author: MASSEY, Chief Justice.

text:
    Irving B. TUCKER et ux., Appellants, v. D. HARRIS, d/b/a D. Harris & Company, Appellee.
    No. 16775.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 2, 1966.

      Jones & Morris, and Herman I. Morris, Fort Worth, for appellants.
    Bagby & Ross, and Albert C. Ross, Arlington, for appellee.
   OPINION

MASSEY, Chief Justice.

Judgment was rendered for appellee D. Harris, and for Commercial Standard Insurance Company on their motions for summary judgment. The plaintiffs in the case were Irving B. Tucker and his wife, and they are the appellants.

Affirmed.

Appellee, a real estate agent, received on January 18, 1963 a loan from appellants of $2,500.00. At the time she agreed in writing to repay the indebtedness, plus interest, within a few weeks. Shortly thereafter appellee obtained a “listing” on some real property from the owner thereof. Appellants, learning of such, offered to buy the property for $2,000 less than the price for which appellee had obtained the listing. Appellee drew up a contract of sale which was, on January 25, 1963, executed by the appellants as purchasers. Appellee called on the owner of the property and tendered the appellants’ offer, but after considering a few days the owner rejected the same. In other words the instrument was never executed as a contract between the owner, as seller, and appellants, as purchasers. The only signatures ever placed on the instrument were those of the appellants.

In part, the instrument was drawn so as to read as follows: “ * * * the purchase price is $14,000.00, payable as follows: $6900.00 Cash (of which Purchaser has deposited with the undersigned Agent $2500.00 as part payment, receipt of which is hereby acknowledged by said Agent); (Escrow payment is in form of $2500.00 loan to D. Harris for lot.).”

Two months after the aforesaid instrument was signed by appellants (a proposed contract never agreed to by the property owner) the friendly relations theretofore existent between them and the appellee came to an end. On March 26, 1963 appellants brought suit against her for debt. Their original cause of action was one strictly ex contractu.

On January 7, 1965 the appellee filed her voluntary petition in bankruptcy, and on March 15, 1965 the Bankruptcy Court entered its Order discharging the appellee from all debts and claims provable against her estate. It appears that the condition of the appellee as a “bankrupt” was such that the claim of an unsecured creditor, in which classification was to be found the appellants, was worthless and uncollectible.

In Bankruptcy Court appellee listed the appellants as unsecured creditors to whom she owed $2,500.00. The appellants never filed any claim pursuant to the bankruptcy proceedings.

January 19, 1966 appellants filed their First Amended Original Petition in the case, wherein and whereby they named as an additional party defendant the Commercial Standard Insurance Company, surety on the bond of appellee at time of the material transaction. See Vernon’s Ann.Tex.St., Title 113A, “Real Estate Dealers”, Art. 6573a, “Real Estate License Act”, Sec. 11, “Bond”. The section prescribes the necessity and requisites of bonds for Brokers and Salesmen holding a license under the Act. In appellants’ amended petition was alleged not only the facts by reason of which the appellants had originally brought suit for debt ex contractu, but the form of their cause of action was altered so as to become one for damages, ex delicto. The allegation was that in connection with the inducement of appellants to “enter into” the contract of January 25, 1963 (the instrument which never became a contract of sale and purchase of real estate) the appellee’s representations that she held their $2,500.00 “in escrow” was false and fraudulent. • In said respect the appellants referred to V.A.T.S., Title 65, “Frauds and Fraudulent Conveyances”, Art. 4004, “Actionable fraud”, and Art. 6573a, Sec. 16(a) “Revocation and suspension of (Real Estate Dealer’s) license”.

It is immediately perceived that the transaction by which appellants claim to have been defrauded (one they insist was detrimental to their interest) would have been legally beneficial to them and detrimental to appellee, a condition fatal to their claim. Want of legal consideration is obvious. The “status quo”, had its restoration been an objective, would be the parties’ pre-existent status of debtor and creditor.

In supplemental petitions the appellants asserted that appellee’s discharge “in bankruptcy” was subject to being set aside for her fraud in representing that the funds they contend were “escrow funds” was a mere debt, and that steps were being taken to set such discharge aside. In this connection they further asserted that appellee was their fiduciary, with the result that if a debt it was a fiduciary debt, and that appellee was not entitled to its discharge in bankruptcy. (See U.S.C.A., Title 11, § 35.) Other portions of appellants’ pleadings were devoted to avoidance of opposing pleadings of the limitation statute filed in behalf of appellee and the Commercial Standard Insurance Company, and contended to be applicable in view of the alteration in appellants’ form of action.

We are of the opinion that the trial court did not err in granting summary judgment. Appellants’ cause of action was and remained one for debt. It was therefore ex contractu and not ex delicto and if maintainable at all could result in an in personam judgment only. See generally 1 Tex.Jur.2d, p. 532 et seq., “Actions”, the sections under “III. Character, Nature, and Form of Actions”. The amount of the indebtedness, $2,500.00, never became a fund to which appellants held title after having been expended by appellee or commingled with other monies in her possession. Despite the language of the proposed real estate contract such could never have become “escrow” property because the owner of the real estate sought to be purchased never agreed to sell. See generally 30A C. J. S., p. 966, the Chapter on “Escrows”. Appellee was not guilty of breach of any duty owed to appellants in treating herself as a mere debtor.

From applicable tests of the facts giving rise to the litigation we are obliged to hold that appellee’s discharge “in bankruptcy” legally relieved her of obligation to pay the debt. Appellants’ asserted cause of action ex delicto sounding in tort, for fraud, etc., never arose and the matter of applicability of any statute of limitation would be moot. That being true appellants’ claim against the Commercial Standard Insurance Company on appellee’s bond was likewise without foundation.

Judgment is affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    E. L. HAAN, Appellant, v. Robert V. DALY, Appellee.
    No. 4556.
    Court of Civil Appeals of Texas. Waco.
    Dec. 15, 1966.
    Rehearing Denied Jan. 5, 1967.
    Joe S. Moss, Houston, for appellant.
    Banister, Boswell & O’Toole, James R. Keeney, Jr., Houston, for appellee.
   OPINION

WILSON, Justice.

Appellee sought judgment for the amount of the sale price of realty, which he alleged appellant contracted to purchase. Alternatively he prayed judgment for $1750, an agreed earnest money deposit under the terms of the written contract of sale. By trial amendment he alleged appellant agreed to deposit $1750 as earnest money, for which he delivered his check to a title company; that the check was dishonored and he had been damaged in the amount thereof.

Appellant’s first point is that ap-pellee Robert V. Daly “et ux” are designated in the preamble of the sales contract as sellers; that it was not signed by Daly’s wife, or by Mrs. Haan; and the contract is therefore invalid.

The point is overruled. The agreement was signed by a real estate dealer as seller’s agent. Since there was no plea of non est factum as required by Rule 93(h) Texas Rules of Civil Procedure, the contract was admitted in evidence as fully proved. Newbern v. Spiro, Tex.Civ.App., 387 S.W.2d 769; Ship Ahoy v. Whalen, Tex.Civ.App., 347 S.W.2d 662, and cases cited. There is nothing in the record to show the real estate dealer and appellant were not authorized to sign as agent for the respective wives; nor is there anything in the record to indicate the signature of either wife was essential to validity of the contract.

It is urged that there is no proof seller furnished a termite inspection certificate required by the contract; that the contract gave purchaser the option of declaring the contract void for failure to furnish the certificate; and that since appellant did “declare the contract void,” plaintiff could not recover. Apparently appellant’s argument is that since he announced he “would not honor the contract” it should be assumed he had “declared it void,” and by implication, did so because no certificate was furnished.

There was no plea in confession and avoidance. This was an affirmative defense under Rule 94, Texas Rules of Civil Procedure. Since it was not affirmatively pleaded it was waived. Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979, 980; Reid v. Associated Employers Lloyds, Tex.Civ.App., 164 S.W.2d 584, writ ref.; Chapman v. Tyler Bank & Trust Co., Tex.Civ.App., 396 S.W.2d 143, writ ref. n. r. e.

It is said appellant could not secure a loan commitment which was recited to be “a contingency” of the contract of sale, which provided it should be null and void and the earnest money refunded if purchaser could not procure the commitment. There was no proof of appellant’s inability in this respect except that a sum less than that specified was the maximum loan available from one loan company. His presently asserted inability, however, was also an affirmative defense, unpleaded, and waived under Rule 94; as is the claimed defense of appellee’s failure to tender a deed.

Absence of the realty agent as a party, whose joinder is said to be indispensably necessary because of interest in a commission, is the subject of complaint. This nonjoinder was not raised in the trial court. The agent was not indispensable in the sense that no valid judgment could be rendered without his presence as a party. Full relief could be afforded appellee without his joinder. He was not an indispensable party so as to constitute his nonjoinder fundamental error. See Petroleum Anchor Equipment Company v. Tyra, (Texas Supreme Court, 1966) 406 S.W.2d 891.

Other points are overruled.

Affirmed.


author: HARVEY, P. J. CURETON, C. J.

text:
    AUSTIN INDEPENDENT SCHOOL DIST. et al. v. MARRS, Superintendent et al.
    No. 1474-5911.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.
    J. M. Patterson, Claude Pollard, and Black & Graves, all of Austin, for relators.
    Jas. V. Allred, Atty. Gen., and Scott Gaines, Asst. Atty. Gen., and Ben H. Powell, George E. Shelley, and Smith, Brownlee & Goldsmith, all of Austin, for respondents.
   HARVEY, P. J.

This is a proceeding for mandamus instituted in the Supreme Court by the relators, the Austin independent school district, and others, against the respondents, S. M. N. Marrs, superintendent of public instruction of the state of Texas, and others. The facts may be briefly stated as follows:

The Austin district is an independent school district situated in Travis county, and contains a scholastic population of 12,481; and the control and management of the public schools of the district are committed to the Austin school board. In July, 1930, the county board of education, of Travis county, acting in pursuance of and in conformity with the provisions of the Act of 1930, hereinafter set out, ordered an assessment against each school district in the county, including the Austin district, for the payment of the salary' and office- expenses of the county superintendent of public instruction. The Austin district, through its school board, denied liability and refused to pay the assessment. The Austin district’s portion of the county available school funds, for the year 1930, as a result of instructions to that effect issued by the respondent Marrs, has never been turned over to the Austin district by' the county authorities, but same still remains in the hands of the county treasurer, who refuses to make any disposition thereof pending this controversy. The Austin district’s portion of the above school funds lacks $998.48 of being of sufficient amount to satisfy said assessment against the district. The respondent Marrs caused the last-mentioned sum to he withheld from the Austin district’s share of state school 'funds, apportioned in February, 1931; and said sum remains in the hands of the state treasurer pending this controversy. The rela-tors seek the issuance of the writ of mandamus, directing and commanding respondent Marrs to withdraw and countermand all instructions and orders issued by him as mentioned above, and to compel him to issue such instructions and orders as may be necessary to place at the disposal of the Austin school board all the state and county available school funds belonging to the Austin district, which the said respondent has caused to be withheld.

Chapter 49 of the general laws p'assed at the 4th Called Session of the 41st Legis: lature (Vernon’s Ann. Civ. St. art. 2700d — 1), so far as material here, reads as follows:

“Chapter 49.
“An Act to provide for the maintenance of county administration of the public free schools to be prorated to all of the schools of' the county and declaring an emergency.
“Be It Enacted By The Legislature Of The State Of Texas:
“Section 1. That from and after August 31, 1930, the salary and office expenses of the county superintendent of public instruction and such assistants as he may have shall be paid out of the school funds of the common and independent school districts of the county.
“Sec.% 2. That the County Board of Trustees shall annually on or before the first (1st) day of August hereafter order a scholastic per capita assessment against each school district within the County in sufficient amount to provide for the payment of the salary and office expenses of the County Superintendent and any office assistants he may have, as is now provided by law, or may hereafter be provided. And the said assessment when legally made and certified to the school districts of the County shall be paid by them for the purpose herein specified.
“Sec. 3. The State Superintendent is hereby authorized and instructed to issue and transmit to County and District School Officials all instructions necessary for the proper observance and administration of this Act.
“Sec. 4. All general laws in conflict herewith are hereby repealed, except such laws as provide for a part of the office expense to be paid from the general revenue of the eounty. * * ⅜ ”

The relators contend that the above act, which in this opinion will be designated as the Act of 1930, is invalid for the reason that the subject of the act is not expressed in the title, as required by section 35, art. 3, of the Constitution. The general subject to which the provisions of the body of the act relate is the distribution, among the various school districts of.the county, of the cost of maintaining the office of county superintendent of public instruction. To this office, as we shall hereinafter show, pre-existing statutes had attached divers administrative duties which concerned all the public schools in every school district in the county. The language of the title, though not clear in some respects, is sufficient, we think, to apprise the ordinary mind of the subject-matter of the body of the act. The contention that the subject of the act is not expressed in the title is overruled.

We come now to the question as to the application of the provisions of the act to the Austin independent school district. Article 2700 of the statutes reads in part as follows:

“The county superintendent(s) shall receive from the available school fund of their respective counties annual salaries based on the scholastic population of such counties, as follows:
Population Salary
3000 or less.$1600.00
3001 to 4000. 1800.00
4001 to 5000. 1900.00
5001 to 6000,. 2000.00
6001 to 7000. 2200.00
7001 to 8000. 2400.00
8001 to 9000. 2500.00
9001 to 10,000. 2600.00
10,001 or more. 2800.00

“In making the annual per capita apportionment to the schools, the county school trustees shall also make an annual allowance out of the State and county available funds' for salary and expenses of the office of the county superintendent, and the same shall be prorated "to the schools coming under the supervision of the county school superintendent. The compensation herein provided for shall ■be paid monthly upon the order of the county school trustees; provided, that the salary for the month of September shall not be paid until the county superintendent presents a receipt from the State Superintendent showing that he has made all reports required .of him. The county board of trustees may make such further provision as it' deems necessary for office and traveling expenses for the county superintendent and any assistant he may have; provided that expenditures for office and traveling expenses shall not exceed three hundred dollars per annum, and the county board of trustees may make provision for the employment of a competent assistant for the county superintendent who shall, in addition to his other duties, act as attendance officer ; and said board is hereby authorized to fix the salary of such assistant and pay the same out of the same funds from which the salary and expenses of the county superintendent are paid.”

This statute was subsisting when the Act of 1030 was passed. There was not then, and is not now, any statute which places under the general supervision of the county superintendent any of the public schools in independent school districts of the class to which the Austin district belongs. It is apparent, therefore, that if the provision contained in article 2700, to the effect that the burden of paying the salary of the county superintendent, and the expenses incident to that office, shall be “prorated to the schools coming under the supervision of the county school superintendent” is existing law, then the contention that the Austin district is not liable for any portion of such salary and expenses would have a substantial foundation. But it is manifest that the provision just referred to has been superseded by the provisions of the Act of 1930, for in that act it is expressly provided that said salary and expenses “shall be paid out of the school funds of the common and independent school districts of the county”; and further provides for a scholastic per capita assessment against “each district within the county” for the payment of such salary and expenses. The clear purpose of the Legislature in passing the Act of 1930 was to bring all public school districts, of every character, within the scope of the provisions of that act, regardless of any relevant restrictive provisions contained in pre-exist-ing statutes, and to make the prescribed assessment lawfully payable from any available funds belonging to the respective districts. To this extent, pre-elisting statutes, such as article 2700 and article 2S27, were modified by the Act of 1930.

Nothing has been found in the Constitution which restrains the Legislature from authorizing the appropriation of available funds, belonging to any school district, to the payment for benefits received by the public schools of such district. It cannot be successfully denied that all the public schools of every school district in a given county are now, and were when the Act of 1930 was passed, the immediate beneficiaries of various duties which the county superintendent is required to perform in the promotion of public school affairs throughout the county. For instance, of those duties imposed on him by law which relate: (1) To the apportionment of the income arising from the county available school fund; (2) to the transfer of pupils from one school district to another; (3) to the matter of scholastic census; and (4) to the examination of applicants for teachers’ certificates, and to the issuance and recordation of such certificates. See Rev. St. 1925, arts. 2692, 2696, 2819, and 2878 to 2882, inclusive. The services which the law requires the county superintendent to perform in the respects above mentioned have direct relation to school mat-tera of common concern to all the public schools in the county. It therefore cannot, be true, as the relators contend, that the public schools of the Austin district derive no benefits from the administration of the office of county superintendent. The provisions of the Act of 1930 are valid, .and the Austin district comes within the scope of operation of those provisions. The district is liable for the amount of the assessment laid against it in accordance with the requirements of the act. Nevertheless, the writ of mandamus which is sought should be issued against the state superintendent. Statutory provision is made for the funds in controversy to reach the treasury of the Austin district for the purpose of being administered by the Austin school board in conformity to law. See R. S. arts. 2692 and 2663. The action of the state superintendent in causing those funds to be impounded constitutes an unauthorized interference with said funds in their prescribed course to the district treasury. Clearly, the Legislature did not mean, by the provisions of section 3 of the Act of 1930 (Vernon’s Ann. Civ. St, art. 2700d — 1, § 3), to authorize the state superintendent, in issuing the instructions there provided for, to disregard the statutory provisions to which we have just alluded.

We therefore recommend that the writ of mandamus do issue. * ■

CURETON, C. J.

The opinion of the Commission of Appeals is adopted and mandamus awarded.


author: LEDDY, J. CURETON, C. J.

text:
    WICHITA COUNTY et al. v. TITTLE.
    No. 1295-5779.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.

      Wayne Somerville and Harris & Martin, all of Wichita Falls, for plaintiffs in error.
    Bullington, Boone, Humphrey & King, of Wichita Falls, for defendant in error.
   LEDDY, J.

Defendant in error recovered a judgment against plaintiff in error for certain fees of office to which he claimed to be entitled for services rendered as tax collector in connection with the collection of delinquent taxes of Wichita county. It was averred that he had paid such fees over to the county upon demand by the county judge and commissioners’ court with the express understanding and agreement that the same would be returned to him in the event the Supreme Court of this state decided in a case then pending before it that county tax collectors were lawfully entitled to retain such fees. It was further alleged that the Supreme Court, in the cause referred to, did subsequently decide that defendant in error was lawfully entitled to retain the fees he paid to the county.

The Honorable Court of Civil Appeals, 27 S.W.(2d) 649, 652, reached the conclusion that defendant in error’s petition stated no cause of action and that therefore the trial court should have sustained plaintiff in error’s general demurrer to the petition. The judgment rendered by the trial court was reversed and the cause remanded for the purpose of affording defendant in error am opportunity to amend his pleadings if he so desired. The substance of the ruling of the Court of Civil Appeals appears from the following quotation from its opinion: “The cases cited by the Supreme Court in the opinion in the Sluder Case [(Tex. Com. App.) 2 S.W.(2d) 841], hold in effect that the attempted agreement made between Tittle and the county judge is void for several reasons. This being the case, Tittle cannot recover in this action upon the theory of an express trust. If he is entitled to hold the county as a trustee at all, it must be upon the ground that the county is a resulting or constructive trustee, and his pleadings are not so framed as to entitle him to recover upon either theory. Under his allegations, he must hold the county liable as an express trustee, or else the theory of a trust utterly fails.”

Plaintiff in error’s application for a writ of error presents but one assignment of error. It complains that the Court of Civil Appeals should have rendered judgment in its favor instead of remanding the cause for another trial.

The assignment thus presented by the plaintiff in error is predicated upon the terms of article 1856, R. S. 1925, which provides: “When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is. necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.”

Under the holding of the Court of Civil Appeals the trial court should have sustained the general demurrer to defendant in error’s petition. Such a judgment by the trial court would have carried with it a right upon the part of defendant in error to amend his petition in an effort to set up a cause of action. A rendition of the judgment against defendant in error would have operated to deny him this valuable privilege.

It is obvious that the judgment rendered by the Court of Civil Appeals reversing the judgment of the trial court and remanding the cause for another trial not only does not violate the provisions of article 1856, but is strictly in accordance with its terms. Green v. Rugely, 23 Tex. 539. The judgment remanding the cause operates to place defendant in error in exactly the same position he would have occupied had the trial court sustained the general demurrer urged to his petition. Under such a judgment, he would have been afforded the privilege of amending. The Court of Civil Appeals was not authorized to render such a judgment as would deny him' this right.

We will not determine in advance whether it is possible for defendant in error to set up a cause of action for a recovery of the fees for which he was awarded judgment in the trial court. The proper rule in this connection is stated by Judge Roberts in Green et al. v. Rugely et al., cited above. In that case it was determined that the plaintiff’s petition was not sufficient to entitle him to maintain the suit. The judgment was .reversed and the cause remanded, instead of being rendér-ed. The reasons given by the Court for remanding the cause are applicable here. In discussing this question the court observed: “It is not readily perceived, under the views here presented, in connection with the ease of Ansly v. Baker [14 Tex. 607, 65 Am. Dec. 136], how the plaintiffs below could amend their petition so as to maintain this suit' in the district court; but as the exceptions to the petition were overruled, and as it may not be proper to decide in advance, that no possible state of facts, which they might present upon amendment, would entitle them to relief, the cause will be remanded so as to give them an opportunity to amend, just as they could have done if their petition had been held, insufficient upon the exceptions.”

This court is without jurisdiction to review the correctness of the action of the Court of Civil Appeals in determining that the general demurrer to defendant in error’s petition should have' been sustained. The judgment of the Court of Civil Appeals in this respect is final because the defendant in error filed no petition for writ of error to the Supreme’Court. First Nat. Bank of Mt. Calm v. Roller (Tex. Com. App.) 14 S.W.(2d) 834.

We therefore recommend that the judgment of the Court of Civil Appeals reversing and remanding the cause for another trial be affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals reversing that of the district court is affirmed, as recommended by the Commission of Appeals.


text:
    RHODES et al. v. TWING et al.
    No. 1486-5753.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.
    See, also, 118 Tex. 410, 16 S.W.(2d) 258.
    Todd & Pipkin, Jack M. Moore, and Oliver J. Todd, all of Beaumont, and Sanders & Sanders and E. H. Carter, all of Center, for plaintiffs.
    W. M. Harris, of Dallas, Lightfoot, Robertson & Scurlock, of Fort Worth, Packard, Barnes & McCaughey, of Chicago, Ill., and J. P. Anderson and E. B. Lewis, both of Center, for defendants.
   HARVEY, P. J.

This suit was brought by William H. Rhodes and others against the county judge and county commissioners of Shelby county, in their official capacity, and against A. F. Reichman and numerous other persons who purchased and now hold certain road bonds of road district No. 4 of said county. The purpose of the suit was to annul the bonds held by Reichman and others, and to enjoin the county officials from levying and collecting taxes for the payment of said bonds. The trial court rendered judgment annulling the bonds, and granting the injunction sought. That judgment was affirmed by the Court of Civil Appeals. 24 S.W.(2d) 728. The application for writ of error filed by Rhodes and others, and that filed by Reichman and others, were both granted.

While the case was pending in the Court of Civil Appeals, the question as to the validity of the bonds in controversy came before us, under a certificate from that court. At that time, we reached the conclusion that the bonds had become valid. The reasons upon which this conclusion was based are set out in the opinion then filed, which is reported in 118 Tex. at page 410, 16 S.W.(2d) 258. We adhere to that opinion. The bonds in controversy are valid.

An examination of the record before us discloses that Reichman and the other bondholders bought the bonds in open market, in good faith, and paid value therefor. They are holders in due course.

We recommend that the judgment of the trial court and that of the Court of Civii'Ap-peals be reversed, and that judgment be here rendered to the effect that the plaintiffs in error, William H. Rhodes and othérs, take nothing by their suit. 1 '

CURETON, C. J.

Judgments of the district court,and Court ■of Civil Appeals are both reversed,,and judgments here rendered for the defendants in error, E. L. Twing et al., as recommended by the Commission of Appeals.


text:
    H. C. SPEER & SONS COMPANY (E. L. Twing et al.), Plaintiffs in Error, v. G. I. WILLIAMS et al., Defendants in Error.
    No. 1487-5754.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.
    W. M. Harris, of Dallas, Lightfoot, Robertson & Scurlock, of Port Worth, Packard, Barnes & MeCaughey, of Chicago, Ill., and J. P. Anderson and E. B. Lewis, both of Center, for plaintiffs in error.
    Todd & Pipkin, Jack M. Moore, and Oliver J. Todd, all of Beaumont, and Sanders & Sanders, J. M. Sanders, and E. H. Carter, all of Center, for defendants in error.
   HARVEY, P. J.

The questions and issues involved in this case, though relating to bonds of a different road district of Shelby county, are the same as are involved in the case of Twing v. Rhodes (Tex. Com. App.) 41 S.W.(2d) 13, this day decided. The judgment of the trial court in this case, and that of the Court of Civil Appeals, are, in effect, the same as in that case.

We recommend that the judgment of the trial court in this ease, and that of the Court of Civil Appeals affirming same, be reversed, and that judgment be here rendered to the effect that the defendants in error take nothing by their suit.

CURETON, C. J.

Judgments of district court and Court of Civil Appeals, are both reversed, and judgments rendered for the plaintiffs in error, as recommended by the Commission of Appeals.


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

text:
    HOUSTON & T. C. R. CO. v. JOHNSON.
    No. 1153-5116.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.
    R. G. Payne and Robertson, Robertson & Gannon, all of Dallas, and Baker, Botts, Parker & Garwood) of Houston, for plaintiff in error.
    C. A. Leddy, of Austin, and Touchstone, Wight, Gormley &'Price, of Dallas, for defendant in error.
   HARVEY, P. J.

This is a suit by the plaintiff in error, the Houston & Texas Central Railroad Company against Homer Johnson, the defendant in error, to recover a balance of freight charges for the transportation of a carload of apples from a town in British Columbia to Dallas, Tex. Johnson defended on the ground of es-toppel. The trial court gave judgment for Johnson, and the Court of Civil Appeals affirmed that judgment. 1 S.W.(2d) 706, 707.

The following statement of the case, as made by the Court of Civil Appeals, is adopted:

“On October 6, 1921, the Okanagan United Growers, Limited, of Vernon, British Columbia, as consignor, shipped from Kelowna, British Columbia, a car of apples consigned to Hughes Brokerage Company, at Oklahoma City, Okl. The shipment was diverted.and reconsigned to Hughes Brokerage Company at Dallas, Tex., advise Finch Brokerage Company. Upon arrival at Dallas, and while the ear was upon the tracks of the carrier, Homer L. Johnson, the appellee herein, purchased the car from the Finch Brokerage Company, agreeing to pay therefor $1,072.50, less all charges tljereon. Johnson was upon the ‘credit list’ of the carrier, and shipments were delivered to him with the understanding that he could pay the charges thereon in 48 hours after delivery. The car was delivered to Johnson under this understanding.
“The carrier represented to Johnson that the freight charges upon the car had been prepaid and the total charges thereon amounted to $185.40, consisting of $10.30 demurrage and $175.10 duty charge. Johnson paid said sum of $185.40 to the carrier, which gave him a receipt therefor, and which showed that the freight charges had been prepaid. Thereafter, and acting upon this information with respect to the freight charges being prepaid and believing the same to be true, Johnson paid to the Finch Brokerage Company the agreed price for the apples, less said sum of $185.40. In fact, the freight charges, which amounted to the sum of $532.60, had. not ■been prepaid. Had Johnson been informed of this fact, he could and would have protected himself by deducting the amount thereof from the purchase price paid to the Finch Brokerage Company. The original order bills of lading properly indorsed were surrendered to the carrier when delivery was made to Johnson.
“This suit was later brought by the delivering carrier against Johnson and David Finch, the latter trading under the name of David Finch Brokerage Company, to recover the freight charges. Finch was later dismissed from the suit because service upon him could not be obtained, he having moved out of the state. The Hughes Brokerage Company was not joined in the suit because appellant was unable to locate an agent of said company within this state upon whom service could be had. >
“The trial court held that the carrier was estopped to recover the freight charges from Johnson. The correctness of this ruling is the sole question presented by appellant.”

By section 2 of the Interstate Commerce Act (49 USOA § 2), it is provided: “If any common carrier subject to the provisions of this chapter shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property or the transmission of intelligence, subject to the provisions of this chapter, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation or transmission of a like kind of traffic or message under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is prohibited and declared to be unlawful.”

Section 6, par. 7, of the Act, 49 USOA § 6 (7) provides: “No carrier, unless otherwise provided by this chapter, shall engage or participate in the transportation of passengers or property, as defined in this chapter, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this chapter; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund' or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.”

Section 3, par. 2, 49 USOA § 3(2), reads in part as follows: “No carrier by railroad subject to the provisions of this chapter shall deliver or relinquish possession at destination of any freight transported by it until all tariff rates and charges thereon have been paid, except under such rules and regulations as the commission may from time to time prescribe to assure prompt -payment of all such rates and charges and to prevent unjust discrimination. * * * ”

A consideration of these statutes, and of decisions interpreting the scope and purpose of the act, leads inevitably to the conclusion that the plaintiff in error is not precluded from the recovery sought. By the transaction which comprehended the purchase of the apples by Johnson, and his obtaining from the carrier the possession thereof, Johnson became bound to pay to the carrier whatever freight charges were in fact due. The provisions of the statutes are such as to make the collection of those charges a public duty on the part of the carrier, and to incapacitate the carrier to refund or to remit “in any manner or by any' device” any portion of such charges. Johnson was charged -with knowledge of these statutory provisions and of their legal effect. He relied at his peril on the representation that the freight charges had been prepaid; for he was charged with knowledge that the carrier could not by that means .evade tbe public duty, imposed by tbe statutes, to collect tbe full amount of charges lawfully due.

In New York, New Haven & Hartford R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 26 S. Ct. 272, 277, 60 L. Ed. 515, tbe purpose of tbe statutes, and tbe agency through which that purpose 'is to be carried out, were pointed out. It is there said: “The all-embracing prohibition against either directly or indirectly charging less than the published rates shows that the purpose of the statute was to make the prohibition applicable to every method of dealing by a carrier by which the forbidden result could be •brought about. If the public purpose which the statute was -intended to accomplish be borne in mind, its meaning becomes, if possible, clearer. What was that purpose? It was to compel the carrier, as a public agent, to give, equal treatment to all.”

In Pittsburgh, C., C. & S. L. Railway v. Pink, 250 U. S. 577, 40 S. Ct. 27, 28, 63 L. Ed. 1151, Pink was the consignee, and the freight was delivered to him by the railroad company. He paid the amount of freight charges demanded at the time, but it was afterwards discovered that this amount was less than the law required. The railroad company sued Pink for the difference. The latter pleaded an estoppel. The court said: “Under such circumstances consistently with the provisions of the Interstate Commerce Act the consignee was only entitled to the merchandise when he paid for the transportation thereof the amount specified as required by the statute. Por the legal charges the carrier had a lien upon the goods, and this lien could be discharged and the consignee become entitled to the goods only upon tender or payment of this rate. * ⅜- * The transaction, in the light of the act, amounted to an assumption on the part of Pink to pay the only legal rate the carrier had the right to charge or the consignee the right to pay. This may be in the ■ present as well as some other cases a hardship) 'upon the consignee due to the fact that he paid all that Was demanded when the freight was delivered; but instances of individual’hardship cannot change the policy Which- -Congress has embodied in the statute ⅛! bidder'tío secure uniformity in charges for transportation;- * * * Nor can the defendant in' error successfully invoke the principle of'estoppel against the right to collect the legal rate." Estoppel could not become the means of successfully avoiding the requirement of the Act as to equal rates, in violation of the provisions of the statute.”

In New York Cent. & H. Railway v. York & Whitney, 256 U. S. 406, 41 S. Ct. 509, 510, 65 L. Ed. 1016, the court said, with reference to a consignee who was held to have become bound, as a matter of law, to pay the freight charges, by his acceptance of the goods from the carrier: “The consignee could not escape the liability imposed by law through any contract with the carrier.”

Again, in Louisville & N. Railway v. Central Iron & Coal Co., 265 U. S. 59, 44 S. Ct. 441, 442, 68 L. Ed. 900, the court declared in sweeping terms that “no contract of the carrier could reduce the amount legally payable, or- release from liability a shipper who had assumed an obligation to pay the charges. Nor could any act or omission of the carrier (except"the running of the statute of limitations) estop or preclude it from enforcing: payment of the full amount by a person liable therefor.”

While the precise question, as to the application of the principle of estoppel in a case where the carrier falsely represents that the freight charges have been prepaid, was not directly involved in any of the above cases, it is quite clear that the declarations made hy the court in those decisions, as well as the plain provisions of the statutes themselves, exclude the idea that the carrier may create an estoppel by making such a false representation. That an estoppel does not arise in such a case is maintained by the Supreme Court of Wisconsin (Chicago & N. W. Railway v. Case Plow Works, 173 Wis. 237, 180 N. W. 846; Waters v. Leather Co., 176 Wis. 16, 186 N. W. 173), and by the New York Court of Appeals (New York Cent. Railway v. Federal Sugar Refining Co., 235 N. Y. 182, 139 N. E. 234, 26 A. L. R. 1312), and by various inferior courts of the federal system [Central Warehouse Co. v. Railway (C. C. A.) 20 F.(2d) 828; Great Northern Railway v. Hyder (D. C.) 279 F. 783; Western & A. Railway v. Underwood (D. C.) 281 F. 891]. A contrary holding was made in the case of Davis v. Akron Feed & Milling Co. (C. C. A.) 296 F. 675. That holding does not impress us as being sound.

We recommend that the judgment of the ■trial court and that of the Court of Civil Appeals be reversed, and that judgment be here rendered for the plaintiff in error -for the amount sued for.

OURETON, C. J.

The judgment of the county court and Court of Civil Appeals are both reversed, and judgment rendered for the plaintiff in error, as recommended by the Commission of Appeals.


author: HARVEY, P. J. CURETON, C. X

text:
    SECURITY NAT. FIRE INS. CO. v. GULF INS. CO. et al.
    No. 1464-5701.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.
    Nelson Lytle, J. Franklin Spears, and T. M. West, all of San Antonio, for plaintiff in error.
    R. W. Mayo, of Dallas, and Templeton, Brooks, Napier & Brown, I-I. C. King, Jr., and M. L. Roark, all of San Antonio, for defendants in error.
   HARVEY, P. J.

This suit was brought by Chas. A. Landa-more, one of the defendants in error, against the Security National Fire Insurance Company, which will be called the Security Company, and the Gulf Insurance Company, which will be called the Gulf Company. Recovery was sought against the first-named company on a fire policy issued by that company. In the alternative, a recovery was sought against the Gulf Company on a fire policy of that company. The trial court gave judgment in favor of Landataore against the Gulf Company. The Court of Civil Appeals reversed that judgment, and rendered judgment in favor of Landamore against the Security Company. 22 S.W.(2d) 978. The last-named company was granted the writ of error.

The material facts are substantially as follows:

On October 8, 1926, the Security Company issued to Landamore a fire policy, good for one year, on a building belonging to Landa-more, situated in the town of Stockdale. The building was totally destroyed by fire on September 30, 1927. At that time the Security Company policy was in force, unless the facts hereinafter stated show an effective cancellation thereof.

A. C. Bain was the cashier of a bank in Stockdale, in which Landamore carried a deposit account. He was also the local agent for both of the insurance companies named (among others), with such general authority from the respective companies as is usually conferred, on a local agent for insurance companies except that, as agent for the Gulf Company, he had no authority to issue a policy in lieu of one Canceled by another company. He had been specifically instructed by the Gulf Company not to issue any policy in behalf of that company in such a case. Land-amore did not reside at Stockdale, and he had expressly authorized Bain, whom he knew to be the local agent for 'several insurance companies, to keep up for him the insurance on the building, and to that end to procure policies from time to time, as occasion required. He also authorized Bain to draw checks against his, Landamore’s, deposit account in the bank, in payment of premiums. He also left to Bain’s discretion the, matter of selecting the company or companies to carry the insurance. In short, Bain was the agent of Landamore in the respects stated.

The Security Company policy' contains the following stipulation:

“This policy shall be canceled at any time at the request of the insured; or by the company by giving five days notice of such cancellation. * * * ”

On September 27, 1927, Bain, acting under instructions received by him from the Security Company on September 22, 1927, undertook to cancel the policy issued by that company, which policy was then in the possession of Landamore himself and so remained until after the fire. Contemporaneously wifck* the attempted cancellation, Bain, as agent ortg ■the Gulf Company, executed a policy for that company, to take the place of the Security Company policy. He retained possession of the new policy until after 'the fire occurred, purporting to hold possession thereof as agent for Landamore. The Gulf Company policy was for the same amount and covered the same property as the other one, and purported to become effective at noon,-September 27, 1927, and to remain effective for one year. Landamore did not know of the purpose of the Security Company to cancel its policy, or of the purported cancellation thereof by Bain, or of the attempted substitution of the Gulf Company policy therefor, until after the fire occurred.

As has already been indicated, Landamore does not claim indemnity under both of the policies, but does claim, in effect, that he is entitled to indemnity under one or the other of them. A decision of the case calls for a consideration of the scope of the authority, respecting the matter of insurance on the building, which was conferred by Landamore on Bain, as the agent of the former.

It seems to be established in this state that where the insured has, in terms, authorized another (who is also the agent of a number of insurance companies) to procure and keep up insurance on the insured’s property — the selection of 'the company or companies being left to the agent’s discretion— the collateral authority to substitute one policy for another, and, in behalf of the insured, to waive notice of or to consent to the cancellation of the policy displaced in effecting such substitution, is implied. Dalton v. Ins. Soc. (Tex. Com. App.) 213 S. W. 230; National Fire Ins. Co. v. Oliver (Tex. Civ. App.) 204 S. W. 367 (writ refused). In such a case, the implied authority of the agent, with regard to cancellation, has reference to the effectual substitution of one valid policy for another and is dependent thereon. Obviously, a general and independent authority, respecting the cancellation of policies, cannot be reasonably implied, when a cardinal purpose of the insured, as manifested by the nature of the authority conferred by him on the agent, was to keep his property protected by insurance, without intermission. Furthermore, it would be unreasonable to presume that the insured meant for the agent to substitute for a valid subsisting policy a second policy which the agent has no authority, from the second company, to substitute for the other policy.

We conclude that, under the facts of this •case, the consent of Bain for the Security Company policy to be canceled, and the notice to him of such cancellation were not binding on Landamore; and therefore the attempted cancellation was ineffective.

The Security Company complains here of the allowance, in the Judgment rendered by the Court of Civil Appeals, of interest, at •the legal rate, from the date of the fire. The assignment of error complaining of this should be sustained. The policy provided for payment of the stipulated indemnity sixty days after proof of loss was received by the company. For this reason, interest did not begin to accrue on the claim until February 1, 1928, which was sixty days after proof of loss was filed with said company. Delaware Underwriters, etc., Ins. Co. v. Brock, 109 Tex. 425, 211 S. W. 779. The judgment of the Court of Civil Appeals should be so reformed as to allow interest from the last-named date instead of from the date of the fire.

We recommend that the judgment of the Court of Civil Appeals be reformed in the respect noted, and, as so reformed, that it be affirmed.

CURETON, C. X

The judgment of the Court of Civil Appeals is reformed, and, as reformed, is affirmed, as recommended by the Commission of Appeals.


author:
' HARVEY, P. J.
      CURETON, C. X

text:
    COBB-HOLMAN LUMBER CO. v. LIECHTY et al.
    No. 1510-5807.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.

      G. W. Gibson, of Jacksonville, and Smith-deal, Shook, Spence & Bowyer, of Dallas, for plaintiff in error.
    W. H. Flippen and John T. Gano, both of Dallas, for defendants in error.
   ' HARVEY, P. J.

This suit was instituted in the fall of 1927, by the Cobb-Holman Lumber Company, against Mrs. Cora Lieehty, J. W. Mott, and others, seeking to recover on a vendor’s lien note, with foreclosure of the vendor’s lien on the land. The trial court gave judgment for the defendants, and that judgment has been affirmed by the Court of Civil Appeals. 30 S.W.(2d) 356.

The facts are substantially as follows:

On November 27, 1917, one L. O. Herring-ton conveyed the land in question to Mrs. Anna Schultz, as her separate property. For part of the purchase money, Sirs. Schultz and her husband, Frank Schultz, executed the note in controversy, which was for the principal sum of $7,500, due two years after date, and which provided for interest at the rate of eight per cent, per annum from' date until paid. The vendor’s lien was duly reserved in the deed to secure payment of said note. Her-rington transferred the note to the Campbell State Bank at Palestine. Afterwards, on February 1, 1921, the Schultzes paid the bank $1,500 and accrued interest on the note, and on the same day, by an extension agreement in writing between said parties, the maturity date of the balance due on the note was extended to January 27, 1924. This extension agreement was promptly recorded. About the time that this extension agreement " was made, the bank transferred the note to Dr. Hackler of Dallas. In November, .1922, Frank Schultz, with the knowledge and consent of his wife, executed timber deeds to S. A. Cobb for all the pine and hardwood timber on the land, the timber to be cut and removed within five years. Cobb transferred to the Cobb-Holman Lumber Company all the rights he acquired under those instruments. In November, 1923, Schultz and wife conveyed the land to J. W. Mott, who assumed payment of the vendor’s lien note in controversy.

By mesne conveyances, the land was acquired by George Griffith on August 15, 1924. The conveyance to Griffith was made subject to the vendor’s lien note in controversy, and the deed recited a cash consideration of $10 paid by Griffith. The situation then was that the Cobb-Holman Lumber Company claimed to own the timber rights under the Frank Schultz timber deeds; Griffith owned the land and claimed the timber thereon; Dr. Hackler owned the vendor’s lien note which was secured by a lien on the timber and the land. Shortly after this, Dr. Hackler placed the note in the hands of an attorney for collection, and thereafter, on October 8, 1924, George Griffith executed to the lumber company a timber deed. By the terms of that instrument Griffith conveyed to the lumber company all the timber on the land, with provision for the cutting and removal of the timber within the space of two years from the date of said instrument. The only provisions of this timber deed which need be set out here, read as follows:

“Know all men by these presents: That I Col. George Griffith, of the County of Dalias, State of Texas, but now temporarily in Chero-. kee County, Texas, for and in consideration-of the sum of Five Hundred Dollars cash to me in hand paid by Cobb-Holman Lumber Company, of Jacksonville, Texas, the receipt of which is hereby acknowledged, and the further consideration of the assumption and agreement to pay by said Cobb-Holman Lumber Company, one vendor’s lien note on the land hereinafter described for the principal sum of Seventy-five Hundred Dollars, which note now amounts to the sum of Six Thousand Dollars and accrued interest; said note having been executed and delivered by Frank Schultz and wife to L. O. Herrington, and now owned and held by Dr. Hackler, of Dallas, Texas, and which note has been placed in the hands of C. L. Allen, Esq., for collection. It being agreed and understood that said Cobb-Holman Lumber Company is to pay the accrued interest on said note up to date, and whatever attorney’s fees due thereon, and that the said note is to be assigned in writing from said Dr. Hackler to Cobb-Holman Lumber Company, without recourse on said Dr. Hackler. And it is further agreed and understood that said Cobb-Holman Lumber Company are to carry said note for a period of two years from date hereof at the agreed rate of six per cent, interest, from this date, and one additional year at the rate of seven per cent, per annum, providing said grantor herein, Col. George Griffith, pays the taxes on said land each, of said years, and all back taxes on said land, and pays th.e interest on said note annually from date hereof. And in the event that said note should about to become past due for four years, that said-Col. Griffith will execute a renewal agreement with said Cobb-Holman Lumber Company, its successors or assigns, prior to the expiration of said four years from date of maturity thereof. * *

This timber deed, was recorded October 14, 1924. On October 10, 1924, Dr. Hackler transferred the vendor’s lien note “without recourse" to Gus S. Blankenship; and the latter, on October 14, 1924, transferred the note “without recourse" to the Cobb-Jtiolman Lumber Company. A few days later the lumber company sold and conveyed the timber on said land, together with all timber rights, to other parties, for $8,000 cash. In November, 1924, George Griffith conveyed to one Mclnnis the land in question, subject to the vendor’s lien in controversy herein, for $10 in cash. The deed by which this conveyance was made was signed and acknowledged in September, 1924, but was not delivered until some two months later. Mrs. Cora Liechty acquired the land from Mclnnis, subject to the vendor’s lien note in controversy; the deed to her so reciting. Afterwards the lumber company brought suit on said note, seeking, among other things, to foreclose-the vendor’s lien-on the land as against Mrs. Liechty. The latter pleaded, in effect, that the lumber company became obligated, under and by virtue of the timber deed executed to the company by George Griffith, to pay off and discharge said note, and that, the timber rights having been sold by the lumber company for an amount in excess of the amount due on said note, the note became satisfied and the lien securing same discharged. At the trial, Mrs. Liechty, over the objection of the lumber company, introduced in evidence the testimony of George Griffith, to the effect that it was orally agreed between Griffith and the lumber company, at the time the timber deed of October S, 1924, was executed, that if, within a period of two or three years, the lumber company “could sell off the timber so to be conveyed- to them by m” for a sufficient amount to pay-the balance due on said note, then and in that .event said note was to be marked paid and can-celled, and the lien against said property released and discharged.”

The trial court submitted to the jury -a single special issue reading as follows: “Do you find from the eyidence that the plaintiff in this ease, Cobb-Holman Lumber Company, as a part of the consideration for the timber deed executed to them by Col. George Griffith, agreed to pay off and cancel the note sued on in this case?” The jury -answered this “Yes.” The trial court proceeded to render judgment for the defendants.

A decision of the case depends upon the proper interpretation of those provisions of the timber deed from Griffith to the lumber company which have been quoted. If considered without reference to the context, the first provision as to the “assumption and agreement” by the lumber company “to pay” the note in controversy would import an obligation on the part of the company to satisfy the note by payment. But, according to the authorities, that provision must be construed in the light of all the other relevant provisions contained in the instrument, and such meaning be ascribed to the first provision as the instrument, as a whole, shows to have been intended by the parties. Bryant Co. v. Hamlen, Ind. Sch. Dist., 118 Tex. 255, 14 S.W.(2d) 53. When the provision, which seemingly purports an agreement on the part of the lumber company to assume and pay the note, is thus construed, the meaning which th.e parties attached to that provision is brought to light. For by the next succeeding clauses this meaning is explained by language which describes with particularity what the lumber company was bound to do in fulfillment of its agreement; which language unmistakably shows that a purchase of the note by the lumber company was meant. Por it is there provided that “the note is to be assigned in writing” to the Lumber Company, and that the company was to “carry said note for a period of,’two years,” etc., and that Griffith was to pay interest on the note annually from the date of said timber deed. It thus reasonably appears from the written instrument itself, that its terms do not comprehend either an absolute or a conditional obligation on the part of the lumber company to satisfy the note. Nor does it appear from the instrument that any obligation of the lumber company, other than those disclosed there, was contemplated. On the contrary, the degree of particularity, which was employed in setting out the various things which the lumber company promised to ;do, is such as to imply a purpose to embody in the writing all the terms of the lumber company’s agreement. The law presumes that this purpose was carried out; and, since the language of the several provisions, considered as a whole, is susceptible of no meaning, in respect of the lumber company’s relation to the note, other than that the company was to become the holder of the note, there is no ambiguity to be cleared up by extraneous testimony. The testimony of Griffith, to the effect that the lumber company agreed to pay the note, if the timber was sold .-for a sufficient sum within a specified time, would but introduce into the contract an obligation which the provisions of the written instrument do not embrace. This, under the authorities, cannot be done by parol testimony, notwithstanding such provisions relate to the consideration for the conveyance, they being contractual, and there being no fraud, accident, or mistake involved. East Line & R. R. R. Co. v. Garrett, 52 Tex. 133; Coverdill v. Seymour, 94 Tex. 1, 57 S. W. 37; Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; Vansickle v. Watson, 103 Tex. 37, 123 S.W. 112; Johnson v. Johnson (Tex. Com. App.) 14 S.W. (2d) 805.

We recommend that the judgment of the trial court and that of the Court of Civil Appeals affirming same be reversed, and the cause be remanded.

CURETON, C. X

Judgments of the district court and Court of Civil Appeals are both reversed, and the cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


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

text:
    ADAMS v. MILES et al.
    Motion No. 9496; No. 1210-5052.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    For former opinion, see 35 S.W. (2d) 123.
    Perkins & Floyd, of Alice, for plaintiff in error.
    L. Broeter, of Alice, for defendants in error.
   SHORT, P. J.

The defendants in error’s motion for rehearing, to set aside the judgment rendered on the 4th day of February, 1931, reversing and remanding this cause, and to grant them a rehearing and affirm the judgment of the Court of Civil Appeals affirming that of the district court, in substance, presents that we erred in holding that the record does not state facts sufficient on the proposition that there was a surplus in the state available fund belonging to said school district, after deducting all the necessary expenses, to maintain the schools in said district for eight months in the year.

In support of said contention, the motion calls our attention to article 2903, R. S. 1925, which provides: “The scholastic year shall commence on the first day of September of each year and end on the thirty-first day of August thereafter.” The motion then proceeds to state, in substance, the allegation of the defendants in error in their motion to dissolve the temporary injunction in this case, which motion is verified by affidavit and is unchallenged, to the effect that the school district of district No. 12 had been .maintained and conducted for the years 1926-27, and that the vouchers attempted to be enjoined were issued on August 29, 1927, which was before the expiration of that school year, .and were paid out of surplus fundg remaining to the credit of the district, after said school had been conducted, contending that the vouchers were paid out of the surplus fund remaining to the credit of said district after said school had been conducted for eight months, by the use of the available fund, which was sufficient, and that these vouchers were in compliance with subdivision 2, article 2827, R. S. 1925, which is as follows-: “Local school funds from district taxes, tuition fees of pupils not entitled to free tuition and other local sources may be used for the purposes enumerated for State and county funds and for purchasing appliances and supplies, for the payment of insurance premiums, janitors and other employees, for buying school sites, buying, building and repairing and renting school houses, and for other purposes necessary in the conduct of the public schools to be determined by the Board of Trustees, the- accounts and vouchers for county districts to be approved by the county superintendent; provided, that when the State available'school fund in any city or district is sufficient to maintain the schools thereof in any year for at least eight months, and leave a surplus, such surplus-may be expended for the purposes mentioned herein.”

The original opinion, 35 S.W.(2d) 123, held that the facts disclosed by the record do not show there was a surplus in the state available fund belonging to said district, after deducting all the necessary expenses to maintain the said school for eight months in the year. Upon a reconsideration of the record, we are convinced that this part of the original opinion is error, for the reason that the record does show affirmatively the facts, as contended by the defendants in error in their motion for rehearing, and that said original opinion, in so far as it sustains the plaintiff in error’s first assignment of error, which challenges the action of the district court in overruling the plaintiff in error’s, .general demurrer to the..defendants in error’s motion to dissolve the writ of injunction, should be set' aside, from winch it follows that so much of the original opinion which reverses the judgment of the Court of Civil Appeals affirming that of the district court should be vacated, and that the judgments of the courts be in all things affirmed.

We therefore recommend that the judgment of the Supreme Court, entered on the recommendation of this section of the Commission of Appeals, rendered herein on the 4th day of February, 1931, reversing the judgments of the Court of Civil Appeals and the district court, and remanding this cause to the district court, be set aside, and that the judgment (300 S. W. 211) of the Court of Civil Appeals for the Fourth Supreme -Judicial District of Texas, affirming that of the district court, be affirmed.

OURETON, C. J.

Motion for rehearing granted, previous judgment set aside, and the judgment of the Court of Civil Appeals affirmed, as recommended by the Commission of Appeals.


author: RYAN, J. CURETON, C. J.

text:
    WILLIAMS & STEPHENS v. BELO.
    No. 1290-5766.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    W. F. Bane and Coker, Wilson,' Rhea & Neel, all of Dallas, for plaintiffs in error.
    Read, Lowrance & Bates, of Dallas, for defendant in error.
   RYAN, J.

This suit invplves the rights of plaintiffs in error to a real estate broker’s commission because of a iease dated November 24, 1925, made by Mrs. Belo to Will R. Sparkman, of cfertain property in the city of Dallas, for a term of fifty years, the total consideration therefor being $390,000, payable in certain instalments as specified in the lease contract.

In answer to special issues Submitted to them, a jury in the trial court found: That Williams- & Stephens, or -either of them, were the procuring cause of said lease contract; that Mrs.' Belo, prior to July 23, 1924, em? ployed them, or either of them, to lease the property in question and agreed to pay a commission in the event they so leased it; that Sparkman, lessee, first endeavored to lease such property from Williams'& Stephens; that'Mrs. Belo understood prior to July 23, 1924, and during the negotiations with Spark-man, prior to that date, that Williams & Stephens expected to receive compensation from her if they should bring about a lease contract on said property, and she intended or expected to pay them for their services in that event; that Cloyd: H-. Read (Mrs'. Belo’s attorney and adviser) also prior to .July 23, 1924,' understood that plaintiffs (Williams & Stephens) expected to be paid a commission if they procured a lease on said property, and lie (Bead) expected and understood that Mrs. Belo would pay such commission.

The jury found further that Mrs. Belo, through Cloyd H. Bead, did not, on or about July 23, 1924, terminate all negotiations with Williams & Stephens, looking to a lease of the property in question, to Sparkman; that they continued such negotiations with Sparkman, after July 23, 1924, and this was known to Mrs. Belo, who authorized plaintiffs to continue such negotiations, after J'uly 23, 1924, and ratified and confirmed such negotiations after that date.

The jury found also that plaintiffs are entitled to a reasonable commission for the services they rendered in the leasing of said property to Sparkman, and that $5,000 is such a reasonable commission.

Judgment was accordingly rendered in favor of the plaintiffs^ Williams & Stephens, and against Mrs. Belo for the sum of $5,000 with interest from date of judgment and all costs of suit.

The Court of Civil Appeals held that under the undisputed material facts the trial court erred in refusing to instruct the jury to return a verdict in favor of Mrs. Belo, reversed the judgment below, and rendered judgment in her favor. 25 S.W.(2d) 700.

The Court of Civil Appeals had authority to reverse the judgment of the trial court on the preponderance of the evidence, but it could not render the judgment, if, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiffs, and indulging every legitimate conclusion favorable to the plaintiffs which might have been drawn from the facts proved, a jury might have found in favor of the plaintiffs. Wininger v. Railway, 105 Tex. 56, 143 S. W. 1150.

The effect of the holding of the Court of Civil Appeals is that there was no evidence of probative value supporting the jury’s findings, and it therefore becomes a question of law, to consider which we must review the evidence as adduced on the trial. Marshburn v. Stewart, 113 Tex. 518, 254 S. W. 942, 260 S. W. 565; Beck v. Texas Co., 105 Tex. 303, 148 S. W. 295; Tweed v. Telegraph Co., 107 Tex, 247, 166 S. W. 696, 177 S. W. 957.

Williams, plaintiff in error, testified that he had been in the real estate business in Dallas since 1S95; that he met Mrs. Belo by appointment at his solicitation, in the early fall of 1922, having learned that she desired to sell the property in question; that he informed her that he was sure he could sell said property to the Loudermilk-Sparkman people, undertakers; that she then refused to sell to an undertaking establishment under any circumstances.

He testified further that again in the fall of 1923 or spring of 1924 Mrs. Belo advised him that she had changed her mind and would notv consent to sell the property to the Loudermilk-Sparkman Company, if they still wanted it, and she told him to go ahead and try to sell to them; that he then took the matter up with Mr. Sparkman, of the Louder-milk-Sparkman Company, who finally made him a lease proposition which he wired to Mrs. Belo, who was then in New York City; that he furnished Mr. Sparkman with estimates upon the value of the property between the 1st and 15th of November, 1925.

In May, 1924, Williams wired Mrs. Belo and Mr. Morrison, her son-in-law, in Ne,w York, as follows: “The deal with Womens Club here is off; I can get straight 99 year lease payable in advance yearly at $650 per month from Loudermilk-Sparkman Co. Must have answer as soon as possible.” On May 26, 1923, Mrs. Belo wired Mr. Cloyd H. Bead, her attorney at Dallas, Tex., as follows: “A wire from Williams reads I can get 99 year lease payable in advance yearly at $650 per month from Loudermilk-Sparkman and Co. Are you sure I can make a 99 year lease on entailed property and what would I have to pay in Federal Tax on such a lease. I will do nothing without your advice. If you think favorably I will. You see Williams and make it clear to him you are my attorney and advisor in all things and then wire me your advice. Also whether I could have until Nov. 1 to vacate.”

The plaintiff in error testified further: “After I sent the telegram to Mrs. Belo advising her that I could get a ninety-nine year lease on her property from Loudermilk-Spark-man Company, Mr. Bead ’phoned me to come up to his office in a few days — I would say, probably a week after that. I went up there and he told me he had received a letter from Mrs. Belo regarding the leasing of the property to Mr. Sparkman, 'and talked over the proposition with him, and he said, you better get Mr. Sparkman up there and go on through the proposition and see what there was to it. Then I made an appointment with Mr,. Spark-man and Mr. Bead and got Mr. Sparkman up there, together, going into this lease proposition with Mr. Bead. I was present in that conference; I was up there fifteen or twenty minutes. Mr. Sparkman and I did not leave together; I left Mr. Sparkman there talking with Mr. Bead on the proposition. I had an appointment and had to leave. I left Mr. Bead and Mr. Sparkman going over the proposition. As to whether I took Sparkman, to Mr. Bead’s office, I made an appointment with him and met him there.

“The next morning I went back up to Mr. Bead’s office and talked to him, and he told me he and Mr. Sparkman had made up a lease he felt would be satisfactory to Mrs. Belo. As to what I mean by ‘made up,’ I judge from that remark that they came to some agreement on the lease proposition. -

“Mr. Read told me then that they had come to an agreement which he thought would he satisfactory to Mrs: Belo, and that she wanted to know what my commission would be in the deal and in regard to the lease and so forth, and he dictated a telegram for me to send to Mrs. Belo. I remember I said to her in that telegram what the lease was and that my commission would be five thousand dollars.

“I did have a discussion with Mr. Read at the time as to what my commission would be or what it should be; Mr. Read stated that the commission was a good, big commission, and he didn’t know how Mrs. Belo was going to take it because Mr. Sparkman wasn’t paying very much money, cash, in the trade.

“With reference to the recitation in the telegram that I would take twenty-five hundred dollars when the trade was closed and twenty-five hundred 'dollars out of the first year’s rent, that was just because Mr. Read said Mrs. Belo wouldn’t be getting much cash on the deal, and I agreed with Mr. Read that I would accept twenty-five hundred dollars when the deal was made and twenty-five hundred dollars out of the next year’s payment of rent. Mr. Read dictated the telegram for me to send; I signed it and took it down to the telegraph office myself, and paid for it.

“I did have some further discussion as to my commission, with Mr. Read, at that time. There was no controversy whatever as to the amount of the commission.

“After sending that telegram, I got a telegram from Mrs. Belo regarding the storing of her furniture and went to see Mr. Sparkman and. made satisfactory arrangements with him, and wired her to that effect — that we could arrange so that she could have the storage room she wanted in the attic of the building. After, sending that telegram to Mrs. Belo stating that I had made arrangements for her to store her furniture in the attic, Mr. Read phoned me after a few days to come to his office again and told me he had heard from Mrs. Belo and everything was satisfactory and that she would be there on a certain date to sign up the lease. Then, after a few days more, Mr. Read called me to come up to his office again and I went up there and he told me that Mrs. Belo was in the city and that they had made arrangements to close up all the deal at two o’clock that afternoon; to be at his office at two o’clock. I would judge that I was up there between nine and ten o’clock in the morning. Then I went to Mr. Read’s office at two o’clock in the afternoon as I agreed to and when I got up there he told me the deal was all off. He said Mr. Sparkman had been up there and he was unable to go through with the deal; that he and Mrs. Belo couldn’t get together and that she was leaving that night for New York.

“When I left* the office Mr. Sparkman and Mr. Read were together, and the drawing up of the lease and the details of it was left entirely to Mr. Read and Mr. Sparkman.

“I never-heard a word in any way, shape or form about what demands Mrs. Belo made upon Mr. Sparkman to pay my commission at that time. I did not discuss with Mrs. Belo-the matter of the rearranging of my commission ; I never talked to Mrs. Belo at all. I never discussed with Mr. Read the matter of the rearranging of my commission, further than what I said awhile ago. I agreed to take twenty-five hundred dollars when the deal was made and twenty-five hundred dollars on the next year’s payment. That was the only discussion Mr. Read and I had about the commission. After that I received a letter from Mr. Read relative to Sparkman and this property, after Mrs. Belo went back to New York. The letter, dated July 23, 1924, reads as follows:

“Messrs. Williams, Smith & Stephens,
“Dallas, Texas.
“Gentlemen: In Re: Loudermilk-Sparkman Go. Lease with Mrs. Belo. The further developments of this matter indicate that Mr. Sparkman will not be able to carry out any contract along the lines of our discussion, and therefore notice is hereby given that all negotiation is at an end and we reserve the right to proceed with other deals and if you have a deal with any other, party on a similar line, you can take up same with this firm; as Mrs. Belo is in Europe and has authorized us to look after the matter for her.
“Yours very truly,
“Read, Lowrance & Bates,
“By: O. H. Read.”

On November 9, 1925, Williams wrote Mrs. Belo, then in Dallas, as follows:

“Dear Mrs. Belo: I have just learned today that you were in the city and am writing you to say that I think there would be a chance of our going through with the deal we had up sometime ago with Mr. Sparkman of the Loudermilk-Sparkman Undertakers.
“I would like very much to see you-and talk over the matter again if you will be so kind as to advise me when and where I may see you.
“Thanking you, I am
“Yours resp’y,”

—to which no reply was received.

Williams further testified that he continued his efforts with Sparkman after he received the letter of July 23, 1924, from Read, Lowrance & Bates, “because I knew that Sparkman was still very anxious to go through with this deal. He told me so repeatedly, and I knew that was a chance for him to make this deal if he could get in shape to make it. He had repeatedly told me and urged Mr. Stephens to try and dispose of his property we had sold him on Hiirwood Street, lease or sell it in order that lie could go through and make this lease on ttie Belo property. I knew he wanted it, very anxious to get it, and I was certain Mrs. Belo would make a lease if he would go through with it and raise this money. By saying I was certain Mrs. Belo would make this lease I mean X knew from the fact that she was ready and willing to make it before, when he couldn’t raise the money; that if he could raise the money she would go through .with it.

“As to what I mean that I continued my efforts with Sparkman and what I did in continuing my efforts and how often I saw Sparkman and just what I did from the time of the writing of this letter of June 23d, Mr. Sparkman came in our office repeatedly and talked to Mr. Stephens and myself and I got out and tried to sell this property for him. Mr. Sparkman was making every effort and urging us to make every effort to dispose of this property on McKinney Avenue so he could go through with this lease.

“Outside of this letter, Mrs. Belo never wrote me any other letters instructing me to discontinue my efforts with Sparkman; never heard any more from her. She never told me in person to discontinue my efforts with Sparkman or anybody else.

“Mr. Read never told me or wrote me any letters telling me to discontinue my efforts with Sparkman or anybody else, v

“I don’t know when this lease was consummated. It was sometime in December, 1925, that I learned Mrs. Belo had executed this lease to Sparkman.

“The last time Sparkman was in my office relative to leasing .this property before I found that she had leased it to him, he came down to our office, I think, on the 8th of November, 1925. He came down there and asked Mr. Stephens and me to get him up a strong letter regarding the Belo property; I mean a letter as to the valuation of the Belo property, as to the future valuation of the property, and so forth, and told us that he was wanting this because he was trying to get some men interested to let him have some money to go through with this lease, because he would need about fifteen thousand dollars or better to improve this piece of property before he could move into it. I did not see Sparkman any more between that time and December. I did not see Read or Mrs. Belo any more between that time and December, when I found out the lease was executed. * * * I allege in my petition that I was the agent of Mrs. Belo in this transaction. I base that claim on the fact that I wired Mrs. Belo regarding the leasing of ■ the property and she wired me back regarding the leasing of it, on two or three different occasions, and I considered that was sufficient evidence that I had the leasing of the property, and she was willing for me to go ahead and make a lease for it. I base it on the fact that she never turned me down on the lease or said she wouldn’t lease it, or said she wouldn’t have anything to do with me. I base it on the fact that I was trying to lease the property for her and she never rejected it. * ⅞ * In my petition, I make the allegation that I was Mrs. Belo’s agent. I base the claim upon the fact that Mrs. Belo listed the property with me to sell. * * * I never did make any demand or request upon' Mrs. Belo as to how .and when she would pay my commission, except what I said in the telegram; that I would be willing to take twenty-five hundred dollars when the lease was made and twenty-five hundred dollars out of the next year’s payment.

“They never did ask me to cut my commission or take it on any other basis.”

Stephens, plaintiff in error, a member of the real estate firm of Williams & Stephens, testified he knew W. R. Sparkman, Mrs. Helen Belo, and Mr. Oloyd IT. Read, and he had dealings with Sparkman or the Loudermilk-Sparkman Company, relative to the leasing of the property involved in this suit, and furnished Mr. Sparkman with statements as to the valuation of the Belo property. “Later on in the negotiations, he asked me for a written statement as to the valuation of this property and the possibilities of the property. I did furnish him with that. The first written valuations I gave were not in the form of letters, but just in memorandum I would put before him in trying to make the sale. That was in the early part of 1924. I gave him the first written list of valuation in November, 1925. I did not give him that voluntarily; he asked me for that valuation. I was on the street at that time when he first asked about-it; he later came up to the office and asked for it, and we wrote it out for him and gave it to him. I say that was in November, 1925.

“I had other negotiations with Mr. Spark-man between the Rail of 1923 and the time I wrote the list of valuation in November, 1925. He had .another piece of property that depended on whether we could dispose of that for him as to whether he could make this -lease on the Belo property. I advertised that property for sale; I negotiated with three or four different people, so Mr. Sparkman would sell that other property, so he could, go through with this lease. * * * The last conversation I had with Sparkman was at the ‘time I wrote the letter in November of 1925.

“As to when I first found out' that Mrs. Belo had leased this property to Sparkman, •approximately the first of December we heard it rumored that they were negotiating among themselves. I did not know about the lease being drawn up and executed at the time it was executed.”

Mr. R. B. Cammack testified that he has been connected with the Dallas News for thirty-three years, and looks after all of Mrs. Belo’s personal affairs; that he knows Mr. Sparkman very well. “I have had conversations with Mr. Sparkman several times with reference to the property known as the Belo homestead on the corner of Ross and Pearl. He came to me about it. He was very anxious to get control of the property; either buy or lease. That was after he came here: after he bought out the Loudermilk Undertaking Company. * * * He said it was the most suitable place he had been able to locate in Dallas for his business, and he was very anxious to get control of it; he had me take it up with Mrs. Belo upon several occasions, at that time she said she wouldn’t consider selling for the purpose for which he wanted it. Thereafter she told me of a change in her ideas — she said she had changed her mind.”

He testified, further, that Mrs. Belo returned to Dallas about the 1st of June, 1924, in response to a telegram from Mr. Read on the prospect of closing a lease on her home to Mr. Sparkman. That lease was not closed because, as he understood, Mr. Sparkman could not make the necessary financial arrangements. “The next time I heard anything with reference to the proposition was just before the lease was made in 1925. I think, the last part of 1925.

“I* have had the lease in my possession up until this morning. The date of the lease is the 24th of November, and I heard about it just shortly before that.

“I discussed that lease casually with Mrs. Belo and Mr. Sparkman prior to its execution. • I talked to Mr. Sparkman about this property a good many times prior to this. * ⅜ % I talked with Mr. Read and Mrs. Belo with reference to the lease.”

MR Sparkman testified that he talked to Mr. Williams many times about the Belo property and made an offer through him for a lease of it, and Mrs. Belo came to Dallas with reference to such lease, but that particular transaction was not closed, but after he (Sparkman) had sold some property of his, he, in about September, 1925, went to Mr. Read'and asked him to take the lease matter up with Mrs. Belo direct, and then dealt with her through Mr. Read. He went to the office of Williams & Stephens several times during 1925 on deals affecting property he had bought and traded for. “As to why I wanted to deal with Mrs. Belo direct — before, they wanted me to guarantee the commission; I wanted to deal with her to save commission, because I would have had to guarantee the future commission; that is what broke it up before, the first time. As to whether I am positive that is what broke it up the first time, it wasn’t anything else; just a fight over the commission; that’s exactly it; they wanted me to guarantee the payment of the commission, so it would eventually come out of the property. I wouldn’t do it; it meant I would have to advance the money or give a note for it.

“Mrs. Belo never did ask me to pay more than the agreed rental of $650.00 a month on the property. As to whether they were asking me to pay rent, and not asking me to guarantee the commission, they did do it. That is why I wouldn’t take it in 1924; that is where the disturbance came.

“When Mrs. Belo was down here in June of 1924, I had one or two conversations with her; I don’t remember how many. Those conversations were in Mr. Read’s office. * * ⅛ “I think Mr. Williams met us there. Mrs. Belo was there when Mr. Williams was there; they met there together. I don’t remember whether that was in the morning or afternoon. As to whether that was the first or second conversation I had with Mrs. Belo when she wa-s down here in 1924, I don’t know whether there was one or more; I met her out at the house one time; just a day or two before the lease. Mrs. Belo was present and I think Mr. Williams was there; he or Mr. Oammack were out there. ⅜ ⅜ *

“As to whether it is a fact that Mrs. Belo and Mr. Read and Mr. Williams and myself all met up at Mr. Read’s office when she was down here in June, 1924, to close the deal, of eohrse, Mr. Williams was there with them. I imagine; I am sure he was. As to whether that is just guess-work, I know she was there, and as to Mr. Read, I am almost sure he was there with her. * * »

“In June of 1924, or at any time subsequent thereto, up until the time the lease was executed in 1925, I had no agreement of any kind with Mrs. Belo, expressed or implied, relative to paying this commission. * * *

“I had that conversation with Mr. Read about Williams’ commission in the Fall. * * *

“I think Mr. Williams first told me that Mr. Read represented Mrs. Belo. I knew that Mr. Read represented Mrs. Belo in the Fall of 1925. * * *

“I did not know Mr. Read represented Mrs. Belo before Williams got in touch with me and took me up there in June, 1924. * * *

“When I went back to Mr. Read in the Fall of 1925,1 went to him because I knew that he was representing Mrs. Belo. I did know that he was representing Mrs. Belo as a result of previous negotiations I had with him and Williams. ⅜ * *

“As to whether it is a fact that after I found out through Mr. Williams that she would lease it for .a funeral home, that I never did give up tlie idea or desire of ob-. taining the property, I don’t remember about my desires; I can’t tell you about that.”

With reference to the first deal, Mrs. Belo testified that prior to Williams’ demand for a fee of $5,000 she and Mr. Sparkman had reached an agreement on almost all other matters, and she had packed and stored her furniture in an endeavor to close the deal, at great expense and inconvenience to herself, and she waited in Dallas until the last minute hoping that the lease would be closed, but, having already engaged passage to Europe, she had to leave, and left instructions that Mr. Williams be notified that she would have no further dealings with Mr. Sparkman. She further testified that she did not come to Dallas to close said lease deal, but to discuss it, and did not then know the amount of fee to be paid, nor how it would be paid. She testified that her attorney had wired her he would recommend a fee to Williams of $2,500, but that he was asking $5,000, and assumed that he would take.the lesser sum or else take his larger demand in monthly payments out of the rent as. collected. “When I came to Dallas and found that Williams demanded $5,000.00 to be all guaranteed by me, I was compelled in turn to require a similar guarantee from the tenant and that broke up the deal.”

She went to Europe in June, 1924, and returned to Dallas in November, 1925, when she , ■did lease the property to Sparkman. The lease was for the same property, the rental per month was the same, but she testified in almost every respect the lease was different In term, method of payment, and the rights of landlord and tenant.

We think the evidence (of which the above excerpts are a part) was sufficient to take the case to the jury and to support the jury’s findings.

It is the province of the jury to determine questions of fact, but it is in the power of the trial judge to set aside the findings and award a new trial. The Court of Civil Appeals has the same power upon appeal, but it cannot set aside the jury’s verdict,, substitute its own findings for those of the jury, and render judgment accordingly. Choate v. Ry. Co., 91 Tex. 406, 44 S. W. 69; Brown v. City Service Co. (Tex. Com. App.) 245 S. W. 656. As said by Judge Brown, in Houston & T. C. Ry. Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415, 417:

“In the exercise of its appellate jurisdiction, a court of civil appeals may draw from the evidence conclusions of fact different from those arrived at by the jury or judge, and it may reverse the judgment of the lower court, and remand the cause, for the reason that the verdict and judgment are against the weight of the evidence. But the determination of questions of fact as the basis of a final judgment involves the exercise of original jurisdiction which has not been conferred upon the courts of civil appeals.”

Whether there is any legal evidence as a basis for the jury’s verdict presents a question of law which the Supreme Court may pass upon. Beck v. Texas Co., 105 Tex. 303, 148 S. W. 295; Lancaster v. Carter (Tex. Com. App.) 255 S. W. 392; Lee v. Ry. Co., 89 Tex. 583, 36 S. W. 63.

But where the Court of Civil Appeals concludes that the jury’s finding is clearly against the great weight of the evidence, this involves a finding of fact binding on the Supreme Court. Wilson v. Ereeman, 108 Tex. 121, 185 S. W. 993, Ann. Cas. 1918D, 1203; Sprinkles v. Kerbow (Tex. Com. App.) 279 S. W. 805; Priddy v. Childers (Tex. Com. App.) 240 S. W. 1107; 3 Tex. Jur., p. 1192. In such a case, the Court of Civil Appeals can only remand; it can render only where the evidence is so conclusive that there is no issue for a jury, that is, if the trial court should have instructed a verdict. Eastham et al. v. Hunter et al., 98 Tex. 560, 86 S. W. 323.

The conclusions of law of the Court of Civil Appeals and upon which they predicated their judgment of rendition were precluded by the findings of fact by the jury from all the testimony. The conclusion of law that only a restricted or limited listing was made is in conflict with the findings of the jury that defendant .in error employed plaintiffs in error to lease the property in question and agreed to pay them a commission therefor. The conclusion of law that defendant in error did riot know of plaintiffs in error’s efforts after July 23, 1924, is in conflict with the findings of the jury that she not only knew but authorized their negotiations with Sparkman. The conclusion of law that Sparkman voluntarily resumed negotiations without solicitation of defendant in error or any one acting for her is in conflict with the findings of the jury that plaintiffs in error were the procuring cause of the lease that was consummated.

Plaving reached the conclusion that the Court of Civil Appeals erred in its disposition of the case, we must now decide whether the cause should be remanded to the district court for another trial, or judgment should be here rendered affirming the judgment of the district court.

As said by Associate Justice Greenwood in Marshburn v. Stewart, 113 Tex. 507, 254 S. W. 942, 260 S. W. 565, 566:

“There is a difference in the authority of the Supreme Court in causes wherein the Court of Civil Appeals enters a final judgment by affirming that of the trial court or by rendering a different judgment, and in causes wherein the judgment of the trial court is reversed and the case remanded for a new trial. The distinction was stated with clearness and precision in Tweed v. Western Union Telegraph Co., 107 Tex. 255, 166 S. W. 696, 177 S. W. 957, as follows: ‘With the court of Civil Appeals invested with the full power of determining the facts of the cause, and setting aside the verdict of a jury on the facts, it must be assumed, * * * that in reaching a conclusion that the evidence showed as a matter of law that the plaintiff was not en-. titled to recover, and for that reason ordering that the cause be remanded, in the same case it would have held that the verdict was against the weight of the evidence. With a case thus remanded under the judgment of the Court of Civil Appeals, it would amount to a denial of its authority to determine the facts and set aside a verdict on the evidence for this court to assume the power of rendering the judgment because it differed with the conclusion reached 'by that court upon the effect of the evidence.
“ ‘Beck v. Texas Company, 105 Tex.- 303, 14S S. W. 295, furnishes no analogy. The distinction between that case and this one is manifest. There the court did not exercise the authority it possessed to set aside the verdict on the facts and remand the cause. It rendered judgment in favor of the defendant on the facts; and in doing so made no finding of fact which would defeat recovery. In differing with the Court of Civil Appeals upon the question of law as to the effect of the evidence, we were authorized to affirm the judgment of the lower court, since the Court of Civil Appeals had not sought to exercise its province of determining the facts and ordering the case remanded for another trial because of its difference with the jury on the facts, and in affirming the judgment we therefore in no wise trenched upon its authority, I-Iad the Court of Civil Appeals there remanded the case instead of rendering judgment, we would have been compelled to respect its judgment to that extent and could not have affirmed the trial court judgment.’ ”

Here the Court of Civil Appeals did not remand, but rendered judgment for the defendants on the facts; in differing with that court upon the question of law as to the effect of the evidence, we are therefore authorized to affirm the judgment of the lower court without trenching upon the authority of the Court of Civil Appeals, and accordingly recommend that the judgment of the Court of Civil Appeals be reversed, and that of the district court be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals.