author: BLAIR, J.

text:
    FIRST NAT. BANK OF HOUSTON v. CARDINELL.
    No. 7601.
    Court of Civil Appeals of Texas. Austin.
    July 1, 1931.
    Rehearing Denied in Part and in Part Granted July 25,1931.
    Second Amended Motion for Rehearing Denied Sept. 23, 1931.
    Boyles, Brown & Scott, and Frank G. Dyer, all of Houston, for appellant.
    Fogle, Eastham & Eastham, of Houston, for appellee.
   BLAIR, J.

Appellee sued appellant for a broker’s commission, alleging as follows: “That * * * defendant * * * agreed and promised to pay to plaintiff three per cent (3%) of the sale price of a certain tract of land in Brazoria County, then owned by defendant in consideration that plaintiff should give to defendant the name of a purchaser thereof; that plaintiff, in consideration of said promise, did give to defendant the name of a prospective purchaser, C. D. Wheeler, who resided in Harris County, Texas; that thereafter defendant sold and conveyed to the said Wheeler fourteen hundred and fifty (1450) acres of said land at the price of Forty Dollars ($40.00) per acre, whereupon defendant became indebted to plaintiff in the sum of Seventeen Hundred and Forty Dollars ($1740.-00) which defendant promised and agreed to pay plaintiff; that though often requested defendant has refused and continues to refuse to pay the same or any part thereof to plaintiff’s great damage.”

A jury trial on special issues resulted in judgment for appellee as prayed; hence this appeal.

Appellee testified that appellant agreed to pay him a 3 per cent, commission on the sale price if he would furnish the name of a purchaser of certain land owned by appellant in Brazoria county, known as Chenango plantation ; it being specifically agreed that appel-lee was only required to furnish the name of a purchaser with whom appellant would negotiate and sell the land on terms satisfactory to itself, and that appellee furnished appellant the name of O. D. Wheeler. About eleven months later appellant and Wheeler executed a sale or exchange contract, whereby appellant agreed to convey Wheeler “all that portion of what is known as Chenango Plantation * * * north of the public road,” and, if insufficient acreage lay north of the road, then enough “out of the remaining 600 acres south of the road” to make up 1,450 acres. Appellant reserved one thirty-second of the minerals in the 1,450 acres and agreed to convey Wheeler one thirty-second of the minerals in the remaining 600 acres. In exchange Wheeler agreed to convey appellant his one-half undivided interest in 231.21 acres of land in Harris county, appellant to assume one-half of the $80,084 indebtedness against the land. Deeds were executed consummating this sale or exchange contract. The evidence showed that Wheeler was not financially able to purchase the entire Chen-ango plantation, although he desired to do so.

Appellant objected to the introduction in evidence of the sale or exchange contract upon the grounds that it was at variance with and failed to show performance of the contract of employment alleged as the basis of appellee’s suit.' Appellant here contends that, since appellee alleged a specific contract of employment to give the name of a purchaser of the tract of land in its entirety, and since the contract introduced in evidence showed he furnished the name of one who purchased only »a part of the land, he failed to show performance of the thing he agreed to do, and was therefore not entitled to recover his commission.

It has been generally held that, where a real estate broker is employed to procure a purchaser, or, as applied to the facts in this case, to give or furnish the name of a purchaser of a tract of land in its entirety for an agreed commission, and he procures or furnishes the name of one who purchases only a part of the land, he is not entitled to recover his commission, not having performed his contract of employment, but he can only recover under proper pleadings and proof on a quantum meruit; the measure of recovery being the value of his services. Goodwin v. Gunter, 109 Tex. 56, 185 S. W. 295, 195 S. W. 848; Lanham v. Cockrell, 108 Tex. 403, 194 g. W. 936; 7 Tex. Jur. 447, § 56, cases cited in Note 8; Shinn v. Boyd, 34 Tex. Civ. App. 151, 77 S. W. 1027; Cone v. Keil, 18 Cal. App. 675, 124 P. 548; Wilson v. Rafter, 188 Mo. App. 356, 174 S. W. 137; Burgher & Co. v.. Canter (Tex. Civ. App.) 190 S. W. 1147; Bentley v. Edwards, 125 Minn. 179, 146 N. W. 347, 51 L. R. A. (N. S.) 254, Ann. Cas. 1915C, page 882, holding that the general rule seems to be that, where the contract of a real estate broker is entire and indivisible, no recovery, of commission can be had on a sale of part of the land. This rule is predicated upon the reasoning that the broker must establish that the person whose name he presented was ready, able, and willing to buy the entire tract of land upon terms called for by the contract of employment, or satisfactory to the owner; otherwise the contract is not shown to have been performed on the part of the broker, and no commission is due him. Ap-pellee alleged and proved that appellant agreed to pay him a 3 per cent, commission on the sale price of Chenango plantation, if he would furnish the name of a purchaser thereof, and that he furnished the name of C. D. Wheeler, to whom appellant sold or traded on terms satisfactory to it a part only of the plantation; Wheeler not being able financially to purchase or trade for the entire plantation. It is therefore clear from the facts plead and proved that the parties contemplated a sale of Chenango plantation in its entirety for the agreed 3 per cent, commission on the sale price, and, since the contract of employment was entire and indivisible, ap-pellee failed to show performance of it by giving or furnishing the name of one who purchased or traded for only a part of Chen-ango plantation.

Nor do we sustain appellee’s contention in this connection that the sale or trade of 1,450 acres of the 2,050 acres constituted a substantial compliance or performance of his employment contract. The jury found that the value of the property traded by Wheeler for the 1,450 acres was $58,000. Other evidence in the record showed that appellant valued the entire Chenango plantation at $100,000. Thus a probable value of $42,000 is shown for the 600 acres and mineral rights remaining in appellant. It is thus shown that almost one-third of the acreage and nearly one-half the potential value of the land remained in appellant, which manifestly refutes any claim of substantial performance of the employment contract to furnish the name of a purchaser for the entire plantation or land.

Appellee cites in this connection the cases of Graves v. Bains, 78 Tex. 92, 14 S. W. 256; Goodwin v. Gunter, 109 Tex. 56, 185 S. W. 295, 195 S. W. 848; Moore v. Johnson Land Co. (Tex. Civ. App.) 143 S. W. 941, 942; Webb v. Harding (Tex. Com. App.) 211 S. W. 927, and contends that they are authority for the proposition that, where a real estate broker is employed to give or furnish the name of a purchaser of a tract of land in its entirety for an agreed commission, a percentage of the sale price, he is entitled to his commission under the contract where he furnishes the name of one who purchases or trades for a part ' only of the land on terms satisfactory to the owner. This proposition states the rule as regards alteration of price or terms by the owner too broadly. These cases and others of similar purport are analyzed by the authority, 7 Texas Jurisprudence, 482, § 84, as supporting the following rule: “The broker is none the less the procuring cause of the transaction, where the purchaser has been found by his efforts and through his instrumentality, although the terms are other than those on which the property was listed ■with the broker, the alteration of the terms haying been voluntary on the part of the principal. This rule applies regardless of whether the price and terms are less or more favorable to the owner than those quoted to the broker.”

Manifestly an application of this rule to the instant case defeats appellee’s claim, because the alleged alteration by appellant owner of the terms of the contract to sell or trade less than the entire Chenango plantation on terms satisfactory to itself was not a voluntary action on the part of appellant owner; but, under the undisputed evidence, was due to the fact that the purchaser whose name appellee furnished was unable financially to purchase the entire plantation. Another distinction is that each of the eases relied upon by appellee merely holds that, where the broker finds and introduces a purchaser who after negotiations with the owner agrees to pay and the owner agrees to accept a lesser amount than the broker was authorized to sell the land for, the broker has earned his commission under his contract. Nor are the eases holding that the inclusion or taking out of a small amount of land does not affect the broker’s right to recover his commission on his contract of employment authority here. These cases simply hold that a substantial performance of the employment contract will suffice; but, as applied to this case, where there was not a substantial performance of the employment contract, the eases are not authority.

Appellee neither alleged nor proved, nor was the ease submitted to the court and jury for a recovery on a quantum meruit for services rendered in furnishing a purchaser for a lessor amount than the entire tract of land, and, having failed to prove performance of his alleged contract of employment, appellee is not entitled to his commission. Accordingly, the judgment of the trial court will be reversed, and judgment is here rendered for appellant that appellee take nothing by his suit.

Reversed and rendered.

On Motion for Rehearing by Appellee.

Appellee insists on motion for rehearing that, if we adhere to our opinion that the judgment should be reversed, then the cause should be remanded rather than rendered for appellant.

First, it is contended that “it is not evident from the record that the case was fully developed” on this trial. This contention seems to be particularly urged with respect to our determining as a matter of law that appellee had not substantially complied with his contract by giving to appellant the name of one who purchased 1,450 acres and a one-sixteenth .of the mineral rights in the remaining 600 acres of the Ohenango planta'tion of 2,050 acres. Appellee alleged that he contracted to furnish the name of one who would purchase the entire Ohenango plantation, and that he furnished the name of one who purchased only 1,450 acres of the plantation. Appellant especially excepted to this pleading as showing that appellee had not complied with his contract of employment, which was overruled. Appellee testified that he was to furnish the name of one who would purchase the entire plantation, and that he furnished the name of one who purchased only 1,450 or the 2,050 acres. Appellant moved for an instructed verdict, because this undisputed evidence showed appellee had not complied with his contract as alleged. The motion was overruled. We adhere to our former conclusion that appellee’s testimony as a matter of law shows that he had not substantially complied with his contract of employment. The issue of substantial compliance with the contract was not submitted to the jury. If there had been any evidence on the issue, it would be presumed that the trial court found in support of its judgment that the contract had been substantially performed. There is no evidence in the record which would sustain either a verdict of a jury or a- finding of a trial court that the contract sued upon had been substantially performed; and we take the view that under the undisputed evidence neither the court nor the jury could have legally found that the sale of 1,450 acres of the 2,050 acres of land was a substantial compliance with appellee’s alleged contract to sell the entire 2,050 acres. In other words, there was no fact issue for the court or jury, and the evidence in this regard was fully developed. We therefore, in our discretion as a Court of Civil Appeals, reversed the judgment and rendered judgment for appellant ; and in this we are supported by the following authorities cited by appellee in his .motion for a rehearing: H. & T. C. R. R. Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415; Tunnell v. Reeves (Tex. Com. App.) 35 S.W.(2d) 707; 3 Tex. Jur. § 854; Sovereign Camp, W. O. W., v. Patton, 117 Tex. 1, 295 S. W. 913. In-this case there was no adverse ruling to appellee which in any manner prevented him from developing his case. He testified that the only transaction he had with appellant was to give it the name of a prospective purchaser, and that he never thereafter knew negotiations were being had or that a part of the land had been some eleven months later sold to the purchaser, until after sale or trade had been fully consummated. The motion for rehearing does not suggest any possible evidence that could be introduced on a new trial, but merely makes the general conclusion that it is not “evident from the record that the case was fully developed.”

Second, it is contended that “if, as this court held, recovery could have been had ■only upon the quantum meruit, the court * * ⅜ should have remanded the cause for a new trial, since where the cause is tried on the wrong theory, and it does not appear that it was fully developed in the trial court, it is the duty of the court, upon reversing the judgment, to remand the case for a new trial.” Such was our holding, but we further held that appellee did not plead for recovery on the quantum meruit. However, we have reached the conclusion that we should not render judgment for appellant, and thereby foreclose appellee on his right of recovery on the quantum meruit, under the rule stated in Camden Fire Ins. Co. v. Yarbrough (Tex. Com. App.) 215 S. W. 844, as follows: “Where, upon reversal of a case, it seems aprobable that the ends of justice may be better subserved by remanding than by rendering judgment, the former course should be ■pursued, notwithstanding it is apparent that a full consideration of the case necessitates •that the pleadings be amended. Buzard v. Bank, 67 Tex. 83, 2 S. W. 59, 60 Am. Rep. 7; Combes et al. v. Stringer, 106 Tex. 427, 167 :S. W. 217; H. & T. C. Ry. Co. v. State, 24 Tex. Civ. App. 117, 56 S. W. 228; K. C., M. & O. Ry. Co. v. Pope [Tex. Civ. App.] 152 S. W. 185; Id. [Tex. Civ. App.] 153 S. W. 163 ; Ft. Worth & D. C. Ry. Co. v. Copeland [Tex. Civ. App.] 164 S. W. 857.”

The rule is again stated by the Commis:sion of Appeals in Associated Oil Company v. Hart, 277 S. W. 1043, 1045, as follows: “It is the rule, where a judgment has been reversed, to remand to the trial court rather than to render, where the ends of justice will be better : subserved thereby. Such remanding has often been ordered to supply additional testimony, ito amend the pleadings, and even to show jurisdiction.” See, also, 3 Tex. Jur. 1231, 1233, § 860, and cases there cited.

We set aside our former judgment re- • ver sing and rendering judgment for appellant, and reverse the judgment and remand ;the cause in accordance with this opinion.

Overruled in part and in part granted.


source: Caselaw Access Project

author: FUNDERBURK, J.

license: Public Domain

text:
    WALKER v. HAMILTON.
    No. 878.
    Court of Civil Appeals of Texas. Eastland.
    July 10, 1931.
    Rehearing Denied Sept. 18, 1931.

      Ritcbie & Ritchie, of Mineral Wells, for appellant.
    L. H. Fiewellen, of Ranger, and Frank Sparks, of Eastland, for appellee.
   FUNDERBURK, J.

Jess Hamilton sued F. L. Walker to compel 'Specific performance of an oral agreement of the latter to convey to the former an undivided 3/32 interest in an oil and gas lease. The consideration for the alleged obligation to ,convey was the promise and agreement of Hamilton to tear down an oil rig or 'derrick and re-erect same on the particular lease and to procure for Walker a sand reel. This consideration was fully performed. In order to ■show that the agreement was not within the statute of frauds, plaintiff’s petition alleged payment or performance of the consideration, possession of (the interest in) the land agreed to be conveyed, and the erection of permanent and valuable improvements thereon. Plaintiff further alleged that he had accepted a conveyance of an undivided 3/64 interest as one-half of the interest agreed to be conveyed, the •suit being for the oth§r one-half, or 3/64 interest. The jury, in response to special issues, found: (1) That it was agreed between the plaintiff Hamilton and the defendant Walker that the plaintiff was to have a 3/32 undivided interest in the well and lease in ■question, and (2) that it was not the agreement that such interest was to be 3/64. From .a judgment in favor of the plaintiff, based ■upon such verdict, the defendant has duly appealed. Other facts material to a disposition ■of the ease will be stated in connection with the propositions discussed.

We take occasion in the beginning to acknowledge our indebtedness to counsel on 'both sides for properly prepared briefs. They have served the true function of briefs in facilitating the work of the court. By a re-cent act of the Legislature, briefs which serve such purpose are not mandatory but merely •optional with counsel. We are therefore, by reason of such fact, and the excellence of the briefs in this case, moved to express our appreciation for same.

The foregoing statement of the case suggests a defect in the plaintiff’s pleadings in ■a respect not presented by any assignment. Plaintiff alleged that he accepted a conveyance of a 3/64 interest as a partial or pro ■tanto fulfillment of the alleged verbal agreement to convey a 3/32 interest. The suit does not seek to avoid the legal consequences of that acceptance, nor to avoid or have reformation of the instrument. These facts affirmatively appearing from the pleading suggest the application of a rule that would preclude any recovery under the pleadings. “The rule applicable to all contracts that prior stipulations are merged in the final and formal contract executed by the parties applies, of .course, to a deed based upon a contract to convey. ⅜ * ⅜ Though the terms of the deed vary from those contained in the contract, still the deed must be looked to alone to determine the rights of the parties.” Dev-lin on Deeds, § 850-a. To avoid such consequence there should be allegations of fraud, accident, or mistake to constitute the basis for avoiding or reforming the instrument. Rogers v. Rogers (Tex. Civ. App.) 7 S.W.(2d) 126; Id. (Tex. Com. App.) 15 S.W.(2d) 1037. “All previous negotiations leading up to the execution of a written contract are merged into the contract, and where the latter is free from ambiguity, parol evidence of such prior negotiations is not admissible.” Eldora Oil Co. v. Thompson (Tex. Com. App.) 244 S. W. 505, 508; Harper v. Lott, Town & Imp. Co. (Tex. Com. App.) 228 S. W. 188; Whitehead v. Weldon (Tex. Civ. App.) 264 S. W. 958; Crayton v. Phillips (Tex. Civ. App.) 297 S. W. 888.

Appellant’s first proposition urges another defect in the pleading. We have concluded that, since the objection first above noted was not assigned and is not here urged, and the one assigned is not free of some doubt, we will assume but not determine the sufficiency of the pleadings, and proceed to dispose of the case upon the other grounds hereinafter discussed.

Appellant insists that the trial court should have given a peremptory instruction in his favor on the ground that there was no legal and competent evidence of the facts necessary to take the agreement out of the application of the statute of frauds (Rev. St. 1925, art. 3995). Plaintiff’s own evidence shows conclusively that, if there were any permanent and valuable improvements placed by him on' the lease (a question we do not find it necessary to determine), same were included in and were a part of the consideration given by him for the promise of the defendant to convey the interest in the land. Conformably to lm pleadings, the plaintiff testified: “ * * ⅞ The final trade we made was to tear the rig down and rebuild and furnish him a chato sand reel for a 3/32 interest.” As to the improvements he testified: “Now this rig was a real and permanent improvement in connection with the production of an oil and gas well. It is necessary. It was a standard rig ■ — eighty-two feet high. It is such a rig as is generally used in this territory at this depth wells.” There was no contention and no evidence to suggest that there was any other improvements than the rig and the sand reel. There is therefore presented the apparently novel question, whether a parol agreement to convey land is taken out of the statute of frauds where the only permanent and valúa-ble improvements, if any, were erected as a part of the consideration for the conveyance. Where the agreement sought to be enforced is one involving the purchase and sale of land, it may be regarded as settled that three distinct facts must appear — the third having an alternative. They are: “1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.” Hooks v. Bridgewater, 111 Tex. 122, 229 S. W. 1114, 1116, 15 A. L. R. 216. In the same opinion it is pointed out: “Payment of the consideration, though it be a payment in full, is not sufficient. * * ⅜ Nor is possession of the premises by the vendee. * * ⅜ Baoh of these three elements is indispensable, and they must all etnist.” (Italics ours.) If both payment of consideration and possession are not sufficient, it necessarily follows that, if the only permanent and valuable improvements erected are so erected in performing or discharging part or all of the consideration for the conveyance, they cannot serve as the third indispensable requisite to relieve the agreement from the statute. Permanent and valuable improvements are in theory evidentiary of the agreement. If, as a minimum requirement, such evidence must exist, in addition to payment of consideration and the fact of possession, it clearly cannot exist when it is but a part of the consideration. When it is admitted that the erection of the improvements was simply and only the payment of the consideration, the fact thereby came to have only the evidentiary value as the fact of payment of consideration, and was robbed of any greater evidentiary value as showing an agreement to convey. The fourth alternative, namely, “the presence of such, facts as would make the transaction a fraud upon the purchaser if it was not enforced,” means something other than and different from the mere loss of the consideration. The record is not only devoid of evidence tending to show that plaintiff would be otherwise affected by failure to enforce the agreement, but clearly the other alternative — the erection of permanent and valuable Improvements — was relied, upon. There was therefore, in our opinion, no evidence of the making of permanent and valuable improvements by the plaintiff so as to avoid the statute.

Neither was there any evidence of possession such as would exempt the agreement from the application of the statute (Rev. St. 1925, art. 3995). It is doubtful if there was any evidence to show possession of any kind by the plaintiff. The plaintiff only, entered upon the lease to perform the consideration, namely, to erect the rig and inspect its operation. The defendant drilled the well and was a cotenant with plaintiff at all events. In no sense then, if plaintiff had any possession, could it be said to be exclusive or adverse to the defendant. Such is the character of possession which constitutes one of the facts necessary to take an agreement out of the statute of frauds. It has been said that the possession must be exclusive and not shared with any one else. Altgelt v. Escalera, 51 Tex. Civ. App. 108, 110 S. W. 989, 991; Purington v. Brown (Tex. Civ. App.) 133 S. W. 1080; Brown on the Statute of Frauds (4th Ed.) § 473; Pomeroy’s Eq. Jur. (3d Ed.) Vol. 6, § 819. If plaintiff had any character of possession, it is certain that it was one held in cotenancy with the defendant. As said in Munk v. Weidner, 9 Tex. Civ. App. 491, 29 S. W. 409, 410: “ * * * No possession can suffice which does inot show his individual right, to the exclusion of the other cotenants.” As further well said in that case: “This rule results from the nature of .such co-ownership. Each tenant being entitled to the possession of. the common estate, the possession of one is the possession of the other. An eintry and possession of a plaintiff claiming to be the vendee would not, therefore, tend to show a contract of sale from' the others, or any interest in him to the exclusion of the others. For such possession to operate as a part performance there must have been some prior act ■of open disseisin, or spme joint act of partition among all the co-owners.” It therefore appears that for at least two reasons the defendant was entitled to a peremptory instruction.

Since the foregoing effectually determines the disposition to be made of the case, it is unnecessary to discuss other assignments of error. We will, however, express our views with reference to' the question raised by appellant’s fifteenth and sixteenth propositions. They present the point that the court erred in submitting special issue No. 1 over a particular objection. The issue was: “Was it agreed between plaintiff Jess Hamilton and the defendant F. U. Walker, at the time of the tearing down of the rig or derrick on the Ready lease and rebuilding of the same on the Smith 66 acre lease, that the plaintiff Hamilton was to have a 3/32nds undivided interest in the well and lease on the 66 acre Smith lease described ini plaintiff’s petition?”

The objection was: “Because the charge assumes the existence of facts sufficient to take the alleged oral agreement out of the Statute of Frauds and to make same enforceable, notwithstanding the said Statute of Frauds and proper issues relating thereto are not submitted to the jury.”

Sufficient has already been said to show that an affirmative answer of the jury to the special issue as submitted would not entitle the plaintiff to a judgment unless in addition thereto three other facts existed, namely: (1) Payment, or performance, of the consideration; (2) possession; and (3) permanent and valuable improvements. It may be conceded that the undisputed evidence showed the performance of the consideration, but if there was any evidence to raise an issue of possession and the permanency of the improvements; it was certainly not conclusive •of such facts. Defendant was under no duty to request the submission of such issues and waived nothing by failure to do so. Citizens’ National Bank v. Compress Co. (Tex. Civ. App.) 294 S. W. 331; Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084. It therefore appears that by the objection in question the defendant did all he was required to do to insist upon the submission of proper issues to the jury essential to support a judgment for the plaintiff, and that over his objection the only issue submitted was one which alone formed no proper support for the judgment.

The ease appears to have been fully developed. The trial court should have instructed •a verdict for the defendant. Our opinion therefore is that the judgment of the trial court should be reversed and judgment be here rendered for the defendant, which is accordingly so ordered.


author: PLEASANTS, C. J.

text:
    JESSE H. JONES & CO. v. BLACK et al.
    No. 9552.
    Court of Civil Appeals of Texas. Galveston.
    June 23, 1931.
    Rehearing Denied Sept. 24, 1931.
    Huggins, Kayser & Liddell, Cooper K. Ragan, and Chas. Reinhard, all of Houston, for appellant.
    Clarence Kendall and Wayne C. Depew, both of Houston, for appellees.
   PLEASANTS, C. J.

This is a suit by appellant against the ap-pellee Dr. Lela M. Black and her husband, H. H. Black, to recover the balance due upon a written contract of lease by plaintiff to the defendant of office space in an office building in the’ city of Houston owned by the plaintiff.

The following sufficient statement of the pleading is copied from appellant’s brief:

“Plaintiff alleged that defendant, Dr. Lela M. Black, was a married woman and a licensed and practicing dentist, and that this contract was entered into by her for the benefit of her separate estate for the purpose of enabling her to .practice her profession of dental surgery, and that the use of the leased office was necessary for the practice of her profession. Plaintiff further alleged in the alternative that Dr. Lela M. Black entered into said contract for the benefit of the community estate as agent of her husband, defendant H. H. Black, one of the appellees herein, and that he gave his implied consent thereto and had knowledge of the contract and acquiesced therein, and that he and the community estate received benefits therefrom whereby the community estate and defendant, H. H. Black, became liable. Plaintiff further alleged that the term of said contract for office space was from July 1, 1924, until June 30, 1927, and that defendant, Dr. Lela M. Black, used and paid for the premises up to December 1, 1926, at which time she removed therefrom with all of her furniture and fixtures, and breached her contract on which there remained a balance due of $383.00 with interest, and $50.00 reasonable attorney’s fees.
“The defendants answered by general demurrer, special exceptions, general denial, a special sworn plea denying the agency of defendant wife, Lelá M. Black, for the husband, defendant H. H. Black; a special plea of cov-erture of the wife, defendant Lela M. Black, and a special plea of constructive eviction.
“At the trial plaintiff filed its trial amendment, alleging further that defendant Lela M. Black had personal earnings as well as rents, revenues, and incomes from her separate property, and that the contract sued on was in regard to that class of property as well as her separate estate, joining defendant, H. H. Black pro forma in regard thereto.”

The trial in the court below without a jury resulted in a judgment in favor of the defendants.

The appeal presents no fact issue.

The contract upon which the suit is based was executed by Mrs. Black, as alleged in the petition, and she occupied and paid the rent for the office space furnished her by the appellant up to December 1, 1926, when she moved out, taking all her furniture, fixtures, and dental tools with her, and has not paid any of the subsequent rentals accruing under the terms of the lease contract. At the time she made the contract she and her husband, H. H. Black, were married and living together as husband and wife, and that relation has continued uninterrupted since their marriage a year or two prior to the date of the contract. After her marriage she educated herself as a dentist and obtained a license from the state to practice her profession. The cost of her education was paid by her out of money saved from monthly allowances made her by her husband out' of his earnings, and by her personal earnings as assistant instructor in the Dental College. She obtained her license in July, 1921, and has been practicing her profession since that time. -She testified: “I have been practicing my profession for a number of years, here in Houston. During the time I have practiced my profession here in Houston, as a dentist, I was a married woman. I married before I left the Dental College, before I received my education. My husband does not know anything about what I buy for my dental office. My husband does know, of course, that I am practicing dentistry; he knows that I have to buy material and equipment, et cetera; he does know that I have to rent office space, but I never consult him at all when I enter into such contracts. He has never forbidden me to do that. I have never come into the court over here and gotten an order removing my disabilities as a married woman. I look upon myself as fully capable of carrying on my business as any man. 1 did not, in signing this lease, tell Mr. Heinie that I was a married woman. I go about this in the same manner as a man ordinarily would; I attend to my own affairs; I manage my own business affairs. I keep the money I earn separate and apart from my husband’s, separate bank accounts, et cetera. ⅜ * * It is money that I derive from my profession that I re-invest in equipment, to replenish my office, everything pertaining to my dental office.”

The defendant H. H. Black testified: “I know my 'wife is practicing dentistry. * ⅜ ⅜ I did not know that Dr. Black, my wife, had a contract which is the basis of this suit until I was served with citation. I am not familiar with her business. I know she is in the dental business, but as far as her bills, or anything like that, I do not know anything about it. I do not suppose I have been to her office a dozen times since she has been practicing dentistry; I went there then to get some dental work done. * * * She never gives me any of the money that she makes out of her dentistry practice, not a penny. I do not even know what bank she keeps it in, if she has got any.” '

Appellant bases this appeal upon the proposition very earnestly and forcibly presented in his brief and oral argument that: “Whenever a married woman conducts a dental business with an education and dental license acquired by her own efforts with funds given her and with her personal earnings received as an instructor at college, coupled with her knowledge, skill and ability which she has acquired and thereafter acquires, whereby she practices her dentistry profession without aid and assistance from anyone, with the knowledge and consent of her husband, and acquires dental equipment with the earnings from such occupation, and keeps the income in her name in separate bank accounts and never gives any earnings from her profession to her husband or the community, and no funds or accounting are ever demanded of her and all said funds from her profession are kept by her continuously without any objection, and the husband consents and relinquishes all control and command over her in said business and never interferes with her business, giving her full control and management. and he never acquaints nor attempts-to acquaint himself therewith, and she keeps, purchases, and handles, as stated, all the equipment, funds and property of said dental profession in her own name she has, as a result thereof, a separate estate.” And upon the further contention that the undisputed evidence showing that the contract • sued upon was executed by her for the benefit of such separate estate, she was authorized to execute it without being joined by her husband, and such contract, is valid and enforceable against her and her separate estate.

In support of this contention appellant largely relies upon the case of Cauble v. Beav-. er-Electra Refining Co., 115 Tex. 1, 274 S. W. 120. As stated' in the able opinion of Justice Greenwood in the case cited, the question presented and decided by the court was “the right of a married woman to bind herself by a contract incidental to the management of her separate property or of community property committed to her sole management, control, and disposition.” The facts of the case show that the wife engaged in the oil business upon her separate account by an arrangement with her husband whereby the profit^ she would make therefrom were to belong to her personally. She first began .business as a broker, making about $48,000 in commissions. With this money she began to buy and sell oil leases, and also bought and operated drilling rigs and machinery. She operated these rigs upon her own leases and also upon leases owned by other parties. While so engaged in operating her drilling machinery and for the purpose of operating same, she purchased from Beaver-Eleetra Refining Company operative fuel oil of the market value of §4,452.58. The wife, S. O. -Cauble, and husband, H. F. Cauble, were sued for the value of this operative fuel oil; it being alleged that she had a separate estate and also that she purchased said oil for the partnership of herself and husband and in so doing was acting for her separate estate and her husband and that each of them and the separate estate of S. O. Cauble became liable. The trial court rendered judgment for the plaintiff against Mrs. Cauble alone. In affirming the judgment the Supreme Court says:

“The claim is also made that a married woman engaged on her own account in the oil business cannot bind herself by an enforceable contract to purchase and pay for fuel oil used in the course of such business. It is true Mrs. Cauble was engaged in the business of buying and selling oil leases. She had not been granted the general right to make contracts in relation thereto, and could not do so and thereby bind herself personally. However, the fact that she was engaged in a trading business did not deprive her of the exclusive power given her by statute to manage and control either her separate property and estate, or her personal earnings, and to make such contracts as were proper or necessary to such exclusive management and control. Notwithstanding she was engaged in the oil business without the power to. make contracts generally, yet she was clothed with the same power to make contracts in the management and control of her separate property and her personal earnings, as was a married woman not engaged in such business. The mere fact that she so managed and controlled such property as to increase such business, or in aid thereof, would not deprive her of the right to make these contracts of purchase. The law gives her the exclusive right to manage and control. There is nothing to indicate that she would be required to allow this property to deteriorate by nonuse, or that she was to be restricted in her management and control, so as not to allow such property to be put to a use which would aid her in her trading business. Mrs. Cauble testified that she purchased these rigs ■with money she earned from commissions, and that she contracted to buy this fuel oil to operate her own rigs. The fact that she used some of the nil to operate a rig not owned by her would not release her from liability; same having been purchased for use in operating rigs owned by her.”

We do not think this opinion supports appellant’s contention. The right of a married woman to make necessary contracts incidental to the protection, preservation, management, control or disposition of her property, or of her separate earnings, or property acquired therewith over which she has control, is the only question decided in the Cauble Case. We cannot agree with appellant’s counsel that the facts of this case present the question decided in the cited case. The only property of Mrs. Black incidentally affected by the lease contract was her dental tools and óffice furniture, and it certainly cannot be held that the lease contract was necessary for the protection, preservation, or management of this property in the' sense that oil was necessary for the protection, preservation, and management of the drilling rigs owned and operated by Mrs. Cauble.

It is, we think, clear from the undisputed evidence in this case that Mrs. Black’s contract for the lease for three years of•office space in appellant’s building was made for the -sole purpose of facilitating her practice of her profession, and not to protect, preserve, or manage her separate property. If she has the power to make a contract of this kind, she is no longer under the general disability of coverture.

Our courts have uniformly held that this disability still exists for the protection of married women. Dickinson v. Griffith Lumber Co. (Tex. Civ. App.) 213 S. W. 341; Hadad V. Ellison (Tex. Civ. App.) 283 S. W. 193; Poe v. Hall (Tex. Civ. App.) 241 S. W. 708; Red River National Bank v. Ferguson, 109 Tex. 257, 206 S. W. 923; Taylor v. Hustead & Tucker (Tex. Com. App.) 257 S. W. 232, 233; Whitney Hardware Co. v. McMahan, 111 Tex. 242, 231 S. W. 694.

Our Supreme Court in the Cauble Case, as shown in the quotation before set out, expressly denies the general power of a married woman to bind herself personally, or to bind her separate estate by contracts incidental to any business enterprise in which she may engage.

We think the judgment should be affirmed, and it has been so ordered.

Affirmed.


text:
    SCHAEFFER v. SPECKELS.
    No. 7635.
    Court of Civil Appeals of Texas. Austin.
    July 22, 1931.
    Rehearing Denied Sept. 23, 1931.

      George Clark, of Waco,, for appellant.
    E. I-I. Lawhon, of Taylor, for appellee.
   BLAIR, J.

Appellant, Otto W. Schaeffer, sued appellee J. A. Speckels to recover $30S as unpaid salary due under a contract of employment with a bakery shop in Waco, Tex., alleging three grounds of recovery as follows:

1. That appellee and his brother Gus Speck-els operated the business as a partnership under the name of Speckels I-Iome Bake Shop,, and that J. A. Speckels as a partner was-therefore personally liable for the salary due appellant.

2. That if the bakery shop was not operated as a partnership, then it was held out to, him as a partnership; that he remained in the employment relying upon the individual liability of the partners, said reliance and belief having been induced by the action of Gus- and J. A. Speckels from the manner in which-they operated the .business; and that appel-lee was thereby estopped to deny the partnership or his personal liability for its debts.

3. That after appellee J. A. Speckels purchased an interest in the business he agreed; that if appellant would continue in the employ of the bakery shop as baker and foreman, he (appellee) would personally assume-payment of past and future salary due appellant.

Appellee answered under oath, denying that the business was a partnership, and alleged' it to bo a corporation operated under the name-of Waco Baking Company; and especially denied personal liability for the debt under eitlier the alleged estoppel to deny the partnership, or the alleged promise to pay the-debt if appellant would continue in the employ-of the bakery shop.

The special issues submitted and the answers of the jury thereto are as follows:

“1. Was the Bakery business in Waco, Texas, about which the witnesses in this cas.e testified, operated as a corporation or as a partnership after J. A. Speckels bought an interest in said business? (Answer this question by writing in your verdict either ‘corporation” or ‘partnership.’)” Answer: “Partnership.”'
“2. Did J. A. Speckels, either by word or conduct, knowingly cause the plaintiff, Otto AY. Schaeffer, to believe that he was employed', by a partnership, if said Schaeffer did so believe? (Answer this question ‘Yes’ or ‘No.’)" Answer: “No.”
“3. In dealing with said bakery concern did plaintiff Otto W. Schaeffer rely upon its-being a partnership? (Answer this question ‘Yes’ or ‘No.’)” Answer: “No.”
“4. Do you find from a preponderance of the evidence that on or about November 8th, A. D. 1929, J. A. Speckels made the offer to the plaintiff, Otto Wi Schaeffer, that if he, the said plaintiff would continue in the employ of said bakery shop, that he, the said J. A. Speckels would personally assume the payment of all the past and future salary installments which the said bakery shop should owe the said Otto W. Schaeffer? (Answer this •question ‘Yes’ or ‘No.’)” Answer: “No.”

Both parties filed motions for judgment up•on the- jury’s findings. The court granted the motion of .appellant and accordingly entered judgment against appellee for the amount sued for with interest. Appellee then filed a motion to set aside the order granting appellant’s motion for judgment as well as to set aside the judgment entered, and prayed .that judgment be rendered for him. These motions were granted during the term at which the case was tried, and judgment was rendered that appellant take nothing by his suit against appellee; hence this appeal.

One main question determines the appeal. It is the contention of appellant that the •effect of the jury’s answer to special issue No. 1 was to find the bakery business to be a partnership in-fact, thereby establishing the personal liability of appellee as a partner for the partnership debt. Appellee by counter propositions contends that the court did not submit to the jury the issue as to whether .the business was a partnership or a corporation, but assumed under the undisputed evidence that the business was a corporation; and that special issue No. 1 merely submitted one element of appellant’s estoppel plea that the business was operated or held out to him as a partnership; and that since the jury answered the other necessary elements of es-toppel unfavorably to appellant, and found that appellee did not assume or promise personally to pay appellant’s salary, the court rendered the only judgment it could have rendered in conformity to the special findings of the jury.

We have reached the conclusion that special issue No. 1 did not submit the question of whether the business was in fact a corporation or a partnership; but that the court assumed in submitting the issue that it was a corporation and asked the jury to find whether it was “operated” as a corporation or .a partnership. Appellant made no objection to this issue as not submitting the question of whether the business was in fact a corporation or a partnership. The language of the issue, “Was the bakery business * * * operated as a corporation or as a partnership,” does not in effect submit the issue of whether the business was in fact a corporation or a partnership ; but only submits the issue of whether the business was operated as a corporation or ns a partnership. This is manifest in view of the fact that the undisputed evidence showed the business to be a corporation, and the only disputed issue was whether the business was held out to appellant or operated in such manner to canse him to believe it was being •operated as a partnership. The fact that the court defined a corporation and a partnership in connection with the issue is not any evidence that the issue in effect submitted the question of whether the business was in fact a corporation or a partnership, because such definitions were just as necessary in determining whether the business was merely held out or operated as a partnership or as a corporation. Nor is the fact that the trial court stated as grounds for overruling appellee’s original motion for judgment “that said defendant is seeking to avoid the ordinary legal effect of owning an interest in a business which, according to the verdict of the jury, was conducted as a partnership,” any evidence that court intended by the special issue to in effect submit the question of whether the business was in fact a corporation or a partnership. The statement rather indicates that the trial court reached the erroneous conclusion that although a business was in fact a corporation, still if it was conducted as a partnership, it would in fact become a partnership. Such is not the law. The business still remains a corporation, but the parties operating it or holding it out as a partnership may be liable as partners udder the doctrine of estoppel to deny the partnership, which doctrine as applicable to this case is stated as follows by the authority 20 R. O. L. 1067 and 1068, §§ 313 and 314:

“* * * Persons holding themselves out as partners are liable only to those who have been misled and have acted on the faith of the appearance thus produced or given credit to an apparent partnership in ignorance of the actual facts, and in the belief that those held out as partners were in fact members of the firm.”
“Such holding out is immaterial as against a third person who had knowledge also of the real relation of the parties and that no partnership in fact existed.”
“One not in fact a partner cannot be made liable to third persons on the ground of having been held out as a partner except when such holding out is done by him or by his knowledge and consent.”

To the same effect are the following eases: Cushing v. Smith & Co., 43 Tex. 261; Burrows v. Grover Irr. Co. (Tex. Civ. App.) 41 S. W. 822; Studebaker Corporation of America v. Dodds & Runge, 161 Ky. 542, 171 S. W. 167.

The jury found in answer to special issue No. 2 that appellee did not by word or conduct knowingly cause appellant to believe he was employed by a partnership; and in answer to special issue No. 3, that appellant did not rely in his dealings with the business upon its being operated as a partnership. Judgment was accordingly rendered for ap-pellee in conformity to these special findings of the jury, which the evidence fully supports. Nor did the court err in this connection in setting aside the erroneous judgment entered first in favor of appellant, and in entering at the same term judgment for appellee in conformity to the special findings of the jury. Such was the only legal judgment the trial court could have entered. Hooker v. Williamson, 60 Tex. 524 ; 6 Vernon’s Ann. Statutes (article 2202), and cases cited under subdivision 6.

Appellant’s contention is not sustained that the court erred in overruling his exceptions and objections to the court’s main charge, because he reserved no exception to this action of the court. Nor did the court err in that connection in refusing appellant’s requested special issues Nos. 2, 3, and 4. These issues present appellant’s plea of es-toppel to deny the partnership and only differ materially from the issues submitted by the court by eliminating the question of whether the business was “knowingly” held out by appellee J. A. Speekels as a partnership. In this the requested issues were erroneous, and therefore properly refused. The rule is as above stated, that one not in fact a partner cannot be held liable “on the ground of having been held out as a partner except when such holding out is done by him or by his knowledge and consent.” Texas & P. Ry. Co. v. Whittington (Tex. Civ. App.) 292 S. W. 966; Childress v. Pyron (Tex. Civ. App.) 285 S. W. 1100. And since the main charge covered all other questions submitted by the requested issues, there was no error in refusing them. Rice v. Garrett (Tex. Civ. App.) 194 S. W. 667; Southwestern Tel. & Tel. Co. v. French (Tex. Civ. App.) 245 S. W. 997; Richardson v. Wilson (Tex. Civ. App.) 178 S. W. 566.

Then, too, the jury found that appellant did not rely upon the fact that said bakery was being operated as a partnership in his dealings with it, which issue and the jury’s finding thereon are in no way attacked, and such finding precludes a recovery by appellant under the authorities above cited.

We find no error requiring the reversal of the judgment of the trial court, and it is affirmed.


author: GALLAGHER, C. J.

text:
    MILLER et al. v. BUSH et al.
    No. 1067.
    Court of Civil Appeals of Texas. Waco.
    June 4, 1931.
    Rehearing Denied Oct. 1, 1931.
    W. L. Eason, of Waco, for'appellants.
    Spell, Ñaman & Howell, of Waco, for ap-pellees.
   GALLAGHER, C. J.

Waco Twine Mills, a corporation, was in financial straits and its stockholders executed and delivered to the directors thereof a contractual obligation, the material provisions of which were as follows:

“We, the undersigned stockholders of the Waco Twine Mills, in order to induce the directors of said corporation to properly finance the same by borrowing money on the credit of the Twine Mills with their indorsement, or in such other manner as to them may seem for the best interest of said mill, have agreed and here now agree that in event the directors of said corporation should by reason of such indorsement be required to pay any sum or sums of money, then we, and each of us, agree to reimburse such directors, or either of them, to the extent of the payment so made by them, or either of them, our pro rata part of such amount so paid out by the said directors.

“It is understood and agreed, however, that none of us shall in any event be liable in a greater sum than the amount set opposite our names, being one-half the amount at par value of the stock now owned by us.”

All the directors joined the other stockholders in executing this obligation. Each of the signers thereto set opposite his name the number of shares of the capital stock of said corporation which he held at the time, as a basis for determining the limitation on his liability imposed by the terms of the second paragraph thereof, as above quoted. The directors of said corporation thereafter borrowed on its note from the First National Bank of Waco $65,000. Said note was indorsed by all the directors of the corporation serving at the time except one.

Said indebtedness was afterwards reduced by payments to $37,000, and a renewal note therefor was executed by the corporation and indorsed by T. F. Bush, J. M. Penland, D. M. Wood, J. B. Earle, G. H. Penland, J. B. Ellis, and T. S. Gorriher, all of whom were at that time directors of the corporation. Thereafter the corporation was adjudged a bankrupt. Its assets were disposed of by the trustee, and the dividend apportioned to the bank as holder of said note was applied thereon. The in-dorsers on said note then made a calculation, prorating the unpaid balance due thereon among the respective stockholders in proportion to the shares of stock held by them. T. S. Gorriher owned 220 shares in said corporation. He was at that time insolvent. He and the shares owned by him were excluded from consideration in making such apportionment. He never paid any part of such balance. According to such apportionment, the liability of each of the other signers of said 'obligation was $27.40 per share on each share held by him. All the other signers except O. R. Miller, G. H. Connell, R. W. Higginbotham, Hugh Halsell, and J. B. Ellis paid the respective sums charged against them in such apportionment. The above-named T. F. Bush, J. M, Penland, D. M. Wood, J. B. Earle, and G. H. Penland then paid the balance due the bank on said note and had the same transferred to them without recourse. They then instituted this suit on said obligation against O. R. Miller, G. H. Connell, R. W. Higginbotham, Hugh Halsell, and T. S. Gorriher to recover the amount so paid by them to the bank. During the pendency of the suit, J. B. Earle, one of the plaintiffs, died, and his administratrix, Mrs. Louise Madden Earle, was made a party plaintiff in his stead. The defendant G. H. Connell also died, and his executrix, Mrs. Josephine Oonnell, was made a.party defendant in his stead.

The case was tried by the court without a jury. The testimony showed that R. W. Hig-ginbotham and Hugh Halsell had during the pendency of the suit paid the respective amounts charged against them in said apportionment and they were dismissed from the suit. The testimony further showed that T. S. Corriher was still insolvent and he also1 was dismissed therefrom. The testimony showed that shares in said corporation were of the par value of $100 each; that O. R. Miller owned 500 of such shares and G. H. Connell owned 130 of such shares at the time they joined in executing and delivering the obligation sued on; and that neither of them had paid any part of the respective sums charged against them in such apportionment. The testimony further showed that the plaintiffs in said suit had employed counsel to institute and prosecute the same and that 10 per cent, of the amount sued for was a reasonable fee for such services. The court thereupon rendered judgment in favor of the plaintiffs aforesaid against the defendant C. R. Miller for the sum of $13,700, being $27.40 per share-on each of the 500 shares owned by him, and for the further sum of 10 per cent, thereon as attorney’s fees. The court also rendered judgment in favor of said plaintiffs against the defendant Mrs. Josephine Connell as independent executrix of the will and estate of G. I-I. Connell, deceased, for the sum of $3,-562, being $27.40 per share on each of the 130 shares owned by said Connell, and for the further sum of 10 per cent, thereon as attorney’s fees. The court further rendered judgment in favor of the plaintiffs against said Miller for his proportion of any part of the judgment rendered against said executrix which could not be collected from her, and against said executrix for her proportion of any part of the judgment rendered against Miller which could not be collected from him, not to exceed, however, in the aggregate the sum of $6,500, to which amount the liability of said Connell was limited by the express terms of the obligation sued upon. The defendants present said judgment to this court for review.

Opinion.

Defendants present a proposition in which they contend that the execution and delivery by plaintiffs of their personal note to the bank in lieu of the note of the corporation indorsed by them did .not constitute a payment thereof, and that since the obligation sued on merely bound them to reimburse plaintiffs for such sums of money as they might be required to pay as such indorsers, no liability against them arose by reason of such transaction. The testimony showed affirmatively that plaintiffs did not pay the balance due the bank on its note against the corporation in cash, but merely executed and delivered to the bank their own note for such balance. Plaintiff G. H. Penland, the only witness who testified, stated specifically that plaintiffs paid the debt of the corporation to the bank with their own note. There is no testimony to the contrary. The; finding of the court in favor of plaintiffs, being general, includes by implication a specific finding that the bank accepted said note in payment and discharge of its debt against the corporation. Hines v. Kansas City Life Insurance Co. (Tex. Civ. App.) 260 S. W. 688, 690, pars. 2 and S. Plaintiffs having made such payment as indorsers of the note of the corporation, defendants as signers of the indemnity obligation sued upon became by the very terms thereof bound to reimburse them therefor. Neither the situation nor the rights of the parties were affected by the fact that plaintiffs had said note transferred to them at the time they gave their own note in payment thereof. The bankrupt corporation was the sole maker thereof. Its assets had been disposed of by the trustee in bankruptcy and the final, dividend paid to the bank and credited on the note prior to such transfer. Said note, having been paid by plaintiffs, who were in-dorsers thereon, was worthless, except as evidence in this suit or in an equitable action by them for contribution against the indorsers not participating with them in the payment thereof.

Defendants present a proposition in which they contend that their liability under the indemnity contract sued on, in which they bound themselves, within the limits stipulated, to reimburse the directors to the extent of their pro rata part of the amount paid out by them, should have been determined by the number of signers thereto, instead of the number of shares owned by such signers at the time. We do not think the contract, consid-i ered as a whole in the light of attending eir-: cumstances and the purposes for which it was executed, supports or justifies such construction. We may properly assume from the fact that the directors immediately negotiated' a loan in the sum of $65,000, that such sum was needed to properly finance the corporation, and that the defendants and other signers of such contract contemplated that the directors would by indorsing its paper incur liability in approximately such amount. There were sixteen signers to such contract. They owned at the time 1,292 shares. Said shares were of the par value of $100 each. A contribution from each of said signers of $50 p.er share owned by him would have amounted in the aggregate to $64,600, or approximately the sum for which the directors became personally liable as indorsers on the paper of the corporation. Since the directors also signed such contract of indemnity and thereby participated on equal terms with the other signers in the liability created thereby, the burden of meeting the financial needs of the corporation was distributed according to the interest of the respective signers of such contract. We think such was clearly the intention of the parties. On the other hand, if said contract imposed merely a per capita liability upon the signers thereof, the total indemnity promised thereby, on account of the express stipulation that the liability of each signer should not exceed $50 for each share owned by him, would have amounted in the aggregate to only $33,037.50, or only a little over one-half of the total liability contemplated. The conclusion that no such construction of said contract was intended by the parties thereto at the time seems irresistible.

Defendants’ contention, however, must fail for another reason. This case was before this court at a prior term on appeal from an order of the trial court overruling pleas of privilege interposed by certain defendants herein. Pending such appeal the proper construction of the contract sued on was presented to the Supreme Court by certificate for determination, and that court held that each of the signers of such contract became by the terms thereof liable to the directors, jointly and severally, for the entire sum paid out by them as indorsers of the paper of the corporation, and that the provision for the payment by each signer of,his pro rata part of such amount merely fixed the liability of such signers as between themselves. Miller v. Bush (Tex. Com. App.) 24 S.W.(2d) 23. See also, in this connection, Wisconsin Marine & Fire Ins. Co. Bank v. Wilkin, 95 Wis. 111, 69 N. W. 354, 356, 60 Am. St. Rep. 86. Since defendants were jointly and severally liable to plaintiffs for the unpaid balance necessary to reimburse them as indorsers, they are in no position to complain of the fact that Corriher was not considered in the original apportionment of liability and no part of the amount so paid by plaintiffs charged against him, nor of the fact that because of his insolvency they dismissed him from this suit. The amount per share ¡due by each of the signers to such contract, excluding the shares held by Corriher, was $27.-40. Plaintiffs’ recovery herein is upon that basis and defendants have no reasonable ground to complain of the sdme.

Defendants present a proposition in which they contend that -the court erred in awarding plaintiffs a recovery for attorne/'.s fees. The court not only rendered judgment against the defendant Miller for the sum of $13,700, the amount charged against him in said apportionment, but also for an additional sum of $1,370 as attorney’s fees. The court also rendered judgment against Connell’s executrix for the sum of $3,562, the amount charged against him in such apportionment, and for an additional sum of $356.20 as attorney’s fees. The contract sued on hound the signers thereto to reimburse the plaintiffs for the amount paid by them as indorsers of the paper of the corporation, but was silent concerning the payment of attorney’s fees. The general rule is that signers of indemnity or guaranty contracts are not liable for attorney’s fees incurred in suits to enforce the same, in the absence of an express stipulation for such liability. Pittsburgh, C., C. & St. L. Ry. Co. v. Keokuk & H. Bridge Co. (C. C. A.) 109 E. 279; Id. (C. C. A.) 107 E. 781; Cooke v. Mesmer, 164 Cal. 332, 128 P. 917, 921, par. 7; Abbott v. Brown, 131 Ill. 108, 22 N. E. 813; Holmes v. A. J. Schwab & Sons, 141 Ga. 44, 80 S. E. 313; Sheppard v. Daniel Miller Co., 7 Ga. App. 760, 68 S. E. 451; 28 C. J. 967. Defendants’ contention is sustained.

The judgment of the trial court is reformed by excluding from plaintiffs’ recovery the attorney’s fees aforesaid, amounting in the aggregate to $1,726.20, and as so reformed is affirmed.


author: GALLAGHEB, C. J.

text:
    LIMESTONE COUNTY v. ROBBINS.
    No. 913.
    Court of Civil Appeals of Texas. Waco.
    June 18, 1931.
    Behearing Granted in Part, Overruled in Part, July 9, 1931.
    Behearing 'Denied Oct. 1, 1931.
    Lewis M. Seay, Carl Cannon, and Scott Keed, all of Groesbeck, for appellant.
    L. W. Shepperd, of Groesbeck, for appel-lee.
   GALLAGHEB, C. J.

Appellee, W. A. Bobbins, instituted this suit to recover of appellant, Limestone county, certain sums of money which he alleged accrued to him as fees of office during the years 1923 to 1926, inclusive, while serving as the duly and legally qualified tax collector of said county. The case was tried to the court, and resulted in judgment in favor of appel-lee against appellant for the sum of $464.88 for preparing the delinquent tax list for the years 1921 and 1922, the sum of $233.80 for preparing the delinquent tax list for the years 1923 and 1924, and the further sum of $13,-068.94 for collecting delinquent taxes. Said judgment recited that said last-named sum was 5 per cent, on the delinquent taxes collected by appellee during the years 1923, 1924, and prior to 'September 1, 1925, and erroneously paid to appellant.

The controlling issues of law involved in this appeal were presented by certificate to the Supreme Court for determination. The facts are fully set out in our certificate, which is incorporated in the opinion of the court answering the questions submitted. Limestone County v. Bobbins, 38 S.W.(2d) 580. The court held in said opinion that appellee was not entitled to recover for preparing the tax list for the years 1923 and 1924, nor for collecting delinquent taxes.

The judgment of the trial court in so far as the same awards appellee a recovery against appellant of the sum of $233.80 for preparing the delinquent tax list for the years 1923 and 1924, and of the further sum of $13,-068.94 as 5 per cent, on delinquent taxes collected by him, is here reversed, and judgment is here rendered that appellee take nothing on either of said claims. Said judgment so far as same awards appellee - a recovery against appellant for the sum of $464.88 for preparing the delinquent tax list for the years 1921 and 1922 is affirmed.

On Motion for Rehearing.

Appellee has filed a motion for rehearing, in which he complains of our action in reversing the judgment of the trial court in his favor and rendering judgment against him on his claim for 5 per cent, on all delinquent taxes collected by him prior to the repeal of section 3, chapter 147, General Laws of the 34th legislature (1915), page 250. Appellee alleged and proved that he collected from each delinquent taxpayer an additional 5 per cent, on all taxes, interest, and penalties over and above the same, and that, under the mistaken belief that he was required by law to do so, paid said additional 5 per cent, into the county treasury. He recovered on said claim in the district court.

When we prepared the certificate and presented it to the' Supreme Court in this case, we were in some doubt as to whether ap-pellee sued solely for the additional 5 per cent, collected by him on all taxes, interest, and penalties over and above the amount of the same, or whether he also sued in the alternative for the statutory commission of 5 per cent, of all the sums so collected. We therefore presented the issue of his right to recover on each of such theories to the Supreme Court for determination. The Supreme Court held that appellee was not entitled to recover on either theory, but based its denial of his right to recover the 5 per cent, commission allowed by said act on the ground that he had failed to allege and prove affirmatively that he performed the specific duties prescribed by such act and for the performance of which such additional compensation was allowed. Since appellee recovered on said claim in the trial court, it became our duty to. reverse its judgment awarding such recovery. It is, however, the rule, where a judgment has been reversed, to remand to the trial court rather than to render it, where the ends of justice will be better subserved thereby. It is proper to remand the cause in such cases to afford a party an opportunity to amend his pleadings or to supply additional testimony. Hankins v. Minchew (Tex. Com. App.) 285 S. W. 264, and authorities there cited. Appellee asserts in his motion that he can supply testimony sufficient to entitle him to recover, and asks that we remand the cause as to said claim to enable him to amend his pleadings and submit the required proof. Under the authorities cited, he is entitled to an opportunity to do so.

The judgment of this court is therefore so modified as to remand to the trial court ap-pellee’s claim or demand for 5 per cent, on all delinquent taxes collected by him prior to the repeal of said act. That court will he governed by the opinion of the Supreme Court in its action on such claim.

The judgment of this court affirming the judgment of the trial court in so far as same awards appellee a recovery against appeh lant for the sum of $464.88 for preparing the delinquent tax list for the years 1921 and 1922, and rendering judgment against appel-lee on his claim for the sum of $233.80 for preparing the delinquent tax list for the years 1923 and 1924, is not disturbed and as to such provisions thereof appellee’s motion for rehearing is in all things overruled.


author: BAUGH, J.

text:
    MARYLAND CASUALTY CO. v. OVER-STREET.*
    No. 7631.
    Court of Civil Appeals of Texas. Austin.
    July 22, 1931.
    Rehearing Denied Sept. 23, 1931.

      R. L. House and R. H. Mercer, both of San Antonio, for appellant.
    Shelton & Shelton, of Austin, for appellee.
   BAUGH, J.

Fred Overstreet, while employed by J. E. Morgan as plasterer in the construction of a building at the University of Texas, received injuries to his arm and shoulder in March, 1930. The Industrial Accident Board awarded him $365.62 compensation against appellant, with which company Morgan carried a policy under the Workmen’s Compensation Act. Appellant filed this suit in the county court of Travis county to set aside said award. Appellee filed a cross-action and after a trial to a jury upon special issues judgment was awarded appellee for $400, from which the casualty company has appealed. Other pertinent facts will be given in connection with the issues raised.

The first contention made by appellant is that the cross-action asserted a cause of action beyond the jurisdiction of the county court. Claimant alleged in paragraph 4 of his cross-action: “That defendant’s wage prior to said injury was $75.00 per week, which said wage he was able to earn continuously as a plasterer, and that since the time of said injury, to-wit, March 21st, 1930, defendant has been totally disabled for sixteen weeks, and is permanently partially disabled, to such an extent that he cannot earn more than $25.00 per week at this time, and will in all probability not be able to earn more than $25.00 per week for the remainder of his life.”

This allegation taken alone, under section 11 of article 8306, R. S. 1925, would authorize, if proven, a maximum recovery of $20 per week for 16 weeks of total incapacity, and $20 per week for 300 weeks for 'permanent partial incapacity, a total far beyond the jurisdiction of the county court. Such maximum, in the absence of other affirmative allegations, expressly limiting the amount of claimant’s demand against the insurance company, would be beyond the jurisdiction of the county court. Texas Emp. Ins. Ass’n v. Nunamaker (Tex. Civ. App.) 267 S. W. 749; Georgia Casualty Co. v. Griesenbeck (Tex. Civ. App.) 210 S. W. 273; American Emp. Ins. Co. v. Scott (Tex. Civ. App.) 33 S.W.(2d) 845, 847.

In the instant case, however, appellee did not seek to recover the maximum amount authorized under the statute. Nowhere does he ask for compensation for 300 weeks, nor for any other specified time, other than for the.16 weeks of total incapacity. In the body of his pleading he claimed damages for total incapacity in the sum of $380, and for partial incapacity in the specific sum of $600'. Paragraph 12 of his pleadings reads: “12. That by reason of the premises, there is now due and owing to the defendants, the total sum of Nine Hundred Eighty Dollars ($980.00) which sum defendants have demanded from plaintiff, but plaintiff has failed and refused and still fails and refuses to pay the same, to defendants’ damage in the said sum, for which sum the defendants sue.”

This paragraph of his pleadings was obviously meant to affirmatively limit his demand against appellant, regardless of the total amount recoverable under paragraph 4, above set out, to a maximum of $980 in full satisfaction of such claim. The prayer was for a like amount. This intention is further borne out by the fact that appellant alleged in its suit to set aside the award of the board, and the statement of facts shows, that the total amount of appellee’s claim as filed originally before the Industrial Accident Board was for less than $950.

Appellant insists that the allegations in the body of a petition, and not the prayer for relief, determines the amount in controversy. This is generally true, especially where the aggregate amount of the items making up the cause of action asserted exceeds the jurisdiction of the court. Gulf, C. & S. F. Ry. Co. v. Hamrick (Tex. Civ. App.) 231 S. W. 166; Taylor v. Buzan (Tex. Civ. App.) 241 S. W. 1084; Simms Oil Co. v. Hall (Tex. Civ. App.) 281 S. W. 286. But where the demand is un-liquidated, and the claimant, though making general allegations, in the body of his petition, and not merely in the prayer, expressly, intentionally, and affirmatively limits the amount of his demand to a lesser sum than. the maximum he could recover, and seeks judgment only for a specific amount within the jurisdiction of the court, we think the rule announced in.the above cases does not apply. Especially. is this true in the instant case, where it conclusively appears that the original claim on which the Industrial Accident Board made its award, and on which appellee must recover if at all, was within the jurisdiction of the county court. This fact in itself, appellee not having appealed from said award, negatives any effort on appellee’s part to fraudulently retain jurisdiction of his cause of action in the county court.

And even if it could not be said, that jurisdiction of the county court affirmatively appears (and we think it does under the circumstances of this case), there are cogent reasons for applying the rule that “after indulging all intendments in favor of the pleading, unless it then plainly appears from the allegations that the court is without jurisdiction of the amount, it should retain jurisdiction.” Maryland Casualty Co. v. Hipp (Tex. Civ. App.) 22 S.W.(2d) 147, 149, a compensation case in the county court in which the same issue here presented was raised. See, also, Dwyer v. Bassett, 63 Tex. 274; Pecos & N. T. Ry. Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103; Merchants’ Reciprocal Underwriters v. First Nat. Bank (Tex. Civ. App.) 192 S. W. 1098.

Appellant next contends that neither the pleadings nor the proof were sufficient to authorize the submission to the jury of the issue as to Overstreet’s weekly wage, nor to support the jury finding thereon. The pleadings were that he was a plasterer by trade and that in that employment he had continuously been able to earn a weekly wage of $75. The proof showed that at the time he was injured he was making $71.50 per week, and had been making those wages regularly in that employment for four or five years prior thereto. This was sufficient to meet the requirements of section 1 of article 8309, R. S., in arriving at the amount of his compensation. It was not necessary for appellee to plead the method of computing his damages—a matter determined by the statute itself. Davies v. Texas Emp. Ins. Ass’n (Tex. Com. App.) 16 S.W.(2d) 524.

Appellant next contends that appellee failed to allege in his cross-action that he had presented his claim to the Industrial Accident Board within six months after his injury. Appellee alleged that he “made his. claim for •compensation within a few days after said injury and made several attempts to have said claim sent before the Board by his employers before the foreman would do the same.” Special exception was made to this allegation on the ground that it failed to allege when and the kind of notice given the board.

Compliance with the provisions of the statute so as to mature a claim for compensation is both mandatory and jurisdictional. Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, 1085, and numerous cases following same.

It now appears, however, that in a suit by the insurer to set aside an award of the Industrial Accident Board, where, as in this ease, a copy of the award is made1 a part of the record, the statutes relating to notice to the employer and filing such claim before the hoard are statutes of limitation only, to be - pleaded by the insurer as matters of defense. Davies v. Texas Employers Ins. Ass’n supra; Texas Employers’ Ins. Ass’n v. Lovett (Tex. Civ. App.) 19 S.W.(2d) 397 (writ ref.); American Employers’ Ins. Co. v. Scott (Tex. Civ. App.) 33 S.W.(2d) 845, 848 (writ ref.). In the latter case the Eastland Court of Civil Appeals held that “the award of the Industrial Accident Board is, for jurisdictional purposes only, evidence of the recitations therein. ⅞ * ⅜ » attack was made by appellant upon said award in this respect. On the other hand, the only attack made by appellant on said award was that appellee’s injury was not received in the course of his employment, but that it was due to rheumatism, an independent cause.

The next issue raised by appellant is that of variance between appellee’s pleadings and his proof. He alleged that he was employed by J. E. Morgan Company; and that the compensation insurance was carried by J. E. Morgan Company with appellant. However, appellant’s suit to set aside said award and the award itself show’ed that the em-. ployer was J. É. Morgan and the insurance carried by J. E. Morgan. The undisputed evidence showed that there was no J. E. Morgan Company, but only J. B. Morgan who was the employer of appellee at the time of1 the injury, and that he carried compensation insurance with appellant. The jury so found. Under such circumstances we think the variance was not fatal. Appellant was not surprised nor misled thereby and eould not have been injured. It was affirmatively pleaded by appellant that J. E. Morgan was the employer of appellee. The variance therefore became immaterial. Goodwin v. Abilene State Bank (Tex. Civ. App.) 294 S. W. 883; Federal Surety Co. v. Ragle (Tex. Civ. App.) 25 S.W. (2d) 898.

Appellant also complains that the trial court in his charge stated to the jury that this was a suit to set aside an award of the Industrial Accident Board. Appellant’s pleadings themselves affirmatively showed and expressly disclosed that such was its purpose. A mere statement of the nature and character of the suit would not be erroneous in any event; but if it had been, it certainly could not have injured appellant.

Finding no error in the record of sufficient gravity to warrant a reversal, the judgment of the trial court is affirmed.

Affirmed.


text:
    MALLOY et al. v. GALVESTON COUNTY.
    No. 9548.
    Court of Civil Appeals of Texas. Galveston.
    June 24, 1931.
    Rehearing Denied Sept. 24, 1931.
    Howell Ward, of Corpus Christi, and McDonald & Wayman, of Galveston, for appellants.
    Owen D. Barker and Fine G. Bedford, both of Galveston, for appellee.
   PLEASANTS, C. J.

This appeal is from a judgment of the court below condemning for public use as a county park a tract of land belonging to appellants, and containing less than 100 acres.

The only question presented by the appeal is the power or authority of the appellee to condemn land for public park purposes.

Appellee seeks to condemn appellants’ land under the authority conferred by articles 3264a and 6078, Revised Statutes of 1925. Article 3264a confers tiie right of eminent domain upon the counties of this state as follows: “The right of Eminent Domain is hereby conferred upon counties of the State of Texas for the purpose of condemning and acquiring land, right of way or easement in land, private or public, except property used-for cemetery purposes, where said land, right of way or easement is necessary in the construction of jails, courthouses, hospitals, delinquent and dependent schools, poor farms, libraries or for other public purposes, where such purpose is now or may hereafter be authorized by the Constitution or statutes of this State.”

Article 6078 authorizes counties “to levy and collect a tax not to exceed five cents on each $100 of assessed valuation of the county for the purchase and improvement of lands for use as county parks which shall consist of not more than one hundred acres, and shall not exceed more than four in any one county. No such tax shall be levied and collected until the proposition is submitted to and ratified by the property taxpaying voters of the county at a general or special election called for that purpose, provided, a two-thirds majority of the property taxpaying voters of such county, at an election held for such purpose shall determine in favor of said tax. if said court desires to establish two or more of such county parks they shall locate them in widely separated portions of the county. Said court shall have full power and control over any and all such parks and may levy and collect an annual tax sufficient in their judgment to properly maintain such parks and build and construct pavilions and such other buildings as they may deem necessary, lay out and open driveways and walks, pave the same or any part thereof, set out trees and shrubbery, construct ditches or lakes, and make such other improvements as they may deem proper. -Such parks shall remain open for the free use of the public under such reasonable rules and regulations as said court may prescribe.”

The public necessity for the acquisition of appellants’ land for county park purposes was determined by the commissioners’ court, and the levy of a special tax to pay for such acquisition was authorized by a two-thirds majority of the property taxpaying voters of the county at an election held in accordance with the provisions of article 6078, above quoted, and the condemnation proceedings were conducted in strict compliance with the statute regulating such proceedings.

The only question presented for our determination is whether the statute before set out confers upon the appellee county the right to ■ condemn land for public park purposes.

We think this question should be answered affirmatively:

The contention of' appellants is that article 3264a only gives the right of eminent domain for the purpose of condemning land for public use when the land sought to be condemned is necessary for the public uses specified in the article, or for such other public uses as the Constitution and statutes may thereafter specifically authorize condemnation.

This seems to us to be a strained and unreasonable construction of the statute. The general rules for the construction of all written instruments apply to the construction of legislative acts. One of these primary rules requires that language used in expressing the intention of the writer must be given its plain and ordinary meaning as generally understood. Another of these rules is that the instrument as a whole must, if possible, be construed so as to give a purpose and effect to all its provisions.

Applying these rules to article 3264a. we cannot agree with appellants that the clause in this statute “or for other public purposes, where such purpose is now or may hereafter be authorized by the Constitution or Statutes of this State,” should be construed as only giving the right of eminent domain and condemnation of land for public purposes when such right is thereafter given by the Constitution and statutes of the state. The words “such purpose” in the latter part of the clause can only mean a public purpose.

If the purpose for which the land is sought to be condemned has been declared a public purpose by a statute, then article 3264a expressly gives the county the right to acquire by condemnation the land necessary for such purpose.

If this clause be given the interpretation contended for by appellants, it becomes wholly ineffectual and purposeless, since no subsequent Legislature required the sanction of this act to authorize it to confer the right upon counties to condemn land for any public purposes.

The cases of State v. Mayor of City of Newark, 54 N. J. Law, 62, 23 A. 129, and Hanson Lumber Co. v. United States, 261 U. S. 581. 43 S. Ct. 442, 67 L. Ed. 809, while not deciding the exact question, declare the general principle upon which our conclusion is based. See also Lewis on Eminent Domain (3d Ed.)- §§ 251 and 369.

It follows' from these conclusions that the-judgment should be affirmed, and it has been, so ordered.

Affirmed.