text:
    The FIRST-WICHITA NATIONAL BANK, Appellant, v. Bruce M. STEED et al., d/b/a Steed Motor Company, Appellees.
    No. 16478.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 24, 1964
    Stayton M. Bonner, Wichita Falls, for appellant.
    Anderson & Connell, and Jack Connell, Wichita Falls, for appellees.
   MASSEY, Chief Justice.

Unlike the law in certain other states, a bank in Texas, which through its own negligence or mistake delivers to the payee named on a check the amount for which it was drawn, at a time when the bank should not have paid the check (because the drawer had executed a “stop-payment” order, did not have an account, etc.), is entitled to maintain and recover upon an action for restitution of and from the payee, in an amount limited only to the extent that benefits have been received by the payee at the expense of the bank. (Emphasis supplied.) The theory is that the party who received the benefits was unjustly enriched thereby, and as of the moment when the benefits were mistakenly or negligently conferred the law does not look beyond him who received the same in the determination of whether he was unjustly enriched. At and after such time, however, in the event an innocent payee has so changed his position in good'faith, trust and belief of the validity of the payment that either he or the payor bank must suffer loss, the fact that the bank has been negligent in creating the situation does become important in that the bank in turn becomes liable in damages to the innocent payee for his resultant loss due to the change of position. See Restatement of the Law, Restitution, p. 232, “Mistake, Including Fraud”, § 59, “Lack of Care by Transferor”.

In a case based upon circumstances of considerable analogy, the Austin Court of Civil Appeals rendered a decision in complete accord with what we have stated in the preceding paragraph. The Austin Court found additional support to be existent for the payee’s right to recover damages from the bank under Art. 342-712, Vol. 1A, Vernon’s Ann.Civ.St., of the Texas Banking Code of 1943. Capital National Bank in Austin v. Wootton, 1963 (Tex.Civ.App., Austin), 369 S.W.2d 475, writ dism.

Of particular importance in the Wootton case, supra, was recognition of the fact that in Texas the payee was not a “holder in due course” because he was the payee named in the instrument. In other words, the check not having been negotiated it was subject to the same defenses as if nonnegotiable and would be dischargeable by any act which would discharge a simple contract for payment of money. See Texas’ Negotiable Instruments Act, Art. 5935 (§§ 51-59, inch of the Act). See cases under 6 Tex. Dig., Bills & Notes, “Due course of business”.

Giving consideration to the statement of facts and findings of the jury on the special issues submitted, the case under examination may be briefly stated. In making such statement the First-Wichita National Bank of Wichita Falls, appellant herein, will be referred to as the bank, — the appellees, Bruce M. and Thad Steed, d/b/a Steed Motor Company, will be referred to as the payee and also as the motor company and' treated as inanimate, — and the drawer of the check, one Herman F. Gumpert, will be referred to by name.

On or about July 23, 1960, Gumpert, having some $4,800.00 on deposit in his checking account at the bank, entered into a transaction with the motor company. By the terms of the transaction he delivered a “trade-in” automobile, a check for $350.00, and an installment note for $2,000.00 to the motor company, receiving in exchange a new or nearly new Rambler automobile. The $2,000.00 note was secured by a chattel mortgage on the Rambler automobile. This occurred on a week end. Before banking hours on the morning of Monday, July 25, 1960, Gumpert decided that he wanted to rescind the transaction, — by agreement if possible. He went to the used car lot of the motor company, but when he was unable to find the salesman with whom he had dealt he told no one else that he wanted to cancel the deal. He did, however, go to the bank and execute a “stop-payment” order on the $350.00 check; then, in an abundance of caution, he withdrew the bulk of his money on deposit so that only $119.10 remained in his account. Apparently he continued to use the Rambler automobile.

Afterward, but on the same morning of Monday, July 25, 1960, the motor company, payee on the check, reasonably anticipating that payment would be stopped, but not that such had already occurred and in ignorance of the fact that it had occurred, presented the check for payment at the window of teller Hanson. The bank had not exercised reasonable diligence to notify the tellers that a “stop-payment” order had been entered on the $350.00 check, and Hanson did not have knowledge of the fact nor should he have known the fact in the exercise of reasonable diligence.

Several days later the payee motor company first learned that Gumpert had executed the “stop-payment” order and that the bank had paid the $350.00 as the result of inadvertence or mistake. (There is absolutely no evidence to the contrary, and we consider that there is no question but that payment was the result of negligence or mistake on the part of the bank.) Discovery on the part of the motor company resulted from a telephone call from a bank official. The motor company advised that Gumpert would be contacted and an attempt made to satisfy him so that he would pay $350.00 to the bank. Obviously Gumpert was never mollified.

Since he had not delivered the title on the “trade-in” automobile, Gumbert was sued by the motor company for specific performance. By the time this case came to trial it appears that Gumpert had defaulted on an installment payment on the $2,000.00 note, so a count thereon was added to the suit of the motor company and judgment for debt and mortgage foreclosure was sought as well as judgment for specific performance. Though there is some question thereof it appears that the bank agreed with the motor company that said company could add to its suit (for the benefit of the bank) a count for the $350.00 check, just as though there had been no payment thereof.

As. result of this litigation a judgment was rendered in behalf of the motor company for foreclosure of the mortgage on the Rambler, for title to Gumpert’s “trade-in” automobile, and for $350.00. The record does 'not disclose any information as to value'of the Rambler as delivered to Gum-pert, or as received, and we are ignorant as to the amount therefor realized by the inotor company on the foreclosure proceedings. The fact that we might express curiosity in such regard should not be construed to mean that we deem it of any importance at law. Certainly it is immaterial to our disposition of the instant appeal.

Not being able to obtain restitution of the $350.00 from the motor company, the bank eventually filed suit against it to obtain a judgment therefor. Nowhere in the pleadings of the motor company did it seek any damages (in the event the decision should be in behalf of the bank) and nowhere in the record was there any evidence of any damages sustained by the motor company as the result of any change of position, loss, etc. resulting by reason of the receipt of the $350.00 on July 25, 1960.

It is our opinion that the motor company was legally obliged to return the $350.00, disregarding offsetting right to damages it might have against the bank. The motor company had the right to seek judgment of and from Gumpert in its own behalf by its suit against him. It would be immaterial whether the bank ever agreed that the motor company could add a count therefor to its suit against Gumpert. There was no consideration for any agreement that the motor company might hold the $350.00 in trust if collected from Gumpert. It matters not whether the motor company will ever be able to “realize” upon its judgment through execution levied against Gumpert.

Our understanding of the law, at least as applicable in Texas, is in accord with our statement in the first paragraph of this opinion, which, though paraphrased, is substantially the recitation of Section 59 of the Restatement of the Law, Restitution. Section 59 is seemingly contradictory to Sections 29 to 38, inc., under Topic 2, “Mistake of Fact”, Title B, “Special Rules for Bills and Notes”, until one takes recognition of the fact that in Texas the named payee in a check which has not been negotiated is not considered a “holder in due course”. Upon such recognition the seeming contradiction disappears.

Although it followed a different course of reasoning, or at least different authorities, the Austin Court of Civil Appeals appears to have reached an identical conclusion upon the applicable law of our state in Capital National Bank in Austin v. Wootton, supra. In that case a judgment for the defendant payee was reversed, but the court remanded the cause to the trial court in order to give the payee an opportunity to plead and prove his damages, if any. There had been neither pleading nor proof thereof on the original trial. Here we have a like situation with a similar result, i. e., the bank is entitled to its judgment on the theory of restitution, but the payee would be entitled to damages, if any there may be, if pleaded and proved.

Judgment is reversed and the cause is remanded to the trial court in order that the payee motor company (appellees) may be given an opportunity to plead and prove damages.


source: Caselaw Access Project

author: PHILLIPS, Justice.

license: Public Domain

text:
    Eva Alex WORTHEN, Appellant, v. William Ewing WORTHEN, Appellee.
    No. 11138.
    Court of Civil Appeals of Texas. Austin.
    Jan. 22, 1964.
    Rehearing Denied Feb. 12,1964.
    Ragan & Russell, Charles C. Foster, Jr., Houston, for appellant.
    Ernest A. Knipp, Houston, for appellee.
   PHILLIPS, Justice.

This is a suit for divorce wherein the plaintiff wife brought suit against the defendant husband alleging cruel treatment, excesses and outrages of such a nature as to make further living together as husband' and wife insupportable.

The parties will be referred to here as in the trial court.

The case was tried before a jury, took , twelve days to try and the statement of. facts consists of five volumes containing 1297 pages of testimony. In response to two special issues, the jury found th^t.the, defendant was guilty of acts and conduct, which constituted excesses, cruel treatment, or outrages of such a nature, as to. render, the further living together of plaintiff and defendant as husband and wife insupportable. In addition the jury found that the, plaintiff did not act in good faith and with, probable cause in filing and prosecution of this suit for divorce. The trial court, by proper motion was asked to disregard this issue as being without support in the evidence.

The trial court issued a decree denying the divorce stating that the evidence was not of that full and satisfactory nature required by Article 4632 Vernon’s Ann.Civ.St.

We are of the opinion and so hold that the trial court should have granted the divorce as prayed for in that the evidence was full and satisfactory, that the acts and conduct of the defendant was such as to render the parties further living together as husband and wife insupportable. Rule 434, Texas Rules of Civil Procedure.

We are also of the opinion that there was no evidence to support the finding of the jury that the plaintiff did not act in good faith and with probable cause in the filing and prosecution of this suit for divorce, and hold that this issue should be disregarded, Happ v. Happ, Tex.Civ.App., 160 S.W.2d 227, writ ref. W.M.

The plaintiff and defendant are both past sixty years of age and have been married for over forty years. Their three children are grown, married and have children of their own. These parties separated over three years ago and have lived apart since then. There is an estate of substantial value involved.

The lengthy, detailed evidence establishes the fact that the plaintiff has been a good mother, wife and housekeeper. That while the defendant has been a steady worker and good provider, he has shown little or no affection for the plaintiff throughout the years and has pursued a deliberate and continued course of conduct toward her characterized by cursing her with vile and abusive language and in later years accusing her of being sick in the head, crazy or insane. While there is evidence of several instances during the course of their married life wherein the defendant physically abused the plaintiff these incidents in themselves would not at this time be sufficient grounds; and, while no one or even several incidents of the above-mentioned cursing and accusations would in themselves be grounds, their continued persistence over the years coupled with the uncontroverted medical evidence that such treatment has been deleterious to plaintiff’s physical health are ample grounds to support the action brought. This evidence includes corroboration by the children.

Plaintiff filed several suits for divorce against defendant during the course of their married life, however, these were dismissed on plaintiff’s motion without prejudice. In addition there were separations in the past followed by reconciliations.

The defendant denies the course of conduct attributed to him and apparently attempts to show that ever since plaintiff passed through the menopause some twenty years ago she has become withdrawn and erratic in her conduct. Defendant testified that on two instances he urged her to see a psychiatrist.

Plaintiff introduced the testimony of her physician, a Dr. James C. Jones, an internal medical specialist and a clinical instructor in psychiatry. Dr. Jones had served as a consultant of the Department of Psychiatry, Veterans Administration Hospital, and the Houston Psychiatric Hospital. His practice placed special emphasis upon the psychosomatic side of internal medicine.

Dr. Jones stated that psychosomatic medicine is the treatment of illnesses which occur on reflex of what a person is thinking, based on one’s emotional make-up. This is largely caused by one’s environment and is psychophysio response of the body. He stated unequivocally that plaintiff was entirely sane, however, that due to the course of conduct that she had been subjected to by the defendant, she had developed a spastic colon, headaches, dizziness and pain in the stomach. That she had suffered inability to sleep, her bowels slowed down, she was unable to digest food properly and her abdominal wall would bloat. The doctor noted that the plaintiff’s medical history showed her condition to be quite severe in February 1960, and that it continued until she moved from her home and left her husband. That since that time the symptoms have subsided to a certain extent due to the treatment and “in getting out the thorn m her side.”

This medical testimony was not contradicted by the testimony of defendant’s witness, a Dr. Hanson. Dr. Hanson is a specialist in internal medicine, however, he would not qualify himself in the field of psychiatry. Dr. Hanson testified that the plaintiff suffered from “functional indigestion, * * * irritable colon, which is the type thing that results from anxiety, being tense and mentally upset.” Dr. Planson also testified that plaintiff was perfectly sane. ■

In McCullough v. McCullough, Tex.Com.App., 120 Tex. 209, 36 S.W.2d 459, opinion adopted by the Supreme Court, the Court said:

“It is the settled law of this state that the cruel treatment provided by our statute as a ground for divorce is not confined to physical violence alone, but may consist of a series of studied and deliberate insults and provocations. The question is whether the course of treatment constitutes such ‘excesses, cruel treatment, or outrages,’ as to render further living together insupportable. In determining this question it is the duty of the trial court to weigh the course of conduct in the light of all of the facts and circumstances of the case, and this includes the character and refinement of the parties to the proceeding. In other words, vile epithets constantly hurled by the husband at a wife of refinement might constitute ‘excesses, cruel treatment, or outrages’ of such a nature as to render her further living with him insupportable, when the same epithets hurled by the husband at a wife of low morals and vile character might not constitute such excesses, etc.”

The McCullough case further held that cruel treatment rendering further living together insupportable constitutes grounds for divorce regardless of whether it threatens impairment of the wife’s health.

While we full well recognize the fact that wide latitude is given the decree of the trial court on review, we hold that plaintiff’s evidence brought her under the above quoted' holding in the McCullough case and in addition defendant’s conduct has caused her health to deteriorate. That she proved her own testimony to the effect, “I could never live with Mr. Worthen. • I am too old to fight. I can’t fight no more — my health won’t permit it.” Due to the extensive development of the record in this case, nothing would be gained by remanding the case for a new trial on whether or not grounds for divorce exists.

We hold that the evidence establishes the fact, and the jury so found, that defendant’s conduct toward plaintiff was such as to entitle her to a divorce. Jernigan v. Jernigan, 37 Tex. 420, Taylor v. Taylor, 18 Tex. 574.

Judgment of the trial court is therefore reversed and remanded with instructions to grant appellant a divorce from appellee and such judgment be incorporated in the final judgment adjudicating the other issues between the parties.


author: McNEIUL, Justice.

text:
    Emma Jo GRIGGS, Appellant, v. Roy GRIGGS et ux., Appellees.
    No. 6648.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 9, 1964.
    Rehearing Denied Feb. 12,1964.

      Sam Bass, Freeport, for appellant.
    Ward W. Markley, Barber & Seale, Jasper, for appellees.
   McNEIUL, Justice.

This appeal is from an adverse judgment rendered on a non-jury trial of a bill of review, wherein Emma Jo Griggs sought to have an adoption theretofore granted of her infant daughter set aside and to recover custody of the child.

Chronologically, the facts are: Emma Jo and Bobby Joe Griggs, deaf-mutes, were man and wife living in Houston. They had the child, Debbie Dee. A short time after the birth of the child the couple had marital difficulties. There finally was a separation and Emma Jo Griggs moved to Freeport. On April 21, 1962, Bobby Joe Griggs, his father, Roy Griggs, and his pastor, a Reverend Allen of Houston, went from Houston to Freeport to talk to Emma Jo Griggs about giving her consent to the paternal grandparents, Roy Griggs and wife, Opal Griggs, to adopt the infant. After some discussion she agreed and signed and acknowledged her consent before a notary public at Freeport. Bobby Joe Griggs, her husband, also executed his consent there. On April 24, 1962, Roy and Opal Griggs, appellees herein, filed their petition for adoption of the child in the District Court of Jasper County, the county of their permanent residence, although at the time they were temporarily staying in Houston.

After having filed the consent to adoption, Emma Jo Griggs told her pastor’s wife, a relative, that she had given her consent to the adoption of her child. Then followed a lepgthy discussion with the relative’s husband, a Brother Allen, pastor of the Assembly of God Church at Freeport, and it was determined that Emma Jo Griggs should see a lawyer about revoking her consent. For this purpose she called on Mr. Thad Davis, a lawyer in Freeport, who prepared a letter for her addressed to Roy Griggs and wife to their address in Houston. While the court in the trial below in the present case did not allow the introduction of a copy of the letter in evidence, both appellees Roy Griggs and wife admitted that on or about April 25th they received a letter from Emma Jo which was to the effect that she revoked her consent to the adoption of the child.

The hearing on the adoption was set for June 4, 1962. Early that morning Roy Griggs drove from Houston to Freeport to talk to Emma Jo Griggs and to get her to go with him to attend the Jasper Court adoption proceeding. He talked to her and she called her uncle, the Brother Allen of Freeport, and he advised her not to do anything until she had discussed the question with her lawyer, Thad Davis. After doing this and on her lawyer’s advice, she told appellee Griggs that she would not go with him to Jasper.

Griggs met his wife, Opal, in Jasper and in the early afternoon appeared in court and the trial court granted the adoption. When asked on the trial of the present proceeding (which was filed July 11, 1962) .whether he advised the court of the facts of Emma Jo’s revocation of her consent, ap-pellee Roy Griggs said:

“A. We told this Court the story.
“Q. Did you tell the Court that you had received this letter from your daughter revoking the consent to adoption ?
“A. Yes. We told the Court the whole story about the adoption.”

His wife, Opal Griggs, when asked whether she had informed the court that the consent for adoption had been revoked by the letter, she answered, “I didn’t.” Appellee Griggs evidently pursued the adoption proceeding with the following explanation:

“Q. Now you testified that she has a number of times consented to the adoption then she changes her mind?
“A. Correct.
“Q. And this was not too unusual when you received a letter was it?
“A. No.
“Q. And then later she lead you to believe it was allright, is that true?
“A. Yes.”

Appellant urges several points attacking the judgment below but we preter-mit discussion of all save the one that asserts the trial court erred in holding Emma Jo Griggs, appellant, had not revoked consent to the adoption of her child. The court was in error in holding there had not been an effective revocation of the consent to adoption. In Wilde v. Buchanan, Tex.Civ.App., 303 S.W.2d 518, it was held that the mother has the unconditional right to withdraw her consent to adoption up until the adoption is granted. This holding was expressly approved by the Supreme Court. 156 Tex. 606, 305 S.W.2d 778. See also Newby v. Heard, Tex.Civ.App., 341 S.W.2d 563. The mother’s withdrawal of consent withdrew the father’s consent. Williams v. Liles, Tex.Civ.App., 245 S.W.2d 551. It was held in Paschke v. Smith, Tex.Civ.App., 214 S.W.2d 205, that when the natural parents withdraw their written- consent for adoption before the trial court has granted an adoption the court thereupon lost its right to grant the adoption.

Appellees contend that a revocation must, be done by an instrument of the same dignity as that of the original consent and that it should be brought home to the trial court > before his action granting the adoption. . No case is cited to us sustaining this position. And we have been unable to find any.. It was said in Catholic Charities of Diocese of Galveston, Inc. v. Harper, 161 Tex. 21, 337 S.W.2d 111, at p. 112: “The consent must be effective and continuing up until the time of the judgment entry.” In this case after executing the consent to let the Catholic Charities place her child for adoption, the mother advised the organization she was withdrawing her consent and the Court of Civil Appeals held this was an effective withdrawal. 331 S.W.2d 761. However, the Supreme Court held because of the statutory difference in the ordin'ary consent-adoption procedure and that providing for parents to consent that such an agency as the Catholic Charities may place their child for adoption, a distinction exists so that after a consent is duly executed to such an agency, ordinary revocation may not take place. The holding of the Court of Civil Appeals in this case, we think, is authority for the proposition that a revocation brought home to the person who is granted leave to adopt the child is sufficient; and although that holding was reversed, it was done upon a distinction in the statutory proceeding — not upon the type or kind of revocation.

In view of the solicitude of the courts to protect the natural parent from any hasty or ill-considered act in signing consent, we hold that the letter of revocation, actually received by appellees effectively took away from the trial court the authority to grant the adoption. The testimony above quoted, upon which appellees rely, tending to indicate that Emma Jo had again changed her mind, we think, is not sufficient upon which to hold the trial court was reinvested with the right to grant the adoption.

It is not remiss to state that the bill of review was promptly filed and prosecuted. The judgment of the trial court is reversed and the order of adoption made June 4, 1962t of said minor by appellees by the District Court of Jasper County is hereby set aside, annulled and cancelled and the custody of the minor, Debbie Dee Griggs, is hereby awarded to the natural parents, Bobby Joe Griggs and Emma Jo Griggs.


author: RENFRO, Justice.

text:
    ALMAR-YORK COMPANY, Inc., Appellant, v. The FORT WORTH NATIONAL BANK, Trustee of the Estate of Francis H. Sparrow, Deceased, Appellee.
    No. 16482.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 17, 1964.
    Rehearing Denied Feb. 14,1964.

      Maurice Amidei, Fort Worth, for appellant.
    Stone, Parker, Snakard, Friedman & Brown, and G. W. Parker, Jr., Fort Worth, for appellee.
   RENFRO, Justice.

On August 9, 1960, The Fort Worth National Bank, Trustee of the Estate of Francis H. Sparrow, deceased, sued the Almar-York Company, Inc., for delinquent monthly rental payments on parts of Lots 23 and 26, a subdivision of A. Robinson Survey in Fort Worth.

The defendant, on September 6, 1960, filed an answer in which it alleged the written lease, on which suit was brought, was obtained by fraud on the part of plaintiff in that plaintiff represented it would construct a rock wall in the rear of the premises.

On November 16, 1962, defendant filed an amended answer in which it plead as a defense that the lease in question was executed without authority of defendant corporation.

Trial resulted in an instructed verdict and judgment in favor of plaintiff.

Defendant has briefed a number of points of error, the gist of which is the court erred in rendering judgment for plaintiff because of the failure of plaintiff to prove that A. W. Stubbeman, president of defendant corporation, was authorized by the directors to execute the lease.

The evidence is undisputed.

At all pertinent times Stubbeman, his wife, Ruth F. Stubbeman, and M. L. Brown, Sr., were all the directors of defendant corporation. Defendant was in the business of manufacturing, assembling and servicing air conditioning units.

The first lease was entered into between plaintiff and defendant on November 23, 1951. The lease was executed for a five year period and signed by A. W. Stubbe-man, president of defendant, and attested to by Ruth F. Stubbeman, secretary. Defendant immediately moved its shop, assembly and servicing departments into the building located on the described lots and also used the building as a warehouse and continued to so use the premises throughout the initial five year period.

On October 1, 1956, a new five year lease, to become effective December 1, 1956, was signed by Stubbeman as president of defendant, and attested to by Mrs. Stubbe-man. The new lease provided for a monthly rental of $300.00. The monthly rental was paid until October, 1958. From the beginning period of the new lease (December 1, 1956) until October, 1957, the premises were used as they were during the first five year lease. Defendant continued to use the premises as a warehouse until October, 1958. By correspondence Stubbe-man, as president of defendant, continued to recognize the lease as valid and existent.

The two directors, Stubbeman and his wife, who attested to both leases, of course knew of the second lease contract. The third director, Brown, knew the defendant corporation was using the premises and knew the purposes for which used.

Plaintiff sold the property to the City of Fort Worth in August of 1961, thus terminating the lease with defendant.

The judgment for plaintiff in the amount of $9,900.00 covers the period from the date defendant ceased to pay the monthly rental to and including the month preceding the sale of the property to the City.-

The defendant, though objecting to the admissibility of some of the evidence, did not challenge the truth of the admitted evidence.

Defendant moved for an instructed verdict when the plaintiff rested. The motion was overruled.

Defendant offered no evidence.

Generally if a corporation accepts the benefit of a contract or acquiesces therein with knowledge, it impliedly ratifies it. If the directors had knowledge of the contract, or if the facts are such as to justify the presumption that they did have knowledge then a failure to disaffirm amounts to ratification. Miller v. Sealy Oil Mill & Mfg. Co., Tex.Civ.App., 166 S.W. 1182.

The doctrine of apparent authority is based on estoppel, and one seeking to charge a principal through the apparent authority of an agent to bind the principal must prove such conduct on the part of the principal as would lead a reasonably prudent person, using diligence and discretion, to suppose that the agent has the authority he purports to exercise. Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422; Great American Cas. Co. v. Eichelberger, Tex.Civ.App., 37 S.W.2d 1050.

A corporation, like an individual, is bound by the acts of its agent, expressly or impliedly authorized by it. It may become bound by a ratification without any formal action for that purpose by its board of directors. It may ratify by passive.acquiescence as well as by affirmative action. Its acquiescence, with knowledge, proven or which should be inferred, if continued for a considerable time, will operate as a ratification. Knowles v. Northern Texas Traction Co., Tex.Civ.App., 121 S.W. 232.

Keeping in mind the undisputed evidence heretofore mentioned, and in view of the above authorities, we are of the opinion the trial court correctly held that the lease contract was enforceable by reason of ratification and apparent authority. For two years defendant occupied and paid rent under the new lease. For the first year it used the premises for the same purposes it so used them under the original lease. During the second year it continued to use the premises for warehouse purposes. Defendant did not question Stubbeman’s authority to execute the lease until six years after its execution and four years after it had ceased to pay the monthly rentals.

All of defendant’s points of error have been duly considered and finding no reversible error each and all points of error are overruled.

Under the principles set out in the above cited cases, we affirm the judgment of the trial court.

Affirmed.


author: WILSON, Justice.

text:
    Kenneth DARDEN et al., Appellants, v. Kenneth W. SULLIVAN et al., Appellees.
    No. 4196.
    Court of Civil Appeals of Texas. Waco.
    Jan. 16, 1964.

      Gean B. Turner, H. M. McPherson, •Cleburne, for appellants.
    Walker, Baker & Altaras, Jack C. Altar-as, R. A. Kilpatrick, Cleburne, for appel-lees.
   WILSON, Justice.

Appellants Darden and others, as lessors, ■sought recovery of rents from appellees Sullivan and Beard under a building lease contract. A take-nothing judgment was rendered after a non-jury trial, which we affirm. Findings and conclusions were filed. We will consider the points related to each of the appellees separately.

The following facts are undisputed or are contained in unchallenged findings : Appellants, as lessors, and D. E. Polk, as lessee, executed a written agreement leasing the lower floor of a building for a term beginning August 1, 1959 and ending July 31, 1961 for a rental of $3240, payable $135 per month. The contract contained a typed provision: “The lessee has an option for an additional two. years for the same rent as this contract,” and a printed provision: “It is agreed and understood that any holding over by the lessee of the hereby leased premises after the expiration of this lease shall operate and be construed as a tenancy from month to month at a rental of $-.” On April 1, Í961 the lessee Polk sold the automobile business which he had been conducting in the leased premises to appellee Sullivan. Polk and Sullivan orally agreed, with Darden’s verbal approval, that “Sullivan would take over the lease, and at the end of the lease on July 1, 1961, would have the option of renewal for two years, but there were no writings to this effect.” The court found that in discussing the option Sullivan said that “when the remaining four months of the lease was up, he would like to exercise the two-year option, and asked Darden if he wanted to •transfer the lease to him, and Darden replied, ‘No, your word is good enough for me.’ ” There was no further written agreement. Rental was paid monthly until March 1, 1962, after which the premises were vacated and no further payments were made.

The court found Polk did not exercise the option to renew the lease, and Sullivan did not exercise any option to renew it after April 1, 1961. Appellees pleaded the Statute of Frauds, Art. 3995, Vernon’s Ann.Tex.Civ.St., in bar of appellants’ action alleging that Polk “transferred” the lease to Sullivan, who occupied the premises and paid the monthly rental to March 1, 1962, whereby appellants contend Sullivan became liable for rents due for the 16-month unexpired portion of the two-year renewal period covered by the option.

The court concluded that Sullivan occupied the premises after July 31, 1961 under a month-to-month tenancy, and the lease contract was unenforceable against him, as having been renewed for a two-year term, under subd. 4 of the Statute of Frauds pertaining to contracts for the lease of real estate for a longer term than one year. Appellants’ points attack these conclusions.

Where the unexpired term of a lease for more than a year does not exceed one year, a parol assignment of the lease for such unexpired term, it has been said, is not within the statute. 37 C.J.S. Frauds, Statute of § 114, p. 606; 49 Am. Jur., Sec. 191, p. 520. The assignment of a written lease with an option to renew for a term longer than a year, however, is required to be in writing under the statute. Duke v. Joseph, Tex.Civ.App., 213 S.W.2d 535, 536, writ refused; Dees v. Thomason, Tex.Civ.App., 71. S.W.2d 591, 592, writ refused; Weatherford v. Lee, Tex.Civ.App., 364 S.W.2d 730, 733, writ ref. n. r. e.; Bacon v. Nelson, Tex.Civ.App., 81 S.W.2d 287, 289; 49 Am. Jur. Sec. 191, p. 520; 37 C.J.S. Frauds, Statute of § 114, p. 606. See Bateman v. Maddox, 86 Tex. 546, 26 S.W. 51, 53.

Appellants cite cases holding that the provision in Art. 5237, V.A.T.S. for consent of the landlord to a renting or leasing by the tenant is for the landlord’s benefit, and may be waived by him. That statute is not involved here. They also rely on statements in several no-writ and writ-dismissed cases to the effect that possession and payment of rent by the original tenant or assignee is such performance as takes the oral agreement out of the Statute of Frauds. Despite such statements it is settled in Texas that mere possession referable to the contract and payment of rent or other consideration by the original tenant or assignee under an oral lease contract for more than a year will not relieve the agreement from the operation of the statute. There is a third indispensable element: the making of valuable improvements by the tenant or assignee, or existence of such facts as would make the transaction a fraud on the lessor if the agreement is not enforced. Ward v. Etier, 113 Tex. 83, 251 S.W. 1028, 1030, 1031; Maloy v. Wagner, 147 Tex. 486, 217 S.W.2d 667, 670, 671; Matney v. Odom, 147 Tex. 26, 32, 210 S.W.2d 980, 984; Duke v. Joseph, Tex.Civ.App., 213 S.W.2d 535, 537, writ refused; Walker Ave. Realty Co. v. Alaskan Fur Co., Tex.Civ.App., 131 S.W.2d 196, 198, writ refused; Lechenger v. Merchants’ Nat. Bank, Tex.Civ.App., 96 S.W. 638, 642, writ refused; Roberts v. Griffith, Tex.Civ.App., 207 S.W.2d 443, writ ref. n. r. e.; Cooper v. Astin, Tex.Civ.App., 343 S.W.2d 713; Weatherford v. Lee, Tex.Civ.App., 364 S.W.2d 730, 732, writ ref. n. r. e.; Blum v. Dismuke, Tex.Civ.App., 314 S.W.2d 635, writ dism. See generally annotations listed 80 A.L.R.2d 427. Under these decisions the latter element does not exist in this case.

We do not therefore reach any question of whether Sullivan orally exercised any renewal option so as to be bound by the lease between Darden and Polk for the duration of the second two-year term. We do not reach questions as to the effect of the provision concerning holding over after the expiration of the first two-year term as in Corpier v. Lawson, Tex.Civ.App., 356 S.W.2d 361. Sullivan’s rights are not governed by the provision of the lease between Darden and Polk. Our holding applies also to appellants’ claims under a subsequent and independent oral agreement relating to the rental of the second floor of the building, if it is contended it involved other than a tenancy by the month.

Appellants’ points as to appellee Beard are directed to the trial court’s conclusions of law and a fact finding as to estoppel, all of which are immaterial. Appellants alleged that in January, 1962 Beard formed a partnership with Sullivan and that Sullivan and Beard thereafter made two monthly rental payments. No other basis for liability against Beard is alleged. Apparently appellants now present the theory Beard orally agreed to assume the lease or the lease was orally assigned to him. The court found there was no assignment to Beard, written or oral, and he made no oral or written agreement to renew the lease. These findings are not challenged. Beard did not otherwise have any liability for rent which Sullivan did not have, as appellants concede. The judgment is affirmed.


author: McNEILL, Justice.

text:
    L. R. McLAIN, Appellant, v. W. B. SITTON, dba Sitton Bros. Feed Store, Appellees.
    No. 6656.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 16, 1964.
    Rehearing Denied Feb. 12,1984.
    H. L. Edwards, Nacogdoches, for appellant.
    Thompson & Stripling, Nacogdoches, for appellees.
   McNEILL, Justice.

Plaintiffs sued defendant upon open account for chicken feed sold him. Defendant denied the justness of the account under oath and pleaded the two year statute of limitations in defense. He also pleaded that the merchandise was bought to carry on a chicken raising business which constituted a joint enterprise between him and plaintiffs.

Judgment was for plaintiffs on jury findings: (1) that defendant was indebted to plaintiffs; (2) in the amount of $16,000.00; (3) there was no joint enterprise. Defendant appeals.

His first and second points are to the effect that there was no evidence to support the second finding. The issue upon which this finding was made reads:

“From a preponderance of the evidence, how much, if any, do you find L. R. McClain is indebted to Sitton Bros, since May 5, 1959?”

The account claimed due and sued upon amounted to $22,907.75. Defendant asserts that the only evidence offered by plaintiffs as to the amount due were the two sections of the account — called pullet account No. 1 and pullet account No. 2 ■ ■ — and that since there was a sworn denial thereof, the finding of $16,000.00 obviously has no support. Further attacking this finding, defendant says there was no evidence either that the prices of the feed were agreed upon or that the prices charged were usual, customary or reasonable.

Independent proof of the indebtedness was made by the plaintiff. W. B. Sitton, a partner in the plaintiff firm, testified he supervised the bookkeeping records of the business; that the records were correctly kept and that he made up the pullet No. 1 and pullet No. 2 divisions of the account sued upon from those records and these accounts were correct. Defendant on cross-examination when asked about the account stated he did not question any item as to whether it had been delivered to him, nor the price charged therefor. This testimony makes plaintiffs’ case and eliminated the need for other proof of delivery or to show the prices charged were correct. Magee v. Barnes, Tex.Civ.App., 135 S.W.2d 1038; 1 Tex. Jur.2d 313. He said he only questioned the total amount sued for. This he appeared to do because he thought some $6,000.00 of it was made up of an old account which was barred by limitation. We quote his testimony on this:

“A. The total amount I question, but as far as the individual tickets, I don’t question.
“Q. In what way do you question the total amount?
“A. Well, there wasn’t a part of the —I mean there was a part of the first account that wasn’t paid at the end of that two-year limitation.
“Q. I don’t quite follow you there —just explain why — why you question the total of this and do not question the individual items?
“A. Well, at the end of that first year there was some — something over six thousand .($6,000.00) dollar's — I don’t remember just what it was, still due on that Account ' No. 1. — And that would have been at the end of ’59 if I remember correctly."

Because the second issue excluded from the jury consideration of any indebtedness prior to May 6, 1959, this testimony could have caused the jury to think that defendant should be entitled to credit for about the $6,000.00 of an old account mentioned in the quoted testimony, and it therefore found the balance owing to be $16,000.00. Also as bearing upon this finding, it may be said that much testimony pro and con was heard by the jury as to credits made and as to old balances carried upon both sections of the account sued upon. And after having testified he did not question the items nor the prices but only the total amount, defendant stated later he did not owe plaintiffs anything. It was therefore within the jury’s province to determine the credibility of the witnesses and generally the weight and sufficiency of the evidence. 1 Tex.Jur.2d 308; 41 Tex.Jur.2d 213. Plaintiffs make no complaint of the amount found by the jury to be owing and defendant is in no position to attack the finding for the amount found to be due was more than favorable to him. 4 Tex.Jur.2d, Sec. 763, pp. 267, 268.

Defendant’s third point is that since the two sections of the account were not properly itemized and sworn to, the trial court erred in failing to sustain his motion to have them withdrawn from the jury’s consideration. However, no objection was made at the time it was received in evidence that it was not properly itemized nor sworn to. The only objection made at the time the evidence was offered was it constituted “second-hand testimony and hearsay”. Other objections made thereto later may have been waived. Tex. Evidence, McCormick & Ray, Vol. 1, Sec. 23, p. 21; Sec. 26, p. 25. It is thought that the action upon the motion was one within the trial court’s discretion. Missouri Pac. Ry. Co. v. Lamothe, 76 Tex. 219, 13 S.W. 194; Federal Crude Oil Co. v. Yount-Lee Oil Co., Tex.Civ.App., 73 S.W.2d 969. In any event plaintiff Sitton’s testimony was to the same effect and because of the other evidence admitted any error was harmless. Rule 434, Texas Rules of Civil Procedure.

Defendant has no point raising the insufficiency of the evidence to sustain the second finding. We doubt, therefore, any need to comment thereon although the point is alluded to in defendant’s argument. However we have given careful consideration to all the evidence bearing on this issue and find it sufficient to sustain the jury’s answer. In support of this conclusion we quote from the first assignment of error in defendant’s motion for new trial:

‘ * * * The evidence conclusively shows, undisputed, that if the jury disbelieve the defendant’s defense, then the plaintiffs were legally entitled to recover the full amount shown by the two sworn itemized accounts, less two small items barred by limitation and excluded by special issue No. 2; in fact the defendant, called as a witness under the adverse rule, admitted on direct examination by plaintiffs attorney, that the two sworn itemized accounts were correct as the amounts stated for chicken feed.”

The correct judgment was rendered by the District Court and its action is affirmed.


author: DUNAGAN, Chief Justice.

text:
    INDUSTRIAL LIFE INSURANCE COMPANY, Appellant, v. Robert D. FINLEY, Jr., Appellee.
    No. 10.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 23, 1964.
    Rehearing Denied Feb. 20,1964.

      J. L. Shook, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellant.
    Douglas E. Bergman, Dallas, for appel-lee.
   DUNAGAN, Chief Justice.

Robert D. Finley, Jr., as plaintiff, sued Industrial Life Insurance Company, as defendant, for contingent commissions as a life insurance agent under a written contract. Defendant, Industrial Life Insurance Company, answered pleading accord and satisfaction, compromise and settlement and release as well as that no commissions were due under the provisions of the contract after it was terminated no premiums being received by Industrial during any six month’s period following termination.

Both plaintiff, Finley, and defendant, Industrial Life Insurance Company, filed motions for summary judgment. The 68th District Court sustained plaintiff’s motion for summary judgment and entered summary judgment for the plaintiff, Robert D. Finley, Jr. The court denied defendant’s motion for summary judgment.

The defendant, Industrial Life Insurance Company (appellant in this court), has appealed from the court’s judgment sustaining plaintiff’s motion (appellee in this court) for summary judgment.

Industrial Life Insurance Company of Dallas, Texas, entered into an agency agreement with Robert D. Finley, Jr., dated July 9, 1958, appointing Finley as its agent and representative for the purpose of soliciting insurance on the lives of debtors of financial institutions and dealers located in and near Midland, Texas, on the terms and conditions contained in said agency agreement. That pursuant to the terms of such contract, plaintiff was to receive 50% of the net premiums on life and health and accident insurance written by him, and further was to receive contingent commissions in accordance with the formula set forth in such contract; that on or about the 3rd day of April, 1959, such contract was amended to provide that agent should receive 55% of all premiums written on life insurance in accordance with written amendments to such contract; that on or about the 1st day of August, 1959, said contract was further amended by written amendment providing that plaintiff should receive a guaranteed commission of 55% of all accident and health premiums written pursuant to such contract and making certain changes in the formula for computing contingent commissions reading as follows:

“The contingency provision of the Agency Agreement will be amended to the effect that effective the first month that the net Life and Accident & Health combined premiums equal $1,500.00 per month, the company retention will be lowered to 13% which will become effective at the end of the 12 month period from this date provided the total net premiums for the 12 month period equals $18,000.00.
“The other provisions of this Agency Agreement remain the same.”

There would be no useful purpose served by copying herein the full agreement. Only the following portion of the agreement is pertinent to the dispute between the parties as brought forward in this lawsuit.

“The agent will collect credit life and accident and health premiums according to company rate charts No. 700 and No. 710.
“The agent will be entitled to receive a flat guaranteed commission of 50% of the net credit life and accident and health premiums collected and reported each month. In addition the agent will be entitled to receive a contingent commission which will be computed according to the following formula at the end of each twelve month period for which premiums are received under this agreement. The total amount of earned premiums, calculated on a monthly pro rata basis, will be determined through IBM computations. Thereafter the following deductions will be made from the calculated earned premiums: 50% of the net written life and accident and health premiums already paid to the agent; 15% of the net written premiums to be deducted for Industrial’s retention figure; all losses incurred during the twelve month period. If there is any remaining amount of earned premium, then all of the remaining amount will be paid to the agent in the form of a contingent commission.
“It is agreed that in the event the guaranteed commission paid the agent, and the amount of incurred losses during the year are such that Industrial does not receive its retention figure, then the deficit amount will be carried forward to the following year and will serve as a deduction in computing the contingent commission due the agent that year. This deficit formula will continue on a year to year basis until Industrial receives it’s 15% retention figure each year. However, in no way will it affect the guaranteed 50% commission paid the agent on a net written premium basis.
“At the request of the agent the company hereby agrees to.compute the contingent commission due, if any, according to the above formula every six months that premiums are received under this agency agreement.”

The above portion of the contract of course is subject to the amendments thereto as stated above.

Appellee Finley in his original petition alleges that under the terms of such contract defendant was required and obligated to furnish the plaintiff each six months from and after July 9, 1958 a statement in writing showing a computation of the contingent commissions due to plaintiff under the terms of such contract; that defendant furnished to plaintiff such computation as required by said contract through and including the period ending December 31, 1960, but has failed and refused to furnish any accounting or computation of the contingent commissions due to plaintiff under the terms of such contract since such time; that without such computation plaintiff does not have records from which the exact amount of contingent commissions due to plaintiff under the terms of such contract can be computed, but plaintiff, on information and belief, and so believing alleges the facts to be that defendant is indebted to the plaintiff in the sum of $18,000.00 for contingent commissions due under the terms of the contract.

In plaintiff’s first supplemental petition, paragraph 4 thereof, he alleges that subsequent to the filing of the original petition he has received from defendant a statement covering all premiums received by defendant on policies written by plaintiff from the inception of the contract, to and including September 30, 1962; that such statement shows that all premiums on policies written by plaintiff have been duly earned as of such date, and after deducting all losses paid and the 15% and 13% retentions, respectively, to be received by defendant under the terms of such contract and the contingent commission paid to plaintiff in the amount of $814.52, there remains due and payable to plaintiff under the terms of such contract the sum of $9,835.62.

Thereafter, Robert D. Finley, Jr., filed his motion for summary judgment and grounds therefor as relied upon as set forth in his original and supplemental petitions, said motion alleging further that the pleadings and exhibits on file show that there is no genuine issue as to any material fact and he is entitled to judgment for full recovery upon such claim against defendant as a matter of law.

Industrial Life Insurance Company filed its answer to said motion for summary judgment. Also, on the same date Industrial Life Insurance Company filed its motion for summary judgment and attached thereto was affidavit of W. C. Hassard, Treasurer and Chief Accounting Officer of Industrial Life Insurance Company, affidavit of James W. Shepard, Vice President of Industrial Life Insurance Company, and letter from R. D. Finley to Mr. Jim Sheppard dated August 16, 1960. Robert D. Finley, Jr., filed his contest and answer to said motion and attached thereto was affidavit of Robert D. Finley, Jr., letter from Carl W. Buttenschon, Agency Supervisor, to R. D. Finley dated July 7, 1961, and letter from R. D. Finley to Mr. Jim Sheppard, Dallas, Texas, dated December 21, 1961. Also, the record before us contains a letter from James W. Sheppard, Vice President, to Mr. R. D. Finley, Jr., dated December 8, 1961.

The Trial Court had before it the pleadings of the parties with all exhibits attached either to the motions and contests for summary judgments or to other pleadings in the case.

In a letter dated August 16, 1960, written by appellee, R. D. Finley, addressed to Mr. Jim Sheppard, Industrial Life Insurance Company, Box 2998, Dallas, Texas, which, in part, reads as follows:

“Dear Jim: This is to confirm our telephone conversation, Monday, August 15, 1960, which I advised you that we were discontinuing writing Industrial Life Insurance coverage on our loans as of August 1, 1960. * *

The other portion of his letter states his reasons for such action which we do not believe material to the issues before us.

The following letter was written by James W. Shepard to Mr. R. D. Finley, Jr., dated December 8, 1961, and reads as follows:

“Dear Bob: Reference is made to our recent conversation pertaining to possible contingent commission due to you that may have accrued as a result of the agency agreement that we had with you when you were with the City Finance Company of Midland.
“Our attorneys have examined our entire contingent commission program and have advised us that the wording which is controlled in the contingent commission portion of your original agency agreement which was dated July 9, 1958 covers only contingent commissions earned in ‘each 12 month period for which premiums are received under this agreement.’ They have advised that, whenever the agency agreement has been cancelled, the earning of any contingent commission ceases on that date. They have advised that your contingent commission should be computed August 1, 1960, since July, 1961 was the last month in which you issued coverage for our company. However, since your agency agreement also provides that the formula be computed for each 6 month period, we furnished to you, on July 7, 1961, a statement of the contingent commission which had accrued to you as of December 31, 1960. In the event you have misplaced your copy of this statement, I am enclosing a photostatic copy of same which reflects that, as of that date, your contingent commission amounted to $814.52.
“Inasmuch as this is the last date that the contingent commission will be computed, I am enclosing herewith our check in the amount of $814.52 which is full and final settlement for the contingent commission due under our contract which you terminated by letter dated August 16, 1960. In the event you do not have a copy of your letter of termination, I am enclosing- herewith a photostatic copy of it, together with a photostatic copy of the contingent commission provision of the agency agreement.
“Bob, I was sorry that we were not able to continue to do business with you since our relationship had always been so pleasant. If, at any time in the future, you re-examine your insurance program, we would like the opportunity of conferring with you about it.”

Accompanying said letter was a check dated December 8, 1961, from Industrial Life Insurance Company to Robert D. Finley in the sum of $814.52, with the following notation thereon:

“Received as full payment of all money due as contingent commissions under an agency agreement between Robert D. Finley, Jr. and Industrial Life Insurance Company, dated July 9, 1958.” Robert D. Finley accepted, endorsed and cashed such check and such check was paid in full to him in the amount of $814.52.

Appellant pleaded accord and satisfaction, compromise and settlement and release as well as that there were no commissions due under the plain words of the contract, such contract having been voluntarily terminated by Finley and no premiums having been received from R. D. Finley, Jr. after August 1, 1960. Appellee takes the position that a proper construction of the contract involved herein establishes that appellant received premiums from insurance written by appel-lee through August 1, 1962; that appellee was entitled to contingent commissions on such premiums, which such contingent commissions could not have been calculated until on or after August 1, 1962. That the check in the amount of $814.52 received by appellee and cashed by him as alleged in the pleadings could not as a matter of law constitute accord and satisfaction, a compromise and settlement, or a release of appellant from the payment of contingent commissions from and after December 31, 1960, because no commissions were due to appel-lee under a proper construction of the contract at issue until August 1, 1962, when all the business written by appellee had run off the books, so that the formula set up in the contract for computing contingent commissions could be fully applied.

The appellee further urges that in the event the acceptance and cashing of the check for $814.52 with the notation on the back thereof “Received as full payment of all money due as contingent commissions under an agency agreement between Robert D. Finley, Jr. and Industrial Life Insurance Company, dated July 9, 1958” should be held by the court to amount to an acceptance and satisfaction and compromise and settlement and release and discharge, then and in that event a genuine issue of material fact exists in this cause as to whether appellee accepted and cashed such check with the understanding on his part that it was in payment of contingent commissions that might become due to him from and after December 31, 1960. Appellee alleges in his answer and contest to the motion for summary judgment filed by appellant that at the time of his acceptance of the check delivered with defendant’s letter of December 8, 1961, in the amount of $814.52, he accepted such check with the understanding on his part that it was in payment of contingent commissions due to him under the terms of his contract for the period ending December 31, 1960, which was the only amount due at that time; and he in no manner understood the legend on the back of such check to be and constitute a release of any contingent commissions that might become due to him subsequent to December 31, 1960, at such time as computations could be made under the terms of such contract in order to determine whether or not such contingent commissions were due.

Robert D. Finley, Jr., in his affidavit attached to his contest and answer to appellant’s motion for summary judgment, states that at the time of his acceptance of Industrial Life Insurance Company check dated December 8, 1961, payable to him in the amount of $814.52, it was accepted and cashed by him with the understanding on his part that it was in payment of contingent commissions due to him under the terms of his contract with appellant for the period ending December 31, 1960; that the amount of such check was in the exact amount of the computation which had been furnished to him by Industrial Life Insurance Company, showing the contingent commissions earned by him as of December 31, 1960; that he had made demand prior to December 8, 1961 on appellant, both orally and in writing, for payment of the contingent commissions due to.him under the contract and on several occasions and had been informed that such sum of $814.52, shown to be due as contingent commissions for the period ending December 31,1960, would not be paid to him until all the business had run off the books; that it was his understanding that delivery to him of said check was payment of contingent commissions due him as of December 31, 1960, and that he in no manner understood the tender of such check with the legend on the back thereof as being in payment of contingent commissions to accrue to him subsequent to December 31, 1960, under the terms of his contract with the company, as under the contract such commissions could not be computed in accordance with the formula set forth in such contract until such business had run off the books of the company. And further, that at the time of the acceptance of such check there was no contingent commissions due to him under the terms of the contract except for the period ending December 31, 1960. In support of appellee’s position that he did not understand his acceptance of the check in any manner affected his claim to continue commissions accruing subsequent to December 31, 1960, he filed as an exhibit his letter to Mr. Jim Sheppard, % Industrial Life Iunsurance Company, Box 2998, Dallas, Texas, dated December 21, 1961, which was some several days after he received his letter and check dated December 8, 1961, which reads as follows:

“Dear Jim, I have been out of town this week and in checking with my wife last night, I find that the Contingent Commission Statement which was to have been in my hands not later than Monday December 18, 1961 had not been received. I will appreciate your sending this statement at once.
“I want to thank you for sending the Statement of Losses. It was abort what I had figured except for the Foy account. It looks as if you may be charging me with your attorney ex-pence, which I can not be held responsible for this expence since it was your election to handle the claim in this manner.
“Jim, please do not feel that my feelings in this is personal. I am simply not going to just give the commissions due me away. I will do what is necessary to see that I receive my full commissions. Very best season’s greeting to you and yours.”

W. C. Hassard, Treasurer and Chief Accounting Officer of Industrial Life Insurance Company, by and through his affidavit, says that when the check of Industrial Life Insurance Company was issued to Robert D. Finley containing a restriction and limitation by way of such notation on the back of such check that such language was placed on such check by appellant before it was transmitted to Robert D. Finley, Jr. That at the time of the issuance of such check in the sum of $814.52 to Robert D. Finley, there then existed a bona fide dispute, both as to the contingent commission due under the agency contract which had been can-celled by mutual agreement on the 16th day of August, 1961, as of the 1st day of August, 1961; because Industrial Life Insurance Company through its officers and attorneys, were contending that the contract having been cancelled, the earning of contingent commissions ceased on the date of such cancellation or in any event that no contingent commission could accrue subsequent to the end of the six month period last, during which premiums were received. When the check of December 8, 1961, in the sum of $814.52 in favor of Finley was issued and the letter of appellant to Robert D. Finley, Jr. (December 8, 1961) signed by James W. Shepard, was written, any other or further commissions the subject of any dispute were then completely unliquidated and unknown and unascertainable for the reason that the losses and loss expenses and other charges which might have then been made or might thereafter have been made against the premiums earned were unknown and un-ascertainable and could not be ascertained and determined until after the losses or expenses were thereafter incurred. He further says the unearned premium against which such losses and loss expenses would have been charged while more certain of ascertaining by virtue of the lapse of time were likewise unliquidated and had not been ascertained, but the unearned premiums only were known and the earned premiums could only be calculated by taking into account the various factors and the lapse of time necessary to correctly ascertain the earned premiums at any given date as against the unearned premiums, and such continued until all of such premiums were earned, which did not occur until the 31st day of December, 1962.

The affidavit of James W. Shepard, Vice President of Industrial Life Insurance Company, is similar to the statement of Mr. Hassard in his affidavit. Mr. Shepard states that Robert D. Finley had been advised of their position, that because of the provision of the agreement and because of its cancellation by mutual agreement that the earning of any contingent commission ceased, both because of the cancellation and because of the provisions of the contract with reference to commissions being payable only for periods for which premiums are received under the agreement; that he intended for Industrial Life Insurance Company both by the language of his letter of December 8, 1961, as well as by the placing of the language on the back of the check of Decem-her 8, 1961, to be full payment of any sum to Robert D. Finley, Jr., in connection with the agreement of the matters involved. That Robert D. Finley did not reject said check nor return it but proceeded to cash same after having received his letter of December 8, 1961, which accompanied said check.

We have quoted at length from the affidavits of Hassard, Shepard, and Finley and the pleadings in order to reflect the intentions and understanding as claimed by each.

We first must determine from the record before us whether a material issue of fact exists in this case. The appellee construes the notation on the check of December 8, 1961, in the sum of $814.52, as being in full payment of all contingent commissions due as of December 8, 1961, under the terms of such agency agreement; whereas, appellant takes the position that the notation was in final payment of any and all contingent commissions due or which might become due under the agreement. Appellant says that Finley having terminated the agency agreement in his letter of August 6, 1960, as of August 1, 1960, that said agency agreement did not provide for any future or further commission after the cancellation except those which had occurred prior to the termination by the appellee or those which might accrue during the last six month period that premiums were received under the agency agreement and no premiums were received by appellant from appellee after August 1, 1960. And he further said that should the appellant be mistaken as to this being the proper interpretation of the contract, that by the cashing of said check by Finley in connection with the letter of December 8, 1961, that he released any claim to any future contingent commissions that might be due him under the contract and also that accord and satisfaction and compromise and settlement results from Finley’s action.

In the case of McCarty et al. v. Humphrey et al. (Tex.Com.App.) 261 S.W. 1015, the court held that accord and satisfaction, being dependent upon agreement, only occurs where the parties mutually assent to it. Their intention is a controlling element. In such a transaction there can be no agreement expressed or implied when both parties have no intention to make it, or when one has but the other has not. Citing as authority therefor Gulf, C. & S. F. Railway Co. v. Gordon, 70 Tex. 80, 7 S.W. 695, 697.

Whether or not a transaction constitutes payment in termination of liability depends upon the intention of the parties, and acts which might otherwise constitute payment will not do so when the parties do not so intend. Greenwood v. Senter, Tex.Civ.App., 44 S.W.2d 504, affirmed in part and reversed in part, Tex.Com.App., 61 S.W.2d 812.

In Rowlett v. Superior Ins. Co., Tex.Civ.App., 325 S.W.2d 921 (writ refused n. r. e.), the court said:

“It is also held that payment does not occur unless money passes from the debtor to the creditor for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose.”

Citing a number of authorities. In the case of Call of Houston, Inc. v. Mulvey, Tex.Civ.App., 343 S.W.2d 522 (no writ history), the court held:

“It has also been held that the parties must intend and the creditor must fully understand that the amount tendered is conditioned as full settlement.”

And the court further said:

“It has also been held that if the creditor is to be held to have surrendered his claim against the debtor, it must be shown that he understood or should have understood that he was doing so when he received the consideration claimed therefor.”

We think this case presented a question very similar to the question now before this court for determination.

Bouvier’s Law Dictionary (Century Edition) defines the word “due” as:

“What ought to be paid; what may be demanded.
“It differs from owing in this, that sometimes what is owing is not due; a note payable thirty days after date is owing immediately after it is delivered to the payee, but it is not due until the thirty days have elapsed.”

In the case of Oden v. Gates, Tex.Com.App., 119 Tex. 76, 24 S.W.2d 381, the word “due” is defined as follows:

“The word ‘due’ has a double meaning: (1) That the debt or obligation to which it applies has by contract or operation of law become immediately payable; (2) an existing indebtedness without reference to the time of payment, in which it is synonymous with ‘owing,’ and includes all debts, whether payable in praesenti or in futuro.”

The letter from Finley to Sheppard dated December 21, 1961, in which he (Finley) says “I will do what is necessary to see that I receive my full commissions” supports his contention that in cashing and accepting the check of December 8, 1961, in the sum of $814.52, he did not intend to release any future contingent commissions he would be entitled to under the agency agreement.

We think the fact that there was, or might have been, a misunderstanding on the part of appellee as to whether or not the legend on the back of the check was in full payment of all contingent commissions due as of December 8, 1961 only, or whether it was in final payment of any and all contingent commissions due or which might become due under the agency agreement, presented an issue of fact. Also, we believe a question of fact is raised as to what the parties intended by the expression “due”, and that it would be a matter of proof of the meaning intended by the term used.

For these reasons, the decision of the Trial Court is reversed, and the case remanded for trial on its merits.


author: SPERRY, Commissioner.

text:
    Pearl REYNOLDS and Verda Reynolds, Plaintiffs, v. CONSOLIDATED CABS, INC., a Corporation, John Perkins, and Frances Richardson, Defendants.
    No. 23839.
    Kansas City Court of Appeals. Missouri.
    Feb. 3, 1964

      Thomas J. Conway, Jr., Popham, Thompson, Popham, Trusty & Conway, Kansas City, for appellants.
    Selden M. Jones, Jr., Robert A. Sniezek, Henry Fox, Jr., Sniezek & Jones, Kansas City, for respondents.
   SPERRY, Commissioner.

Plaintiffs, Pearl Reynolds and Verda Reynolds, her husband, sued defendants in separate actions for damages growing out of injuries suffered by Pearl Reynolds in an automobile collision between a taxicab being operated by defendant Perkins and owned by defendant, Consolidated Cabs, Inc. The cases were consolidated for trial. There was a verdict and judgment for Pearl Reynolds in the sum of $5000.00 and for Verda Reynolds in the sum of $2000.00, against all defendants. Defendant Richardson has not appealed. This appeal is prosecuted by Consolidated Cabs, Inc., and defendant John Perkins.

The collision occurred on February 7th, 1960, at about 6:50 A.M., before the street lights were turned off. It occurred within the intersection, at 39th Street and Troost Avenue, in Kansas City, Missouri. Traffic proceeds east-west on 39th Street, and north-south on Troost Avenue. 39th Street has two lanes for westbound traffic and Troost Avenue has three lanes for southbound traffic. At the time the accident occurred both 39th Street and Troost Avenue were dry and the intersection level. Traffic at the intersection was controlled by electric signals at all corners. The legal rate of speed, on both streets, was 25 miles per hour. The two drivers were proceeding, at all times, within that speed.

We will state the evidence, as gleaned from the record, in the light most favorable to the position of plaintiff.

Mrs. Reynolds testified to the effect that, at some time prior to 7:00 A.M., she boarded the automobile of Mrs. Richardson to travel to her place of employment; that there was another lady passenger in the front seat and plaintiff sat in the back seat; that, as the car approached Troost Avenue on 39th Street, traveling west, she did not observe the lights, speed or traffic; that when the Richardson car was in the intersection she saw a car approaching; that it struck the Richardson car on its right side, near where plaintiff was sitting.

Mrs. Richardson • testified by deposition to the effect that, as her car approached the intersection, entered it and proceeded west-wardly across Troost, it was traveling at a speed of from 20 to 25 miles per hour; that, when the front of her car was entering Troost she saw a car (the taxicab) one fourth block north on Troost, traveling south; that there was no other car in sight on Troost; that the cab was traveling at a speed of 25 miles per hour; that the signal light governing traffic on 39th Street was green; that it had just turned green as she was entering Troost; that she was watching the light and did not again see the cab until the accident occurred; that the front of the cab struck her car on the right side; that the front of her car, at the time the collision occurred, was across the white line next to the west curb line of Troost, within one half of a car length from the west curb; that Mrs. Reynolds was a passenger in the rear seat of her car, and that Miss Marvin was a passenger in the front seat.

Officer Maxwell, of the Kansas City, Missouri, police accident squad, testified to the effect that he arrived at the scene of the collision at about 6:50 A.M., that the cab was headed west on 39th Street, at the southwest corner of the intersection, the rear extending two feet into Troost Avenue; that the Richardson car was from thirty to forty feet south of the curb line on 39th on Troost, headed southwest; that there were no skid marks in the rear of either vehicle; that the cab was damaged on the front and left side; that the car was damaged on the right side; that the greatest amount of debris was located at a point from ten to twelve feet south of the north curb line of 39th Street, and thirty five feet west of the east curb line of Troost Avenue ; that the car was from sixty to seventy feet south of the debris; that the cab was from thirty five to forty feet south of the debris; that an automobile traveling at a speed of 25 miles per hour would travel twenty seven and one half feet before the driver could get his foot on the brake, and then would skid from forty to fifty feet; that, at 20 miles per hour, it would travel twenty feet before the driver could apply the brakes, and could be stopped within from thirty five to forty five feet thereafter.

Defendant Perkins stated that he was, at the time the collision occurred, operating the taxicab for Consolidated Cabs, Inc., that he was proceeding south on Troost Avenue between 38th and 39th Streets, when he stopped in the middle of the block for a passenger on the west side of Troost Avenue; that he did not pick up the passenger and pulled away from the curb into the southbound lane next to the center line of Troost Avenue; that the traffic light at 39th Street was red on Troost Avenue when he stopped but turned “green to go” as he started to pull away from the curb, from fifty to one hundred feet from 39th Street; that there were no motor vehicles ahead or behind him traveling south on Troost Avenue; that he first saw the Richardson car when it was from fifteen to twenty feet east of Troost on 39th Street, proceeding westward; that the light was then red on 39th Street, and green on Troost Avenue; that the taxicab was, at that time, from fifteen to twenty feet north of the north curb line of 39th Street, traveling at a speed of from 20 to 25 miles per hour; that he saw there would be a collision because it was coming into the intersection; that he applied the brakes “normally.”

Mr. Perkins’ deposition was read into evidence and he stated therein that, when he was fifteen or twenty feet north on Troost proceeding at 20 to 25 miles per hour, he, for the first time, saw the Richardson car; that he knew there would be a collision; that (the Richardson car) “it had gotten into the intersection”; that he applied the brakes after his cab was in the intersection, and swerved to the right, striking the other car.

Mr. Obermaier, a short-hand reporter, stated that he recorded a statement by defendant Perkins, in question and answer form. He produced a typewritten transcript and stated that it was taken February 8th, 1960. Under questioning, he read excerpts therefrom, from which it appears that Perkins stated that he stopped at 38th and Troost for a passenger; that the light at 39th Street turned green “just before I left 38th Street, just was changing” ; that he didn’t know how far north of 39th Street he was when he first saw the car; that it was “just like something flashed, it was just there”.

Miss Marvin testified to the effect that she was a passenger in the front seat of the Richardson car; that just before entering the intersection, the traffic light facing her was green; that she watched the light for a time and then saw a cab coming south on Troost; that the Richardson car was traveling at a speed of 20 miles per hour and that the cab was traveling faster; that, when she was half way in the intersection, the cab hit the car.

All parties stipulated, in open court, that the court should not instruct the jury on the “highest degree of care”.

Defendant presents but one question on this appeal, which is that plaintiff Pearl Reynolds’ instruction two is erroneous. It is also contended that instruction four is erroneous. It will be unnecessary to discuss the latter instruction because it is Verda Reynolds’ instruction and a duplicate of number two.

Instruction No. 2 essentially tells the jury that plaintiff is entitled to recover if they find that plaintiff was riding as a passenger in the Richardson automobile while it was being driven westivard on 39th Street at a time when defendant Perkins was operating a taxicab southward on Troost Avenue; that the two vehicles were approaching each other at right angles, collided, and plaintiff was injured; that the car in which plaintiff was riding had entered the intersection when defendant Perkins operated the taxicab then and there at a speed of 25 miles per hour when it was twenty feet north of the north curb line of the intersection; that Perkms operated the cab at a speed which was greater than would permit him to decrease speed or to stop as may have been necessary to avoid the collision; a/nd, that such operation of the cab by Perkins was negligence. The instruction further told the jury that under the hypothesized facts, if so found and believed, their verdict must be in plaintiffs favor even if they further found that Perkins entered the intersection on a green light.

The first' criticism is to the effect that the jury was not required to find the degree of care which Perkins was required to exercise at the time and place of collision. The parties had stipulated that "highest degree of care” need not be defined. No degree of care, highest or ordinary, was stated, referred to or defined in any instruction. However, instruction No. 2 informed the jury that, if the jury found that Perkins operated the cab at a rate of speed which was greater than would permit him to decrease speed or to avoid the collision, and that such operation was negligence, then the jury should find for the plaintiff. In effect, the jury was instructed that such conduct in the operation of the cab could constitute negligence, if the jury found it to be negligence in this case. Ordinarily the word “negligence” need not be defined in the instructions in view of its common usage and well understood meaning. Silsby v. Hinchey (Mo.App.) 107 S.W.2d 812, 818; Fantin v. L. W. Hays, Inc. (Mo.App.) 242 S.W.2d 509-513. The instruction gave the jury a rule by which they were permitted to find negligence and, therefor, the degree of care required of him. Defendant could not have been prejudiced by the failure of the Court to specifically define the term or announce any further rule of care. The instruction permitted plaintiff to recover only if Perkins operated the cab at such a speed as to prevent his slowing or stopping to avoid the collision. Only if the jury so found, and also found that such conduct constituted negligence at the time and place mentioned, then the jury was told that it should find for plaintiff. It did not make insurers of plaintiff.

Defendants also criticize the last portion of the instruction. This criticism rests on the broad theory that it directed a verdict for plaintiff even though under circumstances that “made it impossible for Perkins to avoid the collision.” It only permitted a verdict for plaintiff in the event that it was found that Perkins was operating the cab at a speed which was greater than would permit him to avoid the collision by decreasing speed or stopping. This is the precise negligence with which Perkins was charged. Defendants say that a verdict for plaintiff was thereby directed even though the Richardson car came into the intersection on a red light, which was in accordance with some of defendants testimony but contrary to that of plaintiff. However, the instruction, under a fair interpretation, permitted recovery only if defendant operated his cab at such a speed as would not permit him to avoid the collision, by slowing or stopping, under all of the circumstances shown. The plaintiff’s theory and evidence was to the effect that the Richardson car entered the intersection on the green light and was nearly across it when it was violently struck on the right side by the front of the defendants’ car. Such theory was supported by a portion of Perkins’ testimony and some of the physical facts in evidence. But the defendants offered evidence tending to prove that its cab entered the intersection on the green light. In any event, defendants do not contend that they were not required to have the cab under control so as to slow or stop, if necessary, at the intersection. Wyatt v. Hughes (Mo.App.) 236 S.W.2d 371, 375.

In this case it is noted that the jury was, initially, required to find that plaintiff had entered and was within the intersection when defendant was twenty feet north thereof, proceeding at 25 miles per hour. In Roberts v. Wilson, 225 Mo.App. 932, 33 S.W.2d 169, 172, where there was evidence that plaintiff’s car arrived at the intersection first, this court held that care and prudence demand that one who is about to drive into an intersection where there is traffic should exercise the highest degree of care and to slow down and have his car under such control that he may stop before colliding with another vehicle in the intersection.

In Sommer v. St. Louis Public Service Company (Mo.App.) 262 S.W.2d 335, 336, et. seq., the St. Louis court considered an instruction quite similar to the one here involved. The instruction required a finding that plaintiff’s car had entered the intersection, that defendant’s bus had not yet reached the intersection. The instruction was held to be good because the negligence relied on was defendant’s failure to yield the right of way under the conditions existing, and the court said: “but in a situation such as this, where the plaintiff’s car was in the intersection” of a busy thoroughfare before defendant’s bus entered the intersection, plaintiff had a right to cross. The court distinguished that case from that of Stakelback v. Neff (Mo.App.) 13 S.W.2d 575 and Greenwood v. Bridgeways, Inc. (Mo.App.) 243 S.W.2d 111.

In Brooks v. Mock (Mo.) 330 S.W.2d 759, 765, plaintiff had entered the intersection, and was within it, when defendant’s automobile arrived thereat. Plaintiff’s instruction two, permitting recovery upon a finding that defendant was proceeding at a high and excessive rate of speed “under the circumstances shown in evidence”, was approved. The court observed that the rule stated in the Stakelback case, 13 S.W.2d 575, 577, has no application to a case where the submission is on high and excessive speed, “wider the circumstances shown in evidence”. That is the negligence here submitted, which prevented defendant from being able to stop; a rate of speed which resulted in his failure to have his automobile under control so that he could stop. That is the submitted negligence, according to the essential meaning of the language used in the instruction, which is the governing factor in construing the instruction. Litt v. Allen (Mo.App.) 313 S.W.2d 183, 187. Defendant was not given an absolute right to cross the intersection regardless of all other traffic even if, as he said at one time in evidence, the green light was facing him before and when he entered it. Witt v. Peterson (Mo.) 310 S.W.2d 857, 860. There was evidence to the effect that there was but little traffic on Troost as defendant approached the intersection; and plaintiff’s evidence was to the effect that she was within the intersection when defendant was twenty feet north thereof. She had almost reached the west curb of Troost when the Richardson car was struck in the side. Perkins was duty bound to look and, to look is to see that which is clearly visible. Cooksey v. Ace Cab Co. (Mo.) 289 S.W.2d 40, 44-45. He was required to have his car under control and to take appropriate action to avoid a collision, under the facts hypothesized in the instruction and shown in evidence.

It is also urged that the instruction is erroneous because it permitted recovery if the jury should find that the speed of the cab was such that it could not be stopped in time to avoid the collision when all of the evidence “ * * * established it would have been impossible for him (Perkins) to have done so”. We agree that such was the state of the evidence but the effect of such evidence was merely to establish the negligence of Perkins, as charged, by a preponderance of the evidence on that submitted ground.

The instruction is not artfully drawn and is not a model for future use, but it does not appear that error was committed affecting the merits of the case.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court.

All concur.