author: ELY, C. J.

text:
    MIGUEZ et ux. v. BLAKE.
    No. 8547.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 11, 1931.
    Rehearing Denied April 1, 1931.
    T. H. Ridgeway, of San Antonio, for plaintiffs in error.
    Robt. Harris, of San Antonio, for defendant in error.
   ELY, C. J.

Defendant in error applied for an injunction to restrain plaintiffs in error from erecting structures on her land and to prevent the obstruction of a certain street and alley, and for $500 damages. The injunction was granted, and plaintiffs in error commanded to remove all structures erected by them on the land of defendant in error, and enjoined from obstructing the alley and Fredericks-burg Road.

A judgment by default was rendered by the court against the plaintiffs in error, who were defendants in the lower court, who, however, after the trial agreed to the statement of facts. How the -defaulting parties became well enough acquainted with the facts to agree to the statement is not disclosed; 'nor is it clear as to why -the defendant in error agreed to any statement of facts with the plaintiffs in error. That statement of facts is made the basis of seven of the ten assignments of error. Out of the assignments have been evolved seventeen propositions. This is extraordinary following a judgment by default.

The statement of facts was agreed to and filed nearly eight months after the court adjourned, on Febuary 1, 1930.

Article 2246, Rev. Stats. of Texas, requires a statement of facts to be filed within eighty days after the adjournment of the court, or within ninety days from the date of judgment, in case the term of court was more than eight weeks in duration. The statute applies with equal force to cases of appeal and writs of error. Tex. Jur. §§ 475 and 478; White v. Taylor (Tex. Civ. App.) 11 S.W.(2d) 374; Martin v. Martin (Tex. Civ. App.) 229 S. W. 695. The statute is mandatory. Foster v. Bourgeois (Tex. Civ. App.) 253 S. W. 880, affirmed 113 Tex. 489, 259 S. W. 917; St. Louis Southwestern R. Co. v. McCord (Tex. Civ. App.) 199 S. W. 526. Numerous decisions hold that no such statement of facts can be considered. Section 478, .Tex. Jur. The approval of the statement of facts by the judge could not be deemed equivalent to an extension' of the time, because the statement was approved after the court had lost jurisdiction by the writ of error having been perfected to this court. The district judge had no authority to make any order in the case after the jurisdiction of this court had attached. There being no statement of facts, the seven -assignments of error based on the evidence must be discarded as without foundation.

This is not an action of trespass to try title, and in the prayer no adjudication of the title was sought, and consequently the judgment did not attempt to adjudicate the title, -but an injunction was sought to restrain plaintiffs in error from building obstructions on the land of the complainant and to prevent obstruction of a street and alley on which her. property was situated, and to command plaintiffs in error to remove structures erected on the land or on the street and alley.

The allegations of the petition were sufficient to sustain the judgment, and in the absence of a statement of facts it will be presumed that the evidence sustained the judgment rendered by the court.

There being no merit in any of the assignments of error, the judgment is affirmed.

On Motion for Rehearing.

Defendant in error applied for an injunction to restrain plaintiffs in error from' erect-lug structures on her land and to prevent the obstruction of a certain street and alley, and for §500 damages. The injunction was granted and plaintiffs in error commanded to remove all structures erected by them on the land of defendant in error, and enjoined from obstructing the alley and Fredericksburg Road.

A judgment by default was rendered by the court against the plaintiffs in error, who were defendants in the lower court, who, however, after the trial agreed to the statement of facts. How the defaulting parties became well enough acquainted with the facts to agree to the statement is not disclosed; nor is it clear as to why the defendant in error agreed to any statement of facts with the plaintiffs in error. That statement of facts is made the basis of seven of the ten assignments of error. Out of the assignments have been evolved seventeen propositions. This is extraordinary following a judgment by default.

The statement of facts was agreed to and filed nearly eight months after the court adjourned, on February 1, 1930.

Under article 2073, Revised Statutes of Texas (now article 2246), as construed by this court, which construction was approved by the Supreme Court, the statement of facts, although approved and filed- nearly eight months after the adjournment of the court at which the cause was tried, was filed in time and consequently must be considered by this court. Louisiana-Rio Grande Canal Co. v. Quinn (Tex. Civ. App.) 160 S. W. 151; City of Aransas Pass v. Hose Co. (Tex. Civ. App.) 227 S. W. 330. It is in those decisions held that the statute is applicable to writs of error and that as long as the record in a writ of error can be filed the statement of facts can be filed. While that rule is well established, it would seem that it renders farcical orders of extension of time in which to file statement of facts. However, this state of affairs had been produced by the language of the statute which has been properly construed.

The evidence sufficiently shows that plaintiffs in error had advanced the line of their property so as to obstruct an adjacent alley, and had also taken a portion of Fred-ericksburg Road, as located by an egineer for the city in 1924. Several engineers testified to facts showing that plaintiffs in error had invaded the alley to such an extent as to practically close and prevent ingress to and egress from the property of defendant in error, and had appropriated ten feet of the Fredericksburg Road. We overrule the first seven propositions of plaintiffs in error.

This is not an action of trespass to try title, and in the prayer no adjudication of the title was sought, and consequently the judgment did not attempt to adjudicate the title, but an injunction was sought to restrain plaintiffs in error from building obstructions on the land of the complainant and to prevent obstruction of a street and alley on which her property was situated, and to command plaintiffs in error to remove structures erected on the land or on the street and alley.

Plaintiffs in error had invaded substantial rights of defendant in error, and she was authorized to prosecute a suit to compel plaintiffs in error to remove -all obstructions to the street and alley and all structures that were on the land of defendant in error.

Our former opinion is withdrawn, in which we had refused to consider the statement of facts, but we adhere to the result reached in the former opinion, and the judgment will be affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    FULLER v. SECURITY UNION INS. CO.
    No. 12385.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 7, 1931.

      W. M. Short and I-I. M. Harrington, both of Fort Worth, for appellant.
    John N. Jackson and Julian B. Mastín, both of Dallas, and King, Wood &. Morrow, of Houston, for appellee.
   DUNKLIN, J.

The Security Union Insurance Company issued five fire insurance policies to different owners of property situated in the city of Fort Worth. These policies were issued to different firms and individuals, and each of them stipulated for insurance for one year from date. Two of those policies bofe date February 14, 1928, one February 27, 1928, another March 20, 1928, and another May 19, 1928, and all were for different amounts. Each of those policies recited the payment of premium paid for one year, and each one stipulated that it would expire one year after its date. Each of the policies contained this stipulation:

“This policy shall be cancelled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation. If this policy shall be cancelled as hereinbefore provided, or become void or cease, the.premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is cancelled by this company by giving notice it shall retain only the pro rata premium.”

All of those policies were canceled on October 25, 1928, by the insurance company, acting under the provisions just quoted giving it the right to so cancel.

The firm of Hard & Hard, who were engaged in the insurance business, in Fort Worth at the time, issued all of those policies, signing the name of “Security Union Insurance Company, Fort Worth, Texas,” and they were duly authorized by the company so to do. At that time W. F. Fhller was likewise engaged in the fire insurance business in the city of Fort Worth and Hard & Hard issued the policies at his request. The parties to' whom the policies were issued' had applied to him for such insurance, but since he did not represent insurance companies who would issue the policies of the character desired, he procured their issuance through Hard & Hard, according to a custom between such agents when one could not supply his customer with the insurance desired and some other agent represented a company or companies who would issue ’ such insurance. The policyholders paid the premiums recited in the policies to W. F. Fuller, the same being the full amount required to cover the insurance for one year from the respective dates of issuance.

Fuller did not ■ turn over the premiums so collected by him either to Hard & Hard or to the insurance company, but he credited the firm of Hard & Hard therewith on an account between those two agents, according to which account Hard & Hard then owed him a total greater than the amounts of premiums so collected. The amounts so owing to Fuller by Hard & Hard were not for premiums collected on insurance, but were for services rendered by Fuller in appraising property for a mortgage company for which Hard & Hard were also doing business.

After the policies were canceled, Fuller issued to the holders of the same, policies in other companies represented by him and credited the parties taking the same with the amounts of the refunds on the old policies in the way of payment of premiums on the new ones. At the same time he took an assignment of such refunds to him in consideration of credits so given.

This suit was instituted by Fuller to recover of the insurance company the amount of such refunds and he has appealed from a judgment denying him that relief. The case was submitted to a jury on special' issues, which, together with the findings thereon, are as follows:

“1. Did a mutual contract exist between plaintiff and Hard & Hard at the time in question, whereby accounts would be debited and credited by them as such accounts accrued?
“Answer: Yes.
“If you answer ‘no,’ you need not answer further; but if you answer ‘yes,’ then answer:
“2. Did the plaintiff by such debits and credits pay to Hard & Hard the premiums upon the policies described in plaintiff’s petition?
“Answer: Yes.
“3. Did Hard & Hard have authority from Security Union Insurance Company to make the debits and credits, if any, of their mutual accounts with plaintiff?
“Answer: No.”

Testimony offered, conclusively proved that neither the defendant company nor the firm of Hard & Hard ever received any part of the premiums paid to Fuller by the policyholders, unless it can be said that the charge made by Fuller against Hard & Hard en the account he kept with them was equivalent to a payment of those premiums in money. It was proven by uncontroverted testimony that a custom prevailed among insurance agents doing business in' the city of Fort Worth, for one agent to procure insurance for his clients through an agent representing other insurance companies under certain conditions, the premiums for insurance so procured, in some instances at least, being collected by the first agent. Accounts between the two agents were kept in which each agent was charged and credited with the business done in pursuance of such inter-agency plan, and at the c-lose of stated periods a balance would be struck and the account settled by payment from one agent to the other of the balance thus shown to be owing.

However, it was a controverted issue under the testimony as to whether that custom related exclusively to premiums collected on insurance policies. The plaintiff’s testimony was, in substance, that according to that custom he had the right to charge up against Hard & Hard demands against them growing out of any and all transactions whether arising in the insurance business or not, and therefore the charges made against Hard & Hard for appraisal work done for them in connection with the mortgage business for another company was a proper offset against the amount he owed Hard & Hard for the premiums collected on the policies in question. That testimony of plaintiff was flatly contradicted by that of the witness H. M. Hard, who testified that the custom of accounting between agents was confined solely to premiums collected for insurance, and that there was no custom for one agent to charge another agent on an account kept for inter-agency insurance with any debits arising from any other character of transaction.

But the findings of the jury in answer to issues Nos. 1 and 2 were, in effect, that the custom was as testified to by Fuller, and according to which he had the right to charge Hard & Hard for the service he had rendered them in appraising property for loans to the same extent as if those debits had arisen from insurance premiums.

The testimony of M. 0. Spann, who was the special agent of the defendant company, was that the insurance company did not look to the insured for the premiums but looked only to the agent for the premiums due on policies issued by such an agent, and that defendant charged the premiums credited by plaintiff to Hard & Hard when the policies were issued. That testimony was corroborated by other witnesses, and there was no testimony to the contrary. The proof further showed that the defendant company terminated the agency of Hard & Hard about the time the policies in controversy were canceled, and took from them a promissory note covering all premiums with which they had been charged and had not remitted to the company, which note included the premiums on the policies in controversy, but which note has never yet been paid. J. M. Hard, a member of the firm of Hard & Hard, testified in part as follows:

“At the time this note was executed in the Houston office of the company, there was no understanding or collateral agreement regarding credits on the note. * * *
“Those policies were sent down to the Security Union’s office with a sight draft attached; they referred it back to Mr. Fuller and sent us a copy of the letter saying that the settlement would be made in our office. Well, there is where the transaction ended. We never got any further than that. And when that note was given, it included the premiums on those policies, and is still in there today.”

Following are excerpts from Oooley’s Briefs bn Insurance (2d Ed.), which announcements are well supported by authorities there cited:

“So, if an insurance company charges the premium to the agent’ or broker through whom the policy is obtained, such transaction is equivalent to payment so far as the Company is concerned.” Volume 1 (2d Ed.) p. 716.
“In general, the acceptance by an insurer of an insured’s note for the first premium will make the contract of insurance binding, even though the policy requires the premium to be paid before the contract shall become effective.” Volume 1, p. 719.
“The agreement of an agent’of an insurance company to take a note in payment of the premium is binding on the Company (Hughes [Hughs] v. Farmers’ Ins. Co., 4 Ohio Dec. 412, 2 Cleve. Law. Rep. 125); and an agent authorized to close the contract of insurance by delivering the policy and collecting premiums has, in general, implied authority to accept notes for the premium.” Volume 1, p. 720.
“Ordinarily the company must receive payment in lawful money to be bound; but if the company accepts a draft given by the insured on a third person, and receipts therefor, this will constitute payment (Texas Mut. Life Ins. Co. v. Munson, 2 Posey, Unrep. Cas. [Tex.] 649). So too, the note of a third person is payment, when the company accepts it in lieu of cash as premium payment (State Life Ins. Co. v. Little [Tex. Civ. App.] 264 S. W. 319). * * * Premiums need not necessarily be paid in cash or its equivalent. They may be paid in services. Thus a company may agree to take advertising in payment for a premium, and if a company does so agree it must furnish the advertising matter. A failure to do so cannot affect the rights of the insured. (Kentucky Mut. Ins. Co. v. Jenks, 5 Ind. 96.)” Volume 2, p. 1635.
“So an agreement made in good faith between an insurance agent, having authority to receive a premium, and the insured, that the 'agent shall become personally responsible to his principals for the amount of- such premium, and the insured his personal debtor therefor, constitutes a payment of the premium as between the insured and the insurance company (Bouton v. American Mut. Life Ins. Co., 25 Conn. 542). And it is not necessary that the agreement be express. It may be based on a custom. Thus if an agent charges an insured with a premium when due, and credits the- company with the payment to himself of such premium, intending to call lipón the insured for the money when he need's it, as customary, this will constitute a payment by the agent for the insured, so that there can be no forfeiture for nonpayment.” Volume 4, pp. 3642, 3643.

The findings of t£e jury in answer to issues Nos. 1 and 2 cannot be disturbed for lack of sufficient evidence to support them, and the facts so found must be accepted by this court as true. By reason of those facts, in connection with the further facts that the defendant company did not look to the holders of the canceled policies for the payment of the premiums for the first year, but charged the same against their agents, Hard & Hard, who represented the company, and, later, took from Hard & Hard their promissory note covering those premiums, it cannot be denied that the contracts of insurance by the defendant company with the holders of those policies were valid and binding. Those policies expressly stipulated for payment by the defendant company to the policyholders of the unearned premiums in the event of cancellation of the policies. There were no pleadings on the part of defendants presenting the issue of fraud, accident, or mistake, nor of any special equities which would constitute a defense as against plaintiff’s suit; nor. could there be any such equities arising from any of the facts shown in the record.

It follows, therefore, that the plaintiff, as assignee of the policyholders, acquired the same rights to a return by the insurance company of the unearned premiums as was pos-" sessed by his assignors.

Furthermore, the absence of any authority from the defendant to Hard & Hard to make the debits and credits of their mutual accounts with plaintiff, as found by the jury in. answer to issue No. 3, could not have the effect to defeat a recovery in this ease, since by reason of the facts recited above, the defendant company was bound to return to plaintiff the unearned premiums, independently of the fact so found by the jury in answer to issue No. 3.

Accordingly, the judgment of the trial court is reversed arid judgment is here rendered in favor of plaintiff for the sum of $365.50, the same being aggregate of the unearned premiums due the holders of the canceled policies at the time of their cancellation, as shown by undisputed proof appearing in the record, together with 6 per cent, interest thereon from October 25, 1928, the date of such cancellations up to the date of this judgment. It is to be noted that Hard & Hard were not made parties to this suit, therefore any equities as between them and the plaintiff, or between them and the defendant, are not involved in any of the issues presented here.


author: COBBS, J. SMITH, J.

text:
    UNIVERSAL TRANSP. CO. v. RAMOS.
    No. 8549.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 18, 1931.
    Rehearing Granted March 18, 1931.

      R. U. House, R. H. Mercer, and I. W. Grif-fiths, all of San Antonio, for appellant.
    • E. H. Crenshaw, Jr., Gus B. Kowalski, and G. W. Coffman, Jr., all of Kingsville, for ap-pellee.
   COBBS, J.

Appellee sued appellant to recover of him damages resulting from a collision, between appellant’s truck and the truck of appellee, while he was traveling along highway No. 16, in a northerly direction. It was alleged that the driver of appellant’s truck was passing appellee’s truck and was only a few feet in front or north of appellee’s truck when he suddenly and without warning to appellee turned his truck to the right and struck ap-pellee’s truck and knocked appellee into a ditch, overturning appellee; and appellee,al-leged that the driver and agent of appellant was guilty of negligence in turning his truck back to the right side of the road before completely passing appellee’s truck.

There were many exceptions filed to the petition, which were overruled by the court, and the case was submitted to the jury on special issues. The jury returned a verdict for appellee in the sum of $350, for which judgment was rendered by the court.

The jury gave affirmative answers to issues No. 1 to No. 4, inclusive, and in answer to issues No. 5 and No. 6 found that the accident was not an unavoidable one, and that $350 would adequately compensate appellee for the injuries he had sustained.

We do not think the court erred in not sustaining appellant’s general demurrer, because the petition did fairly state a good cause of action. The petition alleged plainly and sufficiently that the act was committed while the agent was acting within the scope of his employment.

We think there was no fundamental error committed in failing to give judgment for defendant, because the evidence established the fact that the negligence of appellant’s driver was the proximate cause of the collision, as a result of which appellee was thrown from his truck when the same was capsized and thrown against the steering wheel and windshield thereof, and was seriously and painfully bruised in various parts 'of his body, particularly his head, neck, shoulders, arms, back and legs, and iiis right elbow joint dislocated.

We do not think it was a material error that the state license No. 114074, was not correct; because it was alleged by ap-pellee that it was a truck owned and operated by appellant, and the description by state license number was not material in this case. This truche was otherwise shown, proven, and identified as one belonging .to the appellant, and the truck which caused the alleged injury and damage. McClelland v. Smith, 3 Tex. 213; Sealy Cotton Co. v. G. and S. (Tex. Civ. App.) 258 S. W. 911; Wilson, etc., Co. v. James (Tex. Civ. App.) 271 S. W. 424; Texas & Pacific Ry. Co. v. Easton, 2 Tex. Civ. App. 378, 21 S. W. 575; Gulf, C. & S. F. Ry. Co. v. Smith, 74 Tex. 276, 11 S. W. 1104.

The allegation in respect to the state license number should be treated as mere sur-plusage ; a plaintiff is only required to allege and prove the substance of an issue. Fort Worth & D. C. Ry. Co. v. Lovett (Tex. Civ. App.) 243 S. W. 519; Fishburn Motor Co. v. Davis (Tex. Civ. App.) 287 S. W. 1101.

The charge of the court on the proposition of evidence was substantially correct. It was not a charge on the weight of the evidence and did not tend to indicate to the jury one way or the other that in the opinion of the court either appellant or appellee had produced in court a greater amount of credible testimony.

Under the facts in this case we do not think the court should have submitted to the jury any question of unavoidable accident, for the reason that there -was no evidence to support an affirmative answer to such an issue. The error of the trial court in placing upon appellant the burden of proving that an unavoidable accident occurred was therefore harmless. The driver of the truck that struck appellee’s truck was not placed on the witness stand, nor did any witness attempt to explain the collision in any way which would indicate that it was due to an unavoidable accident instead of negligence of appellant’s driver wlio struck appellee’s truck. Dallas R. & Terminal Co. v. Darden (Tex. Civ. App.) 23 S.W.(2d) 739.

It was not error to admit the testimony (of L. G. Roekmer as to his conversation with Mr. Griffith, the adjuster representing appellant, to the effect that the appellant company acknowledged that it had a truck on the road that night crossing the highway from Kingsville to Corpus Christi.

We fail to see any conduct of the jury prejudicial to appellant that should cause a reversal of this case and a new trial. We will not undertake to set out the testimony on this point.

It was shown that the truck which was damaged did not belong to appellee, but to his father, and therefore the court instructed the jury not to consider the injury to the truck and the cost of repairing it, in arriving at the measure of damages suffered by appellee.

The judgment is small, and we think the case has been fully tried and properly disposed of. There is no error shown that should cause a reversal, and the judgment is affirmed.

On Motion for Rehearing.

SMITH, J.

On further consideration and analysis of the evidence, we conclude that it was sufficient to support the jury finding that the truck causing the accident was one belonging to appellant, and was being operated at the time by an employee of appellant on the latter’s errand.. We will restate the substance of the evidence. Shortly after the accident the constable at Bishop went from the scene of the accident in' pursuit of the “hit and run” truck, a description of which had been furnished him. After going a few miles he overtook a truck answering that description, examined it, found marks on it identifying it with the offending truck. In response to questions, the negro driver told the constable that he was “working” for appellant, and that the truck belonged to the latter. Subsequently, one of the partners constituting appellant admitted that on the night of the accident one of appellant’s north-bound trucks, operated by a negro driver, passed along the road on which the accident occurred. Appellant did not put this driver on the witness stand to refute any of this testimony, which was therefore uncontroverted. We conclude that this testimony, considered in connection with the failure of appellant to produce said driver as a witness, is sufficient to take to the jury the issue of whether the offending truck was in fact owned by appellant and operated by its driver. The admission of the individual appellants that one of their trucks was being operated on that road that night by one of its drivers is sufficient, in connection with the other facts proven, to raise the inference that said driver was operating the truck in the course of his employment.

We conclude that the judgment should be affirmed in accordance with the opinion of Associate Justice COBBS. Accordingly, ap-pellee’s motion for rehearing is granted, the majority opinion withdrawn, and the judgment affirmed.


author: WILLSON, C. J.

text:
    STEVENS v. SOUTHERN ICE & UTILITIES CO.
    No. 4006.
    Court of Civil Appeals of Texas. Texarkana.
    March 23, 1931.
    Rehearing Denied March 26, 1931.
    Phillips, Trammell, Chizum, Price & Estes, of Fort Worth, for appellant.
    Murphy W. Townsend and R. G. Scurry, both of Dallas, for appellee.
   WILLSON, C. J.

The appeal is from an order overruling appellant’s plea asserting a right he claimed tó be sued in Morris county, where he resided, instead of in Dallas county, where appellee commenced and was prosecuting the suit. For the purpose of the appeal the parties agreed that the facts of the case were as follows: July 7, 1928, appellant shipped to ap-pellee (a corporation), by rail from Morris county, 258 sacks of potatoes for storage by appelleé in its warehouse in Dallas, and July 11, 1928, shipped to it 174 sacks of potatoes for a like purpose. The freight charges on the shipments, amounting in each instance to $80.60, were paid by appellee, and to cover same appellant made and delivered to ap-pellee bis two promissory notes for $80.60 eacb, payable to appellee’s order in Dallas. Tbe suit was on these notes, and on an open account covering charges for storing the potatoes amounting to $503.16. The contention of appellee in its affidavit controverting appellant’s plea of privilege was that it was entitled to maintain the suit in Dallas county by force of exception 5 to the prohibition in article 1995, Revised Statutes of 1925, against suing an inhabitant of this state out of the county in which he has his domicile. Said exception 5 was as follows: “If a person has contracted in writing to perform an obligation in a particular county, suit may be brought either in such county or where the defendant has his domicile.” Appellee’s position in the matter is stat'ed in the record to be .that appellant “having given his two promissory notes in writing to pay freight charges advanced by appellee,” all of the other items (quoting) “arising out of the storage-of said potatoes by the plaintiff: (appellee) likewise may be sued on by the plaintiff in Dallas County.” Appellant’s position is that his undertaking to pay the notes in Dallas county “was (quoting) separate and distinct and for a specific item only, and had no reference to his obligation to pay the storage charges; that such notes could not be construed as a written obligation of his to pay the sum sued for, that is $664.16, to the plaintiff in Dallas County.”

Plainly, we think, appellant’s undertaking to pay the notes was a separate and distinct obligation from his undertaking to pay the sum covered by the open • account, and we would not for an instant hesitate to hold that the fact that the undertaking was to pay the notes in Dallas county did not entitle appel-lee to maintain the suit in that county so far as it was on the open account, but for the holding of the Supreme Court in Middlebrook v. Mfg. Co., 86 Tex. 706, 26 S. W. 935. In that case the suit was on three promissory notes— two of them by their terms payable in the county • where the suit was brought (which was a county other than the one in which the defendant had his domicile) and the other one not so payable. It was held that the plaintiff could maintain its suit on the three notes in the county where the defendant had contracted in writing to pay two of them and that the trial court erred when he sustained the defendant’s plea asserting a right he claimed to be sued on the other note in the county of his domicile. The court said,: “Two of the notes being payable in the county in which action was brought, the suit was properly brought there; and, in order to avoid multiplicity of suits, it was proper to embrace in the same action the other note.” The holding was approved by the Supreme Court as now constituted when it adopted the answer of a Commission of Appeals to a question certified in Warner v. Gohlman, Lester & Co., 117 Tex. 145, 298 S. W. .890, and we feel bound to treat it as decisive against appellant of the contention he makes.

The judgment is affirmed.


author: GALLAGHER, C. J.

text:
    SWIFT v. SWIFT.
    No. 1007.
    Court of Civil Appeals of Texas. Waco.
    March 19, 1931.

      C. H. Machen, of Mexia, and J. E. Bradley, of Groesbeck, for appellant.
    L. W. Shepperd, of Groesbeck, for appellee.
   GALLAGHER, C. J.

Appellee, W. P. Swift, sued appellant, Faye Swift, for divorce on the ground of cruel treatment and for the custody of a minor child, the only issue of their marriage.

There was a trial to the court and judgment in favor of appellee for divorce, and awarding the custody of the child to appellee for six months in each year and to appellant for the remainder of the year.

Appellant in her first proposition presents as ground for reversal the action of the court in overruling her general demurrer to appellee’s petition. The transcript does not show that such demurrer was ever presented to the court and his ruling thereon invoked. It was therefore waived. Southern Casualty Co. v. Morgan (Tex. Com. App.) 16 S.W.(2d) 533, par. 1. We have examined the petition, and are of the opinion that it is sufficient to support the judgment as against a contention of fundamental error. Southern Casualty Co. v. Morgan, supra, 16 S.W.(2d) page 533, par. 2; Caywood v. Caywood (Tex. Civ. App.) 290 S. W. 889, 890, par. 1; Ellis v. Ellis (Tex. Civ. App.) 251 S. W. 287, pars. 1 and 2.

Appellant in her second proposition contends that the testimony introduced is insufficient to sustain the judgment. The testimony shows 'that such relations existed between the parties as to render their further living together in mutual sympathy, co-operation, and happiness highly improbable, if not impossible. A recital of the same would have no precedential value. The finding of the court in favor of appellee was general, and therefore every issue of fact raised by the testimony must be considered found in his favor. Hines v. Kansas City Life Ins. Co. (Tex. Civ. App.) 260 S. W. 688, 690, par. 2, and authorities there cited. Since there was testimony raising the issue, such general finding will be construed to include the specific finding that the further living together of the parties would be insupportable. Appellant’s contention is overruled. Caywood v. Caywood, supra, 290 S. W. 890 et seq.; Ellis v. Ellis, supra.

Appellant in her third and last proposition contends that the judgment of the court awarding the custody of their infant child to appellee for six months in the year is contrary to the best interest of such child. This case was tried April 26, 1930. Patricia Bernice Swift, a female child, was the only issue of the marriage of the parties. 'She was about, 18 months old at the time of trial. Both of them asked for her custody. The court awarded her custody to appellee from May to October, inclusive, of each year and to appellant for the remainder of the time. The ' testimony does not show that appellee owns any property. He was employed at the time of the trial in the machine shops of an oil company at Mexia, and stated that he would continue in such employment as long as the company was satisfied with his services. He and appellant had lived together only about four months since the birth of said child. His contributions to its support after the final separation were small and finally ceased. He roomed at Mexia, in a building called a warehouse, and took his meals at a café. He frankly stated that he was not prepared to take care of said child at-Mexia, and that, if its custody were awarded to him, he would send it to his parents, who resided at a point in the panhandle about 4Ó6 miles from Mexia and about 600 miles from where appellant resided at the time. There is nothing in the record to show any special affection on his part for said child. Appellant testified that during much of the child’s life it had been in delic'ate health; that she and the child lived with her parents at Goose Greek near Houston ; that she was employed as a stenographer at $60.00 a month ; that her mother took care of the child during the day while she was absent at work, but that it received her special care and attention at night. The testimony showed that her parents were able and willing to aid her in its support and maintenance. Appellee in open court disclaimed any challenge of appellant’s moral character.

The statute invests the court in the trial of cases of divorce with authority to give the custody of the children of the marriage to either the father or the mother, as the court shall deem right and proper, having regard to the prudence and ability of the respective parents and the age and sex of the children. In determining to which of the parents the custody of a child should be awarded, its best interest and welfare are the paramount issues. The rights of the respective parents growing out of their relation to, affection for, or interest in such child are to be determined and fixed by the judgment rendered, but such rights are subordinate to its best interest and welfare. Hardy v. McCulloch (Tex. Civ. App.) 286 S. W. 629, 682, par. 4 (writ refused); Haymond v. Haymond, 74 Tex. 414, 421, 12 S. W. 90; Legate v. Legate, 87 Tex. 248, 252, 28 S. W. 281; Dunn v. Jackson (Tex. Com. App.) 231 S. W. 351, 353, par. 2; Smith v. Smith (Tex. Civ. App.) 200 S. W. 1129, 1131, par. 5; Boyd v. Boyd (Tex. Civ. App.) 157 S. W. 254, 256, par. 3; Bowlen v. Bowlen (Tex. Civ. App.) 1 S.W.(2d) 355, 356, par. 2; Cecacci v. Martelli (Tex. Civ. App.) 235 S. W. 951, 953, par. 4; Clayton v. Kerbey (Tex. Civ. App.) 226 S. W. 1117, 1119, par. 7 (writ refused). The fact that the court awarded the custody of the child to appellant for one-half the time necessarily involves a finding that she is a suitable person for such responsibility and that thfe welfare of the child will best be served by committing it to her care for the time allotted. Vickers v. Faubion (Tex. Civ. App.) 224 S. W. 803, 807, par. 8. Appellee frankly admitted that he was not in a position to personally care for it, but that it was his purpose to surrender its care apd custody to his parents, who lived 400 miles away from where he lived. Its commitment to him for one-half the time, under such circumstances, was nominal only, and was in effect its commitment to the custody of its paternal grandparents for such part of the time. The testimony does not disclose that they or either of them had ever seen or been with such child except for a period of about one month during a visit by appellant to them when it was about 9 months old. In the absence of some evidence to the contrary, the law presumes that the welfare of the child will best be served by committing it to the care and custody of its parent rather than others, however near the relationship. State v. Deaton, 93 Tex. 243, 248, 54 S. W. 901. The law expressly provides that the age and sex of the child shall be considered in determining to which of the parents its custody shall be awarded. Other things being equal, preference should be given to the mother in awarding the custody of a female child, especially when it is of tender years, as in this case, and this rule prevails, notwithstanding the divorce may have been granted to the father. McLemore v. McLemore (Tex. Civ. App.) 285 S. W. 693, 694, par. 3; Martin v. Martin (Mo. App.) 238 S. W. 525, 529, par. 3; Taylor v. Taylor, 163 Ark. 229, 259 S. W. 395; Luttrell v. Luttrell, 218 Ky. 777, 292 S. W. 343; Gothard v. Lewis, 235 Ky. 117, 29 S.W.(2d) 590, 591; Hendrick v. Hendrick, 247 Mich. 327, 225 N. W. 483; Beaumont v. Beaumont, 106 W. Va. 622, 146 S. E. 618, pars. 1 and 2; Werner v. Werner, 204 Iowa, 550, 212 N. W. 569, 570, par. 1; Cosgrove v. Cosgrove, 172 Minn. 89, 214 N. W. 793; Barnett v. Barnett, 144 Md. 184, 125 A. 51, 57, par. 10; Feather v. Feather, 112 Neb. 315, 199 N. W. 533, 534, pars. 1 and 2; Schmitt v. Schmitt, 106 Or. 246, 210 P. 722, 723, par. 2; McFadden v. McFadden, 22 Ariz. 246, 196 P. 452, 453, pars. 2 and 3; 19 C. J. p. 345, § 799, and authorities cited in note 35, also section 800 and authorities cited in note 47; 9 R. C. L. p. 476.

The award of the custody of a child to each of the parents for alternate periods of short duration has been disapproved. 19 C. J. p. 344, § 797, and authorities cited in note 27. While large discretion is vested in the trial court in awarding the custody of minors, such awards are subject to review on appeal. Lawler v. Wray (Tex. Civ. App.) 8 S.W.(2d) 524, pars. 2, 3 and 7. Appellant’s good moral character was expressly admitted and the court found her a suitable person to have the custody of said child. There is nothing in the' record tending to show that its interest and welfare would be better served by awarding its custody to appellee for a part of the time. The judgment is therefore so modified as to award the custody of said child to appellant and to eliminate so much of said judgment as awards such custody to appellee for one-half the time. The order of the trial court allowing appellee the right to visit said child at proper intervals is not disturbed.

The judgment of the trial court as here modified is affirmed.


author: SELLERS, J.

text:
    CALLOWAY et ux. v. BOOKOUT et al.
    No. 3901.
    Court of Civil Appeals of Texas. Texarkana.
    March 19, 1931.
    Rehearing Denied March 26, 1931.

      J. P. Cox and 0. Huggins, both of Sherman, and Webster Atwell, of Dallas, for appellants.
    Webb & Webb, of Sherman, and Geo. T. Burgess, of Dallas, for appellees.
   SELLERS, J.

Appellants, Calloway and wife, sued appel-lees, Hubert Bookout and Chas. L. Sanger, alleging that on and prior to the 9th of December, 1926, the property in controversy constituted their homestead upon which they resided ; that on said date they signed a deed, which, upon its face and according to its reading and tenor, purported to be a warranty deed, whereby they conveyed said land and premises to E. 0. Snead of Dallas, Tex., for the sum of $7,500; “that said instrument was in fact intended by plaintiff, Calloway, to operate only as a mortgage, the same being executed by him upon the following agreement made between him and the said Snead:”

“(a) Plaintiff W. A. Calloway was cashier of the Plome State Bank, a corporation, of 1-Iowe, Texas, and said bank was indebted to the State Trust & Savings Bank, a corporation, of Dallas, Texas, with which the said E. O. Snead was connected, being vice-president of said bank, and which the said Snead represented in said transaction.
“(b) The said Snead stated to the said W. A. Calloway that if said lands and premises were conveyed to him, the said Snead, that the said State Trust & Savings Bank, of Dallas, Texas, would give the Home State Bank, of Howe, Texas, credit on its books for the sum of Seventy Five Hundred ($7500.00) Dollars, and that the said W. A. Calloway would have the privilege of redeeming said property by the payment of said amount any time within two years after said date. That upon said promise plaintiff W. A.- Calloway executed said purported deed as aforesaid. That he never received any consideration personally whatever for said conveyance.
“(c) That the said W. A. Calloway executed said purported deed, and before his wife signed the- same the notary public made out his joint certificate of acknowledgment, and affixing his séal thereto, as the same appears upon said purported deed, prior to the time that the said Minnie Calloway - signed the same.
“(d) That after the notary had placed his said certificate and seal on said purported deed the said W. A. Calloway took the same to his wife, the said Minnie Calloway, and told her that it was a paper that he desired her to sign in-order to help the Home State Bank out of its financial difficulties, or words ■to that effect, and she thereupon signed said purported deed. That the said W. A. Callo-way never explained bo the said Minnie Callo-way that it was a deed conveying their homestead, or made any further explanation to her other than as above set forth.
“(e) That the said Minnie Calloway never at any time appeared before said notary public, and said notary public did not explain said instrument to her privily and apart from her husband, and never asked her whether she had willingly signed the same and did not wish to retract it, and said certificate of said notary to said instrument is wholly untrue.” That thereafter, in the month of January, 1927, said E. O. Snead reeonveyed the property to Calloway for $2,500 cash and the note of Calloway and wife for $5,000, said deed reserving a vendor’s lien to secure said note; ■that .said Calloway paid the $2,500 by his check and executed said note, and on the 26th day of February, 1927, said Calloway and wife executed a deed of trust on the property in controversy to secure the payment of said note; that Minnie Calloway never acknowledged said deed of trust before the notary taking her acknowledgment; that 'Minnie Calloway never knew' the character of either said deed or deed of trust when she signed the same; that the note executed by Calloway and wife to Snead had been transferred to State Trust & Savings Bank, and by it to I-Tooser and by Hooser to Sanger, and that appellee Bookout had been appointed substitute trustee under the deed of trust and was proceeding to sell the property for the payment of s.aid note; that they asked that Bookout and Sanger be enjoined and that said deed, deed of trust, and note be canceled.

Defendant Snead answered alleging that ■ the sale of the land by Calloway and wife to him was an actual bona fide sale and that he paid the $7,500 recited as the consideration therefor.

Defendant Sanger answered alleging that the deed from Calloway and wife to Snead was, so far as he knew, an actual bona fide sale for the property, for which Snead paid Calloway $7,500, which amount of money was received by Callioway and wife, and that Snead advised him that Hooser was the owner of the note in controversy which was secured by a valid lien on the property, and proposed to convey said note for a tract of land and improvements owned by Sanger in the city of Dallas, Tex.; that Sanger had title to the property in controversy examined and saw of record the deed from Calloway and wife to Snead, same being duly acknowledged of date December 9,1926, and a deed from Snead and wife to Calloway reciting $4,500 cash and the execution of a note, and that a vendor’s lien was retained on the property to secure the payment of the note and the deed of trust and the note, which recites on its face that it is given in part payment for the property in controversy, and signed by Cal-loway and wife, and the recitals in the transfers from Snead to the bank and from the bank to Hooser that said note was secured by a valid vendor’s lien upon said property and given in part payment of the purchase money thereof, and that said Sanger had no knowledge of any of the matters alleged by plaintiffs, or of the vice in the transaction, but relied upon the recitals in said deed, note, deed of trust, and transfers, and paid for said note relying upon said recitals the sum of $5,000; that if said recitals were false and the facts be as alleged by plaintiffs, Calloway and wife, that said Minnie Calloway had the deed before her and in her possession upon which the certificate of acknowledgment was completely filled in by the notary reciting her appearance before him and her acknowledgment by him of said deed, said Minnie Callo-way either knew the certificate of the notary was on the deed before she signed it, or by the use of reasonable diligence could have known, and her husband having advised her that it was a paper he desired her to execute in order to help the Home State Bank, she did know, or by the use of ordinary intelligence and diligence could have known, that same was a deed of conveyance of the property in controversy, and that she knew said deed was to be taken by her husband to be delivered to Snead ■and that she and her husband received the consideration, and that she took no steps whatever to rescind or cancel said deed and thereafter recognized its validity by accepting a deed from Snead and wife to her and her husband and executing the promissory note in controversy and the deed 'of trust, and that she had the note and'deed of trust before her and either read or could have read the same, and that she appeared before a notary for the purpose of acknowledging said deed of trust; by reason of which fraud practiced by Minnie Calloway she was estopped to say that the recitals in the deed, deed of trust, and note were not true or that the recitals in the acknowledgments were not true or to deny that the indebtedness was not secured by a valid lien upon the property.

And by way of cross-action against .State Trust & Savings Bank, Jno. W. Hooser, and E. O. Snead, defendant Sanger pleaded conveyance from Snead to the bank and the bank to Hooser and Hooser to himself, and the recitals in said note, all stating that said note was given in part payment of the purchase money for the land in controversy and secured by a valid vendor’s lien thereon, alleging a want of knowledge on his part as to' any falsity in any of said statements, his reliance upon the statements in said deed, note, and transfers, his purchase thereof from Hooser and payment of $5,000 for said note, and that if said statements were false, then that Hooser, Snead, and State Trust & Savings Bank had perpetrated a fraud upon him, ■and prayed for judgment against them for the sum of $5,000 with interest thereon.

The defendants Snead, Hooser, and State Trust & Savings Bank answered, alleging that the recitals in said note and transfers were true and that Snead had paid the consideration in the deed from Calloway and wife to himself.

The case was tried before the court without a jury on the 15th day of November, 1929, all parties appearing in person and by their respective attorneys. All of the evidence was submitted, and upon the conclusion of the evidence the court announced he would take the case under advisement.

On the 28th day of November, 1929, Ohas. L. Sanger died.

On the 18th day of December, 1929, upon their application and suggestion of the death of Ohas. L. Sanger and that they were his widow and only heirs at law, the court permitted Flora Sanger, Leta Mai Sanger, and Edwin L. Sanger to be substituted as defendants in place of Ohas. L. Sanger, the court not, up to that time, having intimated what judgment he would render; that thereafter, on •the 18th day of December, 1929, the court entered a judgment that plaintiffs take nothing and that the injunction theretofore'granted be dissolved, from which judgment plaintiffs appealed.

The first assignment of error complains of the court’s refusal to continue the case after the death of defendant Sanger. It appears that Sanger died intestate during the time the court had the ease under advisement, and his surviving heirs petitioned the court for an order allowing them to be substituted as parties defendant in the place of the defendant Sanger, which petition was granted by the court and an order to that effect entered before he announced what judgment he would render.

There is no merit in this contention. Article 2080, R. O. S. 1925, expressly authorizes the procedure followed by the court.

The undisputed proof showed that Mrs. Calloway never acknowledged the deed of December 9, 1926, from Calloway and wife to Snead, nor did she go before the notary public for the purpose of acknowledging the same. There is no objection to the court’s findings upon these points. As we understand the authorities, a deed to the wife’s homestead never acknowledged by her passes no title and is absolutely void, and this is true notwithstanding the notary’s certificate of acknowledgment is regular in every respect, and is on the deed at the time the wife signed it. Wheelock v. Cavitt, 91 Tex. 679, 45 S. W. 796, 66 Am. St. Rep. 920. Said deed was wholly void as to Mrs. Calloway and ineffectual as a conveyance even if Snead was an innocent purchaser for value. Lummus et ux. v. Alma State Bank (Tex. Civ. App.) 4 S.W.(2d) 195. The issue of estoppel as raised by the plea of the defendants Sanger avers that:

“Mrs. Calloway had said deed before her and in her possession upon which the certificate of acknowledgment was completely filled in by the Notary, reciting her appearance before him and her acknowledgment by him of said deed and her refusal to retract the same; the said Minnie Calloway either knew said certificate of the notary was on said deed before she signed it, or by the use of reasonable and ordinary diligence could have known and her husband having advised her that it was a paper he desired her to execute in ■order to relieve the financial distress of the I-Iowe State Bank, she did actually know, or by the use of reasonable and ordinary diligence and intelligence could have known that the same was a deed of conveyance of the property in controversy; that said Minnie Calloway knew that as soon as she signed said deed it was to be taken by her husband .to Dallas to be delivered to the grantee therein and said Minnie Calloway thereafter received the whole or the greater part of the consideration recited therein, and having received all of said consideration and knowing, or by the exercise of ordinary prudence could have known that said deed had been delivered to said Snead, and the consideration recited in the face thereof received by her and her husband, took no steps whatever to rescind or cancel said deed, but thereafter recognized its validity by accepting a deed, from Snead and wife to her and her husband for the property in controversy, paying the said Snead $2500.00 and executing to said Snead or order their negotiable promissory note, reciting in the face thereof that same was part of the purchase money for said property and was secured by a valid vendor’s lien retained in the deed from Snead and wife to her and her husband, and thereafter further ratified the same by executing a deed of trust upon said property to secure the payment of said note; that she had said note and said deed of trust before her and read or could have read the same and with her husband appeared before a notary and acknowledged said deed of trust and knew that her said husband was bringing said deed of trust to Dallas for delivery to said Snead, by reason whereof and the fraud practiced by both of said plaintiffs and especially of said Minnie Calloway the plaintiffs and especially Minnie Calloway are now estopped to say that the •said deed, deed of trust and note are not what they purport on their face to be and to deny the recitals therein that said note is a valid indebtedness and secured by a valid and subsisting lien upon said real property.”

The defendant Snead testified that all of his negotiations with reference to the trade for plaintiffs’ homestead were with Mr. Cal-loway. Not one time was Mrs. Calloway ever present or say one thing to Snead with reference to the trade. Neither did defendant Sanger, in his negotiations for the note, talk with Mrs. Calloway or her husband. The only evidence explaining the circumstances under which Mrs. Calloway signed the deed to Snead, as well as the note and deed of trust later given to Snead, was by Mrs. Cal-loway and her husband, and the testimony of .Mr. Calloway in no way conflicts witli tiers. She testified:

“I signed the paper that Mr. Calloway brought to me along in December, 1926. 1 signed that instrument at home. I remember the circumstances under which I signed it. T did not have any talk with Mr. Calloway about it; he just asked me to sign some papers that would help the bank. I was in bed sick — I was not well. I signed the paper early in the morning. There was not another word said by Mr. Calloway at the time he asked me to sign the instrument. I did not read over the instrument. I did not know it was a deed to my homestead; if I had known it was a deed to the homestead, I would not have signed it. * * * I did not know that he got $7500.00 on that paper and that $5700.00 went to my account. * * * I remember about the second set of papers. When we were going to my father’s we stopped at Mr. McDonough’s office. I signed some papers at that time. I signed them at home. My husband, W. A. Calloway, asked me to sign them. At the time I signed those papers, Mr. Calloway said to me practically the same thing he said when I signed the other papers. He said he had some papers he wanted me to sign to help the bank. I did not read either one of those two papers. I did not know one of them, or either of them, was a deed of trust. I did not read the note. I would not have signed them if I had known that.” . It is true that Mrs. Calloway some time after signing the note and deed of trust went before a notary public for the purpose of acknowledging the deed of trust, but there is nothing in the testimony of the notary that would indicate he gave Mrs. Calloway any information about Snead’s having a deed to her homestead. There is no testimony that she received any of the consideration for the sale of the homestead. Her bank account showed that some of the money was placed to her credit, but her husband testified that he put the money in the bank in her name and checked it out himself.

The trial court held that Mrs. Calloway was estopped to elaim that she did not acknowledge the deed to Snead without returning the consideration which her husband received from Snead.

We do not agree with the court in his conclusion that she would have to return the consideration before she would be entitled to the relief sought. The record discloses very clearly that Mrs. Calloway had the deed to Snead in her hands only long enough to sign it, nor was there anything done or said in her presence by any one that could in the slightest way be construed to cause her to suspect that her husband was selling their homestead to Snead. The rule, which charges one with knowledge of the contents of the instrument which she signs, will not be extended so as to charge the wife, under the circumstances as they appear in this case, with the knowledge of the contents of the deed which she signed. To so hold would have the effect, first, to defeat the very purpose of the statutes which require that a notary explain all of the provisions of a deed by the wife to her homestead, separate and apart from her husband, before taking her acknowledgment; and, second, it would have the effect of causing the wife to lose her homestead by estoppel, when, in fact, she knew nothing of such facts which constituted such estoppel. One of the first essentials of an equitable estoppel is that the false representations must have been made with'knowledge of the true facts.' It is not that she was charged with knowledge of the true facts, but that she had such knowledge.

Neither do we think that the signing of the note and deed of trust could be given the effect of ratifying the original deed or work an estoppel against Mrs. Calloway. The burden was upon the party alleging es-toppel to prove it, and there is no evidence in the record to show that Mrs. Calloway, at the time she signed the note and deed of trust, knew that Snead had a deed to her homestead signed by her. In the absence of such knowledge the execution of the instrument could not be given the effect of estop-ping Mrs. Calloway to set up the invalidity of the deed to Snead. We think the law of this case is controlled by the ease of Yaseen et al. v. Green (Tex. Civ. App.) 140 S. W. 824.

There are other assignments in the record, but the disposition made of this case makes a discussion of them unnecessary.

We are of the opinion that the judgment of the trial court should be modified so as to cancel the vendor’s lien and deed of trust lien held by the defendant Sangers, and that plaintiffs W. A. Calloway and wife, Minnie Callo-way, be forever quieted in their title to and possession of the land described in the plaintiffs’ petition, and, as so modified, the judgment of the trial .court will be affirmed.


author: BUCK, J.

text:
    STATE et al. v. PUBLIX THEATER CORPORATION OF NEW YORK et al.
    No. 12486.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 31, 1931.
    Owsley & Owsley, E. I. Key, and Earl Street, all of Denton, for appellants.
    Joe S. Gambill and Robt. H. Hopkins, both of Denton, for appellees.
   BUCK, J.

There was presented to the district judge of the Sixteenth judicial district a petition for injunction, seeking to restrain a<nd enjoin John Campbell, Grover Campbell, Chas. L. Smith, Bob Hester, and Mrs. J. Abney May, representing the Publix Theater Corporation of New York. The petitioner was the state of Texas, suing by Earl Street, county attor-. ney of Denton county, J. P. Solomon, T. B. Lusk, W. E. Loveless, E. J. Headlee, and J. M. Evans as joint plaintiffs.

The petition alleged that the city of Denton was a municipal corporation duly incorporated with a population of about 9,700 people, and that it was a city of schools and churches; that there were located within said city two state institutions of higher education known as the College of Industrial Arts and the North Texas State Teachers’ College, as well as a high school and public schools of various grades. That the persons named as defendants had conspired together to carry on and give theatrical entertainments and to permit the Palace Theater to be open for public amusement on Sunday. That a large majority of the citizens of Denton are law-abiding people who believe in obedience to law, and that such flagrant violation of the law is so offensive as to constitute a nuisance. That, if not restrained by the order of court, the said theater would keep open on Sunday and large numbers of young people would gather there, and that the opening of the theater would continue to impress the children and young people and others with disregard of the Sunday law and general disregard of all other laws of the state, and thereby corrupt their minds and create .criminals, and the plaintiffs are entitled to have such exhibitions on Sunday declared a nuisance and the restraint of them is required in order to prevent them. That if the defendants are not ’prevented by injunction they will permit said Palace Theater to be open for amusements on Sunday, August 19, 1930, and every Sunday thereafter, and prosecutions against the defendants therefor will necessarily be so numerous as to crowd the dockets of the court having jurisdiction thereof and entail great unnecessary expense; and that the criminal laws do not afford a complete and ¿dequate remedy, and that it is necessary that an injunction be issued to prevent a multiplicity of suits and prosecutions. That the College of Industrial Arts and the North Texas State Teachers’ College are attended by a large number of young men and women as students, from the various parts of the state and from other states, and that said attendance affects and adds to the value of the property in the city -of Denton, and particularly of property belonging to plaintiffs; that a material inducement for such students to come to Denton and to attend said institutions of learning is that the city of Denton mow has a good reputation as a city of good morals where the laws of the state are respected and observed, and, if the defendants are allowed to continue such exhibitions on Sunday in violation of the law, it is calculated to and will cause many to fail and refuse to attend such schools in Denton, and the number of such students will be so reduced as to lower the value of property in said city of Denton, and particularly the property of plaintiffs.

This petition appears to be signed by Earl Street, county attorney, Ed I. Key, city attorney, Owsley & Owsley, and J. E. Solomon, for tbe plaintiffs.

On August 9, 1930, upon tbe petition being presented to Judge B. W. Boyd, district judge, in chambers, be granted tbe writ, upon tbe presentation of a bond in tbe sum of $200, payable to tbe defendants. Later, upon motion of defendants, the writ was dissolved, and from said dissolution tbe plaintiffs have appealed to this court.

Opinion.

We have not bad tbe benefit of a brief on behalf of tbe appellees, though we always greatly prefer injunction suits to be briefed by both parties, although tbe statutes do not require it.

Tbe statutes do not authorize tbe filing of an injunction on behalf of tbe state and tbe granting of an injunction, especially without a bearing, except to restrain and enjoin tbe beeping open, in violation of tbe law, places where liquors are sold.

An injunction will not issue to restrain the operation of a moving picture show on Sunday, where such operation constitutes a misdemeanor, punishable under criminal statutes, and no property rights of complainant are involved. Barry v. State (Tex. Civ. App.) 212 S. W. 304. An injunction will not lie to prohibit violation of municipal ordinances which are full and adequate to furnish means to arrest, convict, and properly punish any citizen or resident of city who deliberately violates them, and, .where there is adequate police force to prevent such recklessness and crime, presumption prevails that the criminal statutes are adequate. City of San Antonio v. Schutte (Tex. Civ. App.) 246 S. W. 413.

In support of the judgment, it must be presumed that the court found that no adequate cause existed for the issuance of the injunction, and that the.court’s equity would not enjoiri'the violation of a criminal statute. See Lewis v. Harrison (Tex. Civ. App.) 229 S. W. 691; York v. Ysaguairre, 31 Tex. Civ. App. 26, 71 S. W. 563; 32 Corpus Juris, p. 275, § 432 et seq.; 14 Ruling Case Law, under title of Injunctions, subdiv. 10, p. 312 et seq.

We therefore conclude that the only ground for reversal of the trial court’s judgment is that the evidence shows unmistakably that these persons who are named as joint plaintiffs, with the state, were shown to be entitled to the injunction.

We have examined the evidence carefully, and it certainly does not show that any of the plaintiffs, who are property owners, were in a position to be entitled to the protection of the writ. Certainly, the evidence fails to show that in their property rights they had been specially injured by the opening of the Palace Theater, or that they would likely be so injured. In order to reverse tbe judgment of the trial court, it would be necessary to show that one or more of the plaintiffs would be specially injured in his property rights by the opening on Sunday of the theater.

We conclude that the judgment of the trial court should be affirmed, and it is so ordered.


author: McClendon, c. j.

text:
    OGDEN et al. v. SHROPSHIRE & ADKINS et al.
    No. 7520.
    Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1931.
    Rehearing Denied March 31, 1931.

      Winfrey & Lane, of Dallas, for appellants.
    Shropshire & Adkins, of Brady, and Wilkinson & Wilkinson, of Brownwood, for ap-pellees.
   McClendon, c. j.

Appellees, a firm of lawyers, sued E. D. Ogden in his capacity as independent executor of the will of E. W. Henderson, deceased (joining therein as parties defendant the residuary legatees under the Henderson will), to recover six items of attorney’s fees, aggregating, $6,775; for services rendered by appellees to the executor. The trial was to a jury upon special issues, and the verdict and judgment were in favor of appellees upon each of the items in the following amounts, the first column representing the amount sued for and the second the amount of the verdict and judgment:

1. Removal suit in county court. $2,500.00 $750.00

2. Removal suit in the district court...;. 2,500.00 750.00

3. J. H. Ogden et ux. v. estate'.. 1,000.00 500.00

4. Mrs. Mears v. estate 200.00 100.00

5. Luke Williams v. estate . 75.00 50.00

6. General advice. 500.00 350.00

$6,775.00 $2,500.00-

Two of the residuary legatees (Margery and Elizabeth Goodwin, who own one-half of the residuary estate) have appealed; the other residuary legatee (Lucy M. Wooten, who owns the remaining one-half of the residuary estate) has riot appealed.

The fourth and fifth items are not attacked. The first two items covering services in two removal suits brought by the residuary legatees, one in the county and the other in the district court, are assailed by the residuary legatees on the ground that the services rendered were personal to the exeutor and not in the interest of the estate. The third item is-assailed by the residuary legatees on the ground that the services were not rendered in good faith for the estate, but in the interest of the executor in seeking to force an unreasonable compromise of the suit, which was in favor of his brother and his brother’s wife, for personal injuries to the latter; and further because the executor was disqualified to represent the estate in said cause, on the ground that he was adversely interested and had made himself a party to the"plaintiffs’ cause by signing their cost bond. The sixth item is assailed by appellants on the grounds: (a) That the evidence will not support a judgment for any amount thereon; and (b) because the amount awarded is excessive.

Since the first three items are more or less interrelated as to their pertinent facts, we will make a brief statement of the evidence as it relates to these items, without attempting to segregate it.

Henderson, a widower since 1917, advanced in years and childless, had accumulated an estate in excess of $100',000. -He died August 30, 1920. His will, a very lengthy document, was executed May 9, 1925, with an added codicil executed November 13, 1925. E. L. Ogden, an old business friend and acquaintance, was named independent executor of the will without bond, and was given very wide discretionary powers, including the employment of attorneys and the settlement of claims against the estate. Hon. IP. N. Newman, who had been Henderson’s attorney for a number of years, was engaged by the executor to probate the will and represent the estate generally. The will was probated in October, 1028, and Ogden then qualified as executor. Among the claims against the estate was a suit by J. H. Ogden (a brother of the executor.) and his wife for personal injuries to the latter sfistained in an automobile accident on the 8th day of August, 1926; Mrs. Ogden being a guest of Henderson in the latter’s automobile when the accident occurred. This suit was not filed until August 7, 1928, just one day before the claim would have been barred by limitation, and twenty-three days before - the death of Henderson. Whether Newman had been consulted by Henderson in regard to the suit does not appear, but in all probability he had, as he appears to have been Henderson’s general legal adviser.

With reference to Judge Newman’s employment in the J. H. Ogden suit, the executor testified:

‘•Mr. Newman was my attorney. I told him to go ahead and handle it just like he wanted to. As I was the executor, and the plaintiff was my brother, I thought the matter should be handled in his discretion.”

Judge Newman and Lane (member of a Dallas firm of lawyers representing some of the residuary legatees) made an investigation of the law and facts in the J. H. Ogden suit, and reached the following conclusions: That the suit ought to be contested, both from the viewpoint of liability and amount; that the injury sustained would not warrant a settlement, even conceding liability, in excess of $5,000; and that it was to the best interest of the estate that the cause be tried at the January, 1929, term of court. They prepared and filed on January 4, 1929, an answer raising several questions of law by demurrer, and various issues of fact by special pleas in avoidance. This answer was withdrawn, Judge Newman withdrew from the case, and the executor signed as surety the cost bond of the plaintiffs in January, 1929. The circumstances surrounding these withdrawals were, however, excluded from the picture presented by the statement of facts. The attitude of the executor towards this suit appears to have been the initial cause of strained relations between Lane and the executor, and a great deal of correspondence ensued between them. A large part of this correspondence was excluded, and is only preserved by bills of exception; however, it sufficiently appears from the statement of facts that the executor wrote Lane, stating unequivocally that he had settled the Ogden suit for $7,500; that Lane demanded that he plead limitation to the Mears claim, and he replied that he would not do so, because he knew Mr. Henderson, if living, would not file a plea of limitation ; that Lane charged the executor with mismanagement in converting interest-bearing securities to the amount of some $80,000, and depositing the proceeds in noninterest-bearing account in a bank in which the executor was a stockholder and director; and that the executor was using an automobile belonging to the estate for his own private purposes.

The Mears claim arose out of the following facts: Mrs. Mears had acted as housekeeper for Henderson for forty-one months, terminating some three years prior to Henderson’s death. She claimed an indebtedness of $4,100 against the estate for her services. Lane, who had made some investigation of the facts, contended that Henderson had settled with Mrs. Mears by giving her a check for $100 marked “payment in full,” and that he had during her employment paid her $15 per month by checks, and had furnished her her board; and further that, if there were any liability, it had accrued at the time her employment ceased, more than two years prior to Henderson’s death, and was therefore barred by the two-year statute of limitation.

The Luke Williams suit arose out of a claim by the plaintiff, who had been chauffeur for Henderson for a number of years, that one of two automobiles belonging to Henderson had been given to him by Henderson.

Subsequently to the January, 1929, term of the district court, the executor made a compromise agreement with his brother by which the damage suit was settled at $7,500, conditioned upon the approval by the district court, and the money was deposited in bank subject to such court approval. The executor’s letter to Lane, notifying him of the settlement, did not inform him of the conditional clause.

On April 11, 1929, the residuary legatees brought suit in the county court, seeking removal of E. L. Ogden as executor. The grounds of removal were in substance: (1) wasting the assets of the estate in depositing in noninterest-bearing general deposit the sum of $80,000 of the estate’s funds; (2) using personally two Chrysler automobiles belonging to the estate; (3) improper action in settling the J. H. Ogden suit; (4) disqualifying himself as executor by signing as surety the cost bond in the J. H. Ogden ease; (5) refusal to answer letters of Lane calling for a statement of the condition of the estate.

An amended petition, seeking to enjoin the executor from paying out money of the estate, was filed May 11, 1929, and temporary injunction was granted the same day, but was shortly thereafter dissolved.

On May 9, 1929, suits were filed by Mrs. Mears and Luke Williams against the executor, and on the same day the executor wrote identical letters to two of the residuary legatees notifying them of the bringing of these suits. On May 11,1029, the executor, through appellees as his attorneys, filed answers in each of these suits impleading the residuary legatees and an intervention in the J. H. Ogden suit, setting forth in detail his action in compromising the suit at $7,500' subject to the court’s approval, and ashed for such approval. The residuary legatees were not sought to be impleaded to this intervention, and neither they nor their attorneys notified of its filing.

This intervention alleged that, before the suit was filed, J. H. Ogden and Henderson “approached E. L. Ogden and discussed with said E. L. Ogdon the merits of the claim of •the plaintiffs, .presented in this suit,” and that Henderson instructed the executor to make such settlement thereof as would be satisfactory to the plaintiffs; that, when the suit was filed, Henderson again asked the executor to make settlement satisfactory to plaintiffs; that the suit was filed before Henderson’s death merely to arrest the statute of limitations; that the suit was for $50,000 and the injuries to Mrs. Ogden “may justify an award of a large sum of money as compensation” ; that the residuary legatees had expressed a willingness to settle at $5,000; that the executor did not answer at the former term “because he hoped to settle or compromise, as requested to do, by deceased”; that the residuary legatees desired him to answer at the former term, and, in. declining, he simply exercised his statutory fight (R. S. art. 3437); that the residuary legatees “have been notified of the above settlement of the claim, and they have been formerly active in resisting the claims of plaintiffs herein; and knew o'f the pendency of this suit.” Prayer was for full ratification and confirmation of the settlement agreement.

The residuary legatees instituted a removal suit in the district court upon substantially the same grounds as those in the county court suit, but additionally sought a receiver of the estate. The petition in this suit was verified in Dallas by Dane May 18, 1929, was presented to the district judge May 20, 1929, and hearing on the receivership application set for May 21, 1929.

In explanation of the filing of this suit, Lane testified: “I did that because of a letter (by the executor) written to my clients that he would not plead limitations to the Hears claim, and he was going to make some settlement of it, and my clients were objecting to his controlling his brother’s suit.” He also explained that, on account of a mistake in the citation, the county court suit would have to go over to the July term of court.

The evidence is conflicting as to exactly what transpired at the hearing May 21, 1929, in the receivership matter. The conflict, however/we regard as unimportant. It is reasonably clear that Dane was satisfied with the executor’s explanation of his handling of the estate’s funds; that the executor agreed to let Lane effect a compromise of the Ogden and Hears suits; and that the executor gave as an explanation for not answering letters of Lane regarding" the estate that he had been insulted by Lane on a previous occasion.

Lane concluded to drop both removal suits, and paid the costs in the county court on that day, and testified he thought he left instructions for both suits to be dismissed. Nothing further was done in either case, except that appellees filed an answer for the executor in the county court case on May 25th, and both suits were later formally dismissed. Lane effected a settlement of the Ogden suit for $6,000 and of the Hears suit for $600. The Luke Williams suit was settled by letting-plaintiff have the automobile he claimed. The Hears suit had been so pleaded as to avoid limitation.

We sustain the contention that the evidence does not warrant charging the fees for services in the Ogden damage suit to the estate, upon two grounds:

(1) When the executor signed the cost-bond, obligating himself personally for the costs, he thereby assumed a direct pecuniary interest in the result of the suit adverse to the estate, and to that extent he made the litigation his own.

(2) The entire record shows that this employment was not in the interest of the estate, but to effect a settlement in excess of the amount that his attorney, Judge Newman, and the residuary legatees, who ultimately had to bear the expense of such settlement, felt the facts would warrant. In announcing this conclusion, we do not hold as a matter of law that the executor was disqualified to represent the estate on the sole account of his relationship to the plaintiffs. His testimony, however, shows that he himself recognized an actual disqualification and left the entire matter to Judge Newman on that account. His subsequent conduct placed. Judge Newman in such position that he felt it necessary to withdraw from the case, and the later employment of appellees appears clearly to have been for the purpose of effecting through court approval a settlement which the executor made with his brother, and which was never carried out.

Appellees seek to hold the estate on the well-recognized legal doctrine that an executor or trustee, in a proper case, may apply to the district' court for advice regarding his duties, and is entitled, in such case, to reasonable attorney’s fees incurred therein. In such a proceeding the executor appears in an impartial capacity, submits the facts to the court, and asks for a decree as a guide to his future conduct. Those affected by such decree are necessary parties to the proceeding, otherwise the decree would be nudum pactum. The intervention in the Ogden damage suit cannot be brought within this rule. No advice or counsel of the court was sought in that proceeding, but its sole purpose as expressed on the face of the pleading was to obtain a court order approving a previous act of the executor; and the residuary legatees were not sought to be made parties to such order. The will was very explicit in the ample powers it gave the executor to settle claims against the estate. There was no occasion for judicial construction in this regard. If the executor was not disqualified, the will committed to his discretion alone the disposition of the suit, and that discretion could not be reviewed except for fraud or palpable abuse. The only issue upon which the advice of the court might properly have been sought was whether the executor was disqualified to exercise the discretionary powers in this instance. In such proceeding the court, upon deciding against disqualification, would relegate the matter to the executor, as the .discretion was vested by the will in him and not in the court. On the other hand, if the decision was in favor of disqualification, the court should then make proper provision to protect the estate. Neither this nor any other character of advice was sought by the executor. If it had been, the services rendered by his attorneys would have been of a different character from those for which recovery was sought and obtained.

With reference to items 1 and 2 covering services in the two removal suits, we have reached the conclusion that the judgment should be reversed and the cause remanded because of the exclusion of the correspondence between the executor and the residuary legatees and their attorneys, and the testimony of Judge Newman and Lane detailing what transpired at the January, 1929, term of court with reference to the Ogden damage suit, and the circumstances surrounding Judge Newman’s withdrawal from that case.

Generally speaking, the propriety for allowance of attorney’s fees to an executor or administrator depends upon whether the expense was incurred in a proper administration of the estate.

A strict legal applicatioh of this rule would deny such allowance in any suit where the propriety of the official acts of the executor or administrator or his further right to administer the estate are drawn in question; for in such action the executor or administrator appears in the role of a private litigant defending his own acts or right to retain his axipointment. See the following Texas cases upon this subject: Rowe v. Dyess (Tex. Com. App.) 213 S. W. 234; Id. (Tex. Civ. App.) 177 S. W. 523; Richardson v. McCloskey (Tex. Civ. App.) 261 S. W. 801, and authorities there collated.

The.relation of an executor or trustee, designated by the owmer to administer his property or to perform services with regard to it, differs in one essential respect from that of an administrator or other officer appointed by a court. In the former case, the person appointed “undertakes an office for another in relation to his property,” and his right to Teimbursoment for all reasonable expenses or losses incurred, in the proper administration of the estate, are allowed him upon broad equitable principles. See Perry on “Trusts” (7th Ed.) vol. 2, § 910.

Consequently, it has been held that attorney’s fees will be allowed in a removal proceeding. where it appears that the executor or trustee was blameless and the suit was unfounded or vexatious. See A. & E. Ency. of Law (2d Ed.) vol. 28, p. 1091.

The authorities in other states do not seem to be in entire accord as to the rule applicable where the executor is himself not free from blame, and there is no final adjudication adverse to him. In some cases the allowance is made upon the theory that plaintiffs have not justified their suit. In others the right to allowance is made to depend upon whether the plaintiffs had just ground to proceed against the executor, and a settlement or adjustment beneficial to the estate resulted. In this latter holding we concur.' The following decisions are fairly illustrative of the several holdings: Clements v. Fletcher, 161 Ga. 21, 129 S. E. 846; In re Wilson’s Estate, 97 Neb. 780, 151 N. W. 316; In re Walsh’s Estate, 80 N. J. Eq. 565, 74 A. 563; In re Arnold’s Estate, 252 Pa. 298, 97 A.. 415; Goode v. Reynolds, 208 Ky. 441, 271 S. W. 600, 63 A. L. R. 631; Ward v. Wright, 197 Ky. 148, 246 S. W. 123; Ross v. Battle, 113 Ga. 742, 39 S. E. 287; Armstrong v. Boyd, 140 Ga. 710, 79 S. E. 780; Moses v. Moses, 50 Ga. 9; Sherman v. Leman, 137 Ill. 94, 27 N. E. 57; Smith v. Kennard, 38 Ala. 695.

In the last case cited the Supreme Court of Alabama applied the rule that, where protracted litigation “was caused by the equal fault of both parties,” one half of the executor’s counsel fees were allowed as costs of administration, and the other half imposed on 'the executor individually—a proper disposition of the matter, we think, in view of the fact that the right to .the allowance as an expense of administration rests upon equitable grounds.

In the case before us, it is clear that the executor took an improper position in at least two respects: In his attitude toward the Ogden damage suit; and in his announced refusal to plead the statute of limitations to the Mears suit, even though such plea might have been good. It also seems clear that the removal suits brought about an adjustment of all controversies between the executor and the residuary legatees, which adjustment benefited the estate at least as regards the Ogden damage suit.

Whether the suits might have been avoided, if Lane had pursued a different course, and one which might be held to be’ more reasonable, is not made clear by the evidentiary picture presented by the statement of facts. Upon a full development of the pertinent facts including the above-excluded testimony and correspondence,' the trial court will be enabled to determine what fact issues should be determined by the jury in order to apply the proper rules of law to the controversy.

^e sustain the above contentions relative to item 6 for general advice.

The executor, offered as a witness by plaintiff, testified that, outside of the specific suits mentioned above, he “did not call upon Mr. Shropshire for anything.”

The only other testimony upon this item was that of Mr. Shropshire, which we quote in full:

“As to what other services I rendered Mr. Ogden that are not included in these suits that we have been talting about, from early in the year until sometime in November when we presented the bill: Well, whenever any question would come up as to his handling of the estate he would appeal to me, and frequently I would advise with him as to the case, and my advice with him during these months was frequent as to matters that arose. Everything that came up about the estate that he was not satisfied about he would counsel with me about it as an attorney. That was frequent, tolerably frequent. I can remember some particular things. He talked to me one time about inheritance taxes, and also the income tax law. He talked to me about claims the estate owed, or at least claims presented against the estate. I think some, but I could' not remember the details of things that arose. Mr. Ogden was pretty well prepared to handle this matter, and seemed to be a man of good intelligence.”

The evidence furnishes no basis for the judgment on this item.

'The only other questions raised by the appeal relate to the exclusion of deposition' evidence of two Dallas attorneys in answer to hypothetical questions in regard to the value of appellees’ services to 'the estate. The questions were not only long and involved, but embraced mixed issues of law and fact, for which latter reason we hold the answers were properly excluded.

As to items 4 and 5 and as to one-half of items 1, 2, 3, and 6 (being the amount of said items chargeable against Lucy M. Wooten’s share in the residuary estate), the trihl court’s judgment is affirmed. As to the remaining half of item 3, the trial court’s judgment is reversed, and judgment is here rendered for appellants. As to the remaining one-half of items 1, 2, and 6, the trial court’s judgment is reversed and the cause remanded.

Affirmed in part, and in part reversed and rendered, and reversed and remanded.


author: LEVY, J.

text:
    JOY v. PROVIDENT LOAN SOCIETY.
    No. 3995.
    Court of Civil Appeals of Texas. Texarkana.
    March 27, 1931.
    Rehearing Denied April 2, 1931.

      Thos. R. Bond, of Terrell, for appellant. .
    M. B. Solomon and Turner, Rodgers & Winn, all of Dallas, for appellee.
   LEVY, J.

(after stating the case as above).

It is pointed out by appellant that he was entitled to recover the penalty for usury, because the facts of the case conclusively showed the loan society charged and' received as interest on the several distinct loans' of money a greater per centum on the amount of each of the loans than authorized by law. The question for determination arises upon undisputed facts, affirmatively showing that the loan society made several distinct loans of money, and received in pawn as security certain jewelry, and demanded and collected per month “2% a montli” of the amount of each distinct loan. There was a charge per month on the loan of $100 of $2, and on the loan of $50 of $1, and on the loan of $20 of 40 cents. Was the “2i% a month” usurious interest? Two things are necessary to show usury: First, a loan; secondly, the taking of interest or compensation in excess of the maximum sum allowed by statute in consideration of the loan. Whenever these two facts are shown to exist, the law pronounces the intent with which they are done wrongful. For in such a case, as by express reservation of more ■than legal interest, there is no room for presumption, for the intent is apparent. Bank of United States v. Waggener, 9 Pet. 378; 9 L. Ed. 163; Slaughter Co. v. Eller (Tex. Civ. App.) 196 S. W. 704. The intent which enters into and is essential to constitute usury is simply the intent to take and reserve more than that permitted by statute for the loan. Every agreement to take interest in excess of the highest legal rate is a violation of law and usurious. 2 Elliott on Contracts (1913 Ed.) § 9G7; article 5071, R. S. The character of the transaction in evidence is not involved in any doubt. The pawn ticket, which reflects the agreement, shows "on its face that the intent was to actually charge, receive, and collect “2% per month” on the amount of the loan in the form of interest ¡and storage charges, as the sole consideration for the loan. The per centum added for “storage charges” was not for services for the particular loan. Such per centum charges represented and included a pro rata share of the society’s continuous expenses for storage and insurance irrespective of the outlay on particular loans. In other words, it was the pro rata cost of the society’s overhead expenses. In the light of the evidence, the agreement is susceptible of no other meaning.

The manager of the loan society explained that the “2i% per month” represented in part the highest statutory per centum per month as interest and in the other part a pro rata share or per centum of all the society’s expenses arising generally from “storage and insurance.” As he testified, he first “figured up how much it would cost to run this business of ours,” and, after ascertaining that per centum, he then added to the highest legal rate of interest of 10 per cent, per annum enough more per centum of the society’s continuous expenses for “storage and insurance” as “would make 2% a month.” The “storage and insurance” expenses were shown to be the continuous cost, outlays, and charges incident to the maintenance and prosecution of the business of the loan society, irrespective of the outlay on particular loans. The transaction cannot be explained upon any other theory. A “yearly rent” was paid for safety boxes at the bank wherein the loan society kept all pledges of every borrower for purposes of safe-keeping. The “insurance” consisted of a general policy in favor of the loan society and for its benefit in case of loss of the pledges agiainst “fire, breakage, holdup, and messenger.” As shown “about $200,000.-00 of jewelry was kept stored in the office and in bank boxes.” In no wise were such expenses so incurred intended to be charged as expenses' for special services rendered to borrowers on particular loans. There was no added benefit to the particular borrower by reason of such expenses. All such expenses were the continuous obligation of the loan society and beneficial to it in its business in the form of overhead expenses. As for the cost of storage for the care of the pledged property, the ordinary obligation of a pawnbro-. ker, as of other pledges, is to exercise the degree of care and diligence that an ordinarily prudent person would exercise for his own property. 48 O. J. p. 5.65. As for the insurance, the general policy of insurance, as shown was taken out, protected the loan society’s liability generally for loss through its default or neglect. It is difficult to understand, as the evidence appears in the record, why the charge was made for “storage and insurance” unless to get a greater compensation for the loan of the money than the regular rate of interest would give. We are unable to construe the evidence as intending the charges so made to be charges solely and only for special services in the storing of the property pledged. There was no dual relation intended to be created of lender and of storer. So, when the lender requires of the -borrower that he pay, in addition to the highest legal rate of interest, the’ pro rata part of overhead or continuous expenses of the business, the lender is but foisting upon the borrower its own obligation, irrespective of the outlay on particular loans. That becomes a profit to the loan society in excess of the highest legal interest, and beyond the statutory authorization solely for the loan of money.

The statute relating to pawnbrokers does not authorize a pawnbroker to charge and receive solely in consideration for the loan of money a charge in additioh to the highest legal interest for storage or other service irrespective of any connection with such particular loan. Neither does the statute exempt or except pawnbrokers from the general law of usury. As defined by the statute, usury is: “Interest in excess of the amount allowed by law.” And the word “interest” is defined as being “the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money.” Article 5069, R. S.; Parks v. Lubbock, 92 Tex. 635, 51 S. W. 322, 323. The limit of the “compensation,” reckoned by a percentage, allowable for the loan or the use of money is by statute expressly fixed at “not exceeding ten per cent, per annum on the amount of the contract.” Article 5071^ R. S. The real inquiry in the case, then, i-s whether there had been a borrowing and lending at a greater rate of “interest” than the law allows. This becomes purely a question of fact about which there is no dispute. It is believed that the plaintiff has made out a case entitling him to. a recovery of double the amount of the interest paid. McDaniel v. Orr (Tex. Com. App.) 30 S.W.(2d) 489. The maximum statutory rate of interest was clearly enlarged by adding thereto storage charges irrespective of any outlay of particular pledges in consideration solely for the loan of the money. An increase or profit above the premium allowed by law for the use of money is an illegal profit, and is usury. 4 Blackstone, Com. 156.

The judgment is therefore reversed, and judgment is here rendered for the plaintiff against the appellant loan society for the sum of $151.60, together with all the costs of this appeal and of both of the trial courts.


author: FLY, C. J.

text:
    McGEE et al. v. McCAULEY.
    No. 8575.
    Court of Civil Appeals of Texas. San Antonio.
    March 25, 1931.
    W. W. Whitaker, of San Antonio, for appellants.
    W. P. Mahaffey, of San Antonio, for appel-lee.
   FLY, C. J.

This suit was instituted by appellee against John W. McGee and the Matador Oil Corporation, to recover $9,850.70, a balance on a promissory note for $18,000 executed by McGee, payable to appellee, and secured by a lien on oil and gas leases on land in Bexar and Atascosa counties. Foreclosure of the lien was sought. Pleas of privilege to be sued in Potter county, Tex., were filed by each of the defendants, appellants herein, which were overruled by the court. This appeal is from the order denying the pleas of privilege.

The court recited in his judgment that the plea of privilege was overruled because the note was made payable in San Antonio, where the suit was instituted. The petition was amended by leave of the court so as to show that the note was payable in San Antonio, and the action of the court in granting leave to amend is assailed as error. It was proper to amend the petition, but if the petition had not been amended appellee bad tbe ■right to introduce- tbe note in evidence in answer to tbe plea of privilege.

In bis plea controverting tbe plea of privilege appellee stated that tbe note was payable in tbe city of San Antonio, Bexar county, and tbe note was attached to and made a part of tbe controverting affidavit. Tbe evidence was ample to sustain tbe judgment of tbe court.

Tbe judgment is affirmed