author: PLEASANTS, O. J.

text:
    COOK v. BAYNE et al.
    No. 9537.
    Court of Civil Appeals of Texas. Galveston.
    March 13, 1931.
    Rehearing Denied April 16, 1931.
    W. A. Oook, of Groveton, pro se.
    C. H. Grow, Max M. Rogers, and1 Hayne Nelms, all of Groveton, for appellees.
   PLEASANTS, O. J.

This suit was brought by appellant against Ross Bayne and a number of other individual defendants to recover damages for the alleged wrongful impounding and sale of cattle belonging to appellant, for injuries to a cow belonging to appellant causing her death, and for the destruction of a mulberry tree claimed by appellant to have been situated and growing upon his premises.

The cause of action upon which the suit is based is thus alleged in plaintiff’s third amended petition upon which the case was tried:

“For cause of action, plaintiff represents that the unauthorized (under the law or authorized) ‘City of Groveton’ by and through the other defendants mentioned heroin, except Ross Bayne and J. E. Hall, have at various times in the town of Groveton, during 1926, the exact dates being unknown to the plaintiff, empounded the plaintiff’s cattle, and did on June 20, 1926, in Groveton, Texas, compel him to pay out $4 to obtain possession of same; that a short time before June 20, 1926, in Groveton, Tex. at a date better known to defendant, and not exactly within the knowledge of the plaintiff, during 1926 said defendants did unlawfully and carelessly kill one of the plaintiff’s young cows and unborn calf; that on the 27th day of July, 1926, the said defendants did unlawfully sell three (3) of the plaintiff’s cattle to defendant Ross Bayne, and the said Bayne has sold, destroyed or completely disposed of the same so unlawfully, that said defendants, the' exact date being unknown by the plaintiff, did during 1926 send several men upon the plaintiff’s premises, in the town of Groveton, without permission of the plaintiff, did break the plaintiff’s fence down and did cut down and dqstroy the plaintiff's large bearing mulberry tree;
“That said unauthorized (under the law) or authorized City of Groveton by and through J. E. Hall and S. M. Mathews did on Sept. 25, 1928, empound some 21 head of the plaintiff’s cattle and exact or compel the plaintiff to pay it or them the sum of $28 before possession was surrendered to the pláintiff;
“That defendants have thus harassed this plaintiff, causing him the great losses and injuries, mentioned above; and whereas the County Attorney and District Attorney refused to institute proceeding in the nature of • ‘Quo warranto’ at the request of this plaintiff, and whereas the Courts refused to permit the plaintiff to question the powers or existence of the unauthorized (under the law) or authorized City of Groveton, and whereas through its agents, said unauthorized or authorized City of Groveton did continue and threaten- to indefinitely continue to empound the plaintiff’s cattle, plaintiff was compelled to sacrifice his cattle raising industry.
“Plaintiff alleges that the town of Grove-ton has between two thousand and three thousand inhabitants and that the City of Groveton was not attempted to be set up over or enclude the town of Groveton, but only to enclude or be set up over that portion of the town of Groveton north of 'the W. B. T. & S. railroad which is about half of the town of Groveton.
“Plaintiff alleges that the unauthorized or authorized City of Groveton has not now and neyer has had any legal existence and that the other defendants herein well knew this, but that depending upon their influence with the County Attorney, and District Attorney to prevent Quo Warranto proceedings, and that peculiar and unreasonable rule of Courts, with the effect of law, that prohibits the mere citizen from questioning the legality or existence of an organization pretending to be a municipal corporation, the other defendants herein proceeded to commit the depredation upon the plaintiff above mentioned. Notwithstanding this, plaintiff alleges that the defendants pretending to act for or under the authorization of the unauthorized or authorized -‘City of Groveton’ are themselves responsible in damages, personally, for all injury and damages caused this plaintiff.
“Plaintiff alleges that by reason of said lawless acts of defendants he has been damaged in amounts as follows, to-wit:
“1st. Killing cow and unborn calf — $75
“2nd. Payment 1st time to get possession of cattle $4 pound pen charge.
“3rd. Sale of three cows to Ross Bayne — • $225
“4th. Payment 2nd time for possession of cattle — $28 pound pen charge.
“5th. Destroying mulberry tree of plaintiff —$200
“6th. Sacrifice of cattle raising industry— $500
“7th. Harassing and worrying plaintiff— $500
“C. H. Kenley pretended to be acting as Mayor for the unauthorized or authorized ‘City of Groveton’ and was succeeded by B. E. Hall, a short time before the last mentioned trespass was committed upon the plaintiff’s cattle. The other defendants herein mentioned, except Ross Bayne, pretended to be acting as aldermen for said ‘City of Grove-ton.’ This pretention of being an officer or agent for an unauthorized or authorized and unrecognized ‘City of Groveton’ does not relieve them from personal liability.
“Wherefore plaintiff prays that defendants be cited to answer this petition and that he have judgment for his actual damages as aforesaid and exemplary damages in amt of $1000 against said pretended unauthorized or authorized ‘City of Groveton’, and for such other and further relief as he may be entitled to either .in law or equity.”

The individual defendants, and the city of Groveton, answered this petition by a general demurrer and special exceptions, the nature of which, as far as deemed necessary in the decision of the questions presented by the record, will be hereinafter indicated, by a general denial, and by the following special pleas:

“1. If said plaintiff’s cattle were impounded as alleged in said Amended Petition, and if said cow and unborn calf died while in the pound as alleged by said plaintiff, then said defendants show to the court that the City of Groveton is a duly and legally incorporated city under the general laws of the State of Texas in such cases made and provided, and was so incorporated at each and. all of the dates as charged in said Amended Original Petition, and had been duly incorporated as the laws of Texas provide for several years prior to the acts of tort charged in said petition by said plaintiff.
“2. That if said cattle were taken and impounded as alleged by plaintiff, the same was done by the duly elected and qualified marshal, S. M. Mathews, of said City of Groveton, under an ordinance duly passed by the City Council of said City at a regular meeting thereof held in the City of Groveton. on the 2nd day of January, 1923, which was long anterior to the dates of the alleged torts, and duly declared and published as required by law as an ordinance of said City of Groveton, said ordinance having been passed as aforesaid after the same had been submitted to the vote of the electors of said City of Groveton at an election held within said city for such purpose, resulting in a large majority vote in favor of restraining cattle from running at large within said city, which ordinance provides that on and after the 1st day of February, 1923, it shall be unlawful for any person, firm- or corporation, owning or controlling any cattle, to allow the same to run at large within the city limits of the City of Groveton; that it shall be the duty of the marshal to take up any cattle running at large in any street, alley, open lot or other public place in the City of Grove-ton, and to impound the .same, and to thereafter sell the same at public auction after first giving notice of the time and place of such sale for five successive days by posting up written or printed notices thereof in at least three public places in said city, which notice shall contain a brief description of the animal or animals to be sold; that at any time prior to the sale thereof the owner may reclaim the same by making proof of ownership and paying to the marshal Fifty Cents for each of the cattle so impounded, twenty-five cents for posting notices of sale and twenty-five cents for each such animal for each day the same shall have been impounded ; that if such cattle are not reclaimed by the owner, said marshal shall sell the same at public auction to the highest bidder for cash.”

The answer then sets out facts showing that the impounding and sale of plaintiff's cattle was under and in full compliance with all of the provisions of the ordinance of the city of Groveton, and that the injury and resulting death of the cow alleged in the petition was not caused by any negligence of the city or any of its officers or agents. This answer further avers:

“5. That if said mulberry tree was cut down as alleged in plaintiff’s Third Original Amended Petition and in the manner therein stated, the same was done without the knowledge, approval or consent of the defendants herein, or of either of them; that if done, it was done by a firm of contractors known as Barker & Davis, composed of A. M. Barker and W. 0. Davis, who reside in Dallas County, Texas, under a contract entered into by and between said City of Groveton and said Barker & Davis, dated 17th day of March, 1926, whereby said Barker & Davis obligated themselves for a lump sum price to be paid to them by said City of Groveton to commence and complete the construction and installation of a practical water and sewer system for said City of Groveton, in accordance with plans and specifications referred to in said contract ; that by virtue of said contract, which will be offered in evidence, said Barker & Davis agreed to construct and install said water and sewer system for the City of Groveton, laying all stipulated pipe lines and sewer lines into, across and along the streets of said City of Groveton, at their own proper cost and expense, both as to material- and labor, said Barker & Davis agreeing to furnish all tools, materials, equipment, labor and other accessories necessary thereto, with full power to employ and discharge their own labor, for which, when finally completed, said City of Groveton agreed to pay said Barker & Davis $47,780.25; that by reason of said contract, said defendants and said defendant City of Groveton relinquished to said Barker & Davis the selection of all hands, machinery, tools,- materials, and equipment, and the management and control of the manner of doing said work, and said Barker & Davis assumed and exercised all of the same with full and absolute power of control, management and manner of operation in the construction and installation of said system, except said plant was to be installed according to said plans and specifications within seventy-five working days to the full satisfaction of said defendant City of Groveton; that under said contract said defendants reserved no rights, and exercised none, to interfere with the means and methods that said contractors, Barker & Davis, might decide to employ in the construction1 and installation of said system ; that by reason thereof said Barker & Davis and said defendants the rule of re-spondeat superior does not apply, and that said Barker & Davis are alone responsible in damages, if any has been sustained, to said plaintiff; that said mulberry tree was situated in one of the streets of said City of Groveton, and in digging the ditches along the streets of the City of Groveton, and along said street wherein said mulberry tree was growing, said Barker & Davis used and employed a large ditching machine, and that said ditching machine could not pass along said street and build the necessary ditch in which to lay the required pipes in the .installation of said system, without removing said tree from said street.”

It is further averred in the answer, in substance, that the mulberry tree, for the destruction of which plaintiff claims damages, was situated in a street of the city which had been used by the public with the acquiescence of the plaintiff for more than twenty years as a public street or thoroughfare of the town and city of Groveton, and that" the defendant city had acquired by prescription the right and title thereto as a street of the city.

The defendants further pleaded the statute of limitation of two years against all of plaintiff’s claims for damages.

The general demurrer and all of defendants’ special exceptions, except those questioning the right of appellant in this suit to attack the legality of the corporate existence of the cify of Groveton were overruled. The court, after hearing the evidence,'instructed the jury that had been impaneled to try the issues of fact, to find a verdict for the defendants.

As we understand appellant’s brief, his first and main complaint is that the trial court erred in sustaining defendants’ special exceptions to the allegations of his petition attacking the legality of the incorporation of the city of Groveton.

The undisputed evidence shows that the city of Groveton was a de facto municipal corporation, and had been organized and acting as such for several years before this suit was brought. In this situation, it is well settled that the legality of the corporation’s organization cannot be collaterally attacked, but can only be called in question in a quo warranto proceeding instituted in the name of the state by a proper representative of the state. Higgins et al. v. Bordages (Tex. Giv. App.) 28 S. W. 350; Brennan v. Weatherford, 53 Tex. 330, 37 Am. Rep. 758; Graham v. City of Greenville, 67 Tex. 62, 2 S. W. 742; City of El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25.

This conclusion disposes of all of plaintiff’s claims for damages against the city of Groveton and its officers and agents for the impounding, collection of impounding fees, and the alleged sale of plaintiff’s cattle in compliance with the ordinances of the city.

The only remaining claim presented by plaintiff’s petition is for the destruction of the mulberry tree claimed to . have been owned by him. The trial court instructed the jury to find against plaintiff on this claim upon two grounds: First, because the tree was cut down by an independent contractor for whose acts the city of Groveton could not be held liable; and, second, because plaintiff’s suit against the city was not* filed until more than two years after the destruction of the tree. Appellant’s brief does not set out or refer to any evidence showing, or tending to show, that the trial court was not justified in both of these holdings.

These conclusions require an affirmance of the judgment, and it has been so ordered.

Affirmed.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    WINGFIELD v. POOL et al.
    No. 9538.
    Court of Civil Appeals of Texas. Galveston.
    March 19, 1931.

      Winfree & Weslow, F. F. Beadle, Dick Young, and W. A. Shields, all of Houston, for appellant.
    P. Harvey and S. O. Lovej'oy, both of Houston, for appellees.
   GRAVES, J.

This appeal regularly proceeds from a judgment of the Sixty-First district court of Harris county, rendered pursuant to the return of a verdict it had instructed for the appel-lees, whereby appellant’s claim to having been the common-law wife of Charles Wingfield at the time of his death—hence entitled to share as such in the estate he left—was denied, and appellees were found to be the share-and-share-alike owners of such property, by virtue of being his sole surviving heirs at law; he having died intestate in Harris county, Tex., unmarried, and without issue.

Inveighing here against that action below, appellant urges error on the part of the trial court in three main particulars: First, in peremptorily instructing a verdict against her on the issue of whether or not she was the common-law wife of Charles Wingfield when he died; second, in.excluding from the evidence a certain divorce decree from the court of chancery in Jasper county, Miss., offered by her to show divorce between herself and her former husband, Robert Jones, and capacity on her part to consummate a common-law marriage with Charles Wingfield; third, in refusing to hear proof tendered relative to the claimed validity of that divorce decree.

If the evidence offered in her behalf upon that question—disregarding all that was adverse and all conflicts, however, strong, and indulging in its favor every legitimate conclusion reasonably inferable therefrom— raised an issue of fact over whether appellant was the common-law wife of Charles Wing-field at the time of his death, the withdrawal of the cause from the jury was error. Win-inger v. Railway Co., 105 Tex. 56, 143 S. W. 1150; Texas & P. Ry. Co. v. Cox, 145 U. S. 593, 12 S. Ct. 905, 36 L. Ed. 829; Brown v. Griffin, 71 Tex. 654, 9 S. W. 546; Texas & P. Ry. Co. v. Ball, 96 Tex. 622, 75 S. W. 4; International & G. N. Ry. Co. v. Tinon (Tex. Civ. App.) 117 S. W. 936.

After a careful examination of the statement of facts in the light of that rule of law, we think it plain that the issue was raised, if, indeed, the fact of her being such common-law wife did not conclusively appear.

The learned trial court, in holding otherwise, seems from the recitations in the decree to have labored under the same view the appellees present in their brief, to wit, that it was necessary by direct evidence to show “an agreement between the parties to become, then and there, husband and wife, followed by co-habitation and holding out to the public as such,” whereas the true rule is: “Independent of any direct or documentary evidence, a marriage may be circumstantially established by the fact that a man and' woman have for a considerable period of time openly cohabited as husband and wife and recognized and treated each other as such so that they are generally reputed to be married among those who have come in contact with them. Such circumstances justify a finding that at the commencement of the cohabitation the parties actually entered into a marriage, but, although they justify such a finding, they do not necessarily lead to or demand it.” 38 Corpus Juris, 1338. See also Edelstein v. Brown (Tex. Civ. App.) 95 S. W. 1126, affirmed in 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816; Clover v. Clover (Tex. Civ. App.) 247 S. W. 300; Winters v. Duncan (Tex. Civ. App.) 220 S. W. 219; Walton v. Walton (Tex. Com. App.) 228 S. W. 921; Brooks v. Hancock (Tex. Civ. App.) 256 S. W. 296.

In this instance appellant herself being unable, on account of the interdiction of R. S. article 3716—this being an action against Charles Wingfield’s administrator—to testify as to whether or not she had made such an agreement with the deceased during his lifetime, many witnesses testified in her behalf that she and he had lived together in the same house for something like two years before he died; that he had established for her as his wife a line of credit at the grocery store; that he had introduced her to numerous people as his wife; that they attended moving picture shows together in company with married friends of theirs; and that she was generally known in the community as Mrs. Wing-field.

To this she herself added, without objection, that at the time she thus lived with Wing-field she had been divorced from her prior husband.

This evidence alone, to make no attempt to even recapitulate its extended details, especially when given the benefit of all reasonable inferences and intendments, was clearly sufficient to take to the jury the question of whether or not the declared-upon common-law marriage, inclusive of the necessary agreement between the parties to enter into it; existed. Walton v. Walton (Tex. Com. App.) 228 S. W. 921; Burnett v. Burnett (Tex. Civ. App.) 83 S. W. 238; Texas Employers’ Insurance Ass’n v. Soto (Tex. Civ. App.) 294 S. W. 639.

Appellant’s other two contentions also should be sustained, we conclude; that is, in the circumstances, the copy she offered of the purported decree of the chancery court of Jasper county in the state of Mississippi, reciting the divorce of herself from her former husband, Robert Jones, as well as her proffered proof of the law of that state tending to establish the validity thereof, should both have been received. It is true she had not pleaded what the law of Mississippi on this subject was, but that was unnecessary, in view of the incidental way in which the matter arose during the trial; she had alleged a complete cause of action in declaring that she had been the common-law wife of Wing-field at the time of his death, and, prima facie at least, had established it in presenting the testimony concerning cohabitation above referred to; in cross-examination by her adversaries it was brought out that she had previously been married to Jones, thereby raising some question as to whether or not the subsequent relationship with Wingfield could have amounted to a legal marriage; this being merely an evidentiary issue, she could rebut it without prior pleading, under the principle thus stated by Mr. Freeman: “Whether or not the sister state law must be alleged would seem to depend upon the manner in which the effect of the judgment is presented and relied upon. Thus where it is merely evi-dentiary matter tending to sustain or defeat a cause of action, there is no reason why it should not be governed by the ordinary rule that .evidentiary facts shall not be pleaded.” Freeman on Judgments (4th Ed.) § 1390.

The Mississippi court was one of record, its duly certified decree of divorce, which came here authenticated in all respects as required by the act of Congress appertaining- to its use in another state, was on its face valid for such portent, wherefore, as we read the authorities, including the Texas case of Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606, in the absence of proper proof of what the law of Mississippi was concerning actions for divorce, the Texas courts should presume that it authorized the rendition of such judgment, that the court of the sister state had jurisdiction, and that its proceedings were legal. Western Assurance Co. v. Walden, 238 Mo. 49, 141 S. W. 595; Lieber v. Lieber, 239 Mo. 1, 143 S. W. 458; Reis v. Epperson, 143 Mo. App. 90,122 S. W. 353; Russell v. Butler (Tex. Civ. App.) 47 S. W. 406; McHatton v. Rhodes, 143 Cal. 275, 76 P. 1036, 101 Am. St. Rep. 125; Dodge v. Coffin, 15 Kan. 285; Droge Elevator Co. v. Brown, 172 Iowa, 4, 151 N. W. 1048; Robinson v. Freeman, 236 Mass. 446, 128 N. E. 718; Howard v. Strode, 242 Mo. 210, 146 S. W. 792, Ann. Cas. 1913C, 1057; Haddock v. Haddock, 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1.

Under the rationale of the holdings cited, this presumption was not overcome to the extent of rendering the foreign judgment inadmissible in evidence, by simply showing, as the appellees in objecting to its receipt did in this instance through like certified and au-' thenticated copies of proceedings in the Mississippi case, that what would have been requisite for a divorce under the Texas law was not complied with in a number of particulars,'to wit, among others:

“(a) The record showed that the plaintiff in the purported judgment had not resided in the County, wherein the suit was filed, for six months next preceding the filing of the suit; * * *
“(d) That it affirmatively appeared from the record that the suit was tried within thirty days from the date the suit was filed;
“(e) That the citation, as issued in the suit, did not state the cause of action nor the number of the- suit.”

They did not go further and show what the law of Mississippi was, nor that it did not authorize just what was done, but relied upon a claimed presumption that it was the same as that of Texas; upon appellant’s offer to then additionally prove — both by means of accredited books and competent attorneys of that state — that the entire proceedings so tendered were in compliance with the Mississippi law, this proof, together with the judgment, was excluded, and the peremptory instruction against her followed.

Irrespective of where the burden of proof lay as to establishing what the Mississippi law was, appellant affirmatively offered to show it, and thus under the facts and the law having a right involved that depended upon it rather than the Texas law, should have been permitted to prove it.

Further discussion is deemed unnecessary, since these conclusions determine the merits of the appeal; the judgment has been reversed, and the cause remanded for another trial.

Reversed and remanded.


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

text:
    THOMPSON v. FIRST METHODIST EPISCOPAL CHURCH OF DALLAS.
    No. 1258-5646.
    Commission of Appeals of Texas, Section B.
    May 16, 1931.

      Niblo & Dodd, of Dallas, for plaintiff in error.
    Tom C. Clark and Thompson, Knight, Baker & Harris, all of Dallas, for defendant in error.
   SHOET, P. J.

The opinion of the Court of Civil Appeals in this case is reported in 22 S.W.(2d) 346, wherein that court reversed the judgment of the trial court, which rendered judgment in favor of the plaintiff in error, and remanded the cause for another trial, on the ground that the evidence was insufficient, under the law, to show that the defendant in error had notice of the agreement between the plaintiff in error and Fred' W. Cathey, by the terms of which Cathey agreed to pay to the plaintiff in error one-third of the commissions he might receive in the event Cathey succeeded in making a sale of property belonging to the defendant in error.

The defendant in error, a private corporation, in the month of November, 1925, and previous thereto, owned a parcel of land situated in the city of Dallas, at the southeast corner of the intersection of Harwood and Eoss avenue, on which was situated a brick structure known as the First Methodist Episcopal Church of Dallas, Tex., which property it desired to sell, and finally did sell to another church, known as the Abbey Presbyterian Church, the price paid being $125,000. This sale was effected under and by virtue of a contract made with Fred W. Cathey, a real estate agent, who was to receive, and in fact did receive, as his commissions, the sum of $5,000, one-half of which was paid in the month of December, 1925, and the remainder of which was paid about the 1st of March, 1926. There is no controversy between the plaintiff in error and the defendant in error about the sum of money the latter was due to pay for the services rendered in procuring a purchaser for its property. However, this controversy has arisen by reason of the fact that the plaintiff in error clfiims that, before the defendant in error paid Cathey the second installment of $2,500, as the procuring agent of a purchaser of its property, the plaintiff in error had notified it that there was an agreement between Cathey and the plaintiff in error that whatever commissions Cathey might receive for these services should be divided on the basis of one-third to the plaintiff in error and two-thirds to Cathey and one White, with whom Cathey was doing business as a real estate agent, and that, notwithstanding this notice, the defendant in error paid Cathey, who was allcged^o be insolvent, all of said $5,000, and that, having so paid him, with notice of the claim of the plaintiff in error to participate in the fund, the defendant in error, in view of Cathey’s insolvency, was liable to pay the plaintiff in error one-third of said fund so wrongfully paid to Cathey.

The case was tried to a jury upon two special issues only, no other having been requested by either party, and the jury answered issue No. 1 in the affirmative, to the effect that there was an agreement between the plaintiff in error and Cathey, under the terms of which Cathey agreed to pay the plaintiff in error one-third of the commissions he might receive, in the event Cathey should succeed in making a sale of the property belonging to the defendant in error, and also answered in the affirmative issue No. 2, to the effect that the •board of trustees of the defendant in error had notice of such agreement before it made the final payment to Cathey of the commissions agreed to be paid. Judgment was entered in accordance with these answers. Cathey, against whom judgment was rendered, did not prosecute any appeal from that judgment, but the defendant in error did, with the result above stated.

While the record is'voluminous and several propositions are presented, we think the case, as made by the record, presented by the application for the writ of error, must, depend upon the legal sufficiency of the testimony to support the answer of the jury, to the effect that the board of trustees had notice of the agreement which the jury found had been made between the plaintiff in error and Cathey to divide the commissions Cathey might earn in procuring the sale of the property before said ■board of trustees made final payment to Cath-ey of said commissions.

Before entering upon a discussion of this question, wo deem it proper to say that the record discloses, without contradiction, under the unchallenged facts found by the jury, that the defendant in error occupied the position of a stakeholder, having in its possession the sum of $5,000, which, up to the time it received notice from the plaintiff in error of a claim to a part of said fund, it was under the obligation to pay to Cathey, as commissions, for services rendered in procuring the sale of its property. The testimony tending to show notice of the claim made to a part of this fund was partly in the form of two letters, one dated November 24,1925, and the other February 26, 1926, the latter date being previous to a final payment of said commissions by the defendant in error to Cathey. Since these letters are set out in the opinion of the Court of Civil Appeals, we will only give the substance of them.

• The letter dated November 24, 1925, stated that the plaintiff in error had received from the defendant in error’s representative the price it was willing to accept for the property, and that, after receiving this information, the plaintiff in error offered the property for this price to the representative of the Abbey Presbyterian Church, in effect claiming that the plaintiff in error had acted by authority of the defendant in error in offering the property for sale at the price mentioned to the Abbey Presbyterian Church through its representative, which afterwards bought the property at that price, and stating, in effect, that he expected the defendant in error to pay him a commission which was just and right.

The letter dated February 26, 1926, in effect, stated that it was through the plaintiff in error that Cathey had obtained his data regarding the property belonging to the defendant in error, and also the name of the purchaser, who afterwards purchased the property, and it notified the defendant in error not to pay all of Cathey’s commission without first satisfying his claim. Among other allegations of the petition was one of the existence of a custom in the city of Dallas, among real estate agents and property owners, that if a person, who is regularly engaged in such a business, as the plaintiff in error is shown to have been, found a purchaser for an owner’s property which was on the market for sale, and put such purchaser in touch with the owner, and the sale was thereby effected, the owner became liable for said agent’s commission, the amount of which is also alleged to have been, by custom, fixed at 5 per cent. The petition also contained the further allegation that the general rule among real estate agents in the city of Dallas was that, when one agent obtained the listing of a piece of property, and was directed to find a purchaser for same, and engaged another agent to help him in such sale, the commissions earned on said sale were equally divided, but that in this instance the agreement was that the plaintiff in error should receive only one-third, the other two-thirds to be divided between Cathey and an associate of the latter. These allegations were established by uncontradicted testimony, the sufficiency of which is not challenged.

In addition to the two letters above mentioned, the execution and reception of which were acknowledged by the defendant in error, the record contains other testimony tending to show that the defendant in error had notice of the plaintiff in error’s claim to some interest in this fund, though the testimony on this subject is meager, and yet the jury were entitled to give it whatever weight they saw proper. The plaintiff in error testified that he solicited from the president of the board of trustees of the defendant in error the right to sell this property, and from another authorized agent of the defendant in error he was granted the privilege of selling it, and that this particular member of the board authorized him to offer it for sale at $125,000, which' is the price the defendant in error finally received for it; that, after receiving this authority, he had an interview with the pastor of the Abbey Presbyterian Church suggesting that the Presbyterian Church buy this property at this price, and afterwards he made the agreement with Cathey to continue negotiations with the Presbyterian Church, which the testimony shows Cathey afterwards did, and finally succeeded in selling the property of the defendant in error to the Presbyterian Church for the sum of $125,000. These letters and this testimony, in the light of the further facts shown by the record, without dispute, show that the defendant in error had been discussing, for several months previous thereto, the advisability of selling this property, of which discussion the plaintiff in error is shown to have had actual knowledge, and that it had made divers and sundry efforts to find a real estate agent who would be able to effect a sale.

The Court of Civil Appeals, in its opinion, in effect holds that the testimony in support of the allegation that the defendant in error had notice of the plaintiff in error’s claim to a part of the. fund it had in its hands, and which it paid to Cathey as commissions, for procuring a purchaser for its property, was legally] insufficient to put a reasonably prudent man] upon inquiry, which, if pursued by proper diligence, would have resulted in a knowledge of the fact that the plaintiff in error had a just claim to one-third of this fund. In support of this conclusion, the Court of Civil Appeals cites the case of Skobis v. Ferge, 102 Wis. 122, 78 N. W. 426, which holds, in effect, that, “in order to substitute a new creditor so as to make the debtor liable, to the assignee, the fact of such substitution must be brought home to the debtor with much exactness and certainty before he has paid the debt.”

The first proposition of the plaintiff in error, under the first assignment of error, is in this language; • “While the burden of proof rests upon the assignee or a joint owner of a nonnegotiable claim to establish notice to the debtor of the assignment or joint interest, at the time of settling with the original creditor; he is only required to prove some fact indicating notice and any fact or circumstance, sufficient to put a man of ordinary prudence on inquiry, from which, by the exercise of proper diligence, he may ascertain the fact and sufficient proof, and what is sufficient proof is a] question of fact to be passed upon by the jury.” d

The unchallenged fact apparently supported upon sufficient proof, we have seen from the answer of the jury to issue No. 1, is that there was an agreement between the plaintiff in error and Cathey, under the terms of which Cathey agreed to pay the plaintiff in error one-third of the commissions he might receive in the event Cathey should succeed in making a sale of the property belonging to the defendant in error. The defendant in error, in effect, concedes that such an agreement existed between the plaintiff in error and Cathey at the time the defendant in error paid over the balance of the commissions in its hands, due for the services rendered in the procuring of a purchaser for the sale of its property. However, its contention is that the defendant in error had no sufficient notice of the existence of this fact. The Court of Civil Appeals having sustained this contention of the defendant in error, it reversed the judgment of the trial court and remanded the cause for another trial, apparently overruling all the other contentions made by the appellant in that court, who is the defendant in error' here, and, since the defendant in error has not presented any application for a writ of error, based upon the contention that the Court of Civil Appeals erred as to these other matters, we must assume that the defendant in error concedes the correctness of the conclusions reached by the Court of Civil Appeals in the rendition of its opinion. - \

Any faet or circumstance which is sufficient to put a reasonably prudent man upon inquiry, and which is of such a character that he might ascertain the true situation of the matter in controversy, by the exercise of proper diligence, will be regarded as a sufficient legal notice. West Realty Co. v. Hite (Tex. Com. App.) 283 S. W. 481, 483; Wichita Falls Electric Co. v. Chancellor & Bryan (Tex. Civ. App.) 229 S. W. 649, writ of error refused ; 5 C. J. p. 937; Elliott on Contracts, vol. 2, § 1446.

As said by Judge Speer, speaking for this section of the commission, in West Realty Co. v. Hite, supra, which was a suit brought by a real estate broker against the owner for a part of the commissions which the owner had become liable to pay to another broker: “It is more than an agreement by Blake to pay out of the commissions when received. This would not constitute an equitable assignment at all. It would be merely a personal promise to pay at last. 5 Cor. Jur. p. 913, § 80. Rather it is an agreement that the parties were to be joint owners of the commission when earned through a sale to a purchaser of plaintiffs in error’s procurement. The agreement in the light of the subject-matter and all the circumstances evidenced a present passing from Blake of all control over, or interest in, the fund to the extent of one-half, whenever it actually came into existence. Under that agreement the owners, without further action by Blake, would have been justified in paying to this extent directly to plaintiffs in error. * * * See 5 Cor. Jur. p. 914, note 35 (b).”

Inasmuch as the plaintiff in error was required to prove only some faet or circumstance indicating that the defendant in error had notice, at the time settlement was made with Cathey, that the plaintiff in error was making some claim to the fund, which the defendant in error acknowledged to be due some one, and inasmuch as these letters, especially in connection with the situation under which the letters were received, as shown by the oral testimony of the case on this subject, show that sufficient facts were brought home to the defendant in error to put-a reasonably prudent man upon inquiry as to the truth of the situation, we are of the opinion that there is ample testimony to support the findings of the jury in answer to issue No. 2, to the effect that the board of trustees of the defendant in error had notice of the agreement, which the jury found existed between the plaintiff in error and Cathey, before it made final payment to Cathey of the commissions agreed to be paid for the services rendered.

The opinion of the Court of Civil Appeals holds, as a matter of law, that, viewing the testimony most favorably for the plaintiff in error, on the question of notice, said testimony was legally insufficient to impose upon it the duty to withhold that part of the fund it recognized to be due some one, for the services rendered in procuring a purchaser for its property, until it had made the inquiry which the law imposed upon it, as to the claim to a part of said fund, made by plaintiff in error, the existence of which claim is shown to have been a fact, since it appears that this fact would have been discovered by the defendant in error had it used proper diligence in pursuing said inquiry. It is our opinion that, in this holding, the Court of Civil Appeals committed an error, and we sustain the first assignment of error.

Since we believe that, under the testimony shown by the record, it was incumbent upon the trial court to submit to the jury issue No. 2, as it did, and that after receiving a reply that the defendant did have notice of plaintiff in error’s claim to a part of this fund, which was afterwards paid to Cathey, the man who had agreed with the plaintiff in error to divide the commissions with him, in the event the sale was effected of the property, the trial court properly entered the judgment it did.

Believing that the defendant in error was charged with the duty of withholding from Cathey the payment of the $2,500 it paid to him under the circumstances detailed, we recommend that the judgment of the Court of Civil Appeals be reversed, and that of the trial court affirmed.

CURETON, C. J.

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


author: CRITZ, J. CURETON, C. J.

text:
    SOUTHERN BAG & BURLAP CO. v. BOYD, Judge.
    Motion No. 9532; No. 5921.
    Commission of Appeals of Texas, Section A.
    May 16, 1931.
    Fulbright, Crooker & Freeman, of Houston, for relator.
    Ewing Boyd, Sewell Myer, and Lewis Fisher, all of Houston, for respondent.
   CRITZ, J.

This is a mandamus proceeding brought by Southern Bag & Burlap Company, a corporation, hereinafter designated relator, against the Honorable Ewing Boyd, judge of the district court of the Fifty-Fifth judicial district of Harris county, Tex., hereinafter designated respondent. It seems from the record before us that King and Perkins, hereinafter designated plaintiffs, sued relator in the district court of Harris county, Tex., for an alleged indebtedness due by relator to the plaintiffs.

We gather from the record in the instant proceeding that in the suit above referred to the ' plaintiffs are suing relator for certain commissions alleged to 'be due them by relator on the sale of certain products manufactured and sold by relator.. The claim for commissions is based upon an alleged written contract dated March 20, 1926, wherein plaintiffs are made the agents of relator to sell certain products belonging to it in a certain designated territory. It is alleged by the plaintiffs that they have in all things complied with the contract, but that relator has failed and refused to pay them the commissions earned thereunder.

It is also alleged by plaintiffs that relator is in possession of all books and records containing all information relative to such sales, and showing the 'amount of commissions earned by the plaintiffs, and that the plaintiffs have no records of such sales, or means of showing the items and amount of commissions earned by them except the 'books and records of the relator. It is also alleged that it was the duty of the relator, under the contract, to keep such books, records, and data for the mutual benefit of both the plaintiffs and the relator, and that only the relator could have made or kept a record of' such sales. In this connection it is alleged that the relator at all times understood that it was being depended upon by plaintiffs to keep a complete and accurate account of all such sales.

Plaintiffs also alleged in their petition certain sales upon which plaintiffs were entitled t-o commissions, and further alleged that by reason of the failure and refusal of relator to permit plaintiffs to see the records of sales made by relator, plaintiffs are unable to state more in detail the names, addresses,- parties, or persons so purchasing the products of relator, or the dates of such purchases. It is also alleged that the plaintiffs have made demand on relator for an accounting- with reference to the sales on which plaintiffs are entitled to commissions, 'but that the relator has refused to give them any information with reference to such sales or to make any such accounting.

It is also shown that after the filing of the suit in the district court, and after the service of citation therein, and after relator had answered, the attorneys representing the plaintiffs made various efforts to get the information and data with reference to the sales above mentioned. Also they made various efforts to take the oral deposition of the relator’s officers, agents, and bookkeepers. In this connection it is shown that various efforts have been made to get access to the books of the relator by having them brought before a notary public and otherwise. All of these efforts have ended in failure.

In this condition of affairs the plaintiffs filed in the district court of Harris county, Tex., in the original cause of King and Perkins v. Southern Bag & Burlap Company, the following application:

“Comes now the plaintiffs C. C. King and M. R. Perkins, doing business under the name and style of King & Perkins, and represents to this Honorable Court as follows:
“That they have heretofore and since the institution of this suit attempted by agreement of parties through their respective Attorneys of Record to take the Depositions of certain witnesses in this case, to-wit: J. M. Johnson and B. Bateman. That heretofore, to-wit: about the middle of February, 1931, and subsequent to the filing of this suit Counsel for Plaintiffs approached Counsel for Defendant Southern Bag & Burlap Company and advised them that they desired to take the Depositions of the witnesses hereinbefore named and that they would need present at the taking of said Depositions certain books and records of the Defendant Company which Counsel for Plaintiff described to Counsel for the Defendant.
“That Counsel for the Defendant consented to the taking of said Depositions by agreement and it was decided between Counsel for plaintiff and defendant that it would therefore not 'be necessary to issue a Commission for the taking of said Depositions since Counsel for Defendant agreed to have present at the taking of said Depositions the witnesses above named, together with the books, records, etc., above referred to. That Counsel for Plaintiffs, in order to prevent any error or mistake being made as to the papers, books, records, etc. which they desired to.have present at the taking of such Depositions, wrote Defendant’s Counsel letters setting forth the papers, books, records, etc. needed at the time and place of the taking of the Depositions.
“That after several efforts to agree upon a convenient date for the taking of said Depositions Counsel for both parties finally agreed upon March 2, 1931, at 2 o’clock P. M. in the office of Fulbright, Crooker & Freeman in the State National Bank Building, Houston, Texas.
“That a few hours before the time so fixed for the taking of said Depositions one of Plaintiff’s Counsel, to-wit: Dewis Fisher, called on the telephone one of Defendant’s Counsel, to-wit: J. H. Crooker and asked if everything would be in readiness at 2 P. M. on March 2d, 1931, to take said Depositions as agreed. The said Crooker replied that it would be. Counsel for Plaintiffs, relying upon said agreement and believing that Defendant’s Counsel had made said agreement in good faith, and that they intended to comply therewith did appear, together with their clients and the Notary Public theretofore agreed upon, at the office of Fulbright, Crook-er & Freeman in the State National Bank Building at 2 P. M. on March 2nd, 1931, ready and prepared to take said Depositions under said agreement.
“That after Plaintiffs, the Notary Public and Plaintiffs’ Counsel were seated in the offices of Fhlbright, Crooker & Freeman and after all preparations had been completed for the taking of said Depositions by agreement, one of Defendant’s Counsel, to-wit: W. B. Bates, for the first time then stated to Plaintiffs and to Plaintiffs’ Counsel that they as Attorneys for the Defendant Southern Bag & Burlap Company had decided to decline to produce any of said books, papers, records, etc., above referred to for the purpose of being used in connection with the taking of said Depositions.
“That said Bates further stated that the books and x’ecords above referred to had been turned over to some Auditor whose name he declined to disclose. The said Bates did not state the purpose or reason for said books, records and papers being delivered to said Auditors.
“Thereupon Plaintiffs’ Counsel remonstrated with the said Bates, stating he should at least have advised them at an earlier date if he did not intend to comply with his agreement and thereby saved Plaintiffs’ Counsel and the Plaintiffs from being placed in this situation and position.
“The said Bates then stated that they as Counsel for the Defendant did not think that Plaintiffs had any right ,to either see or examine said hooks, records, papers, etc. or to use them for any purpose in connection with the-trial of said ease or the taking of said Depositions and the said Bates further stated that they could not then or at any future time produce said books, records, papers, etc. either at the trial of this case or before any Notary Public taking testimony in this ease. Said Bates further stating that they would not produce said books, records, papers, etc., before any Notary Public even though Subpoena Duces Tecum was served, giving as his reason theréfor that in his opinion the Plaintiffs’ pleading was not sufficient to sustain any Notary Public in the issuance of such Subpoena.
“That after the failure to have said Depositions taken by agreement Plaintiffs thereafter, through their Attorneys of Record, served the Defendant Southern Bag & Burlap Company and its Attorneys' of Record, Fulbright, Crooker & Freeman with notice of their intention to take the Depositions in this ease of certain witnesses whose names were set out in said Notices. That the following is a substantial copy of the notice so served on Defendant and its Attorneys, to-wit:
“ ‘March 3, 1931.
“ ‘Fulbright, Crooker & Freeman,
“ ‘Attorneys of Record fur Southern Bag & Burlap Company,
“ ‘Houston, Texas.
“ ‘Gentlemen:
“ ‘Yo,u are hereby notified that in Cause No. C-19i;746, styled King & Perkins vs. Southern Bag & Burlap Company pending in the District Court of Harris County, Texas, for the' 61st Judicial District, the Oral Depositions of the witnesses N. D. Anderson, W. L. Clayton, C. E. Shipp, J. Y. Scott, J. M. Johnson and D. Bateman will be taken by King & Perkins, Plaintiffs in the above styled and numbered cause before Gavin Ulmer, a Notary Public in and for Harris County, Texas, at ten o’clock on March 18th, 1931, in Suite Number 1100, Room No. 1103 of the Scanlan Building, which Building is situated at the corner of Main Street and- Preston Avenue in Houston, Texas.
“ ‘You are further notified that request for a Commission to take these Depositions will be made in due and legal time.
“ ‘Yours very truly,
“ ‘[Signed] Lewis Fisher “ ‘[Signed] Sewall Myer “ ‘Attorneys for Plaintiffs, King & Perkins.’
“That a like notice was served upon the Southern Bag & Burlap Company, Defendant herein. That said Notices were served upon the Defendant and its Attorneys of Record on March 3, 1931, as is shown 'by the return of the Constable on the back of said notices.
“Plaintiffs further represent that they are making request upon the Clerk of this Court for the issuance of a Commission to take the depositions of the witnesses named in the said above referred to Notice and that upon the issuance of said Commission the same will be placed in the 'hands of Gavin Ulm.er, a Notary Public in and for Harris County, Texas, for the purpose of taking said Depositions.
“Plaintiffs further say that they are informed and believe and so -allege the fact to be that said witnesses, all of whom are agents, officers or employees of the Defendant Corporation or the owners or in control of Defendant Corporation will decline and refuse to produce before said Notary Public for examination or for use in connection with the taking of the testimony of said witnesses the hereinafter described books, records, correspondence, etc. That all of said books, records, correspondence, ete. are necessary and useful in the taking of said Depositions and without which books, records, correspondence, etc. -the testimony in this case cannot be properly taken or the facts and evidence in this case properly and fairly developed 'before this Court.
“That these books and records contain or should contain information, data and facts necessary to a fair and proper decision of this case by this Court. That said records, books, correspondence, ete. are or should be in the possession of the Defendant Corporation or its Agents, servants or employees.
“That these records were prepared and kept by the Defendant Corporation and are so far as these plaintiffs know and believe, the only books, records, correspondence, etc. that contain or should contain all of the data and facts necessary and proper to the development of the evidence and facts -in this case.
“That the Defendant, under the facts pleaded in this cause, owes to the Plaintiff the duty of fully and fairly disclosing all evidence, testimony and facts in .connection with the matters pleaded in Plaintiffs’ Petition herein. The Plaintiffs say that instead of making a full and fair disclosure of these facts the Defendant, its agents, servants and employees are unfairly and fraudulently, for the purpose of concealing the real facts and evidence in this case and for the purpose of interfering with the proper disposition of this case, refusing and failing to disclose said facts and evidence and they seek to cover up and conceal the facts and evidence which equity, honest dealing, fairness, good conscience and the proper proceedings in this case demand of said Defendant, its agents, servants and employees. Plaintiffs further say that said Defendant, its servants, agents and employees should disclose all of these matters to Plaintiffs, certainly .under t'he proper process provided by law but Plaintiffs say that they are seeking to conceal all of said facts and the evidence, in an effort to prevent full and fair justice being done to these Plaintiffs in this case.
“Plaintiffs say they have reason to believe and do believe that the servants, agents and employees of Defendant will either destroy some or all of said books, papers, records, ete. or remove them without the jurisdiction of this Court.
“Plaintiffs further say that said books, records, correspondence, etc. are voluminous, complicated and technical. That to properly analyze said books, records, etc., and to determine the true facts reflected by them which bear upon, -cover and embrace the facts and evidence in connection with the matters involved in this case will require a careful, complete and full examination of said records, books, correspondence, etc., by Plaintiffs and by Plaintiffs’ attorneys and by Plaintiffs’ Accountants, prior to the trial of this Cause.
“That said examination of said books, records, correspondence, etc. by Plaintiffs, their Attorneys and Accountants is also necessary before tbe taking of the Depositions above • referred to, in order that the testimony and facts in this case may 'be fairly, properly and clearly developed by said Depositions.
“That said books, records, correspondence, etc. above referred to are more particularly described as follows: (Here follows description.)
“Wherefore the above premises considered Plaintiffs pray that notice be served upon the Defendant to appear before this Court on the--— day of March, 1931, at nine o’clock A. M. and answer this Application. Plaintiffs further pray that a hearing of this Application be had at said hour on said date and that upon a 'hearing of this Application that an Order be entered by the Court in this Cause commanding and requiring the Defendants and its agents, servants and employees, including O. E. Shipp, J. M. Johnson, W. L. Clayton, M. D. Anderson, J. V. Scott and D. Bateman to produce at such time as may be fixed by the Court prior to the taking of said Depositions each and all of the books, records, correspondence, etc. hereinbefore referred to and to deliver the same to O. M. DuOlose, Clerk of this Court, so as to permit Plaintiffs, their Counsel and Accountants to inspect and examine the same and to make such copies thereof as they deem proper. Said books, records, correspondence, etc. here-inbefore described to remain in the possession of the Clerk of this Court until the trial of this Cause unless same are removed from his possession upon the Order of this Court.
“Plaintiffs further pray that an Order be entered by this Court requiring the Clerk of this Court upon request of any Notary Public in Harris County, Texas, taking any Depositions in this case to produce said portion of said books, records, correspondence, etc. above referred to that may be in his possession, before said Notary Public at the time and place where said Depositions are to be taken and which time and place is set forth in any notice or subpoena issued by said Notary Public to said Clerk.
-“Plaintiffs further pray that an Order be entered by this Court requiring and commanding the Defendant Southern Bag & Burlap Company, its agents, servants and employees to produce before Gavin Ulmer, a Notary Public of Harris County, Texas, on March 18th, 1931, 'at ten o’clock A. M. in Room 1103 of Suite 1100 of the Scanlan Building in Houston, Texas, which Building is located at the corner of Main Street and Preston Avenue, and at such other times and places in Harris County as may be fixed by said Notary Public, for the taking of Depositions in this Cause, the books, records, correspondence, etc. hereinbefore referred to, aDd permit the same to be used in the taking of the Depositions of either and all of the witnesses C. E. Shipp, J. M. Johnson, W. L. Clayton, M. D. Anderson, J. V. Scott and D. Bateman and/or either of them.”

On the filing of the above application the respondent herein, who is judge of the court in which ’said cause is pending, entered the following order: “The above application of C. C. King and N. R. Perkins plaintiffs in Cause No) C-191,746 on the docket of the 61st Judicial District Court of Harris County, Texas, styled King & Perkins vs. Southern Bag & Burlap Company having been presented to me and after due consideration of the same it is ordered that the Clerk of this Court issue a Citation to the Defendant Southern Bag & Burlap Company commanding it to 'appear before me on March 14th, 1931, at nine o’clock A. M. and answer said Application, showing cause, if any, why said Orders should not be entered 'by this Court in said Cause as prayed for by Plaintiffs.”

Due notice was issued on the above application and order, and on March 16, 1931, the above application came on for a hearing before the respondent, at which hearing plaintiff and the relator appeared by their attorneys, and after a full hearing on said application, the respondent, as judge of the court aforesaid, entered the following order:

“Be it remembered that on this the 16th day of March, A. D. 1931, came on to be heard the application of C. C. King and M. R. Perkins, doing business under the name and . style of King & Perkins, for an order of this Court requiring the Southern Bag & Burlap Company, a Corporation, to produce before Gavin Ulmer, a Notary Public in and for Harris County, Texas, the hereinafter enumerated books, . records, correspondence, documents, etc., and for an order requiring the Southern Bag & Burlap Company to deposit these books, records, etc. in the registry of this Court, for the purpose of examination being made thereof by the Plaintiffs, their attorneys and Auditors and it appearing to the. Court that due and legal service of the hearing on this Application having been made on the Defendant Southern Bag & Burlap Company, a corporation.
“When on the day and date aforesaid Plaintiffs and Defendant Southern Bag & Burlap Company duly appeared in this Court by and through their Attorneys of Record and the Court having heard and fully understood said Application and being fully advised in the premises is of the opinion that the Plaintiffs are entitled to the relief therein prayed for;
“Now, therefore, it is considered by the Court and so ordered, adjudged and decreed that the Southern Bag & Burlap Company, its agents, servants and employees be and they are hereby ordered, commanded and required to produce before Gavin Ulmer, a Notary Public in and for Harris County, Texas, at 10 A. M. on tile IStli day of March, A. D. 1931, at Room 1103 of Suite 1100 of the Scanlan Building located at the corner of Main Street and Preston Avenue in the City of Houston, Texas, the following boohs, records, correspondence, documents, etc. to be used for the purpose of examining certain witnesses, to-wit: J. M. Johnson, B. Bateman, C. E. Shipp, J. V. Scott, M. D. Anderson and W. L. Clayton.
“Said books, records, correspondence, etc. above referred to are more particularly described as follows: (Here follows descrip-, tion.) “It is further considered by the Court and so ordered, adjudged and decreed that the Southern Bag & Burlap Company, its agents, servants and employees be and they are hereby required, commanded and ordered on or before the 20th day of March, A. D. 1931, to deliver the books, records, correspondence, documents, etc., hereinbefore set forth to O. M. DuClose Clerk of this Court, for the purpose of permitting Plaintiffs, their Counsel and Accountants to inspect and examine the same and to make such copies thereof as they deem proper, said books, records, correspondence, etc. to reinain in the possession of the Clerk of this Court until the Trial of this Cause unless same are removed from his possession upon the Order of this Court.
“It ⅛ further considered by this Court and so ordered, adjudged and decreed that thé Southern Bag & Burlap Company, its agents, servants and employees be and they aré hereby ordered, required and commanded to produce before any Notary Public in Harris County, Texas, duly commissioned to take depositions in this case, all of said books, records, correspondence, documents, etc. herein-before set forth, upon the day and time and at the place fixed in any subpoena Duces Tecum which may be issued by any such Notary and served upon the defendant as required by law.
“It is further ordered, adjudged and decreed that a copy of this Order be served upon the Defendant Southern Bag & Burlap Company.
“To the entering of this Order the Defendant in open Court excepted and gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District at Galveston.”

At the time the above order was made, relator duly excepted and gave notice of appeal to the Court of Civil Appeals. Also relator took all proper steps, if it is entitled to it, to have respondent fix the amount of a super-sedeas bond for such appeal, which respondent refused to do. Later relator filed appeal bond which was approved by the district clerk. It seems that thereafter the relator sought a writ of mandamus from the Court of Civil Appeals at Galveston, to compel the respondent to fix the amount of the supersedeas bond. This was refused by the Court of Civil Appeals on the ground that no appeal would lie from the above order.

After the happening of the above transaction, the relator applied to the Supreme Court for permission to file petition for mandamus against the respondent to compel the respondent to enter an order fixing the amount of a supersedeas bond to be given by relator to suspend the above order, and in the alterna-tiye to have the Supreme Court vacate the order.

The Supreme Court, on presentation of the motion to file the petition, for mandamus, referred the matter to this section of the commission. On due notice all parties interested, plaintiffs, relator, and respondent, have appeared and answered, and presented oral arguments, and written briefs to the end that the. questions presented may be fully determined and adjudicated both as to the right to file the petition for mandamus, and the final disposition thereof if permitted to be filed.

It is clear that the order above set out is purely interlocutory and therefore not appealable. Texas Co. v. Honaker, 282 S. W. 879 (Tex. Civ. App., writ ref.) It follows that the respondent properly refused to fix the amount of the supersedeas bond.

The record discloses that a full hearing was had on the application filed before respondent, and that both plaintiffs and relator, with their counsel, fully participated in such hearing. We must therefore presume in favor of the order that the evidence heard on the application fully sustained the allegations contained in the application.

It is the settled law of this state that respondent had jurisdiction in the premises to make a proper order to the end that plaintiffs might get the information here sought from the books and records of relator, and this court will not interfere unless there is an abuse of the trial court’s discretion. Rush v. Browning, District Judge, 103 Tex. 649, 132 S. W. 763, 766.

We have carefully considered this record, including the very able briefs and oral arguments presented by counsel on both sides, and have reached the conclusion that the order made by respondent is, in the main, authorized, and within his power and discretion to make. According to the record, and the allegations of the application, which we must take as true, plaintiffs had made every reasonable effort to obtain the information contained in the records and books of the relator bearing on the issues of the litigation, and had failed to obtain the same. Also according to the application it was the duty of relator to keep a record of the sales involved, and give the plaintiffs the benefit thereof. If they so mixed and mingled this record with their records in other respects that the plaintiffs have to go through the other records to get the information sought, relator cannot complain because it brought about the condition.

The application discloses that plaintiffs are entitled to commissions on certain products sold by relator in a certain territory. It also shows that it was the duty of relator to keep books and records involving such sales. This being the case, the plaintiffs are clearly entitled to inspect the records of such sales under the rule announced by Judge Brown in Rush v. Browning, supra, wherein it is held: “In the case of Veiller v. Oppenheim [75 Hun, 21, 26 N. Y. S. 1051], cited above, the court said: ‘Where such relation is admitted, as in this case, whether such relation constitutes the plaintiff a partner, or a principal bringing business to the firm, or an employee entitled to a share of the profits, or a co-worker with them in the general business, we think, as argued by the respondent, that “so long as the plaintiff, in one manner or another, under one name or another, was entitled to a portion of the proceeds of the common venture,” a prima facie case is presented entitling those interested in that venture to an inspection, where necessary, of the books of account containing a record thereof, and to all the information that can be derived from them, and it is only where it is apparent that the application is made in bad faith that such inspection should be denied.’ ”

We have carefully examined the order in question, and while we think it correct in the main, we are inclined to the view that it presents an abuse of discretion and should be modified in the following particulars:

(a) That portion of the order which permits plaintiffs, their counsel and accountants, to make such copies of the relator’s books, records, etc., as they deem proper, should be modified so as to only allow them to make copies of such records as bear on the litigation.

(b) That portion of the order' which requires that the relator’s records shall remain in the possession of the court until the trial of the cause, unless removed by order of the court, should be modified so as to return such records to the. relator immediately when the examination is completed and the1 depositions taken, to be kept by the relator within the jurisdiction of the court so that they can be had at the trial of the cause.

(c) The order should provide that the relator be given an opportunity to have a representative present at all times while said records are being examined. And

(d) The respondent should retain active jurisdiction and supervision so that he may, at all times during the taking of the depositions and examination of the records, see that his order is not abused or disobeyed.

We therefore recommend that the relator be permitted to file the petition for mandamus and that the mandamus be in part granted and in part refused as above indicated.

CURETON, C. J.

The opinion of the Commission of Appeals is adopted, and mandamus awarded, as recommended by the Commission of Appeals.


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

text:
    SOUTHERN CASUALTY CO. v. FLOWERS et al.
    No. 1260-5652.
    Commission of Appeals of Texas, Section B.
    May 16, 1931.
    Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for plaintiff in error.
    Bonner, Bonner & Fryer and Virgil Chil-dress, all of Wichita Falls, for defendants in error.
   SHORT, P. J.

The defendant in error J. G. Flowers recovered a judgment for $1,200 against the plaintiff in error in the trial court. The case was tried to the court without the intervention of a jury, and, at the instance of the plaintiff in error, the trial judge filed his findings of fact and conclusions of law. The case was carried to the Court of Civil Appeals at Fort Worth by the means of a writ of error. In that court Associate Justice Dunklin wrote an opinion in which these findings of fact and conclusions of law are set out, reaching the conclusion that the judgment of the trial court should he reversed and the cause remanded. Chief Jus-. tice Conner wrote an opinion in, which Asso*-date Justice Buck concurred, affirming the judgment of the district court. 23 S.W.(2d) 507.

The application to the Supreme Court for writ of error was granted on the first assignment of error, under which there is this proposition: “Where plaintiff alleges an express contract for an express amount he cannot recover upon proof that no amount was agreed upon.” This is a correct proposition of law. Chief Justice Conner discusses the record applicable to this proposition, and conclusively shows, by a quotation from the petition of the defendant in error Flowers, that it does not allege an express contract for an express amount, but that it alleges the facts that constitute the contract, and, in the absence of special exceptions, there having been none urged in this case, as against the general demurrer, the petition was sufficient to show that the suit, when the allegations of the petition, are construed'in their most favorable light, was one to recover, upon an implied contract, for an implied amount. The findings of fact filed in the trial court, under this construction of the pleadings, are sufficient to support the judgment. The statement of facts, which we have carefully read, contains some testimony of a substantial nature, which supports the findings of fact by the trial judge, though the testimony is conflicting.

The two opinions written in this case, when considered together, contain a sufficiently full statement of the case to illustrate the contentions of the parties, with reference to the pleadings and the testimony introduced in support thereof. There was no question as to the identity of the car, which was destroyed, as being the subject of the alleged oral agreement. Neither is there any question made, as to the character of the alleged insurance policy, which the plaintiff in error is claimed to have agreed to issue to the defendant in error Flowers, covering the loss which the testimony shows Flowers sustained, nor the terms to be embraced in the policy, which was alleged the plaintiff in error agreed to issue. The sole questions involved in this record are whether the defendant in error Flowers sued upon an express contract, and whether the testimony was sufficient to sustain the judgment under the pleadings, in the absence of special exceptions.

We have carefully considered these two questions, and have reached the conclusion that Chief Justice Conner’s opinion, with one exception, correctly states the law of the case. That exception is as follows: “While the telephone conversation between the parties included no specific amount of insurance to be carried, the agent did assure appellee that his car was fully covered, from which it is reasonable to imply, as the trial court did, that the company at least bound itself in a reasonable amount.” Among other things stated by the trial court, which is a statement of fact, though under the head of . “conclusions of law,” is the following: “While the telephone conversations by the plaintiffs agent and the defendants agent resulted in a binder no specific amount of insurance on the newly acquired car appears to have been mentioned; yet, it being agreed that the policy then in existence for $1200.00 should be transferred to the newly acquired car, there was an implied agreement that the insurance agreed upon was for no less sum.” This statement embodies a finding of fact that there was an implied agreement Under all the testimony in the case that the new policy should he for th,e amount of the old policy, and not that there was an agreement that the amount for which the policy was to be issued was to be a reasonable one, and that therefore there was no ■meeting of the minds of the parties as to any specific amount.

The petition does not contain any allegation that there was an agreement to issue a policy for a reasonable amount. It rather states the facts, from which the trial judge was justified in reaching the conclusion that the policy on "the newly acquired car was to be issued for the same amount which had been issued upon the previously owned one. The trial court having found that the minds of the parties had met, as to the amount of the policy which was to be issued, and the Court of Civil Appeals having approved this finding of fact, supported by testimony, as shown by the statement of facts, by affirming the trial court, the giving of a wrong reason therefor, as it did in the quotation above,, is not sufficient to justify a reversal of the judgment rendered.

Believing that the petition is sufficient to support a cause of action as against the general demurrer, and that there is substantial testimony in the statement of facts to support the findings of fact by the trial judge, and further believing that, with the exception noted, the opinion of the majority of the Court of Civil Appeals states the law of the ease, we recommend that the judgments of the Court of Civil Appeals and of the trial court be affirmed.

CURETON, C. J.

Judgments of the District Court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


author: RYAN, J. CURETON, O. J.

text:
    HUNNICUTT v. LEE et al.
    No. 1268-5673.
    Commission of Appeals of Texas, Section B.
    May 16, 1931.
    See, also, 16 S.W.(2d) 968.
    J. Cleo Thompson, of Dallas, and W. I. Gamewell, of Canyon, for plaintiff in error.
    Geo. T. Burgess and J. Hardy Neel, both of Dallas, for defendants in error.
   RYAN, J.

On November 18, 1924, Charlie H. Hunni-cutt and wife conveyed to E. B. Lee a tract of land out of the Logan league, being 50 by 150 feet, fronting 50 feet on Grand avenue in the city-of Dallas, for a recited consideration of $1,000 cash in hand paid and the execution and delivery by Lee of one promissory note in writing for $4,250, payable in monthly installments of $50 each, including interest, secured by vendor’s lien retained, and also by a deed of trust lien of even date, to one E. T. Marion, trustee. At that time there was on the land conveyed a frame building of five rooms, bath, and sleeping porch, which was rented to a tenant for $25 per month.

On January 7, 1926, E. B. Lee and wife conveyed the abovg property to R. G. Hock-ett for a recited consideration of $1,250 cash in hand paid, the assumption and agreement to pay by Hockett a balance of $330 and interest due on a certain paving lien held by the Uvalde Paving Company, and the execution and delivery by Hockett of one promissory note in writing in the sum'of $5,000, payable in monthly installments of $50, including interest, to the order of Charlie H. Hunnicutt, in lieu and extension of the above-desaribed note in the sum of $4,250, executed by E. B. Lee to Hunnicutt’s order on November 18, 1924.

On 'or subsequent to January 7, 1926, E. B. Lee acquired title to and possession of said dwelling house from said Hockett, and, in or about August, 1926, Lee moved the'house off the land, and located it upon lot 10, block 1460-A in Pair Park addition to the city of Dallas, which was another lot then owned by him.

Lee acquired title to said lot 10 by deed from Mary C. Watts and husband, dated September 1, 1926, the recited consideration being $10 in cash and $1,490 due on or before 90 days after that date, payable tp said Mary C. Watts, and secured by deed of trust of even date to C. H. Watts, trustee.

On November 20, 1926, E. B. Lee and wife executed and delivered deed of trust conveying said lot 10 to T. O. Junkin, trustee, to secure payment to Investment Securities Company of Texas, of their notes aggregating $2,-500, and comprising two notes for $250 each, and one note for $2,000, due December 1, 1929, 1930, and 1931, respectively, with interest payable semiannually. Said deed of trust recites that said notes are given in renewal and extension of the note dated September 1, 1926, for $1,490 executed by Lee, payable to Mary C. Watts on or before 90 days after date, and also to secure tbe payment of $1,010 advanced to Lee and wife by said Investment Securities Company, it being expressly agreed that all liens securing said indebtednesses shall remain in full force and effect, and tbe Investment Securities Company be subrogated to all the liens, title, interest, and remedies thereunder.

The above three notes and liens were assigned on December 27, 1926, by the Investment Securities Company to Chatham-Phenix National Bank & Trust ,C°mPa:Qy> who, on January 26,1927, assigned said notes and lien to itself, as trustee. The Bank & Trust Company received the notes and lien under the terms of a trust agreement between it and the Investment Securities Company, dated October 3, 1925, for the benefit of persons purchasing bonds issued by the Investment Securities Company and to the extent of these and other notes and liens, against which such bonds were issued.

Hunnieutt, on October 18, 1927, brought this suit in the district court of Dallas county against E. B. Lee and- Chatham-Phenix National Bank & Trust Company, trustee, asserting a superior equitable title to said house and the right to rescind the sale thereof, and tendered to defendant Lee the note given by Hoekett in renewal of the original note given by Lee’ to him; in the alternative, recovery was sought in the sum of $2,500 as the value of said house and foreclosure of lien therefor against lot 10.

The petition contains also the following prayer: “And plaintiff further prays in the alternative that if rights of the defendant, Chatham Phenix National Bank & Trust Company, Trustee, have intervened so that plaintiff may not be awarded the relief herein-above prayed for, then he prays that his contract or equitable lien upon said house, arising from non-payment of said purchase money, be established and foreclosed as against said house, subject to such intervening rights, and that he have his order of sale, writ of possession and costs of suit; and further in the alternative plaintiff prays that he recover of defendant, E. B. Lee, a judgment in the principal sum of $2,500.00, together with 6% per annum thereon as interest or damages from the date said house was converted, together with,all costs of suit; and plaintiff ■further prays for such relief, legal and equitable, general and special to which he may show he is entitled.”

The defendant Lee answered by general demurrer and general denial; the Chatham-Phenix National Bank & Trust Company, trustee, after general demurrer and general denial, pleaded specially their claim under the deed of trust from Lee and wife to T. P. Junkin, trustee, conveying said lot 10, to secure said indebtedness of $2,500, at which time neither it nor the Investment Securities Company had any knowledge that the house in question, then located on lot 10, had been removed from other property, or that the-plaintiff had any claim or lien thereon; that thereafter the plaintiff brought suit in the district court of Dallas county against Hock-ett and wife and one Prank E. Wells upon said notes so given by Lee and by Hoekett to plaintiff and for the recovery of the property described in the deed from him to Lee, alleging that he was the holder of the superior title by retention of the expressed vendor’s lien to secure payment of said notes, and on September 7, 1927, judgment was rendered therein canceling and rescinding the deeds of conveyance from plaintiff to Lee and Lee to Hoekett and restoring to plaintiff the title and possession to the land and premises in question, and canceling the note executed by Lee to plaintiff and the note executed by Hoekett to plaintiff. It was further averred that, at the time of filing.said' suit and the entry of said judgment, said house was not located upon the land conveyed by plaintiff to Lee, but was located on the land described in the deed of trust from Lee to Junkin, and constituted a part of the teal property conveyed by said deed of trust; also that said judgment is res judicata of plaintiff’s claim to said house, and is a cancellation of the notes executed by Lee and Hoekett to plaintiff and an investiture of plaintiff with the title in the shape and condition it was and as it existed on the date of said judgment, September 7, 1927, -and a release and cancellation of any liens claimed by plaintiff upon any other property securing payment of either or both of the notes executed to plaintiff by Lee and Hoekett.

And by way of estoppel it was averred: “That if the house was upon- the land as conveyed by plaintiff to Lee, said house was moved by the defendant, Lee, from said land in August, 1926, to Lot Ten (10) in Block No. 1460-A óf Eair Park Addition to the City of Dallas, Texas, long prior to the execution by Lee and wife of the deed of trust securing the payment of the notes, and of the notes by Lee and wife held by this defendant and of the payment by the Investment Securities Company of Texas and this defendant of the moneys for and on account of said notes, and plaintiff had full knowledge that said house had been so removed, if it was removed, and with such knowledge allowed the same to remain on the property mortgaged to this defendant and allowed the defendant, Lee, to so attach it to Lot No. Ten (10) in Block No-. 1460-A of Pair Park Addition as to become a part and parcel of said lot, by reason of which plaintiff is now estopped, having permitted the apparent ownership of said house to remain in said Lee, to now assert title thereto as against this defendant and the mortgages, liens and notes now held by this defendant.”

By supplemental petition, plaintiff alleged that said house was not involved in said judgment canceling said notes and vesting title in him to the land, nor were the defendants here parties to that suit, and prayed: “That if the Court find that said deeds, notes, titles, liens or rights were cancelled and/or rescinded and/or released as to the defendants in this suit, then the court revive and/or treat said deed, notes, title, liens, remedies and rights which previously existed thereunder as in force in favor of plaintiff and against the defendants; and plaintiff further prays for general and special, legal and equitable relief.”

The trial court rendered judgment denying any recovery by plaintiff, Hunnieutt, against the Chatham-Phenix National Bank & Trust Company, trustee, but fixed a lien in favor of plaintiff and against E. B. Lee upon the house and on lot 10 to secure $2,500, value of such house, inferior and subordinate to the lien of the deed of trust executed by Lee and wife to Junkin, trustee, dated November 20, 1926, securing the three notes of that date, two in the sum qf $250 each and one for $2,000, due as hereinabove stated, payable to the Investment Securities Company of Texas, and held by the Chatham-Phenix National Bank & Trust Company, trustee, which was adjudged a first, prior, and superior lien upon said lot and the house situated thereon to any lien decreed in favor of the plaintiff. It was further ordered that the lien decreed in favor of plaintiff be foreclosed in favor of plaintiff, but subject to the liens and claims of the Chatham-Phenix National Bank & Trust Company, trustees, and, if the proceeds of sale applied to plaintiff’s claim be not sufficient to satisfy same, then no execution shall issue against defendant E. B. Lee, plaintiff in open court having dismissed his cause of action seeking a persona! judgment against said Lee.

The trial court’s judgment was affirmed by the Court of Civil Appeals. 23 S.W.(2d) 479.

It is uncontroverted that I-Iunnicutt and his wife knew of the house’s removal - almost immediately thereafter. 1-Ie testified that his sister-in-law ’phoned him the house was being moved and “was off the place going down East Grand Avenue,” and he “saw it on the other lot about the time it was moved there.”

“I saw it was over on the new lot. The lot on which the house was moved to is six or seven blocks from where I live now, which is the same place I lived in 1926. Shortly after I saw the house after it wag moved, I saw them working the house over, they boxed it all around, put in a new foundation and repainted it and repapered ,it. I saw all of that; they fixed it up. The first step that I took to recover the house is the time that I filed my original petition in this case. October the 18th, 1927, was the first attempt made by me to recover the house.”

To the same effect is the testimony of Mrs. I-Iunnicutt; she testified also that the house was moved in August or about the 1st of September, 1926; that Mr. Lee had it moved, and she knew “within a couple of days” where the house was moved to, and nothing was ever done towards its recovery until this suit was filed in 1927.

It is in evidence that, before Lee negotiated the loan on lot 10 from the Investment Securities Company, its manager inspected lot 10, and found a house in fairly good repair and in normal condition, located thereon. He testified there w.as nothing about the house that would lead him to believe or to put him on' notice that it had been moved from some other place. “It looked like a house that had been built there and been standing there for several years, but had been redecorated at a-recent date.” He estimated the property worth about $4,000 when he made such inspection in November, 1926. He further testified that the house looked like it belonged and had been built there. He had no knowledge that the house was ever owned by Hun-nicutt. He testified: “I did not know that the house had been moved there. There was nothing to arouse my suspicions that the house had been moved there and nothing to advise me that Hunnieutt ever owned the house. * * ⅜ I never heard of Mr. or Mrs. I-Iunnicutt before I made the loan and I don’t know what they knew; they never discussed it with any member of our company that I know of. ⅜ ⅜ Neither Mr. I-Iun-nicutt or Mrs. I-Iunnicutt ever advised me that they owned that house prior to the filing of this suit and they never advised the Investment Securities Company of Texas that I know of.”

It is also in evidence that the trust officer of the Chatham-Phenix National Bank & Trust Company, who acted for it and handled the transfer of the Lee notes and lien from the Investment Securities Company, had no knowledge at that time that the house had been moved to lot 10 from another lot.-

Opinion.

The house was part of the security reserved by Hunnieutt, and, not having consented to its severance from the lot, he had the right to foreclose his vendor’s lien upon it as well as on the lot on which it was originally situated, or in a proper action recover it or its value; such recovery could be had from Lee and Hockett and any other person in possession of it or asserting a subsequent claim thereto (Bowden v. Bridgman [Tex. Civ. App.] 141 S. W. 1043; Jones v. Bull, 90 Tex. 187, 37 S. W. 1054), unless Hunnieutt is es-topped, as against the bank, because of his negligence in not enforcing his claim as soon as he discovered the' house being moved, or within a reasonable time thereafter, and such negligence influenced the bank to its injury, and it must reasonably have been expected that it would have such effect, while the bank was exercising ordinary prudence (Commonwealth Bonding, etc., Co. v. Meeks [Tex. Civ. App.] 187 S. W. 681, writ refused; Neale v. Sears, 31 Tex. 115; 21 C. J. 1169).

The evidence shows that plaintiff in error saw the'house being moved by Lee, saw it on and affixed to lot 10, being repaired, repainted, and repapered, notwithstanding which he took no steps to recover it until this suit was filed on October 18,1927, fourteen months after its removal. The house was a fixture on lot 10 for- three months from August 26th to November 26th before the bank made its loan, and under the testimony Hunnicutt knew that Hockett had sold the house to Lee, and that Lee had severed it from the original lot, that the removal of the house depreciated his security, and that it had been remodelled and repainted, thus permitting Lee to stand out as the owner of the house. He was bound to have known that Lee might dispose of the property by sale, or mortgage the property to one who would not know that the house had been mo.ved from some other lot and was incumbered, and who in examining the title to lot 10 would find no evidence of Hunnicubt’s claim to the house then situated thereon and affixed thereto. The records of Dallas county showed no lien or claim in favor of Hun-nicutt as to lot 10, when the bank loaned its money in good faith to Lee.

Hunnicutt was bound to have known that the removal of the house by Lee was, in part at least, a severance of it from the land on which he had his liens, and its location on lot 10 might make it a part thereof, yet he stood by and did nothing until eleven months after the bank had made its loan and parted with its money, when he brought this suit.

Testimony of the bank’s officials is uncon-troverted that before making the loan to Lee they examined the security offered, to wit, Lot 10 and the improvements thereon, and there was nothing to put them upon notice that the house had been removed from another lot; in fact, they knew nothing of Hunni-cutt or his claim..

It may be true that mere surrender of the possession of property to another is not sufficient to estop the party surrendering it from subsequently asserting a right or title thereto, but he may be estopped when the circumstances are such as to indicate a disclaimer of such right or title, and it would be inequitable to permit him to assert the contrary. 21 C. J. p. 1168, § 174, p. 1172, § 177.

Of course, in such case, the party claiming estoppel must himself be innocent of knowledge of the other’s claim and be not guilty of negligence in not ascertaining such other claim.

As said by Chief Justice Phillips in Burnham v. Hardy Oil Co., 108 Tex. 564, 195 S. W. 1139, 1143: “The innocent purchaser * * * acquires the title to the interest through the force alone, of the doctrine of equity which refuses to visit loss upon one in his situation, but imposes it rather upon those who, having the real interest, have been negligent in permitting another to hold the legal evidence of perfect right in himself.”

The Court of Civil Appeals concluded that the judgment rendered by the district court of Dallas county, canceling the notes given by Lee and Hockett to Hunnicutt, and canceling the deed from him to Lee and from Lee to Hockett, and vesting title in Hunnicutt to the lot at a time when the house was not located on it, had the effect of an investiture of plaintiff, Hunnicutt, with the title to the real estate in the shape and condition it was and as it existed on the date of such judgment (September 7,1927), minus the house, and is a release and cancellation of any liens claimed by plaintiff upon any other property securing the payment of either or both notes executed by him or Hockett, and is therefore res judicata of the issue here.

Application for writ of error was granted Hunnicutt by the Supreme Court on his complaint of such finding of res judicata, the notation being “granted on second assignment of error,” and such assignment being, “The Court of Civil Appeals erred in holding in its opinion that the judgment in the case of Hun-nicutt v. Hockett was res judicata of thp suit at bar,” followed by the proposition that “a plea of res judicata cannot’ prevail unless there is a concurrence of four elements: — (1) Identity of the thing sued for; (2) Identity of the cause of action; (3) Identity of the persons and the parties to action; (4) Identity of quality in the persons for or against whom the claim is made,” and by the further proposition that one of the four essentials of res judicata, to-wit: — identity of persons and parties to the action, is lacking and it was not shown that the bank acquired its rights subsequent to the filing of the Hockett suit and rendition of the judgment therein, nor that Hockett acquired the house under the judgment and under a contract of warranty, nor that such title had inured to the bank, as trustee, under the rights of title obtained by Hockett in that suit.

The trial court made no findings of fact or conclusions of law, and none was requested, in the absence of which, when the pleadings and evidence support a judgment, it must be affirmed on appeal, because it will be presumed that the trial court decided the case upon such of the pleadings and proof as will sustain the judgment. Walker v. Cole, 89 Tex. 323, 34 S. W. 713; Merryman v. Bank (Tex. Civ. App.) 288 S. W. 840; Daniel v. De Ortiz (Tex. Civ. App.) 140 S. W. 486; Broussard v. Cruse (Tex. Civ. App.) 154 S. W. 347: Guerra v. Rodriquez (Tex. Civ. App.) 120 S. W. 593.

Therefore, having reached the conclusion that the judgment of the district court should be affitmed on the ground that Hunni-cutt is estopped as against the bank, it is unnecessary to pass upon the question of res judicata.

We recommend that the judgments below he affirmed.

CURETON, O. J.

The judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.