author: CONNER, C. J.

text:
    BRIDGEPORT MACH. CO. et al. v. GEERS.
    No. 12428.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1931.
    Rehearing Denied March 28, 1931.

      Ben J. Dean, of Breekenridge, and C. T. Gettys, of Decatur, for appellants.
    Donald & Donald, of Bowie, and Burch & Woodruff, of Decatur, for appellee.
   CONNER, C. J.

This suit was instituted by W. C. Geers against the Bridgeport Machine Company to recover the value of certain oil well drilling machinery and tools that the plaintiff alleged had been converted by the defendant. In substance, the plaintiff alleged that on the 22d day of April, 1926, N. B. Dalton, of the state of Oklahoma, executed and delivered to the plaintiff his promissory note in the sum of $7.,500, to secure which Dalton executed and delivered to the plaintiff a mortgage covering the tools in question then owned by him; that thereafter the machinery and tools were shipped to Wise county, for the purpose of drilling an oil well; that one J. C. Walker had contracted to do the drilling, but defaulted in his contract, whereupon one C. W. Whitehead took over the contract. The mortgage covered some 85 items, consisting of a gasoline engine, elevators, screws, hoists, ropes, clamps, stems, and other tools constituting what is termed by the witnesses an an oil well string of tools, all of which were set forth in the mortgage, as well as in plaintiffs’ petition; it being alleged that the mortgage had been duly recorded in Wise county on July 28, 1926.

Plaintiff further alleged, in substance, that thereafter, to wit, on January 23, 1927, the defendant, acting by its agent, a Mr. Pooler, with both- actual and constructive notice of plaintiff’s legal title and right, seized and took charge of such property and removed the same from Wise county to Breckenridge, Stephens county, thereby converting the same to plaintiff’s damage in the sum of $8,825.20, the value of the property.

The defendant Bridgeport Machine Company answered by general and special exceptions, a general denial, and specially that about April 23, 1925, C. W. Whitehead and. L. J. Maxwell, doing business under the firm name of Whitehead & Maxwell, executed and delivered to the defendant their certain promissory note in the principal sum of $8,000, to secure which Whitehead and Maxwell, acting through Whitehead, on April 23, 1925, executed and delivered to the defendant a chattel mortgage covering a list of oil well drilling tools attached to the answer as an exhibit; that said mortgage provided that, in event the note was not paid according to its terms, the mortgagee should be entitled to take possession of the property and sell the same; and further provided that the mortgage should be security for any other indebtedness then or thereafter to accrue in favor of the mortgagee. It was further alleged that thereafter Whitehead assumed the liabilities and took over the assets of the firm and moved said tools to different places from where originally located, a part to Beckham county, Okl., some to Wilbarger county, Tex., some to Wichita county, Tex., some to Wise county, and some to Collin county, Tex., that thereafter, on November 26, 1926, the defendant instituted suit in the district court of Stephens county, Tex., against Whitehead on said note and upon an open account contracted by Whitehead in the sum of $2,448.59, seeking to recover the amount of said indebtedness and to foreclose said mortgage upon the tools located in Wise and Collin counties; that defendant duly caused the issuance of a writ of sequestration to take possession of the tools located in Wise county, which was levied upon the property in question; that, the property not having been replevied by defendant Whitehead and the same being located at a place in Wise county where it was too expensive and impracticable to care for the same, the defendant replevied the property, took the tools, and brought them to Stephens county, an itemized list of which was attached to defendant’s answer as an exhibit.

The defendant further alleged that the tools had been so taken in good faith in the ■belief that the same were covered by a chattel mortgage, and that the items taken by it and not definitely mentioned in its chattel mortgage was believed by defendant to be replacements, as called for in its mortgage, and that the purpose of taking the same under the writ of sequestration was to preserve and protect the property and the rights of defendant, and not in, violation of plaintiff’s tights; that, if said property taken by the defendant was covered by the mortgage of plaintiff, which was not admitted, plaintiff was negligent and careless in permitting said property to be mingled and mixed with said property of Whitehead, upon which defendant had a mortgage; that the tools had been kept safely, and defendant was still ready, able and willing to deliver said tools, or any part thereof, in event it should be found that they, or any part, are the same as described in plaintiff’s mortgage; that defendant had never refused to surrender them, nor had any demand been made for them, and •that should it be established that they are, or any part of them, the same tools upon which plaintiff has a mortgage, plaintiff is not entitled to recover as for a conversion of the same, for they came into the hands of defendant lawfully, under a proper writ, etc.

The court overruled the defendant’s demurrers, and, after the conclusion of the testimony, the case was submitted to a jury upon the following charge, which, together with the answers of the jury, reads as follows:

“Gentlemen of the Jury:
“This case will be submitted to you upon special issues and your answers to said issues, as you find from the evidence and facts in this ease, when signed by your foreman, will constitute your verdict.
“This is a suit by the plaintiff and against the defendants for the conversion of certain personal property alleged to have belonged to the plaintiff and taken from him by the de-' fendants while same' was situated in the north part of Wise County, Texas, about January 3rd, 1927.
“I charge you as a matter of law that conversion is defined to be any distinct act or dominion wrongfully asserted over another’s property, in denial of his right, or inconsistent with it.
“Special Issue No. 1. Bearing in mind the foregoing definition of conversion, do you find from a preponderance of the testimony that defendant in Wise County, Texas, on or about the day and date alleged in plaintiff’s petition, did take and convert to his own use any of plaintiff’s property, which is described in plaintiff’s petition herein? Answer: Tes.
“Special Issue No. 2: If you have answered special issue No. 1 ‘No’ then you need not answer any further special issues herein; but, ” if you have answered said special issue ‘yes,’ then state: What was the reasonable market value of the said property, if any, so taken by the defendants, if you have found that they did take the same, on January 3, 1927, at its location in Wise County, Texas? Answer: $6,800.00.
“You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given their testimony, but you are bound to receive the law from the court, wbicb is herein given you, and be governed thereby.”

Upon the verdict so returned, judgment was rendered in favor of the plaintiff for the sum of'$5,500 (a remittitur of $1,300.00 having been filed), together with interest thereon at the rate of 6 per cent, per annum from January 3, 1927, the date of the conversion, from which judgment the defendant has duly prosecuted this appeal.

We are confronted with fifty assignments of error, thirty-nine propositions, with as many supporting arguments, and four and one-half pages of authorities, presenting minute . criticisms of the proceedings of the trial below. It is manifest that we cannot discuss and dispose of each assignment separately without unduly extending this opinion. We will therefore, in a general way, and as illustrating the general character of the propositions, briefly notice some of the propositions of error urged.

The plaintiff was not suing to foreclose his mortgage. It was merely referred to as the basis of his right, stating the time and place of its record, as well as its substance, and hence his petition was not demurrable, on the ground that the mortgage was not set forth in hsec verba; nor upon the ground that it was also alleged that plaintiff was the owner of the converted property at the time of its conversion. The evidence shows without contradiction that the mortgagor had defaulted in the payment of the note to secure which the mortgage had been given, and that the property had been surrendered to the plaintiff by the mortgagor, Dalton, to do with as he pleased. Plaintiff, therefore, either as owner or mortgagee in possession, was entitled to recover on proof of his allegations of conversion. Stidham v. Lewis (Tex. Civ. App.) 23 S.W.(2d) 851; Terry v. Spearman (Tex. Com. App.) 259 S. W. 563, 564; Parlin & Orendorff Co. v. Moore, 28 Tex. Civ. App. 243, 66 S. W. 798; Barron v. San Angelo Natl. Bank (Tex. Civ. App.) 138 S. W. 142.

Nor do ,we think the mortgage was inadmissible in evidence because of the form of the allegations relating thereto, above noted, or because neither it nor the petition gave distinguishing marks to each item constituting the string of tools, for the conversion of which plaintiff sued. The several items were separately set out in both the mortgage and in the petition, and all, constituting the unit, were transported from Oklahoma to Wise county, Tex., for the purpose of drilling an oil well. The evidence is ample, if not uncontradicted, to show that all items constituting the unit and so specified and transported were taken and converted by defendant as alleged without proof of title in it. There were no distinguishing marks on the items claimed by plaintiff, and the question was simply one of identity.

Numerous errors are assigned to rulings of the court during the introduction of testimony. The witness Dalton, who executed the mortgage under which appell’ee claims, testified, among other things, that the string of tools in question were located at a named point in Oklahoma when he entered into a contract with a Mr. Walker for the drilling of a wildcat well at the point in Wise county, from which they had been removed, pursuant to which the tools were shipped to Wise county. This testimony was objected to as being in violation of the best evidence , rule; the contention being that the written contract with Walker was the best evidence of its contents and effect. Neither the terms nor the obligations of Walker’s contract were involved or important in the present suit, and the reference thereto was merely explanatory of the relevant facts that the tools were owned by the witness and by his authority shipped to Wise county. It seems evident that the contention that the court erred is without merit.

Plaintiff’s petition alleged that the tools had been “shipped” from Oklahoma to Wise county, and hence that the court erred in permitting the introduction of testimony that a part of the tools had been transported by “truck”; the contention is that the variance in the means of shipment employed is misleading. Counsel urges this contention with apparent seriousness, but we think it is without merit.

Plaintiff pleaded, among other things, that Walker had contracted to drill the well in Wise county, and had defaulted, whereupon Whitehead (under whom defendant claimed) took over the undertaking. In this condition of the pleading Dalton was permitted to testify over defendant’s objection that thereafter he and the plaintiff went to the location, and he (Dalton) then and there told Mr. Geers that he (Dalton) could not move the tools, and told him (Geers) to apply it on what he (Dalton) owed him. After that he never asserted any right of ownership over the tools. Defendant’s objection to this was that plaintiff’s pleadings “did not put the defendant upon notice of any right or claim other than that of the holder of the mortgage.”

While the surrender of the property to plaintiff, as stated, in a legal sense may be said to constitute the plaintiff the legal owner, and as such entitled to sue for the conversion of the property, yet, without reliance upon allegations or testimony to this effect, the plaintiff certainly was entitled under his mortgage to maintain an action for the conversion of - the property which thereby lessened the value of his security, so that the allegation and testimony relating to the surrender of the property and the consequent vesting of title in plaintiff neither increased nor diminished plaintiff’s right, and hence immaterial. The objection here noted, therefore, must he overruled.

The following witnesses, testifying in behalf of plaintiff, gave opinions of the value of the property in controversy. The testimony of each and all was objected to on the ground that they were not sufficiently qualified.

Dalton testified, in substance, that he had known the string of tools since when new; that he had' handled some 10 strings of tools, had bought and sold such tools, and seen others who dealt in them; that the tools in question had been only used in drilling about 4,000 feet before being sent to Wise county; that that string of tools -set up on the location would have the reasonable market value of around $10,000.'

The witness Hartwell testified that, assuming the tools described in the mortgage to have been used in drilling a 4,000 foot well, the reasonable market value of them at the time would be around $10,000; he further stated that he was acquainted with the equipment, and, from his experience in handling oil well equipment of the kind and seeing it bought and sold on the market, he was acquainted with the reasonable market value of the same located in Wise county in December, 1926, and January, 1927.

Mascho testified that he saw the tools, but did not inspect them in detail, but just sized them up as a whole; that they were some1 thing like a string of tools he was using at Bowie; that the tools were worth about $10,-000; that he would say the reasonable market value of the tools in question would be “around $10,000.”

Witness Hite, when asked “what is the market value of this set of tools, set upon location in Wise County, Texas, answered, “About $1250.00.”

The several bills of exception to the introduction of this testimony was accompanied with the further statement signed by the trial judge;

“Other testimony was given by the witness previous to the above, as shown in the statement of facts, bearing on his qualifications, which, in the opinion of the court, qualified the witness to give such testimony.”

It is well settled by the authorities that to be available it must appear from an examination of the bill of exception that an error was committed of a prejudicial character, and our statutes (article 2237) specifically provide that;

“The objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as maybe necessary to explain, and no more, and the whole as briefly as possible.”

With the statement of the trial court that there was other testimony not shown in the bills, sufficient, in his opinion, to show that the witness was qualified and “such other testimony” not appearing in the bill, it is clear, we think, that no reversible error is presented in any of the bills of exception referred to.

It Is not essential to the plaintiff’s right of recovery that the defendant have actual notice that the tools in question were claimed by the plaintiff as his property under the mortgage set out in the petition. Therefore, we see no material error in the action of the court in permitting the introduction in answer to an interrogatory of the witness Pooler, under whose supervision and authority the tools had been removed, to the effect that “Whitehead told him they were not his tools and he didn’t believe Whitehead. * * * ”

Defendant objected to the refusal of the court to give the following special instruction, to wit:

“Did the defendant, acting through its agents, take the tools and other drilling equipment that was taken by it from the location in Wise County, Texas, merely for the purpose in good faith of protecting the property covered by the Whitehead .mortgage?”

The instruction, of course, is predicated upon that part of defendant’s answer alleging that it took the property in good faith, believing it was the property of Whitehead, in support of which it offered evidence. The record discloses, however, that in defendant’s original answer it was therein denied that the tools taken belonged to the plaintiff; and neither in the pleadings nor in the evidence was there any unqualified tender of the tools in return. The fact of the taking and removal of the property is undisputed, and we know of no rule which would require the plaintiff, in order to sustain his recovery, that he go to Stephens county and identify his property.

In King v. Boerne State Bank (Tex. Civ. App.) 159 S. W. 433, it is said;

“Where conversion of personal pi*operty has taken place, the owner is not required to accept a return thereof, if tendered, and hence such tender is no defense to a suit for damages for the conversion.”

This case is cited with approval in an opinion of this court in the later case of Kolp v. Prewitt, 9 S.W.(2d) 490.

The court, therefore, properly re; fused to submit the special charge, and the same must be said of the refusal of the court to submit the defendant’s special charge No. 2, which sought to elicit a finding of whether the defendant’s taking had been in good faith, believing they had a lien on the tools by virtue of Whitehead’s mortgage, and with intention to yield possession of any part thereof, or all, to which any one else might have a superior right whenever such superior right may be made known to it.

Nor do we think the court was required to submit the special instruction requiring the jury to find what particular items constituted the string of tools which were indisputably converted.

While the witnesses in behalf of defendant testified to the effect that the string of tools in question had a market value of only about $600, we think the testimony in behalf of plaintiff, having been accepted by the jury, is controlling, in addition to which we might add that witnesses testifying in behalf of defendant never saw the tools in question and gave an opinion on the theory that the tools were secondhand tools, such as were frequently sold by dealers in secondhand tools. We therefore feel unable to say that the verdict, as is insisted, is against the great preponderance of the testimony, and hence should be set aside.

The judgment is also objected to on the ground that the court erroneously allowed interest at the rate of 6 per cent, per annum from the 31st day of July, 1923, the date of the conversion, the contention being that. such interest was but an element of damages sought by the' plaintiff, and it, not having been included in the verdict of the jury, should not have been included in the court’s judgment. In support of this proposition, appellant cites the cases of Thompson v. Van Natta (Tex. Civ. App.) 277 S. W. 711, in which it was held that under such circumstances the inclusion of interest in a judgment on a verdict for the recovery of a broker’s commission constituted, error. See, also, Davis v. Morris, 257 S. W. 328, 329, by the Austin Court of Civil Appeals, which holds that, in suits for damages to injuries to live stock received in shipments, interest is not recoverable as interest, but as damages, and not recoverable in the absence of a jury finding therefor. We are of the opinion, however, that the better authorities sustain the ruling of the court in cases where, as here, property has been converted having a fixed market value, as found by the jury, and not problematical, as in eases where the damages are not certain, such as in eases of simple trespass or mere injuries to person or property. See Texarkana & Ft. S. R. Co. v. Brinkman, 288 S. W. 852, by the Beaumont Court of Civil Appeals, affirmed by the Supreme Court in 292 S. W. 860; Orbeck v. Alfei (Tex. Civ. App.) 276 S. W. 947, by the Waco Court of Civil Appeals; Ewing et al. v. Foley, 115 Tex. 222, 280 S. W. 499, 44 A. L. R. 627.

There are a number of other assignments of error, such as urging objections to the arguments of counsel and charges of the court, which have been examined, but we find no prejudicial error in any of them. All assignments of error are accordingly overruled, and' the judgment is affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    TEXAS ELECTRIC SERVICE CO. v. KINKEAD.
    No. 12393.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 13, 1930.
    Rehearing Denied Jan. 17, 1931.

      Bullington, Boone, Humphrey & King, of Wichita Balls, for appellant.
    Fitzgerald & Hatchitt and Otis Nelson, all of Wichita Falls, for appellee.
   DUNKLIN, J.

The Texas Electric Service Company has appealed from a judgment against it in favor of L. D. Kinkead for $25,000 as damages resulting from an injury sustained by him when struck by a Ford truck driven by Fred K. Everetts in the city of Wichita Falls while he was engaged in the sale of washing machines owned by the defendant. The suit was based upon allegations of negligence of the driver of the truck in operating the machine at a dangerous rate of speed and in failing to sound the horn of his machine as he approached the place where the accident occurred.

There were findings of the jury sustaining those allegations of negligence and a further •finding that the same were the proximate cause of plaintiff’s injury. There was another finding of the jury that at the time and place the accident occurred the driver of the truck was the agent of the defendant Texas Electric Service Company. In connection With the submission of that issue, the court gave this definition: “An agent is one who acts for another by authority from him; one who undertakes to transact some business or manage some affairs for another by his authority. The term agent applies to any one who performs an act for another by his authority.”

According to allegations in plaintiff’s petition as driver of the truck, Everetts was the agent and servant of the defendant, who therefore was liable for damages resulting from his negligence in operating the machine.

In addition to a plea of general denial, the defendant filed a special plea denying that Everetts was its agent, servant, or employee, but that he was the agent, servant, and employee of the Texas Power & Light Company in driving the truck at the time in controversy. It was further alleged that the Texas Power & Light Company was an independent contractor and engaged in demonstrating and selling washing machines for the defendant, and that Everetts in driving the truck was under the exclusive control of the Texas Power & Light Company and not under the control, management, or direction of the defendant, but “on the contrary this defendant had nothing to do with him, and did not have the right of power or authority to control his actions or direct his actions, or the manner and way of doing and performing said services, but the entire control, supervision and management of said driver of the truck in question was under the direction of the Texas Power and Light Company.”

■ In reply to that special plea, the plaintiff filed a supplemental petition containing a general denial of the allegations in that special pleading, and in addition thereto pleaded specially, in substance, that the Texas Electric Service Company and the Texas Power & Light Company were in fact jointly engaged in the same business under two separate corporate names, adopted for their own convenience, and that the driver of the truck at the time in controversy was in fact the agent, servant, and employee of each. In the alternative plaintiff pleaded further that at the time of the accident the two companies were partners and jointly engaged and jointly interested in the sale and distribution of washing machines, one of which was being transported by Everetts at the time of the accident, and therefore that the two corporations were jointly and severally liable to plaintiff as joint tort-feasors.

Evidence offered showed that the defendant and the Texas Power & Light Company operated under two separate charters, and both had their principal offices in the city of Dallas.

In support of its plea that the relation of master and servant did not exist between the defendant and Everetts at the time of the accident, that Everetts in driving the truck was the servant of the Texas Power & Light Company, and that the latter company, through its servant, Everetts, was undertaking to sell washing machines for the defendant as an independent contractor, testimony was introduced sufficient, prima facie, to support findings of facts as follows:

Everetts was employed by and on the pay roll of the Texas Power & Light Company, and was working under the direction of G. B. Richardson, who was the manager of the merchandise sale department of the last-named company; Everetts being the sales superintendent for that company. According to the testimony introduced, Everetts only connection with the defendant company arose by reason of the following transactions, as stated in appellant’s brief:

“The Texas Electric Service Company from time to time purchased of the Texas Power & Light Company various and sundry merchandise, including radios, washing machines, and other merchandise of similar nature. Some time prior to the accident in question the Texas Electric Service Company purchased from the Texas Power & Light Company a number of washing machines. As a part of the contract of purchase, the Texas Power & Light Company agreed that when the Texas Electric Service Company desired to put on a sales campaign to move these washing machines, that the Texas Power & Light Company would send one or more of its sales teams to Wichita Falls to assist in putting on such a campaign. A few days before the accident in question, The Texas Electric Service Company requested the Texas Power & Light Company to send one of its sales teams, or crews, to Wichita Falls to assist in putting on a campaign to move certain washing machines which they had previously bought from the Texas Power & Light Company and which, as stated, the Texas Power & Light Company had agreed to send men to Wichita Falls for the purpose of such a campaign.
“It was the agreement that these crews were to be sent to Wichita Falls without expense to the Texas Electric Service Company, and while the crew in charge of Everetts at the time of the accident were in Wichita Falls, they were on the payroll of, and subject to control by the Texas Power & Light Company, there being.no agreement between the Texas Power & Light Company and the Texas Electric Service Company that the Texas Electric Service Company should have the right to direct the manner of their salesmanship while in Wichita Falls, nor did it do so.
“When these teams came to Wichita Falls, (and this applies with regard to the team that was here when the accident to appellee occurred) the manner of procedure was as follows:
“Everetts, the sales superintendent and the party in charge of the crew, was directed by Mr. Richardson, his. immediate superior and the manager of the merchaüdise sales department of the Texas Power & Light Company, to proceed with his crew to Wichita Falls to put on a campaign to sell certain washing machines which the Texas Power & Light Company had theretofore sold to the Texas Electric Service Company. At the time in question he came to Wichita Falls upon the orders that Mr. Richardson ’gave him, and upon arrival in Wichita Falls went to the office of the Texas Electric Service Company. He obtained from the manager of the sales department of the Texas Electric Service the necessary contract papers bo sell such machines and to carry on the work. He also got a • sample washing machine from the Texas Electric Service Company for demonstration purposes. He then (and this applies to the procedure followed at the time >of the accident) used the car furnished him by the Texas Power & Light Company, and he and his men would go out in the residential district of Wichita Falls, Texas, and solicit such customers as they saw fit. The Texas Electric Service Company did not attempt to tell Ever-etts or his men when to work, how many hours to work, or what parts of town to visit, or what customers to,interview, but this was done solely by Everetts upon his own initiative, and according to his instructions and' orders from his superior, Richardson, of the Texas Power & Light Company. If they made a sale, Everetts then took the contract ( to the Chief Clerk of the accounting depart-1 ment of the Texas Electric Service Company, who passed upon the financial responsibility of the purchaser. This was done with reference to the responsibility of Olin W. White on the 23rd day of March, 1927. Other than passing upon the financial responsibility of. the purchasers, and either approving the sale made by Everetts, or refusing it because of the credit standing of the proposed purchaser, the Texas Electric Service Company played no other part in the solicitation and sale of the machine.
“On the date in question, Everetts, with his crew, had been out on Taft Street in the City of Wichita Falls. They had been delivering a washing machine which they had sold out there. They had previously canvassed that section of the town, had sold the washing machine, given a demonstration and made an appointment. They had a washing machine in the ear at the time of the accident. They had started to Scotland Addition across the river and had gone down Elizabeth Street and from Elizabeth Street onto Fourteenth Street and were coming down Fourteenth Street in the direction of the business section of the town when the accident occurred.”

Before the submission of the special issues to the jury, the defendant filed written objections and exceptions to the court’s definition of the word “agent” and the submission of the issue of agency of the driver of the truck within the meaning of the definition so given. The objections so made were, in substance, that the evidence introduced showed that the relations of master and servant between the defendant and Everetts did not exist, but that Everetts was the servant of the Texas Power & Light Company in operating the truck at the time of the injury; that liability of defendant for Everetts’ tort could not be established in the absence of a showing of the relation of master and servant between it and Everetts; that, in driving the truck at the time of the accident. Everetts was performinng a service for the Texas Power & Light Compány as his master, who had employed him to perform that service and who had the exclusive right and authority to employ and discharge him and to direct and control his services; and that the Texas Power & Light Company in undertaking through its servant Everetts to aid the defendant in the sale of the washing machines was doing so as an independent contractor; and that the definition of the term “agent” as used in the court’s instruction was too broad, in that its effect was to eliminate and deprive the defendant of its defense of independent contractor.

In its objections to the court’s charge, there was a further request for the court to give a correct charge on the issue of agency. The defendant also requested the submission of several special issues, all of which were refused; one of them being as to whether or not the defendant was interested only in the ultimate result of the work being performed by Everetts; another whether or not at that time the defendant had the right to discharge Everetts from the service; another whether or not it had the right to direct and control “the manner of sales of said washing machines and the said campaign put on in Wichita Falls and the duties thereof.”

Assignments of error have been presented to the rulings of the court referred to, and particularly to the definition of “agency” given in the court’s charge. The following excerpts from the authorities are applicable to the questions arising under these assignments:

“The relation of master and servant exists where the employer selects the workman, and may remove or discharge him for misconduct, and may order not only what work shall be done, but the mode and manner of performance.
“To constitute the relation of master and servant for the purpose of fixing liability on the former for acts of the latter under the doctrine of respondeat superior, it is indispensable that the right to select the person claimed to be a servant should exist. Furthermore something more than the mere right of selection is essential to the relation. This right must be accompanied with the power and duty to control the alleged servant while in his employ; this, it is said, is one of the principal tests of the relation. If workmen do not stand in such relation to the person sought to be charged , as to make it his duty to control them, they are not his servants and he is in no sense responsible for their acts under the doctrine of respondeat superior. Where the person employed is in the exercise of an independent and distinct employment, and not under the immediate control, direction and supervision of the employer, the latter is not responsible for the acts of the former.” 39 Corpus Juris, p. 1269, §§ 1453 and 1454.
“The accepted doctrine is that, in cases where the essential object of an agreement is the performance of work, the relation of master and servant will not be predicated, as between the party for whose benefit the work is to be done and the party who is to do the work, unless the former has retained the right to exercise control over the latter in respect to the manner in which the work is to be executed. This attribute of the relation supplies the single and universally applicable test by which the servants are distinguished from independent contractors.” 1 Labatt’s Master and Servant, § 64.
“There is a marked distinction between the liability of the master for the acts of an ordinary servant in the usual scope of his duties as such, and that of an employer for the acts of an independent contractor.
“This distinction rests upon the reasonable principle that, in a proper case, the liability of the master should be commensurate with the extent only of his right to control. [Citing cases.]
“In the first relation, that of master and ■servant, the master has the right to direct the conduct of the servant and the mode and manner of doing the work, and hence his corresponding liability for an improper execution of the same. (Wood on Master and Servant, sec. 281.)
“ ‘He is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents not merely in the ultimate result of the work, but in all its details.’ (Shear. & Red. on Neg., sec. 73).
“In the second relation, that of employer and independent contractor, there is no such control and direction by the employer over the servant in the details of the work.
“ ‘The true test ⅜ * * ' by which to determine whether one who renders service to another does so as a contractor or not, is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of the work, and not as to the means by which it is accomplished.’ (Shear. & Red. on Neg., secs. 76 — 79; 1 Red. on Railways, 505; Pack v. Mayor of City of New York, 4 Seld. [8 N. Y.] 222.)” Cunningham v. Ry. Co., 51 Tex. 503, 32 Am. Rep. 632.
“As a practical proposition, every contract for work to be done reserves to the employer a certain degree of control, — at least to enable him to see that the contract is performed according to the specifications. The employer may exercise a limited control over the work without rendering the employee a mere servant, for the relation of master and servant is not inferable from the reservation of powers which do not deprive the contractor of his right to do the work according to his own initiative so long as he does it in accordance with the contract. The control of the work reserved in the employer which makes the employee a mere servant is a control, not only of the result of the work, but also of the means and manner of the performance thereof; where the employee represents the will of the employer as to the result' of the work but not as to the means or manner of accomplishment, he is an independent contractor.” 14 R. C. L. p. 68, § 4.

Pertinent to the matter of instructions by defendant’s manager in Wichita Palls, given to the truck driver, we cite the following:

“Much stress is laid upon the fact that the winchman obeyed the signals of the gangman, who represented the master stevedore, in timing the raising and lowering of the cases of oil. But when one large general work is undertaken by different persons, doing distinct parts of the same undertaking, there must be co-operation and co-ordination, or there will be chaos.- The giving of the signals under the circumstances of this ease was not the giving of orders, but of information; and the obedience to those signals showed co-operation rather than subordination, and is not enough to show that there has been a change of masters.” Standard Oil Co. v. Anderson, 212 U. S. 215, 29 S. Ct. 252, 256, 53 L. Ed. 480.
“While the general rule is that a master is liable for the acts of his employee done within the scope of his employment, it is equally well settled that the rule applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong at the time of the injury,- and in respect of the very transaction out of which the injury arose. In other words, if this is not shown, the doctrine of respondeat' superior does not apply.” 39 Corpus Juris, p. 1268, § 1452.

To a like effect:

“As an independent contractor is conceived to be a person who merely agrees to execute a specific piece of work, and is not under the direction of his employer, it necessarily follows that under ordinary circumstances the servants hired by him for the purposes of the work do not stand in the relation of servants to his employer.
“Except in a few well-defined situations, which will be discussed later, the principal employer is not liable for an injury caused by the wrongful act of a servant of the contractor. In those jurisdictions in which the common law has been so far changed by statute as to enable a servant .to maintain an action against his master f-or an injury caused by the negligence of a coservant, the liability of the employer is negatived by evidence which sho.ws that the wrongdoer was not in his service.” 1 Labatt’s Master and Servant, §§ 34 and 36.

See, also, McLeod v. Security Union Ins. Co. (Tex. Civ. App.) 22 S.W.(2d) 952; Gulf Ref. Co. v. Jackson (Tex. Civ. App.) 250 S. W. 1080; Trachtenberg v. Castillo (Tex. Civ. App.) 257 S. W. 657; Hooper v. Brawner, 148 Md. 417, 129 A. 672, 42 A. L. R. 1437.

“Although all three are, in a large sense, agents, yet in ordinary legal usage the agent —and the servant also — is further to be distinguished from the ‘independent contractor,’ who is one who exercises some independent employment, in the course of which he under-' takes, supplying his own materials, servants and equipment, to accomplish a certain result, not being subject while doing so to the direction and control of his employer, but being responsible ■ to him for the end to be achieved rather than for the means by which he accomplishes it.
“Such a person is not an agent, in the sense in which that term is here used, and has no authority to bind his employer in any form of contractual dealings. The employer, moreover, in the ordinary case, not having the legal power of control, is not responsible to third persons for the neglects or defaults of. the independent contractor occurring in the performance of his undertakings, while he would ordinarily be responsible for like neg-1 lects or defaults if the person employed were his servants.” 1 Meehem on Agency, § 40, p. 25.'
“The independent contractor, also, has usually no authority to employ agents, servants or other contractors for his employer. It is usually of the very essence of this relation, as has been seen, that the independent contractor is to accomplish the results stipulated for, by the employment of his own agents, servants and employees, and that the employer shall not be liable for the negligence or defaults of either the independent contractor himself or of his servants, agents or employees.” 1 Meehem on Agency, § 336, p. 250.

Tested by the principles announced in the above authorities, the testimony introduced by the defendant and referred to above was sufficient, prima facie, to support a finding that the truck driver was the servant of the Texas Power & Light Company, who, as independent contractor, undertook to do the work which was being performed by him. And, if that be true, then the truck driver was not the agent of the defendant in doing the work, and therefore the trial court’s instruction to the jury on the issue of agency was too broad in its scope, and was erroneous, in that its effect would be to exclude the defense of independent contractor. . It is to be noted further that there was an entire absence of proof that the defendant company ever hired Everetts to perform any service, and therefore there was no proof of relation of master and servant existing between them.

The issue raised by plaintiff’s pleading, to the effect that the defendant and the Texas Power & Light Company were in fact one and the same company operating under separate charters for their convenience, and the further alternative issue that they were engaged as partners and that the service performed by the truck driver was done for the use and benefit of the partnership, were not submitted, nor did plaintiff request the submission' of the same, and therefore his alleged right of recovery on either of those issues was waived. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084. Some of the testimony introduced by plaintiff was sufficient to make a prima facie showing of the right of recovery except as that proof was overcome by other proof of the character indicated. In view of that showing, we overrule the assignment of error to the action of the court refusing defendant’s request for an instructed verdict in its favor.

There are other assignments of error which will not be discussed, since the judgment of the trial court must be reversed and the cause remanded, and the questions presented in those assignments may not rise upon another trial.

Eor the reasons given, the judgment of the trial court will be reversed, and the cause remanded.


text:
    WICHITA ROYALTY CO. v. CITY NAT. BANK OF WICHITA FALLS.
    No. 12549.
    Court of Civil Appeals of Texas. Fort Worth.
    March 7, 1931.
    ICilgore & Rogers, of Wichita Palls, for appellant.
    Bullington, Humphrey & King, of Wichita Palls, for appellee.
   CONNER, C. J.

This is an appeal from an order of a district court of Wichita county appointing a receiver for the properties of the Wichita Royalty Company. The receiver was appointed upon the application' of the appel-lee, the City National Bank of Wichita Falls, in a suit against the appellant, the Wichita Royalty Company, and its sole trustee, E. E. Scannell, in which the appellee sought to recover upon a note for $22,000, dated January 26, 1930, executed by the Wichita Royalty Company and payable to the bank. Recovery was also sought for $14,596, alleged to be due upon a note of $43,000 executed by the Texas Investment Company, a corporation, dated June 9, 1930, and indorsed by the Wichita Royalty Company. To secure the amount due on the $22,000 note, the plaintiff alleged and sought to have foreclosed a deed of trust executed by the Royalty Company, covering specified royalty interests in Young and Limestone counties. It also alleged an equitable lien upon all of the assets of the association by reason of the declaration of trust creating the joint-stock association.

The plaintiff alleged that the properties of the Royalty Company “are producing oil properties, and are being depleted, that is to say, that oil is being produced therefrom and said properties are being depleted, and said properties and assets, as well as the Wichita Royalty Company should be placed in the hands of a receiver to take charge of, conserve the same, and'liquidate the indebtedness pending this litigation; that said receiver is necessary for the reason that'said Wichita Royalty Company is insolvent, or is at least threatened with insolvency, and that the said defendant has no ready assets with which to pay its obligations; that E. E. Scannell has been in charge of the books and records of said Royalty Company since its creation, and is a shareholder and trustee and is liable personally along with the Wichita Royalty Company for this indebtedness, and is refusing to apply the proceeds of the oil produced from said properties to the liquidation of this indebtedness.”

It was further alleged that the Royalty Company and E. E. Scannell did not have “sufficient assets to pay said indebtedness in the ordinary course of business, and cannot realize or will not within a reasonable length of time realize sufficient assets with which to pay its obligations, and it is in an insolvent condition.”

In reply to the application for the appointment of a receiver, the defendant pleaded that it was a trust estate operated under articles of agreement whereby its properties at all times material to the controversy were vested in the trustee for the use and benefit of the numerous stockholders, of all which the plaintiff had notice. It tether pleaded, in substance, that the $22,000 note had been executed in renewal of previous notes, and that one George W. Peckham, since deceased, as trustee of the Royalty Company, had complete control of its affairs, and as such directed the bookkeeper of the association to execute checks payable to the order of the plaintiff as pro tonto payments upon the obligations due the bank; that the checks so issued were received by the bank and appropriated to the payment of the independent indebtedness of Peckham; that the aggregate amount of the checks so executed and appropriated was $15,250; that in November, 1927, the association had effected the sale of certain of its mineral interests to the Petroleum Royalties Corporation for a consideration of $6,000; that on the 16th day of February, 1928, the defendant had sold to the American Mineral Spirits Corporation of Chicago an interest in realty for an agreed consideration of $6,000; that both these sums of money had been received by the officers and agents of the plaintiff bank with knowledge of the nature of the fund, notwithstanding which the several sums were illegally credited to the account of said Peckham. *

Aside from the insufficiency of the petition, we have carefully read the statement of facts approved by the trial court, and fail to find any sufficient support for the court’s order. The court’s order vested in the receiver full possession and control; not only of all of the properties of the Royalty Company, but also of its books, bills receivable, etc. It has been uniformly held that a receivership is a harsh remedy, and one that should not be granted except in clear cases. Article J2293 of our Statutes provides that:

“Receivers may be appointed by any judge of a court of competent jurisdiction of this State, in the following cases:
“1. In an action by a vendor to vacate a fraudulent purchase of property; or by a creditor to subject any property or fund to his claim; or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.
“2. In an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, when it appears that the mortgaged property is in danger of being lost, removed or materially injured; or that the condition of the mortgage has not been performed and the property is probably insufficient to discharge the mortgage debt.
“3. In cases where a corporation is insolvent or in imminent danger of insolvency; or has been dissolved or has forfeited its corporate rights.
i “4. In all other eases where receivers have heretofore been appointed by the usages of the court of .equity.”

It is to be noted that, if the applicant for the appointment of a receiver is a mere creditor under the first division of the article, he must show that “the property or fund is in danger of being lost, removed or materially injured”; if by a mortgagee, under subdivision 2, it is the same, he also must make it appear that “the mortgaged property is in danger of being lost, removed or materially injured.” The third subdivision in terms is limited to corporations that are insolvent or in imminent danger of insolvency, or have been dissolved or have forfeited their corporate rights; in all other cases “where receivers have heretofore been appointed by the usages of the court of equity.”

The rule of equity, as stated in Story’s Equity Jurisprudence, vol. 2, § 1153, p. 532, is that:

“In such cases Courts of Equity will pay a just respect to such legal and equitable rights and interests of the possessor of the fund, and will not withdraw it from him by the appointment of a receiver, unless the facts averred and established in proof show that there has been an abuse, or is danger of abuse, on his part. For the rule of such courts is not to displace a bona fide possessor from any of the just rights attached to his title, unless there be some equitable ground for interference.”

The case of Sunshine Consol. Oil Co. v. Preehel, 268 S. W. 1051, by this court, was the case of a corporation. It was therein held that a petition for the appointment of a receiver which contained no allegations of mismanagement or waste, nor allegation which suggested that a receiver, if appointed, could manage and operate property more successfully than could the corporation itself, was insufficient; that an allegation that the business was being run at a loss was a mere pleader’s conclusion; and that the petition for the appointment of the receiver which alleged certain indebtedness of the corporation, but did not allege its assets, did not allege sufficient facts to show insolvency.

In another case by this court, to wit, Phoenix Oil Co. v. McLarren, 244 S. W. 830, it was held that a trustee’s possession will not be interfered with by the appointment of a receiver, unless there is real danger from his misconduct; and that mere general allegations of dishonesty and fraudulent designs without allegations of specific act do not justify taking property from a trustee and putting it in the hands of a receiver. In that case it' was further held that the appointment of a receiver should not be made when there is another and safe remedy, or less stringent means of protecting the property can be found; and, further, that it is within the power of the court of equity to remove a trustee and appoint another.

J. T; Harrell, president of plaintiff bank, testified, among other things, that he was “familiar” with the “assets” of the Royalty Company, and that “they are of less value than the Royalty’s debt to the bank.” The evidence shows that the Royalty Company owns royalty interests in a number of companies, but the value of the several interests is not shown other than as by the statement of the witness, as we have quoted. It is evident that the statement is very general. No value being stated of any one or more of the several interests, it can hardly be said, we think, that such general statement sufficiently supports an allegation that the 'Royalty Company is insolvent. But, if it be so conceded, as will be seen from the authorities we have cited, mere insolvency does not justify the appointment of a receiver. In neither allegation nor evidence do we find where the Royalty Company or its trustee Scannell has committed waste. We find" numerous definitions of the word “waste” in Words and Phrases, Second Series, Yol. 4, page 1252 et seq. Among them we quote the following:

-- “ ‘Waste’ consists of some definite physical injury to the premises leased. Lehmeyer v. Moses, 127 N. Y. S. 253, 259, 69 Misc. Rep. 476.”
“ ‘Waste’ may be defined as the ‘doing of those acts which cause lasting damage to the freehold or inheritance, or the neglect or omission to do those acts which are required to prevent lasting damage to ■ the freehold or inheritance. The term is not an arbitrary one, to be applied inflexibly, without regard to the quality of the estate, or the relation, to it of the person charged to háve committed the wrong, but the question as to whether it has been committed in a given case is to be determined in view of the particular facts and circumstances appearing in • that case.’ ”

The widest extent that can be given the allegations of plaintiff’s petition and of the evidence is that the properties of the association were being “depleted.” It is a part of the general history of the country, and we judicially know that a royalty interest constitutes under our decisions realty ; that the interest is made fruitful by the owner of the leasehold estate drilling and producing oil, the royalty owner receiving the royalty in oil as produced. While it may be true that the continued production from a given well or wells may deplete in a measure the source of the supply, such depletion certainly cannot be said to be “waste” in the sense authorizing the appointment of a receiver. It is not alleged, nor is it shown, that the trustee or any one of the other members of the trust association are insolvent, or that the trustee Scannell is so acting as to destroy or injure the royalty interests or undertaking any fraudulent disposition of the proceeds, nor does the record show that the receiver can more advantageously conserve the property than the trustee, or that he is threatening to unlawfully dispose of the property; nor does-it appear that the plaintiff bank may not, upon a proper showing, attach the properties of the association or sequester the proceeds arising from the sale of the oil.

We conclude that the record wholly fails to show a right in the plaintiff bank to the appointment of a receiver. It is accordingly ordered that the order of receivership be set aside, the receivership vacated, and the costs of the receivership, ds well as of this appeal, be taxed against the appellee bank.


author: BUCK, J.

text:
    WILLIAMS v. PENICK-HUGHES CO.
    No. 12407.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 31, 1931.
    Rehearing Denied Feb. 7, 1931.
    Davenport & Crain, of Wichita Falls, for appellant.
    Mathis & Caldwell, of Wichita Falls, for appellee.
   BUCK, J.

Penick-Hughes Company, a corporation, sued L. Garrison, G. C. Hollis, both of whom were alleged to reside in the state of Oklahoma, and Curg Williams, alleged to reside in Gray county, Tex., doing business in the name of City Tinners & Plumbers at Plollis, Olcl. Plaintiff alleged that on or about June 10, 1926, for a valuable consideration, the defendants delivered to plaintiff one certain promissory note, dated June 10, 1925, in the sum of $463. That said note was entitled to a credit of $45, paid March 24, 1927. That said note was now past due • and unpaid; and that defendants were partners doing business in the name of the City Tinners & Plumbers, and were legally liable to plaintiff for the amount of said note, with interest and attorney’s fees, and that they had refused to pay said note, or any part thereof, to plaintiff’s damage in the sum of $550.

Defendant Curg Williams' answered by a general demurrer, and a sworn plea that the note mentioned in plaintiff’s petition was not signed or executed by him, nor by any person authorized by him to sign or execute it for him; that said instrument in writing was made without defendant’s knowledge or consent, and that he has never at any time ratified or confirmed the same.

In answer to this plea of non est factum, the plaintiff by a supplemental petition alleged that it had had dealings with the City Tinners & Plumbers of Hollis, Okl., a partnership composed of Curg Williams, L. Garrison, and G. C. Hollis, and that during said period of time, prior to the date of the note, Curg Williams held himself out and permitted himself to be held out as a partner owning one-third interest in said business in which each of the defendants were equal partners; that during said long period of time, plaintiff, relying upon said representations, at various times sold quantities of merchandise to said copartners and extended substantial credit, which plaintiff would not have done except for the representations made by Curg Williams, and the other parties above named; that he (Curg Williams) was a member of said partnership and that defendant Curg Williams represented to this plaintiff and to the publ’ic that he was a partner in said business, and allowed himself to be so held out and represented by the other members of said partnership. That prior to the time of filing this suit, plaintiff had no notice of any kind or character that said partnership had been dissolved; that at the time of making the partnership note herein sued on, to wit, June 10, 1926, defendant L. Garrison, manager of said partnership, represented to plaintiff that said partnership was still operating, and that said Williams was still a partner therein, and that'said representations were in writing. It was further denied that plaintiff had been given any character of notice of any .dissolution of said partnership. It was further alleged that the partners had failed to comply with the laws of the state of Texas and of the state of Oklahoma with regard to dissolution of partnership, and particularly that the said defendant Williams failed and refused to comply with said laws, and for this reason is liable to plaintiff for the full amount of said copartnership note.

Defendant Curg Williams by a supplemental answer' alleged that on November 15, 1925, he withdrew from the partnership with D. Garrison and G. O. Hollis. That at the time he withdrew he notified all the creditors of said partnership and notified the plaintiff Penick-Hughes Company by giving notice to W. H. Knight, a traveling salesman for Penick-Hpghes Company.

The case was submitted to a jury upon special issues, and the jury found (1) that the partnership of the City Tinners & Plumbers of Hollis, Okl., composed of Curg Williams, L. Garrison, and G. C. Hollis, was never dissolved prior to June 10, 1926; (2) that the notice of said dissolution, if there was a dissolution of said partnership, had not been given to W. H. Knight, a salesman of Penick-Hughes Company; (3) that defendant Curg Williams held himself out or permitted himself to be held out to Penick-Hughes Company as a partner in the City Tinners & Plumbers of Hollis, Okl., after November 15, 1925, in order to secure credit for said partnership, from Penick-Hughes Company.

Upon this verdict the court rendered judgment for plaintiff and against Curg Williams ; D. Garrison ■ and G. C. Hollis, not having been served with citations, were dismissed with-their costs.

From this judgment the defendant has appealed.

Opinion.

The first assignment of error complains that: “The jury received other evidence after the testimony had been closed by both sides and after the court had delivered his charge, which evidence came from two members of the jury who related their experiences with a partnership with which they had been connected and compared the facts in their case to the facts in the instant case to the injury of the defendant.”

The second assignment reads: “The jury did. not receive the law from the court but relied on statements from members of the jury as to what the law is and should be.”

Bill of exception No. 1, complaining of this alleged error, is quite lengthy and sets' out at length the testimony on the motion for rehearing. Mr. H. G. Birdwell was a witness, and testified that the jury found that the partnership had been dissolved, that is, some did, and some of the jurors voted that it had not been dissolved, but that he voted that it had been dissolved. That it was argued that, if one desired to withdraw from a partnership, he had to file a notice with the county cleric and have the notice of dissolution published in the paper and served by registered mail; that Mr. Carrell, foreman of the jury, stated that he had a similar experience and had to pay off an account due by the old partnership, that is, he said, practically the same way as was being required of Curg Williams. All of Rie jurors testified, and practically all of them stated, that conversations to the effect as testified by Bird well had been made by two of the jurors; that Mr. Carrell stated he did not believe, a partner could dissolve a partnership without the consent of the other partners; that he was at one time a partner in some lots, and that he had to pay an indebtedness created after he had attempted to dissolve the partnership, or at least after he had loft the partnership business.

The court did not define what constituted a partnership and did not expressly instruct the jury as to the statutory method of a dissolution of a partnership.

Article 6132, Rev. Civ. Statutes, reads: “No dissolution of such partnerships by the acts of the parties shall take place previous to the time specified in the certificate of its formation, or in the certificate of its renewal, until a notice of such dissolution shall have boon filed and recorded and published once in each week for four weeks in a newspaper printed in each of the counties where the partnership may have a place of business, if there be such papers, and if there be no newspapers published in such county, then in a newspaper published in the nearest county where there is one.”

Curg Williams testified that he notified W. H. Knight, the traveling representative of the plaintiff corporation, of his purpose to leave the partnership and go ⅛> McLean, Gray county; while R. E. Penick, the treasurer and manager of Penick-I-Iughes Company testified that when he entered the firm the members and owners of the partnership were L. Garrison, Curg Williams, and Tom Hollis. That this partnership lasted only a short time and G. C. Hollis bought out the interest of Tom Hollis, and that Curg Williams and L. Garrison continued as partners with him. That Mr. Knight never told him that Curg Williams- had withdrawn from, the partnership in 1925, when Knight was working for the corporation, at the time it was alleged the partnership was dissolved in 1925. That it was a part of Knight’s duty at that time to report any changes in the partnership of firms buying from the plaintiff. We are of the opinion that, if the conversation between Williams and Knight occurred as related by Williams, notice to Knight of the dissolution was constructive notice ⅛> tte plaintiff corporation, in the absence of proof by plaintiff, that he did not have authority to bind the plaintiff.

In Bonnet v. Tips Hardware Co. (Tex. Civ. App.) 59 S. W. 59, it is said, quoting from the headnotes: “Defendant withdrew from a partnership, his former partner continuing the business in the firm name. The latter bought goods from plaintiff on the firm’s credit, and subsequently gave a note in the firm name, in settlement of the account, receiving a written statement of the same at the time. The statement contained an indorsement by plaintiff’s agent, made previous to the execution of the note, that the court had decided' in certain cases that only the partner continuing the business was responsible. ■ Held, in an action on the note, that plaintiff was charged with constructive notice of the previous dissolution of the firm, and defendant was not liable.”

A partner who retires from the firm is not liable on a firm note subsequently executed to a payee having notice of the retirement. A partner, who retires from the firm, is liable to a creditor for the part of the account charged until notice of the retirement. Rodgers-Wade Furniture Co. v. Wynn, 156 S. W. 340, by the Amarillo Court of Civil Appeals. One seeking to recover against a retiring partner must establish that he knew at the time of the transaction that a partnership existed, of which the one sought to be held liable was a member; that he was in ignorance of any dissolution; and that he entered upon the transaction or extended credit in i-elianee upon the partnership as it had theretofore existed. Thompson v. Harmon, 207 S. W. 909, by -the Commission of Appeals.

Mr. Penick testified that plaintiff did not have a note signed by Williams and did not have any financial statements as to who the members of the partnership were that were signed by Williams; that he had never represented to the company that he was a member of that partnership; that he was most certainly positive that Mr. Knight did not report that Williams had withdrawn from the partnership in November, 1925. That the firm was a corporation and Knight was working for the corporation at the time. Knight did not testify.

Appellee urges that assignments 1 and 2 should not be considered by the court because said propositions are not in compliance with the briefing rules, in that each of said propositions is a mere abstract statement of law, and that each is vague and indefinite, complaining of many diverse matters in one proposition, and does not, as required by rules 30 and 31, state immediately and briefly the question in the case so as to acquaint the court at once with the question of error made. Appellant claims that it was within the dis-eretion of the court to set aside the verdict on account of misconduct'of the jury, and ap-, pellate courts do not disturb the verdict, where the trial court has refused a new trial for misconduct of the jury, unless the court has abused the discretion reposed in it by statute. He cites such eases as M., K. & T. Ry. Co. v. Andrews Lumber Co. (Tex. Com. App.) 206 S. W. 823; Green v. Enen (Tex. Civ. App.) 270 S. W. 929, writ of error dismissed for want of jurisdiction; Jones v. Railway (Tex. Civ. App.) 210 S. W. 749.

While some of those decisisns support ap-pellee’s contention that it was a matter of discretion of the trial court to overrule the motion for new trial, yet in later decisions a stricter rule has been adhered to by the Supreme Court.

In Bell v. Blackwell, 283 S. W. 765, Justice Speer writing the opinion, and. many other cases citing it, the Commission of Appeals held that error requires reversal if there is any reasonable doubt of its harmful effect, unless it affirmatively appears from the record that error was harmless. Since error requires reversal if there is any reasonable doubt of harmful effect, finding of actual prejudice is not necessary to authorize reversal.

We conclude that it was unauthorized for the jurors to discuss questions involving the experience of certain of the jurors, and further conclude that the discussion showed probable error. Therefore propositions 1 and 2 are sustained.

In an effort to convince the jury that Williams was a member of the partnership at the time and subsequent to the time of the execution of the note, the plaintiff offered in evidence* certain purported financial statements which appeared to have been made to R. G. Dun & Co. by the City Tinners & Plumbers of Hollis, Okl. None of these statements was signed by the appellant Curg Williams. It appeared that either L. Garrison or G. C. Hollis had made the statements, that they were made out of the presence and hearing of Williams, and that he never did at any time know that such statements were made and neither authorized nor ratified them. It appears that such statements were made subsequent to the removal of appellant from Hollis, Okl., to McLean, Tex.

In the case of Bush v. Kellogg Co. (Tex. Civ. App.) 34 S. W. 1056, a statement made to R. G. Dun & Co. was introduced in evidence, counsel for appellant having previously agreed in writing that this evidence might be introduced. Therefore, the court held that there was no error in its introduction. By way of obiter dictum the court said that: “Without this agreement we are not prepared to condemn as erroneous the action of the court in admitting it. Morgan’s denial of partnership was so at variance with the whole current of evidence that the court was not bound to accept as true his testimony that the report made to Dun’s Agency had been made without his knowledge or consent.”

We are of the opinion .that the trial court in admitting the report to R. G. Dun & Co. should have instructed the jury that, if Curg Williams had in fact withdrawn from the partnership in 1925, and had notified W. H. Knight, in 1925, that he was withdrawing from the partnership firm, such evidence was not admissible as against appellant.

In Robinson v. .First National Bank of Marietta, 98 Tex. 184, 82 S. W. 505, 506, Judge Gaines, speaking for the Supreme Court, said: “During the course of the trial one Kelly was permitted to testify to declarations made' to him by defendant Saxon, when neither defendant Robinson nor defendant Hoskins was present. The testimony admitted was as follows: ‘That in January, 1902, at Marietta, Ind. T., the defendant J. A. Saxon, in conversation with him, offered to sell him the interest of the defendants J. H. Robinson and W. A. Hoskins in the business at Marietta that was then being run under the name of Saxon, Pierce & Co., and stated to him that said Robinson and Hoskins were partners in said business.’ We are of opinion that it was error to admit this testimony. Before the declarations were admitted testimony had been produced which tended to show that Robinson and Hoskins were partners of Saxon and Pierce. As a general rule, the declarations of one tending to show his partnership with another are not admissible for the purpose of showing such partnership.”

Without the limitations by the court as suggested, we think the admission of this report to R. G. Dun & Co., made -by one of the remaining partners and long after Curg Williams had attempted to withdraw from the partnership and had left the state, constituted error.

By proposition No. 6, to the .effect that, where a party is sought to be held for partnership debts, and denies under oath that he is a member of said partnership at the time the debt was contracted, it is urged that it was error to permit the witness M. B. Smith, who was an employee of Penick-Hughes Company, to testify that the defendant Curg Williams was a partner with L. Garrison and G. C. Hollis, dping business as the City Tin-ners & Plumbers of Hollis, Okl., in 1926,' the witness further stating that he had no personal knowledge of said matter, and that his testimony that Williams was a partner was based upon reports which he had received from R. G. Dun & Co., and what salesmen for Penick-Hughes Company had told hiin. We think that the testimony shows that his information came from hearsay sources.

During the trial G. G. Hollis was permitted to testify that the note plaintiff had been sued on was a note signed by L. Garrison and given in payment for material and merchandise purchased by Hollis and Garrison while operating as City Tinners & Plumbers of Hollis, Okl. The defendant objected to the admission of this testimony, on the ground that it was no issue for the consideration of the court, and that the only issue in said suit was whether or not defendant Williams was liable on the note as being a member of said partnership. Appellant urges that the admission of the testimony tended to prejudice his right and make it appear that he was attempting to avoid paying an honest debt. While the testimony was probably not admissible, yet we think no harm was done in admitting it.

We have examined the other assignments of error and conclude that it is not necessary to discuss them, as we think what has already been said in a large measure disposes of the alleged errors.

For the reasons stated, the judgment will be reversed, and the cause remanded for a new trial, and it is so ordered.


author: RANDOLPH, J.

text:
    BOOZER et ux. v. SMITH et al.
    No. 3560.
    Court of Civil Appeals of Texas. Amarillo.
    March 11, 1931.
    Rehearing Denied April 1, 1931.
    Levens, McWhorter & Howard, of Lubbock, for appellants.
    Bean & Klett, of Lubbock, for appellees.
   RANDOLPH, J.

This suit was brought by Mrs. Josie A. Smith and Ruth Smith as sole heirs of E. O. Smith, deceased, against J. F. Boozer and wife, Susie Boozer, L. F. Free, and W. C. Carroll, defendants.

Plaintiffs allege in their petition that E. O. Smith sold merchandise and building materials to J. F. Boozer as set forth in a verified itemized account, amounting to $2,324.95, after allowing credits for all returns. It was also alleged that the building materials were used by Boozer in the erection of a house on a certain lot in the town of Lubbock for the owner of the lot, defendant Carroll; that J. F. Boozer was the contractor, and that Carroll executed a lien on said lot to secure a note for $3,500 and executed the note for that amount payable to said Boozer; that Boozer was not in a position to furnish the labor and. materials, and that, in order to obtain the materials and funds for paying the carpenters and other workmen, J. F. Boozer transferred and delivered the note to E. O. Smith, and that Smith furnished the building materials, etc., for the erection of said house.

Plaintiffs also allege that defendant Carroll had executed to Charles F. O’Neall a vendor’s lien note in the sum of $100 as part of the purchase price of said lot; that thereafter Carroll and wife conveyed said lot to defendant Free, who assumed the payment of the $100 note and also the $3,500 mechan-ie’s lien no-te; that Free and his wife conveyed said lot to defendant J. F. Boozer, subject to the indebtedness against same, meaning the $3,500. That plaintiff was compelled to pay and did pay to the owner of same the $100 vendor’s lien note, and thereby became subrogated to the rights and privileges of the owner of said note.

Plaintiffs pray for judgment against all of the defendants except Mrs. Boozer, for the amount owing on the account and on the $100 note, with interest and attorneys’ fees and for foreclosure of the vendor’s lien and constitutional mechanic’s and materialman’s lien on said lot.

The defendants Carroll and Free defaulted, but defendants Boozer and’wife answered by general demurrer, general denial, and sworn denial as to the account in part, setting out specifically certain items and also denying under oath the transfer and indorsement of the $3,500 note from Boozer to E. O. Smith. The Boozers also pleaded under oath the payment of said account and that the premises were their homestead.

The trial court submitted the case to the jury upon two special issues, as follows:

“1. Was the Carroll note dated July 21, 1928. in the sum of $3500.00. delivered to E. O. Smith as security for material used and for labor done on the Carroll job?”
“2. What was the value of the material and labor furnished by E. O. Smith on the Carroll job?”

The first question was answered by the jury in the affirmative, and the second was answered $1,700.

Upon this verdict the trial court rendered judgment in favor of the plaintiffs that they recover of and from the defendant L. F. Free the sum of $12S.99, with interest from date of judgment on the $100 vendor’s lien note, and that, as to the defendants Free and Boozer and wife, said indebtedness be decreed a vendor’s lien against the lot in controversy. It was further ordered, adjudged, and decreed by the court that the plaintiffs recover of the defendants W. C. Carroll, L. F. Free, and J. F. Boozer, the further sum of $1,700, with interest thereon from date of judgment. Further, the court decreed as against all of the defendants, first, the foreclosure of the vendor’s lien securing the payment of the first named sum of $100; and second, a foreclosure of the constitutional mechanic’s lien, materialman’s lien, and contract lien as they existed on the 21st day of July, 1928, and at all times .since said date, that order of sale issue, and also providing for execution for any balance remaining after sale under foreclosure proceedings against Oarroll, Free, and J. F. Boozer only. From this Boozer and wife have appealed.

The plea of homestead can be of no ' avail to the defendants Boozer. If they owed the debt, it was contracted by Carroll, a single man, who had and could have no homestead claim, for labor and material entering into the erection of the house. ' Carroll sold the premises to Free, who assumed the payment of the sums owing on the property. It was then sold by Free and wife to J. F. Boozer, who took the lot subject to the debts against it. Therefore, if the defendants Boozer were liable for the debts secured by the two liens, such liability accrued upon debts that existed both as purchase money and mechanic’s liens prior to their purchase of same, and such debts were not subject to the claim of home- , stead.

The defendants’ objection to the introduction in evidence of the verified account sued on for the reason that they had filed the affidavit required under article 3736, R. C. S., and such account was not admissible in evidence, cannot be sustained. The article referred to provides that such account shall be prima facie evidence where not denied in whole or in part by a counter affidavit. The effect of the plea of the counter affidavit is only to destroy the force and effect of the verified account as prima facie proof, but does not affect its admissibility.

“If the account for the refrigerator had not been verified by affidavit, it could have been presented to the jury, and no reason can be given to sustain the proposition that its verification rendered it incompetent evidence. It may be that it would not be such an account as, when verified, would, under the provisions of article 2323, Kev. St. 1895, make it prima facie evidence of its verity, still its verification would not render it inadmissible in evidence.” Standifer v. Bond Hardware Co. (Tex. Civ. App.) 94 S. W. 144, 145. See, also, 1 Tex. Jur. 350, 351, § 54.

The defendants quote from 1 ■ Tex. Jur., above noted, as follows: ■ “In view of, this provision (meaning the statute) a denial under oath of the justness of an account destroys its effect as proof.” This quotation is inaccurate, as the full wording thereof is “prima facie proof.”

There being many facts and circumstances in the evidence for the consideration of the jury in connection with the account upon which they could determine the amount due and owing by the defendants, the fact that the account was admitted in evidence cannot be used by the defendants to sustain their contention that the verdict and judg-. ment was rendered upon an unverified account, to the admissibility of which they had excepted.

The defendant J. F. Boozer was the contractor in the building of the house for the defendant Carroll, and Carroll executed a note for $3,500, payable to J. F’. Boozer, and also executed a mechanic’s and building lien securing the payment of same. Boozer admits that he carried these papers to E. O. Smith, while he claims that this was done for safe-keeping. And he also testifies that he had five or six jobs out of the Smith yard at one time; that he would pay for the material in those different jobs as he got the money from the loan company. That if the bill of lumber ran $1,100, and the loan was for $2,000, he would turn the whole amount over to Smith who would credit that particular job with the $1,100 and apply the balance on other jobs that he had under construction.

This is a tacit admission that E. O. Smith furnished the material that went into the Oarroll building. When the mechanic’s lien was sent to be filed, Smith sent it. It is also apparent that the evidence discloses beyond question that the material of which the Oar-roll house was constructed came from the E. O. Smith lumber yard.

The question as to whether or not the account was correct was a matter not within the province of this court to thresh out, but was one submitted to the jury. E. O. Smith, who furnished the material, and who should have been able to explain the item’s entering into the account, was dead at the time of the trial of the case; hence, the correctness of the account must have been established by the various circumstances in evidence. Where there is any evidence to support a jury’s finding, this court cannot disturb their verdict. It is true that the evidence is conflicting and it is also true that the defendant Boozer denied that he owed any part of it, but that was for the jury.

The plaintiffs’ petition seeks a recovery of the sum of $2,324.95, plus 10 per cent, interest due and owing on said account. The account offered in evidence was for the sum total of a like amount. The defendant Boozer’s answer, while denying that he owed the account, also sets out various items which he claims are unjust, amounting approximately to $620. Taking these items from the aggregate amount shown by the account leaves a balance of approximately $1,700 due and owing on the account. The jury found that the value of the material and labor furnished by E. O. Smith lumber yard and used on the Carroll job was the sum of $1,700. Presuming therefore that the jury found for the defendant Boozer on the contested items especially pleaded, then as to the balance of the account it is purely a matter for them to determine from the conflicting evidence before them whether Boozer had ever paid it or not.

We have carefully gone over the statement of facts and all propositions of error, and, finding no reversible error, we affirm the judgment of the trial court.