author: WALKER, J.

text:
    SCHLESINGER et al. v. KENNERLY et al.
    No. 2098.
    Court of Civil Appeals of Texas. Beaumont.
    July 3, 1931.
    Rehearing Denied Sept. 2, 1931.
    Robert L. Sonfield, of Houston, for plaintiffs in error.
    Williams, Dee, Hill, Sears & Kennerly, of Houston, for defendant in error Kennerly.
    King, Wood & Morrow, of Houston, for defendants in error Marine Bank & Trust Co. and Fidelity & Deposit Co. of Maryland.
   WALKER, J.

This is an appeal by writ of error, but the parties will Be referred to as appellants and appellees. The appeal was taken to the Galveston Court of Civil Appeals, but transferred by the Supreme Court to the docket of this court. Appellee Pies B. Kennerly instituted this suit on- March 5, 1928, against H. B. Schlesinger, J. H. Rafferty, E, J. Jarrard, J. R. Plumb, and the partnership of Jarrard & Plumb, and many other defendants, on the theory that the defendants were partners doing business under the partnership name of University Ice Cream Company, and that he was employed by the partnership as general manager. His suit was for unpaid salary in the'sum of $1,198.66, for money advanced by him to the partnership $814.62, and for judgment that the partnership b.e adjudged primarily liable and he secondarily liable upon a certain note for $1,000 executed by him for the partnership, and a bank overdraft of $21.-99 made by him in managing the business of the partnership, the note and the overdraft being fully described in the petition, and further for title and possession of a certain dwelling house built by him upon the property ■of the alleged partnership. Aiter appellee filed his suit, Marine Bank & Trust Company instituted a suit upon the $1,000 note and overdraft, against University Ice Cream Company, as a corporation, and appellee Pies B. Kennerly. On the 16th day of November, 1928, these suits were consolidated. After-wards Fidelity & Deposit Company of Maryland was made a party to the suit on allegations that it owned the note. By proper pleas filed by appellants, all allegations of the plaintiffs’ pleadings were put in issue. Upon trial to a jury a peremptory instruction was given in favor of all the defendants except Schlesinger, Rafferty, Jarrard, and Plumb, and no complaint is before us against that instruction. As to the four defendants named, the jury found that they were partners, doing business under the firm name of University lee Cream Company, and that one D. VV. (Denton) Cooley had general authority to act for the partnership in handling and managing its business. It was further found that Cooley, within the scope of his authority, employed appellee as manager of University Ice Cream Company at a salary of $200 per month, and that this contract was directly authorized by appellants Schlesinger and Rafferty; that the partnership was due ap-pellee $1,183.50 on his salary account; that Cooley, within the scope of his authority, received for the partnership, from appellee Pies B. Kennerly, and receipted therefor, the sum of $700, and that this act was directly authorized by appellants Schlesinger and Rafferty; that no part of the $700 was repaid to appel-lee Kennerly. It was further found that ap-pellee Kennerly advanced to the partnership' the sum of $114.62, no part of which was repaid to him. The $700 was paid by Kennerly to Cooley, as agent for the partnership, as earnest money on a proposed sale of the property and business of University Ice Cream Company to appellee Kennerly. The jury found that this sale was not consummated. On the pleadings and evidence judgment was entered in favor of appellee Kennerly against all parties adversely interested for the title and possession of the house sued for, with the right to remove it from the premises of University Ice Cream Company, except as against the administrator of the estate of Cooley, Cooley being sued as one of the defendants, but having died after the institution of the suit, an administration having been sued out upon his estate. Judgment was also entered in favor of appellee Kennerly against University Ice Cream Company and appellants Schlesinger, Rafferty, Jarrard, and Plumb jointly and severally, for all the relief given him by the jury’s verdict, and that the $1,000 note was a primary obligation of the partnership, for which appellee Kennerly was secondarily liable, and that the overdraft was the obligation of the partnership, for which appellee Kennerly was in no way liable. Judgment was also entered in favor of Fidelity & Deposit Company of Maryland against the University Ice Cream Company and Schlesinger, Rafferty, Jarrard, and Plumb, for the amount of its claim against them. Interest on all recoveries was adjudged to run from the 21st day of February, 1930. Appellants are Schlesinger, Rafferty, Jarrard, and Plumb, and appellees are Pies B. Kennerly and Fidelity & Deposit Company of Maryland.

Appellants’ first proposition is that the petition of appellee Pies B. Kennerly does not allege that they were partners. This proposition is overruled. Appellee Kennerly alleged that the defendants were resident citizens, or owned property within the corporate limits of the town of West University Place in Harris county; that they decided to change the status of this municipal corporation so that it could levy a greater tax rate and thereby to-st all certain municipal improvements, which would result in greatly enhancing the value of the property of the defendants within the corporate limits of the town; that to accomplish this purpose it was necessary to have a manufacturing plant established within the corporate limits of the town; for the purpose of organizing and operating the manufacturing plant the several defendahts made independent contributions to the joint fund, which was: delivered to one D. W. Cooley, who took the fund and bought certain property within the corporate limits of the town, taking the title in his name as trustee; that upon this property was erected the plant of the University lee Cream Company, in which the necessary machinery was installed, and further, to quote from appellees’ summary of -the petition:

“It is alleged that prior to November 1, 1926, the town of West University *Place in Harris County, Texas, had the legal status of an incorporated town or village which had not accepted the provisions of Title 28 of the Revised Civil Statutes of Texas, 1925; that it contained less than 600 inhabitants; that it had no manufacturing establishment within its corporate limits; and that therefore it could not legally adopt the provisions of Title 28 and become vested thereby with all the rights, powers and immunities conferred by such law.
“Reference to the statute (Articles 961, et seq.) will disclose that this change of status could only have been accomplished by a town of at least 600 inhabitants, or by a town of whatever population containing one or moré manufacturing establishments within its corporate limits.
“The town of West University Place having less than 600 inhabitants and no manufacturing establishment, it is alleged that these defendants provided the missing requisite by erecting and operating the ice cream factory In question within the corporate lim-. its of the town.
“It is alleged that the town thereby,became legally qualified to adopt, and on November 1, 1926, did adopt, the provisions of said Title 28, the Ordinance of adoption and acceptance containing, among others, a finding that the town of West University Place had theretofore been regularly incorporated as a town or village, etc., and further:
“ ‘And it further appearing affirmatively that there is located within the corporate limits of such corporation a manufacturing establishment, to-wit, an ice cream factory, and that therefore said corporation is entitled to adopt and accept the provisions of Title 28, Revised Civil Statutes of 1925, relating to Cities and Towns. * ⅜ * ’
“With further reference to the nature of the arrangement and agreement between the alleged partners, the petition asserts that they became co-owners and joint operators of the ice cream factory for the purpose stated above; that no income or profits from its operation were expected or desired ; that it was contemplated merely that the establishment be operated, and sold if possible to a purchaser who would keep it in operation;- but at all events that it he kept operating; and that it was contemplated by the agreement, in the event any profits were realized from operations or proceeds derived from a sale, the said co-owners and joint adventurers in the project would have the right to share therein on a pro rata basis.
“The allegations are that the factory was so operated from a time shortly prior to November 1, 1926 until January 11, 192S; and that cessation of operations followed shortly after the town attained a population of GOO. The alleged operations consisted, chiefly, of the manufacture, storage and sale of ice cream, and the storage and sale of ice.
“The plaintiff alleges that he was employed by the alleged partners as manager of said University Ice Cream Company at a salary of $200.00 per month; that he was engaged in the performance of his duties as such manager pursuant to his contract of employment, keeping the plant and business in operation, from March 11,1927 to January 11,1928; that prior to and during the course of such employment the alleged partners were endeavoring to sell him the properties and business; that finally plaintiff entered into negotiations for such purchase but no deal was ever consummated ; that on August 27, 1927, plaintiff paid $700.00 to the alleged partners under an agreement in writing that said amount should be returned to him if for any reason the proposed deal was not consummated; that he made additional cash advances totaling $114.-62 in the course of his operation of the factory and business as manager thereof; and that certain indebtedness, including a $1,000.-00 note and a small overdraft, was incurred by the alleged partners, operating as University Ice Cream Company, in favor of Marine Bank & Trust Company, which note was endorsed by plaintiff.
“It is further alleged that during July, 1927, at his own cost and expense, plaintiff erected a two story dwelling house on the factory site, with the understanding and agreement that it might be removed by him at the termination of his employment and in the event he did not purchase the properties and business of the Company.
“Plaintiff alleges that by reason of the facts detailed, the legal relation of partnership existed between the named defendants; that they were so engaged in the joint enterprise by and through their agents, D. W. Cooley, H. B. Schlesinger and/or J. H. Rafferty ; (these three alleged agents were also defendants and alleged partners, and Schlesinger and Rafferty are plaintiffs in error herein — Cooley died after the suit was filed and before the trial); and that, in each and all of the things done, acts performed, contracts executed and agreements made, by the said Cooley, Schlesinger and/or Rafferty as alleged, the said Cooley, Schlesinger and/or Rafferty were then and there acting for themselves, for each other, and as agents and trustees for the other alleged partners; and that said transactions were within the scope of their general authority as such. Cooley is alleged also to have been President of Marine Bank & Trust Company throughout the course of these events.”

Without a further analysis of the petition, or discussion of the allegations as summarized above, we think the petition clearly alleged a partnership between the defendants and a partnership liability.

Appellants’ main contention is that the evidence was insufficient to raise the issue of partnership against Schlesinger, Rafferty, Jarrard, and Plumb, and the partnership of Jarrard & Plumb. We sustain this contention in so far as it relates to Jarrard and Plumb and the partnership of Jarrard & Plumb. Ap-pellee Kennerly has brought forward in his brief all the testimony relied upon by him to sustain the jury’s finding that Jarrard and Plumb were partners in the University Ice Cream Company. This evidence goes no further than to show that they made a contribution of $2,500 to establish the ice cream company, for the purpose of enabling the town of West University Place to change its status as a municipal corporation and increase its tax rate. As a result of the donation made by Jarrard and Plumb, and the contributions made by the other defendants named in the petition, the ice cream' company was established, the status of the town was changed, the tax rate was increased, and the contemplated municipal improvements were installed. But under all" the testimony brought forward by appellee Kennerly the donation of Jarrard and Plumb was a gift to those who had the proposition in charge. There is not a syllable of testimony in appellees’ brief showing, or tending to show, that Jarrard and Plumb had any interest in the ice cream company or ever claimed any interest therein, or ever exercised or attempted to exercise any control over its management or the disposition of its property. It follows that the judgment against these two defendants personally, and as constituting the partnership of Jarrard & Plumb, must he reversed, and the cause remanded for a new trial.

The following is a brief summary of the facts on the issue of partnership as it relates to Sehlesinger and Rafferty. Appellant Plumb testified: “Our contribution was made with the understanding that some sort of plant would be built, some sort of an industry established, but we didn’t know what it would be. We knew it had to be an operating industry ; at least I suppose we knew it had to be operating. * ⅜ ⅜ As I remember, Mr. Sehlesinger and Mr. Rafferty are the gentlemen with whom we had the agreement with reference to making this contribution. * * * It is very hard for me to remember just what that agreement was without having this information before me, and I say we have nothing in writing, but that was the agreement, that if a manufacturing plant could be built up there, the status of the city would be changed whereby a different levy of taxes could be made and with that levy of taxes, a storm sewer system would be possible in that property. There was no agreement with reference to whether or not the industry should be operated, I am sure of that. It may be possible I testified in my deposition that there was an agreement, you can look at the deposition and see. I presume that it is true that at the time my depositions were taken, I was asked, ‘At the time that contribution of twenty-five hundred dollars was made by you and Mr. Jarrard, was it contemplated that this ice cream plant be erected on the property and operated as a going industry?’ And I presume that I answered, ‘It has been so long it is hard for me'to answer those questions, but we anticipated that they were going to put an industry there of some kind, and it was to be sold so that somebody would operate an industry.’ You have the deposition there before you and I presume that is correct although I don’t remember what I told you at that time, that has been so long ago. * * * At the time Mr. Jarrard and I made that agreement with Mr. Sehlesinger and Raf-ferty to make that contribution there were other parties who were to make contributions also.”

W. S. Graves testified that he represented a certain manufacturing company in installing the machinery in the plant; that .he dealt with Sehlesinger and Cooley in the matter and “after I had showed the plant to Mr. Sehles-inger, he remarked that he thought, ‘we will do well here,’ and that Cooley said he was ‘simply trustee for the others.’ ” Appellee Kennerly testified as follows as to a conversation between him, Rafferty, and Cooley when they were driving out to the ice cream company for the purpose of inspecting it: “On the way out there they had told me that Mr. Cooley was trustee. I was on. the front seat with Mr. Rafferty, and in the general conversation I said, ‘who owns the ice cream factory?’ and he said, ‘A bunch of us fellows,’ he said, ‘Denton (Cooley) and Sehlesinger and me and a bunch of others.’ * ⅜ * They tried to boost it up, Mr. Rafferty told me what a wonderful proposition it was, also Mr. Cooley in the meantime asked Mr. Rafferty, ‘Jack, have you got the keys?’ and he. said, ‘No, I haven’t got them, Sehlesinger has them.’ * ⅜ * Timy wanted me to buy the place and I told them I wouldn’t consider buying it at all. * * ⅜ Both of them insisted on my buying it, assuring me that I would make some money, and I told them, ‘No,’ it was absolutely too far from taw. *. * * Going on back to town, they asked me, ‘What do you think of it? Don’t you think it would be a good thing to buy?’ and I told them no, I -did not. They said, ‘We have got to have that plant run.’ Mr. Rafferty did most of the talking, I was on the front seat with him and he said, ‘Wfe have to run it. What salary would you run it on?’' I said I was making two hundred dollars a month at that time, and I would be willing to operate that plant for two hundred dollars a month. They discussed that and said it did not seem unreasonable.”

Pies Kennerly’s testimony concerning a subsequent conversation between himself, Rafferty, Sehlesinger, and Cooley on March 11, 1927, when the four of them had lunch together at the Auditorium Hotel in Houston, is as follows: “The question came up as t'o just what we wanted to do. I told them I would give them my advice, what I thought. * * ⅜ and finally Mr. Sehlesinger suggested we call it the University Ice Cream Company and they decided to do that, and they asked me if I was interested in buying the place, and I told them ‘No,’ and they told me to go ahead and run it, and Mr. Rafferty reminded me of the conversation on the ride out there and he asked me if I thought two hundred dollars a month would be all right, and I told him ‘Yes,’ and they said ‘All right,’ ¿nd they said that any time in the future I would have an opportunity ■ to buy the plant. The said that my duties would be to go out there and run it as manager oh a salary of two hundred dollars a month. That was O. K.’d by Rafferty, Cooley and Sehlesinger, they discussed it and said: that was all right. I asked them when they wanted me to go to work, and .they said, ‘You are hired right now,’ and I said, ‘All right.’ I told them that we were going to have to have some stuff, some things that were needed, and Mr. Cooley said, ‘All right, you go ahead, and whatever you want to buy, have them phone me, and I will O. K. the order.’ * * * Mr. Cooley remarked during the conversation more than once ‘Of course I have an interest in it, I am trustee for the hoys and I have an interest in it myself.’ * * * They wanted to interest me, and keep me interested in running the place, and eventually sell it to me, and Mr. Schlesinger said, T tell you we have a wonderful proposition out there and we are going to make some money out of the ice cream proposition. You stay with us and you will get along all right and do well,’ or something like that, I don’t remember exactly.”

Mr. Kennerly testified further that he worked at the ice cream company as manager from the 11th day of March, 1927, to the 11th day of January, 1928, and, further, as follows:

“In the operation of the plant, I would have to buy little equipment that we needed, and I did not feel like buying that without consulting them, and I would always advise Mr. Cooley in advance that I was coming down to see him at the bank, because I could not always catch him, and when I would get there to tránsaet those matters with him I would find Mr. Rafferty and Mr. Schlesinger present. If they were not there when I got there, they Would come in shortly afterwards I arrived. * * ⅜ Cooley and Schlesinger and Rafferty gave me authority to buy stuff when I' first went there. * * * Aside from Denton Cooley I had dealings with Mr. Schlesinger and Mr. Rafferty with reference to the actual running of that plant. * * * After I got out there and was running the plant, .everytime I would go to Denton Cooley’s office Mr. Rafferty was there and I would discuss things with him. I discussed the operation of the plant with Rafferty almost as much as I did with Cooley because he was always present when I discussed the running qf it. * * * I went to see Mr. Cooley as Rafferty’s trustee, I understood he was manager for them, and nearly every time I would go to see Cooley they were there. I have told about the instructions I got from Rafferty in a way, but there are a lot of instructions if I could remember all of them. * * * With reference to my going to Schlesinger for instructions with reference to the operation of that plant, sometimes I would go to the bank find the three of them there and we would discuss the proposition and Mr. Schlesinger was out at the plant 'off and on all the time. He came out there to the plant lots of times.”
“I would allow a man who was an owner to come in and check my books. I considered Mr. Schlesinger as an owner, he told me he was part owner of the business, and I considered him as an owner since I made the deal with him. * * * There were other times when I saw Schlesinger, he came out to the place in the latter part of May and he wanted me to agree to buy the place and he told me it was a wonderful thing, and he said that if he had the money he would buy it from the rest of the boys. * » * It is true that I stated on direct examination that Mr. Schlesinger told me that if he had the money he would buy the interest of the other boys. * * * I undoubtedly did think that Schlesinger had that ice cream factory, because he was trying to sell it to me. I dealt with Schlesinger on the basis of him being an owner, and they were trying to sell it to me. * ⅜ * I don’t suppose you would have a bank account and write checks on it and not know whether or not somebody else was checking on it, but I didn’t know what Cooley, Schlesinger or Rafferty did because I was running that business for them and they told me I could write checks and I didn’t make any inquiry about it. On none of these occasions that I was required to make loans to the company, to help out this company by doing a good deed, did I make a request on Schlesinger or Rafferty or the Pemberton Company or any of these numerous people to come down and make a deposit in the bank. I knew at that time, from what they had told me, that these other people were interested in that company, but I did not make any demand on any of them. * * ⅜ I do figure that from my individual dealings with all of these various defendants that I have a claim against them, I knew that they owed me the money. ⅜ * ⅜ It did not seem unusual to me when Mr. Rafferty made the statement that Denton Cooley was the trustee for the whole bunch of the boys.”

He testified that it was along about the latter part of May, 1927, that he began to discuss the details of his proposed purchase of University Ice Cream Company and in that connection had the following conversation with Cooley: “ * * ⅜ When I wont in to see Mr. Cooley on some other matter he approached me on the same subject, and said something about what Schlesinger had told him. I said, ‘Well, I wouldn’t mind considering buying it if you will do like you say, if you will finance me.’ I also suggested to him, ‘Go ahead and have them write up a contract, just what kind of proposition you can offer me, and we may be able to talk trade.’ He said, “All right, I will get Schlesinger to write up that contract.’ That was the latter part of May, and every time I would see Mr. Cooley, when the question would come up thereafter, he would say, “All right, Schlesinger is going to make that up right away.’"

His testimony concerning the conference at 'the bank on August 27, 1927, participated in by bimself, Rafferty, Schlesinger, and Cooley, during which he paid $700 to “D. W. Cooley, Trustee,” upon being urged that “the hoys” were going to “need a little money,” was as follows: “In regard to the circumstances which led up to the giving of this seven hundred dollar cheek on August 27, 1927, were these: Mr. Schlesinger called for me, and I got in touch with him at the hank and he asked me to copie down and I went down to the bank. ■ That was. on a Saturday evening along in the latter part of August, it must have been August 27, you will And that to be on Saturday evening. I went down to the Marine Bank & Trust Company Building, and Mr. Rafferty, Mr. Schlesinger and Mr. Cooley were there in Mr. Cooley’s office, and they asked me if I didn’t want to make a seven hundred dollar payment on the ice cream factory, and I told them I couldn’t do a thing like that, and they said, ‘You are going to buy it aren’t you?’ and I said ‘Well, that depends, I am thinking about it but I haven’t any contract yet.’ Then they said, ‘You want the place, don’t you?’ and I said, ‘That all depends. I can’t afford to pay you seven hundred dollars and after I pay that you may raise the price on me, you may do lots of things. You might decide you didn’t want to sell it, and then I’ve got my seven hundred dollars in it.’ Mr. Cooley said, T will give you a receipt for it,’ and I told him that the receipt would not do any good, and he told me he was going to New York, — first .before I did that, he said, ‘The boys are going to need a little money before Jack and I get back, we are going to New York, and the boys are going to need a little money, and we would like mighty well for you to pay that seven hundred dollars now.’ I said, T couldn’t do that now, Mr. Cooley, you may go to New York and get killed.’ Mr. Rafferty assured me, ‘Well, Pies old boy, you can figure you are dealing with friends when you are dealing with us.’ I don’t remember whether Mr. Schlesinger was sitting down or not, but Cooley and Rafferty and I were sitting down. Mr. Cooley said, ‘You would not mistrust me, would you?’ and I said, ‘No, I have all the confidence in the world in you, but this is just to protect me. You might get out of it,’ and he said, ‘Well if I put on there that if for any reason .the deal is not consummated the seven hundred dollars will be returned- to you, that will satisfy you.’ Well I saw no reason why I should not and he wrote out this receipt just like it is and then he said, ‘Now don’t that look all right, don’t that look like I ain sincere with you?’ and I said; ‘Well, Mr. Cooley, that is all right, you are going to finance the proposition, I guess that is all right,’ and I wrote out the check. The deal was to be finally consummated by a written contract.”

The receipt itself provided as follows:

"Aug. 27, 1927
“Received of P. B. Kennerly $700 cash consideration in sale of West University Ice Cream Co. to P. B. Kennerly, this amount to be returned to said Kennerly if for any reason deal is not consummated.
“O. K. D. W. Cooley D. W. Cooley,
“Trustee.”

Appellee has made the following summary of .the testimony of Mrs. Kennerly:

“Mrs. Pies Kennerly’s testimony was that Schlesinger referred to the plant as ‘our ice cream factory’ more than one time in the different conversations she had with him when he cam'e to the plant, and that on one occasion Schlesinger remarked that he did not want to sell his part of the factory, that business was good, and he felt like ‘the boys’ were making a mistake in wanting to sell; her testimony that an accounting of the operation of the plant was made to Schlesinger and that he came out from time to time to see about it and check up on sales, that he was there every week or two looking at the cash book and checking up, and that Cooley and Schlesinger were the two men that came out to the, plant and gave instructions about running it, coming out there ‘quite often’; her testimony that Sehlesipger came by and asked about the operation of the business because he was interested in it, and T say he was interested in it because’ he. said he was an owner’; her testimony abbut Schlesinger’s concern over a wreck in which the University Ice Cream Company’s delivery truck was involved in June, 1927, and that ‘he came out to see about it,’ ‘was interested in it,’ and ‘took charge of it’; her testimony concerning Schlesinger’s. request in June, 192?, that a financial statement of University Ice Cream Company be made up, and Schlesinger’s explanation at the time, ‘The boys are going to have a meeting the first part of next week and I must have a financial statement to give them’; her testimony as follows:
“ T don’t remember whether or not Mr. Rafferty, or Mr. Schlesinger or Mr. Cooley at any time after June had possession of the books and records of the business. It is true that during all of that time we were working for them as their employees; they were our employers and had the right to the possession of those books and records.’ Her further testimony:
“ ‘It is a fact that during the months of August, September, October and November (1927) Mr. Schlesinger continued to come by weekly and look over our books, because he was still trying to get us to buy the property.’ ”

This testimony raises the issue that the citizens of the town of .West University Place were making contributions for civic improvements ; that the contributions were made and .appropriated by Cooley, Schlesinger, and Raf-ferty; that with these contributions they organized the University Ice Cream Company and purchased for that purpose the real estate described in the petition and built and equipped the plant; that, after the business was organized, and the property bought and the plant built and equipped, these defendants claimed to own a joint interest therein and controlled and operated it jointly and were jointly liable for its debts and jointly entitled to its profits. As we understand this testimony, it was sufficient to raise, as issues of fact for the jury, every essential element of partnership.

Appellants have attacked all the findings of the jury as being without support. We think the evidence quoted sustains the verdict of the jury on all issues submitted to them, and without further discussion of these particular assginments they are overruled.

The court did not commit reversible error in refusing to strike Exhibit A from appel-lees’ petition. Whatever construction should be given rule 19 for the district and county courts of Harris county, regulating the striking of exhibits intended to be used only as evidence, we think Exhibit A was pleaded by appellee as an essential part of his petition and not as mere evidence.

Appellee Kennerly offered in evidence' a carbon copy of the letter written to Mr. Cooley by Mr. Kennerly’s attorneys, suggesting certain terms and 'conditions upon which Mr. Kennerly would be willing to buy the ice cream plant. This letter was objected to upon the ground that it was a carbon copy, immaterial, irrelevant, and so forth. The following statement made by appellees in their brief relieved this letter of all objections urged against it:

“The letter indicates that a carbon copy thereof was addressed to ‘Mr. I-I. B. Schlesinger, Keystone Building, Houston, Texas.’ Bles Kennerly testified positively that the carbon copy of said letter which was introduced in evidence was brought to him by Schlesinger; that the marginal notations made with pencil on said carbon copy were on there at the time Schlesinger delivered such carbon copy to him; that Schlesinger said to Pies Ken-nerly at that time, ‘Mr. Cooley and I have discussed this thing and we have marked on the margin as to our approval and disapproval of the letter’; that thereupon Schlesinger requested that Pies take the copy back to the attorney who wrote the letter; and Pies testified, ‘Mr. Schlesinger did make reference to these marginal notes, he said they had indicated their approval or disapproval by these marks.’
“The marginal notations referred to, which were on the carbon copy of the letter introduced in evidence, are in some instances ‘O. K.’ and in some instances ‘No.’ ”

The court did not err in receiving in ev-‘ idence the orders of the town of West University Place dated the 1st day of November, 1926, adopting the provisions of title 28, R. S. (article 961 et seq.). These orders were admissible as explaining the purpose of the establishment of the ice cream company and that those who made pure donations had received all they contracted for in making the donations.

The court permitted Mrs. Kennerly to testify as to a conversation between her and Jarrard. The testimony was objected to upon the ground that’ it was irrelevant and immaterial. Of course, it was admissible as against Jarrard, and there was no request that it be limited in its effect to the issue between Kennerly and Jarrard. Without such a request its admission did not constitute reversible error as against the other defendants.

The trial court erred in allowing interest on the $700 item only from the 21st day of February, 1930. This item was established by the receipt above copied, dated the 27th day of August, 1927. After negotiations for the sale of the property to Kennerly were broken off, he demanded the repayment of this money on the 20th day of December, 1927, and was therefore entitled to interest from that date.

From what has been said it follows that the judgment of the lower court should be reversed and remanded as to Jarrard and Plumb; that it should be reformed in favor of appellee Kennerly against appellants Schlesinger and Rafferty, by allowing him interest on the $700 from the 20th day of December, 1927, and, as so reformed, affirmed.


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    STEWART et al. v. ORSBURN et al.
    No. 12645.
    Court of Civil Appeals of Texas. Fort Worth.
    July 18, 1931.
    Rehearing Denied Sept. 19, 1931.

      Garnett & Garnett, of Gainesville, and King, Mahaffey, Wheeler & Bryson, of Texarkana, for appellants.
    Adams & Jones, of Gainesville, for appellees,.
   BUCK, J.

This is an appeal from the action of the trial court in denying an injunction. Wirt Stewart and H. B. Howard, partners doing business under the firm name of Pitts-burg Storage Company, sold some Porto Rican sweet potato plants to C. A. Loftis, as alleged, acting for the Gainesville Chamber of Commerce. The chamber of commerce had made arrangements with farmers of Cooke county to sell the potato slips to said farmers and to collect for them from said farmers, 'and Loftis agreed to stand good for such collection. 200,-000 were delivered on or about May 20, 1930, and later, on or about May 24, an additional 160,000 were delivered f. o. b. Pittsburg, and later an increase in said amount was made to the total of 240,000. It is pleaded, and is supported by the evidence, that no names of the purchasers from Loftis or from the chamber of commerce were disclosed to the shippers at the time the order was given, and that the shippers did not know that they were to be distributed and sold to the farmers. On May 29, 1930, C. A. Loftis sent a check to Stewart and Howard, covering the three shipments, or $563.75. Later, it appeared that many of the plants died, and Loftis called E. T. Crozier, located at Port Worth, and asked him to come up to Gainesville and inspect these potato plants which had died and those that were still living. Crozier was engaged in inspection work for the state department of agriculture during the year 1930, and was chief inspector, plant quarantine subdivision. As inspector for the state department of agriculture,, he was authorized to issue certificates to growers of potatoes authorizing them to sell those plants as “State Certified potatoes.” On arriving at Gainesville, he visited the chamber of commerce and met Mr. Eg-bert Thompson, secretary, who showed him a bunch of bad plants. The two visited a farm, and found that in a patch of probably two and one-half- acres practically every plant was dead. After the inspection, Crozier made a trip to Pittsburg for the purpose of making an inspection of potato plants and beds that belonged to Howard and Stewart and also to Mr. Sewell. It was shpwn in the evidence that Howard and Stewart bought from Sewell a number of the plants. The evidence shows •that he did not find anything in the way of disease in the plants. He testified that as a rule he was able to tell whether a sweet potato slip is infected, by observation. That in his opinion none of the slips which were sold from the beds belonging to Messrs. Howard and Stewart or the beds belonging to Mr. Sewell, in May, 1930, were infected with any kind of disease which they were required to be free of at the time they were loaded in the express office at Pittsburg.

It appears that a number of the purchasers of slips brought suit against Howard and Stewart for damages. In the application for injunctive relief, the plaintiffs alleged that R. L. White, on or about February 11, 1931, instituted suit in the justice court of Cooke county against the plaintiffs in this suit, and alleged “that on or about the 26th day of May, 1930, he purchased from the defendants 7,000 sweet potato slips to be shipped from Pitts-burg, Texas, to Gainesville, Texas, for the purpose of being replanted and set out on land belonging to .the plaintiff to produce a sweet potato crop on said land; that the plaintiff especially prepared said land at a great expense for the sweet potato crop in the sum of $25.00, and that he paid for the said, plants $7.00, and $3.50 additional as express charges; that the said sweet potato plants reached Gainesville, Texas, a day or two after shipment, and were set out and planted by the plaintiff upon said plat of ground; that the said potato slips were diseased by dry rot, scale and other infection, and soon there•after died and rotted in the ground; that said plat of land was about one acre and said diseased and infected plants infected plaintiff’s said tract of land to such an extent that it is worthless for any of the purposes for which it was prepared, and that said tract of land has been damaged by reason of the negligent and fraudulent action of the defendants in shipping such diseased and infected plants, and that, said acre of land was damaged in the sum of at least $50.00; that it cannot be used for many years for sweet potatoes or other like plants, and defendants are liable to plaintiff in all the sums mentioned above aggregating $85.50, for which sum and costs of suit this action is brought.” The petition in the justice court is signed by Adams & Jones, at-tomeys for plaintiff. Plaintiffs further alleged that the defendant W. E. Moore, A. I* Orsbum, J. E. Casey, E. W. Johnson, J. D. Warmer, and J. B. Gregory have each instituted a separate suit in the justice court of precinct No. 1, Cooke county, against these plaintiff^, each of said suits being for a sum less than $100, and that other named parties were preparing to file similar suits in the justice court against these plaintiffs. That there was no difference in the allegations by each of said defendants except a difference in the amount paid by each for the purchase of the plants and express charges and the sums incurred for the preparation of the ground as well as the amount of damages alleged to be due by reason of the alleged infection. That all of the suits arose from a common cause, and from the purchase of the plants by C. A. Loftis, acting for the chamber of commerce, as claimed, and that, from the suits filed in the justice court by the defendants herein, there could be no appeal except to the county court. That the law did not require that either the justice of the peace or the judge of the county court should be learned in the law, and that plaintiffs could not have the questions involved passed upon by a district court or by a Court of Civil Appeals, or by the Supreme Court. Therefore, in the suit instituted in the district court, plaintiffs invoked the jurisdiction of the court to avoid having to'defend against a multiplicity of suits and of suffering, other irreparable injury. They alleged that, in the one suit upon which a hearing was had, they had to travel from Pittsburg by automobile and bring seven witnesses, and that the reasonable and ordinary cost for such transportation and the attendance on the trial was $10 a witness. And that, if they had to defend all of these some twenty-five or more suits, the court costs and other expenses would be a great and unwarranted expense against them, and that they would not have an1 opportunity to have ■an appellate court pass upon the questions involved. Therefore they prayed for a temporary restraining order or for a temporary injunction restraining the defendants W. E. Moore, A. L. Orsburn, R. L. White, J. E. Casey, E. W. Johnson, J. D. Warmer, and J. B. Gregory, during the pendency of this suit and until the further orders of this court, from further prosecuting the suits already filed by them and each of them against the plaintiffs, and that Adams & Jones be restrained by said restraining order and injunction from further prosecuting said suits already filed, and from instituting suits on behalf of other defendants who had hot filed suits in the justice court. They further prayed that, if the defendants desired to prosecute their suits or claims further, they be required to file the same in a court having jurisdiction of the total amount, and that defendants be required to join their claims in a single suit and file it in a court having jurisdiction of the aggregate amount. That the defendants herein, except Adams & Jones, bo required and authorized to implead in their alleged causes of action now pending, as well as in all of the other suits which are threatened to be filed and which are predicated on the claims hereinabove referred to and described, and that the plaintiffs be not prejudiced to file in this cause their plea of privilege to be sued in the county of their residence against the said claims of the said defendants.

A temporary restraining order was granted by Judge Boyd, district judge of Cooke county, but on a hearing said order was set aside and the prayer for injunction Was denied. From this judgment the plaintiffs have appealed.

Opinion.

From the testimony adduced on the trial there is sufficient evidence to sustain the conclusion that the slips shipped by the Pitts-burg Storage Company, and owned by Wirt Stewart and H. B. Howard, were not infected, and that any infection of said plants arose after the planting in Cooke county. A number of witnesses testified for the plaintiffs in this suit, some of whom were experienced in the raising and planting of sweet potatoes, and practically all of them testified favorably to the plaintiffs.

The assignments ’ of error urged by appellants set out that ten of the defendants have filed separate suits in the justice court, and that the other fifteen defendants were threatening to file separate and similar suits in the said justice court, the only difference in any of the said suits filed and threatened to be filed being in the amount of damages claimed by each of said defendants; and that all of the defendants in the suits which have been filed, as well as those which are threatened to be filed, were represented by the same law firm, and that the suits filed and those threatened to be filed all arose from a common source and are governed by the same legal rules, and that each of said defendants on the trial of his case in the justice court, in order to establish the alleged liability, would be compelled to offer, not only similar but the identical evidence offered by other defendants, and that each of said defendants, in order to establish the amount of damage claimed by him, would offer similar proof as that of ©aeh of the other defendants; and that the plaintiffs, in order to establish a valid defense, which they have, to each of said suits would offer identically the same evidence in each of these cases; and that it being further shown that each of the said ten suits already filed in the justice court, as well as the fifteen threatened to be filed, are each for an amount less than $100, aind that therefore no appeal could be taken from any judgment in the justice court to a court higher than the county count.

In the testimony'offered by plaintiffs below in the district court, it was shown by the evidence of John W. Culp, the county attorney of Cooke county, that a reasonable attorney’s fee to the justice court in each of these cases would be $25. Plaintiffs also offered the testimony of George Pilgrim, an experienced sweet potato grower of Camp county, that he purchased some sweet potato plants from Howard and Stewart during the year 1930, and bought 65,000 of them at one time. That from his experience he could tell when a plant was diseased. That none of the plants he bought from them were diseased, and that he did not find any infection in his crop after planting it. Other witnesses testified to the same effect.

The sole question to be decided by this court is, Should the equity powers of the district court have been invoked to prevent a multiplicity of suits under the facts of this ease, and have compelled the appellees to have combined their claims in a single action. Pomeroy on Equity Jurisprudence (4th Ed.) vol. I, § 243, says: “All these possible conditions (under which suits are allowed) may be reduced to four following classes: ⅜ * * Class 3. Where a number of persons have separate and individual claims and rights of action against the same party (a) but all arise from some common cause, are governed by the same legal rule and involve similar facts and the whole matter might be settled in a single suit brought by all these persons uniting as co-plaintiffs or one of the persons suing on behalf of the others; or even by one person suing for himself alone.”

In G., H. & S. A. Ry. Co. v. Dowe, 70 Tex. 5, 7 S. W. 368, 370, Judge Gaines, speaking for the Supreme Court of Texas, said:

“If it be said that a court of equity will only act after a decision favorable to the complainant in a court of law in which the judges are required to be lawyers, we can see the reason of it. But we do not think this rule should be applied to judgments of the county and justice courts under our system, when the amount in controversy is not such as to permit appeals to ‘the appellate court.’ The officers who preside in these tribunals are not required to be learned in the law. Their judgments, not appealed from, are conclusive' between the parties as to the subject-matter of the particular suit in which they are rendered; but they cannot be held to affect in any manner any general right. Had it appeared from the plaintiff’s petition that one of the suits against it had been brought in the district court, and had there been decided against it, or that from a judgment in the county court it had appealed to the court of appeals, and that court had affirmed the judgment upon the merits, then the presumption would have been great that it had no just defense to the, other actions. * * * But no such presumption arises from a judgment of the justice or county court in this state, when by reason of the amount in controversy there can be no appeal. * * *
“The rule is, that if in the tribunal, which has jurisdiction of (the demands, there can be a consolidation, then it is the duty of the party to resort to this remedy, and equity will not interfere. In such a case 'there is an adequate remedy at law. But in this, though the demands separately are within the jurisdiction of the justice court, the aggregate amount exceeds that jurisdiction. Hence they cannot be consolidated. * * *
“In the very similar case of Railroad Co. v. Mayor, 54 N. Y. 159, am injunction was sustained as to all suits but one, until the rights of the parties could be determined in the action which was permitted to be brought. In Tarbox v. Hartenstein, 4 Baxt. [Tenn.] 78, the' defendant had been an employee of the plaintiff, under a yearly contract, his wages being payable weekly, and had been discharged before the contract expired, on the ground that he failed to perform the stipulations on his part. He was paid up 'to the time of his discharge. He brought suit for his first week’s wages accruing thereafter and recovered judgment, which was paid. He sued again for the next week’s wages, and recovered a judgment, from which an appeal was taken. He brought also a third suit, and announced his purpose to bring a suit for each week’s wages as it accrued, as long as by the terms of the contract it was to have continued in force. The court held that it was an entire contract for the year, though the wages were payable by the week, and that the judgment in the first suit was conclusive of his rights, and precluded any further recovery, and perpetually enjoined him from prosecuting the actions already brought, and from bringing any other. * ⅞ ⅞
“We coficlude, therefore, that the exceptions to so much of the petition as sought to enjoin the collection of the judgment of the county court should have been sustained, and that the exceptions should have been overruled to so much thereof as sought to enjoin appellee from bringing separate suits upon his demands; and that the court erred in sustaining the entire exceptions and in dissolving in whole the injunction and dismissing the bill.”

In the ease of Supreme Lodge of Fraternal Union of America v. Ray, 166 S. W. 46, 48, the Supreme Lodge of Fraternal Union of America instituted suit against David R. Ray and others, to enjoin them from maintaining and further prosecuting 39 separate suits brought by the defendants in the justice court of Fannin county. From a decree dismissing the petition on demurrer, the insurance union appealed, and, in reversing and remanding ■the case for a new trial, and holding that the union was entitled to have such suits consolidated and tried in one case, Justice Levy of fee Texarkana Court of Civil Appeals, speaking for fee court, said:

“According to fee allegations of fee complaint, 39 persons are prosecuting separate actions in fee justice court against appellant, all upon claims of a common origin, and predicated upon fee single act of fee association in putting into force and effect, on April 1, 1913, an increased rate of assessment, and depending upon fee determination of fee single question of fee authority of the association to make the increased rate. If such suits are prosecuted further in the justice court, the peculiar situation is presented, differing from the ordinary cases, of requiring successive trial and retrial of the same question at the hands of the justice court, with fee inconvenience, loss of time, and added expense that would follow. In view of the single issue, and as a means to afford relief against such loss, there is reasonably suggested, as being to the material interest of all fee parties, the question of why on'e final decree between all the parties should not be' had through a simplified procedure in consolidation of all the suits and issues into one suit between the parties. But the answer to the question must be, if the justice court retains the power to try fee cases, that notwithstanding there is but a single and common issue between all the parties, yet administering relief against such irreparable loss that would probably follow many trials is legally impossible in such forum, because the law has circumscribed its power and does not warrant a consolidation of these suits or issues: It would seem to follow, therefore, that though the justice court has jurisdiction to try the subject-matter of each separate suit, a proper relief in the particular situation here could not legally be afforded in feat forum against such irreparable injury feat would follow. But if,'in view of the sing-le question at issue between all the parties, consolidation of the suits into one suit for final decree be to the material interest of all parties, and the single defendant be entitled, as a clear and positive right, to have administered proper relief against irreparable injury from many successive, trials of the same issue, and there is want of an adequate remedy or means for administering such relief in the jurisdiction of the justice court, there is manifestly, as a fundamental proposition, a weakened power in fee courts, to administer justice if there is to be denied to such party aid from a competent court possessing adequate powers to meet the demands of justice. And it is not believed that, if there be a source or ground appearing of equitable jurisdiction, malting a court of equity competent to assume or exercise jurisdiction, the denial of the proper exercise of equitable jurisdiction to such court would be warranted upon fee sole fact that the justice court in fee first instance is empowered to try each suit separately, without regard to the equitable remedy. * * *
“As a fundamental principle equity takes jurisdiction where it is made necessary to administer a preventative remedy, or when the courts of ordinary jurisdiction are made instruments of injustice, or when the right of action is given by law, but the remedy allowable by the court within its jurisdiction is inadequate to meet the demands of justice. Brown on Jurisdiction, § 196.”

In this case, Justice Levy further says: “The text-books recognize the general rule to the effect that equity will enjoin the prosecution of numerous suits at law where all ai’ise from some common source, and are governed by the same legal rule and involve similar facts, and the whole matter might be settled in a single suit, and it is apparent feat the maintenance of many separate suits will result in loss and be against the material interests of the parties.”

We think that in the instant case such conditions exist, and that the trial court should have granted the injunction, and required the plaintiffs to file joint suits, the aggregate of which would come within the jurisdiction of the district court.

In the recent case of G., C. & S. F. Ry. Co. v. Pearlstone Mill & Elevator Co. (Tex. Civ. App.) 37 S.W.(2d) 299, 305, Justice Looney dissented from the views of the majority, and in part said: “Pomeroy’s Equity (3d Ed.) § 252 (4th Ed.) § 245, announced the general rule that courts of equity will interfere and take cognizance to prevent a multiplicity of suits in the following, among other, instances: <⅜ ⅝ * 2. Where the dispute is between two individuals, A and B, and B institutes or is about to institute a number of actions either successively or simultaneously against A, all depending upon the same legal questions and similar issues of fact, and A by a single equitable suit seeks to bring them all within the scope ánd effect of one judicial determination. ⅜ ⅜ * ’ I think the case at bar should be controlled by this doctrine.”

It will be noted that the Supreme Court in granting an application for writ of error said: “We incline to agree with the dissenting opinion.”

We do not think it necessary to discuss this matter any further, and it is the order and decree of this court that the judgment of the trial court be reversed and remanded, with instructions to the trial court to issue the injunction prayed for, unless the defendants below join in a suit against the plaintiffs to collect the amounts claimed by the defendants.

On Motion for Rehearing.

On motion for rehearing, appellees practically agree to the judgment of this court, but desire that the court state and hold definitely that, if the plaintiffs in the court below, and the prospective complainants against appellants, unite in a common suit, in which all of the plaintiffs are made parties plaintiff an'd the defendants parties defendant, such suit may be prosecuted to judgment. We do so hold, and so held in our former opinion.

There being no other questions for discussion, the motion for rehearing is overruled.


author: CONNER, C. J.

text:
    HUDSON v. HUTCHINSON et al.
    No. 12525.
    Court of Civil Appeals of Texas. Fort Worth.
    July 3, 1931.
    Rehearing Denied Sept. 19, 1931.
    A. J. Clendenen, of Fort Worth, for appellant.
    Patterson & Cates, of Decatur, for appel-lees.
   CONNER, C. J.

This appeal is from a judgment in favor of Mrs. Loula Hutchinson, a feme. sole, and Marvel Gary, plaintiffs below, against R. A. Hudson, defendant below, for a partition, of certain lands described in plaintiffs’ petition, and also for the recovery of the plaintiffs’ interest in the rents and revenues received by the defendant Hudson during the time of his possession.

The case was tried before the court without a jury, and the trial court’s findings of fact and conclusions of law are embodied in the judgment before us. The facts, so far as necessary to present them in the disposition of the appeal, are substantially as follows: Thomas J. Gary died in Wise county, Tex., about the 15th day of May, 1910, and left surviving him as his heirs, and only heirs, Mary Susan Gary, his wife, and the plaintiffs Loula Hutchinson and Marvel Gary, and the defendant W. R. Gary and Belle Gary Scott, wife of defendant J. M. Scott. Belle Gary Scott died intestate and without issue, following the death of her father, Thomas J. Gary.

Thomas J. Gary left a will, by the terms of which he bequeathed all of his property, real and personal, to his wife, Mary Susan Gary, for and during her life and at her death the remainder over was to be distributed, share and share alike, to their above-named children. Defendant R. A. Hudson was named in the will as executor thereof, and upon the death of Thomas J. Gary, Hudson duly qualified as such executor. The will, however, did not provide that the administration of the estate should be independent of the probate court of Wise county, but did provide that: “My executor, as soon as practical after my decease, shall pay off all the just debts existing against me.”

At the time of Thomas J. Gary’s death he was seized and possessed of the unseld parts of two certain tracts of land, aggregating about 119 acres. .

Mary Susan Gary, wife of Thomas J. Gary, died intestate in Wise county, about November 22,'1922, leaving as her heirs, and only heirs, the above-named children of herself and husband, Thomas J. Gary, except the said Belle Gary Scott, who had died prior to Mary Susan Gary’s death. Prior to the death of Mary Susan Gary, to wit, on January 4, 1924, she, together with W. R. Gary, conveyed to defendant R. A. Hudson an undivided one-third interest in 'and to said 119 acres of land and the same interest in a tract of SO acres belonging to the separate estate of Mary Susan Gary. The SO acres adjoined said 110 acres, and the two tracts were occupied and used by Thomas J. and Mary Susan Gary as their homestead until death intervened.

About the 23d day of February, 1923, the plaintiffs Loula Hutchinson and Marvel Gary severally executed powers of attorney, by the terms of which they appointed and constituted the defendant R. A. Hudson as their attorney in fact to take possession of the lands, and' in their names to sell the same for such consideration as they might deem just and proper, and out of the proceeds of such sale, or sales, to pay off and discharge “all just debts due by the estate of Thomas J. Gary, as well as of said Mary Susan Gary, deceased, and to make partition and distribution of the remainder of any of such proceeds so arising from such sale or sales between them and the other joint owners of said lands.”

Acting under said will and powers of attorney, Hudson held possession and control of the lands from the time of the probate of said will to the time of the trial, having neve» at any time sold any of the lands. During his possession, he collected and received rents and revenues from the lands, aggregating $3,-858.61. During the same time he paid the funeral expenses of Mary Susan Gary and other items of debt due from her, aggregating $211.15, and taxes for the years 1921 to 1925, inclusive, and the taxes for the year 1930, and sundry other expenses, aggregating $1,-425.99. The defendant Hudson also pleaded as an offset against the rents and revenues received by him a

Promissory note of T. J. Gary to R. A. Hudson, of date August 16,1907 due six months after date, with interest at 10 per cent.$ 606.48
Interest on said note to 10/1/23... 961.83
Interest on said note from 10/1/23 to 10/1/24 . 60.64
T. J. Gary account (to defendant R. A. Hudson). 561.12
Mary Susan Gary account (to defendant R. A. Hudson). 341.03
Total $2531.10

The court found that the items last noted, aggregating $2,531.10, were 'each and all barred by limitation and were denied. The court further found that defendant J. M. Scott, as the surviving husband of Belle Gary Scott, owned 7.434 acres out of the 119-acre tract; that Doula Hutchinson owned 31.931 acres in the 119-acre tract, plus 26.666 acres out of her mother’s 80 acres of land, totaling 62.597 acres.' A like interest in the two tracts were adjudged in favor of Marvel Gary. Defendant Hudson was awarded 39.648 acres out of the 119-acre tract, plus 26.666 acres out of the 80-aere tract, totaling 66.314 acres. Nothing was awarded to W. R. Gary, he having disclaimed all interest in the lands. The court further rendered in favor of Loula Hutchinson and Marvel Gary a judgment against the defendant in favor of each for the sum of $810.87, with interest from the date of the judgment at the rate of 6 per. cent., as being the amount to which each was entitled after deducting from the rents and proceeds collected by defendant Hudson the several items of expense paid by him which the court had allowed; in the same connection decreeing that the defendant Hudson take nothing for the said items of indebtedness claimed which the court found as above specified had been barred by limitation. The court further found the lands incapable of partition, ordered the sale thereof, and division of the proceeds.

The vital question presented on this appeal is embodied in appellant’s propositions to the effect that the will as well as appellees’ powers of attorney imposed a trust on appellant not subject to the statutes of limitation, and that hence the court was in error in excluding the items of his account, which were denied on the ground that they were barred. As to this, we have to say that the record fails to show that either at the time of Thomas J. Gary’s death or at the dates of the execution of the powers of attorney, the estate was insolvent or without personal property, choses in action, or other property subject to the payment of debts that could or should have been established in the probate court. The only reference in the record to such property is the statement in the testimony of appellant that: “Mrs. Gáry took possession of the homestead and the personal property on hand at the time of Mr. Gary’s death. She continued to occupy the homestead and used it, and disposed of the exempt property up to the time of her death.”

Under the decisions of Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485, and Green v. Cass County State Bank (Tex. Civ. App.) 7 S.W.(2d) 620, and other cases, it must be held that upon the- death of Thomas J. Gary the lands in question continued to be the homestead of his wife and the constituent members of the family living at the time, and upon the death of Mrs; Gary the homestead at once descended to the heirs, free from the debts of both Susan and T. J. Gary (Const, art. 16, § 50). In Cline v. Niblo, 117 Tex. 474, 8 S.W.(2d) 633, 66 A. L. R. 916, by our Supreme Court, it is held that even the probate court is without power to sell the homestead for the payment of community debts.

In view, therefore, of the rule well established by our Constitution and1 decisions that upon the death of the holder the homestead descends and vests in the heirs entitled thereto, free of all debts of the character yet claimed by appellant, we do not construe the language of the will as creating a trust, as claimed, in the homestead. As to that, the ■will confers upon Mrs. Gary a life estate with the remainder over to the testator’s children. Construing the will therefore as a whole, it cannot he said that the power to sell expressed in the will was intended by the testator to apply to the homestead. In no event can it he said to apply to the community interest in the homestead and the SO acres separately owned by Mrs. Gary.

Nor do we think the power to pay the “just debts” of Mr. and Mrs. Gary given in the powers of attorney necessarily include the debts denied in the court’s judgment. It appears that there were funeral and other expenses and debts that the court allowed, and while appellant testified that he listed and informed the plaintiffs of the' rejected claims, there is no evidence that either of the plaintiffs acknowledged their justness. Indeed, Mrs. Hutchinson in her testimony denied knowledge or information relating thereto. There is certainly no éxpress promise on the part of plaintiffs to pay or permit the payment of the rejected claims and as against the court’s judgment he will not imply a promise.

In Words and Phrases, Eirst Series, pages 3902, 3903, will be found a number .of cases under the title “Just Debts,” to the effect that the direction in a will for the payment of the decedents’ “just debts” will not revive claims barred by limitation. And in the case of Moore v. Hardison, 10 Tex. 467, it was held that the allowance by an administrator of a claim barred by the statute of limitations will not bind the estate. See, also, Moore v. Hillebrant, 14 Tex. 312, 65 Am. Dec. 118; Hefflefinger v. George, 14 Tex. 569; Sabrinos v. Chamberlain, 76 Tex. 624, 13 S. W. 634; Metropolitan Life Insurance Co. v. Stiewing, 173 Mo. App. 108, 155 S. W. 900. In principle, it can make no difference that the claim is that of an administrator himself instead of .that of another. But whatever view may be taken of the powers and of the term “just debts,” as used in the will and in the powers of attorney, it is undisputed that defendant never made an attempt to ecoerMse the claimed power to sell the lands in controversy, and we fail to find any such equity as at this late day requires the courts to substitute their powers for those claimed by virtue of the instruments referred to. It is true that defendant claims that he delayed sales of the land because plaintiffs so requested, but such a request is denied in testimony offered in behalf of plaintiffs.

The evidence affords no support for a contention that the note alleged to have been given by Thomas J. Gary, dated August 16, 1907, for $606.48 with its accumulated interest of $961.83, aggregating $1,568.31, was in fact paid out of the rents and revenues of his property while in defendant’s possession, for defendant in his own testimony stated that no credit on that note had ever been given and there was no sufficient explanation of defendant’s long delay in seeking to enforce that and other claims barred by limitation.

There is a further contention that the court erred in his finding that the lands in controversy were incapable of partition, but we fail to find any support in the evidence for this contention, and finally conclude that the court’s findings of fact and conclusions of law should be adopted and the judgment below affirmed in all things.


text:
    CHANCELLOR v. BRACHMAN.
    No. 12534.
    Court of Civil Appeals of Texas. Fort Worth.
    July 11, 1931.
    Rehearing Denied Sept. 19, 1931.

      C. W. Johnson, Jr., of Graham, and Marvin II. Brown and Walter D. Nicholson, both of Fort Worth, for appellant.
    E. L. Gilbert, of Fort Worth, and Fred T. Arnold, of Graham, for appellee.
   BUCK, J.

W. P. Chancellor, of Young county, sued 5. Brachman, of Tarrant county, and for cause of complaint, as shown in the third amended original petition, he alleged that on August 18, 1930, plaintiff was lawfully seized and possessed of certain described lands situated in Young county; that, on the day and year last mentioned, defendant unlawfully entered upon said premises and ejected defendant therefrom, and unlawfully withholds from him the possession thereof, to his damage in the sum of $25,000. That plaintiff and defendant entered into a written contract, which will be hereinafter set out, and in pursuance of said contract defendant took in trust said lease in his own name for the plaintiff. That defendant hag collected and is collecting the consideration for the various sales of said lease and interests therein, and has repudiated said trust set out in said contract, and is denying plaintiff’s interest in said leasehold estate.

The contract referred to is as follows :

“State of Texas, County of Young:
“This contract and agreement made and entered into this the 9th day of July, A. D. 1930, by and between S. Brachman as Party of the first part, and W. P. Chancellor, as party of the second part.
“Witnesseth
“Whereas, first party is the owner and holder of an oil and gas lease on the following described land, situated in Young County, Texas, to wit:
“First tract: The north 240 acres of T. E. & L. Company Survey No. 31, Abstract No. 307;
“Second tract: The South 120 acres of the East one half of T. E. & L. Company Survey No. 40, Abstract No. 316, and
“Whereas, first party is desirous of having a well drilled for oil and gas purposes on some portion of said land, and of having second party sell acreage around said well.
“Therefore, it is agreed by and between the parties hereto as follows, to wit:
“1. That first party will furnish $2200.00 in purchasing said oil and gas leasehold estate on the above described land, and second party will furnish the sum of $500.00 for the purchase of said oil and gas lease, and that second party will give his time and best efforts in an effort to sell acreage and interests in said well so as to take care of the consideration to be paid for said lease, and the cost incident to the drilling of a well on said land.
“2. First party shall accept and approve all of the sales of acreage to be made and to that end will have to sign all contracts and assignments for the sale or looking to the sale of said acreage of interests in said well to be drilled.
“3. All monies collected from the sale or acreage-or interest in said well shall be divided between first and second parties in the following proportions; that is to say, in the proportion that each party has put up for the purchase price of said lease, and the cost of drilling said well. For example, first party is to have and receive 2200/270.0 of each dollar so received, and second party is to have 500/2700 of each dollar so collected until the purchase price of said lease shall have been repaid and in like manner until the cost of the drilling of said well has been paid.
“4. In the event second party has failed at the time the well is completed, to sell oil and gas leasehold estate on the above described land, or interest in said well, or a sufficient amount to pay off the $2700.00 and the cost of drilling said well, then and in that event second party shall then be entitled to have and receive as his part and portion in said block of acreage an undivided ⅛ interest, in and to the leases remaining unsold at the time of said completion of said well.
“5. It is contemplated that second party shall pay towards the purchase price of said lease, the sum of $500.00 and that he will give his time and best efforts to sell off acreage in payment of said consideration for said-lease and the expense of drilling said well. And in the event second party should fail or refuse to pay in his $500.00 to be applied on the purchase price of said lease as herein stipulated, on or before the time that the title to the above described land is accepted, then second party shall only have and be entitled to receive an undivided ⅛ interest in and to the remaining acreage on hand and undisposed of at the date of the completion of the said well. The well contemplated by this contract is to he commenced on or before 45 days from the date the title to the above described land is accepted as merchantable, and said well is to be drilled to the 750 foot depth, unless oil or gas is found in paying quantities at lesser depth.
“6. In the event second party has, at the time of the completion of the well contemplated in this contract, cleared said acreage by raising the cost of said acreage in the amount of $2700.00, and the cost of drilling said well, then and in that event second party is to have and receive as his share and portion of said oil and gas leasehold estate, an undivided ½ interest in and to the then remaining unsold portion or portions of said oil and gas lease.
“7. In the event oil or gas is found in paying quantities oh said lease, first party shall have charge of all future development and operation and the future costs of development and operation shall be borne proportionately by the parties hereto. sThat is to say, each party will own a working interest in said lease, subject to first party's right of development and -operation as aforesaid.

The terms and provisions of this contract •shall extend to and be binding upon the heirs and assigns of all parties hereto.

“Witness our hands this the 9th day of July, A. D. 1930.
“S. Braehman
“W. P. Chancellor.
■“State of Texas, County of Young:
“Before me, the undersigned authority, a notary public in and for Young County, Texas, on this day personally appeared S. Brach-man and W. P. Chancellor, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed.
“Given under my hand and seal of office, this the 9th day of July, -.
“B. W. King, Notary Public, Young County,
Texas.”

Defendant answered by a general demurrer and a general denial, and specially pleaded that he was not guilty of the wrongs, injuries, and trespasses set out in plaintiff’s petition.

Upon a trial before the court without the intervention of a jury, the trial court gave judgment for plaintiff for an undivided one-sixteenth interest in the oil and gas leases covering the west 160 acres of the north 240 acres of the T. E. & L. Co. survey No. 31, abstract No. 307, Young county, Tex., and an undivided one-sixteenth interest in the oil and gas leases covering the east 80 acres of the north 240 acres of the T. E. & L. Co. survey No. 31, abstract No. 307, Young county, Tex., less a 20-acre -lease in the form of a square, carved out of the northeast corner and previously sold to Seitz, Comegys & Seitz, Inc. The court further found that plaintiff was entitled to recover of the defendant the sum of $131.94.

Upon the judgment entered upon these findings, the plaintiff has appealed to this court.

Opinion.

The evidence shows that Braehman bought and paid for (1) the north 240 acres of the T. E. & L. Company survey-No. 31, abstract 307; (2) the south 120 acres of the east one-half of the T. E. & L. Company survey No. 40, abstract No. 316. Chancellor did not pay any part of the purchase price. Chancellor sold to Seitz, Comegys & Seitz, Inc., 20 acres out of the northeast corner of the 240-aere tract, and received therefor $600, of which $500 was paid in cash. Chancellor paid this amount or handed this check to Braehman. Braehman sold to P. E. Butler a one-half interest in 60 acres out of the north 240-acre tract, and Butler agreed to drill a well thereon. Brach-man transferred to Chancellor one-sixteenth of the seven-eighths working interest of the west 160 acres of the north 240 acres, less the 20 acres theretofore sold to Seitz, Comegys & Seitz, Inc. The south 120 acres of the east one-half of the T. E. & L. Company survey No. 40 was sold to the Texas Company, for the sum of $2,250 cash. An undivided one-half interest in the lease covering the west 160 acres of the north 240 acres was sold to J. S. Brid-well for the sum of $2,250 cash. Braehman paid Marshall and King for legal services and opinion and abstracts $59.50, and paid the surveyor $85. By letter of August 18, 1930, from Braehman to Chancellor, it is stated: “According to our contract, as you did not put up your share of' the money, you are entitled to ⅛ [of- the price for which Braehman had sold to Bridwell a ½ interest in the 160 acre tract, above mentioned] and I am enclosing my check of what we have left. This portion of $2,250.00 is $281.25 and I have already advanced you $150.00 so am enclosing my cheek for $131.25 and assignment for your interest.”

In the letter of August 26, 1930, from Braehman to Chancellor, it was stated:

“I have received letter from Mr. Johnson advising that you ratify the sale I made to Bridwell. I am glad to note that you concur and ratify the sale which I made.
“As to an accounting, I received $500U0 from Seitz, an additional $100.00 later, and $2,250.00 from the Texas Company. I paid $2,700.00 for the lease, and will pay the surveyors bill of $85.00 when it is presented to me. There will probably be a few other small bills, taking up the $5.50 left.”

Evidently the trial court concluded that W. P. Chancellor did not pay any part of the purchase price of the lease, and was therefore not entitled to receive, under paragraph 5 of the contract, more than a one-eighth interest in and to the remaining acreage on hand and undisposed of at the date of the completion of said well. Brachman had assigned to Chancellor a one-sixteenth interest in the lease, before suit was filed. Therefore the trial court held that Chancellor was entitled to a one-sixteenth interest in the oil and gas leases and leasehold estate on the land known as the west 160 acres of the north 240 acres of the T. E. & L. Company survey No. 31, abstract No. 307; an undivided one-sixteenth interest in the oil and gas lease and leasehold estate on the land described as the east 80 acres of the north 240 acres of the T. E. & E. Company survey No. 31, abstract 307, less a 20-acre lease in the form of a square, carved out of the northeast corner and previously sold to Seitz, Comegys & Seitz, Inc. The trial court further adjudged and decreed that Chancellor was entitled to $131.94. The trial court’s order further read: “It is further ordered by the court that the interest here given to the plaintiff, W. P. Chancellor, is subject to the terms and conditions of the written contract between the parties relating to the operation and management of said leases.”

We are of the opinion that we cannot disturb the judgment of the trial court. The owners of the fee in the land conveyed had no contract with Chancellor, but would sell the leasehold estate to any one who would pay $2,700, according to the testimony of H. L. Tidwell, one of the attorneys in fact for the owners. Mr. Brachman testified: “I asked Mr. Chancellor, or rather I told Mr. Chancellor if I put up the $2700.00 and he had nothing invested and after five or six or seven days I couldn’t sell any of the acreage, then I felt he might have to make a living, that he’d go off and leave it, and I told him I wanted him to be interested financially for the simple reason that that would assure me that he would stay with it, and then I didn’t want to have to get out and sell acreage.’.’

One of the preambles of the contract between Brachman and Chancellor was: “Whereas, first party is desirous of having a well drilled for oil and gas purposes on some portion of said land, and of having second party sell acreage around said well,” which tends to show that Brachman relied on Chancellor’s promise to sell the acreage and to pay $500 towards the purchase price. If Chancellor was not relegated to an undivided one-eighth of the one-half that remained unsold of the lease by his failure to pay the $500 of the purchase price, then he was certainly relegated to such one-eighth interest by his failure, not only to pay $500 of the purchase price, but also his failure to sell the acreage. He had already received from Brachman a one-sixteenth interest.

We do not think that the appellant, Chancellor, is entitled to recover the larger proportion of the unsold lease, claimed by him, by reason of the fact that appellant and appellee were cotenants or partners. Appellant never performed his obligated promises, either to pay $500 towards the purchase price, or to sell the remaining acreage, out of which the drilling of the well was intended to be-paid. So long as an agreement for partnership remains inchoate or unperformed, a partnership is not consummated. Where one who has acquired options on certain lands entered into a written contract with another, empowering him, in the absence of the party holding the option to accept them and make sale of the lands, and providing that all proceeds-should be distributed equally between them, it has been held that a partnership was not actually created by the agreement. 20 R. O'. L., p. 811, § 13. The mere agreement to form' a partnership does not itself create a partnership, nor does the advancement by one of part of his agreed share of the capital. Persons who have entered into a contract to’ become partners at some future time or upon’ the happening of some future contingency do-not become partners until or unless the agreed time has arrived or the contingency has happened. See 47 Corpus Juris, p. 657, under the heading of Partnership, § 48. Where one of the parties to the executory contract did not contribute his proportion of the agreed assets, although the others did, it is held that a partnership is not consummated. Costello v. Gleeson, 19 Ariz. 532, 172 P. 730, 734.

Appellant urges that the courts are disinclined to construe stipulations to do certain-things within a given time in consideration of the payment of money by the other party as conditions precedent unless compelled to do so by the express language of the contract, citing Seley v. Texas & St. L. Ry. Co., 2 Willson, Civ. Cas. Ct. App. § 87. He argues that, if the condition be construed by the court as a condition subsequent, the rule is that, when relied on to work a forfeiture, such a condition must be created by express words or necessary implication and will be strictly construed. That the law does not favor forfeitures and the courts will decline to enforce them whenever it is against equity and good conscience to do so.

We do not think that a forfeiture is involved in the case here presented. It is, rather, that Chancellor, by the terms of his contract, did not perform his part of the agreement, and was therefore not entitled to recover from the appellee, defendant below, the one-fourth interest in the leasehold remaining. We have read the authorities cited by appellant, including Missouri State Life Insurance Co. v. Le Fevre (Tex. Civ. App.) 10 S.W.(2d) 267, but do not think that they apply.

Eor the reasons stated the judgment below is affirmed.