author: SELLERS, J.

text:
    PURE OIL CO. v. COE et al.
    No. 3988.
    Court of Civil Appeals of Texas. Texarkana.
    March 3, 1931.
    Rehearing Denied April 9, 1931.
    Vinson, Elkins, Sweeton & Weems, of Houston, and Wynne & Wynne, of Wills Point, for appellant.
    Samuels, Poster, Brown & McGee and Levy & Evans, all of Fort Worth, and Love, Thomas & Gray,- of Dallas, and Bruce M. McMahan and T. W. Thompson, both of Greenville, for appellees.
   SELLERS, J.

This suit was instituted by the Pure Oil Company against W. O. Coe and others to recover title and possession of certain premises hereinafter designated as the fourth tract containing 2.75 acres of land, and to secure an injunction for the purpose of restraining the appellees from taking possession of the premises and producing oil therefrom.

The case was tried before the court, the judgment was rendered dissolving the temporary injunction which had been granted and decreeing that the Pure Oil Company was the owner of an undivided one-half interest to the oil and gas in the fourth tract and that W. 0. Coe was entitled to the other one-half interest, in the minerals of the land involved. To this judgment both plaintiff and' defendants excepted and gave notice of appeal, and the case is now before this court for review.

There was a number of other parties who intervened in this suit, but since they have not appealed, no mention will be made of the facts affecting their rights except in so far as it will be necessary in determining the questions raised by the parties appealing.

The principal question presented by the assignments of appellant and the cross-assignments of appellee W. O. Coe is" whether or not R. A. Enas and his former wife, Mrs. Lula Stewart, are estopped to deny the title of the Pure Oil Company to the oil and gas in the 2.75 acres of land involved.

R. A. Enas and his former wife, now Mrs. Lula Stewart, during the time they were husband and wife purchased three tracts of land as follows: First tract, 17.1 acres of the Juan Prado survey; second tract, 34.2 acres of the Juan Prado survey; third tract, 4 acres of the W. N. Black survey.

Later, R. A. Enas and wife acquired title to a fourth tract, being the land here involved, by the ten-year statute of limitation. The fourth tract was 2.75 acres of the A. H. Wyley survey.

The following plat will give a fair idea of the position of the four tracts of land:

When R. A. Enas purchased tracts 1, 2, and 3, it was pointed out to him that his deed did not call for the fourth tract, but when he took possession of the three tracts which he purchased, he established a fence along the northeast boundary of the fourth tract and thereafter claimed the fourth tract as his own and for a long time has had title to the fourth tract by limitation. This fence as constructed served as a partition fence between R. A. Enas and the owner of the land to the northeast of the Enas land. There was no fence between tracts 2 and 4, and in so far as the inelosures are concerned, the fence also served as the northeast boundary of tract No. 2.

In 1924, R. A. Enas, joined by his then wife, Mrs. Stewart, executed a deed to tracts 1, 2, and 3, to R. M. Butler. This conveyance was for the purpose of creating a lien against the tracts mentioned, and R. M. Butler never claimed any title to the land, nor did he go into possession of any of it. R. M. Butler, at the request of R. A. Enas, conveyed these three tracts -to Wylie Enas, who is the son of R. A. Enas and his former wife, Mrs. Stewart. Both of the deeds above mentioned describe the three tracts by metes and bounds, and the fourth tract is not included in the description.

Wylie Enas conveyed to Sam Allen the north one-half of tracts 1, 2, and 3, using the description of the land as contained in the deed from Butler to Wylie Enas, without any consideration being paid by Sam Allen. Allen went into possession of the land deeded to him by Wylie Enas and also went into possession of the north one acre of the fourth tract, using and cultivating it and claiming it as his own since 1925, but since 1930 the north one acre of the fourth tract has not been in cultivation but has been lying idle.

The above-described four tracts, as well as the other tract owned by R. A. Enas lying south of the four tracts above mentioned upon which R. A. Enas up to the time of this suit, and for fifty years prior thereto, has had his homestead, are under a common outside boundary fence.

In 1927, Wylie Enas executed an oil and gas lease conveying the south one-half of the land conveyed to him by R. M. Butler, which was tracts 1,’ 2, and 3, said lease being to A. L. Tisdale.

On the same date, Sam Allen executed an oil and gas lease covering the north one-half of the land conveyed to Wylie Enas by R. M. Butler, said lease being to A. L. Tisdale.

The Pure Oil Company became the owner of both leases through mesne conveyance; and immediately after the Pure Oil Company purchased the above leases, it secured from Wylie Enas and Sam Allen correction instruments, which instruments corrected the description of the land so as “to include therein all land owned by us in the J. Prado and W. N. Black Surveys in Van Zandt County, Texas, whether particularly described therein or not, and all of such land as we may own, claim or have under fence.” This correction instrument was made a part of the original lease.

The fourth tract is not located within the description of the land embraced in the original leases executed by Sam Allen and Wylie Enas, nor is the fourth tract included in the description as contained in the correction instruments. Sam Allen, however, claimed the north one-half of the fourth tract and intended to lease it to the Pure Oil Company. Wylie Enas did not claim any land not included in the deed from Butler to him, but intended to lease the south one-half of the fourth tract if such land was included to him in the deed by Butler. A. L. Tisdale believed he was securing a lease on all of the fourth tract lying east of tract No. 2.

On April 15, 1930, Mrs. Lula Stewart quit-claimed to R. A. Enas, for a valuable consideration, all right, title, and interest she had in the fourth tract, and on'the same date R. A. Enas and his present wife executed a lease oh the fourth tract to defendant W. 0. Ooe.

The court found as a fact that R. A. Enas never at any time made any representations to Sam Allen with reference to the northeast boundary of the land conveyed to him by Wylie Enas, nor any representation to Sam Allen whatever with reference to the fourth tract.

The court in his conclusions of law held that:

“Sam Allen and Wylie Enas had at all times held and now hold the title to the land described in the deed from R. M. Butler to Wylie Enas in trust for R. A. Enas and his, former wife, Mrs. Lula Stewa-rt.”

The court further found that:

“R. A. Enas, because he placed the title to the first three tracts in Wylie Enas and permitted the title to the North one-half to stand in the name of Sam Allen, and because he permitted the use and occupancy of the fourth tract as above found, is estopped to claim the fourth tract as against the lease of the Pure Oil Company.”

This court is of the opinion that the trial court erred in holding that R. A. Enas was estopped to claim the fourth tract as against the lease of the Pure Oil Company.

There is no contention on the part of appellant that R. A. Enas ever said one thing; to any one that induced those under whom appellant claims to believe that the leases owned by appellant at the time they were executed included the fourth tract, but it is insistéd by appellant that the acts of R. A. Enas ifi establishing the northeast boundary line of the fourth tract and recognizing it as the northeast boundary line of his property, and in allowing the title -to the other three tracts to stand in the name of Sam Allen and Wylie Enas who held the title to the land in trust for him, and allowing Sam Allen to go into possession of a part of the fourth tract,' were such acts as to estop R. A. Enas to deny the title of appellant to -the fourth tract, and that it passed under the lease. With this contention we cannot agree. If the appellant, or those under whom it claims, had taken the trouble to locate on the ground the land which the field notes of its lease called for, it would have readily been found that such lease did not include the fourth tract; but in place of doing this, they relied merely upon the representations of Sam Allen and the fact that the fence appeared to be on the northeast boundary of the land called ■for in their leases as warranting the assumption that it was securing title to the fourth tract, and the calls of its lease actually marked or located the fourth tract within its boundary lines. We know of no rule by which Sam Allen’s representations could be binding upon R. A. Enas, especially since the court found that R. A. Enas made- no representations to Sam Allen concerning the fourth tract and that Sam Allen only held title to the two tracts in trust for R. A. Enas. It is made to appear from the record that appellant got title ‘to all of the land called for by the field notes of its leases, and therefore is in no position to complain against R. A. Enas merely because it believed that it was purchasing the fourth tract of 2.75 acres which its lease did not include.

The judgment of the trial-court will be reversed in so far as it grants to appellant any interest in the fourth tract, and judgment here entered in favor of appellee W. O. Coe for title to all of the mineral estate of the fourth tract of 2.75 acres, and in all other respects the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: ALEXANDER, J.

license: Public Domain

text:
    GREAT AMERICAN CASUALTY CO. v. EICHELBERGER.
    No. 1016.
    Court of Civil Appeals of Texas. Waco.
    March 19, 1931.
    Rehearing Denied April 23, 1931.

      Albert Boggess and Richey & Sheehy, all of Waco, for appellant.
    Geo. Clark and J. J. Campbell, both of Waco, for appellee.
   ALEXANDER, J.

This was a suit by Jim Eichelberger against the Great American Casualty Company to recover the sum of $1,500 alleged to be due him on an accident policy issued by the defendant on the life of A. D. Eichelberger. The plaintiff alleged, in substance, that the defendant’s .agen't, O. H. Kendrick, was its general agent, with authority to take applications for accident insurance, pass upon said applications, and to sign and deliver policies and that said agent, for a consideration of $1, agreed to execute and deliver to the insured a policy in the sum of $1,500, insuring the said A. D. Eichelberger against death from accidental means from any cause; that said agent executed and delivered to the insured a policy and fraudulently represented that it embodied the terms of their oral agreement; that the insured was an illiterate negro, who could barely read and write, and that he did not read the policy, but relied on the false and fraudulent representations of the agent that it contained the true contract as agreed upon by the parties,; that in fact the policy as delivered insured the said A. D. Eichelberger only in the event his death was caused .by accidental means while riding in a public conveyance. The plaintiff contended that, since the policy as delivered 'did not contain the true agreement as made by the parties, he Was not bound thereby, but was entitled to recover on the oral agreement. The plaintiff further alleged that the defendant had supplied said agent with blank forms of accident policies, and had authorized and empowered him to execute and deliver same, and had thereby clothed him with the • apparent authority to make contracts for and on behalf of the company, and that the company was estopped to deny the apparent authority of said agent to make such contracts, and that it was bound by the representations made and oral agreement entered into by said agent. The plaintiff alleged that, within one year from the date of the policy, the insured lost his life as the result of the accidental discharge of a shotgun. The defendant entered a general denial, and specifically denied that said agent had the actual or apparent authority to make the representations and oral agreement alleged by plaintiff, and alleged that the only agreement that said agent was authorized to make was that actually embodied in the written policy deliver-, ed to the insured; that said policy contained provisions prohibiting the agent from changing the terms of the contract and that the insured had received and retained the policy, and that he and the beneficiary named in the policy were estopped to deny that the policy as delivered spoke the true agreement between the parties.

A trial was had before a jury, and the jury, in response to special issues, found that the agent, on behalf of the company, offered to deliver to the insured a policy that would pay the named beneficiary ¡¡>1,500 if the insured lost his life by accidental means from any cause; that the insured accepted the offer, believing in good faith that the agent ¡had the authority to make the contract and that a reasonably prudent person would have so believed; that the agent falsely represented that the policy as delivered contained the true agreement as offered by the agent and accepted by the insured and that the insured relied on such representations; that the representations were made by the agent with the intention of misleading the insured, and that the insured accepted the policy believing that it embodied the true agreement and never had knowledge to the contrary; and that such belief was induced solely by the false representations of the agent. Based on the verdict of the jury, the court entered judgment for the plaintiff. The defendant appealed.

The appellant complains of the action of the court in failing to give a peremptory instruction for the defendant. It was agreed between the parties in open court that Kendrick, the agent, who wrote the policy, only had the authority from the appellant to write what is known as the “little Giant Travel Accident Policy.” This was the policy that was actually delivered, and it did not insure against death from gunshot wounds, but only insured against death from an injury received while traveling in a public conveyance.

■ The appellee concedes that he cannot recover on the policy actually delivered. Therefore, if he is to recover at all, it must be by virtue of the oral contract of insurance alleged to have been entered into between the agent and the insured. Since the agent did not have the authority to make any other contract other than that delivered, it follows that he did not have the actual authority to make the oral agreement. If appellee is to recover at all, it must be because it was within the scope of the apparent authority of the agent to make such agreement. It becomes necessary, therefore, to determine whether the agent was acting within the scope of his apparent authority when he made the alleged ■oral agreement.

By appoarent authority is meant such authority as a reasonably prudent man, using diligence and discretion in view of the principal’s conduct, would naturally and reasonably suppose the agent to possess. 1. Words and Phrases, Third Series, page 507. An agent,' who is clothed with the apparent authority, may make a binding contract, although his authority is actually so limited as not to authorize the making of such contract. Cox v. Humble Oil & Refining Co. (Tex. Com. App.) 16 S.W.(2d) 285, par. 2. If a principal, acting through agents, invests such agent with the apparent authority, the acts of the agent in making a contract within the scope of his apparent authority is. as binding upon the principal as if the agent possessed such authority. Clem v. Forbess (Tex. Civ. App.) 10 S.W.(2d) 223, par. 4. In order to determine whether the acts of the agent were within his apparent authority, we must keep in mind the distinction between a general agent and a special agent. A general agent is one empowered to transact all the business of his principal of a particular kind or in a particular place, and such general agent has the apparent authority to do anything that the company could do in the premises. He may bind his principal notwithstanding secret instructions to the contrary. Manhattan Life Insurance Co. v. Stubbs (Tex. Com. App.) 234 S. W. 1099, 1103; 2 C. J. 427. On the other hand, a special agent is one empowered to do only a -particular thing or a particular class of work. A special agent has authority only to do those things intrusted to him and such as are apparently necessary to accomplish that end.

The agent, Kendrick, was empowered only to execute and deliver the “Little Giant Travel Accident Policy.” This power would carry with it the implied authority to do those things necessary to accomplish that end. The only evidence of the agent’s apparent authority consisted of his declarations made at the time the policy was issued, and the fact that the company had placed in his hands copies of the “Little Giant Travel Accident Policy” and had authorized him to sign and deliver the policies. The declarations of the agent were not sufficient to establish his authority nor the scope of ¡his authority. 2 Tex. Jur. p. 523; Noel v. Denman, 76 Tex. 306, 13 S. W. 318; Park v. Sullivan (Tex. Civ. App.) 12 S.W.(2d) 265, 268. They were admissible merely as corroborative evidence in the event ¡there was other evidence showing prima facie his authority. Ferguson v. Lewis (Tex. Civ. App.) 290 S. W. 858, par. 4. Apparent au-fhority Is based on estoppel, and can arise from but two sources: First, tbe principal may knowingly permit tbe agent to so bold bimself out as having sucb authority, and in this way tbe principal beeom'es estopped to claim that 'the agent does not have sucb authority. There is no evidence in the record that the company ever knew that the agent held himself out as having the authority to make an oral agreement such as here- ■ in sued on. Therefore the apparent authority does not arise from this source. Second, the principal may so clothe the agent with the indicia of authority as to lead a reasonably prudent person to believe that he actually has such authority. What acts were done by the company in this case that would lead a prudent person to believe that the agent’s authority was any greater than it actually was? The company had placed in. the hands of the agent copies of the “Little Giant Travel Accident Folicy,” and had thereby clothed him with the apparent authority to sell, sign, and deliver such policies. This, however, was identical with the actual authority conferred on him. The apparent authority did not exceed the actual authority. The mere fact that the company -had conferred on the agent the actual authority to execute and deliver the written policy referred to would not create the apparent authority to make an entirely different oral contract. Jones v. Great Southern Life Ins. Co. (Tex. Civ. App.) 289 S. W. 450, 451; Republic Ins. Co. v. Moss (Tex. Civ. App.) 205 S. W. 700, 703; Smith v. State Ins. Co., 58 Iowa, 487, 12 N. W. 542; Continental Ins. Co. v. Schulman, 140 Tenn. 481, 205 S. W. 315; Mulrooney v. Royal Ins. Co. (C. C.) 157 F. 598. If the insured was to rely on the fact that the agent was found in possession of blank policies as evidence showing his apparent authority, he would be charged with the nature and extent of the very evidence on which he relied as showing a limitation on such authority. 2 Tex. Jur. 459; Texas State Mutual Fire Ins. Co. v. Richbourg (Tex. Com. App.) 257 S. W. 10S9, at page 1091; Aetna Ins. Co. v. Holcomb, 89 Tex. 404, 34 S. W. 915; 32 C. J. 1065; Great Eastern Casualty Co. v. Thomas (Tex. Civ. App.) 178 S. W. 603, at page 606; Fitzmaurice v. Mutual Life Ins. Co., 84 Tex. 61, 19 S. W. 301; Columbian National Fire Ins. Co. v. Dixie Co-op. Mail Order House (Tex. Civ. App.) 261 S. W. 174, at page 178, affirmed (Com. App.) 276 S. W. 219; Knodel v. Equitable Life Ins. Co. (Tex. Civ. App.) 19.3 -S. W. 118S; Southern Surety Co. v. Benton (Tex. Com. App.) 280 S. W. 551, 553. The policy as delivered contained the usual clause relating to agent’s authority as follows; “No agent has authority to change.this policy or to waive any of its provisions. No change in this policy shall be valid unless approved by an executive officer of the Company and such approval be endorsed hereon.” The insured could not be heard to say that he found the agent in possession of such policies and relied on the same .as evidence of his authority, but that he refused to read such policies and ascertain the extent of such authority.

The appellant contends that, since Kendrick was licensed by the insurance commissioner of the state as an agent of the appellant, such license was sufficient to show his authority to bind the company in making the contract in question. Under the law, all agents of an insurance company are required to procure a license from the insurance commissioner regardless of the extent of their authority. The license issued by the insurance commissioner does not undertake to define- the limitation of such agent’s authority, and can neither be used to enlarge •nor limit the authority actually conferred on the agent by the company.

Since there was no evidence showing that the agent had the actual or apparent authority to make the contract, and since the case appears to have been fully developed, the judgment of the trial court is reversed, and judgment is here rendered in favor of the appellant.


author: FUNDERBURK, J.

text:
    OWEN v. CITY OF EASTLAND.
    No. 842.
    Court of Civil Appeals of Texas. Eastland.
    April 10, 1931.

      Frank Judkins and Grisham Brothers, all of Eastlhnd, for plaintiff in error.
    Turner, Seaberry & Springer, of Eastland, for defendant in error.
   FUNDERBURK, J.

The city of Eastland brought suit against Briggs Owen to recover the amount of a special assessment for a street improvement and to foreclose a lien upon a certain lot or tract of land situated in Eastland. Plaintiff’s petition was filed February 27, 1924. The defendant, by his attorneys, Grisham Bros., on April 16, 1924, filed an answer consisting of a general demurrer and general denial. On January 26, 1926, the case was dismissed for want of prosecution; the order of dismissal reciting that the action was taken on motion of defendant’s attorney. On January 6, 1927, plaintiff filed a motion, entitled “Motion to set aside order of dismissal.” The only allegations of the motion showing the nature or merits of plaintiff’s cause of action were: “That in truth and in fact plaintiff has a valid cause of action against the defendant, as set forth in the original petition filed in said cause on February 27th, 1924, reference to which is here made for all purposes.” (Italics ours.) The prayer of the motion was as follows: “Wherefore, premises considered, plaintiff prays notice of this motion be served on defendant ’ or Ms attorneys (italics ours) and that, upon a hearing hereof, and in order that justice be done, the order heretofore made by the court be set aside and that said cause be reinstated for trial on the docket of said court.” A precept to serve said motion and the return thereof shows service upon Grish-am Bros, as attorneys for the defendant. On March 17, 1930, plaintiff filed an amended motion, praying that same be treated as a bill of review, and in which the original petition was expressly adopted as a part of the motion; it being further recited that said petition was “hereto attached.” The transcript does not show that such petition was in fact attached as an exhibit to the motion. On the same day, that is, March 17, 1930, the court rendered judgment for plaintiff, setting aside the former order of dismissal and awarding a recovery on the assessment certificates, with foreclosure of lien, etc. From this judgment the defendant has prosecuted ' a writ of error to this court.

Plaintiff in error insists, among other things, that the trial court, by the order of dismissal, lost jurisdiction over the person of the defendant to render said judgment. We have reached the conclusion that this as, signment should be sustained. The judgment under review is one by default. It affirmatively shows that there was no appearance by the defendant. If it be conceded that the motion to set aside the judgment of dismissal and the amended motion for that purpose, either or both were sufficient as a bill of review to invoke the equitable jurisdiction of the court to set aside the order of dismissal as a means of awarding relief to the applicant, it was necessary that the defendant be cited as in ordinary cases, or that he waive citation or enter an appearance. It is settled, we think, in ease of a default judgment, when under attack by appeal or writ of error, and which affirmatively shows, as this does, that there was no appearance by the defendant, the transcript must affirmatively show that citation was served or there was a waiver thereof. Head v. Texas State Bank (Tex. Civ. App.) 16 S.W.(2d) 298, and authorities there cited.

Except under the special circumstances provided in Revised Statutes 192,1. art. 2236, there is no such procedure as granting a new trial after the close of the term in which a judgment is rendered. In Overton v. Blum, 50 Tex. 423, it is said: “Although the contrary might be inferred from some of the earlier decisions ([Gross v. McClaran] 8 Tex. 342; [McKean v. Ziller] 9 Tex. 58;1 [Goss v., McClaren] 17 Tex. 114 [67 Am. Dec. 646]) it must now be regarded as settled that a new trial is never in fact granted after the adjournment of the term of the court at which the judgment is rendered, no matter what are the grounds urged in support of the application.” Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100. When the law permits equitable relief against a judgment, the proceeding is in effect a new suit in which the avoidance of the former judgment is but a part of the means by which the rights of the parties are settled in one judgment. Such a case is tried upon the allegations of the new petition and the answer of the other party. Keator v. Case (Tex. Oiv. App.) 31 S. W. 1099; O’Neill v. Brown, 61 Tex. 39; Taylor v. Fore, 42 Tex. 256; Boiler v. Wooldridge, 46 Tex. 485; Head v. Texas State Bank (Tex. Civ. App.) 16 S. W.(2d) 298; Baymond v. Conger, 51 Tex. 536.

We doubt ii the original motion to set aside the judgment was sufficient as a hill of review. The nature of the relief prayed for indicated that the pleader at that time only sought to have the order of dismissal set aside and sought no other relief. The motion was very similar to that considered in Jirou v. Jirou (Tex. Civ. App.) 136 S. W. 493. It is unnecessary, however, for us definitely to pass upon 'this question. It is likewise unnecessary for us to determine whether or not the amended motion be sufficient as a hill of review. It was clearly intended as such. In view of another trial, it is proper to say that we regard it as subject to criticism. If the original petition be regarded as an exhibit to the new petition or motion, there is good authority for the proposition that an exhibit cannot be made to supply the omission of the allegation of necessary facts. Wynne v. State Nat. Bank, 82 Tex. 378, 17 S.W. 918; Maedonnell v. I. & G. N. Ry. Co., 60 Tex. 590; Pool v. .Sanford, 52 Tex. 621; Burks v. Watson, 48 Tex. 107.

It has also been held that, to make an exhibit to a pleading, it is necessary that the instrument, or a copy thereof, be attached to it or filed with it. Blum v. Moore, 91 Tex. 273, 42 S. W. 856. Before the case is tried again, amendment of the pleadings may and should be made.

For the reason discussed, it is our opinion that the judgment of the trial court should be reversed and the cause remanded, and it is accordingly so ordered.


text:
    STOWE et al. v. WOOTEN.
    No. 829.
    Court of Civil Appeals of Texas. Eastland.
    April 3, 1931.
    Rehearing Denied April 24, 1931.

      Kirby, King & Overshiner and York & Camp, all of Abilene, for appellants.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellee.
   FUNDERBURK, J.

The title to a tract of land adjacent to the city of Abilene was in H. O. Wooten. The land was owned by said Wooten and Mayfield & McGee. Wooten made a contract with R. A. Coquille to sell the land. A plat of the land, showing a division thereof into lots and blocks, with streets and alleys, was filed and designated as the “Country Club addition.” The contract constituted Coquille exclusive agent for the nominal owner, Wooten, to make sale of the lots in accordance with an agreed plan. The plan comprehended that the seventy-four lots were to be divided into thirty-seven units of interest. The several units were to be sold for $1,500 each, the sale thereof to be evidenced by certificates in which the purchaser of a unit was designated as “the contract holder.” The certificate thus evidencing the ownership of units, in legal effect, constituted the contract holders as underwriters for the sale of all the lots or tracts at $750 per tract. Upon the sale of all the units the sale of the seventy-four lots was* thereby underwritten by the purchasers of units for the aggregate sum of $55,500. The plan provided, and it was so specified in the certificates, that after the sale of all the units, all the lots were to be offered for sale at public auction. It was provided that, when a sufficient number of lots were sold to make the sum of $55,500, the remaining lots were to be sold for the benefit of all contract holders; the sum realized to be divided equally between them, besides the immediate return to each contract holder of the initial payment upon the contracts of $200. It was provided that the sale of a tract for an amount in excess of $750 should automatically reduce the price that each remaining tract was required to be sold for. The contract holders were under obligation, in the event sufficient lots were not sold to make the said sum of $55,-500, to select lots and pay therefor the sum of $750, for which the nominal owner was ’to make deeds. Under said plan all units were sold; J. E. Stowe and J. L. Hockersmith having purchased one unit, and Nathan Landau one unit. At the auction sale it became necessary for the parties last named, and perhaps other contract holders, in order to comply with the obligations of their contracts, to take lots, and accordingly Wooten executed a deed to Stowe, Hockersmith, and Landau of tract 2 in block 12, also to Stowe and Hockersmith of tract 5 in block 2, and to Nathan Landau of lot 4 in block 6. The several deeds, in conformity to the provisions of the certificates, recited payment of a part of the purchase price, with obligations secured by vendor’s lien, for the remainder. The said Stowe, Hockersmith, and Landau brought this suit against H. O. Wooten to cancel said deeds and rescind the conveyances on the ground of alleged fraud.

Plaintiffs’ petition alleged as fraud a number of false representations and false promises, of which there need be mentioned' only such as were submitted to the jury, since all others must be regarded as having been waived. Of the grounds of fraud not waived, the only one consisting of an alleged misrepresentation of an existing or pre-ex-isting fact was that the defendant, through one or more of his agents, had represented that highway No. 30 had been definitely established along what defendant’s agents represented to be an extension of Butternut street through the Country Club addition. Other acts of alleged fraud, as to which issues were submitted to the jury, and which were therefore not waived, were to the effect that said agents had represented that electricity for lights was to be placed on the Country Club addition at once, and that natural gas was to be placed upon or made available for said addition.

Upon the issues submitted,' the jury found that Mayfield & McGee, the other joint owners with Wooten of the Country Club addition, and also R. A. Lewis, an employee of R. A. Coquille, were not agents of said H. O. Wooten. They further found that none of said agents, before plaintiffs signed the unit contracts, represented to plaintiffs that highway No. 30 had been definitely located through the Country Club addition by the extension of Butternut street; that some one or more of the said agents did state to plaintiffs that electricity for lights was to be placed on the Country Club addition at once, but that such promise was not a material inducement to plaintiffs in their purchasing of unit contracts, and further that H. O. Wooten, at the time the promises were made, did intend to comply with said promise and had in fact substantially complied therewith. The jury further found that neither of the said agents promised plaintiffs that natural gas was to be placed upon or made available for said addition. Upon these findings judgment was rendered for the defendant, from which the plaintiffs have appealed.

Appellants submit only two propositions as grounds upon which it is insisted that the judgment of the trial court should be reversed. It is first contended that the court erred in submitting to the jury the question of whether Mayfield, McGee, and Lewis, or either or any of them, were agents of H. O. Wooten, and that the evidence disclosed, as a matter of law, that they and each of them were such agents. As already noted, the jury found that they were not such agents. We have concluded that appellants’ contention, as expressed in this proposition, must be sustained. Wooten’s contract with Coquille' was in writing. It expressly denominated Coquille as the exclusive agent of Wooten for the sale of the seventy-four lots, constituting the Country Club addition. The contract, among other things, provided that Coquille was to pay all of the expenses incurred in conducting the sale of said lots, such as, among other things, “salesmen’s commissions.” Clearly the contract contemplated the employment of salesmen in addition to Coquille. The only object of Co-quille’s agency being to sell the lots, such other salesmen were, of course, to sell or assist in the sale of said lots. The provision quoted we think implies the authority on the part of Coquille to appoint salesmen who would be agents of Wooten. In 2 C. J. 688, with reference to the authority of an agent to appoint subagents, it is said: “Express authority to appoint such agents is not always necessary, as such authority is usually to be implied when the agency obviously and from its very nature is such as to make the employment of sub-agents necessary and proper. In such cases the employment of such agents is presumed to have been contemplated when the power was given, and the agent has implied authority to appoint sub-agents within the limits of the necessities of the case.” Texas cases cited as supporting the text are Barnes v. Downes, 2 Willson, Civ. Cas. Ct. App. § 524; Wright v. Isaacks, 43 Tex. Civ. App. 223, 95 S. W. 55. The same authority further says: “And the principal is bound by the acts of said sub-agent so employed, even though he has no personal knowledge of him.” 2 C. J. 688. In Wright v. Isaacks, supra, the facts from which implied authority to appoint the subagent was held to arise do not so clearly imply such authority, as does the recitation in the contract in question im-posing upon Coquille the duty of paying salesmen’s commissions. The proposition we think would be wholly untenable that Coquille could, under this contract, appoint salesmen who, if by fraud procured a sale of the lots, would thereby secure to Coquille and Wooten the fruits of such fraudulent contracts beyond the remedy of the defrauded parties.

As to the agency of Blayfield & McGee, it seems to us that Wooten’s own testimony was conclusive. As a witness, after testifying that he and Mayfield & McGee were joint owners of the property, and that he financed it for the three of them, further testified: “As to anything that Mayfield & McGee did being all right with me in making a sale, I will say I had not authorized them to do anything except sell the property." (Italics ours.) “ * * * When we bought this property, as I say, I was to take it over in my name and finance it, and they were to do the worh." (Italics ours.) “ * ⅜ * I just left it entirely up to them.” Certainly, it seems to us, under these facts, representations and statements made by McGee or Mayfield to accomplish a sale of the lots would be made as agents of Wooten, as well as for themselves individually.

We are therefore of opinion that the court was in error in submitting the question of agency to the jury, but should have instructed the jury to find for the plaintiffs on the question of such agency.

By their second proposition appellants seek to show that the court erred in excluding the testimony of certain witnesses to the effect that, shortly after the sale of the-unit contracts to plaintiffs, the defendant’s said agents made the same representations and promises to them as were alleged to have been made to the plaintiffs, including those which,' as above stated, were not waived. The proposition makes the same contention as to the exclusion of certain newspaper advertisements containing, among other things, the same promises as to electric lights and gas. Appellants insist that the testimony was material and was admissible under an exception to the general rules of res inter alios acta. The general rule is that “evidence of transactions with which the parties against whom it is offered is not connected, is not admissible.” 10 R. O. L. § 104, p. 937. As a specific application of said rule the same authority states: “In an action to recover damages from a principal for the tort of his agent, the rights and interests of the principal and agent are not identical, and therefore transactions between the agent and still another person are res inter alios acta and inadmissible in a suit against the principal for the tort of the agent.” Id. Still another statement of the application of the rule is: “ * * * . The commission of an act charged against a person may not be proved by showing a like previous act to have been committed by the same person.” Id. Or, as stated in Corpus Juris: “The general rule is that the law will not consider evidence that a person has done a certain act at a particular time as probative of a contention that he has done a similar act at another time.” 22 C. J. 744. The reasons for the rule are discussed in said authorities (10 R. O. L. p. 937, and 22 C. J. § 834, p. 743), and need not be restated here.

The exception under which it is contended that the evidence in question should have been admitted is that “other similar acts or representations of defendant at or about the same time as the transaction under consideration may be considered as tending to establish scienter or intent to defraud.” 27 O. J. 60. The difficulty presented in the present problem is in giving proper effect to the fact that, in Texas, as respects representations of present or pre-existing facts, scien-ter, or intent to deceive or mislead, are immaterial as elements of actionable fraud. Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900. Some decisions of our own courts have apparently given no effect to such fact in applying this exception to the general rule. Wolf v. Lachman (Tex. Civ. App.) 20 S. W. 867; Wortman v. Young (Tex. Civ. App.) 221 S. W. 660; Rick v. Farrell (Tex. Civ. App.) 266 S. W. 522.

Upon mature consideration, however, we have concluded that the sounder view is expressed in Lott v. Dashiell, 233 S. W. 1103, 1109, wherein it was said: “We therefore think the court properly excluded this testimony, for it is only where the intent prompting an act in issue is material that it is competent to resort to a showing of similar acts as circumstantial proof of the act in issue as part of a system or scheme.”

Almost all the authorities that we have examined agree in the holding that the evidence is admissible only to show fraudulent intent. In 12 R. O. L. p. 435, § 182, the author says: “Such evidence, when admitted at all, is competent only on the issue of motive or intention, and not on the issue whether plaintiff made the representations complained of. Hence it is not admissible where it is immaterial to the cause of action whether the false representations were made with a specifically bad intent or not, or in an action for damages for false representations in those states where proof of scienter is not required in such actions.”

Certainly, we think, if the proffered testimony was admissible, if at all to' prove fraudulent intent, and such intent, whether alleged or not, was immaterial, there would be no error in excluding such testimony.

This, it must be recognized, does not entirely dispose of the question presented, because there were allegations presenting issues submitted to the jury which did involve the existence of a fraudulent intent as a necessary element of the fraud alleged. Such were the allegations of promises to be performed in the future with reference to installing electric lights and gas in the Country Club addition. For such promises to constitute fraud at all it was necessary that they have been made with the intent at the time that they would not be performed. C. T. & M. Ry. Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Tripplehorn v. Ladd-Hannon Oil Corpn. (Tex. Civ. App.) 8 S.W.(2d) 217. But we are unable to see that the excluded testimony could have had the slightest probative force to establish that particular intent. We are wholly unable to see that the fact that promises were made to third parties could in the slightest degree tend to prove the existence of an intention at the time not to perform such promises. It would seem that, if such testimony tended, to prove anything, it would be the contrary. Hence, upon the whole, we conclude that there was no error in the action of the court as thus complained of.

Under this view the error in submitting the question of agency becomes immaterial and harmless. Being of opinion that the judgment of the trial court should be affirmed, it is accordingly so ordered.


author: WALTHALL, J.

text:
    ELIZONDO v. REGAN et al.
    No. 2519.
    Court of Civil Appeals of Texas. El Paso.
    April 2, 1931.
    Rehearing Denied April 16, 1931.

      Jones, Goldstein, Hardie & Grambling, of El Paso, for appellant.
    Whitaker & Peticolas and Turney, Burges, Culwell & Pollard, all of El Paso, for appel-lees.
   WALTHALL, J.

J. H. Elizondo brought this suit against J. J. Regan and First National Bank of El Paso to recover upon a written contract for the sale and delivery of cattle. The contract pleaded is as follows:

“This contract made and entered into by and between Don Jesus H. Elizondo, party of the first, and J. J. Regan, party of the second part, both of El Paso, Texas, Party of the first part sell to the second part five hundred and fifty head of cattle, five hundred at seven cents per pound, and fifty head at six and a half per pound cattle to be weighed on arrival at the stock yards at El Paso all cattle to be weighed together and fifty average cattle at six and a half cents.
“If anything happens that said cattle do not pass over to El Paso the day they arrive then in that event the party of the first part shall have the right to feed and water the cattle but shall not be allowed to weigh them for fifteen hours, after being fed and watered.
“Party of the second part will order the cars.
“All cattle delivered under this contract must be merchantable.
“All cattle delivered must be steers and stags.
“A guarantee will be made from the First National Bank of El Paso to the Banco De Nacional of Durango of five thousand dollars evidenced by a check of like amount signed by the party of the second part and given to the party of the first part, and shall be forfeited if cattle are delivered according to the contract.
“Cattle will be delivered on or about February 18th, 1930, El Paso Stock Yards.
“[Signed] J. H. Elizondo
“Party of First Part.
“J. J. Regan
“By W. D. Connell [Signed] “Party of Second Part.
“Feb’y 8th, 1930.”

It is alleged that Regan caused the $5,000 to be deposited in the bank as provided in the contract, and the said bank caused a guaranty to be made to the Durango Bank as in the contract provided, and that said money is on deposit in the bank to guaranty the performance by Regan of his part of the contract.

Plaintiff alleges the said 550 head of cattle were brought to El Paso by him, and on or about the 18th of February, 1930, tendered to Regan at the El Paso Stock Yards; states the weights of the cattle, and that he was entitled to receive upon the tender of said .cattle the total sum of $30,753.

Plaintiff alleges that Regan failed and refused to accept and pay for said cattle; that it became necessary to resell said cattle, which he did, after using due diligence, at the total price of $25,916; that to sell the cattle he necessarily incurred a total reasonable expense of $4,000, leaving a net amount to him of $21,916.

Plaintiff alleges that by reason of the breach of said contract he has been damaged in the sum of $9,000, for which he sues.

Plaintiff prays for judgment against Regan for $9,000; judgment against the First National Bank of El Paso for $5,000 to be credited on the judgment against Regan, and that the bank be directed to pay said amount on said judgment.

Defendant Regan answered by general denial ; specially denied that plaintiff tendered to him merchantable cattle as called for in the contract; that about 150 or 200 head of the cattle tendered were not merchantable cattle, stating why they were not; that the consideration for the execution of said contract was a herd of cattle shown to defendant’s agents in Mexico, and which plaintiff and his agents represented were the cattle covered and intended to be covered by the contract and intended to be delivered, hut that a large and material part of the cattle tendered were not the same cattle shown to defendant’s agents in Mexico, and that by reason thereof the consideration for the contract failed. Defendant says he caused to be deposited with the First National Bank of El Paso the sum of money called for in the contract and asks that same be returned to him'.

By cross-action defendant sues to recover of plaintiff the sum of $4,430.50, which he alleges to be the sum in excess of the price he agreed to pay for the cattle had they been in the condition agreed upon, and the price he could have .sold them for on the El Paso market.

The First National Bank answered that it was a stakeholder, or depository, as to the sum of money mentioned in the contract, and its answer the usual pleading as such. The fact issues were submitted to a jury which found:

1. The cattle in contemplation of the parties at the time of signing the contract were the cattle-inspected in Mexico by defendant’s agent prior to signing the contract.

2. All the cattle tendered by plaintiff to defendant in the stock yards at El Paso were the same cattle inspected by defendant’s agent, W. D. Connell, prior to signing the contract.

3. The cattle tendered by plaintiff to defendant as a performance of said contract were not merchantable cattle.

4. Plaintiff, in the sale of the cattle in question at El Paso under all the surrounding facts and circumstances, used ordinary care to sell said cattle for the best price obtainable.

5. On account of defendant’s failure to receive said cattle, plaintiff was put to additional expense in selling same.

Defendant’s special issues given:

1 and 2. Eighty-four of the cattle tendered by plaintiff to defendant in the stock yards were unmerchantable.

3. 7½ cents per pound was the market value in El Paso of. the cattle contracted to be purchased by defendant from plaintiff, at the time and in the condition they should have been delivered at El Paso.

On the jury’s findings the court entered judgment that plaintiff take nothing by his suit against defendants Regan and the First National Bank of El Paso. The court entered judgment that Regan recover of the First National Bank the $5,000 deposited; and, further, that Regan recover on his cross-action against plaintiff his damages in the sum of $2,675.75.

The court overruled plaintiff’s amended motion for a new trial, to which plaintiff excepted and has perfected this appeal.

Opinion.

On the trial plaintiff offered to testify that the sum of $6,000 was owing to the United States for import duties in connection with the importation of the cattle involved in this suit into the United States, and that he had no means of paying same other than by selling the cattle. The court, on objection, refused to hear the part of the testimony that plaintiff had no means of paying the import duties other than by selling the cattle.

The proposition presents no error. It does not tend to prove or disprove any issue in the case. However, the record shows that defendant inspected the cattle on their arrival in Juarez, Mexico. A controversy there arose between plaintiff and defendant as to whether the cattle were the cattle bought and agreed to be paid for under the terms of the contract. The parties could not come to an agreement, and defendant then notified plaintiff that he would not receive and pay for the cattle, and that, if the cattle were brought from Juarez to El Paso; it would be at plaintiff’s expense. We think, under the facts shown, defendant waived the delivery of the cattle in the stock yards in El Paso. Whatever other issues might be in the case, it seems to us that under the facts shown defendant would not be responsible for plaintiff’s want of means to discharge the United States customs duties. True, the jury found the issue in controversy in Juarez as to the cattle being the same cattle inspected by defendant’s agent in Mexico to be the cattle shown defendant’s agent before the contract was signed. But that finding would not, we think, necessarily admit the excluded evidence complained of.’ The jury also found that plaintiff used ordinary care to sell the cattle for the best price obtainable, and that finding is not controverted. As we view the cases of Haney v. Clark, 65 Tex. 93, and Telles v. Esparza, (Tex. Civ. App.) 14 S.W.(2d) 304, and St. Louis, I. M. & S. Railway Co. v. Rogers, 49 Tex. Ciy. App. 304, 108 S. W. 1027, 1029, referred to by plaintiff, without reviewing them here, they are not in point. The evidence as to the price at which plaintiff sold the cattle was offered by the plaintiff and was undisputed by defendant. We think the question is ruled by vol. 1, Jones’ Blue Book on Ev. §§ 171, 172; also, Telles v. Esparza (Tex. Civ. App.) 14 S.W.(2d) 304.

One other question is presented, misconduct of the jury.

The proposition is to the effect that, while the jury was considering its verdict, and before any decision had been reached, the foreman of the jury stated that he was personally acquainted with some of the cattlemen who gave testimony favorable to Regan, and especially was he acquainted with W. D. Connell, one of his principal witnesses, and who gave testimony in his favor on all material issues, and that he knew that Connell has been honest in his dealings with the railroad over which Connell had shipped cattle, and had a good reputation for fair dealing. It is submitted that the statements of the juror were calculated to, and did, improperly influence the jury.

One of the principal facts at issue was whether the cattle tendered to defendant were the cattle inspected by Connell in Mexico before the contract was signed. Con-nell and other witnesses for Regan who saw the cattle in Mexico testified that a number of the cattle in the shipment were not the cattle inspected, and witnesses for plaintiff testified that the cattle were the cattle inspected. The jury found that issue in favor of plaintiff.

The other issue to which the statement of the jury could have any bearing was the merchantable condition of the cattle. A number of cattlemen, including Connell, testified as to the condition of the cattle at Juarez and at the stock yards at El Paso. The finding of the jury that many of the cattle were not merchantable could be sustained by the evidence without the evidence of Connell.

The remark complained of in plaintiff’s motion, and assigned as misconduct of the jury, goes only to the weight to be given to the testimony of some of the defendant’s witnesses, including witness Connell.

The two principal issues tendered by the pleadings were: Defendant claimed that part of the cattle tendered were different and inferior to the cattle inspected and contracted for, and that many of the cattle tendered were not merchantable. As stated, the first issue was found in favor of plaintiff.

Juror Turley said: Stated what the juror Christian said; that was before a final decision was reached; jury discussed the merchantable condition of the cattle; said could not say how the statement affected the verdict; don’t know how they felt independently; “I do not know that his testimony had any effect on me whatsoever; there was something brought up in the argument as to what one witness said, as to his word, that he was a cattleman and this man spoke up and said he had known 'this man, had dealings with them and they were honorable men and fair, and that they had been fair and willing to accept the railroad’s terms in settlement of their claims. As I recall that was all that was said about it.”

Juror Harcourt said: Did not remember Christian stating that in their dealings with the railroad company they had been fair and honorable. Did not remember any statement made about their reputation; he got the impression he thought they were all right, “cannot say about their dealings with the railroad, do not know how I arrived at that; do not know when that discussion took place, just like we were talking."

Juror Krohill said: Remember Mr. Christian saying he had some business with the witnesses in the case, and they had been fair, something of that nature. “It did not have any effect on me.” Understood it was in his work for the railroad, not personally. “I don’t know whether it had any effect on me or not. It might have affected me in arriving at my verdict. I do not know what caused me to come to a decision on the case.”

Juror Jack P. Lane said: The foreman, a railroad man, stated he had had some dealings with Mr. Regan and these cattlemen, and gave his experience that they were fair in their dealings with the railroad. Does not know what the other jurors thought about it. “Just took the testimony introduced on the trial and went by that as near as I could.”

Juror Neal Grosheider said: Thinks the ■ foreman, in the discussion, said, in his experience with the railroad, these people ha^e shipped over the railroads a good many years and he had never heard of them putting in unjust claims, that he was inclined to think they were square shooters; that was the general trend of his statement; did not let it affect juror’s verdict in any way; might be of some importance to juror in weighing testimony to know a man had been a square shooter, but it did not affect juror’s idea of the matter.

Juror John McCall said: Jury was not all of one mind when they went out; at one time they ran up ten to two that the cattle were merchantable; the foreman, a railroad man, said he had had considerable dealings with the defendant and his witnesses, cattlemen, and that they had always been fair and honorable in théir dealings with the railroad in their claims that they presented to the railroad. “It did not affect my verdict.”

.Turor R. B. Deason said: The only thing he heard Christian, the foreman, say was that he was dealing with cattlemen all the time; did not hear him mention any particular cattleman; did. not hear him say he had dealings with these men and they were responsible, and had come up squarely. “What he did say about having dealings with cattlemen did not affect me in any way.”

Juror S. J. Price said: Cannot say he heard Christian, the foreman, say he knew the defendant or any of the witnesses; the discussion came up about cattlemen, some said cattlemen were crooked; that is the way the thih^ started; some one said he had lots of dealings with cattlemen and that cattlemen were just as straight as anybody else. Juror said: “I was not influenced by what was said about cattlemen. I took the case according to the evidence. I did not allow those things to influence me.” Mr. Christian never mentioned any names; said he had a lot of dealings with cattlemen; cannot say he referred to these witnesses in this case; said he knew these witnesses by reputation and they had good reputation for fair dealings with the railroad and were honest in their dealings with the railroad; “did not say these witnesses, cattlemen, was what we were talking about.”

Juror S. Azar, said: Did not hear Christian say anything about knowing defendant’s witnesses or of having any business experience with them.

Juror Turner said: Does not recall Mr. Christian mentioning any names in the jury room; he or some one said he thought the Mexican boys told a straight story, and Mr. Christian said he thought the cattlemen were telling a straight story, that he had had more or less dealings with cattlemen, shipping, etc., and had always found them to be very straight; “that in no way influenced me in finding a verdict.”

Juror George Ryan, said: Thinks he heard Christian say he was acquainted with Con-nell, that he had some cattle transactions or shipments for him; that came up in discussion of the witnesses that had been present. He seemed to have faith in dealing with these cattlemen, not bearing on any special point. That did not have any weight or effect on his verdict. That came up in the discussion of the testimony in regard to the number of the cattle that were not merchantable ; some jurors said the Mexican witnesses told a straight story, and then Christian said he thought they did, and that he thought thdse cattlemen told a straight story, that he had had dealings with Connell and found him fair in his dealings with the railroad.

Juror Christian said: Was foreman; worked as traveling freight man for the S. P. Railroad; in discussing the credibility of the witnesses somebody said the Mexicans told a straight story, “I said I thought so too; I said I also thought Connell and Riddle told straight stories; said I knew Connell and had always found him truthful and square in his dealings; that is about what I said as near as I can .remember; I decided the case according to the evidence.”

The above is briefly, in substance, the evidence. The trial court overruled plaintiff’s motion.

The questions presented are: Was the statement of Christian in discussing the credibility of witnesses on the issue of the merchantable condition of the cattle material, and did it affect the jury’s verdict? The jury are'the judges of the credibility of the witnesses.

We have reviewed many cases and have found no case where the only matter mentioned in the jury room, assigned as misconduct, was some statement by a member of the jury going solely to the credibility' of some one or more of the witnesses. We do not hold that it was within the province of the jury to mention or to consider any fact or facts not in evidence, in determining the weight to be given to the testimony of a witness; we think it irregular and should not be done, but we are not prepared to say the communication made by the juror Christian was such violation of article 2231 of the statute as to be reversible.

Finding no reversible error, the case is affirmed.


author: WALKER, J.

text:
    MAGNOLIA PIPE LINE CO. v. SECURITY UNION INS. CO.
    No. 2020.
    Court of Civil Appeals of Texas. Beaumont.
    April 20, 1931.
    Rehearing Denied April 29, 1931.

      A. S. Hardwicke, of Dallas, and E. B. Pickett, Jr., of Liberty, for appellant.
    Llewellyn & Dougherty, of Liberty, for ap-pellee.
   WALKER, J.

We take the following statement of the nature and result of this suit from appellant’s brief:

“An automobile owned by J. L. Mapes, and insured by appellee, collided with a truck owned by appellant. The expense of haying the car repaired was $777.03 (erroneously stated by appellant to be $770.03), which amount appellee paid to the concerns which performed labor and furnished parts necessary to repair the damage caused by the collision, the appellee being liable therefor under the policy it had issued to Mapes. After-wards the appellee, claiming to be subrogat-ed to the rights of Mapes against the appellant, to the extent of said payment, filed this suit to collect from appellant the amount which appellee had so paid on account and in behalf of said Mapes. Upon a jury finding that the collision was the result of appellant’s negligence, the court rendered judgment against appellant for said amount of $777.03 (erroneously stated by appellant to be $770.-03). Motion for new trial was duly filed, and when overruled, notice of appeal was given, and thereafter, in due time, appeal bond was filed and this appeal was duly perfected. * * * In its petition the appellee alleged that under the terms of the policy issued by it to J. L. Mapes, appellee ‘became obligated to pay, and did pay for the account of said J. L. Mapes the full amount of repairs necessary and proper to place said automobile, as nearly -as possible, in as perfect condition as before the collision and damage’, and that ‘as provided in said policy plaintiff, by said payment, became subrogated to the rights of the said J. L. Mapes as against defendant Magnolia Pipe Line Company to the extent of said payment.’ * * * The only provision in this policy relative to subrogation reads as follows: ‘Subrogation. This Company may require from the assured an assignment of all rights of recovery against any party for loss or damage to the extent that payment therefor is made by this company.’ No proof was offered to show that Mapes assigned to appel-lee any right of recovery he may have had against appellant for the damage caused to his car as a result of appellant’s negligence. The repair bills were paid by appellee to the concerns which furnished the labor and material necessary for repairing the automobile.”

Opinion.

Against the judgment, appellant advances only one proposition, which is as follows: “It appears from all the evidence that appellee was not subrogated to any right of recovery which J. L. Mapes may have had against the appellant, as a result of the collision complained of in plaintiff’s petition, since no equitable right of subrogation vested in appellee, and no proof was offered to show that Mapes assigned to plaintiff any right to prosecute this suit in his behalf or in its own behalf.”

Appellant’s proposition does not correctly state the law of the facts of this case. The correct rule is thus stated by Blashfield’s Cyclopedia of Automobile Law, vol. 3, p. 2616: “The general rule is that, on payment of the loss under a policy, the insurer acquires the right to be subrogated pro tanto to any right of action which the insured may have against any third person whose wrongful act or neglect caused the loss, and, while such rule is frequently embodied in the policy, the insurer has such right without any express stipulation to that effect in the policy as a contract of indemnity.”

The following authorities cited by Blash-field fully support his proposition: Maxwell Gravel Co. v. Fisher (Ind. App.) 151 N. E. 618; Auto Owners’ Protective Exchange of Kankakee, Ill., v. Edwards, 82 Ind. App. 558, 136 N. E. 577; Stevens v. Stewart-Warner Speedometer Corp., 223 Mass. 44, 111 N. E. 771; Buell v. United Firemen’s Ins. Co., 167 Minn. 183, 208 N. W. 816; Allen & Arnink Auto Renting Co. v. United Traction Co., 91 Misc. Rep. 531,154 N. Y. S. 934; Potomac Ins. Co. v. Nickson, 64 Utah, 395, 231 P. 445, 42 A. L. R. 128; Barnett v. London Assur. Corp., 138 Wash. 673, 245 P. 3, 46 A. L. R. 526; Platt v. Richmond, etc., R, Co., 108 N. Y. 358, 15 N. E. 393.

Blashfield sustains his proposition by the following argument; “To permit the insured to receive payment from both the wrongdoer and the insurer would be to give him double compensation for his loss, and the wrongdoer cannot be permitted to shield himself on the theory that the loss is covered by insurance, for the contract of insurance is not made for his benefit.”

This argument has full support in Auto Owners’ Protective Exchange of Kankakee, Ill., v. Edwards, 82 Ind. App. 558, 136 N. E. 577.

However, in our opinion the judgment has full support upon the terms of the policy itself. Appellee agreed to insure appellant’s automobile for tbe cash consideration stipulated in tbe policy and for tbe further consideration also stipulated in tbe policy, as shown by appellant’s statement, supra, “this company may require from tbe assured an assignment of all rights of recovery against any party for loss or damage to the extent that payment therefor is made by this company.” It is true that no assignment was given by Mr. Mapes to appellee, but the failure to give the assignment did not destroy appellee’s right to subrogation. The rule sustaining this proposition is thus stated in 25 R. O. L. p. 1620, § 8: “According to the great weight of authority, it is not essential to a complete legal subrogation that the one to whose rights another is subrogated shall make a formal assignment of securities or other rights to which the surety becomes entitled, even where subrogation is claimed to the original obligation itself. As soon as the right to subrogation arises, equity makes the assignment, and hence the right of the person entitled by no means depends on, or is affected by, the willingness or unwillingness of the creditor to transfer the security. This rule is based on the broad principle that equity regards as having been done that which ought to have been done.”

Also in 26 C. J. p. 458, § 621, it is said: “To entitle the insurance company to assert its right' by way of subrogation, no assignment óf the claim against the third party ’, liable to the insured is necessary, even though the statute or policy provides for an assign-/ ment, since the fact of the insurer paying the loss operates as an equitable assignment of the claim.”

. Judgment was correctly entered in favor of appellee on the case made by its pleadings and sustained by its proof.

Affirmed.


author: PELPHREY, C. J.

text:
    SHELL PETROLEUM CORPORATION v. PARKER.
    No. 2513.
    Court of Civil Appeals of Texas. El Paso.
    April 2, 1931.

      Thompson, Mitchell, Thompson & Young, of St. Louis, Mo., R. H. Whilden, of Dallas, and M. J. Dolan, of St. Louis, Mo., for appellant.
    W. R. Smith, Jr., of Midland, for appel-lee.
   PELPHREY, C. J.

This is an appeal from a judgment for damages in the sum of $500 awarded appellee for injuries to his fence, cattle, and grass. Ap-pellee, in his -original petition, alleged that the agents of appellant, on or about the 27th day of December, 1929, went in and upon certain lands owned and controlled by him in Andrews county, Tex., known as the “.Meadows Lands,” the “J. E. Parker University Lands,” and the “J. E. Parker Lands,” and cut his fences in various places; that by reason of his fences being so cut, his cattle strayed from his pastures, some of them being lost, and some being recovered at great cost to appellee; that said agents drove automobiles on and across his pastures at great rates of speed, thereby disturbing and frightening his cattle, causing them to cease their normal feeding and to lose weight; that he suffered damages in the sum of $400 from loss of his cattle, $100 in repairs to his fences, and $700 in loss of weight of his cattle.

Appellant’s general demurrer to the petition was sustained and the court granted ap-pellee leave to amend.

Appellee, in his amended petition, alleged: That he was the owner in fee simple of certain lands (describing them), and the lessee in possession of certain other lands (also described) ; that on or about the 27th day of December, 1929, appellant’s agents drove automobiles and trucks in, upon, and over the lands; that they took down his fences at specified locations, and that the reasonable cost of repairing the fences so torn down was $100; that the said agents made new roads by driving across his lands several times, destroying twenty-five acres of grass; that the grass was permanently injured and destroyed, to his damage in the sum of $250; that he was grazing twenty head of cattle per acre on said lands; that the cattle were worth $60 per head; that appellant’s agents drove over the greater part of fifty sections of the land; that his cattle were disturbed by the automobiles being driven over the land, became restless, and ceased their normal feeding for several days and lost weight as a result thereof, to his darnage in the sum of $250; that on or about December 23, 1929, upon being requested by a party representing appellant, whose- name was unknown to ap-pellee, to permit the agents of appellant to enter in and upon appellee’s land, refused such permission; that, regardless of such refusal, appellant’s agents willfully and wantonly did the things complained of; and that by reason thereof he was entitled to $600 exemplary damages.

Appellant answered by general demurrer, special exceptions, and a general denial.

The following special issues were submitted:

“Special Issue No. 1: Has the grass of the plaintiff been damaged by the defendant? Answer yes or no.
“Special Issue No. 2: What amount of damages, if any, do you find that the grass of the plaintiff has been damaged by the defendant? Answer in dollars and cents.
“Special Issue No. 3: Have the fences of the plaintiff been damaged by the defendant? Answer yes or no.
“Special Issue No. 4: What amount of damages, if any, have the fences of the plaintiff been damaged by the defendant? Answer in dollars and cents.
“Special Issue No. 5: Have the cattle of the plaintiff been damaged by the defendant? Answer yes or no.
“Special Issue No. 6: Were the acts of the defendant, if any, the proximate cause of the injury, ii any, sustained by the cattle of the plaintiff? Answer yes or no.
“Special -Issue No. 7: What amount of damages, if any, have the cattle of the plaintiff been damaged by the defendant? Answer in dollars and cents.”

The jury answered special issues Nos. 1, 3, 5, and 6, in the affirmative; No. 2, $J0O; No. 4, $50; and No. 7, $350.

Opinion.

Appellant’s contentions are: (1) That the court erred in permitting appellee to file his amended petition, after having sustained the general demurrer to his original petition; (2) that the amended petition- stating a different cause of action from that first alleged, its exception thereto should have been sustained; (3) that the amended petition was subject to -general demurrer; (4) that the allegations as to the damages to the fences, grass, and loss of weight of the cattle were conclusions of the pleader; (5) that a verdict should have been instructed in its favor; (6) that appellee, not being the owner of the fee in all the lands, could not recover for the permanent destruction of the grass; (7) that the evidence was insufficient to justify the giving or to support the findings of the jury on tlie several issues as to damage to tlie. fences, grass, or lo'ss of weight by the cattle; and (8) that the verdict is excessive.

No briefs have been filed by appellee.

We are of the opinion that the filing of the amended petition was in the discretion of the trial court, and where there is no palpable abuse of such discretion appellate courts will not interfere. Altgelt v. Bank (Tex. Civ. App.) 79 S. W. 582; McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. 278; San Antonio & A. P. R. Co., v. Miller (Tex. Civ. App.) 137 S. W. 1194; Schauer v. Von Schauer (Tex. Civ. App.) 138 S. W. 145; Trinity & R. V. R. Co. v. Crawford (Tex. Civ. App.) 146 S. W. 329; Guffey v. Bank (Tex. Civ. App.) 250 S. W. 301; El Paso Electric Ry. Co. v. Buttrey (Tex. Civ. App.) 260 S. W. 897, and that the court may in his discretion allow the pleading of a new and independent matter. El Paso Electric Ry. Co. v. Buttrey, supra; Glasscock v. Hamilton, 62 Tex. 143; Ann Berta Lodge v. Leverton, 42 Tex. 18.

The cause of action alleged in the amended petition was based upon the same trespass alleged in the original petition, and the difference found in the two petitions was merely as to the elements of damage sustained by him as a result of such trespass. The facts fail to show any such abuse of discretion as would warrant us in reversing the judgment.

Spencer v. Davis (Tex. Civ. App.) 298 S. W. 443, cited by appellant, was an action for breach of contract and, as the court said, it appeared on the face of appellant’s petition that he had an action for nominal damages and no more.

Such is not true here, and we fail to see how the holding in that case has any application to the facts before us.

Nor do we think the court erred in overruling appellant’s general demurrer to the amended petition.

Appellant interposed the following objection to the court’s charge: “For the reason that the record in this case shows that the plaintiff was not the owner of all the lands in controversy but had only a surface lessee’s rights therein and as such is not entitled to recover of this defendant damages for the permanent destruction of the grass upon the leased premises.”

The court’s action in overruling this objection is made the basis for appellant’s fifteenth assignment of error and is presented in proposition number nine. Appellee in his amended petition alleged that he was the lessee of approximately one-half of the land upon which the trespass was alleged to have been committed, and the owner of the remainder. He further alleged that appellant’s agents and employees had made new roads over the lands and permanently .injured and destroyed twenty-five acres of grass.

The court submitted special issue No. 1 on the question of injury to the grass and in no way limited appellee’s recovery to the damage to the grass alone. It is clear that ap-pellee would have no right of action for damage to the land itself, except as to that part which he owned. Gulf, C. & S. F. Railway Co. v. Smith, 3 Tex. Civ. App. 483, 23 S. W. 89.

We are of the opinion that appellee, as far as the land he owned was concerned, could recover for the destruction of the grass and also for damage to the freehold resulting therefrom, Fort Worth & N. O. Railway Co. v. Wallace, 74 Tex. 581,12 S. W. 227, but that, as to the land of which he was only the lessee, his recovery would be limited to the value of the grass.

This being true, then the issue as submitted, leaving the jury free to find for ap-pellee both as to damage to the grass and freehold, was erroneous in view of his allegations and proof that the grass was permanently inj.ured and destroyed.

It is true that the issue submitted merely inquired as to the damage to the grass, but appellee having alleged and testified that the' grass was permanently destroyed, the jury should have been instructed that his recovery, as far as the leased land was concerned, could be only for the value of the grass and that they should not consider in fixing the amount of damage, any injury to the freehold.

. [10] Appellant objected to the submission of special issue No. 7, as follows: “The defendant, Shell Petroleum Corporation, objects to Special Issue No. 7, prepared by the Court, wherein the jury is asked, ‘what amount of damages, if any, have the cattle of the plaintiff been damaged by the defendant? ’ Answer in dollars and cents.” (a) For the reason that the record in this case fails to contain any evidence to show the reasonable market value of plaintiff’s cattle immediately before and the reasonable market value immediately after they were alleged to have been damaged by the acts of the defendant, its agents and employees; (b) for the reason that the record in this case fails to contain any evidence as to the amount of damages alleged to have been sustained by plaintiff’s cattle.

It is contended under the twenty-first assignment of error that the court erred in submitting the said issue over the objection of appellant.

J. E. Parker, the appellee, was the only witness who testified as to the amount of damage to the cattle, and his evidence relative to that question was, in substance, that the cattle were worth $60 per head, and that, according to his estimate, 400 head of them lost fifteen pounds per head.

There Is no evidence as to the market value of the cattle after the loss of weight or as to the amount such a loss would reduce the market price of them.

As we view the evidence, there was not sufficient data upon which the jury could have estimated the amount of damage to the cattle. The assignment must, therefore, he sustained.

Appellant has questioned the action of the trial court in overruling -its several special exceptions to the amended petition.

We have examined the petition with reference to the exceptions interposed, and have concluded that the trial court did not err, with the possible exception of the one attacking the sufficiency of the allegations as to the injury to the cattle.

Appellee, before he will be entitled to recover, should allege and prove suc-h facts as will enable a jury to estimate with certainty the amount of damage resulting to the cattle from the acts complained of.

Because of the errors above mentioned, the judgment must he reversed, and the cause remanded.


author: HIGGINS,' J.

text:
    BROWN COUNTY FARMERS’ ASS’N, Inc., v. HEID BROS., Inc.
    No. 2517.
    Court of Civil Appeals of Texas. El Paso.
    March 26, 1931.
    Rehearing Denied April 16, 1931.
    J. E. Quaid, of El Paso,- for appellant.
    Harrison, Scott & Rasberry, of El Paso, for appellee.
   HIGGINS,' J.

This is a suit originating in the justice court, brought by appellee, to recover damages for breach of a contract for sale of two cars of oats. One of the ears was shipped and delivered. The action is based upon the appellant’s refusal to ship the other car.

Appellant filed a plea of privilege setting up that it was a corporation domiciled in justice precinct No. 1 of Brown county, and claiming the right to be sued there. The plea is in due form. Controverting affidavit wag filed seeking • to sustain the venue as laid under subdivisions 5 and 23 of the venue statute, art. 1995.

In support of the venue under the latter subdivision, it was set up that defendant was a private corporation, and the contract called for delivery of the oats in El Paso county, which obligation was breached, wherefore the cause of action, or a part thereof, arose in that county.

On June 25, 1929, appellant wired appellee offering to sell “two cars No. 2 red oats bulk shipment within five days 42 public weigher or railroad weights.” Appellee wired its acceptance. It is not claimed the telegrams bound appellant to perform any part "of the contract in El Paso county, but, as imposing such obligation, reliance is placed upon a written confirmation of the contract prepared and signed by appellee and mailed to appellant. This confirmation closes as follows: “If the above confirmation is not in accordance with the facts advise us immediately by wire. Your failure to advise us immediately of errors is acknowledgment of the_ contract as above.”

The confirmance contains provisipns, which, if treated as a part of the contract, would perhaps mahe the obligation of appellant, in part, performable in El Paso county, and for the breach thereof, we will assume for the purpose of this appeal, would fix the venue there upon the theory that a part of the cause of action arose in that county.

In order to sustain the venue in El Paso county, under either subdivisions 5 or 23, it was necessary to establish that the terms of the written confirmation became a part of the contract. This appellee attempted to do by showing that appellant acquiesced in, and aet-ed upon, the terms prescribed in the confirmation. The principle invoiced is that applied in Stevens-Smith Grain Co. v. Heid Bros. (Tex. Civ. App.) 18 S.W.(2d) 210, and eases there cited.

. The only evidence upon; the issue was that offered by appellee. As heretofore stated, one of the cars was shipped, and, in order to show acquiescence by appellant, it must have shown that appellant shipped the car after it received the confirmation, and acted in accordance with the terms and conditions prescribed in such confirmation.

Appellee’s assistant secretary and treasurer, Kinlcaid, testified he deposited the confirmation in the mail addressed to appellant at Brownwood, Tex. Neither Kinlcaid nor any other witness testified same was properly stamped, and it is very generally held that the presumption of receipt by the addressee is not raised, unless it is proved the postage was prepaid. Trezevant & Cochran v. R. H. Powell & Co., 61 Tex. Civ. App. 449,130 S. W. 234; Bruck Bros. v. Eipman, etc. (Tex. Civ. App.) 228 S. W. 303, and cases cited in note 26 of 22 C. J. 100.

In the absence of any evidence as to prepayment of postage, the presumption relied upon by appellee did not arise.

Again, it was shown by Kinlcaid that it required about two days to transmit a communication by mail from El Paso, where ap-pellee is engaged in business, to Brownwood. The confirmation is dated June 25th, but the evidence does not show when it was deposited in the mail. Notations upon the telegram of appellant offering to sell show the message was filed at Brownwood at 5:49 p. m. (central time)’ and received in El Paso at 5 p. m. (mountain time). Appellee’s telegram of acceptance is dated June 25th, but notation shows it was filed at 11 a. m. This message then must have been filed on the morning of the 26th, so the confirmation was evidently mailed not earlier than that date.

As stated, one car was shipped by appellant, but the record does not disclose when it was shipped. The only evidence throwing any light upon that question is the date of the draft. drawn by appellant upon appellee for the purchase price of the car. ' This date is June 27th. So it would seem the draft was drawn in Brownwood less than two days after the mailing in El Paso of the confirmation.

We regard the evidence stated as insufficient to warrant the inference that the car was shipped after appellant received the confirmation. In the first place, no presumption of receipt by appellant of the confirmation arises, because it was not shown that postage was prepaid. But, assuming such receipt, it was incumbent upon appellee to show receipt before the car was shipped, and the evidence is insufficient for that purpose. What little evidence there is upon the issue rebuts such an inference.

We are therefore of the opinion appellee has failed to establish that the terms of the confirmation became a part of the contract between the parties. Upon this view it follows the venue in El Paso cannot be sustained upon the facts alleged in the controverting affidavit.

In appellee’s brief, the ruling of the lower court is sought to be sustained upon the theory that the contract between the parties was made in El Paso county by the filing there of the telegram of acceptance, wherefore a part of the cause of action arose in that county. But no facts can be considered in support of the venue, except such as are specifically set up in the controverting affidavit. Article 2007, R. S. Gholson v. Thompson (Tex. Civ. App.) 298 S. W. 318.

The controverting affidavit in this case does not set forth the facts relied upon in this connection.

Reversed, and judgment here rendered ordering the venue changed to the justice court of precinct No. 1 at Brownwftod, in Brown county.

Reversed and rendered.


author: HICKMAN, C. J.

text:
    SCOTT et al. v. JACKSON.
    No. 758.
    Court of Civil Appeals of Texas. Eastland.
    April 10, 1931.

      McLean, Scott & Sayers, of Port Worth, for appellants.
    G. E. Smith, of Comanche, for appellee.
   HICKMAN, C. J.

In 1917 appellee executed an oil and gas lease covering 278½ acres of land in Comanche county to W. W. Skinner. Thereafter, Skinner and some of his assigns subdivided the lease into various subdivisions and Skinner executed assignments to various parties. Ajipellants, by sheriff’s deeds, became the joint owners of two of the adjoining subdivisions, one containing about 40 acres and the other about 27 acres. A number of shallow wells were drilled- on both the 40-acre tract and the 27-acre tract. Prior to 1923, twelve shallow wells were drilled on tbe 27-acre tract. These wells produced oil in paying quantities for several years. The wells on the 40-acre tract, which adjoins the 27-acre tract on the east, were still producing oil in paying quantities at the time this case was tried. Salt water had destroyed most, if not all, of the wells on the 27-acre tract. Ap-pellee’s suit was for the purpose of canceling the lease in so far as same covered the 27-acre tract, no cancellation being sought as to the 40-acre tract. His brief construes and summarizes' his petition as follows: “The suit was to cancel the lease on the 27 acre tract on the' propositions that, (1) the land had ceased to be used for mineral exploration and development; (2) abandonment; and (3) breach of the implied covenant for reasonable exploration and development.”

His theory was that the lease was not a unit, but was divisible; that after the lessees subdivided the tract into various smaller tracts, each of these subdivisions became subject to all of the obligations, express and implied, in the original lease; and that, in determining whether he had the right to cancel the lease as to a particular subdivision, the lease on such subdivision would be considered just as if no other lands had been included therewith in the original lease. This seems to be the theory upon which the ease was tried, and the issue of fact on which most of the evidence was offered was whether or not oil in paying quantities was being produced at the time of the trial on the 27-acre subdivision. The trial court peremptorily instructed the jury at the close of the testimony ,to return a verdict for appellee, and a judgment was entered in accordance with the verdict, canceling the lease in so far as it covered that subdivision.

An error, fundamental in its nature, of which we are required to take notice, even in the absence of an assignment, appears on the face of the transcript. The judgment discloses that the appellant, Maud • A. Mc-Ewan, failed to answer or make an appearance. As to her the judgment was by default. As the owner of an interest in the lease canceled by the judgment, she was a necessary party to the suit. The judgment recites service, but the transcript does not contain the citation or other showing of service. It is a well-established rule that an appellate court is not authorized to affirm a default judgment where the record fails to show proper service upon the defendant. Head v. Texas State Bank (Tex. Civ. App.) 16 S.W.(2d) 298; Glasscock v. Barnard, 58 Tex. Civ. App. 369, 125 S. W. 615; Bilby v. Rodgers, 58 Tex. Civ. App. 432, 125 S. W. 616.

This error in the record works a reversal of the judgment and a remand of the cause for another trial. But we would be unable to affirm the judgment even if proper service of citation on Mrs. McEwan was disclosed by the transcript.

The evidence raised a fact issue, in our opinion, on the question of whether oil in paying quantities was being produced from the 27-acre tract, and the peremptory instruction was not justified. This would be our holding even though appellee’s theory is correct in regarding the original lease as having been divided into various independent leases by virtue of the subdivision made by the lessee. But we do not agree that the making of the subdivision had that effect. The lease contained no provision whatever on the subject of subdividing or assigning in part. The arbitrary division line between the 40-acre tract and the 27-acre tract does not enlarge the right of appellee to effect a cancellation. The fundamental questions of law involved, as we conceive it, is whether a lessor may have a cancellation in part of an indivisible lease by showing that certain acres covered by the lease have ceased to produce oil, or have been abandoned. It was held by the Court of Civil Appeals at Austin in the case of Leonard v. Prater, 18 S.W.(2d) 681, that a court of equity can decree the cancellation of the undeveloped portion of an indivisible lease on the ground of abandonment. Tbe Supreme Court has granted a writ of error in that case, and, should it affirm the ruling-there made, then appellee, upon another trial, will be entitled to a decree of cancellation upon such portions of the leased premises as the court may find appellants have abandoned. “Abandonment” embodies the element of intention, and is generally a fact .issue to be determined by the jury. The evidence in the record before us would not warrant the giving of a peremptory instruction on the theory of abandonment as to any portion of the leased premises.

It is difficult for us to see how one in possession of a tract of land under one title may abandon his title to a portion of his estate, when that estate is, as here, indivisible, but that question is now pending in the Supreme Court in the case of Leonard v. Prater, supra, and the law Will probably be' declared before this case can be retried.

The theory of cancellation for breach of an implied covenant for reasonable exploration and development of the lower strata of oil producing sand, if in fact such strata exist, cannot be upheld. A lease cannot be forfeited for breach of an implied covenant. That question has been set at rest in this state by the decision of our Supreme Court in the case of W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.(2d) 27. As pointed out in that case, a court of equity, in extreme cases, where the remedy at law for damages is inadequate, may enter a conditional decree of cancellation for the failure of lessee to develop with reasonable diligence, but the petition in the instant case did not allege sufficient facts for such a conditional decree, nor was such remedy sought or obtained. In the recent ease of Rendleman v. Barlett (Tex. Civ. App.) 21 S.W.(2d) 58 (error refused), a petition was held to be sufficient to support such a decree. By refusing a writ of error- in that case we think, it may be safely assumed that the Supreme Court regarded that opinion as a correct interpretation of its holding in the Waggoner Case. The instant case cannot be affirmed on the ground -of breach of implied covenant because, as noted, the pleadings did not seek, nor did the court enter, a conditional.decree.

Reversed and remanded.