author: RUDDY, Presiding Judge.

text:
    Lester MILLER, d/b/a Miller & Son, (Plaintiff) Respondent, v. O. S. WILSON and Stanley Wilson, d/b/a O. S. Wilson & Son, Willdale Farm, (Defendants) Appellants.
    No. 31721.
    St Louis Court of Appeals. Missouri.
    July 21, 1964.

      Earl L. Veatch, Monticello, for appellants.
    J. Andy Zenge, Jr., Canton, for respondent.
   RUDDY, Presiding Judge.

This is an action by plaintiff to recover damages for an alleged fraud charged as having been perpetrated by defendants when they induced plaintiff through a certain representation, later learned to be false, to purchase a cow. The jury returned a verdict for actual damages in the sum of $1000 and punitive damages in the sum of $250. A remittitur of $250 was ordered by the trial court and accepted by plaintiff. From the aggregate judgment of $1000 defendants appeal.

Defendants contend that this is an action for a breach of contract. In so contending defendants are in error. Plaintiff in his petition alleges that he purchased from the defendants a cow designated as “Lot 64” and named “G. M. Rollo Princess 3” and that said cow was represented to him by defendants as being a cow registered in the American Polled Hereford Association and the American Hereford Association and that defendants represented that papers would he furnished showing the aforesaid registrations. Plaintiff alleges that he purchased said cow believing that she was registered in both Associations so that any calf from said cow, sired by a bull registered in both Associations, could be registered in each of said Associations.

Plaintiff further alleges that said cow was not registered in the American Hereford Association and for that reason her calves could not be registered in said Association; that the defendants knew or were chargeable with knowledge that the representation made by them that said cow was registered in both Associations was false; that defendants intended that the plaintiff would rely upon such representation; that the plaintiff did, in fact, rely upon such representation without knowledge that the representation was false; that under the circumstances the plaintiff had every right to rely upon the representation made by the defendants as to the registration of said cow; that the defendants knew or should have known that said representation was fraudulent and that plaintiff would suffer damages by reason of the misrepresentation; that the misrepresentation was made for the purpose of deceiving the plaintiff and that by reason thereof plaintiff is entitled to actual and punitive damages.

Plaintiff’s petition contains all of the allegations necessary to sustain an action for fraud and deceit. Menke v. Rovin, 352 Mo. 826, 180 S.W.2d 24, 26, and Salmon v. Brookshire, Mo.App., 301 S.W.2d 48, 54.

Plaintiff’s evidence shows that he is a farmer and a breeder of registered Polled Hereford cattle and has been in the registered Polled Hereford business for 15 years. Prior to attending the sale at which he purchased the cow he read an advertisement in the Polled Hereford World of a sale to he held at the defendants’ farm. He also received from the defendants a catalog describing the cattle to be sold. He attended the sale held by the defendants at Canton, Missouri. At this sale copies of the catalog that had been mailed to him were available. He read and used the catalog and from it learned the terms of the sale and the description of the animals to he sold. On a page of the sale catalog entitled “General Information” was the following statement: “REGISTRATION : A Certificate of Registry and signed transfer will be furnished. The offering is registered in both the American Polled Hereford Association and the American Hereford Association and papers will he furnished accordingly.” A further statement appeared on said page and it is as follows: “CATALOG ERRORS: Statements from the auction box sale day take precedence over printed material. We are not responsible for errors in the catalog.” The cow described in plaintiff’s petition was listed for sale in the catalog. This cow had a calf by her side and the calf was sold separately. Plaintiff purchased the cow for $640 and said that he did so relying upon the paragraph in the catalog “where it says they are all registered in both Associations and will be transferred accordingly.” He described the two Associations as the American Hereford Association and the American Polled Hereford Association. He said that an animal registered in the American Polled Hereford Association only is simply a commercial animal. He stated that he requires registration in both Associations “and so does everybody else.” He explained further that if a cow was registered in the American Polled Hereford Association only and had a calf that grew horns, the calf could not be registered in the American Polled Hereford Association if the cow was not registered in the American Hereford Association and, therefore, the calf would be ineligible for registration in either Association and gave that as the reason that a cow that is not registered in both Associations would have no value from the breeder’s standpoint, adding, that a Polled, animal is just a commercial animal. He said that he first learned that the cow he purchased was not registered in the American Hereford Association about a year after he made the purchase. He did nothing about it at that time, stating “I had another thing that was concerning me greatly at that time.” He said that three calves had been born to the cow, having been sired by registered bulls, but that all had been sold “commercially” because the cow had been registered in only one Association, the American Polled Hereford Association. He said that all three of the calves would have been eligible for registration in the American Hereford Association if the cow had been registered in said Association. He further testified as follows: “Q. Mr. Miller, would you state to the Court and jury, please, whether or not you relied on this representation in the catalogue that these cows were registered in both associations ? A. I did. That’s the first thing you read, the general information here, about the sale offering. Q. Would you have purchased this cow at all if you hadn’t thought she was registered in both Associations? * * * A. No. I wouldn’t have had her at any price.” He gave as the actual market value of this cow when not registered in both Associations from $190 to $210 when sold commercially.

In his cross examination plaintiff testified that the number appearing in connection with the catalog listing of the cow in question represented the number of the American Hereford Association, stating that, where just one number appears “it’s always Hereford Association.” When asked, “Q. Now, then, did you hear it announced from the ring, Mr. Miller, that this cow was what they called a single standard cow,” he answered, “that was-not announced.” He repeated that he did not hear any such announcement and indicated that if one was made he was within hearing distance. Approximately thirty days after the sale he received the certificate of registration in the American Polled Hereford Association.

Victor Hugo Jacquot, a witness for plaintiff, testified that it is the custom for the buyer to rely on the catalog representation as to the registration and the breeding of the cattle offered for sale. He was present when the cow listed in the catalog was sold and was one of the bidders for the cow. He said he heard no announcement made nor was any announcement made to the effect that the cow was a single registered animal. He further testified that the cow in question registered only in the American Polled Hereford Association, had no value as far as breeding purpose was concerned unless the animal was registered in both Associations. He gave as the approximate market value of the cow at the time of the sale the sum of $200. He said that he came to the sale for the sole purpose of purchasing this cow and that he would not have bid on her at all if he had known that she was registered in the American Polled Hereford Association only. When he was asked on cross examination what the number shown beside the listing of the cow in the catalog would represent, he answered, “that would indicate to me that she was registered American Hereford only, because any breeder assumes that when there is only one number behind the cow, that she is registered American Hereford, not Polled Hereford.”

O. S. Wilson, one of the defendants, admitted there were two distinct Hereford Associations, naming them as the American Polled Hereford Association and the American Hereford Association. He did not think it would make any difference in the value of the cow if it was registered in only one Association. He admitted that there was no error in the publication on the “General Information” page of the catalog, but did say that the catalog plainly showed that the cow was registered in one Association only because there was only one number shown. He said that he had the auctioneer announce that this cow was a single standard cow and registered in one Association only and that this announcement was made by the auctioneer.

Stanley Wilson, the other defendant, and John Wilson, a brother of one of the defendants in the case, testified that they heard the auctioneer announce that the cow was a single standard cow, which meant that she was registered in the one Association only. The clerk of the sale and two other witnesses testified that the auctioneer announced at the time the cow was sold that she was registered in the one Association only and the fact that the cow was not registered in both Associations would have little or no effect on her value as a breeding animal.

The first point urged by defendants is that the trial court erred in admitting incompetent, irrelevant and immaterial evidence offered by the plaintiff and over the objection of the defendants, asserting that the evidence introduced by plaintiff, concerning the value of calves produced by the cow in question was not admissible since the same did not enter into the question of damages and also asserting that plaintiff did not plead damages arising from the sale of the calves. An examination of the record shows no objection was made to the trial court specifying the grounds that the evidence offered concerning the value of the calves produced was incompetent, irrelevant and immaterial to any issue in the case. The record pertinent to this point is as follows: “Now, what did you do with the first calf that you got from this cow then, after you found that it couldn’t be registered in both Associations? A. Took it to the sale barn and sold it commercially. Q. How much did the calf bring? A. A hunderd and thirty five dollars. Q. One hundred and thirty five dollars. What would that same calf have brought on the market at the time you marketed it, if it had been subject to registry in both Associations ? Mr. Veatch: We object to that, your Honor. That answer would have to be based on speculation and conjecture.” Thereafter, plaintiff’s attorney withdrew the question and told the court he would ask preliminary questions showing the knowledge and qualifications of plaintiffs as to resale and market price of registered Polled Hereford cattle that are also subject to registration in the American Hereford Association. After showing that plaintiff was acquainted and familiar with the market price of these cattle, when registered in both Associations, the following transpired: “Q. Now, based on your experience and your knowledge, what would this calf that you sold for $135.00 have brought on the market at the time you sold it for $135, if it could have been registered in both the American Hereford and the American Polled Hereford Associations? Mr. Veatch: If the Court please, we object to that for the same reasons, that the answer has to be based on speculation and conjecture.” The court thereafter overruled the objection and permitted the witness to answer. The same procedures took place in connection with the sale of the second calf and the third calf, except in one instance where Mr. Veatch told the court that he objected “for the same reasons heretofore assigned,” and then he added, “we don’t think it is proper to prove any of the issues in this case.” No doubt the trial court took this to mean that he did not think that speculative and conjectural testimony was proper in the case. There is no doubt in our minds that the trial court thought the objection of defendants’ counsel was directed to the quali-cations of the witness, plaintiff, to state what 'these calves would h.ave brought on the market at the time they were, sold if the cow had been registered in both the American Hereford Association and the American Polled Hereford Association. There was no objection made at any time concerning the testimony of plaintiff as to the amount received from the sale of these calves'when sold commercially. The only objection was made when plaintiff was asked to give the market value of these calves at the time of their sale if the cow in question had been registered in both Associations as represented. We do not think that defendants made a proper or timely objection to the admissibility of this evidence. In the case of Appelhans v. Goldman, Mo., 349 S.W.2d 204, l. c. 207, the court, quoting from the case of Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539, said: “It is well settled that an objection to the admissibility of evidence must be specific and contain the proper ground of its exclusion, else the trial court will not be convicted of error for overruling it. * * * ” We find that defendants failed to specify before the trial court the grounds that they now specify in this court. For this reason the point asserted is without merit and ruled against defendants.

Defendants’ next point asserts that “the court erred in giving plaintiff’s instruction 3, for the reason that said instruction did not advise the jury as to the maximum amount which the jury might allow to plaintiffs in assessing their damages; for the further reason that said instruction did not correctly define and set forth the elements which the jury should take-into consideration in assessing damages, and for the further reason that said instruction put into issue the question of punitive damages.”

In sub-points asserted in support of the above point defendants state “(1) Where petition limits amount of special damages, instruction omitting such limit is erroneous. (2) Measure of damages in an action for breach of contract is for the court to declare -in' its instructions and not matter for jury to speculate on. (3) In an action for breach of contract, an instruction- to assess plaintiff’s damages at such sum as the jury might consider he had sustained is erroneous, because leaving the measure of damages to the speculation of the jury.”

As we pointed out earlier, defendants are in error in contending that plaintiff’s cause of action was one for a breach of contract. The first part of this point asserted'by defendants is directed to that portion of plaintiff’s instruction 3 covering the measure of actual damages recoverable by plaintiffs. These alleged errors have not been preserved for review. At the trial defebdants objected “to the giving of Plaintiff’s Instructions numbered 1 to 5, at the request of the plaintiff, and to the giving of each of said instructions, the defendants, by their counsel, duly objected and excepted.” In defendants’ motion for new trial their only objection to the giving of this instruction is as follows: “3. Because the court erred in giving instruction 3 given by the court at the request of plaintiff, since said instruction put into issue the question of punitive damages when and whereas under the law and the evidence, plaintiff was not entitled to recover punitive damages, and for the further reason that said instruction was misleading.” The only portion of this objection contained in defendants’ motion for new trial that is directed to that portion of plaintiff’s instruction 3 covering actual damages is the latter part of the objection which states that “said instruction was misleading.”

This allegation of error contained in the motion for new trial is general in nature and fails to specify wherqin said instruction 3 was misleading. Civil Rule 79.03, V.A.M.R. plainly states that ~“[i]f any specific objections to instructions have not been made at the trial before submission to the jury, then such specific allegations of error in instructions must be set forth in the motion for new trial to preserve the error for review.” No specific objec'tion - to this instruction was made at the trial before submission to the jury and, therefore, it was incumbent upon defendants to specify the allegations of error in the instruction in their motion for a new trial. This they failed to do.

In the case of O’Brien v. City of St. Louis, Mo., 355 S.W.2d 904, the Supreme Court said: “Under this Rule (79.03) and Civil Rule 70.02 specific objections to an instruction may be made wholly before submission to the jury, wholly in the motion for new trial, or partly before submission and partly in the motion for new trial, but unless a specific objection is timely made at one place or the other, the alleged errors therein are not preserved for appellate review. (Citing cases.) The sound and logical reason for this Rule is that specific objections to instructions are to be presented to the trial court where the error, if any, can be corrected without the delay and expense of an appeal. If they are not so presented the party is deemed to have waived them.” No specific objections to that portion of instruction 3 dealing with the actual damages recoverable were made at any time during the trial before submission to the jury or in defendants’ motion for new trial.

In the last part of this point relied ■on by defendants, they allege that the court erred in giving plaintiff’s instruction 3 “for the further reason that said instruction put into issue the question of punitive damages.” Their sub-points 4, 5 and 6 deal with this portion of the principal point and have to do entirely and solely with punitive damages. Here again defendants are in violation of the Civil Rules. Civil Rule 83.05(a) plainly states that “[i]f a point relates to the giving, refusal or modification of an instruction (or instructions), such instruction (s) shall be set forth in full in the argument portion of the brief unless the point can be readily discerned and understood from a reading of only the questioned portion of the instruction, in which event it shall be sufficient to set forth only the íáttér.”'. That portion of instruction 3 covering punitive damages recoverable by the pláintiffs has not been set forth in defendants’ brief as is required under said Civil Rule 83.05(a).

In defendants’ Points 3, 4 and' 5 they complain about the court’s action in giving plaintiff’s instructions 4 and 5 and refusing defendants’ instruction t). All of these instructions involved the submission of punitive damages. None of these instructions or any portion' thereof have been set out in defendants’ brief and therefore are not reviewable, because of defendants’ failure to comply with' Civil Rule 83.05(a) heretofore cited. ,

However, our review of the pleadings and evidence in this case shows that the plaintiff was entitled to have punitive damages considered by the jury and that there was ho error in permitting the jury to return a verdict including punitive damages. Luikart v. Miller, Mo., 48 S.W.2d 867, 871; Dunham v. Tenth Street Garage and Sales Co., Mo.App., 94 S.W.2d 1096, 1099. Plaintiff’s instruction 4 told the jury that' malice “does not mean hatred, spite or ill will, as commonly understood, but it means a wrongful act intentionally done without just cause or excuse.” This instruction correctly defined malice as it applied to the facts in this ca'se. Simpson v. Burnett, 299 Mo. 232, 252 S.W. 949, 954; Dunham v. Tenth Street Garage and Sales Co., supra.

In their last point defendants contend that the verdict of the jury is excessive, pointing out that “damage for seller’s breach of' contract is difference between contract price and market value, or, if none, reasonable value of goods.” Citing Mankofsky-Goldstein Shoe Co. v. J. W. Carter Co., Mo.App., 33 S.W.2d 1049. We again point out that this is not an action for breach of contract but is one for fraud and deceit. Plaintiff’s instruction 3 told the jury that if “you find the-issues for the Plaintiff, you shall ásséss the amount of Plaintiff’s recovery at the difference, if any, between the value of the cow mentioned in evidence at the time Plaintiff purchased her and what her value would have been, if she had been registered in both Associations, * * This is the correct rule for the recovery of damages in a tort action for fraud and deceit where the property in question is retained by the one defrauded. Louis Steinbaum Real Estate Co. v. Maltz, Mo., 247 S.W.2d 652, 655, 31 A.L.R.2d 1052; Dolan v. Rabenberg, 360 Mo. 858, 231 S.W.2d 150; Menke v. Rovin, supra; Jeck v. O’Meara, 343 Mo. 559, 122 S.W.2d 897, 905, and Salmon v. Brookshire, supra.

On the issue of actual damages plaintiff’s evidence shows that the value of the cow mentioned in evidence at the time plaintiff purchased her was $190 to $210 when sold commercially. As to what her value would have been had she been registered in both Associations, the record shows the sum to be $640. It is true that this is the sum plaintiff paid for the cow, and in the absence of any other testimony on the part of plaintiff we assume this to be the value the cow would have been had she been registered in both Associations. Therefore, the difference between the value of the cow at the time purchased and what her value would have been if she had been registered in both Associations is $430. Unfortunately, plaintiff’s instruction 3 which, as we have said, is not properly preserved for review, in addition to permitting the jury to find as actual damages the difference between the value of the cow mentioned in evidence at the time plaintiff purchased her and what her value would -have been if she had been registered in both, Associations, permitted the jury to further And “for any loss, if any, that you find and believe from the evidence the Plaintiff suffered which reasonably resulted from said cow not being registered in both Associations.” As we have pointed out heretofore, the trial court admitted evidence showing the birth of three calves from the cow in question and further showing what plaintiff received from the sale of these calves and the market price of these calves had they been eligible for registration in both Associations. While the portion of instruction 3 set out above did not directly refer to the loss in connection with the sale of the calves, there was no other evidence that would permit the jury to bring in a verdict in excess of the difference between the value of the cow when purchased and its market value if it was eligible for registration in both Associations. Obviously, the jury considered as an element of damage the difference in value of the calves if registered or eligible for registration and their value as calves not eligible for registration. As said in the case of Salmon v. Brookshire, supra, these items are not within the scope of the applicable measure of damage rule, and therefore plaintiff was not entitled to recover for this item. As we have pointed out, the court entered a remittitur order of $250 but did not indicate whether the remittitur applied to the actual or punitive damages or both. We believe that because of the excess of the award for actual damages, the court intended that the remittitur be applied to the actual damages; but whether or not this was intended, we think the actual damages are still excessive. The amount of the punitive damages lies wholly within the discretion of the jury if it sees fit to award them. Menke v. Rovin, supra.

Inasmuch as there is no evidence that would support the judgment as reduced by the trial court we find said judgment to be excessive. If plaintiff will, within fifteen days from the date of filing this opinion, enter here a remittitur of $320, the aggregate judgment for $680 as of the date of the original judgment will be affirmed; otherwise the judgment will be reversed and the cause remanded for a new trial on the issue of damages alone.

ANDERSON, J., and L. F. COTTEY, Special Judge, concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Robert W. KENNEDY, Plaintiff-Respondent, v. BOKEN ASSOCIATES, INCORPORATED, Defendant-Appellant.
    No. 31582.
    St Louis Court of Appeals. Missouri.
    July 21, 1964.
    Paul Taub, Overland, for defendant-appellant.
    John T. Sluggett III, Clayton, for plaintiff-respondent.
   BRADY, Commissioner.

Judgment was entered in accordance with the jury verdict in favor of the respondent, hereinafter referred- to as the “plaintiff,” and .against the appellant, 'hereinafter referred to as the “defendant,” in the sum of $5,400.00 on plaintiff’s cause of action and in favor of the plaintiff and against the defendant on defendant’s counter claim. The,defendant does not raise any allegation of error-with respect to the judgment on its cotinter claim but appeals from the judgment for plaintiff on plaintiff’s cause of action. Its allegation of error dealing with the trial court’s action in improperly admitting certain evidence is determinative iof this appeal, and our recitation of the factual situation will be limited to .that issue.

The plaintiff was employed by the defendant as vice-president .and sales representative from the time defendant began business in July, 1955 until his discharge in November of 1957. The plaintiff’s petition alleged that after July, 1956 plaintiff’s salary was to be $900.00 monthly, but that he received only $600.00 monthly and that the defendant owes 'him $5,400.00 which it has refused to pay.

. The defendant was organized by the plaintiff and certain other original shareholders. The plaintiff was an original director of the defendant "corporation. The present shareholders and directors and officers of the defendant are of the third generation: that is, there have been two other sets of directors, officers and shareholders since the original incorporators. It is undisputed, that .during the administration of the second group of officers and •directors of the defendant the minute books ■of the corporation were stolen. The plaintiff testified that during his affiliation with the defendant and while he was a director, the officers of the defendant, all of whom were also directors, held meetings and that minutes were kept of 'these meetings. As has been stated, these minutes had been lost or had been stolen and were not available at the trial. The plaintiff testified that in July of 1956 at such a'meeting the then president o'f the defendant, a Mr. 'Boyle who was also a difector and shareholder, requested of the plaintiff that he continue as vice-president and sales manager at a salary of $900.00 per month. Plaintiff’s efforts to prove this salary of $900.00 consisted of his own testimony and his Exhibit 1. Exhibit 1 consists of four sheets of paper each containing handwritten notations and each bearing a date. The sheet dated 6/22/55 bears the handwritten notations “Boken Associates” and “Conference with M. Boyle.” The sheet dated 6/30/55 is also entitled “Boken Ass.” The sheet dated 9/7/55 is entitled “Meeting of stockholders” and the sheet of 8/28/56 bears the notations “Board Meeting” and “Notes on Minutes, Boken Assoc.” These sheets were stapled together. The plaintiff testified that Mr. Gilmore, attorney for the .defendant, was present at the meeting of July, 1956. The plaintiff introduced as his witness a Mr. McClintock who testified that he was an attorney at law formerly associated with Mr. Gilmore and that Mr. Gilmore had moved to California. His testimony was that during his association with Mr. Gilmore they represented Mr. Boyle and Boken Associates; that from the time he first became associated with Mr. Gilmore there was a file in the office containing some papers and other documents relating to defendant’s business; that in response to a subpoena duces tecum he had produced the books and records which he had found in his files and which pertained to the defendant; and that in the file he found stapled together the four sheets of paper which were introduced into the evidence as plaintiff’s Exhibit 1 and which had been previously referred to. Upon identifying Exhibit 1, Mr. McClintock was asked whether or not he could identify the handwriting found on the sheets of paper contained in that exhibit, and he stated that he could not. Upon that statement being made, the defendant objected to Mr. McClintock’s reading from Exhibit 1. The grounds stated for that objection was that no foundation had been laid and that the document was in “ * * * no way qualified as a matter of evidence. * * *” This objection was overruled and Mr. McClintock allowed to read that part of the handwritten material appearing on the fourth sheet of Exhibit 1 (dated 6/22/55) as follows: “A ‘Salaries: president-treasurer’, M. A. Boyle — there are’ two columns; one has a caption ‘month’. Under that it’s $200.00. Then to the right of that, a ’ figure over which there is no caption, it says figure seven, zero, zero, zero, zero, $700.00. Next one, vice president, secretary, R. W. Kennedy. Under the column which is captioned ‘month’, the figure is six, zero, zero, zero; apparently $600.00. And then to the right of that is the figure nine hundred, nine, zero, zero, zero; apparently $900.00. And then V. P. J. Pr’iesmeyer, in the first column, one, zero, zero; zero; apparently $100.00. And then to the right of that, four, zero, zero, zero; apparently $400.00. Now wait a second. Above that first column of figures there is a -word above the word ‘month’ which appears to be ‘a-c-t-u-a-1’, actual; but it’s not too clear. Q What was that? A' ;A-c-t-u-a*l', as I read it; actual month.” Upon- cross-examination McClintock testified that upon that same sheet appears the words “will incorporate at a later.” Upon eliciting that testimony defendant’s counsel requested the court to instruct the jury to disregard “this document” on the additional ground that it was a memorandum made before incorporation and not of any meeting of the board of directors of the defendant and was therefore incompetent and inadmissible. Whereupon counsel for the plaintiff stated: “If your Honor please, the entire document, which is now separated and was bound together heretofore, indicates it’s notes on the minutes of the Boken Associates Board meeting 8-28-1956.” Plaintiff’s counsel offered Exhibit 1 in evidence and requested leave to pass it to the jury. This was again objected to on the same "grounds as stated before and on the additional grounds that there had been no testimony from any of the other three sheets contained within Exhibit 1 and that they should not be passed to the jury, even if the jury was allowéd to view sheet 4 ■from which Mr. McClintock testified/

The plaintiff’s testimony did not contain any statement that there was a resolution passed by the board- of directors requesting him to stay in the defendant’s employ at a salary of $900.00 a month. His testimony was that Mr. Boyle asked him to do- so. His testimony did not contain any statement that Gilmore took notes at the July board meeting and neither is there any statement anywhere that it was Gilmore’s duty or his custom to prepare the minutes for the corporation. Also present at -the meeting of July, 1956 was a Mr. Gable who-was the secretary of the defendant at the times pertinent to this case.

The defendant contends that 'the'"-trial court committed prejudicial error in -admitting into evidence and in permitting -the jury to view plaintiff’s Exhibit 1. We have not been favored with a brief by the plaintiff, but his position throughout the trial with respect to ■ this issue was that the Exhibit 1 was secondary evidence and admissible because he had established that the-primary or best evidence, the minutes of the-board meeting of July, 1956 were unavailable without fault on his part.

“ * * * [T]he best evidence of which the case in its nature is susceptible and which is within the power of the party produce, or is capable of being produced, must always be adduced in proof of every disputed fact. Secondary évidence is never admissible unless it is made manifest that the primary evidence is unavailable, as where it is shown that it has been lost or destroyed, is beyond the jurisdiction of the court, or is in the hands of the opposite party who, on due notice, fails to produce it.” Miller v. John Hancock Mutual Life Ins. Co., Mo.App., 155 S.W.2d 324; l. c. 327-328; Doniphan v. Transue, Mo.App., 226 S.W. 635; Martin v. Martinous, Mo.App., 219 S.W.2d 667; City of St. Louis v. Boyle, Mo.App., 343 S.W.2d 675; 32 C.J.S. Evidence § 823. Plaintiff’s notice to defendant that it produce the original minutes was doubtless given out of an abundance of caution since it was admitted that the original minutes were not :in the possession or control of either party; but had been stolen. Secondary evidence has been permitted to be introduced where the primary evidence has been lost or destroyed without the fault of the party seeking to prove the fact in cases involving books and records of a corporation. 32 C.J.S. Evidence § 826. Before secondary evidence is admissible, it was incumbent upon the plaintiff to establish the fact that the original minutes of the corporation had been lost or stolen or to give the reason why they were unavailable. The burden of such proof rested upon him as the party seeking admission of the secondary evidence. 32 C.J.S. Evidence §§ 837, S38. In this case this fact was admitted, and so the burden was easily borne.

fi It follows from what has been above stated that the plaintiff did establish this as a case where secondary evidence could have been admitted. However, that does not decide the issue presented by this appeal. As might be expected from its admission that the original records of the corporation had been stolen, defendant always recognized the situation as one where secondary evidence might be expected to prove the plaintiff’s right to recover the additional $300.00 per month. Defendant’s position at the trial and before this court is that the secondary evidence must conform to the rules of evidence just as primary evidence, Scrivner v. American Car & Foundry Co., 330 Mo. 408, SO S.W.2d 1001, and that the secondary evidence here offered, Exhibit 1, was not properly admissible for this reason.

There are several reasons why we think defendant’s contention should be sustained and the trial court should have excluded Exhibit 1 for evidence. In the first place the exhibit consisted of four sheets of paper. McClintock testified from the last of these. That sheet bears the date of June 22, 1955 and the notation “Conference with M. Boyle.” The plaintiff’s own pleading and testimony was that the defendant corporation came into being and began business in July of 1955. When this fact is considered along with the notation “Conference with M. Boyle,” this part of Exhibit 1 cannot be said to be pertinent to the issue of whether the corporation raised plaintiff’s salary $300.00 in July of 1956. Another reason Exhibit 1 should have been excluded is that the plaintiff’s counsel was incorrect in his statement that “ * * * the entire document, which is now separated and was bound together heretofore, indicates it’s notes on the minutes of the Boken Associates Board meeting of 8-28-1956.” As stated earlier herein each of these four sheets of paper, while stapled together, bore separate dates and separate notations thereon. The notations appearing on the fourth sheet are referred to above. The third sheet bore the date “6/30/55” and the notation “Boken Ass.” The second sheet bore the date “9/7/55” and the notation “Meeting of stockholders.” Only the first sheet bears the date of “8/28/56” and the notations “Board Meeting” and “Notes on Minutes Boken Assoc.” Under these circumstances it is incorrect to state that all four sheets refer to the board meeting of 8/28/56. That is true only of the first sheet of Exhibit 1, and that sheet contains absolutely nothing, in words or figures, bearing on the issue of salary to be paid to plaintiff or to any officer. Moreover, it is well recognized that officers and directors of a corporation cannot recover compensation for their services whether those services are rendered as directors or officers unless such compensation is provided for in the charter or authorized by the by-laws of the corporation (neither contention is advanced in the instant case) or is provided for by resolution of the board of directors. Moon Motor Car Co. v. Moon, CCA Mo., 58 F.2d 90; 8 Mo. Digest, Corporations, ^308(1). Ferrenbach v. Edward Fehlig & Co., Mo.App., 80 S.W.2d 705, l. c. 707. Since the other three sheets of Exhibit 1 state on their face they do not deal with a meeting of defendant’s board of directors, they obviously cannot constitute evidence material to the issue of whether the plaintiff was entitled to receive the additional $300.00 monthly salary. They should not have been admitted into evidence.

The plaintiff’s position, as shown from the statement made to the trial court as set out earlier herein with regard to this exhibit being found in a file kept in the regular course of business, would seem to be that Exhibit 1 was admissible under the Uniform Business Records as Evidence Act; see Sec. 490.680, RSMo 1959, V.A. M.S. That contention is without merit. In order to render an instrument admissible in evidence under that act there must be testimony from one or more qualified witnesses of its identity, mode of preparation, and that it was made in the regular course of business, at or near time of the act, condition, or event in evidence, and that the sources of information, method and time of preparation were such as to justify its admission. McLendon v. Leighty, Mo.App., 320 S.W.2d 735. Even if we assume, and we do not so hold, that these notes can be said to have been taken in the regular course of business, it is evident that Exhibit 1 is not admissible. This for the reason that the record does not disclose any evidence bearing upon any of the other requirements stated in McLendon v. Leighty, supra,

The judgment should be reversed and the cause remanded. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed and the cause remanded.

WOLFE, Acting P.. J., ANDERSON, J., and R. KENNETH ELLIOTT, Special Judge, concur.

RUDDY, J., not participating.


author: DOERNER, Commissioner.

text:
    Charles W. LOTSHAW, Plaintiff-Appellant, v. Wilburn Hollis VAUGHN, Defendant-Respondent.
    No. 31408.
    St. Louis Court of Appeals. Missouri.
    July 21, 1964.

      Thurman, Nixon & Smith, Jeremiah Nixon, Hillsboro, Max C. Nelson, Harold I. Elbert, St. Louis, for plaintiff-appellant.
    Dearing, Richeson, Weier & Roberts, H. L. C. Weier,' Hillsboro,' for defendant-respondent..
   DOERNER, Commissioner.

This action arose out of a rear-end collision between two motor vehicles. Plaintiff, whose car was struck from the rear, sued defendant for personal injuries and property damages of $9617.68. Defendant counterclaimed for1 similar damages' of $1200.00. The jury returned a verdict in favor of defendant on plaintiff’s claim and for' defendant in the sum of $500 on his •counterclaim. Plaintiff prosecutes this appeal from the ensuing judgment. A companion case brought by plaintiff’s wife, a. passenger in his car, was decided by the Supreme Court eii Banc on June 8, 1964. Lotshaw v. Vaughn, Mo., 380 S.W.2d 410.

Since the only points raised on appeal involve two instructions given, at the request of defendant we may state the facts briefly. The collision occurred on October 30, 1960, at approximately 9:00 P.M., on Highway 30, north of and in the vicinity of Cedar Hill. It was a dark night and rain was falling at the time. From the outskirts of Cedar Hill northwardly the grade of the highway rises for about three blocks to a rounded hill, and then descends to a level stretch, according to plaintiff, or to a dip or “duck nest” between two hills, according to defendant. From the point of the collision south to the crest of the hill' is 768 feet, as measured by plaintiff and his witness, Deputy Sheriff Gerdees. At the scene of the accident Highway 30 is a two-lane concrete-paved road, 30 feet wide, according to plaintiff, 18 feet, according to Gerdees, with shoulders on both sides.

Plaintiff’s version of the occurrence, supported in general by the testimony of his wife, was that as his 1960 Ford Thunderbird topped the crest of the hill, proceeding northwardly, he saw a flashlight being waved in his lane of travel. He brought his car to a normal stop when he reached the individual signaling him, with the right wheels off on the shoulder and the left wheels on the pavement. He observed a car stopped on the southbound lane, with •its hood up and a man apparently working on the motor. Another man, whom he later learned was named Knox, who had flagged him down, explained that their car had flooded, out and asked plaintiff for a push. Plaintiff replied that his car was 'new but that he would continue onsand .send , a tow truck back. He started up, had his car back on the northbound lane, but had only gone three car lengths or about '40 feet when his automobile was struck from the rear by defendant’s vehicle. Plaintiff testified that he was stopped for only three to five seconds.

Defendant’s version was that he was proceeding north on Highway 30 at a speed of about 35 miles per hour. It was raining very hard. His windshield wiper was operating and his headlights were on. He reached the top of the hill' south of the point of collision and started down, and his speed may have increased slightly. He first saw plaintiff’s car a second or so before the impact. As defendant described it, “ * * * it was so close that I was too close to him to ever keep from hitting him when I saw him.” Plaintiff’s car, according to defendant, was stopped squarely in the northbound lane, and did not move before the impact occurred. Defendant hit his brakes so hard that his wife, in the car with him, was thrown forward, breaking the windshield with her head and some chrome on the dash with her knee. He also tried to swerve to the left, but the center of his car hit the left rear of plaintiff’s automobile, forcing his bumper under that of plaintiff’s. Defendant testified that because of the topography his headlights would not have illuminated plaintiff’s vehicle “ * * * until after I was near about half way down the hill.” On cross-examination defendant declined to “guess” his distance from the Thunderbird when he first saw it.

Defendant’s witnesses Fox and Triplett corroborated defendant’s testimony that plaintiff’s car was stopped in the northbound lane at the time the collision occurred and both estimated that it had been so stopped for from three to five minutes. Knox also testified that his own car was completely off of the paved portion of the highway and on the west shoulder.

In his petition plaintiff charged defendant with negligence in overtaking and colliding with the rear of plaintiff’s motor vehicle, as well as negligence in operating his car at an excessive speed under the circumstances, failure to keep a lookout, failure to have his automobile under control, failure to warn, slacken speed, swerve •or stop, and humanitarian negligence in failing to have stopped, swerved, slackened speed or warned. However, the only ground on which plaintiff submitted his case to the jury was under what has become known as the rear-end collision doctrine. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360.

The two instructions criticized by plaintiff are as follows:

“INSTRUCTION D-4
“The Court instructs the jury that if you find and believe from the evidence that on the occasion in question, the defendant, Vaughn, was driving north-wardly on Highway 30 at a speed of 35 to 40 miles per hour and that it was raining, dar, (sic) and visibility was poor, and that as he drove North-wardly, he passed the crest of a hill and as he started down on the other side, his lights shown upon the Thunderbird automobile operated by the plaintiff, Charles W. Lotshaw; and if you further find that the said Charles W. Lotshaw had stopped his Thunderbird upon the paved portion of said Highway 30 in the Northbound traveled lane thereof in a low place on said highway beyond (sic) the crest of said hill and filed (sic) to place the right side of his motor vehicle as near the right hand side of the highway as practicable ; and if you further find that in so doing the said Charles W. Lotshaw failed to exercise the highest degree of care in the operation of his automobile and was negligent; and if you further find that his negligence, if any, caused, or contributed to cause, the collision between the two automobiles as aforesaid, then, even though you may also find the defendant, Vaughn, negligent under other instructions herewith submitted to you, your verdict will be in favor of the defendant, Vaughn, and against the plaintiff, Lotshaw.”
“INSTRUCTION D-6
“The Court instructs the jury that in respect to the defendant’s counterclaim, if you find and believe from the evidence, that on the occasion in question, the defendant, Vaughn, was exercising the highest degree of care for his safety and the safety of others upon said highway and was driving northwardly on Highway 30 at a speed of 35 to 40 miles per hour and that it was raining, dark, and visibility was poor, that as he drove Northwardly, he passed the crest of a hill and as he started down on the other side, his lights shown upon the Thunderbird automobile operated by the plaintiff, Charles W. Lotshaw; and if you further find that the said Charles W. Lot-shaw had stopped said Thunderbird automobile upon the paved portion of said Highway 30 in the Northbound lane thereof in a low place on said highway beyond the crest of said hill and failed to place the right side of his motor vehicle as near the right hand side of the highway as practicable; and if you further find that in so doing the said Charles W. Lotshaw failed to exercise the highest degree of care in the operation of his automobile and was negligent; and if you further find that the negligence of Charles W. Lotshaw, if any, directly caused the collision between the two automobiles and that as a result thereof the defendant, Vaughn, was injured and his property damaged, and that Vaughn was not guilty of negligence as submitted to you in other instructions, then your verdict will be in favor of the defendant, Vaughn, and against the plaintiff, Lotshaw on defendant’s counterclaim.”

The sole and only complaint made as to both instructions, as expressed in plaintiff’s brief, is that “The foregoing instruction tells the jury that a speed of 35 to 40 miles an hour on a night when it is raining and visibility is poor is not negligence. Under this instruction the jury was told in effect that defendant was in the exercise of the highest degree of care even though he was driving at 35 to 40 miles an hour on a night when it was ‘raining very hard’ * * Plaintiff contents himself with the generality of his complaint, and does not undertake to point out the specific language by which, according to plaintiff, the jury.was told that defendant was not negligent in traveling at the speed and under the conditions mentioned.

Whatever other infirmities may be inherent in the foregoing instructions we cannot agree that they are vulnerable to the charge made by plaintiff. There is no statement in either instruction by which the jury was told, directly or indirectly, that in operating his automobile at a speed of 35 to 40 miles an hour under the existing conditions defendant was not negligent. As we read the instructions, the reference to defendant’s speed and to the prevailing conditions was “ * * * a mere statement of the evidentiary facts * * Coit v. Bentz, Mo., 348 S.W.2d 941, 944. There was not only evidence to support the hypothesization of defendant’s speed, but no dispute about it. For plaintiff testified that defendant told him he had been going 40 miles an hour, and defendant stated that he was traveling at 35 miles an hour as he came over the crest of the hill and that his speed increased a little bit as he went downgrade.

It is apparent that by Instruction No. D-4 defendant sought to interpose the defense of contributory negligence as a bar to plaintiff’s recovery on his claim. The facts hypothesized were that plaintiff had stopped his automobile upon the paved portion of the highway at a low place beyond the crest of the hill, and that it was raining, dark, and visibility was poor. These facts were sufficient upon which the jury might base a finding of contributory negligence on the part of the plaintiff. Lotshaw v. Vaughn, supra; House v. Sante Fe Trail Transp. Co., Mo., 217 S.W.2d 382. The jury was told that if it found that in so doing plaintiff had been negligent, and that such negligence caused or contributed to cause the collision, then even though it found the defendant negligent under other instructions, its verdict would be in favor of defendant on the issue. Instruction No. D-6 was limited to the defendant’s counterclaim. The facts regarding defendant’s action in stopping on the •highway, under the conditions described, were likewise hypothesized. The jury was required to find that in so doing plaintiff was negligent, and was expressly told that ■before it could find for defendant on his ■counterclaim it must find that defendant was not guilty of negligence as submitted in other instructions.

The question of whether or not ■defendant exercised the highest degree of care was for the jury. Lotshaw v. Vaughn, supra; Withers v. Pettit, Mo., 337 S.W.2d 66. In our opinion that issue was submitted to the jury by both instructions and was not removed from the jury’s consideration. Boresow v. Manzella, Mo., 330 S.W.2d 827.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court.

Accordingly, judgment is affirmed.

WOLFE, Acting P. J., ANDERSON, J., and R. KENNETH ELLIOTT, Special Judge, concur.


author: PER CURIAM.

text:
    SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Petitioner, v. METALAB EQUIPMENT COMPANY, a Corporation, Respondent.
    No. A-10210.
    Supreme Court of Texas.
    July 8, 1964.
    Ernest A. Knipp, Houston, for petitioner.
    William W. Byrd, Houston, for respondent.
   PER CURIAM.

This is a suit for the breach of a contract to buy laboratory equipment. The trial court sustained a plea in abatement by •■the defendant-petitioner, Spring Branch Independent School District, on the grounds that the plaintiff-respondent had not alleged or otherwise shown that it had exhausted the remedy of appeal to the proper school authorities. The Court of Civil Appeals reversed and remanded. 378 S.W.2d 347. In our opinion this action does not embrace a complaint relating “to a matter properly belonging to the administration of school laws.” The action is one for a debt allegedly owing by the petitioner for equipment furnished the school district under contract. The application for writ of error is refused, no reversible error. Warren v. Sanger Independent School District, 116 Tex. 183, 288 S.W. 159, (1926); Cook v. Neill, 163 Tex. 49, 352 S.W.2d 258 (1961); McIntyre v. Hoblinski, Tex.Civ.App., 333 S.W.2d 697 wr. ref. (1960).


author: SMITH, Justice.

text:
    TEXAS SAND COMPANY et al., Petitioners, v. Donald L. SHIELD et al., Respondents.
    No. A-9628.
    Supreme Court of Texas.
    July 8, 1964.

      Cofer, Cofer & Hearne, Austin, for petitioners.
    Snodgrass, Smith, Rose & Finley, San Angelo, H. O. Woodward, Coleman, for respondents.
   SMITH, Justice.

This suit was instituted on February 28, 1959, in the District Court of Coleman County by Respondents, Donald L. Shield, Leona Shield Montgomery, Charles L. South, James W. Dibrell, Josephine Dibrell Jobe, Elizabeth Dibrell, Joseph B. Dibrell, Jr., John F. Petty and James Robert Petty, hereafter referred to as plaintiffs, against Petitioners, Texas Sand Company, a corporation, Shield Oil and Gas Company, a corporation, Bridwell Oil Company, Elgean Shield and wife, Flora Shield, Richard Shield and wife, Sylvia Shield. Elgean C. Shield, F. Craig Morton, Otto Reynolds, H. & R. Drilling Company and John Hancock Mutual Life Insurance Company, hereafter referred to as defendants. Defendants Morton, Reynolds and H. & R. Drilling Company filed disclaimers.

Plaintiffs went to trial upon their First Amended Original Petition, wherein it was alleged that two conveyances made by defendants of a tract of land containing approximately 2,031 acres “were merely sham transactions with no intention to pass title to the Grantees therein, and the Grantors therein had no intention that such instruments should become effective as a conveyance of the properties described therein.” In the alternative, plaintiffs alleged that the first conveyance in question was made “with the intent to hinder, delay and defraud [plaintiffs] of and from the collection of their judgment debt.” Plaintiffs prayed that the conveyances in question “be adjudged fraudulent and void as against plaintiffs, and that same be set aside and held for naught, that plaintiffs’ judgment lien be foreclosed against the property conveyed and that such property be sold for the satisfaction of the judgment of plaintiffs.”

The defendants pleaded several affirmative defenses to the suit. However, we are concerned only with the pleaded defenses that the plaintiffs’ suit, filed on February 19, 1959, to set aside the deeds, dated March 1, 1954, and March 17, 1954, was barred by the Texas four-year statute of limitations, Article 5529, Vernon’s Annotated Civil Statutes. The defendants further pleaded that they had peaceable and adverse possession of the 2,031-acre ranch for three years prior to February 19, 1959, the date of the filing of this suit. In regard to this latter plea, the defendants take the position that a deed, void because it is in fraud of creditors, is sufficient to support limitation title under the Texas three-year statute of limitations, Article 5507, Vernon’s Annotated Civil Statutes.

The case was tried to the Court with the aid of a jury, but at the close of all of the evidence, the defendants filed a motion for instructed verdict, alleging as grounds therefor that (1) under the undisputed evidence, the suit was barred, as a matter of law, by the four-year statute of limitations, Article 5529, supra; and (2) as a matter of law, plaintiffs’ suit was barred by the Texas three-year statute of limitations, Article 5507, supra.

The trial court overruled defendant’s motion for instructed verdict and submitted special issues to the jury.

The jury, in answer to special issues, found: (a) that the first conveyance in question was executed with the intent to hinder, delay and defraud plaintiffs in the collection of their debts; (b) that the parties to the deeds did not intend that such deeds should be effective as conveyances of the properties therein described; (c) that at the time of the execution of the first deed in question, the title of record in the name of the defendant, Elgean Shield, to the land in controversy was not held for the use and benefit of his wife, Flora Shield; (d) that the defendant, Texas Sand Company, together with its successors in title, had not held peaceable and adverse possession of the 2,031-acre tract of land for three years prior to the date this suit was instituted; (e) that both deeds in question were not based upon a substantial and valuable consideration.

Based upon the jury. verdict, the trial court rendered judgment for plaintiffs, set aside the two conveyances, held that plaintiffs had a valid judgment lien against the land in question (subject to the rights of certain parties), and foreclosed the plaintiffs’ judgment lien. The' Court of Civil, Appeals for the Eleventh Supreme Judicial District at Eastland, Texas, has affirmed. 367 S.'W.2d 88. We affirm the judgments of both courts.

The facts are these: On March 1, 1954, the defendants, Elgean • Shield, his wife, Flora Shield, and Shield Oil & Gas Company, conveyed .the land in question, among other properties, to- the defendant Richard Shield. By instrument dated March 17, 1954, the defendants, Richard -Shield and wife, conveyed the land in question and all other 'properties conveyed to them on March T; 1954, to the ' defendant, Texas Sand Company, a . corporation -organized By Elgean Shield. Both of these conveyances were recorded in Coleman County on April 5, 1954. ' It is these two conveyances which the plaintiffs are attacking in the present suit as being “sham transactions” which were allegedly given with the intent to defraud plaintiffs from the collection of their debt. In order to understand the Basis of the plaintiffs’ allegations, it is necessary to set out the details of an earlier suit between these parties.

Prior to 1952, the defendants, Elgean Shield and Shield Oil & Gas Company, were indebted to plaintiffs. This indebtedness was the subject matter of a lawsuit which was heard in the 83rd District Court of Jeff Davis County, Texas, and on July 26, 1954, plaintiffs recovered judgment against these two defendants in the amount, of $45,468.51. An abstract of this judgment was filed for record in Coleman County,. Texas, on September 7, 1954, and thereafter duly recorded. On' appeal to the Court of Civil Appeals, the judgment for'' the Eighth Supreme Judicial District at El Paso, Texas, affirmed this judgment in favor of plaintiffs. All rights of appeal to this court were fully exercised and the judgment became in all things final.

On June 18,-1956, execution was ordered on the judgment. On June 20, 1957, the execution was returned nulla bona■ by the sheriff of Coleman County, Texas. (In its - opinion in the present case, the Court of ■ Civil Appeals erroneously stated June '20, 1959.)

In the present case plaintiffs contend that the two conveyances in question were exer cuted on the part of defendants with the intent to hinder, .delay and defraud plaintiffs from the collection of this judgment.

We shall first-consider the defendants’! contention that' there is no evidence'' to' support the jury’s findings that the 'conveyl. anee of March 1, 1954, from! Elgean-Shield, and wife to Richard Shield, was made with the intent to hinder, delay and defraud the-plaintiffs in the collection of their-.debts. We overrule the defendants’ contention. ,

First, this conveyance was made-just prior to the trial of the case in Ft., Davis in which the plaintiffs were seeking a money judgment against the defendant Elgean Shield. This court has held that, the existence of pending suits against an indebted vendor at the time of a transfer alleged to be fraudulent is a sign of fraud. See Briscoe v. Bronaugh, 1 Tex. 326 (1846). The record further discloses that the transfer of March 1, 1954, purported to cover-not only the 2,031 acres in dispute, but also all of the grantor’s property, both real and personal, except his homestead. It is a badge of fraud when a debtor transfers all 'of his property subject to execution. As stated by this court in Hughes v. Roper, 42 Tex. 116:

“ * * * The conveyance was evidently designed to embrace all of the property of Reece Hughes, sen., subject to execution. The exception of his homestead of two hundred acres, and •of his saddle pony, if it has no other significance, at least shows that the idea •of property by law exempt from execution was present to the mind of the grantor. With these exceptions, the conveyance embraced not only all his lands and stock, but a large number of accounts and notes, many of them in process of collection, and was unusual in its character. * * * All these are badges of fraud; that is, evidence of fraud — means of establishing a fraudulent intent. (Bump on Fraud. Convey., 78, et seq.) * * * ”

The grantee of the conveyance in question was the son of the grantor. While evidence of a blood relationship between the parties in itself does not conclusively show fraud, such relationship may be of importance when coupled with other circumstances that tend to show fraudulent intent. See Shearon v. Henderson, 38 Tex. 245, 246 (1873); Hughes v. Roper, supra; Blum v. McBride, 69 Tex. 60, 5 S.W. 641 (1887). The recited consideration for this conveyance to Richard Shield, who was a college student at the time, was “the sum of Ten Dollars ($10.00) and other good and valuable considerations to us — paid by Richard Shield — and the love and affection which we bear toward our son.” The deed also recited as consideration the assumption by Richard • Shield of a stated indebtedness in the amount of approximately $92,000.00. The jury found in answer to special issues that both the deeds of March 1, 1954, and March 17, 1954, were not based upon- a substantial and valuable consideration, and that the property described in such deeds had more value than was reasonably sufficient to pay all just debts, the payment of which was assumed in said deeds. The defendants have not brought forward to this court any point attacking these jury findings. From a review of the entire record, this court cannot say, as a matter of law, that there is no evidence to support the jury’s findings that the conveyance of March 1, 1954, was given with the intent to hinder, delay and defraud the plaintiffs in the collection of their debts.

Plea of the Four-Year Statute of Limitation

We shall next dispose of the defendants’ contention that the plaintiffs’ cause of action was barred by the four-year statute of limitations. It is the defendants’ position that the only remedy available to the plaintiffs was an equitable action to set aside the conveyances as fraudulent, and that such an action was barred by Article 5529, supra. The defendants contend that since the plaintiffs obtained their judgment in Ft. Davis after the fraudulent conveyances were made, the plaintiffs are not entitled to relate the judgment back so as to establish a lien on the property at the time of conveyance when legal title to the property stood in the name of the defendant. Thus, the defendants conclude that the plaintiffs had no judgment lien which they could establish and foreclose unless they first maintained an equitable action to set aside the fraudulent conveyance.

On the other hand, the plaintiffs argue that since they were judgment creditors of the defendants, they had alternative remedies available. First, the plaintiffs argue that they could maintain an equitable suit to set aside the fraudulent conveyances as an obstruction to the collection of their debt. Alternatively, the plaintiffs insist they could establish and foreclose their judgment lien on the land fraudulently conveyed. The plaintiffs argue that this alternative remedy was available to them without first maintaining an equitable action to set aside the conveyances. We sustain the plaintiffs’ position.

In Eckert v. Wendel, 120 Tex. 618, 40 S.W.2d 796, 76 A.L.R. 855 (1931), the defendant, who was a debtor of the plaintiff, fraudulently conveyed certain land in 1921. Not until 1927 did the plaintiff-creditor institute proceedings whereby he obtained a judgment against the defendant for the debt. Thereafter, in 1928, the plaintiff brought suit to cancel the 1921 conveyance as fraudulent, and to establish and foreclose his judgment lien. In answer to the defendant’s argument that the suit was barred by the four-year statute of limitations (Article 5529, supra), this court first set out the general rule that until a creditor fixes a lien his only remedy as against the grantee in a conveyance of real estate in fraud of his rights “ * * * is an action for a decree annulling the conveyance as an obstruction to the collection of his debt. Such an action is not one for the recovery of land, nor is it one to enforce a lien on land, but it is simply an action to cancel a conveyance of land because of fraud, and, no other period of limitation being prescribed for such an action, it comes within the four-year statute.”

However, the Court further held that since the plaintiff had obtained a judgment against the defendant, Article 5529, supra, did not bar his right to foreclose this judgment since:

“ * * * a suit to enforce a subsisting judgment lien on land against a grantee in a conveyance void under our statutes as to the judgment creditor is not barred until the fraudulent grantee or his assigns acquires ‘full title’ to the land, ‘precluding all claims,’ under some statute of limitations which would bar an action for the recovery of real estate.”

There is no merit to the defendants’ position that the Eckert decision conflicts with cases by this court which hold that a judgment lien does not attach to land until an abstract of judgment has been properly recorded and indexed. The Eckert case does not hold that a judgment creditor may relate his judgment back so as to establish a lien on land which is fraudulently conveyed prior to the creditor obtaining a judgment. No holding in the Eckert decision was based on the “relation-back” doctrine.

The theory of the Eckert case is simply that a conveyance which is found to be fraudulent as to creditors is wholly null and void as to such creditors under the provisions of Articles 3996 and 3997, Vernon’s Annotated Civil Statutes. It necessarily follows that the legal as well as the equitable title remains in the debtor for the purpose of satisfying debts. Thus, when the creditor obtains a judgment against the debtor, and properly records and indexes an abstract of such judgment, the creditor acquires a lien upon the land just as though no transfer had been made.

In the Eckert case, decided in 1931, this court held that the legal remedy of establishing and foreclosing his judgment lien is available to a judgment creditor without first maintaining an equitable action to set aside the fraudulent conveyance. Furthermore, this remedy of foreclosure may be pursued by the creditor even when his equitable action to set aside a conveyance has been barred by Article 5529, supra. We can see no sound basis, at this late date, for overruling the Eckert decision and now holding that a debtor, by fraudulently conveying his land prior to the entry of judgment, may force a judgment creditor to pursue only an equitable remedy, and deprive the judgment creditor of his legal right to foreclose his judgment lien. Under the Eckert case, this “direct attack” based on his judgment is available to the creditor until the fraudulent grantee or his assigns acquire “full title” to the land, “precluding all claims,” under some statute of limitations which would bar an action for the recovery of real estate.

Adverse Possession Under the Three-Year Statute of Limitations

The defendants next argue that the plaintiffs were barred from foreclosing their judgment lien because they (the defendants) had acquired “full title” to the land in question, thereby “precluding all claims,” under Article 5507, supra.

The jury found that the defendant Texas Sand Company, together with its successors in title, had not held peaceable and adverse possession of the 2,031 acres in question for three years prior to the institution of this suit. The burden was upon the defendants to establish the affirmative of this issue. The evidence fails to show as a matter of law that the defendants discharged their burden of proving that they had established title under the three-year statute of limitations. The defendants argue that they proved peaceable and adverse possession by the Texas Sand Company and Flora Shield for a period of three years under “title” or “color of title,” as provided for in Article 5507, supra. We do not agree.

The last transfer of record involving the land in question was the deed dated March 17, 1954, from the defendants Richard Shield and wife to the Texas Sand Company. This company was incorporated by the Shield family on February 2, 1954. Its right to do business in this state was forfeited on July 5, 1955, for failure to pay franchise taxes. On September 1, 1956, the Attorney General forfeited the company’s charter for the same reason.

The defendants recognize that the claimed possession exercised by the Texas Sand Company did not fulfill the requirements of the three-year statute. In fact, the person who claimed possession of the land at the time of trial was not the Texas Sand Company, but was the defendant Flora Shield.

In regard to Flora Shield’s claim of title by adverse possession, the uncon-tradicted evidence shows that the chain of transfers of the land in question does not extend to her. Any interest she had in this land passed under the conveyance of March 1, 1954. This is so because a conveyance, though fraudulent, is valid as between the parties to the conveyance. See Eckert v. Wendel, supra; Douglas v. First National Bank, 120 Tex. 631, 40 S.W.2d 801 (1931); Rutherford v. Carr, 99 Tex. 101, 87 S.W. 815 (1905). After the last transfer of record involving this 2,031 acres was made to the Texas Sand Company on March 17, 1954, no further deeds were executed.

The defendants argue that it is immaterial whether or not there was a written deed from the company to Flora Shield. It is their position that she was the owner of the company, and that when its charter was forfeited, the alleged “title” or “color of title” of the company automatically transferred to Flora Shield, thereby extending the possession for the full three years. The defendants further argue that upon the dissolution of the company, the corporate assets became the property of- its stockholders, in proportion to their respective shares. The defendants then conclude that since Flora Shield was the sole stockholder in Texas Sand Company, the sole question is whether the title acquired by her to the property of the company upon its dissohy tion constitutes “title” or “color of title” within the meaning of Article 5507, supra.

The difficulty with the defendants’ position, even assuming that it correctly states the law, is that the jury .could reasonably believe from the evidence that Flora Shield was not the owner and sole stockholder of Texas Sand -Company. In this regard, Flora Shield testified that no stock certificates were ever-issued by the company; that no stock- was paid for in cash; - and that she did not have any evidence in writing to show her to be the’owner of such stock. Elgean Shield also testified that he did not know of any stock being issued to show-who owned the company and, although he stated he was-the-last-president of the company, he did hot know who owned it. - - - -'

The record in this case does. not show, as. a matter of law, that the Texas Sand Company, or its successors in title, held adverse possession of the land .in question in compliance. with the - requirements of Article 5507.

Validity of the Judgment Lien

The defendants next argue that at the time of the March 1, 1954, conveyance, the land in question was the separate property of Flora Shield. According to the- defendants, if the record title appeared in Elgean Shield prior to March-1, 1954, “the undisputed evidence is that he held as trustee for his wife, Flora Shield.” ' Thus, • the defendants conclude that the plaintiffs'have no valid judgment lien to foreclose because the judgment which they acquired: in Ft. Davis against Elgean Shield could not be said to attach as a' lien- to' the separate' property of Flora Shield.

The jury found that at the time of the-March 1,. 1954, conveyance, the record title in the name of Elgean Shield to. the 2,031-acre tract was not held for the-use and benefit of his wife; Flora Shield.. The' defendants contend that therfe is no. evidence to support this finding.:'. We do-not agree. ■

In 1937 the status of-the 2,031 acres was, that, by inheritance, Elgean Shield owned a %oths interest, I. O. Shield owned ■ a %sths interest, Camille Wallace owned á %5ths interest, Leon Shield owned a- %sths interest ’and Shield Brown owned a %5th interest. All of these parties'had joined in a mortgage and deed of trust to P. 0. Ketchum, which lien and note were later transferred to Kansas City Life Company! The interest" of León Shield was mortgaged under a deed of trust, which was a -second lien, to the First Coleman National Bank, and both notes were in default in 1937-Mrs. Flora Shield knew of these mortgages and knew that the notes were delinquent. At that time, in 1937, I. O. Shield, by two separate deeds, conveyed his interés't in the land to Mrs. Flora Shield (and in addition 500.more acres, which were later convéyed by Elgean Shield to Camille Wallace in the partition suit), and Elgean Shield, conveyed' his interest in the land to Mrs. Flora Shield-The deed to the 2,031 acres .from' I. .0.1 Shield recited that it conveyed his, %6ths-interest,' and .the deed to'the'500' acres recited that it conveyed “all my right, title and interest as it appears” in the said lands'. The deed of Elgean Shield to .Flora Shield also conveyed "all of my interest as it appears” in the said lands.

The First Coleman National -Bank then acquired the lien of Kansas City Life Com; pany and foreclosed against the land, and a trustee’s deed was executed-to the First Coleman National Bank in early 1938. -A. ratification deed was then executed to the-First Coleman National Bank by all of the-parties including Mrs. Flora Shield, and this-ratification contained a warranty of title. .

In 1938 the land was conveyed by the-First Coleman National Bank to’Elgean-, Shield,, arid he conveyed an undivided interest therein to Camille Wallace. This undivided interest was later the subject •of a partition suit in 19S0, and deeds were ■exchanged, Camille Wallace conveying to Elgean Shield all of her interest in the 2,031 acres and Elgean Shield conveying to Camille Wallace all of his interest in the 5Q0 acres.

In 1947 Elgean and Flora Shield executed a deed of trust on their interests in the .2,031-acre ranch to the Ortin Associates securing the payments of certain notes, and in 1949 this deed of trust was foreclosed and the property was conveyed by trustee’s •deed to Shield Oil and Gas Company. In 1950 Shield Oil and Gas Company conveyed the said 2,031 acres to Elgean Shield, such deed reciting “unto the said Elgean Shield out of his sole and separate estate.”

The defendants contend that the deed ■ from Elgean Shield to Flora Shield in 1937 was a warranty deed. Thus, the defendants contend that the deed from The First Coleman National Bank to Elgean Shield in 1938 was an “after-acquired” title. We do not agree, As stated by the Court of Civil Appeals;

“ * * * the conveyances to Flora 'Shield-in 1937 conveyed the ‘right, title and interest as it appears’ in the property and the evidence shows that the right, title and interest of each of the grantors was subject to mortgages and deeds of trust, the existence of which was well known by Mrs. Shield. These mortgages were foreclosed and thereby Mrs. Shield’s separate interest in the land was also foreclosed and lost.”

Furthermore, Flora Shield joined in the deed of trust with her husband in 1947 to Ortin Associates, and on foreclosure of this deed of trust a trustee’s deed was given to Shield Oil and Gas Company. Then Shield Oil and Gas Company conveyed the subject property to Elgean Shield, reciting that the consideration was paid out of his sole and :separate estate and the deed was made to him as his sole and separate property. The record does not show, as a matter of law, that at the time of the March 1, 1954, deed, the land in question was the separate property of Flora Shield.

Jury Argument

In addition to the questions heretofore considered, the defendants urge that a certain argument made to the jury by plaintiffs’ counsel was so inflammatory and prejudicial as to constitute reversible error.

The particular argument which defendants contend requires a reversal of the judgments of the trial court and the Court of Civil Appeals was made by one of the plaintiffs’ attorneys in the closing argument to the jury. The attorney stated:

“Now, let’s see what right we have to expect from some of the other parties in the case. First, we can expect this: We can expect the testimony of the defendants to come from professional litigants. Mr. Cofer says that you can look through all these and you don’t see Elgean and Flora Shield bringing suits. Mr. Cofer, I say to you that today I don’t see your client Billie Sol Estes bringing a suit against anybody either.” ■

Counsel for the defendants immediately objected to this argument and moved for a mistrial. The trial court sustained the objection arid instructed the jury to disregard the statement, but overruled the defendants’ motion for a mistrial. The plaintiffs insist, and the Court of Civil Appeals has held, that the reference to Billie Sol Estes was not improper because the argument was invited by counsel for the defendants. However, we find it unnecessary to decide whether .it .was invited since we have concluded that, in any event, the argument, although entirely out of the record, was not such as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Clearly, the argument complained of was improper. ' A litigant is entitled to have his counsel argue the facts of the cause to the jury. Counsel may properly discuss the reasonableness or unreasonableness of the evidence and its probative effect or lack of probative effect; but such latitude extends only to the facts and issues raised by the evidence admitted under the ruling of the Court. See Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054 (1940).

Although the statement that the defendants’ counsel also represented Mr. Estes had no legitimate bearing on any issue to be decided by the jury; and, although we accept the statement of defendants’ counsel that “[a]t the time this remark concerning Billie Sol Estes was made to the jury * * *, Mr. Estes enjoyed a notoriety and infamy seldom before known in this country,” it remains that before reversing a judgment because of the argument, it must appear not only that the argument was improper, but that it was such as to satisfy an appellate court after a review of all of the evidence that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rules 434 and 503, Texas Rules of Civil Procedure; Aultman v. Dallas Railway & Terminal Company, 152 Tex. 509, 260 S.W.2d 596 (1953). Unless the argument of plaintiffs’ counsel was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case, this court will not disturb the judgments of the courts below even though the argument complained of. was improper and uninvited. The question of whether the argument was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment, is to be determined as a matter of our judgment in the light of the record as a whole. See Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951); Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191 (1949).

Regrettably, on several occasions this court has been called on, to decide whether an argument by counsel necessitated a reversal of a cause. In some of the cases, such as Southwestern Greyhound Lines v. Dickson, supra, it has been held that argument otherwise excessive or improper is justified by “invitation” emanating from the opposite side. In other cases, such as Blum v. Simpson, 66 Tex. 84, 17 S.W. 402 (1886), the rule as announced in Southwestern Greyhound does not authorize the use of language, the purpose of which is only to influence or prejudice the jury. Other cases deal' with the question of whether certain types of arguments are “curable” or “incurable.” See Wade v. Texas Employers’ Ins. Ass’n., 150 Tex. 557, 244 S.W.2d 197 (1951); Houseman v. De Cuir, 155 Tex. 127, 283 S.W.2d 732 (1955). However, regardless of the type or, category in which an argument might fall, the true test is as laid down in Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954), the test that has been consistently followed by this court since the adoption of Rules 434 and 503, supra. In the Haywood case, we said:

“The true test is the degree of prejudice flowing from the argument— whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict.”

In spite of the admonitions contained in the Haywood and other cases, it seems that some lawyers continue to disregard the fact that they are officers of the court, and, as such officers, have taken ah oath which calls for the highest type of ethical conduct in the performance of their duty in the trial of cases.

Each departure from this degree of ethical conduct, when properly objected to and preserved for review, requires this court, under the rules and the authorities, to examine the entire record to determine whether an argument was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. It seems that lawyers, as officers of the court, would refrain from injecting into a case matters that are entirely foreign to the issues involved and which could easily, under some, situations, bring about a reversal.

We have been compelled to examine the entire record, and in the light of the whole record, it' seems more than likely that the jury’s finding that the deed involved was executed with the intent to hinder, delay and defraud the creditor-plaintiffs, was based on the evidence rather than upon the statement of plaintiffs’ counsel in which he referred to Billie Sol Estes. We can reach no other conclusion but that the argument, although improper, was not such as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.

This disposes of all questions necessary to a decision in this case. The judgments of the trial court and the Court of Civil Appeals are affirmed.

      . “Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.”

      . “Suits to recover real estate, as against a person in peaceable and adverse possession thereof under title or color of title, shall be instituted within three years next after the cause of action accrued, and not afterward.”

      . “Every gift, conveyance, assignment, or transfer of, or charge upon, any estate real or personal, every suit commenced, or decree, judgment or execution suffered or obtained and every bond or other writing given with intent to delay, hinder or defraud creditors, purchasers, or other persons of or from what they are, or may be, lawfully entitled to, shall, as to such creditors, purchasers or other persons, their representatives or assigns, be void. This article shall not affect the title of a purchaser, for valuable consideration, unless it appear that he had notice of the fraudulent intent of his immediate grant- or, or of the fraud rendering void the title of such grantor.”

      . “Every gift, conveyance, assignment, transfer or charge made by a debtor, which is not upon consideration deemed valuable in law, shall be void as to prior creditors, unless it appears that such debtor was then possessed of property within this State subject to execution sufficient to pay his existing debts; but such gift, conveyance, assignment, transfer or charge shall not on that account merely be void as to subsequent creditors, and though it be decreed to be void as to a prior creditor, because voluntary, it shall not for that cause be void as to subsequent creditors or purchasers.”