author: RANDOLPH, J.

text:
    SAULSBURY v. ANDERSON et al.
    No. 3564.
    Court of Civil Appeals of Texas. Amarillo.
    May 13, 1931.
    Rehearing Denied June 3, 1931.
    Cook, Smith, Teed, Sturgeon & Wade, of Pampa, for appellant.
    Willis, Studer & Studer, of Pampa, and D. W. Tracy, of Sayre, Okl., for appellees.
   RANDOLPH, J.

This suit was filed by appellant Saulsbury against H. M. Anderson and W. L. Mathers as defendants. Prom a judgment that plaintiff take nothing by his suit as against the defendants and that the defendant Mathers have and recover of and from the plaintiff and defendant Anderson the land in controversy, appeal has been taken to this court.

Plaintiff in his petition alleges substantially that Anderson was the owner of the land in controversy; that on the 8th December, 1927, plaintiff and Anderson entered into a written contract whereby, for a consideration of $22,400, to be paid as provided in the contract and upon the terms and conditions therein specified, defendant Anderson agreed to sell and convey the land in controversy to plaintiff.

That said contract provided, among other things, that a cash payment of $1,000 was to be deposited in the First National Bank of Pampa, Tex., to be held in escrow by it until the title to the land was'approved by Sauls-bury; that plaintiff has complied with his ¡contract in every particular, including the deposit aforesaid for the account of defendant Anderson; further, that said contract provided that defendant Anderson would furnish plaintiff with' an abstract of title showing good and merchantable title to said land, subject only to the incumbrances described in the contract, which plaintiff had assumed payment of; alleging that the plaintiff has always been and is ready to perform his part of the contract.

Plaintiff further alleges that a part of the consideration which Anderson was to receive for the land was the assumption by plaintiff and his agreement to pay off and discharge a note in the sum of $8,500, which note is secured by deed of trust on said land; that the defendant Mathers knew of the written contract entered into between plaintiff and defendant Anderson, which was duly-recorded and also had constructive notice of such contract. And after same was entered into between plaintiff and defendant Anderson, that defendants Anderson and Mathers entered into a fraudulent conspiracy to defeat plaintiff of the rights acquired by him under the terms of said written contract, in that they agreed between themselves that they should have said deed of trust foreclosed and said land sold under the terms of said deed of trust and that defendant Mathers would become the purchaser of said land at such sale and thereby divest plaintiff' of any right, title, or interest he might have acquired in said land by reason of the execution of said contract, and said defendants instructed the agent of the holder of the note so secured by said deed of trust and the trustee or substitute trustee to foreclose the same under the deed of trust, and as a result of such design and secret agreement -so entered into 'between said defendants, said land was sold by one I. B. Hughey, as agent and attorney in fact for H. M. Gossett, trustee for the beneficiary in said deed of trust, the Federal Land Bank of Houston, and deed was made by said Hughey to the defendant W. L. Mathers. Further alleging that the sale of said land was null and void for the reason that said land was not advertised for sale as provided in said deed of trust and by law, in that no notices of sale were posted as required by law or by said deed of trust; that said land was not sold at the courthouse door as required by law or as provided in the deed of trust and that said trustee was not authorized to make said sale by an agent or attorney in fact; that said land was not sold nor deed executed by any one authorized by law or by said deed of trust to make such deed, and none of the provisions of said deed of trust were complied with, and as a result thereof, such sale was void • and defendant Mathers acquired no rights thereunder.' It is further alleged that the defendants Anderson and Mathers at and before the time of such sale agreed between themselves, in order to divest plaintiff of his right to said land, that defendant Mathers would purchase the same at such sale and take title in his own name, and that after plaintiff was eliminated, he would reconvey such land to the defendant Anderson, retaining against such land a lien to secure him in the payment of all sums of money expended by him in the purchase of same.

It is further alleged in said petition that the defendants are able to make a good and sufficient title to said premises if they think proper to do so, but refuse to do so, although plaintiff hás demanded the same from them within the time and according to the terms and conditions contained in said contract and has been ready, able, and willing to pay the balance of the consideration which he contracted to pay Anderson upon having a proper conveyance of same executed by the defendant to the plaintiff; that the whole of the residue of the purchase money for said premises has been ready and unproductive in his hands for completing said purchase from the time it ought to have been completed by the terms of said contract. Further plaintiff alleges in the alternative that under the terms of said contract, plaintiff was to pay defendant Anderson the sum of $22,400 for said land, and that at this time the market and intrinsic value of said land is the sum of $50,000, and that by reason of defendant Anderson failing and refusing to comply with his contract, plaintiff has been damaged in the sum of $27,600.

Plaintiff prays for judgment that the defendant Anderson specifically ■ perform- his contract and that the defendant, Mathers be declared to have no right, title, or interest in said land, and that the defendant Mathers’ deed to said land be canceled and held for naught, and that said Anderson and defendant Mathers be required to execute such conveyances as may be necessary to convey said property and all of it to plaintiff, the said plaintiff being ready and willing and hereby offering specifically to perform said contract on his part upon defendants executing proper conveyances.to the plaintiff, pursuant to the terms of said contract, to pay to the de-, fendant Anderson the residue of the purchase money or, in the alternative, that he recover judgment for his damages in the sum of $27,600 against both defendants, jointly and severally, with interest, costs of suit, and all other relief, general and special.

The defendant Anderson filed his first amended original answer, consisting of a general demurrer and special exceptions and general denial and also special denials and pleas, in which said .defendant pleads specifically that the contract upon which plaintiff bases his cause of action was signed by himself only upon condition that his (defendant Anderson’s) wife sign the same or sign a deed conveying the land in question and was not to become effective unless in the event that she would sign and that said defendant’s wife refused to sign the contract or to sign a deed; that plaintiff Saulsbury at all times breached the contract and refused to perform the terms thereof in such a way as to be entitled to a specific performance on said defendant’s part, even if there was a binding contract; and that this said defendant offered to and has at all times been ready to perform the contract on his part.

Defendant Anderson further specially pleads that by virtue of the third paragraph of said contract, same is rendered void at the option of the defendant Anderson and said defendant did elect and hereby elects to declare the contract void because the plaintiff never made any of the payments he contracted to make, although repeatedly requested to do so.

Defendant Anderson also adopts the answer of defendant Mathers so far as they are applicable.

Further the said defendant’s answer pleads that the contract in controversy was conditioned upon the proposition that his wife signed the deed and that plaintiff well knew that 200 acres of land in controversy was the homestead of Anderson and his wife at the time and before the making of the contract herein. (Here setting out the homestead claims of 200 acres by designation.)

The defendant Mathers filed hib answer consisting of general demurrer, general denial, and special plea as follows: That at the sale alleged in plaintiff’s petition that was made by the Federal Land Bank of Houston through its agent or attorney in fact I. B. Hughey, the defendant Mathers’ bid at same was the sum of $14,345.45 cash to take up the sum of $892.50 installments of interest due on the James B. Brown loan against the land, which James B. Brown was secured by a deed of trust upon the land in controversy. Further defendant Mathers alleges that under the deed of trust from Anderson and wife to H. M. Gossett, trustee for the Federal Land Bank of Houston, it was provided that same was given on the land in controversy for the sum of $8,500, with interest thereon at 6 per cent, per annum, payable semiannually on the 1st of June and the 1st of December of each year under the amortization tables provided by the Federal Farm Board printed on the back of said trust note, and it was further provided that all payments not made when due should beai interest from the date when due at the rate of 6 per cent, per annum and for attorney’s fees; that said $8,500 advanced on the notes secured by deed of trust to the Federal Land Bank of Houston to take up six vendor’s lien notes aggregating the sum of $8,500 that was secured by vendor’s lien on the land in controversy and by said deed of trust the Federal Land Bank, or its assigns, was subrogat-ed to the rights, liens; equities, and superior title that were retained under and by virtue of said vendor’s lien. It was further provided in said trust deed that if default was made in the payment of any interest installment of said note, the Federal Land Bank of Houston, or its assigns, should have the right to sell the land in satisfaction of the defaulted payments without declaring the whole debt due and subject to the unmatured part of the notes secured by the deed of trust which should still remain in force and the liens still secure the unmatured part of the notes, the same as if the sale had not been made, and that one sale would not exhaust the power of sale therein.

It was further alleged in defendant Math-ers’ answer that H. M. Gossett, the trustee named in said deed of trust, was empowered' to appoint an attorney in fact to act as trustee in his name, place, and stead by an instrument duly signed and acknowledged, and such attorney in fact should act in place of said trustee in any foreclosure under the power to sell, and that said Gossett did execute, acknowledge, and deliver to said I. B. Hughey the power of sale to sell the land for the past due installments of interest that fell due December 26, 1926, and June and December, 1927. It is also alleged in said answer that by virtue of being the highest bidder for said land, his bid was not only the sum of $14,345.45 cash, but that also he bid at the sale' to assume the balance due the Federal Land Bank that was unmatured and that said defendant, in consideration of such bid, received from the trustee, H. M. Gossett, a deed to the land in controversy, which-was made a part of said answer. In said deed it was stipulated that this defendant did assume the balance due the Federal Land Bank, and defendant Mathers alleges that by reason of his having paid his money on the debt that was secured by a lien in said deed of ' trust to said bank, also secured by the vendor’s lien that secured the original deferred purchase money for said land when it was conveyed by one Foster, the then owner, if there is any vice or defect in the sale under the deed of trust because of which the legal title did not pass to this defendant, he states that he is equitably entitled to recover the land by reason of the vendor’s lien that he acquired or that he is entitled to, be subro-gated to the loans that were held, by said bank and James B. Brown, or that in equity he should have a lien to secure him for the debts that were evidenced by said loans.

The defendant Mathers prayed that plaintiff go hence without day or, in the event the plaintiff should recover against him, that this defendant be subrogated to said iiens and that said liens be foreclosed in his behalf.

Further, defendant Mathers in said answer alleges that he has acquired the superior right, title, and possession of said land by virtue of having purchased same at the deed of trust sale as against plaintiff and defendant Anderson, and prays that he recover of and from the plaintiff and the defendant Anderson the right, title, and possession of said land.

There are other and supplemental pleadings which we do not deem it necessary to set out here, as the statement of the pleadings given above is, in our opinion, sufficient to indicate the questions which have arisen on the trial of the case and which are herein presented for our decision.

The trial court submitted the case to the jury upon the following special issues:

“Special Issue No. One: Do you find from a preponderance of the evidence that it was understood and agreed between Anderson and Saulsbury, at the time of the written contract for sale of Anderson’s land was made and entered into between Anderson and Saulsbury on December 8th, 1927, that before said contract for the sale of said land would become effective Anderson’s wife should sign said contract, or should sign a deed conveying the land in controversy? Answer yes or no.
“If you have answered the above and foregoing special issue No. One, Yes, you need not answer any of the following issues, but if you have answered said special issue No. One, No, then you will answer the following, as directed:
“Special Issue No. Two : Do you find from a preponderance of the evidence that the plaintiff, Saulsbury, furnished to the defendant, Anderson, a copy of his (Saulsbury’s) attorney’s opinion on title to the land in controversy? Answer yes or no.
“Special Issue No. Three: Do you find from a preponderance of the evidence that the plaintiff, Saulsbury, was at all times from December 8, 1927, to May 1, 1928, ready, able and willing to pay to the defendant, Anderson, the one thousand dollars cash, and to assume a loan of $8500.00 in favor of the Federal Band Bank, and also a loan of ten thousand dollars payable to James B. Brown, Wichita, Kansas, also the taxes for the year 1927, and to pay in cash to the defendant Anderson balance equity in said land figured on the basis of 640 acres at $35.00 per acre, upon defendant Anderson and wife conveying to plaintiff, Saulsbury, by good and sufficient warranty deed, free and clear of all encumbrances, (except loan to the Federal Band Bank, and loan in favor of James B. Brown, and the taxes for the year 1927), said section number .208 ? Answer yes or no.
“Special Issue No. Four: What, from a preponderance of the evidence, do you find. to have been the reasonable market value, in Gray County, Texas, of said section number 203, at the time defendant Anderson advised plaintiff Saulsbury that his wife, Mrs. Anderson, would not sign deed? Answer in dollars and cents.
“Special Issue Number Five: What, from a preponderance of the evidence, do you find was the reasonable market value in Gray County, Texas, per acre, of said section number. 203, at the time defendant Anderson advised plaintiff Saulsbury that his wife, Mrs. Anderson, would not sign deed? Answer in dollars and cents per acre.
“Special Issue No. Six: What, from a preponderance of the evidence, do you find was the reasonable market value in Gray County, Texas, of the oil and gas lease on the southeast quarter of said section number 203 at the time defendant Anderson advised plaintiff Saulsbury that his wife, Mrs. Anderson, would not sign the deed? Answer in dollars and cents.
“Special Issue No. Seven: Do you find from a preponderance of the evidence that on the date said written contract between Saulsbury and Anderson, dated December 8th, 1927, was executed by said parties that plaintiff Saulsbury knew at that time that Mrs. H. M. 'Anderson would not sign a deed conveying said land to Saulsbury? Answer yes or no.
“Special Issue No. Eight: Do you find from a preponderance of the evidence that defendant, Mathers, at the time he bid in said section 203 on May 1st, 1928, knew of the existence of said contract of date December 8th, 1927, between defendant, H. M. Anderson, and plaintiff, W. B. Saulsbury, relative to the sale and purchase of said section number 203? Answer yes or no.”

The jury answered special issue No. 1 in the affirmative, and in accordance with the instructions of the trial court, left the other special issues unanswered.

The plaintiff, appellant, presents this appeal under the following propositions:

“1. The undisputed evidence in this ease being contrary to the verdict of the jury, it was improper for the Court to render judgment for the defendants upon such verdict.
“2. It appearing from the undisputed testimony in the case that the defendant Mathers was holding legal title to said property as trustee for one Polk Osborne, or for Mrs. H. M. Anderson, or- for such person as might be designated by said Polk Osborne, and that said Mathers’ legal title was not to become absolute title until three years after May 1st, 1928, and not then if he was repaid moneys advanced by him, together with interest, then it was improper for the court to render judgment for the appellee Mathers that he would recover against the other parties to the suit, the land in controversy.
“3. This being á suit upon the" part of appellant for specific performance of contract to convey land involved, and a cross-action upon the part of appellee Mathers that his title be quieted, and it appearing according to the undisputed testimony that Polk Osborne and Mrs. H. M. Anderson were necessary parties to this suit, then it was fundamental error for the court to render judgment thereon in the absence of such necessary parties.”

Appellant’s first contention that the ‘/undisputed” evidence is ih face of and contrary to the jury’s verdict, and that the trial court erred in rendering judgment for the defendants, cannot be sustained by us. If there is evidence to sustain the jury’s finding that before the contract should become effective it was understood and agreed by Saulsbury and Anderson that Anderson’s wife should sign the same, then we have no authority to set such verdict aside.

While the áppellant contends that the evidence contradicting such finding is undisputed, the very evidence quoted by him in his brief establishes the fact that there is evidence, which, though disputed, sustains such verdict. The copy of the contract introduced in evidence, it is true, shows that Anderson alone signed it without any explanation set out in said contract as to why the wife did not sign it, or any statement that she was to sign it. However, the defendant Anderson testifies, apparently without objection, in substance and in part, as follows: “When I was in Mr. Saulsbury’s office, you want to know what I said to Saulsbury and what he said to me and what Jamison said in the presence of both of us, with reference to this trade. I state that you will just have to ask the question and then I can tell it to you. As to whether I talked about the price of the land, I had already talked about the price and agreed on the price before I went in there.' They wrote out the contract right there. As to whether I read it over, they read it over to me and he signed it and I signed it. * *- * I told them that I would go home and come back the next morning an& bring my wife in and let her sign it and they said it was not necessary for her to sign the contract but that she would have to sign the deed. As to who it was that told me she would have ’to sign the deed, both of them told me that. I am sure that both Jamison and Saulsbury told me that'my wife would have to sign the deed. As to whether there was anything else said about my wife having to sign the deed there than what I have detailed here, I state that I think that is- about all that was said. ⅞ * * when this contract was entered into I told them that I would go home and come back the next morning and’ sign the ■cpntract and bring her in with me. . Mr. Jamison told, me: ‘No, Baker, is on another trade and if you don’t make it now, he won’t make it at all. You .have to sign now and that will hold him and then you can get your wife in here.’ As to whether I went ahead and signed this contract after that statement was made by Jamison, that the contract could be signed then by me and it would not he necessary for my wife to sign it, but she Would have to sign the deed, I state that he said she could come in the next morning and sign it; he said it was not necessary for her to sign the contract. That was what Jamison said. As to what Saulsbury said about it, I state that we were in Jamison’s office at that time and Saulsbury was in there. Sauls-bury told me that my wife would have to sign the deed. Saulsbury told me that in his office. There in Jamison’s office, he said my wife would have to sign the deed and he said it was not really necessary for her to sign the contract. As to what else Jamison said there in his office about my wife signing the contract, I state that is about all he said, only he said- it several different times. I kept trying to get him to let me go home and come back the next day. That was when I was talking to Jamison. When I had that conversation, the contract had not been written. As to whether I can account for the reason I talked about my wife signing the contract and not signing the deed, when the contract had not been written, I state that he was trying to get me to go in there and make the contract. Then I went in there, and made it later on. * * * I think I have got my copy of this contract at home if they have not got it here. I took a copy home that same night. . I had signed both contracts and Saulsbury had to sign both contracts, and I took one home and he took one and I think there was another one that went to the bank. I signed all three of them and Saulsbury signed all three of them. The other one was supposed to be put in the bank. * * * After I had told either Jamison or Saulsbury that I would bring my wife in and sign the contract and I heard Saulsbury read that contract over to me, you want to know why I did not then and there tell him to write all of that into the contract and I state that I guess I just wasn’t smart enough in a business way to have it done. That is the only way I can answer that. * * ⅜ As to whether my understanding of it was that'she was to come in and sign something before there would be complete deal, I state that my understanding was she was to go in and fix up a deed the next day. It was the understanding that she was to come in and sign something before we had it completed.”

This evidence being before the jury, and they having found that the contract was to have been signed by the wife, the trial court did not err in rendering judgment in favor of the defendants upon that finding. Hodde v. Malone Real Estate Co. (Tex. Civ. App.) 196 S. W. 347; Nowlin v. Hall, 97 Tex. 441. 79 S. ,W. 806; Mansfield v. Rigsby (Tex.. Civ. App.) 273 S. W. 290, 291; Northern Assurance Co. v. Lawrence (Tex. Civ. App.) 278 S. W. 476, 477; Turner v. Charbonneau (Tex. Civ. App.) 280 S. W. 848; Hughes v. Mayfield Co. (Tex. Civ. App.) 291 S. W. 571.

The verdict of the jury being supported by the evidence, it is immaterial, in Sauls-bury’s suit for specific performance or in the alternative for damages, whether Mathers was holding the title in trust or not. If Saulsbury’s claim of right under the contract could give him any right to question Mathers’ holding of the title, it could only exist by reason of the contract. This right was negatived when, under the evidence, the jury found that the contract was to have been signed by the wife before it became effective, and as she refused to sign it, .there was no contract. The plaintiff not having a contract whose execution was complete and effective, he could not maintain his suit. In other words, not having a contract which he could enforce performance of, it was of no consequence whether Mathers held the absolute title or merely held it in trust. Further, the plaintiff having entered into a contract with Anderson with full knowledge that the homestead of Anderson and wife was located upon the land described in the contract, he was not entitled to penalize the Jiusband and thereby force the wife to sign the deed conveying the land to him, including the homestead, when the plaintiff was charged not only with the knowledge of the facts as to the homestead, but also with knowledge that under the Constitution and laws of the state of Texas1, he could not compel the wife to convey her homestead. This is true even if she had signed the contract, for she could repudiate the transaction up to the very time of the delivery of the deed from her and her husband. Knowing that he was not entitled, under the law, to compel the conveyance of the homestead as against her, plaintiff entered into an unenforceable contract. In the attempt, therefore, to enforce specific performance, plaintiff was at fault in the making of the contract, which not only defeated him in having the court to perform for him, but also deprived him of any right to recover damages. The jury’s verdict settles the question, under the evidence, that there was no contract; the contingency of the wife signing never having occurred. This being true, the plaintiff not having established a contract, not only was he not entitled to specific performance, but it also deprived him of the right to recover damages.

Plaintiff based his action for specific performance, in part, upon the charge of conspiracy between Anderson and Mathers. . But it is nowhere alleged that Osborne and Mrs. Anderson -were parties to that conspiracy, and the plaintiff makes no attempt to make them parties to the suit, and they are not necessary parties to that suit under the allegations of his petition. In order that there may be a necessity of joinder of parties in a suit for specific performance of a contract, or for damages for the breach thereof, there must have been a joint liability under the contract. A stranger to a contract cannot be joined with the obligors in the'contract, 47 G. J. 69, and the only parties necessary to the action are the parties -to the contract. South Plains Coaches v. Behringer (Tex. Civ. App.) 4 S.W. (2d) 1003, 1007.

The agreement between Osborne and Mathers that Mathers should buy the land at the sale under the deed of trust, and when Osborne repaid Mathers the money he (Math-ers) was to receive the money that he was out, plus interest, was without consideration and hence, not enforceable, even if Osborne was a necessary party otherwise. Again, it not being pleaded and proven by plaintiff that Osborne was deprived of any valuable right in being prevented from bidding at the sale, Osborne would have no standing in court in the-absence Qf a money or property consideration, and such agreement could not be litigated in the action now before this court, and the trial court was not compelled to have Osborne made a party so that matters between him and Mathers might be litigated. Ward County Water Improvement District v. Ward County Irrigation District (Tex. Civ. App.) 237 S. W. 584. Especially is this correct when the plaintiff has shown that he had no interest in the contract between Osborne and Mathers, if there had been such as between them. This is held in view of our holding that the jury’s finding precludes plaintiff securing, equitable relief by way of specific performance. This also applies to the plaintiff’s contention that the trial court should not have rendered judgment in favor of defendant Mathers upon his cross-action when the evidence showed that Osborne had the agreement set out with Mathers.

The evidence shows: First, that Saulsbury knew that the contract involved the homestead of the defendant Anderson; second, that Anderson’s wife declined to sign either the contract or the" deed; third, that Anderson offered to sign the deed; and, fourth, that Saulsbury refused to accept the deed signed alone by the husband, defendant Anderson.

In the case of Collett et ux. v. Harris (Tex. Civ. App.) 229 .S. W. 885, where a broker, when he secured the husband and wife’s contract to sell a lot, knew that it was their homestead and her separate property, the husband, who, although his wife refused to convey, was ready and willing to make the conveyance so far as he could, he was not liable in damages to the broker for his wife’s failure to carry out his undertaking.,

. In the case of Finley v. Messer, 9 S.W. (2d) 756, 757, the Court of Civil Appeals at Waco, in passing upon the sufficiency of the pleading to authorize a judgment therein rendered hy the trial court, says:

1 “The pleadings allege * that Mrs. Finlfey was the wife of R. E. Einley at the time the contract was executed,, and that all the property was the separate property of Mrs. Ein-ley, and that the contract was executed by Mr. Einley and his wife for the use and benefit of Mrs. Einley’s separate estate. Our court's have uniformly held that an executory contract on the part of a married woman, which is made by herself or her agent, to sell her separate real estate or sell the homestead, is not enforceable, and that she has the right, after she signs a deed, to renounce the trade and refuse to carry it out at any time before she states to the officer taking her acknowledgment that she does not wish to retract it. Blakeley v. Kanaman, 107 Tex. 206, 175 S. W. 674; Maynard v. Gilliam (Tex. Civ. App.) 225 S. W. 818; Crabb v. Bell (Tex. Civ. App.) 220 S. W. 623; Blue v. Conner (Tex. Civ. App.) 219 S. W. 533; Red River Nat. Bank v. Eerguson, 109 Tex. 287, 206 S. W. 923.
“Our-courts further hold that neither the husband nor the wife is responsible for damages for the failure of a married woman to comply with her executory contract for the sale of land, where the party at the time he makes the contract knows that it is the homestead or that it is the separate property of the wife that is to be conveyed. Collett v. Harris (Tex. Civ. App.) 229 S. W. 885; Griffith v. Watkins (Tex. Civ. App.) 279 S. W. 489; Jackson v. Carlock (Tex. Civ. App.) 218 S. W. 578; Graham v. Carmany (Tex. Civ. App.) 2 S.W.(2d) 467; Billingsly v. Swenson Land Co., 58 Tex. Civ. App. 67, 123 S. W. 194.”

When the husband has attempted to sell the homestead and the wife refuses to sign, the purchaser may recover for the breach, of the contract only the amount he has expended thereunder. Eberling v. Deutscher Verein, 72 Tex. 339, 12 S. W. 205. Where the vendor, the husband, acts in good faith and without fraud on his part and is unable to convey good title by reason of the property being the homestead, the purchaser is not entitled to recover damages for the loss of his bargain, but only such amount as he has advanced on the faith of the contract, plus interest. Cross v. Ereeman, 22 Tex. Civ. App. 299, 54 S. W. 246; Roberts v. McFadden, 32 Tex. -Civ. App. 47, 74 S. W. 105. See also Dobson v. Zimmerman, 55 Tex. Civ. App. 394, 118 S. W. 236.

One of the reasons given for the holding that the'purchaser can only recover what he has expended is that, as the contract is void, to allow damages to be recovered would indirectly tend to defeat the object of the homestead statute. Silander v. Gronna, 15 N. D. 552, 108 N. W. 544, 125 Am. St. Rep. 616.

While we are of the opinion that our holding that the jury finding discussed under the first proposition controls the disposition of the case, lest we have erred in that holding we have discussed other questions arising in the case as indicated above.

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


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    DALLAS TRUST & SAVINGS BANK et al. v. BRASHEAR.

    No. 6936; Motions Nos. 6173, 6174.
    Court of Civil Appeals of Texas. Austin.
    Feb. 17, 1926.
    Rehearing Denied June 10, 1931.

      Cockrell, McBride, O’Donnell & Hamilton, of Dallas, for appellants.
    W. A. Morrison, of Cameron, for appellee.

      writ ot error granted.

   BLAIR, J.

Appellee sued appellants to recover double the amount of alleged usury claimed to have been paid them upon a written loan agreement between him and the appellant, Dallas Trust & Savings Bank, dated May 17, 1921,, alleged to be usurious in its incipiency. He also sought to cancel all future interest accruing on the loan contract, as well as to cancel the deed of trust lien on the land, in so far as it secured future interest, and to enjoin record holders of all the principal loan notes from declaring their option under the loan agreement to mature them for failure to pay annual installments of future interest.

The pleadings admittedly present the true facts relating to the loan agreement. It was for $3,000, on what was termed a ten-year loan contract, bearing 9 per cent, interest per annum from date, but appellant Dallas Trust & Savings Bank prepared and required ap-pellee to execute four notes, Nos. 1 to 4, both inclusive, the first three for $200 each, and due May 1, 1923, 1924, and 1925, respectively, and the fourth for the sum of $2,400 due May 1, 1931, which notes represented the principal loan. These notes provided for interest at the rate of 7 per cent, per annum from date, payable at Dallas, Tex., on the 1st day of May for each of the ten years, and provided for 10 per cent, interest on principal and interest after maturity. They were secured by a deed of trust representing the first lien upon 79 ⅜ acres of land owned by appellee in Milam county. For the remaining 2 per cent.’ interest due under the loan agreement appellant bank prepared and required appellee to execute on the same date of the principal notes, May 17, 1921, five notes designated on tbeir face as “interest notes,” Nos. 1 to 5, both inclusive, due May 1, 1922, 1923, 1924, 1925, and 1926, respectively, the first three being for the sum of $102.¿7¡ each, and the last two for the sum of $102.66 each, and providing for 10 per cent, interest after maturity. These notes were secured by a second deed of trust lien upon the same land securing the principal loan, and provided for acceleration -of maturity for all the notes in .case of default in payment of any one of them. The nine notes and the, two deeds of trust securing them represented one complete transaction with reference to the $3,000 loan. Three payments were made by appellee on the loan contract in the following manner:

On September 9, 1922, to Dallas Trust & Savings Bank, the sum of $314.10, representing interest on the $3,000 principal loan for first year loan contract.

On January 23, 1924, the appellant United States Bond & Mortgage Company to whom appellant Dallas Trust & Savings Bank had sold and transferred the four remaining interest notes, sued appellee in the district court of Dallas county, Tex., on those notes, having declared them due under the acceleration of maturity provision of the deed of trust securing them, and obtained a default judgment for the sum of $467.07, of which amount $434.29 represented interest as evidenced by the four 'notes. On May 2, 1924, appellee was compelled to pay this judgment to avoid a sheriffs sale of the land securing the notes.

About May 1, 1924, he paid appellant Connecticut. General Life Insurance Company, to whom appellant Dallas Trust &. Savings Bank had sold and transferred all the principal loan notes, the total sum of $847, representing principal loan notes Nos. 1 and 2, each for $200, and $447 as interest due for second and third years of contract on $3,000 principal loan notes.

Appellee alleged that these' payments' constituted ’ payment of usury as a matter of fact, since he paid $1,234.28 for use of the $3,000 less than three years, whereas $900 or Igss was the total that ’ could have been legally demanded.

Appellants addressed a general demurrer to all appellee’s pleadings, which was overruled, and a plea in abatement to the effect that the judgment pleaded by appellee as a partial basis of his usury claim was res ad-judieata of all matters and things sought to be recovered by him in this suit. • .

■■ The’case was tried to the coul-t without the intervention of, a jury, and separate j’udgr ments were rendered for appellee against each of the appellants as follows: Against Dallas Trust & Savings Bank for $627.80, which is a few cents less than double the amount of $314.10 that it collected as interest for the first year of the loan contract. Against United States Bond & Mortgage Company for $864.58, which is double the sum of $434.29 collected as interest on its judgment and foreclosure proceedings against appellee. Against Connecticut General Life Insurance Company for $894, which is double the $447. paid as interest to it on May 1, 1924.

The appeal presents generally but two questions, which are as follows: (1) Is the loan contract an usurious one on its face or in its inception? (2) Is the judgment pleaded by appellee as a partial basis of his claim for usury res adjudicata of all matters and things sought to be recovered by him in this suit?

The first question must be answered in the affirmative. The contract is usurious on its face or in its incipiency because it exacts of the borrower more than 10. per cent, per, annum for each of the first five years of the loan, and, of course, exacts a. total payment of interest in excess of 10 per cent, per annum for the first five years of the loan contract. An analysis of the loan contract and the various paymfents exacted by it of the, borrower condemns it in its incipiency as an usurious one. It is true as contended by appellants that for the remaining five years of the loan contract there will be collected only seven per cent, interest per annum on $2,400, or $168 annually, a total of $840, which if added to the $1,479.33 interest collected for the first five years would make a total sum of $2,319.33, or about 9 per cent, for the entire period of the loan contra.ct. But .the viee.iif the contract as written is the fact that it exacts more than 1Ó per cent.’ per annum for each of the first1 five years of the loan.

Article 16, § 11, of the state Constitution, and articles 4979 and 4980, R. S., enacted pursuant to the constitutional .provision, declare all contracts whatsoever which may in any way, directly or indirectly, stipulate for a greater rate of interest than 10 per cent, per annum to be void to the amount or value of the interest.

The Supreme Court held in Galveston & H. Investment. Co. v. Grymes, 94 Tex. 609, 63 S. W. 860, 64 S. W. 778, that, to determine the question of usury in a contract, it must be tried by the statutory limitation of 10 per cent, per annunj for the use, forbearance, or detention of the money for one year.

Appellants rely principally upon the case of Shropshire v. Commerce Farm Credit Co. (Tex. Civ. App.) 266 S. W. 615, to sup port their contention that the. loan contract was not usurious when made, insisting that their loan contract "is practically . identical witfi the one in the Shropshire Case, and that the opinion in that case is sound and logical and supported by the great weight of authority. But in view of the fact that the Commission of Appeals, on February 10,1926,-280 S. W. 181 (opinion not yet [officially] published) reversed and rendered the Shropshire Case, holding the loan contract there presented usurious in its incipieney, we feel that further discussion is unnecessary in support of our conclusion that the contract here involved was usurious in its incipieney. Appellants’ mode and manner of enforcing the loan leaves no doubt but that they received the various payments as interest. Besides, the contract speaks for itself with respect to whether the payments were intended as interest, and, since they are wholly responsible for it, they must suffer the consequences of its construction and meaning. Shropshire v. Commerce Credit Go., supra; 39 Cyc. 1051, note 43.

The remaining question is whether the judgment pleaded by appellee as a partial basis of his usury claim is res adjudicata of all matters and things sought to be recovered by him in this suit. We have concluded that it is res adjudicata of the judgment rendered in this eau.se against appellant United States Bond & Mortgage Company, but that it is not so with reference to the respective judgments here rendered against appellants Dallas Trust & Savings Bank and Connecticut General Life Insurance Company, in favor of ap-pellee.

The judgment against the United States Bond & Mortgage Company is based entirely upon the interest collected on its judgment against appellee in the district court of Dallas county. The suit was for a recovery upon the-four remaining interest notes executed in connection with the $3,000 loan contract. The recovery in that suit was therefore to that extent upon the loan contract. The contract was usurious in its incipieney. The pleadings and the record in that suit show without dispute that, in so far as it affected these four interest notes, appellant United States Bond & Mortgage Company there tendered appellee every issue concerning them, including that of usury. It is also without question that, had appellee interposed the defense of usury in that suit, he could have defeated a recovery upon these notes,; so it must follow that as to any usury paid in satisfaction of or as included in that judgment the plea in abatement in this ease should have been sustained, for it is without question res ad-judicata to that extent.

The doctrine of res adjudicata rests upon the salutary and sound principle that there must be an end to litigation. Ruling Case Law, vol. 15, p. 969; 39 Cyc. 1034; Nichols v. Dibrell, 61 Tex. 539; Thompson v. Lester, 75 Tex. 521, 14 S. W. 20; Freeman v. McAninCh, 87 Tex. 132, 27 S. W. 97, 47 Am. St. Rep. 79, In which case the Supreme Court announced the following test in determining, the issue of res adjudicata:

“A party cannot litigate matters which he might have interposed, but failed to do, in a prior action between the same parties, or their privies, in reference to the same subject-matter. And if one of the parties fail to introduce matters for the consideration of the court that he might have done, he will be presumed to have waived his right to do so.”

Appellee recognizes this well-established rule, but contends that, since both the Constitution and the statutes pursuant to it declare contracts providing for usury void to the extent of the amount or value of the interest, a judgment for usurious interest should also be declared void and of no effect. It is also urged that since by statute a cause of action to recover usury does not arise'until it is paid, that a judgment for usury could not adjudicate the issue so as to preclude the statutory action until that judgment was paid. Although these contentions find support in some states having.usury statutes similar to ours, as is shown by the authorities (39 Cyc. 1034, and the cases cited in notes 7 and 8 in support of the text), as yet they do not find support in Texas (Chandler v. Young [Tex. Civ. App.] 216 S. W. 484; Bomar v. Smith [Tex. Civ. App.] 195 S. W. 964); These authorities hold that, since usury must be specially pleaded, the issue cannot be raised for the first time in a suit to set aside a judgment in which usury is included, and that in a suit in which the defense of usury was either overruled or omitted to be introduced, the judgment is conclusive as to it and cannot thereafter be collaterally attacked as being tainted with usury. The trial court’s judgment against appellant United States Bond & Mortgage Company, in favor of appellee, will therefore be reversed and judgment here rendered for it.

The judgment pleaded is not res ad-judicata of appellee’s judgments against appellants Dallas Trust & Savings Bank and Connecticut General Life Insurance Company, respectively, for the following reasons: First, they were not parties to that suit and judgment. Second, that judgment did not involve nor attempt to litigate their claim of right to exact and receive the interest they collected under the written loan agreement. Third, the only issue as to usury tendered appellee in that suit was whether or not the four interest notes there declared upon were usurious when viewed in the light of the entire loan contract for $3,000, of which they were a constituent' part.

These appéílants were not parties to the suit, and had appellee answered in that suit he could not have obtained any relief against either of them. To have entitled him to relief against them he would have been compelled to have impleaded them as parities. That the claim of right of appellant Dallas Trust & Savings Bank to collect and receive $314.10 interest as due upon the $3,000 loan contract for the first year was involved in that suit is wholly without merit. This appellant collected the $314.10 long before that suit was filed. It is not disputed that that $314.10 was collected as interest on the $3,000 principal loan used by appellee for only about eleven months of the first year of the contract. Neither can it be contended that that judgment in any manner adjudicated the right of the appellant Connecticut General Life Insurance Company to thereafter collect and receive upon the $3,000 principal loan the $447 collected and received by it as interest for the two years appellant used the money borrowed. The fact that appellant United States Bond & Mortgage Company had the right to institute the suit to collect the four notes held by it as a part of .the original loan agreement without making either of the other appellants a party to that proceeding is sufficient proof that the contract in its enforcement was divisible. Equity would certainly require the appellants to enforce their separate and- distinct rights so as not to make the contract usurious, and each is charged with notice of the usurious terms of the contract.

Usury may be recovered of any person, firm, or corporation knowingly exacting or receiving it. Constitution and Statutes, supra ; 39 Cyc. 1035, and notes and cases cited in notes 21 and 22. One receiving interest on a contract usurious on jts face is charged with knowingly exacting or receiving it. Shropshire Case, supra. The payment of usury to various holders of notes constituting constituent parts of one loan contract or transaction, which is on its face or in its incipiency usurious, would authorize the one who paid it to recover of each holder, either in a separate suit against each, or in one in which all are joined, double the amount paid to each, it being shown that the total paid to all exceeds 10 per cent, per annum on the amount of the loan. Where the loan contract is divisible so as to authorize the various holders of notes constituting constituent parts of it to bring suit on their respec-tives notes without making other holders of constituent notes parties, the contract is divisible, and a separate cause of action will arise against each holder for double the amount of usurious interest he exacts or receives under the terms of the usurious contract.

So in this case, the fact that one holder of notes exercised his separate right of suit to recover on them, and as to which the. doctrine of res adjudicata applies, still that suit and judgment cannot be set up as a bar against a separate and distinct suit for usury collected on notes held by other holders who were not parties to the 'suit or judgment, and in which their right to collect interest on the notes held1 by them was not in any manner involved, although the respective rights of all grew out of the same loan- contract or transaction. International & G. N. Ry. Co. v. Concrete Investment Co. (Tex. Civ. App.) 201 S. W. 718. So, in view of these facts and conclusions, we affirm the judgments of the trial court against the Dallas Trust & Savings Bank and Connecticut General Life Insurance Company, in favor of appellee.

Appellee’s cross-assignment of error complains of the refusal of the trial court to cancel future interest and the deed of trust securing such future interest after having determined that the contract was on its face usurious, but we do not find it necessary to discuss this question, since the Commission of Appeals in the opinion in the Shropshire Case, supra, denied that' right on a plea similar to the one presented here upon certain equitable grounds.

The trial court’s judgment is affirmed in part and in part reversed and here rendered in accordance with this opinion.

Affirmed in part, and in part reversed and rendered.

On Motions for Rehearing.

On February 17, 1926, we filed our opinion herein, holding that the loan contract in suit was usurious on its face, or in its incipiency, ' but that the judgment pleaded as partial basis for usury was res adjudicata to that extent of appellee’s claim. Motions for rehearing were filed by both appellants and appellee, which on suggestion of counsel we have held pending final disposition by the Supreme Court of the ease of Shropshire v. Commerce Farm Credit Co., 30 S.W.(2d) 282, the contracts in the two'cases being practically identical, and the material facts being similar.

On May 16, 1931, the Supreme Court delivered its opinion overruling the motion for rehearing in the Shropshire Case, holding that contract usurious on its face, or in its in-cipiency. We do not deem it necessary to further discuss the grounds upon which the court determined the contract to be usurious, but overrule appellants’ motion as regards usury upon the authority of that decision, and also overrule appellee’s motion for a rehearing.

Motions overruled.


author: FUNDERBURK, J.

text:
    SIMS et al. v. CALLIHAN et al.

    No. 785.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 13, 1931.
    Rehearing Denied June 5, 1931.
    R. V. Armstrong and P. L. Henderson, both of Bryan, for appellants.
    Scarborough, Ely & King, of Abilene, for' appellees.

      For opinion denying rehearing, see 40 S.W. (2d) 869.

   FUNDERBURK, J.

George Callihan and John J. Russell sued B. U. Sims, Milton Sims, Sam Cavitt, Roy Nunn, and W. H. Lawrence, residents of Brazos county, in the district court of Callahan county to recover judgment upon a written contract for debt and for foreclosure of a statutory lien on an oil and gas lease upon land situated in Callahan county: The contract, dated November 20, 1928, was signed by Joseph B. Weigel, as party of the first part, and John J. Russell and George Callihan, as parties of the second part, and purported to obligate the latter to drill a well to a specified depth upon a 100-acre tract of land upon which the former was recited to be the owner of an oil and gas lease. The well was to be drilled to a specified depth, the consideration for which was an assignment by Weigel to Callihan and Russell of a one-half interest in the lease, with provision that, if the well was dry, Weigel was to pay said contractors $2,500 as “dry hole money.” Provision was made for drilling the well deeper than the specified depth, if subsequently agreed to, in which case the- extra expense was to be borne equally by the parties.

It was alleged that the contract was made with plaintiffs by the defendants, acting through said Weigel as their agent; that the wqll was drilled and was dry, in consequence of which said sum of $2,500 was claimed, together with a small additional amount representing the proportionate part due by the defendants upon the expense of drilling an 'extra depth. It was also alleged that a lien had been duly filed, a foreclosure of which upon the oil and gas lease was prayed for.

The defendants filed a plea of privilege, and plaintiffs filed a controverting plea. The case was then by agreement transferred .to Shackelford county, without mention of the plea of privilege. Thereafter by agreement it was retransferred to Taylor county, with the express stipulation that it was to be without prejudice to the plea of privilege. In the district court of the latter county the plea of privilege was tried with the main case and overruled. During the trial plaintiffs filed a trial amendment, asserting that the defendants and said Weigel were partners in drilling the well in question. Upon the merits judgment was for plaintiffs against B. U. Sims, Sam Oavitt, and Roy Nunn for the sum of $2,500; no recovery being awarded against the other defendants. Prom said judgment the first named defendants have appealed.

Appellants contend in the first place that the evidence was insufficient ti> support _ the judgment overruling the plea of privilege. Appellees contend that the transfer of the case from Callahan county to Shackelford county by agreement, without express stipulation that such action was to be without prejudice to said plea, constitutes a waiver of same. .

We have concluded that no waiver was shown. The plea of privilege and the controverting plea were pending at the time the agreement for a transfer was made. The agreement on the part of the defendants was not inconsistent with a purpose further to insist upon that plea. The agreement simply evidenced their consent that the district court of Shackelford county, instead of the district court of Callahan county, should hear first the plea of privilege, and, if overruled, then the case on its merits. It is only when a defendant who has filed a plea of privilege invokes some affirmative action of the court inconsistent with a purpose to insist upon the plea that an implied waiver is shown. Besides, an implied waiver, such as this must be if it exists at all in this case, is rebutted by the stipulation that the retransfer to Taylor county was to be without prejudice. That agreement shows that it was in the minds of the parties that, at that time, the plea had not been waived.

A proper consideration of appellants’ contention that the evidence was insufficient to justify the order overruling the plea of privilege must take into account a legal principle that does not appear to be stressed in the briefs. In Sanger v. Warren, 91 Tex. 472, 44 S. W. 477, 478, 66 Am. St. Rep. 913, the Supreme Court says: “It has long been settled to be a general rule of law that if A. contracts with B. supposing him to he acting in his own hehalf [italics ours], but after-wards discovers that he was acting for O., A. can thereupon elect to hold C. upon the contract. The rule is held applicable to written contracts, and, by a process of reasoning not entirely satisfactory, even to those required by statute to be in writing.” As to this rule the court further says: “The exceptions to the rule, however, are so numerous, broad, and well defined, and rest upon principles of such a fundamental character, that the careful student of the law is driven to the conclusion that they are more important than the rule itself, and that the sfatement of the rule in such broad language has produced much confusion of thought, and greatly embarrassed, and probably has often misled, the courts in their efforts to apply correct legal principles to particular cases.” The court then proceeds to name a number of exceptions, one being “it cannot be applied where exclusive credit is given to the agent.” In the late case of Diacomis v. Wright (Tex. Civ. App.) 20 S.W.(2d) 139, 140, Mr. Justice Looney, after restating the above general rule, further said: “But another rule is applicable where, as in this case, the principal was disclosed at the time the contract was accepted; that is, it will be presumed that the other party elected to look alone to the responsibility of the agent for performance.”

In Heffron v. Pollard, 73 Tex. 100, 11 S. W. 165, 166, 15 Am. St. Rep. 764, the Supreme Court, speaking through Judge Gaines, stated this exception to the rule as follows: “If, however, the principal be disclosed, and the face of the writing shows that the agent is bound, it is presumed that the other party .has elected in the contract itself to look' to the agent, and the principal is not liable upon it.” See, also, Sydnor v. Hurd, 8 Tex. 98; Dominion Oil Co. v. Pou (Tex. Civ. App.) 253 S. W. 317; Waggoner v. Magnolia Petroleum Co. (Tex. Civ. App.) 252 S. W. 865.

The evidence of the plaintiffs themselves in this ease shows that, at the time the contract was made, it was known to them that Weigel had associates. Callihan testified that Weigel was “not alone in this venture, he had associates”; that “he said he had a bunch of associates with him.” Russell testified with more or less repetition that he knew “that Mr. Sims or these other gentlemen from Bryan were associates of Mr. Weigel’sthat, “when we discussed the terms of this contract, Mr. Weigel told me he was drilling this well for himself and associates. Yes, he did name the gentlemen interested with him, named Dr. Sims, Dr. Lawrence, Sam Cavitt and Roy Nunn; he did state that they were the other parties interested besides himself.” And further, “when it came to the signing of the contract he signed it ‘Joseph B. Weigel.’ He taken the contract and said he had conferred with his associates. I did not ask him at the time why he did not put his associates’ names into it. I made the contract with him and I didn’t say anything about his associates’ names, only this: I asked why he signed it himself and he said he was assigning this other half of the lease to these associates”, etc. * * * “Yes, I was relying on Mr. Weigel. He did not sign as agent or trustee. You ask, ‘When you made this contract, as a matter of fact, you were relying on Mr. Weigel’, to which I will say, I suppose so.”

The conclusion is inescapable that plaintiffs’ own testimony showed no right 'of recovery against any of the defendants upon the contract sued on. The controverting plea alleged no facts to show that any claim was made against the defendants other than the one upon the contract. The undisputed evidence therefore showed that the defendants were not liable on the cause of action asserted against them, and as to which they claim their privilege.

Venue was sought to be held in Callahan county under the provision of R. S. 1925, art. 1995, subd. 12, which provides an exception to the general rule in the case of “a suit for the foreclosure of a mortgage or other lien,” as to which it is provided that suit may “be brought in the county where' the property or any part thereof subject to such lien is situated.” Plaintiffs’ suit was in'part one to foreclose an alleged lien upon an interest in land situated in Callahan county. There was evidence perhaps to show that much. But it was necessary to show that the land was subject to the lien claimed. The burden of proof was upon the plaintiffs, we think, to offer evidence of sufficient facts to support that conclusion. There were no such faqts in evidence. The facts conclusively established that none of the defendants were liable upon the contract. The only debt claimed in the suit being claimed against the defendants only, it naturally follows that, there being no debt, there was no lien. There beijig no lien, it of course follows that there were no facts to show that the property upon which a foreclosure was sought was subject to the lien alleged.

The fact that by trial amendment liability of the defendants was asserted as partners with Weigel is wholly immaterial in passing upon the plea of privilege. The action of the court on the plea of privilege must be tested with reference to the allegations in the controverting plea which in turn must be referable to and included within the allegations of the plaintiffs’ petition at the time the controverting affidavit was filed. Austin v. Grissom-Robertson Stores (Tex. Civ. App.) 32 S.W.(2d) 205; Gholson v. Thompson (Tex. Civ. App.) 298 S. W. 318; Witting v. Towns (Tex. Civ. App.) 265 S. W. 410.

It is therefore our opinion that the court erred in overruling the plea of privilege, for which reason the judgment of the trial court should be reversed, with Instructions that the ease be transferred to the district court of Brazos county, and it is accordingly so ordered.

On liehearing.

In holding as we did in the original opinion that the evidence was insufficient to sustain the order of the court overruling the pleas >of privilege, we based the decision in part .upon the view that the act of Weigel and the plaintiffs in consummating the contract in the name of Weigel only as one of the parties, with knowledge on the part of plaintiffs that he claimed to have associates interested with him in the subject-matter of the contract, raised a presumption from the contract itself that Weigel only was intended to be bound. We were of opinion then, and still are, that that view was justified by the holding of the Supreme Court in Heffron v. Pollard, 73 Tex. 100, 11 S. W. 165, 15 Am. St. Rep. 764, and of the Court of Civil Appeals at Dallas in the late case of Diacomis v. Wright, 20 S.W.(2d) 139. Appellees, in their motion for rehearing, contend that those cases declared only a rule of evidence as distinguished from a rule of substantive law, but, if we understand what is meant by that, we cannot assent to that proposition. In fact, oilr only purpose in quoting from Sanger v. Warren, 91 Tex. 473, 44 S. W. 477, 478, 66 Am. St. Rep. 913, was to show the contrary. In that case the Supreme Court quoted from Higgins v. Senior, 8 M. & W. 844, to show the general rule, as follows: “There is no doubt that, where such .an agreement is made, it is competent to show that one or both of the contracting parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand to, and charge with liability on the other, the unnamed principals; and - this, whether the agreement be or Tie not required to be in writing by the statute of frauds; and this evidence in no way contradicts the written agreement’’ (Italics ours.)

Here is plain recognition of the fact that the general rule, as thus stated, had nothing to do with the rule of evidence that a written instrument may not be contradicted or varied by parol evidence. If true of the general rule, it would likewise be true, so far as we can see, of the several recognized exceptions, one of which being that declared in Heffron v, Pollard, supra, and Diacomis v. Wright, supra. At the time of our decision, the opinion of the Commission of Appeals in Diacomis v. Wright, 34 S.W.(2d) 806, had not been published. That opinion overruled the decision of the Court of Civil Appeals and held that a pleading seeking to charge a defendant with liability on a contract made by a third person, and so far as the contract was concerned, purporting to be the contract of such third person, but alleged to have been made by him as the duly authorized agent of the defendant, stated a cause of action against the defendant upon the contract. If so, it follows that proof of such facts would support a recovery. We cannot escape the conclusion that the opinion is directly contrary to that in Heffron v. Pollard, and must be regarded as expressing the view of the Supreme Court that the exception declared in that case and by the Court of Civil Appeals in Diacomis v. Wright is no longer to bp recognized. It follows, therefore, that, unless independently of that ground for our decision, there was no evidence to support the order overruling the plea of privilege, the motion for rehearing should be granted.

We construe appellants’ first proposition to embody the contention that, of the issues joined by the plea of privilege and plaintiffs’ controverting plea, one was an issue of fact -as to whether Weigel made the contract sued on as the agent of the defendants, upon which issue there was no evidence and upon which fact of agency depended the ultimate question of whether venue of the suit was maintainable in Callahan County under R.' S. 1925, art. 1995, subd. 12. This presents an oft-recurring question which is one of the most difficult with which wé have to deal; namely, what facts must be proved and how must such proof be made to sustain the venue of a suit under some particular exception to the general rule of venue. ' ,

We understand appellees’ position to be that, upon the venue issue, they had the burden of pleading and proving only (1) that the suit was one to foreclose a lien on land; (2) that the land was situated in Callahan county. Under this view quite logically plaintiffs’ petition was sufficient proof of the nature of the case, and the only material fact to be established by other evidence was whether the land was situated in Callahan county. If this were correct, then it would follow that questions such as whether the defendants were partners, whether Weigel was their agent, and whether he was authorized to make the particular contract for the defendants, would all be pertinent alone to a trial of the issues on the merits of the case, but wholly immaterial. on the question of venue. There are many decisions which appear to lend support to this contention. It has often been held that under the venue «statute the nature of a suit is determinable alone from the allegations of the petition. Yates v. State (Tex. Civ. App.) 3 S.W.(2d) 114; Texas Farm Mortg. Co. v. Starkey (Tex. Civ. App.) 25 S.W.(2d) 229; Sims v. Trinity Farm Const. Co. (Tex. Civ. App.) 28 S.W.(2d) 856; Koch v. Roedenbeck (Tex. Civ. App.) 259 S. W. 328; Wood v. Tandy (Tex. Civ. App.) 299 S. W. 282; Nolen v. Harding (Tex. Civ. App.) 235 S. W. 687; Galbreath v. Farrell (Tex. Civ. App.) 221 S. W. 1015; Montgomery v. Turner (Tex. Civ. App.) 233 S. W. 543; Miller v. Valley B. & L. Ass’n (Tex. Civ. App.) 29 S.W.(2d) 865; Oakland Motor'Car Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861, 864.

In the last-named case we had occasion to say: “An examination of the several exceptions to the general rule of venue will disclose that some of the exceptions are based upon the fact of the nature of the action, together with one or two other simple facts that are ordinarily easy of proof. For example, where the nature of the suit is one for the recovery of land (subdivision 14), or Tor divorce’ (subdivision 16), or ‘against.a county’ (subdivision 19), etc. In all such cases, where the exception is based in part upon the nature of the action, the plaintiff’s petition is the best and all-sufficient evidence of the nature of the action.”

In Higginbotham-Railey-Logan Co. v. Hancock (Tex. Civ. App.) 4 S.W.(2d) 583, 584, which upon rehearing was disposed of on an entirely different ground, by reason of which our original opinion was not indicated in the syllabus, we expressed the view with reference to exception 14 that: “In cases of trespass to try title or suits to remove incum-brance upon the title to land, there can be but two questions put in issue on a plea of privilege; namely, the nature of plaintiff’s cause of aption and the location of the land. The best evidence of the nature of the cause of action in a suit of that character is the pleading itself. What more proof should plaintiff be required to make in order to maintain venue than that his action is clearly one of trespass to try title, or to remove an incumbrance, and that the land is situated in the county where suit is filed? Nothing short of proof of these facts would hold the venue, and we can conceive of nothing more as being required.”1

We find it necessary now to consider whether the principles discussed in the last-named opinions of this court as above quoted apply to the case under consideration, involving as it does the exception provided in R. S. 1995, subd. 12. This exception ,reads: “Lien. —A suit- for the foreclosure of a mortgage or other lien may be brought in the county where the property or any part thereof subject to such lien is situated.”

If, in a suit in trespass to try title to land, it is only necessary to prove the nature of the suit by the plaintiff’s petition and by other evidence that the land is situated in the county where suit is brought, it is difficult to see that in a suit to foreclose a lien on land it would be necessary to do more. ,We were at first of the opinion that this case was distinguishable from those involving subdivisions 14, 16, and 19, as recognized in the foregoing excerpts, in that plaintiffs were required to plead and prove the facts to show that the property was subject to the lien claimed, by reason of the peculiar wording of this subdivision. It was our view that the fact that the property was subject to the lien could not be shown by allegations to that effect, but that the facts making it such were necessary to be alleged in the controverting plea and established by evidence. We were further of opinion that the land could not be shown to be subject to the lien, in the absence of proof that Weigel was the agent of defendants in making the contract. But, after further careful study, we are doubtful if the case is properly distinguishable upon any such basis.

We have therefore made a careful re-examination of the whole question to discover, if possible, some controlling principle that may serve to harmonize, or, at least, to explain, the many apparently conflicting opinions dealing with the various exceptions to the general rule of venue. Must it be said, as we concluded, and so indicated in Oakland Motor Car Co. v. Jones, supra, that one law involving one principle is applicable to certain of the exceptions, and an entirely different law, involving a different principle, controls cases coming within other exceptions? Conceding the difficulty of perceiving any distinction between a suit in trespass to try title and a suit to foreclose a lien on land, it is equally as difficult to appreciate any logical distinction between either of said cases and the one provided for in subdivision 4, which likewise is an exception based upon the nature of the suit. In the latter case, why should plaintiff be required to do more than to exhibit his pleading to show that the suit is one against more than one defendant, and then prove that one defendant resides in the county of the suit? Whatever the reason, nothing is better settled than that in such a case “plaintiff must both allege and prove the facts showing a bona fide cause of action against the resident defendant, which is of such nature as that an out-county defendant claiming his privilege to be sued elsewhere, is properly joined in the same suit.” Oakland Motor Car Co. v. Jones, supra, and authorities there cited. What principle governs the distinction made? In the Oakland Motor Car Company Case we accounted for the difference on the ground that to apply the same rule to cases within exception 4 would “render the right of a defendant to be sued in the county of his residence too easily liable to be denied to him by the simple allegations of his adversary, never perhaps intended to be proved.” But the inquiry is suggested, whether the same thing is not just as true of the case presented by this record as in one in which' venue is dependent upon subdivision 4. Two causes of action are alleged which, although they may properly be joined, could be maintained separately.- One involves defendant’s liability on the contract which, on its face, was the contract of plaintiffs and a stranger to the suit; the other involves the existence of a statutory lien upon land in Callahan county and the right to have same foreclosed. The right to litigate the question of defendants’ liability on the contract in Callahan county exists only if the suit within the intent of the venue statute is one to foreclose a lien on land in that county. Why should simple allegations of such a cause of action be any more conclusive against a nonresident defendant in such a case than simple allegations showing a cause of action against the resident defendant in cases under subdivision 4? It seems to us that the reason for requiring allegations and proof of the facts to show the existence of such cause of action coming , under subdivision 4 likewise exists in any suit under any exception where more than one cause of action is sought to be litigated together, and one or more of them do not come within any exception to the general rule of venue.

In Richardson v. Cage, 113 Tex. 152, 252 S. W. 747, 749, dealing with subdivision 4, it was said: "In a case, as here, where the plaintiff attempts to allege a cause 'of action against one defendant, relying upon the existence of that cause of action as a basis to maintain his suit in the county where it is brought against another defendant (or the same defendant upon another cause of action not coming within an exception) who does not reside in that county, he being in possession of the proof upon which he relies to establish that cause of action, we think the rule ought to be that in the trial on the plea of privilege he should be required to prove the allegations of his petition to the extent of showing a' bona fide cause of action against the resident defendant (or non-resident defendant against whom another cause of action, not within any exception to the statute, is also asserted), or the plea should be sustained.”

- By the express adoption of the opinion, the foregoing, we think, may be regarded as expressing the views of our Supreme Court. The interpolations in parentheses are all that are needed to make that statement of the law applicable to this case. Every reason that can be urged, so far as we can see, to support the statement proper, can be urged to support the interpolations. The reason of the rule established with reference to subdivision 4 is that a defendant may not be deprived of his privilege by means of the mere assertion of a cause of action against his codefendant. The reason for applying that rule to this case, or any other case where two or more causes of action are asserted against the same defendant or defendants, and venue is sought to be maintained because of the. nature of one of them, is that the defendant or defendants in such a case likewise may not be deprived of his or their privilege by the mere assertion of another cause of action which, if it have a bona fide existence, would fix the venue as laid. If, independently of the allegations of the petition, the facts showing the existence of a bona fide cause of action must be pleaded and proven in the one case, they should also in the other. Under this view the excerpts quoted from former opinions of this court are corredt, but only so when applied to suits involving a single cáuse of action.

So far as we are aware, this distinction or principle of differentiation has not been discussed in any of the numerous cases on pleas of privilege. It has, we think, been applied in a number of cases. The principle has nowhere been more forcefully asserted in gen-erahterms than by the Supreme Court in Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S. W. 25, 26„ wherein it was said: “The right to maintain a suit in a county other than that in which the statute fixes the venue must depend upon the existence of the fact or facts which constitute an exception to the statute, and not upon the mere averment of such fact or facts. Where jurisdiction of the person of a defendant is claimed under some exception to the general statute of venue, and he pleads the privilege of being sued in the county of his domicile as provided by that statute,- to defeat this plea, and deprive him of that right, we think the facts relied on should be not only alleged, but proved.”

A concrete application of the principle is to be found in Southwestern Surgical Supply Co. v. Scarborough (Tex. Civ. App.) 15 S.W. (2d) 65. In a suit upon an open account against a nonresident defendant, there was joined a cause of action upon a note providing for payment in the county where suit was brought. ■ The note was not due unless certain facts existed which gave the plaintiffs the right and option to acceferate the due date thereof. The court held, because such facts were not proved to exist, the cause of action upon the open account could not be maintained as against the plea of privilege. For other cases applying the principle, see: Groos v. Brewster (Tex. Civ. App.) 55 S. W. 590; Witting v. Towns (Tex. Civ. App.) 265 S. W. 410; Van Horn Trading Co. v. Day (Tex. Civ. App.) 148 S. W. 1129.

Since the decision in Middlebrook v. Manufacturing Co., 86 Tex. 706,' 26 S. W. 935, it has been the rule that, where plaintiff sues a nonresident defendant upon a cause of action maintainable under one or more of the exceptions to the general venue statute, he may join in the same suit other causes of action properly joinable against the same defendant, although alone such other causes of action could-not be maintained as against the plea of privilege in the county wheré suit is brought. It seems to us, however, that in applying this rule much of the confusion and the conflicts to be found in the decisions have resulted from a failure to recognize that different principles control the nature and quantum of pleading and proof in such a case, and one where a single cause of action coming within an exception to the rule is involved. To illustrate, A sues B in C county upon a single cause of action, seeking to recover damages for fraud and deceit committed in said county. B, who resides in D county, files his plea of privilege. To hold that A must, on the question of venue, plead and prove the facts to show a cause of action would be to require him to twice litigate the subject-matter of his suit. By no possibility can it be the only purpose of such a suit .to deprive the defendant of his privilege. If the venue cannot be maintained, neither can the suit on its merits. It cannot be presumed that the plaintiff would incur, the certain costs and expense simply to deprive the defendant of his privilege, with no expectation of holding him to a final liability ón the only cause of action asserted. In such a case plaintiff should be required to do no more than exhibit his petition and prove that, if the alleged fraud existed, it was committed in the particular county where alleged. The same is true of single causes of action asserted and sought to be maintained under other exceptions where the nature of the suit is a material fact.

But how different is the situation where more than one cause of action is claimed? A sues B and O in D county to recover land situated in E county, and to partition said land. B files a plea of privilege to be sued in F county. A seeks to maintain venue under subdivision 13 on the ground that O, a resident of D county, asserts an adverse claim to the land, and also under subdivision 4 because 0, being one of the defendants, resides in said county. As we have already pointed out, to sustain the venue under subdivision 4 the facts showing a cause of action against 0 must be pleaded and proved. We can conceive no reason why any less burden should exist as to subdivision 13, since it may just as well be that O asserts no adverse claim to the land or claims no interest therein to make him a proper party in a partition suit at all. In other words, since another cause of action is sought to be litigated, there is no guaranty of the bona fides of the one upon which the venue is dependent. We are therefore of the opinion that it ought to be the rule that, where a suit is brought involving more than one cause of action, one or more of which does not come within any of the exceptions, and venue is sought to be sustained on the ground that one or more of such causes of action do come within some exception or exceptions, a nonresident defendant joined in the suit and claiming his privilege should be entitled to have the case transferred to the county of his residence, unless the plaintiff pleads and proves the facts to show a bona fide cause of action within the exception or exceptions claimed.

Recognizing and applying such rule to the facts of this case, we have concluded that there was no evidence to show a cause of action against any of the defendants for the foreclosure of a lien on land in Callahan county. There was no evidence that Weigel made the contract in question for any of the defendants. That defendants may have been associated with him in interest in some undisclosed way is no evidence that he was their agent or had any authority to bind them by the contract in question.

We are therefore of opinion that our judgment, although based upon the wrong grounds, was nevertheless correct for the reasons hereinbefore set out. The motion for rehearing should be overruled, and it is accordingly so ordered.


author: HICKMAN, C. J. .

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. BIRDWELL et al.
    No. 869.
    Court of Civil Appeals of Texas. Eastland.
    May 22, 1931.
    Rehearing Denied June 12, 1931.
    Harry OP. Lawther, Shelby S. Cox, Wm. M. Cramer, James P. Swift, and 'Frank F. Taylor, all of Dallas, and E. V. Hardwick, of Stamfprd, for appellant.'
    J. F. Lindsey, of Anson, and Caldwell, Gil-len, Francis & Gallagher, of Dallas, for ap-pellees. ,
   HICKMAN, C. J. .

This suit was instituted in the- court below by appellant against appellees, Mrs. Ella Birdwell and Pauline Birdwell,' a minor, to set' aside an award of the Industrial Accident Board. The appellees filed their cross-action, alleging that they were respectively the widow and minor child of T. C. Birdwell, deceased; that on or about April 22, 1929, while engaged in the course of his employment with A. C. Fox, appellant’s subscriber, said T. C. Birdwell sustained certain personal injuries, from which he died on January 25, 1930; that they were the- sole exclusive beneficiaries of said deceased; and appellee, Mrs. Ella Birdwell, for herself and as next friend of the said Pauline Birdwell, prayed for judgment for compensation for,, 360 weeks in one lump sum. A jury- was demanded, and the case submitted on special issues. The answers of the jury to each and all of the .special issues being favorable to appellees, judgment was rendered for them accordingly, from which judgment this appeal is prosecuted.

The first question presented is that the court should have given a peremptory instruction in favor of appellant, because the appellees alleged that they were the sole exclusive beneficiaries of T. G. Birdwell, and did not make proof of that fact. The facts developed upon the trial disclose that no children were born to Mr. and Mrs. Birdwell, but that each had children by former marriages. Only one of Mr. Birdwell’s children was a minor. She was a party to this suit. Eegarding the other children of Mr. Bird-well, Mrs. Birdwell testified as follows:

“Mr. Birdwell did not leave any other minor children other than Miss Pauline here. He left some other children. They are: Mrs. E. M. Spraberry, who lives here in Anson; Mrs. Bonnie Brown, of Odessa, Texas; Mrs. Junie Mayo, of Pampa, Texas; Weldon Birdwell, of Odessa-; Cone Birdwell, of Odessa. There were no others but Pauline, and she is a minor child. Mr. Spraberry’s initials are E. M. Mrs. Bonnie Brown’s husband’s initials are ' T. P., I believe. I don’t know the initials of Mrs. Mayo’s husband, but his given name is- Lee.
“All of those people that I have named— five of them — were sons and daughters of Mr. Birdwell.”

- There is no suggestion from any evidence in the recprd that any of these adults were dependent upon the deceased, and the facts wittí reference to the income of deceased would indicate that he had no financial ability to render assistance to' any of them. These facts and circumstances constitute some evidence that appellees were the sole beneficiaries. None of the adult children resided at the s'ame address where the deceased and appellees lived. All of the adult daughters .were shown to be married and living with their husbands, and there is no suggestion that any of them were dependent upon their father. In the administration of justice, it is often necessary to indulge in presumptions. Pacts which usually follow given facts may be presumed, in the absence of evidence to the contrary, to be true. There is no legal obligation resting upon a parent to support his adult children, and his obligation to support a daughter ceases upon her marriage.

An adult person is presumed to be in possession of normal faculties of mind and body, and, as said in Hines, Director General of Railroads, v. Walker (Tex. Civ. App.) 225 S. W. 837, 839 (error refused), “ ⅜ * * in the absence of proof it cannot be presumed that he will continue such support.” Had these adult children been parties to this suit and had offered.no evidence of dependence further than the facts disclosed in this -record, then the evidence would have fallen short of making any case in their favor, for the presumption that their father did not support them could be overcome only by positive proof to the contrary. That presumption operates to afford some evidence in support of appellees’ allegation, and the contention in this respect is overruled. Hines v. Walker, supra; St. L., A. & T. Ry. Co. v. Johnston, 78 Tex. 538, 15 S. W. 104, 106; T. & N. O. Ry. Co. v. Mills (Tex. Civ. App.) 143 S. W. 690; Baker v. Adkins (Tex. Civ. App.) 278 & W. 272.

We do not wish to be understood as indicating that appellant would have been entitled to a peremptory instruction had the evidence disclosed that one or more of these adults were dependents. That question is not before us.

Another group of assignments and propositions present for review the ruling of the trial court on the admissibility of certain evidence. Appellees’ counsel propounded to a medical expert a hypothetical case, concluding with this interrogatory: “Remembering those facts just stated in the hypothetical question, remembering those and assuming them to be true, could the injury sustained on April 22nd, 1929, injuring (the small of the back, could or could not that be a contributing cause of the man’s death on January 25th, 1930?”

■ The answer to this interrogatory was as follows: “I think the injuries sustained by that man on April 22nd, 1929, could be a contributing cause of ■ that man’s death on January 25th, 1930.” •

Practically the same interrogatory was propounded to another expert witness and a similar answer returned. Another question propounded concluded with this interrogatory : “Assuming these facts to be true for the purpose of your answer, in your opinion, could or could not the injuries, if any, received on April 22nd, 1929, be a precipitating factor in causing his death?”

The only objections made below to this evidence which are presented in this court were that the questions and answers were immaterial and prejudicial, and because, under the Workmen’s Compensation Law (Vernon’s Ann. Civ. St. arts. 8306-8309), the injuries must have caused the death. An employee under our Workmen’s Compensation Law is not required to show that the injuries complained of proximately caused his incapacity. In Texas Employers’ Ins. Ass’n v. Lovett (Tex. Civ. App.) 19 S.W.(2d) 397, 400 (error refused), it is said: “The evidence certainly establishes a causal connection between the injury and the death of the employee, which is the test in workmen compensation cases.” In Travelers’ Ins. Co. v. Peters (Tex. Civ., App.) 3 S.W.(2d) 568, 571, affirmed in (Com. App.) 17 S.W.(2d) 457, the Beaumont court said: “Under our Workmen’s Compensation Law, as we understand it, it is not required, in order to a recovery by an employee or his beneficiaries, to show that the injuries complained of proximately caused incapacity or death, and therefore the term ‘proximate cause,’ as used in ordinary cases of negligence, is not the test by which to determine liability in a case of this character. On the contrary, in order to a recovery in a ease of this character, it is only required that it be shown that the injury sustained - was an efficient, exciting, or contributing cause.” Upon these authorities, and those following, we hold that no reversible error was committed by the trial court in admitting this evidence. Travelers’ Ins. Co. v. Smith (Tex. Civ. App.) 266 S. W. 574; Norwich Union Ind. Co. v. Smith (Tex. Com. App.) 12 S.W.(2d) 558; Georgia Casualty Co. v. Little (Tex. Civ. App.) 281 S. W. 1092.

It is presented that the answer of’Dr. N. B. Beaver in his depositions, in response to direct interrogatory No. 21, was not responsive to the question. The question was as follows: “If you have answered the preceding question in the affirmative, then kindly state fully your observations and findings as made from the X-ray pictures which you made of Mr. Birdwell. In this connection, please state fully the significance of your findings and interpret fully the X-ray pictures taken of Mr. Birdwell.”

The answer was as follows: “I will read you the report in my files in regard to this ease: ‘X-ray Beport of T. C. Birdwell— August 13th, 1929 — Eeferred by Dr. Ben L. Schoolfield. Question — Pelvis and Lumbar Spine. Anterior Posterior stereograms were made to include the lower spine, the pelvis and the proximal ends of the femerse; the lumbar vertebrae are normal in position and outline; both sacro-iliae synchondrosis are Slightly increased in density. They show consideration evidence of Arthritis; Acetábu-lo are clear.’ ”

There was other testimony concerning these X-ray pictures in the record. Dr. Ben L. Schoolfield, by his deposition, testified that: “In connection with my examination of Mr. Birdwell, X-ray pictures were taken of parts of his body. These pictures were taken on or about August the 12th, 1929, at the office of Dr. N. B. Beaver, of Dallas. The pictures were made by Dr. Beaver and under my direction. The pelvis and lower parts of the spine were the parts of the body so X-rayed.”

Dr. Beaver had previously testified in his deposition as follows: “I have made X-ray pictures of some parts of Sir. Birdwell’s body. I made X-rays of the lower lumbar spine and of the pelvis. On August 13th, 1629, or within a day or two previous, the X-ray pictures were taken. I am merely giving the date from my record, which is usually one day following the .date of the plates. Those X-ray pictures were made at the request of Dr. Ben L. Schoolfield. I made the pictures personally.” No objection was made to this testimony.

We think this evidence, when taken together, reasonably discloses that the report from which the witness was reading was made by him .from his own notes and observations made in interpreting the X-ray pictures. These notes having been made at about the time the pictures were made, we can see no objection to his referring to them and copying them as a part of his answer. This witness had no personal recollection of the man, and testified only as an expert from his own records. Some latitude must necessarily be indulged in favor of the admissibility of evidence of this character, and it would be a too strict construction of the rules of evidence to reverse a judgment on account of the admission of this evidence.

The question of the sufficiency of the evidence to support the findings of the jury is presented. We have frequently had for consideration similar questions in cases under the Workmen’s Compensation Law. Were we to weigh the expert testimony as it appears in the record before us, we would probably arrive at the conclusion that the preponderance thereof is against the verdict. But there is expert testimony in support of it, and there are facts and circumstances and testimony from nonexpert witnesses which the jury has weighed, and which, if believed, reasonably support the verdict. It is impossible for us to know what was the cause of this man’s death. He received a serious injury while in the course of his employment; later he died. We cannot say that his death was not the result of the injury. The verdict is not manifestly wrong. There is more evidence supporting the findings in this case than there was in the cases of Texas Indemnity Ins. Co. v. Preslar (Tex. Civ. App.) 298 S. W. 666, and Texas Employers’ Ins. Ass’n v. Clark (Tex. Civ. App.) 23 S.W.(2d) 405, in each of which cases we overruled assignments complaining of the sufficiency of the evidence. It may be true that an injustice is sometimes done by verdicts of juries which refuse to follow the opinions of the best medical experts, but a greater injustice would probably be done were we to adopt the practice of reversing cases merely on the ground that, from the cold record presented to us, it would appear that a preponderance of expert testimony is contrary to the findings. Our province, it is wisely held, does not extend that far. We therefore overrule the assignments challenging the sufficiency of the evidence.

There is no reversible error pointed out in the brief, and no fundamental error appears on the face of the record.

The judgment of the trial court will therefore be affirmed.