author: HALL, C. J;

text:
    QUICK et al. v. PEVEHOUSE.
    No. 3643.
    Court of Civil Appeals of Texas. Amarillo.
    July 1, 1931.
    Rehearing Denied Sept. 9, 1931.
    Duglas & Bpiller and Benjamin Kucera, all of Lubbock, for appellants.
    Wm. H. Evans, of Lubbock, for appellee.
   HALL, C. J;

Pevehouse brought this suit against Quick and W. K. Dickinson, Sr., to recover an amount alleged to be due him for certain feedstuff which he sold to the defendants.

It is alleged that at the time of the sale the appellant Quick gave plaintiff his individual check for $268.79, and that said check, upon presentation, was dishonored. He alleges that at the time of the sale the defendants Quick and Dickinson were doing business under the name of Yellow House Mills. That such name was used by the Lubbock Grain & Coal Cpmpany, a corporation, without authority under their charter to usé such name. That plaintiff did not deal with the Lubbock Grain & Coal Company, which he knew to be in failing condition, but dealt with defendants as a firm styled Yellow House Mills. That the defendant Quick represented to plaintiff at the time of the sale that he ,(plaintiff) was not dealing with the Lubbock Grain & Coal Company, but with a new firm, Yellow House Mills, and that such sale was made relying upon such representations. Plaintiff sues to recover from Quick upon the check and alleges that Dickinson is liable for the amount of the feedstuff. He charges that both defendants are liable for the false and fraudulent representations made by Quick and relied upon by plaintiff and which representations were made with the knowledge and consent of Dickinson. It is further alleged that the Lubbock Grain & Coal Company transacted business under the name of Yellow House Mills contrary to law and the provisions of its charter, and that both defendants knew of such operation under such name, and that plaintiff dealt with them under the name of Yellow House'Mills and not with the corporation, the Lubbock Grain & Coal Company, of which corporation the defendants were officers and directors. That they had been such officers and directors for a number of years, purchasing feed during all of such time; that shortly prior to the date of this sale the corporation was unable to meet its current bills, if not, in fact, insolvent; and that during that time the defendants Quick and Dickinson commenced to operate under the name of Yellow House Mills at the place of business of the Lubbock Grain & Coal Company. That said corporation had not lawfully changed its name to Yellow House Mills. He further alleges that at the time of the sale Quick represented that the resources of W. H. Dickinson, Sr., were behind the operation of the Yellow House Mills, and that such' representations were made with the intent to induce and did induce the plaintiff to sell tlie feed and wait a few days for his check in payment therefor. That Dickinson knew that Quick was representing to the public that he (Dickinson) was behind and stood good for the debts of the Yellow House Mills, and Quick further represented ■to plaintiff that Dickinson was financially backing the Yellow House Mills and the purchase of grain by Quick. Plaintiff prays for a judgment against both -defendants and each of them for the purchase price of the feed.

The defendants filed separate answers, which consist of general demurrers and various special exceptions, and at the conclusion of the introduction of testimony, each defendant moved for an instructed verdict in his favor.

The court, however, submitted the case to the jury upon two special issues, in response to which the jury found as follows:

“1. We find from a preponderance of the evidence that the Lubbock Grain & Coal Go. was doing business in the name of Yellow House Mills at the time of the sale of the feed in question by plaintiff Pevehouse.
“2. We find that the plaintiff Pevehouse did not know at the time of the sale of the feed in question that he was dealing with the Lubbock Grain & Coal Co.”

Based upon the verdict, the court rendered judgment against both defendants, who have filed separate supersedeas bonds.

In behalf of Dickinson it is contended that the testimony in this case shows that the obligation sued upon was that of a corporation in which Dickinson was an officer, stockholder, and director, and that there is no competent evidence to show that the name of the corporation had been changed without authority of law so as to make Dickinson personally liable, and even though it had been changed without legal authority, the evidence does, not show personal liability upon the part of Dickinson because of such change, and the court should have directed a verdict for Dickinson. It is further urged that the statement made by Quick to the plaintiff that the Lubbock Grain & Coal Company had gone out of business, and that the Yellow House Mills was a new company composed of Dickinson and others, and that Dickinson had the controlling interest in the Yellow House Mills, was hearsay and not binding upon Dickinson, since it was not shown that Quick was his agent or authorized to make the statement.

The testimony is sufficient to sustain the finding of the jury upon both of the issues submitted by the court.

As stated above, the suit as against Quick is based in part upon the individual check which Quick gave to Pevehouse. It is not denied that this check represented the purchase price of the feedstuff which Peve-house sold to Quick and that the debt had never been paid. The check is evidence of a bona fide indebtedness and is sufficient to support a judgment against Quick, who signed it individually.

The testimony of Pevehouse with reference to the representations made by Quick to the effect that a new business, operated as the Yellow House Mills, was the purchaser of the feedstuff and that he did not sell to the Lubbock Grain & Coal Company, seems to have been accepted by the jury. 1-Ie testified that he knew the Lubbock Grain & Coal Company was not solvent. The record shows that he was correct in his surmise. He further stated that in making the sale he relied upon Quick’s statement that it was sold to a new business, operated under the name of Yellow House.Mills. The testimony of Dickinson is to the effect that there was a new business being operated under that name. Obtaining the feedstuff under these representations and the execution of the check is, in effect, such a fraud as to render Quick personally liable, without regard to whether the corporate name had been changed, and the judgment as to him must be affirmed.

The evidence is uncontradicted to the effect that the original corporation had never been dissolved and further shows that Dickinson and his son Byron, together with Quick, owned all of its original stock. In 1928 they sold $20,000 of the $30,000 capital stock of the original corporation to West and his associates, reserving a lien upon the property to secure the debt. West then became general manager of the business and operated it as such for six or seven months, when the directors, becoming dissatisfied with the manner in which he was conducting it, elected Quick as general manager, and according to Dickinson’s testimony, West became a traveling salesman and was supposed to be selling the products of the mill. Dickinson says he remained president of the corporation until it became bankrupt, and according to his testimony the Yellow House Mills was a new and separate business, operated by the stockholders of the original corporation, the Lubbock Grain & Coal Company. He testified: “The business was carried on at the same place down there after Mr. West took over the management. Mr. West took a new name for the products of the mill after he took it over. After he taken it over some ninety days, we built a feed mill for the purpose of grinding and mixing feed for the country here and the question came up at that time as- to the name of it and it was discussed and we named it Yellow House Mills and that name was put on the sacks. The new company opened a new bank account at the Citizens National Bank and opened it under the name of Lubbock Grain & Coal Co. That account was afterwards transferred to the First National Bank and the checking account over then? was carried in the Yellow House Mills and was Gamed in that name because we did not want to get tlie old business confused with the neio, there were so many checks. The old business I refer to was the business Byron, Mr. Quick and myself were closing out. * ⅜ ⅝ in jUI1e, 1928, when this transfer and manipulation of stock was made, I continued to be president. I remained president. They elected me president when the change was made and I remained president up until the time of the bankruptcy. Mr. Quick was keeping the money of the corporation in the First National Bank. He was put in charge of the affairs of the business (after West ceased to be manager) and as far as I knew he had the right to place the money in whatever name he saw fit in the bank. As far as I was concerned, he had charge of it and handled it as he pleased. As far as I was personally concerned, it was all right for him to put it in his own bank account. I had no objection and I never knew of the board having any. I can speak for the board one way, I was present at very nearly all of them and I heard of no objections as to how he handled it. We knew he was handling the account in the name of the Yelloio Souse Mills."

J. D. Shaw, who kept the accounts of the Avalanche-Journal, testified that he had an account for advertising in the name of Yellow House Mills during 1929 and that the account was paid by checks signed Yellow House Mills.

It is clear from this testimony that there was a new business carried on separate and apart from the original corporation, even though the latter had not been dissolved. Dickinson calls it “the new company,” and says it op'ened “a new bank account,” which was afterwards transferred to another bank where the cheeking account of the new business was carried on in the name of the Yellow House Mills. He says that the purpose of having separate bank accounts was to avoid confusing the old business with the new. He explains that the old business was the original corporation owned by him, his son, and Quick, which they were “closing out.” It further appears from the testimony of both Quick and Dickinson, Sr., that Quick deposited the funds of the new company to the credit of his individual banking account. If it was not a new company, then why were the funds not deposited in the name of the Lubbock Grain & Coal Company? The only reasonable inference from this unusual proceeding is that they realized that the old company was insolvent and that bankruptcy was impending and they were endeavoring to separate the new business from the old, so that they could close out the old business, if possible, or to save the new business and its funds from the wreckage incident to the bankruptcy of the old. He says that they knew Quick was handling the account in the name of the Yellow House Mills.

The appellants insist that based upon these facts, under the case of Robinson v. First National Bank of Marietta, 98 Tex. 184, 82 S.W. 505, 507, there was no partnership, and therefore Dickinson could not be bound by Quick’s statements and conduct.

In order to recover against Dickinson, plaintiff alleged that a partnership existed between Dickinson, Quick, and other parties, and in our opinion the legal effect of the jury’s finding in response to the first issue is that the Yellow House Mills was a partnership operated by the defendants.

We think the Robinson Case is authority in support of the judgment against Dickinson. It appears that Robinson, Hoskins, Pierce, and Saxon were conducting a mercantile business in Cooke county under the corporate name of Saxon Mercantile Company. That the company had financial troubles and the business was transferred to Marietta, Okl., where Saxon and Pierce continued the business under the name of Saxon, Pierce & Co., but which it appears was not duly incorporated. Saxon, Pierce & Co. negotiated the loan from the appellee bank and represented that Robinson and Hoskins were interested in the business, and in a suit upon the note wherein the bank sought to hold Robinson and Hoskins, judgment was rendered against all of the defendants. The case reached the Supreme Court, where the judgments of both the trial court and the Court of Civil Appeals (79 S. W. 103) were reversed, as to Robinson and Hoskins. It appeared that Saxon and Pierce had been discharged in bankruptcy before the judgment was rendered. Counsel for the defendants requested the court to instruct the jury as follows: “If you find it was. understood between the plaintiff’s cashier and J. A. Saxon and B. F. Pierce at the time the loan was made for which the note herein sued on was given, that said note was being made to a corporation and that the name of Saxon, Pierce & Company was another name for J. A. Saxon Mercantile Co., and that credit was extended to such corporation, you will find for defendants Robinson and Hoskins.” The Supreme Court said that this was a correct charge. Manifestly for the reason that a loan to a corporation imposed no 'individual liability upon the stockholders. The trial court also gave the following instructions: “If you believe from the evidence that prior to the execution of the note herein sued, the defendants Robinson, Hoskins, Saxon and Pierce agreed to cease doing business in the name of J. A. Saxon Mercantile Company and to do business in the name of Saxon, Pierce & Company for their mutual benefit, this in law would make them all partners whether they intended to become partners or not, and if you so find, you will find for the plaintiff against the defendants Robinson and Hoskins, and in favor of the defendants Saxon and Pierce.” The instruction to find for Saxon and Pierce was, of course, based upon the fact that they had been discharged in bankruptcy. The Supreme Court approved this charge, thus clearly holding that if the business was conducted in the name of Saxon, Pierce & Go., they became partners whether they intended that result or not, and Robinson and Hoskins would be liable as members of the partnership ; but the court further said they dpubted whether the instructions should have been given on account of the testimony which failed to show that Robinson and Hoskins were parties to the loan, and said: “If the stockholders of the corporation agreed to cease doing business as a corporation, and to carry it on as a partnership under the name of Saxon, Pierce & Go., all would be bound for the debt.”

According to the testimony of Dickinson, a similar condition exists in the instant case. The old corporation had not been dissolved; but the three original stockholders were trying to wind it up and pay off its debts in order to avoid bankruptcy. They were keeping its business transactions and its bank account separate from the new company. The new company was being operated in a rather unusual manner, in that its funds were deposited to the individual account of Quick and its checks drawn in the name of Yellow House Mills were, it seems, paid out of that account. If Dickinson, Sr., had no knowledge of how the business was being conducted, he would have occupied the position of Robinson and Hoskins in the Robinson case; but he says he was the president of the old corporation and knew how the account of the Yellow House Mills was being handled. According to his testimony, the Yellow House Mills was, in law, a partnership and under the general rule that each partner is an agent of the firm, authorized to represent it in the business for which it was organized, judgment was properly rendered against Dickinson.

The appellee testified that he saw an advertisement in the Avalanche-Journal, as follows: “Wanted. Good Hygeria Bundles. Will Pay Top Prices. Yellow House Mills, owned and operated by Dubboek Grain & Goal Co., ’phone 194.”

Appellants insist that because of the information received from this advertisement, he ’phoned and called upon Quick personally, and is estopped from asserting that he was led to believe that the Yellow House Mills was a different company or concern from the said Lubbock Grain & Coal Company. We confess our inability to see any element of es-toppel in it. He said that he did not rely on the advertisement, but it led him to ’phone, and when he called he recognized the voice of Quick and questioned him as to who the Yellow House Mills were and that Quick told him to “come over,” and he went and discussed the matter with him, learning that' the Yellow House Mills was a different company. There is no merit in this contention.

While it is true that plaintiff, as one ground of his recovery, alleged that the defendants had changed the name of the Lubbock Grain & Goal Company without complying with the legal prerequisites in doing so and thereby became partners, proof of such allegation was not necessary to entitle him to recover, if, in fact, a new business concern was organized, even by stockholders in the original corporation. It appears from Quick’s testimony that after the organization of the Yellow House Mills partnership, no business, so far as the record shows, was conducted by or in the name of the original corporation. He testified: “The purchase of this grain from the plaintiff in this case and the money for the sale of that and the operation of the purchase and sale of that grain was done under the division of the company as Yellow House Mills. The Yellow House Mills as such hired employees. Lubbock Grain & Goal Co. did not at that time, as such company, hire employees. There were no employees of the Lubbock Grain & Coal Co., as such at that time.”

So far as the plaintiff’s right to recover is concerned, it is immaterial whether the name of the original corporation was changed or whether, in fact, there ever existed any such corporation. At the time of the transaction which forms the basis of this suit, the old corporation had ceased to function but the stockholders had put in a feed mill and were doing business under another name, and plaintiff dealt only with the new company after having been informed by Quick that such a company existed.

We think a proper judgmert has been entered against both defendants, and it is affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    J. M. RADFORD GROCERY CO. v. McKEAN.
    No. 12435.
    Court of Civil Appeals of Texas. Fort Worth.
    March 7, 1931.
    Rehearing Denied April 18, 1931.
    W. E. Lessing, of Abilene, for appellant.
    Elton M. Hyder and Chas. L. Terry, both of Fort Worth, for appellee.
   DUNKLIN, J.

By this appeal the J. M. Radford Grocery Company seeks a reversal of a judgment rendered against it as garnishee in favor of R. W. McKean, plaintiff. .

A writ of garnishment was sued out by the plaintiff upon a judgment he had theretofore recovered against I. C. Tinsley. The garnishee filed an answer to the writ admitting an indebtedness to Tinsley of $660 at the time the writ was served, and the judgment was rendered upon the admission so made; plaintiff having filed no reply controverting the facts alleged in the answer.

That portion of the garnishee’s answer which was made the basis of the judgment reads as follows:

“The said I. C. Tinsley is in the employ of this garnishee rendering personal service to garnishee and as wages and compensation for such service, this garnishee agreed to pay the said I. C. Tinsley the sum of $- per month, and in the event the said I, C. Tinsley remained in the employ of garnishee and continued to render such services for a period of one year from the date of the commencement of such employment to pay the said I. C. Tinsley the further compensation to be based on a certain per cent of the sales made by said I. C. Tinsley above a certain minimum amount of sale required by this garnishee. That at the time of the service of said writ of garnishment, this garnishee was indebted to the said I. C. Tinsley, on account of such additional consideration the sum of $660.00.
“That all of said amount so admitted to be due said I. C. Tinsley is compensation and wages due by garnishee for personal services as herein set out and is therefore exempt to said I. C. Tinsley by reason of the constitution of the State of Texas, and the laws in pursuance thereof made and provided.”

The only question presented here is whether or not the amount which the garnishee owed to Tinsley was due him as current wages for personal services within the meaning of article 16, § 28, of the constitution, and articles 3832, 3835, and 4099, Revised Civil Statutes of 1925. In appellee’s brief the only contention made as to that question is shown in the following counter proposition: “The answer of garnishee having shown that the defendant Tinsley was in its employ as a salesman earning and being paid a definite salary, monthly as it accrued; and that the fund impounded was derived by way of bonus or commission, contingent upon continued employment,- coupled with a certain minimum gross sales and to be determined at the end of the year; such impounded fund was no part of the current wages paid to defendant within the meaning of article 4099, R. S. 1925 and article 16, § 28 of the Constitution of the State of Texas.”

Apparently the trial court’s judgment was based upon that theory. In 11 Ruling Case Law, p. 522, par. 34, it was said that: “An exemption of wages is intended to include what an employer owes his employee for personal services rendered in that relation, and it matters not whether it is called wages or salary.”

And again on page 524, par. 36, it is said: “Within the meaning of an exemption statute current wages are such compensation for personal services as are to be paid periodically or from time to time, as the services are rendered; as where the services1 are to be paid for by the hour, day, week, month or year, or where the compensation for service is measured by the time of its continuance.”

See, also, 17 Corpus Juris, p. 410, and 25 Corpus Juris, p. 65.

Practically all the authorities are in' accord with those definitions of current wages. See Lee v. Emerson-Brantingham Implement Co. (Tex. Civ. App.) 222 S. W. 283, and authorities there cited.

It is also the rule according to all authorities that exemption statutes, especially those in favor of laborers, should be liberally construed, to the end that the laborer should be allowed means of obtaining a livelihood, and thus prevent him and his family from becoming a charge on the public; although the construction given to the statutes must be consistent with a true and just interpretation of their terms in view of the purposes for which they were enacted. 11 R. C. L. p. 492.

Under the text noted, we think it clear that the amount due I. O. Tinsley at the end of the year as additional consideration for his services were current wages for personal services, within the meaning of our Constitution and statutes referred, to above.

In Ciarla v. Solvay Process Co., 172 N. Y. S. 426, 184 App. Div. 629, it was held that a bonus paid to an employee in addition to his regular wages to encourage efficiency and economy came within the meaning of current wages. Other authorities might be cited showing- that compensation paid by way of commissions on sales made by traveling salesmen are also included within the meaning of current wages. In re Shapiro (D. C.) 300 F. 566; Hamberger v. Marcus, 157 Pa. 133, 27 A. 681, 37 Am. St. Rep. 719; Lee v. Emerson-Brantingham Implement Co. (Tex. Civ. App.) 222 S. W. 283.

In Bell v. Indian Live-Stock Co., 11 S. W. 344, 3 L. R. A. 642, our Supreme Court held that wages voluntarily left in the possession of the employer after becoming due cease to be current wages, and therefore are not exempt under our statutes.

In this connection it is to be noted that, while the answer of the garnishee contains a statement of the amount due Tinsley as compensation in addition to the monthly salary paid, there is no allegation as to when it became due; in other words, according to the answer, it became due at the end of a one-year period with no statement as to when that year expired. But there was no exception addressed to that pleading setting up the exemption, nor was there any controverting plea filed by the plaintiff:. And we believe it to be inferred that the court rendered judgment against the garnishee upon the theory advanced by appellee in his brief, set out in his proposition copied above, that the compensation admitted to be due Tinsley was not current wages because it was additional to the regular monthly wages paid to him.

Accordingly, we have reached the conclusion that the judgment should be reversed and the cause remanded; and it is so ordered. And in this connection we deem it proper to suggest that the .lack of clarity in the garnishee’s answer, noted above, should be remedied by proper pleadings,' and that, in order for any judgment against the garnishee to be binding upon I. O. Tinsley as a credit on any sum the garnishee may owe him, as was decreed by the trial court, it will be necessary for him to be made a party to t’he suit. Missouri Pac. Ry. v. Whipsker, 77 Tex. 14, 13 S. W. 639, 8 L. R. A. 321, 19 Am. St. Rep. 734; Smith v. Security Investment Co. (Tex. Civ. App.) 16 S.W.(2d) 926.


author: BLAIR, J.

text:
    EMERGENCY CLINIC AND HOSPITAL et al. v. CONTINENTAL INV. CO.
    No. 7609.
    Court of Civil Appeals of Texas. Austin.
    July 1, 1931.
    Rehearing Denied July 25, 1931.

      King, Wood .& Morrow and W. H. Graham, all of Houston, for appellants.
    Roberts, Monteith, Baring & Wilson, of Houston, for appellee.
   BLAIR, J.

Appellee sued appellants upon a paving certificate issued by the city of Houston in the principal sum of $700, together with 7 per cent, interest, for reasonable attorney’s fees, and for foreclosure of a statutory lien on the property involved securing the paving indebtedness. Appellants answered by a general demurrer, which was overruled, and a general denial. At the conclusion of the evidence the court instructed the jury as follows:

“The judgment in this case will be for the plaintiff for the amount sued for, which judgment the court will render.”
' “There will be submitted to you the following special issue: ‘What do you find from a preponderance of the evidence, would be a reasonable fee for the attorneys for the plaintiff in filing and prosecuting this suit?’ ”
The jury answered $175.0Q, and judgment was accordingly rendered for appellee against appellants for the total sum of $932.99, and for foreclosure of the statutory lien on the property involved; hence this appeal.

Appellants contend that appellee waived its right to a judgment for principal and interest due on the paving certificate, and for foreclosure of any statutory lien securing the indebtedness, because appellee failed to request the court to submit special issues for the jury to determine the amount of principal and interest due, and whether there existed a statutory lien on the property with right of foreclosure. The contention is not sustained because these issues were undisputed and uncontroverted.

The paving certificate sued upon was for $700, with interest from its date at 7 per cent, per annum; and it also evidenced the statutory lien securing the indebtedness. Then, too, the appeal is prosecuted without a statement of facts and the judgment is presumed to have been supported by the undisputed or uncontroverted evidence.

In the case of American Surety Co. v. Hill County, 267 S. W. 265, 268, the Commission of Appeals propounded the following question: “When the trial court renders, under the facts, the only judgment that could be rendered, is it error for the trial court to render such judgment when the case is tried by a jury, without a verdict from the jury upon which to base such judgment?” After reviewing the authorities on the question, it was answered in the negative. In like manner the question was again disposed of by the Commission of Appeals in the case of Jones v. Hughes, 277 S. W. 624; and the rule was followed in the recent cases of Vaughn v. Bank (Tex. Civ. App.) 27 S.W.(2d) 1112; Livezey v. Putnam Supply Co. (Tex. Civ. App.) 30 S.W.(2d) 905.

The issue as to attorney’s fee was submitted because the amount of the fee was not liquidated, and the question was therefore for the jury. It was the only issue, before the court that was in dispute, and an instructed verdict on the issues of the amount of the principal and interest due on the paving certificate, and that the statutory lien existed subject to foreclosure was unnecessary, because these issues were not disputed and no other finding or conclusion could have been reached on them.

Nor do we sustain the contention of appellants that appellee’s petition was not good as against their general demurrer, for the following reasons:

(a) That it did not allege that the city had made any appropriation to pay its share of the cost of the improvement involved in this suit as required by the city charter.

(b) That it did not allege that before letting the contract for the improvements the proper certificate was made showing the money required had not been appropriated for other purposes, as required by the city charter.

(c) That it did not allege that before letting the contract for the improvements, the city advertised for bids, etc., as required by the city charter.

Neither contention is sustained because appellee’s first amended petition contained allegations which in terms or by reasonable intendment were sufficient to admit evidence of every fact essential, to be proved in support of the judgment rendered, and the petition was therefore good as against the general demurrer. In brief, it alleged a compliance by the city of Houston with all laws and prerequisites to making the paving contract; the making of valid assessments ; the power to make the assessments, stating the authority; specific and general allegations that all laws had been complied with with respect to fixing a valid assessment lien for street improvements against the ^.butting property involved, as well as fixing the personal liability of appellants for the costs thereof. The petition also alleged the issuance of the paving certificate sued upon, which contained similar allegations to the above; that it was due and unpaid although demand had been made for payment; and that appellee owned the certificate. The petition was therefore not subject to the general demurrer, but was sufficient to admit proof of the amount of principal due on the certificate, and of the existence of the statutory lien, and the right of foreclosure of same in satisfaction of the indebtedness. Acts 40th Leg. (1927), 1st Called Sess., c. 106, § 6 (Vernon’s Ann. Civ. St-, art. 1105b, § 6); article 4a, Charter City of Houston, Sp. Acts 32nd Leg. (1911), 1st Called Sess., c. 23; Baker v. Clayton, 46 Tex. Civ. App. 384, 103 S. W. 197; Ballard v. Farmers’ & Merchants’ Bank (Tex. Civ. App.) 250 S. W. 719; Boaz v. Ferrell (Tex. Civ. App.) 152 S. W. 200; Bolt v. State Savings Bank of Manchester, Iowa, (Tex. Civ. App.) 179 S. W. 1119; Colorado Canal Co. v. Sims (Tex. Civ. App.) 82 S. W. 531; Drummond v. Allen Nat. Bank (Tex. Civ. App.) 152 S. W. 739; Jones v. El Paso Bitulithic Co. (Tex. Civ. App.) 246 S. W. 749; Massie v. City of Ft. Worth (Tex. Civ. App.) 262 S. W. 837; Vernon’s Revised Civil Statutes, art. 1105b, § 6; Scanlan v. Gulf Bitulithic Co. (Tex. Civ. App.) 27 S.W.(2d) 877, 878; Shelton v. Lock (Tex. Civ. App.) 19 S.W.(2d) 124; Sowers v. Yeoman, 62 Tex. Civ. App. 188, 129 S. W. 1153; Terrell v. Otis Elevator Co. (Tex. Civ. App.) 248 S. W. 467; Vilbig v. Faison (Tex. Civ. App.) 296 S. W. 669; Wiggins v. First Nat. Bank (Tex. Civ. App.) 175 S. W. 735.

Nor do we sustain appellants’ contention that appellee’s petition does not allege compliance with article 4a of the city charter, or that said article 4a had ever been adopted as an amendment to the. city charter. The petition recites that the city levied the assessment for the street improvements in question under authority of article 4a-; and that all laws prerequisite to the assessment had been complied with by the city. These allegations were sufficient as against a general demurrer to admit proof of the fact that article 4a had been adopted as an amendment to the charter of the city of Houston by vote of the qualified voters named therein. And since the appeal is without a statement of facts, it will be presumed, in support of the judgment, that all necessary facts were proved.

We are not only of the opinion that the petition alleges all facts necessary to admit proof in support of the judgment as against a general demurrer, but that since appellee sued upon the certificate of assessment, which recites many of the facts plead as to compliance with charter provisions, the petition was sufficient as against the general demurrer ; and in support of this conclusion we quote as follows from the recent decision of this court in the case of Scanlan v. Gulf Bitulithic Co., 27 S.W.(2d) 877, 878:

“In making assessments against property owners for local improvements, the general rule is that the charter or statutory provisions for their imposition must be substantially complied with, and any material variation therefrom Will invalidate such assessments. Jones v. El Paso Bitulithic Co. (Tex. Civ. App.) 246 S. W. 749; Dallas v. Bergfield (Tex. Civ. App.) 245 S. W. 749, 753; 25 R. C. L. 94; 44 C. J. 497.
“It is not necessary, however, for a holder of a paving certificate either to allege or prove that all the detailed steps or procedure prescribed in the city charter and in the general *law have been complied with before he can recover on such certificate. In ae-cord with the provisions of the Houston charter, the certificates sued upon herein provided: ‘That all proceedings with reference to making such improvements have been regularly had in compliance with the law; the charter of said city and the terms of this certificate, and that all prerequisites to the fixing of the lien and claim of personal liability evidenced by this certificate have been performed.’
“The introduction of said certificates in evidence constituted prima facie evidence of the facts therein recited. Massie v. City of Ft. Worth (Tex. Civ. App.) 262 S. W. 837.”

We find no error in the judgment of the trial court, and it will be affirmed.

Affirmed.

On Motion for Rehearing.

Appellants insist on motion for rehearing that our holding that appellee did not, by failure to request the submission of the issues to the jury, waive its right to judgment on the paving certificate and for foreclosure of the statutory lien securing same, is in conflict with the holdings in the cases of Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W. (2d) 1084; and Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591. We find no such conflict. The cases cited merely hold that where the party at interest fails to request the submission of a disputed “ground of recovery or defense,” same will be regarded as waived. No such question is presented here. The ground of recovery pleaded by appellee was undisputed and uncontroverted, and the trial court instructed the jury that judgment would be rendered for appellee on such undisputed or uncontroverted ground of recovery, submitting to the jury in that connection the only disputed ground of recovery asserted by appellee.

Motion overruled.

Overruled.


author: RANDOLPH, J.

text:
    SCRUGGS v. GRIBBLE.
    No. 3623.
    Court of Civil Appeals of Texas. Amarillo.
    June 3, 1931.
    Rehearing Denied Sept. 9, 1931.
    R. H. Templeton, of Wellington, and H. A. Bateman and Burgess, Burgess, Chrestman & Brúndidge, all of Dallas, for appellant.
    Jas. C. Mahan and L. E. Gribble, both of Wellington, for appellee.
   RANDOLPH, J.

This is the second appeal in this case, and the opinion on the former appeal will be found in (Civ. App.) 17 S.W.(2d) 153. We refer to such opinion for a substantial statement of the ease on this hearing, with such additional statements as are necessary to be made to sustain any ruling herein.

On this hearing the sole question for our consideration is: Was the judgment of the county court of Dallas county herein attached, void or only voidable?

It is agreed by counsel in the argument that the trial court’s judgment should be affirmed in the case at bar, if the judgment 'of the Dallas county court at law is void, but that if said judgment was only voidable, then that the district court should have dismissed the proceedings before it aud the case herein should be reversed.

The proceedings in the Dallas county court at law, in so far as they are of importance in the solution of the questions- involving the validity of the judgment therein rendered, are as follows: The defendant in that suit, the plaintiff in this, filed his plea of privilege to be sued in Collingsworth county, the county of his residence. The plaintiff, in answer thereto, filed his controverting affidavit. This controverting affidavit was in due form and the question arises only as to the service of same upon the defendant by the sheriff of Col-lingsworth county.

It will be understood that the suit in which the judgment was rendered in the county court at law in Dallad1 county was instituted by Gross R. Scruggs against Ed Julian, L. E. Gribble, and B. H. Hooker, and further that the judgment in the Dallas county court at law was a judgment by default:

The controverting affidavit and notation of the setting thereof by the Dallas county court are set out in full in the former opinion and will not be again copied.

Article 2008, Texas Civil_ Statutes 1925, provides as follows: “Upon the filing of such controverting plea, the judge or justice of the peace shall note on same a time for a hearing on the plea of privilege. Such hearing, unless the parties agree upon the date, shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant, or his attorney, for at least ten days exclusive of the day of service and the date of hearing, after which the court shall promptly hear such plea of privilege and enter judgment thereon. Either party may appeal from the judgment sustaining or over-ruling the plea of privilege, and if the judgment is one sustaining the plea of privilege and an appeal is taken, such appeal shall suspend the transfer of the venue and a trial of the cause pending the final determination of such appeal.”

In our former opinion we held that the sheriff’s return on the service of the controverting- affidavit was invalid because of the failure of the sheriff to deliver to the defendant Gribble a copy of the plaintiff’s controverting affidavit to the plea of privilege filed by defendant Gribble. The requirement of the above article 2008 that a copy of the controverting affidavit to the plea of privilege and of the court’s notation thereon shall be seryed on each defendant in the pending case is mandatory, and the failure to so serve each defendant renders the court trying the case without jurisdiction to enter any other order or judgment except to transfer the ease to the proper court.

In the case at bar the failure to serve a copy of the plaintiff’s controverting affidavit to the defendant Gribble’s plea of privilege came about by reason of an error on the part of the clerk of the Dallas court in attaching, to the process to be served on Gribble, a copy of the plaintiff’s controverting affidavit to the defendant Julian’s plea of privilege instead of the controverting affidavit to the defendant Gribble’s plea. This was fully discussed in our former opinion and authorities cited to sustain our holding therein, and we therefore affirm such ruling.

The appellant contends that the judgment upon the pleas of privilege entered by the county court of Dallas county recites due and legal service of notice of the controverting affidavits upon all of the defendants — that the judgment is in all respects valid on its face and cannot be attacked collaterally. The copy of the Dallas court’s judgment appears in the record at this time, and the recital of service on the defendants is as follows: “On this the 22nd day of January, A. D. 1927, at a regular term of this court", came on to be heard the respective pleas of privilege filed herein by the defendants Ed Julian, L. E. Gribble and B. H. Hooker, all filed herein on January 3, 1927, together with the plaintiff’s controverting affidavits thereto filed on January 6, A. D., 1927, and it appearing to the court that each and all of the defendants have been duly and legally served with notice and certified copy of said controverting affidavits to be and appear in this court,” etc., and overruling said pleas of privilege. The recital in -the judgment that, “Each and all of said defendants have been duly and legally served with notice and certified copy of said controverting affidavits,” could be true and yet the defendant Gribble could have been served as he was served with a copy of the controverting affidavit intended for defendant Ed Julian. But the service of the plaintiff’s controverting affidavit to the defendant Julian’s plea of privilege upon defendant Gribble could not give said Gribble notice that his plea of privilege had been controverted and set down for a specific date for hearing. Rodgers v. Green, 33 Tex. 662. And no inference or presumption will be indulged to aid an insufficient return of citation or process. King v. Goodson, 42 Tex. 152.

We held in our former opinion that a void judgment can be attacked in any court and at any time. That the record showing affirmatively that the trial court did not have jurisdiction of the defendant, or of the subject-matter, no proceeding was necessary to vacate the judgment.

The appellant insists that the invalidity of a judgment must be determined alone from the face of the judgment. We cannot assent to this proposition. The invalidity of a judgment may be shown by the record other than the judgment itself. The record in a ease includes the pleadings of the parties and the processes by which the defendant is brought into court.

In the case of Murchison v. White, 54 Tex. 78, 82, the Supreme Court of Texas says: “It is believed that a careful analysis of the cases on this subject will show that, in a collateral proceeding, the only contingency in which the judgment of a domestic court of general jurisdiction, which has assumed to act in a case over which it might by law take jurisdiction of the subject matter and the person, can be questioned, is when the record shows affirmatively that its jurisdiction did not attach in the particular case.” And citing authorities. Further in that case the court says: “This question in such a proceeding must be tried by the recitals in the record itself and the presumptions arising therefrom.”

That the entire record of the case, including an affidavit and application for citation" by publication, may be considered in a collateral attack on a judgment, see Mabee v. McDonald, 107 Tex. 139, 144, 175 S. W. 676.

What is the result, as it affects a judgment rendered where a trial court ignores the prop: er filing of a plea of privilege, or where it overrules such plea, no controverting affidavit having been filed? This question is ably discussed by Judge Dexter Hamilton of the Dallas Court of Civil Appeals in the case of Craig, Sheriff, et al. v. Pittman & Harrison Co., 234 S. W. 1112. In that case suit was brought by the railroad company against Pittman & Harrison, Inc., to recover items of undercharge ; the suit being brought in the justice court. The defendant in that case filed its plea of privilege in due time, but no controverting affidavit was filed by the plaintiff and no order disposing of the plea of privilege was made or entered by the trial court in that ease. Thereafter, the justice rendered judgment for the plaintiff for a money recovery. Execution was thereafter issued and levied on the property of the defendant. Injunction was sought and obtained in the district court of Grayson county and the further proceedings under said writ were restrained. In that ease, on appeal to the Dallas Court of Civil Appeals, it was held that the judgment in the justice court was void and that its enforcement could be restrained by enjoining the execution.'

Upon writ of error being granted by the Supreme Court, the Commission of Appeals approved the holding of the Dallas court that the justice court’s judgment was void because there had been no controverting affidavit filed and the justice could only transfer the case and that his ignoring the plea and rendering judgment on the merits was a void proceeding. 250 S. W. 667, 668. See, also, Brooks v. Elevator Co., 211 S. W. 288, opinion by Chief Justice Huff of this court.

The failure of Scruggs to have served on defendant Gribble a copy of his controverting affidavit, in compliance with the statute, rendered the judgment in the Dallas county court at law void, without reference to the recitals in the judgment; but, in our- opinion, such judgment is void because of its own recitals in the failure of said recitals to show a sufficient service of the controverting affidavit and the notation of the court.

We hold that the judgment of the Dallas county' court at law is void, and therefore affirm the trial court’s judgment.


text:
    METRO-GOLDWYN-MAYER DISTRIBUTING CORPORATION v. COCKE.
    No. 3641.
    Court of Civil Appeals of Texas. Amarillo.
    July 11, 1931.
    Rehearing Denied Sept. 9, 1931.

      E. E. Diggs, of Childress, and J. Robert Rubin, of New York City, for appellant.
    R. H. Cocke and R. H. Templeton, both of Wellington, for appellee.
   RANDOLPH, J.

This suit was filed by appellant against ap-pellee in the district court of Collingsworth county, Tex. to recover of appellee the sum of $1,507.60, together with interest and costs of suit, for breach of contract on the part of appellee in breaching five certain contracts entered into by the appellee with appellant, for the exhibition in the Rialto Theater, owned by appellee at Wellington, Tex., of certain copyrighted photoplays, or motion pictures and films to be furnished to said H. F. Cocke by the appellant, by which contracts the appellant was to furnish, as distributor, and appel-lee was to show and exhibit as exhibitor, certain films at a price named in the contract. It was alleged in appellant’s petition that ap-pellee agreed and contracted to receive, accept, and exhibit said photoplays in his Rialto Theater and thereby bound and obligated himself to pay for said photoplays, which he afterwards failed and refused to receive, accept, or pay for, and that by reason thereof damages in the amount of the contract-prices for same, aggregating the total sum sued for, was sought.

Appellee filed his answer consisting of exceptions, general denial, and special pleas.

The case was submitted to the court without the intervention of a jury and the court rendered judgment that the appellant take nothing by this suit, and appeal therefrom was taken to this court.

The contract between the parties contains the following provisions which are quoted in full in the court’s findings and are as follows:

“Findings of Fact.
“I find that on April 23, 1926, plaintiff and defendant entered into contract marked ‘Exhibit A’ attached to plaintiff’s first amended petition; that on November 20, 1926, in like manner plaintiff and defendant entered into a contract marked ‘Exhibit B’ attached to said petition; that in like manner on Nov. 17,1927, plaintiff and defendant entered into contracts marked ‘Exhibits O and D’ attached to said petition; that in like manner on April 2,1927, plaintiff and defendant entered into a contract marked ‘Exhibit E’ attached to said petition; that all of said contracts are what is known as ‘Standard Exhibitor’s Contract’ filed with the Motion Picture Producers & Distributers of America, Inc. I further find that said contracts contained the following or similar provisions, to-wit:
“ ‘That distributer hereby grants to exhibitor and the latter accepts a license under copyright, subject to the terms and conditions hereinafter stated, and those printed on the reverse side hereof; which are made a part of this contract, to exhibit during the year commencing- 192 — , at the above theater.’
“I further find that no date for exhibition of each photoplay named in each contract was set out in the front part of said contract and that each contract contains the following or similar provisions, to-wit:
“ ‘G. The distributer shall give the exhibitor at least four (4) weeks notice in writing of the date upon which each photoplay, the exhibition dates of which are not specified in column seven of the schedule in this contract, will be available to the exhibitor and shall at the same time notify the exhibitor that the latter may select exhibition dates within the fortnight commencing with such date of availability. Within two (2) weeks after the mailing of such notice, the exhibitor shall notify the distributer in writing of the exhibition date or dates (within such fortnight) selected by the exhibitor. In the event of the failure of the exhibitor so to do, the distributer may at any time, after the expiration of said period (2) two weeks, from the date of the initial •notice of availability sent by the distributer, designate the exhibition date or dates of such photoplay by mailing notice in writing thereof to the exhibitor at least three weeks before the first exhibition day so designated; and the period of protection (if any) afforded the exhibitor under this contract shall commence to run with the expiration of the fortnight described in the initial notice of availability.
“ ‘In the event that exhibition date or dates selected by the exhibitor as above provided, are not open to exhibitor, the notice of availability theretofore sent the exhibitor by the distributer shall be null and void and the dis-tributer shall be obligated to mail a new notice of availability to the exhibitor. Any exhibition date selected by the exhibitor (if open) or designated by the distributer as above provided or otherwise agreed upon (in writing) between the distributer and the exhibitor, shall be for all purposes the exhibition dates of such photoplays as though originally specified in this contract.’
“I further find that the plaintiff did not give defendant notice in writing or otherwise of the day of release of photoplays as above provided, or that plaintiff tendered or offered said photoplays to .defendant as provided in said contract, and that defendant paid for all photoplays that he received, exhibited under said contract.
“Conclusions of Law.
“I conclude from the above findings of fact that the plaintiff has failed to establish its cause of action against the defendant and that no liability is shown and that the judgment should be that plaintiff tafee nothing by its cause of action against the defendant.”

The court’s findings of fact and conclusions of law are attacked by the appellant upon the following grounds:

1. The evidence having shown without controversy that defendant contracted with plaintiff for the exhibition of and payment for the copyrighted photoplays, but failed and refused to accept, or pay for, or exhibit said photoplays and sold out his theater to other persons so that he could not accept, receive, or exhibit said photoplays and said persons to whom he sold his theater business alsh refused to accept or pay for said photoplays; and the evidence having shown further without controversy that defendant refused to accept, exhibit, or pay for said photoplays the amount stated in the contracts, and the contracts further, providing that they should not be assigned by either party without the written acceptance and consent of the other party, and providing further that even if such assignment should be made, that it should not relieve the exhibitor of his liability under the contract; and the court erred in rendering judgment for the defendant and in basing his judgment upon conclusions that .plaintiff was not entitled to recover because it did not offer or tender to defendant the photoplays or picture films or notify him when they would be available for exhibition.

2. The court erred in not rendering judgment for the amount sued for because the testimony of defendant himself showed that after he went back into business for the exhibition of photoplays and repossessed the theater that he had sold, the plaintiff, for the purpose of settlement of the matters in controversy in this suit, offered to make a new contract with the defendant for the exhibition of these pictures or a part of them, and that he then refused to make said contract or receive and accept said pictures at all or pay for same.

3. That the court erred in his findings of fact that the plaintiff distributor agreed that it would notify defendant in writing of the date of exhibition of photoplays which he (defendant exhibitor) was to exhibit and basing. his judgment thereon, because, by the terms of such contracts, one a week was to be played beginning on the date of each of said contracts, so that the notice provided for in the contract to be given to the exhibitor, as printed therein, was thus eliminated and defendant was bound to receive one each week, which he failed and refused to do, having sold out his business and the parties to whom he had sold it had refused to carry out or be bound by the defendant’s contract for the exhibition of such pictures.

The contract numbered 3612, dated April 23, 1926, contains the following provision: “J. This contract shall not be assigned by either party without written acceptance of the assignee and the written consent of the other party; provided, that if the exhibitor sells or disposes of his interest in the theater above specified, he may assign this contract to the purchaser of such interest with the written consent of the distributer and such assignment shall become effective upon the written acceptance thereof by assignee, such assignment, however, shall not relieve exhibitor of his liability hereunder. This privilege of assignment without the consent of the distribu-ter shall not apply to this contract, if not to be performed within one year.”

The appellant contends that the law does not require any party to do a vain or useless thing and that a formal tender is never required when it appears that if it had been made, it would not have been received. To support this contention, the appellant cites 8 Permanent Supp. to R. C. L. p. 5789; Vitagraph, Inc., v. Park Theatre Co., 249 Mass. 25, 144 N. E. 85; The Maccabees v. Marshall (Tex. Civ. App.) 11 S.W.(2d) 523; Norton v. White (Tex. Civ. App.) 16 S.W.(2d) 553; Richmond v. Hog Creek Oil Co. (Tex. Civ. App.) 229 S. W. 563, 571; White v. Dennis (Tex. Civ. App.) 220 S. W. 161; Schaeffer v. Coldren, 237 Pa. 77, 85 A. 98, Ann. Cas. 1914B, 175; C., C. C. & St. L. Ry. Co. v. Anderson Tool Co., 180 Ind. 453, 103 N. E. 102, 49.L. R. A. (N. S.) 749, Ann. Cas. 1916B, 1217.

We recognize the rule to be as stated. It appears from the record that the appellee had sold his moving picture theater to Simpson & Nelson at the time he should have received the notice and tender pleaded. It is true that this sale was made without the consent of the appellant having been obtained, and it is also true that Simpson & Nelson did not assume the obligations of appellee to appellant, but, nevertheless, the appellee had not only transferred the theater to Simpson & Nelson but also had assigned the contract in controversy to them. This being true, the law would not require the doing of a vain and useless thing, such as provided in the contract, in giving such notice and making the tender provided for when the appellee had by such sale placed it without his power to perform his contract.

The appellant contends that the court erred in excluding the following letter, which was offered by the appellant:

“Mr. Chas. R. Zears, Secretary,
“Oklahoma City Film Board of Trade,
“623 Security Building,
“Oklahoma City, Okla.
“Dear Mr. Zears:
“Receipt is acknowledged of your letter of March 21st, inclosing copy of complaint by Metro-Goldwyn-Mayer, and beg to advise as follows:
“1. As you know, I sold my theater business in Willington to Simpson & Nelson, February Sth, 1928. I used my best efforts to get them to use these pictures and assume all my contracts, but they, are closing this theater for some time, and could not use them there at, and also advised that they felt these pictures were bought too high.
“2. I feel Mr. Zoeliner, under the circumstances in this case, is some what out of line. I have run these theaters here for five years, have never had a complaint before the board of trade.
“3. Last summer when I closed one of the theaters, of all the pictures I had bought from various'exchanges, Metro-Goldwyn-Mayer was the only company that asked for payment of pictures that were set out then to be played in the fall. I paid them, and up to the time I sold had not played all that I had paid for.
“I ask that you use your good offices to have this matter stopped before it proceeds further, and advise me immediately whatever is done about the matter, since under no circumstances do I consider the complaint well founded, and shall resist the same throughout.
“Yours very truly, H. F. Cocke.”

This letter was offered by the appellant, as stated in the bill of exceptions, for the following purposes: “ * ⅜ * Said letter shows that defendant H. F. Cocke, had made a contract with plaintiffs for the exhibition of the photoplays and pictures, breach of which contract is sued for in this cause and by this letter, defendant admits that he had made this contract and did not want to perform it because he had sold out the business and could not get the parties to whom he had sold, Simpson & Nelson, to use the pictures; and shows by said letter that his only reason for not paying for these pictures according to the contract was because he did not want to because he had gone out of business; and he further states in said letter that he will resist the claim throughout; all of which was an admission by the defendant, H. F. Cocke, In his letter of his liabilities to plaintiff upon the contract sued upon and showed conclusively his liability to plaintiffs, and that he had no defense to said claim except that he did not want to pay it; and defendant also testified in this cause that he did not write this letter to Mr. Zears and that he stated therein that the ‘other people would not take the pictures. I could not use the pictures. I did not use the pictures and never offered to pay for them. I was out of business and did not want them.’ ”

We are not informed by the bill upon what ground the court excluded the letter. The appellee insists in his brief that the letter was written in the attempt to effect a compromise before an arbitration board and was therefore not admissible. The bill discloses that the appellee admitted he wrote the letter. It is likely that the trial court excluded this letter upon the theory announced by him that the case had been disposed of by the failure of appellant to give the notice and make the tender provided in the contract. On another trial this letter should be admitted in evidence.

It is not clear from the record what brought forth this letter from appellee, but appellee expressly pleaded as follows: “This defendant further specially pleads that he never at any time entered into any arbitration of the matters involved and never at any time entered into any voluntary agreement, agreeing to any matters of arbitration upon matters growing out of the execution of such contract.” This precludes his objection to the letter upon the ground that it was written in an attempt to arbitrate.

It will be understood that the record shows that Simpson & Nelson had never assumed the obligations of the appellee to appellant.

The other propositions and assignments of appellant, having been considered, are overruled.

For the reasons stated, the judgment of the trial court is reversed, and the case is remanded for a new trial.


author: SHORT, P. J. OURETON, C. J.

text:
    ÆTNA CASUALTY & SURETY CO. v. WOODWARD et al.
    Motion No. 9579; No. 1271-5847.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    For former opinion, see 36 S.W.(2d) 721.
    Harry P. Lawther and H. B. Sanders, both of Dallas, for plaintiff in error.
    Thos. G. Pollard, of Tyler, Bishop & Holland, Wynne & Wynne, and Justice & Sigler, all of Athens, and Leffingwell & Dixon, M. S. Church, and C. A. McBride, all of Dallas, for defendant in error.
   SHORT, P. J.

In this ease three several parties have filed motions for a rehearing. The plaintiff in error, /Etna Casualty & Surety Company, has filed a motion to reform the judgment which was entered by the Supreme Court upon the recommendation of this Section of the Commission. 36 S.W.(2d) 721. The defendant in error Dallas Plumbing Company has filed a motion for rehearing, as also has the defendant in error Central Texas Iron Works.

In the original opinion and the judgment rendered by virtue thereof, the judgment of the district court and of the Court of Civil Appeals, 31 S.W.(2d) 679, which affirmed the judgment in favor of I. L. and O. T. Woodward, was affirmed by the Supreme Court. The judgment of the district court and of the Court of Civil Appeals was reversed, as to that portion that fixes the lien on the unpaid funds in favor of the Dallas Plumbing Company.

The plaintiff in error, in its motion to reform, asserts that it is entitled to have the money, which was paid into the registry of the court by the First National Bank of Ma-lakoff, Tex., being the amount left over of that which was to be paid the contractor by the Malakoff independent school district, amounting to $5,701.0S, applied to the satisfaction of the judgment in favor of I. L. and O. T. Woodward; the result of’this claim being to release the plaintiff in error of its obligation to pay the judgment against it in favor of I. L. and O. T. Woodward. The contractor and school district entered into a contract’ whereby it was agreed that the school district was to retain 20 per cent, on the estimates furnished by the contractor to the district. The school district did this, and after completing the building, when the contractor had defaulted, it had this sum remaining. Under this contract this sum belonged to the contractor, McBride, but the contractor still owed materialmen and laborers for the material furnished and labor performed in carrying out the terms of the contract. Some of these materialmen and laborers complied with the law requiring the notice provided by the Act of 1927 (Vernon’s Ann. Oiv. St. art. 5160 note), and some did not. In our original opinion we held that those who had made themselves parties to the surety contract, or bond, were entitled to recover the amount of the claims established by each of them against the plaintiff in error, while those who did not make themselves parties were held not to be parties to the surety contract or bond. However all of those materialmen and laborers had valid clajms against the contractor, and each of them has established his claim against him, and has had final judgment rendered against the contractor in their favor for the amount of the several claims. The surplus was held by the district and was deposited In court as the amount which the district owed McBride. The bond was given to protect the school district and materialmen and laborers who made themselves parties by giving the required notice. In the motion to reform the plaintiff in error asks that it be released from any obligation on this judgment against it in favor of I. L. and O. T. Woodward by ordering the judgment paid from the surplus fund. However, according to our original opinion, the judgment of the district court and of the Court of Civil Appeals, in favor of the materialmen and laborers against the plaintiff in error, has been reversed and the cause has been .remanded as to them. Only the judgment in favor of I. L. and O. T. Wood-ward against the plaintiff in error has been affirmed, except the judgment in favor of certain parties for cost.

The situation renders uncertain the amount of liability of the plaintiff in error to pay the claims for material and for labor. To grant the motion to reform the judgment in the manner asked by the plaintiff in error would leave in its hands a surplus of the amount of the retainage and enable the plaintiff in error to make a profit out of the transaction, which the law does not contemplate it should do. The law does contemplate that the plaintiff in error shall have the right to appropriate so much of the retainage as shall be necessary, if the amount -is sufficient to do so, as shall be sufficient to reimburse it for the amount which it shall be compelled to pay those materialmen and laborers, whose claims had not been paid by the contractor, and which the plaintiff in error has been compelled to pay. The amount of the claim of I. L. and O. T. Woodward only amounts to $5S0.50, besides interest and cost. The amount of the surplus is nearly ten times that amount. We are therefore of the opinion that the motion to reform the judgment in the manner indicated by the motion of the plaintiff in error should be overruled, without prejudice, however, to the right of the plaintiff in error to assert its lawful demands against the surplus upon another trial of the case.

The motion filed by the Dallas Plumbing Company, among other things, complains of that portion of the original opinion and the judgment rendered thereon, which adversely affects it, and calls attention, among other things, to the following allegations in its plea of intervention: “That within thirty days from the dates that its claim for labor performed under the terms of its contract of August 13, 1928, and supplemental contract accrued and became payable, were itemized and sworn to by the authorized agent of and for the intervener herein, Dallas Plumbing Co., and filed with the contractor, C. W. McBride, and also within thirty days after the deliveries of the material under the terms of intervener’s said contract of August 13, 1928, and supplement thereto, on the premises where said school building was being erected at Malakoff, Hunderson County, Texas, this intervener itemized its claims for materials, all said statements being sworn to by its authorized ageist, and file the same with said contractor, C. W. McBride.”

It also calls our attention to the statement of facts and the findings of fact by the Court of Civil Appeals to the effect that the above allegation is supported by sufficient testimony, and especially to the fact that it had a written contract with the contractor specifying not only the amount which was to be paid for the material furnished but also the time when these amounts should be paid and that it had given the notice of these claims within thirty days after the accrual of the claim. In our original opinion we held that this intervener had neither pleaded nor proved that he had filed authorized authenticated statements of its account either with the contractor or the county clerk of Henderson county as provided by the Act of 1927 (Acts 40th Leg., 1st called Sess., c. 39 [Vernon’s Ann. Civ. St. art. 5160 note]).

It is the contention of this intervener that the. record shows, under this situation, a compliance with the law which governs its claim, and because the contract made between it and the contractor, which was dated before the Act of 1927 went into effect, provided that one-half the material should be paid for when the work had progressed to a certain stage, and that the other one-half should be paid for after the work had been completed, and that this fixed the rights of the parties, and that it had complied strictly with the provisions of its contract made with the contractor. The contention of this intervener would be correct in so far as the obligation of the contractor is concerned by the amendment of article 5160, being the Act of 1927, 1st Called Sess., c. 39, § 1 (Vernon’s Ann. Civ. St. art. 5160 note), which went into effect before any of this material was furnished to the contractor, which' provides that in order for a ma-terialman to have a lien so as to bind the surety of the contractor, it must have furnished an itemized statement to the contractor or file such statement with the county clerk within thirty days after the material had been delivered. It is true the allegation is made that the Dallas Plumbing Company filed with the contractor such statement, within thirty days after the deliveries.of the material, under the terms of intervener’s written contract with the contractor; but it does not allege a delivery to the contractor of the notice that the material had been furnished within thirty days from the date of the delivery thereof, which the Act of 1927 makes a prerequisite to the validity of the claim of a materialman furnishing material to the contractor, to make the surety of the contractor responsible for the value thereof. There was an exception to the sufficiency of this intervener’s plea of 'intervention in this respect, which was overruled by the district court, and this action of the district court was sustained by the opinion of the Court of Civil Appeals, and an assignment has been presented to the Supreme. Court, based upon this part of the record. We sustain this assignment.

However, the Court of Civil Appeals found that the proof was sufficient to show'that the notice had been given in accordance with the Act of 1927, in consequence of which it became necessary to reverse the judgment of both courts in favor of this intervener against the surety company, the plaintiff in error, on account of the-failure of the plea of intervention to make the necessary allegations supporting this finding of fact.

It may be, upon another trial, that the plea and proof will be sufficient to entitle this intervener to a recovery on the bond, but in the absence of pleading and proof, in accordance with our holding, this intervener would not be entitled to any recovery from the plaintiff in error, but would bo entitled to a judgment against the contractor. It is true that when the contract was made with the contractor the law did not require the giving to the contractor of any notice of delivery of material within thirty days thereof, but before the contract was commenced to be performed the Act of 1927 became effective, and it must be presumed that the parties entered into the contractual relation in contemplation of remedies afforded by the statute, and it must be further presumed that the power of the Legislature to substitute other remedies was contemplated. Subsequent legislation which affects the change in this respect is not rendered invalid as to said parties by the constitutional provision (U. S. Const. U. S. art. 1, § 10, cl. 1, Const. Tex. art. 1, § 10) against the impairment of the obligation of contract if an adequate remedy is left available. Farmers’ Life Ins. Co. v. Wolters (Tex. Com. App.) 10 S.W.(2d) 698; Patton v. New Amsterdam Casualty Co. (Tex. Com. App.) 36 S.W.(2d) 1000; American Surety Co. of New York v. Axtell Co. (Tex. Com. App.) 36 S.W.(2d) 715.

Since the original opinion reversed the judgment rendered by the Court of Civil Appeals, involving this claim, and since we find ho error in this respect, this motion should be overruled.

The remaining motion for rehearing filed by the Central Texas Iron Works, one of the defendants in error, claims the original opinion and judgment rendered -in accordance therewith is error, on the ground that the original opinion erroneously held that the validity of the defendant in error’s claim was dependent upon the provision of the Act of 1927, for the reason that the record affirmatively shows that its plea of intervention alleged, and the proof supports the allegation, that the material furnished by it was furnished and delivered in the month of August, 1927, prior to the time said amendment became effective. Upon a re-examination of the plea of intervention, we find the following-allegation: “Those interveners would show that during the month of August, 1927, they at the special instance and request of said McBride, furnished and delivered material which was used in the construction of said school building for which the said McBride agreed to pay and were of the reasonable value of $1,912.69; that said material was received and accepted by said McBride and that only $1,450.00 has boon by him paid, leaving a balance of $462.69 due and unpaid and though often requested, the said McBride has refused and still refuses to pay same; that these interveners have done and performed all acts necessary to be done and performed to render the said Surety on said Bond liable to pay them the said sum of $462.69, wherefore they are entitled to recover herein from said McBride and iEtna Casualty & Surety Company said sum of $462.09. These interveners attach hereto statement of said materials so furnished by them marked exhibit ‘A’, and made a part of this plea of intervention.”

The proof supports these allegations, and the judgment of the district court was rendered in accordance therewith, to which no objection was made. Having alleged that the material was furnished prior to the date the Act of 1927 became effective, it is not necessary to allege that the notice required by this act, which thereafter became effective, had been given. American Surety Co. of New York v. Axtell Co., supra.

There is no assignment of error challenging the right of this defendant to recover other than the exception that they did not allege the giving of the notice required by the Act of 1927 and of course did not prove any such allegation, and the record showing the material was furnished prior to the time the Act of 1927 became effective, we think we erred in reversing the judgment in so far as it awarded recovery in favor of this defendant in error against the plaintiff in error. It appears, as shown by the original opinion, that ono issue of fact was submitted to the jury, and the district court having rendered judgment in favor of the original plaintiffs, and also in favor of the interveners, who furnished material and performed labor, against McBride, the contractor, for certain sums of money mentioned in the judgment, which part of the judgment being unassailecl, and from which there has been no appeal, that part of the judgment became final. It also appears, without contradiction, that there was deposited in the registry of the court the sum of $3,701.08 by the First National Bank of Mala-koff, Tex., which had received it from the Malakoff independent school district as the balance of the contract price left from the construction of the building, and which was the property of O. W. McBride, the contractor, subject however to the claims which had been established against him by the original plaintiffs and by tbe interveners. It also appears that these claims which were unpaid exceed in amount this sum.

No other motions having been filed, except those which we have discussed, the judgment rendered in accordance with the original opinion has become final, except as the same has been affected by the opinion of these motions. Since neither of these motions challenge the correctness of the claims adjudged against the contractor in favor of those who furnished material and labor to him upon another trial, it will not be necessary to reopen that part of the case; bpt since it admitted that the court has in its possession the sum of $5,-701.08, which must be distributed among those who are entitled to receive it, and since this distribution will materially affect the judgment which should be rendered in favor of the interveners against the contractor, as well as against the surety company, and since the case must be reversed as to some of the parties, we are of the opinion that it should be reversed as to all the parties, in accordance with our original opinion, except, of course, those parties in whose favor a judgment for costs has been rendered.

We therefore recommend that the motion of the plaintiff in error, .¡Etna Casualty & Surety Company, to reform the judgment be overruled; that the motion of the Dallas Plumbing Company be overruled, subject to its right to recover against the plaintiff in error, should the pleading and proof, upon another trial, show it to be so entitled; find that the motion of the Central Texas Iron Works, for rehearing, be granted, that so much of the original opinion as adversely affects this intervener be set aside, and that the judgment of the district court and of the Court of Civil Appeals rendered in its favor be affirmed, and that it recover its costs against plaintiff in error.

OURETON, C. J.

Previous judgment reformed, as recommended by the Commission of Appeals.


author: BARCUS, J.

text:
    YOWS et al. v. COMMISSIONERS’ COURT OF CORYELL COUNTY.
    No. 1076.
    Court of Civil Appeals of Texas. Waco.
    July 9, 1931.
    Rehearing Denied Sept. 17, 1931.
    T. R. Mears, of Gatesville, for appellants.
    Robt. W. Brown and Harry W. Flentge, both of Gatesville, for appellee.
   BARCUS, J.

About 1885 a first-class public road, which ran across the property owned by appellants, was opened from Gatesville to Jonesboro in Coryell county. In 1928, the chamber of commerce in Gatesville and other citizens of Coryell county requested the commissioners’ court to relocate and straighten said Gates-ville-Jonesboro road. No formal petition therefor, as provided by article 6705 of the Revised Statutes, however, was filed, the entire matter being handled in a very informal way. It appears that the commissioners’ court agreed to relocate said road from the Juvenile Training School to Jonesboro, a distance of approximately thirteen miles, on condition that the citizens would obtain the necessary right of way without any expense to the county.

The commissioners’ court on its own motion appointed a jury of view to, and which did, assess the damage to some of the tracts of land over which the proposed new road ran. Under the rerouting plan, the new road crossed the property of appellants from one hundred to three hundred yards east of the old road, the old road being very crooked and the new road running practically straight. The old road went by what is known in the record as Hay Valley school and Hay Valley church. The new road left said buildings from two to four hundred yards to the west.

According to the testimony of appellant, Jake Vows, he and his father had owned the land on which the old road, as well as the new road, ran for more than fifty years. He testified that, at the time the committee from the chamber of commerce solicited a deed from him for the new road, said committee, as well as Mr. Morrison, the commissioner in the precinct in which said road was being constructed, told him that after the new road was open he could close the old road, and that same would revert to him, since it came originally from his property, and that with that understanding and agreement he donated the necessary land for the new; road. After the new road was built and opened, relying upon the statement as made to him by said county commissioner and committee, he closed the old road, so that the traveling public could not reach either the schoolliouse or the church without going through gates and over the property of appellant, Jake Vows.

Upon complaint being made, the commissioners’ court ordered appellants to remove the fences'and obstructions’from the old road, and appellants thereupon removed same and then petitioned the commissioners’ court to close the old road. Said court, upon a hearing, refused to close the old road and entered an order requiring same to be kept open. Appellants then instituted this suit against the commissioners’ court, praying that their title to. the old road be quieted, and that they have a permanent injunction against the commissioners’ court restraining them from in any way interfering with their closing the old road. The cause was tried to the court and resulted in judgment denying appellants any relief.

Appellants contend that, since the commissioners’ court changed the route of the old road and established and opened a new. route from the Juvenile Training School to Jonesboro, that said act was in law an abandonment of the old road, and that the land used for the old road thereby immediately reverted to the original owners thereof. "VVe cannot agree with this contention of appellants. Articles 6703 and 6705 of the Revised Statutes provide for the method by which a new public road may be opened or an old road changed or discontinued, and, before the commissioners’ court can either change or discontinue an old road or open a new road, it is essential that a petition therefor be made, as required by article 6705. This is the specific holding of our Supreme Court in answering certified questions in the case of Haverbekken v. Hale, 109 Tex. 106, 204 S. W. 1162.

The record in this case shows that no order was made by the commissioners’ court attempting to either change or close the old Gatesville-Jonesboro road across the land of appellants. Appellants do not, by their testimony, claim that any member of the commissioners’ court, except Morrison, told them that the old road would be closed or that they would have a right to close same after the new road was completed. While the record clearly shows that appellant, Jake Vows, honestly thought that he had the right to close the old road when the new. road was opened, and that without any consideration being paid him ho executed the deed to the land required for the new. road under the belief that when it was opened he could close the old road, said facts do not, as a matter of law, authorize him to close the old road. In the closing or changing of public roads, the commissioners’ court under the holding in Haverbekken v. Hale, supra, can act only after a petition therefor has been duly presented and notice thereof given as required by article 6705 of the Revised Statutes. The clear purpose of said article is to permit those along the route o.f the old road, as well as all other parties who are interested therein, to have notice of any. proposed change in the road before same is actually made.

The only relief appellants seek in this case is an injunction restraining the commissioners’ court from interfering with their closing the old road and to quiet their title to the old roadbed. Since it appears without dispute that the old road has been in existence and used as a first-class road for more than forty years, and since it appears affirmatively that the commissioners’ court did not make any order authorizing said road to be discontinued or changed, and since it appears that, upon application made by appellants to the commissioners’ court for permission to close said road, said court refused to grant said request, and no appeal was taken from said judgment, appellants are not entitled to any of the relief asked for by them.

We have examined each of appellants’ assignments of error and propositions thereunder. Same are overruled, and the judgment of the trial court is affirmed.


author: JACKSON, J.

text:
    TEXAS INDEMNITY INS. CO. v. FRY et al.
    No. 3642.
    Court of Civil Appeals of Texas. Amarillo.
    July 1, 1931.
    Rehearing Denied Sept. 9, 1931.
    Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.
    L. B. Godwin, of Pampa, and Kimbrough & Boyce, of Amarillo, for appellees.
   JACKSON, J.

The appellant, the Texas Indemnity Insurance Company, instituted this suit in the district court of Hutchinson county, Tex., against the appellees David J. Fry and his attorney, L. B. Godwin, to set aside a final decision of the Industrial Accident Board of this state awarding compensation for injuries sustained by David J. Fry while employed by the Prairie Oil & Gas Company, which carried compensation insurance for its employees with the appellant.

The appellees answered and alleged by way of cross-action that about January 16, 1929, David J. Fry, while in the employ of the Prairie Oil & Gas Company, which carried compensation insurance for its employees with appellant, was accidentally injured. That in the course of his employment, his thumb became fastened in the chain of a hoist and was severed from his hand. That the wound became infected, causing permanent and total loss of the use of his right hand, arm, and shoulder. That such infection was transmitted through his whole system, producing chronic nephritis, extreme nervousness, and traumatic rheumatism, all of which caused him to suffer permanent and total disability under the provisions of the Compensation Law.

Appellees alleged the annual, weekly, and daily wage of David J. Fry, the compensation he was entitled to recover, the employment of L. B. Godwin, as attorney, to represent him in the collection of his claim, and all the facts necessary to give the court jurisdiction. They admit the' failure to file a claim for compensation with the Industrial Accident Board within the time required by law, but, as good cause for such failure, say that David J. Fry has a meritorious cause and that appellant recognized and admitted its liability to him and paid him compensation for a period of 29 consecutive weeks immediately following the injury. That from the date of his injury, until March 16th thereafter, he was confined to bed and unable during such time to file a claim. That appellant, through its agents and representatives, advised him that it was unnecessary to file a claim, urged him not to employ counsel, as the appellant would pay him full compensation for his injuries, on all of which representations he depended and relied and for which reasons his claim was not filed within the time provided hy law.

The appellant, in reply to appellees’ cross-action, filed a general demurrer and a general denial.

In response to special issues submitted hy the court in his main charge, the jury found, in effect, that appellee Ely sustained personal injuries on the 16th of January, 1929, in the course of his employment with the Prairie Oil ⅞ Gas Company; that such injuries resulted in totally incapacitating appellee Ery for a period of 100 weeks, hut that such total incapacity was not permanent; that the Injuries sustained by Ery did not result in partial incapacity; that his average weekly wage was $25.96; that good cause existed for the failure .of Ery to file his claim for compensation within the time provided by law.

In response to special issues submitted by the court at the request of appellant, the jury found, in substance, that the loss by Ery of one-half of his right thumb was not the only permanent injury received by him; that he lost the total use of his right arm for a period of ten weeks, but that such loss was not permanent; that Ery sustained a permanent partial loss of the use of his right arm amounting to 80 per cent, of the usefulness thereof; that the loss by Ery of the use of his hand was not the only injury sustained by him.

On these findings the court rendered judgment that appellee Fry recover from the appellant the sum of $15.58 per week for a period of 110 weeks, less the sum of $15.58 per week for thirty weeks theretofore paid hy appellant and accepted by appellee, together with 6 per cent, interest on the weekly payments from their due date until paid; that he also recover $12.46 per week for 190 weeks; that 33⅝ per cent, of the judgment he paid to appellee L. B. Godwin as attorney for appellee Ery, from which judgment this appeal is prosecuted.

The first assignment presents as error the action of the court in rendering judgment for appellee because the findings of the jury that the injury sustained by appellee Ery did not result in partial incapacity, and that he sustained a permanent partial incapacity to his right arm amounting to 80 per cent, of the usefulness thereof, are in such irreconcilable conflict that the court should have set the verdict aside and declared a mistrial.

The appellee alleges injury to a specific member, and also alleges that the injury to the specific member involved his whole body and his general health. The jury found that the injury to the specific member was not the only injury sustained hy said appellee. The Issues in response to which the jury found that the injuries resulted in total incapacity for 100 weeks, but that such total incapacity was not permanent and that the injuries did not cause partial incapacity, were evidently understood by the court and jury to refer to the general injuries resulting from transmitting the infection, of the specific member to the entire body and involving the general health of appellee.

The court defined “partial incapacity” to mean that a person’s earning capacity had been reduced for a time but had not been reduced permanently. This definition restricts “partial incapacity” in its moaning to temporary disability and, if the disability was temporary, it could not he permanent. Appellant in its brief makes no complaint of this definition, and the jury could not consistently find under such definition that the injuries caused a “partial incapacity,” because they found, and such finding is not questioned, that the injury to appellee Fry’s arm had resulted in permanent partial incapacity to that member to the extent of 80 per cent, of its usefulness. We are of the opin-' ion that these findings are not in irreconcilable conflict.

The appellant challenges as error the failure of the court to define for the jury “good cause,” to which failure objection was made, for the reason that it is a legal term; hut no definition of the term was tendered by hppellant.

The Compensation Law does not define “good cause,” notwithstanding article 8309 is devoted to definitions of words and phrases used in the law.

Section 4a, art. 8307, among other things, provides that: “For good cause the hoard may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing the claim before the-hoard.”

It has been held that all that is required of an injured party by this provision of the statute is that his claim for compensation he prosecuted by him with that degree of diligence that an ordinarily prudent man so situated would exercise. Consolidated Underwriters v. Seale et al. (Tex. Civ. App.) 237 S. W. 642; Security Union Ins. Co. v. Hall (Tex. Civ. App.) 37 S.W.(2d) 811.

In our opinion the failure of the court to define the term “good cause” does not constitute reversible error. Texas Indemnity Insurance Co. v. Holloway (Tex. Civ. App.) 30 S.W.(2d) 921.

The appellant assails as error the action of the court in rendering judgment in favor of appellee Ery for $15.58 per week for 100 weeks of total disability and $15.58 per week for 10 weeks for the total loss of the use of his arm and for $12i46 per week for 190 weeks for permanent partial disability to the use of his arm.

The contention is that under the law the appellee could not recover more than $15.-58 per week for 100 weeks, the period o-f total disability, and $12.46 per week for ICO weeks, the period of permanent partial disability.

The appellees concede that the judgment giving compensation for 10 weeks on account of the total incapacity to the loss of the use of the arm is erroneous, but contend that the judgment should be reformed allowing appel-lees to recover for 100 weeks total disability based On his general injuries and for 200 weeks for permanent partial incapacity for the loss of the use of his arm; and rely on the holding in Texas Employers’ Insurance Ass’n v. Moreno (Tex. Com. App.) 277 S. W. 84.

The appellant asks that in the event the judgment is not reversed and the cause remanded, that the judgment be reformed so as to permit appellees to recover compensation for a period not exceeding 200 weeks.

In Texas Employers’ Insurance Ass’n v. Maledon (Tex. Com. App.) 27 S.W.(2d) 151, 152, the jury made the following findings:

■ “(a) Defendant in error was totally disabled by reason of injuries other than the injury to his hand for a period of 10 weeks from March 19, 1927.
“(b) He was totally disabled by reason of all of his injuries generally, including those to his hand, for a period of 20 weeks from said date.
“(e) His hand was totally disabled for a period of 20 weeks from said date.
“(d) He sustained permanent partial loss of the use of the hand to the extent of 40 per cent, thereof.’’

The Commission of .Appeals says: “The only issue involved in this appeal is the amount of compensation which should be allowed.” After quoting certain provisions of section 12, art. 8806, relative to the recovery for concurrent injuries resulting in concurrent incapacities and that the section shall not .affect liability for the concurrent loss of use' of more than one member, the opinion continues: “We think, however, that the latter part of the section refers only to cases where tjie employee’s disability results from more than one specific injury, and not to cases where the disability results from a general injury, and a specific injury. ⅞ ? - ’ * In the instant case the total disability did not result from two specific injuries, or, to state it in another way, from two injuries to two specific members of his body, but resulted from an injury to one specific member of his body, his hand, which was concurrent part of the time with a general injury. Under this condition of the record, the recovery for total incapacity in the instant case * * *' should have been entered for the injury producing the longest period of total incapacity only. * * ⅜ In addition to the total disability to the hand for a period of 20 weeks, defendant in error suffered permanent partial loss of the use of the same member to the ■extent of 40 per cent, thereof. ⅜ ⅜ * The finding that the defendant suffered total disability to his hand for a period of 20 weeks would entitle him under the findings of the jury ⅜ * * ' to compensation for 19 weeks. * * * The finding that the defendant in error suffered a 40 per cent, permanent partial loss of the use of the hand furnishes the basis for awarding the balance of the compensation due. * ⅜ * Inasmuch as the specific schedule for the loss of' the hand provides compensation at the rate of 60 per cent, of the average weekly wages for 150 weeks, and the defendant having sustained 40 ‘ per cent, permanent partial incapacity to the hand, he is entitled to 40 per cent, of 60 per cent, for the balance of the compensation period after deducting the 19 weeks already allowed him for total incapacity to the same member or 24 per cent, of his average weekly wages for a period of 131. weeks.”

The schedule in the statutes for specific injuries provides that, for the loss of an arm, compensation shall be paid for a period of 200 weeks. The appellee Fry having sustained, as the result of his injuries, total incapacity for a period of 100 weeks, is, under the ruling in Texas Employers’ Insurance Ass’n v. Maledon, supra, entitled.to a judgment for $15.58 per week for 100 weeks, the period of his total disability. He’is also entitled to-recover for permanent partial incapacity to the use of his arm $12.46 per week for 100 weeks, the period of his permanent partial incapacity to his arm. See, also, Lumbermen’s Reciprocal Association v. Pollard (Tex. Com. App.) 10 S.W.(2d) 982, and Petroleum Casualty Co. v. Seale (Tex. Com. App.) 13 S.W.(2d) 364.

We shall not undertake to determine whether the law as announced ’ in the last cases cited, supra, is in harmony with the holding of the Moreno Case, supra, or not. In our opinion the law is correctly announced in Texas Employers’ Insurance Association v. Maledon, supra, and should control.

The judgment of the'trial court is therefore reformed so as to permit appellees to recover at $15.58 per week for 100 weeks of ■total disability and $12.46 per week for 160 weeks of permanent partial disability; and the judgment of the trial court as so reformed, is in all other respects affirmed.