author: WILLSON, O. J.

text:
    WINNSBORO GRAIN & GROCERY CO. et al. v. MOORE et al.
    No. 3949.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 12, 1931.
    Rehearing Denied March 19, 1931.

      J. H. Beavers and R. B. Howell, both of Winnsboro, for appellants.

      ' W. D. Suiter, of Winnsboro, Jones & Jones, of Mineóla, and Elbert M. Barron, of Sherman, for appellees.
   WILLSON, O. J.

(after stating the ease as above).

Appellants insist the trial court erred when he instructed the jury to return a verdict in appellees’ favor and, such a verdict having been returned, rendered judgment in conformity thereto. The contention is on the theory that if the evidence did not demand it would have supported, (1) a finding that the alleged written contracts sued upon were not binding upon appellants; and (2) a finding that appellants were entitled on their cross-action to recover damages of appellees.

The evidence, so far as it is material in considering the first-anentioned ground of the contention, is set out in the statement above. It must be conceded, we think, that it conclusively appeared therefrom that the delivery of the written contracts' was a .conditional one, the condition being that before the instruments should become effective as contracts they must be signed by Souther-land ; and that it further so appeared that Southerland never did sign the contracts. It would follow, it seems from the authorities, that the written contracts never became effective. Merchants’ Nat. Bank v. McAnulty (Tex. Civ. App.) 31 S. W. 1091; Thomason v. Berry (Tex. Com. App.) 276 S. W. 185; Roddy v. Bank (Tex. Civ. App.) 11 S.W.(2d) 652; Steffian v. Bank, 69 Tex. 513, 6 S. W. 823; Lee v. Richmond, 90 Iowa, 695, 57 N. W. 613; 4 Elliott on Contracts, 1133, § 3910. In the authority last cited, it is said that the actual or physical passing over of a deed from the grantor to- the grantee “may not complete the delivery (quoting) in case the parties both agreed that the deed should not become operative until the liáppening of some future event, or the fulfilment of a condition or provision, such as the approval of the deed by a co-partner or other person having an interest.”

We do not agree with appellees that if the written contracts were never so delivered as to become effective, it appeared appellants were estopped from so asserting. We have found no evidence in the record of anything appellants said and no evidence of anything they did, unless it was their taking possession of and using the buildings, tending to establish an estoppel against them. On the contrary, it was uncontroverted in the evidence that Southerland refused to sign the contracts and declared he would not sign them unless they were made to include a stipulation binding the owners of the buildings to keep them in repair, etc., and that Wilson, acting for himself and W. C. Moore, declared they would not make any change in the contracts as they were written. Whether it appeared that appellants’ possession and use of the buildings were under implied contracts or not and, if under such contracts, what were the rights and liabilities of the parties, need not be determined, for appellees’ suit was upon express contracts, and they were not entitled to recover as they sought to on any other kind of a contract. Dyess v. Rowe (Tex. Civ. App.) 177 S. W. 1001; Bagley v. Brack (Tex. Civ. App.) 154 S. W. 247; Whitney v. Parish of Vernon (Tex. Civ. App.) 154 S. W. 264.

We think it conclusively appeared from the evidence that the damages to their stock of goods which appellants sought to recover by their cross-action occurred before June 21, 1927; that their cross-action' was not commenced until June 24, 1929; and therefore that their right to maintain such cross-action was barred by the two years’ statute of limitations. Rev. St. 1925, art. 5526. It follows, of course, that we think said contention of appellants so far as it was predicated on the second ground thereof is without merit and should be overruled.

The judgment will be affirmed so far as it denied appellants a recovery of anything on their cross-action. It will be reversed so far as it allowed appellees a recovery on the written contracts they sued on, and judgment will be here rendered denying them a recovery of anything on said contracts.

On Motion for. Rehearing.

It is insisted in the motion that "the evidence (quoting) was conclusive and uncon-tradicted that the entire negotiations with reference to the contract were between Wilson and appellant' R. H. McCrary,” and that this court was in error when it said such negotiations were between ai>pellant J. E. Southerland and Wilson. We think it of no importance whether the negotiations were with the one or the other of the partners, but, to correct an inaccuracy hereby conceded to exist in the opinion, here now state it appeared the oral negotiations of Wilson referred to were not with Southerland alone but with both him and McCrary, and mainly, perhaps, with the latter.

The motion is overruled.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    GRAND LODGE LOYAL FRIENDS OF AMERICA v. LATTIMORE.
    No. 8559.
    Court of Civil Appeals of Texas. San Antonio.
    March 18, 1931.
    T. H. Ridgeway, of San Antonio, for appellant.
    Chas. J. Greenly, of San Antonio, for appel-lee.
   SMITH, J.

The Grand Lodge of Loyal Friends of America is a benevolent association operating under a charter issued to it by the state, with a local lodge in San Antonio. The association issued a certificate of membership to Lucy Lattimore, whereby it was obligated, under conditions named in the certificate, to pay not exceeding $500 to Margaret E. Latti-more, the designated beneficiary, at the death of Lucy Lattimore. The latter died on October 18, 1929. Upon its refusal to pay the amount of the certificate, Margaret Latti-more brought this suit.against the association, and recovered. The association appealed.

Under the provisions of the by-laws of appellant association, a stipulated premium upon the certificate in suit became due on October 1 and delinquent on October 15, and under the contract between the parties default in payment on or before the latter date automatically terminated the membership, and all rights under the certificate were thereby forfeited. It is conceded that the premium was not paid or tendered within this period, and the right to collect the insurance was thereby forfeited, unless revived by a process prescribed in the by-laws of the lodge.

It was further provided in appellant’s bylaws that the local secretary had no authority to accept delinquent premiums, such' as this, but that such may be paid only to the grand secretary at Dallas, and then only when accompanied by an affidavit of the insured’s good health, in which event the grand secretary may accept or reject the premium, at his discretion. Neither of these requirements was met by the insured or those acting for hex-, in this case.

Three days after the policy had lapsed on account of nonpayment of the premium, and a few hours before the death of the insured on the same day, appellee procured a post-office money order at Rusk, Tex., for the amount of the delinquent premium, and "mailed it to the local secretary at San Antonio, who received it three days later. This tender of the delinquent premium was not made to the grand secretary, as required in the by-laws. It was not accompanied by a certificate of the good health of the insured, as also required; it may be assumed that such certificate could not be fairly secured, since the insured, for some time theretofore in precarious health, was then at the point, or within a very few hours, of death. The local secretary, having no authority to accept this tender in any form, delivered the money order to the national' grand master, who refused to accept it in payment of the delinquent premium, and returned it to the local secretary, with instructions to tender it back to the beneficiary. In this the grand master acted within his authority under the by-laws, because, first, he could accept or reject' at his discretion; second, the tender of the premium was not accompanied by a certificate of the good health of the insured; and, third, the insured was dead, and the official knew it.

The result is that the insurance certificate had lapsed because of nonpayment of premium, and the conditional option to revive it had not been exercised, and had been waived by noncompliance with the plain terms of the by-laws of the insurer, of which the insured and all beneficiaries were charged with notice, as provided in the contract between the parties.

But appellee, conceding the correctness of the foregoing findings and conclusions, sued and recovered in the court below upon the contention that appellant had waived its right to insist upon the timely payment of current and delinquent premiums.

Appellee contends that, because of a delay in tendering back to the beneficiary the money order covering the delinquent premium, appellant waived its right to forfeit the insurance because of such delinquency. The true facts concerning this delay, and the length thereof, are not clearly shown, but it does appear that the officials to whom such payments were required by the by-laws to be made refused at all times to accept such delinquent premium after its tender, and after-wards surrendered it to appellee’s counsel at an undisclosed date. The facts concerning this transaction, so far as they are definitely shown, are not such as to constitute the waiver insisted upon by appellee. These facts should be more clearly shown upon another trial.

The evidence is such as to warrant the implied finding of the trial court that the premiums upon the certificate in question for the months of January, April, May, July, and August, 1929, became delinquent, and, while delinquent, were paid to the local secretary, and transmitted to, and accepted by, the grand officials of appellant with knowledge of the facts, which, of course, had the effect of a waiver by appellant of the right to forfeit the insurance on account of those particular delinquencies. During that period the by-laws of appellant did not require delinquent premiums to be accompanied by affidavit showing the good health of the insured, and those payments were not accompanied by such certificates. Appellee pleaded below, and urges here, that, by accepting those premiums after they became delinquent, appellant waived its right to forfeit the insurance because appellee and the insured afterwards defaulted in the timely payment of the October premium, and failed to tender the required health certificate with the proffered delinquent premium. We think this would be true, ordinarily, for by such course appellant- lulled its members into security against slight lapses in the prompt payment of premiums, leading them to believe that the penalty for such lapses would not be strictly enforced, but would be forgiven, and that the forfeiture authorized by the by-laws would not be insisted upon by the lodge. And, but for the facts we are now about to mention, we would hold outright that, by its course of dealing with the member in.volved, in permitting her, month after month, to pay her premium, after it became delinquent, directly to the local secretary without any certificate of good health, appellant waived its right to suddenly and without notice withdraw the privilege .and begin strictly to enforce the by-laws at a time and under such circumstances as to cut off the beneficiary from the benefits so long maintained by the member to the profit of' the lodge.

But it appears that the Grand Bodge, at its national meeting in July, 1929, concluded that it had become desirable, for the better protection of its insurance adjunct, to change its method of handling delinquencies. To that end the Grand Lodge adopted certain amend-, ments to its by-laws, in which it was provided that premiums on insurance certificates should be made quarterly, beginning with the month of October, 1929; that such premiums become due on the 1st days of October, January, April, and July in each year; that a grace period should.be allowed to the 15th of said months, and, if such premiums should not be paid on or before the 15th, they should be deemed delinquent.

It was further provided in said amendment to the by-laws that when any member of the lodge “becomes delinquent by failure to pay dues in time, said member or members shall not bo permitted to pay their local secretary their delinquent dues, but the member or members may apply to their local secretary for a delinquent health blank, said delinquent member or members will make affidavit of the condition of their health before a notary public, or justice of the peace.

“The delinquent member or members will send their delinquent dues, together with the affidavit and health blank to the National Grand Secretary. On receipt of the delinquent dues, affidavit and health blank; if the National Grand Secretary is satisfied that said member- or members are in good-health and is not over the age limit, he will accept such member or members’ dues and reinstate them. If he is not satisfied that such member or members is a good risk for reinstatement, he has the authority to reject such member or members and refund their money.

“If the National Grand Secretary desires to reinstate said delinquent member or members he may do so, by sending them receipt for the money sent. Upon receipt of the receipt from the National Grand Secretary, the dé-linquent member or members is reinstated. The delinquent member or members will present the National Grand Secretary’s receipt to their local secretary as evidence of reinstatement. The local secretary will then have authority to collect such member or members’ money for the next quarter. No delinquent member or members can be reinstated in any Lodge, Palace or Juvenile Department until notified by the National Grand Secretary of their receipted reinstatement.' This recommendation to take effect October 1, 1929.”

As stated, said amendment to the bylaws was adopted by the Grand Lodge at its national convention at Dallas in July, 1929, and by its terms became effective on October 1 in the same year. Notice of these amendments was published in the 'lodge’s periodical, and copies were mailed to the several lodges as well as to each member. And, under the law, the members were charged with such notice.

It cannot be gainsaid that this change in the by-laws was induced by the existing lax methods of dealing with delinquent members, was designed to correct, and in the future prevent, just such delinquencies as the member involved here was afterwards guilty of; to effectually deprive local secretaries of any apparent right or power to receive or accept delinquent premiums, and require that they be sent directly to a grand official; to prevent reinstating undesirable risks by requiring delinquents to show present good health before reinstating them. These changes were made as a protection to members who by their own efforts kept in good standing by timely meeting their mutual obligations. These regulations were reasonable, were enacted by the assembled representatives of all the members, as provided in the constitution and by-laws of the order, and were put in effect only after three months’ notice to the membership. It must be presumed from the facts that the member in question had actual notice of this change, and she was charged with notice, in any event. She, as well as ap-pellee, the beneficiary, with knowledge of the penalty, were delinquent at the first premium period under the new by-laws, and the custom or waivers theretofore practiced by the lodge under old and abandoned by-laws could not operate to estop the lodge from enforcing the provisions of the by-laws as amended. We hold that under the facts disclosed in the record appellant was not liable, and the judgment must be reversed and remanded for another trial, in consonance with the views here expressed. The case was not so fully developed as to warrant rendition.

It should be added that the certificate provided for payment to the beneficiary in proportion to the funds on hand from current assessments of members, at the time of the death of the insured, not to exceed $500 for all benefits. The evidence indicated .that upon this basis, which is enforceable, appel-lee co.uld not have recovered in excess of $275 in any event. Upon another trial, this phase of the case may be, and, if possible, should be, more clearly developed.

The judgment is reversed-, and the cause remanded.


author: HIGGINS, J.

text:
    MICHIGAN TRUST CO. et al. v. TURNEY et al.
    No. 2505.
    Court of Civil Appeals of Texas. El Paso.
    March 12, 1931.
    Rehearing Denied April 2, 1931.

      John T. Hill and O. R. Armstrong, both of El Paso, for appellants.
    J. Walker Morrow and Turney, Burges, Cul-well & Pollard, all of El Paso, for appellees.
   HIGGINS, J.

Mrs.' Mary Cleghorn Hills, a resident of Michigan, died and her will was admitted to probate in that state. Ancillary administration was had in the county court of El Paso county,, Tex., the will being admitted to probate and Otis C. Coles of El Paso county appointed administrator with will annexed.

The present controversy is over a bill for $12,500 against the estate presented by the law firm of Turney, Burges, Culwell & Pollard, for legal services rendered the ancillary administrator by whom the bill was approved. The probate court approved the bill. From that order of approval the Michigan Trust Company, Dudley Hills Waters, Florence Hills Waters, and her husband, Dudley E. Waters, appealed to the district court.

In that court but one issue was submitted to the jury. It reads:

“What do you find from a preponderance of the evidence was the reasonable value of the legal services rendered to O. C. Coles, as the ancillary administrator of the estate of Mary C. Hills, deceased, by the law firm of Turney, Burges, Culwell & Pollard?”

The answer was: “$12,500.00.”

Upon such finding the claim was approved as a second-class claim and ordered paid. From this order the contestants prosecute this appeal.

Numerous assignments of error and supporting propositions contained in appellants’ lengthy brief, in their last analysis, resolve themselves into the contention ‘that the ancillary administration in this state was wholly unnecessary, and the estate thereby burdened with heavy costs; and since the administration here was had upon the advice of appel-lees, they are not entitled to any compensation for the services rendered by them in “such unnecessary proceedings which operated, not for the benefit of the estate, but to its detriment, by burdening it with heavy administrative costs.

The will of Mrs. Hills is lengthy. It may be summarized as follows: After directing the payment of her debts, and stating that she had already given to her daughter, Florence Hills Waters, certain household furniture and other articles, it gave the remainder of her personal property, including automobiles, to her, and $4,000 in cash, with the request that this money be used by her daughter for research work in connection with the Hills and Cleghorn families. Certain property was bequeathed and devised to the Michigan Trust Company, a corporation of Grand Rapids, Mich., for purposes which- were specified in the will, and that company was given full power to care for, manage, and control the funds and property so placed in its hands, to convert the same, or the proceeds thereof, into money, to invest and reinvest the same, etc. It referred to the fact that she owned lands both in Texas and Michigan, and authorized the Michigan Trust Company, as executor and trustee, to hold and retain these lands, etc., to handle the same, and as discretion might indicate, to sell and dispose of the same. It was provided that she had planned to erect a mausoleum in a cemetery at either Rome, Ga., or Atlanta, Ga., wherein should be placed the remains of her late husband, her late son, and herself. She directed the said executor to carry that plan into execution, and to that end to sell real estate in El Paso, except her interest in block 5½, Mills Map. Direction was given that the daughter, Florence Hills Waters, should occupy the homestead during her lifetime; that after the death of the daughter, same should be occupied by her grandson, Dudley Hills Waters, and at the death of the survivor of the daughter and grandson, the homestead was to be sold and the proceeds disposed of as afterwards directed in the will, which was for the benefit of the municipalities of Rome and Cartersville, Ga., and Grand Rapids, Mich. After other directions as to the property located in Michigan, it was provided that all the remainder of the property, real and personal, owned by her at the time of her death was devised to the Michigan Trust Company in trust for the following purposes: It was to continue during the natural lives of Florence Hills Waters and Dudley Hills' Waters, and for twenty-one years after the death of the survivors of .them; that the income from the trust be paid to the daughter, Florence. Hills Waters, and-at her death the income was to be paid to the grandson, Dudley Hills Waters, and to his issue, if living. At the expiration of the twenty-one year period above mentioned, all the property belonging to the trust estate should go to the issue of the grandson, Dudley I-Iills Waters, then living. If there was no issue, then she directed that one-half of the property should go to the city of Rome, Ga., to be expended in the erection of a fountain in memory of her husband, one-fourth to the city of Cartersville, Ga., to be expended in the erection of a fountain in memory of her mother, the remaining one-fourth to the city of Grand Rapids, Mich., for the erection of a fountain in memory of her daughter, Florence Hills Waters. None of the beneficiaries interested in any legacy or devise were empowered to assign, convey, pledge, hypothecate, or anticipate the payment of any sum or delivery of any property, and it was provided that any such action should be void. It was provided in the fourteenth paragraph that in case of any present or future law of Texas, or for any reason, the Michigan Trust Company should be unable or unwilling to act as executor or trustee for the state of Texas, of or under this last will and testament, she directed the court in Texas in which the administration should be pending, to appoint, as executor or administrator with the will annexed, or as trustee under the will, as the case may be, such officer of the Michigan Trust Company as that company might nominate, and if that appointee be unable or unwilling to act, or for any reason should cease to act, she directed that the office be filled by the court having Jurisdiction thereof upon the nomination of some suitable executor or administrator with the will annexed to be made by the Michigan Trust Company. A, copy of a resolution of the board of- directors of said Michigan Trust Company, attested by its secretary or assistant secretary, making a nomination as mentioned in that paragraph, was made sufficient evidence of the action taken by said company in that behalf. '

This will was first probated in Grand Rapids, ■ Mich., and the Michigan Trust Company was appointed executor and trustee. The probate court in Michigan allowed claims against the estate totaling approximately $210,000, the principal ones being in favor of Florence Hills Waters, the daughter, for $146,465.32, and Grand Rapids National Bank for $62,-000. This had all been accomplished in Michigan prior to the institution of the probate proceedings in Texas, and with which proceeding in Michigan appellees had nothing to do.

The property in Michigan was wholly insufficient to pay approved claims against the estate. The bulk of the estate consisted of improved real estate in 'the business section of the city of El Paso of the appraised value of $302,350.

The handling of the estate in El Paso would require considerable attention, much leasing was to be done, work performed on the building known as the Hills Building, then under erection, and other things.

The claim of Mrs. Waters against the estate of her mother was allowed in the sum of $150,000 by the probate court of El Paso county. The claim of the Grand Rapids National Bank was also allowed. It was necessary for the administrator to sell the property of the estate in El Paso to pay said claims, as- there were no funds available for that purpose.

An examination of the will disclosed that all of the property located in Texas, except block 5⅛, Mills Map of El Paso, is set aside for particular purposes; that is-to pay for the erection of a mausoleum either at Rome or Atlanta, Ga., and the other property here, to wit, principally, the block 5½, Mills Map, was to be held for twenty-one years after the demise of any issue of the daughter or grandson, at which time, and only then, it was to be disposed of as follows: One-half to the city of Rome, Ga., for the erection of a fountain in memory of her husband ; one-fourth to the city of Cartersville, Ga., for the erection of a fountain to the memory of her mother; and one-fourth to the city of Grand Rapids, Mich., for the erection of a fountain in memory of her daughter Florence Hills Waters, one of the appellants. The only direct bequest of any moment provided for under this will was a gift of $4,000 to the same appellant, the daughter, to enable her to look up the pedigrees of the Hills and Cleghorn families. And then there was the direct bequest of the income from revenue producing properties to be paid to certain named heirs.

Reverting now to appellants’ insistence that the ancillary ■ administration in Texas was wholly unnecessary, it seems that the necessity therefor is obvious in view of the debts against the estate, the cbmplete insufficiency of assets in the jurisdiction of the domiciliary administration for the payment of the debts, and the necessity of subjecting the assets in Texas to such payment. 24 C. J. Ill, 112. Administration by the probate court is the method provided by law for subjecting the estates of deceased persons to the payment of the debts owing by such decedents. Faulkner v. Reed (Tex. Com. App.) 241 S. W. 1002, 1006.

In their written argument at .pages 8 to 11, appellants concede the Michigan Trust Company in its capacity as executor could not function and act in Texas as the legal representative of the estate simply by virtue of the letters testamentary issued to it in Michigan. Such letters have no extra territorial effect. That is well settled law. 24 C. J. 1109; Clarke v. Webster (Tex. Civ. App.) 94 S. W. 1088; Id., 100 Tex. 333, 99 S. W. 1019, 123 Am. St. Rep. 813; Faulkner v. Reed, supra ; Lindahl v. Thacker (Tex. Civ. App.) 26 S.W.(2d) 283.

Appellants’ position is that under articles 8301-5, R. S., the Michigan Trust Company in its capacity as trustee of the estate could have done all that was necessary to be done in Texas; could sell the El Paso property, and administer the estate and pay the debts by filing here attested copies as provided by article 8301, R. S. But the probate courts of this state are not ousted of their jurisdiction and relieved of their duty to administer the estate of a nonresident deceased person and pay the debts due by such estate, simply because the testator bequeathed and devised his estate to a trustee with power to manage and control, the same and limited power of disposition. The trustee takes the estate subject to the right of creditors to have the same administered and their debts paid in the manner provided by law.

The Michigan Trust Company is a foreign corporation without a permit to do business in Texas. In 'the discharge of its duties as executor and in carrying out the terms of the trust as provided in the will it must necessarily, for a term of years, have assumed active management and control of the business properties in El Paso. Clearly, it would have been necessary for it to transact business in this state over a term of years which it could not lawfully do except, by filing with the secretary of state a duly certified copy of its articles of incorporation, etc., as required by article 1529, R. S.; Pennsylvania Co., etc., v. Bauerle, 143 Ill. 459, 33 N. E. 166; Michigan Trust Co. v. Bronson, 192 Cal. 506, 221 P. 628.

It is true the only penalty imposed upon foreign corporations for transacting business in this state without a permit so to do is disability to maintain any suit in the courts of this state (article 1535, R. S.), but article 1529, R. S., specifically provides that such corporations desiring to transact business in Texas shall file with the secretary of state a duly certified copy of its articles of incorporation, etc. Any such corporation which transacts business in this state without complying with article 1529 is doing so contrary to the laws of Texas regardless of the penalties attaching to such forbidden action.

But, however this may be, the fact remains that the Michigan Trust Company did not see fit to comply with the Texas laws relating to foreign corporations desiring to transact business in Texas, waived its right to appointment as executor, and requested the appointment of Coles. This it did after having been fully advised in the premises.

We therefore hold that ancillary administration in Texas and the appointment of a qualified administrator was necessary.

This conclusion disposes of all assignments and propositions which in one form or another question appellees’ right to compensation, and as we view the record only one other question need be discussed, and that very briefly, namely, the contention that the fee of $12,500 is excessive.

Hon. E. B. McClintoek, the probate judge,. Judge Ballard Coldwell, and a number of practicing attorneys of the El Paso bar testified as to the reasonable value of the services rendered. Their estimates vary from $12,000 to $17,500. We have examined the evidence bearing upon the issue and upon which the witnesses based their opinions, and regard the fee allowed entirely reasonable. The contention that it is excessive is overruled.

All other assignments and propositions have been considered. Most of them are irrelevant. None show reversible error and, we think, call for no discussion.

Affirmed.


text:
    J. S. COSDEN, Inc., v. MEINECKE.
    No. 2500.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 26, 1931.
    Rehearing Denied March 19, 1931.

      Brooks & Woodward, of Big Spring, and Ike A. Wynn and Herbe# Hedick, both of E'ort Worth, for appellant.
    Davidson & Smith, of Ozona, and Collins, Jackson & Snodgrass, of Sán Angelo, for ap-pellee.
   HIGGINS, J.

The Stine Drilling Corporation and J. S. Cosden, Inc., entered into a contract by the terms of which the former agreed to drill an oil well for the latter to a certain depth.

Due to unsatisfactory conditions- which need not be stated, the contract, by mutual consent, was canceled about March 1, 1928, and the Cosden Company undertook to com-,píete for itself the drilling of the well. At that time the Stine Corporation was indebted to appellee Meinecke for goods, wares, and merchandise theretofore sold and delivered to such corporation in connection with the drilling contract. Such corporation was also indebted in different sums to E. E. Turner, B. A. Lusk, Leo 1-Iart, and Jim Chapman for labor theretofore performed in the drilling of the well. The four individuals last named continued work upon the drilling job after March 1st, as employees of J. ■S. /Cosden, Inc. About April 16, 1928, the well was nearing completion, and the sums -due the individuals named had. not been paid. About that date Turner, Lusk, Hart, and Chapman quit work upon the well and went to Ozona, where they and Meinecke ■consulted Hon. Houston Smith, an attorney .at law, with the view of filing suits to re•cover the sums due them prior to March 1, 1928, by the Stine Drilling Corporation.

It was tentatively agreed that the laborers ■mentioned would cease work on the well and they and Meinecke would file suits to re- • cover the sums due them on March 1, 1928, .and attach the properties. Thereupon Wilbur Williamson, a representative of J. "S. Cosden, Inc., agreed for said company to ■pay said sums, if the parties would refrain from their threatening action and the labor•ers resume work upon the well. This they •did, and the well was completed April 25, 1928, as a dry hole. Said sums not having Ibeen paid, Turner, Lusk, Hart, and Chapman assigned their claims to Meinecke who brought this suit against J. S. Cosden, Inc., Stine Drilling Corporation, and its president, H. I. Cline, to recover the moneys due as aforesaid to Meinecke and his assignors.

Upon trial without a jury Meinecke recovered judgment for $3,813.40 against all defendants, from which J. S. Cosden, Inc., appeals.

Appellant presents this appeal upon two propositions, as follows:

“1. The testimony of the witnesses, B. A. Lusk, E. E. Turner, Leo Hart, Jim Chapman, Jr., Chris Meinecke and Houston S. •Smith, to the effect that Wilbur Williamson told them that the appellant would pay the claims sued on, was not admissible as against this defendant’s objections that such statements were incompetent to establish either the fact or agency of said Williamson, or the scope of the said agent’s authority.”

“2. The only evidence of the authority of Wilbur Williamson to bind the appellant for the bills sued on, which were all created prior to the time that appellant took ■ over the drilling of said well, being the testimony of plaintiff’s witnesses to Williamson’s bare statement that he had received such authority over the telephone, the holding by the court that the assuming .of the alleged obligations came within his authority and the rendition of judgment for the plaintiff is not supported by the evidence, but is contrary thereto, and the judgment against the appellant should be set aside.”

The evidence of appellant’s own witnesses establishes conclusively that Williamson was an agent of appellant. He was its district superintendent and foreman of drillers. This record presents no issue as to Williamson’s capacity as an agent and representative of appellant who was on the ground in charge of the drilling of the well after the work was taken over by appellant.

The only real question in the case is as to the sufficiency of the evidence, independent of the declarations of Williamson, to show his authority to assume the payment of the claims sued upon.

We need not waste any time in discuss-. ing the settled and well-recognized rule that the mere declarations of one assuming to act as the agent of another are incompetent to establish such relationship or the extent of his authority as an agent.

As we have before remarked, the fact of Williamson’s agency is not in issue. The only issue presented is Williamson’s authority to make the agreement relied upon by ap-pellee, 'and in this connection it may be said that the mere denial of such authorization by appellants’ officers does not settle the question.

“Whatever evidence has a tendency to prove an agency is admissible, even though it be not full and satisfactory, and it is the province of the jury ty> pass upon it. Direct evidence is not indispensable — -indeed, frequently is not available — but instead circumstances may be relied on, such as the relation of the parties to each other and their conduct with reference to the subject matter of the contract. And, notwithstanding the alleged principal and agent are the only witnesses called, and,that they both categorically deny the existence of the relation, the jury have the right to weigh and consider the whole of the evidence and the fair and reasonable inferences that might be drawn therefrom, and- they may be entirely justi-fied in disregarding the “yes or no” answers and in reaching the conclusion that the evidence as a whole is' sufficient to prove the relation of agency to exist.” 21 R. C. L. pp. 820, 821.

See, also, 2 O. J. 932, and 1 Mechem on Agency (2d Ed.) §§ 296 and 299. The same rule applies as to tRe extent of an agent’s authority.

Appellant’s vice president and general manager, A. G. Reed, testified:

“The duties of Wilbur Williamson were to see that the. well was properly drilled, in order thát it might not be ruined or spoiled by improper workmanship. He superintended the drilling of the wells that the company drilled themselves, as well as those that were drilled by contract. ⅜ * *
“He was supposed to stay on the job all the time, all he deemed it necessary, in connection with other matters that he looked after; he attended to other wells during that time. * •* *
“I instructed Mr. Williamson to hire these men and agreed on behalf of J. S. Cosden, Incorporated, to pay them certain wages for working — 'he „ had instructions .in case any one of these men became sick and quit to employ someone else. Yes, he had authority to bind J. S. Cosden, Incorporated, to do that; we considered that an emergency case. Mr. Williamson was in charge of completing the well — of the drilling — that was Mr. Wilbur Williamson, and he was in charge from about March 1st until the well was finally finished. Yes, he had -authority to hire such labor as was' necessary to carry on the drilling of the well; we considered that an emergency. * * *
“Mr. Williamson was District Superintendent and Foreman of drillers and had authority to fire any drillers, when we were operating the well, and hire another one in his place, and to instruct the driller when to commence and stop, 'and when to shut down, and when to begin again. In cases of emergency lie had authority to take such action as he considered wise and necessary to protect our interest, providing he couldn’t get to us or to his superior, Mr. R. C. Williamson, to communicate with him. If an emergency came up that required immediate action he had authority to act for the company, so far as the actual drilling of the well only was concerned. In connection with the completion of this well Mr. Williamson had authority to incur incidental bills around town for small items that might become necessary — within reason — that comes under the emergency matter. I believe he did incur some little bills that the Company recognized and paid. * * *
“As to the scale of wages paid and as to whether or not there were any other instructions given him with reference to wages or in case of an emergency should a man quit and he had to hire some other man and as to whether or not he had any instructions whether he should pay the men the scale, or what he should pay them; we leave that up to the foreman in charge with an idea of not delaying the work, and sometimes we have to pay excessive prices in order that the work will not be shut down. * * *
“Mr. Wilbur Williamson was instructed by me to take charge and complete the drilling of this well and to take control of the well and the men working on it on behalf of Cos-den and to complete it as soon as reasonably possible.”

It is apparent that Williamson was the agent- of appellant who was on the ground and directly in charge of the drilling of the well, and in our opinion the testimony of Reed discloses that in such respect he acted as the general agent of appellant, and, if he did not have actual authority to make the agreement relied upon by appellant, he neverthless, acted within the scope of his apparent authority in so doing, and the appellant became bound thereby under the settled rule in such cases.

Again, after reading all of the evidence, we are also of the opinion that in the light of all the facts and circumstances reflected by the record, and independent of Williamson’s declarations, such evidence shows prima facie, and the court was warranted in finding, that Williamson had actual authority to make such agreement. A significant circumstance in that connection is appellant’s failure to produce Wilbur Williamson as a witness, although he was still in its employ and evidently available. It seems all of its other officers and agents who knew anything about the issue were called as witnesses by appellant. It is strange it did not call its employee who had asserted that he had been expressly authorized to agree to pay these claims in order to avoid the threatened shul; down in drilling and legal action.

We are of the opinion that, independent of Williamson’s declaration to the claimants at the time of the shutdown, his authority to assume the payment of their debts is sufficiently shown by other competent evidence.

Upon this view it follows the propositions submitted show no error.

Affirmed.


author: PELPHREY, C. J.

text:
    EL PASO LAUNDRY CO., Inc., v. GONZALES.
    No. 2464.
    Court of Civil Appeals of Texas. El Paso.
    March 12, 1931.
    Rehearing Denied April 2, 1931.
    Lea, MeGrady, Thomason & Edwards, of El Paso, for appellant.
    Charles Owen and Henry T. Moore, both of El Paso, for appellee.
   PELPHREY, C. J.

This is an appeal from a judgment for damages for personal injuries to Pedro Gonzales, Jr., the sum of $1,500 being awarded to ap-pellee as next friend of Pedro Gonzales, Jr., and $1,136.50 being awarded to appellee for loss of services and medical expenses.

Appellee, Pedro Gonzales, Sr., alleged that on or about July 9, 1929, he was an employee of appellant, who was conducting a laundry business in the city of El Paso, Tex.; that for more than two years prior to said date it had been the custom of his son, Pedro Gonzales, Jr., to come upon the premises of appellant for the purpose of bringing appellee his lunch at noon and his supper in the evening and for the purpose of assisting appellee in the performance of his work and duties for appellant ; that during times when Pedro, Jr., was attending school, it had been his custom to come upon the premises after school for the purpose of assisting his father in his work; that such conduct and custom of Pedro, Jr., was well known to appellant and its officers and agents long prior to July 9, 1929; that appellant and its officers and agents had confirmed, acquiesced in, approved, and allowed' such custom and conduct of Pedro, Jr., without objection; that such conduct and custom was to the interest and accrued to the benefit of appellant and its employees; that appellant’s long acquiescence therein constituted and was an invitation to Pedro, Jr., to come upon the premises, and that by virtue thereof appellant owed Pedro, Jr., the duty not to willfully and wantonly injure him and also to use ordinary care for his safety and protection ; that on or about the date above mentioned, while Pedro, Jr., was on the premises of appellant for the purpose of bringing Pedro, Sr., his lunch and assisting him with his work, one of appellant’s employees negligently, recklessly, and carelessly opened one of appellant’s machines known as an “extractor,” while it was in operation and while Pedro, Jr., was in close proximity thereto; that Pedro, Jr., in attempting to move away from the machine slipped on a spot covered with oil and fell into the uncovered machine, crushing his right arm to such an extent as necessitated its amputation between the elbow and shoulder; that the machine was defective and dangerous, in that it leaked great quantities of oil onto the cement floor, thereby causing it to be unusually slippery; that this condition was known to appellant, its officers and employees, for a period of time prior to the date alleged; and that appellant’s employee, knowing of the slippery condition of the floor, recklessly, carelessly, and negligently uncovered the machine without warning Pedro, Jr., of his intention and without affording Pedro, Jr., an opportunity to move from the position of danger.

Appellant filed a general demurrer and -general denial, and further pleaded assumed risk on the part of Pedro, Sr.; that, under the. facts and cireumstapces surrounding his presence on the premise®, Pedro, Jr., was an employee of appellant and must recover, if at all, under the Compensation Act; . and that Pedro, Jr., was guilty of contributory negligence.

The jury, in answer to special issues, found that it was negligence for appellant’s employee to open the extractor while it was in motion and while Pedro, Jr., was standing where he was; that such negligence was a proximate cause of the injury; that Pedro, Jr., was not an employee of appellant at the time of the injury; that Pedro, Jr., did not put hie hand into the extractor voluntarily or negligently; that he was not negligent in being where he was at the time of the accident ; and that Pedro, Sr., was not negligent in permitting Pedro, Jr., to be where he was at the time of the accident.

Opinion.

Appellant contends that the court should have instructed a verdict in its favor because: (1) That the evidence showing that Pedro, Jr., was familiar with the method of operation and the attendant danger, and having been instructed how to avoid it, and that appellant’s servant having requested him to get back from the machine before it was opened, in the absence of any circumstances suggesting an impending accident, was not guilty of negligence; (2) that if such opening of the machine was negligent, it was not the proximate cause of the injury; (3) that the evidence showing that Pedro, Jr., was on the premises, in the care and custody of Pedro, Sr., acting under his direct instructions, his presence being merely tolerated by the officers of appellant, Pedro, St., having introduced his son to the dSngers, which he knew to exist, was alone responsible for the resulting injury; (4) that, under the facts, Pedro, Jr., was only a volunteer and as such could not recover; and (5) that, if not a volunteer, he was then an employee and must recover under the Workmen’s Compensation Act (Vernon’s Ann. CSv. St. art. 8306 et seq.); and that the court erred in submitting any ground of recovery on the part of Pedro, .Sr., because, with full knowledge of the dangers, he carried his son into the workroom and, as far as his rights were concerned, assumed the risk of injury to him.

The first question which we will consider is as to the status of Pedro, Jr., on the premises. If he was, as contended by appellant, a mere volunteer there, he could not recover for an injury resulting from the negligence of an employee of appellant. Mayton v. Railway, 63 Tex. 77, 51 Am. Rep. 637; Bonner & Eddy v. Bryant, 79 Tex. 540, 15 S. W. 491, 23 Am. St. Rep. 361. But if, as argued by appellee, he was an invitee, then appellant owed him the duty of exercising reasonable or ordinary care for his safety and would be liable for a breach of such duty. 45 C. J. pp. 823, 824; Texas & P. Ry. Co. v. Brown, 11 Tex. Civ. App. 503, 33 S, W. 146; Waters-Pierce Oil Co. v. Snell, 47 Tex. Civ. App. 413, 106 S. W. 170 (writ denied); Mippen-Prather Realty Co. v. Mather (Tex. Civ. App.) 207 S. W. 121; Moreman Gin Co. v. Brown (Tex. Civ. App.) 291 S. W. 946.

Appellant makes the further contention that Pedro, Jr., was, at the time of the injury, its employee and must recover, if at all, under the provisions of the Compensation Act.

The relation of master and servant exists whenever the employer retains the Tight to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done. Inasmuch as the right to control involves the power to discharge, the existence of the power to discharge is essential, and is an indi-cium of the relation. 39 C. J. pp. 35, 36, and authorities cited:

Whether the relation exists is a question of fact, and in the present ease we have a jury finding to the effect that it did not exist.

Such finding is amply supported by the evidence and is conclusive. ,

■Pedro, Sr., Pedro, Jr., and the witness Dunn all testified that for a period of about one year, Pedro, Jr., had been helping his father with his work, and that Crawford Har-vie, James Harvie, and Mr. Debruhl, appellant’s superintendent, had seen him working there.

These three persons were all used as witnesses by appellant, and none of them denied the fact that they had seen the boy there; while Crawford Harvie’s testimony shows that he knew the boy was there and that he, as general manager, did not have him under his direction and control.

It is therefore uncontroverted that for a period of about one year before he was injured, Pedro, Jr., was, with the knowledge of appellant’s officers, assisting his father with his work.

Ordinarily mere acquiescence in, or toleration of, an entry into or use of premises does not give to the person so entering the status of an invitee, but the rule is different where the owner or occupant has a beneficial interest in the purposes for which the premises are used. In the case of Bustillos v. Southwestern Portland Cement Company, 211 S. W. 929, 931, Section A of the Commission of Appeals, in reversing a decision of this court (169 S. W. 638), held that a boy who was permitted to come to the cement plant each day for the purpose of bringing a lunch to one of the owner’s employees was an invitee and that the owner owed him the duty of exercising ordinary care for his safety. The court, as a basis for its holding, has this to say:

“The errand of deceased was not only for a purpose connected with the business in which defendant was engaged, but it was in the interest and for the benefit of defendant through a necessary service to one of its employees. The defendant permitted deceased and other children to come upon its premises and knew they traveled the narrow path bordering the pit. The slightest regard for their safety would have suggested the danger in passing so near a pit beneath the surface of which was concealed a burning mass into which they might accidentally slip and fall. Under the facts alleged in the petition, defendant will not be permitted to say that deceased was a mere licensee to whom it owed no duty and for whose safety it was under no obligation to make provision.”

In the case at bar, Pedro, Jr., not only brought meals to his father, but had frequently over a period of about* a year assisted his father in doing the work of appellant. This was a benefit to appellant, and we are of the opinion that appellant, after having knowledge of the facts and having acquiesced in the presence of Pedro, Jr., and having accepted the benefits of his labor, cannot now be heard to say that he was only a volunteer.

If we are correct in holding that under the facts here Pedro, Jr., was an invitee, then did appellant fail in its duty to him as such? Jose Montelongo’e testimony, which is the most favorable to appellant, was as follows:

“Pedro was leaning against the machine when I went to open it up. My idea in opening the machine was to stop it. I didn’t make any use of the brake on it, nothing at all, just raised the lid. I shut off the power. Pedro was leaning against the machine and I told him, when I got there, to get away from there, I was going to open it. He' got away, he raised his arms from the machine. I didn’t notice whether he stepped back from the machine, I noticed he took his hands off the machine. Then I turned the other way and went to stop another machine next to this one. I was over at the other machine when he was hurt. I did not actually see him when he got his hand in the machine. When y-ou turn the power off of the machines, the machine doesn’t stop running right away, it just runs slow.er. It will gradually slow down until it stops. It will run two or three minutes, it just depends on how it has been running before. The machine has just one speed. When I came up to this machine, the boy was standing there leaning on it, like this (with arms folded); I told him to get away and at that time I opened the lid and went to the other place. It cuts the power off automatically when you raise the lid. The turning back of the lid will turn the- power off. (Referring to Ex. 1.) There is a lever back here you can stop it with without raising the lid, either way will stop it. * * * On this occasion I didn’t cut the power off before the lifting the lid, I lifted the lid and expected that to cut the power off the machine. Just as I lifted the lid, I turned to walk away, and almost immediately, I heard the boy holler. ⅜ ⅜ * At that time that machine was leaking oil around the bottom because it was burning up all the time. It would get hot and they would have to use a good deal of oil on it. The oil would run out on the floor and mix with the water on the floor. When it would mix with the water and soap it would make the floor pretty slippery,”

Pedro, Jr. testified:

“As to just how the accident happened,— well, I was leaning on the machine where I was working with my elbows like this (Illustrating), but it was closed, and then when. I was standing there Mr. Montelongo came and told me in Spanish ‘quitese,’ but he didn’t give me time to get away, he just opened it and I started to walk and I slipped down because there was oil on the floor. I got into the machine when I slipped down. * ⅜ ⅜ My arm got in the machine, I don’t know how.There was oil on the floor there, a big spot around. There was also water and soap there. Mr. Montelongo saw me standing there when he opened the machine and he said ‘quitese.’ That means to get away. He didn’t wait until I got away, he just opened the machine. He opened the machine before I got away. He did not stop the machine first, it was still running. He just told me to get away, and I started to walk and slipped down and my arm got in the machine. * * * My arm was cut off right there, just below the shoulder.”

The testimony of Debruhl shows that the machine in which Pedro, .Tr., was injured consisted bf an outside curb and inside or revolving, perforated basket which revolves at a speed of from 1,000 to 1,200 revolutions per . minute, and that the wet clothes are placed in the basket and the water is taken out of them by centrifugal force.

These facts, we think, constitute negligence, and if the opening of the extractor top was-, under the circumstances, the proximate cause of the injury, then appellant would be liable.

Appellant contends that Montelongo, when he opened the top of the extractor, could not have foreseen that the boy would slip and fall into it and thereby be injured.

There has been much discussion by the courts of this state of the question of proximate cause, but most of the divergence of opinion has occurred by reason of the application of the rule to the peculiar facts under consideration, and the same appears to be true as to the determination of the character of an intervening act which will break the causal connection between the original wrongful act and the subsequent injury.

Without attempting to particularly discuss the many decisions on these questions, we have reached the conclusion that the evidence here is sufficient to show that Montelongo, when he opened the top of the extractor, contrary to the rule against so doing, with the boy standing in such close proximity to the machine, and the floor being slippery on account of the oil, -soap and water, should have foreseen that the injury which did result, or some injury of a like character, would result from his act.

Therefore, the jury’s finding that such act was negligence and the proximate cause of the injury was correct.

We cannot agree with appellant’s proposition that the father, by taking the boy on the premises with full knowledge of the dangers, thereby assumed the risk of injury to him; nor do the cases of Blossom Oil Co. v. Poteet, 104 Tex. 230, 136 S. W. 432, 35 L. R. A. (N. S.) 449, and Magnolia Co. v. Porter (Tex. Civ. App.) 22 S.W.(2d) 695, support such contention.

In those cases the fathers were tlie sole representatives of the defendants on the premises and were in an entirely different position from that occupied by Pedro, Sr., here.

Finding no reversible error, the judgment is affirmed.


author: WALTHALL, J.

text:
    MARTIN v. HAYS et al.
    No. 2493.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 19, 1931.
    Rehearing Denied March 5, 1931.

      S. N. Russell, of El Paso, for appellant.
    Prank B. Clayton and A. W. Noreop, both of El Paso, for appellees.
   WALTHALL, J.

Appellant, Robert A. Martin, brought this suit against Mave Moloney Hays and her husband, Harry H. Hays, to recover upon a written rental contract, of date April 1, 1923, by the terms of which appellant leased to Mave Moloney Hays for a period of five years, beginning September 1st, next thereafter, a certain brick building, its location described, “to be used for the purposes of a general automobile sales and repair business and for trade in electric batteries and automobile accessories, and not otherwise.” The lease provides for a total rental of $5,-640, to be paid in. monthly installments stated, as same fall due; that lessee shall not assign the lease agreement without the written consent of lessor. The lease provides for re-entry and forfeiture of lease, at the option of lessor, on breach of any of the covenants in the lease. The lease is signed by appellant as lessor, and by appellee Mave Moloney Hays, as lessee, and witnessed but not acknowledged, and duly filed and recorded.

The petition declares upon the lease. It alleges that appellee Mave Moloney Hays occupied and used said premises and conducted therein the business for which it was leased and paid the agreed rental until February 28, 1926, when, without excuse, and with full knowledge, consent, and approval of appellee Harry H. Hays, she vacated said premises, moved her business and stock of merchandise therefrom, and refused to pay the,balance of the annual rental owing for the .remainder of the lease term, amounting to $2,940. The petition alleges that appel-lee Mave Moloney Hays executed said lease contract and rented said premises in which to conduct said, business for the improvement, protection, presentation, betterment, and furtherance of her separate property, and that said premises were necessary to the operation, management, and control of her “said business,” and that her separate property thereby becomes liable to appellant by reason of the breach of the contract for the damages suffered; that defendant Mave Mo-loney Hays, at the time of executing said contract, was and now is a married woman, and had and now has a separate estate, and that, in executing said lease and in conducting said business under the trade-name of Moloney Battery & Ignition Company, which was a trade-name for herself and her husband,. Harry H. Hays, she acted for and on behalf of her separate estate and for her said husband, each acting jointly, and that as such they were partners in said business, and that each defendant and her separate estate became liable for said rental; that Harry H. Hays was entitled to receive the rents and profits of his wife’s property and that he and his separate estate and his interest in the community estate are liable to appellant by reason of the breach of the lease contract by the wife; in the alternative, if mistaken that the business op said premises was. the separate • business and estate of the wife, then said business was community property, and the wife had the right to bind herself by the lease contract, and that her separate and community estate are liable. Appellant alleges that he succeeded in re-renting, said premises during a portion of the time and’ collected a total rental of $1,388, leaving a balance due of $1,552, for which he sues.

Appellee Mave Moloney Hays answered by general demurrer, general denial, special denial that in executing the lease or conducting the business in said premises she acted for her codefendant or as his agent; denies any partnership relation with her codefend-ant and that he was entitled to any of the use, rents, or profits in the business; denies that said business constituted or was a community property Of herself and her codefendant, and denies that as such it was committed to her care and management; denies that her said husband had or exercised any control or management over said business or that he ratified or confirmed her acts in executing said contract; alleges that long prior to the execution of the lease contract sued on, and at all times since, she was and has been a married woman, the wife of her codefendant, and that she has never had her disabilities as such removed, that at the time of her marriage to her codefendant she and her brother, James Moloney, were conducting a battery and automobile accessory business under the name of Moloney Battery & Ignition Company, and it was then and has at all times since been understood between herself and her codefendant that he was to have nothing to do with her said business, or any business conducted by her, and that the same and all profits, if any, shall constitute her separate property, and that he would not be liable for any debts or expenses incurred by her therein.

Appellee Harry H. Hays filed a separate answer, pleaded a general demurrer and general denial; denied' that he accepted, ratified, or confirmed the act of his codefendant in executing said lease contract; pleaded many of the facts as did his codefendant; alleged that the obligation sued on was not contracted for necessaries.

Appellant filed a supplemental petition, pleading exceptions, some of which the court sustained, and which parts of the petition •have been omitted. Appellant pleaded a general denial.

On the conclusion of the evidence appellant submitted a special charge instructing a verdict in his favor, which the trial court refused to give.

The case was submitted on two special issues, on which the jury answered that appellant used reasonable diligence to rent the property in question for the best price obtainable, and that the total amount of rent collected on said property from February 28, 1926, to August 31, 1928, was $1,388.

On the return of the verdict appellant filed a motion and tendered a judgment based on the verdict, which ⅛⅝ court overruled, to which appellant excepted.

The court granted a motion of Harry H. Hays for judgment in his favor, and tools under advisement a motion of Mave Moloney Hays for judgment in her favor, and later sustained her motion, and entered judgment for appellees.

The trial court made and filed findings of fact and conclusions of law as follows;

“1. All matters comprehended in the verdict are found in accordance therewith.
“2. Further, under the undisputed evidence, that by the failure of defendant, Mrs. Hays, to carry o(ut the lease contract plaintiff suffered damages in the sum of $1,775.00, including to April 18th, 1930, at 6%.
“3. Defendant, Mrs. Hays, at the time of her marriage was possessed of personal property of the value of from five hundred to a thousand dollars, which is either her own separate estate or her community property over which she had the right of management or control.
“4. The evidence failed to raise the issue as to whether the lease in question was for the benefit or preservation of her separate property or merely incidental to her right to manage and control the same. The same is true if the property be deemed community property over which she had the right of exclusive management and control.
“5. The evidence conclusively established that the lease was executed by Mrs. Hays in the prosecution of a mercantile business.”

Conclusions of law:

“1. A married woman is not bound on a lease for five years which she executed without the joinder of her husband, in order to pursue a mercantile business.
“2. On undisputed issues which are not comprehended in the verdict of the jury the judgment should be for the defendant.
“3. Ret judgment be so entered.”

Opinion.

There are a few undisputed facts, and only a few, which, in our opinion, must control the disposition to be made of this case.

At the time the lease contract in this case was entered into and for several years prior thereto, Mrs. Mave Moloney Hays was a married woman, the wife of Harry H. Hays. They were not living separate and apart from each other, but, since their marriage, they have continuously lived together as husband and wife.

Mrs. Hays has never made application under article 4626, R. C. S., to be a feme sole, nor has she had a decree of the district court entered declaring her a feme sole for any mercantile or trading purposes.

The lease contract upon which the suit is brought is for a term of years, and provides the premises “to be used for the purposes of a general automobile sales and repair business, and for trade in electric batteries and automobile accessories, and not otherwise.” Harry H. Hays did not join his wife in the execution of the lease contract, and is in no way connected with it. The lease contract is purely a lease for the use of a building for the mercantile business stated in the lease contract, and without .reference to any specified separate property of Mrs. Hays or any community property in her control.

It is clear that the cause of action stated is for undischarged rent under the terms of the lease contract, and for nothing else, and is in no sense a contract for necessaries for herself and children, and is in no sense a contract incident to her power of exclusive management, control, and disposition of her separate property, or part of the community property confided to' her control, reasonably necessary to make such power effectual.

Now a married woman had no right at commo'n law to contract, and in Texas any authority of a married woman to contract must be given by the Constitution or statute, expressly or by implication.

The undisputed facts clearly show that the cause of action asserted does not come within the provision of any statute of this state, under, or by the provision of which, a married woman, not joined by her husband, or not having her disability as a married woman removed, can be made liable. It is not necessary to refer to the many cases holding that, where the law has undertaken to define or state the purposes and methods by which a married woman may charge herself or her property, or any community property in her control, the party seeking to bind her or make her liable' must bring such cause strictly within the statute which makes her liable.

It is useless ⅞0 discuss whether a suit for rentals under a lease contract for a building to be used, as. here, for general automobile sales and repair business, and for trade in electric batteries and automobile accessories, can be construed as a contract for necessaries for the wife and children, or as a contract in the exercise of her power of exclusive management, control, and disposition of the wife’s separate property, or community property confided to her control.

One asserting the wife’s liability must show the particular facts authorizing her to create such liability, such presumption does not arise by reason of the fact that she did so contract. Speer on Law of Marital Rights (3d Ed.) par. 210, and cases cited.

The only other question we will refer to is as to the power of the trial court to render judgment for defendants after having submitted the case to'the jury on special issues, and the jury having found that appellant had used reasonable diligence to rent the property, and the amount of the rent collected. There was no controversy in the evidence on either fact, and such findings did not of themselves show liability. The court, in his findings, adopted the findings made by the jury, but evidently later concluded that defendants were not liable by reason of the law in such cases, and that the findings were immaterial. Sovereign Camp, W. O. W., v. Patton, 117 Tex. 1, 295 S. W. 913 ; First National Bank of El Paso v. International Sheep Company et al. (Tex. Civ. App.) 29 S.W.(2d) 513. Under those cases we think the record does not show reversible error on the proposition.

Finding no reversible error, the casé is affirmed.


author: GALLAGHER, O. J.

text:
    JOHNSON v. NEELEY et al.
    No. 1025.
    Court of Civil Appeals of Texas. Waco.
    March 12, 1931.
    Rehearing Denied April 2, 1931.
    Sam Dardnne and Willard McLaughlin, both of Waco, for appellant.

      Richey & Sheehy, W. L. Eason, and Sleeper, Boynton & Kendall, all of Waco, for ap-pellees.
   GALLAGHER, O. J.

S. M. Neeley sued O. S. Simon and E. A. Johnson to recover á balance duo on a promissory note executed by said Simon to E. D. Neeley and held by said S. M. Neeley under successive indorsements, and for foreclosure of a chattel mortgage given by said Simon on certain market fixtures to secure the payment of the same. S. M. Neeley alleged that said Simon sold the mortgaged property to said Johnson, and that he in turn sold the same to one Jim Jones, and that the purchaser at each of said sales assumed the payment of said note. He further alleged that said property was situated in a certain building on South Third street in Waco, Tex., known as the Square Market, and that Mrs. P. Delaney, the owner of said building, was claiming some interest in the same. He made her a party defendant in order to determine the nature and extent .of her rights, if any. The parties to this litigation will hereinafter be designated by name. Said Jones was not made a party to the suit.

Mrs. Delaney filed a cross-action, in which she alleged that she was the owner of said building; that the same had been theretofore leased by her to Alexander, Neeley & Oo. under a written lease, which had been with her consent transferred to said Simon; that said lease, at or about the time of the transfer to him, had been extended so as to expire May 31, 1929; that thereafter Simon either transferred the lease or sublet the premises to Johnson, who continued to pay rent thereon until September 1, 1928. She further alleged that, about the 1st day of April, Johnson complained that the building was out of repair, and that she then entered into an agreement with him by the terms of which the rent was reduced to the sum of $90 per month, and he obligated himself to make certain repairs on the building at his own expense and to continue to pay such rental monthly until the expiration of the lease on May 31, 1929. She further alleged that said building had never oeen surrendered to her, but had been continuously occupied by Johnson, or some one under his authority or permission, and that the stipulated rental had not been paid, for the last nine months of said period, aggregating the sum of $810, for which she asked .iudgment. She also asserted a landlord’s lien on all the property in said building, and asked for a foreclosure thereof.

Simon alleged that he sold the mortgaged property to Johnson, and that as part of the consideration therefor Johnson assumed and promised to pay the balance due on said note. He further alleged that said note was at that time held by the Citizens’ National Bank, and that the bank, in consideration of said assumption, agreed to release him from further liability thereon.

Johnson denied that he assumed the payment of the balance due on said note, and alleged affirmatively that he purchased the mortgaged property subject to the indebtedness against the same. He alleged, in defense of Mrs. Delaney’s demand for rent and foreclosure of landlord’s lien, that he never knew of the existence of a written lease on said premises, and that, if such did exist, he never assumed the same. He further alleged that said leases, if any, were all oral and void under the statute of frauds. He further alleged that, prior to September 1, 1928, he ceased to occupy the building; that Mrs. Delaney knew that said Jones was occupying the same, and accepted rent from him.

The case was tried to a jury. The jury, on the issues arising between plaintiff, S. M. Neeley, and defendant Johnson, found, in substance, that: (a) The Citizens’ National Bank owned the note at the time of the sale of the property by Simon to Johnson; (b) said bank did not agree to release Simon from liability and look alone to Johnson for the payment of said note; (c) Johnson, in the trade with Simon for the purchase of said property, agreed that he would assume the payment of said note. The jury, on the issues arising between Mrs. Delaney and Johnson, found, in substance, that: (a) Johnson agreed with W. M. Sleeper, as the representative of Mrs. Delaney, to pay rent on said building until May 31, 1929, at $90 per month; (b) said Sleeper, acting for Mrs. Delaney, did not agree with Johnson to release hi-m from liability for rent after the occupancy of said building by Jones.

The court rendered judgment on the verdict of the jury in favor of S. M. Neeley against E. A. Johnson and C. S. Simon for the sum of $711.28, the balance due on said note, with foreclosure of the chattel mortgage upon all the property described therein as against all the parties to the suit. He also rendered judgment in favor of Simon against Johnson for all sums he might be required to pay in satisfaction of Neeley’s recovery. He also rendered judgment in favor of Mrs. Delaney against Johnson for the sum of $81.0, rent on said building from September 1, 1928, until May 31,1929. Johnson has perfected an appeal from said judgment.

Opinion.

-Appellant, Johnson, presents a proposition in which he contends that the court erred in refusing to submit to the jury for determination his special requested issue as follows:

“In the trade between the defendant Simon and the defendant Johnson, did the defendant Johnson agree with the defendant Simon that he, Johnson, would purchase the property subject to the indebtedness against said property?”

The record shows without controversy that Simon executed'the note sued on and secured the same by chattel mortgage on the personal property involved herein; that said note was in the possession of the Citizens’ National Bank at the time of the trade between Simon and Johnson; that they went together to said bank and ascertained the exact balance due thereon; that Johnson purchased the property, and thereafter made several payments on said note. Plaintiff, Neeley, alleged that Johnson, as a part of the consideration for the purchase of said property from Simon, assumed and agreed' to pay said note. Pie introduced testimony in support of such allegation. Johnson denied that he assumed the payment of said note, and pleaded affirmatively that he purchased said property subject to such debt and lien. He introduced testimony in support of such allegation. The court submitted an issue based on Neeley’s theory of the transaction, in which he asked the jury to find whether Johnson agreed with Simon to assume the payment of said note. The jury answered such issue in the affirmative, and the judgment rendered by the court is based on such finding. Johnson’s theory that he purchased the property subject to the debt and lien was not submitted. Johnson sought, by requesting the special issue above recited, to have such defense submitted to the jury for determination. His contention that he was entitled to such submission is supported by many authorities, of which we cite the following: Colorado & Southern Ry. Co. v. Rowe (Tex. Com. App.) 238 S. W. 908, 909 et seq.; Montrief v. Bragg (Tex. Com. App.) 2 S.W.(2d) 276, 277, par. 1, and authorities there cited; National Cash Register Co. v. Rider (Tex. Com. App.) 24 S.W.(2d) 28, 31, par. 5; Northern Traction Co. v. Woodall (Tex. Com. App.) 299 S. W. 220, pars. 1 to 3; Robinson v. Aetna Life Ins. Co. (Tex. Com. App.) 276 S. W. 900, 902, pars. 2 and 3, and authorities there cited; Oil Belt Motor Co. v. Hinton (Tex. Civ. App.) 11 S.W.(2d) 338, 339, pars. 1 and 2. Neeley contends that the requested issue was embraced in the issue submitted by the court, inquiring whether Johnson assumed the payment of the debt sued upon. It is true that an affirmative answer to such issue involved by implication a negative finding on the issue requested. Appellant, however, was entitled to have his theory of the case submitted affirmatively for determination. The court, in Colorado & Southern Eailway Co. v. Eowe, supra, considered a similar contention. That was a suit by the surviving wife and minor children for damages for the death of the husband and father which they alleged was caused by certain negligent acts of the defendant railway company. The jury in that case found in response to issues submitted by the court that the defendant was negligent as charged, and that such negligence was the proximate cause of the death of the deceased. He refused to submit on request the issue of whether the death of the deceased resulted from an unavoidable accident. The Commission of Appeals held that the court erred in refusing to submit such issue, and in that connection said:

“If a finding that the defendant was negligent was a negative finding that there was no accident, likewise, a finding that death resulted from accident would have been a negative finding that there was no negligence. Therefore, each issue should have been submitted to the jury so that notice of both might have been given, thereby affording them equal opportunity to attract the attention and win the favor and secure the approval of the jury instead of requiring the issue of accident to stand outside with only the probability of being considered and with no greater possibility of favor than silent approval involved in the rejection of its rival.”

The same reasoning applies in this case. Each of the authorities above cited involved a similar contention and similar holding. The refusal of the trial court to submit the issue so requested was reversible error.

The remaining propositions presented by Johnson as ground for reversal of the judgment in favor of Neeley against him involve matters which will not necessarily arise in the same way, if at all, upon another trial.

Appellant Johnson submits as ground for reversal of the judgment against him in favor of Mrs. Delaney a proposition in which he asserts that the findings of the jury that •he agreed to pay rent for the premises in question until May 31, 1929, at $90 per month, and that he had never been released from such agreement, are insufficient to support such judgment. His specific contention in this connection is that the agreement so found by the jury was for the use of premises for a longer time than one year, that the same was oral and inhibited by our statute of frauds, and therefore void and unenforceable. The premises were originally let to Alexander, Neeley & Co., and the lease, with Mrs. Delaney’s consent and approval, was assigned by them to Simon, and by indorsement thereon in writing extended until May 31, 1929. While Johnson denied specifically that he assumed the obligations of said lease or that he ever even heard of the same, he paid rent from the time he began the occupancy of said building until April 1, 1928, at the-rate of $112.50 a month, as stipulated therein. The testimony shows without contradiction that' at or about that time he applied for a reduction in the monthly rental, and agreed in consideration thereof to make at his own expense certain repairs and changes in the building to better adapt the same to the needs of his particular business; that in consideration of such agreement the monthly rental was reduced to $90 a month; that he made such repairs and changes and paid the reduced rental agreed upon until September 1, 1928; that he then put Jones in possession of the building, and sold to him his fixtures and other personal property situated therein; that possession of said building was never restored nor tendered to Mrs. Delaney by him nor any one else prior to the termination of the time stipulated in such agreement. Since the undisputed • testimony shows that the agreement found by the jury to have been made was fully performed by Mrs. Delaney, and that Johnson received substantial benefits thereunder, he cannot invoke the statute as a defense to her demand for the stipulated rentals remaining unpaid. Showalter v. McDonnell, .83 Tex. 158, 159, 18 S. W. 491; Wingart v. Baxter (Tex. Civ. App.) 30 S.W.(2d) 522, 527, par. 8 (writ refused), and authorities there cited; Southern Building & Loan Ass’n v. Jackson (Tex. Civ. App.) 290 S. W. 266, 268, par. 2; Belcher v. Schmidt, 62 Tex. Civ. App. 411, 132 S. W. 833; Folmar v. Thomas (Tex. Civ. App.) 196 S. W. 861, 864, par. 3, and authorities there cited; Christopher v. Davis (Tex. Civ. App.) 284 S. W. 253, 256, par. 2 (writ refused); Dockery v. Thorne (Tex. Civ. App.) 135 S. W. 593, 597 (writ refused); Halsell v. Scurr (Tex. Civ. App.) 297 S. W. 524, 527, par. 2, and authorities there cited; Pou v. Dominion Oil Co. (Tex. Com. App.) 265 S. W. 886, 888, par. 3; Priddy v. Green (Tex. Civ. App.) 220 S. W. 243, 253, par. 17, and authorities there dited. Said proposition is overruled.

Appellant, Johnson, submits as further ground for reversal of said judgment the action of the court in refusing to submit his special reguested issue as follows:

“Did W. M. Sleeper, acting for Mrs. Delaney, accept rent from the defendant Jim Jones after the time said Johnson sold the business to the defendant Jim Jones?”

Johnson alleged, in substance, that prior to September 1, 1928, he abandoned the occupancy of said building; that thereupon said Jones occupied the same; that Mrs. Delaney knew of such occupancy, and accepted rent from said Jones, and thereby estopped herself from claiming rent from him, the said Johnson. The only testimony bearing on this contention is that Johnson got the August rent from Jones, paid the same to Sleeper, took his receipt therefor and told him at the time that Jones was occupying the premises and would pay subsequent rentals. There is no contention that Jones did so. The gist of Johnson’s contention is that a finding that Mrs. Delaney accepted rent from Jones with knowledge of the facts would release him as a matter of law. This contention is contrary to the authorities in this state and elsewhere. Cauble v. Hanson (Tex. Com. App.) 249 S. W. 175, 176 et seq., and authorities there cited; Id. (Tex. Civ. App.) 224 S. W. 922, 923 et seq. ; McCelvy v. Bell (Tex. Civ. App.) 6 S.W.(2d) 390, pars. 2 and 9; Davis v. First Nat. Bank of El Faso (Tex. Civ. App.) 258 S. W. 241, pars. 6 and 7; Gray v. Tate (Tex. Civ. App.) 251 S. W. 820, pars. 2 and 3; Goffinet v. Broome & Baldwin (Tex. Civ. App.) 208 S. W. 567, par. 4.

None of the propositions presented by Johnson as ground for reversal of the judgment against him in favor of Mrs. Delaney require or justify such action.

The judgment of the trial court in favor of Neeley against Johnson is reversed, and the cause as between said parties remanded for another trial. The judgment in favor of Mrs. Delaney against Johnson is affirmed. It is ordered that one-half the cost of prosecuting this appeal be adjudged against appellant, Johnson, and the other half against appellee Neeley.


author: LEVY, J. SEDLERS, J.

text:
    PURE OIL CO. v. WALSH-WOLDERT MOTOR CO.
    No. 3967.
    Court of Civil Appeals of Texas. Texarkana.
    March 3, 1931.
    Rehearing Denied March 12, 1931.

      Vinson, Elkins, Sweeton & Weems and Hanrp P. Abney, Jr., all of Houston, for appellant.
    Ramey, Calhoun & Marsh, of Tyler, for ap-pellee.
   LEVY, J.

(after stating the case as above).

The question presented for decision is purely that of whether or not in the’facts of the case the garnishee can be charged with liability for the indebtedness sought to be impounded. The fact was affirmatively shown that, at the time of the service of the writ of garnishment, and at the time the garnishee issued and delivered the checks in evidence, an indebtedness appeared upon the hooks of the garnishee to the credit of “Webster’s Garage, Tyler, Texas.” Inferably the indebtedness was due for wares purchased or for hiring of services by the garnishee. The fact was admitted that the indebtedness was due and was owing by the garnishee and in the amount as entered on its books: As a further fact affirmatively shown, “Webster’s Garage” was merely a name used by A. C. Webster to show that he was the owner and proprietor of the business. The name so used was not that of a corporation or a partnership. In such facts the garnishee would be regarded as in the legal position of being indebted to A. C. Webster in the amount stated, at the time of the service of the garnishment writ, although such indebtedness was entered to the credit of “Webster’s Garage, Tyler, - Texas.” A. C. Webster, as a person, would have had to maintain a suit to enforce the collection of the indebtedness, for “Webster’s Garage” was not an entity that could sue or be sued as such. As held, it is insufficient to sue an individual under a trade-name, since suit may only be main-1 tained against parties having an actual or legal existence. Davis v. Raney Auto Co. (Tex. Civ. App.) 249 S. W. 878. As further held, it is essential that the name of the person be given in the garnishment proceedings. Smith v. Wallis, 18 Tex. Civ. App. 402, 45 S. W. 820. It is on the principle that the contract was made with “a person” and “not a name” that contracts under an assumed name without complying with the statute have been upheld. Paragon Oil Co. v. Rhoades Drilling Co., 115 Tex. 149, 277 S. W. 1036; Bristol v. Oil & Gas Co. (Tex. Com. App.) 283 S. W. 163. Hence, in issuing the cheeks in favor of “Webster’s Garage,” the garnishee was, as a matter of pure law, paying over the indebtedness sought to be impounded to A. 0. Webster himself. A clear ease of liability was thus shown, for a garnishee cannot, after service, prejudice the rights of the plaintiff in the suit. It is the rule that, if the garnishee transfers, during the pendency of the garnishment, any of the indebtedness belonging to the defendant in the suit, he does so at his peril. 12 R. C. L. p. 850 § 93; 20 Cyc. 1058.

The garnishee, though, points out that it was entitled to be relieved against any liability to the plaintiff in garnishment, although it paid over the indebtedness sought to be impounded after.the service of the writ, be^ cause done in good faith and without notice or knowledge that A. C. Webster owned the “Webster’s Garage.” • It appears quite plainly from the record that in no view can the garnishee fairly claim that it was misled to do that which was done by the garnishment writ itself. It is required that the garnishment writ give accurate description of the principal defendant by correctly giving his name, and, failing in this respect, the gpr-nishee can claim to be relieved of responsibility to the plaintiff in case the plaintiff does not show that the garnishee otherwise had knowledge of the identity of the defendant. 20 Cyc. p. 1046; 12 R. C. L. p. 824, § 15. This principle has been frequently applied in garnishment eases where there was misnomer or misdescription of the defendant in the garnishment writ itself. 28 C. J. p. 264 § 360. And in such particular character of cases, as is conceded)1 the burden is placed upon the plaintiff in garnishment to show affirmatively by competent evidence that the. garnishee otherwise had notice of the identity of the defendant in the suit. This burden is so placed upon the plaintiff because “the garnishee has a legal Tight to rely upon the name of the defendant as it is given in the official writ.

But in the present case there is no pretense that in the writ of garnishment there was misdescription or misnomer of the defendant. The writ of garnishment truly and dorrectly stated the name of the defendant in the suit as A. C. Webster. The plaintiff in the garnishment otherwise complied with every legal requirement of the statute in the execution and issuance of the affidavit and the writ,of garnishment. Plaintiff was not legally .authorized nor required to sue or run the garnishment writ in the name of “Webster's Garage,” because the name was not an entity legally capable of suing or being sued. Davis v. Raney Auto Co., supra. And the duty did not devolve upon plaintiff to specially allege in the affidavit or give information to the garnishee that “Webster’s Garage” was owned by A. C. Webster.-. It was not required of the plaintiff in garnishment to state ⅛ the affidavit or in the garnishment writ the nature and the place of business or the .defendant’s occupation, for the garnishment statute does not so provide. In this view, the garnishment writ cannot be regarded as having in any wise operated to cause the ignorance of fact claimed by the garnishee.

The question of garnishee’s relief from liability must then depend upon, and be determined by, the test of whether or not it ought fairly, under all the evidence, to have known or supposed that A. C. Webster owned the “Webster’s Garage.” The fact must be kept in mind that the garnishee owed the debt, and, inferably, for purchase of wares or hiring of services. Redress must be obtained, if at all, on the distinct equitable ground of mistake. This became an affirmative defense in behalf of the garnishee, for it is the garnishee who is claiming the estop-pel through ignorance of facts by it.

The facts show that A. O. Webster did not comply with the assumed name statute of the state. That fact that A. O. Webster had not complied with the statute regulating trade-names may be regarded as merely a circumstance bearing upon the garnishee’s ignorance of the identity of the defendant, and may not he regarded as at all events absolutely relieving the garnishee from liability. Quoting from Gay v. Seibold, 97 N. Y. 472, 49 Am. Rep. 533:

“The purpose of the statute was obviously to protect persons -giving credit to the fictitious firm on the faith of the fictitious designation. It could have had no other purpose. It was not needed to protect those who obtained credit from such a firm.” See Rutkowsky v. Bozza, 77 N. J. Law, 724, 73 A. 502.

It was further affirmatively shown that “A. O. Webster” indorsed the checks drawn payable to “Webster’s Garage.” Although the checks were signed and delivered shortly after the service of the writ, yet the fact that A. C. Webster indorsed, cashed, and collected the same could, as collateral evidence, be looked to to determine whether-the garnishee, before issuing the cheeks, could likewise have known, or by mere inquiry could have found out, that “Webster’s Garage” was owned by A. 0. Webster. His name was associated with his business, and was a descriptive use of it to show he was proprietor of the business. The garnishee at the time of incurring the debt, either by purchasing the wares or of hiring the services, presumably had the opportunity of learning the true state of affairs and of knowing who granted the credit.

There is no pretense of fraud being practiced upon garnishee by the defendant. Thus the case is left of the garnishee’s having entered the credit on its books in the name of “Webster’s Garage” merely because that name was used to describe the proprietor of the business and to have paid out such indebtedness merely because its books contained the entry mentioned.

There is involved in the trial court’s conclusion that the garnishee1 could have known that the title to the indebtedness was in A. C. Webster, and that such indebtedness was due to a person and not a name, by the exercise of ordinary care and diligence. In other words, there is involved in the finding that the ignorance of the fact claimed by the appellee was not due to the fault of the plaintiff, or the writ of garnishment, or to the defendant, but to the garnishee. It is believed that there is evidence sufficient to support that finding of fact, and that this court cannot disturb that conclusion.

The above conclusion is not in conflict with the ease of Magnolia Petroleum Co. v. Bank (Tex. Civ. App.) 227 S. W. 363. In that case the decision was rested entirely upon the point that there was “the affirmative finding of the court that the bank not only was ‘not cognizant’ of Dewey’s ownership of the fund, but that, ‘on the contrary,’ the bank’s information was that Dewey ‘had no interest in said funds or deposits.’ ” The appellate court merely refused to disturb the finding of fact made by the trial court.

The judgment is affirmed.

SEDLERS, J.

It is after very careful consideration that I find myself unable to agree, with the conclusions reached by the majority of the court in the disposition of this ease, and I respectfully enter my dissent.

The point with which I am unable to agree with the majority of the court is that the pleadings and evidence in this garnishment proceedings are sufficient to sustain the judgment against the garnishee. It is my opinion that they are not.

The facts are that the original suit by the plaintiff, to which this is an ancillary proceeding, was brought in and judgment taken in the name of A. O. Webster. The garnishment proceedings were sued out at the time the original suit was filed, to wit, February 22, 1930. And neither the affidavit, bond, nor writ of garnishment contained any information that A. O. Webster owned “Webster’s Garage.” There was no certificate of record showing who owned “Webster’s Garage,” as required by article 5924, R. C. S. 1925. The garnishee answered that it did not owe A. O. Webster anything, and paid Webster’s Garage of Tyler, Tex., by check mailed at Fort Worth, Tex., the amount it was indebted bo it. This indebtedness was paid about March 1, 1930, and it was on June 27th after this that plaintiff filed its controverting affidavit to garnishee’s answer, in which garnishee received its first information that A. C. Webster was the owner of Webster’s Garage.

The rule is -stated in 20 C. J. p. 265, § 361, as follows:

“Where at the time of the service of the writ the garnishee had in his possession funds or property belonging in fact to the defendant but the garnishee was ignorant of the right of defendant thereto, he cannot be held liable where in good faith he parts with such funds or property after the service of the writ, but if the garnishee has actual knowledge, or has, knowledge of facts putting him upon notice, that the title to the property is in defendant, although apparently in another, he cannot be excused because of failure to retain it.”

There is nothing in the record to indicate in the remotest way that could be construed that the garnishee acted other than in good faith when it paid “Webster’s Garage.” And this is not questioned by plaintiff.

Our garnishment statutes are given a very strict construction, as will he shown by a quotation from the case of Willis v. Hyman, 22 Tex. 268:

“There can he no good reason why the same strictness should not he required in respect to garnishments, as in other cases of attachment ; for garnishments are but a species of attachment. The writ of garnishment brings into court strangers to the judgment, or to the original suit, as the case may be, and subjects them to much inconvenience and hazard. It often happens, or to say the least, it sometimes happens, that garnishees are obliged to pay twice, because the court is not informed of all the facts in the particular case. For these reasons, proceedings against garnishees ought not to be sustained, unless they are in strict conformity with the requirements of the law.”

It will be noticed that our statutes do not require the name of the defendant to be given in the affidavit for a writ of garnishment, yet it has been held in the case of Barker v. Security State Bank of Bowie (Tex. Civ. App.) 248 S. W. 478, that:

“An affidavit is fatally defective for failure to name all the defendants, since it is not required that the pleadings in the original suit be served upon the garnishee, nor is he required to resort to the original pleadings or citations to ascertain the names of all defendants, and, in the absence of such information, he would be unable to answer as required by articles 274 and 276.”

It appears clear to the writer that the construction which our courts have given the garnishment 'statutes is that the plaintiff must allege in the affidavit for garnishment all of the information which a garnishee needs in order to make true answers to the writ of garnishment, as the garnishee is required under the law to do, and that the garnishee is not required to resort to any other source for such information.

In the case.of Magnolia Petroleum Co. v. Lockwood National Bank, 227 S. W. 363, 364, where the facts are almost identical with the case at hand, the San Antonio Court of Civil Appeals held that the burden was on the plaintiff to show garnishee knew the account in another name belonged to debtor. In this case the Magnolia Petroleum Company recovered a judgment against C. M. Dewey and sued out a writ of garnishment against the Lockwood National Bank to discover and impound funds belonging to one C. M. Dewey. When the writ was served on the bank, there was on deposit in the bank a sum in exce-s of plaintiff’s claim to the credit of the “Dewey Auto Livery Company”; that this account, as a matter of fact, belonged to C. M. Dewey, but that the bank was not cognizant of Dewey’s ownership of the funds; that, at the time of the service 'Of the writ upon the bank, and at the time the latter was required to answer, the plaintiff knew, or claimed to know, that Dewey was the owner of the account in dispute but never at any time communicated this knowledge to the garnishee. The following quotation is from the opinion of the court in this ease:

“Appellant, as plaintiff, seems to have known, at the time it had the bank served with the writ of garnishment, that the Dewey Auto Livery Company account, as a matter of fact, belonged to Dewey. But appellant deliberately withheld this information from appellee for more than 2½ years, and until long- after the account was exhausted. Now, if appellant, when it had appellee served with a writ, had communicated this information to appellee, it could very properly complain if, in the face of this information, appellee had allowed these funds to be withdrawn without first endeavoring in good faith to ascertain the true ownership thereof. But it does not lie in the mouth of appellant to complain of appellee for paying out the funds for want of the very information it possessed, but withheld from appellee.”

Certainly if the plaintiff in the case at hand had given the garnishee the information that A. C. Webster owned “Webster’s Garage,” this garnishee could not be heard to complain, but, the plaintiff having failed to do so for several months after the garnishee in good faith paid out the funds which it owed Webster’s Garage, and garnishee not having notice as required by article 5924, R. C. S. 1925, which article has been construed by the Supreme Court of this state in the case of Paragon Oil Syndicate v. Rhoades Drilling Co., 115 Tex. 149, 277 S. W. 1036, to be for the benefit of the public dealing with businesses run under assumed names, plaintiff should not be permitted in this case to recover and thereby force the garnishee to pay the same debt twice.

• For the reasons stated, the writer is of the opinion that the judgment of the trial court should be reversed and the judgment here entered for appellee.