author: WALTHALL, J.

text:
    HERBERT OIL CO. OF TEXAS v. McCASKEY.
    No. 2545.
    Court of Civil Appeals of Texas. El Paso.
    May 28, 1931.
    Rehearing Denied July 16, 1931.

      Slay & Simon and Mack & Mack, all of Fort Worth, for appellant.
    Polk, Sansom & Terrell, of Fort Worth, for appellee.
   WALTHALL, J.

On March 31, 19,27, Morgan E. McCaskey, appellee, a professional geologist, and Herbert Oil Company of Texas, a .Texas corporation, appellant, entered into a written contract in the nature of a joint venture, for the purpose, of exploration of lands for the production of oil and gas. Appellee brought this suit based upon that contract. It reads as follows:

“Agreement.
“This agreement made and entered into ■ this 31st day of May, A. D. 1927, by and between the Herbert Oil Company of Texas, a Texas Corporation, party of the first part, and Morgan E. McCaskey, party of the second part, witnesseth:
“Whereas first party is desirous of obtaining for the benefit of itself and second party oil and gas leases, royalties or land in fee, in favorable territory; and to obtain for the benefit of both parties Blocks of oil and gas leases,
“Whereas second party has knowledge as a geologist regarding territory which he considers favorable for oil or gas.
“Now, therefore, in consideration of the above covenant and agreement hereinafter set forth, the said parties agree as follows:
“1. Said second party, agrees to select favorable tracts of land on which oil and gas leases or royalties or fee should be acquired and to make such recommendations as may be necessary to first party and seek by scouting- drilling wells and prospective locations, proven, semiproven or wild-cat territory, such favorable tracts of land.
“Said second party shall in his discretion investigate the terms and conditions under which the said properties may or can be purchased or acquired, and report the same together with his recommendations to the party of the first part, but it is expressly .agreed and understood that party of the second part shall in no wise be authorized to enter into’ any contract or purchase for or in behalf of the party of the first part unless the said party of the first part has given its authority in writing to execute'in specific contract and it is further agreed that the properties acquired under such express authority shall be obtained in the name of the Herbert Oil Company, of Texas, party of the first part unifess otherwise authorized and directed by the party of the first part.
“2. Said party of the first part agrees that upon receipt of the above it will, at its option purchase or acquire such’ oil and gas leased or royalties or fee as it may find feasible or acquire leases in blocks by purchase or agreement with the landowners, lessee or lessor in the territory indicated as favorable by the party of the second part.
“It is agreed that neither of the parties hereto shall make charges for services, information, time or effort in connection with the carrying out of this contract nor shall they charge any salary, it being the purpose and intent of this contract that second party shall have charge of scientific work, selection and recommendation of properties and first party shall have charge of all business details.
“4. In consideration of the information given and services rendered by the party of the second part, first party agrees to pay to the party of the second part, one-half of the net profits from the sale of any and all properties acquired by the party of the first part upon the recommendation and information furnished by the party of the second part, only as to properties which the party of the second part discovers and reports upon independently.
“5. It is further agreed and stipulated by and between the parties hereto that the party of the first part may without the advice, consent or permission of the party of the second part, dispose of any or all of the properties which may or shall be acquired pursuant to the terms of this contract as related in the preceding paragraph.
“6. It is further agreed by and between the parties hereto that the party of the first part shall advance to the party of the second part a sum or sums of money not to exceed in the aggregate, two Hundred fifty ($250.00) dollars per month for the duration of this contract, exclusive of expenses as herein-after set out.
“7. It is further agreed that the party of the first part shall advance the field expenses of the party of the second part together with the expenses of an assistant whenever the services of one shall be deemed necessary by the party of the second part.
“Party of the second part agrees to submit on or before the tenth and twenty fifth day of each month an itemized statement of the expenses incurred by him in the pursuance of his duties for and in behalf of the party of the first part which have accrued prior to the dates hereinbefore mentioned.
“It is further agreed that the party of the first part shall furnish to the party of the second part an automobile to be used exclusively by the party of the second part except during the time that the said automobile is in the City of Fort Worth, Tarrant County, Texas, during which time it shall be returned to and remain in the possession of the party of the first part.
“8. It is further agreed and stipulated by and between the parties hereto that in the event that any of the properties acquired by the party of the first part of which the party of the second part by the terms of this contract is entitled to one-half of the net profits is sold otherwise disposed of by the party of the first part, the party of the first part in determining the amount of the net profits shall deduct for the expenses of acquisition and disposition together with all other items as advances and expenses made or paid by the party of the first part to or for the party of the second part.
“9. It is further agreed that in the event the properties, either by sale or otherwise do not yield a net profit as hereinbefore stated, the party of the second part shall not be obligated to return any of the said advances and expenses.
“10. It is agreed that said party of the first part shall keep and maintain an accurate set of books showing all receipts and disbursements and that same shall be open to the inspection of second party at his request.
“11. Should party of the first part be desirous of having any particular well, royalty or lease value, leases or tracts of land investigated by second party which itself might designate, second party shall be obligated to make such investigation and report without cost to party of the first part only to the extent of second parties personal expenses. Second party shall not be obligated to perform work of the above nature in excess of eight days in any one month.
“12. It is further agreed by and between the parties hereto that this agreement shall be in force for a period of ninety days from the execution of this contract and shall continue as long thereafter under the same terms and conditions as above expressed as the parties hereto may desire except that it may be terminated by either party upon his or it giving notice to the other thirty days in advance, such notice to be mailed to the usual business address of the party entitled to said notice.
“Witness our hands this the day and year first above witnessed.”

Appellee alleged substantially the following: That on July 1, 1927, and while the contract was in force, he discovered, selected, and re-porteql to appellant upon the probability of oil in profitable and paying quantities being produced on blocks 9 and 16, in Coleman county, Tex., out and a part of the A. Gable survey, and otherwise described by survey and abstract numbers, and did communicate said discovery and selection of said land to appellant, and did recommend to appellant that in appellee’s judgment said land would be productive of oil in paying quantities, and that in pursuance of and acting upon said recommendation and selection and as a proximate result thereof appellant acquired a lease on said land (other lands are mentioned, but in the course of the trial all other lands were eliminated, and we will refer to them when necessary only in explanation of or in reference to some fact in connection with said blocks Nos. 9 and 16 in Coleman county); that appellant drilled wells for oil on said blocks Nos. 9 ahd 16, of the A. Gable survey, giving the date, and that both wells proved productive of oil in paying quantities and of the reasonable market value stated; that ap-pellee is entitled, under said contract, to an undivided one-half interest in said blocks of land and in and to all oil or gas produced therefrom, but that appellant has refused to recognize appellee’s interest and has sold portions of and interests in said property, has sold large amounts of oil on said leases, and converted the proceeds to its own use, and denies that appellee is entitled to an interest, and repudiated, breached, and violated said agreement, by reason of which appellee is entitled to a one-half interest in.the property, a partition of which appellee prays for; that on February 16, 1928, appellant canceled said contract by means of a letter addressed to appellee, and in the letter stated that before making any deals involving any of said properties appellant would, communicate with ap-pellee and take into consideration appellee’s wishes and desires, but that since said time appellant has endeavored to dispose of said property and offered it for sale without consulting appellee; that by means of which appellee is entitled to have his interest in said property set aside to him, and to have an-accounting irrespective of any breach, repudiation, or violation of said contract on the part of appellant and to have a receiver appointed for which he prayed. In lieu of a receivership appellant filed a bond conditioned that it would render to appellee all money or property which might be decreed by final judgment.

Subject to general demurrer, appellant’s answer contained general denial and a number of special denials. Appellant specially denied that it had made any purchase as a result of any information furnished it by appellee; that on February 18,1928, it notified appellee of its desire to terminate the contract, and that the contract was thereupon terminated; that subsequent to the termination of said contract, and not upon any information or recommendation of appellee, it acquired said blocks Nos. 9 and 16 (and others named); that about February 27, 1929, it sold to the Vacuum Oil Company an undivided one-half interest in an oil and gas lease covering said blocks 9 and 16, and the right to operate and manage said leases, and that it does not have the right to operate or control same, and it is the owner of a one-fourth of the seven-eighths working interest in said blocks 9 .and 16, and denies that appellee has any right, title, or interest in, or profits to be derived from, said blocks 9 and 16; alleges that it has performed all of its obligations, promises, and undertakings under said contract with appellee.

Appellee filed a lengthy trial amendment, the substance of which we need not state at this time, but will do so in reviewing such issues made, if any, on the final disposition of the ease on the trial. Appellee also filed his first supplemental petition in reply to appellant’s amended answer. To all of which appellant replied.

To the accounting feature of the suit an agreement was reached by the parties, in substance, substantially as follows:

The trial of the cause having begun as a jury case on May 13, 1929, and it having become apparent during the trial that the trial would be delayed and prolonged indefinitely on account of the accounting, it was agreed before the close of appellee’s evidence, the court having announced that he would submit the case to the jury on'speeial issues, that the issues of fact other than issues arising in connection with the accounting shall be submitted to the jury as special issues, “but that as to all questions .of fact and law connected with the accounting to be rendered by the defendant and the correctness thereof, and the correctness of the various items therein contained, same shall be submitted to the court for his decision with the understanding and agreement that the court may at his option refer'any matter which he may desire in connection with said accounting to a Master in Chancery, or Auditor, and that if same be done the report of such Master or Auditor shall be submitted to the parties hereto through their attorneys, and due opportunity be given for exceptions and objections to be filed by either party to said report a.nd due opportunity given by the court for a hearing on same, and for such proof as may be necessary or proper to be introduced before the court for a decision by the court on such matters connected with said accounting.

“It is further agreed that, the court having reached his decision on such matters of accounting, the court may then render judgment in accordance with the answers of the jury to the special issues on which the other matters in the case were submitted, and in accordance with the findings of the court himself on such matters of accounting, which shall be the judgment of the court in this ease, subject, however, to all legal rights of any party hereto to make such exceptions, objections or assignments of error as he may desire other than on the matters covered by this agreement, it being understood that no objections shall be raised by either party to the fact that said judgment is rendered partly on the findings of the court on said issues of fact in connection with said accounting.

“It is further agreed that no mention shall be made in the judgment of any reference of the matters of - accounting by the court to any such Auditor or Master in Chancery as above referred to. It is further agreed that any evidence adduced before the court on any issues contested before him connected with such matters of accounting shall be a part of the record in this case, and that any exceptions or objections or assignments of error in connection with any such testimony so adduced before the court shall have the same force and validity as if made at, or in the course of, or on account of, the jury portion of the trial of this cause.”

At the conclusion of the evidence before the jury appellant duly requested a peremptory instruction in its favor, which the court refused.

On questions submitted to the jury, the jury found as follows:

1. On or about the last of June or the first of July, 1927, MeCaskey furnished John W. Herbert information concerning the land between Douglas Wells Nos. 1 and 2, and advised him to acquire acreage between said wells for drilling purposes.

2. Appellant acquired an oil and gas lease on block 9, upon which it drilled its first well' because of recommendations and information furnished by appellee.

3. Appellant acquired an oil and gas well on block 16, upon which it drilled its second well as a result of recommendations and information furnished by appellee.

4. Appellant did not decide to acquire the acreage contained in block 9 solely because of the donation of said block 9 by Broderick and Calvert and the securing of the thousand dollar dry hole money from the Roxana Petroleum Company.

5. Prior to June 27, 1927, John W. Herbert had not begun negotiations for the acquisition for appellant of the acreage contained in block 16.

6. In the acquisition of blocks 9 and 16, John W. Herbert did not act upon his own opinion based upon information obtained by* him independent of any advice or information communicated to him by appellee.

7. Under the terms of the contract of May 81, 1927, it did not become the duty of appel-lee to communicate to John W. Herbert any and all information which he obtained and had. relative to the geology of the land upon which the gas well he was sent to investigate was situated and which surrounded it.

8. Appellee and appellant did not agree that their rights with reference to the Nolan county acreage should be governed by the terms of the contract of May 31, 1927.

Appellant submitted to the court eight special issues to be submitted to the jury, which the court refused.

The court decided and so decreed that the verdict of the jury dealing with block 16 was not sustained by the evidence, whereupon ap-pellee entered a remittitur as to any interest in block 16.

Appellant filed its original motion for a new trial as to the matters submitted to and ■found by the jury, which motion the court overruled.

A further consideration of the case was then passed for offering evidence in connection with the accounting. The court announced the appointment of Y. Q. McCannon as auditor. The auditor filed his report on the matter of accounting. Both parties agreed that the matters of fact contained in the auditor’s report and the items, figures, and calculations were correct, but appellant “excepts as to application of the facts and figures made by said report insofar as they allowed the advances made by plaintiff (ap-pellee) to defendant (appellant) to be deducted from the proceeds in ascertaining the amount due plaintiff, and insofar as said report included in the amount shown to be due plaintiff thereunder the oil runs taken from Block 9.” The exceptions were overruled. The court made findings as follows:

“Based upon the foregoing verdict of the jury and all the testimony introduced in the cause, the court finds as follows:
“1. That on May 31st, 1927, plaintiff and defendant entered into an agreement in writing, which is fully set forth in plaintiff’s petition, and contemplated an acquiring of oil and gas leases or properties recommended by plaintiff and the handling and disposition of same by defendant in defendant’s name, the expense of the properties and advances made by plaintiff to be deducted from the gross proceeds and the remainder to be considered as net profit, of which the plaintiff should be entitled to one-half and the defendant the other one-half.
“2. That there is no evidence upon which to base any finding that plaintiff is entitled to any interest under said contract, and in fact plaintiff is not entitled to any interest under said contract, in that part of the property described in plaintiff’s petition as being Blocks Nos. 10,-15, 21, 22 and 28, of the aforesaid subdivision of the Weaver Ranch in Coleman County, Texas.
“3. That plaintiff is not entitled to any interest -in the aforesaid Block 16 of said subdivision of said Weaver Ranch, by reason of the aforesaid remittitur filed herein by the plaintiff.
“4. That the remaining property involved in the suit is a portion of the oil and gas mineral leasehold estate in and to Block or Lot No. 9, containing 40 acres, of the Andrew Gabel Survey No. 271, Abstract No. 226, Coleman County, Texas, according to a plat of a subdivision of the Weaver Ranch lands in Coleman County, filed in the office of the County Clerk of Coleman County, Texas, on September 21, 1926, and recorded in Book L. B. page 156, of the records of plats in said office, and arising under and by virtue of an oil and gas mineral lease made on June 17, 1926, by and between Leon M. Weaver, as Lessor, and Wm. R. Jewell and W. N. Sill, Lessees, covering 395 acres of land out of said A. Gabel Survey in said county, which said oil and gas lease is of record in Book 150, page 625, of the deed records of Coleman County, Texas.
“5. That as to said mineral leasehold estate in said Block No. 9, the plaintiff has an interest therein to the extent hereinafter set forth, said interest being in the residue of the rights of the lessees under said lease (which rights of the lessees were heretofore acquired by the defendant) after the making of certain sales of portions of said estate, consisting of a sale of an undivided one-fourth (⅛) of the mineral lease-hold estate to McDonald and Campbell, the sale of an undivided one-half (⅛) of said mineral leasehold estate to the Vacuum Oil Corporation (subject to the operating agreement hereinafter referred to), and the sale of an undivided one-sixteenth (½0) of said mineral leasehold estate to Harry N. Lane; and that the remaining undivided three-sixteenths (%0ths) of said mineral leasehold estate belongs, one-half to plaintiff and one-half to defendant, so that the respective interests of plaintiff and defendant in said mineral leasehold estate in said Block 9 (subject to said aforementioned operating contract), are undivided %2nds each.
“6. That the af oresaid sale of the one-half interest in said lease to Vacuum Oil Corporation included not only Block 9, but also Block No. 16, which adjoined Block 9, and that said Vacuum Oil Corporation purchased an undivided one-half of the leasehold estate in ■both of said Blocks together, paying to defendant therefor, $40,000 in cash and $42,-000 in operating credit (said $42,000 to be credited to the total one-fourth interest in said leasehold estate composed of the respective interests of plaintiff, defendant, and said Harry Lane).
“7. That on February 26, 1929, the defendant, Herbert Oil Company of Texas, and also McDonald and Campbell (no assignment haying 'been made to said Lane of his interest which showed on the records in the name of Herbert Oil Company of Texas, and the plaintiff’s interest also being shown on the records in the name of Herbert Oil Company of Texas) entered into an agreement, for operating, with the Vacuum Oil Corporation, giving to said Vacuum Oil Corporation the right to operate and develop the 80 acres tract composed of Blochs Nos. 9 and 16, and .that the undivided %2nds interest in said Block No. 9, hereinafter awarded to plaintiff, is' subject to said operating agreement.
“8. That the sale to the said Vacuum Oil Corporation covered both Block No. 9 and No. 16, and that Block No. 9 was entitled to be apportioned four-fifths (%ths) of the cash benefits of said sale, and Block No. 16 with the remaining one-fifth thereof, and that after deducting from said cash proceeds of said sale the amount due Lane and the Commission paid on said sale, the amount of said cash proceeds apportionable to Block No. 9, and in which plaintiff was and is entitled to share equally with the defendant, was and is the sum of $27,475.00.
“9. That the net amount of cash received up to and including March 31, 1930 (which is the date to which, the Auditor’s report extends), paid defendant Herbert Oil Company of Texas in oil runs from said Block No. 9 (and referring to the portion of said oil runs to which plaintiff and defendant were entitled), after deducting the expenses in connection with said Block, is the sum of $4,499.78, making a total for the cash proceeds and the oil runs, divisible between plaintiff and defendant of $31,974.78.
“10. That the total expense properly chargeable against said sum, under the aforesaid contract of May 31, 1927, arising in connection with all ventures undertaken thereunder, amounts to the sum of $7,006.89, and that the net amount in which plaintiff is entitled to share equally with defendant (exclusive of oil run since March 31st, 1930) is, therefore, the sum of $24,967.89, and that plaintiff’s one-half of that amount is $12,483.94.
“11. The court further finds that said contract of May 31,1927, provided that properties acquired thereunder were to remain in the name of defendant, and be administered by defendant, but that defendant has breached and violated said contract and has repudiated, contested and denied plaintiff’s interest in said Block 9 and the proceeds thereof and the profits therefrom acquired under said con-' tract
“The court further holds and decrees that the findings set forth in this judgment are meant to make said judgment intelligible within itself, and that such findings are not intended to be exclusive, and that all such further findings and intendments arising from the facts and the law of the case, as may support this judgment, are hereby found, decreed and adjudged by the court.”

The court decreed a recovery by appellee in the sum of $12,483.94, with interest from April 1, 1930, and also awarded to appellee out of the leasehold interest in block 9 an undivided %2 interest in and to the mineral leasehold estate in block 9, to be held by appellee as a vested interest free and clear of any claim thereto on the part of appellant, subject only* to the operating agreement with the Vacuum Oil Company, and that appellee is entitled to receive his proportionate part as stated, of all oil runs to the whole interest in said block 9 on and after March 31, 1930. The court allowed the auditor’s fee and taxed same as part of the costs.

The court overruled appellant’s motion for a new trial, and the case is properly before this court on appeal.

Opinion.

Appellant submits error upon the refusal -of the court to direct a verdict for it, insisting that the undisputed evidence, coupled with the admissions of appellee, demonstrate that as to block 9 the investigation was made at the instance and direction of appellant, and that the discovery, report, and ' recommendations were not made independently by appellee.

By reference to the fourth and eleventh paragraphs of the contract as in the above statement, the consideration due appellee is, as in the fourth paragraph, based upon “recommendation and information furnished by the party of the second part (appellee), only as to properties which the party of the second part discovers and reports upon independently,” and, in the eleventh paragraph, that, “should the party of the first part (appellant) be desirous of having any particular well, royalty or lease valued, leases or tracts of land investigated by second party, which it, itself might designate, second party shall be obligated to make such investigation and report without cost to party of the first part only to the extent of second party’s personal expense.” Under this proposition appellant insists that the evidence is undisputed that it did not acquire block 9 upon recommendation and information furnished by appellee, discovered and reported upon independently by appellee. Appellant relied upon its general' denial and specially pleaded that appellee at no time recommended the purchase of block 9; that it purchased block 9 as a result of its own independent judgment and selection, and not as a result of any recommendation or selection of appellee acting independently.

To the above appellee submits two counter propositions, in effect: First, that appellant could not avail itself of such defense because same is affirmative matter in avoidance and not pleaded; and, second, if available under appellant’s pleading, the evidence fails to show that the Coleman county acreage on which appellee reported to appellant as being favorable was acreage on which appellee was under duty to report, and that the evidence is sufficient to raise the issue that appellee discovered and reported independently on said area.

We have carefully reviewed all that has been said, both in the pleading and the evidence, by both parties on the issue presented. Omitting a discussion as to the pleading, we have concluded that, while the evidence is not as clear and satisfactory as it should be on the issues of fact contained in appellant’s proposition, it is sufficient to require the submission of the issues to the jury as to block 9. Sigmond Rothchild Co. v. Moore (Tex. Com. App.) 37 S.W.(2d) 121.

The statement of facts contains some 380 pages, of which some 245 pages embrace the evidence adduced on the issues submitted to the jury. The evidence contains several maps and reports, the maps made exhibits, and, the evidence referring to each at times not clearly and specifically identifying tract 9, it is difficult to single out and make clear the reference in the evidence, that embraces that area or tract. The trial court, after submitting the issues as to 9 and 16, held that the evidence was not sufficient' as to 16, but was sufficient as to 9. We think it would serve no useful purpose to undertake to state the evidence on the issue.

Appellant’s proposition complaining of the trial court’s eleventh finding that appellant had “breached and violated and had repudiated” and denied appellee’s interest in block 9 presents no reversible error. Appellant denied and undertook to sustain its denial that appellee had any interest whatever in and to any of the properties or the products therefrom, in any of the lands involved in the controversy.

.The court’s twelfth finding indicates the purpose of the court in making such findings.

Appellant submits error in the refusal of the court to submit not any one but all of its fourteen requested issues. A number of the issues present only evidentiary facts, and some of the issues requested were.presented in the court’s main charge. No reversible error is shown.

The record shows that appellant sold in bulk blocks 9 and 16 to the Vacuum Oil Company with no specified price as to either. The court eliminated from controversy in the case all question of appellee’s interest in block 16, and appellee filed a remittitur as to block 16. In the court’s eighth finding the court finds that block 9 is entitled to be apportioned four-fifths of the cash benefits of said sale (9 and 16), and that block 16 is entitled to be apportioned one-fifth of the cash benefits of said sale, and that, after deducting from said cash proceeds of said sale the amount due Lane and the commission paid on said sale, the amount of cash proceeds apportionable to block 9, in which appellee is entitled to share equally with appellant, was and is the sum of $27,475. In the court’s tenth finding the total expense chargeable is stated and deducted, and the net amount in which appellee is to share is found to be $24,967.89, and appellee’s one-half is $12,483.94.

Appellant submits that, if appellant is entitled to recover, the court in apportioning the amount of recovery on 9 and 16 should have allowed one-half of the purchase price to each. The trial court heard evidence as to the ratio of valuation between said two blocks, and fixed the values based on the evidence. We cannot say that the values fixed were incorrect.

In addition to the money judgment of $12,-483.94 awarded appellee on the accounting for the value of the oil runs on block 9, to date of trial, the court also awarded to appellee an undivided %2 interest in and to the mineral leasehold estate in block 9, to be held and owned by appellee as a vested interest in fee simple, free and clear of any claim of appellant, and subject only to the operating agreement with the Vacuum Oil Company.

Paragraph 4 of the contract provides that appellee’s interest in the properties discovered and reported on independently shall be one-, half of the net profits from the sale of any' and all properties acquired by appellant under the terms of the contract. Paragraph 5 of the contract provides for the disposition of any and all of said properties by appellant should he so elect. Paragraph 8 provides that, in the event any of the properties in which appellee has a one-half interest is sold or disposed of, in determining the amount of the net profits, the expenses of acquisition and disposition with all other items as advances and expenses made by appellant to or for ap-pellee shall be deducted.

Appellant insists that appellee in no event was entitled to recover any interest in the property itself, but that his recovery should be limited to one-half of the net profits realized from the sale of the property after deducting the expense, etc., as provided in paragraph 8 of the contract.

At the hearing on June 5, 1930, including the matters of accounting and all other matters then before the court, testimony of both parties was heard, and it was agreed in open court that the auditor’s report, and the items, figures, and calculations therein contained were correct; appellant excepts only to the application of the facts and figures made in said report in so far as they allowed the advances made by appellee to appellant to be deducted from the proceeds in ascertaining the amount due appellee, and in so far as said report included, in the amount shown to be due appellee thereunder,' the oil runs taken from block 9. Appellee’s exceptions were heard by the court and were overruled. The disposition made of blocks 9 and 16 to the-Vacuum Oil Company was in bulk, reserving to appellant, unsold, a ¾6 leasehold interest in the two blocks. Appellee is not questioning the disposition made of either of the blocks, and the court in the judgment found that the undisposed undivided ¾8 interest of the leasehold estate in block 9 belongs one-half to appellee .and one-half to appellant, then awarded ⅜2 of that interest to appellee. The interest conveyed to appellee by the judgment was the same interest in kind retained by.appellant in the disposition made to the Vacuum Oil Corporation, and we think correctly so.

The contract seems to contemplate a sale of the entire leasehold interest in the land, and that there would be. a profit and the interests of appellant and appellee would be in profits; but, where a sale is made and appellant retains unsold an interest' in the thing sold, we think that, in the absence of evidence or statements in the contract what was meant by profit, the interest retained by appellant might be considered as the profit made on the sale as contemplated. Otherwise, in the event appellant would make no sale, the profit would be the leasehold in the land itself, less the expenses. The word “profit” is said to be an elastic term, possibly ambiguous, owing to the context in which it is used. Appellant does not suggest that there was an expense incurred in making the sale to the Vacuum Oil Company, and, if so, what the expenses were.

We have concluded that under the facts found appellee’s interest was not limited to the value of the oil runs as found, but that he was entitled also to a one-half interest in the unsold property itself, as in the judgment.

Finding no reversible error, the case is affirmed.


source: Caselaw Access Project

author: SELLERS, J.

license: Public Domain

text:
    TOWN OF JACKSONVILLE v. PINKARD.
    No. 3969.
    Court of Civil Appeals of Texas. Texarkana.
    May 14, 1931.
    Rehearing Denied May 28, 1931.
    Guinn & Devereux, of Jacksonville, and Guinn & Guinn, of Rusk, for appellant.
    W. T. Norman, of Rusk, Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellee.
   SELLERS, J.

The plaintiff, W. T. Pinkard, brought suit in the district court of Cherokee county, Tex., against the town of Jacksonville, T. E. Acker, A. E. Garner, and C. W. Marshall for the title and possession of lots 21 and 22 in block 138 in the town of Jacksonville, without describing the lots by metes and bounds; also praying for a temporary writ of injunction restraining the defendants from interfering with his property situated on said lots; and also praying for $300 actual damages and $5,000 exemplary damages.

The defendant the. town of Jacksonville answered by (a) general demurrer, (b) plea of not guilty, (c) general denial, (d) disclaimer as to any right, title, or interest in lots 21 and 22 in block 138 in the town of Jacksonville, Tex., as shown by M. L. Earle’s 1914 map. Defendant also filed cross-action against plaintiff for the title and possession of a strip of land 17 inches wide and 115 feet in length, and being a part of lot 20 in block 138, as shown by M. L. Earle’s 1914 map of the town of Jacksonville. The defendants T. E. Acker and A. E. Garner filed their answer, disclaiming any right, title, or interest in and to the property described by the plaintiff’s petition. The defendant C. E. Marshall filed his answer, stating that he had no claim or title to the property described in the plaintiff’s petition, that he was merely a contractor employed by the town of Jacksonville to erect a building on lots 18,19, and 20, in block 138, and that he was acting under instructions of said town given to him by its officers and ■agents.

The court submitted the case to the jury upon special issues upon answers to which he rendered judgment for plaintiff against defendant town of Jacksonville for $20 actual damages and $500 exemplary damages, and for the title and possession of the lots 21 and 22 in block 138 specifically establishing the southwest corner of said lots at a point 100 feet northerly from the southwest corner of said block 138, which said beginning point was also described as being the southwest corner of the south wall of a building owned by plaintiff; also perpetuating the injunction theretofore issued permanently restraining the town of Jacksonville from interfering with the plaintiff in his-enjoyment of the possession of the said property. Judgment was also rendered in favor of the defendants T. E. Acker, A. E. Garner, and O. W. Marshall upon their disclaimer..

W. T. Pinkard owned lots 17 to 22, inclusive, in block 138 in the town of Jacksonville. Ail of said lots joined and paralleled each other and face the west on what is known as Ragsdale street, which street runs north and south. Lot 17 is bounded on the south by Rusk street, which runs east and west. In other words, the lots in controversy lie in the northeast corner of the intersection of Rusk and Ragsdale streets, and are bounded on the north and east by 20-foot alleys. Each of the lots is 25 feet wide and 115 feet long. Pinkard constructed a building on lots 21 and 22. Said building was constructed so as to cover these two lots, being 50 by 115 feet. Some time after the construction of the building, Pinkard sold the remaining lots 17, 18, 19, and 20, which lie between the south wall of his building and the north line of Rusk street, to the city of Jacksonville, said lots being described in the .deed of conveyance as follows: “All of Lots 17, 18, 19 and 20 in Block 138 in the City of Jacksonville, Texas, as shown by M. L. Earle’s 1914 map of said town; said lots having a front footage of 100 feet on South Ragsdale Street and 115 feet on East Rusk Street.”

The city purchased the lots for a location for' a city hall and fire station, and, when they began the construction of the city hall, they undertook to tie onto the south wall of appellee’s building, and for that purpose dug several small holes into, and also excavated to some extent under, the south wall of said building. This action of appropriating the south wall of appellee’s building, as explained by the city, was to secure its 100 feet which their deed from the appellee called for. It was the express intention of the city to use the south wall of appellee’s building as the north wall of the city hall and fire station up as far as it extended, and then to construct the wall of the second story of the city hall and fire station upon the south wall of appel-lee’s building. The real issue in this case was to determine whether there was 100 feet of land between the south wall of ap-pellee’s building and the north line of Rusk street.

It was agreed upon the trial that the parties claimed under a common source of title, and that it was not necessary for either party to prove title except as between each other.

The court submitted the following issue to the jury: “Do you find from a preponderance of the evidence that there is south of and between the south wall of W. T. Pinkard’s building and the north line of Rusk Street 100 feet' of land?” To this the jury answered “Yes.”

The evidence offered upon this issue was conflicting, and was quite voluminous, so much so that we will not undertake to set out any portion of same, but think it sufficient to say that we have carefully considered the evidence and have concluded that the same is sufficient to support the finding of the jury.

One of appellant’s assignments of error complains of the court’s refusal to admit in evidence a map known as the M. L. Earle’s map of 1914. It will be remembered that the description of the lots in cofitroversy as described in the deed from Pinkard to the city of Jacksonville referred to the M. L. Earle map of 1914, but no reference was made to which of the M. L. Earle maps it referred. M. L. Earle, the maker of the map, testified in the case, and explained that he had a great number of these maps printed from his original draft, and as printed they contained many mistakes, one of which was that the map as printed showed an alley adjoining the lots in controversy on the north to be 25 feet, when in fact it was only 20 feet. The map offered in evidence was one which had been corrected by M. L. Earle and sold to the commissioners’ court of Cherókee county and caused to be recorded in the deed records of the county. But, without going into an extended discussion of the question, we are of the opinion that, if the court erred in refusing to admit this map in evidence, it was not such error as would require a reversal of the case, since M. L. Earle, the maker of the map, was permitted to testify in detail as to all matters and information material to the issues in the case which were contained in the map. And, further, there were other maps introduced which coincided exactly with the M. L. Earle map offered in evidence on the issues involved.

It is further insisted by the appellant that appellee is not entitled to recover against it for the actual damages done to his property by the city of Jacksonville which the jury assessed at $20. We think this question has been so well settled adversely to appellant’s contention that another discussion would be useless. City of Amarillo v. Tutor (Tex. Com. App.) 267 S. W. 697.

Appellant assigns as error the action of the trial court in allowing a recovery against it of exemplary damages as assessed by the jury in the sum of $500. As we understand the record in this case, it presents nothing more or less than an ordinary bourn dary suit between a municipal corporation and an individual in which the evidence would have supported a finding of the jury in favor of either party, and, while it has been established by the jury that the officials of the city of Jacksonville had no right to go upon and undertake to appropriate a part of the appellee’s building, and in doing so they were guilty of a trespass for which the city became liable for the actual damages done, and while it may be said that the record is sufficient to authorize the conclusion that the conduct of the city officials was such that necessitated and required the appellee to employ lawyers, and which, vexed and worried the appellee considerably, yet such a state of circumstances as shown by the evidence will not warrant the recovery of exemplary damages against a municipal corporation in Texas. The authorities in other jurisdictions may differ on this question, but we regard it as settled in Texas by the case of Ostrom v. City of San Antonio, 33 Tex. Civ. App. 683, 77 S. W. 829.

There are other assignments of error we have not discussed, but we deem them without merit, and they are overruled.

Judgment of the trial court will be reformed so as to allow the appellee to recover damages in the sum of $20, and in all other respects the judgment will be affirmed and the cost of this appeal taxed against the appellee.


author: SMITH, J. SMITH, J.

text:
    WILLACY COUNTY v. TURNER.
    No. 8627.
    Court of Civil Appeals of Texas. San Antonio.
    June 10, 1931.
    Rehearing Denied July 8, 1931.
    A. B. Crane and- R. F. Robinson, both of Raymondville, for appellant.
    Jesse G. Foster and W. J. Gerron, both of Raymondville, for appellee.
   SMITH, J.

In 1924 one A. F. Lee was duly appointed attorney to represent 217 nonresidents in suits for taxes prosecuted against them in the criminal district court 0⅜; Willacy county. The trial judge fixed Lee’s fee at $3 in each of said suits, aggregating $651. The then sheriff of Willacy county, Joe Turner, collected said fees, but did not turn them oyer to Lee, apparently because of his absence and his failure to make demand for them. When Turner went out of office in 1926, he passed said fees on to his successor in office, R. H. Teiler, and the latter in turn paid them over to his successor, L. D. Snow, in 1928. In December, 1928, the commissioners’ court of Willacy county ordered Sheriff Snow to pay over said( fees to the county treasurer, to be placed by the latter in the county road and bridge fund. This was promptly done.

In October, 1929, the said A. E. Lee assigned his interest in said fund to Mrs. Joe Turner, who paid him $1()0 therefor. Mrs. Turner filed her claim with the commissioners’ court, and, upon the latter’s rejection of it, brought this suit thereon against the county, in November, 1930. From . a judgment in favor of Mr?. Turner for the amount of the claim, Willacy county has appealed.

Appellant pleaded the two and four year statutes of limitations as defenses to appel-lee’s suit, to which appellee replied that the fund in question was a trust fund, and that limitations did not begin to run against the claim therefor until that claim was repudiated by the commissioners’ court’s rejection thereof..

The fund was collected by the sheriff, in virtue of his office, for the use of its true owner, Lee, and it was held for the latter’s benefit by the sheriff, who'had no claim upon the fund, and at no time asserted any. On the contrary, he at all times recognized Lee’s title, and held the fund only for the purpose of delivering it to Lee upon his request therefor. Accordingly, the sheriff’s possession was in no sense adverse to ■ Lee’s title, but was rather in recognition of it. The sheriff was merely and only a trustee for Lee, and limitations did not run against the latter’s claim, at least under the general statutes of limitations.

It is provided in article 104, Penal Code, that ‘.‘each county and precinct officer who shall in his official capacity collect or receive any money or fees belonging to another person, shall inform such person of the collection of such money or fees, and promptly pay the same over on demand to the one entitled thereto, taking receipt therefor, which shall be entered or noted in his fee book.”

It is provided in article 106, that “each officer collecting or having the custody of any money or fees embraced within the provisions of this law at the expiration of four years from the time of collecting or receiving such money or fees, in all eases where the same have not been paid over to the person- entitled thereto, shall pay the same to the county treasurer of his county, * * * and said money or fees shall be by him [county treasurer] placed to the credit of the road and bridge fund. * * * Any officer upon retiring from office having any money or fees in his hands embraced within these provisions and which are not due to be turned over to the treasurer as herein provided, shall turn the same over to his successor in office, * * * and his successor shall report and pay over the same to the county treasurer in accordance with the provisions hereof.”

It is obvious that these provisions apply to the fees in question, and that those were collected, held four years by the sheriffs, paid over to the treasurer, and passed to the county road and bridge fund, in accordance with those provisions. The only question for decision, then, is whether by this process the ownership of the fund remained in Lee or passed to the county.

We have held in the foregoing that, under the general statutes, limitations did not run against Lee’s claim in favor of the sheriff. But we are of the opinion that the provisions of articles 104 and 106, Penal Code, quoted above, have the effect of a special statute of limitation, whereby the sheriff collecting such fees, and his successors in office, shall hold the same for a period of four years, during which the true owner may lawfully claim them, but that, if he fail to assert his claim within that period, the fund shall go into the road and bridge fund and become the property of the county, with and by reason of which allocation the owner’s claim becomes barred. It will be assumed that, if the "Legislature had intended that the fund should be paid into the county treasury in trust for the owner, it would have so provided. The provision that the sheriff hold the fund for a period of four years, and pay it over to the owner upon his demand - within that period, was in effect a declaration that the sheriff so hold it in trust for the person originally entitled to it. But the provision that at the end of that period the fund be paid into the county treasury was absolute and without any qualification that it be so paid in trust for the owner, and this omission must be given some significance. It seems reasonable to ascribe to the Legislature an intention to declare the fund to be the property of the county after it has gone through the process prescribed in the statute. There is nothing unreasonable about this process. It gives the claimant four years in which to assert his claim, which is clearly a reasonable limitation, especially when compared with the general statutes of limitation. The claimant cannot complain, for he was charged with notice of the provisions of the statute. And especially is this true of his assignee, who, apparently with' full knowledge, purchased the claim after the lapse of four years, and after the fund -had been paid into the county treasury.

The judgment is reversed, and judgment is here rendered that appellee take nothing, and pay all costs of the litigation.

COBBS, J.

I do not concur.

On Motion for Kehearing.

SMITH, J.

Appellee insists that Lee was a private individual as distinguished from a public official, and that articles 104 and 106, Penal Code, relate only to the latter class. Lee, however, was an officer of the court by. virtue of his appointment as attorney ad litem, and the fees accruing to him by reason of his services as such officer become his fees of office, collectible as costs by the sheriff, and clearly encompassed by the provisions of articles 104 and 106.

The order of the criminal district court directing Sheriff Joe Turner, husband of ap-pellee. to turn over said fund to his successor in his office, and the order of the county commissioners directing the sheriff to pay the fund into the county treasury to be credited to the road and bridge fund, were unnecessary and futile gestures, since the statute expressly provided that the fund take that very course.

Those are public statutes, and appellee, as all persons are, was charged with notice of their provisions.

Appellee’s motion for rehearing is overruled.


author: PELPHREY, C. J. HIGGINS, J.

text:
    CITY OF EL PASO et al. v. JACKSON et al.
    No. 2586.
    Court of Civil Appeals of Texas. El Paso.
    June 25, 1931.
    Rehearing Denied July 9, 1931.
    J. Walker Morrow and J. H. McBroom, City Atty., both of El Paso, for appellants.
    Jones, Goldstein, Hardie & Grambling and Fryer & Cunningham, all of El Paso, for ap-pellee.
   PELPHREY, C. J.

On April 2, 1931, the council of El Paso, Tex., passed the following ordinance:

“Ordinance forbidding the sale, or offering for sale in the City of El Paso, of any any ice manufactured outside the City of El Paso, except ice manufactured wholly with distilled water, and declaring an emergency:
“Whereas the public health authorities of the City of El Paso are empowered within the City of El Paso to Inspect the methods used in the manufacture and storage of ice, and to test the wells from which the water is obtained, and to supervise the sanitary methods surrounding the manufacture and storage thereof; and,
“Whereas, it is impracticable to inspect and test for purity, ice manufactured outside the City of El Paso.
“Now, Therefore, to guard the public health against typhoid fever and other diseases, the germs of which may be transmitted in ice, he it ordained by the City Council of the City of El Paso, Texas:
“Sec. 1: It shall be unlawful for any person, firm or corporation to sell or offer 'for sale, or distribute in the City of El Paso any ice manufactured outside the City of El Paso, except ice manufactured wholly with' distilled water.
“Sec. 2: Any person violating the foregoing ordinance shall be deemed guilty of a misdemeanor, and shall he fined the sum of of $10.00, and each sale, or - offering for sale shall constitute a separate offense.
“Sec. 3: There being no sufficient ordinance now forbidding or preventing the sale of impure ice within the City of El Paso, manufactured outside the City of El Paso, creates a case of great public emergency, necessitating the suspension of the rule requiring ordinances to be read in open meeting of the City Council at two regular meetings as provided in See. 33 of the Charter of the City, and for • that reason said rule is hereby suspended by unanimous vote of the Aldermen present and with the consent of the Mayor, and this ordinance is hereby passed and approved, and takes effect from its passage, approval and publication.”

Thereafter appellee Rudolph Jackson filed this suit against the city of El Paso, its may- or, its aldermen, its chief of police, and the-judge of its corporation court, seeking to restrain them from enforcing or attempting to enforce said ordinance. Appellees E. T. and R. N. Anderson were allowed to intervene.

The cause was tried to the court and resulted in a judgment permanently enjoining the appellants from enforcing, or in any manner threatening to enforce, said ordinance.

This appeal is from such judgment.

Opinion.

It is agreed by the parties to this appeal, that the trial court’s action in holding the ordinance void was based upon his conclusion that it was discriminatory, and imposed a burden on interstate commerce.

Appellants contend that the trial court was in error in so concluding, and cite the case of Adams v. Milwaukee, 144 Wis. 371, 129 N. W. 518, 43 L. R. A. (N. S.) 1066, as supporting their position, while appellees assert the correctness of the judgment, and in support thereof cite Minnesota v. Barber, 136 U. S. 313, 10 S. Ct. 862, 34 L. Ed. 455.

We cannot agree that the case of Adams v. Milwaukee, supra, is in point. In that ease the city council had concluded that milk from tubercular cows was injurious to the health of the citizens of Milwaukee, and had, therefore, prohibited the sale in the city of milk from cows which had not been given the tuberculin test. In the case at bar, the council has not decided that ice manufactured from raw water is injurious, and, from the fact that a major part of the ice manufactured and sold within the city is made from raw water, we must conclude that they do not so consider it.

It appears to be well settled that states are clothed with plenary police power and large discretion in exercising that power for the protection of the public health, but that, in order to determine whether the act of the state is really a usurpation of power, the courts should look to the effect and operation of the law, and are not bound by mere form. In re Barber (C. C.) 39 F. 641; Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205.

Therefore, in passing upon the ordinance here in question, we must look to its effect and operation, and are not bound by the recitals in the ordinance of its purpose, and the reasons for its enactment.

While there is some evidence in the record to the effect that the El.Paso Ice & Refrigerator Company could manufacture ice from distilled water cheaper than the statement of the cost of manufacturing ice from raw water appearing in the record, there is ample evidence to the effect that the cost of making ice from distilled water is about 50 per cent, more than in making it from raw water.

The testimony on this point is corroborated by the fact that the record shows that the percentage of ice manufactured from distilled water has decreased from 51 per cent, in 1921, to 14 per cent, in 1929.

We, therefore, in considering the correctness of the action of the trial court, must presume he found the fact to be that it was more expensive to manufacture ice from distilled water than from raw water.

That being true, then what is the ultimate effect of the ordinance in question?

If ice can be manufactured of raw water in the city, and it costs 50 per cent, more to manufacture it from distilled water, then the enforcement of an ordinance which prohibits the sale of ice manufactured outside the city, -unless made wholly from distilled water, could have but one practical result; a denial of the right of a citizen outside the city of El Paso to sell his ice therein. The Supreme Court of the United States in the case of State of Minnesota v. Barber, 136 U. S. 455, 10 S. Ct. 862, 865, 34 L. Ed. 455, held a statute of Minnesota void because the effect thereof was to deny to the citizens of other states the privilege of selling within the state of Minnesota certain meats slaughtered without the state. The statute in question prohibited the sale of meats in Minnesota, unless the animals from which the meat was taken had been inspected by a Minnesota inspector within twenty-four hours before it was slaughtered. The court said: “If the object of the statute had been to deny alto-getter to the citizens of other states the privilege of selling, within the limits of Minnesota, for human food,, any fresh beef, veal, mutton, lamb, or pork from animals slaughtered outside of that state, and to compel the people of Minnesota wishing to buy such meats either to purchase those taken from animals inspected and slaughtered in the state, or to incur the cost of purchasing them, when desired for their own domestic use, at points beyond the state, that object is attained by the act in question.”

What was there said will apply with equal force to the ordinance in question.

We have concluded that, under the facts in this record, the effect of the ordinance is to create a monopoly in favor of those manufacturing ice in the city; is an unreasonable discrimination against people living outside the city; and imposes a burden upon interstate commerce.

We do not wish to he understood as holding that the city of El Paso cannot fix a reasonable test to be applied to ice- manufactured outside the city to insure its purity and wholesomeness.

The judgment of the trial court is affirmed.

HIGGINS, J.

(dissenting).

I recognize that the proper disposition of the question at issue in this case is not free from doubt. Because of this uncertainty, it is with hesitation that I dissent from the ruling of the majority. However. I regard the ordinance in question as valid, and for this reason dissent, briefly stating the ground thereof.

The appellees are dealers in ice and desirous of purchasing ice manufactured in the city of Juarez, republic of Mexico, and marketing the same in the city of El Paso. The ice manufactured in Juarez is made from raw water. The record discloses that ice is a suitable agent to transmit the germs of typhoid fever and other diseases. It requires forty-eight hours to test ice for contamination; Within the city of El Paso the water, from which raw-water ice is manufactured, is tested by the city health department at intervals of not more than two weeks, and, when colon bacteria show up, prompt steps are taken to correct it. As a practical matter, it is impossible to test for contamination ice brought into the city from beyond its limits, for it takes forty-eight hours to make the test, and, if ice be held for that length of time at the city gates, it will melt. Distillation of the water from which ice is manufactured gives the assurance that it is free from contamination by disease-carrying germs. The city of El Paso has no way of enforcing periodic and proper inspection of the wells in Juarez from which the ice is manufactured which the appellees desire to market in El Paso.

Confronted with this situation, and resting under the obligation to protect the life and health of the residents of El Paso, the city passed the ordinance in question. The effect of this ordinance is to prohibit the sale within the city of ice manufactured outside the city of raw water.

In my opinion Adams v. Milwaukee, 228 U. S. 572, 33 S. Ct. 610, 57 L. Ed. 971, supports the view that the ordinance in question is a reasonable regulation to safeguard the life and health of the citizens of El Paso, against the danger of ice manufactured outside the city; from impure raw water. The ordinance is, therefore, a proper exercise of the police power, and valid.

I, therefore, dissent from the ruling of the majority.


author: JACKSON, J.

text:
    FUQUA v. MAPES.

    No. 3535.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 21, 1931.
    Rehearing Denied Feb. 18, 1931.
    Carl Gilliland and James W. Witherspoon, both of Hereford, for plaintiff in error.
    Chas. H. Dean, of Dimmitt, for defendant in error.

      Writ of error granted.

   JACKSON, J.

The plaintiff C. J. Mapes instituted this suit in the county court of Castro county, Tex., against the defendant J. L. Fuqua, seeking to recover $450, interest and attorneys’ fees, evidenced by a note dated January 30, 1929, executed by the defendant and payable to plaintiff on or before July 30, 1929, and to foreclose a chattel mortgage lien on certain live stock therein described.

The defendant answered by general demurrer, general denial, and alleged that the note was given as the consideration for the purchase of one bull; that the defendant was induced to make said purchase by false and fraudulent representations; that the consideration for the note failed, etc. The defendant also filed an admission of plaintiff’s cause of action as set forth in his original petition, except in so far as it was defeated in whole or in part by the facts alleged in defendant’s answer.

The jury found in favor of plaintiff against the defendant, and on the verdict judgment was entered that the plaintiff have and recover of and from the defendant the sum of $552.50, with his costs, from which judgment the defendant, by writ of error, has prosecuted this appeal.

The appellant challenges as error the action of the trial court in overruling his general demurrer to appellee’s petition, because .he failed to allege the value of the live stock upon which he sought to foreclose the mortgage. The appellee alleges that on the 30th day of January, 1929, the appellant executed and delivered the mortgage to secure the payment of the note, and then and there warranted that the mortgaged propeitfy was of the reasonable aggregate cash value of $1,000.

It will be noted that the mortgage and the note were dated January 30, 1929, and the record discloses that the suit was filed. November 18, 1929, and judgment obtained on the 28th day of March, 1930.

If, in order for the county court to entertain jurisdiction of the case and render a judgment on the note, it was necessary to allege the values of the personal property described in the mortgage, we question the sufficiency of this allegation. Lunsford v. Pearce (Tex. Civ. App.) 19 S.W.(2d) 71, and authorities cited.

The record discloses that, notwithstanding the appellee asked for a foreclosure of his mortgage lien against the personal property described therein, there was no foreclosure of such lien by the court.

The amount of the note manifestly is within the jurisdiction of the county court, and, unless such jurisdiction was defeated by the failure of the appellee sufficiently to allege the value of the mortgaged property, the judgment should be affirmed. As disclosed by this record, the court did not attempt to exercise any jurisdiction over the property involved, but only gave a personal judgment against the appellant. It is the settled law in this state that in order to foreclose a lien on property in the county court, a court of limited jurisdiction, the pleadings must affirmatively show the value of the property on which the lien is foreclosed. The contention that a petition must affirmatively disclose the value of the property upon which a foreclosure is sought, as well as the amount of the debt sued for, in order for the court to have jurisdiction over the debt, has been variously decided by the different Courts of Civil Appeals. We are of the opinion that the decisions holding that where the amount of the debt sued for is within the jurisdiction of the court, and the foreclosure of the lien, though sought, is not obtained, that it is not fatal to the jurisdiction of the court to fail to allege the value of the property upon which a lien is claimed.

In King Lumber Co. v. Blue Ridge Mill Co. (Tex. Civ. App.) 280 S. W. 621, the court says: “The contention that the county court was without jurisdiction because the petition did not affirmatively disclose the value of the property upon which the plaintiff below sought to foreclose its mortgage is not tenable. The amount of the notes was clearly within the jurisdiction of the county court; and, while the petition prayed for a foreclosure of a lien on certain machinery, without disclosing the value of the machinery, no judgment of foreclosure was rendered. ⅜ * * ” And, “We think that the question of jurisdiction is eliminated because of the failure of the court to render any judgment for the foreclosure of the lien.”

The judgment is affirmed.


text:
    BYARS et al. v. COLEMAN.
    No. 4032.
    Court of Civil Appeals of Texas. Texarkana.
    May 21, 1931.
    S. F. Leslie, of Bonham, for appellants.
    Cunningham & Lipscomb, of Bonham, for appellee.
   SELLERS, J.

This is an appeal from a judgment of $300 entered against appellants in the district court of Fannin county, Tex. There are no assignments of error in the record, and, in the absence of same, this court is only authorized to pass upon such errors as are apparent of record, or fundamental errors, as they are sometimes called. Neither does this court have jurisdiction to review the statement of facts in determining whether fundamental error has been committed. Blackmon v. Trail (Tex. Com. App.) 12 S.W.(2d) 967.

We have carefully considered the pleadings and the findings of fact and the conclusions of law filed by the court, and have reached the conclusion that they are sufficient to support the judgment.

Finding no error apparent of record, the judgment of the trial court is affirmed.


author: LEVY, J.

text:
    FIRST NAT. BANK OF PITTSBURG v. GERARD et al.
    No. 4046.
    Court of Civil Appeals of Texas. Texarkana.
    June 4, 1931.
    Briggs & Sanders, of Gilmer, for appellant.
    C. E. Florence, of Gilmer, for appellees.
   LEVY, J.

Mrs. Gerard sued G. C. Cox on a note, and to foreclose a chattel mortgage given to secure it. A foreclosure of the mortgage was sought against the First National Bank, and, in the alternative, a judgment for the value of the mortgaged property as for conversion. Certain of the property was sequestered by the plaintiff, and claimed under bond by the bank. The bank pleaded a .superior and prior mortgage upon the property. G. C. Cox set up and proved by evidence his discharge in bankruptcy.

In a trial before the court, judgment was rendered-in favor of the plaintiff against the bank for $350 as for conversion of the property mortgaged, and in favor of G. C. Cox because of discharge in bankruptcy. It was shown by the evidence that G. C. Cox executed a chattel mortgage of date July 11, 1927, to Edna Gerard for $385 and “all other advances made during 1927.” The property covered by the chattel mortgage was a Ford touring ear, an Espenschied wagon, two mules, and forty acres of cotton, and twenty acres of corn, and all rents of the land for 1927. A chattel mortgage was also executed by G. C. Cox to the bank of date January 27, 1927, for $500 and “all other indebtedness thereafter incurred.” This mortgage included, besides other property, the same property describéd in Mrs. Gerard’s mortgage. Both of these mortgages were duly registered. It appears that the bank in 1927 made advances to Mr. Cox to the amount of $817.50, which with the amount of the $500 note aggregated $1,317.50. Out of the proceeds of the crop of 1927, Mr. Cox paid the bank sums equalling $586.22. This payment was applied to the advances made during the year, leaving unpaid in December, 1927, $131.28 in addition to the original note of $500. Mr. Cox paid nothing in 1927 on the mortgage of Mrs. Gerard. In 1928, Mr. Cox made a new mortgage to the bank covering the unpaid indebtedness of 1927, and to secure new advances for the year 1928. He did the same in 1929.

la tie spring of 1929, G. C. Oox, failing to pay tie original note of $500 of 1927, turned over tie mortgaged personalty to tie bank. Tie mules, tie Ford car, wagon, and certain ea,ttle were valued at $595, and tie note of Oox was credited by tie bank in that suim. Tie original note and interest exceeded that amount. Tie property appears to have been fairly valued. There is no evidence that the bank’s note was paid otherwise than by the above proceeds of the mortgaged property. The trial court made the findings, as recited in the judgment, that: “The payments made on the indebtedness to the First National Bank of Pittsburg released from said bank’s mortgage the property described in the plaintiff’s mortgage and the bank was not entitled to ownership and possession of said property at the time of the alleged conversion.”

The turning question on appeal is, Was the court’s finding sustained by the evidence? The inquiry involves the application of payments. Mr. Oox testified: “When I borrowed the money from the bank in 1927 I had an understanding with the bank that I would out of the proceeds of the crop first pay the amount of the new indebtedness before applying anything on the other indebtedness (the $500 note). At the end of the year 1927 I did not have enough money out of the proceeds of the crop to pay all of the new indebtedness. During 1928 and 1929 I also had an understanding with the bank to apply the proceeds of the crops, first to payment of the new indebtedness before applying anything on the old indebtedness (of $500 note). The payments made in each of the years of 1927,192S, and 1929 were applied out of the crops to the new indebtedness according to the agreement between me and the bank.”

The bank’s evidence is in line with the evidence of Mr. Oox, and there is no conflict of evidence in the above matters of payments. Therefore, according to the proof, the money paid by G. O. Cox to the bank was for the advances, above the $500 note of January, 1927, made in 1927, 1928, and 1929 out of the proceeds of the crops grown. The bank had the prior lien on the crops of 1927, and was entitled to the proceeds thereof first for advances of that year. The bank was also entitled to all the proceeds of the crops of 1928 and 1929 for advances of those years, for Mrs. Gerard had no claim therein, as she had no mortgage covering the crops of 1928 or 1929. In such facts, the bank had the right to appropriate all of the payments out of the proceeds of the several crops as done, and Mrs. Gerard could not compel a different appropriation from that agreed upon between the bank and Mr. Oox. 48 G. J. § 123, p. 663.

As the record here reflects, Mrs. Gerard’s rights as against the bank depended solely upon whether or not the specific property turned over to the bank in 1929, and upon which Mrs. Gerard also held a mortgage, was of a fair and reasonable value above the $500 note and interest thereon, held by the bank. Mrs. Gerard would be entitled to the surplus above the $500 and interest thereon as a junior mortgage. The bank’s unpaid balances for advances in 1928 and 1929 could not be paid out of this specific property in precedence of Mrs. Gerard’s note, because the bank’s mortgages of 1928 and 1929 would be subject to Mrs. Gerard’s debt, except as to the bank’s note of 1927.

The judgment is reversed, and the cause is remanded.


author: RANDOLPH. J.

text:
    SHIELDS et al. v. LITTLE.
    No. 3632.
    Court of Civil Appeals of Texas. Amarillo.
    June 17, 1931.
    Rehearing Denied July 11, 1931.

      Luther Gribble and Jas. C. Mahan, both of Wellington, for appellants.
    R. H. Templeton, of Wellington, for appel-lee.
   RANDOLPH. J.

This suit was instituted by M. Little, as plaintiff against Frank Shields, J. M. Shields, and Grace Shields, ■ as defendants. From a judgment in favor of the plaintiff and against the said defendants, the defendants J. M. Shields and Myrtle Shields have appealed; Myrtle Shields having intervened in the suit.

The plaintiff’s original petition alleged substantially: That on or about October 1, 1926, J. M. Shields and wife, Myrtle Shields, conveyed to Frank Shields lots Nos. 1, 2, 3, and 4 in block No. 89 in Wellington, Collings-worth county, Tex., by their general warranty deed in writing of that date, in consideration of which, among other things, Frank Shields executed and delivered to J. M. Shields two vendor’s lien notes, each dated October 1, 1926, one for $2,500, due October 1, 1927, the other for $975, due October 1, 1928, each payable to J. M. Shields or order, and bearing interest at the rate of 10 per cent, per an-num from date until paid, and providing for attorneys’ fees. That on the 30th of July, 1928, J. M. Shields, payee in said notes, sold and transferred same to M. Little, plaintiff herein, and indorsed said notes in writing, whereby the said J. M. Shields became bound to pay same. That, in addition to delivering said notes and indorsing them as aforesaid, ■ said J. M. Shields executed his written transfer of said notes whereby said J. M. Shields assigned the vendor’s lien securing same, together with all rights and interest in and to said lots which he owned by virtue of being the payee in said notes and the grantor in said deed, to said M. Little, who is now the owner and holder of said notes and lien, for a valuable consideration paid to J. M. Shields.

That thereafter said Frank Shields was unable to pay said notes according to their tenor and effect. That plaintiff, at the special instance and request of defendants J. M. Shields and Frank Shields, took up and extended the time of payment of said notes,, and Frank Shields and wife, Grace Shields,. thereupon executed a deed of trust on the property described, on July 15,1928, and said deed' of trust was executed and delivered by Frank Shields and wife to R. H. Templeton, as trustee for plaintiff, and said indebtedness was extended by J. M. Shields and Frank Shields and Grace Shields executing and delivering to the plaintiff their one certain promissory note dated July 15, 1928, payable to plaintiff for $3,500, due in five years, with interest at 10 per cent, from date until paid, to be paid semiannually, and failure to pay the interest as it accrued to mature said note; also providing for attorneys’ fees whereby the three defendants became liable and bound to pay, and promised to pay, the plaintiff the sums of money named in said note.

That said deed of trust, among other things, provides as follows: That the above loan is made for the purpose of renewing and extending the following indebtedness, here describing the two vendor’s lien notes as above set out, one being for the sum of $2,-500 and'the other for $975, and also one note ■for the sum of $597.31, executed by Frank Shields dnd wife, Grace Shields, and payable to the Panhandle Construction Company, and on which note two installments of $99.65 and interest have been paid. That the note for $597.31 was a first and prior lien on the above-described property, as same was a statutory lien for paving, and it was necessary to take up and extend the same, and, by reason thereof and the said deed of trust lien and paving lien securing the same, he is subrogated to all the right, title, and liens in favor of the Panhandle Construction Company and all the right, title, and vendor’s lien in favor of J. M. Shields, as payee in said vendor’s lien notes,, and is now the legal and equitable owner and holder of said notes and liens and entitled to the foreclosure of same. Plaintiff further alleges that said vendor’s lien notes are past due and unpaid, both principal and interest, and that the promissory note for $3,500 and interest, payable semiannually, has been declared due by the plaintiff because of the failure to pay the interest on same. Plaintiff also claims at-, torney’s fees under proper allegation.

Defendant J. M. Shields filed his answer, consisting of a general denial, and specially pleading that the property in controversy was and is his family homestead; also pleading the facts of the transaction between himself and Frank Shields and plaintiff practically as pleaded by the plaintiff, and further pleading want of consideration as between himself and Frank Shields. Defendant J. M. Shields further pleads the maturity of the note for $2,500, executed by Frank Shields at the time plaintiff purchased same from J. M. Shields, and that plaintiff thereby became charged with notice of the fact .that the property in controversy was the homestead of defendant J. M. Shields and his wife, Myrtle Shields.

Mrs. Myrtle Shields, wife of J. M. -Shields, joined pro forma by her husband, intervened in the suit, and pleaded that the property in controversy was, at the time of the purchase of the notes and liens against it by the plaintiff, the homestead of herself and husband, and also pleaded that the deed from J. M. Shields and herself to Frank Shields was null and void, and also seeking the cancellation of the deed of trust securing the debt to plaintiff.

Intervener, Mrs. Shields, also attacks the pavement lien for reasons later discussed, and pleads that the debt which said lien secured was void, and that, when plaintiff paid same, he was only a volunteer, and is not entitled to recover the money paid by him in taking up said paving lien.

The defendants Frank Shields and his wife filed no answer and made no appearance.

'On trial before the court without the intervention of a jury, judgment was rendered for the plaintiff as prayed for in the sum of $4,757.50, and interest from date of judgment, with foreclosure on the property in controversy. From this judgment defendant J. M. Shields and wife, Myrtle Shields, have appealed.

Appellants assign as error that the court erred in rendering judgment against them because the evidence discloses that J. M. Shields and Myrtle 'Shields, with full knowledge of their rights to the property in controversy as their homestead, and for the purpose of securing a lien on their homestead, executed and delivered to their son, Frank Shields,' a warranty deed to the property in controversy, reciting a consideration of $2,500 cash and the two notes above described, one for $2,500 and the other for $975, each payable to the order of J. M. Shields.

The first note, as stated above, became due and payable October 1, 1927, and was unpaid at the time same was transferred by J. M. Shields to the plaintiff in the transaction stated above between J. M. Shields and Frank Shields and the plaintiff. The defendants J. M. Shields and Myrtle Shields contend that, under the facts of the transaction, the trial court erred in concluding as a matter of law that the plaintiff was an innocent bona fide holder of said 'notes and liens for value, because, as a matter of law, when a note is acquired after maturity, the purchaser is charged with notice of any defense the original maker thereof has to such note, and stands in no better position than the original holder of same; that, as the $2,500 note was due at the time it was extended and purchased by the plaintiff, this fact charged the plaintiff with the duty of investigating the conditions surrounding the transaction between J. M. Shields and wife and Frank Shields; and that a proper inquiry would have led to the knowledge that the transaction between those parties was a simulated transaction executed for the purpose of borrowing money upon the homestead of J. M. Shields and Myrtle Shields.

There is no question but what J. M. Shields and his wife concocted a deliberate scheme to use this simulated transaction to make a loan upon their homestead, knowing fully the effect of their action. This was in part bolstered up when the deed was executed by having Frank Shields and his wife move into the house with them for a short time. The facts in evidence disclose no equities in favor of the Shields; but their claim to the property in controversy is based solely upon the charge that the plaintiff bought the two vendor's lien notes with the knowledge that the first one was past due; that this gave him notice that would require investigation and would thereby defeat a recovery of a judgment of foreclosure on the home.

The fact that J. M. Shields and his wife were living on the property furnishes no constructive notice, for by their deed to Frank Shields they had placed on record the divestiture of that title, and thus deprived themselves of the evidence of ownership upon which to base their claim of homestead.

We recognize the rule to be that a purchaser who acquires a note after maturity, or who acquires a series of notes subsequent to the maturity of the first of the series, is not an innocent purchaser or bona fide holder of said note. Huselby v. Allison (Tex. Civ. App.) 25 S.W.(2d) 1108, 1112; Harrington v. Claflin, 91 Tex. 294, 42 S. W. 1055.

The appellants invoked this rule, and we must sustain their contention as to that part of the judgment which was rendered for the plaintiff for the sum of the two vendor’s lien notes. It was held, it is true, in the case of Eylar v. Eylar, 60 Tex. 315, that a purchaser from a vendee whose vendor remains in possession is not bound to inquire as to the title, when he finds on record in the county deed records a deed from such vendor conveying title, properly proved up and registered, and this rule has been consistently followed by the decisions of this state, but the question of possession is not here being considered as constructive notice. The constructive notice invoked is the purchase of one of the vendor’s lien notes after maturity, which is an entirely different proposition.

It having been conclusively shown that the plaintiff’s purchase of the two vendor’s lien notes was consummated at a time when the first note was matured, it was such constructive notice as would lead him as an ordinarily prudent man to make inquiry as to the status of the property and the conditions of the holding and title.

The note and paving lien given by Frank Shields and his wife were executed prior to the maturity of either of the vendor’s lien notes executed by Frank Shields and while he held the record title to the lots in controversy. Hence, when the plaintiff took over the paving debt, he took a valid transfer of said note and lien, and the judgment of the trial court in favor of the plaintiff was correct as to that sum; that is, the amount due on the paving lien was correct.

It is claimed by the appellants that the paving lien, first, was not executed by the owners of the lots; and second, was a voluntary payment by the plaintiff, for which he cannot recover.

We cannot affirm these contentions. The paving contractor took his lien from Frank Shields and his wife, without notice of any claim of homestead, and while the title to the property was still in the name of Frank Shields, duly recorded in the county deed records. He was the apparent owner, and signed and acknowledged with his wife a homestead paving lien, and the paving company was fully justified in accepting said lien as security for the work done by them for the ostensible owners of the homestead.

The purchase by the plaintiff of the pavement lien was not a voluntary purchase. At the time he purchased'same, his lien existed on the homestead and had not been determined adversely to him by a court of competent jurisdiction. It was yet to be tried out. Hence he was warranted in purchasing said paving note to protect his other lien.

We therefore reverse and render that portion of the trial court’s judgment granting the plaintiff a foreclosure upon the property in question, and render same that the plaintiff be and is refused a foreclosure upon said lots by reason of the judgment upon the two vendor’s lien notes given by Frank Shields to J. M. Shields; but affirm the judgment as a personal judgment against J. M. Shields' and Frank Shields for the sum of said two vendor’s lien. notes and for the .amount of the paving note and lien, together with the foreclosure of said paving lien as against all the defendants here involved, upon the property in controversy.


author: SMITH, J. ’

text:
    SCHWARTZ v. MIMS et al.
    No. 8629.
    Court of Civil Appeals of Texas. San Antonio.
    June 10, 1931.
    Rehearing Denied July 8, 1931.
    R. R. Mullen, Jr., of Alice, and N. A. Rector, of Laredo, for appellant.
    Bismark Pope, M. J. Raymond, and Gibson & Blackshear, all of Laredo, for appellees.
   SMITH, J. ’

H. D. Schwartz is prosecuting this action against R. K. Mims and other individuals, alleging that the defendants, as officers of the First State Bank & Trust Company, a Laredo banking corporation, fraudulently' converted the assets and earnings of said corporation to their own uses; that by those acts the corporation was rendered insolvent and forced into liquidation by the state hanking commissioner ; that plaintiff owned 630 shares of said capital stock, which, but for said acts, had a market value of $93,000, and, because of said acts, had been rendered worthless. The plaintiff sought, individually, to recover of the defendants damages for the depreciation in the value of his stock, as well as upon other elements of damage not necessary to mention here. The plaintiff alleged that the corporation and its directors had failed and refused to bring this action against 'the defendant, and that by reason thereof plaintiff maintains the suit in his own behalf as a stockholder, as well as in behalf of all other stockholders in his class who may intervene to protect their interests. He did not implead the corporation, or seek to recover for or in its behalf, but sought only to recover directly in his own behalf. The trial court sustained the general demurrer to Schwartz’ petition, and he has appealed.

It may be said, generally, that there is no privity between the officers and the stockholders of a corporation, for the former are agents of the corporation and not of the stockholders. If by their malfeasance officers wrongfully lose or misappropriate the assets of the corporation, the right of recovery there-for is in the corporation. Any money so recovered would become assets of the corporation, and should be applied first to the payment ,of its debts, and the excess only distributed to the stockholders.

It is well settled, however, that, where the corporation refuses in such case to bring. suit against the offending officers, then individual stockholders may bring an equitable proceeding against the guilty ones to protect the corporation as trustee for all its stockholders and creditors. Morse, Banks & Banking (5th Ed.) § 717; 7 C. J. p. 569, § 177; 3 R. O. L. p. 466, § 96; Evans v. Brandon, 53 Tex. 56; Cates v. Sparkman, 73 Tex. 621, 11 S. W. 846, 849, 15 Am. St. Rep. 806; Becker v. Ry., 80 Tex. 486, 15 S. W. 1094, 1098; Barthold v. Thomas (Tex. Com. App.) 210 S. W. 506; Hewit v. Oil Corp. (Tex. Civ. App.) 35 S.W.(2d) 787.

In such case the stockholder has no right of action for direct recovery of damages in his individual behalf, and, where his petition sets up such a cause of action only, it is bad on general demurrer, according to the authorities last cited. In the case of Evans v. Brandon, supra, which is precisely in point with the present case, it was said by our Supreme Court that “a fatal defect in the plaintiff’s petition, both original and amended, is, that it seeks no recovery in behalf of the corporation, but seeks a direct recovery of damages for the plaintiff individually, the case stated not entitling him to such a recovery.” Such is the case stated here by appellant, and the trial court therefore did not err in sustaining the general demurrer.

In any event, under the allegations in appellant’s petition, wherein he seeks only direct recovery in his own behalf, the corporation was an indispensable party, and appellant’s failure to implead it was fatal to his suit. Pom. Eq. (3d Ed.) §§ 1094,1095; Barthold v. Thomas, supra; Hewit v. Oil Corp., supra.

The judgment is affirmed.


author: [LEV?, J.

text:
    MOSS et al. v. REVERRA.
    No. 4050.
    Court of Civil Appeals of Texas. Texarkana.
    June 24, 1931.
    Rehearing Denied July 7, 1931.

      King, Mahaffey, Wheeler & ■ Bryson, of Texarkana, for appellants.
    L. E. Keeney, of Texarkana, for appellee.
   [LEV?, J.

(after stating the case as above).

There is presented for decision the points in view, in effect, that (1) there was not,established any promise on the part of Mrs. Moss to pay the pre-existing indebtedness of $125 due the appellee, and (2) the agreement of Mrs. Moss, to assume the payment of the $125 for the steel casket used in the exhumation and reburial of the body of Robert S. Campbell, was not a' contract within the legal powers of contract of a married woman.

There is evidence going certainly to show that the appellee provided a steel casket worth $125 to rebury the exhumed body of Robert S. Campbell. Since the evidence pertaining thereto is conflicting, the trial court’s finding would have to prevail, as involved in the judgment, that the steel casket was furnished at the joint instance of J. M. Campbell and Mrs. Moss and they jointly agreed to pay therefor the sum of $125. Thereafter, on December 1, 1928, as further found by the trial court upon conflicting evidence, “Lynnie S. Moss with the consent and acquiescence of her husband, R. R. Moss, agreed to pay the plaintiff in this case the debt involved herein, that is, the sum of $125 which was to be paid to the plaintiff for the furnishing of the steel casket to rebury Robert S. Campbell.” The particular agreement does not appear to have been embodied in the written agreement, as seems, by reason of the intention of the parties. The general agreement was treated in the case as resting partly in parol and partly in writing. Therefore, in view of the findings, it must be said that in point of fact Mrs. Moss did agree to pay the indebtedness of $125 in evidence.

The pext point depends on the eircumstanc. es, for her right is measured by the nature of the contract. The factual elements are reflected by the written agreement of .December 1, 1928, and appear in the evidence without conflict, that J. M. Campbell and Mrs. Moss, being the only heirs, mutually agreed between themselves to set aside and not to probate the will of Mrs. Ida Campbell, and not to have any administration on her estate, but independently themselves to make “compromise and settlement of their rights, including partition and division of said estate.” It appears in the agreed division made of all the property that there was set aside to J. M. Campbell certain pieces of personal property which was a part of Mrs. Ida Campbell’s 'interest in the community property,. and also all of the homestead, and on the terms of equalization of rights and equities therein he was to pay Mrs. Moss the sums of $40 and $20 as community debts owing her. There was set aside to Mrs. Moss certain pieces of personal property which were a part of the community personal property, and all of the separate personal property of Mrs. Ida Campbell. Mrs. Moss was to take and receive certain of the pieces of the separate personal property set over to her purely as an heir. She was to take the remaining part of the property set over to her upon the following footing; Mrs. Moss was required to:

“(1) Cancel all indebtedness of every kind and character held by her against the estate of Mrs. Ida Campbell and against the community estate of Mrs. Ida Campbell and J. M. -Campbell;
“(2) pay to J. M. -Campbell the sum of $75 in cash to equalize the rights and equities of the parties to the personal property division herein made;
“(3) Mrs. Lynnie S. Moss shall pay the funeral expenses of the said Mrs. Ida -L. Campbell amounting to the sum of $434.72 owing to the Reverra-Eewell Euneral Home and the further sum of $26.50 in connection with such funeral expenses;
“(4) Mrs. Lynnie S. Moss to pay to Paul Reverra the sum of $125 for the furnishing of the steel casket to rebury Robert S. Campbell.”

Mrs. Moss took over one of the three pieces of jewelry, the sepa'rate property of her mother, not as heir but solely in satisfaction and cancellation of her claim of indebtedness against her mother’s estate. She took over another piece of the separate property, the diamond brooch of her mother, not as heir, but purely upon the stipulation that she pay all the funeral expenses of Mrs. Ida Campbell. And upon the promise of Mrs. Moss to assume the payment of the $125 for the steel casket for the reburial of Robert S. Campbell, she took over particular pieces of personal property which otherwise would have been taken by J. M. Campbell by descent, and bave been delivered over to him in severalty. The trial court found, in effect, that Mrs. Moss in assuming to pay the $125 was thereby paying J. M. Campbell for the particular property as of purchase thereof, and not a reimbursement for a deficiency in value as equalization of shares in the property. The court found upon evidence warranting it, viz.: “I find in consideration of such agreement (assuming to pay the $125) of the said Lynnie S. Moss, J. M. Campbell relinquished all rights he had by inheritance in the separate proper-, ty of his deceased wife to the defendant, Lyn-nie S. Moss, and also delivered to her certain property which was community property between him and his wife and in which Lynnie ¡S. Moss had no interest by reason of the will of her mother. I further find that by the agreement (to assume to pay the $125) made between Lynnie S. Moss and J. M. Campbell that Lynnie S. Moss acquired, to say the least of it, several hundred dollars worth of personal property which in law belonged to the defendant, J. M. Campbell.”

Therefore, in the light of the nature of the transaction and in the view of the trial court’s finding of fact, What is the legal classification of the special agreement of Mrs. Moss to assume the payment of the $125 for the steel casket? In order for the agreement to be a contract within the Married Women’s Act, it must have been (1) for the benefit of her separate estate, or (2) for or about the management and control of her separate property. Article 4614, R. S.; Whitney v. McMahan, 111 Tex. 242, 231 S. W. 694; Speer on Marital Rights (3d Ed.) § 179.

It is believed that it may not be reasonably concluded that the agreement by Mrs. Moss to assume the payment for a steel casket used in the exhumation and reburial of the body of Robert S. Campbell was in the nature of a contract for or about the care and benefit of her separate property, in the course of the management or control of the same. At the time she assumed the liability, the property was not even in her present possession or in her control. And nélther can her. agreement to assume the liability be in anywise regarded, directly or remotely as a benefit of her separate property. The $125 was not a debt nor incumbrance for which either the separate or the community property of Mrs. Ida Campbell was liable to pay. Nor was it an existing charge at the time upon any of the pieces of the separate personal property of Mrs. Moss inherited by her as an heir, or as equalization of shares set aside to her purely as an heir. Such indebtedness had no relation whatever to the common property then being voluntarily partitioned. It did not enhance its value, or in any way go to the benefit of the property. The assumption of the liability was purely a personal undertak-ing on the part of Mrs. Moss to pay out money in discharge of an indebtedness previously incurred jointly by her and J. M. Campbell. As plainly established by the trial court’s finding of fact, which is the controlling 'fact of the point under consideration, the assumption by Mrs. Moss of the "liability for the $125 became the sole consideration for what Mrs. Moss got in the way of certain portions of personal property beyond that coming to her as an heir. For the $125 was not an amount to be paid J. M. Campbell as reimbursement for deficiency in value as equalization of shares. In the view of the aforementioned finding, Mrs. Moss was taking the particular portion of property by purchase, and not by descent, as distinct pieces of personal property “which belonged to J. M. Campbell.” In effect, it was a sale by one cotenant of a particular portion of the personal property to another cotenant. A transfer of particular portions of personal property for a stipulated price is not a partition in severalty, but a simple sale. Therefore, such portions of the personal property so acquired, although on a sufficient consideration, would be community and not separate property under the statute, and the consideration agreed to be paid for the same would be no more than a community debt. For separate property can only be acquired under the law by gift, devise, or descent. Section 15, art. 16, Const.; Article 4614 (amended by Acts 1929 c. 32, § 1 [Vernon’s Ann. Civ. St. art. 4614]). Quoting from Speer on Marital Rights (3d Ed.) § 191 on the wife’s liability for unpaid purchase money: “A distinction must be borne in mind between the power to own property and the power to contract for its acquisition. It has always been held that the wife is liable for money only when the articles purchased were necessaries or for the benefit of her separate property. It has never been thought that she Las the right to buy indiscriminately what she pleases and bind herself or her husband.”

The cases cited in the brief point out a different state of facts from the facts now under consideration in the present case.

In passing, it may be observed in the case that in view of Mrs. Moss’ taking by purchase the particular portions of property “which belonged to J. M. Campbell” that probably the right would exist in J. M. Campbell, upon the ground that the particular agreement of purchase on the part of Mrs. Moss was void, to recover back from Mrs. Moss the possession of the specific pieces of property so delivered over to her upon her promise to pay therefor the $125. Although, being a married woman, she could not legally bind herself by the contract, yet Mrs. Moss would be estopped from claiming and withholding such particular pieces of property, without paying the purchase price therefor. In that character of suit, the point of estoppel would rest as similarly in tlae case of Pitts v. Elsler, 87 Tex. 347, 28 S. W. 518. But the appellee’s right to hold Mrs. Moss for the liability is, and would be, entirely dependent upon the legal validity of her agreement to pay the. money.

In view of the facts, it is believed that Mrs. Moss cannot he held personally liable for the debt sued on, and the judgment against her is accordingly reversed, and .judgment is here entered in her favor, with the costs of the appeal and of the trial court. The judgment against the appellee, J. M. Campbell, will be in all things undisturbed, he not having appealed from the judgment rendered.

The judgment *is affirmed in part, and reversed and rendered in part.