author: HAMILTON, Justice. SMITH, Justice

text:
    FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF DALLAS, Petitioner, v. Tom H. SHARP, Respondent.

      No. A-8488.

    Supreme Court of Texas.
    July 26, 1962.
    Rehearing Denied Oct. 3, 1962.
    J. P. Rice and Herbert Marshall, Dallas, for petitioner.
    T. L. Hamilton, Dallas, LeRoy La Salle, Carthage, for respondent:
   HAMILTON, Justice.

This is a suit brought by respondent (plaintiff below) to obtain property bought at a deed of trust sale by petitioner (defendant below) and to recover rents from such property obtained since the sale. The case was tried to a jury, and after favorable answers to the two special issues submitted the trial court entered judgment that the trustee’s deed to petitioner be cancelled and set aside, that the trustee be ordered to execute and deliver to respondent a trustee’s deed to the property for a consideration of $5,000 (such sum having been deposited in the registry of the court by respondent), and further decreeing that certain money which was rent and revenue from the property be awarded to the respondent. The Dallas Court of Civil Appeals, Williams, J., has affirmed the judgment of the trial court. 347 S.W.2d 337.

The facts of this case are detailed at length in the opinion of the Court of Civil Appeals. Therefore, this opinion will merely state the basic facts surrounding the trustee’s sale.

The sale was to be held on Tuesday, January 7, 1958, between 10:00 a. m. and 4:00 p. m. at the Dallas County Courthouse “to the highest bidder for cash”. Sometime between 3:15 and 3:45 p. m. on that day the three trustees arrived at the courthouse for the sale. The only outside bidder was T. L. Hamilton, attorney and agent for respondent. At this time respondent was the owner of the mortgagor’s interest, which he had bought at a sheriff’s execution sale earlier that day. This fact was not known by the trustees. One of the trustees read the notice of sale and then asked for bids. Another of the trustees bid the unpaid balance of the mortgage ($4,527.50) on behalf of the petitioner mortgagor, and then Mr. Hamilton bid $5,000 for respondent. When asked for the cash, Hamilton offered a personal check. This was refused, and then Hamilton offered to go to a bank within two blocks to get the cash from a lock box. Hamilton estimated this would take him about five minutes. There was also testimony that the respondent was on his way to the courthouse with the money. The trustee refused to delay the sale for any length of time, and accepted the lower bid offered by one of the trustees for petitioner.

Petitioner maintains that the bid made by respondent was not a bid for cash as provided in the deed of trust, and the notice of sale, and the trustee acted properly in refusing the bid and in knocking the property off to the lower bidder, the petitioner’s agent. The respondent contends in effect that his bid was for cash and that the trustee acted arbitrarily and unreasonably in making the sale to the mortgagee, the lower bidder, without allowing respondent a few minutes’ time within which to produce the cash for his bid, when this could have been done without prejudice to the mortgagee. We agree with respondent’s contention and affirm the judgment of the trial court and the Court of Civil Appeals.

The findings of the jury were that either Hamilton or Sharp would have produced the cash within a reasonable time, which was defined to mean “such time under all of the circumstances a man of reasonable prudence and diligence would have needed to perform the act contemplated.” It is the opinion of this court that “reasonable time” should be limited to a reasonable time during the hours of the sale. If the jury finding is ambiguous or unclear, the courts must try to interpret the finding so as to uphold the judgment. State v. Hale, 136 Tex. 29, 146 S.W.2d 731. It is our opinion that in this case “reasonable time” means before 4:00 p. m. on the day of the sale. All the testimony and evidence clearly shows that the respondent could and would try to get the cash to the trustees before 4:00 p. m. We therefore construe the jury finding to mean that either Hamilton or Sharp would have produced the cash before 4:00 p. m. Under the facts of this case it was an abuse of discretion for the trustee not to wait a reasonable time before 4:00 o’clock before completing the sale.

In some cases there is a danger in allowing any delay. One of those instances would he where lower bidders, with cash, might get discouraged and leave the sale during a wait. If the high bidder failed to return, the next high bid would be lost.

Another situation that would prejudice the mortgagee would be where the high bidder did not show up by the close of the sale, thereby necessitating another sale. During such a delay something could cause the value of the property to fall. Also, the time and expense of another sale would be prejudicial to the mortgagee.

The record establishes that there were only two bidders for the property, petitioner’s agent and respondent’s agent. There is nothing in the record to indicate that the bid by Mr. Hamilton was in bad faith. To the contrary, the evidence is clear that he was in good faith. Petitioner maintains that the trustee was not required to wait any time for respondent’s agent to produce the cash. That position is untenable under the facts of this case. The only other bidder besides respondent was the petitioner itself. The trustee could have given respondent’s agent a little time without prejudicing the rights of the mortgagee. No bidders would have been lost, and had respondent’s agent not shown up with the money before 4:00 p. m. the trustee could still have accepted the mortgagee’s bid.

It must be remembered, as said by the Court of Civil Appeals below, that:

“ * * * The trustee in the deed of trust becomes a special agent for both parties, and he must act with absolute impartiality and with fairness to all concerned. We must equate the word ‘trustee’ with fairness, impartiality, and a maximum effort to achieve the obj ect of the trust. 29 Tex.Jur., § 30, p. 825; Hampshire v. Greeves, 104 Tex. 620, 143 S.W. 147; Zeiss v. First State Bank, (Tex.Civ.App.) 189 S.W. 524, (err. ref.). * * ”

Of course in this case the respondent stood in the shoes of the mortgagor. It is true the trustee did not know this at the time of the sale, but that should not make any difference. The trustee had a bid for the property which the bidder maintained was for cash, which was almost $500.00 more than the mortgagee had bid. In fairness to the mortgagor the trustee, who was the mortgagor’s agent, should have made a reasonable effort to determine whether the bid made by Mr. Hamilton was a cash bid. He not only made no effort, but refused the bidder’s offer to satisfy him in this respect.

The judgments of the Court of Civil Appeals and the trial court are affirmed.

GRIFFIN, SMITH and NORVELL, JJ., dissenting.

SMITH, Justice

(dissenting).

I respectfully dissent. I cannot agree with the majority that its holding in this particular case is justified on the ground that Sharp’s bid was, in effect, for cash and that the trustee acted arbitrarily and unreasonably in making the sale to the mortgagee, a lower bidder than Sharp, without allowing Sharp “a few minutes’ time within which to produce the cash for his bid, when this could have been done without prejudice to the mortgagee.” Sharp relies upon this ground and the majority sustains the contention in spite of the well-settled rule that a sale under a power in a mortgage or a trust deed must be conducted in strict compliance with the terms of the power. See 59 C.J.S. Mortgages § 572, p. 959. A trustee under a deed of trust is the agent and representative of both the mortgagor and the mortgagee (Sharp was neither the mortgagor nor the mortgagee) and his duties are set forth in the Deed of Trust. The Deed of Trust in this case provided that in the event of default in the payment of the note secured thereby, the property described therein would be sold at public sale for cash. The notice of sale recited that the property would be sold for cash at the Courthouse door of Dallas County, Texas, on January 7, 1958, between the hours of 10 a. m. and 4 p. m. A trustee under such a Deed of Trust should never be under an obligation to determine whether or not a bid made at a sale has validity.

In the early case of Moore v. Owsley, 37 Tex. 603, 605, this court announced the rule which should be followed in the present case. The court said, in part:

“We understand the law governing sales at public auction to be, where the sale is advertised to be on specific and restricted terms, any bid made at that sale, not in strict conformity with the terms advertised, is no bid at all, and the crier is not bound to notice same." [Emphasis added.]

The trustee in this case conducted the sale not only in' accordance with the strict terms of the Deed of Trust, but concluded the sale in accordance with the terms of the Statutes of the State of Texas. Article 3816, Vernon’s Annotated Civil Statutes, provides that:

“When a sale has been made and the terms thereof [have been] complied with, the officer shall execute and deliver to the purchaser a conveyance ¡¡¡ * ⅝»

This does not mean that the terms have been complied with when it has been found by a jury that the bidder was able, willing, and ready within a reasonable time to produce the cash. In order to be a successful bidder, possessed with the legal right to compel a sheriff or trustee to execute and deliver a deed to the property involved, the bidder (unless it is the mortgagee) shall be able to tender the amount of his bid in legal tender. In this case, Sharp was charged with knowledge of the terms of the Deed of Trust, and was charged with knowledge that upon his failure to tender the amount of his bid in cash, the law required that the trustee proceed to again sell the same property on the same day within the hours provided in the Deed of Trust and the Statute. See Tanner v. Grisham, Tex.Com. of App., 295 S.W. 590.

Rule 653, Texas Rules of Civil Procedure, which applies to sales under a Deed of Trust as well as to sales of .real property under execution, provides:

“When the terms of the sale shall not be complied with by the bidder the levying officer shall proceed to sell the same property again on the same day, if there be sufficient time; but if not, he shall re-advertise and sell the same as in the first instance.”

It is stated in Texas Jurisprudence, Vol. 29, page 991, that “After the trustee has accepted a bid, and while the bidders are still present, the sale may properly be reopened if the successful bidder refuses to pay.” The fact that we have a Rule of Civil Procedure that directs a sheriff or a trustee to make a second effort to sell property on the same day and within the prescribed hours when the bidder fails to comply with his bid indicates very clearly to me that the seller (sheriff or trustee) is not required to wait while the bidder departs from the scene of the sale in an effort to obtain the cash. Hamilton, when he made the bid for Sharp, was charged with notice of the law, the terms of the Deed of Trust, and the notice of sale, and he should have known that no sale could be effected unless his bid of $5,000.00 was immediately paid upon the acceptance of his bid. The courts cannot engraft exceptions even though in this particular case it can be admitted that the tendered check was drawn on a bank situated only about two blocks from the Courthouse, and Hamilton had offered to go to the bank and withdraw $5,-000.00 in cash from his personal lockbox. The jury found in this case that both Sharp and Hamilton could have obtained the amount of their bid within a reasonable time, but when we look at the picture from the trustee’s standpoint, the request for delay was unreasonable. I do not think the trustee had any discretion in the matter, but be that as it may, the bidder was not the original borrower, the trustee did not know the bidder, the trustee did not know that the check would be good, the trustee did not know that the bidder had cash in the bank two blocks away. The trustee did know the terms of the Deed of Trust, he did know that he had until 4 o’clock that afternoon to hold the sale, and he knew that if he did not sell the property by 4 o’clock that afternoon the property would have to be reposted for sale. The courts should be slow to adopt a rule which would allow or require a trustee to speculate on the bidder’s ability or willingness to pay his bid. Where deeds of trust are unambiguous and such contracts contain strict provisions that the property be sold for cash and sold within certain specified hours on a day certain, it would be unreasonable and unwarranted for the trustee to accept a bid from an unknown bidder with no evidence of his ability or willingness to pay other than his unsupported assertion. This would be true, granting that such assertions were made in good faith. Such action would not be in strict compliance with the power granted, and would be without regard to the trustee’s duty to conduct the sale fairly and with due diligence and sound discretion to the end that the rights of the mortgagor and mortgagee will be protected. See 59 C.J.S. Mortgages § 572, supra.

The rule to pay the trustee cash does not apply to mortgagee at a trustee’s sale, Blum v. Rogers, 71 Tex. 668, 9 S.W. 595, but it does apply here.

In Wiltsie Real Property Mortgage Foreclosure, Sth Edition, 1939, Vol. 2, at page 1081, we quote the following:

“But if any person other than the mortgagee becomes the purchaser, where the sale is for cash he must comply strictly with the terms of sale and pay the price bid in cash; a note to the party entitled to the proceeds of the sale is not cash, and the tender of such note will not be in compliance with the terms of sale. It has also been held that the officer may .refuse to receive checks.”

In support of my position, I quote from the following decisions in other jurisdictions :

The Supreme Court of Georgia in 1902 in the case of Dwelle v. Blackshear Bank, 115 Ga. 679, 42 S.E. 49, held in effect:

“An express stipulation that a sale be for cash must be complied with. Bidders at the sale were bound to inquire into the authority of the Trustee to sell and terms and conditions upon which the sale was to be had. Being charged with notice and not having tendered the amount of their bid in cash either at the time of sale or during legal hours of sale, the bidder had no right to come into a court of equity and pray for specific performance of a contract of sale which was never completed on account of their failure to comply with the terms of sale.”

In the case of McLendon v. Harrell, 67 Ga. 440, the Court said:

“Cash not credit is that which the law requires them to exact from every bidder and no man’s note or check or draft is in the cold and impartial eye of justice the equivalent of cash. Once relax the rule and the gate to collusion and fraud is thrown back so wide that an ocean of corruption would enter and the fairness of public sales would be at an end.”

In the case of The Haytian Republic, 64 F. 214, 216, the court said:

“Cash sale is necessarily a sale for cash to be paid at the time of sale. The purchaser must be in readiness to pay at the place of sale if required.”

In the case of Stern v. Maxwell, 44 S.W.2d 482, 487 (Tex.Civ.App.), the court said:

“To constitute a valid tender, the money must be present, ready, produced and offered to person who is entitled to receive it.” 26 RCL, par. 5, page 626.

The holding of the Court of Civil Appeals and the majority holding by this court will, in effect, amount to the writing of a new contract for the parties and not only that will go farther and impair similar contracts presently in existence. First Federal’s motion for instructed verdict should have been granted. It was not, and two issues were submitted to the jury. The answers of the jury to the issues submitted were not determinative as to the judgment to be entered. The trial court merely asked the jury to determine whether or not Mr. Sharp and Mr. Hamilton were “able, willing and ready within a reasonable time to produce cash to pay their bid.” First Federal also moved for judgment notwithstanding the verdict of the jury. This motion should have been granted. The question of Sharp’s and Hamilton’s actual ability to pay is not the true question. The question was as to whether the facts and circumstances were such as to have convinced a man of ordinary prudence that the bid would be paid before it was too late to resell the property on the same day. The trustee had to make his decision on what he saw and heard at the sale. Had Hamilton complied with the terms of the sale and paid the price bid in cash, Sharp could have suffered no injury. The equitable title would have vested in Sharp immediately and such a title has been held to support a cause of action by a successful bidder against the trustee to compel delivery of a deed. I see no reason why the situation here is not analogous to a sale under execution as in the case of Burnam et al. v. Blocker et al., Tex.Civ.App., 247 S.W.2d 432, wr. ref. (1952, Culver, J.,), where it was held that “[T]he giving of a deed by the sheriff, being a ministerial act, is not essential to investiture of title.”

The judgments of the trial court and the Court of Civil Appeals should be .reversed! and judgment rendered for First Federal Savings & Loan Association of Dallas.

GRIFFIN and NORVELL, JJ., join m this dissent.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    AMERICAN HOSPITAL AND LIFE INSURANCE COMPANY, Appellant, v. C. V. KERN et al., Appellees.
    No. 6547.
    Court of Civil Appeals of Texas, Beaumont.
    June 14, 1962.
    Rehearing Denied Sept 5, 1962.

      Hutcheson, Taliaferro & Hutcheson, Houston, for appellant.
    Pollan & Nicholson, Rosenberg, for ap-pellee.
   STEPHENSON, Justice.

This is an appeal from an action of a County Court of Harris County sustaining a plea of privilege. The parties will be referred to here as they were designated in the trial court in Harris'County.

Plaintiff brought this action to restrain the sheriff of Harris County and J. W. Tryanowski from levying execution upon a judgment rendered by the County Court of Fort Bend County, Texas. Plaintiff contends venue should be retained in Harris County under Section 4 of Article 1995. The sheriff of Harris County is a resident of that county and the other defendant, J. W. Tryanowski, is a resident of Fort Bend County. Section 4 of Article 1995, Vernon’s Ann.Texas Revised Civil Statutes, reads as follows:

“Defendants in different Counties. — If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * *

Plowever, Section 17, of Article 1995, reads as follows:

“Injunctions. — Suits to enjoin the execution of a judgment or to stay proceedings in any suit shall be brought in the county in which such judgment was rendered or in which such suit is pending.”

Also, Article 4656, Vernon’s Ann.Texas Revised Civil Statutes, reads as follows:

“Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered; * *

Plaintiff contends the judgment of the County Court of Fort Bend County is void. If the Fort Bend County judgment is void, then Section 17, of Article 1995 and Article 4656 have no application. Pinkston v. Farmers’ State Bank of Center, Tex.Civ.App., 201 S.W.2d 595, and cases cited. It is therefore necessary for this court to review the record in reference to the Fort Bend County judgment and determine whether or not it is void upon its face or upon the record on which it was rendered. McDonald’s Texas Civil Practice, Sec. 4.25, page 384.

In the Fort Bend County case, J. W. Tryanowski was plaintiff, and The American Hospital and Life Insurance Company was defendant. The case was tried before a jury, and judgment was rendered March 30, 1961 on the verdict for The American Hospital and Life Insurance Company. April 6, 1961, J. W. Tryanow-ski filed a motion for new trial. April 7, 1961, this motion for new trial was set for hearing April 25, 1961. April 20, 1961, J. W. Tryanowski filed a motion for correction of judgment and alternatively, a first amended motion for new trial. April 28, 1961, the docket sheets show that arguments were heard on the motion. May 16, 1961 the motion to correct judgment was amended by deleting the request for a new trial. June 21, 1961, the County Court of Fort Bend County entered an order vacating the original judgment dated March 30, 1961, and rendering judgment for J. W. Tryanowski. A total of 83 days elapsed from the date of the first judgment and the date of the second judgment. Rule 329b(5) provides as follows:

“Judgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial.”

The motion for new trial was abandoned, so this judgment became final thirty days after March 30, 1961, except to correct and amend such judgment for typographical errors or to make it speak the truth. Ashborn v. Physicians Life & Accident Company of America, Tex.Civ.App., 332 S.W.2d 451. When the motion for new trial was deleted, all the court had before it was a motion to correct the judgment. A Reading of this motion reveals that it is not a request to correct some clerical error or mistake as contemplated by Rules 316, 317, 318 and 319 of the Texas Rules of Civil Procedure, but is in effect a request that the court render judgment for the plaintiff instead of the defendant and is based upon an interpretation of the substantive law applicable to the case. If the first judgment entered was void, then the trial court had the authority to set it aside by collateral attack even though the thirty day period had elapsed. There is nothing in this record to indicate the first judgment was void and thus subject to collateral attack. Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705.

Further, the motion to correct the judgment was not an original proceeding filed as an independent action alleging a meritorious cause of action and therefore was insufficient as a bill of review. Bridgman v. Moore, supra.

The cases cited by defendant J. W. Try-anowski are good authority for the proposition that if no judgment had been entered in this cause for 83 days, then the County Court of Fort Bend County could have rendered the second judgment. But, a judgment having been once rendered, and having become final because not appealed from within the time provided by law, could not be set aside upon pleadings designated as a motion to correct judgment, but which are, in effect, a motion to render judgment for one party instead of the other. The second judgment of the Fort Bend County Court, dated June 21, 1961, was void.

The judgment of the trial court is reversed and this cause is remanded to Harris County for trial.


author: LANGDON, Chief Justice.

text:
    Oscar M. CAVALLIN, Appellant, v. Rex IVEY, Jr., Appellee.
    No. 5602.
    Court of Civil Appeals of Texas. El Paso.
    Aug. 28, 1962.
    Brown Bailey, Midland, for appellant.
    Bruce Sutton, Alpine, Johnson & Dionne, Fort Stockton, for appellee.
   LANGDON, Chief Justice.

This is an appeal from a judgment of the District Court of Brewster County in an election contest. Contestant, Rex Ivey, Jr., contested the results of the official canvass of the votes cast in the Democratic Primary election of May 5, 1962, for the office of County Commissioner of Precinct No. 4 of Brewster County, wherein con-testee, Oscar M. Cavallin, received 32 votes and contestant, Rex Ivey, Jr., received 26 votes for such office.

Contestant Ivey contested the validity of sixteen votes cast for Cavallin and con-testee Cavallin contested the validity of nine votes cast for Ivey.

Trial was to the court without the intervention of a jury. In its judgment the court found two votes cast for contestant to be illegal, and eleven votes cast for con-testee to be illegal. Judgment was entered decreeing contestant, Rex Ivey, Jr., elected as the nominee of the Democratic party for the office of Commissioner of Precinct 4, by a vote of 24 for Ivey to 21 for Cavallin. From such judgment appellant, Oscar M. Cavallin, has perfected this appeal.

Appellant has conceded that the trial court did not err in holding that the votes cast for appellant by Fred Guliher and wife, Anita Guliher, were illegal votes. By his points of error appellant charges that the court erred in holding that the votes cast for him by nine other individuals were illegal, and in holding to be legal four votes that were cast for appellee, Rex Ivey, Jr. By cross-assignments appellee Ivey has attacked the ruling of the court on two votes.

We will first consider appellant’s points by which it is charged that the trial court erred in holding as illegal, and in deducting, nine votes from the total votes cast for appellant. (Points Nos. 1, 2, 4 and 6).

The trial court found that the votes cast by Domingo Gonzales and Herminio Gonzales were cast for contestee; that such votes were illegal votes “because such voters were not entitled to vote in said election in said Voting Precinct No. 4.”

Domingo and Herminio Gonzales are brothers. Both are citizens of the United States. Both are married. Domingo was born at Terlingua, Texas and is married to a United States citizen. Herminio’s wife, however, is a citizen of the Republic of Mexico. The wives of the two men each live in the town of Santa Helena in the Republic of Mexico, and for many years both men have “visited” their respective wives only on Sundays once every seven to fifteen days. Domingo has been married for twenty years, and Herminio for twelve years. They have seven and six children, respectively. Both men own dwellings located in the Republic of Mexico in which their wives and children reside, but neither owns any real property in the United States. There is no indication that either man has ever worked anywhere but in the United States. For the past two or three years, while working in the vicinity of Terlingua, in Brewster County, they have occupied a house owned by a cousin, Chico Ramirez. Part of the time they have occupied quarters furnished them by their employer, a Contractor in Big Bend National Park. Both men had valid poll tax receipts, and there is no question but that the place in which they lived, slept and prepared their own food for at least six days out of every week was in the precinct in which they sought to vote.

This is an unusual fact situation, and we have been unable to find any Texas cases precisely in point. Unquestionably, had they been single, both men would be entitled to have their votes counted in the election in which they cast their ballots. The question presented here is whether they (being otherwise qualified electors) forfeited their right to vote, not only in the precinct in which they lived, but anywhere in the State of Texas, by virtue of the fact that both men were married to women who lived and resided outside of the boundaries of the United States.

Article 6, Section 1 of the Texas Constitution, Vernon’s Ann.St. designates the classes of persons who shall not be allowed to vote in this state, to-wit: Persons under twenty-one years of age; idiots and lunatics; all paupers supported by any county; and all persons convicted of any felony, subject to such exceptions as the Legislature may make.

Section 2 of Article 6 provides in part as follows:

“Every person subject to none of the foregoing disqualifications who shall have attained the age of twenty-one (21) years and who shall be a citizen of the United States and who shall have resided in this State one (1) year next preceding an election and the last six (6) months within the district or county in which such person offers to vote, shall be deemed a qualified elector; and provided further, that any voter who is subject to pay a poll tax under the laws of the State of Texas shall have paid said tax before offering to vote * *

There is no evidence that either of the Gonzales brothers ever lived anywhere other than in Texas, except for weekly or semi-monthly overnight trips into the Republic of Mexico to visit their wives and children.

While the residence of a married man is ordinarily determined by where his wife resides (Article 5.08, Election Code, V.A.T.S.), such rule is not without exception. Farrell v. Jordan, Tex.Civ.App., 338 S.W.2d 269, 275; Stratton v. Hall, Tex.Civ.App., 90 S.W.2d 865; McBride v. Cantu, Tex.Civ.App., 143 S.W.2d 126.

In Farrell v. Jordan, supra, appellant asserted that the trial court erred in not deducting the vote of Fred Fields from the votes cast for appellee, because Fields was not a legal resident of Brazoria County (where he voted) on the ground that his wife resided in Bay City, Matagorda County, and that his residence was where his wife resides, if they are not permanently separated.

Fields testified that he had a business in Rosharon, Brazoria County, and that he considered it his permanent residence, but that his wife did not live there because “she doesn’t like things at Rosharon.” Fields owns the home occupied by his wife in Bay City and claims a homestead exemption on it. He and his wife have been married for 49 years, and he goes to see (visits) her nearly every week-end and stays in the home, except during harvest season. He eats and sleeps ninety per cent of the time in Rosharon, but if he were to sell out in Rosharon he would go back to Bay City.

The trial court held Fields to be a qualified voter at Rosharon, in Brazoria County, where he voted, and the Houston Court of Civil Appeals affirmed such holding, saying:

“We think when the legislature used the term ‘residence’ of the wife, it meant the legal residence of the wife and not merely where she might physically reside.”

In a 1936 opinion by this court in the case of Stratton v. Hall, supra, we held that the question of residence of a married person for voting purposes under Article 2958 (Article 5.08, Texas Election Code, V.A. T.S.) is one which must be determined by reference to the actual facts and circumstances, one of which will be his intention. Such holding was expressly approved and adopted by the San Antonio Court of Civil Appeals in a 1940 opinion by Justice Nor-vell. (McBride v. Cantu, supra.)

On direct examination by counsel for contestant-appellee, the witness Domingo Gonzales testified as follows:

“Q But your real home is where you live there with your wife in Mexico?
“A That is where she lives.
“Q Don’t you live with your wife?
“A Just Sundays when I go.
“Q How old is your youngest baby ?
“A Four years.
“Q All right. Do you work all the time in the Park, year ’round or do you just work there sometimes?
“A When there is work and sometimes when they ask me to work.
“Q I see, but there isn’t work all the time?
“A No, sir.
“Q And when you are not working where do you stay?
“A At Chico Ramirez’, Campo Nueva.
“Q Except on Sundays, when you go stay with your wife?
“A Sometimes I go look for work and don’t go.
“Q How much of the year do you work? Half, or more?
“A All the year I have been working at the U-2 * * *
“Q Do you do any work in Mexico ?
“A No, sir, I don’t work there at all.”

We believe that in a case such as this, Article 5.08 has no application, and that a married man’s legal residence is not affected by the fact that his wife resides outside the United States where it is conclusively shown, as we believe it is here, that the husband physically resides in the United States and only visits his wife on Sundays. We do not believe the Legislature intended the courts to apply the rule of the statute except in cases where a husband and wife, not permanently separated, are shown to reside in different places within the United States. A contrary holding, assuming the one offering to vote is otherwise qualified, would, in our opinion, operate not only to disfranchise a citizen of his right to vote, but might conceivably place in jeopardy other rights and privileges normally enjoyed by resident citizens of the United States, but not available to those who reside abroad or who may be deemed to have become residents of a foreign country. In addition, we are of the opinion that any other construction would be an unauthorized enlargement of the classes of persons prohibited from voting under the Constitution of Texas, Article 6, Section 1, supra, and would be in violation of Section 2 of the same Article.

There is a presumption in favor of the validity of the vote cast. Contestant-appellee challenged the votes cast by Domingo and Herminio Gonzales only upon the grounds that they did not live in County Commissioner’s Precinct No. 4 of Brewster County, Texas on May 5, 1962, when they voted. Aside from the fact that the wives of each of the two voters physically resided in the Republic of Mexico, the only other evidence was to the effect that both voters did reside in the Commissioner’s precinct in which they voted. We hold, therefore, that the two votes cast by Domingo and Herminio Gonzales are valid and legal votes; that such voters “resided” in the precinct; and that the trial court erred, as a matter of law, by declaring such votes illegal and in deducting them from the total votes cast for appellant, Oscar M. Cavallin.

All of appellant’s remaining points are based upon the assertion that the trial court erred in deducting certain votes from the total votes cast for appellant and in not deducting certain votes from the total votes cast for appellee. The basis of each assertion is that the legal residence of certain voters whose votes were held to be illegal was in Commissioner’s Precinct No. 4 of Brewster County, and in the case of certain other voters whose votes were determined by the trial court to be legal, that the legal residence of such voters was not in Commissioner’s Precinct No. 4. In each instance the trial court, in determining whether a particular vote should or should not be deducted, necessarily found the residence of the challenged voter was in Commissioner’s Precinct No. 4, or that it was not in such precinct. If there is evidence to sustain such findings, we may not disturb them.

We have carefully reviewed the evidence upon which the trial court was required to make a decision with respect to the validity or invalidity of the votes cast for appellant by Bob Turner and wife Lola Turner; Arturo White and wife, Carolina White; F. C. Fulcher and wife, Evelyn Fulcher; and Frank Duncan, which the court held to be illegal votes; and in holding that the votes cast for appellee by Buell DeMumbrun and wife, Mrs. Buell DeMum-brun, and Rex Ivey, Jr. and wife, Mrs. Rex Ivey, Jr., were legal votes. Each of the court’s decisions rested solely upon questions of fact to be determined by the trial court as the trier of facts in the absence of a jury. While it is true that reasonable minds might differ as to the conclusions reached by the trial court, we are of the opinion that there is evidence to sustain the findings required to support the judgment of the trial court with respect to the votes cast by each of the above-named persons; and in such case we are bound by the trial court’s findings. No useful purpose would be served in outlining the evidence upon which the trial court based its various decisions, in view of our holding that such evidence was sufficient. Appellant’s Points 2, 3, 4, 5 and 6 are accordingly overruled.

Appellant’s Point 1 presented a question of law and was sustained by us. Our decision has the effect of adding two votes to the total vote cast for appellant Oscar M. Cavallin, but does not change the result of the election as found by the trial court. Appellant’s total vote is raised from 21 to 23 votes, against appellee’s total of 24 votes, leaving appellee with a majority of one vote.

Our opinion renders it unnecessary for us to consider appellee’s cross-assignments of error relating to two votes cast for appellant which the trial court held to be legal, and we therefore express no opinion with reference thereto.

The judgment of the trial court is affirmed.

FRASER, J., not sitting.


author: COLEMAN, Justice.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. Barbara H. HERZIK, a widow, Appellee.
    No. 13962.
    Court of Civil Appeals of Texas. Houston.
    June 14, 1962.
    Rehearing Denied Sept. 13, 1962.

      James G. Sargent, Houston, for appellant.
    Russell T. Van Keuren, Houston, for appellee.
   COLEMAN, Justice.

This is a suit for death benefits under the Texas Workmen’s Compensation Act. Based on a jury verdict the trial court entered a judgment for the plaintiff.

Barbara H. Herzik was the wife of Frank J. Herzik, who died October 16, 1959, while engaged in the performance of his duties as an oven loader for Schott’s Bakery, Inc. Appellee’s claim for compensation was filed with the Industrial Accident Board July 30, 1960. The jury found that appellee was physically incapacitated to file a claim for compensation from October 16, 1959, through April, 1960, a period of 6½ months, and that good cause existed for not filing the claim sooner than it was filed.

The jury finding of “good cause” was based on findings that appellee believed that Schott’s Bakery, Inc. would take care of all her insurance claims and that she did not know she was required to file a claim within six months from the date of her husband’s death. The second basis is untenable. Mistake of law or ignorance of the law will not justify delay in filing a claim for compensation beyond the six month period provided in the Workmen’s Compensation Act. LaCour v. Continental Casualty Co., 163 S.W.2d 676, Tex.Civ.App., error ref.; Sandage v. Traders & General Ins. Co., 140 S.W.2d 871, Tex.Civ.App., error ref.; Texas Employers Insurance Ass’n v. Doss, 301 S.W.2d 473, Tex.Civ.App., error ref., n. r. e.; Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053. There was no issue submitted to the jury, and no finding, that appellee’s ignorance of the fact that her deceased husband’s employer carried Workmen’s Compensation insurance constituted a good cause for failure to file her claim.

The evidence on which the jury found that Schott’s Bakery, Inc. would take care of all of appellee’s insurance claims consisted of the testimony of appellee that she received a telephone call from someone “high-up” in the company, Mr. Jack Freeborn, who called her about the insurance. He told her he was sorry about Mr. Herzik and that he had a check for her. He then asked if she wished to come and get it. When she told him that she wasn’t able to come and get it by herself, he said, “I will send it out. I will take care of everything.” She testified that she guessed the check was for life insurance that her husband had paid for and that she didn’t know whether it had anything to do with Workmen’s Compensation insurance. She never did see or hear from Mr. Freeborn after she got the check. Mrs. Herzik had very little education or business experience of any kind. She testified that prior to the time she consulted her lawyer in July, 1960, she had never heard of the Workmen’s Compensation Law and knew nothing about its requirements. In answer to a question by appellant’s attorney she said that all of her conversation with Mr. Freeborn was about the life insurance check. She further testified on cross-examination that she didn’t know there was a Workmen’s Compensation Law, or that Schott’s Bakery had Workmen’s Compensation insurance, or that she had to file a claim in six months and that she could have picked up the telephone and called her lawyer to ask about Workmen’s Compensation and that the reason she didn’t do it was because she didn’t know anything about Workmen’s Compensation. On redirect examination she stated that she relied on Mr. Freeborn’s statement that he would take care of everything concerning the insurance. She then testified again that the only reason the claim wasn’t filed at a proper time was that she didn’t know what the law was. She further testified that no one representing appellant or Schott’s Bakery, Inc., told her that they would handle her claim for her.

The general rule applicable to the facts of this case is concisely stated in LaCour v. Continental Casualty Co., supra, as follows:

“It has been uniformly held that the test for ‘good cause’ for delay in filing a claim before the Board is that of ordinary prudence, that is, whether the injured employee has prosecuted his claim for .compensation with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances and that the question as to whether he has exercised such degree of diligence is ordinarily a question of fact, but that, where the evidence, taken most strongly in favor of the claimant, admits of .but one reasonable conclusion, negativing good cause, the question becomes one of law. Texas Indemnity Ins. Co. v. Cook, Tex.Civ.App., 87 S.W.2d 830, writ refused; Maryland Casualty Co. v. Merchant, Tex.Civ.App., 81 S.W.2d 794.”

Appellee has frankly stated that she did not know that the employer had Workmen’s Compensation insurance. She knew nothing about the law concerning injuries received in the course of employment. She testified positively several different times that her ignorance of the law and of the fact that the company had procured Workmen’s Compensation insurance were the only reasons she did not file her claim. She also testified that she relied on the statement made by Freeborn that he would take care of everything. The jury reasonably •could have believed that had she not relied on this statement she would have caused an investigation to be made which would have resulted in knowledge of the fact that the company had provided Workmen’s Compensation insurance for the benefit of its employees and that her claim must be filed within six months. The fact that the company did voluntarily “take care of everything” in relation to the life policy would be a circumstance to be considered by the jury. Appellee’s physical and mental condition at the time the statement was made, as well as her lack of education and business experience, might properly be considered by the jury in determining whether an ordinary prudent man under the same or similar circumstances would have delayed in filing the claim as long as she did. We cannot say that the evidence taken most strongly in favor of the claimant admits of but one reasonable conclusion, negativing good cause.

An employer is not required by law to become a subscriber under the Workmen’s Compensation Act. While the Act provides for constructive notice to employees of an employer’s election to accept the terms of the Act, it has been held that this provision does not apply to beneficiaries of deceased employees. Texas Employers’ Ins. Ass’n v. McGrady, 296 S.W. 920, Tex.Civ.App., writ dism.; Employers’ Liability Assur. Corporation v. Mills, 81 S.W.2d 1028, Tex.Civ.App., writ dism.; Hurd v. Republic Underwriters, 105 S.W.2d 428, Tex.Civ.App., writ dism.

After a careful review of all the testimony pertinent to the issues submitted on “good cause,” we are unable to say that the answers made by the jury are so contrary to the great weight and preponderance of the testimony as to be clearly wrong. Appellant also contends that ap-pellee’s testimony concerning the only reasons she failed to file her claim for compensation constitute judicial admission. However we think these statements were modified by her further testimony that she relied on the company to take care of everything pertaining to insurance because of the statement to that effect made by Mr. Freeborn.

The deceased employee, Mr. Herzik, had been working as an oven loader for about three years. An oven loader lifts four loaves of bread from a rack, which extends from a few inches above the floor to a height of some six feet, and places them on a plate which is mechanically inserted into the oven. The oven accepts sixty or sixty two loaves a minute. The work requires bending, lifting, reaching and turning. On the day in question deceased and his partner had loaded between 700 and 900 loaves of bread in the fifteen minutes since they had begun work. While the testimony shows that the work is not particularly strenuous, the testimony is that two men work together and load about sixty loaves a minute. On the day in question the deceased had been working steadily for fifteen minutes before he collapsed. During that time he would have transferred bread from the rack to the baking plate about one hundred times.

Prior to his collapse on the day in question he had become ill and on September 8, 1959, consulted a physician. A physical examination revealed that he was suffering from “heart failure from coronary disease, coronary insufficiency, and high blood pressure and general arteriosclerosis” and had a greatly enlarged heart. After a period of treatment and bed rest, on October 4, 1959 he returned to work on a half-shift basis and had been working at his usual job for several days before his collapse and death. The medical testimony shows that his death was caused by a coronary occlusion. Mr. Herzik had developed arteriosclerosis, narrowing and hardening of the arteries. The narrowing of the interior of the artery, or lumen, causes the blood to flow slower than normal, and increases the strain on the heart. If the movement of the blood slows sufficiently, it may clot, stopping the flow of blood and causing death. The doctor who treated Mr. Herzik testified that an extra demand thrown on the arteries increases the danger of a clot forming in the artery, and that the exertion of loading bread on the occasion in question contributed to his death. He further testified that it was as probable that a strain sufficient to cause a clot would result from the exertion of beginning work from rest before he was adjusted as after he had become physically exhausted by work. While the doctor testified that any exertion such as lifting or bending might eventually cause the death of a person with Mr. Herzik’s condition of health, and that he thought his physical condition was such as to eventually cause his death had he not resumed work, he positively testified that it was his opinion that the work Mr. Herzik was doing just prior to his collapse was a contributing cause of his death. No medical testimony to the contrary was offered.

In Aetna Insurance Company v. Hart, Tex.Civ.App., 315 S.W.2d 169, writ ref., n. r. e., this Court said:

“To recover under the Act it need only be shown that an injury to the physical structure of the body was sustained by the employee as a result of a risk or hazard of the employment while the employee was acting in the course of his employment.”

In Maryland Casualty Company v. Rogers, Tex.Civ.App., 86 S.W.2d 867, writ ref., the court held:

“ ‘By the term “injury” is meant, not only an injury the means or cause of which is an accident, but also an injury which is itself an accident.’ Carroll v. Industrial Commission, 69 Colo. 473, 195 P. 1097, 1098, 19 A.L.R. 107.
* * * * * *
“ * * * The injury was unexpected and undesigned. It could be traced to a definite time, place, and cause.”

In Traders & General Ins. Co. v. Rooth, 268 S.W.2d 539, Tex.Civ.App., writ ref., n. r. e, the court held:

“Compensation benefits can be awarded if the workman, as a result of job exertion, sustains hemorrhages, ruptures or heart attacks, notwithstanding the fact that predisposing factors contribute to the incapacity or death.
******
“A workman can recover compensation benefits if a job incident contributes to cause his incapacity. Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026; Travelers’ Ins. Co. v. Peters, Tex.Civ.App., 3 S.W.2d 568—affirmed Tex.Com.App., 17 S.W.2d 457. In other words, a predisposing bodily infirmity will not preclude or reduce compensation benefits if the ultimate incapacity is contributorily caused by an accident arising out of the employment.”

In Texas Employers’ Ins. Ass’n v. McGrady, Tex.Civ.App., 296 S.W. 920, writ dism., the court said:

“However, the mere fact that the person in whom the rupture occurred has at the time diseased arteries or high blood pressure is not conclusive proof that the injury is a result of a disease and not accidental. The weakened state of the arteries caused by the physical disorder, or the abnormal strain caused by the high blood pressure, is merely a condition which some exciting or producing cause may operate. If a rupture results from lifting a heavy weight by a healthy person, it is because the exertion is too great for one in that physical condition. The legal principle is the same if the rupture results from lifting a lighter weight by a person of less strength, whether the reduced strength is the result of natural or diseased conditions. Whatever the physical condition of the individual may be, if it is such that it requires some physical exertion or strain to cause the rupture the injury may properly be classed as an accidental one. If lifting 100 pounds may cause an accidental injury to one person, upon what ground can it be said that a similar injury to another person caused by lifting SO pounds, or 25 pounds, is not also accidental? If that is not true, then where shall we draw the line between the differing physical conditions; or what shall we adopt as a standard of weight in determining whether the injury is the result of an accident or a disease? It would not be satisfactory or logical to fix that standard at what it would require to injure one in normal health, for even people in normal health vary in physical strength. Nor should it be said that an injury from overexertion by one in a debilitated condition is not an accident simply because it required less violent exercise to produce the injury. Since we cannot fix any standard of condition, neither can we fix any standard of sufficiency of cause operating upon the condition. The legal principle is the same, whether the injury results from lifting weights, as a can of paint, or by some other form of physical overexertion.”

The evidence supports the findings of the jury that Mr. Herzik’s death resulted from an accidental personal injury sustained in the course of his employment, and that the answers of the jury to the special issues submitted were not so contrary to the great weight and preponderance of the evidence as to he clearly wrong.

The judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    KING CONSTRUCTION COMPANY, Appellant, v. Hunter FLORES, d/b/a Freeport Machine & Boiler Shop, Appellee.
    No. 13913.
    Court of Civil Appeals of Texas. Houston.
    June 28, 1962.
    On Remittur July 12, 1962.
    Rehearing Denied Sept. 13, 1962.

      Ellis F. Morris, Houston, for appellant..
    Wiley Thomas, Angleton, for appellee-
   BELL, Chief Justice.

Appellee sued appellant, in form, on a-sworn account to recover for materials, equipment and labor furnished and for the-rental value of certain equipment. He also sued for attorney’s fees. Trial was to a jury, and on the jury verdict judgment was-rendered for appellee in the amount of $4,-534.55. This amount included attorney’s-fees of $1,295.00.

Basically three points of error are asserted. First, it is contended that except for the sum of $234.25 there is no evidence,, or alternatively there is insufficient evidence-to show the materials, labor and equipment were furnished appellant because there is no showing of authority in the person who-allegedly made the arrangements for them. Second, it is contended the court erred in allowing any attorney’s fees because suit was for rental of equipment or, alternatively, the amount found by the jury was so against the greater weight and preponderance of the evidence as to be clearly wrong. Third, the argument of appellee’s-counsel was inflammatory, erroneous and harmful in the respects we will later notice.

We hold there was evidence, and it was sufficient, to support the jury’s answers because there is sufficient evidence that the equipment was rented, the labor done, and! the material furnished at the instance of an authorized representative of appellant.

King Construction Company is a partnership composed of George Caliva and Anthony Caliva. It had a contract to build a sewer treatment plant for the City of Free-port. It was in connection with this job that the indebtedness was incurred. The indebtedness sued for was created by reason of appellee furnishing the following:

1. Use of 190 feet of 8 “I” beams at $133.00 per month for 10 months for a total rental of $1,330.00.

2. Use of a dragline, dragline bucket and clam shell bucket for 2 weeks at $500.00 per week, or a total rental of $1,000.00.

3. Use of a ¾ yard bucket, a 6" pump and a 6" suction hose for 3 weeks, for a total rental of $412.00.

4. Labor and material in the total amount of $491.50.

We have separated the various classes of items because of appellant’s contention with regard to attorney’s fees.

The bookkeeper for appellee testified that as the various charges were incurred she sent appellant invoices at its office at 3818 Chaffin St., Houston, Texas. The first invoice was dated October 5, 1959 and the last October, 1960. There were 13 invoices. Appellant admitted by pleading it owed $100.00 rental of a dragline for one day represented by invoice 3096 dated October 5, 1959. This invoice was actually for a total of $1100.00. Also he admits owing $134.25 shown on Invoice 3126 dated November 11, 1959. This was for rental of a ¾ yard clam shell bucket. There were two other items on the same invoice aggregating $277.75. The bookkeeper testified no payment at all had been made.

Mr. Kennedy, who at all material times was employed by appellee, testified that about October 5, 1959 he personally handled the moving of a dragline to the construction job of appellant. He had to move it in by barge along a canal. He testified the reasonable rental charge was $500.00 per week and this was agreed to by King Construction Company. He also testified that when they took their machine off the job “the superintendent on the job” stated he needed the machine, but Kennedy having need of the machine elsewhere moved it. Mr. Kennedy also personally delivered the pump, clam shell bucket and suction hose to the job. These were needed on the job to keep a pit cleaned out. With regard to the I beams Mr. Kennedy testified that Mr. King, the superintendent on the job, came to him and told him they were about to lose the coffer dam and wanted to get all the I beams they could to brace the dam. Mr. Kennedy, a welder, and another man took some I beams to the job and braced the dam. The next morning Mr. King came for more I beams. They were provided. The rental of these beams that went into the coffer dam was shown to be $133.00 per month. Mr. Kennedy testified he talked to Mr. Haganis and Mr. King of appellant Company about the rental of the dragline. Appellant’s motion for continuance shows Haganis was its employee connected with the job.

Mr. Flores also testified he talked to Haganis about rental of the dragline.

Other evidence showed appellant never complained about the invoices sent it or any charge shown on them until suit was filed though evidence does show they never paid anything on the account.

We think that appellant’s admission that it owed $100.00 for use of the dragline that was furnished by appellee on October 5, 1959, the commencement date of the account, is an admission that whoever rented it had authority to do so. Too, Mr. Kennedy testified Mr. King, the superintendent on the job, made the agreement for the rental and used it on the job. Also, the I beams were contracted for by Mr. King and were installed in the coffer dam on the job. With regard to rental of the ¾ yard dragline bucket rented and used on the job appellant admits it owes the amount charged. On the same invoice were charges made for rental of a pump and suction line. The invoice was sent to appellant and no complaint was made of the charges. It seems to us that where, as here, an account for a job is opened by one shown to have authority to open it and invoices are sent thereafter by the particular creditor for other things furnished for the same job and the debtor over the period of nearly a year raises no question about the charges, a prima facie case of authority is established. After the dragline was rented on October 5, 1959, invoices for all other items furnished were sent appellant and at no time did it communicate to appellee any complaint about any of the charges. Too, it seems to us the superintendent on the job would have authority to contract for those things reasonably necessary in carrying on the job. Too, here it is shown the things charged for were actually used on the job with knowledge of the superintendent.

Appellee having made out a prima facie case of authority of the agent to contract for the items shown, the jury could consider, in weighing the evidence, the failure of the partners to testify. Certainly there being a prima facie case, it is of real significance that the partners did not even testify denying what has been proven. Such failure is evidence of the truth of facts established prima facie from other testimony. Bayou Drilling Co. of Texas v. Baillio, Tex.Civ.App., 312 S.W.2d 705, ref., n. r. e.

Appellant next complains of various parts of the argument of appellee’s counsel and that such argument was harmful. The parts complained of are:

1. “this is a case where a hot shot in Houston, operating in in partnership under the name of King Construction Company, come down here to Brazoria County, to the City of Free-port, and sign a contract for $337,000.00 to build a sewerage disposal plant.”
2. “Mr. Holder’s pleading show you that they run over time, they owe $13,000.00 in liquidated damage to the City and they owe so many people for much services that were performed down there, that the City of Freeport and the Bonding Company have put the money in the courthouse, and then this lawyer, I don’t know whether he is associated with King Construction Company or the Insurance Company, that he purports to represent, comes down here and tells you that Mr. Kennedy is lying.”
3. “He tells you that Hunter Flores, who has been in Brazoria County and Freeport, operating a legitimate business for years and years is dishonest in this suit.”
4. “Yes, sir, Mr. Morris, you can anticipate right that I am going to ask you where are the Cliva’s, where is Anthony Cliva, where is George Cliva, where is Haginas, where are the bookkeepers from King Construction Company. The Sheriff of Harris County can’t find them.”
5. “They are trying to beat this man out of his money, * * * I know that I shouldn’t get worked up over a few accounts and a bunch of money, * * I couldn’t bring it on * * * why they picked up this dragline, but this insurance company lawyer did * * * they got word that Cliva was not going to pay their bill, they were going to beat them out of their money, they worried about it, isn’t that what Mr. Kennedy said, in so many words. * * * the evidence conclusively shows that these people in Houston are bent on beating everybody out of their money.”
6. “Talk about a lawyer fees, I don’t have a family, and I live, I guess in the biggest house in Brazoria County, with a dog, so I can’t go home and look my family in the eye, but if I go home at night and feed my dog, after three days in this courthouse, having put not one witness on the stand to controvert the evidence, I couldn’t look that dog in the eye, when I started to feed her hamburger meat, I believe I would back up and feed her.”
7. “The Cliva’s didn’t come down here and let you look at them, it is a matter of — Haganus, the Sheriff of Harris County can’t find him, I wonder where he is, I wonder if he is in the State or in the penitentiary over just such jobs as they have pulled down there in the City of Freeport, but one thing about it we have the money in the District Clerk’s office.”
8. “Why, if they have any defense to this, why didn’t they come down here and look a Brazoria County jury in the eye.”
9. “Why did they come down here and take better than $330,000.00 tax money out of this city, and get a lawyer ■out of Houston, and — who doesn’t put one single solitary witness on the stand.”
10. “ * * * I believe in mercy, but they are down here, where they are in the business of making money.”
11. “If they didn’t have it for two weeks, why didn’t they come here.”
12. “Are you going to answer these issues, because of an, in my opinion of an asinine argument made about whether or not Mr. Kennedy and Mr. Flores seen those jokers from Houston using this dragline.”
13. “I am telling you right now, I am going to — I am going to go along with this argument.”
14. “I get a little bit roused, when he says Mr. Kennedy is lying and Mr. Flores is dishonest, * * * Are they going to send one lawyer down here and let him make an argument that will tell you not to answer these issues by a preponderance of the evidence.”

Of the first paragraph, it is to be observed that the City of Freeport was a party defendant and it fully pled the contract and the amount. The City presumably read its pleading to the jury because it did not go out of the case until the ap-pellee rested its case. Too, we note no objection was made to the argument and even if erroneous, and we do not think it was, its harmful effect, if any, could have been removed by proper instruction.

With regard to the second paragraph of the argument, it is to be observed that the pleadings did allege appellant owed liquidated damages of $13,000.00. Too, it was in the pleadings read to the jury that the City tendered the money into court. The same pleading alleged various claims had been filed with the City by other claimants. Further when Mr. Kennedy testified, at one point in his testimony he testified he got the dragline because he had heard other people were owed for work done for appellant. The appellant’s counsel had charged Mr. Kennedy with lying. Too, the bonding company was a party defendant and remained so until it went out on instructed verdict when appellee rested. Too, it was represented by the same counsel as was appellant. The argument gave no information to the jury it did not have already. Too, no objection was made to the argument.

Appellant’s counsel had, in his argument, brought up that the Calivas had not testified. Comment on their failure to testify was legitimate comment by appellee. Too, Haganis had been shown to have been employed by appellant. Also it was in evidence that the sheriff of Harris County had been unable to find the Calivas.

With regard to all the argument now objected to by appellant, it is to be noted that, with the exception hereinafter noted, no objection was made to it until the motion for new trial. None of it, we consider, under this record, to have been erroneous. However, if it was, the argument was of a nature that any harmful effect could have been removed by proper instruction. By not having' objected and asking for an instruction that the jury not consider the part complained of, there was a waiver.

The only part of the argument to which objection was made was paragraph 7. above quoted. When it was made the appellant’s counsel objected that the speculation as to whether Haganis was in the penitentiary was calculated to prejudice the jury. The court immediately instructed the jury to disregard the statement as to the whereabouts of Haganis. Too, appellee’s counsel withdrew the argument and asked the jury to disregard it.

It was erroneous to make the speculation. It, however, was mere speculation and not a statement of fact. We feel any harmful effect that might have resulted was removed by the prompt instruction.

Too, on the whole record, we are convinced no harm resulted from any of the argument.

Appellant complains of the submission of an issue on attorney’s fees because of there being no evidence and insufficient evidence to support submission. We overrule both contentions.

However, appellant raises the issue that the jury’s finding that a reasonable attorney’s fee would be $1,295.00 is so contrary to the overwhelming weight and preponderance of the evidence as to be wrong and unjust. This is an attack on the amount as being excessive. We sustain this point. There was evidence establishing that appellee performed labor and furnished material in the amount of $491.50. Certainly under Article 2226, Vernon’s Ann. Tex.Civ.St., a reasonable attorney’s fee would be recoverable in a suit to recover on this character of debt. This suit, however, also sought recovery for rental of a drag-line, dragline buckets, clam shell buckets, a pump and a suction hose. The rental for these aggregated $1,412.00. We are of the view that for this type of debt attorney’s fees are not recoverable. No title to any personal property passed and we do not think this amounts to “material furnished”' within the meaning of Article 2226. Davenport v. Harry Payne Motors, Inc., Tex.Civ.App., 256 S.W.2d 245, no writ hist.; Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75; Max O. Coulson et al., d/b/a Brickstone of Ft. Worth v. Avis Auto Rentals, Inc., Tex.Civ.App., 352 S.W.2d 849, ref., n. r. e.

The question arises as to whether attorney’s fees are recoverable on that part of the claim representing rental for I beams. Article 2226 provides for an attorney’s fee where the party suing has a valid claim for “materials furnished.” We are of the view that the rental for the I beams is a valid claim for “materials furnished” and, therefore, comes within Article 2226 authorizing an attorney’s fee. The rental for the beams was $1,330.00. The recovery for other material furnished and labor done was $491.50. We therefore have a total recovery for items, for which an attorney’s fee is allowable, of $1,821.50. The attorney’s fee of $1,295.00 allowed below is in our opinion excessive. A reasonable attorney’s fee in the light of the record is, in our opinion, $750.00. The judgment below was excessive by $545.00.

If within 15 days appellee files a remit-titur in this amount, the judgment of the trial court will be reformed and, as reformed, affirmed. If such remittitur is not filed, the case will be reversed and the cause remanded.

On Remittitur

On June 28, 1962, we indicated by an opinion in writing that if appellee would file a remittitur of $545.00 within 15 days of such date the judgment of the trial court would be reformed and as reformed would be affirmed; otherwise the judgment of the trial court would be reversed and the cause remanded. Appellee has filed the suggested remittitur.

Accordingly, as of this date, the judgment of the trial court is reformed by deducting the amount of $545.00 from the judgment recovered by appellee, and, as so reformed, is affirmed.

One-fourth of the costs of the present appeal will be taxed against appellee, and three-fourths against appellant.

Motion for rehearing may be filed by either party within 15 days after this date.


author: WALTER, Justice.

text:
    H. C. MINTON, Appellant, v. George W. STEWART, Appellee.
    No. 3698.
    Court of Civil Appeals of Texas. Eastland.
    June 8, 1962.
    Rehearing Denied Sept. 7, 1962.
    Joseph A. Chandler, Stephenville, for appellant.
    Sam Russell, C. O. McMillan, Stephen-ville, for appellee.
   WALTER, Justice.

This is a venue case. George W. Stewart filed suit against H. C. Minton seeking to establish an express or constructive trust and to foreclose an equitable lien on land in Erath County. Minton filed a plea of privilege. Plaintiff controverted the plea and alleged that the District Court of Erath County had venue under Subdivisions 12 and 14 of Article 1995, Vernon’s Ann.Civ.St. The court overruled the plea of privilege.

Stewart has appealed contending the court erred because the plaintiff failed to show his suit was one to establish an express or a constructive trust on land located in Erath County or that his suit was one to foreclose an equitable lien on land in Erath County. He also contends the land was not properly described.

The parties will be referred to as they were in the trial court. The plaintiff had the burden of establishing, under Subdivision 14, that his suit was for the recovery of land and that the land was located in Erath County. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69. The court in Calvert v. Greene, Tex.Civ.App., 326 S.W.2d 592 (No Writ History), said: “The controlling factor is not that plaintiff has title, as disclosed by the facts, but that by his allegations he claims title.”

We have concluded that the nature of the plaintiff’s cause of action, as disclosed by his petition, is one for the recovery of an interest in land.

As shown by plaintiff’s petition, he and the defendant agreed to purchase some land in 1950. The defendant was to furnish the money and title was to be taken in his name and the plaintiff was to furnish his services. They would both own an interest in the land. Land was thereafter purchased in Erath County by the plaintiff and the defendant furnished the money and title to said land was taken in his name. The plaintiff located the land and performed all of the services incident to purchasing it. Their land was stocked with cattle and goats and thereafter the stock was sold and a settlement made on their business venture on everything except the land.

We have concluded that the plaintiff has alleged facts which are sufficient to create a constructive trust. The legal rights resulting from the allegations revealed that the plaintiff and the defendant were engaged in a joint adventure. Plaintiff pleaded “that he is seeking to retain all profits and advantages from the joint adventure and to reap an unconscionable and unjust enrichment of himself; that he has abused and is abusing the trust and confidence this Plaintiff has placed in him; that it constitutes the basis for and gives rise to a constructive trust in the land herein described in favor of this Plaintiff. * * * that in equity this Plaintiff is entitled to a 1/3 interest in the 1295 acres described herein, which interest the Defendant is holding in trust for this Plaintiff, and this Plaintiff sues the Defendant herein for a 1/3 interest in said land described, and for a partition of said interest to him.” Our Supreme Court in Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401, said:

“A constructive trust does not, like an express trust, arise because of a manifestation of intention to create it. It is imposed by law because the person holding the title to property would profit by a wrong or would be unjustly enriched if he were permitted to keep the property. It is used, among other things, to adjust rights of partners. The same basic rules, in situations such as we have here, apply to joint ven-turers.”

Plaintiff’s testimony and the record show that the land is located in Erath County.

The plaintiff alleged, in the alternative, that he had rendered valuable services before and after the purchase of the land and that he had paid for the drafting and recording of the deeds and for the documentary stamps placed thereon. He alleged that a part of the land was assessed in his name for one or two years and he paid the taxes for these years out of his own funds. He alleged that his wife and boy worked on the land and that he had paid for some of the improvements out of his own funds. The plaintiff contends that because he paid taxes on the property and paid for some of the improvements out of his own funds he is entitled to an equitable lien on the land, which he seeks to foreclose. “An equitable lien has the nature of, or is analogous to, a trust and really grows out of the doctrine of constructive trusts.” S3 C.J.S. Liens § 1, p. 832.

We have concluded that the plaintiff has pleaded facts which show that his suit is also one to establish and foreclose an equitable lien on land in Erath County and the court had venue under Subdivision 12 of Article 1995, V.A.C.S.

We have examined all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


text:
    Julie Arita Benham MANNING et vir, Appellants, v. Charles E. BENHAM, Appellee.
    No. 13917.
    Court of Civil Appeals of Texas. Houston.
    June 21, 1962.
    Rehearing Denied Sept. 13, 1962.

      Mann, Fisher & Castillon, Sam R. Fisher, Laredo, for appellants.
    Juanita P. Keen, Bettye J. Lambert, Houston, for appellee.
   COLEMAN, Justice.

This is an action brought by appellee, Charles E. Benham, against his former wife, Julie Arita Gary Benham Manning, and her husband, Hugh Manning, for an adjustment of equities, by way of contribution, reimbursement or accounting, arising from properties purchased, and debts contracted, during the marriage of appellant and appellee, which were not settled by the decree of divorce. After a trial to the court without a jury, appellee was awarded a judgment in the amount of $8,-456.28, and appellant has appealed.

The controversy revolves around certain property, which for convenience will be designated Houston property, Kenner lots, and Compromise Street house. The Houston property was owned by appellant pri- or to her marriage to appellee on August 31, 1946. On November 25, 1947, the existing mortgage on the property was increased, and both appellee and appellant executed a note in the sum of $11,500.00 and a mortgage on appellant’s separate property. The sum of $7,000.00 was borrowed thereby for the community funds. After the marriage was dissolved by divorce, this note was paid in full and appel-lee contributed to the payment thereof the sum of $7,014.49. In order to pay the community portion of the obligation, including interest, the sum of $7,751.16 was required. It thus appears that appellee contributed the sum of $3,238.91, more than one-half of the community obligation.

The Kenner lots were purchased during the marriage for cash. Appellant contended that they were paid for by her with her separate funds. She produced checks signed “Mrs. C. E. Benham, Special Account” for the greater portion of the consideration. Appellee did not testify directly that the funds used to pay for these lots were community funds, but he did testify generally to the effect that he and appellant chose and bought the lots as a site for a future home. The funds with which the “Mrs. C. E. Ben-ham, Special Account” was established were not traced other than through the testimony of appellant that it was her personal money and that it was money she had earned. Appellant testified to the sale of certain separately owned properties some years previously, but did not trace any of the proceeds into this bank account. She testified that she had several bank accounts under different names. During the marriage and prior thereto she had income from business ventures with her brother and from rentals from her separately owned property. Appellee testified that prior to and at the time of the purchases he was employed at a salary of $650.00 per month plus expenses, and that his wife managed the family finances. The deed to the property was taken in their names jointly. No proof of the Louisiana community property law was made. The trial court found that the property was community property and his finding is properly supported by competent testimony.

The Kenner lots were sold by appellant acting for herself and as attorney in fact for appellee for the net sum of $4,400.00. The trial court found that the power of attorney authorizing the sale was executed by appellee by reason of representations made by appellant that she would apply the proceeds to .reduce the indebtedness on the Compromise Street house. Appellant collected the purchase price, but did not apply the proceeds to debt reduction.

The testimony concerning the purchase of the Compromise Street house is very similar to that concerning the Kenner lots a'nd will not be repeated. The trial court found that it was purchased as community property, and such finding is supported by competent testimony and is not against the great weight and preponderance of the evidence. This property was jointly owned by appellant and appellee at the time of trial and no partition was requested or decreed. The trial court found on sufficient evidence that on the date of the divorce there was indebtedness secured by a lien on the property in the sum of $4,365.99, and at the time of trial a principal balance of $2,291.72. He further found that there was paid on this loan from the date of the divorce to the date of trial in principal and interest the sum of $5,588.91, and that of this sum appellee paid a total of $3,411.82, which was $617.37 more than one-half.

Appellant collected in rentals on the Compromise Street house, from the date of the divorce to the date of the trial, the sum of $5,350.00, and paid for the maintenance and preservation of the property the sum of $350.00. These facts were incorporated in the findings of the court and are supported by the evidence and not so contrary thereto as to be manifestly incorrect and unjust.

When this case proceeded to trial, appellant was a single woman. A take nothing judgment was rendered in favor of Hugh Manning, and no appeal has been taken from this part of the judgment.

Appellant contends that the court erred in allowing appellee recovery for any money paid to retire the indebtedness on the Houston property or the Compromise Street house since the payments were voluntarily made for the purpose of retiring appellee’s own indebtedness and protecting his credit rating. As between appellee and the mortgagees, appellee clearly was liable for the entire debt. It is also well settled that the mortgagees would have been unable to enforce collection of the debts from appellant except by way of mortgage foreclosure. Poe v. Hall, 241 S.W. 708, Tex.Civ.App.; Giles v. First National Bank of Brownfield, 257 S.W.2d 945, Tex.Civ.App. At the time judgment was rendered granting appellant her divorce from appellee, the court could have required appellant, as between the parties, to assume the payment of a reasonable part of the community indebtedness in connection with the partition of the community estate. Hughes v. Hughes, 259 S.W. 180, Tex.Civ.App.; Mangum v. Mangum, 184 S.W.2d 338, Tex.Civ.App. Since the community property was not divided by the divorce decree, title vested in the parties at the date of the divorce as tenants in common or joint owners. McDaniel v. Thompson, 195 S.W.2d 202, Tex.Civ.App., error ref.; Ex parte Williams, 160 Tex. 314, 330 S.W.2d 605.

It is well settled that a joint owner of real estate, who has discharged a debt constituting a lien on the jointly held property, can recover contribution from the other owners. McKelroy v. Hamilton, 130 S.W.2d 1114, Tex.Civ.App. We think this rule of law applicable to the payments made on the Compromise Street house.

The parties were not joint owners of the Houston property. Appellant’s separate property was pledged as security for the payment of a community debt. The general rule applicable, as stated in McKelroy v. Hamilton, supra, is:

“The rule in equity is that one who has been compelled to pay or satisfy the whole or to bear more than his . just share of a common burden or obligation on which several persons are equally liable or for which their jointly owned property is liable, is entitled to contribution against the others to obtain from them payment for their respective shares.”

Appellant and appellee are not equally liable on this note. Community debts are the primary obligation of the husband, who is manager of the community estate. 30 Tex.Jur.2d, Husband and Wife, § 4; Art. 4619, Vernon’s Ann.Civ.St.

In Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, the Supreme Court of Texa,s held:

“The final problem to be considered is the $10,971 reimbursement awarded by the trial court for separate funds expended for community living ex- . penses. It is fundamental that the husband is obligated to furnish support for the community living and if no com- , munity funds are available he should utilize his separate funds. Callahan v. Patterson, 4 Tex. 61; Coggin v. Coggin, Tex.Civ.App., 204 S.W.2d 47. It is his duty to provide for the commu7 nity and in this instance he chose to expend a portion of his separate estate so that the community standard of living could be as it was. Separate funds spent for community living in such a manner should be deemed a gift to the community for its well-being and use. Allowing a .right of reimbursement at a later date would be inconsistent with the fundamental concept that a man should provide for his home and community.”

The $7,000.00 realized by the community estate of appellee and appellant from the note secured by the Houston property was not shown to have been used to purchase or improve any particular property. In the absence of such a showing appellee proved no right to reimbursement from either the community property or appellant’s separate property. Where community funds are used to improve separate property of one spouse, the community is entitled to reimbursement, but only to the extent that the value of the separate estate is enhanced by the improvement. Lindsay v. dayman, 151 Tex. 593, 254 S.W.2d 777. To permit appellee to recover from appellant any part of the payments made to retire a community indebtedness secured by her separate property would penalize her for permitting use of her separate property by the community. During the marriage the wife cannot make an enforceable agreement to assume primary liability for debts of the community even as between husband and wife. Taylor v. Hollingsworth, 142 Tex. 158, 176 S.W.2d 733. Since she was not personally responsible for the payment of the note in question at the time the divorce was granted, and was not charged with its payment in the process of partitioning the community property, she is not made liable for the note by the fact of divorce. While equity might subject community property in her hands to the payment of community debts, her liability to creditors cannot exceed the value of such community property. American Employers’ Insurance Co. v. Dallas Joint Stock Land Bank, 170 S.W.2d 546, Tex.Civ.App. We see no reason why the husband should be able to assert personal liability against his former wife for community debts he has paid with his separate funds where the creditor could not have done so. The community partners should not be permitted by their voluntary act of securing a divorce to deprive the creditor of the security on faith of which the credit was extended. The husband does not stand in so favorable a position. While he might have contracted the debts in the expectation that community property would be used to pay them, in the event of divorce he had no legal right to require such payment because of the broad discretion inherent in the trial court in the matter of division of community property. Hughes v. Hughes, 259 S.W. 180, Tex.Civ.App.; Mangum v. Mangum, 184 S.W.2d 338, Tex.Civ.App.

Since the Kenner lots and the Compromise Street house constituted community property, on divorce appellee and appellant held title to them as tenants in common. 15 Tex.Jur.2d, Cotenancy, § 18.

When the Kenner lots were sold one-half of the proceeds of the sale belonged to appellant. The trial court found on competent evidence that appellant agreed to apply the proceeds of this sale to the retirement of the indebtedness due on the Compromise Street house. This was not done and appellant retained all of the money for her own use. The sale was made April 30, 1952, at which time appellant received $1500.00 cash and three notes in the sum of $1,000.00 each payable in one, two and three years, respectively. The trial court found that defendant discovered that the proceeds of the sale had not been paid as agreed in 1955. This suit was filed on May 23, 1957. Appellant pled the two and four year statutes of limitation.

Appellee testified: “No, it was in the latter part of 1954 that I learned that the sale of the lots were made and that none of it was ever applied on it, on the 1203 Compromise home, to W. B. Leedy.” This testimony was never explained, modified or repudiated and constitutes a judicial admission.

Since appellant held the proceeds of the sale as trustee, the statute of limitations would not begin to run until she had repudiated her trust, and appellee knew of such repudiation. Eaton v. Husted, Tex.Civ.App., 163 S.W.2d 439, aff’d 141 Tex. 349, 172 S.W.2d 493; Collins v. Griffith, 125 S.W.2d 419, Tex.Civ.App., error ref.

The record shows that one of the $1,000.00 notes became due on April 30, 1955, and that all of the notes were paid, but the exact date of payment is not shown. The burden was on appellant to establish her defense of limitation. The trial court allowed recovery of one-half of the entire consideration. In this the court erred for the reason that the defense of limitation was established as a matter of law to the initial payment of $1500.00 since it was paid at the time of closing. The defense was not established as to the three $1,000.00 notes since the time of payment was not shown. The evidence establishes that appellant collected and converted to her own use the sum of $3,000.00, of which one-half belonged to appellee.

Appellee did not seek partition of the Compromise Street house, but he sought and was granted an accounting for rentals received by appellant. Appellant has pled the two year statute of limitation.

It is settled law that a tenant in common can use the jointly owned property without liability for its rental value, but where the tenant in possession rents . the property to a third person, he must account to his cotenant. It is not necessary to bring the action for accounting as an incident to an action of partition. 15 Tex.Jur.2d, Cotenancy, §§ 11, 40.

“Rents and profits received by one cotenant are held by him in trust for his cotenants. And before the statute of limitations will begin to run he must have repudiated the trust and notice of his action must have been brought to his cotenants.” 15 Tex.Jur. 2d, Cotenancy, § 41.

Appellee testified that he learned that appellant was collecting rent for use of the Compromise Street house not later than the year 1952. He further testified that he either sent her the money with which to make the monthly payments on the purchase price of the house, or else made the payments to the mortgagee directly, since 1951. He further testified that at an unspecified date he demanded an accounting and asked why she didn’t pay the monthly notes on the property. The evidence establishes as a matter of law that appellee had knowledge of the breach of trust in 1952. Therefore, appellee’s cause of action for rent collected prior to May 23, 1952, was barred by the two year statute of limitation. Art. 5526, V.A.C.S. From the stipulations of the parties it is established that appellant collected the total sum of $3,150.00 as rent within the two years prior to the date suit was filed. Appellee was entitled to judgment for one-half this amount, or $1,575.00.

The trial court found on sufficient evidence that appellee had paid on the indebtedness secured by the mortgage on the Compromise Street property after the divorce the sum of $3,411.82, which exceeded his proportionate share of the payments due by the sum of $617.37. Since such payments were reasonably necessary for the preservation of the common property, ap-pellee was entitled to reimbursement from appellant for the sum he paid in excess of his proportionate share. 15 Tex.Jur.2d, Cotenancy, § 12.

Accordingly, the judgment of the trial court is reversed in part and judgment is here rendered that appellee, Charles E. Benham, So have and recover from appellant, Julie Arita Benham Manning, the sum of $3,692.37 together with interest at the rate of 6% per annum from the date judgment was rendered by the trial court, June 5, 1961, and all costs incurred in the trial court. Costs on appeal are taxed against appellee. In all other respects the judgment of the trial court is affirmed.

Reversed and rendered in part and in part affirmed.