text:
    BLUMROSEN v. BURKE et al.
    No. 1002.
    Court of Civil Appeals of Texas. Waco.
    Feb. 19, 1931.
    Rehearing Denied April 23, 1931.

      Callicutt & Upchurch and Richard & A, P. Mays, all of Corsicana, for appellant.
    Lovett & Lovett, of Corsicana, and W. A. Tarver, of Austin, for appellees.
   ALEXANDER, J.

This was a suit brought in the district court of Navarro county, Tex., by Mose Blum-rosen against J. Afton Burke and Sol Gott-lieb, to recover from the defendants one-third of the funds which they had received from the sale of an oil and gas mining lease, in which the plaintiff claimed an undivided one-third interest. This is the second time the case has been tried before a jury and in each instance the verdict of the jury was for the defendants. Eor the former appeal see (Tex. Civ. App.) 296 S. W. 987.

The case arose in this manner: In 1923 Mrs. Esther Blumrosen, mother of the plaintiff, owned the land in question, consisting of forty acres. Her son, the plaintiff, acting under a supposed power of attorney, and for a consideration of $2,000 paid by Burke and Gott-lieb, executed and delivered a lease on the land in question to J. Afton Burke, under an agreement whereby the defendants Burke and Gottlieb were to each own an undivided one-third interest in the lease, and the defendant Burke was to convey to Mose Blum-rosen a one-third interest therein. In this manner each of the three parties were to hold a one-third interest in the lease. It was the contention of the defendants that this scheme was devised, not for the purpose of investing in the plaintiff Mose Blumrosen a one-third interest in the lease for his own use and benefit, but merely to invest him with the legal title thereto for the use and benefit of his mother, who was the grantor in the lease. Burke immediately executed to Mose Blum-rosen an assignment of the one-third interest in the lease. About the time the lease was executed and delivered, a discovery well came in near the land in question and shortly thereafter Mrs. Blumrosen, the grantor in the lease, claimed that she had been overreached and that she had not been given the benefit of all the facts concerning the development in the field at the time she executed the lease. She threatened to bring an action to have the lease set aside on account of fraud. Negotiations were begun between Mrs. Blumrosen and the holders of the lease with the view of adjusting the differences between them on account of the alleged fraud. A settlement was finally reached by which it was agreed that Mrs. Blumrosen was to retain the $2,000 that had been paid to her by Burke and Gottlieb, and the further understanding that Mrs. Blumrosen’s son-in-law Garonzik, as agent for all of the- parties, was to sell the lease on a commission of 10 per cent for himself, and Mrs. Blumrosen was to receive one-half of the net proceeds obtained from the sale of the lease. Garonzik sold the lease in parcels to various parties and after deducting his 10 per cent., paid one-half of the remainder to Mrs. Blumrosen and one-half to Burke and Gott-lieb. Mose Blumrosen brought this suit' against Burke and Gottlieb to recover one-third of the amount paid to them for the sale of said lease.

The case was submitted to a jury on the following special issues and the issues were answered by the jury as follows:

“Question No. 1. Was the Plaintiff, Mose Blumrosen, and the Defendants, J. Afton Burke and Sol Gottlieb, partners in the 40 acre oil lease that is the subject of this controversy? Answer Yes or No. Answer: No.
“Question No. 2. Did the Plaintiff, Mose Blumrosen, have conveyed to him a one-third (⅛) interest in said 40 acre lease in trust for the use and benefit of his mother, Mrs. Esther Blumrosen? Answer Yes or No. Answer: Yes.
“Question No. 3. Did Mrs. Esther Blum-rosen ratify the contract and lease entered into between Mose Blumrosen, acting as her agent, and J. Afton Burke, which contract is of date January 8th, 1923? Answer Yes or No. Answer: No.
“Question No. 4. Did Mrs. Esther Blum-x’osen, acting through her agent Will Garon-zik, for a valuable consideration, enter into a new contract with J. Afton Burke, and Sol Gottlieb in settlement of her controversy, if any, with them. Answer Yes or No. Answer: Yes.
“Question No. 5. Did the Plaintiff, Mose Blumrosen, by written conveyance, sell, transfer, assign, surrender or relinquish his right to his portion of the proceeds, if any, received from the sale of the -lease, on the 40 acres of land described in the Plaintiff’s petition? Answer Yes or No. Answer: Yes.
“Question No. 6. Did the defendant, Sol Gottlieb, before the Plaintiff, Mose Blum-rosen had signed an agreement with some of the oil companies purchasing a legal title to the mineral estate in his mother, make a statement to, or assure the Plaintiff, that he would receive his interest in the proceeds of the oil lease, which was then being made? Answer Yes or No. Answer: No.”

Based on these findings, the court entered a judgment for the defendants. _ The plaintiff appealed.

-Appellant, in his brief, contends that there was no evidence to support the verdict of the jury. It is appellant’s contention that since Burke, after obtaining the lease from Mrs. Blumrosen, assigned to appellant a one-third interest in the lease, and since appellant never by any written instrument assigned or released his interest therein to the appellees that he (the appellant) still owned his interest therein and was entitled to his share of the proceeds of the sale thereof. It appears that the assignment from Burke to Mose Blumrosen of a one-third interest in the lease was never recorded. After the horn-promise agreement was brought about between Mrs. Blumrosen and the holders of the lease, the appellant, in order to consummate the sales made by Garonzik, assigned to his mother the legal title held by him in the lease as to twenty-eight acres of the land and permitted Mrs. Blumrosen and Burke and Gott-lieb to assign to the various purchasers the lease on all of the land in question. As stated above, it was the contention of the ap-pellees that the appellant never actually owned any interest in the lease but that at the time he acquired the assignment from Burke to a one-third interest therein he took the same in trust for the use and benefit of his mother who owned the fee. They further contended that at the time the compromise agreement was had with Mrs. Blumrosen, she actually owned the beneficial interest in the one-third interest that had been assigned by Burke to appellant and that under ap-pellees’ agreement with Mrs. Blumrosen, by which she received one-half of the proceeds of the sale of the lease as her share thereof, the appellees acquired the fuli right to the other one-half of the net proceeds of said sale. The jury, in answer to special'issue No. 2, found that at the time the appellant had conveyed to him a one-third interest in the 40 acre lease, he took the title to the same for the use and benefit of his mother. The evidence on this issue was conflicting and it thus became an issue of fact for the jury. There was sufficient evidence to support the verdict of the jury on this issue.

If Mose Blumrosen actually held the one-third interest in the lease for the use and benefit of his mother, as found by the jury, then1 he had no beneficial interest therein, but held the mere naked title thereto under a dry' trust for his mother, and his mother had the right to make a valid contract for the disposition of the consideration received for the resale of said lease. Moore v. City of Waco, 85 Tex. 206, 20 S. W. 61, at page 63; Brown v. Harris, 7 Tex. Civ. App. 664, 27 S. W. 45; 39 Cyc. pp. 30, 207, 219; Tinsley v. Magnolia Park Co. (Tex. Civ. App.) 59 S. W. 629; So. Pine Lbr. Co. v. Arnold (Tex. Civ. App.) 139 S. W. 917; Estes v. Estes (Tex. Com. App.) 267 S. W. 709; 26 R. C. L. 1264; Cordova v. Lee (Tex. Sup.) 14 S. W. 208. The appellant, by his conveyance to Mrs. Blumrosen of the title to the lease on 28 acres of land, completely divested himself of the technical legal title thereto. His acquiescence in the sale of the lease on the balance of the acreage by Burke and his mother was binding on him. Since the appellant held no beneficial interest in the lease, he was not entitled to receive any portion of the proceeds of the sale thereof.

In answer to special issue No. 4 the jury found that Mrs. Blumrosen, through her agent, entered into a new agreement with Burke and Gottlieb in settlement of the con-, troversy between them. The appellant objected to this issue because it did not inquire whether or not the appellant was a party and consented to such compromise agreement. If appellant held the title to the one-third interest in the lease for the use and benefit of his mother, as found by the jury in answer to special issue No. 2, his mother, for whom he held the title, had the right to make a compromise agreement with reference to the lease without his knowledge or consent, and it was not necessary for him to be a party to such agreement.

Appellant objected to special issue No. 2 because the court failed to define the words “in trust” as used therein. We do not think that this is such a technical legal term,_ especially in the connection in which it was used, as required a legal definition. It is a term that is in general use and well understood by laymen. This is especially true since it was used in connection with the words, “for the use and benefit of his mother.” Moreover, the pleadings and evidence make it clear that the issue before the jury was whether the interest in the lease that had been conveyed to appellant was in fact to belong to his mother. The appellant objected to the charge because the term was not defined, but offered no suggestion as to the proper definition thereof and requested no special charge defining the term. We doubt whether the court could have used more simple language in defining the term than was used in the term itself, especially in the connection in which it was used. Walsh v. Schingler (Tex. Civ. App.) 14 S.W.(2d) 872; Dunlop Tire & Rubber Co. v. Teel (Tex. Civ. App.) 14 S.W.(2d) 104; Bay Lumber Co. v. Snelling (Tex. Civ. App.) 205 S. W. 763; Spurlock v. Hilburn (Tex. Civ. App.) 32 S.W.(2d) 396.

Appellant, in his brief, complains of the failure of the court to define the terms. “valuable consideration” as used in special issue No. 4. However, we do not find that any such objection was made to the charge in the lower court. Without such objection in the lower court, it cannot be made for the first time in this court.

Appellant urged various objections to the manner and form in which special issues 1, 3, and 5, were submitted to the jury. It appears, however, that special issue No. 2 was the controlling issue in the case and that if, as found by the jury, the appellant actually owned no interest in the lease, but held the title thereto for his mother, the other issues submitted to the jury were immaterial. If the other issues had been submitted in the form suggested by appellant and if they had been answered in his favor this would not have changed the result of the case. There was nothing suggestive or inflammatory in the manner in which these issues were submitted and it will not be presumed that the manner in which they were submitted in any wise influenced the jury in answer to special issue No. 2. Schaff v. Morris (Tex. Civ. App.) 227 S. W. 199, at page 205; Brokaw v. Collett (Tex. Com. App.) 1 S.W.(2d) 1090; Rathbun v. Miller (Tex. Civ. App.) 266 S. W. 818.

The appellant complains of the manner in which the court charged on the burden of proof. The court told the jury, in substance, that the burden of proof was on the plaintiff to prove by a preponderance of the evidence the matters set forth in special issues 1, 3, and 6, and that the burden was on defendant to prove by -a preponderance of the evidence the matters set forth in special issues 2, 4 and 5, and that in determining such issues the jury should consider all of the evidence before them. A similar charge was approved by the Commission of Appeals in the case of Houston & T. C. Ry. Co. v. Stevenson, 29 S.W.(2d) 995, at page 999. See Texas & P. Ry. Co. v. Wylie (Tex. Civ. App.) 36 S.W.(2d) 238. .The assignment is overruled.

The appellees were permitted by the court, over the objection of appellant, to ask the appellant whether he had any right 'to represent his mother under the power of attorney, to which the witness- answered that he thought he did. The power of attorney executed by Mrs. Blumrosen authorized appellant to execute a lease on 50 acres out of a tract of 110. Appellant had already executed a lease on 50 acres out of this tract and therefore had fully exhausted his power. This occurred before appellant undertook to execute the lease in question, yet he was contending that he had a power of attorney to lease the additional 40 acres and that the lease as so made by him was valid. The inquiry was proper for the purpose of determining whether he had a power of attorney to execute the lease in question.

It was the contention of the appellant that on the first trial of the case the appellee Burke did not contend nor testify that the appellant took title to the one-third interest in the lease for the use and benefit of Mrs. Blumrosen and that Burke’s testimony on this trial to that effect was an afterthought. In order to establish this issue the appellant offered in evidence a transcript of the entire testimony given by Burke on the former trial. The court refused to admit the same in evidence. The appellant did not offer any particular part of the record for the purpose of showing a conflict between the evidence given on the trial in the instant case and that given on the former trial, but desired to introduce each and every part of the evidence given on the former trial for the purpose of showing the absence of any evidence therein to the effect that the assignment was taken for the use of Mrs. Blum-rosen. The witness, while on the stand, was asked about various portions of his testimony on the former trial and did not deny having given the same. The trial judge in his qualifications to the bill states that the witness admitted that he had not testified on the former trial that appellant was to hold the lease for the use. of his mother, saying that he had not been asked any question along that line. The trial judge further states that appellant was permitted to introduce every portion of the witness’ testimony given on the former trial in which there was the slightest conflict with his testimony in the case on trial. The appellant accepted the bill with the qualification and is bound thereby. Standard Acc. Ins. Co. v. Williams (Tex. Civ. App.) 4 S.W.(2d) 1023, at page 1027, affirmed (Tex. Com. App.) 14 S.W.(2d) 1015.

Moreover, each of the three attorneys who represented the appellant on the former trial were permitted to testify that they heard the witness on the former trial and had carefully read that the witness inquired about, would have been proper for the court to have thus encumbered the record with this entire testimony for the purpose of showing the absence of evidence on the matters inquired about, especially where there was available and actually used other competent evidence that did not so burden the record. . his evidence given therein and did not testify to the matters We do not think that it

What has been said with reference to the refusal of the court to permit the introduction of the testimony of the witness Burke given on the former trial applies alike to the refusal of the court to permit the introduction of the testimony of the appellee Gott-lieb given "on a former trial.

We have examined all other assignments presented by appellant and consider same to be without merit.

The judgment of the trial court is therefore affirmed.


source: Caselaw Access Project

author: HICKMAN, C. J.

license: Public Domain

text:
    PEDIGO & PEDIGO v. CROOM.
    No. 814.
    Court of Civil Appeals of Texas. Eastland.
    March 13, 1931.
    Rehearing Denied April 24, 1931.
    Ritchie & Ritchie, of Mineral Wells, and Touchstone, Wight, Gormley & Price, of Dallas, for appellants.
    D. H. Elewellen, of Ranger, and Erank ■Sparks, of Eastland, for appellee.
   HICKMAN, C. J.

The appellants, Drs. W. S. and P. C. Pedigo, are practicing physicians and surgeons at Strawn. On or about December 22, 1927, ap-pellee sustained a fracture of the femur of his right leg and was taken to a hospital in Strawn and placed under the treatment of appellants. This suit was instituted by him to recover damages for alleged malpractice on the part of appellants in the manner of their treatment of his broken leg. Various grounds of negligence were pleaded. The case was submitted to a jury on special issues, and on the verdict judgment was rendered for appellee against appellants for $15,000 damages.

In a printed brief of 330 pages, besides several pages of index and alphabetical list of authorities, appellants present 54 propositions for reversal based upon 146 assignments of error. Supplemental briefs were also filed by appellants. Proposition 23, briefed on pages 174 to 181, will be considered first. Special issue No. 13 was as follows: “What sum of money, if any, if paid now, in cash, do you find would fairly and adequately compensate plaintiff, H. C. Croom, for the injury, if any, sustained by him in the treatment of his leg by the defendants, or either of them? Answer the amount in dollars and cents, if any. In arriving at the amount of damages, if any, sustained by H. O. Croom, as the direct and proximate result of the lack of skill, if any, and the negligence, if any, or either, if any, by the defendants, or either of them in their treatment of plaintiff’s leg, you may take into consideration the evidence, if any, showing or tending to show if it does show or tend to show, the injury to the physical structure of the body, if any, of H. O. Croom; the pain, if any, suffered by him; the decrease, if any, in his ability to earn money, by reason of the injury, if any, which he may with reasonable certainty suffer in the future, if you find there will be any.”

To this issue appellants timely presented, among others, the following objection and exception: “⅜ * * 'Because said question does not exclude from the consideration of the jury the injury or probable consequence of injury sustained by H. C. Croom and being suffered by him prior to the time these defendants were engaged to treat him, and further because said question does not exclude that pain and suffering and loss of earning power past and future which would have been or might have been reasonably expected to be the natural consequence of his original injury.”

Error is assigned to the action of the trial court in overruling this exception and objection. The evidence presents a situation where appellee was suffering from an infirmity before any of the alleged acts of negligence were committed by appellants. The most for which appellants could be charged would be the injuries sustained by appellee in addition to those which would have been sustained as a direct result of the broken leg. The injuries flowing from the original accident, and those flowing from the alleged negligence of appellants, were so connected and intermingled that appellants had the right to have the charge affirmatively limit the jury in its consideration to the injuries resulting alone from their negligence and excluding such injuries as were the result of the original accident. The rule is stated in IT O. J. p. 1074, § 378, as follows: “Where plaintiff in a personal injury case has been suffering from a previous disability or infirmity, the court should take care to state clearly and fully the rule of recovery in such cases, and a refusal to so instruct is error.”

Texas eases are cited in support of the text. In addition to the cases there cited, we shall call attention to other Texas authorities.

In the case of St. Louis S. W. Ry. Co. of Texas v. Johnson, 100 Tex. 237, 97 S. W. 1039, 1040, submitted on a general charge, where the cause of action was for personal injuries to the plaintiff’s back, and there was some evidence of a prior injury to his back, our Supreme Court held it was error for the trial court to refuse to give the following instruction: “If you find that the plaintiff had been injured in his back prior to the time he claims to have been injured at Carrolton, or that he had any disease of the back prior to that time, and that he was suffering therefrom at the time of the alleged accident at Carrolton, and you further find that he was injured in the back at Carrolton while alighting from the train, and that the defendant is responsible for such injuries, and that the injuries received at Carrolton simply aggravated or increased his existing trouble, then the plaintiff would be entitled to recover, if at all, under the other instructions given you, only for the increase or aggravation of the troubles which existed at the time ho received such injuries at Carrolton.”

In the case of Gulf, C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S. W. 260, 261, where the action was for damages under the “death statute,” our Supreme Court, speaking through Chief Justice Gaines, uses this language: “It is important therefore, in an action of this sort that the jury should not only be given instructions to allow a recovery as authorized by the language of the statute, but that they should also be instructed for what elements no recovery can be allowed.”

In the case of Hines v. Kelley, 252 S. W. 1033, 1035, the Commission of Appeals, in an opinion approved by the Supreme Court, quoted at length from International & G. N. Ry. Co. v. McVey, 99 Tex. 28, 87 S. W. 328, and also from Gulf, C. & S. F. Ry. Co. v. Farmer, supra, and on the authority of these and other decisions held that a charge in an action under the “death statute,” which expressly limited the plaintiff’s recovery to “her pecuniary loss only,” but did not affirmatively exclude the elements of grief, pain, and anguish, etc., was deficient. We quote from the Commission’s opinion, as follows: “In passing upon the sufficiency of the charge, however, the Supreme Court clearly indicates that the improper elements themselves must be excluded — specifically, and not hy some general expression descriptive of those elements, which may hot be clearly understood by one unfamiliar with the legal interpretation of that expression. * * ⅜ It was the clear purpose of the Supreme Court in the McVey and Parmer Cases to hold, we think, that a charge which did not expressly exclude these elements from the jury’s consideration was misleading and afforded ground for reversal.”

This court considered a similar question in Times Publishing Co. v. Ray, 1 S.W.(2d) 471, 474, and in its opinion used the following language: “It is a well-settled rule that, where plaintiff in a personal injury case is suffering from a disability or infirmity not caused by the negligence of the defendant in the particulars alleged in the petition, the court should take care t.o charge clearly, fully, and affirmatively that the plaintiff is entitled to recover only to the extent that his infirmity was increased or aggravated by defendant’s negligence. 17 C. J. p. 1074, § 378'; St. Louis Southwestern Ry. Co. of Texas v. Johnson, 100 Tex. 237, 97 S. W. 1039; G., C. & S. F. Ry. Co. v. McMannewitz, 70 Tex. 73, 8 S. W. 60; Fort Worth & D. C. Ry. Co. v. Morrison (Tex. Civ. App.) 139 S. W. 884; St. Louis Southwestern Ry. Co. v. Hall (Tex. Civ. App.) 92 S. W. 1079.”

The principle underlying these decisions is the same as that which is the foundation of the rule that a defendant is entitled to an affirmative presentation of his defenses. .That this latter rule is the settled law of Texas is well established by many decisions, of which the following may be cited: Missouri, K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; North Texas Traction Co. v. Evans, 108 Tex. 356, 193 S. W. 1067; Galveston, H. & S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S. W. 534; Colorado & Southern Ry. Co. v. Rowe (Tex. Com. App.) 238 S. W. 908; Southern Kansas Ry. Co. v. Wallace (Tex. Com. App.) 206 S. W. 505; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517.

A consideration of the foregoing authorities leads to the conclusion that the assignment and proposition under review should be sustained and the case be remanded. In submitting the question of the amount of damages upon another trial, the special issue should be so framed as affirmatively to exclude all injuries attributable to the original accident.

In their motion for a new trial in the court below appellants set up that, since the trial they had learned that appellee had been paid damages under the Compensation Law; that appellee’s employer at the time of his injuries was a subscriber and Texas Employers’ Insurance Association was the compensation insurer. Certified copies of the proceedings in the compensation case in the district court of Stephens county were attached to the motion. The facts with reference thereto did not develop in the trial of the case. It is insisted here that the settlement made by appellee with the Texas Employers’ Insurance Association, together with the release executed upon the final payment, constitute a bar to any recovery against appellants. The authorities from other jurisdictions relied on by appellants seem, to support the contention, but that question has been definitely resolved by our courts in favor of an employee’s right to maintain a suit against a third person whose negligence caused his injury, even though he had first proceeded under the Compensation Law. This right is granted the injured employee under the provisions of article 8307, § 6a, as construed by our courts. Fox v. Dallas Hotel Co., supra; Hanson v. Ponder (Tex. Com. App.) 300 S. W. 35; City of Austin v. Johnson (Tex. Com. App.) 240 S. W. 523; Mitchell v. Dillingham (Tex. Civ. App.) 22 S.W.(2d) 971; and authorities there cited.

Upon another trial of this case, should the insurance association not intervene, proof should be offered that it had refused to do so or had waived its cause of action. The record suggests than an interesting and important question not before us for determination on this appeal may arise upon the next trial. In all of the Texas cases dealing with the right of an injured employee under the Workmen’s Compensation Law to sue a third person for damages, so far as- our knowledge of them extends, the negligence of such third person was the proximate cause of the original injury. In such cases, under article 8307, § 6a, the employee’s cause of action is only for the excess over the total amount of compensation received. In' this case appellee received at least a part of his compensation by virtue of the original accident, for which appellants were in no sense liable. The question suggested is, whether, in the event appellee should again be successful in his suit, there should be deducted from his judgment the full amount of compensation received, or only the amount received, on account of the additional loss of time, if any, suffered by. him by reason of the alleged negligence of appellants. If the trial court entertains a doubt upon this question, we take the liberty of suggesting that the consequences of an erroneous decision of it may be minimized by submitting an issue on the question of how much additional compensation, if any, was paid to appellee on account of the alleged malpractice. With such a finding in the record the appellate -court will be enabled, upon another appeal, to apply the law, whichever way it may be determined, to the findings without the necessity of another trial.

Various objections were made to the admissibility of certain-evidence. Since this evidence is in the form of depositions, and will likely be offered upon the next trial, we think it our duty to pass on these assignments at this time. Without setting out the various and sundry objections and exceptions contained in the assignments, we think it sufficient to state that we have considered the propositions and overrule all of them. We also overrule the assignments based upon the charge on the burden of proof, and those complaining of definitions of legal terms contained in the charge. Special issue No. 7 should not be submitted on another trial unless the pleadings are so amended as to authorize it. The other questions briefed will likely not arise upon another trial, and for that reason need not be discussed in this opinion.

'For the error in the charge above pointed out the judgment of the trial court will be reversed, and the cause remanded.


author: JONES, C. J.

text:
    METZGER et al. v. GAMBILL.
    No. 10748.
    Court of Civil Appeals of Texas. Dallas.
    March 21, 1931.
    Rehearing Denied April 25, 1931.
    Jno. C. Read and W. F. Bane, both of Dallas, for appellants;
    Ross M. Scott, of Dallas, for appellee.
   JONES, C. J.

This appeal is duly prosecuted by appellants, Carl Metzger and David Metzger. The basis of this appeal is: On December 2, 1929, in a district court of Dallas county, appellee, Yera Gambill, was awarded judgment by default against appellants with writ of inquiry. On the same day the writ of inquiry was perfected, on proof of claim, damages assessed against appellants in the sum of $2,500, and judgment duly entered for said amount. On December 21,1929, the court entered its order overruling appellants’ amended motion for a new trial, and errors are duly assigned thereon. The following is a sufficient statement of the facts:

Appellee filed the petition in this suit on November 4, 1929, and citation was duly issued on the same day, commanding appellants to appear before the trial court “at or before ten o’clock a. m. of the Monday next following the expiration of 25 days from date of citation, being Monday at ten o’clock a. m. on the 2nd day of December, A. D. 1929, then and there to answer the petition of Vera G-ambill, filed in said court on November 4, A. D. 1929.” The citation was served on November 6, 1929, and due return made thereon by the officer serving same. At 10 o’clock a. m. on said 2d day of December, 1929, appellant had neither filed answer or made appearance, and the judgment by default was rendered, evidence was heard to perfect the writ of inquiry by proving the amount of appel-lee’s damages, and the judgment entered.

The portion of the petition relevant to this inquiry is: “Plaintiff represents that on or about the 26th day of October, 1929, while driving a car along Marlborough Street in the City and County of Dallas, Texas, on the right side of said street, and in a southerly direction, and at the intersection of Marlborough Street and Twelfth Street, and without fault on her part, one of the defendant’s milk trucks negligently, carelessly and recklessly was driven, or caused to be driven into, against and upon the ear of the plaintiff herein, striking said car with great force and violence, breaking the frame of said car, the left fender of said car, the glass in the door, and bursting the running board, and seriously and permanently injuring the plaintiff herein; that said truck struck the plaintiff’s car with such force and violence as to, and did, hurl "her with great force and violence against the side of the car in which she was seated, bruising and lacerating her head, injuring her hip and left side, and seriously and permanently injuring plaintiff otherwise. That by reason of said negligent acts on the part of the defendants, their agents and servants, in recklessly, carelessly and negligently running, or causing said truck to be run, against and upon the car of the plaintiff herein, and seriously and permanently injuring the plaintiff as heretofore alleged, plaintiff has been damaged in the sum of Ten Thous- and ($10,000) Dollars. Plaintiff further alleges that said defendants, their agents and servants, in running said truck upon and against the plaintiff’s car, as aforesaid, damaged said car, as aforesaid, in the sum of Two Hundred Fifty ($250) Dollars. Plaintiff further alleges that by reason of said negligent acts on the part of the defendants herein, she has been damaged in the sum of Ten Thousand Two Hundred Fifty ($10,250) Dollars, for which said defendants are liable.”

In the motion for a new trial, no excuse is alleged for the failure of appellants to file any answer on or before 10 o’clock a. m. December 2, 1929. However, two grounds are urged to show that the court should set aside the judgment by default and grant a new trial in this cause. These grounds are (1) that appellants were entitled to the entire day of December 2, 1929, in which to appear and make answer to appellee’s suit, and therefore the judgment by default was prematurely rendered; (2) that the allegations in the petition on which the judgment was rendered are insufficient to state a cause of action, for which reason the petition is subject to a general demurrer and cannot support the judgment by default.

Was the judgment by default prematurely rendered? This question miist be answered from the provisions of chapter 6, title 42, R. C. S. 1925 (article 2692 et seq.), prescribing the procedure applicable to the district courts of Dallas county. Subdivisions 1 and 5 of article 2092 of said chapter control the issuance of citation, the service thereof, and the time in which a defendant in a suit is required to answer in such courts, and are:

“1. Citations issued for personal service in the county in which the suit is pending shall command the officer to summon the defendant to appear and answer the plaintiff’s petition at or before ten o’clock a. m. of the Monday next following the expiration of the twenty-five days from the date of citation and shall be executed and returned by the officer twenty days after the date of issuance.
“5. In each of said cases the citation or notice shall specify the day of the week, the day of the month.and the time of day the defendant is required to appear and answer, and if any defendant so served does not appear and answer at or before the time specified in such citation or notice, judgment by default may be rendered against such defendant.”

The citation in the instant case complied with the provisions of these statutes, and the return of the officer shows that service of the citation on appellants was had for the day and at the hour named in the citation as the time within which they must answer. Appellants did not appear and answer within the time named in the citation, and thereby became subject to the default judgment, under •the mandatory provisions of subdivision 5, which declares that, “if any defendant So served does not appear and answer at or before the time specified in such citation or ■notice, judgment by default may be rendered against such defendant.” This language is too plain to admit of argument as to its construction, and compels the holding that the judgment by default in this case wag hot premature. The first contention of appellants is overruled.

Does the icetition state a cause of action? This question must be answered under the same rules that courts have adopted to determine the sufficiency of a petition as against a general demurrer. “Negligence is not the act itself, but the fact which defines the character of the act, and makes it a legal wrong.” Stephenson v. Railway Co., 102 Cal. 143, 34 P. 618, 620, 36 P. 407. Negligence is the ultimate fact to be pleaded in stating a cause of action ex delicto, and is not a conclusion. 21 R. O. L. 500. In connection with this announcement of general law, the same authority declares that “it is the general rule that a pleader may allege negligence in an action therefor in general terms; that is to say, the pleading need not show all of the various facts from which the negligence may he deduced. Such a general allegation of negligence is sufficient to repel' a demurrer for want of facts; although it may not he good as against a demurrer, on the ground of uncertainty, and although it may not repel a motion to make the pleading on some specific allegation therein more definite and certain in the particular objected to.” 21 R. G. L. supra. Under our system of procedure, a special exception, and not a general demurrer, is the remedy for uncertainty in pleading, and likewise, a special exception is the method to follow to make the pleading more specific, rather than to accomplish such purpose by motion.

Erom these authorities it appears that there must be stated in a petition some act of a defendant to which the term “negligence” may be made to apply. If the petition in the case at bar had alleged only that appellee was negligently injured, then there would be alleged no act of appellants which could be branded as wrongful or negligent. Such, however, is not the petition we are considering. This petition alleges that “one of defendants’ milk trucks negligently, carelessly and recklessly was driven, or caused to be driven, into, against, and upon the car of the plaintiff herein, striking said car with greac force and violence,” etc. The act complained of is the driving of appellants’ truck against appellee’s car with great force and violence, and this act is alleged to have been negligently done.

Is an allegation that a ear is negligently and carelessly driven only a conclusion? We do not think so. We think it states a specific fact. If appellants desired to he informed of the manner in which appellee would attempt to prove the car was driven, they could have filed a special exception to the general allegation, but certainly such pleading would not be subject to a general demurrer. A general demurrer admits that the car was driven recklessly, carelessly, and negligently, and that it struck appellee’s car with great violence and inflicted personal injuries upon ap-pellee, and also caused damage to her car.

Is this view of the law contrary to the decisions of this state? We think not. It is in harmony with the decision of the Supreme Court in an opinion written by Chief Justice Stayton, in the case of Gulf, C. & S. F. Ry. Co. v. Smith, 74 Tex. 276, 11 S. W. 1104. In the reported ease, plaintiff charged negligence in general terms, in substance alleging only that the car in which plaintiff was riding was derailed through the negligence of the railway company and its servants, and thereby injured plaintiff. The effect of that decision is that an allegation of the negligent derailment of a ear was good against an exception and stated a cause of action; likewise in the case of Gulf, C. & S. F. Ry. Co. v. Wilson, 79 Tex. 374, 15 S. W. 280, 11 L. R. A. 486, 23 Am. St. Rep. 345, the same doctrine is announced on a similar general allegation of negligence. See, also, Weatherford, M. W. & N. W. Railway Co. v. Granger, 85 Tex. 574, 22 S. W. 959; Galveston, H. & S. A. Ry. Co. v. Croskell, 6 Tex. Civ. App. 160, 25 S. W. 486, 492; Western Union Telegraph Co. v. Skinner, 60 Tex. Civ. App. 477, 128 S. W. 715.

It is urged by appellants that the petition does not show the violation of any duty that rested upon appellants on the occasion in question, and that negligence can only be predicated upon the violation of a duty. The petition does not specifically allege that any duty was owing to appellee by appellants, their agents or servants, nor in the instant case is such allegation necessary to state a cause of action. Under the law of this state, a duty rests upon every driver of an automobile to exercise ordinary care in the operation of his car so as not to endanger the safety of others who may be using such highway. This duty rested on appellants at the time of the collision. Negligence is the failure to exercise ordinary care, and, when appellee alleged that appellants’ truck was negligently and recklessly driven, thereby causing it to strike the car of appellee with great force and violence, there is alleged a violation by appellants of the legal duty above described. The law placing the duty upon appellants to observe ordinary care in the operation of their trucks, it was not necessary specifically to allege the existence of such duty.

We have carefully examined appellants’ authorities, and we do not think they are contrary to the views presented in this ease. For the reasons stated, it is our opinion that judgment of the lower court must be affirmed.

Affirmed.


author: HIGGINS, J.

text:
    J. M. RADFORD GROCERY CO. v. CITIZENS’ NAT. BANK OF ODESSA.
    No. 2512.
    Court of Civil Appeals of Texas. El Paso.
    March 19, 1931.
    Rehearing Denied April 16, 1931.
    W. E. Lessing, of Abilene, and B. Frank Haag and Frank Stubbeman, both of Midland, for appellant.
    C. W. Tate, of Odessa, and G. W. Dunaway, of Midland, for appellee.
   HIGGINS, J.

This is the second appeal in this case. See Citizens’ Nat. Bank v. E. V. Graham & Co., 25 S.W.(2d) 636, 637. The nature of the case and the question at issue are stated in the opinion upon the former appeal as follows:

“Appellant brought this suit against the individuals composing the partnership of E. V. Graham & Company upon certain notes executed by said company, and to foreclose a deed of trust dated March 26, 1927, upon land securing payment of the notes.
“The J. M. Radford Grocery Company had a deed of trust upon the same land, dated May 9, 1928, securing indebtedness to it of Graham & Co., filed for record May 14,-1928. Plaintiff’s deed of trust was filed for record October 4, 1928.
“Plaintiff joined the J. M. Radford Grocery Company as a party, defendant asserting it had notice, actual or constructive, of plaintiff’s prior deed of trust. As between plaintiff and the grocery company, the issue was as to the priority of their respective liens, which issue was dependent upon the question of notice.”
The present appellee was the appellant upon the former appeal.
The last trial resulted in judgment "of foreclosure in favor of the bank and the grocery company with priority awarded the lien of the bank.

The land involved is section 11, block 42, township 3 south, Texas & Pacific Railway Company survey in Ector county.

The evidence is sufficient to show that, pri- or to the time appellant acquired its deed of trust, U. N. Shanks, one of appellant’s traveling salesmen, had actual notice of the prior unrecorded deed of trust in favor of the bank.

Appellant challenges the sufficiency of the evidence to show Shanks had any authority to act for it in the matter, and that therefore the notice to him will not be imputed to ap-' pellant.

With reference to the principle thus invoked, Justice Denman, in Missouri, K. & T. Ry. Co. v. Belcher, 88 Tex. 549, 32 S. W. 518, 519, said: “The general rule is that notice to the agent is notice to the principal. The word ‘agent,’ as used in this connection, means the person who has power to act for the principal with '.reference to the very subject-matter to which the notice relates, and does not include a person who has no such power, though he may have power to act for the principal with reference to similar subjects. The words ‘agent’ and ‘act’ are from the same root, and the above limitation of the use of the former is inherent m its derivation.”

On May 9,1928, the date of appellant’s deed of trust, Graham & Co. were heavily indebted to the grocery company, several thousand dollars of the indebtedness being evidenced by nineteen notes, some of which were then past due and several thousand dollars being upon open account and past due. Upon that date Rupert Harkrider, appellant’s secretary, went to Odessa to secure adjustment of the indebtedness. The open account was closed by Graham & Co. executing twelve notes for §500 each, dated May 9, 1928, one maturing June 15, 1928, and one maturing on the 15th of each month thereafter. The deed of trust was executed to secure the payment of all of the notes mentioned.

Henry Pegues, appellee’s cashier, testified:

“Mr. Shanks was acting as salesman and doing collecting for the J. M. Radford Grocery Company in this district. He handled collections through my bank against E. Y. Graham & Company and other customers in. this town of the J. M. Radford Grocery Company. * * *
“As to having any other transaction with him regarding J. M. Radford Grocery Company’s business: We sold him a good many drafts for J. M. Radford Grocery Company, payable to J. M. Radford Grocery Company. We didn’t execute Cashier’s checks. We was making remittances to J. M. Radford Grocery Company. I knew he was a salesman. As far as his business being to take orders for Radford Grocery Company, I never did buy anything from him. I did not know whether he was a Director of J. M. Radford Grocery Company. As to knowing what his duties were: I just know what he did here, but don’t know what he was supposed to do here. Our relations were merely selling him drafts for these checks, and he came in with checks insufficient that had been sent in to J. M. Rad-ford Grocery Company and we turned them in insufficient and Shanks brought them back to us. That is all the dealings we had with him. * * *
“In my dealings with Mr. Shanks as a representative of J. M. Radford Grocery Company, he endorsed checks made payable to the J. M. Radford Grocery Company, “By Shanks.” I cashed those checks. That authority was never questioned by J. M. Rad-ford Grocery Company. I had had those kind of dealings with him for quite a while, at least a year.”

Rupert Harkrider testified:

“I am secretary of the J. M. Radford Grocery Company. My duties in connection with . J. M. Radford Grocery Company are in the capacity of credit man. By ‘credit man’, I mean I handle the accounts and generally have charge of the accounts and the adjustment of them. I am also the Secretary of the Company. I am the officer of the corporation whose duty is the granting of credits and adjustment of accounts. No one else is empowered by the corporation to do that. As to remembering the condition of E. V. Graham & Company with J. M. Radford Grocery Company the latter part of 1927: I know that they owed us considerable money, part in notes and part in open account. I went down to get that straightened out in the spring of 1928. At that time the company had not delegated that transaction to any other person. I handled that myself. * * *
“I did not have any notice, whatever, of the Citizens National Bank claiming any lien on that land. * * *
“The business of the J. M. Radford Grocery Company is conducted by a Board of Directors. I know Mr. Shanks that they spoke about. His initials are ‘U. N.’ He was neither a director nor an officer of the company, but at one time he worked for the company. He worked first in the warehouse in Big Spring and later as a salesman in this territory. As a salesman he sold goods and collected what we call ‘weekly’ accounts — the smaller accounts. He did not have any authority to make adjustments for J. M. Rad-ford Grocery Company of accounts, releases, or take deeds of trust, nor bind the company to release a deed of trust. His duties were the duties of an ordinary salesman to sell goods and nothing else. The Board of Direc- ' tors, or the President, or possibly myself, if anybody, had the authority to delegate the adjustments and collection of accounts at that time. As to whether or not the Board of Directors had delegated to Shanks: * * * I am custodian of those records and there is nothing in them to that effect. I never did delegate to him any such authority myself.”
E. Y. Graham, a member of the firm of Graham & Co., testified: “Sometime in the latter part of 1928, about the 9th of May, I remember having had a transaction with Mr. Harkrider — -it was about the first of May. Mr. Harkrider came to my place of business. He wanted the account secured and we told him we would give him security on section eleven. As to contemplating buying further merchandise from J. M. Radford Grocery Company; I believe we were to pay cash in the future for further merchandise. It was to close up the present account and our understanding was to pay for future merchandise. As to who mentioned the giving of security for the indebtedness: Mr. Harkrider talked of the security and we told him we would give a section of land — section eleven, block forty-two, township three-south, T&P Ry Co. survey, the land in controversy. In regard to there being any conversation between Harkrider and myself about any lien on the land at that time: I said there was nothing against it, as I had looked up the records and nothing was against it.”

J. A. T. Evans testified:

“I am a partner in E. Y. Graham & Company. I remember about Mr. Harkrider coming down in May, 1928, regarding security for the J. M. Radford Grocery Company account.
“Question: Was anything said then to Mr. Harkrider by you? You were present at the time? Answer: Yes,- In regard to anything being said to Mr. Harkrider concerning liens on Section 11, Block 42: Mr. Harkrider brought his statement of account to have a settlement and we agreed on making notes to cover the amount. We agreed to give him a deed of trust. As to stating to him, at the time we gave him the deed of trust, that there were no other liens except the Federal Land Bank on that land; Mr. Graham went out to examine the records and came back and reported there wasn’t anything against it except the Federal loan.
“Cross-examination:
“That was what Graham said, yes.
“Redirect examination:
“It is correct that you told Mr. Harkrider there were no liens against that section except the Federal Land Bank lien. * * *
“I had some acquaintance with a fellow by the name of Shanks that worked for J. M. Radford Grocery Company, but not very much. I wasn’t very friendly to him,, didn’t know him very well. I kept the books for E. Y. Graham & Company. Along that time E. V. Graham & Company was in pretty hard shape financially. I can’t recall anything about Mr. Shanks collecting for J. M. Rad-ford Grocery Company. I knew he was a salesman but, of course, we had a good many collectors then and I can’t recall him particularly. I don’t remember anything like him bringing any checks back to me that had'been returned by the bank unpaid.”

The foregoing shows all of the material facts bearing upon the issue of Shanks’ authority. It shows that he was merely a traveling salesman for the Radford Grocery Company with authority to sell goods, collect small weekly accounts, and remit the collections to appellant in the manner shown by the testimony of Pegues. It is wholly insufficient to show that he had any authority whatever with respect to the adjustment or settlement of accounts such as that of Graham & Co. We are of the opinion the authority of Shanks was not such as that notice to him of appel-lee’s unrecorded deed of trust would be imputed to appellant. Missouri, K. & T. Ry. Co. v. Belcher, supra; Luling, etc., Co. v. Lane & Bodley Co., 49 Tex. Civ. App. 534, 109 S. W. 445.

In addition to actual notice appellee pleaded constructive notice, but no such issue was’ submitted -nor requested to be submitted, and we fail to find any fact of which appellant had notice that would have put it upon inquiry. That issue is not raised by the evidence.

Only one other question need be considered, namely: The insistence of appellee that appellant’s deed of trust was to secure an antecedent indebtedness and, therefore, not supported by a valuable consideration. The evidence quoted shows without contradiction that twelve -notes were accepted in settlement of the indebtedness of about $6,000 then due upon open account. The extension of the time of payment effected in this manner constituted a valuable consideration and entitled appellant to protection against appellee’s prior unrecorded deed of trust. -This is well settled. Steffian v. Bank, 69 Tex. 517, 6 S. W. 823; Brooks v. Asherton State Bank (Tex. Civ. App.) 278 S. W. 473; Watts v. Corner, 8 Tex. Civ. App. 588, 27 S. W. 1087; Ridgill v. E. L. Wilson, etc., Co. (Tex. Civ. App.) 178 S. W. 668, 669 ; Farmers’ Nat. Bank v. James, 13 Tex. Civ. App. 550, 36 S. W. 288.

The case has been twice tried and the evidence upon the controlling issues seems to have been fully developed.

Accordingly the judgment is reversed and here rendered so as to accord priority to the lien of appellant’s deed of trust in so far as it secures the twelve notes for $500 each signed by E. V. Graham & Co., and dated May 9, 1928. In no other respect is the judgment disturbed.

Reversed and rendered.

On Motion for Rehearing.

Both parties filed motions for rehearing. That of the bank presents nothing new, and calls for no comment. The Radford Grocery Company calls attention to the fact that -its deed of trust provides that it is contemplated that Graham & Co. would thereafter become indebted to the grocery company in further sums, and that the deed of trust was to be security for the payment of such future indebtedness. Attention is called to the further fact that the claim of the grocery company- embraces a balance of-$1,470, for goods, wares, and merchandise sold to Graham & Co. subsequent to May 9, 1928. It is insisted priority should be accorded to the deed of trust in so far as it secures this balance.

The grocery company is in the attitude of seeking to postpone the prior unregistered deed of trust of the bank to the company’s deed of trust upon the theory that the company is a creditor for value without notice. The burden of proving these facts rests upon the grocery company. Holland v. Nance, 102 Tex. 177, 114 S. W. 346; Ryle v. Davidson (Tex. Civ. App.) 116 S. W. 823; Keller v. Lindow (Tex. Civ. App.) 133 S. W. 304; Wilkerson v. Ward (Tex. Civ. App.) 137 S. W. 158; Bledsoe v. Haney (Tex. Civ. App.) 139 S. W. 612.

As to this item of $1,470 it was thus incumbent upon the grocery company to show that, at the time the sales were made upon open account and the credit extended, it was without notice of the prior unrecorded deed of trust of the bank. This the evidence does not show. The evidence shows that at the time the grocery company acquired its deed of trust on May 9, 1928, it was without notice of the prior unrecorded deed of trust of the bank. Further than this the evidence upon the issue of notice is silent. It is therefore, upon the record here presented, not entitled to the additional relief sought in its motion for rehearing.

Both the motions are overruled.


author: LEVY, J.

text:
    PURE OIL CO. v. CLARK et al.
    No. 3990.
    Court of Civil Appeals of Texas. Texarkana.
    April 2, 1931.
    Rehearing Denied April 9, 1931.
    See, also, 37 S.W.(2d) 1088; 35 S.W.(2d) 838.

      Vinson, Elkins, Sweeton & Weems, of Houston, and Wynne & Wynne, of Willis Point, for appellant.
    McEntire, Shields & Elam, of Canton, Beall & Beall, of Sweetwater, and Edgar J. Elam, of Dallas, for appellees.
   LEVY, J.

(after stating the case as above).

We are called upon chiefly to consider and determine the legal effect of the proceedings in the probate court in relation to the guardian’s lease of the real estate of the minor, Cone Johnson Clark. If the lease was at all events unauthorized and void through lack of legality of the proceedings in the probate count, then the judgment should be affirmed; otherwise appellant’s leg’al title seems to be sufficiently sustained and must prevail. In order to render the mineral lease upon real estate of a minor effectual to confer a valid legal right, the probate court must have acquired jurisdiction by the presentation of a proper application by the guardian of the estate. It is a special proceeding. The application is the first step in the legal proceeding. It is the commencement of the proceeding, and the order authorizing the guardian to make the lease is the judgment. What shall be the contents of such application is prescribed by article 4192, R. S. (as amended by Acts 1927, c. 164, § 1 [Vernon’s Ann. Civ. St. art. 4192]). It is affirmatively shown by the present record that R. Clark, in the capacity of guardian, did present a proper application to the probate court for authority to execute the lease in evidence. It was in full compliance with article 4192, R. S. The probate count fully heard and passed upon the expediency of the lease, and by an order duly entered in the minutes in all formalities of the law granted the authority to make the lease. As appears, the application was made by, and the order of the probate court described the one who was to make the lease as, “R. Clark, guardian of the person and estate of Cone Johnson Clark, a m-inor and person of unsound mind,” Therefore was the order granting authority to lease, in form, utterly void, in investing R. Clark with the authority of “guardian of the person and estate of Cone J ohnson Clark, a minor and person of unsound mind.” The trial court held, in effect, that the probate court was acting entirely without its jurisdiction in authorizing R. Clark to make the mineral lease as “guardian of the person and estate of Cone Johnson Clark, a minor and person of unsound mind.” The trial court’s ruling was placed upon the grounds, as recited in the decree, viz.: (1) “No personal citation was served on Cone Johnson Clark in cause No. 4286and (2) “at the time of the institution of cause'No. 4286 and at the time all orders, decrees and proceedings were had or made in said cause, there was pending and open and in existence in said probate court in Van Zandt County another and different guardianship which had not been closed, namely, cause No. 1684.” The “cause No. 42S6” referred to in the court’s conclusion showed in the first instance an application which was made in September, 1928, by R. Clark, and which was duly granted, to be appointed “guardian of the person and estate” of Cone Johnson Clark upon the grounds that he was “a minor” and “a person of unsound mind.” All requirements of the lhw were complied with in such proceedings except, as found by the court, “no personal citation was served on Cone Johnson Clark,” the alleged “minor and person of unsound mind.” And looking further to the record the “different guardianship,” referred - to in the court’s conclusion, showed that the same R. Clark, prior to 1928, and in May, 1918, had been duly and regularly appointed by the same probate court as “guardian of the estate” of the same Cone Johnson Clark upon the ground of being “a minor.”

All essential jurisdictional facts and procedure existed to make such appointment-valid. The minority of the ward was shown, and his residence and -ownership of property were within the territorial jurisdiction of the probate court of Van Zandt county. He thereby became and was legally intrusted in 1918 with the custody and control of the estate of the minor. The term of the appointment was and legally would be for and during the minority of the minor in virtue of article 4128, R. S. And the record clearly discloses that the relation of guardian and ward had not terminated by the death of either the guardian or the ward. The ward was still a minor at the time of the application for authority to make the lease, and at the time of the present trial, being 16 years of age. Therefore, in view of the conclusion of the trial court, the jurisdiction of the probate court arises in the facts. It is the settled law, as pointed out by appellee, that, where a person has been appointed guardian of the estate or person of “a minor” and he has not resigned or his guardianship been properly revoked, there can be no valia appointment of another person as guardian of the estate or person. St. Paul Sanitarium v. Crim, 38 Tex. Civ. App. 1, 84 S. W. 1114; and other similar cases; article 4124, R. S. But that general rule of law would not be applicable in the present appeal, for the special facts are not suitable. In the first place, here there were not two different persons applying for and appointed as guardian for- Cone Johnson Clark. The appointee in each instance was the same identical person. And, secondly, here the fields for appointment were separate and distinct, although the legal authority of the guardian the same. Fairly construing the last application made in September, 1928, the evident intendment of R. Clark was merely to add the field of “insanity” to the existing field of “minority” and authority over “the person” to the authority over “the estate.” He was not in any wise attempting to revoke or annul his former appointment “as guardian of the estate” of the minor. He was manifestly wanting the court to combine both guardianships in the same person, as capable of being held by the same person. The appointment of the same person to be guardian of the ward because he was both a minor and insane would not in any wise present a situation legally conflicting and inconsistent, for the two grounds could easily stand together in legal authority to the guardian. The guardian would have the same authority, and no greater, in the one instance as in the other, during the period of minoidty of the ward. Assuming, though, that the terms of the statute, when properly construed, do not authorize the probate court to appoint a guardian for an insane person who is “a minor” and during his minority [Pure Oil Co. v. Clark (Tex. Civ. App.) 35 S.W.(2d) 838], it is nevertheless a satisfactory ground to say that it became and was merely an unnecessary act for the guardian of the estate of the minor to have the further field of insanity added. He was already clothed with full and complete authority over “the estate,” and would gain no new or additional authority by reason of the new field of “insanity” while the ward “is a minor.”

And in the view and conclusion that the order of the probate court in September, 1928, did not intend or have the legal effect to take away or revoke the first appointment as guardian of “the estate” of “the minor” (Wakefield Trust Co. v. Whaley, 17 R. I. 760, 24 A. 780), then the order authorizing the lease wás not radically defective or nugatory merely because the guardian was authorized to execute the lease in the capacity described ■of guardian of the estate and person of a “minor," and of a “person of unsound mind.” It otherwise clearly appeared in the face of the order that the guardian was authorized to execute the lease as “guardian of the person and estate of Cone Johnson Clark, a minor.” That was sufficient legal authority to make the lease, although the words “a person of unsound mind” were inoperative to pass the title. It is the admitted rule of law that a power for several purposes does not fail because among them is one which is void or has lapsed. The invalidity of other provisions will not legally cause the failure of the power otherwise valid, which is not inseparably connected with or dependent on them. And the jurisdiction of the probate court would not be lacking to authorize the lease, it is believed, because the order for lease was made in cause “No. 4286” instead of “No. 1684.” The cause “No. 4286” had origin, not alone for appointment of a guardian of “a person of unsound mind,” but also for “the person” of “a minor.” The minor in evidence had no guardian “of the person,” so far as the record shows, up to the time of the application and appointment in “cause No. 4286.” The statute -expressly authorizes the probate court to appoint the same person as guardian “of the estate” and also “of the person” of “a minor.” Article 4124, R. S. It is not against approved practice to combine both guardianships in the same person at the same or different terms of court, although the two guardianships are in their nature separate. So that the mere fact that the guardian of “the person and estate” of “a minor” was authorized to execute a lease by order entered in prdceedings appointing the guardian “of the person” of the minor would not necessarily invalidate and render inoperative the lease order. The order for the lease specially specified the objects to be benefited as “person and estate.” The fact that two proceedings were numbered differently, would not affect jurisdiction, as all the proceedings for the lease were fairly made and duly spread at large upon the minutes.

If Cone Johnson Clark were insane as alleged in the application, then, in order to be appointed “guardian of the person,” personal citation would not be required under the statute.

Therefore, considering the entire record, the authority of the guardian to make the lease in the form of “guardian of the person and estate of the minor,” Cone Johnson Clark, would clearly appear existing, we think, notwithstanding the added description “of a person of unsound mind” 'be not legally authorized. The absence of that description would not lessen the authority as guardian to make the lease. He was not a bare intruder in the estate in making the lease.

The judgment is reversed, and judgment is here rendered refusing to vacate and set aside the decrees and orders and proceedings made and had in the probate court of Yan Zandt county in relation to the mineral lease upon the real estate of the minor, Cone Johnson Clark; the applicant in the writ of cer-tiorari to pay costs of the appeal and of the trial court.

On Motion of Appellees for Rehearing.

We are unable to agree with the argument of the appellees that, as specially stated to be the main reason, the proceedings numbered 4286 was so at variance with and contrary to the statute as to render such proceedings for lease of the land null and void for all legal purposes. Thé proceedings numbered 4286 bad origin, not alone for the appointment of a guardian of “the estate,” but also for “the person,” of “a minor.” ‘ So it may be assumed, as we do, and as argued by the appellee, that there was no authority in the probate court in the proceedings mentioned to appoint a guardian of the “estate” of “a minor” or “of the person and estate of a person of unsound mind.” The whole proceeding, however, would not be regarded as a nullity, for the probate court absolutely and certainly had the jurisdiction, in virtue of the application in that proceeding, to appoint the guardian of “the person” of the “minor.” The statute authorizes the probate court to appoint a guardian of “the person” pf “a minor.” And, as laid down in Wakefield Trust Co. v. Whaley, 17 R. I. 760, 24 A. 780, where there has been a legal appointment of a guardian of a minor’s “estate,” a subsequent appointment of a guardian of “the person and estate” does not affect the prior appointment, but becomes valid as an appointment of a guardian' of “the person.” This court so held and intended to so hold in the main opinion.

In the proceedings mentioned, the lack of issuance and service of personal citation on the minor was not destructive of jurisdiction of the court to appoint a guardian of “the person,” because it appeared that the minor was an “insane person.” Evidently the statute does not contemplate service of citation upon a minor when he is in that situation.

The mode of invoking the consent, as done in this record, of the probate court to make the lease was not fatal to the jurisdiction of the court. There was an “application” made to the court by the guardian. It is the application that invokes authority of the probate court to act, and furnishes the basis for the order. The single question then is, Does the mere fact that the “application” for leave to lease the land and the order of the court granting it was made in the proceedings as numbered 4286 render the order of the court and the application therefor absolutely void? The guardian made the application to lease in the dual capacity of “guardian of the person and estate.” By the application the objects to be benefited were both “the estate and the person.” He was, as shown above, the legally appointed and qualified guardian of both “the estate” and “the person” of the minor. We find no authority warranting the ruling that, in such circumstances, the probate court lacked the requisite jurisdiction over either the guardian or the subject-matter to act and authorize the lease. It is thought that in the mode of obtaining such jurisdiction over the application to lease there was no defect so substantial as to render the application and order of the court thereon null and void.

The motion for rehearing is overruled.


author: SELLERS, J.

text:
    PURE OIL CO. v. CLARK et al.
    No. 3991.
    Court of Civil Appeals of Texas. Texarkana.
    April 2, 1931.
    Rehearing Denied April 9, 1931.

      See, also, 37 S.W.(2d) 1084; 35 S.W.(2d) 838.
    Vinson, Elkins, Sweeton & Weems, of Houston, and Wynne & Wynne, of Wills Point, for appellant.
    McEntire, Shields & Elam, of Canton, Beall & Beall, of Sweetwater, and Edgar J. Elam, of Dallas, for appellees.
   SELLERS, J.

This suit was instituted in the district court of Van Zandt county, Tex., by Rube Clark, a lunatic, appearing therein by and througli his next friend and guardian ad litem, James H. Shields, against R. Clark and the Pure Oil Company upon a petition for a writ of certiorari to have reviewed and declared void all orders and judgments entered in a certain probate cause pending in the county court of Van Zandt county. The writ was granted, and, on a trial of the case before the court, all orders, judgments, and decrees in probate cause No. 4288 pending on the probate docket of the county court of Van Zandt county were declared to be void, illegal, and of no force or effect. To this judgment the defendant Pure Oil Company excepted and gave notice of appeal, and the ease is now before this court for review.

The statement of facts consists of the transcripts of two probate proceedings pending in the county court of Van Zandt county and the testimony of one witness.

The first transcript is that of cause No. 4288, wherein R. Clark on September 29,1928, made application to the county court of Van Zandt county to be appointed temporary guardian of the estate of Rube Clark, a person of unsound mind, which application was granted and all necessary proceedings were had in the appointment of R. Clark as temporary guardian of Rube Clark, a person of unsound mind. And at the next .term of the county court these temporary guardianship proceedings were in all things made permanent. This transcript further shows a regular sale of an oil and gas lease upon the lands of Rube Clark, a person of unsound mind, by the guardian, which lease was owned at the time of this suit by the Pure Oil' Company.

The-other transcript, being cause No. 1G84, shows that on August 22, 1916, P. R. Clark was appointed guardian of Rube Clark, a minor about the age of 7 years, along with other minors, and was also appointed guardian in the same proceedings of Mrs. J. B. Clark, a non compos mentis; all proceedings being regular in all respects. In 1917, E. R. Clark died, and in May, 1918, R. Ciar)!: was duly and regularly appointed as guardian of said minors and Mrs. J. B. Clark, a non compos mentis, to take the place of E. R. Clark, deceased. There was also introdxiccd in evidence the entries made in the probate docket in case No. 1684, which shows, among others, the following ordet: “September 10, 1928, application to close guardianship filed.”

The witness who testified was R. Clark, who stated that he was the R. Clark that was referred to as guardian in both proceedings.

The court did not file findings of fact or conclusions of law, hut the judgment discloses that the court held the proceedings in cause No. 4288 void and of no force and effect upon two grounds: Eirst, because thei;e was no citation served upon Rube Clark as required by law; second, that there was pending and open in the county court another and different guardianship on the estate of Rube Clark which had not been closed, to wit, cause No. 1684.

The first proposition relied upon by the court to sustain the illegality of the proceedings in cause No. 4288 cannot he sustained.Article 4116, R. S. 1925, is as follows: “A minor fourteen years of. age or over shall be personally served with citation to appear and answer such application, or such minor by writing filed with the clerk may waive the issuance of such citation and make choice of a guardian.” This article makes no provision for personal service of citation when the application is made for guardianship of the estate of a person of unsound mind, evidently for the reason that service upon individuals in that condition would be useless. This article recognizes that minors 14 years of age or over have discretion sufficient to 'choose their own guardian, which is the very purpose of this statute.

If it be conceded that as a legal proposition tbe orders and decrees of a probate court in a guardianship proceedings of a minor’s estate are void when there is another and previous guardianship of the same minor’s estate pending in the same court by the same guardian, which question we do not here pass upon, it would have no effect upon the issue here presented upon the facts of this case.

The proceedings in cause No. 4288 are, upon their face, in all things regular, and show that the court had jurisdiction, because it is the duty of the probate court to appoint a guardian of a person of unsound mind, irrespective of the age of such person. In the proceedings of cause No. 4288 there is no mention of the age of Rube Clark, but he is referred to throughout the proceedings as a person of unsound mind.

Article 4296, R. C.- S. 1925, provides: “When the ward dies, or if a minor, arrives at the age of twenty-one years, or if a female, marries, or, if a person of unsound mind' or habitual drunkard, is restored and discharged from guardianship, the guardianship shall be immediately settled and closed and the guardian discharged, as provided in this chapter.” Under this article, all power of the guardian to act for a minor is lost when the minor becomes 21 years of age, whether the court enters an. order to that effect or not, and the court retains jurisdiction only to require a settlement of the guardian to the minor, and, upon settlement, to discharge the guardian.

There is no evidence in this record tending to show the age of Rube Clark at the time the proceedings were had in cause No. 4288. If Rube Clark was at that time 21 years of age, then the proceedings in cause No. 1684 were closed by operation of law, and it certainly was necessary for the court to appoint a guardian for his estate before any one would have authority to act for him, he being of unsound mind, and, in the absence of evidence to the contrary, it will be presumed that all facts necessary to support the jurisdiction of the county court in cause No. 4288 were before the court when the proceedings were sued out.

The order of the probate docket in cause No. 16S4, which is as follows: “September 10, 1928, application to close guardianship filed” — would indicate almost conclusively that such minor had reached his majority and that the guardian in that proceedings was no longer authorized to act.

We are of the opinion that the evidence wholly fails to show that the guardianship proceedings in cause No. 1684 were open and pending in the county court of Van Zandt county upon the estate of Rube Clark when the subsequent proceedings in case No. 42SS were sued out.

The judgment of the trial court is reversed, and judgment here rendered in favor of appellant, holding valid all orders, judgment, and decrees in cause No. 428S pending on the probate docket of Van Zandt county.


author: FUNDERBURK, J.

text:
    H. O. WOOTEN GROCER CO. v. WADE MEAT CO.
    No. 813.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 20, 1931.
    Rehearing Denied April 10, 1931.

      Davidson, Doss & McMahon, of Abilene, for appellant.
    Hamner & Ponder, of Sweetwater, for ap-pellee.
   FUNDERBURK, J.

Wade Meat Company sued A. J. Belle and H. O. Wooten Grocer Company to recover of Belle upon a promissory note for $400, and against both defendants to foreclose a chattel mortgage lien. J. P. Wooten, at first named a defendant, was subsequently dismissed from the suit. The alleged mortgage, which was dated August 8, 1929, and duly filed, described the property which it purported to cover as follows: “Which display counter, twelve feet long, made by the Pioneer Planing Mill, Sweetwater, Texas, for one Hussman upright walkin meat refrigerator.” The mortgage shows that A. J. Belle was .a resident of Nolan county, and the name “Belle Groe.” preceding his signature suggests that he may have been engaged in the grocery business. It contained a warranty of title to the property and a provision that, in event of default in the payment of the note secured, the mortgagee was authorized to sell the property “at Roseoe, Texas, in said county and state.” Previously, on February 18, 1927, Belle had given a mortgage to said H. O. Wooten Grocer Company cover-' ing certain personal property therein named and reciting as follows: “This instrument is intended to cover any and all fixtures and delivery equipment used in my grocery business in Roseoe, Nolan County, Texas, if not mentioned. Also, all additions and exchanges during the life of this instrument.” On February 15,1928, at the expiration of a written lease contract, Belle had become a tenant of H. O. Wooten Grocer Company, from month to month, at a rental of $65 per month, and remained such tenant, carrying on his grocery and meat business in the rented premises until February 26, 1930, at which time he made an assignment to J. P. Wooten for the benefit of his creditors. In taking the assignment (which was informal and never recorded), J. P. Wooten was acting for H. O. Wooten Grocer Company, and shortly thereafter, on or about March 1, 1930, transferred all the property, including that claimed to be covered by plaintiff’s mortgage, to said H. O. Wooten Grocer Company. The transfer was made subject to any existing liens and with information given at the time to defendant that plaintiff was claiming its mortgage lien upon the specific property in question. The rent due up to January 10, 1930, •having been previously charged upon open account, was included, with other indebtedness, in certain notes upon which the defendant recovered judgment in the district court of Taylor county on May 16,1930. That judgment also decreed that the entire indebtedness was secured by a chattel mortgage lien covering certain described property, and further, with reference to the property in question, recited as follows: “And it further appearing to the court that, since the execution of said mortgage (that is, the mortgage dated February 18th, 1927, above mentioned), defendant A. J. Belle has placed in said grocery business at Roseoe, Nolan County, Texas, additional fixtures, to-wit: One Display counter made by Pioneer Planing Mill Co; one Huss-man Upright Walkin Meat Refrigerator; and that the foregoing chattel mortgage is a valid and subsisting lien upon said additional fixtures above described so placed in said busines’s,” etc. The judgment, while decreeing a foreclosure of the mortgage lien, took notice of the previous transfer of the same property from J, P.' Wooten, assignee, to tlie defendant, and confirmed the vesting of title in the latter, by reason whereof it was directed that there he no sale under the decree of foreclosure. The Wade Heat Company, although first named a defendant in that suit, was dismissed prior to judgment. The trial court in the present case found that in said Taylor county suit the defendant, by amended pleading, for the first time on March 20,. 1930, asserted a landlord’s lien against said A. J. Belle. There is, however, no mention of the ’same in the judgment.

The defendant sought to defend against plaintiff’s claim to a foreclosure of its alleged mortgage on the ground that the mortgage was void because of insufficient description of the property, and that its said chattel mortgage lien and landlord’s lien were superior to the lien claimed by plaintiff. 'The judgment was for plaintiff for its debt, as to which no question is presented, and also for a foreclosure of the mortgage as to which H. O. Wooten Grocer Company has prosecuted this appeal.

The main question presented for our decision is whether or not the description of the property in the mortgage sought to bo . foreclosed was sufficient as to the appellant. There can be no real question of its sufficiency in so far as appellant was under the necessity of relying upon its title derived through the transfer to it by the assignee, J. P. Wooten. It tooh expressly subject to any preexisting liens, and, besides, was at the time given notice that appellee claimed a lien upon the two articles of personal property in question. Appellant was therefore in no different relation to the question than were the original parties to the mortgage. “As between the parties, a specific and particular description is not necessary, and the mortgaged articles may be shown by parol evidence.” 5 R. C. L. 429; Ranch v. Howard-Sansom Co., 3 Tex. Civ. App. 507, 22 S. W. 773; Boykin v. Rosenfield & Co., 69 Tex. 115, 9 S. W. 318; Oxsheer v. Watt, 91 Tex. 124, 41 S. W. 466, 66 Am. St. Rep. 863.

We are also of opinion that, if we regard appellant as ncft! having waived its claim of' a mortgage or landlord’s lien, and as having no notice as to the identity of the property intended to be covere.d by appellee’s mortgage, other than such as the mortgage itself contains and suggests, the description was not insufficient. The test of sufficiency, where a deseriptipn is not sufficient in itself, is whether it suggests, “inquiries or means of identification, which, if pursued, will disclose the property conveyed.” 11 C. J. 458; Handley v. McDonald & Ely Gin Co. (Tex. Civ. App.) 9 S.W.(2d) 372. The description in question in the first place carries, in itself, notice of mistake or error. Otherwise it would be meaningless. The whole instrument, however, compels the presumption that it was intended to describe certain items of personal property. Giving effect to that presumption, it is readily seen that the word “which,” preceding the words “display counter, twelve feet long, made by the Pioneer Planing Mill, Sweetwater, Texas,” is error (most probably typographical), and was meant to be “one” or “a.” Likewise, the word “for,” preceding “one Hussman upright walkin meat refrigerator,” means “and” or “also.” Clearly, then, the description of the first item was sufficient. It has often been held that a particular article not otherwise sufficiently described is adequately identifiable by a statement that it was bought from a named party. Conley v. Dimmit County State Bank (Tex. Civ. App.) 181 S. W. 271; Tips v. Gay (Tex. Civ. App.) 146 S. W. 306. The sufficiency of the description of both items is materially aided by the presumption that they were, at the time the mortgage was'given, owned by Belle. “The description, may be aided by the presumption that the mortgagor is the owner of the property.” 11 C. J. 466. Although this authority notes a conflict in decisions, it is said in 5 R. C. L. 426, “A better view would seem to be that, even though there are no recitals in a mortgage as to ownership, in aid of the description it should be presumed that the mortgagor is the owner of the property he assumes to mortgage.” Such presumption may render a description sufficient that otherwise might require a statement of the situs of the property. As further noted in R. C. L., “a description of property actually on the premises of the mortgagor may be sufficient, though the location is riot stated.” 5 R. C. L. 424. What inquiries then did the mortgage in question suggest to prospective purchasers and lienors? They were notified that Belle resided in Nolan county, and that perforce of the presumption aforesaid, he was the owner of the two items of property in question. One of the articles was identifiable by the fact that it had been made by the Pioneer Planing Mill of Sweetwater. The mortgage carried notice that Belle was probably engaged in the grocery business. There was such description of both items of property as to suggest that they would probably be found in his "place of business. As to the refrigerator, its very name indicated that it might he found in a grocery store or meat market. The presumption of Belle’s ownership of it suggested an inquiry at his place of business. Such inquiries rightly pursued would have disclosed the fact that Belle did have such counter and refrigerator in his store and only one of each. If would therefore appear that the mortgage fully met the requisite test. All the facts as to which the mortgage itself indicated inquiries were proper to be shown by parol evidence. Por decisions of our own courts which, upon the whole, sustain these conclusions, see the following; Handley v. McDonald & Ely Gin Co. (Tex. Civ. App.) 9 S.W.(2d) 372; Ft. Worth Nat. Bank v. Red River Nat. Bank, 84 Tex. 369, 19 S. W. 517; Glenn v. Green (Tex. Civ. App.) 268 S. W. 1056; Matthews v. Melasky (Tex. Civ. App.) 240 S. W. 641; Pitluk et al. v. Butler (Tex. Civ. App.) 156 S. W. 1136; Greer, Mills & Co. v. Crenshaw (Tex. Civ. App.) 76 S. W. 589; Conley v. Dimmit County State Bank (Tex. Civ. App.) 181 S. W. 271; Tips v. Gay (Tex. Civ. App.) 146 S. W. 306; Harless v. Jester (Tex. Civ. App.) 97 S. W. 138; Ames Iron Works v. Chinn, 15 Tex. Civ. App. 88, 38 S. W. 247.

If it be assumed that appellant, by the proceeding shown in the foregoing statement, had not waived its landlord’s lien — • as to which we find it unnecessary to express an opinion — it seems clear enough that it had no such lien with priority over appellee’s mortgage. By provision of R.- S. 1925, art. 5238, there was no lien to cover rents due for more than six months prior to February 26, 1930, the date Belle ceased business and made an assignment' of all his property. When appellee’s mortgage was given and filed on August 8, 1929, there were no rents to become due under the rental contract between appellant and Belle except for the current month, which, so far as the record or evidence discloses, expired August 15, 1929. More than six months having passed after the last rental, which on August 8, 1929, was yet to become due, had in fact become due, it is readily seen that the lien had ceased to operate as to any rents due prior to the execution of the mortgage, or that thereafter were to become due under the terms of the rental contract. H. R. E., B. & B. Ass’n v. Cochran, 60 Tex. 620; Marsalis v. Pitman, 68 Tex. 624, 5 S. W. 404.

It remains to consider whether appellant had a mortgage lien with priority over appel-lée’s mortgage. The record conclusively shows that, on or about February 18, 1927, when appellant’s mortgage was executed, it did not cover the property in question. The property in question was acquired by Belle about the time he executed the mortgage to appellee, which was August 8, 1929. Appellant claims that its mortgage covered the property because same were “additions” made to the fixtures under the terms of its mortgage.

There are two or more good reasons, it seems to us, why this contention cannot be sustained. The record does not show, in the first place, that if the property in question ever became “additions” to the stock of fixtures covered by the mortgage within the intent of the parties, that it became such prior to the execution of appellee’s mortgage. If, subsequently to or simultaneously with the execution of appellee’s mortgage, the property was added to the stock of fixtures, appellee’s mortgage would have priority. “Where a mortgage is given to cover after-acquired property it covers such property only in the condition in which it comes into the hands of the mortgagor. If that property is already subject- to mortgages or other liens at that time the general mortgage does not displace them, though they may be junior to it in point of time.” 5 R. G. L. § 27, p. 404; Hamilton Nat. Bank v. Harris (Tex. Civ. App.) 260 S. W. 318; Tips v. Gay, supra. The mere acquisition of the property by Belle did not subject it to appellant’s mortgage. If it ever became subject to that mortgage, it was the fact of its addition to the stock of fixtures and not the fact of its acquisition and ownership. The burden to show that the property became subject to the mortgage was upon appellant, and that burden included the burden of showing that the addition was made before the inception of appellee’s lien. Plainly that was not shown.

Another good reason why the contention cannot be sustained has its basis in the finding of the trial court that the property in question was acquired in the meat business, which was not in the contemplation of the parties at the time the contract was made. The principle is applicable which was declared by the Supreme Court in Richardson v. Washington, 88 Tex. 339, 31 S. W. 614, 617, wherein it was said: “A court of equity will not make a contract or create a lien for the parties, and therefore will not foreclose a lien upon property not in esse or not owned by the grantor at the, date of the contract, unless it is clear that at such date the parties thereto anticipated the acquisition by the grantor of the very property-upon which the lien is sought to be fixed and foreclosed, and intended that it should he siibjfiot thereto.” (Italics ours.) If, as found by the court, there was no purpose or intent that Belle should afterward engage in the meat business as something additional to the grocery business, ■there was wanting the necessary intent that the particular property should be subject to the lien. In other words, the items of property in question never became additions to the stock of fixtures covered by appellant’s mortgage, which had exclusive reference to the grocery business.

All other questions presented by the appellant are either controlled by the foregoing or rendered immaterial, and therefore need not be discussed. Being of opinion that there was no error in the judgment of the trial court and that the same should be affirmed, it is accordingly so ordered.

On Rehearing.

In its motion fon rehearing appellant points out an erroneous finding of fact made by us which constitutes the basis of one of the reasons upon which we affirmed the judgment below. We got the impression from the record that the property involved in appellee’s mortgage was acquired about .the same time the mortgage was executed. This was error. The evidence shows that it was acquired something like six months after the execution of appellant’s mortgage which was quite a while prior to the execution of appellee’s mortgage. With the correction of this mistake, one of the reasons for affirming the judgment fails, hut we stated that there were two or more reasons and two were given. The other reason, namely, that the evidence raised a jury question as to whether the property was acquired in the meat business as distinguished from the grocery business, is unaffected, and we are still of the opinion that that reason alone affords sufficient basis for our holding.

. In its motion appellant concedes the correctness of our construction of the description in the mortgage wherein we held that the word “which” was intended to be. “one” or “a.” It is insisted, however, that with such change the description of the mortgaged property is not ambiguous and shows that the display counter only, and not the Hussman refrigerator, was mortgaged to appellee.

We are unable to see any valid answer to this argument, if it be true that Hussman Walk-in Meat refrigerators usually have display counters used in connection therewith. In such case, to say that such a counter was made for one such refrigerator would he common parlance. For instance, the description of a trailer as one made by a named person for a Buick roadster would involve no uncertainty as to the meaning of the language. We find ourselves perhaps unable to say, as a matter of judicial knowledge, and certainly unable to say from information to be gleaned from the record, that display counters are not usually used in connection with such refrigerators as certainly so as trailers are used in connection with trucks and automobiles.

We have therefore concluded that ap-pellee’s mortgage is properly to be interpreted as covering only the display counter and not the refrigerator. Both the counter and refrigerator being in the possession of the defendant below, the burden, of course, was upon the plaintiff to show the existence of a valid mortgage against both articles.

We are now of opinion that the foreclosure should have been ordered only as to the display countermand its separate value being given, the judgment should be reformed accordingly.

It is therefore our opinion that the motion for rehearing should be granted, our former judgment set aside, the judgment of the trial court reformed so as to provide a foreclosure only upon the display counter, and in the event that the said H. O. Wooten Grocer Company shall fail so to deliver said property then that Wade Meat Company have judgment against the said H. O. Wooten Grocer Company for the sum of $300 as the agreed value of said display counter, and that as reformed the judgment below be affirmed, and it is accordingly so ordered.