author: HALL, C. J.

text:
    BELL v. HAYNES et al.
    No. 3597.
    Court of Civil Appeals of Texas. Amarillo.
    April 29, 1931.
    Joiner & Cook, of Plainview, and L. G. Mathews, of Floydada, for appellant.
    Kinder & McMath and Williams & Day, all of Plainview, for appellees.
   HALL, C. J.

This is an action in trespass to try title filed May 12,1930, by Mrs. Flora HayneS and T. Brown Haynes against the appellant Bell, to recover a part of section 47 in block R in ■Hale county, Tex.

Bell answered by a plea of not guilty, interposing the statutes of limitation of three, five and ten years.

In reply to this plea, Mrs. Flora Haynes, who held the land as trustee for T. Brown Haynes, replied, pleading infancy on the part of T. Brown Haynes, alleging that he inherited the property from his father, who died when T. Brown Haynes was about two days of age and that T. Brown Haynes, from the 17th day of March, 1905, until the 17th day of March, 1926, was a minor, and during all of said time had title to said land until he conveyed it to Sirs. Flora Haynes to be held in trust for him, and, because of his infancy, the statutes of limitation did not run against ■him.

There was a trial to a jury, and, in response to two special issues submitted by the court, the jury found as follows:

(1) We do find from a preponderance of the evidence that the survey made by W. J. Williams located the true boundary line upon the ground along the west side of survey No.-47 in block R.

(2) We do not find from a preponderance of the evidence that the defendant Bell or those under whom he holds have had peaceable possession and adverse possession of the land in question under inclosure, cultivating, using, and enjoying the same continuously for more than ten years beginning prior to the death of T. Haynes, father of the plaintiff T. Brown Haynes.

Based upon this verdict, the court rendered a judgment in favor of the plaintiffs.

The rights of the parties depend upon whether Bell has established title to the strip of land in dispute under the provisions of the statute of limitation of ten years (Rev. St. 1925, art. 5510). The burden rested upon him to establish his defense.

It appears that in 1898 Mrs. N. W. Haynes, under whom Bell claims by mesne conveyances, bought section 48 from the state, and in November, 1901, she had section 47 leased and both fenced in one inclosure. That about the last-named date J. T. Haynes, whom we assume was not then married, bought section 47, and some time between that date and the summer of 1902 built a fence dividing the two sections, which was 132 varas east of the true line between the two sections. Bell insists that his title by limitation extends to this fence. Section 47 lies east of and adjoins section 48. J. T. Haynes died March 19, 1905, leaving the land, which was his separate estate, to his son, who was then two days old. Thereafter, in July, 1908, Mrs. N. W. Haynes sold section 48 to W. B. Armstrong. In April, 1910, Armstrong had said section surveyed, and as a result of this suo> vey it was first ascertained that the division fence was located 132 varas too far east.

The substance of appellant’s first proposition is that, where the evidence shows that Mrs. N. W. Haynes was in peaceable adverse possession of the land in question from 1898 until July 15, 1908, and from the fall of 1901 or early winter of 1902 up to the time J. T. Haynes built the fence and to the time section 48 was conveyed to W. B. Armstrong, and claimed all land up to the fence built by T. Haynes, which separated sections 47 and 48, places Armstrong in possession of all of the land up to the fence, and where Armstrong ■held and claimed the land peaceably and adversely up to the fence until 1916, making a •period of more than ten years of peaceable and adverse possession, said possession beginning to run against the father of plaintiff T. Brown Haynes, such possession vests title in the defendant, and, a finding by the jury for plaintiffs being without evidence, the court should have set aside the jury’s findings and granted defendant a new trial.

It will be seen that the contention is-that there is no evidence to sustain the jury’s finding to the effect that Bell and those under whom he claimed had not acquired title under the provisions of the ten years’ statute. The deed to Bell is dated June 13, 1929, and was recorded four days thereafter. Mrs. N. W. Haynes testified that section 48 was awarded to her in 1898, and some time thereafter she leased section 47 and fenced the two sections together. That in November, 1901, J. T. Haynes, who is also designated as T. Haynes in the record, bought section 47, and some time thereafter the dividing fence was built, but she could not remember the date. She asserted, however, that the fence was built by J. T. Haynes before his death. She stated that section 48 was the land she owned and was entitled to 640 acres under her award and did not at that time claim to be entitled to any more land than the state had awarded her, which was 640 acres more or less. She further stated that she did not intend that the fence should be placed on J.. T. Haynes’ land and did not try to get any of his land and did not suppose he wanted any of her section. The record shows at that time there had been no actual surveys that the witnesses could remember, and that section lines were run off by using a wagon wheel with a string tied around it. According to the testimony of Mrs. N. W. Haynes her possession extended from the time the fence was built until she sold to W. B. Armstrong in July, 1908, a period of approximately.six years. It further appears that in 1910 Armstrong had the land surveyed by Surveyor Whitis, and, according to his field notes, the fences were too far east and Armstrong moved his west fence farther west and his south fence farther south in the early part" of 1911, and since then had held under his inclosure more than 640 acres of land. 1-Ie testified the only reason he was claiming up to the fence was because he considered it the true line, and that he was not claiming the land in question by limitation and did not intend to claim it by limitation. That he never claimed anything by limitation. 1-Ie further stated, however, that he claimed to the fence on the east side as the line. 1-Ie admitted saying to Mrs. Haynes that Whitis’ work was in controversy, and that he wished she or some one else would have a lawsuit so they could find out whether it would stand up in court. 1-Ie stated that he moved his west fence somewhere in 1910 or 1911. That when he moved his fence farther west, True Rosser had the land lying west of him under lease. That he told Rosser that he did not want any piece of land belonging to anybody else, but wanted to get on his true line. His testimony shows that, after he had Whitis run the lines of his section, he moved his south and west lines out, taking in more land to conform to Whitis’ survey, but did not agree to the east line as fixed by Whitis, and claimed that he thought the east fence was the true boundary.

Mrs. Flora Haynes testified that she remembered when Armstrong had the land surveyed and shortly thereafter she spoke to him about moving her line over to where the survey had shown it should be. That Armstrong said, according to the surveys, that some of the people thought that the state would have a strip of land on the east side of her place, and, if it was ever proved that the strip belonged to the state, that he had to buy the strip. That he wanted to do the right thing about it and he thought that would be right. That such conversation occurred within less than a year after the survey was made. The reason he gave for not wanting the fence moved farther west was that he wanted the lines located before-any fences were moved.

True Rosser testified that he had .a section of land lying immediately west of section 48 under lease at the time Whitis made the survey, and that Armstrong moved his fence •over west and south in accordance with the lines located by Whitis. “I told him that I did not know positively where my lines were and he said he had some experience in surveying and wanted to know where his lines were and wanted to get on the lines and was going to have them run out. He said he just wanted to get his true boundary and that he just wanted 640 acre's of land and that was all he wanted. I carried the flag during that survey and I remember Armstrong said he was giving up good land on t-he east to take-lake land on the west and it looked like had business for him to have it run out and regretted that he had had it run out That he did not .intend to claim anybody Oise’s land, just wanted 640 acres, and let the lines fall where they would.”

The deeds introduced in evidence show that Mrs. Haynes conveyed to Armstrong section 48 in block R, and that when Armstrong conveyed to his sons W. F. and U. S., after the Whitis survey, he conveyed section 48 in (block R, “containing 640 acres of land.” That, when the son U. S. Armstrong conveyed to his brother W. F., he conveyed section 48 in block R, containing 640 acres, and, when W. F. conveyed to Bell, he described the land as section 48 in block R.

The appellees contend that the evidence is sufficient to have justified the jury in believing that J. T. Haynes did not erect the fence until the spring of 1902. That the Whitis survey was made in April, 1910, and that the jury was authorized to find that the conversation between Mrs. Haynes and Armstrong was immediately thereafter. That Armstrong moved his fence west and made the declarations above set out to True Rosser in May, 1911, all within the period of ten years, which did not expire until in the spring of 1912.

Under R. S. art. 5538, the running of the statute was suspended for twelve months, according to the record before us, from the death of T. Haynes. When Mrs. N. W. Haynes leased section 47 from the state, she held as lessee according to its true locatiofi on the ground, the fee remaining in the state, 2 Tex. Jur. 189 § 102, and limitation could not begin to run for or against any one until T. Ha-ynes purchased that section from the state and built the division fence in the winter of 1901-1902. If it be admitted that this had the effect of putting the statute in operation, it had only run about six years when Armstrong purchased section 48. There is no contention that the fence which T. Haynes built between the sections was on an agreed line,nor is there any element of estoppel en pais in the record. It is apparent that T. Haynes built the fence'under the mistaken impression as to where the true boundary line between the sections had been located upon the ground. Mere acquiescence for. a period of time short of the longest period of limitation does not give title. Hunter v. Malone, 49 Tex. Civ. App. 116, 108 S. W. 709; Davidson v. Pickard (Tex. Civ. App.) 37 S. W. 374; Wiley v. Lindley (Tex. Civ. App.) 56 S. W. 1001; Weston v. Meeker (Tex. Civ. App.) 109 S. W. 461.

The statute requires peaceable and adverse possession for the full period of ten years, and adverse possession means an actual and visible appropriation of the land, com* menced and continued under a claim of right inconsistent with and hostile to the claim of another. The evidence, a brief statement of which we have hereinbefore given, does not show such hostile and adverse possession as the statute contemplates, either with reference to Mrs. N. W. Haynes or Armstrong. Houston Oil Co. v. Pullen (Tex. Com. App.) 272 S. W. 439; Odem v. Leahy (Tex. Civ. App.) 264 S. W. 218 and authorities cited. The declarations of Mrs. Haynes and Armstrong, disclosing their intent and bearing upon the issue of claim of title, are sufficient to defeat any effort to establish that their holding was hostile and adverse.

Because no other judgment could have been properly rendered upon the uncontra-dicted evidence, it becomes unnecessary for us to consider the remaining assignments, and the judgment is affirmed.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    CARLILE v. HARRIS et al.
    No. 9545.
    Court of Civil Appeals of Texas. Galveston.
    April 16, 1931.
    Rehearing Denied May 18, 1931.
    A. M. Waugh, of Houston, for appellant.
    O. P. Stevens and E. A. Tully, Jr., both of Houston, for appellees.
   GRAVES, J.

The appellees adopt as substantially correct this general statement as made in appellant’s brief:

“The suit out of which this appeal arose was instituted in one of the district courts of Harris County by appellees, Maggie Harris and Albert Harris, her ‘husband, against J. H. Ratcliff, A. B. Carlile, Kenneth H. Aynes-worth, Jr., John N. Snell, and Union Building and Loan Association, to cancel and annul a deed of trust lien and mechanic’s lien securing an indebtedness of Nine Hundred (8900.00) Dollars on a certain house and tract of land owned by Maggie Harris as her separate property and occupied as a homestead by -herself and husband. Appellees alleged that they had executed a mechanie’s-lien contract with one W. R. Reid as contractor, which provided for the erection of a dwelling house on the land of Maggie Harris for the sum -of Three Thousand ($3000.00) Dollars, and had executed a promissory note in that amount as well as a deed of trust further securing same, which note, contract, and deed of trust, had been duly assigned to Union Building & Loan Company, and which constituted first liens on the property. Ap-pellees alleged further that on the same date defendant, J. H. Ratcliff, fraudulently induced appellees to execute a second mechanic’s-lien contract, deed of trust, and promissory note, in the sum of Nine Hundred ($900.00) Dollars, which purported to be a second and inferior lien to the Three Thousand ($3000.00) Dollar lien, and alleged that the second liens were void because only one house had been built, that by Reid and not Ratcliff, and because defendant, J. H. Rat-cliff, had not explained the instrument to ap-pellees, and because the notary did not explain same to .Maggie Harris when he took her acknowledgment thereto. Appellees alleged further that defendant, Kenneth H. Aynesworth, Jr., was named as trustee in the Nine Hundred ($900.00) Dollar deed of trust; that defendant, John N. Snell, was as-signee of that note and liens from J. H. Rat-cliff, and that appellant, A. B. Carlile, was the assignee of John N. Snell and owner and holder of the Nine Hundred ($900.00) Dollar note and liens at the time of the institution of this suit; and further that all of the defendants were on notice of tile alleged acts of J. H. Ratcliff. Appellees sought, in addition to the cancellation of the liens, temporary and permanent injunctions against their enforcement.
“Appellant answered by a general demurrer and general denial, and filed a cross-action against appellees for the balance remaining unpaid on the Nine Hundred ($900.-00) Dollar note, together with a foreclosure of the liens securing same. Appellant alleged that he was the innocent holder in due course, for value and before maturity, of the promissory note and liens, and that if the liens were defective he had no notice thereof, and alleged that appellees had ratified same and by their representation and conduct had estopped themselves to deny the validity of such liens.
“Appellees replied to appellant’s cross-action by a general denial, plea of failure of consideration for such liens, and by replead-ing the allegations of their original petition by way of defense.
“The evidence introduced in behalf of appellant showed that he had been assigned the Nine Hundred ($900.00) Dollar note and liens before maturity, for their full face value and without knowledge of any of the facts alleged by appellees as voiding the liens; that appellees had dealt with defendant, J. H. Ratcliff, as original contractor, agreeing to pay Three Thousand Nine Hundred ($3900.-00) Dollars for the house that was erected on their land, that Reid was used only as a dummy contractor to facilitate the financing of the building operations, and that appel-lees were fully conversant with all the facts and properly executed the Nine Hundred ($900.00) Dollar .note and liens, intending that same should constitute a second lien to the Three Thousand ($3000.00) Dollar lien on the house that was subsequently constructed-; and that appellees had made' several payments on the Nine Hundred ($900.00) Dollar note and had told defendant, John N. Snell, both before and after he had bought such note and liens, that it was a good second lien on their place and that they would pay same. Appellees introduced evidence calculated to sustain their allegations that defendant, J. H. Ratcliff, had fraudulently induced them to execute said Nine Hundred ($900.00) Dollar lien, that they understood that Reid was the contractor for the house built by them, and that same was to cost only Three Thousand ($3000.00) Dollars; that they did not know what they were signing when they executed the Nine Hundred ($900.00) Dollar lien, that Maggie Harris did not have same explained to her when the notary took her acknowledgment thereto, nor did she know the contents of same at that time, and that they had never told any person that such liens were to secure part payment of their house and that they would pay same, or that they had known that the payments they had made thereon were to be applied to the Nine Hundred ($900.00) Dollar note and not the Three Thousand ($3000.00) Dollar one.
“The case was submitted on five special issues only and the jury' found thereon, (1) that Reid and not Ratcliff had built, or caused to be built, the house in question; (2) that at the time of taking the acknowledgment of Maggie Harris to this Nine Hundred ($900.00) Dollar lien the notary did not examine her separate and apart from her husband, nor did he explain same to her, nor did she fully understand and acknowledge her signature to be her act and deed; and (3) that Maggie and Albert Harris did not subsequently adopt and ratify the Nine Hundred ($900.00) Dollar lien by word' or deed with John N. Snell.
“Appellant and appellees both filed motions to enter judgment in their favor, and upon a hearing thereon, the court entered judgment against appellant that he should take nothing by his cross-action, cancelling the mechanic’s and deed of trust liens, and enjoining defendants, J. H. Ratcliff, John N. Snell, Kenneth H. Aynesworth; Jr., and appellant from attempting to enforce the Nine Hundred ($900.00) Dollar lien, or sell under the deed of trust.
“A motion was thereupon filed by appellant to set,aside the verdict of the jury and to grant a new trial, which was' overruled by the court, and to which action of the court appellant excepted and gave notice of appeal, and the cause, is now before this Honorable Court for review and correction.”

On the appeal it is in substance contended that: (1) Under appellant’s . pleading and proof — tRat is, his declaring on and introducing in evidence the $900 note, together with his testimony to having bought it for value, before maturity, and without kfiowledge of any fáct that would have made it invalid— the issues submitted to, as well as the findings thereon of, the jury were all immaterir al and judgment notwithstanding should have gone for him, there being neither pleading nor proof on appellees’ behalf of any fact that constituted a defense to the note so sued upon and proved up; (2) the pleadings and evidence having raised the issue as to whether or not the appellees had, in the first instance, caused J. N. Snell, appellant’s predecessor in ownership thereof, to purchase this note along with its accompanying liens by their statements to him that the same were valid, regular, and binding on them, and, in the second, led appellant himself to believe such to be the fact by their having made pri- or to his purchase thereof installment-payments on the note at maturity, his requests for a finding on whether or not they were es-topped to now claim otherwise should have been given.

Neither position, we conclude, should be sustained; the findings of the jury on the issues submitted are not attached as lacking support in the evidence, hence must here be regarded as established facts; moreover, that the property with which the declared-upon $900 note and its two purportedly supporting liens had to do was at the time of the claimed execution thereof the homestead of the appellees as husband and wife, appears from the undisputed evidence; not only so, but all three instruments in like recitations expressly reflect that the sole consideration to the makers therefor was the contemporaneous undertaking of’Ratcliff as the contractor furnishing all labor and material to thereafter build the house for them on such homestead, and that a mechanic’s lien was to result therefrom; so that, compounding what thus otherwise appears with the jury’s ver-di¿t, the actual facts are that Ratcliff never performed any part of his obligation (the testimony in that connection undisputedly showing that Reid bought him out for $250. on the date these papers bore), that the law was not complied with in the pretended acknowledgments of the wife, Maggie Harris, to the deed of trust and mechanic’s lien contract, that she did not then understand that she had executed them as such, and that neither she nor her husband, by word or deed with J. N. Snell, thereafter adopted and ratified the claimed $900 lien.

■ In such circumstances the law is, we think, not only that appellant as assignee down under Ratcliff took no better title to these papers than the latter had, but that they were all void ab initio, because of a total failure of consideration for the note and a consequent lack of' foundation for the ^liens dependent thereon. These, authorities seem, to us to fully support such conclusions; First National Bank of Muscogee v. Campbell, 24 Tex. Civ. App. 160, 58 S. W. 628, 630; Employers’ Liability Assurance Corporation v. Lyon-Gray Lumber Co. (Tex. Civ. App.) 29 S.W.(2d) 843; Murphy et al. v. Williams, 103 Tex. 155, 124 S. W. 900; Paschall v. Pioneer Savings & Loan Co., 19 Tex. Civ. App. 102, 47 S. W. 98; Texas Constitution, art. 16, § 50; Childress v. Smith, 90 Tex. 610, 38 S. W..518, 40 S.‘ W. 389; article 5460, Revised Civil Statutes of 1925; Harrup et al. v. National Loan & Investment Co. of Detroit, Michigan (Tex. Civ. App.) 204 S. W, 878.

■ It having indisputably appeared in this instance that no work nor material for the house was ever furnished either by Ratcliff himself, or by any one else under his contract, he and his assignees, immediate a-nd remote, wore in the resulting position thus stated in Eirst Nat. Bank v. Campbell, su-nra:

“The principle that a bona fide assignee for value before maturity of a negotiable paper is not affected by any equities between the original, parties has no application to mechanics’ liens. Such a lien must exist before it can be assigned, and, if the conditions of its existence are lacking, one who takes by assignment of the paper purporting to be such a lien is in no better attitude than his assign- or, who had nothing to assign; for an assignment cannot bring into existence that which had no being before it was made. * * *
“The right to the lien is in the mechanic, laborer, or material man, and it is only such mechanic, laborer, or material man that may perfect the lien; and it is only after the lien has been perfected, as in the case of any other lien, that it may be assigned. Jenckes v. Jenckes, 145 Ind. 624, 44 N. E. 633. One who takes negotiable paper which purports to be secured by a mechanic’s lien knows that the purported security must arise from the statute, and, as to the lien claimed, takes the paper charged with the knowledge of all the facts surrounding the transaction between the original parties; and, if such facts shqw that no lien was created, he can have none.”

The note and liens being thus null and void, they could not constitute the basis of any right.

As concerned the argument for es-toppel, of course, there is a difference in the abstract between ratification and estoppel, which is well stated in 21 Corpus Juris, p. 1115, to be: “In the former case the party is bound because he intended to be; in the latter, he is bound notwithstanding there was no such intention, because the other party will be prejudiced and defrauded by his conduct unless the law treats him as legally bound.”

■ • But as concretely considered here, we think both legal doctrines were comprehended in the given inquiry: “Did Maggie and Albert Harris by word or deed with J. N. Snell subsequently adopt and ratify the $900.00 lien,” although the word “ratify” only was used, and that the jury in answering it, “They did not,”. in necessary effect found the same facts adversely to him as appellant relied on as constituting an estoppel against them.

It follows that .the trial court’s judgment should be affirmed; that order has been entered.

Affirmed.

On Motion for Rehearing.

Upon the authority of Lozano v. Meyers (Tex. Com. App. 1929) 18 S.W.(2d) 588, 590, appellant urges that our original judgment .was erroneous, in that it did not accord him a personal judgment against the appellees for tlie amount of the $900 note he declared on.

We do not think so, concluding, upon a comparison, that the facts there obtaining do not present the legal equivalent of those here, if for no other reason, because, when that note had been sold and indorsed to Thompson, in the language of the court, “At that time the Mulhausens and Meyers had not breached their agreement to construct the building”; whereas, in this instance the contractor Ratcliff, on the very date this note so plainly stipulated its sole consideration to be his building the house, had repudiated all obligation thereunder in i'eturn for the $250 then paid him by Reid, who did thereupon build it.

This, we think, distinguishes the two eases, since here, as the former opinion recites: “All three instruments in like recitations expressly reflect that the sole consideration to the makers therefor was the contemporaneous undertaking of Ratcliff as the contractor furnishing all labor and material to thereafter build the house for them on such homestead.”

The motion for rehearing has been overruled.

Overruled.


author: WALTHALL, J. PELPHKEY, O. J.

text:
    ELLIS et al. v. JOHNSON et al.
    No. 2529.
    Court of Civil Appeals of Texas. El Paso.
    April 23, 1931.
    Rehearing Denied May 14, 1931.
    Isaacks & Lattner, of El Paso, and R. D. Blaydes, of Ft. Stockton, for appellants.
    W. B. Silliman,-of Ft. Stockton, for appel-lees.
   WALTHALL, J.

S. C. Johnson, plaintiff, brought three suits in the justice court, one each against G. W. Rose, Haskell Gowen, and R. E. Ellis. Each of the suits was tried in the justice court and severally appealed to the county court where the three suits were consolidated and tried as one suit. In each suit Johnson asked judgment against each defendant for the sum of $108.13. In the county court Johnson recovered judgment against Gowen and Ellis, but judgment was rendered in favor of Rose. Johnson appealed as to the judgment in favor of Rose. Gowen and. Ellis appealed as to the judgment in favor of Johnson. The facts are substantially as follows:

In the year 1926, Johnson, Rose, Ellis, Gowen, and three others, not involved in this controversy, formed a corporation known as Upton County Light & Power Company, each of the seven holding an equal share of the stock, and the seven hold all of the stock in the corporation. In April, 1927, the corporation entered into a contract to sell all of its assets, except some accounts receivable, to the West Texas Utilities Company, for a cash consideration of $250,000, and on the last day of May or the first day of June, 1927, the contract was carried into effect, and the $250,000 was paid in cash to the Upton County Light & Power Company. The Upton County Light & Power Company owed some $58,-000 besides the income tax for the year 1927, which amount of the tax, at the date of the sale, could not be either definitely computed or paid.

When the $250,000 was collected all of the indebtedness of the selling company was paid except the income tax, and' the balance, amounting to $192,000 was distributed among the seven stockholders, each receiving his proportionate part. At that time it was agreed and understood among the stockholders that when the income tax had been computed each of the stockholders • would pay his proportionate part of such income tax, After disposing of the assets of the corporation, except some accounts receivable, the selling company amended its charter changing its name to Borderland Utilities Company, and operated some properties in Reeves and Brewster counties. Tile stock of tlie last-named corporation was still owned in equal shares by the same seven stockholders. Johnson was president of the corporation at all times, both before and after the charter was amended. At the close of the year 1927, a firm of auditors was employed to compute and make return of the income tax. It was computed that the income tax of the Upton County Power & Light Company, then Borderland Utilities Company, owed in income taxes something more than $16,000, as then estimated, which amount was proportionately paid by each of the seven stockholders, as per their original agreement. That was some time in March, 1928.

On September 14, 1928, the plaintiff Johnson and the other stockholders, including Ellis, Gowen, and Rose, entered into a written contract, referred to as an option contract, whereby Johnson was given a sixty days’ option to purchase the stock owned by the other stockholders in the Borderland Utilities Company for an agreed consideration, the consideration recited in the option contract being as follows:

“In consideration of which the said S. C. Johnson pays each of the signers hereto Ten Dollars cash, the receipt of which is hereby acknowledged, and the further consideration that if said option of purchase is exercised within the period herein granted, said S. C. Johnson will satisfy all sellers that all personal liabilities on or account of said Borderland Utilities, as principal or surety for said Company, will be liquidated promptly, and said Johnson to then, at said time of sale, if consummated, enter into a written indemnity guaranteeing to each of the sellers signing this instrument, to hold each of them harmless as to any debts or liability, present, past or future, by virtue of having been holders and owners of said stocks, and either principal or surety or any debt, note or other obligation, bond or contract of said Borderland Utilities, or otherwise, as officers and directors thereof, and in their individual capacity for account of said Company. As a further consideration moving the sellers to sign this option, the said S. C. Johnson shall pay the said sellers the further sum of $600.00 each, which sums have heretofore been advanced said Utilities in their personal capacity, for the furtherance of the interest of said Company, and to pay to each of them any further advances that may have been or yet be advanced pending this option agreement, if any.
“The indebtedness referred to herein which is to be liquidated, is especially that held by the Central National Bank & Trust Company of San Angelo, and the First National Bank of Fort Stockton, Texas.”

The option contract was consummated, and each of the defendants transferred to Johnson his stock in the Borderland Utilities Company. Johnson executed to Rose an indemnity contract against indebtedness on account ■ of the Borderland Utilities referred to in the option contract and in practically the same language as used in the option contract, above stated, but did not give to Ellis or Gowen ■such indemnity contract.

After alleging substantially the above, and other matters not necessary to state, plaintiff alleged that later, about January 13, 1930, on a final adjustment of the income tax, after the payment by all parties of the $16,000, an additional amount of $756.91 of said tax was found to be due and payable; that defendants refused to pay their proportionate part of the additional income tax, and that plaintiff, as one of the stockholders •of the said corporation, and as manager of its affairs, was compelled to and did pay same amounting to $108.13, for each of defendants.

Defendants answered by demurrers, general and special, general denial, denied that defendants requested plaintiff to pay said additional income tax or ratified such payment, and denied liability for same; pleaded the provision of the option contract to save them harmless, and that by reason of such provision plaintiff is estopped to assert any liability against defendants by 'reason of said payment.

The case was tried to the court without a jury. The court made findings of fact and entered judgment in favor of Rose, against Johnson, and in favor of Johnson against Ellis and Gowen. Johnson appeals as to the judgment in favor of Rose and Ellis, and Gowen appeals as to the -judgment in favor of Johnson.

Opinion.

The court’s findings are lengthy, and we will refer to such only as such findings tend to affect the issues presented on this appeal. The court found that each of the stockholders understood that, while he was making his proportionate part of the income tax his individual liability, same would have to be reported and paid in the name of the Borderland Utilities, and each agreed to pay his part of the tax through Johnson, and that the payments made were paid through Johnson ; that Johnson, out of his own funds, paid the additional tax of $756.91 on the final adjustment. The court found that in paying the additional tax Johnson was a volunteer, such payment never having been consented to or ratified by defendants; that in executing the indemnity contract between Johnson and Rose neither knew or considered that there would be an additional income tax to be paid on final adjustment, and, in the court’s conclusions of law, the court concluded, in effect that Rose was relieved of the additional tax by reason of Johnson’s indemnity contract to Rose.

Títere are only two questions we think to discuss. 'Was Johnson a volunteer in a legal sense in the payment of the additional income tax? If he was, he could not by reason of being a volunteer recover of defendants their pro rata of the tax.

We think, however, that under the facts stated, without repeating them, Johnson was not a volunteer in the payment of the additional income tax found to be due on final adjustment of said tax with the government. Johnson, under his option contract, was vitally interested in seeing that the income tax was paid. It may be that he was not required to advance the money, for defendants to pay the tax, but he was the company’s president, in charge of its business. affairs, and the court found that defendants had agreed to pay their part of the tax through him.

The other question presented is Johnson’s personal liability for the tax under his option contract. In contemplation of purchasing the shares of stock of the defendants, which he did, he agreed to the option contract to satisfy defendants that all personal liability, on account of the Borderland Utilities, would be liquidated promptly, and would, in addition, enter into a written indemnity contract guaranteeing each of defendants to hold each harmless “as to any liability, present, past or future,” by reason of their having been owners of shares of stock or other character of obligation, whether hs officer or director, or in their individual capacity. By exercising the option contract and buying the shares of stock of defendants, Johnson at once became liable to defendants on the option contract for whatever debts and obligations defendants were liable by reason of defendants’ ownership of such shares of stock, whether as officers or directors, or in their individual capacity. The rule seems to be settled that an option becomes a contract inter partes when exercised according to its terms. O. J. vol. 13, par. 183, p. 336. The obligation assumed by Johnson, by its terms, seems to contemplate every character of liability of defendants that did arise by reason of their ownership of the shares of stock, and the unpaid additional income tax, not being excepted, would be included.

We have carefully considered other matters presented and have concluded they present no reversible error, and are overruled.

The case is affirmed as to Bose, and as to Ellis and Bowen the case is reversed and judgment rendered in their favor.

Affirmed in part,' and reversed and rendered in part.

PELPHKEY, O. J.

(dissenting).

I cannot agree with my brethren in the holding that Johnson, by his obligation, assumed the unpaid additional income tax.

The important question in construing contracts is to determine the intention of the parties, and they should be so construed as to give effect to such intention. -31 O. J., § 18, p. 426; 14 K. 0. L. § 4, p. 46, and as said in the latter authority: “Contracts of indemnity, therefore, must receive a reasonable construction so as to carry out, rather than defeat, the purpose for which they were executed. To this end they should neither, on the one hand, be so narrowly or technically interpreted as to frustrate their obvious design; nor, on the other, so loosely or in-artificially as to relieve the obligor from a liability within the scope or spirit of their terms.”

The trial court found: “I find that in the meeting of said stockholders at the time said $27,500 was paid to each of them, each and every one of said stockholders mutually agreed that in consideration of the $27,500 paid to him that the matter of the payment of said income tax as and when it became due and payable should not be a liability of the Upton County Light and Power Company and should not be carried on the books of said corporation as a liability, but that each and every one of said seven named stockholders accepted, as his own liability, and each individually agreed to pay his proportionate part (½) of said income tax as and when the same became due and payable, and that each and every one of said seven named stockholders agreed that his said proportionate part of said income tax would be his individual debt.”

The writer has carefully read the evidence introduced and is of the opinion that there is evidence to support such finding.

If this be true, then is it not equally true that by that agreement the parties excluded any amount due the federal government for income tax, from Johnson’s agreement to hold appellants harmless as to any debts or liability, present, past, or future, by virtue of having been holders and owners of said stocks?

It must be admitted that the language used is certainly broad enough to include the debt in question, but the writer is of the opinion that when the parties, by their own agreement,' removed the income tax from the affairs of the company, and agreed that one-seventh of the amount due for such tax should be the individual debt of each stockholder, it ceased then to be a debt or liability arising by -virtue of their having been stockholders in the company and was a debt arising by virtue of the agreement.

It must be conceded that the part of the income tax over which this suit was brought was not in the contemplation of the parties at the time the option was taken, and the fact that payments were made on the first- assessment, after the option agreement was made, is also indicative of the fact that this obligation was not included in the indemnity agreement.

I have reached the conclusion that the judgment as to Rose should be reversed and rendered in favor of Johnson, and, as to Ellis and Gowen, should be affirmed.


author: LESLIE, J.

text:
    GOLDEN v. FIRST STATE BANK OF BOMARTON.
    No. 896.
    Court of Civil Appeals of Texas. Eastland.
    May 8, 1931.
    Dennis P. Ratliff,' of Haskell, and J. S. Kendall, of Munday, for appellant:
    J. A. Wheat, of Seymour, for appellee.
   LESLIE, J.

The First State Bank of Bomarton, appel-lee, sued A. H. Golden, appellant, on three promissory notes, past-due and unpaid, alleged to have been executed by one W. F. Hedrick and Golden, and for the respective sums of $121, $50, and $25, etc.; the last note carrying a credit of $16.48. Hedrick was not made a party to the suit, but it was alleged .that he was notoriously insolvent, and that his whereabouts were unknown to the plaintiff. The defendant answered by general denial and a special plea, to the effect that he signed the notos as a surety for Hedrick, the principal. That such fact was known to the bank at the time, and that he (Golden) did not receive any of the proceeds of the loans to Hedrick. The special plea went further and alleged that, at the time of the execution of the notes, the bank took from Hedrick a chattel mortgage on a certain crop that was of sufficient value to satisfy the indebtedness evidenced by the notes. That same was taken for the purpose of protecting appellant against loss by reason of said suretyship. That the bank, in violation of its duty to collect said indebtedness from Hedrick, negligently permitted him to sell and dispose of the cotton and apply the proceeds thereof to his own use and benefit. That such funds were, through the “acquiescence and negligence of the bank, lost to appellant.” At the conclusion of the testimony the court peremptorily instructed the jury to return a verdict in favor of the bank. Judgment was rendered accordingly, and Golden appeals.

The correctness of the ruling of the trial court in giving the peremptory -instruction to the jury is challenged by four propositions. In substance they are:

First, that the pleadings and the evidence required the submission to the jury of the issue of whether or not Hedrick, the principal on the notes, was insolvent;

Second, whether or not his residence at the time of the filing of the suit was unknown to the plaintiff;

Third, whether or not the defendant (appellant) was a mere surety on the notes; and,

Fourth, whether or not any of the property covered by the mortgage taken by the plaintiff (appellee), to secure the notes sued on, •had been lost by reason of the negligence of the plaintiff bank.

This appeal will- be disposed of on the theory that Golden was a surety on the note. That renders proposition No. 3 immaterial.

The first and second propositions will be considered together, although we think the bank was entitled to prosecute the suit against the surety alone, and without suing the principal, provided it alleged and proved either that the principal was notoriously insolvent, or that his whereabouts were to it unknown at the time of the filing of the suit.

The fault in the court’s giving the- peremptory .instruction is claimed to lie in the fact that the allegations of insolvency and unknown whereabouts of Hedrick were supported merely by the testimony of interested witnesses. In appellant’s brief the contention is expressed in this language: “It might be said that the testimony as to the insolvency of Hedrick is uncontradicted, but the rule is well established that the jury would have been at liberty, if the issue had been submitted to them, to reject the testimony of Ross •because he was an interested witness.” The same contention is advanced under the proposition with reference to the whereabouts of the defendant being unknown to plaintiff.

The proposition of law contended for by the appellant is correct under some states of fact, but not under all. If it be conceded that said issues in the instant case were supported solely by the testimony of interested witnesses, it does not necessarily follow that the court erred in giving a peremptory instruction to the jury based thereon. The testimony supporting the plaintiff’s allegations in the above respect is clear, direct, and positive, free from contradictions, inconsistencies, and circumstances tending to cast suspicion on the same. In such state of the testimony there appears to be a well-established rule authorizing the court to instruct a verdict. No better statement of the rule has been found than that by Judge Hamilton in the opinion in M. H. Thomas & Co. v. Hawthorne (Tex. Civ. App.) 245 S. W. 966, 972, which is as follows: “A jury cannot arbitrarily discredit a witness and disregard his testimony in the absence of any equivocation, confusion, or aberration in it. It is not proper to submit uneontradicted testimony to' a jury for the sole purpose of giving the jury an opportunity to nullify it by discrediting the witness, when nothing more than mere interest in the case exists upon which to discredit such witness. The testimony must inherently contain some •element of confusion or contrariety, or must be attended by some circumstance which would render a total disregard of it by a jury reasonable ra'ther than capricious, before a peremptory instruction upon the evidence can be said to constitute an invasion of the -right ef trial by jury. That it is proper for a trial court to instruct a verdict upon the uncon-•tradieted testimony of interested parties, when it is positive and unequivocal and there is no circumstance disclosed tending tó discredit or impeach such testimony, can be said to be a settled rule in Texas.” Authorities to this effect are numerous: McKeever et ux. v. Dittman (Tex. Civ. App.) 262, S. W. 1054; Dunlap v. Wright (Tex. Civ. App.) 280 S. W. 276; T. & P. Ity. Co. v. Perkins (Tex. Civ. App.) 284 S. W. 683; Still v. Stevens (Tex. Civ. App.) 13 S.W.(2d) 956; Sigmond Rothschild Co. v. Moore (Tex. Civ. App.) 22 S.W. (2d) 533.

Further, during the trial, J. W. Ross, active ■vice president of the plaintiff bank, testified that, at the time of filing the suit, he did not know the whereabouts of Hedrick. 1-Ie detailed various circumstances disclosing his lack of such knowledge, and his'attempt to locate him. In addition he further stated: “Yes, this suit was filed along about the 25th day of March of this year in Justice Court, and at the time of filing the suit I made an effort to find out where Mr. Hedrick was. I asked Mr. Golden where he was. He told me he could not locate him but understood he was down near Breckenridge and he had written him a letter and his letter was returned to him, and along later he told me that someone had told him that Mr. Hedrick was down in the Van oil fields — down in that part of the country somewhere.”

. Although Mr. Golden was present at the-trial and testified in his own behalf, he at no time contradicted the above testimony.

As to the insolvency of Hedrick, it is unnecessary- to detail the testimony. He appears to have been a tenant cotton farmer, destitute of credit and financial resources at a time when the season and the market were adverse. In brief, the testimony of each litigant, and certainly when taken together, compels the conviction that Hedrick was notoriously insolvent, as alleged. The court did not err in giving the peremptory instruction upon the issues and testimony under consideration.

We come now to a consideration of the last proposition, the fourth, wherein it is contended that the court erred in not submitting to the jury the issue as to whether or not any of the property covered by the mortgage taken by the plaintiff to secure the notes sued on, was lost to the defendant by reason of the negligence of the bank. The chattel mortgage introduced in -evidence shows that it covered Hedrick’s 1929 cotton crop to be raised “on A. H. Golden Farm, about nine miles from Bomarton, Texas.” Concerning the rental contract between himself and Hedrick, Golden testified: “I was to get half and he half, and I received deposit slips for my half of the cotton raised, one for $24.48, and one for $17.-75, which represented what little cotton was raised. * * ⅞ T do not know whether he raised any more cotton than this on the place or not. * ⅜ * Mr. Ross has a letter from Mr. Hedrick, stating there would be between 1100 and 1200 (lbs) more of cotton to be gathered. What became of that I do not know. There was a very small amount of cotton raised down there during the year of 1929. * * ⅜ I could not say how much there was left in the field. It was pretty thin.”

This is about the tenor of the testimony as it relates to the cotton on Golden’s place, and since the mortgage did not cover what is spoken of as the Brooks farm, -it is unnecessary to consider the same in relation to the issues here presented;' -

October 31, 1929, at the close of the season, the tenant, Hedrick, wrote the bank a letter in which he reported the amount of cotton produced on the' Golden farm, as well as the disposition made of the major portion of the proceeds of the sale thereof. 1,360 pounds brought $48.96, $24.48 of which was turned over to Golden, who, in his testimony, acknowledged receipt thereof. From the other one-half was deducted $8 for picking, leaving the sum of $16.48, which we find was, in fact, credited upon one of the notes. A second sale of 1,190 pounds produced $35.70, one-half of which was delivered to Golden and receipt thereof acknowledged by him. From the other one-half $10 for picking was deducted, leaving the amount of $7.85, which does not seem to have been credited on any note or otherwise accounted for by the tenant. Although Golden testified as a witness, he did not place any value upon the remnant left in the field. No stronger case is made for the defendant by the testimony, a careful consideration of which by this court convinces us that the value of no cotton covered by the mortgage was lost to Golden through any character of negligence upon the part of the bank, and the testimony of either or both litigants establishes that fact. The bank’s conduct in collecting and applying the proceeds for which the collateral sold does not rise to the level of passive negligence on the part of the bank in failing to enforce the mortgage and preserve the value of the collateral. The bank never had possession of the cotton, and in such case and under the circumstances conclusively established by the testimony, the rule of law applicable, and as relating to the authority of the trial court to give a peremptory instruction thereunder, is clearly stated in Hillard v. Chandler (Tex. Giv. App.) 157 S. W. 303, 304, as follows: “We understand the rule to be, however, generally that, where the pledged property is not committed into the hands of the mortgagee, but is permitted to remain with the mortgagor, the mere indulgence or even negligence in the matter of delaying a foreclosure through legal proceedings, even though it results in the loss of the security, does not have the effect in law tc release the sureties on the debt. First Nat. Bank v. Powell (Tex. Civ. App.] 149 S. W. 1096. The rule may be, and is, different where the mortgaged, property is in the possession and under the control of the mortgagee or where he does some affirmative act in respect to which the sureties are at such disadvantage as to be unable to protect themselves by a compliance with their contract to pay, and thus be subrogated to the mortgagee’s right, and the mortgaged property is in consequence' thereof lost to them. Bennett v. Taylor, 43 Tex. Civ. App. 30, 93 S. W. 704, and authorities there cited.' The evidence fails to show that any of the mortgaged property ever came under the control or in the possession of appellee, or that he ever by any overt act negligently or otherwise permitted the mortgaged property to be put beyond the reach of a foreclosure which was equally to be had by the complaining sureties as well as himself.”

The rule has had frequent application under similar circumstances, as may be seen from the following authorities: Ramsey v. Wahl et al. (Tex. Com. App.) 235 S. W. 838; Self Motor Co. v. First State Bank of Crowell (Tex. Civ. App.) 226 S. W. 428; Womack v. Davidson (Tex. Civ. App.) 242 S. W. 1107; Southern Surety Co. v. Klein (Tex. Civ. App.) 278 S. W. 527; First Nat. Bank v. Powell (Tex. Civ. App.) 149 S. W. 1096.

There is no showing in the testimony that the bank did any affirmative act or omitted any legal duty calculated to defeat the lien or to prevent the surety from resorting to the mortgaged property for the purpose of reimbursing himself. Under such circumstances and the general rule as stated in the above authorities, the bank owed no duty of active vigilance to the surety to enforce the collection of the indebtedness arising from the obligation.

The proposition under consideration is overruled, and for the reasons assigned the judgment of the trial court is affirmed.


author: LANE, J.

text:
    MAXCY v. BOYLES et al.
    No. 9528.
    Court of Civil Appeals of Texas. Galveston.
    April 21, 1931.
    Rehearing Denied April 30, 1931.

      L. B. Moody, of Houston, for appellant.
    Wm. K. Hall, S. H. German, G. G. Gannon, and Baker, Botts, Andrews & Wharton, all of Houston, for appellees Texas Co. and others.
    Hunt & Hunt, C. A. Teagle, and W. S. Hunt, all of Houston, for appellees Boyles and others.
   LANE, J.

John W. Maxcy brought this suit against J. Stuart Boyles, as county surveyor of Harris county to compel him, as such surveyor, to make and send to the general land office field notes of a tract of land in Harris county which Maxcy claimed to be a vacancy lying between the east line of the Heels &' Tro-baugh league and the west line of the Edward Shipman survey, which he claimed to be land belonging to the public free school fund which he had the right to purchase.

In his petition Maxcy alleged that no part of the land is included within the boundaries of the Heels & Trobaugh, or any other survey, but that it is erroneously claimed by various persons who own parts of the Edward Shipman survey that said land is a part of the Edward Shipman survey.

The plaintiff alleged “that he had made application to the Commissioner of the General Land Office to have surveyed and to purchase the above described land, and that said Commissioner had replied that there was not sufficient information on file in his office to advise plaintiff that a vacancy might exist, and therefore he advised ‘no vacancy’; that said Commissioner declined to recognize the existence of the area as School Land and refused to authorize a survey to be made because he did not have sufficient information on file in his office to advise plaintiff that a vacancy existed, and because the map of Harris County, Texas, then in use in the General,Land Office showed the Edward Shipman survey to be contiguous on the west to the Reels & Tro-baugh survey.”

He alleged that no impediment, in fact, existed to the making of the survey requested by him, nor to the sale of said land to him;

The plaintiff describes the land which he sought to have surveyed as follows:

“Beginning- at the intersection of Green’s Bayou with the East line of the Reels & Tro-baugh League and running thence North along said East line Twenty-two Hundred Eorty-seven (2247) varas to the Northeast corner of said League in the South line of the J. W. Moody survey;
“Thence East along said South line of said Moody Survey Five Hundred Twenty-nine and Three-tenths (529.3) varas to the West line of the Edward Shipman Survey (which point is distant 1700 varas West from the East line of said Shipman Survey);
“Thence South along the West line of said Shipman Survey 2175 varas, to Green’s Bayou; and
“Thence up Green’s Bayou with its meanders to the place of beginning, containing 213.9 acres of land.”

At the request of Boyles, O. A. Teagle, S. •S. Hunt, Harrisburg Lumber Company, and two other parties were made parties defendant.

The Harrisburg Lumber Company disclaimed, and all other defendants answered by general demurrers, general denials, pleas of not guilty, and specially alleging the ownership of certain described lands, parts of the Edward Shipman survey.

The case was tried before the court with-, out a jury, and judgment was rendered against plaintiff, Maxcy, who has appealed.

Upon request therefor, the court prepared and filed his findings of fact, the pertinent parts of which are substantially as follows: That the Heels & Trobaugh league was surveyed and located on the ground by Surveyor S. C. Hiroms in May, 1827; that in the year 1824 the Mexican government granted to Thomas Earle a labor of land, described in the grant as being situated on the western bank of Green’s Bayou, the southeast corner of which is described only as being on the west bank of the bayou; that on or prior to December, 1830, Surveyor Hiroms, who surveyed and located the Heels & Trobaugh league in 1827, surveyed- and located the Edward Shipman survey; that there are no original English field notes of the Shipman survey now in existence, and that the field notes contained in the descriptive matter of the Mexican grant to Shipman describe the Shipman survey as beginning at a landmark on the margin of Green’s bayou opposite the southeast corner of the Earle survey, 5 varas distant from a water oak marked “E S”; thence to run east 481 varas; thence north 4,380 varas for its northeast corner; thence west 1,700 varas for its northwest corner, from which a pine bears south 45 degrees, 10 varas, distant; thence south 2,700 varas to .the margin of Green’s bayou, from which a water oak 24” in diameter bears east 7 varas distant; thence' down the bayou to place of beginning; that the south line of a survey made for J. W. Moody and the north line of the Shipman is one and the same.

He found that the west line of the Ship-man survey was originally located on the ground by surveyor Hiroms, and that such line is coincident with, and is the same line as, that part of the Reels & Trobaugh east line lying north of Green’s bayou; that, prior to the controversy involved in the present suit, the west line of the Shipman had always been recognized and generally reputed to be located on the ground and as being the same as the east line of the Reels & Tro-baugh; that the southwest corner and west line of the Shipman survey are on the ground at the places where District Surveyor George Bringhurst placed them in his survey of a 150-acr.e tract, a part of the Shipman survey, situated in the southwest corner of said survey made in 1845; that Surveyor Bringhurst in' his survey of said 150 acres in 1845 called for a pin oals marked “ES” at the southwest corner of the Shipman on the east line of the Reels & Trobaugh survey; that the southeast corner of the Earle survey cannot be located upon the ground by any of the monuments and objects called for in the field notes, and can be located only by recognition and com?, mon reputation; that none of the artificial monuments and objects called for in the field notes of the Earle survey or the Shipman survey are now in existence; that, if calls for course and distance in the field notes of the Shipman grant are followed, its southwest corner can be fitted on the margin of Green’s bayou with approximate accuracy in at least two separate, distinct, and different points, both of which are east from the east line of the Reels & Trobaugh survey; that, if one of these points is adopted as said southwest corner, it would place the west line of the Ship-man 5,38-3 varas east of the east Une of the Reels & Trobaugh, and, running north from such point 2,700 varas, the distance called for in the Shipman field notes, would place its northwest corner 660 varas into the J. W. Moody survey, and that such line would conflict with the lines of the Anderson, Erwin, and Hiroms surveys as they are recognized on the ground to the extent of 296 varas east and west.

The court .further finds, substantially:

“That in the year 1870 the surveyor, J. J. Gillespie, looked for a marked line as the west line of the Shipman survey at a point 1700 varas west from the recognized northeast corner of said Shipman survey and found none; that there is no evidence in this case of any marked line indicating a property line for the west line of the Edward Ship-man survey at any point east of the east line of the Reels & Trobaugh survey. * * *
“That every surveyor, with the exception of the plaintiff in this case, who has surveyed land in and in the vicinity of the Edward Shipman survey and whose work is reflected by the evidence in this ease, has located and recognized the location of the west line of the Shipman survey as claimed by defendants in this case;
“That the maps and record of the General Land Office introduced in evidence in this cause all show the east line of the Reels & Trobaugh and west line of the Edward Ship-man survey to be coincident;
“That the Commissioner of the General Land Office has refused to recognize that any vacancy exists between the east line of the Reels & Trobaugh survey and the west line of the Edward Shipman survey.”

That the land claimed by appellant to be a vacancy between the Reels & Trobaugh and the Shipman surveys, described in the plaintiff’s petition is -not vacant, unappropriated public domain of the state, and is not unsur-veyed public school land, but as a fact it lies ■ wholly within the boundaries of the Edward Shipman survey as they were originally located by surveyor Hiroms on or before December 14, 1830.

Appellant, while admitting that, if the-east boundary line of the Re.els & Trobaugh survey and the west-line of the Shipman is a common one, the vacancy claimed by him did not exist, he insists that, as a fact, the west boundary line of the Shipman survey is located 200.8 varas east of the east line of the Reels & Trobaugh; that, while no objects called for in the original field notes of the Thomas Earle survey as being on the west bank of Green’s bayou, marking the southeast corner of said survey, can now be found, the point on the bayou where they were, located was definitely shown by general reputation, and that, since the original or locative ■field notes of the Shipman survey call for its beginning point to be on the bank of said bayou opposite the southwest corner of the Earle, to run thence east 481 varas, thence north 4,380 varas, thence west 1,700 varas, thence south 2,700 varas to the margin of the-creek, thence following the creek down to the place of beginning, the field notes of the Ship-man are‘unambiguous, and cannot be varied by testimony of general reputation as to where its west line is situated, notwithstanding the objects called for as marking its corners or lines cannot now be found; that, following the field note calls, the north line of the Shipman, beginning at the northeast corner thereof, running west only 1,700 var¿s, would not reach the east line of the Reels & Trobaugh by 200.8 varas, hence it is conclusively ■ shown that the vacancy between the Reels & Trobaugh and the Shipman claimed by appellant actually exists, and therefore the court erred in not instructing a verdict in his favor upon his request therefor. . ^

We cannot agree with appellant’s contention that the location on the ground of the southeast corner of the Thomas Earle survey had been proven by the undisputed evidence. There was evidence of general repute sufficient to support a finding that such corner was located on the ground where appellant claims it to be. The evidence so locating it was wholly of general repute. There were, however, certain facts shown when the evi-denee as a whole is considered to throw doubt as to where such corner is in fact located on the ground. Wherefore it cannot be held that the evidence conclusively shows the location on the ground of the lower southwest corner of the Edward Shipman survey, which is located by the original field notes at a point opposite the southeast corner of the Earle. But, -if it should be conceded that the lower southwest corner of the Shipman was conclusively shown, it still appears that the field notes of the same are ambiguous and inconsistent when applied to the ground. If the east line is run north 4,380 varas from the point now claimed to be the southeast corner by appellant, thence a line is run west 1,700 varas the length of the north line, as called for by the field notes, and thence' south 2,700 varas to Green’s bayou, the length of the west line called for by the field notes would reach a point several hundred varas south of the bayou-and the same distance into the Gordon survey, -lying to the south of the bayou. It thus being shown that the calls for course and distance called for in the original or locative field notes when applied to the ground are inconsistent and ambiguotis, other evidence tending to show the true lines, such as general reputation, general -recognition, may be. resorted to to establish where such lines are in fact located on the ground.

Appellant testified that there was but one way to locate the southeast corner of the Earle survey by which he seeks to show the location of the lower southwest corner of the Shipman survey, and that is by general reputation. The court found from the undisputed -evidence that the Earle survey and its southeast corner cannot be located on the ground by the objects and monuments called for in its locative field notes, and can be located only by recognition and common reputation, and the court also found upon ample and sufficient evidence that the west line of the Edward Shipman survey was originally "located on the ground by the original surveyor, S. O. Hiroms, on or prior to December 14, 1830, and is coincident with and was and is the same line as that part of the Keels & Tro-baugh east line lying north of Green’s bayou; that the west line of the Edward Shipman survey, as originally run and located on the ground by the original surveyor, begins at the original upper southwest corner of said Edward Shipman survey on the north margin of Green’s bayou in the east line of .the Keels & Trobaugh league opposite to a small drain on the west bank; that the west line of said Edward Shipman survey, as originally r.un and located on the ground by the original surveyor, runs thence north with the east line of the Keels & Trobaugh, passing the northeast corner of the Keels & Trobaugh at a point 45.7 varas south of the northwest corner of said Shipman survey as originally located by the original surveyor; that the upper southwest corner and west line of the Edward Shipman survey are located bn the ground at the place where the district surveyor, George H. Bringhurst, called for a pin oak 18 inches in diameter marked “ES” on the west side, and declared that the southwest corner and west line of said'Shipman survey were located in his field notes of the 150-acre tract surveyed by him out of the southwest corner of the said Shipman, survey in September, 1845.

These findings of the court are supported by direct and admissible record, proof which has constituted a part of our public records since 1845, and by overwhelming evidence that the east line of the Reels & Tro-baugh survey and the west line of the Ship-man survey has been for a hundred years generally recognized as one and the same. Since in this case the location on the ground of the lower and upper southwest corners and the west line of the Shipman survey are all now shown by general recognition and repute only, unless it- may be said that the Bring-hurst map made of his survey in 1843, accompanied by his certificate, furnishes better evidence, there can be no degree of recognition and general reputation indulged in determine ing the location of the points at issue. The rule stated applies with reference to corners of a survey. A beginning corner has no greater sanctity and dignity than any other corner when both are equally well identified. Scott v. Pettigrew, 72 Tex. 321, 12 S. W. 161.

Such being true, there is no rule known in. law or equity which would require the court in the present case to give more dignity to the so-called beginning corner than to another corner equally as well identified, if not much better so.

The Reels & Trobaugh survey was surveyed and located by Surveyor Samuel C. Hiroms in 1827.

•It is shown that, when Edward Shipman first registered in 1825, for the purpose of becoming a colonist in Austin’s enterprise, he indicated the location of the land he had selected, and its location was indicated in the following words: “East margin of Green’s Bayou adjoining the land of Reels & Tro-baugh.”

It is shown that, in about three years after Surveyor Hiroms had surveyed and located the Reels & Trobaugh survey, he surveyed and located the Shipman survey; that -at the time these surveys were made the locating surveyor was confronted with the following instructions:

“Art. 6. Pie shall take care that no vacant lands be left between possessions, and in order that the lines may be clearly designated, he shall compel the colonists, within the term of one year, to mark their lines and to establish fixed and permanent corners.
“Art. 7. 1-Ie shall appoint, under his own responsibility, the surveyor, who must survey the land scientifically, requiring him previously to take an oath truly and faithfully to discharge the duties of his office.”

By decree No. 128, Say les’ Early Laws of Texas, volume 1, pp. 78, 79, § 8, it is said: “Should any commissioner or surveyor be guilty of abuse of office, he shall obtain no office of provision, of the government, and furthermore shall be subject to the penalties imposed by the law of the 24th of March, 1813, on judges who proceed contrary to law.”

The policy of the laws in force when these surveys were made was to leave no vacancies. The colonization law provided: “In order that there may be no vacancies between tracts, of which great care shall be taken in the distribution of lands; it .shall be laid off in squares, or other forms although irregular; if the local situation requires it; and in said distribution, as well as the assignation of lands for new towns, previous notice shall.be given to the adjoining proprietors, if any, in order to prevent dissentions and law suits.”

There can be no question, we think, but that Hiroms, who located the east line of the Reels & Trobaugh, knew when he surveyed the Shipman three years later where such east line was located.

Having reached the conclusion that the evidence was amply sufficient to support both the findings of fact of the court and his conclusions of law, and the judgment rendered upon such findings and conclusions, it becomes our duty to affirm the judgment, and it is so ordered.

Affirmed.


text:
    MAGNOLIA COMPRESS & WAREHOUSE CO. v. DAVIDSON.
    No. 9527.
    Court of Civil Appeals of Texas. Galveston.
    March 4, 1931.
    Rehearing Denied March 26, 1931.
    Boyles, Brown & Scott, Miller Alexander, and Jo. E. Shaw, all of Houston, for appellant.

      Morris, Sewell, Taylor & Morris and W. J. Knight, all of Houston, for appellee.
   LANE, J.

This suit was instituted by R. L. Davidson against Magnolia Compress & Warehouse Company, hereinafter, for convenience, ■called the compress company, to recover judgment for $566.73 with interest thereon.

The plaintiff substantially alleged that he entered into a contract of employment with the compress company through its general agent and 'manager, O. S. Kinney, on the 1st day of August, 1927; that such contract was for a term of one year extending from the 1st day of August, 1927, to the 1st day of August, 1928; that by the terms of the contract the compress company agreed to pay plaintiff for the year at the rate of $225 per month; that he performed the duties of his employment during the whole-of said year and was paid by the defendant the said sum agreed upon by the terms of the contract; that immediately upon the expiration of said year he reported for duty as he had theretofore done and was put to work as usual by defendant, and was thereby led to believe that the contract was to be continued in force for another year; that by reason of such acts there exists between the parties an implied contract of renewal of the former contract; that after he had begun to perform his usual work in August, 1928, by the consent and acquiesence of tjie defendant without entering into any express renewal contract, defendant by its agent Kinney placed upon plaintiff duties other than those theretofore required of him, and that it was then agreed between the parties that plaintiff was to be paid by defendant for such additional services the sum of $25 per month, thus increasing his wage for the remainder of the year to $250 per month; that thereafter plaintiff performed all things required of him under the contract for which he was paid $250 per month up to the 31st day of April, 1929; on said date last mentioned, which was three months prior to the time for the expiration of plaintiff’s contract, defendant disavowed and repudiated said contract and discharged plaintiff from its employ without cause or justification and thereafter failed and refused to pay him the salary due him for the months of May, June, and July of the year 1929, and still refuses to pay the same to plaintiff’s damage in the sum of $750; that such sum is due plaintiff, less $183.27 earned by him while engaged in work for others during said unexpired peri-, od of said contract.

Defendant answered by general and special demurrers and general denial.

The battle lines being thus formed, the court overruled all demurrers and exceptions. Whereupon a jury was called to try the cause, who, in answer to special issues submitted by the court, found that it was impliedly agreed and understood between the plaintiff and C. S. Kinney during the month of August, 1928, that the plaintiff should be employed as head weigher for defendant at a salary of $250 per month from that time until July. 31, 1929, and that defendant discharged plaintiff.

Upon the findings of the jury and the evidence, the pourf rendered judgment for the plaintiff against defendant for the sum of $566.75, with interest thereon at the rate of 6 per cent, per annum from and after the 1st day of August, 1929.

The compress company has appealed.

When tbe record in this cause was filed in this court, it did not disclose that notice of appeal was given by appellant, and- our attention was called 1;o such fact by appellee’s objection to a consideration of the appeal for want of jurisdiction. Since then, however, upon motion of appellant, the record has -been supplemented, and it now shows that notice of appeal was duly given and the cause is now properly before us for our consideration of the matters presented by the appeal.

Appellant first insists that the court erred in overruling its general demurrer, in that plaintiff alleged no fact or facts entitling him to recover in law or in equity; and, second, that the court erred in overruling its special exception to that part of plaintiff’s petition wherein it undertakes to allege what acts, or circumstances the plaintiff relied upon to establish the. assertion that plaintiff was led to -believe t;hat there was a renewal of the original contract of employment between the parties, because such allegations were insufficient to apprise defendant of the nature of such acts or circumstances relied upon as constituting conduct leading plaintiff to the belief that the former contract was renewed or continued in force.

We have carefully read the plaintiff’s petition and have reached the conclusion that it is not subject to either the general demurrer or the special exception addressed to it. 39 Corpus Juris pp. 49 to 50; Accidental Oil Mills v. Tomlinson (Tex. Civ. App.) 8 S.W.(2d) 558; Houston Ice Co. v. Nicolini (Tex. Civ. App.) 96 S. W. 84.

■ We therefore overrule appellant’s complaints of the action of the court in overruling such demurrer and special exception without extended discussion. We will add, however, the following:

In 39 Corpus Juris, p. 49 et seq. § 20 et seq., the following rule is stated: “When one enters into the service of another for a definite period, and continues in the employment; after the expiration of that .period, without any new contract, the presumption is that the employment is continued on the terms of the original contract and that provisions and restrictions forming essential parts of the contract, although collateral to the employment itself, continue in force.”

Again: “A mere change in the contract by which increases of salary are given from time to time will not affect the application of the rule.”

In section 22, p. 51, it is said: “ * ⅜ ⅜ .Where an employee is ready and.,willing to perform services contracted for, and the employer has repudiated the contract, the former need not thereafter tender his services or keep himself in readiness t,o perform.”

By appellant’s third assignment contention is made that up to the time the plaintiff had introduced his evidence and rested, he had not sustained by proof the case as alleged in his petition, especially the allegation that . defendant had discharged him; therefore the court erred in overruling defendant’s motion for an instructed verdict in its favor, made at the time plaintiff had rested.

We overrule the contention. The evidence was amply sufficient to support the allegation that defendant had by its acts renewed the former contract for a period of one year from the 31st day of July, 1928, to July 31, 1929, and it was also sufficient to support the allegation that defendant had disavowed having a contract with plaintiff and discharged him and failed to pay him the salary due him.

The undisputed evidence shows that O. S. Kinney, general manager of appellant, acting for appellant, employed appellee on the 1st day of August, 1927, to work for appellant for the period of one year from said . date, or until the 1st day of August, 1928; that on the 1st day of August, 1928, appellee reported for work as usual and was permitted to continue to work as usual through the month of August, 1928, at the same salary per month he had been paid from the time of his employment without entering into any new contract. Appellee testified that during the month of August, 1928, appellant • through its general manager, Kinney, imposed upon him new and additional duties and agreed, on or about September 7, 1928, to increase his salary to $250 per month; that he got the first check with increase in salary on September 15, 1928; that his salary was payable every 15 days; that he got his last payment, for the month of April, 1929, on April 31, 1929; that in April, 1929, O. S. Kinney told him he (Kinney) would like to keep him but as the compress was having some kind of trouble he could not do so, and said: “Xou go out and seek other employment * * * no matter if you don’t make but One Hundred dollars per month, that will help me just that much * ⅜ ⅜ this fall I will pay you the difference in the amount of money that you make on the outside and your salary.” That having been told that appellant could not and would not use his services after the 1st of May, 1929, he obtained other employment and earned a net sum of $183.27 during the three months of May, June, and July, 1929.

We think the evidence stated was such as justified the court in refusing to sustain appellant’s motion for an instructed verdict at the time appellee rested. However, if it-be conceded that there was not sufficient evidence offered to support a judgment for appellee at the time he rested, which we do not do, appellant is nevertheless in no position to here urge a reversal of the judgment because of a lack of sufficient evidence to Support it at the time appellee rested, as it chose,- after the court had overruled its motion, to proceed to introduce .evidence which, we think, when taken - in connection with the plaintiff’s evidence, is sufficient to support a judgment for appellee.

O. S. Kinney, president and general manager ' of the business affairs of appellant, who alone employs and discharges employees of appellant, testifying in its behalf, said: “I told the men that it was going to be impossible for me to keep them all on, as much as I would like to dó so; I called their attention to the fact at that time that not a single man in the service of the Company had a contract and that I was at liberty to discharge them without taking on any obligation for salaries, but I did tell them that next fall, if we did well and made money that T will reimburse you’, or ‘the company will reimburse you for any loss you may sustain by getting out and getting positions elsewhere ai; a lower salary than we are paying you and what we would pay you in the event we were able to keep you on.’ There was not a man in that meeting that questioned my statement that none of them had contracts, not a man raised the question; there were some eight or ten men in the room at the time. I stated to the men that it was my intention to reimburse them, for this loss if they had to accept positions elsewhere that would pay less than they were getting with me, but it was a physical impossibility for us to keep on and continue to pay their salaries. I did not designate which men must get out and look for positions at that meeting. I took that position for this reason, that we had mechanics, we had checkers, we had weighers, we had tractor drivers, and all classes of men, some of whom could secure work elsewhere easier than a higher-up man, sometimes. I did not designate or point out any man who should withdraw from our employment; at that meeting I did not pick out this man or that man, but I saici to the men in general — T want every man in this room who can secure a position elsewhere to do so and relieve me of that expense during the balance of this cotton season, and those of you who do secure those positions, next fall, when we get into business, if we do well, we will reimburse you for whatever loss y.ou have sustainedthat was the actual statement made at that meeting. Those men who left came to me and told me that they thought they could get a position here and there, and those men stepped out gracefully and secured other positions with the understanding that if we could, the next fall we would reimburse them. Every man on the job went out and tried to get a position and those who could seeuré positions left; Mr. Davidson secured a position and left. There were no hard feelings absolutely, as far as I was concerned. • There was a written contract in 1927 between me and the men. None of these men or Mr. Davidson who were in my office at that time, either at that time or subsequent thereto, protested to me concerning my telling them that they could go and get other jobs.”

On cross-examination: “We sold the Magnolia Compress & Warehouse Company in June, 1929. We.first began negotiations to sell that Company the latter part of May, sometime in May. I do not mean we consummated the sale between the latter part of May and June; I mean I put it in the hands of the sales agent during the latter part of May, about the 15th of May, I think somewhere along there, about the 15th of May. That plant was a $600,000.00 company. We sold a $600,000.00 corporation between May and June, 1929. I did not have any intention of selling it at the time I called these men together. I believe it was in May that I turned it over to. a sales agent; that is, the latter part of the month following the conversation with these men. I have paid none of these men anything for the difference between the jobs they got and what they were going to pay them. I said awhile ago it was physically impossible to pay these men and keep on;' some of them I could keep and some I could not; I had to keep some. Parkins came, back to us after this conversation and said that he had found it; hard to find a position and .that he would be willing to accept a tractor driver’s job in place of his press room — his clerkship job if we would take him back, he would try to get along on less money in order not to lose any time, and we accepted that proposition and employed him at a less salary. I believe Parkins was with me about four years; he is a pretty faithful employee. I never did pay him the difference between what he earned with us at that time and what he was earning before I made this proposition. I never did invite Mr. Davidson ⅜> come back to work when he did not show up the next morning. I never did offer to pay Mr. Davidson the difference between what he had earned and what he was going to earn if he stayed with us. I believe Mr. Davidson made a demand on us for it through his attorneys. Davidson came to my office once or twice and discussed matters with me; I do not recall whether fhat came up for discussion, or not. I did not have any written contract with Mr. Davidson for the year 1928-1929. I did not have any written contract with any of our employees for that year and at that meeting I told them that we had -no contracts, absolutely. I say that we had a written contract with Mr. Davidson for the year previous.”

By appellant’s fourth and fifth assignments it is insisted: First, that the court erred in submitting to the jury the inquiry as to whether or not there was an implied agreement and understanding between plaintiff and C. S. Kinney during the month of August, 1928, -that plaintiff should be employed at a salary of $250 per month from that time until July 81, 1929; and, second, in submitting the inquiry as to whether the compress ’company discharged the plaintiff at any time.

The objection made by appellant to the submission of the first inquiry is that it includes the submission of a question of law.

We think the submission of any part of the inquiry was a submission of a question of law and unnecessarily submitted. The undisputed facts show that appellee was by the permission and acquiescence of O. S. Kinney, president and general manager of the business affairs of appellant, to continue his usual services during the month of August, 1928, after the expiration of the period of the first contract at the same salary as before, without entering into any new contract. We think such facts show a- continuation of the original contract as a matter of law. Houston Ice & Brewing Co. v. Nicolini (Tex. Civ. App.) 96 S. W. 84; Accidental Oil Mills v. Tomlinson (Tex. Civ. App.) 8 S.W.(2d) 558; 89 Corpus Juris, page 49, sec. 20. We have already stated the facts referred to above and it is unnecessary to restate them here.

While we agree with appellant that the inquiry was improperly submitted, we can by no means agree that its submission in any way prejudiced the rights of appellant.

What we have said as to the first inquiry submitted is equally applicable to the second. The undisputed evidence, which we have already stated, shows that appellee was discharged by appellant’s i>resident and general manager, Kinney, on or about the 81st day of May, 1929. Therefore, while the inquiry was unnecessarily submitted, such submission was harmless.

Appellant; requested the court to submit the following inquiries:

First. Did the compress company make a contract of employment with R. D. Davidson on or about August 1, 1928?

Second. Was such a contract of employment from monfh to month, or was it for a period of one year beginning August 1, 1928?

Third. During May, June, and July, 1929, did R. D. Davidson earn in outside work $383.27?

We have already held that it was shown as a matter of law that appellant did make a contract of employment with appel-lee for a year, beginning on the 1st day of August, 1928, and to end on the 31st day of July, 1929. Such being a fact, the court did not err in refusing to submit to the jury the first two inquiries requested by appellant. Neither did the court err in refusing to submit the third inquiry, for unquestionably the only testimony with reference to the amount earned by appellee in outside work during May, June, and July, 1929, was to the effect that it was a gross sum: of $383.27.

Having reached the conclusion that no reversible error in the trial of the cause appears of record, the judgment is affirmed.

Affirmed.