text:
    GULF LIQUID FERTILIZER CO., d/b/a Western Chemicals, Petitioner, v. James TITUS, Respondent.
    No. A-8431.
    Supreme Court of Texas.
    Feb. 28, 1962.

      Dennison & Naylor, Pecos, for petitioner.
    Russell & Tomlin, Pecos, for respondent.
   GREENHILL, Justice.

The opinion heretofore rendered on November 15, 1961, is withdrawn and the following is substituted therefor.

The Statute of Frauds states, among other things, that no action shall be brought in any court to charge any person upon a promise to answer for the debt, default, or miscarriage of another unless the promise be in writing. In this case, James Titus was sued by Gulf Liquid Fertilizer Company for merchandise which he purchased for the “Titus & Stracner Farm,” a partnership, and also on his oral promise to pay a pre-existing debt of his partner, Lonzo Stracner. Lonzo Stracner was also sued, but he filed no answer and did not appear. The trial court, sitting without a jury, rendered judgment against Titus and Stracner, jointly and severally, for the merchandise Titus had purchased and also for the debt of Stracner. Titus alone appealed. The El Paso Court of Civil Appeals, in effect, reversed and rendered that judgment as to Titus on the Statute of Frauds point. It held that Titus’s oral promise to pay the debt of his partner Stracner was unenforceable under the Statute of Frauds, and that the payments on the Stracner note out of the funds of the Titus and Stracner partnership were invalid. 345 S.W.2d 422.

The facts are these: Lonzo Stracner accumulated an indebtedness of $7,183.58 with Gulf Liquid Fertilizer Company, for merchandise purchased in connection with his 1957 crop. On January 29, 1958, he gave his note to Gulf Liquid to evidence this debt. The note was payable in four installments of $1,500 on the 15th of each month, beginning in July, 1958. The fifth and last payment, in an odd amount, was due on November 15, 1958.

Early in 1958, Stracner and Titus entered into a farming partnership. On March 15, 1958, a check was drawn from the account of the “Titus & Stracner Farm” (the partnership) for $1,500. It was prepared by Titus’s wife who kept the books for the partnership, and was signed by Stracner.. The only notation on the check was that it was for “fertilizer.” On June 5, 1958, a second check, in the amount of $1,303, was sent to Gulf Liquid. It was signed by Titus. The check bore a notation that it was for “fertilizer and poison for June.” Up to this point, the partnership had made no purchases. The amounts of these checks were credited as received by Gulf Liquid on the note of Stracner.

On June 24, 1958, the partnership made its first purchase of $339.60 on account from plaintiff, Gulf Liquid, doing business as Western Chemicals.

On July 9, 1958, a third check was sent to Gulf Liquid. It was drawn on the “Titus & Stracner Farm” account for $1,500 and was executed by Titus. The only notation on the check was that it was for “fertilizer and poison.” It likewise was credited on the Stracner note.

After June 24, 1958, Titus made various purchases on open account from Gulf Liquid for fertilizer and poisons. The total amount purchased on credit in 1958 was $5,000.80. This account forms part of the amount in litigation, but there is no dispute as to the amount purchased or the charges made thereon. At least a part of this sale on credit in 1958 was made before Titus’s oral promise to pay the Stracner note. Titus contends that the two checks for $1,500 and the third check for $1,303 should not have been credited on Stracner’s note, but should have been applied on the debt created by the open account purchases on and after June 24, 1958. He concedes that there was no agreement to pay in advance for 1958 purchases. Ferguson, assistant manager of Gulf Liquid, testified that there was no agreement that the partnership would pay in advance; that no one told him or his company to do otherwise than to credit the payments on the Stracner note.

During 1958 Stracner disappeared, and Titus was left to run the farm and the partnership. The time of his departure was not fixed with certainty. Titus admitted that Stracner was not back when he had his conversation with Ferguson. It was during this conversation that the oral promise was made by Titus. Titus testified that this conversation took place on or about July 15, 1958. Ferguson testified that it was earlier, at least as early as July 9, 1958 (by which time the partnership had purchased $725 of goods on credit).

Ferguson testified that in this conversation Titus specifically agreed to pay the Stracner note; that the promise was made in return for a continuation of credit by Gulf Liquid for the Titus & Stracner partnership for the 1958 crop year and for an extension of additional credit at the end of 1958 if needed. He also testified that Gulf Liquid would not have continued credit except for Titus’s promise to pay the Stracner note, and at that time he had to decide whether to file suit. At another place in his testimony, Ferguson testified that Titus agreed “to take care of” the Stracner debt; that “he would pay that [note] out * * * and * * * if he needed additional credit, I agreed to give it to him.” At another place, Ferguson testified that Titus promised that he would “see that the note was paid.” Then again on direct examination, Ferguson said Titus said “I will pay” the note.

Titus testified that he agreed only to see that the Stracner note was paid, and that he meant by this that he would see that Stracner himself paid it; that he, Titus, was not going to get himself obligated, but that he would see that Stracner paid his debt. He also testified that he had no discussion with the officers of Gulf Liquid concerning credit for the partnership’s 1958 crop or of credit being stopped if the promise to pay the Stracner note was not given; that he had no knowledge of the Stracner note until it was showed to him by Ferguson in mid-July of 1958, when he had already started buying on credit from Gulf Liquid; that it was not necessary for him to establish credit with Gulf Liquid because the financing of the 1958 crop had already been arranged with Western Cotton Oil Company which had advanced money to the partnership for the 1958 crop, and that a budget for fertilizer and insecticides and a bank account had already been set up.

The findings of fact of the trial court were these: that Stracner executed the note on January 29, 1958; that prior to June 24, 1958, (when Titus first purchased merchandise from Gulf Liquid for the partnership) the only debt owed by either Stracner or Titus to Gulf Liquid was the Stracner note; that the Stracner note was given in satisfaction of an open account owing by Strac-ner to Gulf Liquid for fertilizer and insecticides purchased during 1957; that at the beginning of the 1958 cotton crop year, Stracner and Titus entered into a farming partnership for the 1958 crop year; that the “Titus & Stracner Farm” partnership paid by check $1,500 on March 3, 1958, and $1,303 on June 5, 1958, on the Stracner note; and that on those dates, neither Stracner nor Titus owed any debt other than the Stracner note to Gulf Liquid; that the “Titus & Stracner Farm” paid $1,500 by check on July 9, 1958, on the Stracner note, and that on that date Stracner and Titus were indebted to Gulf Liquid for $725 on open account and not otherwise except on the Stracner note; that there was no agreement between Gulf Liquid and Titus & Stracner that the latter would pay in advance for insecticides and fertilizers used during the 1958 crop year; that the balance at the time of trial owing on the Stracner note was $2,880.58 together with interest and attorney fees; that Gulf Liquid continued to sell Titus & Stracner fertilizer and insecticides from June 24, 1958, throughout the 1958 crop year on credit, and that the amount owing at the end of the 1958 cotton crop year was $5,000.80.

Regarding the oral promise of Titus, the court made these findings of fact:

“5. That Plaintiff Gulf Liquid Fertilizer Company, through its authorized employee, W. T. Ferguson, Jr., informed the Defendant James Titus that it did not desire to sell insecticides and fertilizer to the partnership of Lonzo Stracner and James Titus during the 1958 crop year on a credit basis until the indebtedness owing by Lonzo Strac-ner, represented by the promissory note dated January 29, 1958, had been taken care of and satisfied.
“6. That the Defendant James Titus, in order to obtain credit for the partnership of Stracner and Titus from Plaintiff during the 1958 crop year, agreed to pay to Plaintiff the indebtedness represented by the said note dated January 29, 1958, in the sum of $7,183.-58, or to see that same was paid. (Emphasis ours.)
“9. On June 24, 1958, Plaintiff Gulf Liquid Fertilizer Company, relying upon the agreement of Defendant James Titus to pay the said note dated January 29, 1958, or* to see that same was paid, and the partial performance by Defendant James Titus of said agreement began to sell fertilizer and insecticides to the partnership of James Titus and Lonzo Stracner on credit and continued to do so during the 1958 cotton crop year.”

The trial court’s conclusions of law were that the Stracner note is a valid obligation; that the agreement of Titus to pay the Stracner note is not barred by the Statute of Frauds because it has been fully performed by Gulf Liquid and partially performed by Titus; that Gulf Liquid is entitled to judgment against Titus and Strac-ner for the sums specified in the judgment.

Because of their importance, these additional conclusions of law are set out in full:

“2. That the Defendant James Titus made an unconditional promise to pay the indebtedness owing to Plaintiff by Defendant Lonzo Stracner as evidenced by said note dated January 29, 1958.
“3. That the promise of Defendant James Titus to pay the indebtedness owing by Defendant Lonzo Stracner on said note was an original obligation and was supported by a new and independent consideration; that is, that Plaintiff would sell fertilizer and insecticides to the partnership of Stracner and Titus during the 1958 cotton crop year on credit.
“4. That the promise and agreement of the Defendant James Titus to pay the obligation of Defendant Lonzo Stracner as represented by said promissory note, was not within the prohibition of the Statute of Frauds since said promise and agreement was an original obligation and supported by a new and independent consideration.” (Emphasis ours.)

One of the problems here is the meaning of the trial court’s finding of fact Number 6, that Titus “agreed to pay to plaintiff the indebtedness represented by the said note * * * or to see that same was paid.” The trial court’s “conclusion of law” was that Titus agreed unconditionally to pay the note. Nevertheless, the Court of Civil Appeals treated the trial court’s findings of fact as a finding of a “collateral” and “conditional” promise, and therefore barred by the Statute of Frauds. The case for Titus is well presented in the opinion of the Court of Civil Appeals and need not be repeated here. We have concluded, however, that there is evidence to support the finding of the trial court that Titus intended to accept primary responsibility for the Stracner note and that the consideration he received in return for his promise satisfied the “leading object” or “main purpose” rule. We therefore hold that his promise is outside the Statute and enforceable.

The Statute of Frauds was first enacted in England in 1677. Considering modern rules of evidence and business practice, there are some who believe that insofar as applicable to facts similar to those here, such statute has outlived its usefulness. It is a two-edged sword. It is argued that it may be used to perpetrate frauds as well as to prevent them. Under it a person may obtain a substantial benefit for himself under an oral promise to pay the debt of a third person and then resist payment on the ground that his promise is oral and therefore unenforceable under the Statute of Frauds. Because of this and other dangers, the courts of England and this country have sought to keep the Statute within its intended purpose.

The Statute has given rise to literally thousands of cases. Yet on the problem before us, no clear, settled rules for its construction have been devised. The problem is not finding authorities but of attempting to find the “true or better rule.” There are many different factual circumstances under which the Statute is invoked. We shall attempt to limit this opinion to the general factual situation here presented.

In determining whether a promise to pay the debt of another is within or without the Statute of Frauds, one test devised by the courts is whether the promisor, by his promise, is a surety and is therefore secondarily liable, or whether he has accepted primary responsibility for the debt of another. By this test if an oral promise creates the relationship of surety and principal between the promisor and the original debtor, and if the fact is known to the creditor-promisee, it is within the Statute and is therefore unenforceable. An oral promise creating primary responsibility in the prom-isor to the creditor-promisee is without the Statute and is therefore enforceable. Professor Williston suggests that:

“The test which it is submitted is the accurate one * * * is whether a promisor is, to the actual or presumed knowledge of the creditor, a surety; if so, his promise is within the Statute.” 2 Williston, Contracts (Rev. ed. 1936), p. 1335, § 462.

Professor Corbin agrees:

“Wherever the relation between the two obligors is that of principal and surety and this fact is known to the creditor, the case is within the statute. Supposed distinctions between a ‘surety’ and a ‘guarantor’ are not material in this connection.” 2 Corbin, Contracts, (1950 ed.), p. 247, § 358.

Thus the courts have denied a recovery as being within the Statute where the promis- or has promised to pay the debt of another only as surety, but hold promises to be enforceable where the promisor has in effect made the debt his own and has assumed primary responsibility. The fundamental idea behind this is that a person should not be able to escape performance of oral promises to pay his own debts by use of the Statute of Frauds.

The courts have sometimes formulated rules which state that “original” promises to pay the debt of another are without the Statute, while “collateral” promises are within. These terms have been defined in so many and conflicting ways that they are of no real value except perhaps to express a result already reached, i. e., that a promise is or is not within the Statute. For this reason, they will not be used in this opinion except where it is unavoidable.

In reading the cases and the texts, it appears to us that most cases have turned upon two or more of the following inquiries which are made to determine whether an oral promise to pay the debt of another is without the Statute and enforceable. They are phrased in different ways by different courts, but in substance they are:

1.Did the promisor intend to create primary responsibility in himself to pay the debt, or did he intend merely to be a surety? The courts may answer this question by saying that the words used in making the oral promise are, themselves, so clear as to be unsusceptible of any other intent than to be, or not to be, only a surety as a matter of law. Or the courts may find that the words are not clear and that the question of intent is one for the finder of fact, taking into account all the facts and circumstances of the case, including the words used by the promisor. Closely allied with this test is number 3 set out below: was the promise given to subserve some desire of the promisor, or was his purpose merely or only to act as a surety?

2. Was there consideration for the promise ? This inquiry is the same that would be made for any other promise, oral or written. Sufficient consideration is necessary to create a binding contract, generally speaking.

3. Is the consideration given for the promise the sort of consideration which the courts say is necessary to take the promise out of the Statute? Not all consideration, though sufficient in law, is sufficient for this purpose; and a majority of the courts have applied, in this regard, a rule called the “main purpose” or “leading object” rule. This rule places the promise without the Statute, and therefore enforceable, if the consideration given for the promise is primarily for the promisor’s own use and benefit. In this area the terms “collateral” and “original” are also sometimes used: “collateral” referring to a promise for which the promisor does not get the main benefit; and “original” referring to one where he does.

We now apply these three tests to this case.

I. Was there a promise of primary responsibility to pay, or was there a promise of suretyship ?

This Court said in Bank of Garvin v. Freeman, 107 Tex. 523, 181 S.W. 187, p. 191:

“The meaning of that statute is to require a promise as surety for another’s debt, or guarantor of another’s debt, to be in writing. It never was intended to prohibit one person from assuming the payment of another’s debt, as his own debt, where there is a valid consideration moving between the parties to such contract. In other words, one person for a valuable consideration may assume as his own debt the debt of another, and it need not be in writing, but he cannot contract with one person to become surety or guarantor for the debt of another person except it be in writing.”

Unless reasonable minds could not differ as to the intent of the promisor to be a surety or not, the precise words or form used are not controlling. 2 Corbin, Contracts (1950 ed.) 247, § 358; 2 Williston, Contracts, (Rev. ed.), p. 1339, § 465. If the words used are not clear and are susceptible of more than one meaning, the question of intent to be primarily responsible for another’s debt is one for the finder of fact, taking into account all the facts and circumstances of the case including the words used by the promisor. Warren v. Smith, 24 Tex. 484 (1859); Higginbotham-Bartlett Co. v. Dickey, 27 S.W.2d 248 (Tex.Civ.App.1930, error dismissed); Shahan-Taylor Co. v. Foremost Dairies, Inc. 233 S.W.2d 885 (Tex.Civ.App., n. r. e., 1950); Moraz v. Melton (167 Ark. 629) 268 S.W. 41 (1925); annotation, 20 A.L.R.2d 246 at 248; 2 Williston, Contracts (Rev. ed.) 1340, § 465; Stearns, Law of Suretyship (5th ed.) 36, § 3.7. As was stated in the Dickey case, cited just above.

“We cannot say, as a question of law, that the agreement pleaded and as found by the court is an original agreement not within the statute as distinguished from a collateral agreement within the statute. This we would have to do, to be justified in disturbing the judgment of the trial court. If the evidence raised an issue of fact as to whether it was one or the other, then the trial judge trying the case without a jury must be deemed to have found the agreement was collateral. The appeal does not challenge the findings of fact, but only a conclusion of law. We at least cannot say that that conclusion was wrong.” 27 S.W.2d 248, 250.

The Supreme Court of Arkansas had a similar question in the Melton case, cited just above, where the promisor said “he would see” that the debt was paid. That court concluded:

“In determining whether an oral promise is original or collateral, the intention of the parties at the time it was made must be regarded; and in determining such intention the words of the promise, the situation of the parties, and all of the circumstances attending the transaction should be taken into consideration.” 268 S.W. 41, 42.

The Arkansas Court concluded that although the words were “to see that the debt was paid,” the promise was construed to be one “to pay” and was held to be enforceable.

We have a fact finding by the trial court that Titus agreed to pay or to see that the debt was paid. The Court of Civil Appeals has treated the character or nature of Titus’s promise as “conditional” and “collateral,” and based its decision upon an emphasis on the portion of the trial court’s finding of fact that Titus agreed “to see that same was paid.” In effect, that Court concluded that the words used evidence an intent not to assume primary responsibility but rather to be a surety.

There is, however, evidence that Titus agreed “to pay.” Those words indicate an intention to accept primary responsibility. There is also evidence that he agreed “to see that the debt was paid.” These words are subject to several interpretations as to intent. The additional words, “or see that the debt was paid,” particularly when accompanied by other words of promise to pay, could be interpreted to mean that he, Titus, would arrange for payment if he were unable to pay the note as he had promised. This is still a promise of the nature or character of one to accept primary responsibility.

The findings of fact and the conclusions of law will he construed together; and if the findings of fact are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it. Elder, Dempster & Co. v. Weld-Neville Cotton Co., 231 S.W. 102 (Tex.Com.App.1921); Cook v. Mann, 40 S.W.2d 72 (Tex.Com.App.1931); Daniels v. Wight, 249 S.W. 454 (Tex.Com.App.1923); State v. Macken, 162 S.W. 1160 (Tex.Civ.App., writ ref. 1914).

We think the words used by Titus, in the context in which they were used, are not so clear as to be capable of only one construction. The trial court concluded that the promise of Titus was “an unconditional promise to pay” and that “the promise of Titus to pay was an original obligation.” While we think reasonable minds could differ on the meaning and intent of Titus, we cannot say as a matter of law that the trial court was wrong in its interpretation.

II. Was there sufficient consideration to support the promise to pay?

The next inquiry is whether there was sufficient consideration to support Titus’s promise to pay Stracner’s note. Muller v. Riviere, 59 Tex. 640 (1883). There must of course be sufficient consideration to make any promise a binding and enforceable one. 1 Corbin, Contracts (1950 ed.), § 110. The Court of Civil Appeals held that the consideration passing to Titus was not sufficient. We conclude that it was.

There was conflicting evidence on whether consideration passed in return for Titus’s promise. On the one hand, Titus testified that the partnership had already arranged a loan to pay for the 1958 crop with a third party, Western Cotton Oil Company, and that they therefore did not need credit from Gulf Liquid. On the other hand, Ferguson testified that credit for the partnership would not have been extended for its 1958 crop except for Titus’s promise to pay; that Titus did want credit; that he, Ferguson, promised to extend credit in return for Titus’s promise; and that the partnership was in fact extended credit- to the extent of $5,000 in reliance on the promise. The trial court resolved this question in favor of Gulf Liquid. It decided by its findings of fact numbered 5, 6, and 9, that there was consideration in the form of credit extended by Gulf Liquid to the “Titus & Stracner Farm” for its 1958 crop. The determination left for this Court is only as to the sufficiency of that consideration.

As to that question, there would seem to be little doubt. The cases have frequently held that a promise to extend credit is sufficient consideration for another promise in a bilateral contract. Muller v. Riviere, 59 Tex. 640 (1883); Binge v. Gulf Coast Orchards Co., 67 S.W.2d 1045 (Tex.Civ.App., no writ, 1934); Universal C. I. T. Credit Corporation v. De Lisle, 47 Wash.2d 318, 287 P.2d 302 (1955); National Refining Co. v. McDowell, 201 S.W.2d 342 (Mo.Sup., 1947). We therefore hold that there was consideration for Titus’s promise.

III. Was the consideration such as to remove the promise from the Statute of Frauds?

There is a difference between adequacy of consideration in law and the sort of consideration which the courts say is necessary to take the promise out of the Statute. Professor Corbin explains this difference:

“It should be noted in the beginning that a consideration may be sufficient to satisfy the requirements of the common law of contracts without being sufficient to satisfy the ‘leading object’ rule and take the promise out of the statute of frauds. A promise is not out of the statute merely because there is a consideration for it. * * * The statute is applicable to promises to answer for the debt of another for which there is some sufficient consideration. It appears, however, that certain kinds of consideration will prevent a promise from being one ‘to answer for the debt of another’ and will make the promisor a debtor on his own account.” 2 Cor-bin, Contracts, (1950 ed.) 279, § 367.

Corbin continues:

“The ‘leading object’ that is sufficient to take a promise out of the statute must be found in the consideration for the promise and not in the promise itself or in the result of its performance. The promise is itself a promise to a creditor to pay a debt due to him from a third party; if it is not such a promise, it is certainly not within the statute. The performance of the promise will clearly benefit the creditor; and it will benefit the debtor too by discharging his duty to that creditor. * * The promisor is not in the least benefited by the performance of his own promise. In order to take his promise out of the statute, he must be bargaining for a consideration that is beneficial to himself aMd that constitutes his primary object of desire(Emphasis added.) Ibid., 284.

The “leading object” or “main purpose” rule has been adopted by the American Law Institute in its Restatement of the Law of Contracts, Section 184. This rule was announced by this court in Lemmon v. Box, 20 Tex. 329, (1857), where it said:

“ ⅜ * * that wherever the main purpose and object of the promisor is, not to answer for another, but to subserve some purpose of his own, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing the liability of another.”
“Here the leading object of the plaintiff (as charged in the plea) was not to guarantee or to secure the debt of the Carpenters * * * but it was to subserve some purpose of his own.” [p. 333]

The rule was followed in Muller v. Riviere, 59 Tex. 640 (1883), and by a number of opinions of the Courts of Civil Appeals.

There is one case by the Commission of Appeals which has language in it contrary to this rule. In Housley v. Strawn Merchandise Co., 291 S.W. 864 (1927, opinion not adopted by this Court), it was said that the “main purpose rule” is not applied in this State. The promisor in that case “guaranteed” the payment of the debt of another. Under the facts of that case the court concluded that the promise was therefore “collateral” or “conditional.”

Whether therefore we regard the statement in the Housley case as dictum, or whether we consider it to be out of line with Lemmon v. Box, 20 Tex. 329, Muller v. Riviere, 59 Tex. 640, and the more recent opinions of the Courts of Civil Appeals, we here hold that the “leading object” or “main purpose” doctrine announced in Lemmon v. Box should and does apply in this state.

We now apply the “main purpose” doctrine to this case. Assuming as we have that Titus, for a consideration, made a promise to pay the debt of Stracner, was his main purpose and object to subserve some purpose of his own? The trial court found as a fact that the promise was made “in order to obtain credit for the partnership of Stracner and Titus.” The trial court also concluded that the promise was supported by a new and independent consideration, the sale of merchandise on credit during 1958, but for which the credit would not have been extended. We find no evidence that the promise was made for Strac-ner’s benefit. The fact that Stracner had left him and that Titus was trying to produce a crop in 1958 without his partner is evidence that he gave the promise primarily to benefit himself. Assuming as we have that he made the promise to obtain the credit, the crucial point is that the consideration necessarily benefited him as a member of the partnership because he shared in the partnership’s ultimate profits, if any, and the benefit he received as a member of the partnership is considered sufficient to satisfy the “main purpose” rule. We think there are facts to support the findings and conclusions of the trial court. We therefore hold that the oral promise of Titus is enforceable and is not barred by the Statute of Frauds.

This opinion has stated that the courts have used two or more of the following tests to determine whether an oral promise is outside of the Statute of Frauds: (1) the promise was made to subserve some main purpose of the promisor, Titus; (2) the promisor, Titus, agreed to become primarily liable for the debt of the debtor, Stracner, and not simply or only to act as a guarantor or surety; and (3) the promise was supported by consideration. We have also held that there is evidence to satisfy all three tests in this case. We are safe in saying that whatever test is used, the promise must be supported by consideration. It is unnecessary for us to decide here whether the other two elements must also be present at the same time. We have here held that the “main purpose” doctrine is applicable in this State.

One point remains: the Court of Civil Appeals held that Gulf Liquid was not authorized to apply the checks of the partnership of $1,500 and $1,303 on the debt of Stracner. Under the facts and holding of this case, that point becomes immaterial. Since Stracner and Titus are jointly and severally liable for the full amount of the note and the merchandise purchased in 1958, the payments are credited on the total debt of both.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

The motion for rehearing is overruled.

      . Section 2, Art. 3995, Vernon’s Ann.Civ.St.

      . See Gretlier, “Gaveat Promisee: Nebraska’s ‘New Consideration’ Test and the Anachronistic Statute of Frauds,” 33 Nebraska Law Rev. 577, 600 (1954).

      . All sections of the Statute of Frauds have now been repealed in England except those covering promises to pay the debt, default, or miscarriage of another, and contracts for the sale of land. 68 Harv.L.Rev. 383.

      . 2 Corbin, Contracts, (1950 ed.), p. 218, § 348.

      . Enterprise Trading Co. v. Bank of Crowell, 167 S.W. 296 (Tex.Civ.App. no writ, 1914); Kollatt v. Clements, 3 S.W.2d 855 (Tex.Civ.App., error dismissed, 1928); Ellington v. Pirtle, 102 S.W.2d 524 (Tex.Civ.App., error dismissed, 1937); Brown v. Majors, 251 S.W.2d 786, (Tex.Civ.App. no writ, 1952).

      . In reviewing the authorities, Corbin recognized the Housley ease as being critical of the “loading object” rule. But he also correctly observed that the court in that opinion “did not review the Texas decisions on the point excepting to distinguish Lemmon v. Box.” 2 Corbin, Contracts (1950 ed.) 276, § 366, f. n. 4.


source: Caselaw Access Project

author: GRIFFIN, Justice. WALKER, Justice

license: Public Domain

text:
    CITY OF HOUSTON et al., Petitioners, v. Foy D. MELTON, Respondent.
    No. A-8538.
    Supreme Court of Texas.
    Jan. 31, 1962.
    Rehearing Denied March 14, 1962.

      R. H. Burks, City Atty., Charles A. Easterling, Senior Asst. City Atty., Houston, for petitioner.
    Sam S. Minter, Houston, for respondent.
   GRIFFIN, Justice.

Foy D. Melton, an inspector of police in the City of Houston, Texas, on October 20, 1959, was indefinitely suspended by the Chief of Police of said City. The Chief of Police in all things complied with the provisions of Art. 1269m, § 16, Vernon’s Annotated Texas Civil Statutes, known as the Firemen’s and Policemen’s Civil Service Act. Melton appealed to the Civil Service Commission, and that body, after hearing all parties and their witnesses, upheld the suspension. Melton then appealed to a district court of Harris County, Texas and that court, after a hearing, held that the order of the Civil Service Commission (hereinafter called Commission) was not supported by substantial evidence and set the order aside for its failure to contain specific findings that Melton was guilty of each of the charges contained in the letter of the Chief of Police suspending Melton. The City and others appealed to the Court of Civil Appeals which affirmed the judgment of the trial court and reinstated Melton and ordered the City to pay to Melton his accumulated salary. The Court of Civil Appeals disagreed with the holding of the trial court that the charges on which Melton was tried before the Commission were not supported by substantial evidence, and held that five out of the six charges were supported by substantial evidence, but that charge No. 2 — or specification as it was designated by the Commission — was not supported by substantial evidence. The Court of Civil Appeals affirmed the judgment of the trial court on the ground that the order of the Commission did not comply with the latter part of Art. 1269m, § 16, providing that “no employee shall be suspended or dismissed by the Commission except for violation of the civil service rules, and except upon a finding by the Coimnission of the truth of the specific charges against such employee.” (Emphasis by Court of Civil Appeals, 347 S.W.2d 643, 646.)

The opinion of the Court of Civil Appeals contains a full, complete and clear statement of the facts and we shall set out only such, facts herein as are necessary to properly understand our opinion.

The City complains of the action of the trial court and the Court of Civil Appeals by seven points of error. In our opinion, the point upon which this cause must be decided is whether or not the order of the Commission upholding the indefinite suspension of Melton is a finding of the truth of the six charges, or specifications, contained in the letter of the Chief of Police dismissing Melton. It was upon these charges that the Commission tried Melton, and on which the Commission heard evidence. The Court of Civil Appeals said that “while we do not mean to hold that the Commission must necessarily make separate findings on each charge, at least it is required that it make some type of finding that will inform us what charges it found to be true. If here the Commission had made a general finding that all charges were true, this would suffice, or, if it had found all to be true except certain specified charges, it would suffice.” We agree with this statement of the law as applicable in this case, and we hold the Commission did find all charges to be true. Eddings v. Bichsel, Tex.Civ.App., 1957, 320 S.W.2d 197, no writ history. We agree also with the Court of Civil Appeals that there is in the record substantial evidence to support all of the six remaining specifications except Specification, or Charge No. 2. Any one of the five remaining specifications, if found to be true, would support the action of the Chief of Police and the Commission in indefinitely suspending Melton.

Let us now examine the order of the Commission in its. entirety to determine whether or not it contains findings of the truth of the charges. The order begins by referring to the letter of the Chief of Police suspending Melton; it states that a copy of the letter is attached to the order and that the Commission had numbered the specifications for convenience in referring and identifying the specifications. After reciting certain preliminary steps taken to fix the date of hearing, and that all parties appeared in person and by attorney, the order sustains Melton’s motion to dismiss Specification No. 9. The order further recites that Specifications Nos. 7 and 8 were dismissed and not considered further; that the hearing proceeded on the remaining six specifications until both sides rested their respective cases. The order recites further that after both sides had closed, the Commission and its members considered and discussed among and between themselves all of the testimony adduced upon said hearing and conferred among themselves with respect thereto. This particular paragraph of the order concludes with the following language: “* * * and the evidence as a whole leaves no doubt in our minds as to the substance (Commission’s emphasis) of the issues. Based on such evidence, as well as upon the appearance and demeanor of the witnesses while testifying, we have no doubt that the said Foy D. Melton was guilty of improper and wrongful conduct, well within said Specifications remaining before us/1 (emphasis ours) — those “specifications remaining” meaning only the six remaining specifications considered by the Commission.

This is a finding by the Commission that all the remaining six charges are true. The Commission’s italicizing and emphasis of the word “substance” precludes any question that it found the specifications to be true. Webster’s Third New Unabridged International Dictionary, 1961, defines “substance” as follows: “a fundamental part, quality or aspect: essential quality or import; the characteristic and essential part.” The order then continues with the following language, “based on such evidence * * * we have no doubt that the said Foy D. Melton was guilty of improper and wrongful conduct, well within said Specifications remaining before us.’p (Emphasis ours.) The language “well within” was here used in the sense of “as alleged”, or “as contained”. This is a specific finding of guilt of wrongful and improper conduct charged in each and all six specifications on which Melton was tried. The fact that Specification No. 2 is not supported by substantial evidence does not set aside the Commission’s finding of guilt as to the other five.

Respondent Melton relies on Thompson v. Railroad Commission, 150 Tex. 307, 240 S.W.2d 759 (1951), as authority for his position that the order of the Civil Service Commission in our case is not sufficient compliance with the requirements of Art. 1269m, § 16, Vernon’s Annotated Civil Statutes. The statute in the Thompson case provided that the order of the Railroad Commission should be void unless the Railroad Commission “shall set forth in its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service.” We find no language of like or similar import in Art. 1269m, § 16. There is no requirement that failure to set out detailed findings shall make void the order of the Commission. The requirement is that the Commission must make a finding of the truth of the specific charges against such employee, and a careful analysis points up the fact that the order is based upon such findings. The order permanently dismissed Melton from the police force of the City of Houston as is required by the provisions of Art. 1269m, § 16.

Melton also relies on the case of United States of America v. Chicago, Milwaukee & St. Paul & Pacific Railroad Company, 294 U.S. 499, 155 S.Ct. 462, 79 L.Ed. 1023 (1935), to support his position. We have examined that case and it is not in point. No requisite findings were made in that case, whereas in the case at bar the necessary findings were made.

The order of the Commission set out the facts and expressly made findings showing the jurisdiction of that body to conduct the hearing. There is no complaint in the instant case attacking the jurisdiction of the Commission to act.

The judgment of the trial court setting aside the order of the Civil Service Commission and reinstating Melton and ordering the City to pay him his accrued salary, and the judgment of the Court of Civil Appeals, affirming the judgment of the trial court, is hereby reversed and judgment is rendered that Foy D. Melton take nothing.

WALKER, Justice

(dissenting).

I respectfully dissent. Section 16 of Article 1269'm, Vernon’s Ann.Tex.Civ.Stat., provides that “[n]o employee shall be suspended or dismissed by the Commission * * * except upon a finding by the Commission of the truth of the specific charges against such employee.” Such a requirement is sound for a number of reasons. It was included in the present statute to insure, among other things: (1) that no fireman or policeman would be suspended or dismissed unless at least two members of the Commission concluded that he was guilty of some specific charge made against him, and (2) that no suspension or dismissal would be upheld by the courts on a ground not found against the accused by the Commission.

A summary of the nine charges originally made against respondent will be found in the opinion of the Court of Civil Appeals. 347 S.W.2d 643. Specifications 7 and 8 were dismissed before conclusion of the hearing when the City Attorney admitted there was no evidence to support the same, and Specification 9 was dismissed because the alleged misconduct occurred more than six months before the date of respondent’s suspension. When the Commission retired to reach a decision, therefore, respondent stood charged with six separate and distinct acts of misconduct. It was alleged that he had: (1) requested P. Y. Snow to talk with his brother, Billy D. Snow, about the testimony the latter would give in the case of Milner v. National Airlines, and stated that the brother would be paid several hundred dollars if he changed his testimony; (2) attempted to intimidate William Hill, Jr., a police officer; (3) made a false statement under oath on October 6, 1959, when he stated that he had not talked with Billy D. Snow about the case; (4) gave false testimony at the trial of the case when he declared that he had not attempted to influence anyone’s testimony; (5) made a false statement under oath on October 6, 1959, when he stated that he had not offered anyone money to testify falsely in the case; and (6) at various times attempted to influence and tamper with witnesses subpoenaed in the case.

The Commission carefully avoided saying anything that might disclose which or how many of these charges it found to be true. The order states only that respondent was “guilty of improper and wrongful conduct, well within the specifications remaining before us.” This falls somewhat short of a finding that he had committed each and all of the six alleged acts of misconduct. “Within” means encompassed by or inside the limits of, and the quoted excerpt from the order cannot fairly be construed as anything more than a finding that respondent was guilty of one or more of the charges. The majority seem to reason that the Commission found there was substance to the charges, but there is no recital in the order to that effect. It states that the evidence left no doubt “as to the substance of the issues.” This is simply another way of saying that the members of the Commission understood the real nature of the questions they were required to decide. “Issue” means point or question in controversy, and a statement that the Commission was satisfied as to the substance of the issues is not a finding that all six charges made against respondent are true.

Recitals of this character should not be given a strained and unnatural construction when the language could have been and probably was used by the administrative body in an entirely different sense. Under the majority holding, an administrative agency will no longer be required to face squarely the issues presented for determination, and a party who is prejudiced by administrative action cannot be assured of fair and adequate appellate review. If each member of the Commission concludes that a different specification is true, they will be free to decide that the accused was “guilty of improper and wrongful conduct well within the specifications” and should be suspended even though no two members can agree that even one of the charges is true. In a case where one of two opposing parties is entitled to administrative action under the law if Facts A, B, and C are established, there may be allegations and substantial evidence to support all three of such facts. If the agency finds only two of the essential facts but decides to grant the relief sought, the order can simply recite that the moving party has established “facts well within the allegations.” On appeal the order would necessarily be upheld on the theory that all three facts had been found, although that is not true and under the law the order should be set aside. In my opinion, the construction given by the majority to the order in this case defeats the purpose of the Legislature in requiring specific findings. I would affirm the judgment of the Court of Civil Appeals.

CALVERT, C. J., and SMITH, J., join in this dissent.

      . See McGinnis and Temple, Administrative Agencies Should Tell Us Why, 24 Tex.Bar Jour. 211; Davis, Administrative Law, Vol. 2, page 444 § 16.05.


author: WOODLEY, Presiding Judge. MORRISON, Judge.

text:
    Walter Henry MOSLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 33900.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    Rehearing Denied Feb. 28, 1962.

      E. A. Berry, Jr., Dickinson, Joe Moss, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr. and Howell E. Stone, Assts. .Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder; the punishment, death.

The indictment alleged the voluntary killing with malice aforethought of Tommy Box by shooting him with a gun.

Tommy Box, a 13 year old boy, and his lather, Brady Box, were employees at the Luce Oil Company Service Station at the intersection of Little York and Aldine-Westfield Road.

Joseph Paul LaMier, a customer of the service station for some ten years and who had been acquainted with Brady Box and Tommy Box for some eight or ten weeks, drove into the service station about 8:30 P.M. to get some gas. When no one came out to wait on him he entered the service station and found Tommy Box lying on his back gasping for breath. The dead body of Brady Box was nearby.

Tommy Box died several days later from gunshot wounds in the head and neck.

Officers investigating the shooting went to appellant’s home where he delivered to them a .22 caliber automatic rifle, saying “this is the gun you are looking for.”

A number of fired shells or hulls found on the floor at the service station, and some leaden bullets found in the body of Tommy Box and Brady Box, were compared with test shells and bullets fired from the .22 caliber rifle, and the ballistic expert identified some of the recovered empty shells or hulls and bullets as having been fired from said rifle.

Appellant’s confession was introduced in evidence without objection, in which he related how Brady Box had purchased his house, paying $70.00 in cash and giving him a check for $30.00 which was returned unpaid, and his difficulty in collecting from Brady Box thereafter and continuing:

“I was just trying to get my money from him and he would not pay me. He was about two months behind and had a third one coming up. He talked to the fwance company and they talked about taking the house away from me and signing it over to him. About three weeks ago I filed eviction notice on him to move and nothing has happened about this. About two weeks ago I ask— him if he had received any eviction papers, he said, no I have not heard anything about any papers. I had heard from people that he was telling them that they was going to take the house away from me and signing it over to him. All of this and the way that he had been doing me made me mad, it had all been building up. I kept trying to get my money and he got it into his head someway that he was not going to pay me at all and all of this made me mad.

“I had some tickets that I had let a few people have credit when I had the station and I took these tickets today, April 26, and went to try to colect the money on. I colected some of the money and while I was out in that neighborhood I went by this station where Brady works to see what he was going to do about paying me. He told me that he was not going to pay me. He said that he had a recipt. He did have a recipt in which I gave him when he gave me these checks and the checks came back. He also told me that he was not going to pay me as the people told him that he did not have to pay me. He said, they told him that they would draw up a new contract and sign the house over to him. All of this made me mad and I was already burning over the whole deal. I told him that I was going to turn the check over to the D. A. He told me he did not owe me anything. We argued back and fourth for some time, him telling me that he was not going to pay me what he owed me and that made me madder. I started out to the car, I was going to leave but I was burning up. I got in the car and sat there for a minute. I reached in the back of the car on the floor and got my gun. I put this gun in the car before I left the house, I don’t know why I put the gun in the car, I just put it in there. I went back in the place. I told him he had done wrong when he thought that he was going to beat me out of my house. At this time Brady was out in the front out from behind the counter, the boy was back behind the counter setting up on the counter. When I went in with the gun Brady went back behind the counter. I raised the gun up to my shoulder and pointed it at Brady and he raised his arms up and backed off and I started shooting. I just kept shooting and the boy jumped up and I don’t know how he got in it. He ran over and said, you have shot my Dad, I kept shooting, I don’t know how many times that I shot it must to have been 8 or 9 times. I never did go behind the counter but I went up to the counter and stuck the gun over the counter. This is a .22 cal. simi Automatic, rifle. Brady fell and the boy fell close to him. I don’t know what time this happened or what time they found them. I then drove out Aldine Road and rode around for a while and then went home. I did not say anything to my wife or anyone else about this until the officers, came for me. I stayed at my house until; the officers came and got me. When I got; home I took the gun out of my car and. put it in the garage and when the officers came after me I gave them the gun out of the garage where I had put it when I came ■ home. I had my brother’s car and the officers brought it to the police station.”

Appellant offered no witnesses and his-counsel did not cross-examine any of the.witnesses for the state.

The court, in his charge, gave effect t'o' Art. 42, P.C. and instructed the jury: “ * * * if you believe from the evidence, beyond a reasonable doubt, that the Defendant, Walter Henry Mosley, on or about the 25th day of April, A.D., 1960, in the County of Harris and State of Texas, with; malice aforethought, intended to kill Brady" Box by shooting him with a gun and in the act of preparing for or executing the same, through mistake or accident, killed Tommy Box by shooting him with a gun, you will find the Defendant guilty of Murder with Malice Aforethought and assess his punishment at death or confinement in the penitentiary for life or any term of years not less than two.”

Appellant’s first ground for reversal is that Criminal District Court No. 5 of Harris County, where the case was tried, had no jurisdiction because the indictment was returned into Criminal District Court No. 3 of Harris County, and the cause was never transferred from said Criminal District Court No. 3.

The question was raised for the first time on appeal.

The rule applicable is thus stated in Brady v. State, 119 Tex.Cr.R. 178, 44 S.W.2d 373, 375:

“ * * * in instances in which there are two district courts, each having criminal jurisdiction, situated in the same county, and the legislative provision authorizing the transfer of cases from one to the other, it is too late on appeal to complain, as is done in the present case, that the trial is upon an indictment filed in one of the courts and the trial is had in the other. Under such circumstances, the presumption will be indulged that the proper transfer was made. See Lindley v. State, 99 Tex.Cr.R. 85, 268 S.W. 167; Koehan v. State, 93 Tex.Cr.R. 368, 248 S.W. 365; Walker v. State, 98 Tex.Cr.R. 663, 267 S.W. 988.” See also Gower v. State, Tex.Cr.App., 332 S.W.2d 328.

The remaining ground for reversal relates to the court’s charge wherein the jury was instructed that if the statement of appellant, introduced in evidence, contained exculpatory matters, the state would be bound thereby unless shown to be untrue under all the evidence in the case.

We do not find in appellant’s confession any statement which would exculpate him. All of the statements in the confession were consistent with guilt. Baird v. State, 156 Tex.Cr.R. 644, 246 S.W.2d 192; Steen v. State, 158 Tex.Cr.R. 77, 253 S.W.2d 279; Carpenter v. State, Tex.Cr.App., 333 S.W.2d 391.

We observe, however, that the instruction on exculpatory statements found in the court’s charge appears to be sufficient under the rule stated in 1 Branch’s Ann.P.C.2d Ed. 103, Sec. 95.

The court submitted murder without malice, but the jury found that appellant acted with malice aforethought. We do not agree that the evidence shows as a matter of law that the killing was not upon malice aforethought.

The judgment is affirmed.

On Motion for Rehearing

MORRISON, Judge.

Appellant again urges that this cause should be reversed because there was not a proper transfer of the case from Criminal District Court No. 3 to Criminal District Court No. 5 in accordance with Article 52-158b, Section 3, Vernon’s Ann.C. C.P. This question was raised for the first time on appeal.

In addition to what we said on original submission, we note that in the recent case of McNeal v. State, Tex.Cr.App., 346 S.W.2d 345, construing Article 52—185b, supra, we said:

“In counties in which there are two or more district courts having concurrent jurisdiction in all felony cases with statutory authority to transfer cases from one to the other, the plea to the jurisdiction, because of the omission of such order, comes too late after notice of appeal.”

We also remain convinced that we properly disposed of appellant’s contention relating to the court’s charge on exculpatory statements on original submission.

In Lazarine v. State, 129 Tex.Cr.R. 605, 91 S.W.2d 363, a murder case in which the evidence revealed that appellant killed the deceased because deceased had been having sexual intercourse with appellant’s wife, this Court held that statements in the confession which merely showed the mental attitude of appellant at the time of the homicide did not require giving the special charge on exculpatory statements. See also Mendez v. State, Tex.Cr.App., 327 S.W.2d 454; Minton v. State, 164 Tex.Cr.R. 580, 301 S.W.2d 87; and Stephen v. State, 163 Tex.Cr.R. 505, 293 S.W.2d 789.

We note further, however, that the instruction on exculpatory statements found in the court’s charge is substantially the same as the one we approved in Minton v. State, supra.

Appellant’s motion for rehearing is overruled.


author: DICE, Commissioner.

text:
    Arthur Samuel BRUNDRETT, Appellant, v. The STATE of Texas, Appellee.
    No. 34116.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1962.
    Arthur Samuel Brundrett pro se.
    Henry Wade, Dist. Atty., Ben Ellis, Paul French and Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty,, Austin, for the State.
   DICE, Commissioner.

The conviction is for robbery by assault with a prior conviction for an offense of like character alleged for the purpose of enhancement; the punishment, life imprisonment.

This is a companion case to Cause No. 34,119, styled, Harris, Appellant v. State of Texas, Appellee, 354 S.W.2d 155, opinion this day delivered.

The State’s evidence in the two cases relative to the primary offense is substantially the same, and, as shown in the opinion affirming the conviction of appellant’s co-defendant, reflects that on the night in question, the appellant and his companion Bill Harris, entered a Cabell’s Store in the City of Dallas, both being armed with pistols, and by an assault and putting the prosecuting witness, Ardell Jobe, an employee of the store, in fear of bodily injury and his life, did fraudulently take from his person and without his consent, a billfold containing $8.00 and from a cash register and safe in the store the sum of approximately $500 and 81 blank money orders.

Proof was made by the State of the prior alleged conviction of appellant by the introduction in evidence of certified copies of the indictment, judgment and sentence in Cause No. c3554-IJ, styled, The State of Texas v. Arthur Samuel Brundrett, on the docket of Criminal District Court No. 3 of Dallas County, which showed that on the 23rd day of January, 1958, the defendant named herein, was convicted of the offense of robbery by assault, a felony less than capital. Appellant was identified as the person so convicted in the cause by the Assistant District Attorney who prosecuted the case and by the prosecuting witness in the case.

Certain finger prints taken from the records in the prior conviction, upon being compared with appellant’s known finger prints were shown to be of the same person.

Testifying as a witness in his own behalf, appellant denied committing the robbery and testified in substance that he was at some other place at the time the offense was committed. Witnesses were called by appellant who testified in support of his defense of alibi.

Appellant predicates his appeal upon four contentions.

He first contends that the State failed to prove the prior alleged conviction because it was not shown that he was the person convicted. We find no merit in the contention. Appellant, while testifying as a witness, admitted that he was the person previously convicted. His identification was also shown by the testimony of the prosecutor and the prosecuting witness at the previous trial and by comparison of the finger prints.

Appellant next insists that the judgment of conviction is void because the transcript does not contain an information based upon a valid complaint. The prosecution being for a felony upon indictment returned by a grand jury, no necessity existed for the filing of a complaint and information.

Appellant next complains that the court erred in appointing an attorney to represent him at the trial against his will. There is nothing in the record which supports appellant’s contention. We cannot consider certain affidavits attached to appellant’s brief in support of such contention. Tyler v. State, 163 Tex.Cr.R. 46, 288 S.W.2d 517.

Appellant’s last contention is that Art. 62, Vernon’s Ann.P.C., is unconstitutional, under both the Federal and Texas Constitutions, because it is not being uniformly applied throughout the State, resulting in many persons being convicted and confined in the penitentiary as first offenders who in fact had committed prior offenses and were subject to punishment as second offenders under the provisions of Art. 62, supra. While the record does not support appellant’s contention that the law is not being uniformly enforced in this State, if such was the proof, it would not render Art. 62, supra, unconstitutional. Such law as written is capable of uniform enforcement. Ex Parte Boman, 160 Tex.Cr.R. 148, 268 S.W.2d 186.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

Opinion approved by the court.


author: PER CURIAM.

text:
    STATE of Texas, Plaintiff in Error, v. CHESTERFIELD INDORSEMENT COMPANY OF DALLAS et al., Defendants in Error.
    No. 10980.
    Court of Civil Appeals of Texas. Austin.
    Jan. 10, 1962.
    Rehearing Denied Jan. 24, 1962.
    Will Wilson, Atty. Gen., Jack Price, Asst. Atty. Gen., for appellant.
    Douglass D. Hearne, Cofer & Cofer, Austin, for appellees.
   PER CURIAM.

Motion granted and appeal by Writ of Error dismissed on motion of Court.

Having granted the State’s Motion to File Transcript and Statement of Facts in Cause No. 10,972, styled State of Texas v. Chesterfield Indorsement Company of Dallas et al. on the docket of this Court, as transcript and statement of facts in this cause, and having examined such record, and it appearing therefrom that the State of Texas, plaintiff in error, participated in the trial of this cause in the Trial Court an appeal by writ of error is not available to it under the express provisions of Art. 2249a, Vernon’s Ann.Civ.St.

Appeal by Writ of Error dismissed.


author: BOYD, Justice.

text:
    C. Walter CULKIN, Appellant, v. NEIMAN-MARCUS COMPANY, Appellee.
    No. 16286.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 2, 1962.
    Rehearing Denied March 2, 1962.

      Esir Tobolowsky, Dallas, for appellant.
    Thompson, Knight, Wright & Simmons, Morris Harrell and David S. Kidder, Dallas, for appellee.
   BOYD, Justice.

C. Walter Culkin sued Neiman-Marcus Company for $2,700.00 alleged to be owing as salary. From a judgment for Neiman-Marcus Company upon instructed verdict. Culkin appeals.

Appellant was the only witness, and he testified by deposition. According to his testimony, at the time the negotiations with appellee began, he had for twenty-six years been a hat salesman or manager of hat departments for concerns in New York City; in July, 19S4, Edward Marcus, Vice President of appellee, contacted him and offered him a job. As a result of his being contacted by Marcus, appellant telephoned Art Fekety, appellee’s buyer of men’s furnishings at appellee’s buying office in New York, and after several telephone conversations and one personal interview, “it was left that he would contact me.”

On August 27, 19S4, Fekety wrote the following letter to appellant:

“I have just finished discussing with our Personnel Director, Miss Mary Lloyd, the possibility of your coming down to work for us in our Men’s Hat Department.

“When I saw you in New York I explained to you that when I came to Dallas, four and a half years ago, our previous year’s hat business amounted to $80,000. and in the first year that I was here, just by virtue of having someone in the department who knew and understood the hat business, I built the volume up to $120,000.

“In the past four years our total man’s business has increased considerably but since I have gotten out of the hat department the business has slipped back to where it was when I came here, simply because we have had no one in the department who has had the experience or the know-how. I can see no reason why someone like you couldn’t come in and increase it to at least the same size as I did in that first year.

“All of the furnishings’ men * * * of which there are eleven * * * are allowed to sell hats but I feel that out of the $120,000. someone who was in the department all the time would sell approximately $50,000. in a year. We pay 7% commission on hat sales which means that for sales of $50,000. one would make $3500. in a year’s time. In addition to this, for the responsibility of keeping the department in shape, keeping stock records, reordering staples, assisting me in buying hats, and also assisting our furnishings’ men in selling the hats, we would be willing to pay you $300. per month. This would bring your total year’s income up to $7100. This, of course, could be higher by an increased hat business and at the present time we feel that our hat department has a potential of $200,-000.

“The time will come, we feel sure, when the hat department will be moved to the third floor, clothing department. At the time this is done whoever is in charge of the department will, with one or two assistants, do all the hat selling. This, of course, would increase his commission.

“Should you decide to accept this offer we will allow you $600. toward your moving expenses.

“I hope that you will consider this offer favorably as I know you will be able to do the type job which will prove beneficial to both Neiman-Marcus Co. and yourself.”

Appellant accepted the offer contained in the letter. At that time he was employed as a hat salesman by Brooks Brothers in New York. He gave up his job and his apartment and moved his family to Dallas, where he rented an apartment and had his furniture shipped and moved in. Appellee paid $600.00 on his moving expense. He reported for work on September 13, 1954, “the date specified by Mr. Fekety.” After a two-week training period he performed the duties mentioned in Fekety’s letter. He was paid $300.00 per month, in addition to seven per cent of his sales, until February 1, 1957. His earnings in 1955 were $7,988.00; in 1956, they were $8,435.00; in 1957 his earnings were $6,803.00 when for his non-selling duties he was paid only $150.00 per month for the last eleven months.

No one ever told appellant that his services were unsatisfactory. He never agreed to accept $150.00 per month instead of $300.00. He never agreed to any change in the original contract of employment. In January, 1957, he was called into the office •of Miss Mary Lloyd, appellee’s personnel director, and was informed by her that his non-selling salary would be reduced from $300.00 per month to $150.00 beginning February 1, 1957. Thereafter, he was paid, and accepted, $150.00 per month. He continued to perform the same duties as from the beginning. He testified: Q. “It is true, isn’t it, that you did not make a claim upon Neiman-Marcus for back salary that you claim was owed you as a result of reduction of the non-selling salary from $300.00 to $150.00 per month until your resignation on July 30th, 1958?” A. “No; it is not true. I did not make a formal claim but I did object to Mr. Edward Marcus, Vice President, and he told me to sit tight and he would take care of it for me.” Appellant voluntarily terminated his employment on July 30, 1958.

In response to a letter written to appel-lee by appellant’s attorney on July 30, 1958, the response being signed by Norman W. Bramley, Vice President-Treasurer, appel-lee said: “* * * we are not aware of any liability to Mr. C. Walter Culkin. Our records indicate that Mr. Culkin resigned from our employ of his own accord, effective July 30, 1958, and all amounts due him were paid to that date. Neiman-Marcus Company does not make and never has made any contractual agreements with any of its employees or executives, and Mr. Culkin was no exception to this policy. * * * ”

Appellant asks reversal on the ground that jury issues were raised. Appellee denied there was ever an enforceable contract for employment; but, if so, it contends: (1) the duration of the contract was at most from month to month; (2) appellant accepted a modification of the contract, reducing his non-selling salary; (3) appellant accepted “the terms of the contract of employment, effective February 1, 1957,” whereby his non-selling salary was reduced; (4) appellant is estopped to deny that the contract was modified; and (5) he is estopped to deny that his original employment contract was terminated on January 31, 1957, and that he was fully compensated under the terms of the contract effective February 1, 1957.

Although the case is not free from difficulty, we are of the opinion that it should have been submitted to the jury. Where the evidence is open to different material inferences a motion for instructed verdict may not be given. 41B Tex. Jur., p. 226, § 191.

The rule is that, in the absence of special circumstances, a hiring at a stated sum per month is a definite employment for that period. Dallas Hotel Co. v. McCue, Tex.Civ.App., 25 S.W.2d 902. “But, if there be anything in the contract showing that the hiring was intended to be for a longer term, as for a year, the mere reservation of wages for a lesser term, as per week or month, will not control the hiring.” Story on Contracts, 5th Ed., § 1291. We must seek the intention of the parties from a consideration of the agreement as a whole, in the light of all the circumstances, endeavoring to reach its real meaning, reconciling clauses apparently in conflict, if possible, to render the agreement fair, customary, and such as reasonable business men would execute. Stone v. Robinson, Tex.Civ.App., 180 S.W. 135, error refused. Selling a home, and removal of the employee and his family to the place of the new undertaking, has been usually deemed a factor of controlling weight. Dallas Hotel Co. v. Lackey, Tex.Civ.App., 203 S.W.2d 557; Putnam v. Producers’ Live Stock Marketing Ass’n, 256 Ky. 196, 75 S.W.2d 1075, 100 A.L.R. 828; Dennis v. Thermoid Co., 128 N.J.L. 303, 25 A.2d 886.

In Smith v. Theobald, 86 Ky. 141, 5 S.W. 394, Theobald was offered a position as manager of a hotel and secretary and treasurer of the hotel company “ ‘in consideration of the salary of $125 per month, and rooms and board for yourself and family.’ ” The court said: “ * * * we think that the facts set forth in the writing just quoted manifest a hiring by the year, * * * for it is, shown by the letter that the ap-pellee was in business in the city of Louisville as the manager of the Stamford Hotel; that he was required to give up that business and move himself and family to Hot Springs, Arkansas, and there assume the management of the Avenue Hotel, and to act as the secretary and treasurer of the hotel company. Was the appellee to give up his position in the Staniford Hotel in Louisville, and move himself and family to Hot Springs, Arkansas, a distance of several hundred miles, at a large expense to himself, for the sake of a month’s employment at the price of $125 in the Avenue Hotel? We think that neither the appellant nor the appellee contemplated a contract of this kind. We think that the writing shows that they did not; but it shows that they contracted for a year’s service at the rate of $125 per month, or $1,500 for the year.”

“ * * * of potent significance are the objects which the parties had in view, whether the purpose of the one was to secure a permanent employee who would develop his business in that particular service, and the purpose of the other was to obtain permanent employment.” Putnam v. Producers’ Live Stock Marketing Ass’n, 256 Ky. 196, 75 S.W.2d 1075.

We think at least it was a jury question as to the term of the hiring, particularly in view of statements in the letter from appellee’s representative that “when I came to Dallas, four and a half years ago, our previous year’s hat business amounted to $80,000. and in the first year that I was here, just by virtue of having someone in the department who knew and understood the hat business, I built the volume up to $120,000. * * * since I have gotten out of the hat department the business has slipped back to where it was when I came here, simply because we have had no one in the department who has had the experience or the know-how. I can see no reason why someone like you couldn’t come in and increase it to at least the same size as I did in that first year.” And again: “This would bring your total year’s income up to $7100. This, of course, could be higher by an increased hat business and at the present time we feel that our hat department has a potential of $200,-000. * * * I hope that you will consider this offer favorably as I know you will be able to do the type job which will prove beneficial to both Neiman-Marcus Co. and yourself.”

We cannot agree that the evidence conclusively shows that the parties made a new contract or modified the old one. Nor can we see any estoppel as a matter of law by reason of appellant’s taking the $150.00 per month. He complained to Edward Marcus, a vice president of appellee, and the man who first contacted him about coming to Dallas and joining the firm, and “he told me to sit tight and he would take-care of it for me.” Appellee says that the evidence fails to show exactly what appellant said to Edward Marcus, or exactly what Marcus said to him; and it does not show Marcus’ authority in the premises, “if in fact he made the statement at all.” We may assume that the vice president, who first contacted appellant relative to working for the firm, had as much authority as its hat buyer or its personnel director. We cannot say that his intercession would not be within the apparent scope of his authority; and it was not conclusively shown that appellant did not have the right to believe or did not believe that the vice president could and would “take care of it” for him, after, in effect, advising him to continue on the job.

Another phase of the alleged estoppel is embodied in appellee’s assertion in its brief that “Because of this conduct (continuing to work and receiving the $150.00 per month), because it deprived Appellee of the opportunity to discharge him, Appellant is estopped, as a matter of law, to deny such acceptance (the decision reducing his salary).” There is no allegation or proof that appellee ever wanted to discharge him, or was in anywise dissatisfied with his work. Indeed, his commissions for sales the first year were several hundred dollars more than the estimate contained in Fekety’s letter, and they increased each year through 1957. With such a record, it does not strain credulity to assume that the vice president would “take care of it” for appellant if he would “sit tight.”

The judgment is reversed and the cause remanded.


author: MASSEY, Chief Justice.

text:
    LAWYERS TITLE INSURANCE CORPORATION, Appellant, v. William R. McKEE, Appellee.
    No. 16284.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 2, 1962.
    Rehearing Denied March 2, 1962.

      Lefkowitz, Green, Ginsberg & Eades and Jack D. Eades, Dallas, for appellant.
    Bowyer, Thomas, Crozier & Harris, William W. Sweet, Jr., and Robert H. Thomas, Dallas, for appellee.
   MASSEY, Chief Justice.

From a judgment in favor of William R. McKee, as plaintiff policyholder, against defendant Lawyers Title Insurance Corporation, the latter appealed.

Judgment reformed and affirmed.

In 1880 a tract of land in Tarrant County, Texas, of rectangular shape but with the eastern boundary a meander line following a ravine, was owned by one Wiggins. The property was known as the Hudgins Homestead. Total acreage of the tract comprised some 72 acres, more or less.

Through a trade with one Nash, his neighbor, Wiggins conveyed approximately 2 acres out of said tract to Nash. By the deed of conveyance the eastern boundary of Wiggins’ land became what may be considered as a straight line on the high ground immediately west of the ravine, the ravine passing to Nash, and Wiggins’ remaining land comprised some 70 acres. Nash never recorded his deed, but began to run livestock on the 2 acres purchased, as have his heirs since that time.

Subsequently, Wiggins sold the 70 acres remaining to one Wilson. Chain of title thereto from Wilson ultimately passed to the plaintiff in this case. Wilson conveyed the land to one McGinnis, and in the deed the land conveyed was described as though it was the entire original Wiggins tract, the Hudgins Homestead, with the eastern boundary line given in metes and bounds as though it followed the meanders of the ravine, with the following additional language, “except a small tract of one acre conveyed to John W. Nash, by J. S. Wiggins, and wife, * *

McGinnis conveyed to one Coburn, and in the deed the land was described by metes and bounds identical to the description of the original Wiggins tract, with eastern boundary line the “meanderings of the ravine”, and with the further recitation: “It being 78 acres more or less of the Thomas Easter 480 acre survey and known as the W. Hudgins homestead, and being the same land that was conveyed to Jack McGinnis by Jassie E. Wilson by deed dated 8th day of November 1930 and shown of record in Vol. 1102 page 635 Deed records of Tarrant County Texas.”

Coburn conveyed to one Tibbits, likewise describing the land by metes and bounds, with the further recitation: “And being the same property described in warranty deed from Jack McGinnis and wife, Corine McGinnis, to R. Lee Coburn and wife, Aline Coburn, dated December 30, 1943, * * ⅜ »

Tibbits conveyed to plaintiff McKee. The tract conveyed was described as “Being a 73.45 acre tract located about 2 miles Southwest from the Town of Grapevine, Texas, being out of the THOMAS EASTER 480-Acre SURVEY, Patent #792, Volume 9, dated July 10, 1855, known as the W. Hudgins Homestead, described by metes and bounds as follows(here followed metes and bounds description in which instead of language as to the eastern boundary as “THENCE North 542 varas with meanderings of the ravine”, the calls of the meanderings of such ravine were given according to a survey along same), with the further recitation: “It being the intention of the Grantors herein to convey to Grantee herein the same land described in Deed from R. Lee Coburn and wife, Aline Coburn to Robert Eugene Tibbits and wife, Helen Elizabeth Tibbits, by Deed dated February 12, 1948, filed for record March 16, 1948 * * * ”

Pursuant to his purchase plaintiff McKee contracted with defendant company, subject to its examination of title, to insure his title to the property. It is not an issue and is undisputed that plaintiff believed he was purchasing land, the eastern boundary of which followed the meanders of the ravine, i. e., that the land included the 2 acres Wiggins had conveyed to Nash. He caused a survey of the land, including the 2 acres, to be prepared and furnished to the company.

The company issued to plaintiff, on September 12, 1953, the same date as plaintiff’s deed from Tibbits was filed for record, its policy of title insurance. Thereby the company guaranteed to plaintiff, his heirs, executors and administrators that he had good and indefeasible title to the following real property: “Situated in Tarrant County, Texas, being a 73.45 acre tract located about 2 miles Southwest from the Town of Grapevine, Texas, being out of the THOMAS EASTER 480-Acre SURVEY, Patent #792, Volume 9, dated July 10, 1855, known as the W. Hudgins Homestead, described more fully by metes and bounds in Warranty Deed referred to below: * * The deed was that to plaintiff from Tib-bits, material language from which has been heretofore quoted.

After entering into possession, and using the land extending to the ravine, plaintiff discovered that the heirs of Nash were claiming the 2 acres deeded to Nash by Wiggins. Plaintiff called upon the company to clear his title, but the company did nothing. Plaintiff then filed a trespass to try title suit to settle the title to the 2 acres. Prior to such time plaintiff placed the company on notice that the Nash heirs had declared that they would defend their titled in such suit. At all material times the company was kept informed, with continuous demands that it defend plaintiff’s title. Even after trial of the suit and after judgment was entered, but in time for steps preparatory for an appeal to be taken therefrom, plaintiff continued to call upon the company to take such measures as it might deem appropriate to defend plaintiff’s title. The company chose to do nothing, but to defer any action until judgment in the trespass to try title suit had become final.

The judgment in the trespass to try title case recited that plaintiff was a remote grantee, that he was on constructive notice of the fact of prior conveyance to Nash although the deed was not filed of record, by reason of mention made thereof in deeds in his chain of title, and that the Nash heirs were at all material times in continuous, open and notorious possession of the approximate 2 acres. The judgment divested plaintiff of his claim of title, and was dated November 30, 1959.

Plaintiff then brought his suit under the policy, seeking to recover the sum to which he was thereunder entitled, plus attorney’s fees and expenses necessary to be expended in the trespass to try title suit. Trial was to a jury. The company did not except to the charge and there were no specially requested issues which appear to have been refused. Upon jury findings made the court entered a judgment in favor of the plaintiff and against the company for the sum of $6,000.00, being the difference in market value of the whole tract, or 72 acres, at $36,725.00, and the tract as reduced by the 2 acres as to which title failed at $30,725.00, as of the date of the trespass to try title judgment, — plus the sum of $2,200.00 as reasonable value of attorney’s services in defending plaintiff’s title in the trespass to try title suit, plus the sum of $52.10 as the reasonable expenses incurred in the same suit, or a total of $8,252.10.

In resolving points of error presented on appeal we will handle by stating questions, the answers we believe proper, and a discussion.

First Question: Is the company liable to plaintiff under the provisions of the policy because his title failed as to the 2 acres ? We have concluded that the company is liable therefor.

Propriety of our answer basically depends upon the determination of whether the property designated by the title insurance policy as that as to which title was guaranteed, included the 2 acres, or whether the company guaranteed the ravine as the eastern boundary.

Were this a suit on a warranty by plaintiff against his grantor, and even had therein been a reference to a prior deed for all purposes, the metes and bounds description would control. As notice in and of itself such a reference would have no standing to impair grantee’s title where reference to it would not be necessary in the determination of the identity and boundary of the land conveyed. Where conveyance is specific, as by metes and bounds, there can be no mistake and no necessity for invoking the aid of a general description and the specific description would control. See 19 Tex.Jur.2d, p. 473 et seq., “Deeds”, secs. 155 “Election by grantee”, 156 “General description”, and 157 “Particular description” (14-B Tex.Jur., p. 696, secs. 235, 236); 19 Tex.Jur.2d, p. 437, “Deeds”, sec. 131, “Stating metes and bounds”.

Such being the case in a suit against a grantor under a warranty, certainly would an insurer of the title, privileged to pass upon and actually designating the description of property it insures by its written contract of insurance, be bound under similar rules of construction, even without reference made to those additional rules of construction applicable to insurance contracts.

A situation or condition to which the protection of the policy was made subject, and as to which coverage was specifically excluded, was any instance where there might be “Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or any overlapping of improvements which a correct survey would show.” The company contends that a “correct survey” would have shown that the land received by plaintiff did not include the 2 acres, but that the eastern boundary of the land was west of the ravine. Because thereof, says the company, the 2 acres were excluded as subject of insurance under the policy. No authority is cited by the company in support of the contention.

There is no merit to the contention of the company. As applied to the land intended to be insured by plaintiff and the company, the survey which showed the eastern boundary thereof at the ravine, and including the 2 acres in question, was a “correct survey” within the purport and intent of the policy. Houston Title Guaranty Co. v. Fontenot, 1960 (Tex.Civ.App., Houston), 339 S.W.2d 347, writ refused, n. r. e.; Chanoux v. Title Ins. Co., 1953 (Tex.Civ.App., El Paso), 258 S.W.2d 866, writ refused, n. r. e.

Second Question: If the company is liable under the policy of insurance because of the failure of title in plaintiff to the 2 acres, is the liability of the company controlled by provisions of the policy so that it would be an amount less than the actual difference in the value of the property as and when received (or at time loss should properly be deemed to have been sustained) and as it would have been but for the failure of title as and when the property was received (or at time failure of title should be deemed to have been sustained) ? Our holding is that the liability of the company is so controlled. Provisions of the policy under which the amount of liability is limited must be honored in calculation and computation of the amount recoverable in the event of partial failure of title.

The policy contains a provision reading as follows: if “ * * * such adverse claim or right shall have been held valid by a court of last resort to which either litigant may apply, and, if such adverse claim or right so established shall be for less than the whole of the property, then the liability of the Company shall be (1) only such part of the whole liability limited above as shall bear the same ratio to the (2) whole liability that the (3) adverse claim or right established may bear to the (4) whole property.” (Addition of the numbers and brackets supplied.)

The words following the numbers in the brackets in the above paragraph, which we have added for explanatory purposes, may be clarified when their proper interpretation is recognized. To us (1) means the value of that part of the property as to which title failed; (2) means the amount of the whole or maximum liability of the company if the entire title failed; (3) means the value of the right or property as to which title failed; and (4) means the value of the whole property had there been no failure of title. The whole liability, or maximum liability, would of course be the maximum amount payable under the policy, in this instance the sum of $18,362.50, the amount plaintiff paid for the property at the time of its purchase.

By calculation made from answers returned by the jury the value of the property as to which title failed was $6,000.00 on date the judgment was entered divesting plaintiff of his claim on the title to the 2 acres, and was $3,000.00 on the date the property was deeded to plaintiff. From other answers it is further more determinable that the value of the property as it would have been had there been no failure of title was $36,725.00 on date the judgment was entered divesting plaintiff of his title claim, and was $18,362.50 on the date the property was deeded to him. As already mentioned the whole liability under the policy was $18,362.50.

With such information a formula by which the monetary amount of the company’s liability may be calculated would be:

(1) : (2) = (3) : (4), or

X : $18,362.50 = $6,000.00 : $36,725.00, or

X (company’s liability) = $3,000.00.

In other words, the liability under the policy was limited to the sum of $3,000.00, although the actual monetary loss sustained, calculated as of the date of the judgment in the trespass to try title case, was $6,000.00. Texas Standard Form policies for title insurance, issued beginning at a time subsequent to the issuance of the instant policy, prescribe that the values for application to such a formula shall be taken as of the date^ any particular policy is issued, and were this done in the instant case the amount of the company’s liability would be the identical figure, $3,000.00. For our discussion and example we have taken the values as of the date the judgment was entered in the trespass to try title suit; however, it not being necessary to the decision in this case we do not pass upon whether this, or the date the policy was issued, was the proper date for liability calculation purposes.

Third Question: Is the Title Company obliged, in an instance where its insured files a trespass to try title suit to recover the title to real estate which is covered by its policy of title insurance, to furnish at its own cost the expense necessarily incident to the prosecution of the suit as “a defense of the assured on a claim against or right to said land, or a part thereof, adverse to the title guaranteed” ? We hold that it is ordinarily so obliged, and was in the instant case.

A provision of the policy in question reads as follows: “Said Company * * * shall, at its own cost, defend said assured in every suit or proceeding on any claim against or right to said land, or any part^ thereof, adverse to the title hereby guaranteed, provided the party or parties entitled to the defense shall, within a reasonable time after the commencement of such suit or proceeding, and in ample time for defense therein, give said Company written notice of the pendency of the suit or proceeding, and authority to defend, and said Company shall not be liable until such adverse claim or right shall have been held valid by a court of last resort * *

The circumstances giving rise to the necessity for plaintiff’s filing of the trespass to try title case have been stated. Therefrom it is made plain that plaintiff at all material times attempted to get the company to defend his title. There is no question but that his right to title was cast in issue the moment the defendants in said suit filed their answer and plead “not guilty”. Plaintiff, being out of possession, stood in peril of losing the title by limitations if he did nothing, and was compelled to prosecute the suit so filed by bringing it to trial and obtaining an adjudication of his title. This was also necessary if plaintiff was to lay a predicate for his suit against the company under the policy, unless he was willing to forget his trespass to try title suit and in suit against the company assume the burden of provipg that the Nash heirs’ title was superior to his own. Possibly the plaintiff would have incurred attorney’s fees and expenses at his peril if the company had come forward and confessed that his title had failed for all purposes of the policy of insurance, and admitted liability (except possibly the monetary extent thereof), etc. This the company did not do, but instead chose to wait watchfully in the apparent hope that plaintiff would prevail in the trespass to try title case.

Coverage of the policy being established in the trial between plaintiff and the company, all the benefits thereof were and are property rights to which plaintiff has shown himself entitled. The company was obligated by the policy to furnish, at its own expense, the legal services and expenses in court costs, witness fees and miscellaneous incidental expenses. In this the company defaulted, making it necessary for the plaintiff to furnish them at his own expense. Those reasonable and necessary fees and expenses supplied the measure of actual damages plaintiff sustained from the company’s breach of contract in this particular, and such damages were properly awarded to him by the judgment. Fidelity Union Casualty Co. v. Wilkinson, 1936 (Tex.Civ.App., Dallas), 94 S.W.2d 763, affirmed and opinion adopted at 131 Tex. 302, 114 S.W.2d 530.

Fourth Question-. In testing the application of statutes of limitation as applied to plaintiff’s suit against the company, is the policy provision relative to the time for any suit brought thereunder controlling over the general rules for application of statutes of limitation in suits on contract? Our holding is that the policy provisions control.

The policy contains a provision that the “Company shall not be liable until such adverse claim or right shall have been held valid by a court of last resort”. The adverse claim or right referred to, as applied to the instant case, would be the claim of the Nash heirs, litigated in the trespass to try title suit.

From the foregoing policy provision it would appear that plaintiff and the company contracted upon the matter of the date of the accrual of the company’s liability thereunder, at least as applied to instances where an adverse claim or right is actually determined by a court of last resort. This is a matter upon which the parties could validly contract.

No appeal was taken from the judgment of the trial court, a Judicial District Court of Texas. That judgment became final. The company was afforded notice and reasonable opportunity to appeal the judgment in the trespass to try title case, which opportunity was declined. Under the construction proper to be given under these circumstances, the District Court was a court of last resort. Under principles of estoppel the company cannot be heard to contend to the contrary. Furthermore, its conduct amounted to a denial of liability under the policy and from and after the time liability was denied the policy clause under consideration was not one upon which the company was entitled to rely.

Since no statutory limitation period could be applicable to the instant case, suit on the policy filed less than one year from the date that judgment in the trespass to try title case became final upon failure of any party thereto to perfect an appeal, there was never raised for determination any issue of limitation and none need have been submitted to the jury. Even had the jury answered the issues thereon which were submitted in favor of the company, which was not the case, the answers could have been disregarded for the matter is resolved as a matter of law. The company’s contentions upon the matter of limitation are overruled.

Judgment is reformed so as to award plaintiff William R. McKee judgment for $3,000.00 as the part of his loss recoverable under the policy, rather than the $6,000.00 awarded by the trial court. Judgment in other respects, for attorneys fees and expenses, is not disturbed.

As so reformed, the judgment is affirmed. Costs are adjudged against the company, Lawyers Title Insurance Corporation.