author: JACKSON, J.

text:
    EQUITABLE BUILDING & LOAN ASS’N v. JONES et al.
    No. 3557.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 18, 1931.
    Lindsey, Berry & Peticolas, of Lubbock,for appellant.
    Hart & Kernan, of Amarillo, for appellees.
   JACKSON, J.

This suit was instituted in the district court of Lubbock county, Tex., by the appellant, the Equitable Building & Loan Association, against Prance Baker and Annie Jones, the surviving widow of D. P. Jones, deceased, and all the heirs of the deceased, the names of whom and their residence are stated in the petition.

The suit is on a note for the sum of $2,250, with interest, dated April 17, 1929, payable to plaintiff in monthly installments, and to foreclose a deed of trust lien executed and delivered by Annie Jones and her deceased husband, against lot 8, block 16, of the O’Neal Terrace annex, an addition to the town of Lubbock.

The plaintiff alleges that on March 5,1929,. D. P. Jones and wife Annie Jones executed a note for the sum of $2,250, payable to the order of J. P. Boozer, secured by a valid mechanic’s lien on tide above-described real estate. That the note sued on and the deed of trust lien, on which foreclosure is sought, were executed on April 17, 1929, in renewal and extension of said mechanic’s lien note and said mechanic’s lien. That D. P. Jones died intestate on or about August 18, 1929.

That France Baker is claiming some right, title, or interest in and to said real estate, but, if any right he has, it is inferior to that held by plaintiff.

That the plaintiff is the owner of the note and lien sued on; that default has been made in the payment thereof; that there is no administration on the estate of D. P. Jones, deceased, and that none is necessary, because there are no valid debts against said estate. The prayer is for judgment for the debt against Annie Jones and a foreclosure of the lien against all of the defendants.

Prance Baker, though duly cited, defaulted.

Annie Jones and the other defendants filed a plea, challenging the jurisdiction of the court to hear and determine the case, in Which they allege: “That plaintiff’s cause of action is for the recovery of an alleged indebtedness of $2700.00, evidenced by a note signed by D. P. Jones, deceased, and wife Annie Jones, and the foreclosure of a deed of trust on Lot 8, Block No. 16, of the O’Neal Terrace Annex, an addition to the City of Lubbock, Lubbock County, Texas, and the improvements thereon. That said real estate is the only asset of the estate of D. P. Jones, deceased, who died on the 18th day of August, 1929, and that the defendant Ira Jones holds claims against said estate in the sum of $896.00, created during the said D. P. Jones’ last sickness and death and that it is necessary that an administrator be appointed to properly distribute the assets of said estate. Wherefore, they pray judgment that this Court take no further cognizance of this suit.”

The plaintiff, in reply to the defendants’ plea to the jurisdiction of the court, alleges that the property in controversy constituted the homestead of D. P. Jones and wife, and that any claim for expenses for the last sickness and death of D. P. Jones would not constitute a lien against said property and the probate court could not subject the homestead to a forced sale and deprive Annie Jones and the heirs of D. P. Jones, deceased, of title and possession thereof.

There was no testimony introduced, but the trial court, acting on the plea and the answer thereto, dismissed the cause for want of jurisdiction, from which action of the court this appeal is prosecuted.

Article 16, §. 50, of the Constitution of the state, reads, in part: “The homestead of a family shall be, and is hereby, protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon, and in this last case only when the work and material are contracted for in writing, with the consent of the wife given in the same manner as is required in making a sale and conveyance of the homestead.”

Article 3499, ft. C. S., contains substantially the language of the constitution above quoted.

In conformity to this constitutional provision and the statute, article 3500, ft. O. S., provides: “The exempted property, other than the homestead, or any allowance made in lieu thereof, shall be liable for the payment of 'the funeral expenses and the expenses of last sickness of deceased, when presented within the time prescribed therefor, but such property shall not be liable for any other debts of the estate.”

The appellees state in their plea to the jurisdiction of the court that the real estate involved in this controversy constitutes the only asset of the estate of D. F. Jones, deceased. The appellant states that the property was the homestead of the deceased and his wife. The validity of the lien asserted against the homestead by appellant is not questioned.

Manifestly, under the facts alleged and the constitution and the statutes of Texas, no lien existed against the property involved, if it was a homestead, to secure the indebtedness for the last sickness and funeral expenses of the deceased.

The record discloses that the wife of D. F. Jones, deceased, a constituent member of his family, is still Jiving.

On the death of D. F. Jones, the title to the homestead vested in his wife and children and was not subject to administration, and an administrator would have neither the legal title to the property nor the right to control it as assets of the estate. Hanks v. Crosby, 64 Tex. 483.

In Kimmons v. Abraham (Tex. Civ. App.) 176 S. W. 671, 672, the court said: “There was no property except the homestead, which is not subject to administration, • and cannot legally be sold to pay an allowance for the •support of the widow and her minor children. The record shows that such constituents of the family survived the deceased as are necessary to take the homestead out of the assets subject to administration and vest it in those entitled thereto by our statutes relating to descent and distribution. Hoefling v. Thulemeyer [Tex. Civ. App.] 142 S. W. 102; Hoefling v. Hoefling [106 Tex. 350] 167 S. W. 210; American Bonding Company v. Logan [106 Tex. 306] 166 S. W. 1136. If the decedent be survived by his wife or minor children, the homestead cannot be sold to pay the funeral expenses or expenses of last sickness. See article 3427, R. S. 1911. The Legislature surely never intended that it could be sold to pay an allowance which it expressly provides shall rank lower than such claims. See article 3411. Any attempt on the part of the county court to subject the homestead to administration is null and void. Dignowity v. Baumblatt, 38 Tex. Civ. App. 363, 85 S. W. 834; Childers v. Henderson, 76 Tex. 664, 13 S. W. 481.” See, also, Laas v. Seidel, 95 Tex. 442, 67 S. W. 1015; Faulkner v. Reed (Tex. Civ. App.) 229 S. W. 945; Penniman Gravel & Material Co. et al. v. Hutton et al. (Tex. Civ. App.) 16 S.W.(2d) 848.

If the facts are as revealed in the pleadings of the parties upon which the court acted, that is, no administration was pending on the estate, that there were no assets of the estate save and except the property involved in this controversy, that the property constituted the homestead of Annie Jones and her deceased husband, that the debt of the appellant was secured by a valid mechanic’s lien to which the appellant had been subro-gated and of which it was the owner, in our opinion the district court committed error in dismissing the case for want of jurisdiction. "While the appellant sought a personal judgment against Annie Jones, which, under the facts revealed by this record, it could not recover, this would not defeat jurisdiction of the court to grant appellant the relief to which it is entitled.

. In passing upon the jurisdiction of the district court to foreclose a vendor’s lien, the Supreme Court in Solomon v. Skinner, 82 Tex. 345, 18 S. W. 698, 699, says: “The question, th.en, is, did the district court have power to proceed to judgment, and to order a sale of the land for the payment of the debt, without contravening the policy of our probate laws? These laws provide for the establishment of claims against the estate of a deceased person, and for their classification and payment in a certain prescribed order. Their purpose is mainly to protect creditors and the widow and minor children in their respective rights. Their respective priorities could not be pressed, if a creditor were entitled to enforce his claim, through the ordinary tribunals, which have jurisdiction of suits for the collection of debts. But the plaintiff in this case, by her trial amendment, seeks only to subject the land to the payment of her debt, and her lien as to that land is superior to all other claims whatever. ⅜ ⅜ * defendants hold the legal title to the land, and she has a lien upon it which she seeks to enforce in a court of equity. But for our statutes she would have an unquestionable right to such relief, and we are of opinion that in the present case they do not present an obstacle to her recovery, provided she proved the case alleged in her petition.”

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    RATLIFF et al. v. NAU.
    No. 2034.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 29, 1931.
    Rehearing Denied Feb. 25, 1931.
    Geo. G. Clough, of Houston, for appellants.
    Ross, Wood, Lawler & Wood, of Houston, for appellee.
   WALKER, J.

Appellee makes the following statement of the nature and result of this suit, as tried in the lower court, which we adopt:

“Appellee’s suit was against Herman Brown and J. L. Root, independent executor of the estate of Dan Root, (the executor being substituted for Dan Root who died while the suit was pending) and against C. M. Ratliff and C. H. Welch, appellants, appellee alleging that Brown and Root, partners, had a contract from Harris County for the improvement of a section of Lawndale Avenue, or Road, in the City of Houston by which contract they were required to clear a portion of the right of way of trees and stumps — about 1.15 aeres, or that portion of the right of way extending approximately 2500 feet south and east of Bray’s Bayou. That in clearing such right of way of trees and stumps Brown and Root, their agents, servants and employees, C. M. Ratliff and C. H. Welch, used dynamite and dynamite caps to explode the dynamite. Appellee further alleged that Lot l; Block 2, of Kenmore Addition to the said City of Houston (the southeast, corner of the intersection of Kenmore Avenue and Lawndale Road) abutted upon Lawndale Avenue or Road which was under improvement, and that Brown and Root, or their servants and employees C. M. Ratliff and C. H. Welch, the appellants, while performing such work, negligently left, or stored, and failed to remove, a box, or boxes, of dynamite caps upon this lot. Appellee further alleged that while lawfully in 'possession of such lot as lessee and while engaged in cutting weeds thereon with a sickle, he struck a box of such dynamite caps, concealed in the grass and weeds, causing such caps to explode, seriously injuring appellee. Appellee, in the alternative, pleaded that if C. M. Ratliff and C. H. Welch, appellants, were not' employees of Brown and Root, then they were partners employed in part in the business of clearing, grading and otherwise improving highways; that they had a sub-contract from Brown and Root for the work of clearing Lawndale Road, and in performance thereof, they and their servants and employees did the blasting work alleged, and in the course thereof committed the negligent acts complained of. Appellee asserted several theories by which he sought to hold Brown and Root, despite their being independent contractors, which theories were not sustained by the trial court and are not material to note here. Ap- ■ pellee sought damages for medical and hospital services, physical pain and suffering and loss of earnings and business. Appellants O. M. Ratliff and O. S. Welch answered separately, and in addition to numerous special exceptions, pleaded general denial and denied under oath that they were partners. George Brown, an original defendant, was dismissed from the suit. Brown and Root answered and in addition to numerous special exceptions and general denial, pleaded that Welch and Ratliff, appellants, were sub-contractors and independent contractors for whose acts Brown and Root were not liable. Brown and Root asked for judgment over against Welch and Ratliff, appellants, for such amount as might be rendered against them. The trial court overruled motion for instructed verdict, the case was submitted to the jury upon special issues, which were answered favorably to appellee, and judgment was rendered on December 20, 1929, in favor of appellee against appellants G. M. Ratliff and C. H. Welch. The trial court sustained the defense of independent contractor asserted by Brown & Root and rendered judgment that appellee recover nothing against them. No appeal was taken from this portion of the judgment, and the only parties to the appeal are O. M. Ratliff and C. H. Welch, the appellants, and John Nau, the appellee. Appellants, O. M. Ratliff and O. H. Welch,' filed original and amended motion for new trial which was heard, duly considered and overruled by the trial court, to which appellants excepted and gave notice of appeal. Appellants filed supersedeas bond and the case is here for review.”

The following issues were submitted to the jury, answered as indicated:

“Special Issue No. 1. Do you find from a preponderance of the evidence that on or about June 7, 1928, the plaintiff, John Nau, was injured by the explosion of box of dynamite caps?” Answer: “Yes.”
“Special Issue No. 2. Do you find from a preponderance of the evidence that the said box of dynamite caps were placed upon the' premises where the explosion occurred by the defendants Welch & Ratliff, or their agents or employees?” Answer: “Yes.”
“Special Issue No. 3. Was such act negligence?” Answer: “Yes.”
“Special Issue No. 4. Was such negligence the proximate cause of plaintiff’s injuries?” Answer: “Yes.”
“Special Issue No. 5. Was the failure of the defendants, Ratliff & Welch to remove said dynamite caps negligence?” Answer: “Yes.” '
“Special Issue No. 6. Was such negligence the proximate cause of plaintiff’s injuries?” Answer: “Yes.”
“Special- Issue No. 7. What sum of money, if paid to the plaintiff in cash at this time, would fairly and adequately compensate him for such damages as you may believe he has sustained as a result of the explosion, taking into consideration the following elements, and them only:
“(1) Physical and mental pain suffered by him in the past, if any, and such as you may believe he will in reasonable probability suffer in the future, if any;
“(2) The reasonable and necessary expenses for medical and surgical attention and hospital expenses, if any; and
“(3) The reasonable value of the earnings lost by him in the past, if any, and the reasonable value of his reduced capacity to labor and earn money in the future, if you shall believe and find that his capacity to labor and earn money will, in reasonable probability, be diminished in the future.”

Answer:

“(1) $1500.00.”
“(2) $ 121.50.”
“(3) $6100.00.”

Appellants’ first and eleventh propositions are to the effect that appellee failed to raise the issue that the caps were left on his premises by appellants. These propositions are overruled. On the facts in support of their proposition, appellants make a statement covering about fifty pages of their brief. Answering appellants’ contention, appellee makes a statement covering about twenty pages of his brief. We have carefully examined the statements of both parties, and, in our judgment, the facts and evidence as brought forward in the statement of facts are sufficient to raise all the issues summarized by appellee in his third counter proposition, which is as follows:

“It appearing from appellee’s evidence that although there were many types and brands of dynamite caps, the appellants in the blasting operations in question used the same kind and brand of dynamite caps found upon the lot where the explosion occurred immediately after it occurred; that appellants passed by and over, lounged upon, placed their tools upon and used the lot where the explosion occurred during their, blasting operations and during the time they were improving that section of the Lawndale Road on which the lot in question was situated; that during the time appellants were working upon such section of the road caps and fuses of the type used' by appellants were seen upon the lot; that during the time appellants were engaged in blasting operations and were improving Lawndale Road,' that section of the road being improved by them was closed and was not used or accessible to any other persons known to have been using dynamite caps; that while the blasting operations and improvement work were in progress and until appellee was injured, no other persons who used dynamite caps were upon or around or used the plot of ground where the explosion occurred; that no person known to have been using dynamite caps, other than appellants, ever used or had occasion to use the plot of ground where the explosion occurred; that the plot of ground where the explosion occurred was the only unfenced vacant unused plot of ground upon that section of Lawndale Road closed and improved by appellants upon which appellants might properly have stored or left their dynamite caps; that such plot of ground was removed from the actual scene of the blasting but immediately connected with it and easily accessible from it—the jury might reasonably conclude that the appellants, their servants or employees, left the dynamite caps upon the lot where the explosion occurred and by which explosion appellee was injured, and the trial court for this reason properly overruled appellants’ motion for an instructed verdict at the close of plaintiff’s case.”

The facts thus summarized by appellee clearly raised the issue that appellants left the dynamite caps on appellee’s premises. If that issue was raised, it requires no citation from the record to sustain the further issues that this act was negligence and a proximate cause of appellee’s injuries.

Appellee alleged that his injuries disabled him from continuing in the filling station business, which was his regular trade. Under these allegations the court did not err in permitting appellee to testify as to the nature of his duties and the work performed by him in operating his filling station. There was no special exception requiring appellee to plead the specific manner in which he discharged his duties as the operator of the filling station. Therefore the court did not err in receiving this testimony. This disposes of appellants’ second proposition.

By their third, fourth, fifth, sixth, and seventh propositions, appellants 'complain of the argument of counsel for appellee to the jury. Bills of exception complaining of this argument are defective, in that the trial court did not certify expressly and affirmatively that there was no evidence to justify the argument, nor that there was no evidence úpon which the argument could have been founded, nor that there was no argument on the part of opposing counsel to provoke the argument complained of. Because of these defects, the bills of exception do not constitute reversible error. Texas Employers’ Ins. Ass’n v. Heuer (Tex. Civ. App.) 10 S.W(2d) 756. In West Texas Utilities Company v. Renner (Tex. Civ. App.) 32 S.W.(2d) 264, the court has brought forward many additional citations supporting this conclusion.

By their eighth, ninth, and tenth propositions, appellants complain that the court erred in not instructing the jury that it could consider certain testimony offered by appellee only for the purposes of impeachment. These propositions are overruled. Appellants offered as a witness in their behalf Morley McClain, who testified as to certain conversations between him and appellee and appellee’s counsel to the effect that they improperly tried to influence the witness to testify in favor of appellee. In reply, appellee and his counsel gave in detail their version of this conversation. This was not impeaching testimony, and therefore the court did not err in refusing this requested instruction.

From what has been said, it follows the judgment of the trial court must be affirmed, and it is accordingly so ordered.


text:
    GULF STATES UTILITIES CO. v. MADELEY et al.
    No. 2049.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 5, 1931.
    Rehearing Denied Feb. 25, 1931.

      S. A. Crawford, of Conroe, for appellant.
    Strode & Pitts, of Conroe, for appellees.
   WALKER, J.

On the 1st day of May, 1928, appellees owned lots 1, 2, 3, 4, 5, and 6 in block 3 of the Risher addition to the city of Conroe. Because of the beautiful trees on these lots, they had a substantial value as residence lots. In this case appellees sued appellant alleging that, on the date mentioned, without their knowledge or consent, appellant entered upon these lots and cut and removed all the trees-growing thereon except a few on the rear of •the lots; and further alleged that appellant, after cutting and removing the trees, caused to be erected across said lots, on the front or eastern side .thereof, an electric high line used for the purpose of transmitting a high voltage of electricity, and erected and placed upon said property poles for the purpose of supporting said high line. They plead their damages as follows: “Plaintiffs say that immediately prior to the unlawful entry of the defendant upon said land and premises, and before the cutting and removing of said shade trees and the erection of said electric'high-line, said six lots, described in Paragraph One of this petition were of the reasonable market value of Two Hundred ($209.00) Dollars, each, and of the aggregate value of $1200.00. That said lots immediately after said unlawful entry and trespass, and at the present tíme are of the reasonable market value of fifty dollars each and of the aggregate value of $300.00.”

The trial court sustained appellant’s exceptions to this plea, holding that appellees must amend their petition by alleging the specific damages caused by each act of trespass; that is, the damages caused (a) by cutting'the trees, (b) by erecting the high line, (c) by erecting the poles. In compliance with this ■ruling, appellees filed the following trial amendment: “Now comes the plaintiffs in the above entitled and numbered cause, leave of the court having been first had and obtained, and files this their trial amendment, and abandons all that part of their third amended original petition wherein they allege damages to the property' described in said petition by reason of the construction of said high-line, and base their damages upon the destruction of the growing shade trees then on said property aforesaid, in the amount as pleaded for in said third amended original petition.”

In addition to the foregoing special exception, appellant answered by general demurrer, plea to the jurisdiction on the ground that appellees sued for less than $500, plea of limitation, and a general denial.

The following issues were submitted to the jury, answered as indicated:

“Special Issue No. 1. What was the reasonable market value of the property in question just before the time the trees were cut as complained of in plaintiffs’ petition?” Answer: “$1,200.00.”
“Special Issue'No. 2. What was the reasonable market value of the property in question immediately after the trees were cut, as complained of in plaintiffs’ petition?” Answer: “$600.00.”
“Special Issue No. 3. If you have answered giving a lower valuation after the trees were cut than before the trees were cut, then answer what part, if any, of this difference was caused by reason of the erection of the high-line of the defendant ’along the side of the lots belonging to the plaintiff, Mrs. Madeley.” Answer: '“$00.00.”

Opinion.

Appellant insists that the court erred in .refusing to strike out the trial amendment; the point being that the law required appellees to replead their case in full, making a new pleading “complete in itself.” This contention is not sound. The rule regulating the filing of trial amendments is thus stated in the second edition to Townes’ Texas Pleadings, p. 449 : “If in’ the progress of the trial of a case a demurrer to any pleading is sus- ' tained, and there is no opportunity to rewrite the whole pleading, the court can permit the party to prepare an. instrument known as a trial amendment, to be used in connection with the pleading amended, supplying its omissions as adjudged upon the demurrers of the adverse party.”

Tlie trial amendment'in this case was filed in strict compliance with this rule.

The following is appellant’s second proposition: “No judgfnent could be rendered in this case for plaintiffs, the trial court haying sustained defendant’s special exception during the trial of the case, that the damage as plead by plaintiffs could not be combined, and no amended pleading having been filed thereafter, as required by law, setting up any specific damage, it was tie duty of the court to peremptorily instruct a verdict for defendant.”

The facts do not sustain this proposition. The trial amendment specifically alleged the damages caused by cutting the trees, fixing it at the same amount pleaded in the original petition as damages for all three trespasses.

There is no merit in thei plea to the jurisdiction. Clearly appellees claimed damages in the sum of $900, which was within the jurisdiction of the district court.

Though the record shows that appellant’s exception to appellees’ petition, discussed above, was sustained by the trial court and that appellees met the exception by filing their trial amendment, yet appellant insists that there was no pleading to authorize a submission to the jury of the issue of damages caused by cutting the trees. This contention is overruled.

The following is the fifth proposition: “The court erred in not sustaining defendant’s plea of two years limitation in the trial of this case when plaintiffs filed their trial amendment which was filed June 2d, 1930, and the proof showed that the timber was cut in May, 1928, the filing of the trial amendment coming more than two years after the cutting, of the timber and the filing of the trial amendment changing the cause of action sued on and making a new cause of action declared on."

This proposition is without merit. The filing of the trial amendment did not constitute an abandonment of the original cause of action and the institution of a new cause of action. The only office of the trial amendment was to meet defects in the trial petition.

By the sixth proposition appellant complains of the argument of counsel to the jury. This proposition must be overruled because of the defective bill of exception upon which it is based. In the bill of exception the trial court did not certify expressly and affirmatively that there was no evidence to justify the argument, nor that there was no evidence upon which the argument could have been founded, nor that there was no argument on the part of opposing counsel 'to provoke the argument complained of. These omissions made the bill defective. Texas Employers’ Ins. Ass’n v. Heuer (Tex. Civ. App.) 10 S.W. (2d) 756; Ratliff v. Nau (Tex. Civ. App.) 36 S. W.(2d) 254, and authorities cited in these two cases.

It follows that the judglnent of the trial court must be affirmed, and it is accordingly so ordered.


author: BLAIR, J.

text:
    WAYBOURN v. WAYBOURN et al.
    No. 7571.
    Court of Civil Appeals of Texas. Austin.

      Feb. 18, 1931.

    Edwin G. Moorhead, of Austin, for appellant.
    Webb & Felts, of Austin, for appellee Harris & Harris.
   BLAIR, J.

On the threshold of this appeal appellees move that appellant’s brief filed herein be not considered, and that the judgment be affirmed because the brief contains no assignments of error. The brief contains no assignments of error, and the duty of this court is well stated in 3 Tex. Jur., 837, § 588, as follows:

“When the brief contains no assignments of error it will not be considered, and the assignments filed below are not properly before the court. Consequently the assignments are not entitled to consideration, and the appellate court will confine itself to a review of fundamental error apparent on the face of the record. In the absence of fundamental error the judgment or order appealed from will be affirmed.”

See also the numerous cases cited in the footnotes by this authority which support the rule quoted.

We have carefully examined the record for fundamental error and find no such error, and the judgment of the trial court will be affirmed.

Affirmed.


author: BDAIR, J.

text:
    COLE v. BUTLER.
    No. 7515.
    Court of Civil Appeals of Texas. Austin.
    Jan. 21, 1931.
    Rehearing Denied Feb. 18, 1931.
    Jno. B: Daniel, of Temple, for appellant.
    Sam D. Snodgrass, of Temple, for appellee.
   BDAIR, J.

Appellee sued appellant for damages resulting from appellant’s fraud in inducing a trade or exchange of appellee’s 35 shares of Bell Baking Company, Inc., stock, valued at $100 per share, for appellant’s north 100 feet of lots 3 and 4, in block 19, Methvin’s addition to the city of Temple, valued at $6,000, appel-lee executing five notes for $500 each, secured by lien on the real estate for the difference in the value of the properties exchanged; and upon a special issue verdict he recovered judgment for $2,400 actual damages and $2,700 exemplary damages; hence this appeal.

In substance the jury found in answer to special issues submitted that appellant falsely and fraudulently represented to appellee as follows:

Issue 1. That appellant’s real estate was located within four blocks of the Scott & White Hospital in Temple, Tex.

Issue 2. That the improvements on said property consisted of a large, well-arranged, modern two-story house in good-repair, and that the building was equipped with all modern improvements, including sewerage and natural gas connections.

Issue 3. That the property was then in the possession of a tenant who was paying a rental of $50 per month, and that during all the time of appellant’s ownership of said property it had produced a revenue of $50 per month.

Issue 4. That appellant had already leased the property to a new tenant at $60 per month, said new lease to begin on December 10, 1928.

Issue 5. That appellant gave $6,000 for saiá property, and at one time borrowed $2,500 on the same, and that said property had a stable market value of $6,000.

The jury were instructed that, if they “answered all or any of the foregoing special issues, Numbers 1, 2, 3, 4, and 5, ‘yes,’ ” then to answer issues 6 and 7; which issues and the jury’s answers thereto read as follows:

Issue 6. “Do you find from a preponderance of the evidence that such representation, or representations, if any, referred to in the foregoing five special issues, or any of them were made, if made, by the said Cole to said Butler as a material inducement to the latter to enter into said exchange of properties between them involved in this stuff? Answer ‘yes’ or ‘no.’ ” Answer: “Tes.”

Issue 7. “Do you find from a preponderance of the evidence that plaintiff Butler would not have entered into said exchange of properties with defendant Cole had such representation, or representations, if any, not been made by the said Oole? Answer ‘Yes’ or ‘No.’” Answer: “Yes.”

In substance the jury further found as follows:

Issue 8. That the reasonable market value of the real estate at the time of the trade or exchange was $3,250.

Issue 9. That the reasonable market value of the 35 shares of stock in Bell Baking Company, Inc., at the time of the -trade or exchange, was $3,150.

The jury were instructed that, if they had “answered all or any of the foregoing special issues, numbers 1, 2, 3, 4, and 5 ‘Yes,’ ” then to answer the following Issue 10:

“Do you find from a preponderance of'the evidence that such representation, or representations, if any, were wilfully made (that is, knowingly and designedly made with evil intent and purpose), if made, by said Cole to said Butler? Answer: ‘Yes’ or ‘No.’” The jury answered the issue, “Yes.”

The jury further found as follows:

Issue 11. That the amount of appellee’s exemplary damages was $2,700.

Appellant’s requested issue 1. That appel-lee did not inspect the real estate conveyed to him by appellant before the delivery of the deed to same.

In the charge to the jury, the court assumed without objection on the part of appellant that the reasonable market value of the five notes, executed by appellee in part payment of the real estate, was $2,500, their face value. Appellant testified that such was their value. In arriving at the amouht of actual damages, the trial court added the face value of the notes, $2,500 to the $3,150 found by the jury to be the reasonable market value of the stock given by appellee in exchange for the real estate, and subtracted from this total the $3,250 found by the jury to be the reasonable market value of the real estate; the difference being $2,400. Thus the court applied the rule that the measure of damages in contracts induced by fraud for the trade or exchange of property is the difference in value between the property given and that received.

We sustain appellant’s first proposition that issue 1 should not have been submitted to the jury over the objection that no damages were shown to have resulted from the representation that the real estate involved was located within four blocks of the Scott & White Hospital. Appellee admits that no evidence was introduced to show whether the real estate would have had a greater value if located within four blocks of this hospital, insteal of seven blocks, as shown by the evidence. It is settled law that “both fraud and damage must concur to constitute actionable fraud, a common statement of the rule being that neither fraud without damage, nor damage without fraud, is suffi-’ cient to support an action.” 12 R. C. L. 240, § 10; Pasley v. Freeman, 3 T. R. 51; Hope v. Shirley (Tex. Civ. App.) 187 S. W. 973; Avery Co. v. Harrison Co. (Tex. Com. App.) 267 S. W. 254. Appellee counters with the proposition that the error in submitting this issue without its being supported by evidence is immaterial, since the judgment finds ample support in the false representations presented and found by the jury’s answers to'issues 2, 3, 4, and 5, each of which submitted a sepj arate and distinct ground of fraud. This contention cannot be sustained, because there is no specific finding of the jury that all or either of the false representations presented by these four issues induced appellee to make the contract, or that he would not have made the contract but for all or either of such representations. Issues 6 and 7, which presentí ed these two necessary elements of fraud, and the court’s instructions to the jury in connection therewith, first grouped the five separate grounds of fraud relied upon, and authorized the jury to give an affirmative answer to issues 6 and 7, if they had answered all the “foregoing five special issues” in the affirmative. In the alternative, the jury were authorized to give an affirmative answer to issues 6 and 7, if they answered either of the “foregoing five special issues” in the affirmative. Issue 1, to which the jury gave an affirmative answer, was erroneously submitted, because it had no support in the evidence, and it may have been that the jury gave their af-_ firmative answers to issues 6 and 7 upon their belief that the false representations presented by issue 1 was the sole cause which induced appellee to execute the contract, and that he would not have executed same but for that sole false representation. In other words, because of this grouping of all issues, including the one erroneously submitted and authorizing the jury to answer issues 6 and 7 in the affirmative, if they found that appellant made all the false representations presented by all of the five issues, and in the alternative, authorizing the same affirmative answer of the jury to issue 6 and 7, if they found that appellant made the false representation or representations presented by either of the five issues, including the one erroneously submitted, we are therefore unable to determine whether the jury based their affirmative answers to issues 6 and 7 upon their affirmative answers tp all five issues submitted, or upon any specific one of them; and their affirmative answers to issues 6 and 7 may have been based upon the affirmative finding of false representation as presented by issue 1 alone, which was erroneously submitted. And this same error applies with equal force to the manner of submitting issues 10 and 11, regarding exemplary damages.

By propositions 7 and 11, appellant contends that in submitting issues 8 and 9 the court so framed them as to arrive at the measure of damages applied by the court, that is, the difference in value between the property given and that received in the trade or exchange; but that issues 10 and 11 were so framed as to arrive at the measure of damages fixed by article 4004, which is the differ-t enee between the actual and the represented value of the real estate conveyed; “and that by reason of such conflict it was entirely impossible for the jury to arrive at a just verdict.” Neither measure of damages was submitted to the jury, but merely issues for findings of fact upon which the court might later apply the proper measure of damages. No doubt the court submitted the case in this manner because of appellant’s objection that the charge did not submit the proper measure of damages, that is, the difference in value between the property given and that received in the exchange, and we commend this manner of submitting the case.

Since we are reversing the case ^on other grounds, the question of the sufficiency of the pleadings to support the measure of damages applied by the trial court is immaterial. If deficient' in this regard, they may be amended before another trial.

By proposition .9, appellant contends that the evidence adduced would not authorize the submission of exemplary damages, and that the court abused its > discretionary power in submitting to the jury that issue. We do not sustain the contention. The evidence shows that appellant had been the trusted agent of appellee in handling his financial difficulties ; that he obtained the charter for ap-pellee incorporating the Bell Baking Company ; that appellee had the utmost confidence in appellant; that at the time of the exchange agreement appellee was relying on appellant as his then business associate to get the baking company out of its financial difficulties; that appellant made excuses, and did not show appellee the real estate before the trade was closed. And the evidence sustains the jury findings of false representations on the issues submitted. Article 4004; Hawthorne v. Walton (Tex. Com. App.) 30 S.W.(2d) 397; Whitehead v. Reiger (Tex. Civ. App.) 2S2 S. W. 651, affirmed (Tex. Com. App.) 6 S.W.(2d) 745.

We have carefully examined appellant’s remaining propositions, and find that neither of them presents error requiring a reversal of the ease. However, in view of another trial, we suggest that the instructions given in connection with issue 11 be eliminated, and that, ;in lieu thereof, the jury be merely told to answer issue 11 if they have answered issue 10 “Yes”; that exemplary damages be properly defined if requested; and that the amount of recovery of exemplary damages be limited as provided by article 4004.

For the reasons above stated, the judgment of the trial court will be reversed, and the cause remanded for another trial.

Reversed and remanded.


author: COBBS, J. SMITH, J. FLY, O. J.

text:
    LLOYDS CASUALTY CO. v. RODRIGUEZ.
    No. 8545.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 18, 1931.
    Rehearing Denied March 18, 1931.
    C. J. Andrews, of Sam Antonio, for appellant.
    J. R. Cade, of San Antonio, for appellee.
   COBBS, J.

Appellant sued appellee to set aside an award of the Industrial Accident Board of Texas granting compensation to Salvador Rodriguez, an employee and workman, because of an injury sustained by him while riding on a truck on a public highway, in the vicinity of Campbellton, Atascosa County, Tex., on October 1, 1929. It was alleged that the injury- occurred in due course of his employment with the United Oas Engineering Corporation, the assured.

The case was tried by the court without a jury, and, after hearing the evidence, the court awarded appellee compensation at $10.-38 per week for total disability for a definite period of 11 months from October 1, 1929, to September 1, 1930; additional compensation, . based upon 50 per cent, partial disability, for a definite future period of 12 months from September 1, 1930, at a fixed rate of $5.19 per week; $100 for medical services rendered, plus all costs of court. A lump sum settlement was denied; weekly payments are to be made therefore, and payments shall bear interest at the rate of 6 per cent from the date they accrue until paid.

• There is no need to set out the pleadings, because they were responsive.

This is a simple case on the facts. All the men 'were employees and workmen for the United Gas Engineering Corporation. Among the other workmen was Salvador Hurtado, who operated a truck for the United Gas Engineering Corporation, and carried laborers to and from work. The employer maintained. a camp between Pleasanton and Campbellton, in Atascosa county for his employees. The men would stay over night and have their breakfast at this camp, and Salvador Hurta-do, the truck driver, would transport them to work in the morning and bring them back to the camp at night. The driver at the time lived at Campbellton; the camp was ten or twelve miles from Campbellton, and the men were working close to Campbellton. On the day of the -accident, the driver of the truck stated he drove to Campbellton to get gas, in accordance with his custom, and to get some workmen. Appellee, who was the nephew of the driver, requested his uncle to take him along to Campbellton to visit his aunt, the wife of the driver, which was done. There were also some other employees on the truck. This was often 'done with the knowledge and consent of his employer. It was the driver’s duty to gather up the men at the camp at about 7 o’clock each morning after they had had their breakfast and transport them to work. He gathered the men in his truck on the morning of the accident, at the garage in Campbellton, where he got his usual supply of gas, and was transporting them to camp for their breakfast, as usual, after which, as stated, he would convey them to their daily work. Before reaching camp, the accident occurred when they were about five or six miles this side of Campbellton. An ice truck ra-n into them on the left-hand side. The United Gas Engineering Corporation’s truck was being driven on the right side of the highway. The result of the collision was that ap-pellee sustained a broken leg and has not been able to work since the injury. There is no use to state the facts concerning the injury, pain and suffering, because the evidence was sufficient on this point. Neither is it necessary to state what the doctors did for and to appellee. As to his pay, it was $3 per day for ten hours, and he worked seven days a week. He had been working for the corporation about a month and a half when the injury occurred.

The driver of the truck testified: “I was driving the truck for the company on the morning of the accident, at the time the accident occurred. I was being paid for that time. My pay began at the time I left Camp-bellton to go to camp. I always came from Campbellton to the camp. The men had to leave the camp and go to work; they1 always went to work from camp. It is not true that some days I didn’t work at all, and that some days I would work only four or five hours; I worked every day all day, and sometimes I worked nights. The laborers started to work at seven o’clock. As to what time I started to work, I started at different times; I had no regular hours; sometimes I would start very early in the morning, four or five o’clock, and work until late at night, and sometimes I would work all night.”

It was well understood that all those riding in the truck at that time were, and had to be, employees of the corporation, for no others were permitted to ride therein. Those 'employees, including appellee, had to get to work on that morning, and appellee was injured while being transported from Camp-bellton, where he had visited on his way, in a truck furnished by his employer, to camp, to eat breakfast, and then to be transported in the same truck to work.

At tlmtime of the accident, appellee was oil his way to camp to get his breakfast, after which he was to resume his place in the truck to be transported to" his work, and because of that reason he cannot be considered an employee when injured.

The facts in this case clearly show that ap-pellee was a workman employed by the United Gas Engineering Corporation, but not actually in the discharge of his duties at the time of the accident. He -was on his way to the company’s camp to get his breakfast before starting to work. He started from Campbell-ton that morning.

The judgment of the court is reversed, and here rendered in favor of appellant.

SMITH, J.

This suit arose under the Workmen’s Compensation Act (Vernon’s Ánn. Civ. St. art. 8306 et seq.). The United Gas Engineering Corporation was the employer, Salvador Rodriguez the employee, and (Lloyds Casualty Company the insurer. Rodriguez was awarded compensation by the trial court for accidental injuries, and the casualty company appealed.

Appellee was a day laborer employed by appellant in the construction of a gas pipe line through Atascosa county. Appellant maintained a camp near the construction work, for the use of appellee and other employees, who slept and had their meals at this camp. Ap-pellee was employed by the day and paid by the hour. His time began each morning when he left this camp for his work, and ended upon his return to camp for supper. He had no duties to perform for appellant, and performed none, from the time he returned to camp in the evening until he left the camp for work in the morning. This intervening time was his own, to do with as his personal pleasures prompted. At the time of the accident he had been on this job about a month and a half, during which he had not varied ■from the routine above set out.

Appellee and all other employees were daily transported from camp to work and back to camp, in a truck operated by appellee’s uncle, Salvator Hurtado, and rented by him by the hours to the employer for that and other hauling purposes. Hurtado’s family resided at Campbellton, 12 miles distant from the camp, and he often drove to Campbellton for the night after hauling the laborers from their work to their camp.. Sometimes some of the employees, after their day’s work was over, would go with Hurtado in his truck to Camp-bellton and spend the night there with their families, or go there on other personal errands. The truck was under Hurtado’s control, and he allowed any one he pleased to make these trips with him.

On the occasion in question, Hurtado carried the employees from their work to th§ camp at the close of the day’s work. After supper he drove into Campbellton to spend ■the night with his family, and to do some errands for his employer. Appellee, who is his nephew, asked permission of Hurtado to go with him in his truck for the purpose of visiting an aunt, Hurtado’s wife, which he did. After spending the night at Campbellton with his uncle and aunt, appellee started back to camp the next morning with Hurtado. Before reaching camp Hurtado’s truck collided with another, and as a result of that accident appellee received the injuries for which compensation was awarded him in the trial court. The foregoing constitutes a true statement of the facts in this eas,e.

It is obvious from these facts that appel-lee was injured • while clearly outside the course of his employment. His duties under the terms of that employment were suspended upon his safe return to camp the evening before, and could not be resumed until 7 o’clock the next morning, at which time his duties required him to offer himself at the camp for transportation to his work through the medium furnished by the employer for that purpose. It was his privilege, as a free agent, to spend the intervening time as and wherever he pleased. In the exercise of that privilege he left the premises furnished him by his employer and ventured upon the purely personal errand of visiting his relatives in another community, and in pursuit of this venture was injured before returning to the base of his employment.

A majority of this court hold that, under the undisputed facts of the case shown above, appellee was not injured while in the course of his employment, and is therefore not entitled to recover. Wynn v. Surety Co. (Tex. Civ. App.) 26 S.W.(2d) 691, and authorities there cited. It is true that appellee rode on this errand in a truck engaged in part in the service of the employer, on permission given as a personal accommodation to him on the part of the driver of the truck, but this, fact can have no bearing upon the question decided.

The judgment must be reversed, and, as the case appears to have been very fully developed and the facts are fully found by the trial court as herein set out, judgment .will now be rendered that appellant go hénce, without day and recover all costs of appel-lee.

FLY, O. J.

I concur in the foregoing opinion of Associate Justice SMITH.


author: CONNER, C. J.

text:
    RIGGS et al. v. WILLIS et al.
    No. 12524.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 24, 1931.
    Rehearing Denied March 14, 1931.

      Marshall & King, of Graham, and Bulling-ton, Boone, Humphrey & King, of Wichita Falls, for appellants.
    Kilgore & Rogers, of Wichita Falls, and Fred T. Arnold, of Graham, for appellees.
   CONNER, C. J.

We have carefully considered the evidence in the record and feel unable to say that the trial court’s findings of fact are not súf-ficiently supported; and those findings and the court’s conclusions of law are so full and clear that it becomes unnecessary to undertake to add thereto. Accordingly, the trial court’s findings of fact and conclusions of law are adopted, and the judgment is affirmed.

On Motion for Rehearing.

The point that seems to be especially stressed in the motion for rehearing is embodied in the contention that the evidence shows that the appellee E. D. Willis is es-topped from acquiring title to the 9.9-acre strip of land in controversy. We have read the case of Mars v. Morris, 48 Tex. Civ. App. 216, 106 S. W. 430, and feel no inclination to criticize the rules relating to estoppel as set forth in the opinion in that case. But in our reading of the evidence in the case before us we felt unable to say that the trial court erred in concluding that the deeds under which appellee claims define the extent of the boundary of the lands described. It is true that the evidence does show that Willis pointed out the fence on the west line of the Graham lands as the east boundary line of the original lease, but there was evidence at least tending to show, as we thought, that the conversation in which this occurred was incidental and not asserted as a fact upon which the original agreement was founded. It is to be remembered that in the conveyances of the lease under which the appellee claims there is no call for the fence or the west line of the Graham lands. There was at the time a known excess in the Kirkland lands, and we felt unable, and still feel unable, to say that the trial court erred in concluding under all of the circumstances that the estoppel claimed was not sufficiently definite and certain to preclude appellees’ recovery.

The motion for rehearing is accordingly overruled.


author: ALEXANDER, J.

text:
    MAXWELL’S UNKNOWN HEIRS et al. v. BOLDING et al.
    No. 1006.
    Court of Civil Appeals of Texas. Waco.
    Feb. 6, 1931.
    Rehearing Denied March 12, 1931.
    See, also 11 S.W.(2d) 814.
    H. E. Chesley, of Hamilton, and Wilkinson & Wilkinson, of Brownwood, for appellants.
    A. R. Eidson, of Hamilton, for appellees.
   ALEXANDER, J.

This was a suit for partition filed in the district court of Hamilton county by Lillian Bolding, James Maxwell Bolding, and James C. Williams against the unknown heirs of James Maxwell, deceased, and others, for the partition of'certain real property in Hamilton county, which property formerly constituted the community estate of William Maxwell and wife, Mollie Maxwell. Both William Maxwell and Mollie Maxwell are now deceased, the said William Maxwell having died first. Under the will of Mrs. Mollie Maxwell, all of her property was devised to Lillian Bolding, James Maxwell Bolding, and James C. Williams. There is no dispute over her share of said estate. The contest is over the estate of William Maxwell, deceased.

William Maxwell died in November, 1915, leaving a will in which he willed his share of the community property to his wife, Mollie Maxwell, during her life, and at her death whatever remained on hand and unused was willed in equal portions to John ’Maxwell, James Maxwell, Daniel Maxwell, Betsy Ralls, Mag Herring, Mary Carr, and W. T. Bolding. The contest in this case is over that portion of the William Maxwell estate so willed to W. T. Bolding. W. T. Bolding was named as independent executor in said will without bond. He qualified and acted as such until his death in 1925. At his death C. J. James was appointed administrator de bonis non and continued to administer the estate until the administration thereof was closed. Mrs. Mollie Maxwell died in 1927. The appellants are the .surviving heirs of John Maxwell, James Maxwell, Daniel Maxwell, Betsy Ralls, Mag Herring, and Mary Carr. The appellees Lillian Bolding and James Maxwell Bolding are the surviving wife and son, respectively, of the said W. T. Bolding, deceased.

The appellants claimed six-sevenths of the estate of William Maxwell, deceased, under and by virtue of the terms of his will, and in addition they claimed that at the time W.' T. Bolding qualified as executor of the said estate he received as assets thereof a large amount of cash and promissory notes'and aft-erwards, during the life of Mrs. Mollie Maxwell, collected a large amount of rents from said property. They allege that W. T. Bold-ing as such executor failed to keep a strict and accurate account of the assets so coming into his hands and failed to account for the rents so collected by him. They further allege that the funds so received and unaccounted for by him exceeded the value of. the portion of said estate so willed to him and that appellants are entitled to charge the same as an offset or retainer against his por-, tion of said estate, as against his heirs Mrs. Lillian Bolding and James Maxwell Bolding, who are now seeking to recover his portion of said estate.

A trial was had before the. court which resulted in a judgment in favor of the appellees for partition of said property awarding to the appellees the whole of the estate owned by Mrs. Mollie Maxwell and an undivided one-seventh interest in the estate of William Maxwell, deceased, and awarding to the appellants ■ six-sevenths of the property belonging to William Maxwell, deceased, and denying appellants’ plea of offset or retainer. The trial court hied findings of fact and conclusions of law in which it was found that all of the property belonging to the estate of William Maxwell and his wife at the time of the death of William Maxwell, deceased, and not now on hand, was used by Mollie Maxwell and W." T. Bolding for the support and maintenance of the said Mrs. Mollie Maxwell, the payment of taxes, and the upkeep of the property, and that W. T. Bolding did not appropriate to his own use any of said property, nor misapply or convert the same. The court further found that the rents and revenues from said property were used for the support of the said Mrs. Mollie Maxwell and the upkeep of the property. These findings of the trial court are challenged by appellants as being unsupported by the evidence.

There was evidence that at the time W. T. Bolding qualified as executor of the estate of William Maxwell, deceased,' he received as cash on hand approximately $1,200. The inventory and appraisement filed by the executor showed that the estate owned notes of the face value of approximately $6,000 and the estate only owed debts of approximately $600. Some of these notes were never collected, but the evidence does show that the executor did collect about $3,400 on these notes. So far as the record shows, said executor did not keep a strict account of the collections made by him, and his heirs were unable to show the exact manner in which he disposed of said money so coming into his hands. It is the contention of the appellants that under the law the executor was required to keep a strict and accurate account of all the assets coming into his hands and of the disposition thereof as made by him and that he should be charged with all of the property shown by the inventory to have come into his hands and unaccounted for by him.

It is doubtless true that an administrator or trustee in handling trust property is required to keep a strict and accurate account of such assets and that he is chargeable with all assets coming into his hands and unaccounted for by him. 39 Cyc. 498. If he fails to so account for such assets, the same may be charged against his share of the estate. 47 C. J. 461-475; Barkley v. Stone (Tex. Civ. App.) 195 S. W. 925; Japhet v. Pullen (Tex. Civ. App.) 133 S. W. 441; Oxsheer v. Nave, 90 Tex. 568, 40 S. W. 7, 37 L. R. A. 98; Moore v. Moore, 89 Tex. 29, 33 S. W. 217; Campbell v. Campbell (Tex. Civ. App.) 145 S. W. 638. In an action against such trustee or administrator to compel an accounting of the funds so received, the burden is upon such trustee or administrator to make a proper and satisfactory accounting of the funds shown to have come into his hands. 39 Cyc. 476. However, one seeking an accounting and who charges fraud or maladministration has the burden of establishing such charges. He must at least prove that the administrator or trustee received the funds. Ladd v. Stephens, 147 Mo. 319, 48 S. W. 915, at page 921; 24 C. J. 960, § 2381. The mere fact that certain notes were listed in the inventory as assets of the estate would not be conclusive proof of the receipt of the proceeds thereof by the executor.

Was the evidence sufficient to support the finding of the court that the executor had accounted for all of the funds that had come into his hands? The will of William Maxwell, deceased, provided as follows:

“2. All the property that myself and wife own in our community property, one half belonging to myself and the other half to my wife Mollie Maxwell; And I wish and so will, devise and bequeath all my interest in our community property, and all property I possess and own to my wife Mollie Maxwell to be owned and used by her and the rents, profits and revenues thereof to be used by her for her support, maintenance, comfort, and care during the period of her natural life.
“3. Whatever may remain of my property above willed to my wife Mollie Maxwell and unused by her during her life and that may be on hand at her death, I will devise and bequeath to each in equal proportion and part to my brothers, John Maxwell, James Maxwell, Daniel Maxwell, and my sisters Betsy Ralls, Mag Herring, Mary Carr, and my nephew W. T. Bolding;. and if either of said parties should die before I do then the part of each party shall be in equal part to his heirs.”

By the terms of this will the executor was to use said property and the rents and revenues therefrom for the support of Mrs. .Mollie Maxwell during her lifetime. She lived for about twelve years after the death of her husband. She was an invalid during all of this time. Considerable money was expended by the executor in providing her with doctors, nurses, medicine, and other necessities of life. The record shows that during the latter part of her life the income from the property was not sufficient to support her and to provide the necessary upkeep for the property. The executor expended $6,000 in repairing one of the business houses belonging to the' estate. Other buildings were repaired from time to time. These repair bills were more than sufficient to consume the entire amount of cash on band at the time the executor qualified, together with the money collected on the notes belonging to the estate. The taxes and insurance premiums on the property were heavy. These items of expense were paid by the executor. We think the heirs of the executor have therefore satisfactorily accounted for the funds shown to have come into his hands.

The trial court, in passing on the question as to whether or not the heirs of the deceased executor had satisfactorily accounted for all of the funds that had come into his hands, had the right to take into consideration all of the surrounding facts and circumstances. The testator had reposed absolute confidence in, the executor and had provided that the executor should act independent of the probate court and that he should not be required to make a report to that court. The evidence shows that the executor was a man of unquestionable honor and integrity. He administered the estate for ten years, during the life of Mrs. Mollie Maxwell, the life tenant. She never made any complaint of the manner in which he handled the estate. The appellants alleged that the estate of said executor was insolvent at the time of his death, and have thus dispelled any presumption of fraud that might have arisen from a sudden enhancement of his own estate. The first complaint of his having failed to keep a proper account of the manner in which he had handled said estate arose approximately five years after his death. It is not surprising, therefore, that his heirs, were unable to give a detailed report of each item of cash received and disbursed by him. Wé think the finding of the trial court that the executor did not appropriate any of said funds to his own use and benefit and that all of such funds so coming into his hands were used for the support of Mrs. Mollie Maxwell and in 'the maintenance of the property are amply supported by the evidence.

Finding no error in the record, the judgment of the trial court is in all things affirmed.


author: GRATES, J.

text:
    CRAWFORD v. TRAMONTE.
    No. 9502.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 16, 1931.
    Rehearing Denied March 12, 1931.
    A. E. Masterson, of Angleton, and G. Frank Dipper, of Houston, for appellant.
    Alfred A. Borofsky, of Galveston, and Rucks & Enlow, of Angleton, for appellee.
   GRATES, J.

As a correct statement of the cause, this one, which the appellee adopted, is taken from appellant’s brief: “T. H. Crawford filed suit in the district court of Harris County, Texas, against A. A. Saveli on notes owing by the said A. A. Saveli to T. H. Crawford, and T. H. Crawford had issued out of the district court of Harris County a writ of attachment, which said writ was levied by the Sheriff of Brazoria County, Texas, on certain cattle branded with the registered brand of A. A.- Saveli, as the property of the debtor, A. A. Saveli, and subsequent to said levy, one Dominick Tramonte filed his claimant’s oath and bond as to said cattle and said cause was docketed in the district court of Brazoria County, styled T. H. Crawford vs. Dominick Tramonte, and upon trial of right of property in Brazoria County before the court without a jury, judgment Was rendered in favor of the appellee, Dominick Tramonte, and to which judgment T. H. Crawford, appellant, and plaintiff below, duly excepted in open court and gave notice of appeal to the Honorable Court of Civil Appeals of the First Supreme Judicial District of Texas, and filed his appeal bond as required by law. And this cause has been properly brought to this court by appeal.”

As indicated, the trial court heard the cause on the facts without a jury’s aid; • no request was made for findings of fact and conclusions of law, and none were filed, wherefore, if there is in the record sufficient evidence to sustain the judgment so rendered below on any theory of the case, that result will follow on appeal. Article 2208, R. S. 1925, note 13 on page 845, vol. 6, and the authorities therein correlated; Pennington v. Fleming (Tex. Civ. App.) 212 S. W. 303 ; Robertson v. Lee (Tex. Civ. App.) 230 S. W. 730; Head v. Moore (Tex. Civ. App.) 232 S. W. 362.

After most painstaking study of the record, inclusive of the statement of facts, we conclude that there is such a theory and supporting evidence, it being this:

That about June 9, of 1927, Saveli and Tramonte entered into a conditional contract of partnership touching the cattle involved, which was still uncomplied with and execu-tory when the writ of attachment herein was levied on them September 2 of 1&29 under the terms of which (1) Tramonte was to and did buy the cattle as his individual property for $4,000— $2,000 in cash -and $2,000 in deferred payment notes, Saveli not to and never acquiring any sort of interest in the original herd; (2) when the purchase money — including interest thereon and all other expenses of the venture — had been refunded to Tram-onte out of -the cattle, Saveli would, thenceforth own a one-half interest in the increase thereof, but such advanced purchase money had not at the date of this levy been repaid— more than $1,200 of the outlay being still due to Tramonte — wherefore, the condition precedent to his becoming vested with any title in even the increase not having been met, under well-settled authority, no proprietary interest in the stock whatever had then become vested in Saveli; hence they were not subject to attachment for a debt of his. Millers’ Indemnity Underwriters v. Patten (Tex. Com. App.) 250 S. W. 154; Irelan v. Smoot, 132 Old. 270, 270 P. 29; Ottawa County National Bank v. Bouldin, 117 Okl. 104, 246 P. 434; Coens v. Marousis, 275 Pa. 478, 119 A. 549 ; 47 C. J., Partnerships, paragraph 48, page 675, and paragraph 141, page 733; 13 C. J., Contracts, paragraph 11, page 245, and paragraph 15, page 246; Texas Jurisprudence, vol. 5, Attachments, paragraph 12, page 176; Buzard & Hilliard v. McAnulty & Mosty, 77 Tex. 439, 14 S. W. 138; Death v. Uttley, 66 Tex. 82, 17 S. W. 401. '

While there was much opposing testimony that may be conceded to have in a measure tended otherwise, including the urgently stressed circumstance that Saveli put on the cattle a mark and brand that had been recorded in Brazoria county in his own name, the probative effect of it all was at most only prima facie, the countervailing proof the other way, which it is deemed unnecessary to recount here, being clearly sufficient for a finding that the actual contract between him and the appellee was as just stated; the judg'ment having been a general one in the latter’s favor, that finding will be deemed to have been made as in support of the court’s action.

Appellant’s contentions for a contrary holding are, in final analysis, all referable to and based upon R. S. article 3999, as construed in the leading case he cites of Oity National Bank v. Tufts, 63 Tex. 113, on the idea that the evidence conclusively' — or to such extent that any other finding would be clearly wrong —shows that the transaction between Saveli and Tramonte involved either such a loan of the cattle themselves or the purchase money therefor to the former by the latter, or such a reservation or limitation in the use thereof by Saveli by way of condition, reversion, remainder, or otherwise, as came within the purview of that statute; but as indicated, •that hot being the compelling effect of the evidence as a whole, this court must conclude —under the abundantly supporting testimony —that the contrary finding was made below, that Saveli had in his possession and cared for the stock ail the time under no such condition of any sort, but merely as the agent of Tramonte, the exclusive owner thereof, wherefore article 3999 has no application to the state of ease thus made. Article 3999, R. S. 1925 ; Templeman v. Gibbs, 86 Tex. 358, 24 S. W. 792, 793; Eason v. Garrison & Kelly, 36 Tex. Civ. App. 574, 82 S. W. 800, 801; paragraphs 8, 9, and 18, Bailments, Texas Jurisprudence, vol. 5, pages 1019, 1020, and 1029; Cox v. Patten (Tex. Civ. App.) 66 S. W. 64; Alsbury v. Alsbury (Tex. Civ. App.) 211 S. W. 650; Woodward v. San Antonio Traction Co. (Tex. Civ. App.) 95 S. W. 76.

As applicable to the different facts thus here obtaining, the distinction between this kind of a cause and the Tufts Case, supra, on the legal equivalent of the same state of proof, is so directly and plainly pointed out by our Supreme' Court in Templeman v. Gibbs, above cited, that this much of that opinion is quoted as settling the controversy here: “As used in the statute, the word 'reservation’ necessarily applies to the real or pretended right or interest of the owner out-of possession; while the word ‘limitation’ must apply to the restriction, real or pretended, on the right of the person in possession, to the property or its use. Under the facts existing in Bank y. Tufts, 63 Tex. 116, and Sinker, Davis & Co. v. Comparet, 62 Tex. 475, it was held that the statute applied. Those, however, were cases of conditional sales,, in which the property was placed in possession of vendors, to use as their owner, and of which they were to become owners if they paid the purchase money in accordance with •the contract of sale. In such eases the buyer acquires an interest, defeasible though it be, and the seller’s right to repossess depends on a condition. By recent statute, such transactions are declared to be chattel mortgages, and subjected tp the same rules and requirements in order to protect the sellers against creditors of and bona fide purchasers from the buyers. Sayles’ Civil St. art. 3190a. The contract, shown by the statement, made the combined flock common property of Mrs. Ward and Templeman, and constituted them tenants in common. From such a contract and such relation, no ‘reservation’ or ‘limitation,’ by way of condition, reversion, remainder, or otherwise, could arise, whether those words be used in a technical or in any other popular sense. No reservation or limitation of the use of the property existing, the statute has no application, and courts have no right or power to apply it to a state of facts not contemplated.”

Since these conclusions determine the mer- 1 its of the appeal, further discussion is forborne. The trial court’s judgment has been affirmed.

Affirmed.