author: RANDOLPH, J. HALL, C. J.

text:
    CAMPBELL v. WM. CAMERON & CO., Inc.
    No. 3587.
    Court of Civil Appeals of Texas. Amarillo.
    April 22, 1931.
    Rehearing Denied May 27, 1931.

      J. J. Yowell and Charles G. Russell, both of San. Angelo, for appellant.
    T. Wade Potter, of Littlefield, for appellee.
   RANDOLPH, J.

This case w.as assigned to the writer to prepare the opinion of the court. Upon such opinion prepared by me, my associates declined to agree with me. The majority opinion giving their conclusion upon the law controlling the disposition of the case has been filed herein, and I now file this as my dissent to the holding in such majority opinion.

The question as to whether or not the trial court erred in sustaining a general demurrer to plaintiff’s petition is the sole question involved on this appeal.

In order that the very pleading itself shall be before us, and leaving out the formal parts, we quote it, to wit:

“That on the 22nd day of August, 1929, this Court entered its judgment in cause No. 392-A, entitled Wm. Cameron Co. Inc. vs. E. H. R. Sabens, et al, and that execution has been levied on said judgment, and that said judgment and such execution are void for the reasons hereinafter set forth.
“That on the 8th day of August, 1928, the defendant Wm. Cameron Co., Inc., filed its petition in this Court alleging that it had furnished certain materials therein describes!, and certain improvements on real property described, at the special instance and request of the said E. H. R. Sabens, and the said Dan Ereel now deceased. That in truth and in fact said material was not furnished at the instance or request of the said Dan Ereel, or its purchase authorized by him, directly or indirectly, expressly or impliedly, and no partnership existed between Dan Freel and the said Sabens, but said materials were purchased by the said Sabens in order to carry out a contract with the said Dan Freel whereby such materials were to be furnished by Sabens at his sole expense; all of which facts were matters of record in Lamb County, Texas, and at all times well known to said Wm. Cameron Co., Inc., its officers and agents. That said suit filed on the 8th day of August, 1928, sought foreclosure of an alleged mechanic’s materialmen’s lien on certain lands in Lamb County, Texas, and no citation was issued thereon for service upon the said Dan Freel until .the 25th day of May, 1929, and that although Dan Freel was served on the-■— day of July, 1929, he did not file or cause to be filed any answer in said cause on the 5th day of August, 1929, the return day named in said citation for the reason that he had been led to believe by the direct representations of the agents and officials of Wm. Cameron Company, Inc., that the purpose of said suit was to obtain judgment against the said Sabens and to establish a lien upon certain materials furnished to the said Sabens and that said company, knowing that the said Freel was not responsible for said indebtedness, agreed and promised the said Dan Freel that he would not be called upon to pay said debt personally and that he need not take any further action. That the said Dan Freel long prior to the issuance and service of citation in said suit had filed in the records of Lamb County, Texas, contracts between him an'd the said Sab-ens and an affidavit with reference to their relation and showing that the said Sabens was an independent .contractor and neither a partner nor an agent of the said Dan Freel authorized to bind the said Dan Freel personally.
“That the said Dan Freel, believing, in good faith that no action on his part was necessary in said suit, so advised his attorney, John D. H. Tester of San Angelo, Texas. In view of which said attorney did not file any answer as required by said citation. That. thereafter, out of an abundance of caution, on the 17th day of August, 1929, said attorney did forward to the Clerk of this Court for filing a formal answer of the said Dan Freel. That at said time, unknown to the said Dan Freel, or his attorney, the said Wm. Cameron Company, Inc., had obtained a waiver of service and entry of appearance from the said Sabens, executed by him in Fort Worth, Texas. That on the 22nd day of August, 1929, said waiver of service and answer were filed and a judgment immediately taken out only foreclosing the alleged lien upon said lands, but being a money judgment against the said Sabens and the said Freel, jointly and severally, without any opportunity for the said Dan Freel to defend said suit or without any notice that said suit would be heard and without any lack of diligence on the part of the said Dan Freel or his attorney.
“That said judgment was secured by the false and fraudulent representations of said Company that it had a contract or agreement with the said Dan Freel; that it furnished said materials and supplies to said Dan Freel at his special instance and request as alleged in its said petition and in the statement of account recorded in the mechanic’s and ma-terialmen’s lien records referred to in said petition.
“That in his letter to1 the attorney for said company said attorney for the said Dan Freel advised him that Mr. Freel advised him that Mr. Freel would be in Littlefield to see him in a few days and asked him for his assurance that no adverse action would be taken prior to such conference. That after said judgment was taken as aforesaid the said Dan Freel communicated with the said company through its agents and attorneys, who concealed from him the fact that said personal judgment had been taken and led him to believe that no action had been taken or would be taken in said cause requiring him to pay said debt personally and the said Dan Freel died on or about the 12th day of February, 1930, without knowing that said judgment had been obtained against him.
“That on the 2oth day of February, 1930, and after the death of the said Dan Freel, deceased, purported execution was issued which is void and of no force and effect and more than one year has elapsed since said judgment was obtained and the same is now dormant and no execution could be issued thereon without scire facias or proper action to revive the same. Notwithstanding which said company has filed a claim against plaintiff herein based on said judgment and said void execution thereon.”

Upon the hearing in the trial court, that court sustained a general demurrer to the petition, and, on the plaintiff declining to amend, the suit was dismissed.

While the plaintiff’s petition recites that a judgment was rendered that was not authorized by the facts, it nowhere alleges that the defendant has a meritorious defense except by implication. This implication must be based upon the allegation that the material alleged to have been furnished was wrongfully charged to Sabens and Freel; for the reason that Sabens was an independent contractor and was personally liable to Cameron & Co., and that it was not furnished at the instance and request of Freel; that no partnership existed between Freel and Sabens. The petition also shows that the building contract between Sabens and Freel was duly recorded.

I do not think that the doctrine of reasonable intendment should be applied to a pleading attacking a judgment upon specific grounds, and which pleading, in the nature of a bill of review, must charge certain specific things which render it subject to attack and which is required to.be under oath. The petition attacking the judgment is not sworn to, does not state that the complainant has a meritorious defense and that upon another trial a different result will be reached.

The court should be loth to set aside a judgment unless it is clearly alleged that the complainant has a meritorious defense and that the result would likely be different on another trial. Lawther Grain Co. v. Winniford (Tex. Com. App.) 249 S. W. 195; Holliday v. Holliday, 72 Tex. 581, 10 S. W. 690, 691; ( El Paso & S. W. Ry. Co. v. Kelley, 99 Tex. 87, 92, 87 S. W. 660; Johnson v. Templeton, 60 Tex. 238; Sperry v. Sperry (Tex. Civ. App.) 103 S. W. 419, 422.

There is no allegation that Freel relied on the promises and representations of the agent of Wm. Cameron & Co,, and was thereby induced to refrain from making his defenses to the suit. Neither is it alleged that the representations were made upon the design to cheat and defraud Freel and that said agents at the time they made same had no intention of perf orming same.

I am of the opinion that it was never intended that a judgment of a court of competent jurisdiction could be assailed by any such loose pleading as is set out above, and to permit parties to attack a solemn judgment of such a court without following the rules of pleading as required by an equity court in the attack on such judgment will result in any judgment and all judgments being set aside at the whim of the losing party who desires to stay the proceedings.

I am therefore of the opinion that the trial court did not err in sustaining the general demurrer, and dissent from the majority opinion.

HALL, C. J.

The plaintiff’s petition in the nature of a bill of review to set the judgment of the trial court aside shows that Freel, now deceased, had a meritorious defense in the trial court, and that- through the fraud of the appellee he was deprived of the right to present it. It shows the issuance and levy of an execution. The judgment which this proceeding seeks to set aside is rendered personally against Freel for the amount of the claim of Cameron & Co., and Campbell, as administrator, seeks to set it aside as being void. While the appellant’s petition does not show whether Cameron & Co. filed the necessary claim in order to entitle it to foreclose a mechanic’s lien upon the property of Freel, deceased, it does show that- the material was furnished to Sabens alone, who was an independent contractor, and who alone was personally responsible to Cameron & Co., and thát it was not furnished at the instance or request of Freel. As against a general demurrer, the petition is sufficient to show that Freel had made no contract with Cameron & Co. entitling it to a personal judgment against him, and that the purchase of the lumber was not authorized by him either directly or indirectly ; that no partnership existed between Freel and Sabens. It shows that the building contract between Sabens, the independent contractor, and Freel, the owner of the land, was duly recorded, and that Cameron & Co. had notice of its terms. Fox et al. v. Christopher & Simpson Iron Works Co. (Tex. Civ. App.) 199 S. W. 833; Burk Burnett-Mann Oil Co. v. Robertson (Tex. Civ. App.) 240 S. W. 1046; Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S. W. 1061, 106 S. W. 876, 22 L. R. A. (N. S.) 364, 130 Am. St. Rep. 803; Wilkerson & Satterfield v. McMurry (Tex. Civ. App.) 167 S. W. 275; Owen v. Griffin (Tex. Civ. App.) 34 S.W.(2d) 333; Sunset Brick & T. Co. v. Stratton (Tex. Civ. App.) 53 S. W. 703; Owens v. Caraway (Tex. Civ. App.) 110 S. W. 474; Sens v. Trentune, 54 Tex. 218; Alberti v. Moore, 20 Okl. 78, 93 P. 543, 14 L. R. A. (N. S.) 1030; Volker-Scowcroft Lumber Co. v. Vance, 36 Utah, 348, 103 P. 970, 24 L. R. A. (N. S.) 321, Ann. Cas. 1912A, 124; 9 C. J. 835, 836.

I therefore dissent ' from Judge RANDOLPH’S holding that the petition is insufficient, and Judge JACKSON concurs in this opinion.

Por the reasons stated, the trial court erred in sustaining the general demurrer, and the judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: LEVY, J. WILLSON, C. J.

license: Public Domain

text:
    RUSK COUNTY v. MALONEY et al.
    No. 3962.
    Court of Civil Appeals of Texas. Texarkana.
    May 6, 1931.
    Rehearing Denied May 21, 1931.

      Chas. L. Brachfield and V. W. McDavid, both of Henderson, for appellant.
    Putch & Cooper, John Arnold, Victor A. Smith, and Smith, West & Gladney, all of Henderson, for appellees.
   LEVY, J.

(after stating the case as above).

We are called upon to chiefly determine the point, broadly stated, of whether or not the county was entitled to have recovery for the amount of excess or delinquent tax fees in suit. Upon the evidence, the trial court made the affirmative finding of fact that the commissioners’ court contracted with Mr. L. T. Standard to assist the tax collector in the collection of delinquent taxes. There is necessarily involved in the further findings of the court the facts that Mr. Standard performed the services, not for the tax collector as his deputy- tax collector, but apart therefrom and in the capacity of a private person specially acting for the county government as a contractee of the county, and that he was merely paid the contract price by the tax collector out of the delinquent taxes received into the possession of the tax collector as specially ordered to be done by the commissioners’ court. We do not feel authorized from the record to disturb the-findings of fact. In view of these special facts, the appeal must be determined. Was the power in the county government to enter into the contract involved in the suit, or was it ultra vires? There is no express or implied absolute prohibition of law against the county government’s entering into such character of contract. And the power to do so is deducible from the law. The law expressly confers the power upon the county government, to be exercised by the commissioners’ court, of general authority over all county business, to hold and dispose of its property, to make such contracts as may be necessary to the exercise of its powers, to levy and collect taxes, to cause the tax collector to make delinquent tax records, and to employ attorneys to bring about the collection of delinquent taxes through judicial proceedings and to pay for such services a percentage of the taxes. The power to levy taxes involves the power to enforce collection. While the statute has designated the tax collector as the person who “shall be the receiver and collector of all taxes assessed upon the tax list in his county” (article 7254, B. S.), yet the authority intended by this article to be exclusively conferred upon the tax collector was to demand and enforce in the ordinary way the payment of all the taxes of the original assessment roll or amended or supplemental list committed to him. Article 7255, B. S. But that authority does not also confer exclusive authority upon the tax collector to collect delinquent taxes. By further statutory requirement, the tax collector shall return a list of delinquent taxpayers, both for the purpose of claiming exoneration or credit for taxes on the rolls originally committed to him which he has not been able to collect, and as a basis for further compulsory proceedings against the persons or property. Articles 7263, 7271. And it is in this particular regard of collecting the delinquent taxes that a positive and official duty or authority may not be regarded as exclusively confided or cast upon the tax collector. For the accomplishment of this end and of doing -this work for the benefit of the public in its organized capacity, 'there arises, as to delinquent taxes, general authority in the commissioners’ court to employ other agencies at public expense to enforce, or assist in enforcing the collection of delinquent taxes. Bailey v. Aransas County, 46 Tex. Civ. App. 547, 102 S. W. 1159. The case of Von Bosenberg v. Lovett (Tex. Civ. App.) 173 S. W. 508, considers quite exhaustively the decisions upon the subject. The case of Stringer v. Franklin County, 58 Tex. Civ. App. 343, 123 S. W. 1168, ma.f not be regarded as contrary authority bearing upon the precise point here now being considered. In that ease the contract passed “all of the taxes shown on the delinquent; lists,” and the real and intended ruling was that the effect of such contract was “to barter to private individuals all the County’s sources of revenue,” and this the commissioners’ court had no authority to do.

The appellant, though, further points out that the commissioners’ court is authorized to contract only with an “attorney” to enforce or assist in enforcing the collection of the delinquent taxes, and that Mr. Standard was not an attorney. Article 7335. That is only one added method to the line of general authority of providing assistance in collection of delinquent taxes, and is not intended to be the only and exclusive authority such court may exercise in respect to enforcing the collection of delinquent taxes. That article of statute contains no words of exclusion of any other method or means of collection. The article provides no further than that, should the commissioners’ court “deem it necessary or expedient,” they “may contract with any competent attorney” to enforce collection through “suits” or judicial proceedings. Summary proceedings nor personal solicitation as means for collection were not therein dealt with at all. Therefore'the exercise of discretion in the selection and appointment of a person who is not an attorney to enforce or bring about collection otherwise than through judicial proceedings would, as properly held by the trial court, at most be merely an “irregular” exercise of authority of selection and appointment in furtherance of the authorized purpose.

Therefore, concluding that there is no express or implied prohibition of law against the county government’s entering into the contract in evidence, can estoppel, in view of the contract and the facts, be invoked against the county government? It is believed that in so holding the trial court has correctly ruled. In the facts the county is in the attitude of suing to recover back from the tax collector the contract price which by order of the commissioners’ court has been once actually paid over to Mr. Standard under his contract and in complete performance thereof. The tax collector manifestly would suffer injury by the denial of such pleaded rule of law. It is the settled rule in this state that estoppel may be invoked against a county where the power to contract exists and is irregularly exercised. Grimes County v. Slayton & Co. (Tex. Civ. App.) 262 S. W. 209. The case of Flowers v. Logan County, 138 Ky. 59, 127 S. W. 512, 137 Am. St. Rep. 347, deals with thoroughness with the aspect of estoppel of a county where there is an illegal expenditure for a legal purpose. A very similar case is Clark v. Logan County, 138 Ky. 676, 128 S. W. 1079.

It is pointed out by appellant that there was error in refusing judgment to the county for the school taxes in suit. It is thought the point must be overruled, in view of the finding of the court “that R. H. Maloney accounted for all monies due by him to the common and independent school districts.” Since there was evidence before the court going to support that finding, this court would not be warranted in distutbing such finding of fact.

The appellant objected to oral proof of the contract in evidence. The commissioners’ court actually passed the order contracting with L. T. Standard, and the contract was acted upon and performed, but the order was never spread at large upon the minutes of the court. The contract was not ineffective because the order was not spread at large on the minutes and can be shown by parol. Ewing v. Duncan, 81 Tex. 230, 16 S. W. 1000. Such proof would not operate to legally set at variance or vacate the separate order as recorded in the minutes directing the tax collector to also collect delinquent taxes. The contract with Mr. Standard was apart from and distinct from the order as to the tax collector and in aid or assistance to the tax collector. There is a difference in the present points made from the points made in the cases cited of King v. Marion County (Tex. Civ. App.) 202 S. W. 1052; Gano v. Palo Pinto County, 71 Tex. 99, 8 S. W. 634; Mosler Safe Co. v. Atascosa County (Tex. Civ. App.) 184 S.W. 324.

We have considered all of the assignments of error, and conclude that they should be overruled.

The judgment is affirmed.

WILLSON, C. J.

I think it appears from the language used in article 7335, R. S. 1925, that the power the Legislature intended to confer upon the commissioners’ court was to contract with an attorney at law (and with no other person) “to enforce or assist in the enforcement of .the collection” of delinquent taxes. The forced collection contemplated could have been accomplished in no other way than by suits in the courts, and only such attorneys could prosecute such suits. Baxter v. City of Venice, 271 Ill. 233, 111 N. E. 111; Kerr v. Regester, 42 Ind. App. 375, 85 N. E. 790. It follows, I think, the commissioners’ court was without power to contract with Standard to enforce, or assist in enforcing, the collection of the delinquent taxes. If it was,’ ap-pellee Maloney was chargeable with knowledge of the fact, and estoppel as against the county was not available as a defense against the recovery sought by the county. In that view, the judgment should not be affirmed.


author: ALEXANDER, J.

text:
    ALDERDICE v. GREAT SOUTHERN LIFE INS. CO. et al.
    No. 1052.
    Court of Civil Appeals of Texas. Waco.
    April 23, 1931.
    Rehearing Denied May 22, 1931.
    James Cornell and R. G. Hughes, both of San Angelo, and L. J. Wardlaw, of Fort Worth, for appellant.
    J. L. Gammon and Farrar & Stoval, all of Waxahachie, Vinson, Elkins, Sweeton & Weems, of Houston, and G. Goodwin Sweatt, of Waxahachie, for appellees.
   ALEXANDER, J.

This was a suit instituted in the district court of Ellis county by J. A. Alderdiee and others, constituting the children .of James Monroe Alderdiee, deceased, by his first wife, against Great Southern Life Insurance Company and Vivian L. Alderdiee, individually and as executrix under the will of James Blonroe Alderdiee, deceased, ‘to recover the amount due under a life insurance policy issued by the insurance company on the life of James Monroe Alderdiee. The appeal involves the ruling of the trial court in overruling pleas of privilege filed by Vivian L. Alderdiee, individually and as such executrix, to be sued in Tom Green county, the county of her residence. The plaintiff alleged that some of the plaintiffs, naming them, resided in Ellis county, that James Monroe Alderdiee at the time of his death resided in Ellis county, where his estate was-then being administered, and that Mrs. Vivian L. Alderdiee, who is the divorced wife of James Monroe Alderdiee, resided in Tom Green county, and that she was the executrix under the will of James Monroe Alderdiee. The home office of the insurance company was alleged to be in Harris county. The plaintiffs alleged that the policy of insurance was originally made' payable to the estate ■of the insured, but was later made payable to Vivian L. Alderdiee, and still later had been assigned by the insured to the plaintiffs. It was alleged that the policy was- in the possession of Vivian L. Alderdiee, and that she was claiming some interest in the proceeds due under the policy.

The insurance company, by way of answer, filed a cross-bill in the nature of a bill of Interpleader, complaining of the plaintiffs and Vivian L. Alderdiee, individually and as executrix of said will, and alleged that there were approximately $6,500 due under the policy, that the policy was first made payable to the estate of insured, and that in 1918, at the request of the insured, the beneficiary had been changed to Vivian L. Alderdiee, and that in 1928, at the request of the insured, the policy had been changed, making the plaintiffs the beneficiaries therein. The policy was alleged to' be in the possession of Vivian L. Alderdiee. The insurance company alleged that Mrs. Alderdiee, individually and as the executrix of said will, and the plaintiffs were each and all claiming the money due under said policy, and that there was a real doubt as to who was entitled to said money, and that the insurance company was unable to determine the true owners of said funds. The insurance company paid the mon-, ey into the registry of the court, and prayed that all parties be cited to appear and show their interest in said funds, and that the court pay the same to the rightful owner-thereof, and the insurance company be discharged.

Vivian L. Alderdiee, individually and as such executrix, before appearance day, filed pleas of privilege to be sued in Tom Green county, both as to tbe original action brought by tbe plaintiffs and tbe plea of interpleader filed by tbe insurance company. Witbin due time tbe plaintiffs controverted tbe pleas of privilege and alleged tbe substance of tbe facts set out in tbe bill of interpleader filed by tbe insurance company, and alleged that 'tbe funds were then on deposit in tbe registry of tbe court in Ellis county, and that tbe tbe contest was over tbe true ownership thereof, and that tbe matter should be litigated in that county. Tbe evidence supports tbe allegations. The trial court, after bearing tbe facts, overruled tbe pleas of privilege. Vivian L. Alderdice individually and as executrix has appealed.

Since the appeal of this ease, Mrs. Alderdice has resigned as executrix under tbe will of James Monroe Alderdice, and the Republic Bank & Trust Company of Waxabacbie has been appointed administrator de bonis non of said estate, and has filed herein a motion to dismiss tbe appeal in so far as said estate is concerned. Mrs. Alderdice, however, in her individual capacity, still insists on having tbe case transferred to Tom Green • county. She contends that she was not a necessary party to tbe original suit filed by tbe plaintiffs, and, since that suit was not filed in tbe county of tbe residence of either of tbe defendants, her plea of privilege should have been sustained.

The plaintiffs duly controverted the pleas of privilege filed by Mrs. Alderdice both in her individual capacity and as executrix under said will. At the time the insurance company filed its cross-action or bill of inter-pleader, there was a controversy existing between Mrs. Alderdice and the plaintiffs as to the true ownership of the funds due under the policy in question. There was a reasonable doubt as to the true ownership of such funds. The insurance company was -willing to pay the funds to the rightful owner, but could not determine who was the rightful claimant and pay over the funds to any one, or group, of such claimants without hazard to itself. Since there was a reasonable doubt as to the true owner, the • insurance company as the stakeholder bad the right, independent of the filing of this suit by the plaintiffs, to select the forum in which the controversy should be litigated, and to file a bill of inter-pleader to have determined the true ownership of such funds, so long as the suit.was maintained in the county of the residence of any one of such claimants. Nixon v. New York Life Insurance Co., 100 Tex. 250, 263, 98 S. W. 380, 99 S. W. 403; Greenwall v. Ligon (Tex. Com. App.) 14 S.W.(2d) 829; McCormick v. Southwestern Life Insurance Co. (Tex. Civ. App.) 35 S.W.(2d) 502; Great Southern Life Insurance Co. v. Kinney (Tex. Civ. App.) 276 S. W. 741; Baber v. Houston National Exchange Bank (Tex. Civ. App.) 218 S. W. 156. the insurance company, by filing its bill of interpleader in Ellis county, filed the same in the county of the residence of some of the original plaintiffs. As to such bill of interpleader, the original plaintiffs in this suit became defendants in the bill of in-terpleader. Mrs. Alderdice, being one of the rival claimants to the funds that bad thus been paid into the registry of the court, was properly joined as one of the defendants therein. the bill of interpleader was therefore lawfully maintainable in Ellis county; that being the county of the residence of some of the defendants in the bill of interpleader. Revised Statutes, art. 1995, subd. 4; Nixon v. New York Life Insurance Co., 100 Tex. 250, 263, 98 S. W. 380, 99 S. W. 403; McCormick v. Southwestern Life Insurance Co. (Tex. Civ. App.) 35 S.W.(2d) 502.

The original suit was maintainable in Ellis county against -the insurance company under subdivision 28, Revised Statutes, article 1995, but, since the suit as originally brought was not filed in the county of the residence of any of the then defendants, if that suit bad stood alone, Mrs. Alderdice would have bad the right to have the suit transferred to the county of her residence, unless she was a necessary party under the terms of Revised Statutes, art. 1995, subd. 29a (Acts 1927, 40tb Leg., 1st C. S., p. 197, c. 92, § 2 [Vernon’s Ann. Civ. St. art. 1995, subd. 29a]). It is not necessary, however, for üs to determine whether she was a necessary party witbin the terms of that section of the statute. At the time of the filing of the pleas of privilege and the hearing thereon, the court bad acquired jurisdiction over the bill of in-terpleader which was properly maintainable in Ellis county as to Mrs. Alderdice. The suit by the insurance company to determine the ownership of the funds' was so closely connected and intermingled with the action of the plaintiffs against the insurance company to recover on the policy and to divest Mrs. Alderdice of any interest in the funds as to constitute but one cause of action properly maintainable in one suit. In order to avoid a multiplicity of suits, the court was authorized to treat the entire matter as one controversy and to try the same in one action. Skipwith v. Hurt, 94 Tex. 322, 60 S. W. 423; Cotton Concentration Co. v. First National Bank of McGregor (Tex. Civ. App.) 245 S. W. 118; Middlebrook v. Bradley Mfg. Co., 86 Tex. 706, 26 S. W. 935; Shafer v. Brashear (Tex. Civ. App.) 274 S. W. 229; Landa v. F. S. Ainsa Co. (Tex. Civ. App.) 231 S. W. 175; Foster v. G. C. & S. F. Ry. Co., 91 Tex. 631, 45 S. W. 376 ; Hardin v. Majors (Tex. Civ. App.) 246 S. W. 100; Humphreys v. Young (Tex. Civ. App.) 293 S. W. 655; Mumme v. Spies (Tex. Civ. App.) 15 S.W.(2d) 137.

The original plaintiffs as such, and as codefendants in tbe bill of interpleader, had the right to contest the pleas of privilege and to put in issue the facts therein alleged. Revised Statutes, art. 2007, does not, by express terms, authorize a codefendant to controvert a plea of privilege. It merely provides that the plaintiff may controvert such plea by the filing of proper affidavit. However, article 1995 of the Revised Statutes gives every defendant the right to be sued in the county of his residence, unless the case comes within one of the exceptions named in the statute. The defendants in the bill of in-terpleader (plaintiffs in the original suit) who resided in Ellis county had the same right to have that action maintained in Ellis county, the county of their residence, as did Mrs. Alderdice to have it transferred to the county of her residence, and they were authorized to controvert the plea of privilege. 40 Cyc. 119. The trial court properly overruled the plea of privilege.

The judgment of the trial court is affirmed.


author: SMITH, J.

text:
    FIRST TEXAS PRUDENTIAL INS. CO. v. CEVALLOS et al.
    No. 8607.
    Court of Civil Appeals of Texas. San Antonio.
    April 29, 1931.
    Rehearing Denied May 20, 1931.
    Templeton, Brooks, Napier & Brown, of San Antonio, for appellant.
    E. B. Chambers and Bat Corrigan, both of San Antonio, for appellees.
   SMITH, J.

This is a suit brought jointly by the beneficiary and an assignee of an insurance policy issued by the first Texas Prudential Insurance Company upon the life of Mamberto Cevallos, now deceased.

The trial court found that in his application for the insurance policy sued- on the insured represented to the company that “he did not have and was not subject to tuberculosis, and that none of his brothers and sisters had ever had tuberculosis.” The court further found:

“That a brother of the deceased assured named Fermín Cevallos had, prior to the date of the application for the issuance of the policy of insurance, been afflicted with tuberculosis, from which affliction he had died prior to that time.
“That a sister of the deceased assured named Jesusita Cevallos had, prior to the date of the application for the issuance of the policy of insurance, been afflicted with and had suffered from hemorrhages of the lungs.
“That the deceased assured had, at one time during his lifetime, been afflicted with tuberculosis, had been treated on two separate occasions for that trouble; that his death was caused from pneumonia.”

Upon these findings the court concluded:

“That the falsity of the representations as to the existence of tuberculosis in the family of the deceased assured and that he was not subject to tuberculosis, made in the application for the issuance of the policy of insurance sued upon, were not material to the risk of insurance assumed by the defendant company in issuing the policy of insurance sued upon, and they did not contribute to the event on which the policy became due and payable, i. e. the death of the assured.”

There appears to be no statement of facts in the case, and none of the provisions of the policy in question appear in the record. The appeal must therefore be determined from the trial court’s findings and conclusions.

Appellant challenges the conclusions of the trial court, contending that the stated misrepresentations of the insured were, as a matter of law, material to the risk of insurance, and therefore voided the policy. We overrule the contention, particularly in the absence of any description of the provisions of the insurance policy or statement of other facts in the case. The statute provides that the question of the materiality of such representations is one to be decided by the court or jury trying the case (article 5043, R. S. 1925), and we are not prepared to say that the trial court’s finding thereon in this case was erroneous, as a matter of law. It appears affirmatively from those findings that the presence of tuberculosis in the insured’s family, or in himself, did not contribute to the áctual risk assumed by the insurer.

The court further found that.“there is no evidence of a demand having been made on the defendant company for the payment of the policy claim,” and yet the court awarded an attorney’s fee of $50 in favor of appellees and against appellant. This was error. Attorney’s fees in such cases are recoverable only by virtue of a statutory provision therefor, and then only when the insurer shall fail to pay the claim after “demand therefor.” Article 4736, R. S. 1925; Ford v. Ins. Co., 103 Tex. 522, 131 S. W. 406.

Because of error in the award of attorney’s fee in favor of appellees, the judgment will be reversed and the cause remanded, unless appellees shall, within ten days, file a remittitur of $50, in which contingency the judgment will be affirmed, at the cost of ap-pellees.


text:
    CANTU v. CENTRAL POWER & LIGHT CO. et al.
    No. 8597.
    Court of Civil Appeals of Texas. San Antonio.
    April 15, 1931.
    Rehearing Denied May 15, 1931.
    John L. Dodson, of Del Rio, for appellant.
    J. M. Wilson, of San Antonio, and J. J. Foster, of Del Rio, for appellee Central Power & Light Co.
    Jones & Lyles, of Del Rio, for appellee Illinois Pipe Line Co.
   SMITH, J.

F. Cantu owns certain tracts of land in Val Verde county over and across which the Illinois Pipe Line Company has laid a pipe line to be used in transporting petroleum oil. The right of way and easement occupied by the pipe line was granted by Cantu to the pipe line company through a certain written contract, in which Cantu did “⅜ * * grant and release to the Illinois Pipe Line Company, its Successors and assigns, the right of way to lay, maintain, operate and remove a pipe line, and erect, maintain and operate telegraph or telephone lines, if the same be thought necessary by said grantee. * * *

“The said grantors to fully use and enjoy the said premises, except for the purposes hereinbefore granted to the said the Illinois Pipe Line Company, which hereby agrees to pay any damages which may 'arise to crops or fences, live stock from the laying, erecting, maintaining, operating or removing of said pipe, telegraph and telephone lines.”

Under this grant the pipe line company entered upon the designated right of way and laid its pipe line, and also set up the necessary poles and appurtenances thereto, and strung a telephone wire thereon, for the purpose of enabling the company to maintain telephonic communication between its employees in the operation of the pipe line. To this servitude Cantu made and offers no objections.

An electric current is necessary to the operation of pumps along the line to force the flow of oil through the pipe lines, and for this purpose the pipe line company employed the power facilities of the Central • Power & Light Company, which in turn required telephonic communication between its pumping stations by which to regulate the power current. Eor this purpose, exclusively, the pipe line company permitted the power company to operate a telephone line on the poles set up by the pipe line company. Cantu objected to the placing and operation of this second telephone line over said right of way, claiming it to be an additional burden upon the' easement granted the pipe line company not contemplated in the grant. Cantu voiced this objection by instituting this suit in the nature of an action in trespass to try title and for damages. The trial court held against Cantu’s contention, and rendered judgment that he recover nothing, and he has appealed.

The controlling question in the case is that of whether the telephone line constructed and operated by the power company upon the right of way granted the pipe line company constitutes an additional and unauthorized burden upon the easement granted. We conclude that the question must be answered in the negative.

The record shows, and the trial court so found by implication, that the use of both telephone lines was reasonably necessary to the maintenance and operation of the oil pipe line. It was expressly provided in the grant that grantee should have the right to “erect, maintain and operate telegraph or telephone lines” over and along the right of way conveyed in the grant, “if the same he thought necessary by said grantee.” This language is plain, and clearly authorizes the construction and maintenance of as many telephone lines as are reasonably necessary to the proper accomplishment of the use to which the easement was to be put under the terms of the express grant.

The telephone lines in question are used •exclusively in the operation of the pipe line, .and are necessary to that operation, and,the •fact that one of the lines is used by the power company, as an agency employed by the grantee in carrying out the purpose of the -grant, rather than directly by the grantee, ■does not affect the question presented here. It cannot be gainsaid that the grantee has •the optional right, expressly given it in the grant, tp itself operate both lines over the right of way, and, the fact that it exercises this right through its agent, the power company, is immaterial so long as that use is devoted exclusively to the purposes of the .grant, as is. the case here.

These conclusions settle the appeal, and, by reason thereof, all other questions sought to be raised by appellant have no bearing upon the merits of the appeal.

The judgment is affirmed.


text:
    H. J. (Jap) LOWE, Appellant, v. CENTRAL POWER & LIGHT CO. and Illinois Pipe Line Co., Appellees.
    No. 8596.
    Court of Civil Appeals of Texas. San Antonio.
    April 22, 1931.
    Rehearing Denied May 15, 1931.
    John L. Dodson, of Del Rio, for appellant.
    J. M. Wilson, of San Antonio, and J. J. Foster and Jones & Lyles, all of Del Rio, for appellees.
   SMITH, J.

The questions presented in this appeal are identical with those presented in the case of F. Cantu v. Central Power & Light Co. et al. (Tex. Civ. App.) 38 S.W.(2d) 876, decided April 15, last, and, for the reasons set out in the opinion in the latter case, the judgment in this cause will be affirmed.


text:
    BRADLEY et al. v. JONES.
    No. 8585.
    Court of Civil Appeals of Texas. San Antonio.
    March 25, 1931.
    Rehearing Granted and Judgment Affirmed April 29, 1931.
    Rehearing Overruled May 29, 1931.
   SMITH, J.

This action was brought by defendant in error, as plaintiff below, to recover of plaintiffs in error the amount of a promissory -note, and to foreclose the vendor’s lien given to secure said note. None of plaintiffs in error’s assignments of error filed in the court below are copied into the brief, but, as the Case went off finally on general demurrer, the action of the trial court thereon, being fundamental, must be considered, even if no error is assigned thereon.

Plaintiffs in error’s first assignment of error urged in their brief is that the “court erred in overruling defendants’ special demurrers to plaintiff’s petition.” As that error, if any, was not assigned in the court below, and is not fundamental, it cannot be considered here.

Plaintiffs in error’s third assignment is that “the court erred in sustaining plaintiff’s several special demurrers to defendants’ second amended original answer, after having sustained the general demurrer.” The proposition under that assignment is that “the court having sustained plaintiff’s general demurrer to defendants’ second amended original answer, there was remaining in court subject to demurrer.” For obvious reasons neither assignment nor proposition can be considered. Even if they were sufficient to invite consideration, they are supported by no statement from the record. Neither the pleadings nor exceptions relating to the assignment are set out in the brief, nor are any record references given by which they may be identified.

It appears from an inspection of the record that the sustaining .of defendant in error’s special exceptions to plaintiffs in error’s answer had the effect of leaving nothing in the latter pleading on the merits but a general denial, and in this situation plaintiffs in error declined ter amend, whereupon the court sustained the general demurrer to their answer, thereby holding, in effect, that their general denial constituted no defense to the cause of action set up in defendant in error’s petition.

We have concluded upon rehearing that the court did not err in this ruling. The suit was upon a liquidated demand, and to foreclose the vendor’s lien, as evidenced by written instruments alleged in the petition to have been executed by plaintiffs in error in the manner provided by law. This cause of action could be affirmatively resisted only by pleas of non est factum, payment, or other defenses required to be specially pleaded. In the absence of such special pleas plaintiffs in error’s general denial constituted no-defense to this suit, and the general demurrer to the answer as a whole was properly-sustained. When, in this situation, plaintiffs in error declined to amend, the court properly proceeded to hear evidence upon the case made by the remaining pleadings. There is-no statement of facts in the record, and it will be presumed that the evidence adduced was sufficient to support the judgment rendered and appealed from.

Defendant in error’s mo’tion for rehearing-will be granted, the original opinion withdrawn, and the judgment affirmed.


author: COBBS, J.

text:
    DAVE LEHR, Inc., v. WACKERBARTH et ux.
    No. 8576.
    Court of Civil Appeals of Texas. San Antonio.
    May 6, 1931.
    Eskridge & G-roce, of San Antonio, for appellant.
    McAskill & Williams, T. M. West, and Hardy & Hardy, all of San Antonio, for ap-pellees.
   COBBS, J.

Appellees sued appellant to recover damages sustained- by reason of a collision between appellant’s truck and appellees’ automobile. Appellees alleged that appellant’s Ford truck, driven by its agent and employee, negligently collided with the automobile operated by John Wackerbarth, in which Emily Wackerbarth was riding; and that, as a result of the collision, appellees’ car was over-turned, and Emily Wackerbarth was seriously and permanently injured, to appellees’ damage in the sum of $10,000. They prayed judgment for that sum, together with $550, expenses necessarily incurred by appellees as a result of said collision.

The court overruled all exceptions, and the case was tried to a jury on special issues. In response to the special issues, the jury found:

“That at the time of the collision the driver of the car was not the servant of the defendant, Dave Lehr;
“But was the servant of the defendant Dave Lehr, Inc.
“And was not the servant of the defendant, Henry Mitchell;
“That such driver negligently failed to sound his horn, such negligence directly caused or contributed to the collision;
“And that such driver was operating the car upon the left-hand side of the street, which was negligence and directly caused, or contributed to, the accident;
“That the driver of such truck was operating the car at a negligent rate of speed which also directly caused or contributed to tbe accident ;
“That the plaintiff was not guilty of contributory negligence;
“And fixed the plaintiff’s damage at the sum of Four Thousand Dollars ($4,000.00).”

Pursuant to such verdict on the 5th day of June, 1930, the court rendered judgment in favor of the plaintiff in the sum of $4,000, as against the defendant, Dave Lehr, Incorporated, but no disposition was made in such judgment of any of the issues as against the defendants Dave Lehr, individually, W. W. Lehr, Henry Mitchell, or Mario Flores.

Motion for new trial was in due time filed, and on the 5th day of July, 1930, was in all things overruled by the court. Supersedeas bond was filed on July 23.

The issues in this ease are short and-simple. The undisputed evidence shows the conflict of the cars and the damage done.

It seems that Dave Lehr was doing business as a contractor in San Antonio, and Mario Flores was driving a truck for Henry Mitchell, and on the day of the accident was driving a truck from Dave Lehr’s yard; that he had an accident at the corner of Pecos and Commerce street at the time he was going back to the yard to return his tickets, and from the yard he was to drive to Henry Mitchell’s home and leave the truck. He was paid for his services at the office of Dave Lehr, and paid by the day. He was employed by Henry Mitchell at the office of Dave Lehr. He was employed by Henry Mitchell, for whom he worked. He was not employed by Dave Lehr, and he never directed Flores, in any of his work, and the latter did not know that there was such a company as Dave Lehr,' Incorporated. He said he never worked for Lehr and never knew him, and knew that the truck, he was operating belonged to Blitchell. There were small signs on some of the box cars indicating that the material in the cars belonged to Dave.Lehr, on the right of way of the I. & G. N. Railroad, but no sign indicating that the truck belonged to Dave Lehr. Henry Mitchell paid Flores $2.50 per day in cash for-his work. Henry Mitchell testified he had been employed by Dave Lehr as shipping clerk and bookkeeper, and that immediately after the accident discharged Mario Flores, the driver of the truck. At the time of the accident, Flores was driving the truck he had bought from W. W. Lehr several months before. Mr. Mitchell further testified that he was running an independent truck business and employed-drivers to operate his trucks and would do hauling for various people, but most of the time would "do independent hauling for Dave Lehr or Dave Lehr, Jr., but would himself pay the driver in cash; that Dave Lehr never paid these drivers, they were paid by Mitchell.

He further testified:

That Dave Lehr’s money did not pay the driver for the wort that he did on the day of the accident in question; that Mr. Lehr never pays them. That Mr. Mitchell was the one that paid them out of his own poctet, and that Mr. Lehr’s company, in getting extra tructs, would use any one’s truct that would apply for the job, and, if the driver of the truct owned such truct, then Mr. Lehr would pay him so much per load for the hauling, but, if Mr. Mitchell happened to be owner of the truct, then Mr. Lehr would pay to Mr. Mitchell so much per load for hauling. ■

That on the day of the accident there was “a bunch of trueles hauling from this same car there,” and, when he heard of the accident, he went down to see the car and had it sent to a garage, and that Dave Lehr did not own this truct, but Henry Mitchell owned the truct, and was trying to mate a living with it, and was being paid $.50 cents per load for hauling this material for Dave Lehr, and that he in turn paid the driver of the truct a regular salary of $12 per weet, which was paid in cash out of Mr. Mitchell’s poctet, and that Mr. Lehr did not have any authority or control whatsoever over this truct or the driver of it on the day the accident happened, nor did he own the truct.

That on the day in question Mr. Lehr did not have a representative seeing to the loading of the truct, nór did he have a representative seeing to the unloading of the truct, but that each driver was in charge of his own truct and controlled it absolutely.

Mr. Mitchell testified that on the day of the accident he owned two or three tructs, and it was one of his tructs that was involved in the accident; that Mr. Lehr did not own the truct, or have any control over it; that Mores was getting paid for driving the truct by Mr. Mitchell; that Lehr paid 50 cents per load for the hauling to Mitchell, and that Mitchell in turn paid Plores $12 a weet; that there were other tructs on the job besides the one .owned by Mitchell; that there were several other tructs on this particular job, and that those other tructs were being paid 50 cents per load, the same as was Mr. Mitchell ; that for his wort for Dave Lehr he was being paid $45 per weet, but this $45 per weet did not include the 50 cents per load that he was being paid for the hauling of this material; that he hauled for others besides Dave Lehr, and would haul for any one who would employ him, and usually hauled on a contract basis, sometimes by the .hour and sometimes by the load; that Mr. Lehr owned three tructs, but they were all Chevrolet tructs.

The testimony showed that, while Mitchell was worting for Lehr, he was doing an independent business for himself by hauling with his tructs for any one, as well as for Lehr, and Mores .was under the control of Mitchell alone, who paid him in person.

A thorough review of the testimony of the witnesses in the-case convinces us that the driver of the truct was worting for Mitchell independently and not for Lehr. He was worting for Mitchell, who owned the truct. He was receiving his orders from Mitchell, Mitchell was paying him his wages, and Mores was not even acquainted with Lehr. There is no valid material testimony found in this record to justify an inference to the contrary.

The court should have given the appellant a new trial upon the facts of this ease. Por the errors committed, the judgment is reversed, and the cause remanded for a new trial.


author: RANDOLPH, J.

text:
    PANHANDLE & S. F. RY. CO. v. WILLIAMS.
    No. 3543.
    Court of Civil Appeals of Texas. Amarillo.
    April 22, 1931.
    Rehearing Denied May 20, 1931.

      Hoover, Hoover & Cussen, of Canadian, and Kinney & Ritchey, of Miami, for appellant.
    Sanders & Scott, of Amarillo, for appellee.
   RANDOLPH, J.

This case was filed in the district court of Roberts county by the plaintiff, Williams, seeking to recover for damages to cattle caused by the alleged negligence of the defendant railway.

A jury was waived, and all matters of fact as well as of law were submitted to the court. On trial the court rendered judgment for the plaintiff, and defendant appeals.

The alleged negligence, as set out in the plaintiff’s petition, consisted of the continuous sounding by the engineer of the engine whistle without reasonable excuse, occasion, or necessity for same, causing the stampeding of the plaintiff’s cattle, which were being driven along the highway alongside defendant’s track, resulting in the death of a number of cattle and injury to others.

Appellee was the owner of approximately six hundred head of cattle, which he was moving from the stock pens of defendant at Miami, Tex., to his ranch in Roberts county. Plaintiff had brought these cattle from the El Oapitan country in New Mexico. They were Texas Herefords, which had been sent out there for pasture, and were being brought to plaintiff’s ranch in Roberts county, Tex.

Regardless of the conflict between the various witnesses’ testimony, we will quote or state such evidence as tends to sustain the trial court’s judgment. If there is evidence to support the judgment, we have no right, under the law, to do else than to affirm the same. Neither will-we attempt in detail to set out the topography of the country along the road being traveled in moving the cattle. It is sufficient to say that the cattle were being driven along the public highway where the owner was entitled to drive them. It is true that the evidence discloses there were other routes ■ the owner could have driven them, but this is immaterial, as they were where they had a right to be on a public highway and were where the law would protect them in the reasonable exercise by the owner of his right to travel said highway. It is also true that the defendant’s engineer had the right, and the law made it his duty, to blow the engine whistle at crossing signals, that whistling posts were placed for his instruction, and that the highway and railroad track being in such close proximity would not change the ordinary discharge of that duty, yet -even then the engineer must perform that duty with due regard to the rights of others, and, if he negligently and continuously caused his whistle to sopnd in such manner as to frighten the cattle, then said whistling might become the basis for a recovery for the injury caused to the cattle. The fact that the highway and defendant’s track run close together is no excuse for defendant’s employees not to use ordinary care, but, on .the contrary, where they are aware of the proximity or. are charged with knowledge of same by the law, the duty of ordinary care in refraining from doing those things that might cause injury to others or their property devolves on such employees. Texas Central Railway Co. v. Boesch, 103 Tex. 256, 126 S. W. 8; F. W. & D. C. Ry. Co. v. Partin et ux., 33 Tex. Civ. App. 173, 76 S. W. 236, writ denied; Adams v. I. & G. N. Ry. Co. (Tex. Civ. App.) 122 S. W. 895.

We will now quote such evidence as sustains the trial court’s judgment upon the question of whether or not the defendant’s employee, in the sounding of the whistle, did so in a negligent manner as to cause the injury to plaintiff’s cattle.

The defendant’s train, as it approached the cattle sounded the whistle in the manner later indicated. The cattle were strung out along the highway for quite a distance, and when the whistling began they stampeded and broke through the fence along the highway and attempted in -their fright to climb adjacent bluffs, some falling back on others and some jumping off of the bluffs. They got away from control of those in charge — three herdsmen — and traveled for a distance of several miles before they could be got under control. J. Y. Williams, son of the owner of the cattle, was leading the herd at the time of the stampede. He testified that at the time of the sounding of the whistle the cattle were just walking along paying no attention to the train and that: “The engineer first sounded the whistle just back of the cattle; that was before the engine got to the bluff. As to how many times he sounded the whistle then, I state that I never counted it but it was several times; there were several blasts of the whistle.. I was watching the cattle. The back part of the herd first started to run, the extreme back end, they started to run up the road northeast toward the front of the herd for a short distance and then they turned to the right when the train got even with them. * * ⅜ when he first whistled, the train was not right even with them, as it was back behind them a short distance — I could not say how far back- — as much as fifty yards, I suppose, and when the whistle blew, I commenced to look after the cattle, trying to take care of them. I was riding back and forth among the cattle, and I continued to do that as long as I could, until they broke over the fence south. Then I went with them. ⅜ * ⅜ You want me to tell the Court h'ow the party in charge of the engine blew his whistle when he passed the herd and I state that he blew a long and a short and every way he wanted to, it seemed'like, and he shot the steam on at the same time, did it all at the same time. The whistle was blown on this train after he reached my position at the front end of the herd. The cattle were traveling the same way the train was. As to how many times I would say that the whistle of the defendant’s train was blown, I could not state the exact number, but he blew it practically all the way from the back end of the herd to the front, end. ⅜ * ⅜ You want me to state if the party operating the defendant’s train showed any signs in any way that he saw what was happening and going on. I state that I could see one of them laughing and he high-balled us. He was a man in'the cab of the engine and that was where the whistling was-coming from, in the engine. He was operating it at the time he high-balled us and was laughing and our’cattle were stampeding and running at the time.”

The evidence discloses that on ,the morning the cattle were turned out of the stock pens, and when they were moving off to the highway, an east-bound freight train passed them, and that it did not frighten the cattle. The trial court had the right to take this into consideration to refute defendant’s contention that the cattle were wild and also as a circumstance that there must have occurred in the operation of the train which stampeded the cattle, something out of the ordinary.

The defendant also assigns error in that it requested the trial court in writing on August 1, 1930, to file his findings of fact and conclusions of law, and that the trial court did not file same until August 30, 1930, which was after the adjournment of that term of the court and not within the time required by law in which same should be filed.

There is nothing in the record to show that this failure of the court to so file such findings and conclusions was ever excepted to, but, if such an exception was reserved and shown by the record, the defendant shows no injury by reason of such failure. There is with and as a part of the record on this appeal a duly approved and authenticated statement of facts, and, it appearing that every contention of the defendant has been preserved, such failure to file the findings and conclusions does not give the defendant the right to have the case reversed. Barfield et al. v. Emery et al., 107 Tex. 306, 177 S. W. 952; Riley v. Austin et al., 112 Tex. 216, 245 S. W. 907.

Finding no reversible error, we affirm the judgment of the trial court.


author: FLY, C. J.

text:
    TEXAS & N. O. R. CO. v. HOUSTON.
    No. 8603.
    Court of Civil Appeals of Texas. San Antonio.
    April 22, 1931.
    Rehearing Denied May 20, 1931.
    W. B. Teagarden and B. W. Teagarden, both of San Antonio, and S. B. Carr, of Floresville, for appellant.
    D. Richard Voges, of Floresville, for appel-lee.
   FLY, C. J.

This is a suit originating in the justice’s court, for the sum of $111, alleged to have arisen by the death of three cows through the negligence of appellant. The cattle were killed while on the cars of appellant en route from San Antonio to Floresville. Appellee obtained judgment in the justice’s court for the amount sued for and $20 attorney’s fees. The cause was appealed to the county court, where it. was tried by jury on special issues, and on the responses .thereto judgment was rendered for the same amount as in the justice’s court. •

The jury found that the appellant received the thirty head of cattle for shipment on June 4, 1929, and that twenty-six were delivered at Floresville, and that there was negligence in transporting and delivering on the part of appellant. The jury found that three of the cattle died while in possession of appellant. The cattle were delivered to appellant on the afternoon of June 4, 1929, in San Antonio, and were delivered at Floresville, thirty or thirty-five miles distant, on the morning of June 6, 1929. The cattle were loaded, then unloaded, then loaded again. The death of the cows resulted from the negligence of appellant in holding the cattle, for over twenty-four hours and not feeding them at the proper time.

Appellant has filed a brief consisting of forty typewritten pages, with twenty-nine as-, signments of error and nine propositions. One hundred and thirty-one dollars are involved.

There was no evidence that the claim was ever presented to appellant or that there was any refusal to pay the claim. The statute requires that, to justify an attorney’s fee in cases like the present one, the claim must be presented, and, if it is not paid in thirty days, suit may be filed, and, in addition to the damages, the plaintiff may recover a maximum attorney’s fee of $20.00. There must be a demand as required by statute. Article 2226, Rev. Stats.; Quanah, A. & P. R. Co. v. Price (Tex. Civ. App.) 192 S. W. 805; Wichita Talley R. Co. v. Wood (Tex. Civ. App.) 284 S. W. 801. It was error for the court to render judgment for the attorney’s fees.

None of the other objections to the judgment will be sustained. 'No objections were urged against the testimony as to the value of the cattle, and appellant will not be heard to urge such objection on this appeal.

If a remittitur of $20, given for the attorney’s fee, is made in ten days, the judgment will be affirmed; otherwise it will be reversed and the cause remanded.


author: WILDSON, O. J.

text:
    INDEMNITY CO. OF AMERICA et al. v. PITTS et al.
    No. 4013.
    Court of Civil Appeals of Texas. Texarkana.
    May 7, 1931.
    Rehearing Denied May 14, 1931.

      Touchstone, Wight, Gormley & Price, of Dallas, for plaintiffs in error.
    E. G. Senter, of Dallas, and J. D. Cottrell, of Plano, for defendants in error.
   WILDSON, O. J.

(after stating the case as above).

The indemnity company insists a cause of action against it was not stated in Florence Pitts’ petition, and that the trial court therefore erred when he overruled its general demurrer questioning the sufficiency of said petition. The allegations of the petition, other than formal ones, are shown in the statement above. From them it appears that the right conferred by the policy on a person injured by negligence of the assured to maintain a suit against the indemnity company for damages, was on the condition that such person secure the written consent of the insured to do so. It not only did not appear from the allegations in the petition that this cau-dition had been complied with, but it affirmatively appeared same 'had not been complied with.

The right claimed to nevertheless maintain the suit is predicated on (1) the allegations in the petition showing that the indemnity company took charge of the defense of Florence Pitts’ suit against Kakisaki for damages; and (2) the allegations charging that -the refusal of Kakisaki to consent that Florence Pitts might sue on the policy was in pursuance of a collusive and fraudulent agreement entered into between him and the indemnity company for the purpose of defeating any effort of Florence Pitts to Drocure from the indemnity company compensation for the injury she had suffered.

In support of the action of the trial court in overruling the demurrer, Florence Pitts insists it appeared from allegations in the petition that Kakisaki, because of his insolvency, owed her the duty to consent that she might sue the indemnity company, and appeared, further, that the refusal of Kakisaki to discharge that duty was a wrong which, if effect should be given to the stipulation in the policy in question, would operate to defraud her of compensation she was entitled to because of the injury she suffered. It is argued, in effect, that to avoid such consequence the stipulation should not be given effect. The members of the court other than the writer concur in that view of the matter, and think the trial court should have overruled the demurrer as he did. The ■writer dissents from that view, and thinks the demurrer should have been sustained.

Florence Pitts was not a party (on the face of same) to the contract she sued on, and had nothing to do with the making of it. No law in existence required Kakisaki to make provision for indemnifying persons injured as Florence Pitts was by his negligence in operating an automobile, and no law required the indemnity company in issuing such policies- as the one in question to provide therein for compensation to a person so injured. Therefore, as the writer thinks, neither the indemnity company nor Kakisaki was under any legal obligation to have Florence Pitts, individually or as one of the general public, in mind while they were making the contract. The act of the indemnity company in contracting . with Kakisaki as it did was a voluntary one, and it had a right to attach any condition not in violation of law or public policy it saw proper to attach to its agreement that persons injured as Florence Pitts was might maintain a suit against it for compensatory damages.

No doubt Kakisaki owed Florence Pitts a moral duty to consent that she might sue the indemnity company on its contract with him. for damages he had caused her and could not pay, but he owed her no legal duty to give such consent. And certainly the indemnity company, if it owed her a moral duty, did not owe her a legal duty in the matter. It had a lawful right to impose the condition it did impose on the right of any other person than Kakisaki to maintain a suit against it on the policy, and the writer knows of no rule of law authorizing this court or any other court to hold to the contrary. As he sees it, the effect of such a holding is to ignore the contract Kakisaki and the indemnity company made and to make one for them.

It is argued, in effect, that the stipulation in the policy that any one injured as Florence Pitts was might, on conditions specified, sue the indemnity company, made her a party to the contract evidenced by the policy. But certainly, if she became such a party, Florence Pitts was bound by the terms and conditions of the contract, and could not maintain suit thereon when, confessedly, a condition upon which her right to do so depended had not been complied with.

The writer does not think a right in Florence Pitts to maintain the suit could be predicated on the allegations in the petition showing the indemnity company to have taken charge of the defense of the damage suit prosecuted by Florence Pitts against Kakisaki. As he understands American Indemnity Co. v. Fellbaum, 114 Tex. 127, 263 S. W. 908, 37 A. L. R. 633, cited by Florence Pitts as furnishing support for her contention to the contrary, the point decided was that the exercise by an indemnity company of a right it had by virtue of its contract to completely take over and carry on the defense of a suit against its indemnitee was inconsistent with and therefore would render ineffective a stipulation in the contract that an action by the indemnitee against it should not lie until he .had satisfied the judgment obtained against him in the suit it so defended.

At the trial, over plaintiff in error’s objection thereto, the court admitted as evidence (1) the judgment for $6,374.35, in Florence Pitts’ favor against said Kakisaki, rendered in said cause No. 70471, and (2) the execution issued on said judgment. It appeared from the sheriff’s return on the execution (not objected to) that the writ was not satisfied because the officer was unable to find in Dallas county any property belonging to Kaki-saki subject to execution. The grounds of the objection to the judgment were that it was irrelevant and immaterial, and had not been properly identified, in that it “was not shown to have come from or been in the custody of any district clerk or any one under the law charged with the custody of court papers.” The ground of the objection to the execution was the same as the one to the judgment last stated above. Both the judgment and execution were records in the office of the clerk of the court trying the case, and we think it should be assumed were in the custody of that clerk a.t the time same were offered and admitted as evidence. Therefore we think it was not error to overrule the objection to the admission of the judgment and execution as evidence on the ground that same were not sufficiently identified. As to the other grounds of the objection, they were plainly untenable we think. It devolved upon Florence Pitts to prove she had obtained a judgment against Kakisaki, and certainly the record showing she had done that was admissible as evidence of the fact.

The contention of plaintiff in error that the court below erred when he overruled its motion that he instruct the jury to return a verdict in its favor is predicated mainly on the fact that it appeared Kakisaki had not consented that Florence Pitts might sue it (plaintiff in error) and the view that Florence Pitts had not discharged the burden resting upon her to prove that Kakisaki was insolvent. That the contention is not tenable on the first one of the two grounds specified was determined when the majority of the members of this court concluded that a cause of. action was stated in Florence Pitts’ petition. The contention ought to be sustained on the other ground, unless it should be said, and we think it should be, that the return milla bona of the sheriff on the execution issued on the judgment in cause No. 70471, and the testimony of .Kakisaki as a witness that he owned no property subject to execution in Texas, warranted the finding (involved in the judgment) that Kakisaki was insolvent. However, it is insisted that the return of the sheriff on the execution alone did not warrant the finding, and that the testimony of Ka-kisaki referred to was subject to the objections urged to it, and therefore should not be treated as furnishing any support for the finding. .We think the testimony was not inadmissible on the grounds urged to it, and overrule the contention to the contrary, as wé do the contention that the finding was without the support of competent evidence.

Contentions not disposed of by what has been said are overruled, because, as we view the record, none of them present error requiring a reversal of the judgment.

The judgment is affirmed.


author: LESLIE. J.

text:
    HOGG v. SINCLAIR OIL & GAS CO. et al.
    No. 756.
    Court of Civil Appeals of Texas. Eastland.
    April 17, 1931.
    Rehearing Denied May 15, 1931.
    Y. W. Holmes, of Comanche, for appellant.
    Frank Sparks, of Eastland, Edw. H. Chandler, of Tulsa, Okl., and Paul A. McD'ermott, and Yernon F. Hillery, both of Fort Worth, for appellees.
   LESLIE. J.

This is a suit by the plaintiff, E. D. Hogg, to recover from the Sinclair Oil & Gas Company et al., under the oil royalty provision of an oil and gas lease, the one-eighth of the amount for which the appellee Sinclair Oil & Gas Company sold the casinghead gas from its wells. The defendants entered a general denial and special defenses! The trial was before the court without a jury, and a judgment was rendered in favor of the defendants, from which the plaintiff appeals. There are no findings of fact or conclusions of law in the record.

In the plaintiff’s petition he alleges that the gas so delivered by the Sinclair Oil & Gas Company was “of the fair market value and of the actual value of $80,000.00; which was all casinghead gas from said lease . * * * and all of which was taken and sold by said Sinclair Oil & Gas Company; and of which the plaintiff shows he is entitled to -one-eighth, himself and wife being the owners of said royalty at all times since the execution of said lease.” As a basis for this claim, plaintiff pleads and relies on the following provisions of the lease contract:

“In consideration of the premises the said lessee covenants and agrees:
“1st. To deliver to the credit of lessor, free of cost, in the pipeline to which he may connect his wells, the equal one-eighth part of all oil produced and saved from said leased premises.
“2nd. * * *
“3rd. To pay lessor for gas produced from any oil well and used off the premises or for the manufacture of casinghead gas, Ten Dollars per year, for the time during which such gas shall be used, said payments to be made each three months in advance.”

Although the judgment went in favor of the defendants, the plaintiff, appellant here, has not challenged the correctness thereof by any assignments of error duly filed in the trial court as required by article 1844, R. S. 1925, which is in part as follows: “Before he takes the transcript from the clerk’s office, the appellant or plaintiff in error shall file with the Clerk of the Court below all assignments of error, distinctly specifying the grounds on which he relies. * ⅜ ⅜ All errors not distinctly specified are waived. * * * ”

There being no appropriate assignments, as said in 3 Texas Jurisprudence, § 572, “an appellate court is not authorized nor required to consider or review an error which is not fundamental, nor to examine the sufficiency of the evidence.” Upon the theory that the trial court, in rendering the judgment, committed fundamental error, the appellant now seeks to have this court reverse the same. In the light of the law and the rules governing this court in reversing for such errors, we have carefully examined the propositions submitted, and are of the opinion that, in view .of the condition of the record presented by the appellant, neither the correctness nor incorrectness of the judgment of the trial court can be determined by this court except upon an examination of the entire statement of facts, which is not, under the law, required to be done in search for fundamental error. As said in Ford & Damon v. Flewellen (Tex. Com. App.) 276 S. W. 903: “When * * * in this case, the only method for determining whether or not a fundamental error has been committed is by going through the entire statement of facts, then that court is not required to pass upon such a question. Any other rule * * * would place an almost unbearable burden upon our appellate courts.” See Egan v. Lockney Farmers’ Co-op. Soc. (Tex. Com. App.) 284 S. W. 937.

The appellant’s specific attack on" the judgment centers in a contention that, in the above “3rd” provision of the covenants, setting out the consideration, the phrase, “or for the manufacture of casinghead gas,” is a senseless and meaningless combination of words, and that being such they should be rejected and totally disregarded; whereupon this provision of the lease contract would become identical with the like covenant found in the lease contract considered in the case of Reynolds v. McMan Oil & Gas Co. (Tex. Com. App.) 11 S.W.(2d) 778, in which event the plaintiff would be entitled to recover under the one-eighth oil royalty provision, as in that case.

In connection with this brief statement of the appellant’s contention it must be observed that the defendants entered a general denial and specially pleaded that, if it be conceded that the casinghead gas royalty clause of the lease be of doubtful construction, nevertheless the lessors had, by their acts and conduct in receiving this portion of the royalties of $10 per well per year, provided by the lease, put upon the casinghead gas royalty clause of their lease their practical construction that, when the casinghead gas from the wells was sold to others for manufacture into gasoline, and was so manufactured, the said lessors were entitled to receive only their proportion of the sum of $10 per well per annum. These matters of pleading are adverted to merely to show that the trial court may have rested its judgment on different theories, the correctness of which could only be ascertained from a review of the testimony in the light of assignments, propositions, and briefing, directing this court’s attention specifically to the trial court’s erroneous rulings.

As the judgment stands, it must be viewed in the light of the rules stated in 3 Texas Jurisprudence, § 748, as follows: “In the absence of a showing to the contrary, it will be presumed that the court based its findings upon the evidence in the case, and gave weight and consideration exclusively to relevant and legitimate testimony.” And the further rule therein stated in section 750 that:. “The possible inference that the court decided the case on a sole issue will not be indulged to destroy the more general inference of an implied finding upon every material issue submitted.”

In the opinion in Graham National Bank v. Beavers (Tex. Com. App.) 290 S. W. 529, the syllabus states the holding of the court on the point under consideration in this language: “Binding that trial court decided case on single issue will not be indulged in to destroy a more general inference of an implied finding on every material issue submitted.”

These observations are made merely to indicate the burden upon appellant to show that the judgment under attack rests upon no sound theory from appellees’ viewpoint. The impossibility of discharging such burden by reaching the vice, if any, in the judgment on the basis of fundamental error, is obvious. In other words, to avoid the judgment, in the light of this record, appellant was under the necessity of destroying every theory on which the judgment is maintainable under the pleadings. Morris v. Alworth (Tex. Civ. App.) 32 S.W.(2d) 238; Graham National Bank v. Beavers, supra.

Eor aught we know, the judgment may, under the pleadings, have been rendered against the plaintiff upon the ground that he failed to show what particular part of the $80,000 obtained for the casinghead gas at the weli was paid for the dry gas and what part for the gasoline content, the elements making up the casinghead gas. Clearly he was not entitled to recover any part of the money received by the lessee for the dry gas under any of the decisions of this state. That belonged to the lessee. Harris v. Lone Star Gas Co. (Tex. Civ. App.) 19 S.W.(2d) 178.

The appellant admits that his contentions, involve fundamental error and claims consideration therefor upon the ground that the case was tried as an “agreed case” under article 2177, R. S. 1925, which provides that “parties may submit matters in controversy to the court upon an agreed statement,” etc., and, when so tried, “the agreed statement is [on appeal] to be considered * * * in the nature of a special verdict.” Hutcherson v. W. O. W., 112 Tex. 551, 251 S. W. 491, 492, 28 A. L. R. 823; Ocean Accident & Guarantee Co. v. Riggins (Tex. Civ. App.) 291 S. W. 276, 277. We do not regard the case as being one tried upon an agreed statement under the statute. To our minds the statement of facts in the record of the instant case is the usual and ordinary statement of facts. The time for filing the same was extended by the trial court, and it was approved by the trial court April 11, 1930, during such extended time, whereas' the judgment was rendered January 11, 1930, at a regular term 6f court beginning the 1st day of December, 1929, and expiring February 1, 1930. It appears to be a statement of facts “prepared independently by the parties and agreed to and approved by the court,” as authorized by one or more of the following articles of the said statute, to wit, articles 2239, 2242, 2243, or 2244. In fact it affirmatively appears from the statement of facts that the case was not tried on an agreed statement of facts submitted under article 2177, supra. In paragraph 2 of the agreement of date October,28, 1929, neither the court nor any one else could know what the evidence at the time was going to be until after the litigants fully developed their respective testimony and the case was closed. Neither is it to be regarded as an appeal upon an agreed statement, provided for in article 2280, R. S. 1925, wherein it is provided that parties may agree upon a brief statement of the case and of the facts proved, which in their opinion will enable the appellate court to determine whether there has been error in the judgment. Under this article it is provided that, if the judge shall approve and sign such a statement, it shall be filed among the papers of the cause, constitute a part of the record, and on appeal or writ of error be copied into the transcript in lieu of such proceedings themselves. The agreed statement found in- this record does not come to this court copied in the transcript.

The holding above indicated . affirms the judgment as to each of the appellees, and their particular contentions require no special attention.

For the reasons assigned the judgment of the trial court is affirmed.


author: HALL, C. J.

text:
    SLAUGHTER v. BLEDSOE INDEPENDENT SCHOOL DIST. et al.
    Na. 3608.
    Court of Civil Appeals of Texas. Amarillo.
    May 13, 1931.

      W. H. Plippen, Jno. T. Gano, and Tom C. Clark, all of Dallas,, for appellant.
    Daniel A. Blair, Levens, McWhorter & Howard, Sehenck & Triplett, and Wilson, Randal & Kilpatrick, all of Lubbock, for appellees.
   HALL, C. J.

This is an action by the appellee school district against E. Dick Slaughter, W. A. Myrick, Sr., and South Plains & Santa Fé Railway Company to recover school taxes, interest, penalties, and costs for the years 1927, 1928, and 1929, and in which plaintiff seeks to foreclose tax liens against 71 tracts of land involved, and described in the petition. Plaintiff sought to also recover attorneys’ fees. That the taxes were delinquent, due, owing, and unpaid is alleged, and further that proper action had been taken by the authorities in the levying of taxes and the issuance of notices., The petition is verified by plaintiff’s attorney.

The defendant Slaughter moved to dismiss the action, first, because the petition shows that no effort had been made by plaintiff to have the suit instituted by the county attorney of Cochran county before employing private counsel; and, second, because at the time of the attempted incorporation of plaintiff the district had fewer than 150 scholas-tics, and further because the petition failed to allege that the taxes sued for were assessed by the county tax assessor or that the rate had been fixed by the commissioners’ court or that the tax rolls were compiled and approved under the direction of the commissioners’ court.

The court overruled the motion. Whereupon Slaughter filed his first amended original answer and cross-action, containing a general demurrer, eight special exceptions, a general denial, and by way of special answer set forth certain matters which were alleged-to be fatal defects in plaintiff’s attempt to establish an assessment of taxes against the property involved, alleging that such assessments were not included in the tax assessor’s regular tax roll, but under a separate and distinct assessment roll for plaintiff; that the same was never approved by plaintiff’s board of trustees and no order of approval ever entered; that no board of equalization was ever appointed to equalize the taxes; that the same were not equalized nor approved by the commissioners’ court of the county; that said tax rolls were not tabulated properly, in that the amount of the tax is not totalled and the amount of assessed value of each column is not carried forward as provided by law; that notices were not issued of a contemplated raise in tax values; that such assessments were arbitrarily made and without due process of law; that the assessment sheets had never been signed by the tax assessor nor accepted by him; that for the years 1927 and 192S no assessment of the property involved was ever made by the tax assessor; that, after the attempted creation of the district by the Legislature, the trustees arbitrarily divided the district between themselyes without authority; that the district now has twq separate boards of school trustees which has created a greater burden of taxation on defendant, in that it has taken away from this district a portion of the taxable property and largely increased the expense of the original district; that • no notices of alleged delinquencies had ever-been issued to the owners of .the land or to defendant.

By cross-action over against plaintiff, Slaughter sought to recover certain taxes paid by him.for the years 1926 and 1927 under mistake, and seeks to recover against his codefendant Myrick, who he alleges was the owner' of the lands in fee simple during that time.

Myrick answered,'setting up substantially the same defenses pleaded by Slaughter.

The railway company answered, alleging that it bad paid the taxes; but, since Slaughter alone has appealed, no further notice will be taken of the other two defendants.

By supplemental petition, plaintiff alleges that, at the time the board determined to file the suit in question, Cochran county had no legally qualified and. acting county attorney; that it called on the district attorney to institute the suit, who failed to do so, whereupon the board of trustees engaged the services of Daniel A. Blair to represent it as attorney.

The trial was had to the court without a jury. The court sustained a special exception urged by Slaughter against the claim for attorney fees.

The defendant filed a motion requesting the court to file findings of fact and conclusions of law. This request was never complied with.

The judgment of the court overruling Slaughter’s motion to dismiss recites that the court heard the evidence. The evidence introduced upon the motion has not- been brought to this court, either in a statement of facts, or by bill of exception. This being the condition of the record, the presumption in favor of the correctness of the court’s ruling obtains. Reference to the motion seems to indicate that the grounds for dismissal, other than those numbered first and second in the motion, raise issues of law rather than of fact.

In the plaintiff’s first supplemental petition, it is alleged that, at the time plaintiff determined to file the tax suit in question, Cochran county had no qualified and acting county attorney. That plaintiff called upon the district attorney of the Seventy-Second district to institute this suit, and that the district attorney failed and refused to do so; that thereafter the board of trustees entered into a contract with Daniel A. Blair, an attorney at law, as its representative in filing the suit. We must presume that the evidence heard by the court sustains this allegation. We are therefore not required to decide whether the statute, articles 7337 and 7343, require plaintiff to have said suit instituted by the county attorney. We must also presume that the evidence showed that there were 150 scholas-tics in the district. We therefore overrule the first and second propositions urged by the appellant.

By the third proposition it is insisted that, plaintiff having merely alleged that the taxes had been assessed and rendered by the proper officials, and failing to allege that the taxes had been legally levied, assessed, valued, rendered, and reported by the tax assessor, the tax collector, and the commissioners’ court of the county; the petition was insufficient to entitle plaintiff to recover.

The record fails to show that any levy of taxes was made at any time and recqrded upon the minutes of the court. It does show that “tax rolls of R. O. Strickland approved,” and at a called meeting “motion by R. E. Al-sup and seconded by I-I. T. Passmore that Board accept tax rolls as presented by R. C. Strickland carried.” This meeting was held June 15, 1928. The same order was made June 12, 1927. P. L. Thacker, who became secretary of the board in April, 1930, testified as follows: “Relative to the system employed out there for the purpose of raising taxes year by year according to these records the different boards made the raise. The board would meet and pass a motion that the taxes would be raised a certain per cent. Erom the records there, I judge a motion of that kind was made and passed on each year from 1927-¡T928 and 1929, raising the taxes a certain per cent by the board and these tax rolls introduced in the record hqre carry that raise with them in that way.”

It will be seen that there is a failure to show that the board ever levied a tax for any amount for either of the years in question; that no order was ever entered upon the minutes of the board, showing the levy, nor was it shown that the required notices were issued to the record owners of the several tracts of land against which foreclosure of the tax liens is sought by the plaintiff. In Geffert v. Yorktown Independent School District, 290 S. W. 1083, there is a full discussion by the Commission of Appeals setting out the duties to be performed by the board and the formalities necessary to put in effect a valid levy and assessment. It is stated in that case that the school board in such matters is a tribunal of limited jurisdiction where its right to proceed depends upon the existence of given facts and the doing of specific things which are jurisdictional. The record should show that there was a quorum present and .the proposition was adopted, that an order should be passed at such a meeting making a levy in due form, and that this order should appear upon the minutes of the board. This being true, the court erred in not sustaining the several exceptions urged to the petition specifying the defects mentioned therein. It follows that the judgment foreclosing the lien when neither the pleadings nor the evidence show a compliance with these jurisdictional precedent conditions is error. Miller v. Crawford Independent School District, 26 Tex. Civ. App. 495, 63 S. W. 894; Hunt v. State, 110 Tex. 204, 217 S. W. 1034; Richardson v. Liberty Independent School District (Tex. Civ. App.) 22 S.W.(2d) 475.

The witnesses J. C. Montgomery, tax collector of the district, and R. C. Strickland, tax assessor in 1928, were permitted to testify orally from the tax rolls, and P. L. Thacker was permitted to testify orally, from what he said were copies of the minutes of the school board, to necessary facts, but neither the rolls nor the minutes were introduced in evidence. Thacker had only been secretary since April, 1930. He testified that the book which he had in his lap did not contain the original minutes, but contained only copies of the originals, and that the originals were in the safe in the school building, and were accessible to him. I-Ie further stated that he made the copy that he testified from about a month before the trial; that the originals were in the safe and were put in a book. The appellant reserved an exception to the admission of all of this testimony because the court admitted it over the objection that it was secondary and that the originals constitute the best evidence. This was error. It is unnecessary to discuss at length the fundamental rules which require the introduction of primary evidence when it is available. 2 Jones on Evidence (2d Ed.) pp. 1396-1406, 1412-1413; Geffert v. Yorktown Independent School District, supra; Earle v. City of Henrietta, 91 Tex. 301, 43 S. W. 15.

It is unnecessary to discuss the alleged error of the court in failing to file findings of fact and conclusions of law, since it probably will not occur upon another trial.

For the reasons stated, the judgment as to the appellant, Slaughter, is reversed, and the cause remanded and affirmed as to the other defendants.


text:
    BENSON v. DONLEY COUNTY.
    No. 3610.
    Court of Civil Appeals of Texas. Amarillo.
    April 13, 1931.
    Cole & Porter, of Clarendon, for appellant.
    R.. Y. King and W. T. Link, both of Clarendon, for appellee.
   RANDOLPH, J.

This suit was filed by Donley county as plaintiff against Benson as defendant, to recover for services rendered by the plaintiff in digging a drainage ditch to drain defendant’s land, which ditch was dug at the request and for the benefit of the defendant. Judgment for the plaintiff. Defendant appeals.

The appellee has urged exceptions to each and every assignment of the appellant and we do not pass on these exceptions, for the reason that the controlling question which we shall decide disposes of most of the assignments and is in the nature of a fundamental error if the appellant is correct in his contention that the county was without power to enter into the contract sued on or to order the work done and for that reason no recovery could be had.

The plaintiff’s petition alleges that a contract was entered into between plaintiff and the defendant for the plaintiff to dig a ditch on defendant’s land for the purpose of draining said land. In the alternative the plaintiff also prays for judgment on quantum meruit for the labor performed and accepted by the defendant.

The plaintiff used its road machinery and road hands in the performance of the work at the request of the defendant. The defendant does not deny making the contract, but asserts a failure of the plaintiff to do the work as requested, which the jury settled by their verdict against him and further that the contract was ultra vires and could not be recovered on.

The case was submitted to a jury upon special issues, under which the jury found; (1) That the defendant sought, by request made through Commissioner Youngblood to the commissioners’ court of Donley county, that the said court cause a drainage ditch to be dug on the defendant’s farm; (2) that the defendant requested through Commissioner Youngblood, the county commissioners of Donley county to use and employ E. Price and plaintiff’s road machinery for the purpose of digging a drainage ditch on the defendant’s farm; (3) that the commissioners’ court of plaintiff county accepted a proposition made by the defendant ’through Commissioner Youngblood to dig the drainage ditch on defendant’s farm; (4) that a quorum of the county commissioners’ court was present and agreed to and did orally accept defendant’s proposition to dig a drainage ditch on defendant’s farm before same was dug; (5) that a price of 10 cents per cubic yard of dirt tó be removed in the digging of such ditch was orally fixed by the commissioners' court in session when a quorum was present ’ as a charge for digging such ditch; (6) that, after the. commissioners’ court had fixed the price for digging the ditch at 10 cents per cubic yard, such price was agreed to and accepted by the defendant; (7) that 7,592 cubic yards of dirt were moved in the digging of the ditch; (8) that the defendant instructed plaintiff’s employee, E. Price, before he began digging the ditch, to begin at a point at the end of the west line of the ditch on the north line of defendant’s farm, running east and west, and then dig on a straight line from ■such point at the end of the ditch along the north line of defendant’s farm in a southwest direction to the head of the gulch, the terminus of the ditch to b.e dug on defendant’s land; (9) that, before beginning digging the ditch, the defendant instructed E. Price, employee of the plaintiff, to dig such ditch upon any one of four locations pointed out by defendant in accordance with the best judgment and discretion of the said E. Price as to the location he should select; (10) that the said E'. Price in the location and digging of said ditch used his best judgment and discretion in making the location and in digging said ditch; (11) that, in digging said ditch in accordance with such discretion of said Price, it was necessary to dig a joart of said ditch to a depth of 3 feet; (12) that it was necessary for the purpose for which the ditch was to he dug that the same was to be dug to the depth of 3 feet, and that same, amounted to 1,350 feet. There are other answers not material here.

The appellant insists that a recovery of the price named in the contract for the work to be done by the plaintiff or of a recovery of same under quantum meruit cannot be had upon the contract or the quantum meruit, for the reason that said contract on the part of the plaintiff was ultra vires, but that the only liability for such work done by the county’s agents was a right of recovery on the part of the county against its four commissioners along with the defendant for all sums as represent the wear ánd tear of the machinery, for wages, oil, gas, grease, etc., misapplied by plaintiff’s said agents in doing the work under the contract.

We cannot assent to this-proposition in so far as the county’s action against the defendant is concerned. We do not care to discuss the liability of the commissioners’ court for the recovery of misapplied county funds in doing the work called for by the contract. The proposition upon which we base our decision in the case is that, the contract being an executed .contract upon the part of the county, notwithstanding it was ultra vires, the county could recover the contract price, under its plea of quantum meruit, because the defendant, having received the benefits under such contract, could not defeat the county’s recovery on the ground of its'being ultra vires.

In the case of Albright v. Allday, 37 S. W. 646, 652, the Dallas Court of Civil Appeals held that, where the nonavailable school fund in charge of the commissioners’ court of Cass county was loaned out by the commissioners and while the contract of lending was ultra vires the borrower is not in an attitude of •denying the authority of the commissioners’ court to make the loan.

The rule is applied in this case as to the defendant, who has received the benefits under the contract, no't being in an attitude of being able to plead ultra vires as is applied in the matter of the disability of married women and minors who are resting under disability of not being capacitated to make a contract. Both married women and infants. who have entered into contracts while resting under coverture or minority, can plead their disability, but the party who has received the benefits of the contract, cannot do so. Kollaer v. Puckett (Tex. Civ. App.) 232 S. W. 914, 917; 31 C. J. 1067, § 163.

A party dealing with a corporation is estopped to deny the authority of the corporation to make the contract where he has received the benefits; that is, where the corporation has performed its part of the contract. 14A C. J. 330, § 2172; City of Corpus Christi v. Central Wharf & Warehouse Co., 8 Tex. Civ. App. 94, 27 S. W. 803; Lange Soap Co. v. Ward (Tex. Civ. App.) 269 S. W. 851; Taylor v. Callaway, 7 Tex. Civ. App. 461, 27 S. W. 934; Bond v. Terrell Cotton, etc., Co., 82 Tex. 309, 18 S. W. 691; Hill County v. Bryant & Huffman, 118 Tex. 359, 16 S.W.(2d) 513.

For the reason that the work agreed to he performed by the county had been fully performed and that the defendant had received the full benefit thereof, the defendant is es-topped from pleading ultra' vires as a defense to the county’s suit.

All assignments of error are overruled, and the trial court’s judgment is affirmed.