text:
    MATTHEWS v. STATE.
    No. 14286.
    Court of Criminal Appeals of Texas.
    May 13, 1931.

      E. A. Camp, of Rockdale, and E. A. Wallace, of Cameron, for appellant.
    A. J. Lewis, Co. Atty., of Cameron, and Lloyd W. Davidson, State’s Atty., of Austin, for the State. <
   CALHOUN, J.

The offense is murder; punishment, confinement in the penitentiary for eighteen years.

This is the second appeal of this case. The report of the case on the former appeal will be found in 28 S.W.(2d) 164.

The killing occurred in what is called “Santa Eé” town within the city of Cameron on July 6, 1929. Deceased was shot twice with a pistol, one of the shots being in the neighborhood of the heart and the other shot in the arm. The state’s proof showed that he was shot while standing on the gallery of the Matocha Hardware Store, and after being shot, he ran a short way down the alley and fell back of the Santa Fé market and died within a few minutes without making any statement. Deceased, when killed, was in his shirt sleeves with his vest open and was unarmed. The state’s evidence further showed that at the time of the shooting appellant was standing behind a truck which was drawn up within a few feet of the Matocha Store gallery, and that he rested his pistol on the truck bed when he fired. A number of witnesses for the state described the scene of the shooting and testified substantially that at the time deceased was doing nothing and that they saw no movement of his hand, and that after he was shot, he stumbled off the gallery and -ran down the alley. The witness Barto MeAnnlty was passing the scene in a car at the time of the homicide, and was only a few feet from appellant. He testified that he saw appellant get out of the truck, walk behind the cab of the truck, lay the pistol across the truck bed, and fire. Also that deceased was doing nothing at the time. After the shots, said witness saw Bob Sammon crank the truck and leave with the appellant.

Appellant testified that he had just walked across the street to the truck; that he had not gotten in; and that he saw deceased on the gallery, and that deceased made a hostile move as if to draw a weapon, and he (appellant) fired in self-defense. Appellant also proved by his own testimony, and by other witnesses, that theretofore, in May, deceased had shot him. Appellant also offered evidence as to prior threats made by deceased to kill him or do him serious bodily injury. The case was submitted to the jury under a charge on murder, self-defense, and self-defense in connection with threats.

Appellant’s counsel in their brief urge three grounds for reversal, substantially as follows: (1) Error predicated on tlie court’s charge to the jury on threats; (2) error predicated on admission of testimony as to prior difficulty between deceased and appellant; (3) error predicated on argument to the jury by state’s counsel.

Appellant excepted to paragraph 11 of the court’s charge on the ground that' same was too restrictive of appellant’s right of self-defense based upon communicated threats, in that the court in said paragraph of -the charge applied the law of self-defense based upon communicated threats, to the facts of the cause, but after so doing, and in connection therewith, did not instruct the jury to find that if they believed ‘or had reasonable doubt that the appellant shot the deceased within the meaning of the instruction, they should acquit him.

Paragraph 11 of the court’s charge on the law of threats, which is complained of by the appellant, is as follows:

“When a defendant accused of murder seeks to justify himself in killing the deceased on the ground of threats against his own life or threats to do him some serious bodily injury, he is permitted to introduce evidence of the threats alleged to have been so made, but the same will not he regarded as affording a justification for the killing, if any, unless it be shown that at the time of the killing, if any, the person killed, by some act then done manifested an intention as viewed from the standpoint of defendant at the time, to execute the threats so made.
“So in this case, if you believe from the evidence, that prior to the killing, if any, it was communicated to the defendant, or if you believe that he had knowledge thereof, that threats had been made by the deceased to kill or inflict serious bodily injury upon him, defendant, and that defendant believed that such communications as to threats made against him by deceased, Hoseh, were true, even though you may believe that no threats had in fact been made, and if you further believe from the evidence that at the time of the killing, if any, the deceased by act or acts then done, reasonably created within the mind of the defendant, as the situation was viewed solely from the defendant’s standpoint at the time an apprehension or fear that said deceased, Hosch, was in the act of executing the threats, if any, so communicated, if they were, or was about to execute the same, or if you believe that the deceased, Hosch, by his act or acts or conduct, or either, if any, indicated to the defendant, as the situation was viewed solely from defendant’s standpoint at the time, that he, Hosch, was then and there about to attack the defendant and inflict upon him death or serious bodily injury, even though you may believe that no danger in fact existed, and that so believing the defendant shot and thereby killed the deceased, then you are instructed that the same would be a justifiable homicide, and if you so believe, or if you have a reasonable doubt thereof, you must acquit the defendant and say by your verdict ‘not guilty.’ ”

The alleged fault or vice complained of by appellant as to this paragraph of the court’s charge is to the effect that said charge by its provisions tied the application of the instruction upon self-defense based on communicated threats with the instruction previously given as to self-defense based upon real or apparent danger not connected with communicated threats, and by so doing rendered the charge uncertain and confusing.

Such complaints as to this section of the court’s charge usually arise in eases where there has been no separate charge given on self-defense upon real or apparent danger and where the wording or arrangement in attempting to set out both propositions in one general statement gives rise to confusion. However, in this case, the trial court in paragraph 10 of the charge gave the jury full instructions on the law of self-defense, generally. This part of the charge is not complained of, but as we understand appellant’s exception to paragraph 11, it only applies to that part of it beginning, “Or if you believe that the deceased, Hoseh, by his act or acts or conduct,” and that which follows. As we construe paragraph 11 of the court’s charge, the plain effect and import of said paragraph is simply an instruction to the jury to acquit in either event, first, if they find that self-defense existed under the proposition of threats, as theretofore explained; or, second, if they find that deceased by his act or conduct indicated to defendant that deceased was about to attack him; and that under either state of affairs as viewed from appellant’s standpoint at the time, the jury is simply told to acquit if they find either of said state of affairs to exist. The only possible effect that the part of paragraph 11 complained of could have had was to give an additional charge on self-defense as had theretofore been given in paragraph 10. This attack on paragraph 11 of the charge, when considered (as it must be) in connection with paragraph 10 of the charge, is not deemed injurious to the rights of appellant, but would be in his favor and therefore would not call' for a reversal under article 666, O. O. P.

The matters complained of by appellant as shown by bills of exception Nos. 1, 2, 3, and 4, involve the testimony of appellant on cross-examination, and of the witnesses Ella May and Marie Hosch, on rebuttal by the state, as to the details of the first shooting, which was admitted over timely objections by appellant. The same questions arising as to the testimony of each of the witnesses, as well as of appellant, the bills will be considered together.

Appellant complains of the admission of said testimony on the ground that same was prejudicial and injected into the case details of another transaction between appellant and deceased, and was highly inflammatory.

The qualifications of the court to said bills of exception show that the state had not attempted to prove any previous trouble or shooting between the appellant and deceased prior to the killing in July, 1929, for which the appellant was on trial, and it was after the state had rested that the appellant went into said prior difficulty, and that the appellant himself while upon the witness stand testified on direct examination as to having been shot by deceased.

Appellant having voluntarily gone into the facts of said previous difficulty, we know of no rule of evidence devised for the purpose of eliciting the truth and aiding in the ad- ' ministration of justice that would permit one side to bring out wlmt it desired to disclose to tbe jury about a prior difficulty between tbe same parties, and not permit the other side to convey to the jury its version of said prior difficulty, which might be necessary to make it fully understood or to explain the same. It is the rule recognized by ali courts and text-writers to give the right to one against whom a part of an utterance or transaction has been introduced the privilege of introducing the remainder. See Wigmore on Evidence (2d Ed.) vol. 4, § 2113; also volume 3 (2d Ed.) § 1786. This principle has found expression in our own statutory law manifested by article 728, C. C. P. (1925), which is as follows: “When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it. fully understood or 'to explain the same may also be given in evidence.”

By bill of exception No. 5 appellant complains of the action of the court in permitting the witness Dr. M. C. Sapp (and other witnesses who testified to substantially the same effect) to testify as follows: “I knew Ms (the deceased’s) character as to whether he was a man of violent or dangerous character or a man of kind and inoffensive disposition. 1-Iis character was kind and inoffensive!’

The appellant objected because he had made no attack or questioned the character of deceased in any way and contended that, in the absence of such an attack, the state was not privileged to introduce evidence as to deceased’s character. The court qualified, the bill to the effect that the appellant in putting on his case had proven by several witnesses that prior to the homicide and some time in June, 1929, and after appellant had been shot by deceased, Hosch, in May, that deceased had made threats against the life and safety of appellant and that said witnesses communicated said threate to the appellant prior to the homicide. We see no error in the -admission of this testimony. Proof of communicated threats of deceased, when introduced in evidence by defendant, authorized the state to prove the good character for peace of deceased, though the defendant offered no proof of the character of deceased. See article 1258, P. C.; Branch’s Ann. P. C. § 2095; Russell v. State, 11 Tex. App. 296; Sims v. State, 38 Tex. Cr. R. 642, 44 S. W. 522; Canon v. State, 59 Tex. Cr. R. 407, 128 S. W. 141, 146; Williams v. State, 61 Tex. Cr. R. 356, 136 S. W. 771.

The remaining 'bill of exception No. 6 was taken to an extended argument of state’s counsel, all of which is set forth in the bill. Said bill sets out the statements of the state’s attorney, the remarks of the court, and the statements of appellant’s attorneys in regard to said argument. Much of the argument appearing in the bill is clearly proper, as the state’s attorney had the right to draw such legitimate inferences as he pleased from the facts proven. A bill of exception which complains of argument, part of which is permissible and pertinent and part of which is improper, cannot be held to present a complaint which can be supported by this court. See Moore v. State, 107 Tex. Cr. R. 287, 296 S. W. 308; Newman v. State, 99 Tex. Cr. R. 323, 269 S. W. 87; Nelson v. State, 99 Tex. Cr. R. 564, 270 S. W. 865. We believe said bill as presented is too general and cannot be considered under the general rules laid down in the eases mentioned.

Being of the opinion that none of the bills of exception herein presented show such error as would call for a reversal of this case, the judgment will be affirmed.

PER .CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    FAGG v. TEXAS CO. et al.
    No. 3987.
    Court of Civil Appeals of Texas. Texarkana.
    April 16, 1931.
    Rehearing Denied April 30, 1931.

      Anderson, Orr & McCord, of Fort Worth, for appellant.
    Wynne & Wynne, of Wills Point, and Vinson, Elkins, Sweeton & Weems, of Houston, for appellees.
   LEVY, J.

The appellant brought the suit seeking to enforce specific performance of an alleged written agreement made on November 26, 1929, by the appellánt and J. A. Bracken and Rhoda Bracken whereby, upon certain contingencies, J. A. Bracken and Rhoda Bracken were to execute to appellant a lease upon land to prospect and bore wells for gas and oil, with the right to seven-eighths of all the oil and gas discovered.

The trial court sustained a general demurrer to the petition, and the appeal is to revise that ruling of the court.

The written lease agreement alleged and sought to be enforced reads:

“That the said parties of the first part have located a surplus amount of land in 'the J. Walling Survey in Van Zandt County, Texas, and out of a certain 86 acres of land which was deeded to the said J. A. Bracken by H. C. Gilbert by deed dated the 15 day of September, A. D. 1925, as recorded in Vol. 169, page 136 Deed Records of Van Zandt County, Texas, reference to which deed is here made for all purposes, less a certain 46 acres of land sold to J. R. Shivers, and the said J. A. Bracken and wife, Rhoda Bracken, being desirous of selling seven-eighths oil and gas lease on the amount of surplus acreage which they claim to be four acres more or less, and the said G. E. Fagg being desirous of purchasing the same have entered into the following agreement, to-wit:
“The said parties of the first part agree to secure the services of the County Engineer of Van Zandt County, Texas, at the earliest convenient moment, and will have this land surveyed, and will establish corners at such certain points that will establish the surplus if any.
“That the parties of the first part will deliver to the said party of the second part a certified plat setting out the findings of the County Engineer of Van Zandt County, Texas; and that in the event there are four or more acres of land, the said party of the second part agrees to place in the People’s National Bank at Tyler, Smith County, Texas, the sum of $30,000.00 or a guaranty thereof, satisfactory to the President of the said People’s National Bank of Tyler, Texas, upon the delivery to the party of the second part by the said J. A. Bracken and wife, Rhoda Bracken of a certified plat establishing this amount of acreage.'
. “It is further agreed and understood by both parties hereto that an 88 form lease, properly describing the surplus tract of land above mentioned, is to be placed in escrow in the People’s National Bank of Tyler, Smith County, Texas, along with a copy of the plat furnished by the County Engineer of Van Zandt County, Texas, together with the said $30,000.00 above mentioned or a guaranty thereof.

“ * * * And that the said J. A. Bracken and wife, Rhoda Bracken, only agree to deliver a good and merchantable limitation title; and that, when such title has been perfected by the said J. A. Bracken and wife, Rhoda Bracken, then and in that event, The People’s National Bank of Tyler, Texas, is hereby instructed to deliver over to the said J. A. Bracken and wife, Rhoda Bracken, the said $30,000.00 but the said The People’s National Bank of Tyler, Texas, is further instructed to hold the above mentioned lease pending the spudding of a well on said tract of land to be more fully described in the above mentioned lease; but when the said well has been spudded and surface casing set, The People’s National Bank of Tyler, Texas, is hereby instructed to deliver to the said G. E. Fagg or order the lease above mentioned.”.

The lease agreement is dated November 26, 1929.

The petition alleged, as to the character and terms of lease, as follows:

“That on the 26 day of November, 1929, the defendants, J. A. Bracken and wife, Rhoda Bracken, were the owners of the fee simple title to the hei’einabove described land including all of the oil, gas, and other minerals therein and thereunder; the said J. A. Bracken and wife, Rhoda Bracken, entered into an understanding and agreement and agreement to the effect that the said J. A.- Bracken and wife', Rhoda Bracken, would, subject to the terms and conditions then agreed upon and set out in the written memorandum hereinafter referred to as Exhibit A hereto, execute and deliver to this plaintiff an oil, gas and mineral lease on the hereinabove described land to be in form substantially as a certain oil, gas and mineral lease theretofore executed by the said J. A. Bracken and wife, Rhoda Bracken, in favor of one F. E. Lumpkin, dated June 9, 1927, and recorded in Volume 173, Page 632, of the Deed Records of Van Zandt County, Texas, except as the same would necessarily be changed and altered to comply with the' special agreements and stipulations provided for in said memorandum of said contract, hereto attached and marked Exhibit A; that it was then and there agreed by and between this plaintiff and said defendants Bracken that the lease would not be for a term of years but would provide -that said lease would continue in force until said well should be completed and as long thereafter as either oil or gas- should be produced from any well on said land. ⅜ '* * That said lease from the said J. A. Bracken and wife, Rhoda Bracken, to F. E. Lumpkin above referred to is an eighty-eight form lease and, is on a printed form generally used in the Van Zandt County oil fields and is the same eighty-eight form lease referred to and provided for in the partial memorandum of said agreement marked Exhibit A hereto attached.”

The petition alleged, as to the land leased:

“This plaintiff would respectfully show to the Court that about the 26th day of November, 1929, -the defendants J. A. Bracken and wife, Rhoda Bracken, were the owners of the fee simple title to the hereinabove described land, owning all, of the oil, gas and other minerals therein and thereunder.
“That it was then and there agreed and understood that the description of the said land would be written into the blank space provided for in said lease form (the eighty-eight form lease) after and when the same should be certified to and furnished by the County Surveyor, of Van Zandt County, Texas.
“That after the 26th day of November, 1929, the said J. A. Bracken in compliance with said contract and agreement presented to this plaintiff the duly certified plat of survey of the hereinabove described land made by the County Surveyor of Van Zandt County, Texas, as in said contract provided for; that- this plaintiff, acting upon such information contained in said plat made arrangements to carry out the further provisions of this contract.”

The' “hereinabove described land.” (referring to “the certified plat of the County Surveyor” given to the lessee by J. A. Bracken) was of tlie alleged description as follows: “Part.of the John Walling Survey of land in Van Zandt County, Texas, being part of the land described in a deed from E. B. Tunnell and wife to J. A. Bracken, said deed being recorded in Vol. 180, page 157 of the Deed Records of Van Zandt County, Texas; beginning on the East line of said tract and at -the S. E. corner of a 46 acre tract sold to J. R. Shivers by J. A. Bracken and wife by deed dated February 4th, 1926, and recorded in Vol. 169, page 152, Deed Records of Van Zandt County, Texas; Thence West with the S. line of said 46 acres at 382 varas to the South West corner of same on East line of the I. W. Thompson 51 acre tract; Thence S. with s.aid East lino at 61½ varas a stake for comer; Thence E. at 382 varas to corner on the West line of W. H. White’s 20 acre tract on same survey; Thence North with said West line at 61½ varas to the place of beginning, containing 4.15 acres of land, more or less.”

The petition was deemed subject to general demurrer, as argued, because the lease agreement made the basis of the present suit was not such an agreement as would warrant a decree of specific performance, upon the grounds that (1) the land to be leased was not described with sufficient certainty to identify it; and (2) the lease to be made was specified to be “an oil and gas lease” and “an 88 form lease,” and without further description respecting its termfe. It is pointed out by appellant that these grounds were not sufficient because the alleged written agreement entered into between the parties furnishes within itself the means or data by which the land to be leased and the form and all terms and conditions of the lease can be identified.

The written memorandum signed by the parties, made the basis of this suit, evidently reflects an agreement reached by such parties to make a lease upon the land in view to prospect and bore a well for gas and oil. The land the parties had in view to be leased was a certain “surplus amount of -land,” which the landowners “claimed to be four acres, more or less,” more than the aggregate amount contained in the particular 'tract of 86 acres, less 46 acres, in the J. Walling survey in Van Zandt county, conveyed to the landowners, J. A. Bracken and wife, Rhoda Brackr en, on September 15, 1925,'by H. G. Gilbert by deed duly recorded. First, the landowners were to have the county surveyor of Van Zandt county survey, or run out on the ground, the boundaries of the tract of land set out in the deed referred to in order to “establish” or mark on the ground the “corners” at the “certain points” or places called for in the field notes. The purpose of this survey was in order to “establish” or determine the fact of whether or not there was an excess acreage in the tract, and the quantity of “the surplus, if any,” believed and contemplated to exist. Secondly, when the county surveyor had made the survey, the landowners were to deliver to the lessee “a certified plat setting out the findings of the county engineer (surveyor) of Van Zandt County, Texas.” In the event “-the certified plat of the county surveyor” showed “there are four or more acres of land” more than the aggregate amount called for in the deed referred to, then, as mutually agreed, the landowners were to deliver to the lessee “a certified plat establishing this amount of acreage.” The lessee was then obligated to place in the “People’s National Bank of Tyler the sum of $30,000.00 or a guaranty thereof” as the consideration for the leasehold estate in such quantity of land. It is believed by a majority of the court that the instrument reasonably construed reflects an agreement too uncertain and indefinite in its terms and on its face to enable the court to decree a specific performance. Such agreement does not definitely and certainly show nor describe any particular selected part of the land as excess, and does not provide any data or means by which any excess out of the tract may be described. The parties have not agreed upon or selected the point of the tract the excess, if existing, was to be taken out of or fixed, whether oif the north or the south or in the middle of the tract as described in the deed. That selection or location of the excess was a matter unsettled at the date of the instrument. The same rule would be applicable in the present case, as was applied in Cantrell v. Garrard (Tex. Com. App.) 240 S. W. 533.

The writer, though, is of the opinion that the agreement is not too inexact to warrant a decree for specific performance. As against a general demurrer, the obligation of the landowner should be regarded, as is reasonably reflected by the written instrument, as an undertaking on his part to make the selection of what point 'of the tract the amount of the surplus should be placed or fixed, and to furnish the lessee the metes and bounds of the located excess in the event the boundaries of the tract as run out and marked on the ground by the county surveyor showed such tract to contain an overplus of “four or more acres of land.” The parties mutually agreed that, in the event “the findings” of the county surveyor showed “there are four or more acres of land,” the landowners are to make “the delivery” to the lessee of a “certified plat establishing this amount- -of acreage.” The effect of that agreement is to entitle the appellant to have the lease contract to cover such particularly described land. The petition affirmatively alleged that the landowners did make out and deliver to the lessee a certified plat as “the said contract provided for.” The field notes as returned in that certified plat are specifically set out in the petition, and they show the surplus acreage of 4.15 acres of land with the metes and bounds thereof. The calls show that the sur-plusage was 'located or fixed at the southeast corner of the land. Under the settled rule, it is competent to resort to other writing or data to ascertain the location and description and identity of the land understood to be sold or leased if the written instrument itself refers or sufficiently shows the means or data for the further description. Osborne v. Moore, 112 Tex. 361, 247 S. W. 49S. A “certified plat” of the county surveyor is competent data or writing to resort to for further description of the acreage to be leased. A county surveyor is authorized to make survey and give certified plat to individuals. Article 5290, R. S. Under the general rules •of evidence, maps and plats made by a surveyor may be used in evidence. Haney v. Clark, 65 Tex. 93; Devine v. Keller, 73- Tex. 364, 11 S. W. 379. A surveyor may identify boundaries. State v. Hoff (Tex. Civ. App.) 29 S. W. 672. In McCarty v. May (Tex. Civ. App.) 74 S. W. 804, a contract which gave the right to select fifty acres out of a larger tract was enforced.

• In keeping with the views of the majority of the court, the judgment of the district court in all things is affirmed.


author: GALLAGHER, C. J.

text:
    UNION INDEMNITY CO. v. ROCKWELL.
    No. 1040.
    Court of Civil Appeals of Texas. Waco.
    March 26, 1931.
    Rehearing Denied May 22, 1931.

      Cox & Hayden, of Abilene, for appellant.
    Butts & Wright, of Cisco, for appellee.
   GALLAGHER, C. J.

This suit was instituted by appellee, J. M. Rockwell, against W. W. Johnston and appellant, Union Indemnity Company, as principal and surety, respectively, on a bond given by them to secure the performance by said Johnston of his contract with the Cisco independent school district for the erection of a schoolhouse. Said bond was given in response to the requirements of article 5160 of the Revised Statutes, as amended by the Acts of 1927,1st Called Sess., c. 39, § 1 (Vernon’s Ann. Civ. St. art. 5160). Johnston, the contractor, completed said building; the same was accepted by the school district, and final payment therefor made to him on March 8, 1929. The entire amount of such payment was applied by Johnston on debts contracted by him in the erection of such building.

One Jack Winston entered into a contract with Johnston to install the entire plumbing for said building for the sum of $1,875. lie was paid thereon the sum of $650, leaving a balance due of $1,225. He, in attempted compliance with the provisions of said article 5160 as amended, filed a verified claim for said sum remaining unpaid with the county clerk of Eastland county on the 8th day of March, 1929. He thereafter, for a valuable consideration, assigned said claim to appel-lee, who sought herein to recover judgment thereon.

Appellee Rockwell sold and delivered- to said contractor a large amount of building material for use in the erection of said building. The charges therefor amounted in the aggregate to approximately $10,000. Johnston made payments on account from time to time. After crediting the amount received by appellee out of the final payment by the school district, there remained unpaid on said account a balance of $350.75. Appellee, in attempted' compliance with the provisions of said article as amended, filed a verified claim for said sum remaining unpaid with the county clerk of Eastland county on the 12th day of March, 1929, and sought herein to recover judgment thereon.

The case was tried to a jury, which, in response to a peremptory instruction by the court, returned a verdict for appellee on the claim assigned to him by Winston for the sum of $1,225, with interest from February 23, 1929, at the rate of 6 per cent, per annum. The jury further found, in response to special issues submitted to them for determination, that appellee furnished to said contractor material for the erection of said building on or after February 10,1929, and that the value of the material so furnished on or after said date was $3.10. The court thereupon rendered judgment in favor of appellee against said Johnston and appellant for the sum of $1,707.05, with interest from the date thereof at the rate of 6 per cent, per annum. This appeal is prosecuted by said surety.

Opinion.

Appellant presents a group of propositions in which it contends that the court erred in awarding appellee a recovery upon the Winston claim. Each of said propositions is based on the specific contention that the affidavit filed by Winston with the county clerk was fatally defective in failing to itemize the labor and material furnished by him in the performance of his contract for the installation of the plumbing in said building. Winston alleged in said affidavit that he entered into a verbal contract with Johnston to furnish all labor and material and install the plumbing in said school building for the sum of $1,875; that such contract was for a completed or turnkey job; that he did furnish all labor and material, and did install the fixtures and complete said plumbing according to his contract; that he had been paid thereon the sum of $650; that there remained unpaid the sum of $1,225; and that said affidavit was filed for the purpose of giving notice of his claim and securing payment thereof as provided by law. Winston testified on the trial, in connection with said affidavit,' to the facts stated therein. Said affidavit was thereupon admitted in evidence over the objection of appellant. The judgment rendered is in part predicated thereon. No other attack upon the sufficiency of said affidavit with reference either to its substance or the manner and time of filing is made.

Article 5160 of the Revised Statutes as it read at the time required the contractor, before commencing work under his contract, to execute the usual bond, with an additional obligation that he should promptly make payment to all persons supplying him with labor and material in the performance of his contract. Said article further provided, in substance, that all claims for labor should be itemized, sworn to, and duly filed within thirty days from the date the same became payable, that all claims for material should be itemized and -sworn to and duly filed within thirty days from the date of the delivery of such material, and that any claim filed after thirty days should not be secured by such bond. Said statute contained no specific provision prescribing the requisites of a claim for the performance of a contract requiring the furnishing of both labor and material in the installation of a contractual unit, where the compensation to be paid therefor was a specific or lump sum. While this statute has not, so far as we have found, been construed on the specific point here involved-, its requirements are very similar to those prescribed for the fixing of a mechanic’s lien by laborers and materialmen, both of whom are required to file itemized accounts of their respective claims as a condition precedent to the acquisition of a lien. Our Supreme Court, in Pool v. Wedemeyer, 56 Tex. 287, 297 et seq., held that an account for painting a house inside and out for the sum of $405 was sufficiently itemized to fix a lien. See, also, in this connection, Texas State Pair v. Caruthers, 8 Tex. Civ. App. 474, 29 S. W. 48, 49, par. 1; Hemphill v. Gleason (Tex. Civ. App.) 272 S. W. 275; Sprowls v. Youngblood (Tex. Civ. App.) 23 S.W.(2d) 879, 881, par. 1. In the latter case a writ of error was granted.by the Supreme Court, but it was granted on an assignment recognizing- the validity of the mechanic’s lien established therein. Winston’s account or claim was not susceptible of more definite itemization. See, as analogous, Carothers v. Walton (Tex. Sup.) 1 S. W. 79; Oster v. Heuman (Tex. Civ. App.) 24 S.W.(2d) 794, par. 2. .We think Winston’s account was sufficiently itemized in his affidavit, and that the filing thereof fixed liability therefor on appellant as surety on such bond.

Appellant presents another group of propositions, in which it contends that the court erred in awarding appellee a recovery for the full amount claimed by him as the balance due for material furnished for the erection of said building. Appellee pleaded that he agreed to furnish Johnston the building material necessary to construct the building, and that Johnston purchased from him between the dates of September 14, 1928, and February 14, 1929, building material of the total value of more than $5,000, as shown by his verified account attached to his petition as an exhibit. Said' exhibit was in the form of an open account, and was verified as such. The first item thereon was dated September 14, 1928, and the last item February 14,1929. Appellee’s manager testified, in substance, that he agreed to furnish Johnston all the material necessary for the building that he had in stock, and that he did so. He further testified that the total material furnished by him for said building amounted in the aggregate to approximately $10,000; that payments thereon were made from time to time, but that the balance unpaid was due tit the completion of the building. The building was accepted and final payment therefor made on March 8, 1929. The amount apportioned to appellee lacked $350.75 of satisfying his claim. The substance of the jury’s verdict was that all the material charged for in appellee’s account, except a small amount, valued at $3.10, was delivered more than thirty days before appellee filed his claim therefor with the county clerk of said county.

Said article 5160 required appellee to file his claim for material with the county clerk within thirty days from the date of the delivery thereof. Said provision has never, so far as we have found, been construed by any of our courts. Appellant contends that such provision i§ clear and unambiguous, and should be literally applied. Appellee contends, that, in view of the provisions of article 5467 with reference to the time for filing accounts for the purpose of fixing mechanic’s liens for material furnished, such provision should be construed to make the filing of- an account for material within thirty days after the delivery of the last item thereof effective to fix liability for the entire amount thereof. The mechanic’s lien statute, as before stated, requires claims for material to be filed within thirty days from the date the same became payable. Said article 5467 provides, in substance, that, when material is furnished, the' indebtedness shall be deemed to have accrued at the date of the last delivery of such material, unless there is an agreement to pay therefor at some specified time.

The provision of article 5160 here under consideration makes no reference to the article of the mechanic’s lien statute above referred to. The time for filing prescribed by it is based on delivery alone, while the time for filing prescribed by the mechanic’s lien statute is based on the maturity or due date of the claim. Said article 5467 merely provides a technical date of maturity of a claim for material where no specific date has been agreed upon by the parties. We do not think that said article has .any application to the filing of claims for material furnished to a contractor for the purpose of fixing liability on his bond. Appellee neither pleaded nor proved a valid enforceable contract in advance for the specific bill of material that he did furnish with a stipulation that the same should be delivered in installments as needed. Whether in such a case the time limited fo-filing of a claim for such material would begin to run from the date of each' delivery, or from the date of the final delivery .only, we need- not determine. We construe both ap-pellee’s pleadings and his testimony to show that the various items of material made the basis of his claim were sold by him and purchased by Johnston on open account from time to time and delivered as purchased. Had Johnston made no purchases after February 10, 1929, it is conceded that his right to file his account for purchases prior to that time had expired at the time he did file the same. We do not think that the purchase of the few small items of material, found by the jury to have been purchased after that time, was effective to extend the time for filing such prior account.

The judgment of the trial court is reformed by eliminating from appellee’s recovery against appellant the amount of his whole account for building material furnished, except the sum of $3.10, with legal interest thereon, thereby reducing appellee’s judgment against appellant to the sum of $1,331.-65, with legal interest from the date thereof. Said judgment as so modified is affirmed. Johnston, the contractor, is not a party to this appeal, and the judgment in favor of ap-pellee against him shall not be held affected hereby.


author: WILLSON, C. J.

text:
    JAGOE CONST. CO. v. UNITED STATES FIDELITY & GUARANTY CO. et al.
    No. 4027.
    Court of Civil Appeals of Texas. Texarkana.
    May 12, 1931.
    Rehearing Denied May 21, 1931.

      Burgess, Burgess, Chrestman & Brundidge, of Dallas, and Sullivan, Speer & Minor, of Denton, for appellant.
    Seay, Seay, Malone & Lipscomb, of Dallas, and O. O. James, of Sulphur Springs, for ap-pellees.
   WILLSON, C. J.

(after stating the case as above).

The contention of appellant that, as between it and the appellee fidelity and guaranty company, the casualty company was the • principal in the supersedeas appeal bond, notwithstanding it (appellant) executed the bond as principal and the casualty company did not execute same at all, is on the theory that the casualty company, by assuming charge of and conducting the defense of the Harrison suit as required by its contract with appellant, became a party to that suit, taking appellant’s place as the defendant therein in the district court and its place as appellant on the appeal to this court.

That being true, it was alleged, and the fidelity and guaranty company being chargeable with knowledge of the fact, it was alleged, further, it is argued that the fidelity company should not be treated as the surety of appellant on the supersedeas bond, but should be treated, instead, as the surety of the casualty company, and be required to look to that company instead of to appellant for reimbursement of the sum it. was bound to pay as such surety. In that view of the case appellant insists it was entitled to the in-junctive relief granted to it by the Tarrant county district court, and that the Hopkins county district court therefore erred when it determined to the contrary and dissolved the injunction.

We do not think there is merit in the contention. If it should be conceded that the holding of the Supreme Court in American Indemnity Co. v. Fellbaum, 114 Tex. 127, 268 S. W. 908, 37 A. L. R. 633, warranted the conclusion that the casualty company by taking charge of the defense of the Harrison suit became a party thereto and as such a party incurred liability to appellant, it would not follow that appellant who, alone, executed the supersedeas bond as the principal therein, was not liable as such to the fidelity and guaranty company as the surety therein. Clearly on the face of the bond it was so liable, but if it was not we think it sufficiently appeared in the pleadings that it was estopped from asserting to the contrary.

The fact alleged, that the bond .was executed by the fidelity and guaranty company at the request of the casualty company and not at appellant’s request, is of no importance, we think. Under the terms of the contract between the casualty company and appellant, the former was authorized to act for the latter in making such a request; or, if it was not, certainly appellant, when it executed the bond and by force of it obtained by appeal a review of the judgment against it, ratified the assumption of such authority by the casualty company and was estopped to deny it was the principal in the bond and liable as such, not only to the obligees in the bond, but to the'fidelity and guaranty company as its surety, as well.

While we think the action of the trial court in dissolving the injunction granted by the Tarrant county district court was justifiable on the theory that appellant in its petition did not pray for the temporary injunction granted to it (City of Jacksonville v. Devereux [Tex. Civ. App.] 286 S. W. 572), and perhaps on other grounds than the one discussed, as well, we are satisfied to rest the affirmance of the judgment on the conclusion reached that it appeared appellant was not in any event entitled to the relief it sought.

The judgment is affirmed.


author: LESLIE, J.

text:
    ROSAMOND v. MILLER BUS LINE.
    No. 857.
    Court of Civil Appeals of Texas. Eastland.
    April 24, 1931.
    Rehearing Denied May 22, 1931.
    Smith &■ Smith, of Anson, for appellant.
    Coombes & Andrews, of Stamford, and Thomas & Shapard, of Anson, for appellee.
   LESLIE, J.

W. A. Rosamond brought this suit to .vacate a decree rendered at a former term against him and in favor of the Miller Bus Line. Regarding the action and the pleadings as presenting a bill of review, based upon the alleged grounds that the judgment was obtained against him, (1st) by reason of perjured testimony, an'd (2d) as being based upon a verdict returned by a jury guilty of misconduct, nevertheless, after careful consideration of the record by this court, it is our opinion that the judgment of the trial court on the issues sought to be presented by the bill of review should be affirmed for the reasons:

As this case comes before this court there is neither a statement of facts on the original trial, nor a statement of facts as to the hearing on plaintiff’s bill. There are no findings of fact and conclusions of law. If Rosámond presented no testimony to establish the allegations of his-petition, the court ruled correctly, and, if he tendered testimony, it is not made to appear that the judgment is erroneous thereunder.

The record is not made to clearly reflect what took place at the time the trial court rendered the judgment appealed from, but the order recites that the plaintiff’s bill was “considered and heard.” For aught we can tell the appellant relied upon the mere formal allegations of his pleading. If the trial court erred in his conclusions, such errors are not made manifest by a record supporting the assignments and propositions. In such case the presumption is that the judgment rests on the proper grounds. It is affirmed.


author: SMITH, J.

text:
    CHILDRESS v. SULLIVAN.
    No. 8600.
    Court of Civil Appeals of Texas. San Antonio.
    April 29, 1931.
    Rehearing Denied May 20, 1931.

      Powell & Green, of San Antonio, for appellant.
    O. A. Davies, of San Antonio, for appellee.
   SMITH, J.

This controversy arose in 1927 and 1928, from business transactions between J. G. Sullivan, appellee herein, H. H. Childress, appellant, and C. H. Melton, not a party to this suit. Sullivan was a wholesale dealer in onion seeds, Melton dealt in onion plants, and Childress was an onion grower. The transactions covered the onion season of 1927-28, in Dimmit county.

In the 1926-27 crop season, Childress became indebted to Sullivan in the amount of $2,376.80, which he was unable to pay on account of crop reverses. At the beginning of the ensuing season Melton purchased a large amount of onion seed from Sullivan, and sold a part thereof to Childress, taking the latter’s note therefor, in the principal sum of $11,250, secured by a chattel mortgage and first lien upon the forthcoming onion crop to be raised that season by Childress upon his 100-acre farm.

Sullivan, fully aware of and acquiescing in this transaction between Melt'on and Child-ress, took the latter’s note for $2,376.80, in settlement of Childress’ existing debt to him, together with a mortgage and second lien upon Childress’ crop to be grown that season upon the latter’s 100-acre farm.

It was agreed between the three parties that Melton would furnish advances to Child-ress to enable him to make that crop, and such advances were in fact so made to an amount approximating $10,000, for which no express security wás taken by Melton.

At the time this agreement was made between the three parties, Childress made a contract with Melton to sell and deliver his entire forthcoming crop, from his 100 acres, to Melton Plant Farms, at a stipulated price per crate, and coincident therewith gave Sullivan a written order on Melton .Plant Farms to pay Sullivan the'amount of the $2,376.80 note out of the proceeds of Childress’ crop. This order was later confirmed and enlarged so as1 to direct the Melton Plant Farms to pay Sullivan’s note out of the “first” proceeds from Childress’ crop after the Satisfaction of Child-ress’ note to Meltofi, which had been reduced, by agreement, froni $11,250 to $7,509.37.

These several processes by which the original agreement between the three parti.es was so modified were known to and acquiesced in by all the parties, all of whom acted thereon until long after the crops in question had been marketed, the proceeds therefrom applied, and the rights and liabilities of the parties' had become fixed thereunder.

The Melton Plant Farms, the marketing agency used and recognized by the parties, was subsequently adjudged a bankrupt, and a part of the proceeds from tbie sale of the crops 'of Childress and other onion growers in the same class was diverted, through bankruptcy channels, away from Sullivan, who subsequently brought this suit against Childress and recovered, of him the amount of the note for $2,376.80, less an unexplained credit of $330. The judgment was based upon an instructed verdict in favor of'Sullivan. Child-ress has appealed.

The facts of the case are quite intricate in their details, and involve large transactions to-which those directly involved are incidental rather than material. We- think the foregoing statement encompasses enough of those facts to furnish the outline of the case made below and to be determined here. We have stated those facts as if uncontroverted, and must so consider them here, because there was material evidence to support them, and they must be regarded as true, in view of the directed verdict upon all the several issues in the case.

There is evidence to -show that by their several agreements, and their common construction of those agreements, and their acts and words in pursuance thereof, it was the intention of appellant, appellee, arid Melton that appellee was to look to the proceeds'" of appellant’s crop for payment of the note in suit, and that he did. in fact look to that source for that purpose; that, if he had diligently sought payment through that source, his claim would have been Seasonably satisfied; that, by seeking and securing appel-/ lant’s order upon the marketing agency, ap-pellee acquired the right to collect the proceeds of appellant’s crop, and thereby deprived appellant of the power to claim and collect those proceeds; that, at that time and subsequently, the marketing agency had on hand sufficient of those proceeds to pay off appellee’s claim and at the same time protect all other claims of equal rank against appellant, but that appellee did not diligently press his claim, and unnecessarily indulged the stakeholder until the bankruptcy court intervened and took over those funds. The evidence further showed that all parties went into the bankruptcy court, prosecuted their several claims therein, and participated in the distribution of dividends therefrom, upon the assumption, all the time theretofore indulged by all of them, that appellee had released appellant from Ms obligation upon the note in suit and looked therefor to the Melton Plant Farms, now a bankrupt.

We conclude that this evidence, if it was not conclusive against appellee, was certainly sufficient to raise the issues, pleaded by appellant, of novation, of payment, of accord and satisfaction, of estoppel, and that the trial court erred in taking those issues from the jury and resolving them, as matters of law, against appellant.

The judgment is reversed, and the cause remanded.


author: SEEDERS, J.

text:
    GULF INS. CO. v. BECKVILLE RURAL HIGH SCHOOL DIST. NO. 3 et al.
    No. 4014.
    Court of Civil Appeals of Texas. Texarkana.
    April 21, 1931.
    Rehearing Denied April 23, 1931.
    E. G. Senter and R. W. Mayo, both of Dallas, foi* appellant.
    Woolworth & Baker, of Carthage, and B. F. Vaughan, Jr., of Dallas (Thompson, Knight, Baker & Harris, of Dallas, of counsel), for ap-.pellee Great States Ins. Co.
   SEEDERS, J.

The plaintiff, Beckville rural high school district No. 3, instituted suit against both the Gulf Insurance Company and the Great States Insurance Company in the district • court of Panola county, Tex., alleging that on or about the 6th day of June, 1929, the trustees of the plaintiff school district were in possession, charge, and control of a certain school building, known as the Scruggs School Building, and equipment therein ; that on the same day the Gulf Insurance Company had issued its policy of insurance No: 3423, in consideration of the premium paid therefor to J. E. Campbell, -agent of the Gulf Insurance Company, insuring said property against loss or damage by fire to the amount of §1,000 on building and $250 on equipment; that on or about the 6th day of August, 1929, the Gulf Insurance Company attempted to cancel said policy without giving five days’ notice to the trustees as provided in said policy, and that said cancellation and attempted cancellation was unknown to plaintiff until after the fire; that after the attempted cancellation of said policy on or about the 6th day of August, 1929, the Great States Insurance Company issued to plaintiff school district its policy of insurance, bearing No. 153472, in consideration of premium paid to J. E. Campbell, agent of said defendant, insuring plaintiff against loss or damage by fire in the amount of $1,000 on the school building and $250 on the equipment; that thereafter on or about the 29th day of August, 1929, defendant Great States Insurance Company attempted to cancel its policy without the giving of five days’ notice to the trustees as provided in the policy, and that said cancellation and attempted cancellation was unknown to plaintiff until after the fire; that on January 7, 1930, said school building and equipment therein were totally destroyed by fire, said building being of the value of $2,-000 and the equipment of the value of $500. Plaintiff prayed for joint and several judgment against the defendants in the sum of $1,250.

Defendant Gulf Insurance Company answered by general demurrer and general denial, by a plea of other insurance prohibited by the terms of said policy,"by the plea that Campbell was the agent of the school trustees with authority to accept notice of cancellation and that notice was duly given and the policy canceled; that a policy in the Great States Insurance Company was substituted for the Gulf Insurance Company policy by Campbell, the agent for the plaintiff, and that the plaintiff ratified this substitution and ratified the entire transaction and waived notice of cancellation of the Gulf policy, and the Gulf Insurance Company relied upon the said representation, and the Great States Insurance Company is now estopped to deny such substitution, and the Gulf Insurance Company prayed for judgment that if any liability be found against it. that it have judgment over against the Great States Insurance Company.

The Great States Insurance Company answered by general demurrer and general denial; that on or about the 6th day of June, 1929, the Gulf Insurance Company issued a policy of insurance described in its petition which provided that the policy might be canceled by the company upon giving five days’ notice of cancellation; that the policy was never canceled because no such notice was ever given to the trustees; that at all times it remained as valid and subsisting insurance and was in full force and effect at the time of the fire; that said insurance was all of the insurance contemplated or desired by plaintiff; that any policy in the Great States Insurance Company on said property attempted to be issued by any agent was never delivered or attempted to be delivered to the assured, never accepted by the assured and never heard of prior to the fire, and never became effective; that if it should be mistaken in the foregoing allegation and in the event it should be found that the Gulf policy was canceled prior to the fire complained of, that likewise its policy, which has the same provision in reference to cancellation as the Gulf policy, was canceled and notice of the cancellation given to the assured more than five days prior to the fire, and that it has no liability thereon.

The case was tried before the court on August 21, 1930, and the court rendered judgment for plaintiff against the defendant Gulf Insurance Company in the sum of $1,250, and in favor of the defendant Great States Insurance Company. From this judgment the Gulf Insurance Company has appealed.

The evidence offered upon the trial of the case was undisputed, and the court, at appellant’s request, filed findings of fact and conclusions of law which, as we view it, are supported by the evidence and are as follows :

“Findings of Fact.
“1. J. E. Campbell was the duly authorized agent of the Gulf Insurance Company at Carthage, Texas, from June 6, 1929, until and including August 6, 1929, with authority to accept application for and issue fire insurance and receive the premiums therefor.
“2. On or about June 6, 1929, the trustees of the. Beckville Rural High School District No. 3, of Panola County, did request said Campbell to issue a policy of fire insurance on a certain school building known as the Scruggs Schoolhouse, giving the said Campbell a school warrant in the amount of $37.50 for the payment of the premium on said policy of insurance.
“3. No particular company was designated by the school trustees.
“4. Policy No. 3423 was issued by the said Campbell in the Gulf Insurance Company, which policy provided for the payment of $1,000.00 on the building and $250.00 on the furnishings in connection with the destruction by fire from the date above mentioned until June 6, 1930; and said school warrant was paid on or about June 10th by the First State Bank of Carthage, Texas, the county depository, to the said Campbell.
“5. The school trustees considered said Campbell as an insurance agent, and said Campbell was the agent of the Gulf Insurance Company at the time application was made to him for said insurance, and at the time the policy of the Gulf Insurance Company was issued by him as such agent.
“6. That said policy of insurance provided: “This policy shall be cancelled at any time at the request of the insured or by the company by giving five days’ notice of such cancellation ; that if this policy shall be cancelled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate, except that when this policy is cancelled by this company by giving notice it shall retain only the pro rata premium.”
“7. On or about August 6, 1929, one Busliell, Special Agent of the Gulf Insurance Company, did instruct said Campbell to cancel said policy of insurance. Campbell stated to Bushell that the policy had just been can-celled and sent to the company. The company received said policy at its office in Houston, Texas, on or about August 9, 1929. No notice of cancellation was ever made to the school trustees, and no premium was ever returned, and the trustees had no knowledge of the above action mentioned in this, paragraph until after the fire which destroyed the Scruggs building.
“S. That the said J. H. Campbell was on August Cth the duly authorized agent of the Great States Insurance Company, with authority to issue fire insurance policies and accept the premiums therefor.
“9. On August 6, 1929, the said Campbell issued policy of fire insurance No. 153472 in the Great States Insurance Company covering the Scruggs School Building, which policy provided for the payment of $1,000.00 on the building and $250.00 on the furnishings in connection with the destruction by fire from the date above mentioned until June 6,1930.
“10. The trustees of the Beckville Rural High School District No. 3 of Panola County did not reguest and did not know of the issuance of this policy until after the fire which destroyed the Scruggs School Building, and paid no premium therefor.
“11. On the 29th day of August, 1929, said Campbell was instructed to cancel the Great States policy, and same was cancelled on that day, and no notice of cancellation was ever given to the school trustees.
“12. On January 7, 1930, said Scruggs School Building was destroyed by fire, said building was worth in excess of $2,000.00, and the equipment therein was worth in excess of $500.00, and the loss by fire to said school building was in excess of $1,000.00 and the loss by fire to said equipment was in excess of $250.00, the loss being total.
“13. Shortly after January 7, 1930, the trustees of the Beckville Rural High School District No. 3, learned for the first time that the Gulf policy had been attempted by the company to be cancelled, and learned for the first time that a policy had been attempted to be substituted in the Great States Insurance Company, and made claim under both policies in the amount of $1,250.00.
“14. Liability was denied by both companies.
“15. That no insurance -was requested by the school trustees of said Campbell, except a policy covering $1,000.00 on building and $250.00 on contents; that said trustees desired no other or further insurance; that said Campbell was not made the agent of said school trustees in any wise for the purpose of accepting notice of cancellation of policies.”
“Conclusions of Daw.
“1. The policy in the Gulf Insurance Company was a valid policy at the time of the fire¡ since it had not been cancelled prior to the fire.
“2. Campbell was not the agent of both the school trustees and the Gulf.and or Great States Insurance Company, and notice to ■him of cancellation does not bind the trustees.
“3. The policy in the Great States Insurance Company never took effect because at all times there was a valid and subsisting insurance policy in the Gulf Insurance Company in full force and effect, and the policy in the Gulf Insurance Company was all the insurance contemplated or desired by the plaintiff, and the attempt on the part of the agent • to issue the policy in the Great States Insurance Company on the same property was without force and effect because it never was delivered or attempted to be delivered by the insurer to the insured, and never accepted by them, and never heard of by "them prior to . the'fire co'mplained of.
“4. The statements of the said Campbell with reference to the issuance of the policy in the Great States Company to the special agent of the Gulf company did not constitute an estoppel because said Campbell was at the same time the agent of both companies, with full knowledge of the entire transaction.”

It is insisted- by the appellant that the trial court erred in entering judgment against it for the reason that the undisputed evidence shows that its policy had been canceled long before the fire occurred, and the policy of the Great States Insurance Company substituted in its stead.

It is admitted by appellant that its policy upon the school building and its equipment was issued June 6, 1929,_for a period of one year, and was in all respects valid from the date it was issued until August 6, 1929, at which time appellant insists its policy was canceled. To sustain appellant’s contention, it would be necessary for this court to hold that appellant’s agent, Campbell, was also the agent of the school trustees to accept notice of cancellation of its policy, there being a clause in the policy providing for five days’ notice to the assured before the company could cancel the policy, which notice it is admitted was never given the trustees. Appellant’s agent, Campbell, never testified on the trial of the case and the only testimony to show agency of Campbell for the trustees was that given by the trustees who signed the voucher for the insurance.

Mr. Barnett, president of the board of trustees, testified: “Mr. Campbell came into my drug store one Saturday and told me that Mr. House, the trustee from the Scruggs District, wanted to reinsure the school building as the policy had lapsed. He said, T have a voucher there that has been filled out and signed by Mr. House,’ and so I signed it. I signed it with the understanding that it was the policy or the premium for the fire insurance policy on the Scruggs School building. No one in any way after that time gave me any character of notice about the cancellation of this policy. The first time I knew that an attempt had been made to cancel the policy was after the building had burned. He did not tell me what insurance he was going to issue with reference to the policy or what company would issue it. I .have never carried any insurance with Mr. Campbell before. The school board had not had any previous dealings with Mr. Campbell. The schools had consolidated just a few months prior to that time and that was the first time it fell on the Consolidated Trustees. He (Campbell) said it was for fire insurance on the Scruggs School Building. He said that the premium was $37.50 but of course I did not know anything about the rate, and that was for the fire insurance on that building. I did not contemplate more than one policy of insurance when I signed that draft.”

Mr. J. O. House, a member of the board of trustees, testified as follows: “I was working in the Matthews Mercantile Company here in Carthage at the time I signed this voucher payable to J. E. Campbell for this insurance. Prior to the time I signed the voucher, Mrs. Jordan, the County Superintendent of Schools, asked me one day if I knew that the policy had lapsed and I told her I did not but that I would take it up with the Board of Trustees or with Mr. Barnett. It was a week or ten days after that before I saw Mr. Campbell. He came into the store and said he wanted me to sign a warrant and he said he was getting me some insurance on the building. I signed the warrant. I never did receive any character of notice that they were attempting to cancel that policy. The .first time I ever knew that they had attempted to cancel the policy was after the building had burned. I did not know of any attempt on the part of Mr. Campbell to write another insurance policy on that building. I did not know anything about the companies that Mr. Campbell represented. I did not even ask Mr. Campbell to write the insurance. He came to me and told me he was getting the insurance for the school building.”

It will be noticed from this evidence that there had been no previous business relations between Campbell and the trustees of the Beckville rural high school district from which the inference could be drawn that the trustees had mp.de Campbell their agent for any purpose, nor was there any request by the trustees of Campbell to act for them in any capacity. As we view the evidence of the trustees, Campbell was never made the agent for them for any purpose, unless it was to select from the companies he represented the one in which he would place the insurance, and when he did that, by placing the same with appellant, his agency ceased and he was thereafter unauthorized to act for the trustees, and notice to Campbell by the appellant of cancellation of its policy was not notice to the trustees. Commercial Union Co. v. Urbansky et al., 113 Ky. 624, 68 S. W. 653.

From the above holding, it follows that the policy of the Gulf Insurance Company was never canceled and was, therefore, at the time -of the fire, in full force and effect, and there being no request by the trustees of Campbell for additional insurance on the school building or any intention on their part to accept the insurance by Campbell in the Great States Insurance Company, such policy never took effect, and therefore no liability had been established against the Great States Company.

It is insisted, however, by appellant that the facts of this case show such conduct on the part of Great States Insurance Cbm-pany as will estop it to deny that its policy was substituted for that of appellants. We are unable to agree with appellant that the evidence establishes such equities in its favor as would estop the Great States Company to deny its liability. Appellant’s liability was occasioned by its failure to give the trustees the five days’ notice as required in its policy, and the fact that Campbell, who was the agent of both companies, advised appellant that its policy had been canceled and a policy in the Great States Company substituted in its stead, when in fact there had been no cancellation of appellant’s policy, would not be binding on the Great States Company to such an extent that it relieved the appellant of giving the trustees the notice required in its policy. Appellant knew that its policy would be ,in force for twelve months unless it gave the trustees the notice required, and nothing was done by the Great States Company, so far as this record discloses, to relieve them from giving such notice.

The judgment of the trial court is affirmed.


author: HICKMAN, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. OWINGS.
    No. 862.
    Court of Civil Appeals of Texas. Eastland.
    May 8, 1931.

      Cooper & Lumpkin, of Amarillo, for appellant.
    Carl Rountree, of Lamesa, for appellee.
   HICKMAN, C. J.

The appeal is from a judgment in favor of the appellee against appellant for $500 damages found to have been suffered by her on account of the alleged negligence of appellant in the delivery of a telegram. , Since W% have concluded that appellee’s petition failed to state a cause of action, and that the general demurrer of appellant should have been sustained, a full statement of the issues involved on the merits will not be made. The telegram made the basis of the suit was set out in the petition and was as follows:

“Post, Texas, Mar. 12, 8:48 a.
“W. F. Owings, Lamesa, Texas.
“Mother will be buried at Anson three-thirty today.
“J. B. Butler, 9:03 a.”

The petition alleged: “That at the time of •the delivery of said message aforesaid to the defendant, its servants and employees, at Post, the said J. B. Butler then and there informed said employees of defendant that the mother mentioned in said telegram was his mother and that W. F. Owings was his brother-in-law and the husband of his sister, Mrs. Mattie Owings, plaintiff herein. * ⅜ * ” At another place in the petition it was alleged: “That the plaintiff and her husband have lived in Lamesa some time and have resided in the eastern part of said city for several months prior hereto.”

W. F. Owings did not join his wife as a party plaintiff. No reason is assigned in the petition for his failure to do so, and no facts are pleaded entitling Mrs. Owings to prosecute the suit alone. The transcript contains an order overruling appellant’s general demurrer, and error is assigned to this ruling. It is well settled that damages for personal injuries suffered by a married woman is community property. Ezell v. Dodson, 60 Tex. 331; Loper v. Western Union Tel. Co., 70 Tex. 689, 8 S. W. 600 ; Western Union Tel. Co. v. Cooper, 71 Tex. 507, 9 S. W. 598, 1 L. R. A. 728, 10 Am. St. Rep. 772; Vaughn v. Ry. Co., 34 Tex. Civ. App. 445, 79 S. W. 345; Western Union Tel. Co. v. Campbell, 36 Tex. Civ. App. 276, 81 S. W. 580; Northern Texas Traction Co. v. Hill (Tex. Civ. App.) 297 S. W. 778; Teague v. Fairchild (Tex. Com. App.) 15 S. W.(2d) 585.

The general rule is that a wife cannot maintain a suit for community property. Facts may exist which entitle her to do so, but, where her petition discloses on its face that she is a married woman, and fails to plead any facts showing her right to maintain the suit alone, the petition is subject to a general, demurrer. McIntire v. Chappell, 2 Tex. 378; May v. Slade, 24 Tex. 205; Buffalo Bayou Ship Channel Co. v. Bruly, 43 Tex. 6; White v. Sabariego, 23 Tex. 243; Parks v. Worthington, 39 Tex. Civ. App. 421, 87 S. W. 720; Dowlin v. Boyd (Tex. Civ. App.) 284 S. W. 636; Youngs v. Youngs (Tex. Com. App.) 26 S.W.(2d) 191, and authorities there cited; Speer’s Law of Marital Rights (3rd Ed.) § 527.

Not all the cases above cited are cases in which a married woman was plaintiff, but they well illustrate the rule that, where a petition discloses facts which, as a general rule, incapacitate the plaintiff to bring the action, such petition is subject to a general demurrer, unless it goes further and pleads facts showing the plaintiff was authorized to bring the action under some recognized exception to the general rule.

Appellee relies on the line of cases which hold that, where a-woman’s incapacity does not appear on the face óf the petition, the question cannot be reached by a general demurrer. We have not that situation in this record. The petition affirmatively discloses that the plaintiff is a married woman, the wife of W. F. Owings, and no facts are pleaded authorizing her to maintain the suit alone.

Were we to consider the facts established upon the trial of the case, we would sustain the assignment complaining of the action of the court in rendering judgment, for the facts affirmatively disclose that appellee' and her said husband were still husband and wife on the day the case was tried, and no facts warranting- her to maintain the suit alone were testified to.

Appellant insists that v?e consider other assignments and reverse and render the judgment of the trial court. Manifestly we cannot do this. “If she was not before the court in a manner that authorized her suit, she was not there for the purpose of a judgment against her.” Bennett v. Gillett (Tex. Civ. App.) 57 S. W. 302, 303. We therefore do not pass upon any other assignments of appellant.

Reversed and remanded.


text:
    WEBER v. PAGE et al.
    No. 3997.
    Court of Civil Appeals of Texas. Texarkana.
    April 9, 1931.
    Rehearing Denied April 16, 1931.
    Bishop & Holland, of Athens, for appellant.
    Wynne & Wynne, of Athens, for appellees.
   WILLSON, C. J.

(after stating the case as above).

Appellant insists it appeared that Elizabeth Page and appellees Stella Hare, C. Cl Haro, Homer Page, Orbon Page, Eva Fowler. S. W. Fowler, and Gordon Page, parties to the partition suit referred to in the statement above, owned undivided interests in the land in controversy, that title to the interests ■they owned passed to Frank Nelson by force of the receiver’s deed referred to in said statement, and that the title so acquired by Nelson passed to him (appellant) by force of the substitute trustee’s deed referred to in said statement. Appellant insists, further, that the court below therefore erred when it rendered judgment in appellees’ favor against him for all the land in controversy.

We agree it appeared that Elizabeth page and the appellees just named above owned undivided interests in the land, and agree the judgment was erroneous as claimed, if it appeared further that appellant had acquired, or that said Elizabeth Page and said named appellees were estopped from asserting he had not acquired, title to said undivided interests.

Arguing in support of the judgment before us for review, appellees insist the judgment in the partition suit was void because all the owners of undivided parts of the land were not parties to the suit in which it was rendered, and qite, as supporting their argument, Buffalo Bayou Ship Channel Co. v. Bruly, 45 Tex. 6, and cases like it, holding that on appeal a judgment in a partition suit should be reversed when it appears that all the owners of the property were not parties to the suit. “No final-and binding decree of partition,” said the court in the Bruly Case, “can be made, even as between the parties before the court,” if other persons not parties to the suit own an interest in the estate.

The attack in the Bruly Case was a direct one by appeal from the judgment in a partition suit, and the holding was undoubtedly correct as applied to the case before the court. If the court meant to say, and appellant interprets the language used as meaning it. did, that in a collateral attack, as this one is, such a judgment should be treated as void, not only as to owners not parties to it, but also as to owners who were parties to it, the holding should be viewed as dictum merely ; especially so, since it has been held in other eases that such a judgment is not void as to the parties to it, but instead is binding on them. Stark v. Carroll, 66 Tex. 393, 1 S. W. 188, 189; Hall v. Reese’s Heirs, 24 Tex. Civ. App. 221, 58 S. W. 974; Richardson v. Trout (Tex. Civ. App.) 135 S. W. 677; State Mortg. Corp. v. Garden (Tex. Civ. App.) 11 S.W.(2d) 212, 213. In the case first cited, the attack, as here, was collateral, and the Supreme Court, after saying that in the suit in which the judgment attacked was rendered objection might have been made “to the court’s proceeding with the cause till all parties at interest were brought in, and, in case judgment was rendered without their presence, might have reversed it upon appeal,” added:

“But the suit having proceeded to judgment without any such objections, and no appeal having been taken, it was too late for those defendants, who were parties to the decree, to allege its invalidity in a collateral action. In this respect a decree in partition docs not differ from any other. Waltz v. Borroway, 25 Ind. 380; Snevily v. Wagner, 8 Pa. 396; Ereem. Cotenancy, § 528. The present one was void only as to such of the part owners of the Winfrey tract as were not made parties to the partition suit.”

And in the case (State Mortg. Corp. v. Garden) last cited the Court of Civil Appeals said a “plaintiff in his petition should make all persons interested in the subject-matter parties to the suit, but a failure to do so does not render the judgment void so as to open it up to collateral attack.” .

We think the recovery should have been by appellees W. I. Page, J. W. Page, Minnie Esthridge, John Esthridge, W. L. Page, G. F. Page, and Henry H. Page alone and only of the undivided interest (3234/9216, it seems), owned by them. Therefore the judgment will be reversed so far as it was in favor of ap-pellees Stella Hare, C. C. Hare, Homer Page, Orbon Page, Eva Fowler, S. W. Fowler and Gordon Page, and judgment will be rendered that they take nothing by their suit, and it will be reformed so as to adjudge to appellees W. I. Page, J. W. Page, Minnie Esthridge, John Esthridge, W. L. Page, G. F. Page, and Henry H. Page a recovery only of said 3234/9216 undivided interest owned by them in the land sued for.


author: FLY, C. J.

text:
    POPE v. HENNESSEY.
    No. 8618.
    Court of Civil Appeals of Texas. San Antonio.
    May 6, 1931.

      H. S. Bonham and H. A. Carr, both of Corpus Christi, for appellant.
    F. J. Onzon, of Corpus Christi, for appellee.
   FLY, C. J.

Appellee sought a recovery on a promissory note for $300 executed by appellant to appellee. A jury was demanded, and the cause submitted to them on three issues, as follows:

“Special Issue No. 1:
“Do you find from a preponderance of the evidence that the note sued on was executed under protest by defendant as to its being for the correct amount of his indebtedness to plaintiff? Answer yes or no.
“Special Issue No. 2:
“Do you find fr.om a preponderance of the evidence that W. E. Pope should pay rent to M. F. Hennessey for said premiseá for the months of November and December, 1927? Answer yes or no.
“Special Issue No. 3:
’“What offset, if any, do you find from a preponderance of evidence, should be credited against rents due by W. E. Pope to M. F. Hen-nessey? Answer in dollars and cents, or nothing, according to your finding.”

The jury retired and after considering their answers for twenty-four hours stated to the court that they could not agree, and then upon motion of appellee the court instructed the jury to return a verdict in favor of appellee for the amount of the note, interest, and attorney’s fees.

Appellant swore that the account for which the note was given was nearly barred by limitation, and that he signed the note upon an agreement that he should have credit on the note for amounts which he claimed to have paid, and for which he claimed to have receipts. He claimed that, at the time he signed the note for $300, he had a statement from appellee showing that the latter claimed only $250, and that, after an allowance of $50 was made for improvements made by appellant, and a payment of $50, the whole amount owed by him was $150. Some of the statements of appellant were contradicted, but, whether contradicted or not, his testimony raised an issue, which the judge submitted to the jury, but afterwards withdrew from them and rendered judgment for appellee.

It is contended that the evidence of appellant as to the adjustment of the matters of dispute between him and appellee should not have been admitted to the jury, and that it created no defense to the note, and therefore the court was. justified in withdrawing . the case from the jury under the special issues, and instructing them to return a verdict. It is contended that the verbal understanding testified to by appellant tended to vary the terms of the written instrument, and that it could not be considered. The evidence went in without objection and was submitted to the jury without objection, and, when the jury failed to agree, was taken from them by the court. The action of the court, even though the testimony had been illegal, was unprecedented and without sanction of law.

However, the testimony was properly admitted, and, if the jury could not agree on a verdict, they should have been discharged and the cause set down for another trial. The testimony did not vary the terms of the note, but merely showed the inducements leading to the execution and explained the circumstances under which it was executed. This proposition is well established by decisions in this and other states. This court, in the case of Allen v. Hardware Co., 55 Tex. Civ. App. 249, 118 S. W. 1157, 1159, in which the facts are strikingly similar to those in this case, held:

“It is the rule that, when parties reduce their contracts to writing, such writing is to be taken as embodying all previous negotiations and understandings about its terms, and they cannot be varied by parol; but the rule does not apply where it can be made to appear that the instrument was not intended to be a complete and final settlement of the whole transaction. It was held in a Pennsylvania case, and approved by the Court of Appeals of Texas in James v. King, 2 Willson, Civ. Cas. Ct. App. § 544, as follows:
“ ‘A verbal promise by one of the parties at the making of a written contract, if it was-used to obtain the execution of the writing, may be given in evidence.’ Powelton Coal Co. v. McShain, 75 Pa. 238. In this case it was alleged that plaintiff in error was induced to execute the note by the promise that there should be an adjustment of the accounts between the parties, and credit allowed for what was due to plaintiff in error, and proof of those facts did not tend to vary the written contract, but rather to explain it, and place the parties on the plane upon which they contracted with each other. If it could be held that by the strict letter of the law plaintiff in error should not be allowed to offer proof entitling him to credits on the note, because the note was evidence of a full settlement, a court, of equity would come to the relief of the maker of the note, and permit him to show that the note was not intended as a full settlement between the parties, but that it had been agreed that there should be a further settlement, in which the maker of the nofe should have the benefit of credits claimed by him. To hold otherwise would be to allow defendant in error to profit by an ironclad rule, and Obtain from plaintiff in error something which is not justly due him. The note is still in the hands of the original payee; and; if it was executed under the circumstances alleged in the answer, proof of the indebtedness of the payee to the maker of the note should be allowed as a credit on the note. The note was not a final settlement between the parties, if they did not intend that it should be. The entire contract was- not placed in writing, and under such circumstances the whole contract can be proved by parol testimony. Greenl. Ev. 284a.”

That decision, as well as others, is decisive of the admissibility of the evidence, and, when admitted, created a legitimate issue to be decided by the jury.

The judgment is reversed, and the cause remanded.


author: SELLERS, J.

text:
    MISSOURI PAC. R. CO. v. JONES.

      No. 4020.

    Court of Civil Appeals of Texas. Texarkana.
    May 5, 1931.
    Rehearing Denied May 21, 1931.
    S.ee also 24 S.W.(2d) 32.
    Leake, Henry, Wozeneraft & Frank, of Dallas, for appellant.
    . S. P. Jones and Franklin Jones, both of Marshall, and J. A. R. Moseley, Jr., of Tex-arkana, for appellee.
   SELLERS, J.

This is the second appeal of this case, and the former opinion of this court will be found in 12 S.W.(2d) 1050, and for a partial statement of the nature and result of the case on this appeal we adopt the following from the former opinion:

“J. L. Peace, a locomotive engineer, was killed in a collision between two of appellant’s trains on the main line near the town of Norphlet, Ark. At the time of the collision, Peace was one of the appellant’s engineers and in charge of engine No. 95, which was moving south pulling three tank cars. Engine No. 1278 was backing north on the same track, pulling several box cars attached to its front end. Both trains were intending to take a siding in order to allow another train to pass whic-h was due within a few minutes. The two trains above mentioned came together on a curve in the track. As a result, Peace was killed. He left a wife and some minor children. This suit was filed by Franklin Jones as administrator of the estate of Peace, to recover damages. It is conceded that the colliding trains were engaged in interstate commerce, and that the rights and liabilities of the parties are governed by the Federal Employers’ Liability Act (45 USGA §§ 51-59).
“The proof shows that at the time the collision occurred a brakeman was riding in the engine cab with Peace (the engineer) and the fireman. The administrator charged negligence on the part of the crew operating engine No. 1278, and also charged negligence on the part of the fireman and brakeman who were in the cab with Peace, in failing to keep a lookout for trains approaching from the opposite direction. Among the regulations adopted and promulgated by the appellant was rule No. 93, which is as follows:
“ ‘Rule 93. Within the yard limits the main track may be used, protecting against first-class trains. Second and inferior class and extra trains must move within yard limits prepared to stop unless the main track is seen or known to be clear.’
“It is admitted by both parties to this suit that the above rule was applicable to'both of those trains at the time the collision occurred. They were of the same class and were moving on the main line within the yard limits of Norphlet. It was the duty of each crew to observe and obey that rule.”

On the special issues submitted the jury found the following fact's: (1) The operatives of engine No. 1278 violated rule 93 at the time of .and just before the collision; (2) which violation was approximate cause of the collision; (3) that the deceased, Peace, just before and at the time of the collision was not operating engine No. 95 in violation of rule 93; (4) that the fireman or brakeman on the engine of J. L. Peace was in such position for a sufficient length of time to have discovered, hy the exercise of ordinary care, the presence of engine No. 1278 in time to have warned Peace in time for him to have averted a collision and resulting death to himself hy the exercise of ordinary care and the use of the means at his command; (5) that such person on the fireman’s side of the engine failed to exercise ordinary care to warn Peace of the presence of engine No. 1278 in time for him to have, in the exercise of ordinary care, avoided injury to himself; (6) which negligence was the approximate cause of the injury and death of Peace; (7) that Peace did not assume the risk of the collision under the conditions and circumstances in evidence; (S) the jury assessed the damages at $35,000.

All of appellant’s assignments of error save one are based upon the assumption that J. L. Peace, engineer of engine No. 95, at the time of the collision was violating rule 93, notwithstanding the jury found to the contrary. If the evidence is sufficient to support the finding of the jury, then all of appellant’s assignments involving this issue are without merit and should he overruled.

There was evidence offered on the trial which would authorize a jury to believe, and they evidently did, that Peace could not see from his position in the cab of the engine No. 95 the approach of engine No. 1278, due to the sharpness of the curve at this point in the track, but from the fireman’s side of engine No. 95 the view of engine No. 127S was unobstructed for a sufficient distance for the fireman or brakeman to have signaled Peace in time for him to have stopped his engine before the collision occurred. The fact was also established that it was the duty of the fireman and the brakeman of engine No. 95 when in their position on the fireman’s side of the cab to keep a lookout to see that the track to the front of their train was unobstructed, and, if it was not, to warn the engineer of such obstruction. It is undisputed that the only persons on engine No. 95 were J. L. Peace, engineer, and the fireman and brakeman, and while the fireman and brakeman both testified that neither of them were in a position on the fireman’s side of the cab of engine No. 95 to have seen the approach of engine No. 1278 in time to have warned the engineer, as it was their duty to do, when in, such position, yet there is sufficient evidence in this record to support the finding of the jury that either the fireman or the brakeman on engine No. 95 was in the fireman’s position of the engine cab for sufficient time to have discovered, by the exercise of ordinary care, the presence of engine No. 1278 in time to have warned engineer Peace in time for him to have averted the injury and resulting death to himself by the exercise of ordinary care in the use of the means at his command, and that the person in such position negligently failed to so warn the engineer.

We have reached the conclusion that under the facts in this case it was permissible, under rule 93, for Engineer Peace to rely upon the fireman or brakeman occupying the fireman’s position in the cab of the engine to make known to him that the track was clear when his (Peace’s) vision was obstructed, and that Engineer Peace was not required to know by his own vision that the track was clear. This was certainly the interpretation placed on the rule by the employees of appellant as will be shown by the testimony of the engineer on engine No. 1278 which is as follows: “Where I was going around a curve and I was on the outside of the curve I relied on the conductor and fireman to look out for me and it was their duty to do so. That was the only way I could know the track the way I was going was clear for operation, and safe, when I could not see myself. In that way I had the right to rely on them and did rely on them and went on operating my engine with that knowledge and under that plan. That is my interpretation of Rule 93.” If it was not intended by appellant when it promulgated rule 93 that the engineer should on such occasions rely upon the fireman and brakeman for his knowledge of whether or not the track was clear, then we are unable to understand why the last phrase “or known to be clear” was added to the rule.

Believing that the evidence is sufficient to support the finding of the jury that Engineer Peace was not violating rule 93 at the time of the collision in which he was killed, all of appellant’s assignments based upon the theory that it was being violated by the engineer are overruled.

We have carefully considered appellant’s eighth assignment of error calling in question the ruling of the trial court in admitting certain testimony of witnesses which appellant insists said witnesses were not qualified to give, and have reached the conclusion that the trial court’s ruling was correct and said assignment is overruled.

The judgment of the trial court is affirmed.


text:
    TRI-STATE SALES CO. v. NATIONAL AUTOMATIC MACH. CO.
    No. 3966.
    Court of Civil Appeals of Texas. Texarkana.
    April 16, 1931.

      Victor A. Smith, of Henderson, for appellant.
    Futeh & Cooper, of Henderson, and Paul C. Thomas, of St. Paul, Minn., for appellee.
   WILLSON, C. J. (after stating the case as above).

Appellant insists it appeared the contract sued upon was in contravention of the antitrust laws of the state (title 126, R. S. 1925, as amended [Vernon’s Ann. Civ. St. arts. 7426-74471), and that the trial court therefore erred when he held to the contrary and rendered the judgment complained of. In support of its contention, appellant cited National Automatic Machine Co. v. Smith (Tex. Civ. App.) 32 S.W.(2d) 678, where a contract containing stipulations identically the same as those, in the contract here in question (set out in the statement above) was held to be not enforceable because in violation of said laws. The reasons for the holding in that case are stated in the opinion of the court affirming a judgment dismissing the suit brought by the appellant there (appellee in the instant suit). We think the conclusion reached by the court in that case was correct, and that the holding should be followed here. Therefore appellant’s contention is sustained, and the judgment in question here will be reversed, and the cause "will be remanded to the court below, with instructions to dismiss the action.


text:
    HOWERTON FINANCE CORPORATION v. FARMERS’ & MERCHANTS’ NAT. BANK OF ABILENE et al.
    No. 856.
    Court of Civil Appeals of Texas. Eastland.
    April 24, 1931.
    Rehearing Denied May 22, 1931.

      H. L. De Busk, of Abilene, for appellant.
    Carl P. Hulsey, of Abilene, for appellees.
   HICKMAN, C. J.

This suit was instituted by appellant, hereinafter referred to as the finance company, against Gus Diamond and Farmers’ & Merchants’ National Bank of Abilene, hereinafter referred to as the bank. The suit against Diamond was upon a promissory note and for the foreclosure of a chattel mortgage upon an automobile. The bank was joined as a party defendant for the purpose of having set aside and held for naught a judgment rendered at a prior term of the court in its favor against Diamond upon a note, and for the foreclosure of an alleged mortgage upon the same automobile. Under this prior judgment, a sale had been made, and the bank became the purchaser thereat. The mortgage upon which the judgment of foreclosure in favor of the bank rested was prior in point of time to the one declared upon by the finance company in this suit. Trial below was before the court without the assistance of a jury, and no findings of fact appear in the record. Judgment was rendered in favor of the finance company against Diamond on the note, but it was decreed that said company take nothing by its suit for a foreclosure of its mortgage lien or upon its action to have the original judgment in favor of the bank against Diamond set aside and held for naught. It appears that no question of equity of redemption is involved, as the value of the automobile is probably less than the amount of either lien. The finance company appeals.

The case was tried below upon the wrong theory. The finance company’s pleadings disclose that its theory was that, in order for it to obtain any relief in the form of a foreclosure of its mortgage'lien, the judgment.in the suit of the bank against Diamond, wherein the finance company was not a party, must first be set aside and held for naught. That view seems to have been adopted by the trial court, and, since, it was the opinion of that court that the finance company had no right to have that judgment set aside as between the parties thereto, no relief was granted on its prayer for a foreclosure of its mortgage lien.

The exact question presented by these facts was before this court in Livezey v. Putnam Supply Co., 30 S.W.(2d) 902 (error refused). It was again before us in the case of National Loan & Investment Company v. Pelphrey & Co., 39 S.W.(2d) 920, where same was given a most careful consideration, with the citation of many authorities not referred to in the Livezey Case: We shall not again enter into a discussion of the question further than to observe that the finance company was not affected by the judgment rendered in favor of the bank against Diamond, and had no right to have same set aside as between the parties thereto. This suit should have been tried just as if there had been no prior judgment; the issues being the validity and priority of the respective mortgages.

While the plaintiff’s petition was based upon an incorrect theory, it was sufficient, as against a general demurrer, to state a cause of action for foreclosure against the bank. It therefore becomes necessary to determine which' of the two parties showed a superior right to a lien on the chattel. The finance company introduced its note and mortgage. That made out a prima facie case entitling it to a foreclosure against all parties ; it having been shown that the bank was in possession of the car and claiming title thereto. The bank failed to make out any defense to the cause of action established by the finance company. The mortgage upon which it relies was executed by Thomas 0. Bush, of Eastland county, in favor of Packard-Scruggs Company, of Dallas, to secure an installment note of $720 executed by Bush to the mortgagee. In some way wholly unaccounted for by the record, Gus Diamond came into possession of this note and mortgage, and pledged same to the bank as collateral security for a loan made by the bank to him. There is no showing of a transfer of the mortgage or in-dorsement or transfer of the note out of Packard-Scruggs Company. The mere possession of a note payable to the order of another than the plaintiff, not specially indorsed to plaintiff nor indorsed in blank, is not prima facie evidence of his ownership of the note. Pinkerton v. Kempner (Tex. Civ. App.) 8 S. W.(2d) 555; Hubbard v. St. John.(Tex. Civ. App.) 8 S.W.(2d) 558.

Under this rule, the bank wholly failed to establish that it was the owner or pledgee of any mortgage at all upon the automobile, for the mortgage follows the note. Judgment, therefore, should have been in favor of the finance company against both of the defendants for a foreclosure of its mortgage lien.

But we are unable to render judgment in this court. As noted above, the case was tried on a wrong theory. Since it was so tried, no effort was made to establish the chain of title between the Packard-Scruggs Company and the bank. When it appears that a case was tried on the wrong theory, and it does not appear that it was fully developed in the trial court, it is our duty, upon reversing the judgment, to remand the case-for a new trial, rather than to render judgment in favor of appellant. 3 Tex. Jur. § 854.

Before the next trial, the pleadings should be recast.

Reversed and remanded.