author: HIGGINS, J.

text:
    WILSON et al. v. NAND SINGH.
    No. 2585.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 22, 1931.

      Jones, Goldstein, Hardie & Grambling and Ben Howell, all of El Paso, for appellants.
    Sam B. Gillett and O. L. Galloway, both of El Paso, for appellee.
   HIGGINS, J.

This is a suit by the appellee against the members of the firm of E. M. Wilson & Company to recover damages, actual and exemplary, for wrongfully and maliciously evicting the plaintiff from a 22-acre farm which he was farming during the year 1930.

The defendant answered by general denial and special plea, setting up the following: On March 15, 1930, M. Shariffee executed to E. M. Wilson & Company a mortgage, covering the cotton crop to be grown during the year 1930 on the land in question, the mortgage being to secure the payment of Shariffee’s note to Wilson & Company for $300, due November 15, 1930. The mortgage in. question contained provisions to the effect that if the land was not properly worked, or in case Wilson & Company deemed itself insecure in the payment of said indebtedness, then Wilson & Company were authorized to enter upon the premises and take possession of the same, complete the cultivation and marketing of the crop, and out of the proceeds of the sale of the crop to pay the cost and expenses incurred in cultivating and marketing the crop, etc., and the balance apply to the payment of the note.

It was averred that plaintiff’s rights in the land and crop were derived by and through Shariffee; that prior to May 1,1930, Shariffee and plaintiff had drawn from defendants $220 to finance the crop, and plaintiff had failed to properly work the same, and defendants felt themselves insecure in the payment of such indebtedness and, under the powers conferred by the mortgage, took possession and farmed the land for the remainder of the year for the account of plaintiff. The total expenses so incurred, including the advances made to Shariffee and plaintiff for producing the cotton crop for the year 1930, were $845.-79, and the market price of the crop was $747.19, leaving a balance of $9S.OO owing to defendants by plaintiff, which amount was pleaded in set-off of the plaintiff’s demand.

Upon special issues the jury found: Up to the time plaintiff was evicted on May 7, 1930, he had farmed the land in a skillful and hus-bandlike manner; the reasonable cost prior to May 7, 1930, of preparing the land for growing cotton during the year 1930 was $160at the time defendants took possession of the premises they had no reasonable grounds to feel themselves insecure; defendants were actuated by malice in evicting plaintiff; exemplary damages should be assessed ; the sum of $250 should be assessed as such damages.

Upon these findings the court rendered judgment for said sums of $160 actual damages, and $250 exemplary damages.

The evidence discloses that the wrongful eviction of the plaintiff was done by W. P. Rabb, agent for the defendants. It is well settled that a principal is not liable in exemplary damages on account of the acts of his agent unless such acts were authorized by the principal or subsequently ratified or approved with knowledge of the facts.

In the present case the evidence wholly fails to show that Wilson & Company authorized the malicious act of their agent Rabb, or that there was any subsequent ratification or approval thereof. The award of exemplary damages, for this reason, cannot be sustained. Yarbrough v. Brookins (Tex. Civ. App.) 294 S. W. 900; 2 Tex. Jur. p. 554, § 151, and cases cited.

Appellant asserts that since the evidence shows the sum of $113.20 was advanced to appellee prior to his eviction, the same should be set off against the award of actual damages.

The set-off pleaded is computed by charging appellee with the amounts advanced to him and Shariffee prior to the eviction and expenses subsequently incurred in growing and marketing the crop and then deducting the value of the crop.

The findings of the jury establish that the eviction and dispossession of the plaintiff were unauthorized and wrongful. The defendant’s own pleadings show that they realized $747.19 from the crop that was raised upon the premises. In view of the wrongful eviction of the plaintiff, we do not think that he can properly be charged with any part of the expenses incurred by the defendants in cultivating, growing, and marketing the crop, subsequent to the eviction. So far as the plaintiff was concerned, these expenses were unauthorized and no part of the same can be charged against him, and since the amount received by the defendants for the crop was far in excess of the money advanced to the appellee, the money so received should be first applied to the payment of the advances made to the appellee.

There are perhaps other reasons why this matter presents no error, but same need not be noticed, as we think that the $747.19, under the circumstances reflected by. the record, should be first applied to the payment of the advances made to appellee before his eviction.

The judgment is reversed and here rendered in favor of the appellee for $160.

Reversed and rendered.


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    JENNINGS-PROGRESS COMMON SCHOOL DIST. NO. 106 v. MARVIN SCHOOL DIST. NO. 14.
    No. 4073.
    Court of Civil Appeals of Texas. Texarkana
    Oct. 22, 1931.
    Rehearing Denied Oct. 29, 1931.
    Tom L. Beauchamp and A. P. Dohoney, both of Paris, for appellant.
    Edgar Wright, of Paris, for appellee.
   WILLSON, C. J.

(after stating the case as above).

Appellant’s brief does not contain an “assignment of errors,” nor does it contain a copy of their motion for a new trial filed in the court below. But it does contain nine “propositions” which, it is asserted in the brief, are “based (quoting) on the assignments of error in the amended motion for a new trial.”

In disposing this day of the appeal in Lamar-Delta County Improvement District No. 2 v. Dunn, this court held that, in the absence of an assignment of errors in an appellant’s brief, it was restricted by force of the Act of April 9, 1931 (General Laws 1931, c. 45, p. 68 [Vernon’s Ann. Civ. St. art. 1757]) amending article 1757, R. S. 1925, just as it was by rules promulgated by the Supreme Court before the passage of that act, to a consideration on an appeal of only errors apparent upon the face of the record.

Appellant insists that several of the propositions in its brief embody the requisites of, and therefore should be treated as, assignments of error. It may be they do embody such requisites, or at least some of same, but we do not think the law or the rules contemplate that time of an appellate court should be devoted to the matter of determining whether what an appellant has designated and treated as “propositions” in a brief might not also be treated as an assignment of errors. Whether a given proposition should be so treated or not in many instances would present a doubtful question. When it is remembered that briefs of an appellant sometimes contain more that 100 “propositions” it is plain, we think, that the burden of determining whether any of them should be treated as an “assignment of error” or not ought not, in the first instance, to be placed oh an appellate court, and we do not think the Legislature intended it should be:

Appellant insists, further, if propositions in its brief should not be treated as assignments showing error entitling it to a reversal of .the judgment, it nevertheless is entitled to such reversal for error “apparent upon the face of the record” within the meaning of article 1837, R. S. 1925. It appeared ■that prior to August 13, 1918, the Stell land was in the appellant district. It appeared from allegations in the answer filed by the appellee district that an effort was made on said August 13, 1918, to change the boundaries of the districts so as to include the Stell land in said appellee district. Appellant excepted to the answer on the ground that it appeared from allegations therein that, in the effort to so change the boundaries, specified requirements of the law were not complied with, and insists here that overruling its exceptions was such error apparent on the face of the record. We do not think so. The suit was commenced by a petition filed July 18, 1930, which was after the time (said August 13,1918) when it was claimed the boundaries of the districts were changed and after the time (April 10, 1930) when the act “validating all school districts,” (Gen. Raws 41st Leg. 4th Galled Session, e. 40, p. 79 (Vernon’s Ann. Civ. St. art. 2742i) took effect. The act referred to contained a provision as follows:' “All acts of the County Boards of Trustees of any and all counties in rearranging, changing or subdividing such School Districts, or increasing or decreasing the area thereof, in any School District of any kind, or in creating new districts out of parts of existing districts or otherwise, are hereby in all things validated.” The act was a general law which, we think, the trial court should have considered in passing upon appellant’s exceptions to the answer, and which, we think, further authorized the ruling in question.

The judgment is affirmed.


author: RANDOLPH, J.

text:
    BATES v. LEFFORGE.
    No. 3653.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 7, 1931.
    Rehearing Denied Nov. 4, 1931.
    Moñning & Akin, of Amarillo, for appellant.
    Cooper & Lumpkin, of Amarillo, for ap-pellee.
   RANDOLPH, J.

M. W. Bates, as plaintiff, sued P. M. Lef-forge as defendant to recover $1,705.60 debt and damages, with interest for breach of agreement to pay for the street pavements adjacent to certain premises leased by plaintiff to defendant.

The defendant filed his answer in the cause, consisting of a general demurrer, general denial, and specially pleading that, since the filing of the plaintiff’s first amended original petition, plaintiff and defendant had entered into a contract by the terms of which defendant purchased said leased premises from plaintiff, who sold same to him individually and as survivor of the community estate of Himself and deceased wife, Grevie B. Bates, and as guardian of the estate of his minor children Vera Bates, Billie Bates, and Wewee Bates, and, as part of the consideration for such purchase, defendant assumed and contracted to pay for the paving that had been laid adjacent, to such leased premises during the life of the lease, relieving the plaintiff, who had never paid any part of same, from liability thereon, which assumption constituted a full and complete satisfaction and accord of plaintiff’s claims.

The plaintiff filed his first supplemental petition, pleading a general demurrer, special exception to the plea in accord and satisfaction, as being merely a conclusion of the pleader, a general denial, and specially pleading that plaintiff had not paid for said paving improvements $562.80 in cash, and the balance by tbe inclusion of the unpaid balance thereof as part of the $10,000 consideration for which plaintiff sold said premises to defendant; and further that it was expressly stipulated in the written contract of sale entered into between the plaintiff and defendant that such deal and the assumption of such paying obligation by defendant should in no way affect, prejudice, or bias this lawsuit, and further that defendant fraudulently induced this plaintiff to make such sale by representing to plaintiff that such sale would not affect this lawsuit, and defendant is estopped to claim that such assumption operated as an accord and satisfaction of plaintiff’s cause of action.

A trial was had before a jury, and, on the conclusion of the evidence, the court instructed the jury that plaintiff had failed to establish a cause of action, and for them to return a verdict for the defendant. The jury thereupon returned such verdict for the defendant, and the trial court rendered judgment accordingly, and plaintiff has perfected his appeal to this court.

The plaintiff and defendant made and executed a lease contract whereby the plaintiff leased to defendant certain lots in the city of Amarillo for a term of five years for the sum of $400 per year, in equal annual installments. Clause five of said contract is the term thereof upon the construction of which the material question presented in appellant’s first assignment of error arises. Such section is, in words, as follows: “The lessee shall pay all taxes on all improvements made on said land during the life of this lease including street.and sidewalk improvements, if any shall be made.”

The plaintiff’s contentions are: (1) That the said paragraph 5 clearly provides that defendant shall pay for street and sidewalk improvements laid adjacent to the leased premises during the life of the lease; (2) in the event said paragraph 5 does not clearly so provide, then same is ambiguous, and, under the facts and circumstances and intention of the parties, same should be construed to mean that defendant should pay for the street improvements laid adjacent to the leased land during the life of the lease; (3) that in the event said lease contract, as written, does not so provide, then that the failure to so provide was the result of the mutual mistake of the plaintiff and defendant’s agent who reached such agreement and intended same to be embraced in said written contract, and through the mistake and misapprehension of the draftsman and scrivener of said lease contract, who was representing both defendant and plaintiff equally, as to the legal effect and meaning of the words used, he failed to express such true agreement and to fulfill the intention of the parties to embody same in said contract, entitles plaintiff to have said contract reformed so as to embrace said true agreement. (One of the streets abutting on the property described in said contract was paved during the second year of said lease contract at a cost of $1,705.60, with interest thereon from October 25, 1927, at the rate of eight per cent., and defendant has failed and refused and anticipatorily breached his contract to pay therefor, to plaintiff’s damage in such amount.)

We will discuss this proposition to some extent, as being related to and in part conclusive of the question later decided involving the merger of this contract with the deed executed, and as explanatory of the holding under both questions.

The language of said paragraph 5 is, in our opinion, certainly ambiguous. To say that the defendant only bound himself to pay taxes upon sidewalks and improvements is that he bound himself to pay taxes upon 'sidewalks and street improvements which are never taxed in this state. This, on the face of the contract, was not the contract entered into. In view of the plaintiff’s pleading, the trial court should have submitted the question to the jury unless, as is apparent from the record, the case was decided upon another view of it.

The evidence discloses that the defendant, being desirous of leasing the lots in controversy for a lumber yard, sent his agent, Mr. Holman, to see the plaintiff who resided on a farm in New Mexico, who negotiated a lease for him with the plaintiff. The extent of the agent’s power to conclude such lease without making known the terms thereof to the defendant is not a material matter to be decided here. Mr. Holman afi'd the plaintiff discussed the terms upon which the lease was to be made, and plaintiff testifies that he agreed to lease the lots to the defendant for the sum named, $400 per year, but that he requited also that the defendant pay for all street paving and sidewalks constructed during the five-year term or life of the lease. Failing to draw np a contract which was satisfactory, Holman and the plaintiff went to the town of Tucumeari and employed a lawyer named Pritchett to draw it as the representative of both parties. It is testified both by the plaintiff and Pritchett that the plaintiff and Holman agreed that the lessee, the defendant, should pay for such sidewalks and street paving constructed adjacent to the lease, and Pritchett testifies that paragraph 5 of the contract was thereupon written to cover that part of the agreement. He further testifies that his experience in street paving improvements had been in Missouri, where costs of improvements of that kind were denominated as a tax against the property, and tax bills were issued in payment therefor, and that he took it for granted without investigation that the same system prevailed in Texas and it was with that idea in mind that paragraph 5 was worded as it was. After the contract was drawn, it was signed by the plaintiff and carried by Holman to the defendant, who then signed it in duplicate, kept one copy, and turned the other over to the plaintiff. Defendant testified that he had no agreement as to the paving and sidewalks other than set out in the contract and deed, and that his undertaking to pay for same was included in the $10,000 consideration as set out in the deed. That he did not agree to pay for such sidewalks and street pavement in addition to the consideration named in the .deed. Mr. Holman, defendant’s agent, died before the trial.

“It is to be presumed that every provision of a contract was incorporated for a purpose. The Court has no right to nullify any of its terms, and, if possible, a construction will be adopted which gives effect to each and every part of the instrument, in preference to one which would render any of the provisions therein meaningless.” 10 Tex. Jur. 284, 285.

“Where a written contract is ambiguous or its meaning is doubtful and parol evidence has been introduced to aid in determining the intent, the construction is a question for the jury, unless the parol evidence is undisputed, in which case the construction is a question of law for the Court.” Id., 331.

It appearing that Pritchett represented both parties and had testified positively that both the plaintiff and the defendant’s agent had agreed that the defendant should pay for the street improvements, if any were made during the life of the lease, his mistake in the effort to reduce the agreement which they had made to writing, he mistook its terms so that the writing does not represent the real contract, and equity will grant relief. Kelley v. Ward, 94 Tex. 289, 60 S. W. 311, 312.

In the case of Ferrell v. Delano et al. (Tex. Civ. App.) 144 8. W. 1039, 1041, the San Antonio court holds that, where a deed was executed under an agreement and through mistake of the conveyancer the deed did not express the agreement, the parties were entitled to a cancellation of the instrument.

“Where an action arises upon an instrument, which from mutual mistake, or mistake on one side and fraud or inequitable conduct on the other, fails to express the actual agreement, it is a matter particularly within the jurisdiction of a court of equity to reform such contract and grant relief in accordance with the intention of the parties because there is no adequate remedy at law, parol evidence being inadmissible to vary a written instrument.” 34 Cyc. 906.

“It has been frequently asserted that a mistake of law is not a ground for reformation but of late years the disposition of the courts seems to be to qualify that proposition by many exceptions, so that there is much contrariety of opinion as to a general rule. The most broadly accepted doctrine, however, appears to be that a mere naked mistake of law, unattended by any special circumstance, furnishes no ground for relief by reformation, but if the mistake involves fact as well as law, or is attended by special circumstances, equity will relieve if the mistake is mutual. * * *” Id., 911, 912.

The mistake made by Pritchett representing both parties, in failing to reduce the agreement to writing as agreed on, was a mutual mistake of the parties, and entitled the plaintiff to a reformation of the contract.

In the transaction in controversy, there were three instruments executed. The first instrument was the lease, which has already been considered, and the rule applied there will also be applied to the discussion of the question of ambiguity in the deed. The second instrument was a sales contract in which the plaintiff contracted to sell the property in controversy to defendant. The third was the deed from plaintiff conveying the property in controversy to the defendant. The consideration set out in the lease contract Was for the rent charge of $400 per year in equal monthly installments, for the term of five years, providing further for an extension of the lease at the end of the term for a consideration eqhal to eight per cent, of the market value of said property per annum. For this purpose, it was further provided that said property had a valuation of $5,000 placed upon it, and also the provision above quoted as paragraph 5.

The sales contract provided for a consideration of $10,000 as follows: “$1987.00 cash (of which the purchaser has deposited with the undersigned agent $500.00 as part payment, receipt of which is hereby acknowledged by said agent) and the assumption of $5,000.00, payable to Mary E. Lyons and due May 1, 1931, bearing interest at ten per cent per an-num, and $1500.00 payable to Otto Eckert and Ben Monning, due May 1,1931, and about $1370.00 paving lien payable in annual installments to the El Paso Bitulithic Co., and $142.91 taxes for the year 1930, payable at regular tax-paying time for same. Statement of all the above items to be furnished at date of closing and if more or less, to be added to or taken from above cash payment so as to make $10,000.00, the gross sale price.”

The consideration named in the deed, the third instrument executed, is as follows:

“ * * * For and in consideration of the sum of $168.06 to me cash in hand paid by F. M. Lefforge, one-half of which belongs to me individually and the other one-half to my said children and wards, the r.eceipt of which is hereby acknowledged and confessed, and the further consideration of the assumption and agreement to pay off and discharge by the grantee E. M. Lefforge, which he hereby does of the following described indebtedness against the land herein conveyed, to-wit:

“(a) The assumption of the unpaid principal on one certain promissory deed of trust note executed by this grantor on the 1st day of August, 1927, payable to the order of Mrs. Mary Lyons, diie three years after date, bearing interest from date at the rate of ten per cent per annum, the unpaid balance of the principal so assumed by the grantee being the sum of $5,000.00, the said grantee assuming the unpaid balance of said note according to its tenor and effect, the said note being more fully described in the deed of trust from this grantor to Bay AVheatley, trustee, bearing even date with said deed, which deed of trust is of record in Vol. 61, page 217 of the Deed of Trust Keeords of Potter County, Texas, and is further described in the extension agreement entered into between Mary Lyons, the payee of said note, and M. W. Bates, dated August 1, 1930, and of record in the Deed Keeords of Potter County, Texas, to which reference is herein made;
“(b) And the further consideration of $1,-516.90, being evidenced by the assumption and agreement to pay off and discharge by the grantee the unpaid balance of the paving obligation against said property hereinafter described, together with all future interest accruing thereon, said obligation so assumed by the grantee being more fully described in the mechanic’s lien contract entered into between M. W. Bates and the El Paso Bitulithic Company on the 15th day of Sept., A. D. 1927, and of record in Vol. 30, page 600 of the Mechanic’s Lien Records of Potter County, Texas, to which reference is herein made;
“(c) And the further consideration of $1,-672.90, being evidenced by the assumption of the unpaid balance of the principal and interest owing on two certain promissory notes executed by this grantor on December 17, 1929, and payable to the order of Otto Eckert, the first of said notes being for the principal sum of $500.00, and the second note for the principal sum of $1,000.00, and due on or before July 16,1931, and December 16, 1931, respectively, the unpaid balance owing on the principal of said two notes being $1500.00, and the accrued interest to this date amounting to $172.90, which said two notes are more fully described in the Deed of Trust from this grantor to Ben P. Monning, trustee, dated December 17, 1929, and of record in Vol. 74, page 653 of the Deed of Trust Records of Potter County, Texas, to which reference is herein made;
“(d) And the further consideration of the assumption by the grantee herein of one certain promissory note for the principal sum of $500.00, executed by the grantor, dated December 18, 1929, payable to the order of Ben P. Monning, due sixteen months after date and bearing interest from date at the rate of ten per cent per annum, there being unpaid on the principal of said note the sum of $500.00 and accrued interest of $57.63, which principal and accrued interest and all future interest accruing on said note the grantee herein assumes, and said note being more fully described in the deed of trust from this grantor to Henry D. Akin, trustee, bearing even date with said note and of record in Vol. 74 on page 655 of the Deed of Trust Records of Potter County, Texas, to which reference is herein made;
“(e) And the further consideration of $1,-052.8S, being evidenced by the assumption and agreement to pay off the unpaid -balance of the principal and interest owing on one certain promissory note for the principal sum of $1,000.00, executed by this grantor, on August 1,1930, payable to the order of Otto Eck-ert and Ben P. Monning, due nine months after date, said note bearing interest from date at the rate of ten per cent per annum, the unpaid balance of .the principal being $1,-000.00 and accrued interest being $52.88, which principal and accrued interest, together with future interest accruing thereon, the grantee herein assumes according to the tenor and effect of said note, which said note is more fully described in the Deed of Trust bearing even date with said note of record in Vol. 77, page 347 of the Deed of Trust Records of Potter County, Texas, to which reference is herein made; and
“(f) The further consideration of the assumption and agreement to pay the 1930 taxes amounting to $142.71 against the property hereinafter described, and the assumption of the 1931 taxes. * * ? ”

It is elementary that the lease and the sales contract were merged in the deed executed by the plaintiff to the defendant. There is no ambiguity in the consideration named in the deed, and there is no attack made on the execution and delivery of said deed on the ground of fraud, accident or mistake. There being no ambiguity in the deed, and it being such an instrument as is required to be put in writing, and there being no pleading attacking the execution of same, and no evidence tending to prove fraud, accident, or mistake, and the lease and sales contracts being merged in the deed, the court did not err in instructing a verdict. Beard v. A. A. Gooch & Son, 62 Tex. Civ. App. 69, 130 S. W. 1022; Tom v. Roberson (Tex. Civ. App.) 182 S. W. 698, writ denied.

AVhere there is no ambiguity in an instrument, and that instrument being in evidence without controversy, there was nothing for the court to do but to instruct a verdict for the defendant, notwithstanding equity would have required the court to submit the question for the reformation of the lease if it had not been merged in the deed.

We therefore affirm the trial court’s judgment.

JACKSON, J., not Sitting.


author: SELLERS, J.

text:
    FIRST TEXAS PRUDENTIAL LIFE INS. CO. v. HENDRIX et al.
    No. 4072.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 16, 1931.
    Rehearing Denied Oct. 29, 1931.
    Williams & Williams, of Mt. Pleasant, for -appellant.
    Hiram G. Brown, of Mt. Pleasant, and R. 'T. Wilkinson, Jr., of Mt. Vernon, for appellee.
   SELLERS, J.

This suit was instituted in district court of Franklin county, Tex., by Carrie Lou Hendrix, joined pro forma by her husband, E. A. Hendrix, against the First Texas Prudential Life Insurance Company to recover on a policy of life insurance issued to Esco, Kinder. The appellee, Carrie Lou Hendrix, was the beneficiary named in the policy. The application in writing for the policy was made December 4, 1929. The policy was delivered to the insured on December 14, 1929. The application for the policy required the insured to answer certain questions, to wit:

“Have you ever been affected with cancer?” Answer: “No.”
“Have you ever had any illness? If so, give details as to nature, date, duration, result and name of physician or surgeon.” Answer: “None.”
“Have you consulted or been treated by any physician or physicians in the last three years?” Answer: “No.”
“Have you ever been in any hospital, sani-torium, or other institution for treatment? If so, state when and where and reason in each case?” Answer “No.”

The application which was signed by the insured also contained the following: “I agree, in behalf of myself and of every person who shall claim any interest in any policy issued in consequence hereof as follows: (1) the Company shall incur no liability upon account of this application, or any policy issued in consequence hereof, until such policy shall be actually delivered to me and accepted by me during my lifetime and good health.”

The insured died in May, 1930.

The appellant pleaded in avoidance of the contract of insurance that at the time of the application and the delivery of the policy the insured was affected with cancer of the lung, and had prior thereto, .to wit, in October, November, and December, 1929, consulted with and been treated by physicians; and his answers to above questions were untrue and false and the insurance never, by - its terms, became effective, because the insured was not at time of application and delivery of the policy in sound health.

In response to special issues submitted, the jury found:

(1) That the insured was in good health on the date of the application;
(2) That the insured was in good health when the policy sued on was delivered to him;
(3) That the insured prior to the date of application for insurance and the delivery of the policy was not affected with cancer; ,
(4) That insured had not consulted or been treated by a physician within three years before the date of his application for insurance;
(5) That the insured had not been in any hospital or sanitorium or any other institution for treatment prior to his application for insurance.

Upon the above findings of the jury the court entered judgment for appellee, and appellant has prosecuted this appeal.

As viewed by this court, the overwhelming preponderance of the evidence as to the condition of Esco Kinder’s health on the date of ■the delivery of the policy was contrary to the findings of the jury, and the trial court erred in entering judgment for the appellee based upon such findings.

We shall not undertake to set out at length the evidence upon this issue, but shall give the substance of the evidence relied upon by both appellant and appellee. The evidence offered by appellant upon tbis issue is substantially as follows:

“Esco Kinder’s mother and father lived near Merkel, Texas, and his sister, Mrs. Hendrix, the beneficiary in the policy, lived near Winfield, in Titus County, Texas.
“Dr. Sadler, who resided at Merkel, Texas, testified that Esco Kinder came to his office for an examination at Merkel, Texas, the first time about October 26, 1929. That he examined Esco Kinder and his diagnosis was that Esco Kinder was at that time suffering from a cancer of the lung. That he, Dr. Sad-ler, continued to treat Esco Kinder from time to time during November, December, and on up until his death on May 16, 1930. It is made to appear from Dr. Sadler’s testimony that the condition found in Esco Kinder’s lung was an unusual one and that the ease attracted so much attention among the medical profession that he took Esco Kinder before the Taylor County Medical Association on November 26, 1929, where probably more than forty physicians were present, and the physical condition of Esco Kinder was the subject of discussion by the Taylor County Medical Association. The said Esco Kinder on that occasion was also examined by other physicians. That in making his examination in October, Dr. Sadler caused X-ray pictures to be made which showed the diseased condition of Esco Kinder’s lung. The evidence of Dr. Sadler is to the effect that he and other physicians diagnosed the condition as cancer of the lung, and that Esco Kinder was suffering from this disease from the time he first saw him in October, 1929, until his death in May, 1930 ; and that at his death he secured permission of the father and mother of Esco Kinder to perform an autopsy upon the body to verify the diagnosis of himself and other doctors. That an autopsy was held, on the morning after Esco Kinder died, in the presence of a number of doctors and that it was found he had cancer of the left lung which extended throughout the left chest cavity and were numerous matastises into the abdominal cavity, with the left lung broken down with many adhesions of the lung to the pleura and chest walls. It was also the opinion of Dr. Sadler that the life expectancy of Esco Kinder at the time he first saw him was about six months. At the time of his death Esco Kinder was about 23 years of age. Dr. Sadler’s testimony as to the condition of Esco Kinder was corroborated by the testimony of a number of other doctors.”

Appellee’s evidence as to the condition of Esco Kinder’s health at the time the policy was delivered to him consisted of testimony of lay witnesses who had known him practically all his life, and was to the effect that: They saw him from time to time in the fall of 1929, and that he appeared healthy and looked as he had always looked. That on one occasion in the fall he helped to load a ear of cotton seed. On another occasion he hauled some logs. That he ran a stalk cutter; that he chunked some cats at a county fair in Franklin county; that he wrestled with the other boys; in fact, there was nothing detected on the part of witnesses who testified on part of appell.ee that would indicate that anything was wrong with Esco Kinder during the fall of 1929. All of the witnesses testifying for appellee lived in and around Win-field, in Titus county, Tex. The husband of appellee testified that Esco Kinder worked for him in the fall of 1929, and did not go to Merkel, Tex., until just before Christmas. This is the only witness who testified that Esco Kinder was not in Merkel in October and November, 1929; and his evidence was impeached by the attorney representing the appellant to the effect that he had told him (the attorney) that Esco Kinder and appellee went to Merkel in October on the train. The appellee did not testify in the case, notwithstanding that she had, in making proof of loss to collect the insurance, given .the name of Dr. Sadler as the physician who treated Esco Kinder during his last illness. And the record discloses that she wrote a letter to Dr. Sadler, asking him to change the date of his first visit to Esco Kinder to some .time after December 14, when the policy of insurance was delivered, in order that she might collect the insurance, and if he was not in position to do this to please give her the name of some other physician who could fill out a death certificate which would show the first visit to be after December 14, 1929. Neither did the father or mother of Esco Kinder testify in the case. Only two doctors testified in behalf of appellee, and neither of them had examined Esco Kinder or gave expert testimony that was in any way conflicting to that given by Dr. Sadler and the other physicians who corroborated Dr. Sadler’s testimony.

It appears from this record that the testimony of the doctors at Merkel, Tex., who treated Esco Kinder is uncontradicted, at least from the latter part of December, 1929, until the death of Esco Kinder in May, 1930, and the only contradiction of the testimony, of the doctors prior to that time is that of lay witnesses who based their opinion as to the condition of Esco Kinder’s health on December 14, 1929, on his personal appearance and his ability to do work.

In this state of the record, it is our opinion, as before stated, that the overwhelming preponderance of the evidence was contrary to the jury’s finding that Esco Kinder was in good health on the date the policy was delivered to him, and the jury’s finding thereon was unwarranted by the evidence.

For this reason, the judgment of the trial court will be reversed, and the cause remanded.


author: WILLSON, C. j.

text:
    GULF PIPE LINE CO. v. SMITH et al.
    No. 4059.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 9, 1931.
    Rehearing Denied Oct. 22, 1931.
    Joe S. Brown, of Houston, McKinney & Berry, of Cooper, and Emmet Thornton, of Sulphur Springs, for appellant.
    J. K. Brim, J. E. Spence, and T. J. Ramey, all of Sulphur Springs, for appellees.
   WILLSON, C. j.

(after stating the case as above).

It appearing from testimony of appellee Frank Chapman as a witness in his own and his coappellee’s behalf that one N. M. Dawson owned an interest in about 100 head of the hogs on account of which appellees sued, appellant filed a “plea in abatement,” in which it alleged that it did not know of such interest in said Dawson until said Chapman so testified, and in which it prayed that appel-lees’ suit be dismissed.

As supporting its contention that the trial court erred when he overruled the plea and proceeded with the trial of the case, appellant cites Adams v. Bankers’ Life Co., 36 S.W.(2d) 182, 185, where the Commission of Appeals said: “The nonjoinder of a party necessary to the main issue is fundamental, and requires either a dismissal of the suit or a stay of proceedings until such party can be brought in. This is the rule,, no matter when or how the absence of such party may become apparent. De La Vega v. League, 64 Tex. 205; Buffalo Bayou Ship Channel Co. v. Bruly, 45 Tex. 8. The objection of non-joinder of such a party may be made by plea in abatement, general demurrer, special exception, motion for new trial, suggestion of fundamental error on appeal, or otherwise; whenever it comes to the knowledge of the court, the result must be the same — either the dismissal or stay of the case. Townes Texas Pleading (2d Ed.) p. 288; 1 Tex. Jur. p. 144.”

As supporting the judgment appellees cite Two States Telephone Co. v. Hurley, 248 S. W. 424, 425, when Justice Hodges, speaking for this court, said: “The evidence showed that a part of the property burned belonged to the community estate of the appellee and her deceased husband, and a part belonged to her two minor children. The greater part of it, however, was hers individually. The total amount sued for was over $5,006. The amount recovered was $1,500, which is less than that which the plaintiff under the evidence had a right to recover if her testimony as to the value of her own property be correct. In the question submitted the court required the jury to find the value of the ‘plaintiff's property.’ We must assume, in the present state of the record, that this instruction was obeyed and that the jury did not include in that valuation property which the plaintiff did not own.”

An examination of the record in the Hurley Case discloses that the contention the court was there called upon to determine was- as to whether or not it appeared Mrs. Hurley was allowed to recover for the loss of property she did not own. The court concluded it could not say it so appeared, and overruled the assignment presenting the question. The question for determination in the instant, case is not that, but is to whether, it appearing from the .testimony referred .to that Dawson owned an interest in the hogs on account of which appellees sued, the court erred when lie overruled the plea in abatement. In the light of the holding, of the Adams Case, referred, to above, we think there is no escaping the conclusion that the court did err when he so ruled. And on the record before-us we think it is plain it should not be said the error was a harmless one.

As the cause is to he, remanded for a new trial because of the error of the court .in overruling the plea in. abatement and proceeding with the trial as he did, we will briefly notice some of the other contentions presented in appellant’s brief.

Negligence charged against appellant was its act in carrying its pipe line, under or through the levee. Over appellant’s objection, appellee was permitted to prove by the witness Kirven that, after the break in the levee occurred, appellant so changed its pipe line as to carry same over the levee. The ground of appellant’s objection was that the fact that appellant had so chan’ged its pipe line was irrelevant to any issue in the case, and that permitting appellee to prove it was prejudicial to appellant’s rights, in that the jury might have treated the fact as a confession of negligence bn its part' in carrying the pipe line under or- through the levee. It is clear in the light of the authorities that the testimony was not competent to prove negligence on the part of appellant as charged against it (45 C. J. 1232; Louisville & N. Ry. Co. v. Williams, 165 Ky. 386, 176 S. W. 1186, L. R. A. 1915E, 613; Pribbeno v. Ry. Co., 81 Neb. 657, 116 N. W. 494; Perry v. Levy, 87 N. J. Law, 670, 94 A. 569), and, we do not understand appellees as being in the attitude of contending it was. Their contention seems to be. that the testimony was admissible to show control of the pipe line by appellant at the time it was carried through or under the levee. There is authority for holding that such testimony was admissible for that purpose [Gulf Pipe Line Co. v. Bailey (Tex. Civ. App.). 40 S.W.(2d) 938], and the majority of the members of this court think appellant’s contention should be overruled. The case referred to above (Gulf Pipe Line Co. v. Bailey) was for damages other- parties than ap-pellees here claimed to have suffered from the same overflow. The writer participated in the decision of that case, and agreed that the testimony was admissible for the purpose stated. He is not prepared now to say that the holding was error on the record in. that case, but he thinks it was error to admit the testimony on the record in this case, and that the assignment complaining of the ruling should be sustained. However, it is overruled in conformity to the’view of the majority.

In its answer appellant’ charged that ap-pellees ’ were guilty of contributory negligence, in that, by the exercise‘of proper care after they knew- the levee probably would break,■ they couhj,have driven (and,did not) the. stocjr-.to part? pf..the pasture safe from the overSpw which occurred; , and. charged, further, that, after the overflow-occurred, ap-pellees byi the exercise, of- proper care could (and did not) have lessened damages they suffered. ■ There was’,evidence tending to support the charge first mentioned, and the court submitted to the jury an issue as to whether appellees' were guilty, of contributory negligence in failing, after they had notice of the leak and before the.ievee broke, to drive the cattle to safe, places in. the pasture.' However, the court refused to submit to the jury an issue reguested by appellant as to whether ap-pellees by the use of proper care after the levee broke could have lessened damages they suffered, and appellant complains here of such refusal. As we view the testimony set out in appellant’s brief, the action of the court was not error, because said testimony did not present such an issue.

Some of the contentions presented in appellant’s brief present questions not likely to arise on another trial, and for that reason need not be stated. Others, not in effect disposed of by what has been said, are overruled because not tenable, as we view the record.

On Motion of Appellees for a Rehearing.

Insisting that this court erred when it determined that the judgment should be reversed for the reason stated in the opinion disposing of the appeal, appellees, in the event their contention is overruled, enter a remittitur of the amount, $525, adjudged in their favor on account of injury to hogs, as found by the jury. The contention referred to is overruled, but the motion is granted so far as it is to set aside the judgment rendered here and modify the judgment of the court below so as to award appellees a recovery of $1,879 and interest thereon at the rate of 6 per cent, per annum from February 25, 1931, said $1,879 being the amount of the judgment of the court below, less $525, the amount of said remittitur. As so modified, said judgment of the court below will be affirmed.


author: JACKSON, J.

text:
    HAMILTON et al. v. HAMILTON et al.
    No. 3617.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 23, 1931.
    Rehearing Denied Nov. 4, 1931.
    E. W. Napier, of Wichita Falls, for appellants.
    Claude P. Hamilton and others, pro se.
   JACKSON, J.

The plaintiffs, Cleve Hamilton, and twenty-three others, as heirs of J. P. Hamilton, deceased, instituted this suit in the district court of Wilbarger county, Tex., against the defendants Mrs. E. L. Hamilton, the surviving wife of J. P. Hamilton, and Claude P. Hamilton, his son.

Plaintiffs alleged:

That about January 15, 1921, J. P. Hamilton died, leaving an estate of the value of $100,000, which he disposed of by will. That he bequeathed and devised to his wife, Mrs. E. L. Hamilton, the entire estate during her natural life, with the remainder to his children, Cleve Hamilton, R. N. Hamilton, J. E. Hamilton, R. S. Hamilton, T. A. Hamilton, L. C. Hamilton, Bettie M. Pettit, and Mrs. Johnson and her husband.

That Mrs. E. L. Hamilton was named as independent executrix of said will without bond, and T. A. Hamilton, R. N. Hamilton, J. H. Pettit, and J. B. Ross were named as advisers of Mrs. E. L. Hamilton, who was given only such powers in the management and disposition of the estate as might be agreed upon by said advisers.

That said will was duly filed and probated on the 10th day of March, 1921, and that Mrs. E. L. Hamilton qualified as executrix under the will and assumed possession and control of said estate. That thereafter, without the consent and over the protest of the advisers, the executrix entered into a contract with the defendant Claude P. Hamilton, turning over to him the entire estate and constituting him manager thereof and authorized him to make and enter into contracts with reference to said estate, since which time the defendant Claude P. Hamilton has retained possession and exercised complete control of the property of the estate to the exclusion of the board of advisers.

That plaintiffs believe that the defendant Claude P. Hamilton, with the consent of said Mrs. E. L. • Hamilton, has sold, incumbered, and otherwise disposed of a large part of the personal property and made numerous real estate contracts affecting the land belonging to the estate, and otherwise incumbered it. That the defendants have refused to recognize the board of advisers or consult with them or permit them to participate in the administration of the affairs of the estate, have refused to permit them to inspect the books and records of the estate, and refused to furnish said advisers with any information relative to the estate. That the. said Mrs. E. L. Hamilton and Claude P. Hamilton assert that under the will the executrix is entitled to a life estate in the entire property and all the proceeds and revenues derived therefrom, and, so long as the corpus of the estate is not disposed of, such executrix is entitled to the exclusive management and control of said estate.

That under a fair and reasonable interpretation of the terms of the will the persons named as advisers are coexeeutors and co-trustees with the executrix, and she has no authority to manage and control said estate without being joined therein by said advisers. That her acts in employing Claude P. Hamilton are void, and all the contracts of every kind and character made by him or by the said executrix are void; That the advisers are entitled to joint possession, management, and control of the estate and to a complete accounting, showing in detail the receipts and disbursements since the death of the said J. P. Hamilton and showing the present status of the estate.

That the defendants have neglected to exercise ordinary care and diligence in the preservation of the estate. That Claude P. Hamilton has converted to his own use and benefit large sums of money, has sold personal property, and the defendants have neglected to keep the real estate in repair, and allowed the buildings, fences, and improvements to become dilapidated.

That the defendant Mrs. E. L. Hamilton is 80 years of age and by reason of physical and mental infirmities is and has been since the death of her husband incapable of performing the duties incident to the administration of the estate. That the acts of the executrix are contrary to the expressed intention of the testator in his will, and the defendants persist in continuing such management to the exclusion of the advisers and will continue to waste and impair said estate.

The plaintiffs sought a judgment • of the court construing the will declaring T. A. Hamilton, R. N. Hamilton, J. H. Pettit, and J. B. Ross, cotrustees and coexecutors of the estate with Mrs. E. L. Hamilton; requiring the defendants to furnish a stated account showing the receipts and disbursements and the present condition of the estate; appointing an auditor to audit such books and accounts and a receiver to take charge of, manage, and control the estate, to recover a judgment against Claude P. Hamilton for whatever sums he may have converted to his own use and benefit and whatever sums he may owe such estate; and for judgment against the estate for attorneys fee in the sum of $1,000.

Plaintiffs state the property alleged to have been converted by Claude P. Hamilton and the moneys and obligations due by him to the estate.

Plaintiffs attach to and make a part of their petition a copy of the will of J.P. Hamilton, deceased.

The defendants answered by general demurrer, special exceptions, general denial, and specially pleaded:

That J. P. Hamilton, deceased husband of the defendant Mrs. E. L. Hamilton, at the time of his death owned only on interest in the community property between himself and his surviving wife, and that by the terms of his will a life estate in such community interest of J. P. Hamilton was bequeathed to Mrs. E. L. Hamilton. That no partition or division of the property has been made, and the whole estate has been and still is used and managed together. That the appointment of a receiver or the granting of an injunction or decreeing the advisers as coexeeutors and eotrustees would be wholly unlawful and inequitable. That the rights of Mrs. E. L. Hamilton in the community interest of her deceased husband is an unlimited life estate, with a limited power of sale, and the plaintiffs are only executory devisees, but she says, in the alternative, that, if they are remaindermen, she alleges the facts to be that no loss, removal, material or permanent injury has in any manner been permitted, but that the corpus of the estate is intact, the improvements thereon have been kept in good repair, the farms in a good state of cultivation, improvements have been added, additional lands have been put in cultivation, and the whole estate is in better condition and of greater value than at the time of the death of J. P. Hamilton.

That Claude P. Hamilton is the only one of her children who would or could look after the farms and give time and attention to the management thereof at her request. That his management has been prudent, careful, and profitable, and he has devoted daily attention thereto. That he has constantly looked after her personal needs and comforts. That she has at no time refused the advice of any member of the board of' advisers, but on several occasions has sought such advice, but none of them have ever expressed a willingness to reside upon or look after the interest of the estate, which requires daily attention. That said advisers, under the terms of the will, have no legal right as such to manage or control, and no joint right with her in the management and control of the estate. That no property has been lost or converted, misapplied or unlawfully appropriated.

The case was submitted to the court without the intervention of a jury, and judgment entered that plaintiffs take nothing and the defendants go hence without day, from which judgment this appeal is prosecuted.

The provisions of the will material to a consideration of the appeal are:

“III. I give, bequeath and will to my beloved wife, E. B. Hamilton, all of the property, both real and personal of every kind and description and wherever located, that I may die seized and possessed of after the payment of all my just debts together with all expenses incident to the probating of this will to be hers during her natural life, with the understanding that she may lease, sell, or dispose of the same and convey absolute title thereto, fix valid liens thereon or make any contracts in connection therewith in the manner hereinafter provided. And at her death all said property herein willed to my said beloved wife that is still owned by her shall descend to my children according to the laws of descent and distribution.
“IV. Desiring to protect my said beloved wife against all necessary worry in the handling and controlling of said property, and desiring to leave it in shape to be handled to the best advantage and having absolute confidence in my sons, T. A. Hamilton and R. N. Hamilton, and my sons-in-law, J. H. Pettit and J. B. Ross, I request that they act as ad-visors to my said wife in handling said property and I direct that she request them to do so and it is my will that she may sell or transfer all or any part of said property or make any contract in connection therewith and pass absolute title to such as she desires to sell or transfer and make valid contracts in relation to said property provided that said T. A. Hamilton, R. N. Hamilton, and J. H. Pettit and J. B. Ross, shall agree to such sales, transfers or contracts and sign all instruments evidencing the same and in case of such sale, transfer or contracts this will shall be construed to vest absolute title in my said wife, and to grant her power and authority to make such sale, transfers or contracts so that they may be as effective as if made by myself while living.
“V. I hereby name, constitute and appoint my beloved wife, E. L. Hamilton, executrix of my last will and testament and direct that no bond or security be required of her as such.
“VI. It is my will that no other action shall be had in the County or Probate Court in the administration of my estate than to prove and record this will and to return, an inven-' tory and appraisement of the said estate and list of claims.”

The court, in his judgment, finds: That under the terms of the will it was the intention of the deceased to give to his wife, E. L. Hamilton, all the property, real and personal, owned by him at the time of his death, to be hers during her natural life, and that she, as independent executrix, was given the sole control and management of the property for her use and enjoyment during her life, but that her authority to dispose of, convey, and make absolute title to the property, lease, sell, or contract for sale, was limited by the provisions directing that the advisers named shall agree to such sales, transfers or contracts evidencing the same; that Mrs. E. L. Hamilton was entitled to the rents, profits and revenues derived from such estate during her natural life; that the language in the will, “I request that they act as advisers to my wife in handling said property and direct that she request them to do so,” is precatory, and that the only peremptory provision was the language requiring that the advisers agree to and sign all instruments evidencing title before such instruments could be effective to vest title or incumber the real estate; that by the will Mrs. Hamilton, the executrix, was given the sole power of managing and controlling the property for the purposes of deriving revenues from the profits and products thereof; that under the will it was the intention of the testator that, if there should be any remainder of his estate held by Mrs. E. L. Hamilton at the time of her death, such remainder should go to the children of the testator according to the laws of descent and distribution.

The court finds from the evidence that the only property owned by J. P. Hamilton at the time of his death was his one-half interest in the community estate of himseif and wife, E. L. Hamilton; that there has been no partition of said estate; that there has been no misappropriation and no mismanagement of said estate; that E. L. Hamilton has acted within her rights in the handling and management of said estate; that the estate has been well managed and no waste committed; that none of the estate or lands has been sold or attempted to be sold, no leases have been made except with the consent of the advisers, save rental contracts from year to year for the purpose of having the farms cultivated, all of which the executrix and her agent had authority to do; that no facts are shown which would authorize the appointment of an auditor or receiver and no equitable grounds for' the granting of an injunction.

In addition to the facts found by the court, which are amply supported by the testimony and are not challenged, the evidence discloses that additional lands to the amount of 500 acres havfe been put in bulfivation; that additional improvements have been placed on the farms; that the improvements on the farms have been kept in a good state of repair ; that there is approximately $20,000 in cash on hand in excess of the amount on hand at the time of the death of J. P. Hamilton ; and that none of the personal property of the deceased had been disposed of or converted to the use and benefit of either of the defendants.

The appellants, by numerous assignments, challenge as error the action of the court in rendering judgment against them, because, under the provisions of the will, the executrix was not given the authority to manage and control the estate during her life, but that she was required in the management of the estate to segure the approval of the board of advisers to all acts and contracts pertaining to the management of the estate, whether such acts and contracts involved a disposition of the real estate or not.

It is conceded that the will vested in the defendant Mrs. E. L. Hamilton a life estate in all the property of which J. P. Hamilton died seized and possessed, and that such property consisted of his interest in the community estate of himself and wife.

“A life tenant has the right to all the ordinary uses to which the land is accustomed to be put, the only restriction being that he shall not commit waste. He is also entitled to the profits resulting from such use. The life tenant cannot change the use so as to alter the character of the estate; but there is nothing to prevent such tenant from improving the fertility and productiveness of the land by improved methods of culture and management unless such management results in a permanent injury to the inheritance. He may do what is required for the proper enjoyment of his estate to the extent that his acts and management are sanctioned by good husbandry in the locality in which the land is situated. He is entitled to the full use and enjoyment of the property, provided in such use he exercises the ordinary care of a prudent man for its preservation and protection.”
“As a general rule the life tenant is entitled during the continuance of his estate to the entire income from the property, unless there is a direction to the contrary in the instrument creating such tenancy.” 1 Thompson on Real Property, pp. 831, 832.

In our opinion, the will evidences the intention of the testator to give his wife authority to manage and control the estate to the end that she might enjoy the revenues therefrom. Certainly there is nothing in the will directing to the contrary.

If she desired to sell, convey, incumber, or otherwise dispose of the property, in order to convey valid title, the will required that the advisers agree thereto and sign the instrument or instruments by which such sale, contract, or incumbrance was effected. At- the death of Mrs. E. L. Hamilton, the undisposed of interest of the deceased, J. P. Hamilton, according to the terms of his will, descends to his children under the law of descent ánd distribution.

No sales have been made or attempted; no incumbrances created; the taxes have been paid; no waste of the estate has occurred; and no damage to the property been committed. The defendants have exercised the ordinary care of a prudent man to preserve and protect the éstate, and the estate has been preserved and protected.

“A vested remainderman may, during the continuance of the preceding estate, maintain an action for damages for any injury to his remainder interest; but he may no't sue for an injury to the estate which is not of a permanent character; nor obtain partition of undivided interests in remainder either at law or in equity; nor sue for trespass.” 21 O. J. 1010, § 109.
“Remaindermen are entitled to equitable relief whenever necessary to protect their interest against loss or injury, * * * whether the remainderman’s interest is in the hands of the preceding tenant for life or some other person, and even during the life of the tenant; but when such necessity does not exist the remainderman is not entitled to equitable relief. A trespass upon the rights of the life tenant gives the remainderman no right to equitable relief, unless the trespass in some way endangers the remainder interest.” 21 O. J. 1012, § 171.

The judgment is affirmed.


text:
    AMERICAN INDEMNITY CO. v. YOCHAM.
    No. 2580.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 15, 1931.
    Rehearing Denied Nov. 5, 1931.

      Collins, Jackson & Snodgrass, of San Angelo, for appellant.
    W. O. Jackson, of Ft. Stockton, for appellee.
   HIGGINS, J.

This is a suit by the appellee to recover damages for unlawful arrest and false imprisonment brought against Hugh Gillespie, city marshal and chief of police of the city of McCamey, and the surety upon his official bond, ,the American Indemnity Company. Judgment was rendered against the said defendants for $1,500, from which the surety appeals.

McCamey is a city of more than five thousand inhabitants. An ordinance of the city requires the marshal to give bond payable to the city in the sum of $10,000, conditioned on the faithful performance of his duties as marshal. Section 2 of the ordinance provides that the city marshal shall be the chief of police. The bond sued upon is not conditioned as required by the ordinance, nor as required by article 099, Revised Statutes, which likewise requires the marshal to give bond for the faithful performance of his duties. This, however, is immaterial, for the obligors in a bond executed pursuant to statute are presumed to have known the terms thereof; to have contracted accordingly, and the terms of the statute are regarded as a part of the bond. Fidelity, etc. v. Prassel, etc. (Tex. Civ. App.) 24 S.W.(2d) 539; Trinity, etc., Co. v. Lion Bonding & Surety Co. (Tex. Com. App.) 229 S. W. 483; Van Zandt v. Desdemona, etc. (Tex. Civ. App.) 283 S. W. 626.

This is perhaps also true of the ordinance.

However, the rule is that the sureties upon an official bond are not liable to third persons for the wrongful acts of the officer in the performance of his duties, in the absence of a statute or ordinance imposing such liability. Clough v. Worsham, 32 Tex. Civ. App. 187, 74 S. W. 350; United States F. & G. Co. v. Jasper, 56 Tex. Civ. App. 236, 120 S. W. 1145; United States F. & G. Co. v. Crittenden, 62 Tex. Civ. App. 283, 131 S. W. 232; Carr v. City of Knoxville, 144 Tenn. 483, 234 S. W. 328, 19 A. L. R. 69; City of Eaton Rapids v. Stump, 127 Mich, 1, 86 N. W. 438, 89 Am. St. Rep. 451; Moody v. Megee (D. C.) 31 F.(2d) 117; Id. (C. C. A.) 41 F.(2d) 515; 46 C. J., page 1076.

No ordinance of the city of McCamey is shown imposing such liability, nor are we aware of any statute authorizing such suits by third persons against the sureties upon an official bond of a marshal and chief of police. Appellee cites a number of cases where the sureties upon the bonds of sheriffs were held liable for the wrongful acts of such officers. But these cases have no application, for the reason that, prior to the present revision of the statutes, suits were authorized against sureties upon the official bonds of sheriffs by any person injured. Article 7121, R. S. 1911. A like-provision was contained in article 7141, R. S. 1911, relating to the bonds of constables. These provisions relating to such' suits seem to .be omitted from the corresponding articles of the present revision. See articles 6866 and 6881.

We thus have here a situation where the ap-pellee seeks to recover against the surety upon the official bond of the city marshal and chief of police, payable to the city of Me-Gamey, and no ordinance of the city authorizing such suit by third persons, nor any statute authorizing the same, and under the authorities cited above the action cannot be maintained against the surety.

In this connection the appellant cites Gold v. Campbell, 54 Tex. Civ. App. 269, 117 S. W. 463, and Riter v. Neatherly, (Tex. Civ. App.) 157 S. W. 439. The first-mentioned ease was against the chief of police of the city of El Paso and the sureties upon his official bond to recover damages for false imprisonment. In that ease the broad statement was made that for all defaults of a public officer, within the limit of what the law authorizes or enjoins upon him as such officer, the sureties on his official bond are liable. But the sureties were held not liable because the officer was not acting within the scope of his authority.

In Riter v. Neatherly, the sureties upon the official bond of the city marshal were held liable in damages for an unlawful arrest and imprisonment, but the principle announced in the cases first above cited is not referred to.

The report of Gold v. Campbell and Riter v. Neatherly does not disclose whether there were ordinances which authorized such suits. We are unable to determine whether they conflict with the view which we have. In any event, we think the rule of decision announced in the cases first cited is correct, from which it follows that the judgment herein against the appellant cannot be sustained. Accordingly, it is reversed and here rendered in its favor. The judgment against Gillespie is not disturbed.


author: PELPHREY, C. J.

text:
    WINK GAS CO. v. HUSKEY.
    No. 2583.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 22, 1931.
    D. A. Dale and Rutledge' Isaacks, both of Pecos, for appellant.
    A. T. Folsom, of Wink, for appellee.
   PELPHREY, C. J.

During the latter part of the year 1928, appellant, who was engaged in furnishing gas to the residents of Wink, Tex., and that vicinity, installed a gas meter for a rooming house in the town of Wink. Later appellee became the owner of the rooming house, and made, on or about January 21, 1929, an application to appellant for gas to be used therein. In October of the same year a restaurant owned by appellee was also connected with the meter. In the latter part of February, 1930, an employee of appellant, when he went to read the meter, found an “outlaw” pipe that ran direct from the mains to appellee’s place of business, carrying gas which did not pass through the meter. This pipe was immediately removed, and in March the gas bill of appellee was $21.25, whereas it had only been $14.90 in February, $13.25 in January, and $9.05 in December, 1929. Appellee claimed that the meter was defective and was registering more than the amount of gas used by her. She refused to pay the gas bill for March, and on April 16,1930, appellant took out the meter and cut off the gas supply from appellee’s place of business.

On August 11, 1930, appellee filed this suit against appellant in the justice court of precinct No. 2, of Winkler county. In her suit she sought to recover $22 being the difference between $30 she had deposited with appellant and $8 which she claimed was the amount of gas used by her in March; $100 for loss of profits caused by appellant’s action in cutting off the gas from her restaurant; and $75 exemplary damages.

Appellant demurred to appellee’s cause of action, and specially excepted thereto, generally denied all her allegations, and prayed that the sum of $198, being the value of gas which went through the “outlaw” pipe used by appellee and not paid for by her, be offset against any amount which might be found to be due her. Appellee filed a supplemental statement, in answer to appellant’s answer and cross-action, setting out more specifically her alleged damages, and further alleged that appellant had never made claim upon her for the amount of gas which had gone through the “outlaw” pipe, though she had offered- to pay it for same.

Judgment was rendered in justice’s court against appellant for the sum of $98.50, and it duly perfected its appeal to the county court of Winkler county.

Upon a trial before a jury in the county court, a verdict was rendered fixing appellee’s damages at the sum of $109.50, and judgment rendered therefor. Friom that judgment this appeal has been prosecuted.

Opinion.

' The jury, in response to special issues, found: (1) That the meter, during the month of March, 1930, registered an amount of gas in excess of that actually consumed by appel-lee ; (2) that the bill of $21.25 for March was excessive; (3) that a reasonable and proper bill for that month would have been $14; (4) that appellant wrongfully removed the meter and discontinued supplying gas to appellee; (5) that appellee’s loss of business by reason' of such discontinuance of gas service was $75 ; (6) that $25 would reasonably compensate her for injury and inconvenience suffered by her, aside from the loss in her restaurant business; (7) that the line direct from the field which did not go through the meter was used by ap-pellee for, 30 days-; (8) that the value of the gas so used by appellee was $10 ; (9) that the meter was defective from the date of its installation ; and (10J that the value of the gas registered by the meter and not used by ap-pellee was $10.

Appellant seeks a reversal of the judgment against it on the following grounds: That there is no evidence to support the jury’s finding that the proper bill for the month of March was $14; that, even though such finding was correct, the jury having found that appellee was indebted to appellant in the sum of $10 for gas used and not registered by the meter, which amount exceeded the difference between the amount of the bill rendered and the amount which should have been charged, appellant was justified in discontinuing the service of gas to appellee; that no such contractual relation existed between appellant and appellee as would authorize a recovery against appellant for loss of patronage to appellee’s restaurant which resulted from appellant’s failure to supply gas t'o her; and that the- allowance of $25 for -inconvenience to appellee by the jury was not sustained by the evidence, and too remote and speculative.

Appellee testified that she saw the hands on the meter going around very rapidly, and much faster than ordinary; that her bill for February was $14.90, for January $13.25, and for December, 1929, $9.05; that it was not nearly as cold in March as it had been during those months; and that she did not use as many heaters during March as she had been using.

While it is true that there was testimony that the meter, when tested, showed a maximum over registration of only 5 per cent., yet Mr. Wallace, a witness for appellant, testified that the registration of the meters was affected by the sulphur content of the gas and by the pressuretherefore the jury would not be limited by the testimony as to the tests made of this particular meter, but could take into consideration all the circumstances before them in reaching a conclusion as to the amount of the gas used by appellee during March.

The evidence, we think, was sufficient to sustain their finding that she used only $14 worth during that month.

Appellant further contends that, the jury having found that it had overcharged appellee in the sum of $7.25 for March, and having found that appellee had used $10 worth of gas through the “outlaw” pipe for which she was indebted to appellant, appellee was indebted to appellant for the difference between such amounts at the time her gas was cut off, and therefore appellant was justified in so doing and would not be liable for any-damages suffered by appellee as a result of having her gas discontinued.

This position is, in our opinion, untenable. While it may be true that appellee was indebted to appellant for the gas which had passed through the “outlaw” pipe and was used by her, yet there had never been any bill rendered for such gas to appellee by appellant.

Appellant became aware of the presence of the pipe when its meter reader read the meter in the latter part of February, yet it rendered a bill to appellee for gas which it claimed she had used during the month of March, and did not include therein any charge for gas used by her prior to that month. ,

The record shows that appellant discontin-' ued furnishing gas to appellee, not because she had failed to pay for gas used by her through the “outlaw” pipe, but for gas which their meter had erroneously registered as' having been used by her in March.

We are of the opinion that appellant was not authorized in shutting off appellee’s gas because she had not paid for gas used by her which was riot included in the bill rendered to her. Randolph v. St. Joseph Gas Co. (Mo.App.) 250 S. W. 642.

We cannot agree with appellant’s eon-| tention that it is not.liable to appellee for damages resulting from loss of patronage to her business, because the. evidence fails to ] show a -contractual relation between the parties in regard to furnishing gas for such business.

The evidence shows that appellee made application to appellant for gas, and that appellant required her to make a deposit of $30 to secure it for gas used by her.. It also shows that appellant’s agents had from time to time gone upon her premises to read her meter, and therefore must have known the use she was making of the gas furnished her. The fact that they required the amount of $30 as a deposit, which exceeded the amount of gas used by her in any one month, we think shows that appellant had notice at the time the application was made that she was engaged in business which required the use of more gas than would be used in the ordinary residence, and certainly the agents of appellant had full knowledge as to the purposes for which she was using the gas.

While the evidence is perhaps not as satisfactory as it might be on the question of the amount of damages to her business, yet it is well settled that loss of profits to an established business is a proper element of damages and are not subject to the charge that they are too remote and speculative to be recovered.

However, we must agree with appellant that the $25 damages allowed by the jury for inconvenience to appellee is too speculative to be allowed in a case such as the record here portrays.

The judgment for $25 allowed appellee as damages for her inconvenience is reversed, and judgment here rendered that as to such item appellee take nothing, and the judgment as to the other items is in all things affirmed.


author: ALEXANDER, J.

text:
    McCLURE v. FALL et al.
    No. 1031.
    Court of Civil Appeals of Texas. Waco.
    Oct. 1, 1931.
    Rehearing Denied Nov. 5, 1931.

      Weatherby & Rogers and Barney A. Garrett, all of Waco, for plaintiff in error.
    Pat M. Neff, of Waco, and Black & Graves, of Austin, and Joseph W. Hale, of Waco, for defendants in error.
   ALEXANDER, J.

This was an action brought by Dan McClure against Mary C. Fall, individually, and as independent executrix, and John Christie as independent executor of the estate of Willie A. Deyerle-Sanborn, deceased, to in-graft a parol trust on the will of W. W. Dey-erle, deceased, and to recover from the defendants a certain farm consisting of about five hundred acres known as the “home place at Comanche Springs,” formerly belonging to W. W. Deyerle, deceased. The plaintiff alleged, in substance, that the property formerly belonged to W. W. Deyerle, now deceased, and that in 1912 the said Deyerle made a written will in which he devised all of his property to his wife, Willie A. Deyerle: that at the time and prior ti> the making of said will, he had a verbal agreement with his wife, Willie A. Deyerle, to the effect that-he would will all of his property, including the property in question, to her with the understanding and agreement on her part that, if she survived him, she was to have the use of the property in question during her lifetime, but that she would either deed or will said property to the plaintiff prior to, or at the time of, her death. The plaintiff further alleged that, after the execution of said will, the said W. W. Deyerle contemplated changing his will and of devising said home place to the plaintiff, and that he would have done so but for an agreement on the part of the .said Willie A. Deyerle by which she agreed that, if he would not so change his will, she would either deed said property to the plaintiff, or will the same to him at her death. The plaintiff alleged that said Willie A. Deyerle breached her contract and died without ever having deeded said property to the plaintiff, and that she willed the same to the said Mary C. Fall. The plaintiff prayed for the title and possession of the land. The defendant entered a general demurrer and general denial and alleged, among other things, that in 1921 after the death of W. W. Deyerle, the plaintiff, Dan McClure, brought a suit against Mrs. Deyerle individually and as independent executrix of the estate of W. W. Deyerle, deceased, for certain unpaid wages claimed to be due him, and that said suit was after-wards compromised and settled by an agreement by which Mrs. Deyerle paid the plaintiff the sum of $6,500, and the plaintiff executed and delivered to Mrs. Deyerle a written contract by which he released Mrs. Deyerle, and said estate from all claims of every kind; that the plaintiff had received the consideration provided in said contract, and had accepted the benefits thereof, and that by reason thereof the matters involved in this suit Lad been settled and there bad been a complete accord and satisfaction, and that the same constituted a bar to this suit. The plaintiff, by supplemental petition, alleged that be did not sign said contract of settlement, and that, if the agreement which be did sign released the claim herein sued on, it was through mistake and fraud, and further that it was not intended that said agreement should become binding until signed by both parties, and that Mrs. Deyerle never in fact signed said agreement. . Upon a trial of the case, the defendant introduced in evidence the written release signed by the plaintiff, in which it was provided that Mrs. Deyerle individually and as the independent executrix of her husband’s estate, by the acceptance of the written agreement, released the plaintiff from all claims held against him, and the plaintiff, in consideration of $6,500 to him paid, released Mrs. Deyerle and said estate from any and all claims and demands of every kind and character that he held or claimed against Mrs. Deyerle and against said estate.

A trial was had before a jury, and the jury, in answer to special issues, found, among other things, that the said W. W. Deyerle did not on or before November 26, 1912 (the date of his will), agree with his wife that he would leave all of his property to her by will if she would agree to either deed the home place to ODan McClure during her lifetime or leave the same to him at her death by will. The jury also found that after the said W. W. Deyerle executed his will of date November 26, 1912, the said Willie A. Deyerle did not promise her husband that she would deed the home place to Dan McClure during her lifetime or leave it to him by will at her death. The jury further found that the plaintiff signed the release in question, and that same was delivered by him or his attorneys to Mrs. Deyerle, or her attorney; that there was a valid consideration for the release by plaintiff of his claim to the property in question; that there was no misrepresentation nor fraud practiced nor mistake made in the procurement of the release. The jury found, however, that it was intended by the parties that the release ■should be signed by both parties before it became effective. The release was never signed ■by Mrs. Deyerle. Based upon the verdict of the jury, the court entered judgment for the ■defendants. The plaintiff sued out this writ -of error.

The plaintiff in error complains of the Action of the court in refusing to allow several witnesses to testify that the testator '.had a strong aversion to Harry Fall and his wife, Mary C. Fall, and that on several occasions just before his death he stated that he ■did not wish Harry Fall or his wife to ever ■come into possession of his property, and that he had it fixed so that they would never get the property. Harry Fall was a brother-in-law of the testator. His wife, Mary C. Fall, and Mrs. Deyerle were sisters. After the testator’s death, Mrs. Deyerle employed Harry Fall to manage the estate, and later willed the property to Mrs. Fall, and thus Mrs. Fall came into possession of the property. Plaintiff also complains of the action of the court in refusing to allow him to prove that, after the death of Mr. Deyerle, Mrs. Deyerle violated many of the expressed wishes of her deceased husband by discharging many of the old employees and by placing her brother-in-law, Harry Fall, in possession of her property, and also complains of the action of the court in refusing to allow the plaintiff to introduce testimony showing the treatment of Harry Fall toward Mrs. Deyerle after Fall began to manage the estate. We do not think that the testimony above referred to would furnish any evidence of the agreement sought to be established by the plaintiff in error. The evidence was entirely too remote. The court did not err in excluding the testimony.

The plaintiff, for the purpose of rendering it more probable that the testator made the agreement with his wife by which the property in question was to be left to the plaintiff, offered testimony showing that he had worked for the testator from 1906 until the testator’s death in 1920, devoting all of his time to this service, and that the only consideration that he had received fherefor amounted to about $500. His only other source of income was a small grain crop cultivated on the halves. The defendant, in rebuttal to this testimony, was permitted to prove, over the objection of plaintiff, that, during the time the plaintiff so worked for the testator, he accumulated considerable property, and that he had no other means of accumulating such property, except as above stated. Since the plaintiff went into the question of the amount of compensation received by him for his services, it was proper for the trial court to allow the defendant to prove that the plaintiff had accumulated a considerable estate during the time in question. This was a circumstance tending to show that the plaintiff had been fully paid for his services, and it would tend to reduce the probability that the testator would remember the plaintiff in the disposition of his estate. This was especially true, since the other party to the transaction, Mr. Deyerle, was dead.

The plaintiff complains of the action of the court in permitting the defendant to prove that after the death of the testator, the plaintiff filed a suit against Mrs. Deyerle and against said estate for his unpaid wages, and that the suit was afterwards settled by the payment of $6,500 to the plaintiff, and that on the settlement of the suit the plaintiff executed a release for all claims held by him against boa Mrs. Deyerle and the W. W. Deyerle estate. The defendant was further permitted to introduce testimony showing what the issues were between the parties in the wage suit, and the negotiations that lead to the settlement thereof. The plaintiff complains of the admission of this testimony, and claims that this was in effect a relitigation of the wage suit, and that such testimony was irrelevant and immaterial. The defendant pleaded the release executed by the plaintiff in settlement of the wage suit as a bar to this suit. The plaintiff sought to avoid the effect of the release by alleging that he had been induced to execute it as the result of fraud and without knowing that it released his claim to the land in cuestión. We think the testimony was admissible for the purpose of showing that the plaintiff for a valuable consideration had intended to release the claim herein sued on, and further, that no fraud had been practiced on him in procuring the release.

The plaintiff complains of the action of the court in permitting the defendant to prove, by the attorney who represented the plaintiff in the wage suit, that plaintiff never at any time told him of any agreement between Mr. and Mrs. Deyerle by which plaintiff was to get the home place after the death of Mrs. and Mr. Deyerle. This testimony was objected to on the ground that it referred to •a confidential communication between attorney and client. Prior to the introduction of this testimony, the plaintiff haS. taken the stand in his own behalf and had, on cross-examination and without objection, testified fully as to the conversation between himself and said attorney with reference to said suit, and as to what he had told said attorney about the same. On redirect examination, and in answer to questions by his own. attorney, fhe testified with reference to the same transaction. The plaintiff himself having thus testified with reference to these statements, the defendant was entitled to prove by said attorney that no such statements were made. Shelton v. Northern Texas Traction Co., 32 Tex. Civ. App. 507, 75 S. W. 338; 28 R. C. L. 580; Kelly v. Cummens, 143 Iowa, 148, 121 N. W. 540, 20 Ann. Cas. 1285; Hunt v. Blackburn, 128 U. S. 464, 9 S. Ct. 125, 32 L. Ed. 488; 40 Cyc. 2363 and 2374.

The plaintiff also complains of the action of the court in permitting the attorneys who represented him in the wage suit to testify as to what was said by the plaintiff and others with reference to the release that was to be executed by the plaintiff in settlement of said suit. The plaintiff sought to avoid the effect of the release executed by him by alleging that Mrs. Deyerle and her attorneys had perpetrated a fraud on him in procuring his signature to the release, and that his own attorneys had prepared the release and in-.dueed him to sign it at a time when he was in a hurry to catch a train and did not have time to read it; and that his attorneys had assured him that it did not release any other claim that he had against the Deyerle estate other than the wage suit. He testified fully in his own behalf to the conversations that he had with his attorneys as to the terms of the release. Moreover, said attorneys had acted as his agents in the settlement of the wage suit. He is now challenging their authority in the matter, and charges them with having overreached him in securing his signature to the release. 1-Ie, by his pleadings and by his own testimony, had made their authority to represent him and their conduct in securing the release an issue in the case, and the defendant was entitled to introduce the testimony of such witnesses for the purpose of showing that the plaintiff executed the release and settled the matter in controversy with full knowledge of the facts. Koeber v. Somers, 108 Wis. 497, 84 N. W. 991. 52 L. R. A. 512.

Jim Hughes, a witness for the plaintiff, testified by deposition in plaintiff’s behalf to the alleged agreement between Mr. and Mrs. Deyerle. The plaintiff complains of the action of the court in permitting two witnesses to testify that they had known Jim Hughes since his- early days in the primary school; “that he did not progress well in school and could not grasp anything hardly and was a drag and a numbskull in some lines”; that in their opinion he was not capable of dictating an answer to one question more than two pages long in smooth running sentences without making a grammatical error ; “that he could not dictate an answer of that kind.” Hughes did not appear in person before the jury. His credibility and the weight of his testimony was a question of fact for the jury. . His mental capacity was material to aid the jury in passing on the weight of his testimony. It was therefore proper for the court to permit the introduction of testimony upon the mental capacity of Hughes in order to enable the jury to properly weigh his testimony. 40 Cyc. 2573; Wren v. Howland (Tex. Civ. App.) 75 S. W. 894, at bottom page 900; Kellner v. Randle (Tex. Civ. App.) 165 S. W. 509, par. 4; Bouldin v. State, 87 Tex. Cr. R. 419, 222 S. W. 555, par. 4.

One of the attorneys for the defendant testified that he went to Oklahoma and interviewed Jim Hughes with reference to the case. In his closing argument to the jury, this attorney told the jury he did not think it was bad or improper for him to go to Oklahoma and interview the witness, and further said: “If you were in this case and saw just half about what I knew about Jim Hughes, you would not think it bad. * * * They come back and say, “Why didn’t you take his deposition’? Not on your life. The law says, Gentlemen, that when a lawyer puts a witness on the stand, or takes his deposition, he vouches for him, and I would not dare put Jim Hughes’ testimony on to take a yellow dog away from anybody and you wouldn’t either, nor any other jury that ever looked at him and heard him testify.”

D. J. Nettles was likewise a witness for the plaintiff and testified by deposition to the agreement in question. The defendant placed witnesses on the stand and proved that this witness’ general reputation for truth and veracity was bad. The attorney for the defendant in his closing argument, said: “And when we asked the responsibility of going to prove that he is not fit to be believed under oath in a courthouse and that he is one of this lowdown type of fellows, and had witnesses to prove it, they objected and the court promptly sustained the objection.”

This argument on the part of counsel was improper, but we do not think it requires a reversal of the case. The Commission of Appeals has held that where the trial court overrules an objection to alleged improper argument, the appellate court must not reverse the case unless it clearly appears that the argument violates the rules and is calculated to prejudice the rights of the complaining party. Emberlin v. Wichita Falls R. & Ft. W. Ry. Co. (Tex. Com. App.) 284 S. W. 539; Brazelton v. St. Louis S. W. Ry. Co. (Tex. Com. App.) 296 S. W. 290.

Some of the argument complained of appears, by its own terms, to have been in reply to the argument of the opposing’' counsel, and was therefore proper. Moreover, the above-quoted argument of counsel is but a small part of certain long paragraphs of counsel’s argument as objected to by the plaintiff and set out in the various bills of exceptions. The objection was to the whole of the argument as set out in each of the bills of exceptions. Some of the argument as objected to was clearly permissible. It has been held that where a part of the argument as set out in the bill is permissible and a part of it is objectionable, and the objection is made to the whole of the argument as set out in the bill, it is proper for the trial court to overrule the objection. Counsel should point out separately in the trial court the objectionable argument, in order that the trial court may instruct the jury not to consider the same. Ferguson v. Fain (Tex. Civ. App.) 164 S. W. 1040, par. 5; Decatur Cotton Seed Oil Co. v. Belew (Tex. Civ. App.) 178 S. W. 607, par. 8; Regester v. Lang (Tex. Civ. App.) 33 S.W.(2d) 230, par. 8. This rule probably would not prevail where the argument complained of, or any part thereof, was so inflammatory or prejudicial that the error could not be cured by an instruction from the trial court. The argument in this case does not come within this class.

There is another season why we think that the ease must be affirmed and that the alleged errors, if any, in the admission of the testimony objected to by plaintiff with reference to the mental capacity of Jim Hughes to give the deposition in question, and the alleged improper argument above referred to, do not justify a reversal of this case. The findings of the jury show that at the time the wage suit was settled, the plaintiff executed, and either he or his attorney, delivered to Mrs. Deyerle, or her attorney, a written release by which he released, her and the estate of W. W. Deyerle, deceased, from any and every kind of claim and demand whatsoever held by him against Mrs. Deyerle and said estate. The plaintiff sought to avoid the effect of this release by alleging that he was caused to execute same as the result of fraud on the part of Mrs. Deyerle and her attorneys and misrepresentations on the part of his own attorneys, and that he signed same by mistake without knowing that it purported to release the claim in question. He admitted that he signed and acknowledged the release, but claimed that he did not know at that time that it released the claim herein sued on. He also admitted that his own attorneys prepared the release, and that he accepted from ■ Mrs. Deyerle the $6,500 to be paid to him by her as provided in the release, and retained the same in his possession. There was no evidence of any fraud on the part of Mrs. Deyerle or her attorneys. The jury found that plaintiff signed the release, and that either he or his attorney delivered same to Mrs. Deyerle or her attorney, and that there was no fraud perpetrated on plaintiff, and that the provision in said contract for the release of said claim was supported by a consideration, and was not inserted in the release by mistake. These findings were supported by the overwhelming weight of the testimony. It is true that the jury found that the release was not to become effective until signed by both parties, and that the defendant was unable .to establish that Mrs. Deyerle signed it. It appears, however, that the release was prepared in duplicate, and, after being signed and acknowledged by the plaintiff, one copy was delivered to Mrs. Dey-erle, or her attorney, and the other copy retained by the plaintiff or his attorney. Mrs. Deyerle retained .the copy delivered to her, but apparently never signed it. Since the plaintiff signed the release and accepted and retained the consideration therein provided, and Mrs. Deyerle accepted the contract by paying the plaintiff the consideration therein provided, the signature of Mrs. Deyerle was not necessary in order to make it a binding contract. It is well settled that where a contract between two parties is reduced to writing, and is signed by one of them and is accepted and acted on by the other, and the one signing the contract receives the consideration therein provided, this is sufficient to impress upon it the character of a written agreement, and it becomes binding on the party signing the same, and the courts will treat it as such. Olegg v. Brannan, 111 Tex. 367, 234 S. W. 1076, par. 2; Campbell v. McFadin, 71 Tex. 28, at bottom page 31, 9 S. W. 138; Martin v. Roberts, 57 Tex. 564; Johnson v. Tunstall (Tex. Com. App.) 25 S.W.(2d) 828, par. 3; Benson v. Ashford (Tex. Civ. App.) 189 S. W. 1093; Berryman v. Flake (Tex. Civ. App.) 20 S.W.(2d) 803, par. 1; Orbeck v. Alfei (Tex. Civ. App.) 276 S. W. 947, par. 1.

Since the evidence shows without dispute that the plaintiff was bound by the release executed by him, and that he thereby released the claim herein sued on, and since the testimony of Jim Hughes related solely to the original agreement between Mr. and Mrs. Deyerle and not to the release in question, the error of the court, if any, in admitting such testimony with reference to the credibility of Jim Hughes, becomes immaterial. 3 Tex. Jur. p. 1013, § 720; National Compress Co. v. Hamlin, 114 Tex. 375, 269 S. W. 1024, par. 3; Douglass v. Mundine, 57 Tex. 344; Marlin v. Kosmoroski, 25 Tex. Civ. App. 355, 60 S. W. 788, at bottom page 789; Turner v. Parker (Tex. Civ. App.) 4 S.W.(2d) 639, par. 6; Conn v. Texas & N. O. Ry. Co. (Tex. Civ. App.) 4 S.W.(2d) 193, par. 4; Ft. Worth & D. C. Ry. Co. v. Gatewood (Tex. Civ. App.) 185 S. W. 932, par. 6. The same thing is true with reference to the improper argument. The argument complained of related solely to the credibility of the witnesses who had testified to the original contract between Mr. and Mrs. Deyerle to the effect that Dan McClure was to have the property after the death of Mrs. Deyerle, and tending to show that the plaintiff once had. a cause of action. Neither the argument of counsel nor the testimony of the witnesses whose credibility was therein attacked, in anywise referred to the execution of the contract by which the plaintiff released his claim. The error, if any, was therefore harmless. Mullen v. G. H. & S. A. Ry. Co. (Tex. Civ. App.) 92 S. W. 1000; Vincent v. Bell (Tex. Civ. App.) 22 S.W.(2d) 753, par. 6; Smith v. Irwin (Tex. Civ. App.) 7 S.W.(2d) 926, par. 3 ; Employers’ Liability Assurance Corp. v. Young (Tex. Civ. App.) 34 S.W.(2d) 622, par 6; Higginbotham Cattle Co. v. Whaley & Lewis (Tex. Civ. App.) 26 S.W.(2d) 308, par. 6; A. Harris & Co. v. Caldwell (Tex. Civ. App.) 276 S. W. 298, par. 3; O’Brien v. Jones (Tex. Civ. App.) 274 S. W. 242, par. 1.

We have considered all other assignments of error, and find them without merit.

The judgment of the trial court is therefore affirmed.