author: LOONEY, J.

text:
    SWINDALL et ux. v. VAN SCHOOL DIST. NO. 53 et al.
    No. 10946.
    Court of Civil Appeals of Texas. Dallas.
    March 14, 1931.
    Rehearing Denied April 18, 1931.

      Crawford & Fletcher, of Grand Saline, and Marion S. Church, and Coker, Wilson, Rhea & Neel, all of Dallas, for appellants.
    Wynne & Wynne, of Wills Point, and Vinson, Elkins, Sweeton & Weems, of Houston, for appellees.
   LOONEY, J.

G. W. Swindall and wife sued for the twofold purpose of canceling, for fraud and deception practiced in procuring a deed executed by G. W. Swindall, February 22,1924, conveying an acre of land for school purposes to the school authorities of the Van school community or district in Van Zandt county; also to cancel a deed executed by the school authorities, February 21, 1924, conveying the land to R. L. Wells, a certain oil lease and easement granted by Wells, and all royalty contracts, titles, and interests claimed by defendants derived from and under the said deed from Swindall to the school authorities; to remove said instruments as clouds upon plaintiff’s title; and also to recover the title to and possession of the land.

The answer filed by defendants contained, among others, general denials, pleas of not guilty, estoppel, that they were innocent purchasers, and the bar of limitation under the statutes of three, four, five, and ten years.

The case was tried to a jury, and, at the conclusion of the evidence, the court directed a verdict for defendants, and judgment was rendered accordingly, from which plaintiffs appealed, and urge, as ground for reversal, that the evidence sustained their allegations, and was sufficient to raise the issue of fraud and misrepresentation alleged to have been practiced by and on behalf of the school authorities on G. W. Swindall that led him to execute the deed in question under the belief that it was in lieu of a deed formerly executed by him, and that it contained a limitation, to the effect that, when no longer used for' school purposes, the land would revert to him. his wife and heirs, whereas the deed he was thus fraudulently and mistakenly led to execute was absolute in form and conveyed the land to said authorities without limitation.

The rule is axiomatic that a. trial court should never direct a verdict unless the evidence, as a matter of law, will admit of no other conclusion; therefore, in deciding the question presented, we must, as the trial court should have done, disregard any evidence at all favorable to defendants, and consider alone, in its most favorable light to plaintiffs, the evidence that supports their contention. Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323; Walker v. Railway Co., 51 Tex. Civ. App. 391, 112 S. W. 430; Crowley v. Finch (Tex. Civ. App.) 153 S. W. 648; Drew v. American etc. Co. (Tex. Civ. App.) 207 S. W. 547: Guedry v. Jordan et ux. (Tex. Civ. App.) 268 S. W. 191, 195.

The material evidence on the issue is substantially this: G. W. Swindall testified that, about 1880, he conveyed the acre of land m question t,o the trustees of the Swindall school community (now the Van school community, or district), the conveyance containing a limitation, to the effect that, when no longer used for school purposes, the property would revert back to the grantor and his wife and heirs; the school authorities, in such event, were to have the improvements, and grantor was to pay them $3 back for the land. This conveyance was lost and never recorded, and a number of years later plaintiff executed in lieu a second deed, similar in terms and provisions to the first, the only difference being that, in the latter, the land was conveyed to the county judge for the benefit of the school, instead of to the trustees, as in the first deed. The second deed was not recorded and was likewise lost, so on February 22, 1924, plaintiff was induced to execute the deed which he now seeks, among other's, to have canceled and removed as a cloud upon his title.

The record discloses that, on February 21, - 1924, the school authorities sold and conveyed ■the sqid acre of land and improvements to defendant Wells, and, in order to satisfy him as to the title, undertook and did procure from plaintiff, G. W. Swindall, the execution of the deed in question.

It is pertinent to state at this juncture that, after the execution of the second deed, but before the execution of the third Swindall moved about 15 miles from the Van community, and had been residing at Pole Town seven or eight years; at that time no school was maintained upon the premises, nor had been for at least seven years, the trustees having erected a new schoolirouse where school was conducted; and it seems, for a time after the school was moved, no particular use was made of the acre of land, but for five to seven years prior to February 22, 1924, it had been occupied by tenants and the rents collected were used by the trustees for the benefit of' the school. Plaintiffs had known for some time prior to February 22,1924, that the property was not used for school purposes, but it is not clear that they knew just what use was being made of the property by the trustees.

Swindall detailed the circumstances of the execution of the deed as follows: “ * * ⅝ Mr. Horace Cook came to me and took the matter up with me in 1924; he said the other deed was lost and that they wanted a third deed in the place of the one that he claimed was lost. He wanted a deed just like the second one I had. executed. Mr. Cook did not read that deed to me; he told me it was in the place of the one that was lost. He did mot tell me what was in the deed — just said it was like the' second deed. I had known Mr. Cook ever since he was a boy. * * * I had no reason to believe that the deed was not as represented by Mr. Cook; I thought it was just like the second deed; I would not "have executed a deed different from the second deed. * * * I was only paid a consideration one time — for the first deed. The consideration in the first deed was $2.50 or $3.00. That is all I have ever been paid. * * * At the time I signed the deed in 1924, which was the third deed I had signed covering that property, I did not know anything about Mr. Wells having bought this lot, or about his intention to buy this lot. I first learned that Mr. Wells claimed to have bought this lot three or four years after I made the last deed. ⅜ ⅜ * At the time I executed the third deed, the notary did not fully explain the deed to me. He did not read the deed to me. Ho said the deed was just like the second deed I had executed. At the time I executed the third deed I did not know that two of the school trustees up there had already conveyed the property to Mr. Wells. . * * * I could not read the deed I made to the school district; it wasn’t read over to me by anybody; * * * I have told you that when Mr. Cook came to get this last deed from me, he did not tell me that the school district had sold to Mr. Wells. He claimed that the deed was misplaced, and 1 didn’t know that Mr. Wells had bought the land for three or four or five years after that. * ⅜ * It has been thirteen or fourteen years since I lived in the Van community. I don’t know who Mr. Wells bought from — I don’t know whether he ever bought it or not. I never did talk to Mr. Wells about the matter. * * *»

Mr. W. H. Cook, the notary, testified: “ * * * I remember having taken acknowledgment of deed executed by Mm (6. W. Swindall) to Yan School District; I don’t remember what year it was (witness reading instrument) Yes, I recognize this deed; I took the acknowledgment of it. I was called upon by the trustees of the Van School District to do that work. I don’t remember whether the instrument was read to him. T don’t remember that there was any explanation made to Mr. Swindall with reference to the instrument by me as a notary. I don’t recall who signed Mr. Swindall’s name to the instrument. I have looked at the deed and Mr. Swindall’s name on the deed is not in my handwriting. When Mr. Neill and Mr. White (trustees) and I went down to Pole Town to get this deed, I was acting as a notary public. Yes, the school trustees were the ones who got me to go down there; I was acting for them. * -* * Yes, when we went down there, I reckon 1 did know that they already had a trade up with Mr. Wells to sell him the lot; I don’t know, really, when I first knew that. Mr. Swindall signed by making his mark by his name. No, I have no recollection of Mr. Swindall’s ever touching the pen that made the ‘X.’ I don’t remember now who made the cross for him. I had known Mr. Swindall a long time, and I knew that he could neither read nor write; I knew that he could not even sign his own name.”

Mr. Neill, one of the trustees, testified, among other things, as follows: “ * * % 1 never did see the first and second deeds he executed to the school. I do not know of my own knowledge what those deeds contained. I never made any investigation to determine what was in those deeds. I don’t know, of my own knowledge, to whom they were made. I do not know what kind or character of estate was conveyed by those deeds. Yes, at the time of the execution of the 1924 deed, I understood-that it was to be in place of, in lieu of and in substitution of the lost deeds. Mr. Swindall did not prepare this deed. Of course I knew that day that Mr. Swindall could hot read or write. Why certainly, I knew that he would have to rely upon my statements or upon Mr. Cook’s statements, or upon somebody else’s statements as to what the deed contained. I don’t think there was anybody with Mr.. Cook and me when we went to Mr. Swindall’s house. * ⅝ * As to the name of G. W. Swindall on the deed— I do not know whose handwriting it is in. No, it is not a fact that the name was written in the deed before we went out there. I do not -know why we did not obtain the signature, or mark, of Mrs. G. W. Swindall to the deed. I don’t know what I did on the day before I went out to Mr. Swindall’s house to obtain this deed. I remember signing a deed to Mr. Wells to this same land, but I don’t remember the date; it might have been the day before we went to Mr. Swindall’s and it might-not have been. , I am not sure whether, when we went to sell tills property to Mr. Wells, we found for the first time that neither the county nor the school district had any title of record to the property; anyway, we had to get this deed to satisfy Mr. Wells. * * * It might have been the next day that I got Mr. Cook and went to get the deed from Mr. Swindall; I am not sure. Yes, Mr. Swindall executed the deed the same day we were out there. If the other deed is dated previously, it was after we had signed it; I don’t remember.”

The deed executed by Swindall February 22, 1924, contains this language: “This deed is made in lieu of a deed heretofore executed by me to the above described property, the former deed being lost or misplaced and not being of record, and this conveyance is to have all the force and effect as an original deed. That no iiart of the above described land is my homestead.”

The statement above contains the background for, and the facts immediately connected with, the execution of the instrument in question. Provisions in deeds, in effect the same as the one contained in the deed Swin-dall testified he executed, have been pronounced conditional limitations, under which the estates conveyed terminated on the happening of the stipulated events. See Wiederanders v. State, 04 Tex. 140; Green v. Gresham, 21 Tex. Civ. App. 601, 53 S. W. 382; McBride v. Farmers etc. (Tex. Civ. App.) 152 S. W. 1135; Stewart v. Blain (Tex. Civ. App.) 159 S. W. 92S, 929. If, therefore, the contention of plaintiffs should be established, the right of the school authorities to use or occupy the land ended when they ceased to use it for school purposes, and plaintiffs were then entitled to its possession. We think the evidence clearly raised an issue of fact for the jury, but, as the ease will be remanded, we express no opinion as to its probative value, other than to say that it was sufficient to raise an issue as to whether or not Swin-dall was led by deception to execute the deed, under the belief that it contained the limitation embodied in the preceding deeds.

Defendants contend, however, that, even if the evidence was sufficient to raise this issue, nevertheless the court committed no error in directing the verdict, because it was conclusively shown that they were innocent purchasers; that it conclusively appeared that plaintiffs’ alleged cause of action for cancellation was barred under the four years’ statute of limitation, and, further, that the asserted cause of action for recovery of the land was barred under the ten years’ statute. Defendants present no counter proposition under either of the other grounds of defense alleged.

We assume, for the sake of the discussion, that plaintiffs will ultimately succeed in establishing their contention, that is to say, that fraud in fact was practiced on G. W. Swindall that led to the execution of the deed sought to be canceled; now, in such event, could defendants, who derived title under said deed, claim protection as innocent purchasers? We do not think so.

The doctrine seems to be well settled in this state, as elsewhere, that a contract induced by misrepresentation may be either voidable for fraud or void for mistake. The signing of an instrument by mistake, that is, under the supposition that it was an instrument of another or different character, would be no less a mistake because induced by fraud. Accordingly, if a person is ignorant of the contents of the written instrument, from inability to read, and signs through mistake and misrepresentation, without negligence on his part, such a contract is generally held void for want of assent. 6 R. C. L. 625, 626, sec. 44; Stacy v. Ross, 27 Tex. 3, 84 Am. Dec. 604; Link v. Page, 72 Tex. 596, 10 S. W. 699; Beisert v. Wizig, 103 Tex. 591, 131 S. W. 810; Houston etc. Co. v. Hubbard, 37 Tex. Civ. App. 546, 85 S. W. 474; Steffian v. Bank, 69 Tex. 518, 6 S. W. 823; El Dorado v. Darnell, 135 Iowa, 555, 113 N. W. 344, 124 Am. St. Rep. 309.

The case of Stacy v. Ross, 27 Tex. 3, 84 Am. Dec. 604, supra, was a suit on a promissory note, in which fraud in its execution was pleaded as a defense, in that the note, as read to the maker, an illiterate man, was to bear 5 per cent, interest, whereas the note actually signed and sued upon bore 8 per cent, interest. The court held the note void, because the maker, by reason of the fraud perpetrated, had not assented to its execution. The case of Link v. Page, 72 Tex. 596, 10 S. W. 699, 701, involved a transaction in which the grantor was led by fraud to execute a deed different from the one intended. Commenting upon these facts, the Supreme Court, in an opinion by Judge Gaines, said: “The attorney of the grantors never having assented to the contract set forth in the alleged conveyance, signed by him through mistake on his part and fraud on part of his grantee, the minds of the parties did not meet, and no agreement was consummated” — citing Stacy v. Ross, 27 Tex. 4, 84 Am. Dec. 604; VaValkenburgh v. Rouk, 12 Johns. (N. Y.) 337; Bish on Cont. (2d Ed.) §§ 345-6 et seq.; Pollock’s Prin. Cont. 401 et seq. It follows therefore that, if plaintiffs should sustain their contention, the deed executed February 22, 1924, must be held void for want of assent on the part of the grantor, and defendants who hold thereunder could not claim protection as innocent purchasers under the void instrument.

Was plaintiffs’ cause of action for cancellation barred by the statute of four years’ limitation (article 5529, R. S. 1925)? It is obvious that more than four years elapsed after the execution of the deed (February 22, 1024), before plaintiffs instituted the suit, but the -evidence raised the issue that the suit was instituted less than four years after plaintiffs knew, or, by the exercise of ordinary diligence, could have known of the alleged fraud.

The doctrine is well settled that the statute of limitation will not begin to run in cases involving fraud, until it is discovered, or, by the use of reasonable diligence, could have been discovered. See Kuhlman v. Baker, 50 Tex. 636, 637; Alston v. Richardson, 51 Tex. 6; Cooper v. Lee, 75 Tex. 114, 12 S. W. 483; Bass v. James, 83 Tex. 111, 18 S. W. 336.

The record is somewhat confusing as to the date the suit was instituted; at page 43 of the statement of facts, there is a recitation that it was filed March 22, 1930,.while at page 80 there is another that it was filed March 26, 1929, and that a lis pendens notice of the suit was filed. We do not regard this conflict of any materiality; however, conclude from data found elsewhere in the record that the suit was instituted March 22, 1930; but, under either aspect, the question as to when the cause of action for cancellation accrued, was one of fact and should have been submitted to the jury.

The other question presented is this: Was plaintiffs’ cause of action for title and possession of the land barred by the ten years’ statute (article 5510, R. S. 1925) when the suit was instituted? As before stated, plaintiffs sought by the suit to accomplish a twofold purpose, that is, cancellation of instruments and the recovery of land. While the action is not, strictly speaking, one of trespass to try title, yet it has that legal effect. See Dangerfield v. Paschal, 20 Tex. 536; Grimes v. Hobson; 46 Tex. 416; The Day etc. Co. v. State, 68 Tex. 526, 535, 4 S. W. 865. However, recovery of the land is dependent altogether upon the result of the equitable proceedings for cancellation, for, if plaintiffs fail to obtain that relief, they will fail altogether. See McCampbell v. Durst, 15 Tex. Civ. App. 522, 40 S. W. 315, 320; Deaton v. Rush, 113 Tex. 176, 252 S. W. 1025, 1031.

In McCampbell v. Durst, supra, Jud&e Williams used the following language in point: “If the plaintiff in such an action shows right to a decree which, when rendered, would invest him with title sufficient to maintain an action for the land, he may doubtless, aside from questions of venue and other questions of mere procedure, obtain both the affirmative decree and judgment for the land in one action. But the judgment for the land would be the consequence, merely, of the relief primarily granted, and could not, but for that relief, be recovered. And hence it is obvious that the question, whether or not that primary relief should be granted, is to be first determined by the same rules -which, would govern if the suit were for it alone.”

In view of this status of the law, it is not altogether clear that limitation under the ten years’ statute was an appropriate defense, but we leave this point undecided, because it appears indisputably that plaintiff’s cause of action was not barred under said statute, even if applicable and in operation prior to the institution of the suit.

We will state our reasons for this conclusion. If it be conceded that, after the land was deeded to Wells, February 21, 1924, his possession was peaceable and adverse, yet the time was insufficient to complete the bar prior to the suit; therefore, in order to complete ten years’ possession, he would have to tack his to the prior possession of the school authorities; but before theirs could have become hostile to plaintiffs (under his theory of the case) the school authorities should have repudiated the title held under the deed executed by him and visited upon him notice, actual or constructive, of the repudiation before the statute would have been put in operation. We do not think it can be correctly said, as a matter of law, that this was shown. Thompson v. Richardson (Tex. Com. App.) 221 S. W. 952, 953; Word v. Drouthett, 44 Tex. 365, 371.

But even if it be conceded that the school authorities had maintained peaceable and adverse possession of 'the land prior to February 22, 1924, the day the deed in question was executed, yet, by soliciting and in-' ducing Swindall to execute the deed, they recognized his ownership of the property, the continuity of adverse possession, if it had ex- ■ isted, was thereby broken, and the .running of the statute interrupted. See 2 G. J. 101, 102, 103, 136; Satterwhite v. Rosser, 61 Tex. 166, 172; Robinson v. Bazoon, 79 Tex. 524, 15 S. W. 585; Burrell v. Adams, 104 Tex. 183, 187, 135 S. W. 1156; Thompson v. Richardson (Tex. Com. App.) 221 S. W. 952; Black v. Goolsbee (Tex. Civ. App.) 226 S. W. 463; Collins v. Megason (Tex. Civ. App.) 228 S. W. 583, 585; Smith v. Wood (Tex. Civ. App.) 229 S. W. 583, 585.

Therefore, if, on a subsequent trial, the facts developed are in legal effect the same as disclosed by the record before us, the court should instruct a verdict on this issue for plaintiffs.

For reasons stated, we believe the court erred in directing a verdict for defendant.

Its judgment is therefore reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

On Motion for Rehearing.

Appellees earnestly insist that our decision is, not only erroneous, but in eonilict with a number of Texas cases. 'We held that the .evidence raised an issue of fraud, that is, that Swindall, without negligence on his part, was led by deception to convey in fee simple the acre Of land to the school authorities under the belief that the conveyance was upon a conditional limitation; therefore we concluded, as a matter of law, that the deed executed under such circumstances was void, because never assented to by the grantor; hence appellees, claimants under the void instrument, could not claim protection as innocent purchasers.

The authorities from this state, cited in our original opinion, sustain the proposition that an instrument executed under such circumstances is, not merely voidable, but absolutely void. This doctrine is also announced in Williston on Contracts, vol. 3, § 1488, page 2648, in the following language: “Fraud may induce a person to assent to do something which he would not otherwise have done, or it may induce him to believe that the act which he does is something other than it actually is. In the first ease, the act of the defrauded person is effectual, though voidable; in the second ease, the act of the defrauded person is void.” To the same effect, see Delvin vol. 2, § 726; Biddeford National Bank v. Hill, 102 Me. 346, 66 A.721, 120 Am. St. Rep. 499; Chickasaw L. & T. Co. v. Mills, 59 Okl. 230, 158 P. 1156; Horvath v. National Mortgage Co., 238 Mich. 354, 213 N. W. 202, 56 A. L. R. 578; Oatman v. Hampton, 43 Idaho, 675, 256 P. 529; McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818, 4 Am. St. Rep. 848; Whipple v. Brown Bros. Co., 225 N. Y. 237, 121 N. E. 748; Smith v. Ryan, 191 N. Y. 452, 84 N. E. 402, 19 L. R. A. (N. S.) 461, 123 Am. St. Rep. 609, 14 Ann. Cas. 505.

The authorities, from this and other states, fully sustain the proposition that an instrument, the execution of which is induced by fraudulently representing its contents to be other than it actually is, stands on no higher ground than a forgery and is therefore void.

Any number of cases may be found, involving instruments induced by fraud relating to the consideration that were held simply voidable, and that parties holding thereunder, if innocent purchasers, could successfully defend on that ground. There can be no debate at this point, but an instrument executed under circumstances that we believe the evidence tends to show Swindall executed the instrument in question could not have attained the status of a contract, because never assented to, and being void would possess no greater value in law than a mere forgery.

After carefully examining all cases cited by appellees in briefs, as well as in motions for rehearing, we fail to find where the identical question under consideration was either discussed or decided. The nearest approach to the question is found in Ramirez v. Bell (Tex. Civ. App.) 298 S. W. 924, 927. Ramirez and wife sued Bell and Wendlandt to cancel a deed executed by them, conveying to Bell their homestead, consisting of 121 acres of land in Bastrop county, and to cancel a deed of trust placed on the land by Bell to secure Wendlandt in the payment of a loan of $5,-000. Plaintiffs contended that their signatures were obtained to the deed under the belief induced by Bell’s representations that it-was a mortgage, thus an issue as to the genuineness of the instrument as their act was made, in other words, that the deed was in law a forgery, and that the facts and circumstances put Wendlandt upon notice. Bell contended that the deed evidenced a conditional sale, and Wendlandt contended that he made the loan believing Bell to be the owner and was without knowledge or notice to the contrary. The court found that the deed to Bell was in fact a mortgage, that the evidence raised the issue of notice to Wend-landt and remanded the case for trial on that issue. The nearest approach to a discussion of the proposition involved here is found in the following statement, the court said: “The second contention that the deed was a forgery, and therefore void, if procured by representation that it was only a mortgage, is overruled.” After making this statement, the court proceeded to discuss forgery as it existed at common law and as it exists under our penal code, and disposed of this phase of the case by holding that the deed was not a forgery, but in fact a mortgage, that the circumstances raised the issue of notice to Wendlandt, and reversed and remanded the ease for trial on that issue alone.

The evidence furnished ample basis for the proposition involved here, that is, that the instrument was void because its terms were never assented to by the grantors, but it seems they rested their contention on the proposition that the instrument was void because a forgery, and this being the proposition urged was the question decided.

Appellees insist that Swindall was negligent in executing the instrument; that, if due care had been exercised, he could have ascertained the nature of the instrument before signing; that appellees were thereby misled to their injury.. Therefore plaintiffs are estopped to a'ssert the invalidity of the deed. This contention embodies a correct principle, and on trial the jury máy find that Swindall was in fact negligent, but this also presents a question for the determination of the jury under a proper definition, and submission of the issue.

Appellees insist that we erred in finding that the suit was instituted March 26, 1929, instead of March 22, 1930, and we are asked to correct the finding.

At page 43 of the statement of facts, we find the following agreement: “It is agreed by all parties to this suit that the original petition in this case was filed on the 22nd day of March, 1930; whereas, at page 80 of the statement of facts, we find the following: ‘Agreement: It Is agreed between all parties to this suit that after the filing of this suit on March 26, 1929, the plaintiff filed notice of lis pendens now of record with the county clerk of Van Zandt County, Texas, fully setting out the nature and character of this suit.’ ” Appellants contend in their brief that the suit was instituted March 26, 1929, whilst ap-pellees contend in their brief that the correct ’ date is the 22d day of March, 1930. These entries are of equal dignity, but irreconcilable. We think it inexcusable that a record containing contradictory agreements to the same fact should have been presented to an appellate court, or circumscribed by the record as we are that the court should have been called upon to settle the controversy in regard to a date so certain and easy of ascertainment as not to admit of real controversy. We have had no way of determining the matter, except by indulging a presumption, or by ransacking the record for corroborative evidence. The fact in issue, that is, thq date of the institution of the suit, is only material on the'question of limitation, and, as the burden of that issue is upon appellees, we could have dismissed the matter by indulging the presumption that the earlier date, the one most favorable to appellants, is the correct one; however, we have not done so, but, by diligent search, find hidden away in a citation copied in the transcript a recitation, to the effect that the suit was instituted on March 22, 1930; hence find that the contention of appellees is corroborated and the original opinion has been corrected accordingly. In view, however, of the uncertainty caused by these contradictory entries and contentions, this finding is for this hearing only, and will not conclude either party on a retrial of the cause.

After carefully considering all grounds urged by appellees for rehearing, and finding no reason to change our decision, the motions are overruled.

Overruled.


source: Caselaw Access Project

author: JONES, C. J.

license: Public Domain

text:
    MARCUS v. HUGULEY.
    No. 10749.
    Court of Civil Appeals of Texas. Dallas.
    March 14, 1931.
    Rehearing Denied April 25, 1931.

      Touchstone, Wight, Gormley & Price and Robert B. Holland, all of Dallas, for appellant.
    Leake, Henry, Wozencraft & Frank and Adams & Harrell, .all of Dallas, for appellee.
   JONES, C. J.

This suit was instituted in a district court of Dallas county by appellee, W. J. Huguley, as administrator of the estate of Lenoa W. Huguley, deceased, against appellant, Mrs. Ophelia Marcus, as independent executrix of the estate of Theo Marcus, deceased, and from an adverse judgment appellant has duly perfected an appeal. The following are the necessary facts:

The deceased, Lenoa W. Huguley, was the daughter of W. J. Huguley and his wife, Mrs., Areta Huguley. Mrs. Ophelia Marcus was the wife of Theo Marcus, deceased, and independent executrix of the estate of her deceased husband, who died subsequent to July 2,1027, the date of the occurrence under inquiry. Lenoa Huguley died in a hospital in the city of Dallas on July 2, 1927, as the result of injuries received by the collision of the automobile, in which she was riding, with an automobile owned by Theo Marcus and driven by his negro chauffeur. Lenoa Huguley was riding in her father’s Ford sedan in company with her father, mother, and two other persons. This car was traveling south on Hunger boulevard and, while crossing Swiss avenue, which intersects Hunger boulevard at right angles, one of its rear wheels was struck by the Marcus car, driven by said chauffeur, and practically demolished. As the result of the collision, Lenoa Huguley was hurled about 50 feet from the place of collision, falling on the cement paving, and the Marcus car, a large Cadillac sedan, was deflected from its course on the street, carried up an embankment 4 or 5 feet high, and stopped at a distance of about 100' feet on the vacant lot situated on the southeast corner of the intersection of these streets. The large car, occupied only by the negro chauffeur, was operated at a rate of speed estimated from 60 to 70 miles per- hour, and was traveling east on Swiss avenue. The speed was not checked as the car approached the intersection of said streets. Two other persons in the Ford sedan were hurled from the car and the other two were pinned beneath its wreckage. When the collision occurred, approximately at 1 p. m., the Huguley car was being operated in a careful and cautious manner and the collision was caused solely from the negligent and reckless driving of said chauffeur. When Miss Huguley was first seen after the collision, she was lying on the pavement in an apparent unconscious condition. She was taken at once in an ambulance to Baylor Hospital, where, for about three hours after she arrived, she was in a conscious condition. Heavy opiates were administered to her and at the expiration of about three hours from the time of the injury, she lost consciousness entirely and died from her injuries shortly after 9 p. m. At the time of her death, Miss Huguley was 27 years of age, in good health, had never married, and was living with her parents and earning about $200 per month as a music teacher. The medical testimony, as well as the testimony of others attending her, was to the effect that, during the time she was conscious, her suffering from physical pain was intense.-

Miss Huguley had been well educated and had a Master’s degree in both art and music. She appears to have attended school until she was about 25 years of age, during which time her expenses were paid by her father. The three or four months’ vacation in the summer, while attending school, she would spend at home and assist her mother very materially both in household duties and in nursing and attending to the wants of her mother, who was in delicate health. During the two or more years that elapsed from the time she finished her education, she made her home with her parents and paid neither board nor room rent. She had classes in music and her studio was in a small house on the same lot on which her parents’ home is located. Miss Huguley contributed money from time to time to her mother and at times to her father, but the amount of money so contributed is not shown. She also assisted her mother in the household duties during this time. The mother at such time was in very poor health and was nursed by deceased, who frequently gave her what is termed “fomentations,” which seems to have been a kind of hot-water application, and administered to her in other ways. This duty she assumed to her mother required much of her time at night. She was very much attached to her parents and at all times showed a willingness to assist them whenever she could. Her life expectancy at the time of her death was 37.4 years. Her father and mother were 57 and 56 years of age, respectively, and the life expectancy of the father was 16.5 years, and that of the mother 16.72 years.

As stated above, Theo Marcus died subsequent to the injuries to and death of Lenoa Huguley. W. J. Huguley, as the duly qualified administrator of the estate of his deceased daughter, instituted this suit to recover damages for the benefit of himself and his wife as parents of deceased, and the only beneficiaries under the survival statute, article 5525, R. S. 1925. One count in the petition seeks recovery of damages for the estate of deceased for conscious suffering during the time intervening between her injuries and her loss of consciousness. This was the cause of action which accrued to deceased immediately on receipt of the injuries, and which, under said statute, survived to her estate upon her death. Another count in the petition seeks to recover damages for the pecuniary loss occasioned the father and mother because of the wrongful death of their daughter. The petition clearly alleges a cause of action, consisting in damages because of the negligent and reckless driving of the said chauffeur on the occasion in question. Damages in the sum of $10,000 is prayed for because of the conscious suffering of deceased, and damages in the sum of $25,000 is prayed for because of the pecuniary loss to the beneficiaries, the father and mother, on account of deceased’s death.

Appellant answered by plea in abatement, based on a claim that appellee’s petition did not, on its face, show the right of the administrator of Miss Huguley’s estate to institute the suit. Subject to this plea, the answer contained a general demurrer and a number of special exceptions, a general denial, and an admission that the collision of the cars occurred “at the time and in the manner and place alleged in said petition, and the death of Lenoa Huguley in said collision, as alleged in said petition, in so far as said petition alleges mere facts as distinct from legal conclusions.” Appellant further answered by allegations, to the effect that the sole beneficiaries in' the damages sought to be recovered were the father and mother, and that they were estopped to recover damages in the present suit, because these beneficiaries had recovered damages in another suit, in their individual capacities, from appellant for the personal injuries each received on account of the same collision that is made the basis of the instant suit. The petition in the former suit is set out in haec verba in appellant’s answer, and said suit and the resulting judgment, amounting to the total sum of $20,915.80, awarded to the beneficiaries as damages for such personal injuries, is pleaded as the basis for the plea in estoppel, together with the plea that said judgment had been paid in full and duly receipted. It is also alleged that appellee, by reason of such former suit and recovery and the release executed, had been paid for all damages that can legally be recovered by reason of the collision in question.

The plea of estoppel and allegations on which it is based were stricken from the answer on special exception, filed by appellee, and this ruling of the court is duly assigned as error. Error is also assigned on the refusal of the court to admit in evidence the amount of the judgment in the former suit. Error is further assigned on the admission in evidence of testimony of eyewitnesses to the collision and the rate of speed at which the car was being operated by the chauffeur, and a description of the details and result of the collision. The objection to this evidence and the assignment of error is based on the admission made in the first amended original answer, and in a trial amendment, stating the admission in the following language: “And here defendant shows to the court that it admits the collision of the cars alleged, at the time, manner and place alleged in plaintiff’s said petition, and further admits that Lenoa Huguley died as a result of the physical injuries sustained in said collision, as alleged in said petition.” Error is also assigned on the ruling of the court in respect to certain arguments made by appellees’ attorney in the closing speech. Error is further assigned, to the effect that the finding of the jury of $2,-500 for the conscious suffering of deceased is excessive; also, that the finding of $1,250 in favor of the father, as damages for the pecuniary loss sustained by him in the death of his daughter, is without evidence to support it, and is contrary to the overwhelming preponderance of the evidence; also, that the finding of $1,250 in favor of the mother for pecuniary loss is without support in evidence, and is against the overwhelming preponderance of the evidence. It is further contended that the cause of action did not survive the death of appellant’s decedent, Theo Marcus. This latter contention is presented as fundamental error. The item of $1,000 for funeral expenses was admitted by appellant to be , reasonable, and no error is assigned thereon.

If this last contention of appellant, to the effect that the cause of action here asserted by appellee did not survive the death of Theo Marcus, and hence could not be maintained against appellant as independent executrix of the estate of Theo Marcus, be correct, then a discussion of the other issues raised would not be necessary; for which reason we will dispose of this issue first.

The Fortieth Legislature amended article 5525, R. S. 1925, in an attempt to cure a possible omission in our survival statute as the same came from the hands of the 1925 codifiers. This amendment became effective March 30, 1927, and was in force at the time of the fatal accident under inquiry. As amended, article 5525 reads: “All causes of action upon which suit has been or may hereafter be brought for personal injuries, or for injuries resulting in death, whether such injuries be to the health or to the reputation, or to the person of the injured party, shall not abate by reason of the death of the person agains't whom such cause of action shall have accrued, nor by reason of the death of such injured person, but in the case of the death of either or both,, all such causes of action shall survive to and in favor of the heirs and legal representatives and estate of such injured party, and against the person or persons liable for such injuries and his or their legal representatives and may be instituted and prosecuted as if such person or persons against whom same accrued were alive.” Chapter 239 of the Acts of the Regular Session of the 40th Legislature, § 1.

The addition to the 1925 survival statute, supplying the possible omission, is italicized in the copy set out above, and is the only material change made by the amendment in the then existing statute. The caption to the amendment reads: “An Act to amend Articles 5525 and 4675 of the Revised Civil Statutes of the State of Texas of 1925, by providing for the survival of a cause of action for injuries in case of death of the injured person and regulating the institution of a suit for damage arising on account of death, and stating beneficiaries, and declai’ing an emergency.”

The specific contention in respect to this issue is that this 1927 act is unconstitutional, because of a defect in the caption which causes the act to be in violation of section 35 of article 3 of the Constitution of the State of Texas, which, in effect, declares that no bill shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.

The contention is that, under this provision of the Constitution, that portion of article 5525, as amended by the act of 1927, which declares that the cause of action shall not abate “by reason of the death of the person against whom such cause of action shall have accrued,” is void because not named In the caption of the proposed amendment. To this we cannot agree. The effect of the caption to the act under inquiry is to inform the members of the Legislature that they will be called upon to pass an act amending article 5525, by making an addition thereto, so as to include therein the subject expressed by the phrase, “nor by reason of the death of such injured person,” and to leave the statute in other respects as it existed. This being an amendment solely for the purpose of making an addition to the statute involved, and as the caption makes plain what the addition is, we are of opinion that section 35 of article 3 of the Constitution is not violated.

We overrule appellant’s contention that appellees are estopped, as a matter of law, from prosecuting this suit, for the reason that they had prosecuted a suit against appellant for the cause of action that accrued to them because of the personal injuries each received in the collision under inquiry. The former suit was the prosecution of a separate and distinct cause of action from the one now prosecuted; though both suits are based on the commission of the same wrongful act. The for'mer suit accrued as purely a common-law cause of action and arose immediately when the injuries were inflicted on the parties ; the instant suit is purely a statutory suit and did not accrue until the death of the daughter, Lenoa Huguley; therefore, the bringing of the two separate suits is not a splitting of a single cause of action. 1 O. J. 1106 declares that: “The rule against splitting is that a single cause of action or entire claim or demand cannot be split up or divided so as to be made the subject of different actions. If this is done and separate actions are brought for different parts of such a demand, the pendency of the first may be pleaded' in abatement of the others, and a judgment upon the merits in either will be available as a bar in the others.”

This is a well-recognized rule, but it will be noted that it refers to splitting a single cause of action, and has no reference to different causes of action accruing to the same parties in different rights, though the causes of action may have resulted from the same wrongful act. The same authority, at page 1108, declares that this rule “does not prevent the bringing of separate actions upon separate and distinct causes of action, whether such causes arise out of contract or tort, and notwithstanding they are of such a character that they might properly be joined in the same action, this circumstance being immaterial, except ás authorizing the court in proper causes to order a consolidation of the different actions.”

'.The same rule as to splitting a single cause of action is announced by 15 R. O. L. 965, which is likewise cited by appellant as authority for appellant’s contention. The same authority, on page 973, declares that: “When the second action between the same parties is upon a different claim or demand, or cause of action, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined.”

It is not contended by appellant that the issnes in the suit at bar were in any way involved in the previous suit for personal injuries, and as the two suits are on causes of action separate and distinct, the contention that appellee is estopped by the former judgment for personal injuries to himSelf and wife is overruled.

Was it reversible error for the trial court, in view of appellant’s admission in its answer and in its trial amendment, to admit the evidence of eyewitnesses as to the cause and effect of the collision of the two automobiles? We do not think so. The pleading in this respect is that appellant “admits the collision of the cars alleged at the time, manner, and place alleged in plaintiff’s said petition. ⅜. ⅜ *» Tjje effeet 0f this admission is that the allegations in appellee’s petition, as to the manner of the collision, states the truth, and thus makes such allegations evidence in this case. The manner of the collision is alleged in the following language: “That the car in which the said Lenoa W. Huguley was riding was a light car. That the car which was driven into the car in which she, her father and mother and other passengers were riding was a large and heavy ear and as a result of the said collision, the car in which the said Lenoa W. Huguley, her father and mother and other passengers were riding was demolished and.wrecked and all of the occupants of the said car in 'which she was riding were thrown from the same with great violence and some of the occupants of the car were thrown a great distance from the car in which she was riding, and all of the same being the result of the grossly negligent and illegal conduct of the agent and servant of the defendant, Theo Marcus, in the manner in which he was operating or driving his car over the public highway, in a manner wholly reckless and indifferent to the safety of others and at such a rate of speed as to endanger the life or limb of others and flagrantly in violation of law and the ordinances of the City of Dallas.”

It appears that the evidence admitted over appellant’s objection is only cumulative of the evidence given by the allegations in appel-lee’s petition on undisputed issues, and if its admission were error, it was necessarily harmless.

Appellant also contends, that, in .view of its admission in its trial amendment that “Lenoa Huguley died as a result of the physical injuries sustained in said collision, as alleged in said petition,” it was error for the trial court “to permit the plaintiff to prove by medical testimony the nature, character and extent .of the injuries of deceased, and she died as a result of such injuries”; and also to admit evidence as to “the details of the death of plaintiff’s decedent as a result of the physical injuries sustained in said collision.” This contention perhaps would be correct if appellee’s suit was solely for the recovery of the pecuniary loss sustained by the beneficiaries, on account of the death of their daughter. However, another count in appellee’s petition sought to recover, as the legal representative of the daughter’s estate, damages for the conscious mental and physical suffering visited upon deceased, during the conscious hours preceding her death. The evidence offered was in direct response to this phase of appellee’s suit, and of which appellant’s admission does not take cognizance; nor was there any request made to restrict consideration of this evidence to this purpose. All assignments of error in this respect are overruled.

Is the judgment for $2,500 for the conscious suffering of Miss Huguley excessive? The law places the determination of this amount in the sound discretion of a jury, and it is only when it is clearly made to appear that the jury abused such discretion that appellate courts are authorized to interfere. There are no standards for measuring such an item of damage. It is impossible for any one to know the extent of physical pain felt by this unfortunate sufferer; or to know the mental torture and anguish endured by her before she was relieved by death. The evidence warrants the conclusion that deceased wa*s a young lady of culture, refinement, and highly educated; that she was of high ambitions in life, as shown by the unusual educational preparation she fortified herself with before she entered upon her life’s work. During the three hours she was iconseious, she must have realized that an end had come to all of her ambitions in life, and that all the sacred associations of home and friends must be severed. During these hours, she was also in the throes of intense physical pain. What money value is necessary to reasonably compensate her estate for this suffering? The jury placed $2,500 as such reasonable compensation, and we think the evidence amply sustains this finding.

Is the judgment of $2,500 for pecuniary loss to deceased’s father and mother excessive? Miss Huguley was 27 years of age at the time of her death and her parents had no legal claim to her time or earnings. What assistance she should render them during the remainder of their lives was, of course, entirely voluntary on her part; that she had been in the past of assistance to them in the way of money donations to the mother, and in the way of personal labor in helping in household duties and in nursing and administering to the wants of the sick mother, is shown by the evidence. Under the American mortality tables, this assistance might continue for approximately sixteen years. From the evidence as to what she had done in the past, together with the disposition shown in reference to aiding her parents, the jury were to determine the pecuniary loss to her parents by reason of her death. The jury’s determination of the amount in this respect is binding on the court, unless the amount so found is clearly shown to be greater than what could have been reasonably expected. No such showing was made, but, on the other hand, we believe the evidence amply supports the finding of the jury. This assignment of error is overruled. See authorities collected and annotated under note 28, vol. 14, Vernon’s Annotated Texas Statutes, beginning on page 147.

Five bills of exceptions were taken to excerpts from the closing argument of counsel for appellee. At the time each argument was made to the jury, appellant objected on the ground that “said argument was inflammatory, irrelevant, prejudicial, and outside of the record.” This objection was overruled and exception duly taken. These bills of exceptions are made the basis for proper assignments of error. ’ The arguments contained in bills of exceptions Nos. 1, 2, and 3 relate to the same subject-matter. In each the jury is appealed to to put themselves in the place of Miss Huguley and “just think what you would do in the experience of that poor, innocent, accomplished, wonderful young lady went through. Just think, being perfectly honest about it, I would not. What would you go through it for?” It was further argued ijhat “the fairest way that a juror can pass upon anything is to place himself in the place of the person who has been injured.”

The only valid objection to this argument is that an appeal is made to the members of the jury to place themselves in the, place of the injured young lady, and then to' answer for what sum they would go through with her experience. This presents an incorrect rule for measuring such damages, for no man could place a money value on what he would charge to go through with the three hours of conscious suffering and the knowledge that certain death would be the result. However, counsel have a right • in argument to state their conclusions, both as to fact and law, even though these conclusions may be erroneous, without thereby suffering the penalty of reversal, unless such conclusion is couched in language that transcends the bounds of legitimate argument. Pitts v. Wood et al. (Tex. Civ. App.) 125 S. W. 954, 955. In the instant case, bill of exception No. 1 shows that the argument appealing to members of the jury to place themselves in Miss Iluguley’s place was made in reply to an argument of counsel for appellant, that “it is unfair to put himself or you (the jury) in Miss Lenoa Huguley’s place.” We think counsel for appellant in the above stated the correct rule of law, but counsel for appellee did not think so, and the argument above referred -to was the result. It is a general rule of law that one counsel in his argument cannot invite argument on a legal proposition and .then assign error to the opposing argument of counsel on the other side, in an effort to reply thereto, unless such reply be clothed in language which shows a purpose only to inflame or prejudice the minds of the jury. We can discern no such purpose as this, but it appears to us to he counsel’s view on the proposition of law.announced to the jury by opposing counsel. It is the reference by appellant to the same subject-matter, thereby invitingargument on the same proposition by counsel of appellee, that differentiates this case from the case of Brown Cracker & Candy Co. v. Castle (Tex. Civ. App.) 26 S.W.(2d) 435.

In bill of exception No. 4, it appears that counsel for appellee was answering the argument of opposing counsel that appellee should recover nothing in this suit. The argument branded the negro chauffeur of Marcus as a “fiend who was driving that car, who sat up there in all his regal splendor, who, the chauffeur of the defendant, Marcus, driving a great big car down the street, what did he care for anybody’s rights, what did he care for anybody else? He felt the insignia of his office and the importance of his position, and nobody else or their rights, or their body, or their right to do anything in the world. Take the attitude of counsel in this case. All he said and after all he knows of what she suffered, this defendant submits that you should answer ‘nothing’ is about as cruel as the act of the chauffeur that brought about this young lady’s death.”

This is very strong language and goes further in its denunciation than is ever warranted in an argument to a jury. The bill of exception shows that counsel for appellant had argued that the beneficiaries of this suit were not entitled to anything because of the physical suffering of the daughter, and this position of appellant’s counsel is being criticized as cruel as the acts of the chauffeur. Counsel for appellant had a right to make such arugmént, and counsel for appellee had a right to reply in strong and earnest language, provided he did not transcend the rule of legitimate argument. Notwithstanding it 'is in reply to argument made by opposing counsel, we think that the refusal of the-court to stop counsel from the denunciatory remarks would show 'reversible error, unless this record affirmatively shows it did not result in injury to appellant. This will be discussed later.

We do not think that reversible error is shown by the argument of counsel as given in bill of exception No. 5. It appears from such bill that counsel for appellant had complained to the jury that Mrs. Marcus had been compelled to come to court three times in reference to this incident and had suffered that inconvenience. The argument is in reply thereto and Is in the nature of a comparison between the small inconvenience alluded to by appellant’s counsel and the terrible result of the negligence and recklessness of the chauffeur of the Marcus car on the occasion in question. In making this argument, counsel does not go out of the record, but makes such argument from the facts as admitted by appellant to have existed. We hold that the argument excepted to, being in reply to argument made by appellant’s counsel and being within the record, does not show reversible error.

It has long been the law in this state that improper argument by adverse counsel, within itself, is not sufficient for reversing a judgment. In the case of I. & G. N. Ry. Co. v. Irvine, 64 Tex. 529, the Supreme Court, speaking through Judge Stayton, gives the following rule in this respect: “The use of improper language or course of argument by adverse counsel, within itself, furnishes no sufficient reason for reversing a judgment; and it is only in cases in which the preponderance of the evidence seems to be against the verdict, or in cases in which the verdict seems excessive and there is reason to believe that the verdict may have been affected by such course of conduct, that it becomes a ground for reversal. Parties are not to be punished by 'reversals for the improprieties of their counsel, unless there is reason to believe that the course pursued affected the merits of the case.”.

This rule was reaffirmed by our Supreme Court in Sinclair et al v. Stanley, 69 Tex. 718, 7 S. W. 511; Railway Co. v. Washington, 25 Tex. Civ. App. 600, 63 S. W. 538, 541; and by a number of decisions from Courts of Civil Appeals. Texas Jurisprudence, in volume 3, p. 1261, thus announces the same rule: “In order to justify a reversal for improper argument the record must show at least some substantial probability' that the argument affected, adversely to the losing party, the jury’s verdict.” We do not understand that the ease of Bell v. Blackwell, 283 S. W. 765, by the Commission of Appeals, has overruled all of these decisions and announced a contrary rule of law. This case, as we understand it, holds that, where error is assigned by appellant on improper argument of counsel, appellant does not have to show affirmatively that injury resulted from the improper argument, but, on the contrary, it must appear from the record that no injury resulted therefrom. This is not contrary to the rule announced by our Supreme Court. ’

Does’ it reasonably appear that the jury adopted appellant’s erroneous contention that they must, say by their verdict what amount of money could have induced them to undergo the suffering, physical and mental, which the record shows Miss Huguley underwent? The verdict of the jury clearly answers “no” to this inquiry. Does it reasonably appear that the denunciatory language used by appellee’s counsel, in reference to the conduct of the negro chauffeur on the occasion in question, prejudiced the jury against appellant? We think the yerdiet of the jury clearly answers, “No.” We are therefore of opinion that, even if the arguments forming the basis of assignments of error in this respect be admitted to be improper, the result of the trial clearly shows that the jury was in no way influenced thereby, and if there be indulged the presumption of injury by reason of the improper argument, which, in this case, could only have affected the amount of the verdict, such presumption is overcome when the amount of this judgment is considered.

In determining the effect of this argument, it must be borne in mind that the negro chauffeur, who was denounced in such strong language, was not a witness in the case, and the acts for which he was denounced were admitted to be true by the pleadings of appellant. It must be further borne in mind that appellant makes no contention but that the death of Genoa Huguley resulted from the negligent acts of the chauffeur. If this were a case of conflicting evidence as to the cause of such death, where a jury would be warranted in returning a favorable finding either for appellant or appellee, and where an improper argument by opposing counsel might cause the jury to swerve from one side to the other, then there would be presented a different question. The only contested issue is the amount of the verdict, for the undisputed evidence calls for a finding in favor of appellee for some amount.

Finding no reversible error in the trial of this case, we are of opinion the judgment should be affirmed, and it is so ordered.

Affirmed.


author: VAUGHAN, J.

text:
    MONTGOMERY v. OWEN et al.
    No. 10769.
    Court of Civil Appeals of Texas. Dallas.
    March 28, 1931.

      See also 37 S.W.(2d) 1111.
    O. F. Wencker, óf Dallas, for appellant.
    Tomas G. Pollard, of Tyler, and Tom L.-Beauchamp, of Paris, for appellees.
   VAUGHAN, J.

Appellant, D. L. Montgomery, plaintiff below, on October 22, 1929, filed this suit in a district court of Dallas county, against M. W. Owen, the People’s National Bank of Tyler, and the Miller Drilling Company, alleging residence of Owen in Dallas county, the People’s National Bank in Smith county, and the Miller Drilling Company in Tarrant county, Tex. On November 6, 1929, appellant filed his first amended original petition making J. S. Kimbrough and the East Texas Oil Corpora - tion additional parties defendant, alleging the residence of Kimbrough to be in Dallas county, but temporarily residing in Smith county, and the residence of East Texas Oil Corporation to be in Smith county, Tex. On December 12, 1929, appellant filed his second amended original petition, in which he was joined by his wife, Musidore R. Montgomery. Appellant’s cause of action is based on a written contract dated September 24, 1928, between appellant as first party and defendant Owen as second' party, for the exchange of land, appellant’s land being located in Dallas county, and Owen’s land in Smith county. Appellant sought specific performance of the contract as against all of the defendants and prayed for the conveyance to him of the land in.Smith county, or in the alternative, judgment'therefor.

Appellee Kimbrough, on November 22, 1929, duly filed his plea of privilege to be sued in Smith county, in every respect in due form, and in which he alleged: That no exception to exclusive venue in the county of one’s residence, provided by law, existed in said cause; that this suit did not come within any of the exceptions provided by law in such cases authorizing same to be brought or maintained in the county of Dallas, or elsewhere, out of the county of Smith. On November 22, 1929, ap-pellee East Texas Oil Corporation filed its plea of privilege to the same tenor and effect as that filed by appellee Kimbrough, to be sued in Smith, the county, in which it resided and conducted its business. On December 22, 1929, appellant filed his controverting affidavit to said pleas of privilege, respectively, viz.: As to Kimbrough’s plea, appellant made his second amended original petition a part thereof and alleged the following grounds for contesting said plea, viz.: “That by reason of the allegations contained in such petition •this court has jurisdiction and can continue the suit without transferring the same as against the defendant, J. S. Kimbrough; that the court can further maintain jurisdiction and venue of this suit as against J. S'. Kim-brough for the reason that the said Owen, at the time of the institution of this suit, was a resident of Dallas County, and such suit is lawfully maintainable against said Owen under the provisions of article 1995 of the Revised Statutes of the State of Texas, and in this suit J. S. Kimbrough is a necessary party, and suit may be maintained against J. S. Kimbrough in Dallas County because of such facts; that this court can further maintain jurisdiction and venue of this suit as against J. S. Kimbrough because said Owen, at the time of the institution of this suit; was a resident of Dallas County and entered into the contract sued upon in his own name and for himself, and the said Kimbrough is a necessary party defendant to this suit for the reason that he asserts some interest in and to the land which plaintiffs are seeking to have conveyed to them by said Owen and said Kim-brough should be held in this suit because of the interest he asserts in the land covered by the contract sought to be specifically enforced.”

As to the East Texas Oil Corporation’s plea, said affidavit is, in tenor and effect, the same as that filed to appellee Kimbrough’s plea, and in addition thereto contains the following: “This court can further maintain jurisdiction and venue of this suit as against the East Texas Oil Corporation because the defendant if. W. Owen at the time of the institution of this suit was a resident of Dallas, Dallas County, Texas, and entered into the contract sued upon in his own name and for himself, and the said East Texas Oil Corporation is a necessary party defendant to this suit for the reason that it asserts some interest in anfi to the land which plaintiffs are seeking to have conveyed to them by the defendant M. W. Owen and the defendant East Texas Oil Corporation should be held in this suit because of interest it asserts in the land covered by the contract sought to be specifically enforced.”

On January 3, 1930, a hearing was had on said pleas of privilege, same were sustained and this cause as to said appellees transferred to Smith county. Prom this order, appellant duly prosecuted an appeal to this court. At said hearing the following facts were established: That the land said Owen contracted to convey to appellant is located in Smith county; that he held the record title thereto at the date said contract was executed ; that prior to and at the time of the filing of this suit, said Owen was a resident of Dallas county; that appellee Kimbrough, prior to and at the time of the filing of the suit and at the time of the filing of his plea of privilege, resided in Smith county; that appellee East Texas Oil Corporation was, at the institution of this suit, the time of the service of the process therein, and at the time of filing of its plea of privilege, residing in and operating in Smith county; that on June 18,1929, appellee bank duly executed its deed of that date conveying the land in Smith county to defendant Owen, which was duly filed for record in Smith county September 27, 192S, the consideration for the execution of said deed being stated therein at $2,500 cash; that the involved contract was executed on September 24, 1928, and is in tenor and effect as alleged in appellant’s second amended original petition, on which this cause went to trial; that on October 3, 1928, defendant Owen executed his deed of that date recon-veying the Smith county tract of land to ap-pellee bank, the consideration for the execution of said deed being stated therein at $2,-500 cash; that said deed was duly filed for record December 12, 1928; that the deed executed by appellee bank to said Owen and the deed executed by said Owen to appellee bank, reconveying the Smith county land, were both without actual consideration; that on October 8, 1929, appellee bank executed a lease to appellee Kimbrough, granting oil and gas rights in the Smith county tract of land; that said lease was duly filed for record October 16, 1929; that on October 23, 1929, appellee Kimbrough, by instrument of that date, assigned the lease contract executed to him by said bank to appellee East Texa„s Oil Company, which was duly filed for record October 25, 1929; that by said contract of date September 24, 1928, said Owen and appellant, L. D. Montgomery, contracted and agreed as follows: That said appellant would convey to said Owen certain property located in Dallas county, viz., one two-story brick veneer duplex and certain furniture and furnishings located therein, in consideration that said Owen would convey to said appellant the tract of land located in Smith county, being the 259 acres involved in this suit; that said Owen obligated and bound himself to convey said 259 acres to said appellant, in consideration of the conveyance of said brick veneer duplex, furniture, and furnishings by appellant to said appellee; that said contract contains the following provisions: “Within ten days from the receipt of abstract, the party receiving same shall accept title or return abstract with written objections thereto. Failure to comply with this provision shall be construed as an acceptance of the title. In the event title is not good and cannot be made good within a reasonable time, the purchase money is to be returned to the party depositing same upon cancellation and return of this contract, but the right to enforce specific performance hereof is retained at the option of either party thereto. When title objections have been cured, each party agrees to deliver a good and sufficient warranty deed properly conveying his property to the other and to pay Ihe balance of cash payment, if any, and to execute the notes and deeds of trust, if any, herein provided for. Should either party fail to consummate this contract, as specified for any reason except title defects, the other party may retain the cash deposit as liquidated damages for said breach after paying the agent therefrom the usual commission, or may enforce specific performance.” That appellant had been, from the date fixed for the performance of said contract to the trial of this suit, in position to and desired to perform said contract; that without cause disclosed by the record defendant Owen breached said contract by refusing to make the conveyance of the Smith county tract of land to appellant: that defendant bank holds title to the Smith county tract of land under the deed executed to it by defendant Owen.

It was not established that any objection was raised to the title of either the Smith or Dallas county real estate. The question presented by tbe appeal' is whether or not said appellees are necessary parties to the suit within the meaning of section 29a, added to our venue statute, title 42, ch. 1, art. 1995, R. S. 1925, by Acts 40th Legislature (1927), 1st Called Sess., page 197, c. 72, § 2 (Vernon’s Ann. Civ. St. art. 1995, § 29 a), viz.: “Whenever there are two or more defendants in any suit brought in any county in this State and siich suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.” We hold that appellant alleged a cause of action against defendant Owen, viz., the right to the specific performance of the contract of date September 24, 1928, and is lawfully maintainable in Dallas county as to said Owen, under the provisions of said article 1995. Are appellees Kimbrough and East Texas Oil Corporation necessary parties to said suit? In the case of Duvall v. Boyer, 35 S.W.(2d) 181, 184, this court held “that the words ‘any and all necessary parties thereto’ should be construed to mean ‘all persons whose presence is necessary to the determination of the entire-controversy,’ viz., those who are interested in resisting demands of plaintiff immediately or subsequently and whose rights will be affected thereby.”

The above construction of said language was made in reference to a common-law action and does not state the full measure of the rule as to necessary parties to an equitable proceeding. The rule is, as we understand it, that all parties are necessary to a proceeding in equity that may be directly or indirectly involved in order that full and complete relief may be accorded the.plaintiff in the bill; or, to enable the defendant thereto to present not only his defense so as to secure the full benefit thereof in resisting the relief sought by the plaintiff, but, in addition thereto, the right to interplead such other parties against whom he may be prima facie entitled to relief, or to recover in the event the plaintiff should be decreed all or any part of the relief sought. The rule, and the reasons therefor, as to necessary parties in equitable proceedings are so fully, concisely, and comprehensively stated in Pomeroy’s Equity Jurisp. vol. 1 (4th Ed.), that we are moved to quote therefrom, as plenary authority- for our holding, in this cause, viz.:

“Sec. 114. The equitable doctrines with respect to parties and judgments are wholly unlike those which prevailed at the common law, different in their fundamental conceptions, in their practical operation, in their adaptability to circumstances, and in'their results upon the rights and duties of litigants. The governing motive of equity in the administration of its •remedial system is to grant full relief, and to adjust in the one suit the rights and duties of all the parties, which really grow out of or are connected with the subject-matter of that suit. Its fundamental principle concerning parties is, that all persons in whose favor or against whom there might be a recovery, however partial, and also all persons who are so interested, although indirectly, in the subject-matter and the relief granted, that their rights or duties might be affected by the decree, although no substantial recovery can be obtained either for or against them, shall be made parties to the suit; and it is not ordinarily a matter of substantial importance whether they are joined as plaintiffs or as defendants, although this question of procedure is regulated to a certain extent by rules based upon considerations of convenience rather than upon any essential requirements of the -theory. The primary object is, that all persons sufficiently interested may be before the court, so that the relief may be properly adjusted among those entitled, the liabilities • properly apportioned, and the incidental or consequential claims or interests of all may be fixed, and all may be bound in respect thereto by the single decree.”
“Sec. 115. The fundamental principle of equity in relation to judgment is, that the court shall determine and adjust the rights and liabilities concerning or connected with the subject-matter of all the parties to the suit, and shall grant the particular remedy appropriate in amount and nature to each of those entitled to any relief, and against each of those who are liable, and finally shall so frame -its decree as to bar all future claims of any party before it which may arise from the subject-matter, and which are within the scope of -the present adjudication. In rendering its decree, a court of equity is not hampered by any of the arbitrary regulations which restrict the action of common-law tribunals ; and especially, it is not bound to give a single judgment in favor of the co-plaintiffs regarded as one body, nor against the defendants as a group of persons jointly or equally liable. In this respect it possesses a full freedom to adapt its relief to the particular rights and liabilities of each party, and to determine-the special interests of all, so far as they are legitimately connected with the subject-matter, and properly within the scope of the adjudication. * * * ”

Under our blended system of law and equity created by the following provisions of article 5, § 8, of our state Constitution, viz., “The district court shall have original jurisdiction * * * of all suits, complaints or pleas whatever, without regard to any distinction between law and equity * ⅞ * and * * * ovei: all causes of action whatever for which a remedy or jurisdiction is not provided by law or this constitution, ⅜ ⅜ ⅞ » a district judge presides as a chancellor', under the English equity procedure, with full power and authority as such in all equitable proceedings in which the “governing motive of equity in the administration of its remedial system” should be observed and enforced except where changed by legislative enactment. Anderson County v. Kennedy et al., 58 Tex. 616; Stein v. Frieberg, 64 Tex. 271.

We do not understand that the “governing motive of equity,” viz., “to grant full relief and to adjust in the one suit the rights and duties of all the parties which really grow out of or are connected with the subject-matter of that suit,” or its fundamental principle concerning parties, “that all persons in whose favor or against whom there might be a recovery, however partial, and also all persons who are so interested, although indirectly, in the subject-matter and the relief granted, that their rights or duties might be affected by the decree, although no substantial recovery can he obtained either for or against them, shall he made parties to the suit,” have been impaired, changed, or altered by any of our statutory provisions dealing with parties to suits. See title 42, ch. 1, subd. 3, R. C. S. 1925 (articles 1980-1994).

Appellant, by his second amended original petition, only sought equitable relief, viz., the specific performance of the contract of date September 24, 1928, and under the allegations of said petition, the contents of the controverting affidavits, and the facts proven on the hearing of the pleas of privilege, we think it was established that appellees were necessary parties to this proceedings the same as they would have been if the cause had been filed in and was being determined by a court of chancery in the administration of the remedial system of équity; a suit for specific performance being an equitable proceeding.

The judgment of the trial court is therefore reversed, and judgment here rendered overruling said pleas of privilege.

Reversed and rendered.


text:
    PEOPLE’S NAT. BANK OF TYLER v. MONTGOMERY.
    No. 10754.
    Court of Civil Appeals of Texas. Dallas.
    March 28, 1931.
    Warren, Lasseter & Warren, of Tyler, for appellant.
    O. F. Wencker, of Dallas, for appellee.
   VAUGHAN, J.

This case is a companion case to cause No. 10769, L. L. Montgomery, Appellant, v. M. W. Owen et al., Appellees, 37 S.W.(2d) 1107, this day decided by this court, both being appeals prosecuted out of the same cause from judgments rendered on pleas of privilege, heard and determined on the same state of facts; therefore, the reasons given for the disposition made of the questions presented in said cause No. 10769, viz., (1) whether or not appellant, L. L. Montgomery, plaintiff in the court below, alleged a cause of action against defendant M. W. Owen, (2) is his suit lawfully maintainable in Dallas county under the provisions of article 1995, R. S. (section 29a, as added by Acts 40th Leg., 1927, 1st Called Sess., c. 72, § 2 [Vernon’s Ann. Civ. St. art. 1995, § 29a]), as to said Owen, and (3) were the appellees, Kimbrough and East Texas Oil Corporation, necessary parties thereto, is adopted as authority for and will control the disposition of this appeal in so far as same present the identical questions determined in said cause No. 10769. Appellant’s plea of privilege is, in tenor and effect, the same as that filed by East Texas Oil Corporation, and appellee’s controverting affidavit thereto is, in tenor and effect, the same as that filed by East Texas Oil Corporation, in said cause No. 10769. We therefore hold that appellee in this cause, as plaintiff in the court below, alleged a cause of action against defendant Owen, viz., the right to the specific performance of the contract of September 24, 1928, declared upon, and that appellee’s suit is lawfully maintainable in Dallas county as to said Owen under the provisions of said article 1995; that appellant bank is a necessary party to said suit.

We will now discuss the questions presented by appellant’s third and fourth propositions that were not involved in cause No. 10769, viz.:

Proposition No. 3: “The suit being for specific performance of a contract to convey land, and it being shown that all the defendants, except the resident defendant, were interested in the land involved, it was error to deny the plea of defendant bank, and transfer the case as to its co-defendants, J. S. Kimbrough and East Texas Oil Corporation.”

Under the cause of action alleged by appellee for the specific performance of a contract to convey land, and the facts established on the hearing of appellant’s plea of privilege, viz,, that defendant Owen, after the execution of said contract and before the filing of this suit, conveyed to appellant bank the tract of land that he had contracted to convey to appellee Montgomery; that after said conveyance only the codefendants of said Owen, viz., appellant bank, J. S. Kimbrough, and East Texas Oil Corporation, were interested in said tract of land — it was error for the trial court, on sustaining the pleas of privilege of said Kimbrough and East Texas Oil Corporation, to transfer the case to Smith county and deny the plea of privilege of appellant bank. Hickman v. Swain, 106 Tex. 431, 167 S. W. 209; Garrison v. Stokes (Tex. Civ. App.) 151 S. W. 898. Therefore said proposition would have to be sustained but for the fact that this error was corrected by our holding in cause No. 10769, vacating said order and overruling said pleas. Said proposition is overruled.

Proposition No. 4: “It is error in passing upon pleas of privilege to consider amended pleadings filed subsequent to the filing of the plea of privilege, and proof submitted under such amended pleadings.”

The right conferred upon .litigants by the provisions of article 2001, R. S. 1925, viz., “Parties may amend their pleadings, file suggestions of death and make representatives parties, make new parties, and file such other pleas as they may desire,” is not in. any respect changed, altered, or impaired by the filing of a plea of privilege and a controverting affidavit thereto, as the right to amend pleas of privilege and controverting affidavits may be exercised by the parties filing same under said article 2001; same being pleadings of the parties. Borschow v. Waples-Platter Gro. Co. (Tex. Civ. App.) 223 S. W. 872; F. H. Berry v. Pierce Pet. Corp., 39 S. W.(2d) -, decided by this court July 12, 1930, opinion by Mr. Justice Looney.

We therefore hold that it was not error for the trial court to consider the amended pleadings of appellee Montgomery, and said proposition is overruled. The judgment of the trial court is accordingly affirmed.

Affirmed.

       Rehearing pending.


text:
    WHITEHEAD v. BULKLEY.
    No. 10956.
    Court of Civil Appeals of Texas. Dallas.
    April 4, 1931.
    Carter & Berwald, of Dallas, for appellant.
   JONES, C. J.

Appellant, J. E. Whitehead, has appealed from a judgment of a district court of Dallas county, appointing a receiver to take charge of and administer all property of the Union Mortgage Company, a foreign corporation, remaining within this state and in the possession of appellant. The appointment of the receiver resulted from a suit filed by Edward .T. Bulkley, appellee, against appellant, praying for judgment against appellant in the sum of $12,000, for money alleged to have been delivered to him' as president of the Union Mortgage Company and resident manager of its affairs in the state of Texas, for the purpose of loaning it on real estate security. Under proper allegations as to the necessity therefor, a receiver was prayed for in this suit. The trial court made the following findings of fact:

“1. The Court finds that on or about July 15, 1925, plaintiff placed certain sums of money, totalling more than Twelve Thousand Dollars ($12,000) with defendant and that defendant contracted to loan said sums of money for plaintiff on first mortgages on real estate, defendant guaranteeing to pay to plaintiff 6% interest on said sums so placed with him, the defendant to make his profit out of interest collected in excess of 6%.
“2. That at the time said contract was made that defendant, J. E. Whitehead, was the President of a foreign corporation, to-wit: The Union Mortgage Company, whose permit to do business in Texas had on July 2, 1925, been forfeited by the Secretary -of State of the State of Texas for failure to pay its franchise tax and that said permit of said corporation has not been revived to date; and that since said forfeiture, defendant, J. E. Whitehead, has been winding up the business of said corporation in the State of Texas, and has taken over all the assets of said corporation as the sole agent of the said corporation in Texas, and that he has been in active charge of said business.
“3. That defendant, in such capacity, re-# eeived a collection of Two Hundred Twenty-Five and no/100 ($225) Dollars from J. A. Hutto, which money was the property of plaintiff and that said sum of money has not teen remitted to plaintiff by defendant or accounted for by him.
“4. That defendant under the same circumstances received the sum of Nineteen Hundred Eight and no/100 ($1,908) Dollars from one O. K. Precure, which sum of money was the property of plaintiff. That defendant neither affirms nor denies the receipt of said sum of $1,908.00. That said money has not been remitted by defendant to ifiaintiff nor has it been accounted for by defendant.
“5. That both of said transactions occurred after the forfeiture of said corporation’s permit to do business in Texas and while the said J. E. Whitehead was actively in charge of the business of said corporation and that said sums of money were paid to defendant within the 'State of Texas.
“6. The court further finds that as a fact that the defendant has intermingled the funds received from the plaintiff by the corporation with other funds of the corporation.
“7. That Union Mortgage Company has few assets in the State of Texas, which assets are being rapidly diminished and that, said business is in imminent danger of insolvency, and that the remaining assets of said corporation are in danger of being lost or removed from the State and that unless a receiver is appointed, plaintiff will probably lose his debt.”

While these findings are challenged by appellant, we are of opinion that the facts and circumstances in evidence warranted the court in making them, and we adopt same as the findings of this court on the material issues involved.

It is true, as contended by appellant, the evidence sustaining a number of these material'findings are contained in letters to ap-pellee or his attorney, signed by the Union Mortgage Company per J. E. Whitehead, president, and hence on their face show that the transactions, which form the basis of this suit, were those of the Union Mortgage Company, and not the personal transactions of appellant. As shown by these findings, the letters in question and all transactions in the name of the Union Mortgage Company, under inquiry, were had subsequent to the forfeiture of the permit of such mortgage company to do business in this state as a foreign corporation. Under such condition, the individual responsibility of appellant for these transactions must be determined by the provisions of article 7091, K. S. 1925. The forfeiture of the permit by the secretary of state of the corporation to do business in Texas was authorized by the provisions of this article.

The provisions of such article controlling the matter of appellant’s responsibility in this matter reads: “Each director and officer of any corporation whose right to do business within this State shall be so forfeited shall, as to any and all debts of such corporation which may be created or incurred, with his knowledge, approval and consent, within this State, after such forfeiture by any such directors or officers, and before the revival of the right of such corporation to do business, be deemed and held liable thereon in the same manner and to the same extent as if such directors and officers of such corporation were partners.”

The effect of this provision, under the facts of the instant case, makes the new business, transacted in this state by the Union Mortgage Company, after the forfeiture of its permit was legally declared, the business and transactions of appellant, the only officer and director of the corporation residing in this state, and the letters in question, therefore, must be considered in law as the letters of appellant.

When the Union Mortgage Company attempted to continue the transaction of business in this state, after the forfeiture of its permit, the property and assets within this state permitted to remain in the hands of appellant became charged with a trust for the benefit of appellee wjth whom such new business was contracted in the name of the mortgage company; and also to charge personal responsibility, incurred by reason of the new business transacted, against appellant, its president and director. It necessarily follows that the trial court was authorized to impound, through the means of the receiver, suela assets in the possession of appellant for the payment of appellee’s claim, and hence did not err in appointing a receiver. The judgment is affirmed.

Affirmed.


author: WALTHALL, J.

text:
    CRAGIN & SON, Inc., v. JONES et ux.
    No. 2526.
    Court of Civil Appeals of Texas. El Paso.
    April 9, 1931.
    W. Edward Lee, of Longview, for plaintiff in error.
    G. W. Dunaway, of Midland, and Rutledge Isaacbs, of Pecos, for defendants in error.
   WALTHALL, J.

This appeal is taken by Cragin & Son, plaintiff in error, to set aside a judgment by default rendered algainst it as garnishee.

The record shows that in February, 1929,. J. W. Jones and wife, assignees of certain claims against John Unger, aggregating in amount $799.15, filed suit in the county court of Ward county in cause No. 310, against Unger as a transient person, and on .the 16th day of May, 1930, obtained judgment for said sum.

On March 21, 1929⅛ J. W. Jones and wife in said cause filed their affidavit in garnishment against Cragin & Son, Inc., reciting:

“That plaintiffs sue defendant in said suit for a debt amounting to the sum of $799.15;. said sum is just, due and unpaid, and defendant has mot within the knowledge of the plaintiffs, or of the person making the affidavit in support of this application, property in his possession within this state subject to execution sufficient to satisfy such debt, and that the garnishment now applied for is not sued out to injure either the defendant or the, garnishee. The plaintiffs have reason to believe, and do believe, that Cragin & Son, Inc., a corporation, with F. E. Cragin, its president, who resides in Midland County, Texas, is indebted to the defendant, and that it has in its hands belonging to the defendant. * ⅞ *»

On April 2, 1929, J. W. Jones and wife duly filed with the county clerk of Ward county, in said suit, their affidavit and bond in garnishment; said bond being in the sum of $1,600, and approved by the county clerk.

On the 11th day of April, 1929, the county clerk of Ward county duly issued in said cause, No. 310, a writ in garnishment directed to the sheriff or any constable of Midland county, reciting the pending cause of J. W. Jones and wife against John Unger, the amount of the claim, the application of the writ of garnishment against Cragin & Son, Incorporated, the alleged residence to be in the county to which the writ is directed, directing the .officer to summon Cragin & Son, Incorporated, to appear before the count at the next term, at Barstow, Tex., on May 6, 1929, to answer, etc.

The sheriff’s return shows: “Came to hand the 18th day of April, 1929, at 2 o’clock P. M. and executed the 18th day of April, 1929, at 2:30 o’clock P. M. by delivering to S. B. Cragin an officer of Cragin & Son, Incorporated, the within named garnishee, at his office in Midland, Texas, a copy of this writ. [Signed] A. O. Francis, Sheriff, Midland County, By L. E. Haynes, Deputy. (Reciting the fees and marked paid.)”

The writ of garnishment was returned and filed in the county clerk’s office of Ward county, on April 26, 1929.

The judgment in the suit of J. W. Jones and wife against John Unger recites that on the 16th day of May, 1930, defendant was duly cited, his failure to appear and answer, and judgment in favor of J. W. Jones and wife against John Unger in the sum of $799.-15, with interest from date of judgment, and costs.

The record recites: J. W. Jones and Wife, Essie Jones, Plaintiff, v. Cragin & Son, Inc., a Corporation, Defendant, No. 310. That on May 16, 1930, the plaintiffs appeared and announced ready, but the garnishee, Cragin & Son, a corporation, though duly cited, came not on or before appearance day, but wholly made default, and has failed to make answer to the writ; then reciting the judgment in the cause of J. W. Jones and wife against John Unger, entered judgment for plaintiffs against garnishee for the sum of 5799.15, and the costs, stating the amount.

Cragin & Son filed its suit for writ of error on September 12, 1930, giving its supersedeas bond, approved by the clerk.

Opinion.

Plaintiff in error submits that it being a corporation the service of the writ of garnishment was not made upon any officer upon whom service could be made. The application for the writ recites that “plaintiffs have reason to believe and do believe that Cragin & Son, a corporation, with F. E. Cragin, its president, who resides in Midland County, Texas, is indebted to,” etc. The writ directs service be made on Cragin & Son, Incorporated.

The officer’s return shows service on “S. B. Cragin, an ¡officer of Cragin & Son, incorporated, the within named garnishee, at his office in Midland, Texas.” Article 2029, authorizes service against an incorporated company to be made only upon the president, secretary, or treasurer of the company where service, as here, is made in a county other than where the suit is pending, and where service is sought to be made by delivering a copy of the writ to some one of the officers named, as in this instance. The record does not show that service was made on any one of the officers named. The application states that P. E. Cragin was the president of the corporation, and the return of ¡the sheriff shows service on S. B. Cragin, an officer, but does' not show he was any one of the officers upon whom service could be made. No effort was made to correct the return of the sheriff, or to show that S. B. Cragin was any one of the three officers named upon whom service could be made.

Without proper service the court was without jurisdiction to enter judgment against the garnishee.

A garnishment suit is purely a statutory proceeding, and the provisions of the statute are to be strictly construed. First National Bank of Athens v. Guaranty Bond State Bank of Athens (Tex. Com. App.) 23 S.W.(2d) 312.

We cannot presume, in the absence of evidence, that S. B. Cragin, stated to be “an officer,” upon whom the service was made, was the president, secretary, or treasurer of the company.

In Tompkins Machine & Implement Co. v. Schmidt, 16 S. W. 174, the Court of Appeals of Texas refused to presume that the “manager” upon whom service was made was either the president, secretary, or treasurer of the company. To the same effect is Ellis v. Lamb-McAshan Co. (Tex. Civ. App.) 264 S. W. 241; Latham Co. v. J. M. Radford Grocery Co., 54 Tex. Civ. App. 510, 117 S. W. 909.

We have concluded that where the affidavit in the garnishment proceedings recites that P. E. Cragin is the president of the company, service of the writ upon “S. B. Cragin, an officer” of the company, is not ¡sufficient to give the court jurisdiction of the person of the garnishee.

We think the residence of the garnishee, and service of citation upon John Unger, the defendant in the suit, are sufficiently shown.

For reasons stated the judgment of the county court, as to the garnishee, is reversed, and the case remanded.


author: HIGGINS, J.

text:
    EL PASO FROZEN PRODUCTS CO. et al. v. ALSUP.
    No. 2518.
    Court of Civil Appeals of Texas. El Paso.
    April 2, 1931.
    Rehearing Denied April 16, 1931.
    Isaacks & Lattner, of El Paso, for appellants.
    Yowell & Vo well, of El Paso, for appellee.
   HIGGINS, J.

This is a suit by appellee against appellants upon a note for $500 given by the latter in part payment for the assets of the Maynes Fuel & Feed Company.

In bar of the action appellants in effect pleaded a counterclaim for damages based upon false representations made by appellee as to the quantity of certain used lumber which was a part of the assets so purchased by appellants. To this plea the plaintiffs filed no reply and offered no evidence to rebut the evidence adduced by defendants in support of their plea.

Upon trial without a jury the counterclaim was disallowed and appellee recovered the full amount of the note.

The defendants appeal, assigning as error that under the undisputed evidence the counterclaim should have been allowed. The testimony of one of the appellants establishes the defense as pleaded, and his testimony is corroborated by disinterested witnesses.

It is first suggested by appellee that appellants had ample opportunity to inspect the lumber. This presents no ground in avoidance of the false .representations as to the amount of the lumber. It was a lot of used lumber so piled that it could not be measured as it lay. It was valued in the sale at $1,050, and appellants objected to closing the deal because they could not estimate its value. Whereupon the sellers represented to defendants that the pile contained enough lumber which, if sold at 2 cents a foot, or if sawed, sacked, and sold for kindling at 35 cents a sack or three sacks for $1, would net a profit of 50 per cent, upon the said sum of $1,050. The evidence brings the case within the rule announced in Hall v. Grayson County Nat. Bank, 36 Tex. Civ. App. 317, 81 S. W. 762, 766, as follows: “If the representations were of a character to induce appellant to rely upon them, and he believed them to be true, and acted upon them, this is sufficient, although he might have ascertained by the exercise of ordinary diligence that they were not true.” Among other cases applying this doctrine are United, etc., v. Shields (Tex. Civ. App.) 106 S. W. 724; Hammel v. Benton (Tex. Civ. App.) 162 S. W. 34; and Taber v. Eyler (Tex. Civ. App.) 162 S. W. 490.

Nor is there any merit in the second counter proposition, to the effect that the representations were simply as' to future profits. The representation was as to the amount of the lumber made in the form of a statement of what it would sell for at a fixed selling price. The representations were representations of fact as to the quantity of lumber in the pile, and not mere expressions of opinion as to quantity, value, or future profits.

The third counter proposition overlooks the testimony on pages 11 and 12 of the .statement of facts to the effect that upon the basis of the selling price stated above the lumber would bring not more than $385.

None of the reasons urged by appellee in support of the judgment are tenable, and since the counterclaim was established by the undisputed evidence adduced in support thereof, it should have been allowed, and for the error in failing so to do the judgment is reversed, and the cause remanded for retrial.

Reversed and remanded.