by development in the field shall not be cause for claim of credit on any one of said leases.
“Proper assignments and transfers to the interests purchased in all of said leases shall be delivered by First Party to Second Party.
“It is agreed that if other leases or royalties in the vicinity of the properties in this contract, are known to be valuable at prices and terms that either party considers attractive, that he shall notify the other party and if said other party desires and shall put up his part of the purchase price at the time said purchase might be made, said properties will be owned, if so purchased and paid for, two-thirds interest to First Party and one-third to Second Party.”

The plaintiff assigns as error the trial court’s refusal to instruct the jury peremptorily to return a verdict in its favor, “for the reason that the evidence conclusively showed the written contract between the parties to the suit, by the terms of which the plaintiff was the owner of an undivided one-third interest in the lease here in question and by the terms of which plaintiff and defendant were partners in said lease, and it was the duty of the defendant to drill wells on said lease so as to protect the mutual interest of the parties, and the evidence was uncontradicteS that the parties were in such relationship of trust and confidence that the defendant was in duty bound to protect the plaintiff in its interest in the jointly owned property and therefore showed conclusively that the defendant was precluded by the relationship between the parties from attempting to deprive the plaintiff of its interest in the jointly owned Bush lease, and to tiie exclusion of the plaintiff, a new lease or extension lease covering the said property, and therefore conclusively showed that the lease on the Bush land claimed by the defendant Geo. L. Pace was, in fact, at the time of its acquisition and now is, owned as to an one-third interest therein by the plaintiff, and the jury should have been instructed to find for the plaintiff for one-third interest in said lease and for the sum of money shown by the undisputed evidence to have accrued from the oil produced from said one-third interest, less the expense of development and operation.”

We cannot conclude from the record that the “undisputed evidence” sustains plaintiff’s above assignment. On the contrary, the evidence is very much “disputed” and conflicting. The Bush lease was included in the original lease and therefore came under the terms of the partnership between plaintiff and defendant. The Bush lease covered forty acres of land and required the drilling of four wells. It appears that the defendant seasonably began the drilling of one of the wells, but that this well was lost at an approximate depth of 1,400 feet., The defendant immediately moved his drilling rig about 50- feet north of the first location and began drilling a well and continued same to a depth to fully test out the producing sands in the vicinity, which were above a depth of $1,700 feet, and in said second well salt water was struck.

The defendant, in answer'to the claim of plaintiff (Horwitjs Bros, being the owners of the plaintiff company) that the Bush lease, at the time it was developed under its renewed lease to the defendant, and the proceeds therefrom, belonged to the partnership between the plaintiff and defendant, contends that the relationship of partners had terminated on October 30tb, so that there was no obligation upon the part of the defendant to allow the .plaintiff an' interest in subsequently acquired leases. Defendant further contends that the plaintiff (Horwitz Bros.), forbade him from further drilling on the Bush lease, and that it by its acts terminated said lease and the partnership between the parties. To support this contention the defendant testified as follows:

“We had pretty well caught up with our drilling, and I wanted to put a Star machine there and see what we could do with it, and drill another well on it. He said t-hat I had drilling rigs and wanted to drill all the time, that I wanted to drill more than he because I had the rigs, and he did nof? want to drill any more on the Bush lease; that he had investigated it and did not think it was worth it; so, after he made the complaint and investigation, he did not think there was a chance to make a well of it and did not want to spend any more money. That was about 60 days after the first well was drilled, in July or August.
“They (Horwitz) refused to drill it before it did run out, and after it run out I asked •them to come back in and they wouldn’t.
“At the time the Bush lease was acquired, there was a producing well on the Allen tract adjacent, but there had been three dry holes drilled around the lease, and there were three more between our Bush lease and our production on the south and east. There were several dry holes between the Empire lease and the production on the northwest and the Bush lease.
“After we acquired the Bush lease on March 8, 1928, or contracted to acquire it by drilling four wells on it, and before I made the contract with the Keystone Production Company, we had drilled the Allen well, 400 feet east of the Bush lease, a little deeper and it was making more production — it was bigger than it came in at. The original contract with Mr. Bush provided that I should begin a well 30 days after the date of the lease, which would be on or about April 8th. I started that well in compliance with the contract. The head driller was E. N. Keowen, or ‘Pewee’ Keowen; it was my rig and I'was the contractor, but Keowen was the head driller, and had actual charge of looking after the drilling of the well. Mr. Frank Pace, my nephew, Mr. Floyd Jones, production superintendent for the Keystone Production Co., and I, all, would confer on matters and were looking after it.
“The general horizon of the production there is about 1630 feet, whfere we were due to strike the Comanche sand. I contracted to go 1800 feet or to oil and gas in paying quantities at a lesser depth. After we started the well, we went down with it, diligently proceeding to test the Comanche-Dunean sand at 1500 to 1600 feet, but the first hole we lost around 1500 feet. That was my loss, and I moved over and began another hole, went right down with it, and found a showing of oil in the proximity of the depth that the general horizon of oil was. We made an effort to save that well; set pipe, cemented and drilled out the cement later when it had set. We did everything that we knew to do, in the light of our experience and as an operator, to save that first well. I had a two-thirds interest and the Keystone Production Company had a one-third interest in the lease. We drilled down to 1680 feet and at that depth we had gone through the possibility of the sand. I think there are some wells in that country, quite a piece from this property, where oil has been found below the depth of 1680 feet or below the Duncan sanjl at 1800 feet, but not in that immediate area. It-would not have taken a great deal of expense to have pushed that well down to 1S0O feet; it would have taken some risk; it wouldn’t have been an awful lot of time if we had not been looking for sand.
“We completed this well to our satisfaction and the satisfaction of the drillers, as a salt water well, on May 9, 1928. We drilled the well at the particular location that we did because that was closest to production. We had the Allen well producing there 450 feet to the east. The well stayed there for a while after we set the casing, because we wanted to move a Star rig on there and test it out a little further. We set the casing, cemented and let it harden, and then drilled it, swabbed it out, and tried to make a well of it for a few days, and not knowing exactly what to do with it and needing the rotary rig on another lease, we moved the rotary rig off. After we let it set there awhile, we consulted Mr. Horwitz two or three times about moving the Star rig back on the lease. At first both he and I were undecided. We thought it would be a very good idea to do that, but we could not get up there with the Star machine at first, it had work. At a later date when the Star machine was available, he did not want to spend any more money on the Bush lease. I wanted to carry out our contract with the land owner, Mr. Bush, and I thought that there was a fair chance of making a well there at some greater depth.
“Mr. Bush is an old gentleman, about 75 of 76, I think. I talked to him several times about the lease. He wanted us to do something, if we were going to, about drilling his lease. 1-Ie said he had given it to us, practically, and he wanted it cancelled or drilled. He said that we had not finished our contract on the first well by drilling to 1800 feet. I told Mr. Horwitz what Mr. Bush said, and I told him that I would either have to go back and continue the well on down to 1800 feet in order to comply with the contract with Mr. Bush, or I would have to drill another well. Mr. Horwitz replied that we bad better leases to drill and never at any time agreed or consented to my going back and drilling that well down to '1800 feet or drilling another well — he said that the lease was no good and he did not want to spend the money. He told me that he was going to check up on the lease himself and see what was the prospect of this particular well making a well, or other locations being any good on the lease. He told me about that well to the west on another lease; it seems that he had a map that showed a lot of dry holes around and said that he did not think it was any good — rather surprised that we drilled such a lease in the first instance. When he said that, I told him that in that country when you have showings, often you can get a well a little piece away; that had been my experience — where there are showings, in that field, ofter near it you get production. That was the argument I advanced to get him to go back, but he said that we had better leases and that he did not want to spend any more money on this lease. From the time we completed this well up to October 15, 1928, I had conversations with both Mr. I. E. Hor-witz and Mr. William Horwitz concerning the drilling of the lease. He and Mr. Key-non, the driller who drilled the first well, investigated it and other sources, and then he told me that he would not spend a dime on that lease.
“During the spring and summer of 192S, from the time I sold to him, we were getting good wells to the southeast of this property; some of the leases two and a half miles southeast were making some nice wells — we had brought the production up to around 1000 barrels a day, and we started out with around 100 barrels.-
“From the time we finished the well up to between 1600 and 1700 feet up until October 15th I talked to Mr. Horwitz several times about getting him to help drill the Bush lease — six or seven, maybe eight conversations. I remember the last one he said, T am tired of you mentioning that Bush lease.’ That was about October 15th.
“When the Magnolia made their location at an offset to this lease on the nortb, along in October (although the derrick stood here some two weeks before they had a drilling rig on it), that was about when I first learned the Magnolia was going to drill the well, and after that I made another effort to get Mr. Horwitz to go in with me and develop the Bush lease; I carried him over and showed him the derrick; I believe that they were rigging up on it that day. I told him that the Magnolia, with the showing that we had on No. 1 Bush, justified another location over there; that in that country where you had these showings, you would often get a well, that had been my experience in the field as well as other drilling contractors. He looked around some. He had a map probably my Heydrick map, published in Wichita Falls, and he talked about the dry holes down south and others in the northeast and he said ‘we will get a dry hole’ and then, T do not want to spend any more money on this lease, and I won’t.’ It was either then or a day or two afterwards he said, T am tired of hearing about the Bush lease.’ After he told me that, I did not talk no more; I thought that was enough; he told me to let him alone. After Mi*. Horwitz told me he did not want me to talk to him about it any more, I tried to get others to help drill that lease. I would' have preferred having Mr. Horwitz help drill it to some one else, because I had other leases with him. I think I tried to interest three or four other people in the drilling of the lease after that — I think I made myself a nuisance over there — and I finally interested Mr. Joseph L. Martin, of the Van Mex Oil Company, in assuming a portion of the obligation in the drilling of the Bush lease. He consented to help me drill the Bush lease before I made a sale to him of my whole properties — or kinder simultaneously with the deal.”

This evidence was corroborated by the testimony of other witnesses. While the Hor-witz’ evidence conflicts with this, it certainly does not render the defendant’s testimony “undisputed.”

The defendant sold his two-thirds interest in the partnership properties and terminated the partnership relation with the plaintiff. The question, therefore, remains, While the partnership between Pace and the plaintiff (Horwitz) existed, did Pace, the defendant, acquire information or knowledge of the value of the Bush lease which he did not communicate to his partner, the plaintiff, and which it was his duty to have disclosed? It is apparent from the record that the facts testified to by the defendant authorized the jury to find that the plaintiff had every reasonable opportunity to join with the defendant in the development and operation of the Bush lease and that it declined to do so because of the cost of such development. No legal or equitable duty was therefore breached by the defendant in his conduct toward his partner as to such lease and there was no concealment of any fact tending to show a peculiar value of the Bush lease which was known to the defendant and unknown to the plaintiff, or which was concealed from plaintiff by the defendant.

Among other findings of the jury are the following, which are abundantly supported by the evidence: That the Keystone Production .Company, after the drilling of the first well on the Bush lease, abandoned the lease and lease contract on same; that Geo. L. Pace, after such abandonment, advised I. E. Horwitz of the Keystone Production Company that he could secure another lease from L. L. Bush, conditioned upon certain drilling obligations; that said Horwitz refused to join in securing such lease; that said Horwitz refused to join in the drilling of further wells on the Bush lease; that Pace advised I. E. Horwitz, plaintiff’s general manager, that the landowner, L. L. Bush, would execute another lease on the land in question, provided other wells were drilled thereon; that this information was furnished I. E. Horwitz several times before the defendant secured the second lease from Bush to himself and before he drilled the additional wells drilled on said Bush lease; that Pace requested Horwitz to join with him in the drilling of said wells and that said Hor-witz refused to join him in the drilling of same; that L. L. Bush, the owner of the land, terminated the original lease at the end of a verbal extension of same and that I. E. Horwitz, acting for the Keystone Production Company, acquiesced in same; that said Hor-witz, acting for said production company, notified Geo. L. -Pace that it would not consent to do any further drilling on the Bush lease— all of which appears to have occurred prior to Pace’s securing his second lease from Bush.

It appears, therefore, that, the original lease having been abandoned and terminated, the defendant, Pace, secured a lease from Bush, the owner, to himself, and proceeded to the drilling of additional wells thereon. The plaintiff then brought this suit against Pace to recover the title to said lease and for the proceeds of the oil from same.

Where there is evidence before a jury to warrant an answer to special issues, the trial court has no authority, and neither have we, to set aside their finding, even though the evidence is strongly contested. Lee v. I. & G. N. Ry. Co., 89 Tex. 583, 36 S. W. 63; Paternostro v. Bradley (Tex. Civ. App.) 262 S. W. 896; City of Hillsboro v. Jackson, 18 Tex. Civ. App. 325, 44 S. W. 1010; Lancaster v. Browder (Tex. Civ. App.) 243 S. W. 625; Westchester Eire Insurance Co. v. Biggs (Tex. Civ. App.) 216 S. W. 274; Hoot v. Walker County Lumber Co. (Tex. Civ. App.) 219 S. W. 544; Grice v. Herrick Hardware Co. (Tex. Civ. App.) 219 S. W. 502; O’Fiel v. Janes (Tex. Civ. App.) 220 S. W. 371.

There are many propositions and assignments of error, but the proposition wo have discussed is the paramount question in the case add controls its disposition. We have considered the many other assignments, and those questions that do not come within tire limits of the assignment discussed are either immaterial or present no reversible. error. We therefore overrule all assignments and oropositions and affirm the judgment of the trial court.


author: PANNILL, C. J.

text:
    WHITIS v. PENRY et al.
    No. 304.
    Court of Civil Appeals of Texas. Eastland.
    May 13, 1927.
    Clark & Clark, of Dallas, for appellant.
    John G. Wilson, of Dallas, for appellees.
   PANNILL, C. J.

Appellees began this suit in the district court of Dallas county for the purpose of securing a mandatory injunction removing an obstruction from a public road and a public street in the unincorporated town of Vickery. The cause was regularly tried at a regular term and the injunction granted as prayed for, from which the appellant, Whitis, has prosecuted this appeal.

A number of legal points are presented, but the appeal can be disposed of by consideration of the one which will be hereinafter discussed.

The trial was to the court without a jury, and conclusions of fact and law were filed, in which the court ascertained as a matter of fact that the town of Vickery was unincorporated and was laid out in lots, blocks, and streets in April, 1909, and that the street in controversy was dedicated as a public street 50 feet wide; that said street was never graded 50 feet wide, but for the past sixteen years had been used about 40 feet in width; that the appellant, Whitis, is occupying a part of said street as dedicated in that a brick building erected by him, and a fence inclosing his property adjacent thereto extends into said street a distance of 11.8 feet; that the appellees were abutting property owners and purchased their property in reference toi and in consideration of said street being 50 feet in width as shown by the plat referred to. That the defendant has not obstructed the use of Pecan street, as the same has been used for the past sixteen years; nor has he increased the dapger in the use thereof; nor has he obstructed the view of Pecan street; nor does his said fence or building constitute a nuisance to the life or limb of persons using said street, or make Pecan street more hazardous than it has been for the past fourteen years., That no pecuniary damage has been suffered by plaintiffs or either of them by erection of said brick building and fence, and no special or pecuniary or other damages have been suffered by the plaintiffs or either of them. Other matters were found which are not deemed material, and based thereon the court arrived at the conclusion of law that appellees were entitled to the mandatory writ of injunction prayed for, and decreed the same to them.

One of the matters urged by the appellant is that, inasmuch as the public is not a party by its duly constituted officers to the suit, appellees were not entitled to an injunction requiring appellant to remove said obstruction without a showing that the appellees had sustained pecuniary damage peculiar to themselves or some of them, and such as did not accrue to the public generally. This proposition does not seem to be seriously controverted by appellees and seems to be established by the authorities without dissent. Not all the authorities discussing the question will be cited, but a number having under consideration facts similar to those established by the trial court’s conclusions will be noted. City of San Antonio v. Strumberg, 70 Tex. 366, 7 S. W. 754; Owens v. Varnell (Tex. Civ. App.) 145 S. W. 256; Shelton v. Phillips (Tex. Civ. App.) 229 S. W. 967, 969.

In the cases cited, obstructions which did not entirely cut off ingress or egress to a street or an alley, but only partially obtruded thereon, were found by the court or jury respectively not to have given rise to any pecuniary damage to the complaining party which was not suffered by the public generally, and the refusal of a mandatory injunction was approved.

Shelton v. Phillips (Tex. Civ. App.) 229 S. W. 967, 969, was such a ease, and a rather, extended discussion of the rule, of .law announced above is to be found in Mr. Justice Levy’s opinion. .

Appellees assert that ’this finding, ;o£v fact by the trial court should be disffegárded' in this court and the statement of facts looked' to, and claims that the statement of facts shows that certain of the appellees do come within the rule as announced in the- cases cited. It will be noted in this connection that appellees have not in any manner made any attack upon the findings of fact of the trial court. No exceptions were taken in the trial court to his conclusion of fact, and no cross-assignments assailing such finding have been presented here, but'in appellees’ counter propositions for the first time is this contention presented, and we think it must be overruled.

The conclusions of fact- of- the trial court in a case tried without a jury are to be governed by the rule applicable to the finding of a jury upon special issues, and if not excepted to, or if not properly assailed in some manner, are binding upon appeal. Buster v. Warren, 35 Tex. Civ. App. 644, 80 S. W. 1063, 1065; Drake v. Davidson, 28 Tex. Civ. App. 184, 66 S. W. 889.

It would be a strange " practice that would permit a party to induce a trial court to render judgment in his favor on conclusions of fact to which he did not object and then procure a judgment in his favor in án appellate court by inducing the latter to reverse the findings of the trial judge. The cases relied on by the appellees are cases wherein the "appellant has assailed the findings of the trial judge, and in such cases, of course, the statement of facts will control. When-the trial court found that no pecuniary or special damage had been suffered or sustained by the appellees, his finding took away from them the right to complain of the obstruction in controversy and left the commissioners’ court of Dallas county as the sole tribunal authorized ■to maintain a suit to remove the objectionable obstruction. . v ■

The other matters presented by the appellant, therefore, become immaterial. The conclusions of fact as noted, not having been assailed in a proper manner, are therefore binding upon this court. Under his findings, the only judgment the trial court could have rendered was one denying the injunction and discharging appellant. Most certainly, the law will not permit appellees to recover in the f^e of the court’s conclusion of fact that they have suffered no damages of any character.

Under article 1856 it is the duty of this court, when the judgment of the court below shall be reversed, to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the amount of damage be assessed or where the matter to be decreed is uncertain. It therefore becomes our duty to reverse the judgment and here render judgment for the appellant, dissolving the mandatory injunction, and further that, as to appellees’ suit, appellant go hence without day and recover his cost, both in the trial court and in this court, and it is so ordered.


author: ALEXANDER, J.

text:
    CHILES v. GOOD.
    No. 1054.
    Court of Civil Appeals of Texas. Waco.
    June 25, 1931.
    Rehearing Denied Sept. 17, 1931.
    Collins & Martin, of Hillsboro, for appellant.
    Wear, Stollenwerck & Wear, of Hillsboro, for appellee.
   ALEXANDER, J.

This was a suit brought by J. D. Good against H. E. Chiles to recover the sum of $1,200 and interest, being the purchase price of certain corporate stock in the Farmers’ Gin Company which plaintiff alleged he sold to defendant and for which defendant refused to pay. It was the defendant’s contention that there was never an intention on his part to purchase the ’ stock, but that the entire transaction was intended as a joke. The court gave an instructed verdict for the plaintiff. The defendant appeals.

The plaintiff was the only witness in his own behalf. The defendant and Joe Ince were the only witnesses for the defendant. Since the court gave an instructed verdict for the plaintiff, it is the duty of this court to consider the testimony in the most favorable light to the defendant, and if, under the testimony, reasonable minds might differ as to the effect thereof, the court should reverse the case. Lee v. I. & G. N. Ry. Co., 89 Tex. 588, 36 S. W. 63-65.

According to the testimony of the defendant and the witness Ince, it appears that the defendant was a banker in Itasca. The bank held, as collateral to a loan carried by it, two shares of the stock in the gin company and desired to sell the stock in order to liquidate the loan. The plaintiff was the secretary of the gin company and owned twelve shares of stock therein. The defendant called the plaintiff into the bank for the purpose of ascertaining the value of the stock. The plaintiff, upon inquiry, stated that the stock, which/was of the par value of $100 per share, was worth $30 or $40 ger share. The defendant then said: “I’ll “bet you wouldn’t take that for yours.” The plaintiff replied, “No.” The defendant said, “What would you take?” The plain tiff Replied that he would take $100 per share. The defendant said, “Will you put up a check on it?” And the plaintiff said, “Tes.” The defendant then wrote out two cheeks for the sum of $500 each and marked on them, “for forfeit on $1,200.00 stock at 1,200.” One check was signed by the plaintiff and the other by the defendant, and both checks were handed to Ince, the'-assistant cashier of the bank. About that time the defendant was called away on other business and thought no more about the matter until the plaintiff, who lived in Ballinger, drew a draft, with the stock attached, on the defendant for the purchase price of the stock. The defendant further testified that he meant the entire matter as a joke, and that he thought the plaintiff so understood it, and that he had denied liability when he first learned that the plaintiff had taken the matter seriously. The defendant offered to prove that the stock was only of the value of $30 or $40 a share, and that he could have bought other stock in the same company on the market at that time at that price. Joe Ince, the other witness for the defendant, testified that he heard the entire transaction. He corroborated the defendant as to how the transaction occurred, and testified that the defendant never at any time said he would buy or accept the stock. If this witness had been permitted to do so, he would have testified that the parties, at the time of the supposed trade, were acting in a joking manner. The plaintiff testified that he was in earnest and intended it as a bona fide sale, and that nothing occurred at the time to lead him to believe that the defendant considered it otherwise, and, if his testimony is true; there was in fact a good-faith sale of the stock.

It is well settled that an offer and an acceptance, although complete, cannot' be the foundation of a binding contract .where the offer is made and accepted, not with the intention of making a contract, but as a mere jest or joke. 13 0. J. 287, § 94; 1 Page on Contracts, § 80.

In the case of Theiss v. Weiss, 166 Pa. 9, 31 A. 63, 45 Am. St. Rep. 638, a defendant, while slightly intoxicated, entered into ari agreement with the plaintiff for the sale of at-large quantity of flour at $4 per barrel at p time when he was purchasing flour at $4.45 per barrel. One of the witnesses who was present when the transaction took place testi-V tied that the defendant made the offer to sell j! the flour in a joking manner, and that he eon-J sidered the entire transaction as a joke. The court held that the question of whether the; offer and acceptance were made seriously mi as a joke;was a question of fact to be deterW mined by the jury. u

In the case of Smith v. Richardson (Ky.) 104 S. W. 705, the defendant agreed to purchase certain oil stock from the plaintiff, and in consideration therefor to settle a certain' account owing by the plaintiff to a third party. Witnesses who heard the transaction; testified to circumstances indicating that, the defendant intended the mátter as'a joke. The defendant testified likewise. The court held that the evidence showed that the contract was not entered into seriously by the' defendant, and that by reason thereof there was no valid agreement between the parties.

In Keller v. Holderman, 11 Mich. 248, 83 Am. Dec. 737, the defendant gave the plaintiff a $300 check for a $15 watch. Due to the vast 'difference between the value of the watch and the amount of the cheek, and the general conduct of the parties at the time of the making of the supposed trade, the court held that the parties had not entered into the agreement seriously, and that there was no contract.

If, in the case at bar, the stock was selling for only $30 or $40 per share, and the defendant knew this fact, but was offering to pay $100 per share, and the conduct of the parties was such as to make it reasonably appear to bystanders that the parties were joking, the jury might reasonably have concluded that the entire matter was intended as a joke. While the fact that the defendant went far enough to put up a forfeit was evidence of his earnestness, yet, as said in the case of Smith v. Richardson, supra, such earnestness may have been assumed for the very purpose of carrying out the joke. Under all of the circumstances, wé think the evidence raised a question of fact for the jury, and it becomes necessary therefore to reversé the case.

Upon another trial of the case the court should admit evidence of the difference, if any, between the market value of the stock and the price being paid therefor, the statements and declarations of the parties to the transaction and the manner of the making of the same, and whether or not the defendant appeared to be joking or acting seriously, and any other facts or circumstances that will .throw light upon the intention of the parties at the time. The witness Ince, after laying a proper predicate by stating what was said and done by the parties, may testify as to whether or not the parties appeared to be joking; but he should not be permitted to state that in his opinion they were joking, for this would be permitting the witness to decide the very question before the jury. 22 C. J. 557, § 656; City of Beaumont v. Kane (Tex. Civ. App.) 33 S.W.(2d) 234, par. 12; Ætna Life Ins. Co. v. Robinson (Tex. Civ. App.) 262 S. W. 118, par. 6, affirmed (Com. App.) 276 S. W. 900; St. Louis & S. W. Ry. Co. v. Burke, 36 Tex. Civ. App. 222, 81 S. W. 774: Sullivan v. Truszkowski, 185 Mich. 17, 151 N. W. 665, L. R. A. 1918A, pages 617-721, note; State v. Tate, 161 N. C. 280, 76 S. E. 713. We do not think that the letter written by the defendant to the plaintiff after plaintiff had demanded payment for the stock would be admissible.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.