author: SMITH, Justice. GRIFFIN, Justice

text:
    TENNESSEE-LOUISIANA OIL COMPANY, Petitioner, v. Dixon CAIN, Respondent.
    No. A-10449.
    Supreme Court of Texas.
    Jan. 26, 1966.
    Rehearing Denied March 9, 1966.

      Baker, Botts, Shepherd & Coates, Finis E. Cowan and William C. Harvin with above firm, Houston, for petitioner.
    Vinson, Elkins, Weems & Searls, Leroy Jeffers with above firm, Houston, for respondent.
   SMITH, Justice.

Tennessee-Louisiana Oil Company, hereinafter designated as plaintiff, filed this suit against Dixon Cain-, hereinafter referred to as defendant, for breach of fiduciary duty. Trial was to a jury, and judgment was entered on the verdict in favor of plaintiff against the defendant for $57,750.00. The Court of Civil Appeals re-versen and remanded the cause to the trial court for a new trial. 382 S.W.2d 794. We affirm the judgment of the Court of Civil Appeals.

Plaintiff alleges that on January 14, 1960, plaintiff and Tennessee Gas Transmission Company, on the one hand, and Fifteen Oil Company, of which Dixon Cain was President, on the other hand, entered into a “Plan of Reorganization” whereby Fifteen Oil Company agreed to transfer substantially all of its assets to plaintiff in exchange for 477,092 shares of .$5.00 par value common stock of the Tennessee Gas Transmission Company. The Plan of Reorganization was amended on March 24, 1960, and finally consummated, and all transfers were made in accordance with the Plan on May 15, 1960.

Plaintiff’s position throughout has been that the defendant, in consideration of the sum of $57,500.00 paid with its consent by Fifteen Oil Company, agreed that he would not be retained in the employ of plaintiff, but did agree to remain available in a retained advisory capacity. The written agreement executed on May 2, 1962, reads' as follows:

“With reference to the Plan of Reorganization entered into on January 14, 1960 and amended on March 24, 1960, between Fifteen Oil Company, Tennessee Gas Transmission Company and you, each of the undersigned (1) does hereby acknowledge receipt of payment by Fifteen Oil Company, as severance pay, of an amount equal to one and one-half (1½) times his current annual compensation; and (ii) does hereby agree that he will be available to you in a retained adyisory capacity for a period of six (6) months from and after May 2, 1960, in order that there will be no abrupt change in management and in order that you may avail yourself of his special knowledge concerning the affairs and properties of Fifteen Oil Company.”

The plaintiff contends that by virtue of the terms of this agreement, the defendant, during the six (6) month period provided in the agreement, was, in effect, the agent of plaintiff and “had as to the Tennessee Louisiana Oil Company the undivided duty of fidelity and loyalty which an agent owes to his principal and which an employee owes to his employer, and it was in order to attempt to insure that Mr. Cain would not use his special knowledge of the properties and affairs of Fifteen in violation of and contrary to the interests of the former Fifteen Company stockholders and the Tennessee-Louisiana Oil Company that the Tennessee-Louisiana Oil Company was willing to consent to the payment of this very large sum of money to Dixon H. Cain.”

The plaintiff further contends specifically that the defendant breached the duty of a fiduciary when he wrote a letter on October 19, 1960, to plaintiff and the Phillips Petroleum Company demanding further development of the Martinez Lease, one of the properties included in the Plan of Reorganization and conveyed to plaintiff by Fifteen Oil Company. The letter was written by the defendant, in behalf of his father, J. W. Cain, an owner for many years of 25% of the minerals in and under the Martinez property. Copies of the letter were sent to other lessors interested in the Martinez Lease. In substance this letter reminded the plaintiff that a well had been drilled on the Callery Unit off-setting the Martinez Lease and that, under the terms of the Martinez Lease, the plaintiff was obligated to develop or reassign the lease.

It is the action of the defendant in writing this letter which the plaintiff contends violated the terms of the letter agreement of May 2, 1960, wherein the defendant agreed to hold himself available to the plaintiff “in a retained advisory capacity for a period of six (6) months from and after May 2, 1960, in order that there will be no abrupt change in management” and in order that the plaintiff “may avail yourself [itself] of his special knowledge concerning the affairs and properties of Fifteen Oil Company[Emphasis added.] The plaintiff makes the additional contention that the writing of this letter violated and was contrary to the representations and warranties contained in the “Plan of Reorganization” and a “Certificate” executed by Fifteen Oil Company on May 2, 1960. Although both instruments were executed by Fifteen Oil Company and the representations and warranties contained therein were those of Fifteen Oil Company, plaintiff alleged that the warranties contained in the “Plan of Reorganization” were the representations of Dixon H. Cain, the defendant.

The defendant Cain has taken the position from the inception of this case that the plaintiff’s acquisition of the Fifteen Company was after long drawn out arm’s length negotiations; that the record establishes as a matter of law that there was no fiduciary relationship between the plaintiff and defendant and that he breached no fiduciary obligation owing to plaintiff for the reason that under the undisputed evidence the defendant’s only duty to plaintiff was the contractual duty to remain available in an advisory capacity and that neither the writing of the letter nor any other act on his part constituted a breach of his duty to the plaintiff.

The record clearly reflects an arm’s length transaction. The evidence is undisputed that Dixon Cain was approached by Mr. Smallwood, a Dallas investment banker, in June, 1958, with an invitation to have dinner with two officers, Graham and Symonds, of the Tennessee Gas Transmission Company. The invitation was accepted and at the meeting Cain was told by Symonds that “Tennessee wanted Fifteen’s properties and * * * wanted me to work for them and would I present it to my Board of Directors. * * * ” In July or August, 1958, Cain did present this proposition to Fifteen’s Board, but it was turned down. Cain notified Graham by letter that their offer had been refused and asked Graham “if [Tennessee] was going to continue to be interested in [Fifteen] and continue to buy stock in [Fifteen]” in the face of the fact that Fifteen did not desire to sell to Tennessee. Graham assured him that they would not be interested in acquiring any other stock. However, Tennessee continued to acquire stock in Fifteen through Mr. Smallwood in Dallas so that, by July, 1959, Tennessee owned over 20'% of Fifteen (263,000 shares). Tennessee, by its letter to Smallwood in February, 1957, urged Smallwood to continue purchasing Fifteen common stock and assured Small-wood against loss in the event Tennessee later decided not to purchase the stock. Thereafter, Cain and other officers of Fifteen proceeded to negotiate with Tennessee through Graham and others as to the details of a sale of Fifteen to Tennessee, and the sale was consummated in May, 1960.

At the close of plaintiff’s evidence the defendant presented to the court a motion for an instructed verdict. The motion urged the court to instruct the jury to return a verdict in favor of the defendant, or in the alternative, to withdraw the case from the jury and to render judgment in his favor on the ground that there was no evidence of a fiduciary relationship between the plaintiff and defendant, and further, “[bjecause the evidence is without dispute that no part of the sum of $57,750 for which the plaintiff sues in this case came from the plaintiff to this defendant or that the giving of such sum to this defendant by Fifteen Oil Company cost the plaintiff in this case or its predecessors in interest any amount of money, and that by the giving of the same to this defendant Fifteen Oil Company and its Board of Directors discharged an obligation to this defendant which they in the exercise of their discretion as directors of said company felt this defendant to be entitled.”

The plaintiff, at the close of all of the evidence moved for an instructed verdict on the ground that:

“[a]s a matter of law, by virtue of the terms of the Plan of Reorganization of Fifteen Oil Company (hereinafter “Fifteen”) dated January 14, 1960 and the letter agreement of Tennessee and Dixon Cain dated May 2, 1960, Dixon Cain, for the period of six months following May 2, 1960, became an agent of, a consultant and adviser to Tennessee in order that there would be no abrupt change in management and in order that Tennessee might avail itself of his special knowledge of the business affairs and properties of Fifteen. Further, as a matter of law, by virtue of the relationship created thereby for such period of time, Dixon Cain owed Tennessee the fiduciary duty and loyalty which an agent owes the corporation.”

Both motions were overruled and the court submitted seven special issues to the jury. Those issues and the answers thereto read as follows:

“SPECIAL ISSUE NO. 1: Do you find from * * * the evidence that by virtue of the Plan of Reorganization of Fifteen Oil Company and the Letter Agreement of May 2, 1960, between Dixon Cain and Tennessee Louisiana Oil Company, Dixon Cain agreed to act for Tennessee Louisiana Oil Company to the extent of remaining available in a retained advisory capacity for a period of six months from and after May 2, 1960, in order that there would be no abrupt change in management and in order that Tennessee might avail itself of his special knowledge concerning the affairs and properties of Fifteen Oil Company?
“Answer: We do.
“SPECIAL ISSUE NO. 2: Do you find from * * * the evidence that during the six month period in which he had agreed to be available to Tennessee-Louisiana Oil Company in a retained advisory capacity with respect to the properties of Fifteen Oil Company, Dixon H. Cain took action in connection with one of such properties which action was adverse to and against the interest of Tennessee-Louisiana Oil Company and in said property?
“Answer: We do.
“SPECIAL ISSUE NO. 3: What sum of money, if any, would fairly and reasonably compensate Tennessee-Louisiana Oil Company for the damages, if any, which resulted from such action on the part of Dixon H. Cain, if any you have found ?
“Answer: $60,000.00.
“SPECIAL ISSUE NO. 4: From a preponderance of the evidence state the extent, if any, to which Dixon Cain benefited or profited from such action, if any you have found?
“Answer: $45,000.00.
“SPECIAL ISSUE NO. 5: Do you find from * * * the evidence that the sum of $57,750.00 was paid to defendant, Dixon H. Cain by Fifteen Oil Company ?
“Answer: We do.
“SPECIAL ISSUE NO. 6: Do you find from * * * the evidence that the release of the Martinez lease was proximately caused by the failure of the employees of Tennessee Louisiana Oil Company to proceed with the decision made to obtain an extension of such lease and a farm-out agreement?
“Answer: We do.
“SPECIAL ISSUE NO. 7: Do you find from * * * the evidence that the release of the Martinez lease was proximately caused by the failure of the executives of Tennessee Louisiana Oil Company to make any decision with respect to obtaining an extension of the lease, a farm-out agreement, or the drilling of a test well ?
“Answer: We do not.”

Plaintiff filed its motion for judgment based upon “the pleadings, the evidence, the findings of the jury to special issues numbers 1 through 4, individually and collectively, and the law applicable thereto,” In its motion for judgment, the plaintiff contended that the answers to special issues 5 and 6 were immaterial to every “cause of action asserted herein, and such findings afford no basis for an entry of any judgment for the defendant, they are of no force and effect and should be disregarded.”

Defendant’s motion for judgment alleged as grounds therefor the following:

* *
“(1) By its answer to Special Issue No. 6 submitted by the Court to the jury, the jury found that the release of the lease in question was proximately caused by the failure of the employees of Tennessee-Louisiana Oil Company to proceed with the decision made to obtain an extension of such lease and a farmout agreement; such failure is in no way attributable to this defendant and the jury has not in response to any special issue found that any damages sustained by the plaintiff or the release of the lease in question was occasioned by any action of this defendant.
* ⅝ ⅜
“(3) In the alternative, this defendant moves the Court to set aside and hold for naught the answer of the jury to Special Issue No. 1, in answer to which the jury found that this defendant had by virtue of this plan of reorganization of Fifteen Oil Company and the Letter Agreement of May 2, 1960 between Dixon Cain and Tennessee-Louisiana Oil Company, agreed to act for Tennessee-Louisiana Oil Company because the same is entirely unsupported by the evidence, and upon setting aside such answer of the jury to enter judgment herein in accordance with this defendant’s motion for instructed verdict filed at the close of the plaintiff’s case.
“WHEREFORE, premises considered, this defendant prays the Court to enter judgment herein that Tennessee-Louisiana Oil Company have and take nothing of and from this defendant, or, in the alternative, that the Court set aside the finding of the jury in response to Special Issue No. 1 and thereafter render judgment herein in favor of this defendant and that plaintiff take nothing against him, together with such other and further relief, both general and special, at law and in equity, to which he may show himself justly entitled.”

The Court granted plaintiff’s motion and overruled that of the defendant. Thereupon, judgment was entered in favor of plaintiff “against the defendant, Dixon H. Cain, in the amount of Fifty-seven Thousand Seven Hundred Fifty Dollars ($57,-750), with interest thereon at the legal rate from the date of entry of this judgment.”

On appeal to the Court of Civil Appeals the defendant presented points of error, which if sustained, would have required the Court of Civil Appeals to reverse the judgment of the trial court and render judgment that the plaintiff recover nothing against the defendant. However, the Court of Civil Appeals of the Twelfth Supreme Judicial District of Texas, at Tyler, to which Court the cause was transferred by this Court upon the equalization of the dockets of the several Courts of Civil Appeals, reversed the judgment of the trial court and remanded the cause to that court for a new trial.

The defendant’s three points in the Court of Civil Appeals attacked the judgment of the trial court upon the grounds that (1) the Court erred in submitting over timely and proper objection, issue No. 1, because such issue called upon the jury to determine issues of law rather than of fact, in that, it asked the jury to interpret the meaning of the documents mentioned in the special issue; (2) the only agreement between the defendant and the plaintiff was that the defendant was to remain in a retained advisory capacity, as stated in the letter agreement of May 2, 1960, and that there was no evidence that the defendant agreed to act for the plaintiff in any other capacity; and (3) “the Court erred in submitting to the jury, over timely and proper objection of the appellant, special issue No. 2, * * * to which the jury answered, ‘we do,’ because there is no evidence that appellant, Dixon H. Cain, took any position with respect to the property therein inquired about except to assert the position of his father for whom appellant acted as attorney in fact.”

The facts in this case are undisputed. There is no dispute concerning the signing of the various instruments mentioned in the submitted issues. When the writ of error was granted, this Court was of the tentative view that the trial court entered a proper judgment in this case, and that the Court of Civil Appeals erred, as asserted by the plaintiff in its application for the writ, “in reversing the judgment of the trial court because the evidence established conclusively and as a matter of law that the written instruments governing the relationship between the parties created a duty of loyalty on the part of Cain. The submission of special issue” Nó. 1 was thus immaterial and did not cause the rendition of an improper judgment.”

The defendant, in this Court, presents a counter point stating that:

“[t]he record establishes as a matter of law that there was no fiduciary relationship between respondent and petitioner and that respondent breached no fiduciary obligation owing to petitioner because under the undisputed evidence respondent’s only duty to petitioner was the contractual duty to remain available in an advisory capacity and respondent has in no way breached that duty. Therefore, petitioner cannot complain of the judgment of the Court of Civil Appeals because, if it had decided the issues here involved as a matter of law, it would have been compelled to reverse and render for the respondent.”

After a careful consideration of the record, including oral arguments and the briefs of the parties, we have concluded to sustain the defendant’s contention. A fiduciary relationship existed between the parties with respect to any transaction where information or advice was imparted or requested under the terms of the letter agreement, but Cain was under no duty to refrain from acting adversely to Tennessee’s interest in other and wholly unrelated matters. Admittedly, the defendant owed a duty to act within the framework of the agreement of May 2, 1960. We construe the retained advisory letter as having obligated the defendant to give the plaintiff information about Fifteen’s former business if and when asked by the plaintiff. The only evidence in the record that plaintiff requested advice is found in the testimony of the defendant. He testified that he was called on by some of the officials of the plaintiff for information in regard to Fifteen’s exploration operations in the Dominican Republic. In response to 'the request, the defendant went to the office of Mr. Cowan and Mr. Harvin and told them what he knew about the controversy between Fifteen and “some of the other parties to the operation.” It appears that this matter was in litigation. There is no contention that the defendant failed to fully give good faith disclosure of his knowledge of the problem.

Under the record, the defendant’s agreement to act in an advisory capacity cannot be extended so as to prohibit the defendant from engaging in other business enterprises, nor can it be enlarged upon to the extent of qualifying him as an agent for the plaintiff in its business operations after the merger of Fifteen with the plaintiff organization. Certainly, there is nothing in the advisory capacity letter which in any way obligates the defendant to advise the plaintiff of its legal obligations under the Martinez Lease. The defendant did not obligate himself to refrain from reminding the plaintiff of its legal obligation to his father and the other lessors of the Martinez 4000-acre lease. There is no language in the “Plan of Reorganization” or the “Certificate” executed by Fifteen which legally binds the defendant under the representations and warranties contained in the instruments. The representations and warranties in the instruments were those of Fifteen and not the defendant. Bogert on Trusts has vividly drawn the contrast between an ordinary contractual duty, and a fiduciary duty. Bogert says in regard to a situation such as this that:

“ * * * A fiduciary relation is one in which the law demands of one party an unusually high standard of ethical or moral conduct with reference to another. * * * The ethics of ordinary business relations, where parties oppose each other at arm’s length, do not apply to the trust. On account of the intimate nature of the relationship, the great control of the trustee over the property of the beneficiary, the origin of the institution in the court of equity and other reasons, the trustee is expected to show more than ordinary candor, consideration, and probity in his dealings with the beneficiary.” [Emphasis added.] Bogert, Trust and Trustees, § 1, at 3 (1951).

The plaintiff candidly admits that it has been unable to find a precise precedent in the sense of a case construing an agreement identical to the one here in issue. The plaintiff, however, cites, as analogous, such cases as Bradstreet Company v. Gill, 72 Tex. 115, 9 S.W. 753, 2 L.R.A. 405 (1888) ; Barnsdall Oil Company v. Willis, 152 F.2d 824 (5th Cir. 1946); Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786, 120 A.L.R. 720 (1938); and Patterson v. Getz, 166 Or. 245, 111 P.2d 842, 846 (1941). A close reading of these cases convinces us that the facts in each support the rule announced.

However, these cases are readily distinguishable from the present case. The facts in each established a fiduciary relationship which had been breached. There are no facts in the present case which would authorize applying the rule announced in the cases relied upon by the plaintiff. We cannot agree that the defendant’s status was that of an agent, as defined by this Court in the case of Boyd v. Eikenberry, 132 Tex. 408, 122 S.W.2d 1045, 1047 (1939):

“[A]n agent is one who undertakes to transact some business, or to manage some affair for another, by the authority and on account of * * * it.”

The defendant agreed to act in an advisory capacity. The word “advisory” means: “counseling, suggesting, or advising, but not imperative or conclusive.” Black’s Law Dictionary (Fourth Edition). The verb “advise” means: “To give an opinion or counsel, or recommend a plan or course of action.” Black’s,, supra. The Webster’s New International Dictionary (Second Edition, 1961) defines “advisory” as “having or exercising power to advise; pertinent to or containing advice; acting under, or subj ect to, advice. * * * ” and “advise” as “to give advice to; to recommend (a course of action) to; to counsel; warn. * * * To give information or notice to; to apprise; inform. * * *” All of the evidence shows that the defendant acted in accordance with his agreement.

As heretofore stated, the Court of Civil Appeals reversed and remanded the cause to the trial court for trial generally, rather than reversing the judgment of the trial court and rendering judgment for the defendant. Since the defendant filed no application for writ of error, this Court is without jurisdiction to grant him any relief from the judgment of the Court of Civil Appeals. See Vanover v. Henwood, 138 Tex. 348, 150 S.W.2d 785 (1941); Calvert, Some Problems of Supreme Court Review, 21 Tex.Bar Jour. 75. Therefore, we have no alternative but to affirm the judgment of the Court of Civil Appeals. It is so ordered. All costs are adjudged against the plaintiff.

CALVERT, C. J., and GRIFFIN, GREENHILL and POPE, JJ., dissenting.

GRIFFIN, Justice

(dissenting).

Being of the opinion that a fiduciary relationship was established between Cain and Tennessee-Louisiana Oil Company, I cannot agree with the majority opinion, and file this dissent.

All emphasis herein supplied, when not otherwise stated is that of the writer of this opinion.

The Plan of Reorganization entered into between Fifteen Oil Company and Tennessee-Louisiana Oil Company provided in Art. 1.1 that Fifteen agrees to transfer to Company (Tennessee-Louisiana Oil Company) all of its assets and properties save and except Fifteen’s corporate charter, by-laws, stock books and corporate seal and the sum of $5,000.00 in exchange for common stock of Tennessee Gas Transmission Company.

By Art. 4.2 of the Plan of Reorganization, Fifteen covenanted that it would cause Fifteen Oil Company to be liquidated and dissolved as promptly as possible after the closing date of the trade, and that after such dissolution, the company and Tennessee Gas Transmission Company should have all rights to the corporate name.

Cain, as president of Fifteen, warranted and covenanted in the Plan of Reorganization as follows: Art. 3.6, “ * * * Fifteen’s officers and directors do not now know nor do they have any basis for knowledge of, nor do they have any reason to anticipate, any litigation or other event or circumstance capable of producing consequences materially adverse to Fifteen except as provided for in Article 5 hereof.” Art. 5 of the Plan provided that all claims, contingencies and liabilities of Fifteen had been set forth in a schedule attached to the Plan, plus ordinary business operating expenses. The schedule attached showed nothing which would disturb Tennessee-Louisiana’s title to the Martinez Lease.

Art. 3.10 of the Plan stated that all of Fifteen’s leases, producing and non-producing, were in full force and effect and Fifteen had peaceable possession of the lands covered by the leases; that Fifteen was not in default in the performance of any of the terms and conditions of any such lease; [and] that "Fifteen has no reason to anticipate the termination of any such leases.”

Art. 3.11 provides in part: “At closing date, Fifteen shall deliver to Company a certificate executed by its president on its behalf to the effect that to the best of the knowledge and belief of Fifteen’s officers and directors, the oil and gas reserve information set forth in Exhibit H to the Memorandum was true and correct and constituted all of the pertinent information then available having a material bearing upon the oil and gas reserves of Fifteen, and that there is no fact or circumstances which would have a significant adverse effect upon the oil and gas reserves of Fifteen * * * which fact or circumstance has not been made known to, or information forming the basis therefor made available to the proper authorized representative of the Company.”

Art. 7.4 (conditions precedent to closing of trade) provides:

“7.4 None of the representations and warranties contained in Article 3 and the covenants contained in Section 4.1 (a) through (g) and the condition set forth in Section 6.3 of this Agreement shall be incorrect, untrue or breached in any material respect at Closing Date.”

Art. 7.5 (conditions precedent to closing of trade) provides:

“ * * * and the certificate of Fifteen’s president and treasurer that to the best of the knowledge and belief of Fifteen’s officers and directors, the oil and gas reserve information furnished to Company by Fifteen in the form of a Reserve Report as referred to in Section 3.11 hereof, was true and correct, and constituted all of the pertinent information then available having a material bearing upon the oil and gas reserves of Fifteen, and that there is no fact or circumstance which would have a significant adverse effect upon the oil and gas reserves of Fifteen or upon the reserve estimates in such Reserve Report delivered to Company and which fact or circumstance has not been made known to or information forming the basis therefor made available to the proper authorized representatives of Company.”

A brief résumé of the facts will be helpful in determining whether or not Cain occupied a fiduciary relationship to Tennessee with regard to the Martinez Lease as would require Cain’s conduct to be judged by the standards applied by courts of equity.

The Martinez Lease had been owned and operated from 1936 to 1956 by Mikton Oil Company, which was owned by Fifteen stockholders. During this time Cain was a director of Mikton. J. W. Cain, the father of Dixon H. Cain, had owned 25% of the minerals in the Martinez Lease since 1936. In 1957 Dixon H. Cain commenced handling his father’s affairs.

In 1956 Fifteen acquired the assets of Mikton, which included the Martinez Lease. Dixon H. Cain was president of Fifteen from 1956 until the sale of Fifteen to Tennessee in 1960. By the Plan of Reorganization whereby Tennessee purchased Fifteen, including the Martinez Lease and all of Fifteen’s cash assets, Fifteen acting through Dixon H. Cain as its president, and other authorized officers, made various representations and warranties to Tennessee. Dixon Cain et al. represented and warranted to Tennessee that they did not know or have any basis for knowledge or any reason to anticipate any litigation or other event or circumstance capable of producing consequences materially adverse to Fifteen; that at the time of closing the trade, all of Fifteen’s leases were in full force and effect; that Fifteen was in peaceful possession of its lands and not in default in performance of any of the terms and conditions of its leases; and that Fifteen had no reason to anticipate the termination of any such leases.

On May 2, 1960, the date the transaction was closed, Dixon H. Cain, as president of Fifteen, joined by Fifteen’s corporate secretary, executed a certificate in which it was stated “there is no fact or circumstance which would have a significant adverse effect upon the oil and gas reserves of Fifteen * * * and which fact or circumstance has not been made known to or information forming the basis thereof made available to the proper authorized representative of Company.” This was in keeping with Art. 3.11 as above set out.

Under the plan of reorganization Tennessee was not employing Dixon H. Cain and two other officers of Fifteen. Although Tennessee was entitled to all the cash assets of Fifteen, under the plan of reorganization, it made an agreement as to payment by Fifteen of one and one-half years’ severance pay to Dixon H. Cain and two other officers of Fifteen. Tennessee consented to this payment by Fifteen of severance pay “immediately prior to the effectuation of the exchange” from the cash of Fifteen on hand at closing date. This consent was as follows:

“In consideration of such severance payments to Messrs. Cain (et al) Fifteen obligates itself to obtain from them, letter agreement directed to Company to be delivered to Company at closing date that they and each of them will be available to Company in a retained advisory capacity for a period of six (6) months from and after the date of the exchange contemplated hereby in order that there will be no abrupt change in management and in order that Company may avail itself of their special knowledge covering the affairs and properties of Fifteen.”

On May 2, 1960, the closing date, Dixon H. Cain signed a letter agreement addressed to Tennessee which referred to the plan of reorganization whereby he acknowledged receipt of payment by Fifteen of an amount equal to one and one-half times his current annual compensation. (Cain’s severance pay was $57,500.00). This letter states that Cain “does hereby agree that he will be available to you (Tennessee) in a retained advisory capacity for a period of six (6) months from and after May 2, 1960, in order that there will be no abrupt change in management and in order that you may avail yourself of his special knowledge concerning the affairs and properties of Fifteen Oil Company.”

Tennessee in this Court contends that this letter agreement and the facts and circumstances surrounding its execution caused a “fiduciary” or “confidential” relation to come into being as between Dixon H. Cain and Tennessee. Under this relation it is claimed Cain’s conduct must be judged by high equitable standards and not by the standards required in dealings between ordinary parties. Kinzbach Tool Co., Inc. v. Corbett-Wallace Corporation, 138 Tex. 565, 160 S.W.2d 509, 514 (1942); Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786 (1938).

“A fiduciary relation, however, is not limited to cases of trustee and cestui que trust, guardian and ward, attorney and client, or other recognized legal relations, but it exists in all cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed. The origin of the confidence is immaterial. It may be moral, social, domestic, or merely personal.” Higgins v. Chicago Title & Trust Co., 312 Ill. 11, 143 N.E. 482 (1924).
“The expression ‘fiduciary relation’ is one of broad meaning, including both technical fiduciary relations and those informal relations which exist whenever one man trusts and relies upon another.” Reeves v. Crum, 97 Okl. 293, 225 P. 177 (1924).
“The term ‘fiduciary’ is derived from the civil law. It is impossible to give a definition of the term that is comprehensive enough to cover all cases. Generally speaking, it applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations.” (Citing many authorities.) Kinzbach Tool Co., Inc. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 512-513 (1942).

See also: 36A C.J.S. 381 et seq.

On October 19, 1960, and within the six-months period embraced in the letter agreement, Dixon H. Cain, purporting to represent his father, J. W. Cain, and twenty other lessors, wrote a letter to Tennessee in which he said, among other things:

“During the past ten years, you and your predecessors have not, to my knowledge, conducted any drilling operations, either exploratory or developmental, upon this property. * * * ”

It will be remembered that the predecessors in title to the Martinez Lease were Dixon H. Cain’s companies up to May 2, 1960, when Tennessee acquired title to the Martinez Lease in reliance upon Cain’s representations and warranties contained in the plan of reorganization and also in the certificate signed by Cain May 2, 1960, and which were inducements to Tennessee to complete the purchase of Fifteen. Also, Cain had represented and warranted that Fifteen held peaceful possession of the leases and mineral interest sold to Tennessee and that he knew of no reason or claim that would affect the title to the properties conveyed. In order to get the $57,500.00 severance pay, Cain had signed the letter agreement whereby Tennessee retained Cain in an advisory capacity for six months in order to avail itself of his special knowledge of the properties of Fifteen.

Cain says that this letter was written only in behalf of his father, J. W. Cain, but in this letter calling on Tennessee to drill to 15,000 feet or surrender the Martinez Lease, he says: “This letter is written on behalf of the lessors as a demand for development or reassignment of the lease as provided by its own terms and cannot be otherwise construed.” Cain chose the language of the letter and cannot avoid it. Cain also sent copies of his letter to the twenty other lessors owning mineral interests in the Martinez Lease. Cain testified that when he sent this letter and the copies he was aware that he was taking a position against the interests of Tennessee.

In Louisiana the law requires a lessee of minerals to continue with development of a lease, or release the undeveloped part.

As a result of this letter, Tennessee lost all of the interest in the Martinez Lease purchased from Fifteen except 40 acres surrounding each producing well. Until Cain wrote his letter, none of the lessors or mineral interest owners in the Martinez tract had made any complaint or demand on Tennessee.

Within six months after the letter was written and Tennessee had released the Martinez Lease, Cain became the owner of the J. W. Cain interest and had sold minerals in excess of $40,000.00.

A recitation of Cain’s conduct after he had agreed in return for the $57,500.00 to be available in an advisory capacity and to hold his special knowledge of Fifteen’s leases available to Tennessee, demonstrates that such conduct was in direct violation of his agreement and of the duty he owed to Tennessee, and did not constitute a compliance with the duty he owed to Tennessee for fair dealing and good faith toward Tennessee and which the law required of him.

The meaning and effect of this letter agreement and of Dixon H. Cain’s subsequent conduct is to be decided as a matter of law. However, the trial court submitted the following Special Issue No. One:

“Do you find from a preponderance of the evidence that by virtue of the Flan of Reorganization of Fifteen Oil Company and the Letter Agreement of May 2, 1960, between Dixon Cain and Tennessee Louisiana Oil Company, Dixon Cain agreed to act for Tennessee Louisiana Oil Company to the extent of remaining available in a retained advisory capacity for a period of six months from and after May 2, 1960, in order that there would be no abrupt change in management and in order that Tennessee might avail itself of his special knowledge concerning the affairs -and properties of Fifteen Oil Company ?”

The jury answered this issue, “We do.” Under the facts of this case an affirmative answer was established as a matter of law. The jury answered this issue in the only way it could have answered. Dixon H. Cain has contended throughout this litigation that the trial court erred in submitting this issue, because it submitted a question of law.

Having held that Dixon H. Cain, as a matter of law, occupied a relation to Tennessee which prevented him from acting adversely to Tennessee’s interest with regard to the Martinez and other leases, Special Issue No. One, and the jury’s answer thereto became immaterial. Ramm v. Ramm, Tex.Civ.App., 1956, 294 S.W.2d 174, writ refused, n. r. e.; American Mutual Liability Ins. Co. v. Parker, 144 Tex. 453, 191 S.W. 2d 844, 848 (1946); American Casualty & Life Co. v. Mason, Tex.Civ.App., 1951, 244 S.W.2d 691, writ refused, n. r. e.

I next come to Cain’s contention that Tennessee should have no recovery against him because Tennessee has not been damaged in that (1) it did not pay the $5/,-500.00 severance pay, but same was paid by Fifteen; (2) that Tennessee’s loss of the Martinez Lease was the result of the Louisiana law and Tennessee’s decision not to further develop the lease, therefore, Cain was guilty of no wrong in writing the letter of October 19, 1960; (3) that Cain only agreed to be available to Tennessee for its consultation with regard to Fifteen’s properties, and Tennessee never called on Cain for information regarding the Martinez Lease; (4) that Tennessee should not have restitution of the $57,500.00, because to do so would unjustly enrich Tennessee; (5) that Tennessee could not recover any damages for loss of the Martinez Lease because it was lost as a matter of law and Cain’s letter was not the cause of Tennessee’s loss; and (6) Cain contends that there was animosity between him and Tennessee and they dealt at arm’s length, therefore, he owed no duty to Tennessee.

In answer to (1) above, it is true that Tennessee permitted Fifteen to pay out of its cash this sum to Cain and the purchase price paid was reduced by a like amount, but it is also true that Fifteen had contracted to deliver all of its cash except $5,000.00 to Tennessee, and it was necessary for Tennessee to consent to the use of the $57,500.00 by Fifteen in paying the severance payment to Cain. Cain recognized this when he, as president of Fifteen, signed the plan of reorganization and again when he signed and delivered the letter agreement of May 2, 1960, as a condition precedent to being paid the $57,500.00. He cannot now be heard to contest Tennessee’s right to secure damages or restitution for Cain’s violation of the letter agreement. See also statutes and authorities set out in the first part of this opinion regarding corporate mergers etc.

As to the restitution and damages features of this cause — (4) and (5) — Tennessee had sued for either restitution or damages. In answer to an issue inquiring of the jury “what sum of money would reasonably compensate Tennessee-Louisiana Oil Company for the damages which resulted from” Cain’s action adverse to Tennessee during the six months Cain had agreed to serve in a retained advisory capacity, the jury found $60,000.00. In its motion for judgment, Tennessee remitted $2500.00 of this amount and asked for judgment for $57,500.00 damages, which was granted by the trial court.

“It is worthy of notice that a tort may involve acts which also constitute a breach of contract, and that the same facts will sustain either an action ex delicto or ex contractu, so that an action ex delicto will lie, notwithstanding the act complained of would also be ground for an action ex contractu. Under this rule, it has been held that accompanying every contract there is a common-law duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to he done, and the negligent failure to observe any of these conditions is a tort, as well as a breach of contract. Under such circumstances, the general rule is that the plaintiff may elect which to pursue.” 52 Am Jur. § 27.
“The word ‘restitution’ was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification or reparation for benefits derived from, or for loss or injury caused to another.” 46 Am.Jur. § 99.

The court in Kinzbach Tool Co., Inc. v. Corbett-Wallace Corporation, 138 Tex. 565, 160 S.W.2d 509, 514 (1942) provides an answer to Cain’s contention that Tennessee should not recover because it suffered no loss, when the court said:

“It is beside the point for either Turner or Corbett to say that Kinz-bach suffered no damages because it received full value for what it has paid and agreed to pay. A fiduciary cannot say to the one to whom he bears such relationship: You have sustained no. loss by my misconduct in receiving a commission from a party opposite to you, and therefore you are without remedy. It would be a dangerous precedent for us to say that unless some affirmative loss can be shown, the person who has violated his fiduciary relationship with another may hold on to any secret gain or benefit he may have thereby acquired. * * * ”

Contention (2) above is answered by the fact that prior to Cain’s letter no lessor of the Martinez Lease had made any complaint as to Tennessee’s title not being valid, nor was seeking a forfeiture of the lease. Tennessee had owned this lease a little over five months, but Cain had known all the details for more than fifteen years. In addition, he had represented to Tennessee that its title to Martinez was good. Having agreed to serve as advisor to Tennessee, Cain cannot be heard to say there was no wrong in putting in motion a chain of circumstances resulting in Tennessee’s loss of the Martinez Lease.

Contention (3) is answered by the fact that Cain having written the letter seeking cancellation, it logically follows he could not thereafter be a faithful or trusted ad-visor of Tennessee so as to protect Tennessee’s interest in this lease.

(6) As to dealing at arm’s length with Tennessee, the record will support a finding that the sale negotiations were carried on at arm’s length, but having arrived at a result leading to the. consummation of the sale, and Cain having accepted Tennessee’s terms under which the |57,500.00 was paid to him, he was not dealing at arm's length as to the retained advisory capacity. He had superior knowledge of Fifteen’s properties sold to Tennessee, and with regard to these properties he owed Tennessee the duty to take no action adverse to its interests.

“When persons enter into fiduciary relations each consents, as a matter of law, to have his conduct towards the other measured by the standards of the finer loyalties exacted by courts of equity. That is a sound rule and should not be whittled down by exceptions. If the existence of strained relations should be suffered to work an exception, then a designing fiduciary could easily bring about such relations to set the stage for a sharp bargain. * * * ” Johnson v. Peckham, 132 Tex. 148, 120 S.W-2d 786 (1938).

“One occupying a fiduciary relationship to another must measure his conduct by high equitable standards, and not by the standards required in dealings between ordinary parties.” (Citing authorities) Kinzbach Tool Co., Inc. v. Corbett-Wallace Corporation, 160 S.W.2d 509. Cain claims there was animosity between him and Tennessee which would prevent any fiduciary or confidential relationship coming into existence. The record fails to show any animosity up to closing of the trade. It shows that after the first attempt to make a trade with Tennessee failed, many of Fifteen’s stockholders were dissatisfied that its officers had not closed a deal with Tennessee and insisted that the negotiations be reopened and a deal closed. It was partly in answer to this demand that further negotiations were begun which resulted in the final merger.

I would reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

CALVERT, C. J., and GREENHILL and POPE, JJ-, join in this dissent.

      . The plaintiff’s consent to the payment of the sum of $57,500.00 as severance pay to the defendant is embodied in Article 15.1 of the Plan of Reorganization, reading as follows:
      “15.1 Mfteen has indicated to Company that it will not be requested to offer employment to Messrs. Dixon H. Cain, John T. Lochridge, and Harry H. Hudson in the event that the exchange contemplated hereby is consummated, and that in the event of such consummation, these gentlemen will resign their respective positions with Fifteen immediately prior to the effectuation of the exchange and will receive ■ from Fifteen as severance pay, one and one-half times their current annual compensation, Tennessee consents to the payment of such severance payments to Messrs. Cain, Lochridge and Hudson from the cash on hand of Fifteen at Closing Date. In consideration of such severance payments to Messrs. Cain, Lochridge and Hudson, Fifteen obligates itself to obtain from them, letter of agreement directed to Company to be delivered to Company at Closing Date that they and each of them, will be available to Company in a retained advisory capacity for a period of six (6) months from and after the date of the exchange contemplated hereby in order that there will be no abrupt change in management and in order that Company may avail itself of their special knowledge concerning the affairs and properties of Fifteen.”
      The severance pay was authorized by the Board of Directors of Fifteen Oil Company, and actually paid by Fifteen. The plaintiff paid $57,500.00 less for the properties of Fifteen.

      . Phillips was a joint lessee of the Martinez Lease.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Ex parte Charlie A. FANT.
    No. 39154.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.
    Rehearing Denied March 30, 1966.
    Robert B. Billings, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ben F. Ellis and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order issued in a habeas corpus proceeding remanding the appellant to custody for extradition to the state of Oklahoma.

The sufficiency of the governor’s warrant was challenged when it was offered in evidence on the ground that the requisition upon which it was based was not executed by the governor of Oklahoma, the demanding state.

The executive warrant issued by the governor of Texas, which appears regular on its face, was introduced in evidence. It made out a prima facie case authorizing the remand of appellant to custody for extradition. Foskett v. State, Tex.Cr.App., 390 S.W.2d 273. From this point, the burden was upon appellant to overcome the prima facie proof of the existence of every fact which the Texas governor was obliged to determine before issuing the extradition warrant.

Therefore the burden of proof was upon the appellant to show that L. V. Went, the name of the person signing the requisition as governor, was without authority to sign the requisition as governor of Oklahoma. Fuqua v. State, 162 Tex.Cr.R. 126, 283 S.W. 2d 50.

It is insisted that the “preliminary information” appearing in the requisition and so referred to in the Texas governor’s warrant did not meet the statutory requirements that the issuance of said warrant could be based upon an information supported by affidavit from the demanding state.

There appear above two horizontal lines at the top of a printed form the words “preliminary information.” These words do not appear in the body of the instrument which alleges affirmatively and with certainty the commission of the crime relied on for extradition.

The designation of an accusatory pleading as a “preliminary information” is but a title or means of identity and such designation alone does not per se invalidate an otherwise legal and valid information. No error is here presented.

The affidavit in support of the information relied on is not required to be executed before a magistrate, as the appellant contends. Art. 1008a, Sec. 3, Vernon’s Ann. C.C.P.; Ex Parte Peairs, 162 Tex.Cr. R. 243, 283 S.W.2d 755.

The other contentions presented have been considered, and do not reveal error.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Roy Charles KIZER, Appellant, v. The STATE of Texas, Appellee.
    No. 39089.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1966.
    Rehearing Denied March 30, 1966.

      J. Harlan Fleming, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Grady Hight and R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for burglary of a private residence at night with two prior convictions alleged for enhancement; the punishment, life.

Sam Lawson testified that on July 23, 1965, he, his wife and daughter resided in a furnished house at 5200 Vicki Street in Fort Worth which they were then and had been using and occupying for eleven years as their private residence. He further testified that he was an insurance adjuster; that as a result of a severe hail storm in Wichita, Kansas he was engaged there in his business for a short time, so he and his family went there about June 20, 1965, and lived there temporarily about two months, except for one trip home, and then returned to their residence in August, which was the only time they were away from home that year; that a daughter, Mrs. Carl Franklin, living near their residence had a key and kept close observation of it by her visits two or three times weekly and also stayed there on several weekends; that they closed and locked the house on going to Kansas but left the utilities connected and in service; that they did not give anyone their consent to break and enter the house and remove any'property therefrom.

Melvin A. McBee testified that on July 23, 1965, he lived directly across a thirty foot street from Sam Lawson, and there was a street light at the street intersection; that about lip. m., he saw a black Studebaker, with its lights out, stop in front of the Lawson residence, and two men got out and walked along beside the Lawson house and soon returned, both carrying something which they placed in the car and drove away at a fast rate of speed. Immediately, McBee went to the Lawson residence and found a window open and an air conditioner missing, and he notified the police and gave them a description of the automobile, its occupants and the air conditioner.

Shortly after McBee notified the police, Deputy Sheriff Perez, as a result of hearing a police radio dispatch, stopped a black Studebaker occupied by two men and asked the driver if he could search the car. The appellant, identified at the trial by Perez as the driver, consented to the search and opened the trunk of the car. The search of the car revealed an air conditioner, a pillow case, piggy bank, razor, radio, and a coffee can containing cocoa. In searching where the appellant had been standing by the car, Perez found two rings, a bracelet and a necklace. On searching appellant’s person, Detective Shants found a ladies’ Elgin wrist watch in his trousers pocket. The property found in the trunk of the Studebaker, the jewelry found where the appellant stood by the car, and the watch found in appellant’s pocket were identified by Mrs. Carl Franklin, a daughter of Sam Lawson, who lived nearby and immediately came to the scene, as being the property of her father and mother that had been kept in their home at 5200 Vicki.

Proof was offered of the two prior felony convictions for robbery as alleged and of appellant’s identity as being the same person so convicted. This proof was made in accordance with that approved by this court in Broussard v. State, Tex.Cr.App., 363 S.W.2d 143. While testifying in the absence of the jury, the appellant admitted the prior robbery convictions.

The appellant did not testify or offer any evidence before the jury on the trial on the merits which was heard on July 16 and 17, 1965.

Error is urged in the trial court’s refusal of a separate trial on the primary offense on the ground that the proof of the prior convictions alleged for enhancement was calculated to injure his rights before the jury.

This contention has been previously considered and rejected by this court. Crocker v. State, Tex.Cr.App., 385 S.W.2d 392; Ca-puchino v. State, Tex.Cr.App., 389 S.W.2d 296; Beasley v. State, Tex.Cr.App., 389 S.W.2d 299; Matula v. State, Tex.Cr.App., 390 S.W.2d 263; Conley v. State, Tex.Cr. App., 390 S.W.2d 276.

It is contended that the evidence is not sufficient to support the conviction on the ground that Sam Lawson nor any member of his family were occupying the house as a private residence on July 23.

It is not essential that the family or occupant be personally present at the very time the residence is burglarized in order to constitute the offense of burglary of a private residence at night. It is sufficient if it is actually used at the time as a private residence, within the meaning of this article, even though at the time it was burglarized the family was temporarily absent. Handy v. State, 46 Tex.Cr.R. 406, 80 S.W. 526; Warren v. State, 120 Tex.Cr. R. 58, 47 S.W.2d 288.

There are no formal bills of exception. The objections to the court’s charge appearing in the record cannot be considered as there is no showing that they were presented to or acted upon by the trial judge.

The indictment sufficiently alleges the primary offense of burglary of a private residence at night with the intent to commit theft. The charge defines burglary of a house, private residence, nighttime burglary, theft, and requires that the jury find beyond a reasonable doubt, among other things, that the house was "then and there occupied as a private residence by the said Sam Lawson as charged in the First Count of the indictment” before they could find him guilty. No fundamental error appears in the charge, as contended.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


text:
    James C. WHITTINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 39429.
    Court of Criminal Appeals of Texas.
    March 16, 1966.
    No attorney of record on appeal, for appellant.
    Dee D. Miller, Dist. Atty., John W. Broadfoot, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is a conviction for robbery, with the punishment assessed at seven years.

The notice of appeal herein appears only as a docket entry upon the trial court’s docket. It was given on June 29, 1965, but is not shown to have been given in open court and entered in the minutes as required by Art. 827, C.C.P., which was in effect at the time. This is not sufficient to confer jurisdiction upon the court. Oatman v. State, Tex.Cr.App., 383 S.W.2d 586.

The appeal is dismissed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Dearl Ray COTTEN, Appellant, v. The STATE of Texas, Appellee.
    No. 39440.
    Court of Criminal Appeals of Texas.
    March 16, 1966.

      C. O. McMillan, Stephenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 534, Vernon’s Ann.P.C., for contributing to the delinquency of a minor; the punishment, six months in jail and a fine of $500.

The complaint and information charged that appellant and three others, acting together, did unlawfully contribute to the delinquency of a named female under the age of sixteen years by encouraging and causing said female to go into a place where intoxicating liquors were kept, drunk, and used, “said place being an automobile.”

Appellant excepted to the complaint and information, on the ground that it did not appear therefrom that an offense against the law had been committed, and moved to quash the same for the reason that the term, “place” — as used in the statute: Art. 534, supra, does not contemplate a vehicle but rather a fixed and stationary structure.

Such exception-and-motion was by the court overruled, to which appellant duly excepted.

The exception and motion to quash the state’s pleadings should have been sustained.

Art. 534, supra, in defining the term, “delinquency,” provides, among other things, that it means:

“ * * * going into or remaining in any bawdy house, assignation house, disorderly house, or road house, hotel, public dance hall where prostitutes, gamblers or thieves are permitted to enter and ply their trade, going 'into a place where intoxicating liquors or narcotics are kept, drunk, used or sold * *

It is clear that the “place” referred to in the statute means a fixed location where intoxicating liquors are kept, drunk, used, or sold, and does not include a movable object such as an automobile.

2 Bouv.Law Diet., Rawle’s Third Revision, p. 2595 in defining the word, “PLACE,” states:

“The word is associated with objects which are, in their nature, fixed and territorial.”

Under such definition and construction, an automobile, per se, is not a place, within the meaning of the statute and no offense was charged in the complaint and information.

For the reason stated, the judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    Lee Roy COHRON, Appellant, v. The STATE of Texas, Appellee.
    No. 39003.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1966.
    Rehearing Denied March 16, 1966.
    Jones, Fillmore, Robinson & Lambert,by Glynn Purtle, Wichita Falls, for appellant.
    Stanley Kirk, Dist. Atty., Jim Phagan and Thomas F. Keever, Asst. Dist. Attys., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State:
   WOODLEY, Judge.

The offense is burglary of a private residence at night with intent to commit theft; the punishment, 5 years.

The evidence shows that Mrs. Joe Levell was absent from her home between 8 P.M. and midnight; that when she left the doors were all locked, and when she returned a latch was broken, mud had been tracked in her kitchen and other parts of the house and some of her property, including groceries, canned goods and her chest of silverware, were missing.

Mrs. Levell reported the burglary of her home to the Sheriff’s office and Deputy Sheriff Aubrey Bohannon came early in the morning to investigate. He found tracks leading toward a trailer house and called the Sheriff’s office for assistance.

Deputy Sheriff Bill Tigert responded to this call and the two officers went to the trailer house where they found appellant, whose automobile was parked nearby. In the back seat of the car, under some bedding, they found personal property such as Mrs. Levell had reported was missing.

Deputy Bohannon testified that he asked appellant why he did it and he said that he had been drinking.

The testimony as to appellant’s statement in the nature of a confession to Deputy Bohannon was admitted by the court as res gestae.

The court’s ruling in this regard is supported by the opinion of this court in. Sewell v. State, 170 Tex.Cr.R. 550, 342 S.W.2d 579. See also Johnson v. State, 158 Tex.Cr.R. 233, 254 S.W.2d 131; Dempsey v. State, Tex.Cr.App., 387 S.W. 2d 891; Windham v. State, 169 Tex.Cr.R. 448, 335 S.W.2d 221; United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140.

Appellant was then left in custody of Deputy Tigert while Deputy Bohannon went to get Mrs. Levell. She was brought to the car where she saw and identified the property found in appellant’s car as property that was missing from her home.

Over proper objection, Mrs. Levell was permitted to testify that she asked appellant “why he did it and he said he was drunk and he didn’t know what he was doing and he said he begged my pardon.” Over like objection, Deputy Sheriff Tigert testified that in answer to Mrs. Levell’s question as to why he did it, appellant “told her that he was drunk and that his kids in Throckmorton were hungry,” and Deputy Bohannon, over proper objection, testified that in answer to Mrs. Levell’s question appellant “told her that he had been drinking.”

We agree with appellant’s contention that the testimony as to appellant’s oral statement in the nature of a confession to Mrs. Levell was not admissible under the cases above cited.

The evidence shows that appellant had been found in possession of stolen goods and when called upon to explain such possession had, according to the officer’s testimony, orally confessed that he had burglarized the house; and that he had been under arrest and in custody of one or both of the deputy sheriffs for some 10 minutes before Mrs. Levell came to identify the property.

In addition to the error in the admission in evidence of appellant’s oral confession to the owner of the premises while in custody, there was error in the paragraph of the court’s charge applying the law to the facts in that the jury was not required to find that appellant broke and entered the private residence of Mrs. Levell with intent to commit the crime of theft of personal property therein being. This error was due, no doubt, to an inadvertent omission in Paragraph XI of the charge as originally drawn and as revised and read to the jury.

Because of the errors mentioned, the judgment is reversed and the cause remanded.


text:
    James Ralph HALFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 39087.
    Court of Criminal Appeals of Texas.
    March 16, 1966.

      Tom Brookman (On Appeal Only), Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Roland H. Hill, Jr., and Truman Power, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Our prior opinion is withdrawn.

The offense is statutory rape; the punishment, 10 years.

Trial was upon a plea of guilty.

Both appellant and the 14 year old girl, who was not his wife, testified that the act of intercourse occurred, she testifying that it was over her protest, while appellant testified that it was without force.

The court, in his charge, instructed the jury to find appellant guilty and assess his punishment at death or confinement in the penitentiary for life or for some period of years not less than five.

The sole claim for reversal properly before us is predicated upon the refusal of a requested charge which would have instructed the jury:

“In all criminal cases the burden of proof is on the State. You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to the testimony, but you are bound to receive the law from the Court which is herein given you, and be governed thereby.”

Appellant, by his plea of guilty, admitted all of the allegations of the indictment and the evidence raised no defensive issues. On the other hand, the undisputed evidence, including appellant’s testimony and his confession, was that he was guilty.

The only issue for the jury being that of punishment, there was no necessity for a charge such as that requested. The authorities cited by appellant relate to cases where the case was submitted to the jury on a plea of not guilty and are not applicable.

The judgment is affirmed and appellant’s motion for rehearing is overruled.


author: DIXON, Chief Justice.

text:
    John BENSON, Appellant, v. Millie R. BENSON, Appellee.
    No. 16660.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 4, 1966.
    Rehearing Denied March 4, 1966.

      Whitener, Price, Lewis & Steinberg, and Richard W. Luerssen, Dallas, for appellant.
    Henry Wade, Dist. Atty., and Theo Be-dard, Asst. Dist. Atty., Dallas, for appellee.
   DIXON, Chief Justice.

This action was initiated in the State of California by appellee Millie R. Bennison, also known as Millie R. Benson, pursuant to the provisions of the Uniform Reciprocal Enforcement of Support Act, Art. 2328b-l, Vernon’s Ann.Civ. Statutes, against appellant John Bennison, also known as John Benson, to obtain an order for support of the minor child of appellant and appellee. Appellant, a resident of Dallas County, was ordered by the Juvenile Court of Dallas County, Texas to pay $48.00 per month as child support.

This is the second appeal in the case. For the opinion of the Eastland Court of Civil Appeals in the first appeal see Benson v. Benson, 368 S.W.2d 125.

Appellant in this appeal presents three points in which he alleges that (1) under Texas law the duty of child support can only be established and awarded in connection with a suit for divorce, which there never was in this case; (2) no duty of support exists when there is not a lawful marriage, which fact was adjudicated by the judgment of annulment in this case; and (3) there was never a valid, judicial order entered in California, since at no time did the California court have jurisdiction over appellant.

The above points are the very same points presented by appellant in the first appeal and they were all overruled for reasons stated in the opinion. We overrule them in this appeal for the same reasons.

In the former appeal the appellant’s fourth point was sustained on the ground that appellee has failed to discharge her burden of proof. It was the only reason for reversing the judgment. Neither appellant nor appellee had offered any evidence at the trial. Under the circumstances it was certainly proper to sustain appellant’s fourth point and to remand the case for trial on the merits. In the present appeal appellant does not present a fourth point, but we shall briefly take note that appellee has now met the requirements as to evidence laid down in the first appeal.

Appellant did not testify. Appel-lee did testify. Among other matters she stated that the parties were married in Tijuana, Mexico on March 4, 1957; that their child was born thereafter; that she did not know that John Bennison was still married to his first wife; that following their supposed marriage she and appellant lived together for several months in the home of her parents and several months in the home of his parents; their marriage was annulled on or about April 28, 1960, more than two years after the birth of their child; and that appellant had never paid any child support. Her testimony was substantiated by certified copies of several documents, including the certificate of marriage, the annulment decree, the order of the California court pursuant to the Reciprocal Support Act and numerous letters from appellant acknowledging the child as his and declaring his love for the child and her mother, appellee herein.

Appellant’s three points on appeal are overruled.

The judgment of the trial court is

Affirmed.


author: WILSON, Justice.

text:
    H. Volmer NIEMANN, Appellant, v. W. B. THOMAS et ux., Appellees.
    No. 4456.
    Court of Civil Appeals of Texas. Waco.
    Feb. 22, 1966.
    Bobbitt & Kraft, Ira P. & Elliott W. Jones, Houston, for appellant.
    Fred W. Moore, Thomas O. McWhorter, Houston, for appellees.
   WILSON, Justice.

Cross-plaintiff appeals from an order dismissing his cross-action which alleged damages for libel in cross-defendants’ suit seeking damages for breach of contract. We dismiss the appeal.

The cross-action asserted that appellees’ petition in this suit contained allegations of a libelous nature which were immaterial, irrelevant and foreign to the cause of action pleaded against appellant. The dismissal of the cross-action resulted from the sustaining of special exceptions claiming the allegations in the pleading were absolutely privileged and no action existed. There was no order of severance. The record shows no disposition of appellees’ suit.

The order dismissing appellant’s cross-action is interlocutory and is not appeal-able. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 ; 3 Tex.Jur.2d, Appeal & Error, Secs. 92-94. The appeal is dismissed.


author: WALTER, Justice.

text:
    Steve C. TWARDOWSKI et ux., Appellants, v. UNITED STATES FINANCE COMPANY, Inc., Appellee.
    No. 4007.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 12, 1965.

      Bell, Gwin & Furse, Bay City, Daniel E. Hayes, Bay City, for appellants.
    Bean & Manning, Houston, Jack B. Manning, Houston, for appellee.
   WALTER, Justice.

United States Finance Company filed suit in Harris County against Steve C. Twardowski and wife on a promissory note, the important provisions are as follows:

“FOR VALUE RECEIVED, the Undersigned, (who, if two or more in number, shall be jointly and severally bound) promise(s) to pay to the order of Beautyguard Alum. Mfg. Co. Div: J. H. Penny Co., Inc. 4202 Richmond Ave. Houston, Tex. the sum of Three Thousand Four Hundred and Fifty Dollars & Sixty Cents 3,450.60 DOLLARS,—
Whenever the payment of any installment hereunder is more than ten (10) days in arrears, the Undersigned (jointly and severally) also promise(s) to pay to the holder hereof, at the place indicated above, on or before the next successive payment date, an amount computed at the rate of FIVE CENTS for each dollar of the installment so in arrears, as. a late charge, and the Undersigned agree(s) that any and all of such payments for late charges shall be the liquidated damages for any such arrears in payment, but such payments for late charges shall not exceed, in respect to any such late payment, the sum of FIVE ($5.00) DOLLARS.”

Defendants filed pleas of privilege to be sued in Matagorda County, the county of their residence. Plaintiff filed a controverting plea and alleged that Twardowskis signed a note expressly naming 4202 Richmond Avenue, Houston, Texas, as the place of payment. It contended that an exception to exclusive venue in the county of one’s residence existed by virtue of Subdivision 5 of Article 1995, Vernon’s Ann. Civ.St. The court overruled defendants’ pleas of privilege and they have appealed.

They contend the court erred in overruling their pleas of privilege because the note sued upon contains no agreement to pay at any certain place; that the penalty provisions which did require performance at a specific place was divisible or sever-able from the principal agreement of the note and cannot form the basis of venue under said subdivision 5, and because the penalty provision, whether severable or not, was not pleaded by appellee and therefore cannot be the basis of venue under said subdivision 5.

We find the rule of venue stated by our Supreme Court in Goodrich v. Superior Oil Company, 150 Tex. 159, 237 S.W.2d 969, 972, as follows: “The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear.”

A careful study of appellee’s petition reveals that it did not file suit on what the appellants refer to as the “penalty provision” and the appellee refers to as the “late payments” provision, nor ask for a judgment based thereon. The appellee does not contend that the address following the name of the payor designates a place of payment.

In Shelton v. Poynor, Tex.Civ.App., 326 S.W.2d 583 (Writ Dismissed), the Court said: “ * * * Subdivision 5 of this article deals with written contracts which ordinarily are determined by the principal right asserted in the petition and the nature of the relief sought, and the character of the suit will be determined from the petition. Traweek v. Ake, Tex.Civ.App., 280 S.W.2d 297; Allison v. Yarborough, Tex.Civ.App., 228 S.W.2d 930.”

Venue as to a cause of action on the principal and interest is established by the provisions of the note relative thereto. Having severed the “late payments” provision, by failing to file suit thereon, the appellee has waived the only provision that could possibly be construed as designating the place of payment.

We hold that the appellee did not discharge its burden of alleging and proving that there existed an exception to the right of a citizen to be sued in the county of his residence.

Therefore, the judgment is reversed and the case is ordered transferred to Matagorda County.


author: McDONALD, Chief Justice.

text:
    H. C. HENRY, Appellant, v. Gilbert McCONNELL, Jr., et al., Appellees.
    No. 4464.
    Court of Civil Appeals of Texas. Waco.
    Feb. 17, 1966.
    Witts & Ewing, Blair Rugh, Dallas, for appellant.

      Griffith & Lumpkins, Waxahachie, for appellees.
   McDONALD, Chief Justice.

This is an appeal by plaintiff Henry from an adverse judgment in a suit on a contract.

Plaintiff Henry sued defendants McConnell on a license contract which provided that defendants have exclusive right to manufacture and sell Henry Power Saws as patented by plaintiff, and defendants agreed to pay plaintiff certain minimum royalty payments. Plaintiff alleged that defendants failed and refused to make minimum royalty payments. Defendants answered that plaintiff fraudulently represented that he was owner of patents on all 5 models of the saw; and want of consideration since the saws covered by the license agreement were worthless without patents. Defendants prayed for cancellation of the contract, and by cross action sought judgment against plaintiff for expenses reasonably incurred because of the contract.

Trial was to a jury which found:

1) 2) Plaintiff falsely represented that he had patents on all models of the power saw to be manufactured by defendants.
3) 4) That defendants believed and relied on such representation and would not have entered the contract but for such.
5) Defendants did not receive anything of value by virtue of the contract between the parties.
6) Defendants reasonably expended $3880 in preparation for the manufacturing and sale of the saws.

The trial court entered judgment on the verdict that plaintiff take nothing against defendants; and that defendants have judgment against plaintiff for $3880 on their cross action.

Plaintiff appeals, contending the trial court erred in rendering the take-nothing judgment against him because:

1) The representations made by plaintiff were matters of opinion believed by plaintiff, and cannot constitute ground of fraud.
2) The representations made by plaintiff were opinions of law believed by plaintiff, and cannot constitute ground of fraud.

The record reflects that plaintiff Henry invented some 5 power saws which he called the Henry Power Saws. He attempted to obtain patents on them but only obtained a patent on the model 4850 saw. No patents were obtained on the Model 20, 40, 50 or 500 saw.

Plaintiff represented to defendants he had patents on all models and entered into a contract with defendants whereby they had exclusive right to manufacture and sell the saws; and were to pay plaintiff certain minimum royalty payments. The model 4850 was the only saw plaintiff had a patent on, and this was an obsolete model. Defendants expended certain moneys getting ready to manufacture the saws, and then learned that plaintiff had no patents on the Models 20, 40, 50 and 500 saws. Defendants wrote plaintiff rescinding the contract. No saws were manufactured or sold by defendants. Plaintiff thereafter instituted this suit for the minimum royalty payments provided in the contract. The jury found the contract was induced by fraud, and further that there was a total lack of consideration for the contract, in that defendants received nothing of value by the contract (since it was valueless unless plaintiff had patents on the items to be manufactured).

Plaintiff has made no assignment of error as to the jury’s finding that there was total lack of consideration for the contract, and is thus bound by such finding. Rule 374 Texas Rules of Civil Procedure; 3 Tex.Jur.2d 461.

If fraud be eliminated from the case, defendants are entitled to judgment under the facts upon the uncontradicted finding of failure of consideration. Wise & Smoot v. King, CCA (n. w. h.) 161 S.W. 2d 295; Food Machinery Corp v. Moon, CCA (n. w. h.), 165 S.W.2d 773; Radford v. Snyder Nat. Farm Loan Ass’n., CCA (n. w. h.), 121 S.W.2d 478; Rushing v. Spreen, CCA, Writ Ref., 142 S.W. 49.

We think further that fraud in the inducement as here, is a good defense to a suit for payments on a patent licensing agreement. See: Penn v. Garabed Gulbenkian, Tex.Civ.App., 243 S.W.2d 220, Affmd., 151 Tex. 412, 252 S.W.2d 929; Buchanan v. Burnett, 102 Tex. 492, 119 S.W. 1141; Schonrock v. Taylor, CCA, Wr. Ref., 212 S.W.2d 260; see also 10 Tex.Jur. 2d p. 369.

All plaintiff’s points and contentions are overruled.

Affirmed.