author: HALL,' O. J.

text:
    CENTRAL STATES POWER & LIGHT CORPORATION v. BROWN.
    No. 3558.
    Court of Civil Appeals of Texas. Amarillo.
    May 13, 1931.

      Cook, Smith. & Teed, of Pampa, for appellant.
    S. D. Stennis and W. M. Lewright, both of Pampa, for appellee.
   HALL,' O. J.

The appellee Brown filed this suit to recover of appellant damages resulting from personal injuries, alleging that about June 7, 1928, he was occupying certain premises situated on the highway between Pampa and Bowers City, 4½ miles south of the town of Pampa. That appellant had a gas pipe line running along the east side of said highway, through which gas was furnished from the Bowers Gas Eield to the town of Pampa. That the pipe constituting the line was buried beneath the surface. That on the afternoon of said day, when he returned from Pampa in his automobile he found that the pipe line had been dug out of the ground by appellant ■and moved up on the extreme side of the highway over and onto the premises occupied by-appellee and across an entrance way which appellee was compelled to use in going from the highway to his premises. That appellee, in endeavoring to enter his yard, was not able to drive his automobile over the pipe, due to the fact that the pipe was moved by the weight of the automobile. That endeavoring to cross the pipe, appellee had his son hold a board stuck in the ground against the pipe while another son attempted to drive the automobile and while appellee was pulling on the front end of same. That the pipe line parted when struck by the automobile, and, due to the extreme gas pressure therein, one end struck appellee upon the ankle, causing him to suffer a broken ankle and other specific injuries. He alleges that the appellant was negligent: (1) In placing the line of pipe upon the aforesaid crossing without burying it beneath the surface; (2) in constructing the pipe line with old, secondhand, rotten pipe, incapable of sustaining the pressure then and there being used by appellant; and (3) in failing to construct a proper passage for appellee to use in gaining access to his residence.

In answer the appellant alleged that it had a right of way across the premises occupied by appellee and over which its line of pipe was lying; that the county authorities were widening the state highway, and that appellant had dug up and moved the pipe to where it was to accommodate the county; that the line had to be moved 500 feet at a time to avoid disconnecting the pipe and thereby cutting off the gas supply to the city of Pampa; that the particular section of 500 feet in front of ap-pellee’s residence had been dug up and moved late in the day not leaving time to bury it beneath the surface. That by virtue of its right of way, its rights were superior to those of appellee; that the pipe line was in good condition; that there were other roads available to appellee for the purpose of entering his premises; that appellee had attempted to pry the pipe line back into the borrow pit along the highway and was guilty of contributory negligence in so doing and in'not using other roads to reach his premises; in attempting to move the pipe line by means of a pole or post when the weight of it was such that it required twenty or thirty men to place it in position; in attempting to use sufficient force to move it when he knew it would result in the dresser couplings giving way.

A trial to a jury resulted in a verdict and .judgment against appellant in' the sum of $2,400.

The court submitted issues to the jury upon each of the alleged grounds of negligence. The jury answered these issues in the affirmative, and that such negligence was the proximate cause of the appellee’s injuries. In response to issues submitting the alleged ground's of contributory negligence, the jury' found against the appellant.

The appellee objects to the consideration of appellant’s propositions numbered 6 to 14, inclusive, upon the grounds that they are multifarious, duplicitous, and are not distinct specifications of error.

Since the amendment of Revised Statutes, articles 1757 and 1846, liberalizing the rules with reference to the preparation of briefs, we are not inclined to sustain the objections until the Supreme Court has formulated new rules based upon these amendments.

Appellee further contends that, because appellant failed to move for an instructed verdict and failed to object to any of the issues that were submitted, it is precluded from contending in this court either that there is no evidence to support certain issues or that the evidence is insufficient to support certain other issues.

In Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S. W. 1030, it is held that a failure to object to a special issue does not prevent the complaining party from insisting that the evidence is insufficient to support the issue where the evidence is conflicting. Berkins v. Lightfoot (Tex. Civ. App.) 10 S.W.(2d) 1030; Navar v. Eirst National Bank of Breckenridge (Tex. Civ. App.) 254 S. W. 126.

R. S. art. 2190, expressly provides that: “A claim that the testimony was insufficient to warrant the submission of an issue may be complained of for the first time after verdict.”

However, as we understand the rule, it is different with reference to assignments of error to the effect that there is no evidence to sustain the issue.

The Commission of Appeals in Rosenthal Dry Goods Co. v. Hillebrandt, 7 S.W.(2d) 521, 523, said; “Our examination of the evidence convinces us that the issue [unavoidable accident] was raised and, moreover, having been actually submitted without objections by eithpr party, neither party can raise the question there is no evidence to authorize the submission”- — citing Gulf, T. & W. Ry. Co. v. Dickey, 108 Tex. 126,187 S. W. 184; Gonzales v. Flores (Tex. Civ. App.) 200 S. W. 851; Texas, etc., Ry. Co. v. Barton (Tex. Civ. App.) 213 S. W. 689.

We shall therefore consider such propositions as challenge the sufficiency of the evidence and disregard those which insist that there is no evidence to warrant the court in submitting the several issues complained of.

The appellant filed general demurrers, some of which are erroneously termed special exceptions, to the plaintiff’s pleadings as a whole and to certain facts separately alleged therein! These demurrers were all overruled. The first four propositions challenge the correctness of the court’s ruling. We have carefully considered the pleading and overrule the propositions. We think plaintiff states a cause of action good against the demurrers urged by appellant.

By the fifth proposition it is insisted that the court erred in refusing a new trial when it appears that the verdict against appellant is' contrary to the undisputed evidence, in that the undisputed evidence shows that the injuries complained of by the appel-lee, and for which judgment was rendered, were caused by the acts of a third party and by the acts and conduct of appellee amounting to contributory negligence, etc. If the evidence against the verdict was undisputed, it follows that there is no evidence to sustain it, and the appellant, having failed to object to the submission of the issue in the trial court, brings itself within the rule announced in the Rosenthal Dry Goods Go. Case, supra.

By the sixth proposition it is contended that the answer of the jury to special issue No. 1 was contrary to the undisputed evidence in the case. For the reasons stated above, this proposition is not entitled to consideration.

By the seventh proposition it is insisted that the answer of the jury to special issue No. 2 “is contrary to the great preponderance -of the undisputed evidence,” which we construe to also mean that there was no evidence to sustain the jury’s finding.

We find that all of the propositions, except the tenth, which attack the several findings of the jury, are to the effect that the findings are contrary to the undisputed evidence or to the great preponderance of the undisputed evidence. They must, therefore, be disregarded.

The tenth proposition is as follows: “It appearing that the answer of the jury to special issue No. Five wherein it found that the negligence of appellant in constructing its pipe line of old, second hand, rotten pipe, incapable of carrying the gas pressure then and there being used in the same by appellant was a proximate cause of the accident and injury sustained by appellee, was contrary to the great preponderance of the evidence, it was error for the trial court to refuse a new trial to appellant.”

As we construe the proposition, the insistence here is that the evidence is insufficient to sustain that finding of the jury. While the testimony of the several witnesses is sharply conflicting with reference to the condition and age of -the pipe, there is sufficient testimony to sustain the finding.

By. the fourteenth and last proposition it is insisted that the verdict for $2,400 is grossly excessive and discloses that the jury was prompted by prejudice and improper influence in -rendering it for that amount. If the testimony of the appellee and his witnesses with reference to the nature and extent of his injuries and suffering is to be believed, the verdict, in our opinion, is not excessive, and we do not feel warranted in setting it aside.

Finding no reversible error in the record, the judgment is affirmed.


source: Caselaw Access Project

author: COBBS, J.

license: Public Domain

text:
    WINFIELD v. CONYERS.
    No. 8606.
    Court of Civil Appeals of Texas. San Antonio.
    April 29, 1931.
    Rehearing Denied May 20, 1931.

      H. J. Passmore, of Robstown, for appellant.
    E. B. & Howell Ward, of Corpus Christi, for appellee.
   COBBS, J.

Appellee filed this suit against appellant and T. C. Stubbs, in the district court of Nueces county, to recover the sum of $2,500 as commission on the sale of certain land situated in Nueces county.

T. O. Stubbs answered by general denial, and C. F. Winfield filed a plea of privilege to be sued in Tyler county, Tex., the county of his residence. The court, after a hearing on the plea ’of privilege, decided against Win-field and held the case properly brought in Nueces county.

The venue is claimed to be properly in Nue-ces county because it is alleged that Winfield listed with appellee, Conyers, certain property belonging to Winfield, situated in Nueces county; that appellee procured T. O. Stubbs as a purchaser for the land, and, in any event, the appellant Winfield and Stubbs were brought together through the efforts of ap-pellee; that the sale was consummated between the defendant Stubbs and appellant, Winfield, at a price of $50,000; that after ap-pellee had procured said Stubbs as a purchaser, the defendants Winfield and Stubbs entered into a conspiracy with each other to defraud appellee' of his commission of $2,500, which he was entitled to as a broker for making such sale. It was alleged that the conspiracy and fraud upon appellee was consummated in Nueces county.

It was alleged that in order to evade the payment of the commission to appellee, defendants agreed to and did secretly and directly with each other arrange matters so as to defeat appellee’s right to his- commission.

Upon the hearing of the plea of privilege, I. N. Conyers testified that he was a real estate broker, and that appellant listed this land with him; that Stubbs inquired of him who owned it, and asked what Dr. Winfield wanted for it, of which inquiry witness advised appellant Winfield; that thereafter, in August, 1929, appellant Winfield inquired if the witness had a prospective purchaser, and was told the only prospect was1 Stubbs; that the same day appellant said he believed he would take the property off the market; witness understands now this was after Win-field “had already sold it.” Winfield did not tell Conyers he had sold the land. Stubbs told the witness that he had a letter from Dr. Winfield asking him to send the contract or deed back to him. “He said he was going to do it and wait two years and by that time my commission would be barred by limitation, and he was going to see that I didn’t get any commission out of that deal. I had a letter from Dr. Winfield too.”

We have taken appellee’s own statement of the contents of his own pleading, and his statement of the evidence on the point. There is no allegation of any actual fraud committed in Nueces county that would justify a suit against a nonresident person who had no personal interest in the land or contract, at least such as would permit a suit to be filed and maintained against him in a county other than his own domicile. This suit is filed for commission on a sale of land, which is simply upon a breach of contract for the failure to carry out a trade and pay commission, without any fraud or trespass or tort in it alleged committed by either defendant, and, none especially committed by Stubbs. All the evidence shows relative to him is that he bought the land. There is not shown any evidence of fraud or conspiracy with which Stubbs is connected. The alleged injury grows out of the failure of Winfield to pay a commission, which appellee alleges he has earned. Stubbs only helped him earn this commission, by buying the land. And, as appellant says: “If Stubbs hadn’t done all the evidence herein shows he did do, the plaintiff would not have even a claim against Win-field for commission. If Stubbs’ act in buying the land (which is all the evidence herein shows he did) affected Conyers at all, it ena-. bled him to earn his commission, instead of damaging him any. Plaintiff’s damage, if any, is not the proximate and direct result of any act done by Stubbs. The allegations of the petitions and of the controverting affidavit so show. ⅜ ⅛ ⅜ The facts alleged show just a simple breach of contract by Win-field, — nothing more.”

Where there is fraud, and the suit relates to it, and asks relief from its effects, and the facts are properly pleaded, then the suit may be brought in the county where the fraud wa-S committed. But where there is only a breach of contract really alleged, and no facts alleged in the petition, and especially where there are no facts of fraud proven, as in this case, such exception to general venue does not apply. There must be evidence of resident defendant’s participation in the wrong alleged. Hood et al. v. Askey et al. (Tex. Civ. App.) 270 S. W. 1047.

Really no actionable conspiracy is shown; at any rate, the evidence introduced does not show any exception to exclusive venue in the 'county of the defendant’s residence, which is Tyler county, Tex.

We do not think there is any pleading or evidence to justify the venue of the suit in Nueces county against appellant, O. P. Win-field. It is therefore ordered that the judgment of the district court overruling appellant’s plea of privilege be reversed and said cause, as to appellant, O. E. Winfield, be transferred to the district court of Tyler, Texas.

Reversed and remanded with instructions.


author: HICKMAN, C. J.

text:
    WHITTINGHILL et al. v. OLIVER et al.
    No. 861.
    Court of Civil Appeals of Texas. Eastland.
    May 1, 1931.
    Rehearing Denied May 29, 1931.
    R. G. Hughes, of San Angelo, for appellants.
    Morrison & Morrison, of Big Spring, for ap-pellees.
   HICKMAN, C. J.

This suit was instituted as a direct attack in the nature of a bill of review upon a judgment of the district court of Howard county. A general demurrer to appellants’ petition was sustained, and, they declining to amend, the suit was dismissed. Appellants in their brief have epitomized their petition in the following language:

“Generally appellants’ petition was in the form of a suit brought to set aside a judgment rendered less than four years ago in the same court, in which suit all of the original parties to the judgment sought to be set aside were joined. The judgment which was attacked was one rendered in Cause No. 1031 on the docket of the District Court of Howard County, Texas, in September, 1926. That suit was filed by R. C. Oliver, as the surviving husband of Rose Oliver, against ‘Jewel’ and J. C. Whittinghill, to recover the value of the said R. C. Oliver’s interest in certain diamonds, which was alleged to be $3115.00. It was alleged that Rose Oliver died February 23, 1926, and said. suit was instituted less than four years after her death. Some of the diamonds were alleged to be the separate property of R. C. Oliver; some were alleged to have been the separate property of Rose Oliver; and the others were alleged to be the community property of R. C. Oliver and wife Rose Oliver.
“It was further alleged that J. C. Whitting-hill and ‘Jewel’ Whittinghill, who was the daughter of Rose Oliver, converted all of said diamonds. The petition further alleged that ‘Jewel’ Whittinghill and J. C. Whittinghill were residents of Williamson County, Illinois. Attachments were issued in said cause and levied upon certain lands in which ‘Jewel’ (Al-vina) Whittinghill had an interest, which attachment liens were later foreclosed and Al-vina Whitting-hill’s interest was sold.
“Appellants in thfe instant suit alleged that the judgment rendered in said cause No. 1031, which was-by default, and the ancillary foreclosure sales, 'were irregular, invalid and void and should be set aside for the following reasons:
“(a) The petition in suit No. 1031 was insufficient to justify or authorize the issuance of the writs of attachment which were issued.
“(b) The service of non-resident notices upon defendants was imperfect and not sufficient upon which to base a judgment by default.
“(c) The petition in said cause No. 1031 was subject to a general demurrer, and hence not sufficient to support a judgment by default.
“(d) The judgment in said cause was rendered upon false testimony.
“(e) Defendants in said suit 1031 had legal and sufficient excuse for failing to appear and defend such suit.
“(f) That there was a misnomer of parties in said suit, Alvina Whittinghill being sued as Jewel Whittinghill.
“(g) That said suit 1031 was fraudulently brought for the purpose of wiping out the interest of Alvina Whittinghill in the estate of her mother, Rose Oliver.”

The petition does not present a case of an attack upon a judgment void on its face. There is no allegation of a want of service or that the record does not disclose a proper service of notice upon the Whittinghills. The judgment in cause No. 1031, made a part of plaintiffs’ pleading, recites: “But the defendants, though duly cited and notified in manner required by law, and for length of time to require that they appear and answer at this term of this court, came not.”

The controlling question presented is, Does the petition exonerate appellants from inexcusable neglect in failing to answer in the original suit and present their defense thereto, or to move for a new trial at the term at which thé judgment was rendered? A petition seeking relief from a judgment of a court of competent jurisdiction, regular on its face, must show by allegations of fact a sufficient equitable excuse for failure to defend or timely seek a new trial. Anderson v. Oldham, 82 Tex. 228, 18 S. W. 557; Republic Supply Co. v. Weaver (Tex. Civ. App.) 235 S. W. 684; First Nat. Bank of Big Spring v. Hartzog (Tex. Civ. App.) 192 S. W. 363; Home Benev. Ass’n v. Boswell (Tex. Civ. App.) 268 S. W. 979; Allen v. Frank (Tex. Civ. App.) 252 S. W. 347; R. A. Toombs Sash & Door Co. v. Jamison (Tex. Civ. App.) 271 S. W. 253; Schultz v. Burk (Tex. Civ. App.) 227 S. W. 700; Davis v. Cox (Tex. Civ. App.) 4 S.W.(2d) 1008; Wakefield v. Burchers (Tex. Civ. App.) 4 S.W.(2d) 218; Maytag S. W. Co. v. Thornton (Tex. Civ. App.) 20 S.W.(2d) 383; Scott v. McGlothlin (Tex. Civ. App.) 30 S. W.(2d) 511.

The petition alleges irregularities in the service, but there is no allegation that the plaintiffs did not know of the pendency of the suit against them. On the contrary, it is alleged, as the only reason for their failure to appear and answer in the original suit, “that they were at that time in meager circumstances, and were unable to make a trip to Texas to defend such suit, and were not able to employ attorneys to represent them therein.” That is not a sufficient allegation of diligence, but, even if it were, the petition as a whole discloses that they were not too poor to defend the suit. They allege the ownership by Mrs. Whittinghill of an interest in the lands and other property belonging to Mrs. Oliver during her lifetime. They also allege that Oliver had in his possession diamonds belonging to Mrs. Whittinghill of the value of more than $3,000. Such disclosures contradict the general allegation that they were-too poor to defend the suit. They alleged no facts showing any effort to employ counsel. A decree of a court may not be thus lightly set aside.

We cannot sustain the contention that diligence was not required of Mrs. Whitting-hill, even though she was laboring under the disability of coverture. The precise question of whether a married woman must exercise diligence to defend a suit brought against her has been more than once determined by our Supreme Court. In the case of Cayce v. Powell, 20 Tex. 767, 73 Am. Dec. 211, this language is used: “It is a consequence of the capacity of the wife to sue and be sued in her own right, in certain cases, that she must be held to the use of the ordinary diligence of other suitors, where she is not specially exempted by law from the use of such diligence.”

The question was again clearly presented in the case of Gamel v. City National Bank (Tex. Com. App.) 258 S. W. 1043, and the rule above quoted was reaffirmed.

It is claimed that the petition in.the original suit was subject to a general demurrer on account of its failure to allege that there was no necessity for an administration upon the estate of Rose Oliver, deceased. The case of Youngs v. Youngs (Tex. Com. App.) 26 S.W.(2d) 191, is relied upon to support this contention. The suit by Oliver in the original case was not alone for property which descended to him as an heir of his deceased wife, but he was suing’ as well for his share of the community/ and for property alleged to have been his separate estate and converted by appellants. The failure to negative the necessity of an administration on Mrs. Oliver’s estate was therefore not fatal to a portion of the cause of action, and a general demurrer, had it been interposed, should not have been sustained.

It is claimed that the attachment should be quashed and the sale thereunder set aside, because the demand upon which the attachment was issued was not liquidated. Assuming, without holding, that an attack could be made on that portion of the judgment, in the absence of a showing of diligence, the contention is without merit. Article 281, R. S. 1925, provides for the issuance of attachments on unliquidated demands against persons upon whom personal service cannot be obtained within this state.

The judgment is not void because appellant Alvina Whittinghill was sued under the name of Jewel Whittinghill. The petition in the original suit, as well as the notices issued thereunder, made it certain that Alvina Whittinghill was the real person sued. Jewel Whittinghill was alleged to be the daughter of Rose Oliver, deceased, and the wife of. J. C. Whittinghill. Rose Oliver had but one daughter, and she was the wife of J. C. Whittinghill. Appellants’ petition in this suit alleges that “Alvina Whittinghill is the defendant named Jewel Whittinghill in said Cause No, 1031.” The question here presented has been expressly decided by our Supreme Court. McGhee v. Romatka, 92 Tex. 38, 45 S. W. 552; Abilene Ind. Tel. & Tel. Co. v. Williams, 111 Tex. 102, 229 S. W. 847.

In the first case cited it was held that a judgment against Alpheus McGhee was binding on Jinks McGhee, where the citation contained sufficient facts to show that Jinks McGhee was the real party intended to be sued. It was there held that such error could be availed of only by a plea in abatement in the original suit. The question was reviewed at length by Justice Greenwood in the case last above cited, and the rule announced in the McGhee Case expressly reaffirmed. Some later authorities to the same effect axe Arcola Sugar Mills Co. v. Doherty (Tex. Civ. App.) 254 S. W. 650; Duncan v. Smith Bros., 113 Tex. 555, 260 S. W. 1027; St. Louis, B. & M. Railway Co. v. Dallas, etc., Co. (Tex. Civ. App.) 268 S. W. 769; Wieser v. Thompson Gro. Co. (Tex. Civ. App.) 8 S.W.(2d) 1100; Brockman v. Echols (Tex. Civ. App.) 22 S.W. (2d) 686.

It is our conclusion that the judgment under attack was not void, and that, since the petition affirmatively discloses that the plaintiffs herein exercised no diligence whatever to present their defense to the original suit, or to obtain a new trial thereof, same was subject to a general demurrer.

The judgment of the trial court will therefore be affirmed.-


author: LE(VX, J.

text:
    ENGLISH et al. v. KERMIT TOWNSITE CO. et al.
    No. 4010.
    Court of Civil Appeals of Texas. Texarkana.
    April 16, 1931.
    Rehearing Denied April 23, 1931.

      J. Lee Zumwalt and O. L. Wolf, both of Dallas, for appellants.
    . Allen & Allen and Coke & Coke, all of Dallas, for appellees.
   LE(VX, J.

(after stating the case as above).

The question on appeal is simply that of whether or not in the particular record there was error in denying the immediate appointment of a receiver and in not continuing the preliminary injunction in force until the final trial of the case on the merits. The ' in/eliminary injunction issued by the trial judge, as it appears, was directed to the “Hermit Townsite Company” commanding it “to desist and refrain from selling any properties under the deed of trust, and from transferring any of its assets to the First National Bank of Dallas or any other person, until the further order of the district court of the 6Sth Judicial District, to be holden at 10:00 o’clock A. M., Monday, September 8, 1930.” The language of the fiat reasonably shows that the judge intended to have the preliminary injunction to operate and be in force, not for and until such time as the case should be finally tried and disposed of, but for and until the fixed time only of “Monday, September 8, 1930,” the date of appearance for a further hearing of the application. In this view of the effect of the preliminary order of the judge, then the order was purely provisional in its nature, and expired on September 8, 1930, since there was no further hearing had or order of continuance of such provisional injunction on that date. Ex parte Zuccaro, 106 Tex. 197, 163 S. W. 579, Ann. Cas. 1917B, 121; Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14. The application to dissolve the injunction was not filed until September 25, 1930, and the order of dissolution was not made until October 25, 1930. As a legal consequence, the order of October 25th in terms directing the dissolution of such preliminary injunction was a vain act, for such previous' order of the judge had already expired on September 8,1930.

Assuming, though, that the plaintiffs' reply to the defendants’ motion for dissolution should be taken and regarded in the nature of either an application at that date for a preliminary injunction or in the renewal and continuation of the terms of the same provisional order, it nevertheless seems, in the examination of the record, that the appellate court would not be warranted in holding that the trial judge was not justified, and erred, in refusing to direct a restraining order in advance of the final trial of the ease on the merits. In looking to the petition and fairly construing it, the plaintiffs, as a remedy'for the alleged condition of affairs, wanted a receiver to be appointed to take charge of and administer the affairs and assets of the Townsite Corporation, and they prayed to have such receiver “immediately appointed.” As an incident or aid to the “immediate” appointment of the receiver, the plaintiffs further prayed that an injunction be granted. The temporary injunction was sought contemporaneous with the “immediate” appointment of a receiver in the purpose merely to relieve •against impediments that would otherwise apparently operate to render the immediate appointment of a receiver ineffectual or incomplete. The appointment of a receiver being refused, as was done by the trial judge, in advance of a final trial of the ease, a temporary restraining order, intended merely as an incident or adjunct to the relief of appointment of a receiver, was properly denied. Leary v. Coal & Wood Co. (Tex. Civ. App.) 185 S. W. 665. It would have been manifestly improper to have restrained the company and its officers from carrying on the business of the corporation and thus leave it without any, management either by its officers or receiver. And, moreover, in taking the view that the prayer of the plaintiffs’ petition asked for the distinctive relief of injunction, aside from the appointment of a receiver, merely to hold the properties 'and assets of the corporation in statu quo, there is lacking certainty that such prayer of the petition, fairly construed, specifically asked for a temporary injunction. A temporary injunction will not be granted, unless specifically prayed for. Boyd v. Dudgeon (Tex. Civ. App.) 192 S. W. 262; Hoskins v. Caubie (Tex. Civ. App.) 198 S. W. 629.

The refusal to appoint a receiver is not the subject-matter of review. No appeal lies from an interlocutory order denying appointment of a receiver. Swearingen v. Swearingen (Tex. Civ. App.) 165 S. W. 16; Tipton et al. v. Rwy. Postal Clerks Inv. Ass’n et al. (Tex. Civ. App.) 173 S. W. 562; article 2250, R. S.

The judgment of the trial judge is affirmed.


author: BARCUS, J.

text:
    PARK PRESBYTERIAN CHURCH OF ITALY et al. v. WM. CAMERON & CO., Inc., et al.
    No. 1050.
    Court of Civil Appeals of Texas. Waco.
    April 16, 1931.
    Rehearing Denied May 28, 1931.
    John T. Suggs, Jr., of Dallas, for appellant Southern Surety Co,
    , Thompson, Knig-ht, Baker & Harris, of Dallas, for other appellants.
    J. L. Gammon, of Waxahachie, and Sleeper, Boynton & Kendall, of Waco, for appel-lees.
   BARCUS, J.

This suit was instituted by appellee, Wm. Cameron & Co., Inc., hereinafter called Cameron & Co., against the Park Presbyterian Church of Italy, hereinafter called churcfi, and Owens-Nash Construction Company, hereinafter called contractor, and the Southern Surety Company, hereinafter called surety.

In January, 1926, Owens-Nash Construction Company made a contract with the church to erect a building for it at an agreed price of $16,745, and executed a bond with the Southern Surety Company, as surety, conditioned that the contractor would complete the building and pay for all labor and material used in its construction and deliver same clear of all liens to the church. The contract between the church and the contractor, which was made a part of the bond,’ provided that: “All payments (under the contract) shall be paid by the owner to the contractors as follows: all labor and wage expenses shall be paid weekly on certificate of the contractor, endorsed by the engineer. All material and other charges except labor and wages to be paid within ten days after presentation of statement certified by the contractor ' and endorsed by .the engineer. Upon completion of the work and final acceptance .by the engineer, the contractor shall present evidence satisfactory to the engineer and owner that there are no claims or liens against the work. Within ten days after presentation of the above evidence of no claims or \ liens, the owner shall pay all remaining funds due to the contractor upon the engineer’s certificate.”

Willis Livingston was the local agent and representative of Cameron & Co., and as such sold and delivered the lumber to the contractors for said job. He was a member of the church and the treasurer of the building fund for the church. He was selected by all parties as the engineer in charge of the building. He occupied all three of said positions and relationships with the full knowledge and consent of the parties, and no one raised any question or intimation that he was in anyway unfaithful to the trust committed to his care by the respective parties, or that he did anything in connection with the entire transaction that was not entirely satisfactory to all parties.

The contractors, about the 5th of May, abandoned the contract, and the church, under the terms of the contract, notified the surety company thereof, and then proceeded to complete the building at a cost of $1,493.-9S above the contract price. Cameron & Co. filed its lien against the property of the church -for $2,298.10, the unpaid balance due it by the contractor on said job, and filed this suit on its debt against the church and the surety company, and,asked for a foreclosure of its materialman’s lien.

The church, by its answer, contended that Cameron & Co. had no materialman’s lien, and that it was not personally liable for said debt’. By . cross-action the church sought judgment against the surety company for the amount it had spent above the contract price to complete the building and for the amount that Cameron & Co. might establish against the church or its property, and against the contractor for the amount it expended over the contract price and amount of Cameron & Co.’s claim.

The surety- company, by its answer, contended that Cameron & Co. was not entitled to a personal judgment against it under the terms of the bond, and that Cameron & Co. had not' fixed any materialman’s lien; and, further, that it was entirely released from the bond because the church, and the contractor had materially changed, the' terms of the contract in that the church had paid to the contractor three items totaling $850, which had not been paid to said contractor for either labor- or material put into the church building, and that said amount was paid without the presentation of a statement for labor or material therefor, certified by the contractor and indorsed by the engineer.

There were some interveners who were disposed of by the judgment, but they are not involved in this appeal.

The cause was tried to the court and resulted in judgment being entered for Cameron & Co. against the contractor for $2,298.-10 and for a foreclosure of its materialman’s lien on the property of the church, and judgment for the church against Owens-Nash Construction Company for $3,792.08, and judgment for the church against the surety company for $3,342.08, and for the surety company against the Owens-Nash Construction Company for $3,342.08. The surety company and the church have appealed from the judgment as rendered.

It is the contention of each of the appellants that Cameron & Co. did not taire the necessary statutory requirements to fix a materialman’'s lien against the property of the church, as required by articles 5452 and 5453 of the Revised Statutes. As we understand, their main contention being that Cameron & Co. did not, as provided by subdivision 3 of article 5453, give written, notice to the church, as owner of the building being constructed, or to its agent, of each and every item furnished and the amount unpaid. There seems to be no contention but that the account was properly itemized and filed with the county clerk in the manner and for the time as provided by said article. The testimony relative to the transaction is given almost exclusively by Mr. Livingston, who, as above stated, was the agent of Cameron & Co., selling the material, the engineer on the work, supervising same for the church, and a member of the building committee and treasurer thereof who paid out the funds, the checks therefor to be countersigned by Mr. George, the chairman of the building committee for the church. The complete itemized list of the material furnished was attached to the pleading as filed by Cameron & Co., consisting of several hundred different items extending from the 1st of January to the 5th of May. Mr. Livingston testified that said account was 'correct', accurate, and stated the true facts. Said account shows that Cameron & Co. furnished a total of $6,839.15, the major portion thereof being furnished prior to April 15th. He further testified that, as each bill of material was furnished, two copies thereof were made, one was retained by him as agent of Cameron & Co., one was given to the contractors, and that the contractors would then cheek over the items and approve same and then return the bills to him as the engineer in charge of the church building and as the representative of the church, and that he would then keep said bills as approved by the contractor in the church file. The itemized bills showing the material furnished and prices charged therefor having been approved by the contractor and delivered to Livingston as the engineer on the job and as the representative of the church, and same having been by Livingston, as the representative of the church, received and filed with the church papers in connection. with said contract, thereby constituted written notice to the church, as owner, as required by subdivision 3, of article 5453 of the Revised Statutes. We think the testimony supports the implied findings of the trial court that Cameron & Co. complied with all the statutory requirements to fix its materialman’s lien and supports the amount for which judgment was rendered in favor of Cameron & Co. First National Bank v. Lyon-Gray Lumber Co. (Tex. Civ. App.) 194 S. W. 1146; Id., 110 Tex. 162, 217 S. W. 133.

The facts in support of the contention of the surety company that it was released by virtue of the action of the church and the contract are without dispute. The provisions of the contract as to how the funds were to be paid by the church to the contractor are set out in full above. On March 27, 1926, when the contractor had received about one-fourth of the contract price, the church paid to him $250 to be used, by him for his personal account. Again, on April 10th, the church paid to the contractor $150 to. be used by him on his personal accounts. •Again, on April 7th, the church paid to the Dallas Press Brick Company, for the contractor, $450, which had no connection with the contractor’s job for building the church at Italy. There was no statement for any of said items certified to by the contractor and indorsed by the engineer for labor or material used on said building. Mr. Livingston and Mr. George, the representatives of the church, testified that, at the time said respective checks were given, they knew that said funds were being paid to the contractor for his private use, and that said money was not to be used for the payment of any labor or material going into the' church building. They testified that, at the time said respective checks were given, the contractor had put labor and material into the church building for several thousand dollars more than he had been .paid therefor, and that they thought the church was safe in paying the contractor said amounts for his personal use. At the time the $450 was paid, the Dallas Press Brick Company had sued the contractor and was preparing to run a garnishment on the church.

The payment by the church, as owner of the building, to the contractor, of the $850, was clearly in violation of the specific terms of the contract that all funds under said contract should be paid to the contractor for labor and wages on certificate of the contractor, indorsed by the engineer, and for material within ten days after presentation of a statement therefor, certified to by the contractors and- indorsed by the engineers. Williams v. Baldwin (Tex. Com. App.) 228 S. W. 554; Fidelity & Deposit Co. v. Kelsay Lumber Co. (Tex. Com. App.) 83 S.W.(2d) 731.

In Williams v. Baldwin, supra, the court held that the owner of a building, having paid the contractor without obtaining a certificate from the architect as to the correctness thereof, was such a variation of the con- ' tract as to absolutely release the surety company, although it was shown that the owner did not pay to the contractor more than the 75 per cent, he was to pay under the terms thereof.

In Fidelity & Deposit Co. v. Kelsay Lumber Co., supra, the court held that, since the owner of the building, the materialman, and contractor made an agreement whereby the materialman would not insist on bills for material being paid until after the contract was completed, and that said bills would then be paid by the owner out of the 25 per cent, reserve funds, such constituted such a material change in the contract as to absolutely release the surety company.

There are numerous authorities which have been approved by the Supreme Court supporting in effect the holding.stated in the cited cases, and it seems now to be the established law in this state that any material change made in a building contract with reference to the time, manner, or method of paying for labor or material placed in the building by the contractor, without the knowledge and consent of the surety, absolutely released the surety from all liability regardless of whether the surety company shows any injury thereby or not. If it were a question of first impression, we think the correct and much more equitable rule would be that the surety should only be released from the bond to the extent that funds had been paid by the owner to the contractor not authorized by the contract, unless the surety established the fact that it had been otherwise injured by said act. In the case at bar, the utmost amount that the surety company could have been injured by reason of the payment by the church to the contractor was the $850. It appears to be almost a travesty on justice to say that, because the church paid the contractor $850, which it should not have paid under the strict terms of the contract, it thereby released the surety company from paying the additional $3,000 required t'o complete the building and release the liens fixed thereon.

,[4] Since we are required to follow our Supreme Court in its enunciation of the law, under the authorities above cited, we ■ reluctantly reverse the judgment of the trial court in favor of the church against the surety company, and here render judgment that the Park Presbyterian Church of Italy recover nothing against the Southern Surety Company, and that said Southern Surety Company go hence and recover its costs against said church. The judgment of the trial court in all other respects is affirmed.

The judgment of the trial court is affirmed in part, and reversed and rendered in part.


author: HIGGINS, J.

text:
    TEXAS PIPE LINE CO. v. COZART.
    No. 2533.
    Court of Civil Appeals of Texas. El Paso.
    May 7, 1931.
    Rehearing Denied May 21, 1931.

      H. R. Wilson and H. S. Garrett, both of Port Worth, for appellant.
    W. C. Jackson, of Port Stockton, and Jno. L. Powler, of Odessa, for appellee.
   HIGGINS, J.

This is a suit by Cozart against the appellant to recover some secondhand oil well casing.

The evidence from appellee’s viewpoint is to the following effect:

Appellee, under the trade-name of Cozart Supply Company, and. Wm. Wolf, under the name of McCamey Iron & Metal Company, were each engaged in business at McCamey, buying and selling well casing, etc. October 7, 1928, Cozart and Wolf together went to Odessa, where Wolf, as Cozart-s agent, purchased from the Peenberg Trading Company the casing in. question and gave his (Wolf’s) check to cover the purchase price. Cozart and Wolf returned immediately to McCamey, and the next day^hey together went to the Security State Bank of McCamey, where ' Cozart gave his check for the purchase price of the casing in favor of Wolf and informed the bank, in effect, that it was to protect the check-which Wolf had drawn the day before at Odessa. Wolf indorsed and deposited the cheek. The easing was left at Odessa in the yard of the Feenberg Trading Company. About November 30, 1928, appellant, acting through its agent, J. B. Haden, purchased the casing from Wolf, paid him therefor, and obtained an order on the Peenberg Company for the delivery of the casing under which order the casing was delivered to appellant. Briefly stated, the jury found:

1. Wolf did not purchase the casing for himself. ■

2. On October 7, 1928, Cozart made Wolf his agent to purchase pipe.

3. On October 7, 1928, Cozart made Wolf hia agent to purchase the casing from the Peenberg Trading Company.

4. On said date Wolf purchased the casing for Cozart from said trading company.

5. At the time Wolf sold the same to J. B. Haden for the Texas Pipe Line Company, Haden had no notice that the piping was owned or claimed by Cozart.

6. At the time of the purchase Haden in good faith believed the piping was owned by Wolf.

Question 7 reads: “At the time the Texas Pipe Line Co. contracted with Wm. Wolf for the purchase of the pipe in question, did any of the proper representatives of the Texas Pipe Line Co. have notice that D. E. Cozart was claiming the pipe in question?” This was answered “Yes.”

Upon the findings judgment was rendered in favor of Cozart.

Upon the first, second, third, fourth, and seventh findings the judgment was of course properly rendered in favor of Cozart (1 Mechem on Sales,. § 159), but appellant attacks the sufficiency of the evidence to sustain the seventh finding. The evidence upon the seventh issue is probably insufficient to sustain the finding. But this is immaterial in the state of the evidence upon the issue of estoppel.

As regards personal property it is the settled general rule that a vendee cannot acquire a better title than his vendor had unless some principle of estoppel arises against the true owner which precludes such .owner from asserting his otherwise better title. The fact that the vendee acquired the property in good faith and for value is not of itself sufficient to defeat the title of the true owner. In addition there must be an estoppel against the true owner arising out of some conduct, of such owner. '

Dodge v. Litter, 73 Tex. 319, 11 S. W. 331, and other eases cited in 15 Michie Digest, 441; 24 R. C. L. pp. 375, 376, and cases cited in notes 4 and 5; 1 Mechem on Sales, § 154 et seq.

The rule as stated in Bigelow on Estoppel (6th Ed.) p. 607, is: “ * * * That where the true owner of property, for however short a time, holds out another, or, with knowledge of his own right, allows another to appear, as the owner of or as having full power of disposition over the property, the same being in the latter’s actual possession, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Or where others are innocently induced to acquire rights in derogation of the secret or undisclosed claims of those who cause such action, the rights so acquired are secure whether contested at law or in equity. Such rights do not depend upon the actual title or right or authority of the party with whom they have directly dealt, but are from conduct of the real owner which precludes him from disputing against them the existence of the title or right or power which he caused or allowed to appear to be vested in the party making the sale.”

With reference to this principle of estop-pel in 1 Meehem on Sales, at sections 158 and 159, it is said:

“In order, however, that this rule shall operate, it is essential that the acts relied upon as indicating ownership by the possessor shall be acts for which the true owner is responsible; for it is clear that no acts of the possessor alone can suffice to cut off the rights of the true owner. * * ⅜ ”
“Again, the purchaser must actually have parted with value, in reasonable reliance upon the apparent authority so that he will be prejudiced if the transaction is not upheld. ‘Two things must concur,’ it is said, ‘to create an estoppel by which an owner may be deprived of his property, by the act of a third person, without his assent, under the rule now considered: 1. The owner must clothe the person assuming to dispose of the property with the apparent title to or authority to dispose of it; and 2. The person alleging the estoppel must have acted and parted with value upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real. In this respect it does not differ from other estoppels in pais.”

See Barnard v. Campbell, 55 N. Y. 456, 14 Am. Rep. 289.

The evidence- in appellant’s behalf wholly fails to measure up to the standard announced. It simply shows that Haden purchased in good faith, for value and without notice, and all of the authorities hold that this, of itself,- is insufficient. Wolf did not have actual possession of the easing. We do not mean to imply that actual possession is in all instances necessary in order to raise an estoppel against the true owner but it is a very strong indicia of ownership which was here lacking. In the present case the only evidence of ownership in Wolf for which Cozart was responsible is the fact that Wolf bought the casing as agent for Cozart. The evidence does not show Haden knew that apparently Wolf had bought the easing for him-, self and was thereby led to believe that Wolf was the true owner. If such a showing had been made, it might be that Cozart would be estopped to deny the title thus apparently acquired by Wolf. The issue of estoppel is not raised by the evidence.

Error is assigned to the admission of practically all of the evidence adduced by appellee to support his theory that Wolf was his agent to purchase the piping and purchased same in that capacity. It is objected that as to appellant it was hearsay, self-serving, etc. If this contest had been between Cozart and Wolf, there could be no question as to its admissibility. It was all a part of the res gestas of the transaction between Cozart and Wolf. In this connection we quote from 3 Wigmore on Evidence, § 1770, as follows:

“Where the utterance of specific words is itself a part of the details of the issue under the substantive law and the pleadings, their utterance may be proved without violation of the Hearsay Rule, because they are not offered to evidence the truth of the matter that may be asserted therein.
“(1) In issues of contract in general, this use of utterances is of course common. In particular:
“(a) The making of the contract necessarily involves utterances by conversation, letter, telegram, and the like; and these are admissible under the issue. * * *
“In the same way, when money is loaned or goods sold or services rendered, the issue is whether the other party acted as agent or for himself, declarations of the transactors at the time are admissible to make clear the meaning of the-act and determine to whom credit was given or by whom liability was undertaken.”

Furthermore, appellant is in privity with Wolf, and the latter’s admissions, either oral or by conduct, in derogation of his title, and made prior to Haden’s purchase, are admissible against his vendee. 1 Greenleaf on Ev. § 190, and eases cited in 6 Michife Digest 27-28.

Objection is also urged against the form of the issues as submitted upon the ground that appellee’s theory as to the issue of ownership of the casing was unduly emphasized and calculated to lead the jury to believe the court favored appellee’s theory. We incline to the view that the objection is untenable.

In any event we do not think the form of submission could have misled the jury , or in any wise prejudiced the appellant, and the error, if any, was harmless.

Affirmed.


author: hickm!an, C. J.

text:
    LANE et ux. v. CUNNINGHAM et ux.
    No. 841.
    Court of Civil Appeals of Texas. Eastland.
    May 8, 1931.
    Rehearing Denied May 29, 1931.
    Grita & Woodward and Baker & Baker, all of Coleman, for appellants.
    Walters & Walker, of San Saba, for appel-lees.
   hickm!an, C. J.

On the 14th day of October, 1929, appellees, Robert Cunningham and wife, Mamie E. Cunningham, the owners of 98 acres of incumbered land in Callahan county, entered into a contract in writing with appellant J. T. Lane, the owner of a lease on a hotel in San Saba, known as Hotel San Saba, and the incumbered furniture and fixtures situated therein, by the terms of which contract it was agreed that Cunningham and wife would exchange their interest in the land for Lane’s lease and his interest in the furniture and fixtures. The contract provided that possession should be given on the 1st day of November thereafter. Lane executed and delivered to Cunningham an assignment of the lease and bill of sale to the furniture and fixtures, and Cunningham and wife executed a warranty deed to Lane to the land, all in accordance with the contract. Bach .party assumed the indebtedness against the property received by him in the exchange. The Cun-ninghams took possession of the hotel on November 1st, and operated same at a loss until some time in December, when they abandoned it and moved back and took possession of the house on the farm which they had deeded to Lane. The deed from Cunningham and wife •to Lane was placed of record, and there was also placed of record a deed from Lane to his wife, Juanita Lane, conveying the Callahan county farm to her.

This suit was instituted by Cunningham and wife against Lane and wife to rescind the trade, cancel their deed to the Callahan county land, and cancel the deed from Lane to his wife. Their petition' contained the statutory allegations of an action in trespass to try title. Following these allegations, they pleaded their case specially. They alleged:' (1) That their deed to Lane had never been delivered’ with the intention of passing title; (2) that the contract and deed were procured by fraud in several particulars hereinafter noticed; and (S) that the deed from Lane to his wife was without consideration and made for the purpose of hindering, delaying, and defrauding his creditors. Their prayer was for the title and possession of the Callahan county land, for a writ of restitution, for rents, damages, and costs of suit, and for judgment canceling the deed executed by Lane to his wife. They also prayed for general relief.

Appellants answered by a general demurrer, special exception, and general denial. Following their general denial, they set up a cross-action which contained the statutory allegations of a suit in trespass to try title to the Callahan county land. The ease was submitted to a jury on special issues. In answer to the issues, the jury found that the possession of the deed from Cunningham and wife to Lane was not delivered with the intention on the part of the Cunninghams of passing the title to the land. The jury also found in favor of the Cunninghams on all the fraud issues submitted. Upon this verdict judgment was rendered in their favor against Lane and wife for the title and possession of the Callahan county land, for a cancellation of the two deeds, the one from them to Lane, aqd the one from Lane to his wife. The judgment decreed that the Lanes take nothing by their cross-action and adjudged the costs against them. From this judgment this appeal is perfected.

The specific fraudulent representations found by the jury to have been made by Lane to the Cunninghams were: (a) That all 'monthly installments of rent due the San Saba Hotel Company had been paid up to'the 1st of November, 1929; (b) that Lane had been making enough out of the hotel at San Saba to pay the running expenses, including the amounts due each month to the' Texas Hotel Supply Company, and the rent on the hotel; ic) that Jess Heslep, Lane’s hotel manager and representative, represented that two young men occupied one of the rooms of the hotel at San Saba and paid $30 each per month therefor; (d) that two young men who were occupying another room at the hotel were paying $35 each per month therefor; (e) that the room occupied by the coffee shop in the hotel brought $110 per month rent; (f) that the large room situated on the ground floor at the southeast corner of the building had been leased for a drug store at a monthly rental of $110, beginning November 1, 1929; (g) that Lane represented that out of the proceeds derived from operating the hotel business he had been paying all operating expenses, including monthly rental of $600 due the San Saba Hotel Company, and the monthly installments due the Texas Hotel Supply Company on the furniture and fixtures, and had a fair profit left over, from June 1, 1928, up to the time of the trade, with the exception -if one or two months.

Each and all of these representations were found by the jury to have been false, and to have been believed and relied upon by the Cunninghams in entering, into the contract. Each issue submitted was properly pleaded and supported by testimony.

In .various ways appellants present the question that rescission should not have been decreed for the reason that it was neither pleaded nor proved that appellees were damaged by the fraud. At a prior day of this term we rendered an opinion herein sustaining this contention of appellants, and entered our order reversing and remanding the cause. Our decision was based alone upon our construction of the opinion of the Commission of Appeals, adopted by the Supreme Court, in the case of Bryant v. Yaughn, 33 S.W.(2d) 729. Since our opinion was written, there has been published an opinion by the commission adopted by the Supreme Court, in the case of Sibley v. Southland Life Ins. Co., 36 S. W.(2d) 145. That opinion has caused us carefully to review the entire question. In our former' opinion we construed the holding in Bryant v. Yaughn to be that, in a suit for the rescission of an exchange agreement for fraud in its procurement, the complaining party must allege and prove that the value of the property received by him was less than the value of that parted with, or, in other words, that the rule for measuring the damáge is that announced in the case of George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456. In the Sibley Case, supra, it was held that, in cases coming within the purview of article 4004, R. S. 1925, the rule there provided for measuring the damage, viz., the difference between the value as represented and the value in the condition delivered, superseded the rule in George v. Hesse. Of course, the two opinions should not be so construed as to place them in conflict with each other. No semblance of conflict exists if the case of Bryant v. Vaughn is construed .to hold that the defrauded party in that case failed to bring Herself within either rule. That opinion seems not to have indicated which rule was applicable, but to have held that by neither her pleading nor her proof did Mrs. Vaughn bring her case within either. Had she pleaded and proved damage under the rule of article 4004, rescission would surely not have been denied her.

These cases and the case of Russell v. Industrial Transp. Co., 113 Tex. 441, 251 S. W. 1034, 258 S. W. 462, 51 A. L. R. 1, well establish two rules governing an action for the rescission of a contract of exchange procured by deceit or fraud when the transaction pertains to real estate or stocks, viz.: (1) The complaining party must allege and prove that he has sustained damage. (2) The rule for measuring the damage is the difference between tbe value as represented and the value in the condition delivered, as provided in article 4004, R. S. 1925. There cannot be two rules for measuring the damage, one applicable when rescission is sought and the other applicable when the relief sought is a money judgment for damage. The only showing of damage required in either case is that the property received is worth an amount substantially less than it would have been had it been as represented. It is not necessary that proof be offered showing the difference between the values of that parted with and that received.

Testing the pleadings and evidence in this case by these rules, we find abundant support for the conclusion that appellees both pleaded and proved damage on account of the fraudulent representations. Clearly the hotel lease and fixtures would have had greater value had the representations above set out with regard to the income derived from the rent of various rooms been true. The fraudulent representation that all rent had been paid up to and including November 1st had a material bearing upon the value of the property received. The undisputed facts disclose that there was then due on back rent $800, which was by law secured by a landlord’s lien upon the furniture and fixtures, and that, because, thereof, suit was filed in December and the property sequestered and sold, thus wiping out all the value of that received by ap-pellees in the exchange.

In the case of Russell v. Industrial Transp. Co., supra, Justice Pearson quotes with approval from Black on Rescission, § 37, as follows: “If damage is shown, the extent of the injury occasioned by the fraud will not be inquired into in a suit to rescind the contract. And the injury need not be accurately measurable in money, but it is sufficient if it is of a pecuniary nature.”

In the same opinion this language is used: “Of course, as is pointed 'out in Elliott and others, the word ‘damage’ should not be restricted to a monetary loss; that' is, it need not be measured in money, but it is* sufficient if the defrauded party has been induced to incur legal liabilities or obligations different from that represented or contracted for. In an action for rescission, the amount of the damage is immaterial, provided it is substantial.”

The evidence does not disclose that the Cunninghams assumed the $¿00 obligation for rents, but does disclose that the property received by them had an incumbrance of $800 thereon in addition to that represented, and it cannot be questioned that incumbered property is worth less than the same property un-incumbered.

It is our conclusion that appellees both pleaded and proved that they suffered substantial damage under the correct rule applicable thereto in this transaction, and all assignments and propositions relating to the subject of damage are overruled.

By various assignments and propositions questions are presented as to the correctness of the issue submitted as to the delivery of the deed from the Cunninghams to Lane, and the admissibility of certain testimohy introduced with reference thereto. We shall not write upon these questions for the reason that, should they be sustained, reversal would not follow. Appellees were entitled to the decree of cancellation on account of the fraud, regardless of whether their deed had been delivered.

The assignment that the court erred in admitting parol testimony of the true consideration agreed upon by the parties is overruled. The general rule, that recitals in a deed as to consideration are not conclusive, has been many times announced and followed by the courts of our state. A number of the Texas authorities are cited in 22 C. F. p. 1157, § 1555, under note 53.

The only remaining assignment which we shall discuss is that relating to the argument of counsel. The bill of exceptions relating thereto discloses that G. A. Walters, one of the attorneys representing the appel-lees, in his address to the' jury employed the following language: “Gentlemen, I do not believe you will return a verdict in favor of the defendants and turn these old people out of their home in their old age, turning them out on the commons with no place to go and no place to live, and take away from them the fruit of their lifetime of saving and toil.”

Appellant excepted and objected to this argument at the time it was made, whereupon the court instructed the jury verbally not to consider it. No written instruction with reference thereto was given. The bill of exceptions preserving this matter does not disclose, either that there was no evidence to justify the argument, or that there was no argument on the part of the opposing counsel to provoke it. It has long been the rule that such a bill of exceptions presents no error. This court has had occasion to follow the rule in the cases of Texas Pacific Coal & Oil Co. v. Grabner, 10 S.W.(2d) 441; Oilbelt Motor Co. v. Hinton, 11 S.W.(2d) 338 ; Thompson v. Caldwell, 22 S.W.(2d) 720; and West Texas Utilities Co. v. Renner, 32 S.W.(2d) . 264. In. the last case cited the Supreme Court has granted a writ of error upon an assignment complaining of this particular holding by us. We have observed that there have been many recent decisions by Courts of Civil Appeals since our hplding in the Renner Case following the same rule. The granting of the writ of error on this point, however, presents a question as to whether the Supreme Court will announce a different rule. We should therefore hesitate, under the circumstances, to dispose of this question on that basis alone.

While we do not commend the character of argument disclosed in this bill, yet we do not believe it should work a reversal of the judgment. There is no suggestion therein as to the answer to be given to any particular issue. The jury is presumed not to know the effect of its hnswers. The statements are general and the court promptly withdrew them from the jury. We recognize that an argument may be so prejudicial that the effect thereof may not be removed by an instruction from the court. But we do not believe that the argument here complained of is so vicious and prejudicial in its nature as that the effect thereof, if any, upon the jury, was not removed by the court’s instruction. Hubb Diggs Co. v. Bell, 116 Tex. 427, 293 S. W. 808; C. C. Slaughter Cattle Co. v. Pastrana (Tex. Civ. App.) 217 S. W. 749; El Paso Elec. Ry. Co. v. Terrazas (Tex. Civ. App.) 208 S. W. 387; Galveston, H. & S. A. Ry. Co. v. Marti (Tex. Civ. App.) 183 S. W. 846; San Antonio Traction Co. v. Roberts (Tex. Civ. App.) 152 S. W. 455.

Another reason affirmatively, appears for holding that this argument was harmless. The language objected to was practically the same as that employed by Mrs. Cunningham while on the witness stand. No objection was made to the testimony, and all the injury, if any, which could arise from the improper argument had already been inflicted without objection.

It is our order that the motion for rehearing be granted; that the judgment heretofore entered herein, reversing and remanding this cause, be set aside; that the original opinion herein be withdrawn and this opinion be substituted therefor; and that the judgment of the trial court be in all things affirmed.


author: LEVY, J.

text:
    MARYLAND CASUALTY CO. v. GRAHAM.
    No. 4018.
    Court of Civil Appeals of Texas. Texarkana.
    May 4, 1931.
    Rehearing Denied May 7, 1931.

      Rodgers & Rodgers, of Texarkana, for appellant.
    Wm. Y. Brown, of Texarkana, for appellee.
   LEVY, J.

(after stating the case as above).

The appellant complains of the submission of the issue of payment of the compensation in a lump sum because (1) the question as submitted improperly presented the issue, and (2) the evidence was insufficient to authorize an award therefor. It is pointed out in the ease of Norwich Union Indemnity Co. v. Wilson (Tex. Civ. App:) 17 S.W.(2d) 68, that the form of the issue should be such as to require the jury to find that manifest hardship and injury would result from the payment of the compensation from week to week at a definite sum fór a definite period. In the later case of Texas Employers’ Insurance Association v. Lovett (Tex. Civ. App.) 19 S.W. (2d) 397, the form of the issue submitted does not appear to have been challenged. However, in the present case the controlling point of decision is not the form of the issue, but that of whether there is sufficient proof to show a special case within the purview of the statute warranting the payment of a lump sum. The petition alleged, viz.: “Plaintiff alleges that he is totally incapacitated and unable to work, and that he is in debt for food, board, clothing, medical treatment and medicine and knows no occupation, and that this is a special case and that his compensation ought to be reduced to and paid to him in a lump sum, and unless his compensation is reduced to and paid in a lump sum, that manifest hardship and injustice will be done him, and that if said compensation is so paid in a lump sum, that he can use said money in a way by which he may make a living off of said money.” The following is the entire evidence reflected by the record; the appellee testified: “I am a married man. I am not living with my wife now. I am separated from her. I stay with my brother.' I owe some debts. I owe Mr. Nixon for some groceries. I don’t know exactly what I owe him, but 1 owe him quite a bit. I also owe something for medicines.. I have not paid Dr. Baskett anything for treating me. I owe him $12.00. I have not got any money now. This company has never paid me any compensation. I do not know how to do anything except work — manual labor with my hands. I have no education. I went to about the 4th grade in school. I don’t know any other trade except common labor.”

The above evidence must be considered in connection with the fact, as found by the" jury, that there was total permanent incapacity of the appellee to work for wages. It is plainly shown by the evidence set out that the appellee, in direct consequence of his total incapacity to earn wages by his labor, is suffering embarrassment for lack of “any money now” with which to pay certain exist-lug debts owed “for some groceries,” “for medicines,” and a medical bill of “$12.00.’' He has no dependents and is staying with his brother. The essential thing to the appellee, as is the substance of the proof, is having or procuring of enough money to be presently paid to him to meet his wants and pay off the existing' debts. The evidence does not otherwise suggest or warrant the conclusion that the weekly payments to the appellee of the statutory allowance of 60 per cent, of his regular weekly wages would not, when begun to be paid over to him, afford ultimate relief from his pecuniary embarrassment. In such state of facts a lump sum is not warranted. By the terms of the Workmen’s Compensation Law, the relief intended to be afforded the injured employee is by compensation in equal weekly payments of 60 per cent! of his regular wages. The next class of relief provided for is: “In any case where compensation is payable weekly at a definite sum and for a definite period, and it appears to the' board that the amount of compensation being paid is inadequate to meet the necessities of the employee or beneficiary, the board shall have the power to increase the amount of compensation by correspondingly decreasing the number of weeks for which the same is to be paid allowing discount for present payment at legal rate of interest; provided that in no ease shall the amount to which it is increased exceed the amount of the average weekly wages upon which the compensation is based; provided it is not intended hereby to prevent lump sum settlement when approved by the board.” Section 15a, art. 8306. In the yet further provision of the law, the employee suffering total permanent incapacity for work and earning wages may be paid a lump sum, in lieu of equal weekly payments either of a percent or the full amount of weekly wages. This class of payments is denominated “special cases.” Section 15, art. 8306. In order to be placed in this latter class of a lump-sum payment, the injured employee must allege and prove, as required by the terms of the article, that “manifest hardship and injustice would otherwise result” from the payment of the compensation from week to week. The phrase “manifest hardship and injustice” is intended to be the reason of effects and' consequences in a pecuniary way different from the phrase “inadequate to meet the necessities of the employee or beneficiary.” Quoting, by way of illustration, from Consolidated Underwriters v. Saxon (Tex. Com. App.) 265 S. W. 143, 146: “A ‘special’ case is not necessarily determinable by the relative poverty of the claimant. The thrift, intelligence, foresight, habit of frugali-ty, capacity to manage and keep the money of the given claimant, might as well make his á special case as direct poverty. The statute undertakes to leave it to the judgment of the court or jury as to what constitutes a special case. In such consideration the jury or court is not confined to a consideration of the paucity or profuseness of the claimant’s earning capacity or income. "Weekly payments might work the greatest ‘hardship or injustice’ to the claimant having the greatest capacity Because there might be, and probably would be, joined with that capacity ability and power to conserve and use beneficially and profitably the whole sum of the association’s liability. Commutation to lump sums have been made in order to enable the employee to invest his compensation in a business of his own (Kelly v. Snare & Triest Construction Company, 1 Cal. I. A. C. Dec. 471); to return to his nátive land (Olsen v. Western Fuel Co., 2 Cal. I. A. C. Dec. 643); to discharge a mortgage on the dependent’s home (State Comp. Ins. Fund of the State of Cal. v. Jacobsen, 1 Cal. I. A. C. Dec. 311); and also where the employer was about to wind up its business and leave the state (Decounter v. United Greenwater Copper Co., 2 Cal. I. A. C. Dec. 700). Iionnold on Workmen’s Compensation, pp. 656-658, and citations there shown.” For special instance of approved facts, Texas Employers’ Insurance Association v. Downing (Tex. Civ. App.) 218 S. W. 112. But in Bailey v. Insurance Co. (Tex. Com. App.) 14 S.W.(2d) 798, the special instance of proof only-of being permanently disabled from earning wages had the effect of placing the case in the class of “ordinary” and not “special” cases within the purview of the statute.

It is next pointed out by the appellant that the findings of the jury are contrary to the preponderance of the evidence, that the appellee was injured by. a tie falling on him and he was permanently and totally incapacitated from work by his injury. Upon considering the evidence as a whole, we do not feel authorized to disturb the findings of the jury.

The error above sustained does not necessarily require the reversal of the judgment, and the judgment is accordingly so reformed as to give to the appellee, A. Graham, judgment against the Maryland Casualty Company for the"sum of $7.20 a week for the period of 401 weeks to be paid in weekly installments, of which $4.80 shall be paid to A. Graham and $2.40 of which shall be paid, to his attorney, W. Y. Brown, until the full sum shall have been paid, and that, as reformed, the judgment of the district court should be affirmed. The costs of the appeal will be taxed against the appellee.


author: SMITH, J.

text:
    BERNARD et al. v. CROWELL
    No. 10628.
    Court of Civil Appeals of Texas. San Antonio.
    May 2, 1931.
    W. B. Lewis and A. N. Beem, both of Har-lingen, and James P. Cogdell, of Raymond-ville, for appellants. •
   SMITH, J.

This is an application made by relators for writ of mandamus to require respondent, the county clerk of Willacy county, to-file a bystander’s bill of exception alleged to have been tendered him for that purpose by re-lators on April 20, 1931.

But this court finds from the record, taken in connection with the statements of counsel and the parties upon the hearing of this application, that at the time they filed their said application in this court relators had not made such tender of said bill of exceptions to respondent as to amount to a specific request or demand upon him to receive and file said paper. Accordingly,' said application was prematurely filed in this court, and must therefore be denied,' at the cost of relators.

It is deemed appropriate to say here that the clerk of a trial court has no discretion in the matter of filing papers recognized by law as properly belonging in the record of causes, and that a bystander’s bill of exceptions constitutes a proper part of such records. Article 2237, R. S. 1925. Accordingly, it is the duty of respondent, as county clerk, to receive and file any bystander’s bill of exceptions and supporting affidavits tendered him by either of the parties to this litigation.

It is not for the clerk to inquire into the purposes or contents of such papers, or to the circumstances giving rise to them or attending their preparation. He is the official elected by the voters to perform that and all other duties of his office, and in the proper performance of those duties is accountable to no other person or official, but to the public only.

These observations are not intended as strictures upon the conduct of respondent in this case, but rather for his guidance in future. His answer to relators’ application discloses a commendable and natural attitude in the transactions involved, and that his course has been actuated by a proper deference to the county judge, whose position, apparently, has been rendered difficult by the conduct of some of the parties and their counsel. It is here suggested, however, that regardless of these difficulties, relators are entitled to perfect the record in this cause in the manner provided by the statutes, and that when properly requested respondent should receive and file the bill of exceptions in question, together with supporting affidavits tendered therewith by relators, as well as any controverting affidavits and certificates that may be tendered by their adversaries.

The application for writ of mandamus is denied, at relators’ cost.


author: RYAN, C.

text:
    STATE v. SLATER.
    No. 5464.
    Supreme Court of Texas.
    May 26, 1931.
    W. C. Jackson, of Port Stockton, for the State.
    Karl A. Crowley, of Fort Worth, and Hart Johnson, of Port Stockton, for defendant in error.
   RYAN, C.

In this case is involved the construction to be placed on articles 7331 to 7334, Revised Statutes, 1925, and the question of the amount of fees collectible by the tax collector, the county clerk, and the county attorney, in suits brought by the state for the collection of delinquent taxes.

This suit was instituted in the name of the State of Texas, on July 30, 1928, against R. M. Metcalf, Quinby Oil Company, and Olney ■A. Slater, for the collection of taxes delinquent in payment for the year 1927, and for - penalties, interest, and costs, and foreclosure of tax lien on certain lands described in the petition.

Only Slater appeared and filed answer; the other named defendants defaulted'.

The exhibit attached to the petition shows the following:

Recapitulation of Taxes Due.
State Taxes. $34.50
County Taxes . 4.S3
District School Taxes. 29.30
41.30
Costs . 136.50
Total of all taxes due. 246.43
County Attorney . 831.00
Dist. Clerk. 1.50
1078.93.

Slater answered that he did not own all the lands described in the state’s petition, but did own certain of said lands and had sought to pay all lawful charges and costs against the same, but the tax collector refused his tender to that effect.

It was claimed by Slater, as shown by the agreed statement of facts, that his land consisted of town lots and parcels of land which are unimproved and lie within certain additions to the town of Port Stockton, all of which additions were subdivided into lots and blocks, surveyed and marked on the ground and plat of same filed, and recorded in Pecos county. These additions consist of lands lying within certain original surveys, which had been subdivided into such additions.

The lands or lots owned by Slater and • against which taxes were alleged to be delinquent are in three additions to said town, viz.: Rule addition; Old Port addition, Orient addition; and Second Orient addition.

The agreed statement contains a copy of the assessor’s inventory made by E. M. Met-calf, who then owned all the property in question, including the portion thereof now owned by Slater, an extract from which is as follows:

City Lots Block Addition Value
Fort Stockton 1 to 11 23 Orient 11»
“ “ 1 to 11 24 " HO

and which in the same form describes the various lots, blocks, and additions, now claimed by Slater.

It was agreed that the total amount of state, county, road, and special taxes, penalties, and interest on the lands belonging, to 'Slater and covered by this suit is $104.25, which sum was tendered to the tax collector, together with the sum of $20 additional, as costs' after suit was filed, which tender was' refused. ■'

The’trihl court rendered judgment against Slater and his associates for the sum of $301.-25, as taxes, penalty, interest, and .costs, accrued on the property claimed by him, delinquent for the year 1927, and foreclosed tax lien thereon. It is not shown how this amount was arrived at, nor what portions thereof were claimed by the tax collector and county clerk, nor what the costs were for.

The trial court also rendered judgment against E. M. Metcalf and associates for the claimed taxes on other property included in the suit but not owned by Slater, and foreclosed the tax lien thereon. Only Slater prosecuted an appeal therefrom.

The Court of Civil Appeals modified the judgment to the extent of awarding judgment against Slater and associates in the sum of $104.25 for the amount of taxes, penalty, interest, and costs, and 'for county attorney’s costs $7, county clerk’s costs $1, tax collector’s costs $3, and district clerk’s costs $1.50, aggregating the sum of $116.75,' and foreclosed the tax lien for that amount. 14 S.W. (2d) 874, 876.

The county attorney was allowed fees on the basis of three tracts — each addition as one tract — viz., $5 for the first and $1 each for the remaining two. The- tax collector was allowed fees on the same basis of three tracts— each as constituting one “correct assessment’’ —viz., $3. . ■

The only controversy between the parties is the amount of costs that the tax; collector, county clerk, and county attorney are entitled to under articles 7331 to 7334, Rev. Stat. 1925, depending upon the meaning of the term “tract” as applied to delinquent tax suits, in ascertaining the number of “tracts” involved in the suit.

The statute defines the term, as follows: “Art. 7334. The term ‘tract’ shall mean all lands or lots in any survey, addition or subdivision or part thereof owned by the party being sued for delinquent taxes.”

The Court of Civil Appeals) states “the exact point presented has never come before an appellate court since the term ‘tract’ has been defined, so far as we have found, and so far as the attorneys representing the respective parties to the suit have found.”

Opinion.

We think the unit of calculation by which the number of tracts is to be fixed is the last or smallest subdivision into which the land has been divided.

When a survey is divided into town or city additions, all lands or lots in each such addition owned by the party being sued constitute one tract, provided there be no subdivision of the addition.

If the addition has been divided into smaller subdivisions, such as blocks, then each such subdivision or block constitutes a tract, within the meaning of the statute, although it is divided into lots; in that ease, the lots owned therein, whether all or only a part thereof, collectively constitute a tract, the unit being the block, unless such lots have in turn been subdivided, in which event the subdivided lot becomes the unit of measurement, as a tract.

Applying the above rule, the county attorney is entitled to $5 for the first tract and $1 for each additional tract involved in the same suit; the county clerk is entitled to $1 for all services rendered in the suit (article 7332); and the tax collector to $1 for each “correct assessment” (article 7331), each tract considered as one assessment.

It follows from the foregoing that both the trial court and the Court of Civil Appeals erred in' their judgments, which are here reversed, and the cause is remanded for another trial.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


author: LEDDX, G. CURETON, C. J.

text:
    EMPLOYERS’ CASUALTY CO. v. ROCKWALL COUNTY et al.
    Motion Nos. 9465, 9445; 5054.
    Supreme Court of Texas.
    May 20, 1931

      Lawther, Pope, Leachman & Lawther and Leachman & Gardere, all of Dallas, for plaintiff in error.
    Wallace & Taylor and Mack L. Vickrey, dll of Dallas, O. G. Miller, of'Royse City, and Thomas R. Bond, of Terrell, for defendants in error.
   LEDDX, G.

The motion for rehearing of the Employers’ Casualty Company points out an error in the calculation as to the amount of recovery awarded to Paul Snow; the correct amount being $423.07 instead of $523.07. A careful consideration of the remaining grounds of the motion has not convinced us that the matters complained of were not correctly disposed of in our original opinion, 35 S. W.(2d) 690.

In the motion of defendant in error McDonald ‘Hardware Company, it is insisted that it was entitled to recover against the bonding company upon its allegation' and proof that, upon default of the contractor, the bonding company, in taking over the work, converted all the equipment which it had sold the contractor, used the same in completing the work, and thereafter disposed of it.

Inasmuch as the undisputed evidence showed that this equipment belonged to the contractors at the time of its alleged conversion, the hardware company was not entitled to recover for such conversion, as the cause of action therefor would exist in favor of the contractor and not the hardware company.

The motion of the Employers’ Casualty Company is granted to the extent that the judgment is reformed so as to reduce the recovery awarded Paul Snow to the sum of $423.07. In all other respects both motions for rehearing are overruled.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


author: HARVEY, O. CURETON, C. J.

text:
    WINFREY v. GIRARD FIRE & MARINE INS. CO.
    No. 5724.
    Supreme Court of Texas.
    May 16, 1931.
    A. A. Winfrey, of Dallas, Austin C. Hatch-ell; of Longview, and John Davis and P. D. Crawford, both of Dallas, for plaintiff in error.
    E. G. Senter and M. H. Baughn, both of Dallas, for defendant in error.
   HARVEY, O.

This suit was brought by the plaintiff in error, A. A. Winfrey, against the defendant in error, the Girard lire & Marine Insurance Company, to recover on a fire insurance policy covering certain household furniture. The case was tried without a jury, and judgment was Rendered for Winfrey for the amount of the policy, with interest. The Court of Civil Appeals reversed that judgment and rendered judgment for the insurance company. 26 S.W.(2d) 701. Winfrey was granted the writ of error.

The material facts are undisputed. They are substantially as follows:

The wife of A. A. Winfrey died in January, 1928, leaving a will which was duly probated. By the will, she devised and bequeathed one-half of all her property to Winifred Ford, her minor daughter by a former marriage, and to Winfrey the other half, during his life, with reversionary interest to Winifred Ford. At the time Mrs. Winfrey died, she and her husband owned, among other property, the household furniture involved in this controversy. .A piano and a few other pieces of the furniture were owned in sever-alty by Mrs. Winfrey in her separate right; all the rest belonged jointly to the separate estate of Mrs. Winfrey and the community estate of her and her husband, A. A. Winfrey. After Mrs. Winfrey’s death, Winifred Ford was taken into the home of one Edwards, who had been duly appointed guardian of her person and estate by the probate court of Dallas county. Winfrey was duly appointed administrator of the estate of his deceased wife. Winfrey and Edwards, the guardian, entered into an oral agreement to the effect that, in exchange for Winifred’s interest in said furniture, Winfrey would give $60 cash and the life interest in certain real estate devised to him by the will. Winfrey paid the guardian the $60 in cash, as called for ;by the agreement, and Winfrey considered the trade closed. The probate court never authorized Edwards, the guardian, to sell or exchange any of the personal property belonging to Winifred; nor did said court ever authorize or approve the above transaction which occurred between Winfrey and . the guardian. Subsequent to said transaction, Winfrey took out the fire policy in controversy, by the terms of which the insurance company insured Winfrey against loss on account of the destruction of the above-mentioned furniture by fire. The policy contained the following stipulation: “This entire polity, unless otherwise provided by agreement endorsed herein or added hereto, shall be void if the interest of the insured in the property be other than unconditional and sole ownership.”

Some three months after the policy issued, the furniture was destroyed by fire. The insurance company rejected Winfrey’s claim for indemnity on the ground that the interest of the latter in the furniture, at the time the policy issued, was not unconditional and sole ownership, in that Winifred Ford owned a substantial undivided interest therein. Later a suit was filed in the district court of Dallas county, by Winifred Ford, acting through her said guardian, against A. A. Winfrey. The next day after said suit was filed, an agreed judgment was entered therein. The judgment purports to adjudge that the community estate of Winfrey and his deceased wife, at the time the latter died, consisted of an undivided interest in certain specified parcels of real estate, and that Mrs. Winfrey,-at the time she died, “owned no other or further interest in any property, real or personal.” The judgment further recites that A. A. Winfrey was, at the time his wife died, seized and possessed “asrhis individual and separate estate” of an undivided interest in certain specified real estate and of the furniture which is involved in the present controversy. It was adjudged that said furniture belonged to the separate estate of A. A. Winfrey, and 'that “all of the title, interest and estate therein is hereby divested out of said plaintiff, Winifred Ford, and vested in the defendant, A. A. Winfrey.” The judgment also purports to fix and establish the respective interests of Winfrey and Winifred Ford in the several parcels of real estate described in the judgment. After that judgment was entered, the present suit on the fire policy in question was brought by Winfrey. In defense, the insurance company set up the policy stipulation quoted above. The only question presented for consideration here is whether or not, under the facts stated, the interest of Winfrey in the furniture, at the time the policy issued, was other than unconditional and sole ownership, within the meaning of the said policy stipulation. The question is not difficult of solution. Disregarding, for present purposes, the reversion-ary interest in the furniture which was acquired by Winifred Ford under her mother’s will, she acquired an undivided interest, of substantial extent, in the furniture. The property, right to this undivided" interest passed to Winifred Ford on the death of her mother. With reference to this undivided interest, Winfrey acquired no property right at all. By virtue of the will, he was not even entitled to exclusive possession of the furniture, for the reason that Winifred, through her guardian, was entitled to possession in common with him. R. S. art. 4172. The agreement respecting the furniture, which was made between Winfrey and the guardian, together with the payment of the $60 to the latter, gave Winfrey no title, either legal or equitable, to Winifred’s undivided interest in the furniture. The guardian had no authority from the probate court to bind Winifred by his agreement in this respect, or to dispose of her property as he undertook to do. If, in connection with that transaction, any equitable right at all, in- respect of Winifred’s undivided interest in the furniture, accrued to Winfrey, such right did not extend beyond that of a lienholder in possession, to secure reimbursement for the purchase money paid in pursuance of said agreement. Harrison v. Ilgner, 74 Tex. 86, 11 S. W. 1054. When the fire policy issued, Winfrey was not the unconditional and sole owner of the furniture, as contemplated by the policy stipulation under consideration; consequently no liability against the insurance company arose from the policy. Fireman’s Fund Insurance Co. v. Wilson (Tex. Com. App.) 284 S. W. 920. The agreed judgment, which was entered after the fire, by the district court of Dallas county, in the suit between Winifred and Winfrey, did not in any wise bind the insurance company, since the company is a stranger to such judgment.

The judgment rendered by the Court of Civil Appeals in favor of the defendant in error should be affirmed.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


author: CRITZ, J.

text:
    HAYNES v. TAYLOR.
    Motion No. 9475; No. 1387-5566.
    Commission of Appeals of Texas, Section A.
    May 20, 1931.
   CRITZ, J.

The original opinion in this case is reported at 35 S.W.(2d) 104. We refer to that opinion for a statement of the case, and our original rulings thereon.

. The defendant m error, J. M. Taylor, earnestly insists that our original opinion is in conflict with the opinion of Section B of the Commission in Oilmen’s Reciprocal Association v. Gilleland, '291 S.W. 197, and with the opinion of the Court of Civil Appeals in Texas Employers’ Ins. Ass’n v. Sewell, 32 S.W.(2d) 262. In our opinion our holding in this case is-not in conflict with either of the above cases.

In the Gilleland Case, supra, it is shown by the opinion that the employer was a laundry company. Gilleland was employed by the laundry company as a bricklayer to wall the sides of a water well for the laundry company. While so engaged he was killed. The laundry company carried compensation insurance for its employees. Under the above facts Judge Powell, speaking for Section D of the Commission, held that Gilleland’s heirs could not recover on a compensation insurance policy which covered the laundry’s employees because the deceased was not engaged in the employer’s usual business. .

In the Sewell Case, supra, it was held that a person employed by a textile company to paint cottages being constructed for the employees of the mill to live in, and who was injured while performing such work, was not protected by the compensation insurance carried by the mill because the 'work of painting the cottages in question was not employment within the .usual course of the business of the textile mill.

In the instant case Taylor was an employee of the hotel company in the usual course of its business in running a hotel and as such recovered compensation for his injuries from the insurance company protecting the hotel company’s employees. This was his right.

Under the plain terms of section 3 .of article 8306, R. C. S.. of Texas 1925, the hotel company was protected by our Compensation Act. The very same article and section of the statute which protects the hotel company protects Haynes as the agent of the hotel company. If Haynes, who was employed by the hotel company to superintend the improvements being made by it, had been injured while doing such work, and was applying for compensation as an employee of the hotel company, the rule announced in the Gil-leland and Sewell Oases would have application.

We recommend that the motion for rehearing filed herein by the defendant in error, J, M. Taylor, be in all things overruled.


author: CALHOUN, J. LATTIMORE, J.

text:
    LOYD v. STATE.
    No. 14177.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Rehearing Denied June 3, 1931.
    L. Brann, of Hamilton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for fifteen months.

No bills of exception are brought forward. Motion for new trial was overruled on the 2d day of October, 1930, and notice of appeal given on the same date. The statement of facts was filed in the trial court on the 6th day of January, 1931, which was more than 90 days after notice of appeal was given. This was too late. Article 760, C. C. P.; Simmons v. State (Tex. Cr. App.) 28 S.W. (2d) 1084.

We note that the verdict of the jury finding the appellant guilty assessed his punishment at fifteen months in the penitentiary, while the sentence fixed his punishment at confinement in the penitentiary for a straight term of fifteen months. The sentence will therefore be reformed so as to assess appellant’s punishment at confinement in the penitentiary for an indeterminate period of not less than one year nor more than fifteen months, and, as so reformed, no question being presented for review, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Appellant files a motion for rehearing, urging the insufficiency of the testimony. It seems useless for us to repeat what was said in the original opinion, viz. that we could not consider the statement of facts because filed more than ninety days after notice of appeal. If the facts in any given ease be insufficient to justify the conviction and incarceration of a citizen of this state, it would • be indeed unfortunate if he, or those representing him, should neglect to comply with the plain requirements of the law by having a transcription of such facts filed as a part of the record within the time fixed by the statute.

Not being able to consider the facts, the motion for rehearing will be overruled.