text:
    Robert F. RICE, Sr., Appellant, v. The MORRIS PLAN LIFE INSURANCE COMPANY, Appellee.
    No. 16747.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 23, 1966.
    Rehearing Denied Oct. 21, 1966.

      Tilley, Hyder & Law, and Thos. H. Law, Fort Worth, for appellant.
    Kelly, Morris, Walker & Maynard, and Jearl Walker, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

This suit was for benefits claimed to be due and payable on a life insurance policy covering Robert F. Rice, Jr., who died as the result of a gunshot wound on May 17, 1963. The trial court rendered a judgment non obstante veredicto in favor of the insurer, The Morris Plan Life Insurance Company, on the theory that the death resulted from suicide as a matter of law, which precluded recovery.

If in a test of the evidence we become convinced that the fact of suicide was established as a matter of law, judgment should be affirmed. In this particular case the only possible hypothesis would be that death was the result of either accident or suicide.

We are frank to state that but for the opinion of the Supreme Court in Prudential Insurance Company of America v. Krayer, 366 S.W.2d 779 (Tex.Sup., 1963) reversing Krayer v. Prudential Insurance Company of America, 360 S.W.2d 844 (Fort Worth Civ.App., 1962) our conclusion in the instant case would be contrary to that of the trial court. This would be because of the absence of direct evidence which established that the deceased actually did intend to destroy his own life at the particular time and place in question — and that he did in fact accomplish such intent by shooting into his own head with his own hand the bullet which caused the wound from which he died. In view of the decision of the Supreme Court in Krayer our conclusion is that the jury necessarily had to resort to pure fantasy and speculation to conclude that the deceased died as the result of a gunshot wound which was accidently inflicted ; and that as a matter of law a “take nothing” judgment in favor of the insurance company was compelled in that the fact of suicide was established as a matter of law.

In arriving at such conclusion we have recognized and taken into consideration our obligation to disregard evidence in favor of the insurance company on the material issue where there is contradictory evidence in favor of the beneficiary under the insurance policy. We do not, however, disregard evidence in favor of the insurance company which is not in dispute.

With such done we have the circumstance on Friday May 17, 1963, of a sixteen year old youth, student at a local high school, whose grades had dropped to such an extent that he was aware of the necessity for, and had reconciled himself to attending summer school in 1963 to do “make up” work; who within a few days of said date had been disciplined or corrected by school authority as the result of improper treatment of a school typewriter; who was scheduled to participate in a conference with his father and an assistant school principal in the office of said official on Monday, May 20, 1963 concerning the difficulties he was experiencing; who in a conversation with a desk-mate friend at about the noon hour on May 17th stated that it was his intent to shoot himself; who experienced a mishap with the automobile of his father (used to transport himself to and from school) on his way home at the end of the school day — in that as result of a defective hood the wind blew the hood up so that it struck against another part of the car “denting” the hood; who arrived at his home and within a few minutes closeted himself in a bedroom where he removed a loaded .38 calibre revolver from its place of storage and was at a point removed therefrom where he could sit on a bench; and who was shot in the head by a bullet therefrom, as result of which death was instantaneous. In connection with what has been said hereinabove we recognize that there was evidence which would entitle a fact finder to conclude that the youth was not emotionally disturbed, unduly at least, by any trouble he had experienced at school, or by the incident as the result of which the automobile was damaged.

The revolver in question was one with which the youth was familiar, having been acquainted therewith in actual field use under the instruction of his father. He had, however, been instructed not to “play with” nor handle the revolver in the absence of his father.

In a reconstruction of some of the circumstances relative to the firing of the fatal shot it was established that the revolver had been fired at a forty-five (45) degree angle, pointing upward, so that the bullet therefrom — after passing through the head of the deceased — struck the wall about five feet from the floor immediately behind a bench situated against the same wall. Further, the bullet entered the deceased’s forehead at about the center and passed out of the back of his head about the back hairline at approximately the juncture of the spine. The nature and shape of the wound at point of bullet entry and presence of powder particles inside the wound were of such nature as would have necessarily required the muzzle of the gun to be either adjacent or in near proximity to the head when it was discharged. The shell was so marked by the firing pin as to establish that the revolver had been at “full cock” when the force was applied which occasioned the striking of the pin against the loaded shell. In the instant case there was conflicting evidence upon the matter of whether jarring as by a drop on the floor would or would not permit or cause the revolver to fire. Therefore, we are obliged to treat it as a weapon which would fire as the result of such an occurrence.

It is the theory of the insurance company that the deceased youth held out in front of his forehead the “cocked” revolver, and intentionally discharged it by pressure on the trigger by a thumb. The theory of its adversary is that he dropped it while in a “cocked” position to that it struck butt-foremost against the carpeted floor and as result thereof was accidentally discharged.

To find in accord with the latter theory it would be necessary to believe that the deceased bent over to regain control of the dropped revolver so quickly (whether from a seated or standing position) that he simultaneously got his forehead in close proximity to its barrel when the butt struck the floor. The jury would, furthermore, necessarily have been obliged to believe that in grasping for the falling weapon the deceased tilted his head forward much further than would be the case as applied to one looking at an object he was seeking to grasp. Evidently the jury accepted such theory for their finding was in accord. But, as previously stated, it is our opinion that in order to so find the jury had to resort to pure fantasy and speculation. Under evidence, aside from speculation, a judgment of suicide was compelled. The jury’s finding having been to the contrary the trial court correctly rendered judgment non ob-stante veredicto.

Judgment is affirmed.


source: Caselaw Access Project

author: RENFRO, Justice.

license: Public Domain

text:
    W. Vincent MURPHY, Appellant, v. L. L. LOWACK et ux., Appellees.
    No. 16754.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 23, 1966.
    Rehearing Denied Oct. 21, 1966.
    Thornton, Thornton & Fisher, and Rick P. Fisher, Olney, for appellant.
    Schenk & Wesbrooks, and Perry Wes-brooks, Wichita Falls, for appellees.
   OPINION

RENFRO, Justice.

On the 29th day of November, 1961, Murphy, plaintiff below and appellant herein, entered into a written contract with Low-ack, defendant and cross-plaintiff below and appellee here, whereby plaintiff agreed to sell and defendant agreed to buy certain described property in Archer City. For convenience, Murphy will be referred to as plaintiff and Lowack as defendant.

Under the terms of the contract seller was to furnish buyer with abstract of title within 30 days; buyer to have 15 days after delivery for examination and seller to have 15 days to meet title requirements. Paragraph 4 provided that “If good and marketable title to said property is not furnished within the time herein stipulated, then Buyer, at his option, may accept such title as Seller is able to make or terminate this agreement * *

On June 4,1964, plaintiff filed suit against defendant in which he alleged defendant had defaulted in monthly installments and asked for specific performance, or alternatively for damages.

Defendant answered that he ceased making payments because plaintiff, though often requested, never furnished him with an abstract of title. By cross-action he asked for judgment for enhanced value of the property by reason of improvements made in good faith by defendant on plaintiff’s continued assurance abstract of title would be furnished.

Based on jury verdict, judgment was rendered for defendant for amount of enhanced value, less reasonable rental value, by reason of good faith improvements.

The first issue submitted to the jury read: “Do you find from a preponderance of the evidence that L. L. Lowack exercised his option to accept such title as W. Vincent Murphy was able to make under the contract entered into between them dated November 29, 1961 ? ” The jury answered, “No.” In answer to issues Nos. 2, 3 and 4 the jury found that defendant, from the date of the execution of the contract, continuously insisted and demanded that plaintiff furnish an abstract of title but plaintiff failed and refused to furnish defendant a title abstract. In answer to issues Nos. 7 and 8 it was found that defendant, while in possession and before plaintiff filed suit, made valuable and permanent improvements in good faith. Issues Nos. 9 and 10 determined the enhanced value due to the good faith improvements, and issues Nos. 11 and 12 determined the reasonable monthly rental value of the property to defendant while he occupied the property.

In his first point of error plaintiff contends defendant, as a matter of law, exercised his option to accept such title as plaintiff was able to make, and, therefore, the court should have instructed a verdict for plaintiff.

The record reflects a conflict in the evidence as to whether or not defendant ever exercised his option to accept whatever title plaintiff was able to make.

Plaintiff and defendant were good friends. Defendant did considerable work, usually carpentry and plumbing, for plaintiff. Various trades or deals between the two culminated in the execution of the contract of November 29, 1961.

After the contract was signed, defendant sold one of the lots set out in the contract, and the house situated thereon, back to plaintiff. A car swap was involved in that trade.

Plaintiff testified defendant never requested an abstract until after defendant had defaulted in payments on the property.

Defendant testified he, several times monthly from a period beginning ten days after date of the contract until the suit was filed, insisted to plaintiff that an abstract be furnished. Plaintiff always promised but never performed. Defendant’s wife, too, insisted on an abstract. It was at her suggestion that defendant discontinued making the monthly payments. About the time plaintiff filed suit a partial abstract was furnished defendant. An abstract showing good and marketable title in plaintiff never was furnished defendant.

Defendant testified he would not have moved on the premises and made permanent improvements except for plaintiff’s repeated assurances that abstract of title would be forthcoming.

It is undisputed defendant took possession of the property and began making improvements with the consent of plaintiff. In fact, one of their many agreements was plaintiff’s promise to help defendant secure building materials, etc.

It is undisputed that plaintiff never tendered a warranty deed to defendant and that he did not deliver even a partial abstract of title until suit was filed.

There was ample evidence to support the jury finding that defendant did not exercise his option to accept such title as plaintiff was able to make.

Considering the whole record and the nature of the business relationship between the parties, we think the issue of exercising an option was a fact question for the jury rather than a question of law.

In Kuykendall v. Schell, 224 S.W. 298 (Tex.Civ.App., 1920), it was held: “* * the delay on the part of plaintiff and his assignors to assert their right of rescission did not deprive them of such right. Their repeated demands for deeds, their continuing to make payments after they had paid the one-fourth of the purchase money and the deeds had not been executed, show they did not desire a rescission if they could obtain title to the land. The obligation of appellant to deliver the deeds and abstract was a continuing obligation, and when the purchasers, after repeated demands, failed to obtain their deeds, they had the right to then for the first time demand the return of purchase money paid by them. No equities have arisen in favor of Kuykendall by plaintiff’s delay in asserting the right of rescission, and he should not be allowed to escape liability by the forbearance of plaintiff.”

In W. E. Stewart Land Co. v. Terrell, 266 S.W. 604 (Tex.Civ.App., 1924, writ dism.), it was held: “Appellants had the right to deliver the warranty deeds called for in the contract, and then demand the payment of the purchase price, and not before. Ap-pellee had his contractual right to demand the deed before he was required to pay one cent more of the purchase money. There could be no default up to that time, on the part of appellee, that matured the obligation or justified the foreclosure.”

In the instant case the evidence is undisputed that defendant paid $500 cash upon the execution of the contract and made numerous monthly payments. Under all the facts as shown in the record, the above cases are particularly applicable to the instant case.

Also the facts of this case show a situation where equitable relief is proper. Moore v. Giesecke, 76 Tex. 543, 13 S.W. 290 (1890); Lipscomb v. Fuqua, 103 Tex. 585, 131 S.W. 1061 (1910); Chaney v. Coleman, 77 Tex. 100, 13 S.W. 850 (1890).

Issue No. 1 was properly submitted. The point of error contending otherwise is overruled.

In point No. 16 plaintiff argues that his claim against defendant for reasonable rental value was not properly submitted to the jury. We find that plaintiff’s claim was properly submitted in issues Nos. 11 and 12.

In other points plaintiff attacks some issues submitted to the jury as being undisputed and/or evidentiary only. The issues mentioned in the forepart of this opinion were material. The answers to said issues were sufficient to support a judgment for defendant. Even if it be conceded that some other issues submitted were not material, still, under the record, their submission was not reversible error. There is no showing that submission of such issues was such a denial of the rights of plaintiff as was reasonably calculated to cause and probably did cause the rendition of an improper verdict or judgment. Rule 434, Texas Rules of Civil Procedure.

All points of error have been considered and are overruled.

Judgment affirmed.


author: WILSON, Justice.

text:
    William W. HUGHES, Appellant, v. Janie B. HUGHES, Appellee.
    No. 4498.
    Court of Civil Appeals of Texas. Waco.
    Oct. 6, 1966.

      Stafford, Freedman, Hamlin, Gay & Whitham, Donald G. Gay, Dallas, for appellant.
    Leonard E. Hoffman, Jr., Dallas, for ap-pellee.
   OPINION

WILSON, Justice.

Defendant husband appeals from the judgment in a divorce case. There is no statement of facts except a transcript of evidence on a motion for new trial hearing. We affirm.

Appellant says the court erred in denying him a jury trial. The judgment recites jury trial was waived by both parties. There is no bill of exception; there is no showing appellant, who was not represented by counsel at the trial, complained of proceeding without a jury at the trial; there is no trial court record of evidence. In the absence of an objection at the trial or a record of the proceedings at the divorce hearing, the point is not preserved for review, and it may not be reached by a transcript of evidence on a motion for new trial hearing. Kruegel v. Johnson, Tex.Civ.App., 112 S.W. 774, writ ref.; Barton v. R. P. Ash & Co., Tex.Civ.App., 154 S.W. 608, syl. 1; 3A Tex.Jur.2d Appeal and Error, Sec. 108.

The recital in the judgment is that a jury trial was waived. There was positive evidence on the new trial hearing that appellant expressly waived a jury trial in open court. Appellant testified that nothing was said to him and he said nothing about a jury, and he denied he waived a jury. This record, if considered, does not reflect error on the point. Andrle v. Fajkus, Tex.Civ.App., 209 S.W. 752; Edwards v. Ward Associates, Inc., Tex.Civ.App., 367 S.W.2d 390, 392, writ ref. n.r.e.; 49 C.J.S. Judgments § 437, p. 869; 3 Tex.Jur.2d Appeal and Error, Sec. 423.

There is a point that the court erred “in requiring appellant to leave the presence and hearing of the court and witnesses during the trial.” Again there is no record preserving the point. The evidence at the new trial hearing, if it be considered, shows only that the court directed appellant, for a reason not shown, to stand by the rear door of the courtroom. There is no showing of the stage of proceedings at which the direction was given. No suggestion of abuse of discretion is presented.

The final point concerning attorney’s fees is not preserved except by an assignment in the motion for new trial and evidence on the hearing of the motion. In the absence of a showing of the evidence at the trial on the merits the point does not reflect error. Appellant’s apparent position is that he is not required to comply with procedural rules as to objections in the trial court because his counsel withdrew before trial and he was not there represented by an attorney. A record reflecting preservation of complaints, when required, is necessary whether a litigant is represented by himself or by counsel, because this prerequisite is mandatory and essential, and does not involve discretion of the appellate court.

Affirmed.


author: CHADICK, Chief Justice.

text:
    LOUISIANA & ARKANSAS RAILWAY COMPANY, Appellant, v. Haze LITTLEFIELD, Appellee.
    No. 7744.
    Court of Civil Appeals of Texas. Texarkana.
    July 19, 1966.
    James N. Haltom, Wheeler, Watkins, Hubbard & Patton, Texarkana, for appellant.
    Joe W. Lovelace, Linden, for appellee.
   CHADICK, Chief Justice.

This is a common law negligent tort damage suit. The judgment of the trial court awarding the plaintiff a recovery of $1500.00, costs, etc., from the defendant is affirmed.

The plaintiff plead that the railroad company had negligently allowed its right-of-way to become covered with combustible material, dry grass, weeds, etc., and that its train caused a fire to originate on the right-of-way from whence it spread to plaintiff’s adjoining land, and that such negligence was the proximate cause of the destruction of substantial acreage in plaintiff’s pastureland seeded to hairy vetch and yellow hop clover. Special issues were propounded to the jury submitting plaintiff’s theory of the case. The answers to the special issues established as true the facts plead by the plaintiff.

Appellant railroad’s Point of Error No. One presents for review the absence of evidence supporting the jury’s verdict (Special Issue No. One) that the train set fire to its right-of-way. In arguing the point the railroad makes an analysis of the many cases that have arisen in this jurisdiction in which circumstantial evidence is relied upon to show the origin of a fire under investigation. From the analysis it draws the conclusion that certain “elements” or factors necessarily must be proven in substantial evidence cases. The conclusion is stated in this language, to-wit:

“In dealing with cases where fire was allegedly caused by sparks from a railroad train, the Texas courts have not required the eye to have followed the actual spark or fire that left the locomotive and started the fire on the right-of-way, but the Texas courts have held that the following circumstances concerning the origination of the fire must be shown:
(1) The passage of the train,
(2) Smoke or sparks or fire issuing from the engine,
(3) The ignition in a short time of the property, and
(4) Its destruction.
The courts have held that these are necessary elements of proof in the absence of someone actually seeing the particular spark or manner in which the fire was commenced. Gulf, C. & S. F. R. Co. v. Meentzen Brothers, 52 Tex.Civ.App. 416, 113 S.W.2d 1000.”

Examination of numerous reported cases indicates that facts concerning the numbered “elements” in the appellant’s quoted conclusion are generally present where judgment is affirmed but the presence of all such factors is not always essential to the proof of a circumstantial case. In Gulf, C. & S. F. R. Co. v. Blakeney-Stevens-Jackson Company (48 Tex.Civ.App. 443, 1908) 106 S.W. 1140, no writ, Judge Levy speaking for this court said:

“It is laid down as a rule that evidence that the fire started up (1) immediately, or very soon after the passing of the train, and (2) there was no fire on the premises or vicinity of the premises before, and (3) there was no other apparent cause for the fire, is sufficient to warrant an inference of fact that the fire was emitted from the railway company’s passing engine.”

A broader rule that permits all facts and circumstances of a particular case to be considered is stated in Texas & Pacific R. Co. v. Brandon (Tex.Civ.App.1944) 183 S.W. 2d 212, Wr.Ref., in this language: “It is also the law in this state that ‘although it is necessary for the plaintiff to trace the fire to the railroad, it is not necessary that evidence should exclude all possibility of another origin, but it is sufficient if all the facts and circumstances fairly warrant a conclusion that the fire did not originate from some other source.’ ” This last, the Brandon rule, prescribes the true measure of the evidence required.

On the assumption that its analysis and conclusion quoted above accurately states the law, the railroad undertakes to show reversible error by arguing that there is no “testimony that any smoke, or sparks, or fire, or materials capable of creating a fire were issuing from the engine or train of the appellant, at the time it was^passing property owned by the Appellee." (Appellant’s brief, P. 11). And that there was no “ * * * testimony or evidence to the fact that the Appellant’s right-of-way was not on fire immediately prior to the passage of its train and that after the passage of its train the right-of-way was on fire.” (Appellant’s brief, P. 9). Stated otherwise appellant asserts that there is no evidence of facts proving “elements” listed as (2) and (3) in its quoted conclusion. The point of error requires this court to examine the record to determine whether or not it contains any evidence of facts and circumstances of probative value supporting the jury finding that the railroad’s train caused a fire to originate on defendant’s right-of-way at a point near plaintiff’s land.

While Gulf, C. & S. F. R. Co. v. Blakeney-Stevens-Jackson Company, supra, and Texas & Pacific R. Co. v. Brandon, supra, hold that evidence of sparks or fire escaping or being emitted from the train’s engine is not essential to the proof of a circumstantial case, proof that emission of sparks is usual in the operation of a locomotive is a factual circumstance that would tend to support a conclusion that a fire was originated by sparks from an engine. The railroad shop foreman, known as the Master Mechanic, testified that the engine figuring in this incident, as well as all 158 of the line’s engines, had factory installed spark arresters, a device designed to arrest the emission of sparks when the engine is in operation. He testified that as a precaution “over and above” the manufacturer’s spark arrester, the railroad company, beginning in the year 1964, installed “super spark arresters” on all its engines because “we felt we needed something that would help to eliminate sparks.” This testimony assumed and implied that the company’s engines gave off sparks when in operation. The testimony placed before the jury evidence subject to construction that the engine in use at the time of the fire emitted sparks of fire when in operation.

Respecting appellant’s associated argument under this point, there is proof that at one o’clock of the afternoon pertinent to this case there was no fire on the railroad right-of-way in the area where fire was discovered at approximately two o’clock. The railroad runs in sight of the appellee’s home and his wife was in and out of the house several times between 1:00 and 2:00 o’clock the afternoon of the fire. She observed no condition indicating the fire on the railroad right-of-way until just prior to the time she noticed the fire and telephoned her husband at 2:00 o’clock to report it to him. Appel-lee noticed a train pass his place of employment about ten minutes before receiving the fire report from his wife. At that time the train was some two miles west of the area burned over by the fire and moving eastward toward the area. The wife testified the train could still be heard in the distance leaving the fire area when she first discovered the fire.

At 1:45 P.M. that afternoon a neighboring farm owner viewed the point where the fire was later discovered and at that hour saw no fire, smoke, or other evidence of fire. A short time later on leaving his farm he was held up in the general area of the fire while an east-bound train passed a crossing at about 2:00 P.M. A couple of expert witnesses expressed opinions that the fire originated on the railroad right-of-way. Evidence was offered that a brisk wind was blowing out of the south, and that there was no burn over south of the right-of-way. Appellee’s land lies to the north of the tracks. The area of the fire is remote from the general public; there are no houses, no roads, and no people living in its immediate vicinity.

The related facts and circumstances, together with others in the record, if believed by the jury, as the verdict indicates they were, constitutes probative evidence, circumstantial in nature, fairly warranting a conclusion that the source of the fire on the right-of-way was appellant’s passing train. Appellant’s first point of error is overruled.

The appellant’s other two points of error are likewise overruled as reversible error is not shown. The judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    Lloyd COLVIN, Jr., Appellant, v. Ray W. BASKETT, Appellee.
    No. 7638.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 19, 1966.
    Rehearing Denied Oct. 17, 1966.
    Robinson & Fotheringham, Amarillo, for appellant.
    Tom Seay, Amarillo, for appellee.
   DENTON, Chief Justice.

Ray W. Baskett sued for and obtained a judgment for damages for the failure of Lloyd Colvin, Jr. to pay over to Baskett the value of a bag of coins owned by Bas-kett and sold by Colvin as agent of the seller. The case was previously before this court. It has subsequently been retried under the same statement of facts and a fuller statement of the material facts will he found in our opinion, reported in 392 S.W.2d 804. As in the previous trial, the trial court, without a jury, rendered judgment for Bas-kett for $1050.00 less $100.00 commission earned by Colvin and denied the other relief sought by Colvin in his cross action.

On the prior appeal this court reversed and remanded the cause on the ground that judgment was not supported by appellee’s pleadings and the evidence. Upon remand appellee filed an amended original petition and corrected the variances between the pleadings, evidence, and the trial court’s judgment. Upon appellant’s request the trial court filed findings of fact and conclusions of law. The court found: that during the latter part of July or early August, 1963 Baskett listed for sale with Colvin two bags of 1960 D small date un-circulated pennies to be sold by Colvin on a commission basis; one bag was owned by Baskett and the other by a Jess Crow, for whom Baskett was acting; on the same date Baskett’s son-in-law, Pat Roberts, listed one bag of similar coins with Colvin; Colvin sold three bags on his teletype wire service to a New York coin dealer; when he reported the sale to Baskett and Roberts it was discovered that both Baskett and Roberts had listed the Crow pennies; Bas-kett immediately notified Colvin of the mistake and instructed him to inform the purchaser that only two, rather than three bags were available; Colvin refused to carry out this instruction and Baskett informed Col-vin that he would not be responsible for submitting a third bag. It is undisputed the purchaser paid Colvin $1050.00 for one bag of coins, but refused to pay for the second bag until the third was delivered. Roberts was paid the $1050.00 for the bag he delivered less a $50.00 commission. Col-vin has failed and refused to pay Baskett for the bag he delivered. It is for the value of this bag of coins, less the commission admittedly owed, which Baskett here sues.

Appellee’s amended pleadings seeks a partial rescission of the oral contract to sell the coins and for the value of one bag he delivered to Colvin. While in fact three bags of coins were listed with Colvin — two by Baskett and one by Roberts —they intended to list only a total of two bags. It is uncontroverted that ‘neither Baskett nor Roberts knew the other had listed the bag owned by Crow. Three bags were listed with Colvin and he sold three bags. It was obviously a unilateral mistake on the part of Baskett. There was no mistake on the part of Colvin. It is his position that Baskett seeks to modify the oral contract of sale and that such modification requires a mutuality of mistake. Under this record this contention is without merit. Equitable relief by way of rescission may be granted against a unilateral mistake when the conditions of a remedial mistake are present. James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371. These conditions have generally been held to be: (1) The mistake is of so great a consequence that to enforce the contract as made would be unconscionable; (2) The mistake relates to a material feature of the contract; (3) The mistake must have been made regardless of the exercise of ordinary care; (4) The parties can be placed in status quo in the equity sense, i. e., rescission must not result in prejudice to the other party except for the loss of his bargain. In Brown v. Bradley, (Tex.Civ.App.) 259 S.W. 676, a deed was cancelled in behalf of the grantor, when by mistake it contained a description of land he did not own. In granting equitable relief the court pointed out this mistake arose through no lack of the exercise of ordinary care on the part of the grantor. See 59 A.L.R., page 809 and authorities cited.

Baskett is seeking to cancel that portion of the oral sales contract which in-eluded a bag of coins Baskett did not intend to sell. Since there was not a meeting of the minds, there could be no contract as between the parties here for the sale of three bags of coins. Obviously the mistake related to a material feature of the contract; and there are no pleadings or evidence that the mistake arose out of the lack of the exercise of ordinary care on the part of Baskett. When the mistake was discovered shortly after the sale by Colvin, Baskett promptly informed him of the mistake and requested the purchaser be so informed. The parties could have been placed in their same relative positions by either the New York purchaser or Colvin going into the market and purchasing another bag of similar coins. It is uncontradicted the market value of these coins remained unchanged for over a month after the sale. Thus, Colvin’s position would not have been jeopardized. We are of the opinion the pleadings and evidence amply support the equitable relief of partial rescission sought by the appellee.

If there was a unilateral contract, which we hold is supported by the pleadings and the evidence, the delivery of another bag of coins by Baskett to Colvin in Denver, Colorado some ten days later does not alter Baskett’s equitable position. It, in fact, strengthens it. It is evidence of his good faith in attempting to correct the unilateral mistake and did in fact place Colvin in a position to carry out the original sales contract. Colvin’s failure to deliver this additional bag to the New York purchaser could not under this record be charged to Baskett.

Appellant makes the further contention Baskett’s cause of action is barred by the two-year statute of limitations. The argument is the amended petition, filed after the cause had been appealed and remanded, alleged a different cause of action. In determining whether appellee’s cause of action is barred by limitations, it is necessary, under Article 5539b, Vernon’s Ann. Civ.St., to determine whether or not the claim set out in appellee’s amended petition is only based upon and grows out of a new, distinct or different transaction. Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816. Appellee’s amended petition alleged various facts surrounding the transaction in considerably more detail, and generally reformed the pleadings to more accurately conform to the evidence. The amended pleadings clearly allege the same transaction between the identical parties and did not allege a different cause of action. The cause of action is therefore not barred by limitations. City of Houston v. Magness (Tex.Civ.App.) 364 S.W.2d 702 (Refused).

We have examined and considered all of appellant’s points of error. None of them discloses reversible error. The judgment of the trial court is affirmed.


author: McDonald, Chief Justice.

text:
    MODERN HOMES CONSTRUCTION COMPANY, Appellant, v. Leroy HENDERSON et ux., Appellees.
    No. 4524.
    Court of Civil Appeals of Texas. Waco.
    Sept. 29, 1966.
    Rehearing Denied Oct. 20, 1966.

      Turner, Rodgers, Winn, Scurlock & Terry, Frank E. McLain, Dallas, for appellant.
    W. A. Keils, Jr., Teague, for appellees.
   OPINION

McDonald, Chief Justice.

This is an appeal from a judgment decreeing a Mechanic’s and Materialman’s Lien, and a Deed of Trust Lien void, and removing cloud from title of Lot 9, Block 140 of the City of Teague, Freestone County.

Plaintiffs Henderson and wife sued defendant Modern Homes, alleging defendant recorded a Mechanic’s and Material-man’s contract and a Deed of Trust in Freestone County, purporting to place liens on Lot 9, Block 140 of the City of Teague; that both instruments show to be signed by plaintiffs and acknowledged before a Wilburn L. Grube, Notary Public of McLen-nan County, Texas; that the property involved is plaintiffs’ homestead; and that plaintiffs did not sign or acknowledge same before any Notary Public, or in McLennan County. Plaintiffs prayed that 2 liens be set aside and held for naught. Defendant answered by general denial.

Trial was before the court without a jury, which after hearing entered judgment that the property involved was plaintiffs’ homestead; that plaintiffs did not sign or acknowledge the instruments before a Notary Public; that the instruments are void insofar as they attempt to fix a lien on the property; set aside the liens created by such instruments, and removed same as a cloud of title on plaintiffs’ property.

Defendant appeals on 7 points, contending the trial court erred in concluding as a matter of law that at the time plaintiffs signed the Mechanic’s Lien contract and Deed of Trust on January 27, 1961, their real property constituted and was their homestead. (It is undisputed that plaintiffs did not sign before a Notary Public and that the certificates of acknowledgment on the 2 instruments are false and untrue).

The record reflects that plaintiffs were married in 1941; that they purchased Lot 9 of Block 140 on August 17, 1959; that such property was a vacant lot; that plaintiffs owned no other property; that plaintiffs caused a house to be built on the property following January 27, 1961 and live in such house now. There is testimony the property was plaintiffs’ homestead on the date the alleged liens were signed; and continued to be their homestead to the date of trial.

We think the trial court had a right to conclude that the property was the plaintiffs’ homestead. See Sec. 76, 28 Tex. Jur.2d, p. 466.

All defendant’s points and contentions have been considered and are overruled.

Affirmed.


author: DAVIS, Justice.

text:
    SAN ANGELO TANK CAR LINE, LTD., Appellant, v. LAWYERS SURETY CORPORATION, Appellee.
    No. 7726.
    Court of Civil Appeals of Texas. Texarkana.
    June 14, 1966.
    Rehearing Denied Aug. 9, 1966.
    Jerry N. Jordan, Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for appellant.
    Robert H. Thomas, Strasburger, Price, Kelton, Miller & Martin, Dallas, for ap-pellee.
   DAVIS, Justice.

Plaintiff-appellant, San Angelo Tank Car Line, Ltd., sued Casco Chemical Corporation in the District Court of Tom Green County, Texas, on a verified account. Appellant also secured the issuance of a Writ of Attachment. The Sheriff of Webb County, Texas levied upon 60,000 lbs. of soya bean oil which he valued at $5400.00. Defendant-appellee is alleged to have executed a Replevy Bond in the sum of $11,000.00. A plea of privilege was filed and the case was transferred to the District Court of Dallas County, Texas. Appellant took a judgment against Casco Chemical Corporation and the alleged surety on the replevy bond. Appellee appealed by Writ of Error, and the judgment as to the appellee was reversed and the cause remanded as to the appellee. Lawyers Surety Corp. v. San Angelo Tank Car Line, Ltd. (1963), Tex.Civ.App., 365 S.W.2d 212, W.R.N.R.E. The judgment against Casco Chemical Corporation is final.

In a re-trial of the case against appellee, judgment was rendered that appellant take nothing. Appellant has perfected its appeal and brings forward six (6) points of error.

By its points, appellant says the trial court erred in rendering judgment for appellee, because, (1) appellant had recovered judgment against the principal, Casco Chemical Corporation, (2) when the replevy bond had been executed and delivered in such a manner as to constitute a common law bond for the benefit of appellant, (3) appellant was a third party beneficiary of a contract whereby appellee was paid for being surety on such replevy bond and used the same to secure the release of attached property, (4) appellee had executed and delivered the re-plevy bond to take the place of attached property and the attached property had been released even though the sheriff had not received physical delivery of the bond, (5) the testimony of the sheriff is clear and uncon-tradicted that he released the attached property after being notified by appellee that the bond had been executed, was in his city and was going to be given him, and was bound by its terms, and (6) because appellant was an innocent party with clean hands, recovered a judgment against Casco Chemical Corporation and Casco Chemical Corporation had secured the release of the property by the use of the replevy bond and failed to deliver the replevy bond, although constructive delivery had been accomplished.

There is pleading, but no proof, that the principal, Casco Chemical Corporation, executed the replevy bond. There is no proof of the delivery of the replevy bond, nor any legal proof of the release of the property. The writ of attachment was issued on the 29th day of December, 1959, by the District Clerk of Tom Green County, and was on the same day delivered to the sheriff of Webb County. The sheriff of Webb County on the 29th day of December, 1959, according to the writ of attachment, levied on 60,000 lbs. of soya bean oil. The writ of attachment was not returned by the sheriff to the District Clerk of Tom Green County at or before 10:00 o’clock, a. m. of the Monday next after the expiration of fifteen days from the date of issuance of the writ. Rule 606 Vernon’s Ann. Tex. Rules of Civil Procedure. As a matter of fact, the writ of attachment has never been returned by the sheriff of Webb County to the District Clerk of Tom Green County. The writ of attachment was filed with the District Clerk of Dallas County on July 27, 1962, more than two and a half years after the date of issue. There is no written report by the sheriff that the property levied on had been claimed, replevied or sold, or otherwise disposed of as required by Rule 607, V. A. T. R. C. P. The evidence shows that when the attorney approached the sheriff for the purpose of delivering the replevy bond, the sheriff advised the attorney that the property had already been released. The replevy bond was returned to Dallas. The sheriff testified that he has never seen the replevy bond, that he released the property, but there is no evidence of a written report, and the sheriff further testified that “I goofed”.

It is absolutely necessary that a replevy bond must be delivered and accepted to make it valid. 12 Am.Jur. 2nd, 487, Sec. 15. The delivery of the bond depends upon the intent of the principal or obligor to perfect the instrument and to make it at once the absolute property of the obligee. 12 Am.Jur. 2nd 488, Sec. 16; 11 C.J.S. Bonds § 21, p. 406. The points of error are overruled.

The judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    C. W. HENDERSON, C. N. Henderson and D. P. Thompson, Appellants, v. Mrs. Liza Jane WILLMON, Appellee.
    No. 7746.
    Court of Civil Appeals of Texas. Texarkana.
    July 19, 1966.
    Rehearing Denied Aug. 16, 1966.

      W. J. Lipscomb, Moore & Lipscomb, J. D. McLaughlin, Paris, for appellants.
    Leighton Cornett, Paris, for appellee.
   FANNING, Justice.

A venue case. Plaintiff, Mrs. Liza Jane Willmon, a widow, filed suit in the District Court of Delta County, Texas, for damages for personal injuries resulting from a fall. Defendants C. W. Henderson and C. N. Henderson, filed a plea of privilege to be sued in Wise County, Texas, the county of their residences. Defendant D. P. Thompson filed a plea of privilege to be sued in Tarrant County, Texas, the county of his residence. The plaintiff duly filed a controverting affidavit, controverting the pleas of privilege, and asserting venue was maintainable in Delta County, Texas, under the provisions of Subd. 9a, Art. 1995, Vernon’s Ann.Tex.Civ.St. Trial was to the court without the aid of a jury. The trial court heard evidence and overruled the pleas. Appellants have appealed.

The trial court overruled appellants’ pleas without making findings of fact or conclusions of law which is proper. Rule 385(e), Texas Rules of Civil Procedure.

Where a case is tried without a jury, and no findings of fact or conclusions of law are filed by the trial judge, the judgment should be affirmed if there is sufficient evidence to support it upon any lawful theory, and every issue sufficiently raised by the testimony must be resolved in support of the judgment. 3-B, Tex.Jur., Sec. 873, p. 278; John F. Buckner & Sons v. Allen, Tex.Civ.App., 272 S.W.2d 929.

Plaintiff in her pleadings plead to the effect that she fell and broke her hip seriously injuring herself, in Delta County, Texas, while she was walking at a place made dangerous by appellants, and that the alleged acts of negligence on the part of appellants, proximately causing the injuries, were as follows:

a. In permitting the ground around the fire hydrant to become muddy and slick;
b. In permitting the edge of the drainage ditch near the fire hydrant to become muddy and slick;
c. In permitting the ground at the sidewalk path crossing to become muddy and slick;
d. In permitting water to escape from the fire hydrant;
e. In using defective and leaking hose in filling up the water trucks;
f. In failing to provide a safe place for pedestrians to walk traveling along the sidewalk path;
g. In failing to warn pedestrians of the slick and dangerous nature of the area on the edge of the drainage ditch where Mrs. Willmon fell.

Appellants entered into a contract with the City of Pecan Gap, Delta County, Texas, for the construction of a sewer system for the City of Pecan Gap in 1964, with the work starting in February, 1964, and ending July, 1964. Appellant Thompson had actual charge of the work, had trucks hauling water on the job driven by his employees Washington and Grissom. Water was used to flush the pipes and test them, water was gotten from one fire hydrant in the back just north of the business section, and much water was wasted around said hydrant by the agents, servants and employees of appellants, and a dangerous mud hole was created thereby and the area for a considerable distance around such hydrant was caused to be muddy, slick and ■dangerous. On June 27, 1964, plaintiff, Mrs. Liza Jane Willmon, walked to the downtown area of Pecan Gap, in Delta County, Texas, saw a man loading water and that there was a very muddy place on Paris Street which she avoided by going out into Third Street and walking to the downtown area. On her return from the downtown area, on the same afternoon, about 4:30 or 5:00 o’clock, she walked north toward her home up the sidewalk, which was the regular way for people to walk. Near the fire hydrant at the street intersection she found a mudhole that was "very, very muddy, couldn’t think of going through it”, she testified. Mrs. Willmon further testified that to avoid this mudhole, she tried to cross a ditch, which was also slick and muddy, but which did not appear to be as slick as it was. She testified that she fell 8 or 10 feet south of the fire hydrant. She was 81 years of age, and as a result of the fall she received a broken hip and was seriously injured.

The testimony of Mr. Cummings, Mayor of Pecan Gap, Mr. Lawrence George and William J. Willmon substantiate the view that the water trucks, operated by appellant Thompson and his employees, wasted a large amount of water at the fire hydrant and created the slick, muddy and dangerous area around the hydrant and created the dangerous condition at the place where Mrs. Willmon fell and received her injuries. The witness, Preston Lee Washington, testified that he worked for appellant Thompson in laying a water line in Pecan Gap in 1964, and that he was still employed by Thompson; that he drove a water truck for Thompson, hauling water to the manholes in order to flush the line; that he and another water truck driver of Thompson got water at a fire hydrant, and that there was perhaps some leakage of water, and that they hauled water going back and forth for a few days.

The testimony of appellant Thompson is summarized in appellee’s brief as follows:

“By deposition, Appellant D. P. Thompson testified that he had charge of the construction of a sewer collection system for the City of Pecan Gap in 1964 (S 113); that the work started in February of 1964 and was finished in July of 1964 (SF 114); that he had a written contract (Plaintiffs Exhibit ‘1’) (SF 114). That he and Henderson & Henderson, a partnership composed of C. W. Henderson and C. N. Henderson, entered into a business arrangement whereby he was to share half the profit or loss and the Henderson partnership was to share half the profit or loss (SF 116); that he deposited an equal amount with the Henderson partnership in a bank and all expenses were paid out of that account, and all income was deposited in it; the account was in the name of Henderson, Henderson and Thompson, and that he and Mr. C. W. Henderson, and probably C. N. Henderson, were authorized to cash checks on this account (SF 117); that he, D. P. Thompson, had actual charge of the work; that he had trucks hauling water on this job driven by P. L. Washington, (the negro), and Roy Grissom (SF 119); that he used water to flush the pipes and test them (SF 120); that he got water from the fire hydrant in the block just north of the business section (SF 122) ; that they used this fire hydrant during the final phases of the job for testing purposes (S.F. 122); (remember the job was closed out sometime in July, 1964) ; that they used two trucks to haul water (SF 123), and that they did not haul water from any other place in Pecan Gap (SF 123); that this was the only fire hydrant that was oper-atable, and that they used a fire hose to get the water from the fire hydrant into the truck. (SF 123).”

The written contract in question was executed by Henderson & Henderson and D. P. Thompson with the City of Pecan Gap. (Plaintiff’s Exhibit 1.)

The testimony also showed that the street was dry on the occasion in question except around the mudhole and adjacent area where plaintiff was injured. No warning signs of any character were posted by defendants in and around the area in question.

It was clearly the duty of appellants, as independent contractors installing a sewer system in the City of Pecan Gap, to keep the sidewalks and streets free from dangerous conditions created by them.

In Buchanan et ux. v. Rose, 138 Tex. 390, 159 S.W.2d 109, it was held that if one creates a dangerous situation along a public way and it reasonably appears that another, in the lawful use of such way, may be injured by the dangerous condition so created, the one creating the situation must give warning of the danger or be responsible for the consequences resulting therefrom. Also in this connection see Kampmann v. Rothwell, 101 Tex. 535, 109 S.W. 1089, 17 L.R.A.,N.S., 758; John F. Buckner & Sons v. Allen, Tex.Civ.App., 289 S.W.2d 387; Page v. Scaramozi, Tex.Civ. App., 288 S.W.2d 909, wr. ref., n. r. e.

Of course the issues of negligence and proximate cause can be proved by circumstantial evidence. Big Three Welding Equipment Company v. Reeh, Tex.Civ.App., 301 S.W.2d 504.

We hold that there was ample evidence of probative force, and that the same was sufficient to support the trial court’s action in overruling appellants’ pleas of privilege and that under this record venue of the cause is maintainable in Delta County, Texas, under Subd. 9a, Art. 1995, V.A.C.S. Appellants’ points and contentions have been considered and are overruled.

The judgment of the trial court is affirmed.


text:
    LONE STAR STEEL COMPANY, Appellant, v. C. A. REEDER and wife, Hazel Reeder, Appellees.
    No. 7732.
    Court of Civil Appeals of Texas. Texarkana.
    July 12, 1966.
    Rehearing Denied Aug. 9, 1966.
    Robert Salmon, Linden, Burford, Ryburn & Ford, Dallas, for appellant.
    Carney & Mays, Atlanta, for appellees.
   FANNING, Justice.

Plaintiffs-appellees sued defendant-appellant seeking recovery of damages for an alleged breach of contract between appellant and the City of Hughes Springs, Texas, under which alleged contract ap-pellees claimed to be third party beneficiaries. In a trial before the court without the aid of a jury, judgment for damages in the amount of $11,000.00 was rendered in favor of appellees and against appellant. Appellant has appealed.

Plaintiffs executed and delivered to the defendant two iron ore leases on their land in the city limits of Hughes Springs, in Cass County, Texas. The first lease, covering 35.7 acres, dated Oct. 23, 1952, was for a 5 year period, and by two subsequent written agreements the term was extended to Oct. 23, 1962. The second lease, covering 8 acres, was dated Jan. 10, 1955 and terminated on October 23, 1959, and it was not later extended.

The iron ore leases gave the defendant very broad uses of plaintiffs’ land. Paragraph 1 of the lease on the 35.7 acre tract grants the right “to make all excavations, openings, ditches, drains, dams, railroads, wagon roads, and all other improvements or alterations which in the sole judgment of the Lessee are or may become necessary or suitable for mining, washing or screening * * * the iron ore: * * * to flood the surface, to contaminate water if necessary in beneficiating; and to do all further acts necessary or suitable in carrying on operations herein provided for, and without further compensation to Lessor." (Emphasis added) Paragraph 2 provides that tailings from the washing operations may be deposited on the land. Paragraph 5 provides that Lessee “shall have the right to deposit all earth, rocks and other useless material or rubbish at such places on the demised premises as it shall select.” Nowhere in the leases is there any requirement that when mining shall cease the Lessee shall remove any rocks, rubbish, tailings, water, dams, ditches or roads, or remove any irregularities in surface of the land, or in fact, take any action as to such items. The only part of the lease which pertains to the duties or obligations of the defendant upon termination of the lease is found in paragraph 11, wherein it is stated that upon termination of the lease, Lessee shall have ninety (90) days to remove its machinery, structures and other property erected on the land by Lessee.

On March 2, 1953, a regular meeting was held by the City Council of Hughes Springs, Texas, which a number of persons attended, including E. B. Germany, President of Lone Star Steel Company and Mr. Reeder, one of the plaintiffs. A record of what transpired is found in the minutes of the City Council for that date, which minutes were as follows:

“CITY COUNCIL PROCEEDINGS
Hughes Springs, Texas
“Regular meeting — March 2, 1953
“Present: Davis, Steed, Goodson, McDonald and Gordon.
“Others present: C. L. Malone, C. A.
Reeder, J. Lovelace, R. Salmon,
“From Lone Star Steel: Mr. Germany,
A. Tarbutton,
E. Cason and
S. D. Ford.
“Mr. Germany presented the Lone Star Steel Case concerning the mining of ore near and partially in the city limits and explained that it was the desire of Lone Star Steel Company to mine certain properties with the least inconvenience to the citizens of Hughes Springs. It was shown that the Lone Star Steel Company will build its own haulage roads outside of the North city limits except for a short distance on the West end of the road which would cross the city West of the old planer mill and then across the McMillan ranch toward the Beneficiation Plant. Mr. Germany further agreed that mined property within the city limits would not be left in a hazardous condition or in such a condition as to create any sort of a public nuisance as determined by the City and State Health officers. Goodson moved and Parrish seconded that the City Council accept the Lone Star Steel mining plans as presented on this date.
“For: Goodson, Gordon, Steed, McDonald, Parrish and Davis.”

The trial court filed findings of fact and conclusions of law. The findings of fact are shown in part below.

Appellant’s points 1, 3, 5 and 6 are as follows :

“FIRST POINT
“The trial court erred in holding in favor of the plaintiffs for the reason that the undisputed evidence shows that the rights of the parties herein are determined solely by the pertinent iron ore leases, which leases bar any recovery by the plaintiffs.
“THIRD POINT
“The trial court erred in finding as a fact that the defendant and the City of Hughes Springs entered into an agreement which was a supplement to the iron ore leases, and in concluding that under such supplemental agreement. the plaintiffs were the beneficiaries of the same and were entitled to recover damages from the defendant, as such findings and conclusions were contrary to the undisputed evidence and the law of this State.
“FIFTH POINT
“The trial court erred in holding in favor of the plaintiffs for the reason that the undisputed evidence shows that the written leases were not amended or changed by any agreement in writing between the parties.
“SIXTH POINT
“The trial court erred in holding in favor of the plaintiffs for the reason that if a contract was made between the City of Hughes Springs and the defendant, the undisputed evidence shows that the plaintiffs were not third-party beneficiaries of such contract.”

It is clear that appellees can not recover damages under the terms of the written leases in question as such leases, for the consideration stated therein, clearly gave appellant the right to mine appellees’ property in the manner in which it was mined and “without further compensation to Lessor.” It is thus clear that appellant had no duty under such leases to take any action to remove irregularities in the surface of plaintiffs’ land when mining was completed, unless the plaintiffs can establish that some other valid and binding agreement was made between the parties which had the effect of amending the two leases which would allow further compensation to plaintiffs.

The transaction between plaintiffs ■ and appellees falls within the impact of the Statute of Frauds, Art. 3995, Vernon’s Ann. Tex.Civ.St., as the two written iron ore leases, as well as the two extensions, were for a term of more than one year each.

It follows that such leases could be amended only by an instrument in writing and not by any oral agreement between the parties. Michael v. Busby, 139 Tex. 278, 162 S.W.2d 662 (1942); Gardner v. Sittig, Tex.Com.App., 222 S.W. 1090 (1920); Fleming v. Todd, Tex.Civ.App., 42 S.W.2d 123, wr. dism. (1931).

If there was any contract between the City of Hughes Springs and appellant it was clearly oral as no written contract with the City was signed by Lone Star Steel Company, “the party to be charged.”

It is our further view that appellants could not recover as alleged third party beneficiaries for any alleged breach of the alleged contract, even if it be assumed that there was any contract between the City and Lone Star Steel Company. In this connection see the following authorities : House v. Houston Water Works, 88 Tex. 233, 31 S.W. 179, 28 L.R.A. 532 (1895); United States Fidelity & Guaranty Co. v. Eubanks, 126 Tex. 405, 87 S.W.2d 248 (1935); Banker v. Breaux, 133 Tex. 183, 128 S.W.2d 23 (1939); Standard Accident Ins. Co. v. Knox, 144 Tex. 296, 184 S.W.2d 612 (1945); Carnes Corporation v. Therman Supply, Inc., Tex.Civ.App., 359 S.W.2d 99, no writ (1962).

Considering third-party contracts generally, our courts have uniformly restricted recovery under such contracts to situations where the parties clearly intended to benefit the third party. In Standard Acc. Ins. Co. v. Knox, supra (184 S.W.2d 612) it is stated:

“A person not a party to a contract may sue thereon for himself if it appears that it was made for his benefit, but the presumption is that parties contract for themselves alone; and a contract will not be construed as having been made for the benefit of a third party, unless it clearly appears that such was the intention of the contracting parties. Citizens Natl. Bank [in Abilene] v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003, and authorities there cited.”

In Carnes Corporation v. Therman Supply, Inc., supra (359 S.W.2d 99) it is stated:

“The law is well settled that one claiming to be a third party beneficiary succeeds or fails according to the provisions, of the contract sued upon. Western Union Telegraph Company v. Douglass, 104 Tex. 66, 133 S.W. 877.”

In Banker v. Breaux, supra (128 S.W.2d 23) it is stated:

“The law is well-established that a third person may sue to enforce a contractual provision made for his benefit, but to entitle him to enforce such provision it must be shown that the contracting parties intended to make same for his benefit. The intention of the contracting parties in this respect is of controlling importance.”

In United States Fidelity & Guaranty Co. v. Eubanks, supra (87 S.W.2d 248), Schwalbe had a contract with the State of Texas to pave a highway; Eubanks, a member of the public, was killed through the alleged negligence of Schwalbe and Eu-banks’ relatives sued Schwalbe and his bonding Company; the bond in question contained a condition that the bonding company guaranteed the payment of all liabilities for injuries which have been incurred in and about the said construction * * * ”; the court held in said case that the bond was for the benefit of the State Highway Fund, as well as laborers and ma-terialmen, and did not extend to the plaintiffs and the court stated that “in order to entitle a third person to sue on a contract in which he is not named as a party, it must have been made for his benefit as its object, and he must be the party intended to be benefited.”

In House v. Houston Water Works, supra (31 S.W. 179), defendant water company had a contract with the City of Houston to supply water of a specified pressure and quantity to the citizens of the city; plaintiff sued the company for loss of property by fire, contending the company did not furnish proper quantity of water at proper pressure to enable the fire department to extinguish the fire; plaintiff sued claiming as a third-party beneficiary under the city’s contract and also sued in tort. The court denied liability under the contract, holding that the contract was made for the benefit of the city and its citizens generally and not for the benefit of the plaintiff specifically nor for any other such citizen. The court also denied any liability on a tort theory, stating:

“It is not true that for every failure to perform a public duty an action will lie in favor of any person who may have suffered injury by reason of such failure. If the duty is purely a public duty, then the individual will have no right of action; but it must appear that the object and purpose of imposing the duty was to confer a benefit upon the individuals composing the public.”

It does not “clearly appear” from the council minutes in question, that the city and Lone Star Steel Company intended to make a contract for the plaintiffs’ individual benefit which would create a property right or contract right in favor of the plaintiffs. We think it would be very speculative to say that the city intended to create such a property right or contract right in favor of the plaintiffs and we think it would be even more speculative to say that Lone Star Steel Company intended to do so in view of the specific terms of its written leases with the plaintiffs.

Appellant’s points 1, 3, 5 and 6 are sustained. We deem it unnecessary to discuss appellant’s other points.

The judgment of the trial court is reversed and judgment is rendered that ap-pellees take nothing from appellant.

Reversed and rendered.

      . “FINDINGS OF FACT
      “The Court finds in this ease that C. A. Reeder executed certain iron ore contracts to the Lone Star Steel Company about the year 1952; that after said leases were executed and before they were paid for, there was a meeting held by the Lone Star Steel Company and the City Council of the City of Hughes Springs on March 2, 1953, as there was a question of whether or not iron ore could be mined in the town of Hughes Springs, Texas. The plaintiff, Mr. Reeder, was the instigator of this meeting and was present at same, and Mr. E. B. Germany was President of the Lone Star Steel Company and he was representing the steel company. The Court finds that all the property involved herein was in the City of Hughes Springs, Texas, on March 2, 1953, and was at the time of the trial of this case.
      “The Court finds that at the meeting of the Lone Star Steel Company, represented by E. B. Germany, and the City of Hughes Springs a supplemental agreement was made by the Lone Star Steel Company to the iron ore contracts executed by the C. A. Reeders to Lone Star Steel Company on March 2, 1953, which was as follows: (Note: Here follows quotation of minutes of City Council here-inbefore quoted in this opinion.)
      “The Court further finds that the Lone Star Steel Company went in and mined the iron ore out on the land described in the contracts between Reeder and the steel company and completed about October 1962. The Court finds that the steel company levelled up three or four acres of the land that they had mined, and the remainder of said land they made no attempt to level up and left same full of holes which hold water throughout the year, high clifts, deep cuts in the ground, ditches and ravines which changed the drainage of the water fall on the area, and that same was left by the Lone Star Steel Company in a dangerous and hazardous condition. The Court further finds that the way the Lone Star Steel Company left the land after they completed mining created a nuisance both public and private to the plaintiff and other people living in the City of Hughes Springs.
      “The Court further finds that the plaintiff C. A. Reeder is a resident of the City of Hughes Springs, Texas. The Court finds that E. B. Germany had the authority and power to bind the Lone Star Steel Company when they entered into the above agreement with the city of Hughes Springs, and that this agreement was a supplement to the mining contracts which C. A. Reeder executed to the defendant along about 1952 and that the defendant, Lone Star Steel Company, should have abided by the supplemental agreement, and having failed to do so the plaintiff was entitled to recover the amount it would cost to remove the hazards, nuisances and dangerous conditions where the said ore was mined. The Court finds that the sum of $11,000.00 as shown by the testimony of Mr. Lawrence Caver, the contractor, was a reasonable amount to be paid to plaintiff for the removing of the hazards, nuisances and dangerous conditions on the land that the steel company had completed mining on.”


author: SPERRY, Commissioner. PER CURIAM.

text:
    Mario ARES, Appellant, v. Richard OWENS, Defendant, and Gene Preston, partners et al., d/b/a Preston Refrigeration Company, Respondent.
    No. 24447.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 3, 1966.
    Application to Transfer Denied Nov. 14, 1966.
    C. William Garver, Kansas City, for appellant.
    Albert Thomson, Kansas City, Linde, Thomson, Vandyke, Fairchild & Lang-worthy, Kansas City, of counsel, for respondent Preston.
   SPERRY, Commissioner.

This is a suit brought by plaintiff against defendants, Richard Owens and his employers, Gene Preston, a partner, d/b/a Preston Refrigeration Company, hereafter called Preston. The suit was for damages sustained by plaintiff when he was injured while operating his automobile southward on Troost Avenue in Kansas City, Missouri, at or near its intersection with 81st Terrace by Mr. Owens, who went to sleep at the wheel of his automobile. Mr. Owens was operating his own automobile. Trial to a jury resulted in a verdict for plaintiff against both Owens and Preston in the sum of $1500.00. Upon motion, the verdict against Preston was, by the court, set aside and judgment for defendant Preston was entered. The appeal is as to Preston, alone.

This casualty occurred November 13, 1961, in the manner above stated. Mr. Owens was at that time a regular employee of Preston. He was subject to call for duty at all times. He stated that his employment consisted of erecting, testing and putting into operation industrial refrigeration equipment, that being the business in which Preston was engaged; that, on Saturday, November 11, 1961, he worked all day and until late at night or Sunday morning, at Williams Meat Company; that, when he arrived home, at 9312 McGee Street, in Kansas City, his wife was suffering labor pains; that he was up all day and all night, until he eventually took her to Baptist Memorial Hospital, (located at 6600 Rock-hill Road, bounded on its east side by Troost Avenue, the parking lot opening on both streets); that his wife gave birth to twin boys, at about 6:00 o’clock Monday morning, November 13th; that he then drove to the Preston shop to get his pay check and to ask for the day off; that he was given the day off; that he then went to Williams Meat Company, where he remained for some time. He stated that, while at the shop where he received his pay check Mr. Pack, the bookkeeper, asked him if he would deliver pay checks to Donald Ray and another employee of Preston, who were working at the Country Club Dairy at 56th and Troost, when he went to see his wife at the hospital; that he agreed to do so; that he drove to his home, arriving at about 3:00 o’clock p. m.; that he left his home at about 7:00 o’clock p. m. to visit his wife at Baptist Memorial Hospital; that, after visiting her, he left the hospital at 8:30 o’clock p. m., driving from the parking lot east onto Troost, thence north 10 blocks to Country Club Dairy, where he sought to deliver the pay checks but could not do so because the men were not there. (It was shown that 9312 McGee Street, where Owens lived, is 300 east from Main Street; that Rockhill and Holmes, at 6600 south, is 700 east of main; and that Troost is 1100 east.) He then drove south on Troost, past Baptist Hospital to 81st Terrace, where the accident occurred. Owens delivered the checks to the employees at Country Club Dairy the following day.

Owens stated that, had he delivered the checks on his way home or to the hospital, from the shop, it would not have been on his direct route but would not have required a very great deviation. He stated to the effect that the nearest, most direct and least traffic congested route from Baptist Hospital to his home, at 9312 McGee, would have been 'to drive west, out of the hospital parking lot, onto Rockhill, thence south on Holmes, instead of east onto Troost and then south. He stated that he left his home on Monday night, primarily, to visit his wife; that he left the hospital at about 8:30 o’clock p. m.; that he drove north on Troost, from the hospital, 10 blocks, approximately a mile, solely for the purpose of delivering the checks; and that, when he left the Country Club Dairy, he intended to drive south to 89th, on Troost, thence west and south to his home, but that the accident occurred at 81st Terrace.

The evidence was to the effect that Preston furnished Owens an automobile to drive on its business; that he kept and garaged the company car at his home so that he would have it each morning to use in Preston’s service; that that automobile was disabled and was in a repair shop at the times herein mentioned; and that he was then operating his own automobile in its stead.

There was testimony to the effect that, when some of Preston’s employees were working on a job at some distance from the office, it was Preston’s usage and custom to have some other employee deliver their pay checks to them on the job, if reasonably convenient, or that such employees come to the office and pick up such checks, or that same be mailed to them; that all three methods were followed; and that it was within the authority and discretion of Mr. Pack to request Mr. Owens to deliver the checks in this instance.

In considering the point presented, that is, whether the court could properly set aside the jury verdict in favor of plaintiff against Preston, and enter a judgment in favor of Preston, we must determine whether there is substantial competent evidence in the record that would have supported and did support the jury verdict. If there is, then the judgment appealed from was erroneously entered and it must be reversed. In considering the facts in evidence, in this connection, all that are favorable to plaintiffs theory of recovery will be accepted as true, those unfavorable will be rejected, and all reasonable inferences, based on the evidence, favorable to plaintiff, will be indulged.

Viewing the evidence under the above mentioned rule, the jury could reasonably have found that Mr. Owens was not a volunteer in delivering the pay checks but was doing so because he had been requested by Preston’s authorized agent that he do so; that, being a full time employee, on call day and night, and being customarily furnished with an automobile to be used in Preston’s service, (although he was temporarily using his own vehicle), Owens owed a duty to comply with Mr. Pack’s request; and that in doing so, he was within the scope of his employment. Therefore, if this casualty had occurred while Owens was proceeding from the shop, or from Williams meat plant, toward the Country Club Dairy, Preston would be liable. This is true even though Owens also intended going to his home or to the hospital after that mission was completed.

In Foster v. Campbell, 355 Mo. 349, 196 S.W.2d 147, 150, the court said:

“It may not be said then that the evidence shows as a matter of law that the trip to West Plains was solely upon the wife’s separate business. If the trip was for the mixed or double purpose of her business and the business of her husband as well, and there was no material deviation from those purposes, it may not be said that she was not engaged upon her husband’s business when she was returning home, after having sold her produce and purchased feed, with the gasoline which she had procured at his request. 42 C.J., § 867, p. 1107; Tutie v. Kennedy, Mo.App., 272 S.W. 117, 123; Cable v. Johnson, Mo.App., 63 S.W.2d 433, 435. ‘An act may be within the scope of employment, although done in part to serve the purposes of the servant or of a third person. * * * The fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment.’ 1 Restatement, Agency, Sec. 236 and comment pp. 530, 531.” (Italics supplied.)

And this further comment appears in Restatement, Agency 2d, Sec. 236, pages 523-524:

“If the purpose of serving the master’s business actuates the servant to any appreciable extent, the master is subject to liability if the act otherwise is within the service,”.

Under the evidence, the jury could have found that, but for delivering the checks, Owens would have returned directly to his home from the hospital, at 8:30 p. m., by the most direct and least congested route, that is, south on Holmes, thence west on 89th to McGee, thence south to 9312, the location of his residence. That is a reasonable inference to be drawn from the evidence. Therefore, the jury could well have found that, but for the business of Preston, Owens would not have been involved in the accident, which occurred after Owens had fully completed his personal mission of visiting his wife. Thereafter, he set out on an entirely separate mission, solely for the benefit of Preston. He drove east some distance to Troost, thence north 10 blocks, thence south on Troost, to the 6600 block. Instead of leaving Troost at that point and travelling to Holmes, thence south, he continued on Troost to 81st Terrace where the accident occurred. He had reasonable latitude in choosing the route he would follow from Country Club Dairy to his home. He had deviated from the course he would have followed to reach his home, and he had not yet returned to a point on the direct route to his home after the deviation (if, indeed, that is material here, which point we do not reach). He was within the scope of his employment. He was required', to garage Preston’s car at his home, so as to have it available at all times to use in Preston’s service. At this time he was using his own car instead of the Preston car just as he had previously used Preston’s car. In Silent Automatic Sales Corporation v. Stayton, 8 Cir., 45 F.2d 471, 474, the court said:

“In the case at bar the status of the truck does not rest solely upon the words and insignia painted upon its sides. There is no dispute as to the ownership of the car, nor that it was used in the business of appellant. The fact that ownership was in Smith, an employee, instead of in appellant, cannot avail the latter. Yelloway, Inc. v. Hawkins (C.C.A. 8) 38 F.(2d) 731. The crucial question upon this phase of the controversy is whether the employee-driver was then and there engaged in the line of his duty, and within the scope of his employment. Upon this point there is no categorical contradiction. The issue must be resolved upon the undisputed facts as outlined above.
“The great weight of reason and authority is to the effect that where an employee is returning from work, with the consent and by authority of the employer, in a vehicle owned or used in the business of the employer, he is acting within the scope of his employment.
“ ‘Where a- master places at the disposal of his servant an automobile to be used by the servant in going to and from his work, the transportation is beneficial to both, and the relation of master and servant continues while the automobile is used for such purpose.’ ”

A similar result was reached in O’Hare v. Justin T. Flint Laundry & Dry Cleaning Co. et al., Mo.App., 170 S.W.2d 95, 98.

The action of the trial court in setting aside the jury verdict and entering judgment for Preston was erroneous. The judgment is reversed and the cause is remanded with directions to enter judgment for plaintiff in accordance with the verdict of the jury.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court.

HOWARD and BLAIR, JJ., concur.

CROSS, P. J., not participating.


author: RUDDY, Judge.

text:
    Bertha PRUELLAGE, Administratrix of the Estate of John Pruellage, Deceased, Plaintiff, Respondent, v. The DE SEATON CORPORATION, a Corporation, Thirty-Five Seventeen Company, Inc., a Corporation, Ramos, Inc., a Corporation, George Ogilvy, Michael Ogilvy, and A. C. Vyver, Defendants, George Ogilvy, Appellant.
    No. 32044.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Sept. 13, 1966.
    Application to Transfer Denied Nov. 14, 1966.

      Schwartz, Schwartz & Gilden, St. Louis, for appellant.
    Thompson, Mitchell, Douglas & Neill, Joseph P. Logan, H. Meade Summers, Jr., Fred E. Arnold, St. Louis, for plaintiff-respondent.
   RUDDY, Judge.

This proceeding, which comes to the writer on reassignment, is a motion for a writ of scire facias to renew a judgment and revive a lien, pursuant to the provisions ■of Sec. 511.370 RSMo 1959, 32 V.A.M.S. Defendant, George Ogilvy, appealed from the order of the trial court reviving the judgment and lien.

The sole issue submitted by defendant is whether an adjudication and discharge in a bankruptcy proceeding, where the judgment was properly scheduled, bars the revival of the judgment and lien thereafter against the judgment debtor.

On August 12, 1952, a judgment was entered in favor of Bertha Pruellage, Administratrix of the Estate of John Pruel-lage, Deceased, against George Ogilvy, defendant (appellant) herein and certain other defendants on count I of plaintiff’s petition and against the certain other defendants on counts II and III. The only judgment against George Ogilvy, who shall be referred to hereafter as defendant, was under count I and was for the sum of $6676.52. On August 10, 1962, plaintiff filed her “motion for scire facias to revive judgment * * wherein she alleged that on July 23, 1962, she had executed an assignment to Bertha P. Deu Friend and John K. Pruellage of the judgment obtained on August 12, 1952, in order to make final distribution of the estate in which she was administratrix and that this was done pursuant to an order of the Probate Court. In the motion plaintiff and the assignees prayed that the judgment of August 12, 1952, and the lien pursuant to said judgment against all of the defendants, be revived and asked that a writ of scire facias be issued to the defendants. On the aforesaid date the writ was ordered to issue for all defendants. Thereafter, George Ogilvy filed an answer to the writ of scire facias, wherein he alleged (1) that he was not indebted to the judgment creditor or the purported assignees; (2) that said obligation has been paid; and (3) “That on or about the 30th day of March, 1960, he filed a petition in bankruptcy and was adjudicated a bankrupt and that on or abput the 1st day of June, 1960, he received a discharge in bankruptcy from the United States District Court for the Eastern District of Missouri.”

The aforesaid assignees and plaintiff filed a reply to the answer of defendant, wherein they denied the allegations of paragraphs (1) and (2) of defendant’s answer and said they were without information sufficient to form a belief as to the allegations of paragraph (3), further alleging, “ * * * that the allegations of said Paragraph 3 do not constitute a defense to the revival of a judgment by writ of Scire Facies.”

A hearing was had on the motion to revive the judgment and the lien and the trial court ordered the Judgment and lien revived against all defendants and further ordered “ * * * plaintiff to have execution on this judgment.” At the hearing on the motion to revive defendant placed in evidence a certified copy of his discharge in bankruptcy and it was stipulated by counsel for plaintiff and defendant that defendant in fact was discharged in bankruptcy and that the judgment claim against him was listed in the schedule of debts in that proceeding. At the hearing defendant, through his counsel, cited Section 17 of the Federal Bankruptcy Act as authority for his contention that the judgment may not be revived against him because of having been discharged in bankruptcy.

The judgment rendered on August 12, 1952, became a lien on that date on the real estate of all the defendants against whom the judgment was rendered, situated in the county “ * * * for which or in which the court is (was) held,” Section 511.350 RSMo 1959, 32 V.A.M.S. The lien of this judgment extended to such real estate referred to and commenced on the day of the rendition of the judgment and continued for a period of three years (Section 511.360 RSMo 1959, 32 V.A.M.S.), subject to be revived in the manner provided by Section 511.370, supra, and if a scire facias be issued pursuant to the last named section of the statute after the expiration of the three year lien, and a judgment of revival is afterwards rendered, such revival shall only take effect from the rendition thereof, and shall not prevail over intermediate encumbrances. Section 511.-380, RSMo 1959, 32 V.A.M.S.

It will be observed that the statutory lien created by the judgment rendered August 12, 1952, expired three years thereafter, namely, on August 12, 1955, and was not an effective lien on any of the real estate of the defendant at the time he filed his petition in bankruptcy and was adjudicated a bankrupt in 1960. However, as provided in Section 511.370, supra, plaintiff or his legal representative at any time within ten years, had the statutory right to sue out a scire facias to revive the judgment and lien. Had no adjudication and discharge in bankruptcy intervened, plaintiff’s motion for scire facias to revive the judgment and lien having been timely filed, there could be no doubt about plaintiff’s right to revive the judgment and lien against defendant.

Title 11, Section 35 U.S.C.A. (Section 17 of the Bankruptcy Act) provides that a discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, with certain exceptions which are specified therein. The judgment herein sought to be revived does not come within any of these exceptions.

In the case of Crandall v. Durham, 348 Mo. 240, 152 S.W.2d 1044, l. c. 1045, the court said:

“Defendant’s discharge in bankruptcy released him from the obligation of plaintiff’s debt, not in the sense that the debt was paid or extinguished but in that it afforded him a complete legal defense to plaintiff’s action if he availed himself of it, unless he thereafter waived said release by, for instance, promising to pay the debt, the debt, not being extinguished or cancelled, having sufficient life to furnish the consideration for the new promise * * * (Citing cases).”

A discharge of a debtor in bankruptcy does not satisfy the debt but merely releases the debtor of his legal obligation to pay, though the moral obligation to pay remains and furnishes a sufficient consideration in law for a new promise to pay, Donnell v. England, 345 Mo. 726, 137 S.W.2d 471. The discharge in bankruptcy may be pleaded as a defense, however, it is a defense only as to the personal liability of the bankrupt in connection with the payment of the debt, Chitwood v. Jones, Mo.App., 56 S.W.2d 147. If a valid lien exists it presents a different situation and where the judgment remains unpaid the adjudication in bankruptcy is no bar to the continuation of the lien.

The United States Supreme Court in the case of Metcalf v. Barker, 187 U.S. 165, 1. c. 174, 23 S.Ct. 67, 1. c. 71, 47 L.Ed. 122, said, “ * * * where the lien is obtained more than four months prior to the filing of the petition, it is not only not to be deemed to be null and void on adjudication, but its validity is recognized. When it is obtained within four months the property is discharged therefrom, but not otherwise * *

Many of the courts of other jurisdictions have announced the same conclusion. In the recent case of Davis v. Polk Financial Service, 242 Miss. 419, 135 So.2d 175, 178, the court said:

“The design of the Congress in the Bankruptcy Act was to protect all liens, * * * Hence a trustee in bankruptcy takes subject to judgment, execution, and attachment liens which are valid under state law and not invalidated or subordinated by the Bankruptcy Act. The holder of a valid lien on property of one adjudicated in bankruptcy may assert it against the property to the same extent as if the bankruptcy had not intervened, provided the attachment or suit was begun more than four months prior to the filing of the petition. * * * ”

The same conclusion was reached in the following case, Tuten v. Zetterower, 218 Ga. 230, 126 S.E.2d 752, 754.

Faced with the identical issue we have in the instant case the court in the case of Schexnailder v. Fontenot, 147 La. 467, 85 So. 207, held that a discharge in bankruptcy does not destroy a mortgage lien upon the bankrupt’s real property subject to exemption, but merely his personal liability. In that case the court said that, “ * * * the judgment creditor could have immediately subjected the property to the payment of his debt, and this is true, no matter how long he might have been required to wait, provided the judicial mortgage and lien were kept alive in the manner pointed out by law. * * * ” (85 So. l. c. 209).

Supporting the aforesaid authorities is the case of Marx v. Hart, 166 Mo. 503, 66 S.W. 260. In that case creditors had sued out a writ of attachment against the debtor and notice of garnishment had been served on two garnishees who were found to have property of the debtor in their possession. A general judgment was entered against the garnishees and under the statute became a lien upon the real estate of the garnishees. The court pointed out that the goods of defendant had been attached long prior to the adjudication and discharge in bankruptcy. The court then said, 66 S.W. l. c. 265, “ * * * In our opinion, the subsequent proceedings in bankruptcy did not divest the jurisdiction of the circuit court to enforce the rights which had accrued to plaintiff by these garnishment proceedings. * * * ” In that case the court also said, “ * * * ‘It is abundantly established by the courts of last resort in this country, Federal and State, that when the jurisdiction of a State court to enforce mechanics’ liens has attached, that jurisdiction will not be divested by proceedings in bankruptcy instituted subsequently thereto.’ * * * ”

Defendant has cited no authorities from Missouri or elsewhere, except a few which we will discuss later, to the effect that a discharge in bankruptcy constitutes a defense to the revival of a judgment and lien. As we have pointed out the discharge in bankruptcy merely releases the debtor from personal liability for the debt and bars further pursuit of the debtor personally or of his future property. Schex-nailder v. Fontenot, supra. The lien acquired on the rendition of a judgment remains and is preserved and it logically follows that the foundation for the lien, namely, the judgment, remains and is preserved. To hold otherwise would be a non sequitur.

Having shown that judgment and lien remain and are not barred by the discharge in bankruptcy it becomes clear that they may be revived if a timely writ of scire facias is obtained. (Section 511.-370, supra). However, when the revivor proceedings follow a discharge in bankruptcy the judgment entered should be a qualified revival and not a general judgment of revival without reservations and limitations. Obviously, the judgment should not permit a general execution to issue against the debtor for the collection of plaintiff’s judgment. To permit collection of plaintiff’s judgment out of real estate and personal property acquired after defendant’s discharge in bankruptcy would be repugnant to the purpose of the Bankruptcy Act and would render the discharge in bankruptcy meaningless.

The judgment should be revived to the extent, and only to the extent, that it revives the lien as of the date of the judgment of revival on such real estate to which the lien attaches as provided^ in Section 511.350 RSMo 1959, 32 V.A.M.S. and which the defendant owned or had an interest in, whether held in his name or in another for him, at the time of filing his petition in bankruptcy and which should have been scheduled in the bankruptcy proceeding and was not so scheduled. For example, we have in mind such real estate as may have been inadvertently not scheduled or fraudulently conveyed prior to discharge in bankruptcy or held in another’s name for the debtor’s benefit. The lien should not attach to or affect real estate acquired after the discharge in bankruptcy. The judgment of revival should not permit a general execution. The only levy that should be permitted is that afforded by the qualified judgment and lien we have described.

The defendant asserts that plaintiff has never had a lien against anything since there was no property belonging to him which would be subject to the lien provided under the statute and seems to indicate that there should be an allegation of existing real estate subject to the lien. In the case of Stewart v. Gibson, 71 Mo.App. 232, a similar contention was asserted in an action to revive the judgment and the court said at 1. c. 234, “ * * * In answer to this it is sufficient to say that Gibson may have made a fraudulent disposition of land which might make it important for the plaintiff to keep the lien of his judgment in force.” As we have pointed out the effect of the lien is to impress upon the real estate of the judgment debtor not only a lien as to such real estate which was actually held by the debtor at the time of the bankruptcy proceedings and not scheduled but also any real estate that had been transferred by him in fraud of his creditors. This contention of defendant must fail.

Defendant points out that at the time of the filing of the petition in bankruptcy (March 30, 1960) there was no lien even though there was unscheduled real estate, since it is undisputed that any lien created by the judgment rendered August 12, 1952, expired in August, 1955. On first appearance there seems to be merit in this contention; however, on more mature reflection, it occurs to us that if real estate belonging to defendant as of the time of his bankruptcy proceeding was not scheduled and should have been, and is found and recovered in the future by plaintiff or her assignees, while ordinarily such real estate would be within the jurisdiction of the bankruptcy court, plaintiff or her assignees may be in a position to enforce their lien if the bankruptcy court did not pursue jurisdiction over the property or in its discretion surrender the jurisdiction over the property and consent to proceedings to enforce the revived lien. We should not attempt to foresee every circumstance or situation that may arise. All that we can and should do is to revive the judgment and lien to the limit and extent we have described. The parties will then be free in the future to invoke their respective rights, the plaintiff or her assignees under the judgment and limited lien and the defendant under his discharge in bankruptcy under whatever situation may hereafter arise. Henry v. Roque, La.App., 18 So.2d 917. Also see Citizens Savings Bank for Use of Govatos v. Astrin, 5 Terry 451, 44 Del. 451, 61 A.2d 419.

We now take up for brief discussion the cases relied on by defendant. The first case is that of Martinez v. Cogan, et al., 320 Illl.App. 468, 51 N.E.2d 595. This case involves revival of a judgment after a discharge in bankruptcy and the trial court ordered an unqualified revival of plaintiffs original judgment against the appellant and ordered general execution to issue. The appellate court in reversing the judgment and remanding the cause with directions, said, “It will be noticed that the judgment is an unqualified revival of plaintiff’s original judgment against appellant, that it adjudges costs against him and orders a general execution to issue against him for the collection of plaintiff’s judgment of 1933, * * (51 N.E.2d l. c. 596) While it is true that the court did say it was the established law that a discharge in bankruptcy is prima facie evidence of a release from all provable debts, it predicated its reversal and remand on the ground, as it said, “ * * * the instant judgment is an unqualified revival of plaintiff’s original judgment against appellant, and plaintiff’s contention, if sustained, would deprive appellant of his right to set up his discharge in bankruptcy as a defense, as to him.” (51 N.E.2d l. c. 597). We think the case is distinguishable from the instant case since the trial court’s judgment of revival permitted general execution and was an unqualified revival which had the effect of making property, personal and real, acquired by the judgment debtor subsequent to his discharge in bankruptcy subject to the judgment and lien. The case of Tradesmens National Bank and Trust Company v. Cummings, 38 N.J.Super, 1, 118 A.2d 80, was a suit instituted by plaintiff on a judgment previously obtained. It appears that it was a suit to permit execution on its judgment. The defendant had been discharged in bankruptcy and had scheduled the plaintiff as a creditor and the court held that this constituted an absolute defense. This case does not discuss or rule the issue of whether a discharge in bankruptcy bars the revival of the judgment and lien and therefore it fails to support the sole issue submitted by defendant.

The only Missouri case relied on by defendant is Haggerty v. Morrison, 59 Mo. 324, in which an appeal was taken from a judgment in the Circuit Court. Appellant filed his certificate of discharge of bankruptcy in the Supreme Court and likewise his plea showing that the judgment was allowed against his estate in the bankruptcy court and the plea being admitted, appellant’s request for discharge from the judgment was sustained by the court. It appears that the judgment had never become final, and that no lien was asserted by the respondent or discussed by the court. We fail to find any support in this case for defendant’s contention.

We have found no case, nor has any been cited by the parties, which involved a lien created by a judgment, which lien had expired at the time of the debtor’s bankruptcy, but which could be revived in a scire facias proceeding brought timely. We think we have reached the proper conclusion, because otherwise, as plaintiff points out, in the event property is found that should have been scheduled, but was not scheduled, it would create an anomalous situation in which the judgment creditor would be in a worse position than the creditor who had never reduced his claim to judgment. This, because, Section 516.-350 RSMo 1959, 34 V.A.M.S., provides that every judgment shall be conclusively presumed to be paid after the expiration of ten years from the date of the original rendition thereof, unless revived as provided in Section 511.370, supra.

The cause is remanded with direction to enter a judgment of revival against defendant, George Ogilvy, in accordance with the views expressed herein and inasmuch as the other defendants in the scire facias proceeding below have not appealed, the trial court’s judgment as to them remains as rendered.

WOLFE, P. J., and ROY W. McGHEE, Special Judge, concur.