author: MASSEY, Chief Justice.

text:
    Bill Jack EVANS et al., Appellants, v. YOUNG COUNTY LUMBER COMPANY, Appellee.
    No. 16427.
    Court of Civil Appeals of Texas. Fort Worth.
    May 31, 1963.

      Nelson, Montgomery & Robertson and Charles B. Russell, Jr., Wichita Falls, for appellants.
    Jennings, Montgomery & Dies and Frank Jennings, Graham, for appellee.
   MASSEY, Chief Justice.

Our opinion in this case, filed under date of May 3, 1963, is withdrawn and the following substituted therefor.

This case is companion to Wall et al. v. Young County Lumber Company, Tex.Civ.App., 368 S.W.2d 789 our opinion in which was handed down May 3, 1963. Defendants having the material interest in the instant case are Bill Jack Evans and The First National Bank of Bowie, Texas.

In the oral presentation of argument in the two cases, attorneys in both represented and agreed that the cases could and should be considered at the same time. The judgment under examination grew out of the litigation in said companion case and is supported, if at all, by the judgment or judgments therein entered. We deem it particularly important so to mention for much omitted from the transcript in the instant case may be found in the transcript of that to which it is companion. In view of the representations and agreement of the attorneys, we have, in our work upon the instant opinion, referred to and considered as part of the record before us instruments in the other transcript. We have not directed the clerk of the trial court to bring up said instruments in a supplemental transcript, believing that such a requirement would occasion needless expense under the circumstances, and furthermore aware that the parties would be entitled to file such a supplemental transcript at a later time if subsequent developments indicate any necessity.

Judgment in the instant case (given the number 14,654 in the trial court) was one by which the trial court declared that when title to three certain lots and parcels of land was apparently conveyed from one Oswalt to Lakeland Lumber and Construction Company, by deed dated July 29, 1960, the actual grantee under legal and equitable principles was M. D. Wall, the alter ego of Lakeland. Further, that since Young County Lumber Company, plaintiff, had on October 27, 1960, obtained a personal judgment against M. D. Wall in the principal sum of $28,812.54 (in the same district court) in Cause No. 14,406, styled Young County Lumber Company v. M. D. Wall,— abstract of which judgment having been recorded on October 27, 1960, in Vol. 11, p. 281, Abstract of Judgment Records of Young County, — a valid judgment lien then and there became fixed upon said real property aforedescribed and as to which plaintiff’s lis pendens notice had been placed of record when its suit was filed; and that the lien of said plaintiff having become then and thereby fixed, and encumbering said real property, was prior and superior to the liens against the same property claimed by defendants Bill Jack Evans and The First National Bank of Bowie, Texas. The judgment also declared that plaintiff Young County Lumber Company was entitled to issuance and levy of execution upon the three lots pursuant to the judgment it had obtained and recorded on October 27, 1960. In part, the judgment was declarcb-tory, and in part was quasi m rein as fixing the status inter se"of the priority of the parties’ liens on realty.

From said judgment the defendants appealed.

Judgment is reversed and the cause remanded.

We have become convinced that the “judgment” which was entered under date of October 27, 1960, in Cause No. 14,406 could not under any theory have become a “final judgment” prior to date of May 21, 1962, when another “judgment” was entered under the same cause so docketed, numbered and styled upon completion of the trial of issues on the Trespass to Try Title phase of plaintiff’s suit. Furthermore, an appeal was perfected from the “judgment” in Cause No. 14,406, entered May 21, 1962, with a supersedeas bond as well as a cost bond filed. Our opinion in said case is the one companion hereto, being this day published and styled as Wall et al. v. Young County Lumber Company. We need not dwell upon the question of whether the trial court judgment in Cause No. 14,406 had ever become final and ap-pealable, for in so far as requisite for the purposes of our disposition of the instant appeal a treatment of it as having become final as of the date of its entry on May 21, 1962 would nevertheless be subsequent to the time of the conduct of the trial considered on the instant appeal. For convenience it will generally be so treated. Judgment therein was entered several weeks after the time of this trial, but we believe this to be of no consequence, the time of the trial being of paramount importance.

Judgment on the instant appeal (in Cause No. 14,654) was entered June 15, 1962. It followed and was pursuant to trial begun on April 23, 1962, with the jury’s verdict therein returned on May 11, 1962. Propriety of conduct of the trial and of any judgment rendered on the verdict returned therein was necessarily predicated upon the “finality” of that judgment in Cause No. 14,406 which was entered on October 27, 1960. This is so because the trial of the case before us on this appeal was held upon the theory that a judgment lien had attached upon the three lots perforce the judgment on October 27, 1960. No lien could have attached if said judgment was “interlocutory”. The first “judgment” was placed of record in the Abstract of Judgment Records of Young County on October 27, 1960. We do not know that the later judgment in Cause No. 14,406 was ever recorded.

Subject matter, or an integral part thereof, of plaintiff’s cause of action tried in Cause No. 14,654 was the “finality” of the judgment entered on October 27, 1960, for the subsequent trial was of a suit based on that judgment. If that judgment was interlocutory rather than final, and the fact was so shown on its face, it would in Texas be treated as a judgment which was void on its face, or as no judgment at all. No court has jurisdiction to enter a valid decree based upon such a void judgment for it constitutes subject matter of which no court has jurisdiction so long as its void character persists, and having no authority to base orders or judgments thereon under any circumstances, any such that a court does purport to make or render are null and void. They may be collaterally attacked in any court and at any time, including a time after appeal is perfected. Black on Judgments, p. 347, “Collateral Impeachment of Judgments”, § 278, “Judgment Void on its Face may be Attacked collaterally”; Withers v. Patterson, 1864, 27 Tex. 491, 498; Frankel v. Satterfield, 1890 (Del.), 19 A. 898. See also Restatement of the Law, Judgments, p. 65, “Validity of Judgments”, § 11, “Collateral Attack”; 49 C.J.S. Judgments § 20, Matured Cause of Action p. 51; Morrow v. Corbin, 1933, 122 Tex. 553, 62 S.W.2d 641. See also 30A Am.Jur., “Judgments”, § 863, “(Grounds for Collateral Attack) — Generally”, § 912, “Necessity of Valid Judgment”, § 939, “Finality of Judgment”, § 944, “(Validity of Judgment) — Generally”, and § 945, “Jurisdiction”.

Our conclusion that the October 27, 1960 decree was an “interlocutory” judgment, and as such an inadequate foundation for any judgment lien for the party in whose favor it was entered, proper only to be treated as a judgment void on its face, depends upon an examination and analysis of the occasion for its entry in the first instance, its form and substance, the effect given it by the court and the parties affected thereby, and the form and substance of the judgment in the same cause thereafter entered on May 21, 1962.

In our Rules of Civil Procedure there are two which have an important bearing, one or the other of which will control our decision in the case. One is Rule 174, “Consolidation; Separate Trials”, which in our opinion is the Rule having application to the case. The other is Rule 41, “Misjoinder and Non-Joinder of Parties”. We do not believe that Rule 41 has any application to the case. In our analysis we had occasion to resort rather extensively to 36 Tex.Law Review, p. 339 et seq., an article entitled “Severance and Separate Trial in Texas” by Robert A. Hall. The author of this opinion is fully in accord with those portions of the article having application to the narrow question necessary to be determined on the appeal. Also examined and considered was 30A Am.Jur., p. 240, “Judgments”, § 121, “Final and Interlocutory”, upon which this court relied in the decision of Warner Electric Brake & Clutch Co. v. Bessemer Forging Co., Tex.Civ.App.1961, 343 S.W.2d 471, writ ref., n. r. e.

In Warner Electric Brake, supra, it was the appellant’s cause of action which was adjudicated and we held that where the language of the judgment left pending for trial no part of the cause of action of the appellant, the judgment should be regarded as one whereby the entire cause of action of the appellant was ended as merged into final judgment. Conversely, we believe and hold that where it is the ap-pellee’s cause of action which is adjudicated, but where in the adjudication there is left pending for trial some part of the cause of action of the appellee, which trial has not occurred, then the judgment which has been rendered should not be regarded as one whereby the entire cause of action of said appellee has been ended as merged into final judgment. Such a rule would have particular application in a case, such as that under consideration, where damages or other amounts due the plaintiff are unliquidated, or are conditional or contingent upon the outcome of another trial.

In Cause No. 14,406 the judgment (which we hold to have been interlocutory) entered on October 27, 1960 decreed Wall’s personal liability to plaintiff in the amount of $28,812.54. The trial which culminated in the decree for such recovery was begun before a jury on October 24, 1960, and support for the decree is to be found in the jury’s verdict. Said trial was a “separate trial” of a portion of the cause of action of the plaintiff, Young County Lumber Company against M. D. Wall, whereby there was sought to be established plaintiff’s cause of action in sworn account against Wall alone. Order for such separate trial was entered by the court on the day the trial began pursuant to plaintiff’s motion therefor, a part whereof reading as follows: “The materiality of Second, Third and Fourth Counts of plaintiff’s first amended original petition are contingent upon the outcome of First Count. Defendant M. D. Wall has disputed the amount of the debt sued upon by plaintiff and has stated under oath that when the amount thereof is determined with certainty he is ready, willing and able to pay the same. In that event, Second, Third and Fourth Counts will become immaterial and can be dismissed.” Plaintiff further predicated its motion upon the representation that the trial of all the counts together would result in an exceedingly complicated and prolonged trial, of considerable useless expense to parties (to the suit) other than Wall who had no interest in any trial on the issue of Wall’s debt, etc. In the prayer of the motion plaintiff requested: “ * * * that in furtherance of convenience and to avoid prejudice, the court order a separate trial of the issues involved in First Count * * * before the trial of the issues involved in Second, Third and Fourth Counts. * * * ” Order of the trial court was in accord. The order did not intimate that the court intended any severance of causes of action within the contemplation of the aforementioned Rule 41.

The Third Count of plaintiff’s original suit was against not only Wall but furthermore, by and through Wall, against the Lakeland Lumber and Construction Company, a corporation, which plaintiff contends was Wall’s alter ego. It was also against one Don Bryce. Bryce had advanced $6,000.00 to Wall against specific instructions of the plaintiff. Bryce’s employer at the time, in what appeared to be a continuation of the business practices of plaintiff with Wall whereby the latter not only obtained “advancements” of cash by use of which he bought lots to be used in his business of “speculative” residential construction, but also obtained on credit the lumber and materials used to construct the residences. By use of $1,200.00 out of the aforesaid $6,000.00 Wall purchased a certain lot in Young County, title to which was later transferred to Lakeland Lumber and Construction Company, a part of the stock in which (or entitlement thereto) was transferred to Bryce. All this is discussed in the companion appeal heretofore mentioned.

It is obvious that plaintiff preferred to have a judgment in Trespass to Try Title (form of action in Count Three of plaintiff’s original suit) which would declare it the owner of the lot and improvements thereon if any. It is furthermore obvious that if plaintiff could show itself entitled to obtain title to the lot by its Trespass to Try Title Suit, a condition thereof would be to credit the amount theretofore awarded, by the decree of October 27, 1960, with the sum of $1,200.00 which went into the lot. Plaintiff could not be entitled to both the lot and also to the $1,200.00 as a part of the total amount decreed as the personal indebtedness owed by Wall under the judgment of October 27, 1960. Alternatively, however, plaintiff would surely be entitled to a personal judgment against Wall for the-$1,200.00 if it could not prevail on the Trespass to Try Title Count.

Pursuant to further motions for “separate trial” of the remaining “Counts” in plaintiff’s original suit, after trial of the First Count, orders having been entered in its behalf granting the same, the count in Trespass to Try Title was ordered tried separately from the Fourth Count. Not all the counts in plaintiff’s original suit have been tried. The suit by reason of which the appeal is before us was separately filed.

Of paramount importance to our proper disposition of the appeal is the propriety of the trial of the suit, as of the time the same was conducted, in that propriety thereof was necessarily predicated upon a judgment which was either final, or conversely interlocutory, and by reason thereof the lien purportedly fixed upon the subject property was accordingly either valid or void. In the determination of such propriety we believe that the questions involved are to be resolved by deciding whether the trial of Count 3 of plaintiff’s original suit, the Trespass to Try Title suit, should be treated as a “separate trial” under Rule 174 or as the trial of “a severed cause of action” under Rule 41 in relation to the antecedent trial of Count 1, the suit to establish Wall’s personal liability on an account. Our decision is that it was a “separate trial” and not a trial of “a separate cause of action”.

The “separate trial” of the Trespass to Try Title issue was conducted before the court without a jury. This trial began on April 19, 1962. Judgment was entered on May 21, 1962. Thereunder the plaintiff Lumber Company was awarded title and right to possession of the lot in question. Interesting is the part of the judgment which additionally provided as follows: “IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the court that the money judgment entered in favor of plaintiff Young County Lumber Company against defendant M. D. Wall in the trial of the FIRST COUNT of this suit dated October 27, 1960, be credited in the sum of Twelve Hundred Dollars ($1200), such being the amount of the funds belonging to plaintiff and used by said defendant in the purchase of the above described parcel of real estate.” We conclude that the judgment decree of October 27, 1960 was for an “unliquidated” amount; that by the subsequent judgment decree of May 21, 1962 the amount formerly “un-liquidated” was “liquidated” and established, not as stated in the October 27, 1960 decree but certainly in an amount at least $1,200.00 less than the amount therein recited. Plaintiff’s “entire cause of action” against M. D. Wall could not be regarded as ended, and merged into final judgment, until both counts (Count 1 and Count 3) had been tried. If we are correct it is certain that plaintiff’s judgment of October 27, 1960 was not “final” at the time of the trial from which the defendants have perfected this appeal.

From Mr. Hall’s article in 36 Tex.Law Review 339 it is stated that in order for a severance to be had under Rule 41 so that there will be two or more separate and distinct causes of action, each of which might constitute a complete lawsuit within itself, with separate final judgments resulting, it is requisite that: (1) There must be a controversy involving more than one cause of action. (2) The cause severed must be such that it could be the proper subject of a lawsuit were it the only claim involved in the controversy. (3) The causes sought to be severed must not be so interwoven as to involve the same identical facts and issues nor, in certain instances, may the causes be severed if they relate to the same subject matter. However, a separate trial may be held under Rule 174 subject to the following considerations: (1) The controversy must involve more than one issue. (2) The issue which is carved out does not have to be capable of being the subject of a separate and independent lawsuit. (3) The issues must not be so interwoven as to require the same witnesses and proof of identical facts.

Mr. Hall further states: The terms (severance and separate trial(s)) are distinguished from each other in that (1) a severance requires the existence of more than one complete cause of action in a controversy while a separate trial does not. The separate trial merely requires the existence of more than one issue. (2) A severance of an action splits the lawsuit into two or more suits which terminate in two or more separate judgments, but a separate trial of issues does not have that effect. (3) Although a severance can remedy the misjoinder of parties or actions, a separate trial of issues is not designed to accomplish this purpose. (4) The disposition of a severed cause of action may be a final judgment which may be enforced or appealed, but the termination of a separate trial of issues is evidenced by an interlocutory order of the court which is not a final judgment and from which no appeal lies.

Being convinced of the propriety thereof we hold that: (1) The decree of October 27, 1960, in Cause No. 14,406 in the District Court of Young County, based upon the trial of the issue of the indebtedness of M. D. Wall to the plaintiff could not have become final prior to the entry in the same numbered and styled cause of the judgment decree dated May 21, 1962, based upon the trial of plaintiff’s count in Trespass to Try Title, — because the two trials held and decisions thereof made in the two decrees constituted mere separate trials of issues in a single lawsuit upon which no legally final judgment was or could be considered to have been entered in the trial court prior to May 21, 1962. (2) The trial of the cause of action of plaintiff Young County Lumber Company against the defendants who have brought the instant appeal, having been held beginning April 23, 1962, with the jury’s verdict returned on May 11, 1962, followed by judgment entered on June 15, 1962, was a trial of the case at a time prior to the time of any final (and appealable) judgment in Cause No. 14,406 upon the indebtedness of M. D. Wall to plaintiff. (3) The cause of action brought forward and complained of by defendants on the instant appeal was predicated upon the theory that plaintiff’s judgment in Cause No. 14,406 was final at the time trial was held in April and May of 1962, and that plaintiff’s judgment lien in Cause No. 14,406, abstracted on the theory that it had attached upon the property against which the defendants held contractual liens, was prior and superior to the defendants’ liens. (4) The cause of action was not ripe for trial at the time it was tried in that there had not been any final judgment in the case upon which the same was necessarily predicated, which case was pending on the docket of the trial court which tried the instant case, and said court did not have complete jurisdiction of the subject matter of the suit, nor could have except upon the finality of the judgment upon which the plaintiff’s cause of action was founded and its jurisdiction to enter judgment contingent.

Judgment of the trial court is reversed and the cause remanded to the trial court for further proceedings not inconsistent with our opinion. We do not believe that the character of this case, on appeal, constitutes it a cause of action on which our proper order could be other than one which reverses and remands.


source: Caselaw Access Project

license: Public Domain

text:
    M. D. WALL et al., Appellants, v. YOUNG COUNTY LUMBER COMPANY, Appellee.
    No. 16403.
    Court of Civil Appeals of Texas. Fort Worth.
    May 3, 1963.
    Rehearing Denied June 21, 1963.

      Nelson, Montgomery & Robertson and Allan D. Montgomery, Wichita Falls, for appellants.
    Jennings, Montgomery & Dies and Frank Jennings, Graham, for appellee.
   MASSEY, Chief Justice.

This case is companion to Evans et al. v. Young County Lumber Company, Tex.Civ.App., 368 S.W.2d 783, opinion in which is handed down simultaneously herewith.

In the trial court the docket number of this case was No. 14,406. The judgment in the aforesaid companion appeal (which at time of trial below bore trial court docket No. 14,654) was based upon that part of the judgment here under review which was “interlocutory” (entered October 27, 1960). Therein we so hold, and further that no valid process could be founded thereon because the “interlocutory” judgment could not be treated as final until it became appeal-able upon the entry of the subsequent judgment on May 21, 1962.

Judgment as so finally entered on May 21, 1962, became one for plaintiff Young County Lumber Company. Thereby plaintiff was awarded equitable title to, and the right to possession of, a certain parcel of real estate in Young County — as against defendants M. D. Wall, Don Bryce, and Lakeland Lumber and Construction Company, and also — solely as against the defendant Wall—was awarded a personal judgment in the amount of $27,612.54 plus interest thereon from October 27, 1960. It is obvious from the record that if the judgment is to be reformed and affirmed the personal judgment against Wall in the amount of $27,-612.54 should be increased to $28,812.54, plus interest thereon from October 27, 1960. This result is proper because if plaintiff is not entitled to any judgment in Trespass to Try Title the $1,200.00 was erroneously credited against Wall’s personal liability.

We do so reform and affirm the personal judgment. Judgment in Trespass to Try Title is reversed.

We will not here discuss the basis for our treatment of the 1960 trial as having been “interlocutory”, because thereby was merely concluded a “severed issue” of sworn account in a single suit, following which an issue remained to be tried, to-wit: a Trespass to Try Title issue. For an understanding thereof resort must be had to the companion case of Bill Jack Evans et al. v. Young County Lumber Company. Conclusions upon which we reverse the Trespass to Try Title part of the judgment below would have like application and justify a like reversal had we reached the opposite conclusion, i. e., that there was a “severance” of the case into separate suits. This is clarified in our discussion to follow.

It is highly interesting to note that on the trial of the “severed issues”, culminating in the judgment on May 21, 1962, the attorneys on both sides temporarily labored under the erroneous impression that the interlocutory decree of October 27, 1960, was not a part of the final judgment thereby entered, although it appeared that the judge so considered it for a $1,200.00 credit was declared applicable thereto in view of the entry of the decree awarding plaintiff title to the lot (that $1,200.00 of the account had been used to purchase). That the attorneys for plaintiff had such an erroneous belief -is obvious from a reference to the companion opinion. That the attorneys for defendants Wall, Bryce and Lakeland believed likewise and that it was solely a judgment in Trespass to Try Title case from which they appealed is obvious when it is noted that they not only filed a cost but also a supersedeas bond in the amount of $1,750.00.

We will here make an abbreviated statement as applied to the appeal under examination. During 1959 plaintiff Lumber Company was in the lumber and material business in Graham, Texas, doing business with defendant M. D. Wall, a person engaging in “speculative building”. Don Bryce was the manager for the plaintiff. Pursuant to the business being done, Wall’s indebtedness to the company immediately prior to October 17, 1959 had become $6,000.81. On that date plaintiff, through the act of Bryce, advanced $6,000.00- in cash to Wall making the balance of the amount $12,000.81. The greater part of this “advancement” was used by Wall to purchase vacant lots upon which he planned to build houses. One of these lots was purchased by use of $1,200.00 out of the “advancement”. This was the parcel of real estate to which the plaintiff was decreed title by the judgment of May 21, 1962, on account of which the appeal was taken.

We advert to the matter of Wall’s "account” with plaintiff. It is noted that when the $6,000.00 was advanced to Wall on October 17, 1959 the books reflected that there had been similar advancements on earlier occasions. Evidence in the record established, as to Bryce, that the plaintiff’s directors had instructed him shortly prior to October 17, 1959 to make no further cash advancements to Wall. The record reflects no testimony to the effect that Wall knew of such instruction. There is testimony that Wall did not know about it. In any event, after October 17, 1959 several other similar “advancements”, in varying amounts, were also made to him by Bryce, acting for plaintiff. Further, the account shows that nearly every week credits in varying amounts were placed on the account record, obviously as Wall would make payments to be applied thereon. By November 9, 1959 Wall had made payments thereon which amounted to at least $18,797.30. If the payments so made were properly creditable to the oldest part of the account it is obvious that the $12,000.81, owing as of October 17, 1959, would have been fully paid. As a matter of fact, in view of purchases made on Wall’s credit in the intervening period, plus some rather insignificant additional “advancements” made to him, the balance owing on the account as of November 9, 1959 was $7,479.61.

In November of 1959 Wall was “advanced” $9,000.00, with other “advancements” on December 8 and 15 amounting to $6,000.00. This $15,000.00 operated to make up a part of a $24,808.46 balance owing by him on February 5, 1960. Essentially the “difference” constituted charges made for lumber and materials. Plaintiff went out of business in January of 1960.

Bryce lost his job, but through an agreement with Wall the two organized a corporation- called the Lakeland Lumber and Construction Company. Lakeland did not last long. There is a question about whether it was the alter ego of Wall, but this is immaterial in view of conclusions in our discussion. Lakeland was involved in the case as applied to Trespass to Try Title and not as applied to the account phase. The same thing is true as to Bryce, and although our disposition of the case on appeal is primarily predicated upon grounds which relieve all the defendants from any liability in the Trespass to Try Title phase, Bryce would be relieved in any event for he was never connected with the title which is the subject of dispute.

In June, 1960 the plaintiff brought its suit. There were additional defendants named in the suit. They were interested and involved only in the event plaintiff be found entitled to prevail on the first count therein which involved a cause of action on sworn account against M. D. Wall. Counts in the suit other than that on sworn account against Wall, included that in Trespass to Try Title against Wall, Bryce, and Lake-land. No other defendant was involved in the Trespass to Try Title count. We are able, therefore, for purposes of this appeal, to treat the suit of plaintiff as involving only two counts, the first being that in sworn account against Wall, and the second that in Trespass to Try Title against Wall, Lake-land, and Bryce. In the discussion to follow we will, therefore, completely ignore those other counts in plaintiff’s suit, as originally filed, which involve other defendants.

Prior to the trial of the sworn account phase, the trial court on motion of the plaintiff, entered an' order directing that it be determined in a “separate trial”, before trial of the Trespass to Try Title phase. We hold the order to have amounted, in law, to one which directed a “separate trial” of the issue on sworn account from the issue in Trespass to Try Title within the contemplation and provisions of Texas Rules of Civil Procedure 174, “Consolidation; Separate Trials”.

In the trial of the issue of sworn account plaintiff proceeded upon the theory that it would establish the account, and if successful in so doing would upon the trial of the Trespass to Try Title issue, show that $1,-200.00 out of the cash “advancement” of $6,000.00 on October 17, 1959 should be treated as having constituted its own funds (rather than those of Wall) which went into the purchase of the lot in question, by reason of which it was entitled to have its title engrafted thereon under an equitable trust theory. If successful on both trials, it was the intention of plaintiff to “credit” $1,200.00 against the recovery in the decree entered following trial of the sworn account issues. Plaintiff would either have two judgments or a dual type of judgment, in part a personal judgment against Wall for money due on sworn account, and in part a judgment in rein for title to real estate.

A basic fallacy in the theory under which plaintiff alleged its case and conducted trial of the issue in Trespass to Try Title lay in the fact that upon the prior trial of the issue of sworn account it had proceeded with unqualified sworn pleadings binding it (in view of its recovery thereunder) to treat the entire $6,000.00 “advancement” of October 17, 1959 as an integral part of the whole of the items going to make up the account upon which its suit was prosecuted. To do so, and later contend that the $6,000.00 or any part thereof was money or property as to which it always retained “title” and ownership would in our opinion necessarily be inconsistent with the sworn allegations upon which the antecedent trial of the account phase was conducted.

We are of the opinion, and therefore hold, that plaintiff Young County Lumber Company was “judicially estopped” from any contention, during the course of the 1962 “separate trial” on Trespass to Try Title, (1) that the credits shown on Wall’s sworn account (upon which the 1960 “separate trial” was conducted) were not properly applicable to the oldest part of the account sued upon, — and (2) from the contention that title to the advancements in cash thereon shown along with the charges or advancements for material (as to which there is no question but that title vested in Wall) had not passed. We hold that the $6,000.00 became a mere indebtedness owing by Wall to plaintiff exactly as did the charges made against Wall on the account for material plaintiff sold to him.

In the trial of the issues on the action of sworn account, the verified “account” of plaintiff was one upon which plaintiff declared by its suit in which it was alleged: “ * * * (Plaintiff) at the special instance and request of defendant M. D. Wall, sold and delivered to said defendant certain goods, wares, merchandise and material, and advanced said defendant certain sums of money, in consideration of which said defendant then and there promised to pay to plaintiff the several sums of money charged * * * and the sums of money so advanced.”

Plaintiff obtained the 1960 judgment, albeit interlocutory, upon its suit as same obtained in sworn account. Therefore it necessarily took a positive position, and supported that position by its sworn statement. The position was necessarily one by which plaintiff asserted that Wall owed it a debt which included the $6,000.00 advanced on October 17, 1959. Thereby plaintiff became “judicially estopped” from contrarily maintaining during the course of the 1962 trial that any part of the “advancement” was its own funds which went into the $1,200.00 purchase price of the lot in the absence of proof that its contentions on the trial in 1960 were made inadvertently, or by mistake, fraud, or duress. See 22 Tex.Jur.2d, p. 689, “Estoppel”, § 18, “Judicial estoppel”; 11 S.W. Law Journal 96, “Procedure — Judicial Estoppel — Sworn Statements”, and the article in 8 Baylor Law Review 41, therein referred to. By the doctrine of “Judicial Estoppel” a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary of the assertion later sought to be made. Long v. Knox, 1956, 155 Tex. 581, 291 S.W.2d 292.

For the same reasons the amounts paid by Wall to the plaintiff and credited against the account, before plaintiff made any declaration and demand thereon, should, as of the time of each payment, be credited against the oldest part of the account. References to the account reveals that if such be treated as having been done, the entire $6,000.00 had been repaid long prior to the time when plaintiff stopped the account and demanded payment. To so credit Wall’s account would of course be in accordance with the general rule, even without application made of the doctrine of judicial estop-pel, applicable where the debtor has not directed that his payments be otherwise credited. There was no circumstance existent in the present case which would alter such general rule and there was no direction ever made as to any mode of crediting Wall’s account.

We have examined all the points presented but do not believe it necessary to enlarge our discussion. We sustain the points. By so doing we are left with a case in which plaintiff is entitled to its personal judgment against Wall, but in an amount greater than that recited by the final judgment. The occasion therefor is because the $1,200.00 was erroneously credited upon the 1960 “interlocutory” judgment at time of the judgment entry on May 21, 1962. Obviously it was erroneously so credited under the trial court’s mistaken opinion that plaintiff was entitled to prevail on the Trespass to Try Title count. It is proper that we correct this error.

We reform the judgment so as to make it a personal judgment in behalf of plaintiff Young County Lumber Company against M. D. Wall in the amount of $28,812.54, plus interest thereon from October 27, 1960. In so far as the judgment grants other or alternative relief in rem or against M. D. Wall, Don Bryce, and Lakeland Lumber and Construction Company, the same is reversed and a judgment rendered that plaintiff take nothing.

All costs other than those accrued against M. D. Wall as of time of the “interlocutory” judgment of October 27, 1960, are taxed against Young County Lumber Company.


text:
    H. Don RODGERS, Appellant, v. COUNTY OF TAYLOR, Appellee.
    No. 3776.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 15, 1963.
    Rehearing Denied June 14, 1963.
    Scarborough, Black & Tarpley, J. R. Black, Jr., Abilene, for appellant.
    Bryant, Glenn & Thomas, Allen Glenn, Abilene, for appellee.
   H. Don Rodgers filed suit against Taylor County, Texas, for services rendered in reporting and transcribing testimony taken before a grand jury in Taylor County. He alleged that the County, through its County Judge and one of the Commissioners, at the request of the District Attorney and the foreman of the grand jury, employed him to render such services; that Taylor County, through its Commissioners’ Court passed an order instructing its County Attorney not to file a contest to Rodgers’ claim because they considered Rodgers’ account an honest debt contracted for in good faith and that it should be paid by the County. W. Lee Feemster, a resident tax-paying citizen, intervened and filed an answer for himself and other tax-paying citizens. He contended that Taylor County had no authority to pay Rodgers for his services.

The court granted Feemster’s motion for a summary judgment and denied Rodgers’ motion for a summary judgment. Feemster was also granted a permanent injunction against the County Judge and Commissioners enjoining them from paying Rodgers’ bill. Rodgers has appealed contending the court erred in granting Feemster’s motion and overruling his motion for a summary judgment.

Rodgers made a motion for a summary judgment and in support of his motion attached his affidavit, a certified copy of an an order of the Commissioners’ Court ratifying the action of the District Attorney in hiring the Court Reporter, and a certified copy of the order of the Commissioners’ Court directing its County Attorney not to file an answer.

The County filed a reply to Rodgers’ motion and asserted that Rodgers’ claim was an honest and just claim and that his charges were reasonable. They attached to their reply an opinion of the Attorney General holding that the County Auditor could approve a claim by a Court Reporter for a Transcript made of grand jury proceedings, when requested to do so by the District Attorney, if the Commissioners’ Court either approved or ratified said claim. The opinion further holds that a District Attorney was acting in the proper and legal conduct of his office when he contracted for a Transcript of an examining trial, Attorney General Opinion (1949) V-976, and employing a public accountant to audit records for the grand jury Attorney General Opinion (1961) WW-1086. They also attached an affidavit by the Honorable Harvey C. Brown, the Official Court Reporter of the 42nd Judicial District Court, that a charge of $30.00 per diem and $1.25 per page for the original and two copies of the transcribed testimony was reasonable.

The District Attorney replied to Rodgers’ motion and said that the motion should be granted for the reason that the services were performed and the charges were reasonable and were legal and proper expenses of his office.

Rodgers’ affidavit reveals that on or about February 8th, 1962, he was called to the courthouse by the District Attorney; that he met with the District Attorney, the foreman of the grand jury, the County Judge and one of the County Commissioners and was then and there employed to report and transcribe the questions and the answers given by witnesses appearing before the grand jury; that said officials then and there agreed with him upon the charges for his services, which were $30.00 per diem and $1.25 per page; that one of the sessions of the grand jury commenced on February 8, 1962, and another commenced on or about February 26, 1962; that he performed such services and presented his bill for $2,012.50 to the District Attorney; that the Commissioners’ Court ratified his contract with the District Attorney, County Judge and one of the Commissioners; that his bill for services rendered was presented to the County Auditor and rejected; that the amount charged for his services was customary and reasonable, and that he rendered such services with the knowledge, acquiescence and approval of the majority of the Commissioners of Taylor County.

Rodgers’ affidavit revealed that his contract was made with the District Attorney, the foreman of the grand jury, the County Judge and one of the Commissioners and that the Commissioners’ Court ratified the action of such officials. Other proof showed that the contract was actually made with the District Attorney and that the Commissioners’ Court ratified the action of the District Attorney. Appellee’s contention that this variance presents a material issue of fact cannot be sustained. It was only material and necessary to establish that the District Attorney made the contract and that his action was ratified.

Appellee’s basic contention is that Taylor County has no authority to employ Rodgers because it was not necessary in the legal conduct of any Taylor County office.

In support of his motion for a summary judgment Feemster relied upon the deposition of the County Judge, Reed Ingalsbe, and one of the Commissioners, Grover Nelson. The County Judge’s deposition reveals that the District Attorney approached him and Mr. Nelson and informed them that the grand jury had requested that their proceedings be transcribed. The County Judge told the District Attorney, in effect, that he thought the request should be granted and instructed him to proceed accordingly. Commissioner Nelson testified that the Commissioners’ Court ratified the action of the District Attorney in hiring Rodgers.

“This court recognizes the right of a taxpaying citizen to maintain an action in a court of equity to enjoin public officials from expending public funds under a contract that is void or illegal. Looscan v. County of Harris, 58 Tex. 511; City of Austin v. McCall, 95 Tex. 565, 68 S.W. 791; Terrell v. Middleton, Tex.Civ.App., 187 S.W. 367, error refused, 108 Tex. 14, 191 S.W. 1138, 193 S.W. 139; Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94. The vigilance of a citizen who takes upon himself that burden in the interest of good government is to be commended. However, the procedure is generally recognized as being drastic and, in order to be authorized to maintain such an action, a citizen must bring himself strictly within the established rules. Governments cannot operate if every citizen who concludes that a public official has abused his discretion is granted the right to come into court and bring such official’s public acts under judicial review. The right, therefore, of a citizen to maintain such an action is strictly limited to cases of illegality of the proposed expenditure and does not extend to cases of unwise or indiscreet expenditures.” Osborne v. Keith, 142 Tex. 262, 177 S.W.2d 198.

Section 18 of Article 5 of the Constitution of the State of Texas, Vernon’s Ann.St., provides, in part, that the Commissioners’ Court shall exercise jurisdiction over all “County business” that is conferred upon it by the Constitution and the laws of this state.

Article 3899, Section (b) of the Revised Civil Statutes of Texas, Vernon’s Ann.Civ.St., provides, in part, that each officer named in the act, and we find that a District Attorney is named in the act, “shall be entitled and permitted to purchase or charge to his county all reasonable expenses necessary in the proper and legal conduct of his office.”

We must use a broad and liberal rule of construction in determining whether reporting testimony of a grand jury is “County business” as that term is used in the Constitution. We have concluded that the same rule of construction should be used in construing the above quoted provision of Article 3899. “Within the meaning of the Constitution creating and conferring jurisdiction upon commissioners’ courts, we think it is proper to give to the term ‘county business’ a broad and liberal construction so as not to defeat the real purpose that was intended to be accomplished by the law in providing that the commissioners’ court shall exercise such power and jurisdiction over all county business as is conferred by the Constitution and the laws of the state * * Glenn v. Dallas County Bois D’ Arc Island Levee Dist., Tex.Civ.App., 275 S.W. 137.

The grand jury, under our system of government, is a separate tribunal and their proceedings are secret. It is an inquisitorial body. Its duty is to inquire into violations of the criminal laws m the county where they are impanelled. Article 381, Code of Criminal Procedure. Pigg v. State, 71 Tex.Cr.R. 600, 160 S.W. 691. In the discharge of their duties, the grand jury considered the matters they were investigating of sufficient importance to have the testimony of the witnesses recorded and transcribed. The District Attorney, whose duties it was to represent the County in presenting matters to the grand jury, contacted and counselled with the presiding officer and one member of the Commissioners’ Court about the advisability of making such a record. The County Judge agreed that it would be proper to employ Rodgers. Pursuant to such authority, the District Attorney made the contract with Rodgers. The benefits which the County derived from Rodgers’ services are those general intangible benefits which flow to the public generally from good law enforcement. Rodgers performed his services with the knowledge, acquiescence and approval of the presiding officer of the Commissioners’ Court and one of its members. The County, the grand jury and the District Attorney accepted his services and the benefits accruing from his labors.

We have concluded that the Commissioners’ Court had authority to pay Rodgers’ bill. When the Commissioners’ Court ratified the contract of the District Attorney, the County was bound by such contract. “What the commissioners’ court could have authorized in the beginning, that court could subsequently ratify.” Cameron County v. Fox, Tex.Com.App., 61 S.W.2d 483.

If the Commissioners’ Court did not have authority to pay Rodgers’ bill under the above statute, we hold that the Commissioners’ Court was authorized to pay Rodgers’ bill under an implied contract. In Sluder v. City of San Antonio, Tex.Com.App., 2 S.W.2d 841, the court said “Since the decision in the French Case [City of San Antonio v. French, 80 Tex. 575, 16 S.W. 440] our courts have uniformly announced the doctrine that where a county or municipality receives benefits under a contract, illegal because not made in conformity with the Constitution or statute of the state, or charter provision of the city, it will be held liable on an implied contract for the reasonable value of the benefits which it may have received. In other words, while such contracts are void, and no recovery is permitted thereon, our courts hold that common honesty and fair dealing require that a county or municipality should not be permitted to receive the benefit of money, property, or services, without paying just compensation therefor. Under such circumstances, a private corporation would clearly be liable under an implied contract. There can be no sound reason why the same obligation to do justice should not rest upon a municipal corporation.”

The judgment of the trial court is reversed and judgment here rendered for H. Don Rodgers against Taylor County, Texas, for the sum of $2,012.50.


author: FRASER, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Robert L. LINDER, Appellee.
    No. 5577.
    Court of Civil Appeals of Texas. Waco.
    March 13, 1963.
    Rehearing Denied May 1, 1963.
    Second Motion and Amended Second Motion for Rehearing Denied June 19, 1963.

      Turpin, Kerr, Smith & Dyer, Thornton Hardie, Jr., Max N. Osborn, Midland, for appellant.
    Warren Burnett, Lee Arnett, Odessa, for appellee.
   FRASER, Justice.

This is an appeal from a judgment awarding maximum benefits under the Workmen’s Compensation Law of this State for total and permanent incapacity from injuries received while working as a .roughneck on February 23, 1960.

Issue No. 3 inquired whether or not ap-pellee’s total incapacity was permanent. Appellant presented four points of error, all directed at this issue. Points 2 and 4 alleged that there was no evidence to authorize either the submission of the issue or to support the jury’s affirmative answer thereto. Appellant’s Points 1 and 3 allege that there was insufficient evidence to- justify the court’s submission of said issue, or to support the jury’s affirmative answer thereto.

It appears from the record that there were only two witnesses who testified before the trial court. These two witnesses were appellee and his wife. The statement of facts does not show any other testimony from anyone. In other words, we have here a record with no medical testimony. We have carefully reviewed the evidence and record of this case and have-reached the conclusion that appellant’s Points 1 and 3 must be sustained. Taking all of the evidence or testimony produced from plaintiff-appellee and his wife, and giving such testimony its most favorable and elastic construction, it does, in our opinion, fall short of warranting the submission of Issue No. 3 and of sustaining the jury’s answer thereto. Plaintiff and his wife testified as to the pain he had suffered; the doctors with whom he had consulted; the hospitals in which he had been confined; the treatments he had taken and was still taking; the pain he had suffered and was still suffering; the difficulty in working that he was encountering and the necessity of continued medication for pain; but nowhere does he, nor does his wife, say that he or she believes this condition to be permanent. Of course if they did make such a statement, such would come close to speculation or conclusion because of its non-medical or non-expert source. As we have just noted, there is a total absence in the record of any medical testimony, x-rays, hospital records, etc.; nor is there anything in the record to negative the possibility that surgery might either cure or alleviate the pain, discomfort or disability. For these reasons we must therefore hold that appellant’s Points 1 and 3 are well taken, and that there was insufficient evidence to warrant the submission of Issue No. 3 and to support the affirmative answer thereto by the jury, which of course was in plaintiff’s favor. Indemnity Insur. Co. of North America v. Cady, 356 S.W.2d 323 (Tex.Civ.App., 1962, no writ noted).

Appellant also urges, in Points 2 and 4, that there is no evidence to support the submission of and the answer to Issue No. 3, but we are not inclined to make such holding on the basis of the record before us, and therefore overrule these two points.

We do not cite other authorities, as the matters discussed here have been so long and clearly decided that they are elementary, and our finding is, of course, one of fact — to-wit, the insufficiency of the evidence.

Appellant’s Points 1 and 3 are therefore sustained, and the decision of the trial court is reversed and the cause remanded for new trial.

ON MOTION FOR REHEARING

In this particular matter the appellee has filed a very comprehensive and vigorous brief on motion for rehearing, and while our opinion is the same, we do feel that we should write on this motion.

In our original opinion we felt it necessary to reverse the trial court and remand this case for another trial. It is apparent from appellee’s brief, and we agree, that Mr. Linder, the appellee herein, was undoubtedly under a strong compulsion to work whenever possible because of the illness and attendant medical expenses of his little daughter, who was suffering from cancer. It is clear that in this case the “spur of necessity” does exist. But we must still maintain our position that there is no statement by anyone that, in his or her opinion, Mr. Linder is permanently injured.

Appellee calls our attention to our mention of the lack of medical testimony and also correctly states the law relative to the tender of surgery. We believe our opinion is clear in that we do not believe the lower court had enough evidence before it to submit the issues in question and that, correspondingly, there was insufficient evidence to warrant the jury’s finding such issues favorable to appellee. We mentioned the lack of medical testimony merely as an item indicative of the dearth of testimony. We also mentioned that the possible effects of surgery had not been negatived. Ap-pellee states in his brief as follows (we cannot cite the page as they are not numbered, but this quotation is at the bottom of the fourth page) :

“From May 12, 1960, until approximately the middle of August, Linder was under the regular care of the Midland ‘bone specialists’, who, at the time of his discharge from the hospital, had prescribed a back brace for him; they have not, by the way, suggested he discontinue its use, nor has any of the several doctors seeing him.”

We repeat, none of these doctors testified, nor are there any records from any of these hospitals. Therefore, whatever the doctors said or however they might feel about this back brace or its curative effects or the inability of the brace to cure, must remain in the realm of speculation based only on Mr. and Mrs. Linder’s testimony that he was not getting any better. There isn’t even any testimony that this was the right kind of a brace. Also, ap-pellee in his brief makes this statement:

“Of all the doctors treating him, the record does not reflect that any of them ever told him that he could, or would, be able to go back to work.”

This is true, of course, but it is equally true that the record does not reflect that of all the eight doctors involved, any of them told him that he would not get well, or that his injuries were permanent. We do not know what the doctors told him, because their testimony is not present in this record.

In conclusion, we would like again to call attention to the fact that the only two witnesses were plaintiff and his wife, and neither of them offered testimony or opinion that he was permanently injured. This, in our opinion, places too great a burden and too much responsibility on any court or jury, and leaves the outcome entirely too vulnerable to speculation, because it is hard to conceive how a finding that a man is permanently injured can be upheld when nobody has said that he is. We have considered this case with great care, because of its factual background and the hardships involved, as well as the seriousness of the legal problems; but we must adhere to our original position that there was insufficient evidence to warrant the court in submitting the two issues and to sustain and uphold the jury’s answers thereto.

Therefore, we must sustain appellant’s Points 1 and 3, and hold that this decision of the trial court be reversed and the cause remanded for new trial. Motion for rehearing overruled.


author: McNEILL, Justice.

text:
    Mrs. Louise HENDERSON, Appellant, v. Billy GOODWIN et al., Appellees.
    No. 6617.
    Court of Civil Appeals of Texas. Beaumont.
    May 23, 1963.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    Dies, Anderson & Dies, Lufkin, for ap-pellees.
   McNEILL, Justice.

This action was one in trespass to try title instituted September 18, 1953, by Mrs. Louise Henderson, appellant, against ap-pellees Billy Goodwin and Virgil Redd, seeking recovery of a tract of 33 acres situated in the northwest corner of the John Watson Survey in Angelina County. Virgil Redd, joined by his wife, Evie Redd, answered pleading “not guilty” and the benefit of the various statutes of limitation in land actions claiming that they had had adverse and peaceable possession of the premises described in appellant’s petition for the various periods of time sufficient to mature title by limitation. Billy Goodwin, joined by his wife, Mazy Lee Goodwin, and her mother, Mrs. Cora Wise, a widow, filed similar answer.

Upon the trial, appellees disclaimed as to all of the 33 acre tract except the portions marked “R” and “G” shown on the sketch below. Redd and wife claimed tract “R”, consisting of about 6 acres, and Goodwin and wife and her mother claimed tract “G” of about 7 acres. Appellant proved record title to the premises and the contest resolved itself into whether ap-pellees had shown adverse possession of these tracts “R” and “G”. The court submitted two issues to the jury. The first was one inquiring whether Billy Goodwin and wife and her mother for any period of ten consecutive years before September 18, 1953, had had peaceable and adverse possession of the land described as tract “G”, cultivating, using or enjoying same. The other issue was of similar language with reference to the peaceable and adverse possession of Virgil Redd and wife as to tract “R”. Both of these issues were answered in the affirmative and upon such verdict, the trial court rendered judgment for Goodwin and wife and her mother as to tract G”, and in favor of Redd and wife as to tract “R”.

Appellant makes various attacks upon this judgment. In order to understand the controversy, a sketch has been prepared of the area involved. This sketch follows.

This map is only approximately correct and is used for illustrative purposes only. The 33 acre tract described in plaintiff’s petition is bounded by the figures 1, 2, 3, and 8 on the map and is the northwest portion of the John Watson League bordering the Neches River. Directly north of the 33 acres is the S. Cheatham 181 acre Survey and it is bounded by the figures 2, 4, 7, 9 and 3; its south line being the north boundary of the 33 acre tract in suit.

J. M. Wise and wife, Mrs. Cora Wise, became the owners by deed in 1911 of the tract marked “Goodwin 45 acres” on the sketch. The south boundary of this tract is shown by the line 2-11. About 31 years ago Billy Goodwin married the daughter of the Wises and built a home on the north part of the Goodwin tract. Wise was then dead and his widow lived with her daughter and son-in-law, Billy Goodwin, for all this period of 31 years. Goodwin testified that soon after moving on the premises he built a fence from points 4 thru 2 to 1, from 4 to 5 and from 5 thru 11 h> 8. There was no material controversy that fences were built and maintained along the lines indicated for some 30 years. There is, however a material conflict in testimony as to whether a fence was built and maintained for any appreciable time along the line 1-8.

J. E. Wells owned all of the Cheatham Survey except the east 45 acres. About 1936, Wells’ wife died and he then conveyed to two of his daughters, for their mother’s share in the property, the tract labeled the “Redd 45 acres” tract, the south line of which is 10-11. Wells’ daughter, Evie Redd, was conveyed a tract at the north end consisting of about 10 acres and a tract of some 12 acres at the south end of the Redd tract. In between was situated a 22 acre tract which was conveyed by Wells to his daughter, Allie Birdsong. Redd and wife built a home on the north 10 acre tract, and Mrs. Birdsong and-her husband, who died years ago, built a home on the middle tract of 22 acres. Mrs. Birdsong has continued to live on the 22 acre tract. During all times material hereto, there has been no fence either along the line 6-14 nor along the line 2-3.

Appellant urges that the evidence fails to raise the issue of adverse possession as to either tract “R” or tract “G” and, in the alternative, that the evidence is insufficient to sustain the finding of the jury as to each tract. We have carefully read the entire Statement of Facts. It is our conclusion therefrom that appellees Redd and wife have failed to make a case for the jury as to tract “R”. The testimony shows that these tracts of land, both “R” and “G”, were fit only .for timber growing, cattle grazing, and hunting and fishing. In order to show continuous occupancy, both groups of appellees have necessarily relied upon their cattle grazing upon the tracts in dispute. The evidence most favorable to the Redds indicates that they sold timber off tract “R” a few times over the period of some 25 years involved, hunted and fished over the land, and that their cows grazed over the area. However, the evidence is conclusive that there was no fence along the line 6-14 and that other people who owned tracts in the Wells 90.7 acres had unfenced premises and the cattle in the neighborhood, including those belonging to the Birdsongs, grazed back and forth over all of the land west of line 5-8. Several witnesses testified that this area between points 5, 8, 3, 9 and 7 was open range territory where cows of several owners grazed at will, as well as some hogs and goats that went over the area.

This evidence fails to raise an issue for the jury as to tract “R”. No improvements of any kind were ever placed by ap-pellees Redd on this tract. They held possession of their premises north of the disputed area under deed and it is presumed that their possession only extended to the boundaries of their deed. In order, therefore, to establish adverse possession of the adjoining tract “R”, it was necessary for them to “ * * * have actual possession of such additional land of such a character as of itself will give notice of an exclusive adverse possession and mature into title after the statutory period.” Harmon v. Overton Refining Co., 130 Tex. 365, 109 S.W.2d 457 (460).

It was held in De Las Fuentes v. Macdonell, 85 Tex. 132, 20 S.W. 43, that the grazing of uninclosed land will not mature limitation title. There the adverse claimants grazed sheep and had a few sheep pens made of brush and posts on the premises. The land was only fit for grazing purposes. Cattle of others were permitted to graze upon it. In holding that the facts were not sufficient to sustain the adverse possession claimed, the court said:

“ * * * the mere occupancy of land by grazing live stock upon it, without substantial inclosures or other permanent improvements, is not sufficient to support a plea of limitation under our statutes. Uninclosed land, in this state, has ever been treated as commons for grazing purposes; and hence the mere holding of live stock upon it has not been deemed such exclusive occupancy as to constitute adverse possession.”

This holding was reaffirmed in Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781.

That timber was sold and removed from the land a few times over the period of some 25 years will not sustain an adverse claim; nor will hunting over the land and fishing in its waters do so. And when the claimed uses are considered together, they fail to complement one another so as to constitute continuous and exclusive possession of the land. W. T. Carter & Brother v. Ruth, Tex.Civ.App., 275 S.W.2d 126.

However, appellees Goodwin, wife and mother-in-law are in better position. This is so for the reason that there was substantial testimony that during the last 30 or so years there was built and maintained a substantial fence between points 1 and 8, (including the testimony of Goodwin that he, himself, built and maintained this fence) and that during this time Goodwin’s cattle and those belonging to his mother-in-law grazed upon and were kept within the inclosed pasture. If this evidence is believed, these cattle were thus contained within a fence that included substantially all of the Goodwin 45 acres and tract “G”. It was also shown by Goodwin and others that he sold timber which was cut off of this disputed land four or more times over this period. He hunted on this land often and used Cow Slough, that runs just north of and parallel to line 1-8, as a place of anchorage for his boats that he used in the river. In addition, he testified that he had a small ⅛ acre garden on a high strip near the edge of the river that he claims to have used several years. This garden spot was separately fenced.

Appellant asserts that since both Goodwin and Mrs. Wise, his mother-in-law, claimed this tract “G” that there was no exclusive possession as required under the statute. The 45 acre Goodwin tract was the community property of J. M. Wise and Mrs. Cora Wise. When Wise died, his one-half interest descended to his daughter, Goodwin’s wife. Hence, the relation of tenants in common existed between the Goodwins and Mrs. Wise as to the 45 acre tract. Since they made no distinction of their use and occupancy between the two tracts, it will be presumed they were claiming tract “G” as tenants in common. Persons claiming in such relationship may acquire title by adverse possession. Anzaldua v. Richardson, Tex.Civ.App., 287 S.W.2d 299 ; 2 Tex.Jur. (2) 143-144.

Before the court submitted his charge to the jury, appellant requested an issue as to whether the tract identified as “G” was not under an inclosure, as that term had been defined, until after 1945. In connection with this issue, appellant requested an instruction defining what an inclosure was, as follows:

“ * * * in order for lands to be held under an enclosure, the lands must be enclosed by fences or partly by fences and partly by natural barriers, such as rivers, mountains or cliffs, which are sufficient to prevent cattle of ordinary disposition from escaping from or entering onto the lands. To constitute an enclosure the fences must have been reasonably maintained, and any temporary breaks or gaps must have been repaired within a reasonable length of time.”

Both the issue and instruction were refused. Because of the conflict in the evidence as to whether a substantial fence existed along the line 1-8, we think the requested issue and instruction should have been given. De Las Fuentes v. Macdonell, supra; Sharrock v. Ritter, Tex.Civ.App., 45 S.W. 156; Freedman v. Bonner, Tex.Civ.App., 40 S.W. 47; Marion County v. Sparks, Tex.Civ.App., 112 S.W.2d 798; Walker v. Maynard, Tex.Civ.App., 31 S.W.2d 168 (171).

From what has been said above, it is ordered that that part of the trial court’s judgment vesting the title to tract “R” in appellees Virgil Redd and wife, Evie Redd, is reversed and judgment therefor is rendered in favor of appellant Mrs. Louise Henderson; and that part of the judgment vesting title to tract “G” in appellees Billy Goodwin and wife, Mazy Lee Goodwin, and Cora Wise (Maples) is reversed and remanded.


author: BATEMAN, Justice.

text:
    Charles S. DILBECK et al., Appellants, v. BILL GAYNIER, INC., Appellee.
    No. 16175.
    Court of Civil Appeals of Texas. Dallas.
    May 17, 1963.
    Rehearing Denied June 14, 1963.

      Turner, Rodgers, Winn, Scurlock & Terry, Frank J. Scurlock and Jerry N. Jordan, Dallas, for appellants.
    Lefkowitz, Green, Ginsberg, Eades & Gilmore, John Plath Green, and Jack D. Eades, Dallas, for appellee.
   BATEMAN, Justice.

This trespass to try title suit involves the construction of a provision in a deed which appellants contend is a condition subsequent or, in the alternative, a covenant. Alleging a breach of the provision, the appellants sue for a forfeiture of title as for breach of condition, and, in the alternative, for damages arising out of the breach of the covenant. Both parties moved for summary judgment; appellants’ motion was overruled and that of appellee sustained.

We have concluded that the provision in question did not create a condition subsequent. Considering, without deciding, that it may have been a covenant running with the land, we reverse the judgment and remand the case for trial.

Appellants owned approximately 29 acres of land abutting Preston Road, a heavily traveled thoroughfare extending in a northerly direction through and beyond the north limits of the City of Dallas. The land was subsequently annexed to the City of Dallas. On February 15, 1955 the appellants conveyed to Albert L. Greer, Trustee, 18 acres off of the east side of the tract, retaining title to the remaining 11 acres fronting on the east side of Preston Road. The deed is in the form of a general warranty deed but contains the following special provisions :

“It is agreed by and between the parties herein that Grantee anticipates that the property here conveyed will be subdivided into building lots, and it is agreed by Grantors herein that at the time of the making of said subdivision, that they will dedicate to public use a road or street 60 feet wide extending across property owned by them on the West of the property here conveyed ; said street to extend from Preston Road to the property here conveyed; and it is agreed by Grantee that such road to be dedicated by Grantors shall be located and situated at such place as Grantors may choose and direct, and it is further agreed that said 60 foot street shall be paved to the specifications as directed by the City of Dallas at the total expense of the Grantee herein.
“It is further agreed by and between the parties hereto that Grantors desire that the property owned by them adjoining on the West side of the property here conveyed be zoned for business or commercial use, and Grantee herein has no objection to the zoning of said property of Grantors for business or commercial use, it is therefore, made a condition for the conveyance of the property described above herein that Grantee, his heirs and assigns, zvill make no objection to any governing body against the zoning of said Grantors property for business or commercial use, however, it is hereby agreed that the above said commercial property that adjoins the property hereby conveyed shall be screened on the side adjoining said conveyed property according to the requirements of the City Engineer, and it is further agreed that the screening shall be done at the expense of Grantors herein.” (We have italicized the provision in question.)

The following facts appear to be undisputed :

By mesne conveyances, title to the said east 18 acres was acquired by appellee, a Texas Corporation. Appellants applied to the City Plan Commission of the City of Dallas for the rezoning of the west 11 acres retained by them for business or commercial uses. A written protest was filed by Bill Gaynier. Others also protested. Gaynier was an experienced real estate man and was familiar with zoning proceedings, knowing that the City Plan Commission made recommendations to the City Council and that his signed protest would be made a part of the record before the City Plan Commission. He acquired actual knowledge of the provision in question in the Greer deed after he sent in his written protest but before the Plan Commission hearing, and did nothing to retract or withdraw the protest. The City Council followed the recommendation of the Commission and denied the application.

William Gaynier, sometimes called Bill Gaynier, was the sole shareholder, president and a director of appellee Bill Gaynier, Inc. The other two directors were his wife and his attorney. He testified by deposition that his protest against the change of zoning was on behalf of himself, not the corporation, although he owned no land in the vicinity and appellee’s land adjacent to that of appellants was the only land owned by it in the vicinity.

Before undertaking to construe the provision in question we should first set forth several well known rules of construction. The first of these is that we should ascertain and give effect to the intention of the parties as gathered from the entire instrument, together with the surrounding circumstances, unless that intention is in conflict with some unbending canon of construction or settled rule of property, or is repugnant to the terms of the grant. 14-B Tex.Jur. 574, § 125.

“Every part of the deed must be given effect if it can be done, and, when all of the parts are harmonized, the largest estate that its terms will permit of will be conferred upon the grantee.” Cartwright v. Trueblood, 90 Tex. 535, 39 S.W. 930, 931.

The courts will not declare a forfeiture unless compelled to do so by language that will admit of no other construction. Automobile Ins. Co. v. Teague, Tex.Com.App., 37 S.W.2d 151, 153.

The language of a deed is that of the grantor, and if there is any doubt as to its meaning, it should be resolved against him. Couch v. Southern Methodist University, Tex.Com.App., 10 S.W.2d 973; 14-B Tex.Jur. 580, § 133; 16 Am.Jur. 530, § 165.

The chief distinction between a covenant and a condition subsequent has to do with the remedy in the event of a breach. If a covenant, the remedy is an action for damages, but the breach of a condition subsequent' results in a forfeiture of the estate. The use of the technical word “condition” or “covenant” in the deed is not determinative of the character of the clause or provision to which it refers. 14 Am.Jur. 480-482, Sec. 3.

While the words “on condition” in a deed are apt words to create a condition, yet they do not necessarily do so; and while words of re-entry or forfeiture are important as evidence of an intention to impose a condition subsequent, they are not necessary or indispensable to do so. Texas Electric Ry. Co. v. Neale, 151 Tex. 526, 252 S.W.2d 451; Rooks Creek Evangelical Lutheran Church v. First Lutheran Church, 290 Ill. 133, 124 N.E. 793, 7 A.L.R. 1422; Los Angeles University v. Swarth, 9 Cir., 107 F. 798, 54 L.R.A. 262; 12 Tex.Jur. 131, Sec. 86.

Applying these principles to the undisputed facts presented here, we hold that the provision in question does not create a condition subsequent. We are of the opinion that the provision was intended by the parties to create personal obligations or covenants between them, which may or may not be binding upon their respective assigns. We are forced to this conclusion despite the use of the words “made a condition for the conveyance, etc.”, because the deed shows on its face that the parties knew that the property conveyed thereby was to be subdivided into “building lots” (which we understand to be lots suitable for the buiding of homes thereon.) We do not believe the grantors (appellants) contemplated that any one of these individual owners, by objecting to the zoning of appellants’ property for business uses, would cause his own homesite, and possibly the entire 18 acres in the addition, including streets and alleys, to he .subject to forfeiture. If appellants had any such intention it could easily have been expressed in the deed. Its omission, while not controlling, is significant.

The other special provisions in the deed would indicate that the parties to the deed had in mind, not the permanent impediment or encumbrance on the title which a true condition subsequent would be, but rather an agreement which would probably be entirely consummated in a relatively short period of time. In other words, we think the true intent of the parties was that within a few years, or possibly within a few months, appellants would apply for and obtain the change in zoning, to which change the grantee and his assigns would not object, and in consideration of their not objecting appellants would dedicate the 60 foot street through their retained 11 acres, connecting the conveyed land with Preston Road, and would also erect some sort of screen between the tracts to hide the commercial development from the view of the homeowners occupying the conveyed land. We see nothing in the deed to suggest an intention to attach a permanent condition to the title to the property, and to each individual homesite, except the use of the word “condition” and in our view that is not sufficient.

In sustaining appellee’s motion for summary judgment, the trial court also impliedly held that appellants were not entitled to damages as for breach of a covenant running with the land. We cannot say from the record before us, however, that appellee has met the burden imposedv upon it to establish the lack of any genuine issue of material fact with respect to appellants’ alternative plea for damages, from which it follows that the judgment must be reversed. Rule 166-A, Vernon’s Texas R.C.P.; Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274. In saying this we do not intend to be understood as holding that appellee is liable to appellants for damages, or even that the covenant is one running with the land; we leave those questions to be determined by the trial court on the trial of the merits of the case.

Appellee takes the position that the agreement not to object to the proposed zoning change is void and unenforceable because it is against public policy, the argument being that it would constitute an attempt by a citizen to barter or sell his constitutional right of free speech and his right to petition the Government. We do not agree. We see no violence to the public policy of the state or nation in the agreement of a landowner not to protest his neighbor’s legitimate attempt to secure a more profitable or favorable zoning of his adjoining land. By his acceptance of the deed, the original Grantee assented to the statement therein that “Grantee herein has no objection to the zoning of said property of Grantors for business or commercial use.” Having no objection, how can it be said to affect adversely the public weal for him to agree not to voice any such objection? St. Regis Candies v. Hovas, 117 Tex. 313, 3 S.W.2d 429; Mid-Continent Supply Co. v. Conway, Tex.Civ.App., 240 S.W.2d 796, err. ref. n. r. e.; Missouri K. & T. Ry. v. Carter, 95 Tex. 461, 68 S.W. 159, 164.

Appellee next assails the validity of the provision in question by saying that the objection made by Gaynier to the City Plan Commission was not an “objection to any governing body.” The City Plan Commission is an agency invested by law with the duty of hearing applications for zoning and zoning changes and of making recommendations thereon to the City Council. An objection filed with the City Plan Commission is in effect an objection to the City Council, which is the governing body. Arts. 1175(26), 1011a, 1011d and 1011f, Vernon’s Ann.Tex.St. Therefore, this contention of appellee is overruled.

Appellee then says that it cannot properly be held to have breached the agreement in question, 'whether it be a condition or a covenant, because the objection made by Bill Gaynier was his individual action and not that of the corporation (appellee). We hold that Mr. Gaynier’s action in filing the protest was the action of his corporation, the appellee herein. As above pointed out, he owned all of the stock and was its president. The Board of Directors consisted of himself, his wife and his attorney. He owned no property in the vicinity, and the corporation’s property, which is the subject matter of this suit, is the only property owned by appellee in the vicinity. Under these circumstances it would be “a farcical paradox” for appellee to be able to avoid the result of the actions of its president and sole shareholder, which were obviously intended to be in its interest. State National Bank v. Encinal Mercantile Co., Tex.Civ.App., 277 S.W. 398, err. ref.; Toyaho Creek Irr. Co. v. Hutchins, 21 Tex.Civ.App. 274, 52 S.W. 101, err. ref.; Boston & Tex. Corp. v. Guarantee Life Ins. Co., Tex.Civ.App., 233 S.W. 1022, err. ref.

Accordingly, the judgment of the court below is reversed and remanded for trial.

Reversed and remanded.


author: TIREY, Justice.

text:
    B. W. ILEY, Appellant, v. Melvin H. TAPICK et al., Appellees.
    No. 4099.
    Court of Civil Appeals of Texas. Waco.
    May 16, 1963.
    Rehearing Denied June 6, 1963.

      Baker, Botts, Shepherd & Coates, Finis Cowan, Houston, Miller & Vollentine, R. L. Miller, Gonzales, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Newton Gresham, Charles D. Boston, Donald Peters, Houston, for ap-pellees.
   TIREY, Justice.

This is an appeal by defendant Iley from an order overruling his plea of privilege to be sued in Gonzales County, the county of his residence. Plaintiffs went to trial on their original petition to which was attached a copy of a lease agreement, marked Exhibit “A”, between plaintiffs and defendant Iley covering certain real estate in Giddings, Lee County, Texas. Also attached to the petition was a bond marked Exhibit “B”, executed by Iley and Indemnity Insurance Company of North America as surety. Pertinent to this discussion the lease agreement provided that Iley had the right to make improvements on the leased premises at his own expense, and that such improvements made shall become part of the leased premises, and shall not be removed by the lessee at the expiration of the lease, and that lessee bound himself to protect and indemnify the lessors against loss and expense for and on account of any claim or cost or other charge in connection with the improvements. The lease further provided that lessee is the owner of certain piping and equipment now located on the leased premises, and the lessee may remove such personal property belonging to lessee at any time during the existence of the lease, or any extension, and that lessee agreed that he would, without fail, remove his personal property from the premises at the expiration of the lease, and that prior to such removal he bound himself to furnish the lessors an indemnity bond and a fire and extended insurance policy in the sum of $50,000.00, naming lessors as assureds therein for the purpose of protecting lessors and lessors’ building in the matter of such removal of the equipment. Defendant Iley exercised his right to remove the personal property, and pursuant to the lease agreement executed and delivered a penal bond payable to the plaintiffs in the sum of $50,000.00, in which the defendant Indemnity Insurance Company of North America signed as surety, which bond recited in part :

“The condition of this obligation is such that whereas the said Iley is the owner of certain piping and equipment now located in the premises of M. H. Tapick and Israel Tapick, located on lot Nos. one, two, three, four and five in block No. 25 in the northwest portion of the town of Giddings in Lee County, Texas, and is now about to remove such personal property from said building:
“Now, therefore, if the lessee shall repair all damage done to said building in the removal of such personal property and equipment, then this obligation shall become null and void, otherwise to remain in full force and effect.”

The bond was dated 10th day of September, 1959.

Plaintiffs alleged that defendant Iley in September 1959, acting through his agents and employees in attempting to remove the piping and other equipment from their building, that such agents and employees, while using an acetylene and oxygen cutting torch, negligently set fire to the building, and as a proximate result of such fire the building was substantially damaged and/or destroyed to the plaintiffs’ damage in the sum of $100,000.00. Plaintiffs further alleged specifically the negligent acts complained of, and that defendant Iley and the bonding company each breached their contract and failed to perform the obligations therein required of each of them, and that by reason of such breach defendant Iley and the bonding company were jointly liable to plaintiff in the sum of $50,000.00, and that defendant Iley was further liable to the plaintiffs in the further sum of $50,-000.00, on account of the loss sustained by them to their building, and they prayed for appropriate relief. Defendant Iley filed his plea of privilege and such plea was controverted by plaintiffs, and plaintiffs attached a copy of their original petition and exhibits to their controverting plea and averred that their suit is maintainable in Harris County under the provisions of Article 1995, Subdivisions 23 and 27, Vernon’s Annotated Civil Statutes, as against the bonding company, and that it is maintainable’ against defendant Iley because he is the principal obligor on the bond and primarily liable on the bond, and is a necessary party to the suit against the surety, Indemnity Insurance Company, and that this brings the defendant Iley within the meaning of Subdivision 29a of Article 1995 aforesaid. Pertinent to this discussion the parties stipulated: That the surety company is a foreign corporation entitled to do business and doing business in the State of Texas, and that it maintained an agency in Harris County, Texas at all times material to this suit, and that it maintained a representative in Harris County at all times material to the suit; that plaintiffs continuously resided in Harris County, Texas at all times material to the suit; that on September 15th, 1957, defendant Iley and plaintiffs executed a lease agreement referred to in plaintiffs’ original petition, and that Exhibit “A” attached to plaintiffs’ original petition is a true and correct copy of such agreement; that Iley took possession of the premises in 1957, and continued to occupy such premises until September 1959, and at the time of the execution of the lease Iley was the owner of certain piping and equipment located on the premises; that Iley, as principal, and the bonding company through its Attorney-in-Fact as surety, executed the bond referred to in plaintiffs’ petition as Exhibit “B” and attached to plaintiffs’ original petition as a true and correct copy of the bond; that such bond was delivered to and accepted by plaintiffs shortly after its execution; that defendant Iley was not and is not actually notoriously insolvent.

“Subject to any objection as to relevancy, it is stipulated that the plaintiffs Melvin H. Tapick and Israel Tapick had in effect on September 17, 1959, covering the premises described in plaintiff’s petition the following fire insurance policies, to-wit:
Policy No. Insurance Company Amt. of Insurance
S64-99-74 Aetna Ins. Co., $15,000.00
Z303796 Northern Ins. Co., 15,000.00
72-02-42 Pacific Nat’l Fire Iris. Co. 5,000.00
OC-202150 Transcontinental Ins. Co., 15,000.00
“Subject to objection as to replevancy, it is further stipulated that on May 2nd, 1960, the plaintiffs and their aforesaid insurance companies executed a settlement agreement and assignment, true and correct copies of which are hereto attached marked Exhibit 'A’.
“The foregoing stipulations are agreed upon by and on behalf of plaintiffs and defendant B. W. Iley, by and through their respective attorneys of record, for the purpose only of disposing of the plea of privilege pending herein and the plaintiff’s controverting affidavit thereto, and none of the stipulations of fact here made shall be admissible by any party hereto on the trial of this cause on its merits nor be construed as an admission or stipulation except for the purpose of hearing and disposing of such plea of privilege and controverting affidavit.”

The judgment is assailed on three points. They are:

“1. The bond executed by the defendants below to the appellees was given in compliance with the terms of the written lease contract between appellant and appellees under which appellant occupied the premises damaged by fire; and such bond when construed in connection with the lease contract under which such bond was required, clearly shows an intent on the part of the contracting parties to exclude the risks of fire from the obligation of the bond, and hence the appellees have shown no liability under such bond on the part of the defendant surety company and no grounds of venue in Harris County.
“2. If the bond is construed to protect appellees against negligence on part of the appellant Iley, the record presents no evidence of negligence on the part of the said Iley or his employees and no evidence that any alleged negligence was the proximate cause of the fire described, in plaintiffs’ petition.
“3. The uncontroverted evidence showed that appellees have no cause of action whatsoever against appellant or the defendant Surety Company, but that if ap-pellees ever had any cause of action under the surety bond, appel-lees have assigned to various insurance companies who are not parties to this suit their entire cause of action.”

We overrule each of the foregoing points for reasons hereinafter stated. First of all, plaintiffs filed their suit in Harris County against defendant Iley as principal, and defendant bonding company, as surety, and alleged that they were jointly liable on such bond, and that defendant insurance company maintained an agent and representative in Harris County at all times material to the suit. The obligation of Iley and the bonding company is conditioned simply as follows :

“Now, therefore, if the lessee shall repair all damage done to said building in the removal of such personal property and equipment, then this obligation shall become null and void, otherwise to remain in full force and effect.”

The evidence amply shows that the building was excessively damaged during the removal of the equipment, and that nothing had been done by the indemnitors to repair the damages, and no point of appeal is raised as to whether appellant’s removal operation caused the damage. In fact, the evidence is ample to sustain the Court’s view that the damage was caused by defendant Iley and his agents. Certainly no interpretation or construction is necessary to understand the meaning of the bond. It obligates the indemnitors to pay $50,000.00 to appellees if all damage done to the building in the removal of appellant’s personal property is not repaired. Appellant contends that the bond is to be construed in connection with the lease contract entered into between Iley and the plaintiffs, but there is no basis for such contention, and none exists. They ?.re separate contracts, and the bond does not incorporate the lease by reference, nor does the lease purport to express the terms of the bond. Appellant asked the Court, in effect, to disregard what the bond says and construe it to comport with his construction of the lease. We are not in accord with this view. On the contrary we think that the lease does not show any intent to exclude the risk of fire from the obligation of the bond. The lease requires that Iley, prior to such removal of such personal property, furnish to the lessors an indemnity bond, and a fire and extended coverage insurance policy in the sum of $50,000.00 to protect plaintiffs as a result of the removal operation. We think that if there is any question as to what the lease means with respect to the bond it was determined by the parties themselves by the execution of the bond. In fact, appellant testified to the effect that the agreement of the parties with respect to the bond is expressed in the bond itself apart from any other instrument. Contrary to appellant’s contention, the bond does not limit the indemnity obligation to any particular type of risk, but simply all damages must be repaired or an obligation will be due. Moreover, we think the bond is a complete and separate instrument, written at a date after the execution of the lease, and is enforceable as written in the absence of ambiguity, fraud or mutual mistake. See 13 Tex.Jur.2d Contracts, Sec. 123. The parties had the right to agree upon any bond they wanted which was lawful, and the bond they agree upon protects appellees against “all damage.” Appellant Iley contends in effect that appellees must look to the fire insurance policies mentioned in the lease for the protection against fire loss, and not the bond, notwithstanding the fact that defendant failed to obtain the fire insurance policies for appellees. This contention is overruled. For Rule of construction see Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775. Accordingly, point one is overruled.

It is obvious that plaintiffs’ cause of action against the defendant insurance company, as surety on the bond, is not based on negligence, and accordingly appellant’s point two is overruled. The evidence is ample (for venue purposes) to support the trial court’s implied finding that appellees have made no assignment of all their rights under the bond in question, and by reason thereof appellant’s third point is overruled. Under the record here made, the indemnitors are liable on the bond in the amount specified and according to its terms. The sum of $50,000.00 is the obligation due because of the principal’s failure to repair all damages done to the building in the removal of his property, and there is no proof that appellees have assigned all of their cause of action for such accrued obligation. Since appellees established for venue purposes that they have a cause of action against the Insurance Company of North America as surety on the bond, and since the surety maintained an agency and representative in Harris County at all material times, and since appellees reside in Harris County, and that Iley is the principal on the bond, making him a necessary party to the suit against the surety, it is clear to us that under Rule 31, Texas Rules of Civil Procedure, the venue of this cause is properly laid in Harris County, Texas. See Booth v. Smith, Tex.Civ.App., 336 S.W.2d 278, point 2, n. w. h.

Accordingly, the judgment of the Trial Court is affirmed.