author: JONES, C. J. LOONEY, J. JONES, O. J.

text:
    GULF, C. & S. F. RY. CO. v. PEARLSTONE MILL & ELEVATOR CO.
    No. 10902.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 3, 1931.
    Rehearing Denied Feb. 7, 1931.

      Terry, Cavin & Mills, -of Galveston, and W. P. Dofialson, of Dallas, for appellant.
    McCormick, Bromberg, Leftwich & Carring-ton, of Dallas, for appellee.
   JONES, C. J.

An injunction suit was instituted in a district court of Dallas county by appellant, Gulf Colorado & Santa Fé Railway Company, against appellee, Pearlstone Mill & Elevator Company, to restrain it from prosecuting to judgment certain justice court eases then pending in a justice court of Dallas county, from filing and prosecuting a large number of other claims, each triable in a justice court, and to compel appellee to prosecute all claims in one suit. These several claims were for damages against appellant, growing out of shipments of wheat. Immediate relief was sought, by the issuance of a temporary writ of injunction, to restrain appellee both from the prosecution of said suits and from filing separate suits on the other claims. The judge of the court granted a temporary restraining order on appellant’s filing the required bond, and set a day for a hearing to determine whether a temporary writ of injunction should issue. On the date set, the hearing was postponed, and the temporary restraining' order continued in force for a later date, when the hearing was had, with the result that the court refused to grant to appellant the temporary writ of injunction. Ap-pellee filed a motion to dissolve the restraining order and an answer to the merits of the case previous to the hearing. Appellant duly excepted to the order of the court, gave notice of appeal to this court, and at its request the temporary restraining order was continued In force until final decision on the appeal. The case is before this court on the issue as to whether the court erred in refusing to grant the temporary writ of injunction. The following is a sufficient statement of the facts:

From November 17, 1928, to March 11,1930, appellee, owner of large grain elevators in the city of Dallas, shipped to various consignees over appellant’s railway 98 cars ■ of grain, each car under a separate contract of shipment with a separate waybill and bill of lading ; 76 of these shipments were to consignees in the city of Dallas, 11 to consignees in the city- of Fort Worth, 5 fo consignees in the city of McKinney,. 3 to consignees in the city of Sherman, and 3 to consignees in the city of Waco. On each shipment appellee claimed a shortage of grain, occurring through the negligence of appellant, of a value varying from 52 cents, the minimum claird, to $9.93, the maximum. Appellee contends that these various shortages were caused in different ways, principally, “by leaks in the cars in transit, by appellant permitting some wheat to remain in the cars when unloaded, and by wheat working out through open cracks into the space between the walls of the freight cars, where it remained when the cars were unloaded.”

Appellant contends that no such shortage actually existed, and that the apparent shortage was the result of the inaccuracy of ap-pellee’s weights. In each shipment appellee first weighed on scales owned by it the empty car, loaded it with grain, and then weighed the loaded car, and, by subtracting the weight of the empty car from the weight of the loaded car, arrived at what is claimed to be the weight of the grain loaded into the car. These ■ weights were presented to appellant, accepted by it as the weight of the wheat, and placed this net weight on the bill of lading as representing the amount of grain in the car. When the car was received by the consignee, the loaded car was weighed on the consignee’s scales, then unloaded, the empty car again weighed, and, by subtracting the weight of the empty car from the weight of the loaded car, the consignee arrived at the weight of the wheat received from appellee. In each of the 98 shipments, the net weight of the consignee was less than appellee’s net weight. Appellee accepted the consignee’s weights, as to the amount of grain received on each shipment, as correct, and, by subtracting the consignee’s net weight from its own net weight, arrived at the alleged shortage. In all but three or four of the cars, the tare or empty car weight, as determined by the scales-of the consignee, was greater than such weight as determined by the scales of appellee. Appellant contends that this difference in the weights of the empty cars is conclusive proof of its alleged inaccuracy in appellee’s weights; while appellee contends that the •difference is caused either by tne fact that appellant permitted some wheat to remain in the car after it was unloaded, or by the fact that wheat had sifted through openings in the inner wall of appellant’s cars and remained unloaded between the walls of such car, thereby causing the increased weight of the empty car when weighed on the consignee’s scales.

In each of the four suits that had been filed, appellee had given the required statutory notice and had prayed for the recovery of an attorney fee of $10, under article 2220, B. IS. 1925, which allows, in suits to establish such •claims, a reasonable attorney fee not exceeding $20. In the claims not then in suit, appel-lee had given the statutory notice and intended in the near future to file a separate suit in justice court on each of such claims, and to make demand in each suit for an attorney fee of $10; the amount of each claim, including the $10 attorney fee, is less than $20, and hence no case arising under these claims can be appealed to the county court. One of the suits had been prosecuted to judgment, in which appellee recovered $1.21 as the value of the shortage of the wheat and $10 as a reasonable attorney fee to prosecute such claim to judgment. This judgment had become final at the time this suit was filed and is not included in the petition for injunction.

In its petition for injunction, appellant alleged that it had a valid defense to each suit. The effect of this pleading in this respect, as we understand it, is that, upon appellee’s railway scales the weight of the empty car was less than the correct,weight would show, as conclusively shown by the weight of the same car on consignee’s scales,- and that the gross weight on appellee’s scales was more than a correct weight would show, as is shown by such weight on consignee’s scales. In no instance does the alleged difference of the weights of the empty cars by appellee and by its consignee account for all of the claimed shortage. Other matters, claimed to give to it the rights prayed for in the injunction suit, the petition states as follows:

“That the suits already brought and those which the Pearlstone Company is threatening to and will bring, have been and will be brought in some Justice Court which, by reason of the amounts of said claims, will have exclusive and final jurisdiction of said suits ana the judgments that will be rendered therein, and from which judgment there can be no appeal; that if such suits are tried before a jury in the justice court where those now on file are pending, or in any justice court for that matter, plaintiff will be unable, in the trial of any such suits to have a jury charged as to the law applicable thereto, and if said suits are tried before the court such trial will be had before a judge not required to be learned in the law; that all of said suits now pending and all of such threatened suits are and will be between the same parties, plaintiff and defendant, and are and will be of the same general nature arising and growing out of the same general source, and are and will be governed by the same rules and will involve similar facts, and may be settled in a single suit; that the filing of those suits which the Pearlstone Company has already filed, and the filing of those suits which the Pearlstone Company is threatening to file, against plaintiff, has brought about and will bring about conditions and results against the material interest of plaintiff in that it will be forced to devote a great amount of time to the trial of such suits — the' trial of each of such consuming, as the trial of said suit No. 5351, approximately a whole day —and its employes will be taken away from their work to testify as witnesses at the trial of said pending suits and threatened suits, and plaintiff will incur unusual and unnecessary .costs and expenses as attorney’s fees, witness fees, and other costs, the exact nature of which plaintiff cannot foretell and name at this time, all of which will be entirely out- of proportion to the amounts involved in such pending suits and threatened suits, and far in excess of what the expense would be to plaintiff if one trial of all of such pending and threatened suits was had; and that unless the Pearlstone Company shall be restrained and enjoined from maintaining and prosecuting those suits already filed by it against plaintiff, and from filing, maintaining and prosecuting those suits whieh.it is threatening to file, against plaintiff, as aforesaid, plaintiff will be subjected to tbe inconvenience of defending a multiplicity of suits, will be annoyed and harassed thereby, and will suffer irreparable injury for which it has and will have no adequate remedy at law.”

The evidence on the hearing established the fact that appellee intended to file separate suits on the remaining claims and to claim in each suit the sum of $10 as a reasonable attorney fee for prosecuting the claim. The evidence also established the fact that there was an inspector for railway scales, who regularly examined such scales to determine their accuracy, and, if such inspector should find scales not kept accurate, such scales were thrown out of service. The inspector is not an employee of appellant. An employee of appellee did the weighing on appellee’s scales, and there were two such employees. It further appeared that appellee’s scales were frequently tested and were kept in proper weighing condition.

The theory .of appellant is that appellee has filed and is threatening to file a great many suits in a justice court for small shipment claims, in’ all of which the jurisdiction of the justice court is final, and that, though it has a valid defense to each of such" claims, a jury cannot be guided as to the law of the case by a charge from the court, and unaided by the court must pass upon the law as well as the facts; that, by reason of the great number of suits and the statutory claim for an attorney fee, appellant will suffer a great loss in money and time in preparing and presenting its defense to each separate suit, and the time of the justice courts of Dallas county will thereby unnecessarily be consumed; that, as each claim is an alleged shortage in the shipment of a car of grain, all of the claims are similar; that, as each claim rests on the alleged negligence of appellant in respect to such shipment, and as its defense to each claim is that there was in fact no shortáge, and ' such apparent shortage is caused from the inaccuracy of weights, all of said claims are supported by similar evidence, and therefore it has the right to invoke the jurisdiction of a court of equity to prevent a multiplicity of suits.

The theory of appellee is that the case is not'one to invoke the equity jurisdiction of a court, on the doctrine of preventing a multiplicity of suits, for the reason that each claim presented rests on- the alleged breach of a single contract of shipment, each resting on separate and distinct acts of negligence, requiring, as to each claim, separate and distinct proof to establish the fact of negligence, showing either that the freight car which carried the particular shipment leaked, or that appellánt permitted wheat to remain in the car when unloaded, or that wheat worked through open cracks into the space between the walls of said car, where it remained unloaded; that-either the establishment or failure to establish one or more of such alleged acts of negligence as to one claim would have no bearing or effect on establishing such alleged acts as to any other claim, or that the establishment or failure to establish appellant’s defense of inaccuracy in weights as to one claim would have no bearing or effect upon establishing such defense as to any one of the other claims. These two opposing theories have been properly presented to this court by the respective parties.

It is true that appellant presents a valid defense in its plea that the apparent shortage was due to inaccuracies in weights, but manifestly, this is a defense that must be presented in defense of each claim, for the reason that, if it were shown that the scales were inaccurate in weighing one car of grain, this would not tend to prove that such scales, which were regularly testéd and which were not put out of service by a weighing inspector, were inaccurate on a subsequent date, when another car of grain was weighed.

The specific question for decision then is, Can the equity powers of a district court be invoked to prevent a multiplicity of suits, under the facts of the instant case, arid compel appellee to combine said claims in a single action? Mr. Pomeroy, in his work on Equity Jurisprudence (4th Ed.), presents a very able and exhaustive discussion of the question of when the equity powers of a court can be invoked to prevent a multiplicity of suits. This discussion is found in volume 1, §§ 243 to 275, inclusive. Upon a very careful review of the decisions in respect to the- conditions under which powers of a court of equity can be invoked to prevent a multiplicity of suits, the author announces the effect of such decisions as follows: “All these possible conditions (under which such suits are allowed) may be reduced to the four following classes: 1. Where, from the nature of the wrong, and from the set-. tied rules of the legal procedure, the saíne injured party, in order to obtain all the relief to which he is justly entitled, is obliged to 'bring a number of actions against the same wrongdoer, all growing out of one wrongful act and involving similar questions of fact and of law. To this class would belong eases of nuisance, waste, continued trespass and the like. 2. Where the dispute is between two individuals, A and B, and B institutes or is about to institute a number of actions either successively or simultaneously against A, all depending upon the same legal questions and similar issues of fact, and A by -a single equitable suit seeks to bring them all within the scope and effect of one judicial determination. * * * Where a number of persons have separate and individual claims and rights of action against the same .party, A, but - all arise from some common cause, are governed by the same legal rule, and involve similar facts, -and the' whole matter might be settled in a single suit brought By all these persons uniting as co-plaintiffs, or one of the persons suing on behalf of the others, or even by one person suing for himself alone. * * * 4. where the same party, A, has or claims to have some common right against a number of persons, the establishment of which would regularly require a separate action brought by him against each of these persons, or brought by each of them against him, and instead thereof he might procure the whole to be determined in one suit brought by himself against all the adverse claimants as co-defendants.”

It will be noted that in each class of cases it is made a condition precedent to invoking the jurisdiction of a court of equity, to prevent a multiplicity of suits, that each of the claims or demands, attempted to be presented by separate suits, must involve the same legal questions and be supported by similar facts.

It is manifest that the instant suit falls within class No. 2. In a further discussion of that branch of class No. 2, under which the instant case comes, the author says: “In the second branch of the same class the single defendant has brought a number of simultaneous actions at law against the plaintiff, all depending upon similar facts and circumstances, and involving the same legal questions, so that the decision of one would virtually be a decision of all the others. A court of equity may then interfere and restrain the prosecution of these actions, so that the determination of all the matters at issue between the two parties may be brought within the scope of one judicial proceeding and one decree, and a multiplicity of suits may thereby be prevented. It must be admitted that this exercise of the equitable jurisdiction is somewhat extraordinary, since the rights and interests involved are wholly legal, and the substantial relief given by the court is also purely legal. It may be assumed, therefore, that a court of equity will not exercise jurisdiction on this particular ground, unless its interference is clearly necessary to promote the ends of justice, and to shield the plaintiff from a litigation which is evidently vexatious. It should be carefully observed that a court of equity does not interfere in this class of cases to restrain absolutely and completely any and all trial and decision of the questions presented by the pending actions 'at law; it only intervenes to prevent the repeated or numerous trials, and to bring the whole within the seope and effect of one judicial investigation and decision. It should also be observed that if the pending actions at law are of such a nature or for such a purpose, that, according to the settled rules of the legal procedure, they may all be consolidated into one, and all tried together by an order of the court in which they or some of them are pending, then a court of equity will not interfere; since the legal remedy of the plaintiff is complete, certain, and adequate, there is no necessity for his invoking the aid of the equitable jurisdiction.”

■ It is noted that in the above quotation there is defined the term, “depending upon similar facts and circumstances involving the same legal questions.” The similarity of the facts and circumstances must be of such degree as that the “decision of one (claim) would virtually be a decision of all others.” It nec-. essarily follows that, in a case of the kind under review, where the evidence establishing one claim does not even tend to establish any of the other claims/ a court of equity must deny the relief sought. If such were not the rule, then the result accomplished by granting the relief sought would be that, while there would be but one suit as to docket number, such suit in reality would be a bundle of separate and distinct suits, each of which, though similar in character to the others, still rests on separate and distinct facts, and requires the same quantum of evidence, either to establish or to defeat such claim, as would be required if such claims were in separate suits. Pomeroy’s Equity Jurisprudence, supra, § 251½.

The courts of this state, in effect, have adopted Mr. Pomeroy’s analysis of this question, and will compel a plaintiff, where he undertakes to enforce in a justice court by separate suits a number of claims, all involving the same issues of law and of fact, to desist from the prosecution of such separate suits and prosecute all such claims in one suit. G., H. & S. A. Ry. Co. v. Dowe, 70 Tex. 6, 7 S. W. 368; Steger & Sons Piano Mfg. Co. v. McMaster, 51 Tex. Civ. App. 527, 113 S. W. 337; Supreme Lodge of Fraternal Union of America v. Ray (Tex. Civ. App.) 166 S. W. 46, 48.

In each of the above-cited cases the- establishment' of each separate claim rested on the same evidence, both as to the establishment of the claim and as to the defense: of same, and in each of the reported cas.es a decision as to one was virtually a decision as to the others. The existence of this fact in..the Dowe Case> supra, is stressed by Judge Gaines,- the opinion citing with- approval .§ 254, Pomeroy’s Equity Jurisprudence,! above quoted.

In adjudicated cases of similar import to the instant case, in which each claim rested on evidence separate and distinct to that on which each other claim rested, the courts of this state have refused to compel the holder of such claims to combine them in a single suit. Chicago, R. I. & G. Co. et al. v. Liberal Elevator Co. et al., 182 S. W. 355; St. Louis Ry. Co. of Texas v. Woldert Gro. Co. et al., 162 S. W. 1174. While the decisions in the last two cases are by Courts of Civil Appeals, the Supreme Court in eac-h case denied a writ of error. This could not have been the result had the Supreme Court disapproved the holding on the main issue in each of those cases. The reason underlying the holding in the two cases last cited is that, - where each of a number of demands of one person against another rests on evidence separate and' distinct from that on which each of the others' rests, justice between the parties can best be subserved by permitting each claim to be prosecuted in a separate suit, for to compel such claims to be enforced by a single suit would tend inevitably to confuse the minds of the jury and to cloud the issues in each claim. An illustration may be had from the instant case: Suppose the relief for which appellant prays were granted and .at the trial, as to every third shipment of grain made during the two years and more in which these shipments occurred, appellee established a prima facie case of shortage, and that appellant failed in its defense of error in weights, but in the remaining two-thirds of the shipments, while appellee made its prima facie case, appellant met such case by evidence on error of weights, sufficient to warrant a finding by the jury in its favor, can it be said that the jury would not be confused in passing upon evidence that showed correct weights and a shortage in certain instances and in certain other instances tended strongly to show only apparent shortage because of incorrect weight? Suppose, again, appellant should establish in a shipment made in December, 1928, the apparent shortage was not real, but existed only because of an error in weighing. This established fact would not bo admissible evidence by appellant to establish incorrect weights in a shipment of June, 1929; yet, if the appellant were allowed to prevail in this suit, this evidence would be before the jury in its consideration of the June shipment. Likewise, if on-a shipment in January, 1929, appellee should establish the fact of correct weights, it would not avail appellee as evidence to establish a correct weight on a shipment in March, 1930; yet, if appellant should prevail in this suit, such evidence would be before the jury for its consequent effect on issues to which it was not relevant. I-Ienee appears the wisdom of the rule requiring, as a condition precedent to invoke the jurisdiction of a court of equity in cases of this class, that each claim must rest on virtually the same evidence on which each of the other claims rests. .

The ease of G., H. & S. A. Ry. Co. v. Dowe, supra, clearly illustrates the class of cases in which a court of equity will lend its powers to prevent a multiplicity of suits. The case of Chicago, R. I. & G. Co. et al. v. Liberal Elevator Company et al., supra, clearly illustrates the class of cases in which a court of equity will not lend its powers to grant such relief. In the former ease, the railway company had entered into one general contract'with a number of contractors for certain constructions; some of these contractors had issued to laborers certificates for small sums of indebtedness, and these certificates had been assigned to Dowe. Each certificate represented a claim triable only in a justice court, and in nearly all of them the amount of the certificate was so small as to make the judgment final in the justice court. Dowe had filed and tried some of these suits and intended to file in the future in a justice court a separate suit on each claim. The defense of the railway company was (a) that,, under the contract entered into with the contractors issuing the certificates, it was not liable for any claim for labor against any of the contractors, but that the debt was exclusively that of the contractor issuing the eer- . tificate; (b) that each certificate showed on its face that it was barred by the statute of limitation. All of the contractors were parties to the one contract entered into between themselves and the railway company. The first defense, it appears, rested solely on the construction of the one contract with the contractors ; the second defense necessarily rested on the date of each certificate, and on the legal question as to whether the statute of limitation applied. So it appears that each, claim rested on the same issues of law and on virtually the same issues of fact, so that a decision on one claim would be virtually a decision on all others.

In the Elevator Company Case, supra, the' elevator company had claims against the railway company for shortage in a number of cars of coal purchased at mines in the state of Oklahoma and shipped to the elevator company by the railway company. There were ■ several of these cars in which a small shortage was claimed in each. The defense of the railway company was that of error in weights and evaporation of the coal, damp from the mines at the time it was loaded, during its transportation to the elevator company. Each claim rested on a separate contract of shipment. As the establishment of ’ each claim required separate and distinct evidence, and as the defense to each claim also required separate and distinct evidence, the railway company’s plea for the issuance-of a writ of injunction to prevent a multiplicity of suits was denied.

It clearly appears that in the Dowe Case-all evidence necessary to establish thé various claims was in the main that which was-necessary to establish one claim, and hence-there could be no confusion of issues in the' minds of the jury. In the Elevator Case, it clearly appears that the evidence to establish, one claim would not even tend to establish any other claim, and would be irrelevant to-■the issues in each other claim. If all claims were tried in one suit, there would necessarily be a confusion of the issues because-of the admittance of so much irrelevant testimony as to the rights of the parties in each claim. In our view, it indisputably appears-that the facts of the instant case do not bring. it within the rule applied in the Dowe Case, but do bring it within the rule applied in the Elevator Case.

It is urged by appellant that, unless ap-pellee be compelled to join these claims in one suit, a justice court judgment would be final, and appellant would be denied the right to have the law controlling the establishment of these claims charged to a jury. That is true, but the law is very simple, and to deny a justice court jurisdiction on such a ground would be, in effect, to abolish such courts.

Appellant further claims that it would suffer a hardship in the expense of trying several suits. This is not a ground for invoking the equity jurisdiction of a court in this character of cases. See authorities above cited.

Finally, appellant claims that ap-pellee is seeking to recover a reasonable attorney fee, alleged to be the sum of $10, in each case, and' that this would work a manifest hardship on appellant, in that, the aggregate of the attorney fees recovered would far exceed the aggregate of the various claims. It is a sufficient answer to this statement that, in asking for attorney fees, appellee is only asserting its statutory right. Article 2226, R. S. 1925. The policy of this state is, as declared by such statute, to allow an attorney fee under certain conditions where a just claim is refused by the party owing same, and the injured party is compelled to collect such claim through the courts, provided the attorney fee allowed does not exceed the sum of $20. It is not for the courts to change the policy of this state as declared by its legislative enactments.

It clearly appears that appellant’s right to the relief prayed for rests in such doubt that this court cannot say there was error committed by the trial court in refusing to grant the temporary writ of injunction, and the judgment is affirmed.

Affirmed.

LOONEY, J.

(dissenting).

I dissent from the view of the majority, not on the law, but on its proper, application to the facts of the case. Oases where courts of cquny have either taken or refused jurisdiction in suits brought to prevent a multiplicity of suits, are so variant that, as said in Hale v. Allinson, 188 U. S. 56, 23 S. Ct. 244, 250, 47 L. Ed. 380, “It is difficult, if not impossible, to reconcile the cases.” The court also said: “Oases in sufficient number have been cited to show how divergent are the decisions on the question of jurisdiction. It is easy to say it rests upon the prevention of a multiplicity of suits, but to say whether a particular case comes within the principle is sometimes a much more difficult task. Each case, if not brought directly within the principle of some preceding case, must, as we think, be decided upon its own merits and upon a survey of the real and substantial convenience of all parties, the adequacy of the legal remedy, the situations of the different parties, the points to be contested and the result which would follow if jurisdiction should be assumed or denied; these various matters being factors to be taken into consideration upon the question of equitable jurisdiction on this ground, and whether within reasonable and fair grounds the suit is calculated to be in truth one which will practically prevent a multiplicity of litigation, and will be an actual convenience to all parties, and will not unreasonably overlook or obstruct the material interests of any.” This view as to the status of the law on the subject was approved in St. Louis, etc., Co. v. Woldert (Tex. Civ. App.) 162 S. W. 1174, 1176, and in Houston Heights v. Gerlach (Tex. Civ. App.) 216 S. W. 634, 637.

Pomeroy’s Equity (3d Ed.) § 252 (4th Ed.) § 245, announced the general rule that courts of equity will interfere and take cognizance to prevent a multiplicity of suits in the following, among other, instances: “ * * * 2. Whore the dispute is between two individuals, A and B, and B institutes or is about to institute a number of actions either successively or simultaneously against. A, all depending upon the same legal questions and similar issues of fact, and A by a single equitable suit seeks to bring them all within the scope and effect of one-judicial determination. * * * ” I think the case at bar should be controlled by this doctrine.

Appellee held 98 separate claims against appellant, ranging in amounts from 52 cents, the minimum, to $9.93, the maximum, each based on alleged loss of grain from carload shipments, originating in Dallas, made by ap-pellee under separate but uniform bills of lading to different consignees, 76 to, consignees within the city of Dallas, 11 to Fort Worth, 5 to McKinney, 3 to Sherman, and 3 to Waco. Suits were filed in a justice court on four of these claims, in each recovery was asked for damages and $10 attorney’s fee. One of the suits was tried, consuming practically a whole day, resulting in judgment for appellee against appellant for $1.21 damages, $10 attorney’s fee, and $4.40 court costs. The judgment was paid, hence that claim is not involved, but appellee is demanding trial of the three remaining suits, and is threatening to file separate suits in a justice court on the other 94 claims, in each of which' judgment will be sought, not only for the damages claimed, but for $10 attorney’s fee and costs of suit.

It is obvious that appellant can, with propriety, include all these claims in one suit, without violating the rule against misjoinder of causes of action, and, I think, it is equally obvious that the prosecution of 97 separate Suits will increase unnecessarily tlie expense, vexation, and annoyance always incident to litigation. The time consumed in trying one of these suits was approximately one day; this should be a reasonably correct measure of the time necessary to try each of the others, which, in my opinion, would be an inexcusable abuse of the" instrumentalities of justice, as the manifest policy and trend of the whole law on tlie subject is to circumscribe and end rather than enlarge or protract litigation.

Evidently the ruling idea of the majority, in affirming the judgment of the trial court, was this; That the consolidation and trial of these claims in one suit would tend to produce confusion and cloud the issues as to each claim. As mentioned above, these claims could, without violating any procedural rule. • be included in one action, whilst the prosecution of separate suits would necessarily cause expense, vexation, and annoyance far in excess of such as would be incident to the prosecution of one suit. The claims depend upon the same legal questions and on similar issues of fact; the shipments were made under uniform bills of lading (articles S90, 891, R. S. 1925); hence there is nothing in the contracts themselves to provoke confusion. Appellant’s contention is that, no shortage actually exists, but that the shortage claimed is due to the inaccuracy of appellee’s weights. The weighing was all done by two employees of appel-lee, and it appears that its scales were frequently tested, shipments were made, not on 97, but only on 43, separate days; so it seems that the facts, as to the correctness, whether or not of the weights, or the accuracy, whether or not of the scales, on the dates involved, should be ascertained from the testimony of these persons who did this weighing and testing, without any unusual or extraordinary confusion.

That a large number of claims, each based on a separate but similar contract requiring, in a legal sense, separate proof, will not deter a court of equity from consolidating and enjoining the prosecution of separate suits, is .evident from the action of the Supreme Court of California in the case of Southern Pacific Co. v. Robinson, 132 Cal. 408, 64 P. 572, 12 L. R. A. (N. S.) 497. Suit was brought to restrain the prosecution of certain suits and the filing of others, based on claims for penalties of $200 each, -alleged to have accrued from the violation by.the carrier of the statutory right of passengers holding a particular kind of ticket to stop-over privileges, etc. It developed on hearing that 674 suits were pending in various justice courts, and about 2,300 other claims were held by defendants upon which they were threatening suits, altogether about 3,000 alleged causes of action, the aggregate penalties claimed being about $600,-000. The right of respondent to injunctive relief was sustained on two grounds. After stating the first, the court said; “And upon the further ground that, in order to avoid a multiplicity .of actions, equity will consolidate these 3000 alleged causes of action into one action and thus having taken hold of the matter will dispose of it in its entirety.”

' As the law furnishes no reliable formula for the disposition of particular cases belonging to this class of litigation, the doctrine being that each must be decided on its own merits, I am of opinion that, under the rule quoted from Pomeroy, as interpreted and applied by our Supreme Court in the case of G., H. & S. A. Ry. Co. v. Dowe, 70 Tex. 5, 11, 7 S. W. 368, the court below should have assumed jurisdiction, consolidated these claims, and enjoined the prosecution of separate suits, therefore that the judgment below should have been reversed and rendered -for appellant.

On Motion for Rehearing.

JONES, O. J.

Appellant Gulf, Colorado & Santa Eé Railway Company,, has filed a motion for rehearing, in which it is earnestly insisted that the majority of this court was in error in affirming the judgment -of the lower court, and that such affirmance should be set aside and the cause reversed and remanded in conformity to -the dissenting opinion filed herein. Appellant also requests that, if this relief camiot be granted, then the questions involved be certified to the Supreme Court.

We have carefully re-examined the record in this case, in the light of the dissenting opinion and the motion- for rehearing, with the result that the majority of this court is of opinion that the issues of the case have been correctly determined. We shall review, certain authorities, cited and relied upon in the dissenting opinion and insisted upon by ap^ pellant in its motion for rehearing, as announcing a rule contrary to the majority opinion. In the view of the majority .of this court, the suit in equity filed in the lower court by appellant presented a case in which there exists a multiplicity of issues -of fact to be tried, which the jurisdiction invoked cannot avoid or materially lessen; for which reason it is held^in the original opinion that the equitable doctrine of combining in one suit a number of claims, and thereby preventing a multiplicity of suits, cannot be invoked ‘in this case. Do the cited cases hold to the contrary?

The decision by the United States Supreme Court, in Hale v. Allinson, 188 U. S. 56, 23 S. Ct. 244, 253, 47 L. Ed. 390, is cited to show that no general rule has1 been established to determine when such doctrine of a court of equity may be invoked to prevent a -multiplicity of suits, and that each case, unless it.be “brought directly within the principle of some preceding ease,” must be decided upon its own merits. This statement must be accepted as a general historie fact in reference to this character of litigation. However, an examination of the reported case and other adjudicated cases will show that there are some well-defined principles to which the courts should giye recognition in passing upon any such suit. One principle is that the various claims, whether by a single person or hy a number of persons, against a common defendant, must rest upon virtually the same facts, as to the controlling questions involved, as a condition to invoking the jurisdiction of a court of equity, and must not be such claims in which each rests upon its own particular facts. This very doctrine was given recognition hy the 'opinion in the case now under discussion, and the relief sought was denied, because the claims attempted to be joined in one suit rested on separate facts, just as do the various claims, in the instant ease.

The learned judge, in delivering the opinion-in the reported case, used language, in stating the reason for the denial of the equitable relief sought, just as potent to the instant case: “Is there, upon the complainant's theory of this case, any such common interest among these defendants as to the questions of fact that may be put in issue between them and the plaintiff? Each defendant’s! defense may, and in all probability will, depend upen totally different facts, upon distinct and particular contracts, made at different times, and in establishing a defense, even of like character, different witnesses would probably be required for each defendant, and no defendant has any interest with another. ⅜ * * In reality it [complainant’s suit] is a congeries of suits with little relation to each other, except there is a common plaintiff who has similar claims against many. persons.”

The cases of Chicago, R. I. & G. Co. et al. v. Liberal Elevator Co. (Tex. Civ. App.) 182 S. W. 355, and St. Louis, etc., Ry. Co. of Texas v. Woldert Gro. Co. et al. (Tex. Civ. App.) 162 S. W. 1174, were decided on the application of the principle announced in the decision now under review, and the Supreme Court of this state approved the holding in each of those cases by the denial of a writ of error, for which reason we accepted such announcement of the law as a rule of decision in this state.

Greater stress, however, is placed on the decision of the Southern Pacific Co. v. Robinson, 132 Cal. 408, 64 P. 572, 12 L. R. A. (N. S.) 497. When the facts in this latter case are analyzed, it does not appear that a contrary rule is announced, but rather that such facts bring that case within the rule announced by our Supreme Court, in the case of Galveston, H. & S. A. Ry. Co. v. Howe, 70 Tex. 5, 7 S. W. 368. At the time the reported case was decided, 'there was in force in the state of California a statute, the effect of which was to compel a railway company, when it sold a ticket for travel on its railways in such state, ■to issue to the purchaser of a ticket, on his request, a stop-over privilege for any intermediate station. If the railway company should refuse to honor such request, the statute assessed a penalty against the company in favor of the purchaser in the sum of $200, and authorized suit in his favor by such purchaser against 'the railway to enforce the penalty.

Bobinson and others conspired and confederated together separately to purchase a great many tickets from some town, not stated, to Alamedo in said state, and to demand, on arriving at the city of Oakland, which was an intermediate station, a stop-over privilege, expecting that the railway company would not honor such request. The facts in reference thereto are briefly stated in the following language: “Appellants conspired and confederated together to create these alleged causes of action, with the sole end in view of securing the penalty or damages provided for in the aforesaid section of the Code, and that fact is a vital point in the case. The findings further established that these appellants did not desire the stop-over privilege, but, upon the contrary, in making their demands for such privilege, desired that their demands should be refused.”

Some 3,000 of these tickets had been purchased and the same number of causes of action thereby attempted to be created. The parties to the conspiracy began to file separate suits in a justice court to enforce a claim of $200 in each case, when a bill in equity was filed to enjoin the prosecution of these suits, and the institution of the other suits, and to determine all matters in controversy between the railway company and the other parties in one suit. Jurisdiction of a court of equity to entertain such a suit was questioned. The court sustained the jurisdiction (1) 'on the-ground that the bill clearly showed ‘⅛ confederacy and combination formed and existing between these appellants to create and pi’osecute the aforesaid 3,000 causes of action against the plaintiff; and (2) upon the further ground that, in order to avoid a multiplicity of actions, equity will consolidate these 3,000 alleged causes of action into one action, and, thus having taken hold of the matter, will dispose- of it in its entirety.”

It appears that the fact of the purchase of the tickets, the demand for a stop-over privilege and its refusal, and the motive for which the purchase in each instance was made, rested on undisputed evidence. The principle of law involved was the same in each case. There could have been no confusion in the minds of a jury in respect to the issues of fact in any of the claims, if the claims were tried in one cause of action, for this issue rested on undisputed evidence. However, the ease was decided on a. question of law as to the improper motive which actuated the parties in demanding the stop-over privileges. This issue of law was common to all the claims, and was virtually the only outstanding issue to be determined. Such condition is not present in this case. The motion for a rehearing is overruled. Mr. Justice Looney dissents.

As there exists the right in appellant to apply for a writ of error in this case, and as in the opinion of the majority of this court, every principle involved in this suit has been passed upon by the Supreme Court in its denial of a writ of error in the case of Chicago, R. I. & G. Co. v. Liberal Elevator Co., and St. Louis, etc., Co. v. Woldert, supra, we do not deem it a proper case to certify. Maxwell v. Hall, 114 Tex. 319, 267 S. W. 670; 3 Texas Jurisprudence, § 214, and authorities cited in note. The latter authority announces the practice on this question as follows: “It has been the practice to refuse to certify in all cases where a writ of error lies, inasmuch as a hearing by the Supreme Court on a writ enables that court to consider the entire record unrestricted by the findings of the Court of Civil Appeals as presented in a certificate.”

The motion to certify is overruled.


source: Caselaw Access Project

author: BAUGH, J.

license: Public Domain

text:
    MYRICK v. LEDDY.
    No. 7568.
    Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1931.
    Rehearing Denied March 18, 1931.
    Shropshire & Adkins, of Brady, for appellant.
    Wilkinson & Wilkinson, of Brownwood, for appellee.
   BAUGH, J.

Myrick contracted to sell and convey to Leddy marketable title to 520 acres of land in McCulloch county, Tex. Leddy deposited $310 as earnest money on the contract, to be paid on purchase price if the contract were performed; or, in the event of breach thereof by Leddy, to go to Myrick as liquidated damages. Leddy rejected the title tendered on the grounds that it was not marketable. Myrick sued for the $310, alleging that he had tendered a marketable title. The trial court rendered judgment against him, from which he has appealed. The sole issue is, therefore, the marketability of the title to the land as shown by the abstract furnished.

Two objections were raised to tbe title, and appellant concedes that, if either of them rendered the title unmarketable, appellant was not entitled to recover. The first of these was that as to part of said land only a limitation title was shown. The facts in this respect were as follows: 200 acres of this land was patented to S. B. Hurlbut in 1856. No conveyance by him was shown of record. The record disclosed an ex parte affidavit dated May 7, 1898, signed by two citizens of Galveston, stating that Hurlbut died in 1864 and “left surviving him only two children,” naming them. These two named daughters, joined by their husbands, as the sole heirs of S. B. Hurlbut, conveyed the land in 1870. No objection to the subsequent title was made other than to the conveyances to appellant.

It is now well settled that limitation title, based upon adverse possession, is not a marketable title. Rabinowitz v. Darnall (Tex. Civ. App.) 2 S.W.(2d) 930, 932, and authorities there cited; Owens v. Jackson, 35 S:W.(2d) 186, decided by 'this court January 14, 1931. A limitation title is unmarketable because resort must be had to proof not disclosed by the record; and for this purpose ex parte affidavits stating facts which if proven would establish title by limitation are not admissible.

This rule, however, is not so rigidly enforced with reference to proofs of heir-ship. Such proofs are of matters not ordinarily subject to registration, and of necessity must often be established by parol. In the instant case, there had been of record fox-more than thirty years an affidavit of credible persons that grantors who conveyed the land in question in 1870 were the only children of S. B. Hurlbut, deceased. In that deed they recited themselves as the sole heirs of S. B. Hurlbut, deceased. After this lapse of time, it being undisputed that no adverse claimants have appeared nor asserted any interest in said land, we are of the opinion that these facts, as disclosed by the record, and the presumption which must now be given to these recitals that the facts therein stated are true, remove any reasonable doubt as to outstanding claims in heirs of S. B. Hurlbut, who has been dead for more than 65 years.

As said by Justice Smith in Texas Auto Co. v. Arbetter (Tex. Civ. App.) 1 S.W.(2d) 334, 336:

“The term ‘marketable title,’ when applied to real pi-operty, means one reasonably free ■from such doubt as would affect the market value of the estate; one which a prudent man with knowledge of all the facts and their legal bearing would be willing to accept (5 Words and Phrases, First Series, page 4388 et seq.); not doubts based on captious, frivolous, or astute niceties, made up for the occasion, but grave and s reasonable doubts, such as would induce a prudent man to hesitate in accepting a title affected by them, and such as would make it possible or reasonably probable that the purchaser’s right may become a matter of investigation, and thus affect its value. A marketable title is one that will bring as high a price in the market with the purchaser’s objection to its sufficiency as without.”

Not only.do we conclude as a matter of law, and such question is one for the court, that there was no reasonable doubt as to the validity of the title so far as any claim of S. B. Hurlbut’s heirs is concerned, but the trial court found from the record that said title “had been frequently sold under the claim of the purported heirs of S. B. Hurlbut, as shown by said affidavit, and apparently for its full market value.”

The second objection urged as rendering the title unmarketable was based upon the following: On December 30,-1908, A. N. Bryson and wife, then owners of the 520 acres in question, conveyed same by deed of gift to their daughter, Mrs. H. T. Await, which deed provided that, if the grantee or her heirs undertook to sell, mortgage, or otherwise dispose of said land within 25 years, their conveyance to her should be absolutely Void, and the land should revert to the said A. N. Bryson and wife, or their other heirs, tEeSTbeing four other children. Subsequently, in 1917, A. N. Bryson made a will wherein his wife, Maria Bryson, was made residuary legatee. He died, and this will was duly probated. Subsequent to his death, the daughter, Mrs. H. T. Await, died. On July 22, 1929, and within the 25-year period, G. B. Await, surviving husband of Mrs. I-I. T. Await, joined by their five children, and Mrs. Maria Bryson, conveyed said 520 acres of land to appellant. None of the other children of A. N. and Maria .Bryson joined in said deed.

The conveyance by the surviving husband and children of Mrs. H. T. Await to appellant was clearly in violation of the express provisions of the deed from A. N. Bryson and wife to her, and subjected the original grant to forfeiture if it did not automatically work a forfeiture. The question therefore is, Would the reversion occasioned thereby pass to Mrs. Maria Bryson, as residuary legatee under his will, or would it vest, in part at least, in their other four children?

Prior to the attempted conveyance by the grantees, the estate reserved was only a possibility of reverter. Such “possibility of re-verter”, was at common law not an estate which could be assigned, alienated, or devised. 21 C. J. 1017; 40 Cyc. 1048; 28 R. O. B. 287. Article 8282, R. S., relating to this subject, provides, however, that a testator may ‘devise any “estate, right, title and interest in possession, reversion or. remainder,which he has, or at the time of his death shall have, of, in or to any lands,” etc. At the time of the death of A. N. Bryson he was possessed of a right of reversion, though dependent upon conditions subsequent; and it would seem that the statute itself is sufficiently broad to permit the passage under his will of this right to Mrs. Maria Bryson as his residuary legatee. The exact question of a devise of such “possibility of reverter” does not appear to have been before the appellate courts; but the power to assign or transfer such right was before the court in Caruthers v. Leonard (Tex. Com. App.) 254 S.W. 779, 780. See, also, Perry v. Smith (Tex. Com. App.) 231 S.W. 340. In those cases it wasf expressly held that the common-law rule!' against alienation of such rights in real es-ij tate does not apply in Texas, but that same* are assignable. We can see no distinction! between passing such a right by assignment) and by devise. And, in addition to the rule,’ announced in the cases cited, there is the Í added force of article 82S2 which, if not ex-' pressly, by clear implication, authorizes the} devise of such a right in reversion. See, i also, Humble Oil & Ref. Co. v. Davis (Tex. Civ. App.) 282 S.W. 930, 934; Rosson v. Bennett (Tex. Civ. App.) 294 S.W. 660, 662; Bibb v. Nolan (Tex. Civ. App.) 6 S.W.(2d) 156, 157. In view of these authorities, we think there can be no doubt but that the right of reversion, vested in A. N. Bryson at the time of his death, passed by his will to his wife, Maria Bryson, as the residuary devisee. She having joined with G-. B. Await, surviving husband of Mrs. H. T. Await, and their five children in the deed to appellant, all questions of reasonable doubt as to outstanding interests in the Brysons were thereby removed.

These questions as to the marketability of appellant’s title being the only ones raised, it being conceded that the contract was in other respects complied with by appellant, the judgment of the trial court is reversed, and judgment here rendered for appellant for the amount sued for.

Reversed and rendered.

On Motion for Rehearing.

In his motion for rehearing appellee complains of the statement in our opinion that in the deed from the two daughters of S. B. Hurlbut “they recited themselves as the sole heirs of S. B. Hurlbut, deceased.” This deed is not shown in the record. The trial court’s findings of fact on this point were:

“No deed was made to the land by S. B. Hurlbut, but the deed conveying these 200 acres out of his estate is executed only by his said two children, purporting to be his heirs, but not his sole heirs, and by their said husbands.”

We do not deem the erroneous statement, inadvertently made, as material under the circumstances. The fact that these two children conveyed the land 60 years ago, that an affidavit of record more than 30 years recites that they were the only children of S. B. Hurlbut, and that no other heirs or claimants to said land have ever appeared, .creates such a strong presumption, we think, that they were in fact the only heirs of S. B. Hurl-but as to remove any reasonable doubt in the matter, or that would deter a reasonably prudent man from accepting such title. These facts disclosed by the record were, we think, such as to remove any reasonable probability that the title of a purchaser would ever be seriously called in question on that account.

With this correction, appellee’s motion for rehearing is overruled.

Overruled.


author: HICKMAN, C. J.

text:
    MARYLAND CASUALTY CO. v. BOVERIE.
    No. 819.
    Court of Civil Appeals of Texas. Eastland.
    March 13, 1931.
    Rehearing Denied April 10, 1931.

      Kemp & Nagle, of El Paso, for appellant.
    Grindstaff, Zellers & Hutcheson, of Weath-erford, for appellee.
   HICKMAN, C. J.

The appeal is from a judgment of the district court awarding to appellee damages in the sum of ?5,980.S6, payable in a lump sum, on the findings of a jury of total permanent incapacity. The case came to the district court on an appeal by appellant from an award of the Industrial Accident Board. Ap-pellee claimed that his loft arm was crushed and that he received other injuries, the whole resulting in total permanent incapacity. An understanding of the questions presented to this court for decision may be had without any further statement of the nature of the case than that disclosed in certain issues submitted to the jury and the answers thereto, as follows:

“Special Issue No. 1: Did the defendant J. A. Boverie sustain personal injuries on the 17th day of February, A. D. 1929? Answer Yes or No. Answer Yes.
“Special Issue No. 2: Were the injuries, if any, sustained by the said J. A. Boverie while he was in the course of his employment for the said F. II. E. Oil Company? Answer Yes or No. Answer Yes.
“Special Issue No. 3: Was J. A. Boverie totally incapacitated for work on the 17th day of February, 1929, us a result of his said injuries, if any, so sustained by him on said date? Answer Yes or No. Answer Yes.
“Special Issue No. 4: Was such total incapacity, if any, permanent? Answer Yes or No. Answer Yes.
“Special Issue No. 5: Did the said J. A. Boverie on the 17th day of February, 1929, while working for the F. H. E. Oil Company, sustain injuries, if any, to his said body, other than the injuries he sustained to the left arm, if any? Answer Yes or No. Answer Yes.'
“Special Issue No. 6: Arc any of the injuries, if any, other than to the left arm, if any, permanent? Answer Yes or No. Answer Yes.
“Special Issue No. 11: Is this a special case and one in which manifest hardship and injustice will result to J. A. Boverie, if his said compensation is not paid in a lump sum? Answer Yes or No. Answer Yes.
“Special Issue No. 13: Does such incapacity for work, if any, result directly and proximately from the injuries, if any, sustained by the said J. A. Boverie on the 17th day of February, 1929, and the diseases and infections naturally resulting therefrom, if any? Answer Yes or No. Answer Yes.”

Appellant’s brief contains thirteen propositions, but only three questions for decision are presented thereby; namely (1) the sufficiency of the evidence to support the various findings of the jury; (2) the correctness of the court’s charge on the burden of proof; and (3) the failure of the court to define “preponderance of th'e evidence.” These questions will be considered in their order.

It is well settled that, if an injured employee sustains injuries other than to a specific member of his body, such employee is entitled to compensation under the general provisions of the Workmen’s Compensation Act, and is not limited to that compensation provided for the loss of a specific member. Texas Employers’ Ins. Ass’n v. Moreno (Tex. Com. App.) 277 S. W. 84; Petroleum Casualty Co. v. Seale (Tex. Com. App.) 13 S.W.(2d) 364; Standard Accident Ins. Co. v. Williams (Tex. Com. App.) 14 S.W.(2d) 1015.

The first question for determination is thus narrowed down to a consideration of whether the record contains sufficient evidence to support the findings of the jury on the various issues with reference to the character and extent of appellee’s injuries.

Some eight doctors gave testimony in the case, and the findings of the jury are contrary to the testimony of six of these doctors, but are supported by the testimony of Drs. Thompson and French. The real contention of appellant, as we understand it, is that wo should disregard the opinion of these two doctors. The contention is not made that their testimony’ if believed, would not support the findings. A similar question was presented to us in the case of Texas Employers’ Ins. Ass’n v. Clark, 23 S.W.(2d) 405, where ap-pellee’s theory was supported by the opinion of but one doctor as against the opinion of many testifying for appellant, and we there held that the conflict presented a fact issue for the determination of the jury, and that we would not be authorized to disturb the finding with reference thereto. Every fact finding of the jury in this case is supported by sufficient testimony to present a jury question on the credibility of the witnesses and the weight to be given to their testimony, and we would be unauthorized, under the established rules relating to the powers of Courts of Civil Appeals, to disturb these findings.

The court’s charge on the burden of proof was as follows: “The burden of proof is upon the defendant to establish by preponderance of the evidence the affirmative answers to Special Issues Nos. 1, 2, 3, 4, 5, 6, 6A, 7, 9, 10, 11 and 12, and the number of weeks of Special Issue No. 8, and the percentage of partial incapacity under 10 (a).”

To this charge appellant timely made the following objection and exception: “Plaintiff objects and excepts to the portion of the court’s charge on the burden of proof, for the reason that the same is a general charge and instructs the jury how to answer the issues in order to return a verdict in favor of the defendant, and upon which judgment might be entered for the defendant, and is prejudicial to the plaintiff.”

The overruling of this objection and exception is assigned as error. The assignment is overruled. H. & T. C. Ry. Co. v. Stevenson (Tex. Com. App.) 29 S.W.(2d) 995; Duke v. City Nat. Bank of Forney (Tex. Civ. App.) 16 S.W.(2d) 557; Reed v. Bates (Tex. Civ. App.) 32 S.W.(2d) 216; Register v. Lang (Tex. Civ. App.) 33 S.W.(2d) 230; Sewall Paint & Glass Co. v. Booth Lbr. & Loan Co. (Tex. Civ. App.) 34 S.W.(2d) 650.

Appellant cites the opinion of this court in the case of Texas & Pacific Ry. Co. v. Bufkin, 19 S.W.(2d) 343. The charge condemned by this court in that case was as follows: “You are charged as the law in all civil actions that the plaintiff must prove his allegations by a preponderance of the evidence. And you are also charged that the defendant must also prove his allegations by a preponderance of the evidence.”

There is an obvious difference between that charge and the one given in the instant case.

The term “preponderance of the evidence” is not a legal term within the meaning of article 2189, R. S. 1925, and the court did not err in refusing to define same to the jury. Stine Oil & Gas Co. v. English (Tex. Civ. App.) 185 S. W. 1009.

No reversible error is pointed out, and none appears on the face of the record. It is therefore our order that the judgment of the trial court be affirmed.


author: WILLSON, O. J.

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. BODENHEIM.
    No. 3812.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 23, 1930.
    McGown & McGown and L. B. Otey, all of Fort Worth, for appellant.
    Young & Stinchcomb, of Longview, for ap-pellee.
   WILLSON, O. J.

(after stating the case as above).

Having determined appellee was entitled to recover of appellant a specified sum and that appellant was entitled to recover of appellee a different specified sum; the court should have set off the one sum against the other, and, having done so, should have rendered judgment for the balance in favor of the party entitled thereo. As the court did not do that, the judgment is not a final one from which an appeal could be prosecuted. Article 2211, R. S. 1925; Walker v. Means, 28 Tex. Civ. App. 210, 67 S. W. 167; Eastham v. Sallis, 60 Tex. 576; Kinney v. Tel. Co. (Tex. Com. App.) 222 S. W. 227. This court, therefore, can not do otherwise than dismiss the appeal.


author: ■FUNDERBURK, J.

text:
    BLACK, SIVALLS & BRYSON, Inc., v. OPERATORS’ OIL & GAS CO. et al.
    No. 742.
    Court of Civil Appeals of Texas. Eastland.
    March 13, 1931.
    Rehearing Denied April 16, 1931.
    Phillips, Trammell, Chizum, Price & Estes and Charles L. Terry, all of Port Worth, for appellant.
    Jones & Brown, James G. Harrell, and L. D. Hawkins, all of Breckenridge, for appel-lees.
   ■FUNDERBURK, J.

This suit is one brought by Black, Sivalls & Bryson, Inc., to recover for a debt of $1,138.-99 as against Operators’ Oil & Gas Company and W. J. Rhodes (the latter alleged to have assumed payment of the debt), and for foreclosure of an asserted statutory and constitutional mechanics’ and materialmen’s lien upon certain, property as against said defendants, and also Mollie B. Baker and Fred R. .Baker. The debt was claimed as due for five oil tanks and appliances in connection therewith, and for work in “straightening up” one of the tanks and “repairing grade which had been washed away by flood of the De Eeon River.” It was alleged that the five tanks and certain appliances were sold and delivered on April 30, 1928, as per an invoice of that date, and that the item charged for straightening up the flow tank and repairing grade was on May 31, 1928. The affidavit for mechanics’ and materialmen’s lien was filed October 20, 1928. Upon the trial of the case the court gave a peremptory instruction to find for the plaintiff for the amount of the account against the defendant Operators’ Oil & Gas Company, and in favor of the other defendants as against plaintiff that plaintiff take nothing. The judgment of the court rendered upon the verdict returned in accordance with the instruction denied plaintiff a foreclosure against any of the defendants on its alleged constitutional and statutory lien. The plaintiff has appealed.

All questions presented are believed to be dependent upon and determined by, or, if not, rendered immaterial by, the decision of two questions. One is: Was there any evidence to authorize the submission to the jury of the issue of whether the indebtedness sued on was, by agreement of the parties, to become due sixty days after the date of delivery of the property? The other is: Did the pleadings and evidence authorize recovery against Rhodes and the Bakers on the ground that plaintiff, independently of any statute, had a constitutional lien of which said parties had constructive notice?

As to the first question, if there was no such evidence of an agreement that the in- ' debtedness was to become due sixty days after delivery of the tanks, the peremptory instruction was correct, unless there was an enforceable constitutional lien. According to the foregoing statement, the filing of the account and affidavit designed to fix the lien was more than five months after the date of delivery of the last item of property. Under provision of the statute there was no lien unless there was an agreement of the parties to pay at a specified time different from the date of delivery, and within four months prior to the date of filing. R. S. 1925, art. 5467. Treating the allegations of plaintiff’s petition as asserting an agreement that the indebtedness was to become due sixty days after delivery of the goods, let us examine briefly the evidence, if any, tending to establish such agreement. The contract of sale was made by E. H. Rider, as agent for plaintiff, and one Prosper, as agent for the purchaser. The testimony of Rider very clearly shows that it was his theory that the indebtedness was due sixty days after delivery, because that was the seller’s usual and customary terms. There was no pleading of such custom or of Prospers knowledge of such custom. In the absence of such pleading we need only look for evidence of an express agreement, or evidence of facts from which the agreement would be implied. The testimony shows that the written order or invoice was not signed by Prosper, but Prospers name was written thereon by Rider after the sale was completed and without Prospers knowledge or authority. It ■ is therefore apparent that, when Rider says that the goods were sold upon their regular terms, 'he but stated his own conclusion, the effect of which, if any, was completely destroyed by further testimony. He further' testified: “I can’t swear that I did or did not use the expression “regular terms’ when talking to Mr. Prosper. .* * * I did not specify thirty or sixty days and I did not explain or talk to Mr. Prosper about what the regular terms were.” This testimony, being fully explanatory of all of the other testimony offered on the question, we think, must be held to constitute no evidence raising an issue for the jury as to the existence of such an agree ment.

It seems to be .the position of appellant that the testimony last quoted is at most merely conflicting with that given to the effect that the goods were sold on regular terms-of sixty days, and that therefore a jury question was presented, under such authorities as Williams & Chastain v. Laird (Tex. Civ. App.) 32 S.W.(2d) 502; Funk v. Miller (Tex. Civ. App.) 142 S. W. 24; Molburn v. Webb (Tex. Civ. App.) 277 S. W. 800; Davis v. Petroleum Casualty Co.. (Tex. Civ. App.) 13 S.W.(2d) 981; Farmers’ Gin Co. v. Smith (Tex. Civ. App.) 28 S.W.(2d) 839; Threadgill v. Shaw (Tex. Civ. App.) 148 S. W. 825. These cases, we think, rightly interpreted, go no further than to hold that, where there is uncertainty in the real purport of a party’s entire testimony produced by apparent inconsistencies in parts thereof, a jury question is presented. Such is not the case here. A, good statement of the rule applicable here is given by the editor to the note following Harlow v. Laclair, 50 A. L. R. 973, as follows: “An examination of the decisions reveals that when a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him so as to show that he was mistaken although testifying in good faith, it has generally been held that he is conclusively bound by his own testimony, and cannot successfully complain if he is nonsuited or the court directs a verdict against him.” If a party in testifying mates a statement in the nature of a conclusion or opinion, or perhaps even of a fact proper which1 other parts of his testimony, dealing with more specific facts, show to be erroneous, and leaves the real meahing of his, testimony as a whole, such that he has no right of recovery or shows no liability of the other party, only a question of law is presented. For instance, in Mhoon v. Cain, 77 Tex. 316, 14 S. W. 24, 25, a party, having the burden of proving the time an adverse possession had continued, testified that it had continued ever since his entry upon the land. If this were true, he had a right to recover. Specific facts testified to by him,' however, showed that a part of the time the possession was not adverse as a matter of law. This being true, he had no right to recover. The court said of this testimony: “This was, however, only his opinion. When he explains the character of his possession as under expectation or intention of buying the land from the owner, we see that his opinion was incorrect.” In this ease, just as certainly as in that, the specific facts testified to produce no uncertainty in the import of the entire testimony, but certainly disclose a mistaken conclusion on the part of Rider that the sale as actually made included an agreement that the due date of the indebtedness was to be sixty days after delivery of the goods. The testimony, therefore, raised no issue to be submitted to the jury.

The next question arises out of the contention that, regardless of the existence of a special agreement as to the due dates of the account, appellant had a lien given by the Constitution, which required no filing. The Constitution, art. 16, § 37, gives a lien to “mechanics, artisans and material men, of every class * * * upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor.” This'lien, when it exists, is enforceable as between the parties having the relation of owner and original contractor, without filing the contract or account. Ball v. Davis, 118 Tex. 534, 18 S.W.(2d) 1063; Farmers’ & Mechanics’ Nat. Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966; Strang v. Pray, 89 Tex. 525, 35 S. W. 1054, 1056.

But the statutory requirement as to filing and time of filing must be complied with to make even a constitutional lien enforceable as against a subsequent bona fide purchaser. Strang v. Pray, 89 Tex. 525, 35 S. W. 1054, 1056; De Bruin v. Santo Domingo L. & Irr. Co. (Tex. Civ. App.) 194 S. W. 654; Kinsey v. Spurlin (Tex. Civ. App.) 102 S. W. 122; D. June & Co. v. Doke, 35 Tex. Civ. App. 240, 80 S. W. 402; Beilharz v. Illingsworth, 62 Tex. Civ. App. 647, 132 S. W. 106.

The statute is but a reasonable regulation authorized by the Constitution itself, serving the purpose, among other things, as held in Strang v. Pray, supra, “to protect subsequent purchasers by the record of the contract and bill of particulars.”

The plaintiff’s petition shows that the owner of the property on which the constitutional lien is claimed was no longer such owner, but that the property had been transferred by him, first to W. J. Rhodes and by the latter to Fired R. Baker and Millie B. Baker. In order to make good the assertion of a constitutional lien as against the vendees of said original owner, or to charge them with conversion of the property, it was necessary to allege and prove that such a contract or claim of lien was duly filed in order to charge them with constructive notice, or that they had actual knowledge of the facts, or for some other reason were not bona fide purchasers. There was no basis in the pleading or evidence to hold them liable upon' any other theory than that the filing of the lien constituted constructive notice. The claim of a lien was filed October 23, 1928, one day before the transfer to Rhodes and by Rhodes to the other parties. The inquiry is therefore narrowed down to a consideration of the question: Did the filing of the account and affidavit afford constructive notice that appellant, as a mechanic or artisan, had done labor in making or repairing a building or article, or as a ma-terialman had furnished material for the making or repairing of a building or article? Except for one small item designated, “Straightened up flow tank, (210 bbl.) and repaired grade which had washed away by flood of De Leon River.$30.00,” the account itself and the accompanying affidavit implies the exclusion of a claim on the part of appellant of-a constitutional lien. If tanks under any circumstances are buildings within the meaning of the constitutional provision, they are not necessarily such. We do not hesitate to say that the one tank which was sold and delivered in a finished state was not a building made. For aught the claim of a lien shows, all of the tanks were so sold and delivered. All of the items of the account were referred to as “goods, wares and merchandise” and were asserted to have been sold for agreed prices. It therefore becomes unnecessary for us to determine whether the other tanks, as to which the materials were delivered upon the lease in a knoeked-down condition and then put together to form same, should be regarded as buildings made. That question would require decision only if the original parties were involved. We conclude that the filing of the lien did not give notice of the existence of a constitutional lien unless as to the $30 item next to be noticed.

The $30 item reading, “Straightened np flow tank, (210 bbl.) and repaired grade which had washed away by flood of DeLeon River,” shows a claim for labor performed. For the value of such labor to be secured by constitutional lien it must have been done in making or repairing a building or an article. We have already held that a tank, if a building under any circumstance, is not necessarily such. The repairing of a grade washed away by flood was neither the making nor repairing of a building or an article within'the terms of the constitutional provision. The tank, we think, was an article, but the affidavit and account made no claim for repairs to the tank. If “straightened up” the tank could be considered the equivalent of “repaired the tank,” the filing of the affidavit and account carried no constructive notice of a constitutional lien, since it made no claim for any particular amount for that particular service.

But, if the filing of the affidavit and account should be held sufficient to give notice of a constitutional lien for the $30, it would not necessarily follow that the trial ’ court erred in giving the peremptory instruction. Other than the account and affidavit the only evidence in the record relative to this item was the testimony of E. H. Ridor, branch manager for appellant, which we quote in-full, as follows: “Along in May Mr. Proctor called me on the telephone one morning and asked me to do some repair work on the flow tank, and I sent our man down to do the repair work. In that particular case I do not recall.the reasonable value of the services of the man employed and used by our company in making the repair. No price was asked and none was quoted. I was familiar with the value of repairs -at that time and at that place. Under the conditions the price of $30.00- as placed on this item was reasonable price for labor for the repair done at that time.” This evidence shows that this item involved an independent contract, and therefore had no connection wit-h the other items in the account. There was no evidence identifying the tank in question, nor to show that possession thereof ever passed to the assignees of the oil and gas lease. While a constitutional lien upon a building has by judicial construction been held to extend to the land upon which the building is located, we are not prepared to hold that a lien upon an article made would extend to anything other than, such article. There was no evidence whatever to show 'that any amount was due for “straightening up tanks.” There was, therefore, as respects this item, no issue for the jury, and the action of the court in giving the peremptory instruction was proper.

In Ball v. Davis, 118 Tex. 534, 18 S.W.(2d) 1063, 1067, a constitutional lien wa-s claimed on the ground that machinery or something connected with the drilling of a well was repaired. There was evidence by plaintiff that, “When it got out of order I repaired the machine myself,” and by another witness that, “I helped repair the machine.” The Supreme' Court said: “What either of them did, or what machine was repaired, or what part of the machine they repaired, the testimony does not "show.” The existence of the lien was denied, and we think the same thing may be said of the evidence in this case.

It is therefore our opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.