author: BLAIR, J.

text:
    ELROD v. FOSTER et al.
    No. 7560.
    Court of Civil Appeals of Texas. Austin.
    March 18, 1931.
    Appellant’s Motion for Rehearing Overruled April 8, 1931.
    C-ritz & Woodward, of Coleman, and Wm. E. Davenport, of San Angelo, for appellant.
    Butts & Wright, of Cisco, for appellees.
   BLAIR, J.

This litigation arose out of the following facts:

On November 26, 1927, J. P. McCord, as executor of the Mrs. Martha Overall estate, conveyed to J. G. Oltorf by warranty deed 60 acres of land in Coleman county, reserving for a term of fifteen years a ⅛ oil and gas royalty or mineral interest, binding grantee to drill an oil and gas well to the depth of 2,000 feet, and providing that title should fully vest in grantee if the well proved to be a dry well. On May 11, 192S, Oltorf conveyed his ⅞ mineral interest by mineral deed to I-I. M. Amsler and C. C. McBurnett, who on May 28, 1928, by a contract partially in the form of an 88 producers’ special oil' and gas lease conveyed to Jno. R. Ifoster ¾ of their % interest and in part agreed as follows:

“The consideration for the execution and delivery of this lease is that the lessee, his heirs or assigns, shall on or before June 10th, 1928, spud in on some part of the 60' -acres above described an oil and gas well and shall, with due diligence continue the drilling of the same until it has reached a depth of two thousand feet (2,000) unless oil or gas in paying commercial quantities be encountered at a lesser depth, which event the finding of oil or gas in paying commercial quantities shall be considered as compliance with the depth requirements in the drilling of said well.”
“It is the intention of all parties hereto that lessee shall bear all expenses in connection with said first well or incident there- • to. * * *
“After the first well has been completed and paid- for by lessee then all additional expenses incurred in connection with drilling additional wells shall be assessed against the respective interests of the parties hereto in proportion t-o the interest owned by them, that is lessee’s interest shall bear three-fourths .of such expenses and lessor’s interest shall bear one-fourth of the same.
“It is further agreed that in the operation and development of the premises herein leased after the first well shall have been completed and paid for by lessee as herein provided for, lessee shall have complete control over the operation and development of said tract of land, but at all times lessor shall have access to said lease and all wells thereon and shall be furnished by lessee with all information concerning the same, including .full information on any and all wells drilled, the depth of the same, the formations encountered, and the logs of said wells.
“It is agreed and understood that should either lessor or lessee desire to sell their or his interest in said 60-acre tract at any time the other party hereto also agrees to .-join in said sale and sell his or their undivided interest, or in the event he or they should not desire to sell his or their interest then such party or parties as the case may be, agrees, binds and obligates himself and themselves to purchase the interest of the other party in said 60-acre lease and should a dispute arise between the parties hereto as to the value of said 60 acres and the lease thereon and said parties be unable to agree as to a value in order to consummate such sale and purchase, then and in that event lessee shall appoint one disinterested, competent and practical oil man, and lessor shall appoint one disinterested, competent and practical oil man, and when such appointments have been made the persons so appointed shall jointly appoint a third person, who shall be disinterested, competent and practical oil man, and the three said parties when so appointed shall be authorized and empowered to determine and decide upon the value of said lease, and such value shall be determined by the agreement of any two of said three arbitrators and when such agreement has been reached by said arbitrators the same shall be binding upon all the parties hereto and such findings as value, etc., shall be accepted without further question by the parties hereto.”
“If the estate of either party hereto is assigned and the privilege of assigning in whole or in part is expressly allowed, the covenants hereof shall extend to their heirs, executors, administrators, successors or assigns.”

The first well under this contract was drilled and was a dry hole but upon its completion the lease became a five-year paid-up lease under its terms, and on September 4, 1928, J. P. McCord, as executor aforesaid, acknowledged and declared in writing that the drilling of this well was in full compliance with the requirements of the deed executed by him to Oltorf so as to vest title in Oltorf. On February 1, 1930, Amsler and McBurnett, by mineral deed, conveyed the fee title to all minerals remaining in them, together with ¾28 the working interest covered by-the five-year paid up lease to Jess Elrod, and Amsler conveyed to E. A. Tucker ⅛8 of the said working interest in the five-year paid-up lease, and thus Eli-od and Tucker acquired ¾ of the ⅞ working interest of the lease, the other ¾ being at that time in Poster. El-rod and Poster,were jointly interested in the operation of several producing leases in the vicinity of the ,60-acre tract in controversy, and on August 17, 1929, Elrod, Poster and Tucker, the then owners of the entire % mineral interest in the 60-acre tract, as well as the working interest in said ⅞ interest, entered into a written agreement between themselves, which reads, in part, as follows:

.“That this contract and operating agreement is made and entered into this 17th day of August, 1929, by and between John R. Poster of the county of Coleman, State of Texas, and Jess Elrod of the county of Tom Green, State of Texas, hereinafter called parties of the first part and Ernest A. Tucker of tlie county of Tarrant, State of Texas, hereinafter called party of the second part.”
“Whereas parties of the first part and party of the second part are desirous of entering into a contract and working agreement for the development of production of oil and gas on said tracts.
“That for the consideration herein set forth party of the second part desires that parties of the first part shall take charge of and operate said mineral interests in said tract and party of the second part hereby agrees, obligates and binds himself to pay his full pro rata part of all the expenses incurred in the development, operation and up-keep of said mineral interests and party of the second part hereby agrees that parties of the first part shall have full charge of the operation, upkeep and control of said mineral interests existing in said lands..”

This agreement was not filed for record in Coleman county until January 2, 1930, and prior thereto, on December 23, 1929, Foster conveyed his ¾ interest to B. V. Whitfield, who purchased for himself, Jas. W. McCamey, H. N. Powell, and Jno. E. Dickson, which % interest was charged at the time with a prior assignment by Foster to Elrod of a ¾28 tatcr-'est as security for a $1,500 debt which Foster owed Elrod. Whitfield paid Foster $4,500 of the $6,000 cash consideration on December 23, 1929, and paid the remaining $1,500 to El-,rod on December 31, 1929, on which date El-rod reassigned the ⅜⅛ interest to Foster. On January .10,1930, Whitfield and his associates commenced to drill the second well on the 60-acre tract, and on February 17,1930, Elrod instituted this proceeding against the appel-lees Foster, McCamey, Whitfield, Tucker, Powell, and Dickson, alleging his general interest and ownership of the minerals in the 60-acre tract with them; that appellees were drilling the second well, for which he would be liable for his pro rata .of the cost under the terms of the lease agreement; that he did pot desire to drill the well, and that he, Foster, and Tucker had executed the joint control agreement of August 17, 1929, while they were the joint owners of the entire mineral estate in the 60 acres, and prayed for an order restraining appellees from drilling said well pending an arbitration for the purpose of agreeing on a sales price as provided for. in the five-year paid-up oil and gas lease contract. A temporary injunction was granted as prayed-for on February 17, 1930, and, on hearing of appellees’ motion, the same was dissolved on March 8, 1930; and on March 10, 1930, appellant Elrod filed his first amended original petition, seeking a partition of the oil and gas and mineral interest in the 60-acre tract and a temporary injunction restraining appellees from drilling the second Vvell and from incurring any further expenses in the operation of the lease, pending a final disposition of the partition suit. Ap-pellees filed a general demurrer, special exceptions, and pleas to the effect that they were the . owners of the Foster interest in the oil and gas lease with the absolute power to manage and control, and authority to drill the well and charge appellant Elrod with his pro rata of the cost of drilling under the express terms of the lease contract; that they,knew nothing of the contract between Foster and Elrod, dated August 17, 1929, at the time they purchased Foster’s interest; and further pleaded that Elrod knew they were purchasing the lease from Foster for the purpose of drilling the well, and that he received the $1,500 as consideration with that knowledge, and without objection or protest, which facts estopped him from asserting that appellees had no right to drill the well, and from assessing against him his pro rata of the cost. And by way of cross-action appellees alleged that they had expended as reasonable cost for drilling the second well $4,677; that appellant’s pro rata of such costs was $1,051.90, for which they prayed judgment; and they also alleged that they were further damaged in the sum of $1,000 by reason of appellant enjoining them from drilling the well between the dates of February 17, 1930, and March 8, 1930; and Globe Indemnity Company was made a party defendant as surety on appellant’s injunction bond.

The trial court held that appellant had no right to partition the mineral estate under the above facts, and submitted, over appellant’s various objections, two special issues which, with .the jury’s answers thereto, read as follows:

“First: What amount of money do you find from the preponderance of the evidence would reasonably compensate the defendants for the damages, if any, suffered by them, by reason of having their rig shut down, and their work stopped by injunction for a period of 19 days?” Answer: “$285.00.”
■ “Second: What amount of money, if any, do you find from the preponderance of the evidence was reasonably and necessarily expended by the defendants in the drilling of the well known as well No. 2, on the lease in question, being the well drilled the early part of this year?” Answer: “$4477.00.”
“You are instructed that in answering issue First submitted to you, that the defendants’ damages, if any, are measured by the reasonable rental value or value of the use of the drilling machine and tools that were shut down pending said injunction.”

Based upon these findings of the jury, judgment was rendered for appellees against appellant for $909.36 as his pro rata of the cost of drilling the well, and judgment was also rendered against appellant and the surety on his injunction bond for $285 as damages for the reasonable rental of the drilling rig pending the time same was shut down hy the injunction; hence this appeal.

The trial court correctly denied appellant a partition of his mineral estate in the 60 acres of land, because a partition of the same, either in kind or by sale and division of the proceeds, would have worked a cancellation of the oil and gas lease contract, thereby depriving all parties to it of their respective rights in the premises. We think the proposition needs no extended discussion that a part owner of a mineral estate in land, who has contracted with others having interests to pay his proportionate part of expenses of drilling and developing the premises for oil and gas, cannot demand a partition of the mineral estate so as to work a cancellation of the drilling contract, and thereby relieve himself of his proportionate part of the expenses of developing the lease.

The trial court construed the portion of the original lease contract above quoted as empowering and authorizing appellees, as assignees of Eoster, to manage and control the operation of the lease, and to drill the second well so as to bind appellant for the payment of his proportionate part of the cost of drilling the well. But appellant contends that appellees had actual notice before purchasing Eoster’s interest of the August 17, -1929, contract between Eoster, Tucker, and himself, and that they had record notice of said contract before they began drilling the well, which contract modified the terms of the original lease so as to take the exclusive control and operation of the lease from Eoster or his assigns, and gave to appellant joint control with Eoster of the operation of the lease; and that appellees drilled the well over his repeated protest, and were therefore not entitled to collect any costs thereof from appellant.

The contention that appellees knew of this contract before they purchased Eoster’s interest and right of exclusive control of the operations of the lease is contrary to the undisputed evidence, and for this reason the trial court did not submit that issue to the jury, and, since appellant did not record that contract until after appellees had purchased and paid for Eoster’s interest, he is estopped to set up any rights under same. He knew that this contract was not recorded when the negotiations were being closed with appel-lees. He knew that appellees were purchasing the Eoster interest for the purpose of further developing the leased premises for oil and gas under the terms of the lease contract. He knew that they had paid a cash consideration of $6,000 for Eoster’s interest, of which Eoster received $4,500, and appellant himself received $1,500 for a reassignment of the ¾⅞8 interest assigned to him as security for the debt due him by Eoster. The evidence is also undisputed that he did not protest any further development of the premises until after he had received this $1,500, and after all transactions were completely closed, and did not notify appellees of the contract upon which he now relies until shortly before they began to drill the well in question. These facts estop appellant from setting up the contract as modifying the original lease with respect to the right of Eoster and his assigns to the exclusive management and control of drilling operations.

The trial court construed the lease contract to authorize the drilling of the second well by Eoster or his assigns, and submitted to the jury only the issue of the amount of the costs of drilling the well. In the closing argument, counsel for appellant argued to the jury that a reasonably prudent man would not have drilled the second well, and appel-lees’ counsel requested and the court gave the following special instruction to the jury:

“Now comes the defendants, J. W. McCamey, B. V. Whitfield, H. N. Powell and J. E. Dickson, after the attorney for plaintiff had concluded his argument to the jury and had argued to the jury that a reasonably prudent man would not have drilled well No. 2, and moves and prays the court before the jury has retired to instruct the jury as follows:

“Gentlemen of the Jury:

“In determining the answer to Special Issue No. 2, you will not consider whether or not it was proper or advisable to drill well No. 2, nor whether an ordinarily prudent op-' erator would have drilled said well, but in answering said issue you will consider the amount reasonable and necessarily expended in the drilling of the well, regardless of the advisability of drilling it.”

Appellant objected to this charge , on the grounds that same “was argumentative on the part of the court and in effect advises the jury that the court is on the side of the appellees.” We see no error in this instruction requiring a reversal of the cause. No issue was submitted to the jury with respeqt to whether a reasonably prudent man would not have drilled the second well, because the court construed the lease contract as authorizing the second well, and left the jury to find only the reasonable cost of drilling the well. Counsel’s argument was calculated to confuse the jury, and the trial court had the right to instruct the jury as to the extent of its inquiry on the issue submitted.

Appellant contends that issue No. 1 improperly submits appellees’ measure of damages as being the reasonable rental value of the well machinery and rig during the time same were shut down by the injunction; but that their damages, if any, were the necessary costs or expenses of maintaining the rig while same was shut down by the injunction. Appellees owned the rig and machinery, or at least had the exclusive control of it. They alleged and proved that they would not have been justified in moving the rig and machinery to another lease pending the time it was shut down by appellant’s unlawful injunction, and they were deprived of the use of this machinery for the nineteen days that the injunction was in effect. The general rule as to the measure of damages for depriving one of the use of his personal property is the reasonable rental value during such period of time, and we see no reason why that rule should not apply here. Castleman v. Williams (Tex. Civ. App.) 263 S. W. 638; Commercial Acceptance Trust v. Farmer (Tex. Civ. App.) 241 S. W. 586; Van Velzer v. Stryker (Tex. Civ. App.) 233 S. W. 146; Brown v. Guaranty Securities Co. (Tex. Com. App.) 265 S. W. 547.

Nor do we think it material to appellant in what amount the damages might be apportioned among the appellees. Whitfield and McCamey were shown to have been acting for all the appellees in drilling the well, and it is therefore a matter of indifference to the appellant as to how appellees may divide the damages between themselves.

We have carefully examined all of the appellant’s propositions and find that neither of them presents error requiring a reversal of the cause, and the judgment of the trial court will be affirmed.

Affirmed.

On Motion for Rehearing.

On motion for rehearing appellant suggests fundamental error, in that, while John R. Foster could assign his interest in the lease, he could not assign his right to “complete control over operation and development,” because such matters embrace covenants entirely personal in character. Whatever may he the proper construction of the contract in this respect cannot be asserted by appellant, because he is estopped to assert any construction of the contract which would interfere with appellees in the enjoyment of Foster’s interest in the lease as well as his right of control of operations and development of same. The undisputed evidence shows that appellant, Elrod, knew that appellees were purchasing Foster’s interest with the intention of further developing the premises. El-rod consented to the assignment by Foster and became interested in the conveyance to the extent that he received $1,500 of the consideration paid by appellees to Foster for a reconveyance of the ¾28 interest which Foster assigned to him as security for debt. El-rod never at any time objected to Foster conveying his interest to appeRees, and made no complaint or objection to further drilling until the deal between Foster and appellees was fully consummated, and after he (El-rod) had received $1,500 of the cash consideration paid by appellees.

The motion will be overruled.

Overruled.


source: Caselaw Access Project

author: RANDOLPH, J.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. HOWELL et al.
    No. 3565.
    Court of Civil Appeals of Texas. Amarillo.
    March 18, 1931.
    Rehearing Denied April 8, 1931.
    T. R. Boone, of Wichita Falls, and Jas. P. Swift, of Dallas, for plaintiff in error.
    Grindstaff, Zellers & Hutcheson, of Weath-erford, for defendants in error.
   RANDOLPH, J.

The plaintiff in error will hereinafter be designated plaintiff, and the defendant in error will be designated defendant.

The defendant filed a claim with the Industrial Accident Board of the state of Texas, which claim was for compensation based upon an injury alleged to have been sustained by him on the 1st of December, 1929, while he was working for the Apple-Brandenberry' Oil Company in Wilbarger county, Tex. The board made an award directing that the plaintiff pay to the defendant compensation at the rate of $20 per week for a period of twenty-six weeks and also to have an operation performed upon said defendant because of an injury sustained by him in an accident. The plaintiff refused to abide by said award and duly filed suit to set it aside.

The defendant filed a cross-action alleging, in substance, that at the time of the accident 'he sustained an injury’resulting in a hernia on his right side which appeared suddenly and was accompanied by pain, and that the muscles, ligaments, and tendons of the abdominal walls on both sides were stretched, strained, and injured, and that later as a result thereof a protrusion developed upon the left side; that as a result of the injury he became totally and permanently disabled, unless he should be relieved by a surgical operation. He also alleged that he was willing and had at all times been willing to undergo a surgical operation in the event that it was not more than ordinarily unsafe, but that plaintiff had at all times refused to have him operated on as it was its legal duty to do.

The case was submitted to a jury upon special issues, and the jury found from a preponderance of the evidence: (1) That the defendant sustained an accidental personal injury on the 1st of December, 1929. (2) That said accidental personal injury was sustained by said defendant while he was acting within the course of his employment with the apple-Brandenberry Oil Company. (3) That said injury was sustained by the defendant on December 1, 1929, resulting in a hernia on his right side. (4) That said hernia was accompanied by pain. (5) That said hernia appeared suddenly and immediately after the injury. ,(6) That said hernia on the right side of said defendant did not exist in any degree before the accident on December 1, 1929. (7) That the accident sustained by said defendant on December 1, 1929, has naturally caused injury to his body other than the hernia on the right side. (8) That it would be more than ordinarily unsafe for the said defendant to submit to an operation for hernia on the right side. (9) That said defendant has at all times been willing to submit to a surgical operation at the hands of plaintiff, Texas Employers’ Insurance Association. (10) That said plaintiff has at all times refused to have any surgical operation performed upon said defendant because of the injury received by him on the 1st day of December, 1929. (11) That the injury sustained by said defendant on December 1,1929, has naturally resulted in said defendant becoming totally incapacitated for work. (12) That said total incapacity to work of the said defendant is permanent. (13) Not answered. (14) That the average daily wage of employees doing the same or similar work as that in which said defendant was engaged on December 1, 1929, in the same or neighboring localities for substantially the whole of the year prior to December 1, 1929, for the days actually employed, was $6. (15) That this is a special case and is one in which manifest hardship and injustice will result to said defendant if the compensation duo him is not paid in a lump sum.

Upon the answers so made to the issues by the jury, the trial court rendered judgment in favor of defendant, and plaintiff has appealed.

The plaintiff’s propositions 1, 2, and 5 present questions involving alleged errors in the charge of the court and in the failure of the court to instruct a verdict, arising by reason of the application of the compensation statutes to the case on trial. We will therefore discuss generally the errors assigned upon these questions, without reference to the particular numbers of the assignments.

The plaintiff charges error in that, .the defendant’s action being brought under the Compensation Law of Texas, it became necessary for the defendant to allege a certain wage rate under subdivisions 1 and 2, or to negative both of these subdivisions of section 1, article 8309, R. S. 1925, and having based his cause of action on a direct allegation, to the effect that the average daily wage of employees doing the same or similar work as that kind in which the defendant was engaged at the time of his injury, in the same or neighboring localities for a period of a year prior to the date of the accident; that it was necessary for the defendant to allege and prove sufficient to bring himself within one of the subdivisions of said article, and having alleged subdivision 2 thereof, and having failed to prove that other employees in the same or neighboring localities had worked for substantially the whole of the year prior to the date of the alleged accident, in the same or similar employment, was not entitled to have the judgment rendered in his behalf based upon a $20 per week wage rate, and therefore the court erred in rendering judgment for the amount that he did render same, on account of'the lack of'sufficient proof to support a judgment in excess of $7 per week. Further, plaintiff alleged error in that the trial court submitted issue No. 14, as follows: “From a preponderance of the evidence find and state in dollars and cents the average daily wage of employees doing the same or similar work as that in which sai'd Howell was engaged on December 1, 1929, in the same or neighboring locality for substantially the whole of the year prior to December 1, 1929, for the days actually employed. Answer in dollars and cents.” The jury answered: “$6.00.”

In Subdivision 2, § 1, art. 8300, of the Revised Civil Statutes of 1925, under the headr ing “average weekly wages,” -the definition of that term is given as follows: “If the injured employee shall not have worked in said employment during substantially the whole of the year, his average annual wages shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed.”

It will be seen that this subdivision provides the measure of compensation for an employee who has not been working in such employment during substantially the whole of the year at three hundred times the average daily wage of an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment, in the same or a neighboring place, as applied to that fraction of time which the injured party shows to have worked at the time of the accident.

This is properly pleaded in the defendant’s cross-action, and the evidence furnishes a proper basis for the verdict of the jury and the judgment of the court. Federal Surety Co. v. Shigley (Tex. Civ. App.) 7 S.W.(2d) 607, 609.

The defendant testified that he had been working for his then employer for only a short time at the time of the accident. It was further testified that he knew the average daily wage for employees doing the same or similar work as that he was doing at the time of his injury, for a year prior to the time of his injury for the days they worked, and that it was $6 a day.

We overrule- these propositions.

The contention of the plaintiff that, the defendant’s cross-action being based upon the Workmen’s Compensation Law of the state of Texas, and defendant having testified that his only injury was that of a hernia, the court erred in entering judgment based upon a total permanent disability, cannot be sustained. Taking the whole of the defendant’s evidence into consideration, it is clear that there were other injuries besides the injury producing the hernia, and that he had a total permanent incapacity therefrom. But whether or not the hernia alone resulted in the total permanent incapacity, or a combination of injuries caused it, matters not. Under any other holding a defendant whose capacity to labor had been totally and permanently destroyed would be limited in his recovery to the statutory provision for compensation for a hernia. We do not think this is a proper interpretation to be placed on the Compensation Law.

There is no conflicting evidence upon the issue of defendant having suffered a hernia. That being true, it was, under the evidence, for the jury to find whether or not this injury resulted in defendant’s total and permanent incapacity to labor. The jury found in the affirmative on this issue.

In -the case of Petroleum Casualty Co. v. Seale, 13 S.W.(2d) 364, 366, it was held by the Commission of Appeals as follows: “We do hot mean to hold that an employee who has received an injury to a specific member of the body is confined to a recovery of the compensation specially provided for such injury if he is able to allege and prove other injuries or if it be fairly shown that the injury to the specific member has involved other portions of Ms body or affected his general health. Under such allegations and proof he may be entitled to have his injury compensated under the more liberal provisions of the act.” Supporting this holding the Commission of Appeals cite Lumbermen’s Reciprocal Association v. Pollard (Tex. Com. App.) 10 S.W.(2d) 982; Texas Employers’ Insurance Association v. Moreno (Tex. Com. App.) 277 S. W. 84; Lumbermen’s Reciprocal Association v. Anders (Tex. Civ. App.) 292 S. W. 265, 267.

The Supreme Court expressly approves the holding by the Commission of Appeals in the Seale Case.

This court, in the case of Columbia Casualty Co. v. Ray, 5 S.W.(2d) 230,-sustained a judgment based upon a hernia where it was alleged and proved that a total and permanent incapacity resulted therefrom and the Supreme Court refused a writ of error in said case.

Finding no reversible error we affirm the judgment of the trial court.

On Motion for Rehearing.

In this" motion the plaintiff contends that our holding with reference to the sufficiency of the evidence in .this case to sustain the verdict of the jury is in conflict with the case of Federal Surety Co. v. Shigley (Tex. Civ. App.) 7 S.W.(2d) 607, 609. We do not think this interpretation of our former opinion is correct.

In the Shigley Case, we say: “In fixing the method of ascertaining the measure of defendant’s compensation, it is apparent (1) that he must have been employed for substantially the whole of the year preceding his injury; (2) if he was not so employed, but was only employed for a part of the time, then the measure of his compensation is 300 times the average daily wage which an employee of the same class, working substantially the whole of such immediately preceding year, in the same or similar employment, in the same or a neighboring place, shall have earned in such employment during the days when so employed. It will therefore he seen that neither the pleading of defendant nor the evidence before the court complied with the .requirements of this statute.”

In the case at bar, there is no question but what the defendant was attempting to follow this statute, and the question which we attempted to decide in this case was whether or not the evidence as offered by the defendant complied with the rule which he was seeking to enforce to secure his compensation and held:

“This is properly pleaded in the defendant’s cross-action and the evidence furnishes a proper basis for the verdict of the jury and the judgment of the court. * * *
“The defendant testified that he had been working for his then employer for only a short time at the time of the accident. It was further testified that he knew the average daily wage for employees doing the same or similar work as that he was doing at the time of his injury, for a year prior to the time of his injury for the days they worked and that it was $6.00 a day.”

It is true that on cross-examination he testified as follows: “I do not know that I know or could recall of anybody that worked from December 1, 1928 until December 1, 1929, a period of three hundred days, that drew $6.00 a day doing the same kind of work I was doing in Wilbarger County or in the vicinity where I was working, without losing a (Lay. (Italics ours.) I did not work three hundred days. The job I was on I worked four months and twelve days and then I was off from September until December, when I went to work for them. I went to the cotton patch from September until December. To some men those oil field jobs last constantly for a period of three hundred days a year. I could not recall the names of anybody that have been doing that same kind of work for five or six years and I do not know whether they get $5.00 or $6.00' a day.”

It does not appear from the record that the plaintiff objected to the introduction of this evidence because the witness was incompetent to testify by reason of lack of knowledge of similar conditions in his field. The statement as first made, together with the testimony introduced on the cross-interrogation, went to the jury for what it was worth, and should have gone to them, and, they having decided the question, we hold that there was a sufficient basis for their verdict.


author: WALKER, J.

text:
    CHISELIN et al. v. HOUSTON INDEPENDENT SCHOOL DIST. et al.
    No. 2107.
    Court of Civil Appeals of Texas. Beaumont.
    March 12, 1931.
    Rehearing Denied March 25, 1931.
    Robert L. Sonfield and W. H. Graham, both of Houston, for appellants.
    Andrews, Streetman, Logue & Mobley and M. E. Kurth, all of Houston, for appellees.
   WALKER, J.

This was an action by W. F. Chiselin and thirty other taxpayers, resident citizens of what was formerly West University Place independent school district, against Houston independent school district, to enjoin the defendant from annexing and absorbing the territory comprised within the corporate limits of West University Place independent school district. The judgment was against appellants, denying them all relief prayed for, and in favor of defendants, sustaining the annexation.

Appellees have moved to strike appellants’ briefs on the ground that they were prepared in violation of the briefing rules. This motion must be sustained. Rule 30, 230 S. W. VII, promulgated by the Supreme Court on the 21st day of June, 1921, is as follows:

“Following the statement of the case there shall be stated consecutively, separately subdivided and numbered, the propositions or points upon which the appeal is predicated. These shall be germane to one or more of the assignments of error or relate to fundamental error.

“The purpose of this rule is to enable counsel to state immediately and briefly and without repetition, the questions in the case and to acquaint the court at once with the propositions presented for decision.”

In Millers’ Indemnity Underwriters v. Schreiber (Tex. Civ. App.) 240 S. W. 963, we gave this rule a mandatory construction and struck the briefs from the record on the grounds here urged against appellants’ briefs. In the case before us now, appellants have wholly failed to observe any of the provisions of Rule 30. Having set out at the back of their briefs their assignments of error, as required by Rule 32, 230 S. W. VII, they then scatter their assignments of error through their briefs, consisting of eighty-one typewritten pages, and after each assignment of error, as thus brought forward, submit, for the first time in their briefs, the propositions advanced in support of their several assignments of error. In Nacogdoches Independent School District v. Adams (Tex. Civ. App.) 36 S.W.(2d) 567, opinion not yet reported [in State Report], appellants briefed certain of their. assignments of error and propositions, as these appellants have briefed all their assignments of error and propositions. Again holding that R\ule 30 was mandatory, we struck' all assignments of error and propositions improperly briefed.

It is true that, following the statement of the nature and result of the suit, appellants have set out three “points involved in this case,” but these “points” were abandoned by appellants, and no effort was made to brief them; that is, appellants made no effort to brief their “points,” but briefed only their assignments of error and the propositions advanced in support thereof, as stated above.

Under authority of the cases cited above, appellees’ motion to strike appellants’ briefs from the record must be sustained, and it is so ordered.

However, since appellees have carefully briefed all propositions advanced by appellants, subject, however, to' their motion to strike, we have examined every proposition advanced by appellants and find no merit in any of them. We do not set out these propositions .nor the statements made in support thereof, nor our reasons for overruling them, because, without briefs, they are not before us. We examined them and have made this order overruling them in order to show that appellants have suffered no injury on the ground that their briefs have been stricken, and, therefore, that no necessity exists for re-briefing the ease, as was permitted in Millers’ Indemnity Underwriters v. Schreiber, supra.

It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.


author: SELLERS, J.

text:
    KORIOTH et al. v. McGRAW et al.
    No. 4003.
    Court of Civil Appeals of Texas. Texarkana.
    March 5, 1931.
    Webb & Webb, of Sherman, for appellants.
    M. P. Billingsley and J. S. Kendall, both of Monday, for appellees.
   SELLERS, J.

This is an appeal from an order of the Pifty-Ninth district court of Grayson county overruling a controverting plea of privilege of plaintiffs and sustaining pleas of privilege of certain defendants.

The suit was instituted by plaintiffs, who are heirs of defendant T. W. McGraw and his deceased wife, to recover of T. W. McGraw, as community administrator, the value of the estate which they inherited from their deceased mother. The petition of plaintiffs first alleges a cause of action against T. W. Mc-Graw, as principal, and R. D. Bell and E. Du-val, as sureties on the bond of T. W. McGraw, as community administrator, and then proceeds to allege a cause of action against tlie other defendants as follows:

“That said bond is insufficient to secure them in payment of their loss. That said T. W. McGraw, First State Bank of Munday, Knox County, Texas, First National Bank of Munday, Texas, a corporation, together with the defendants H. A. Pendleton, C. A. Eiland and E. IT. Bauman, engaged in a conspiracy to defraud plaintiffs out of their interest in their mother’s estate and aspired to and did, with full knowledge of the bad faith of- the transaction, cause instruments to be executed by said T. W. McGraw to said banks as purported liens on the hereinafter described properties, and did cause said hereinafter described property to be taken in the name of H. A. Pendleton and E. H. Bauman, separately the following'described tracts of land, to-wit: (Here follows description of certain lands located in Haskell County).
“In the name of E. H. Bauman the following described lands to-wit:” (Here follows description of certain lands located in Knox county, Tex.)

The petition closes with the following: “Wherefore, premises considered, plaintiff prays the court that citation issue commending defendants and each of them to appear and answer herein, and upon final hearing hereof, they have judgment in the sum of Forty Thousand ($40,000.00) Dollars, together with interest thereon at the rate of six per cent, per annum, against the said T. W. Mc-Graw, E-. Duval and R. D. Bell and each of them. They pray further that they have judgment divesting all of the right, title and interest of the defendants T. W. McGraw, E. Duval, R. D. Bell, First State Bank of Mun-day, IT. A. Pendleton, C. A. Eiland and each of them in the above described real estate out of them, and vesting it in plaintiffs herein. They pray further for interest, costs of suit and general relief.”

The defendants, First State Bank of Mun-day, H. A. Pendleton, E. A. Eiland, each filed separate pleas of privilege to remove the suit against them to Knox county. The plaintiffs filed controverting pleas to each of the pleas of privilege setting out the allegations contained in their original petition hereinabove copied. The defendants, First State Bank of Munday, H. A. Pendleton, and C. A. Eiland, answered the controverting pleas by filing-a. general demurrer and certain special exceptions which the court sustained, and overruled the controverting pleas by plaintiffs and sustained each of the pleas of privilege and ordered the cause of action as against these defendants transferred t,o Knox county.

We are of the opinion that the court entered the proper order. It will be seen at once from reading the prayer of plaintiffs in their original petition brought forward in their controverting plea to these defendants’ pleas of privilege that the relief sought against the defendants filing the pleas of privilege is to divest them of title to certain real estate located in Kñox and Haskell counties. Subdivision 14 of article 1995 of the Revised Civil Statutes of 1925 is as follows: “Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.” Certainly, under this provision of the statute, the venue to the cause of action alleged in plaintiffs’ petition seeking to recover the real estate located in Knox and Has-kell counties could not be maintained in Gray-son county against the defendants who filed proper pleas of privilege to have the case removed to Knox county.

The venue of the cause of action against T. W. McGraw, who resided in Grayson county, as principal, and R. D. Bell and E. Duval, as sureties on the community administration bond of T. W. McGraw, could be maintained in Grayson county under subdivision 29a of article 1995, Revised Civil Statutes of 1925 (as added by Acts 1927, 1st Called Sess. c. 72, § 2 [Vernon’s Ann. Civ. St. art. 1993, subd. 29a]).

It has been held by this court that two causes of action having .venue in different counties cannot be joined in one suit and venue maintained in the county of either cause of action against a plea of privilege. Reeder & Lynch v. E. B. Hayes Machinery Co. (Tex. Civ. App.) 257 S. W. 947.

The judgment is affirmed.


text:
    SCARBOROUGH et al. v. BRADLEY et ux.
    No. 3996.
    Court of Civil Appeals of Texas. Texarkana.
    April 3, 1931.
    Rehearing Denied April 9, 1931.
    Bishop & Holland and Justice & Sigler, all of Athens, for appellants.
    Gentry & Gray, of Tyler, Wynne & Wynne, of Wills Point, and W. R. Thomas, of Athens, for appellees.
   SELLERS, J.

G. W. Bradley and wife, Henrietta, brought this suit against G. C. Hassell, G. C. Scarborough, W. W. Scarborough, Walter Wel-toorn Scarborough, S. Marvin Cely, and Roy Cely, alleging a conspiracy on the part of the defendants, except G. C. Scarborough and Walter Welborn Scarborough, to defraud them out of their property both real and personal. G. C. Scarborough and Walter Wel-born Scarborough are sons of W. W. Scarborough, in whose names W. W. Scarborough placed the title to certain real estate involved in this suit. All of the defendants answered by general demurrer and special exceptions, general denial, and all disclaimed any interest in the real estate, except G. C. Scarborough, who alleged that he was the owner of the real estate involved. The case was tried to a jury upon special issues, and, upon the issues as found by the jury, the court entered judgment for plaintiffs for the relief sought in their petition, to which judgment defendants excepted and gave notice of appeal, and the cause is now before this court for review.

The record discloses that Bradley and wife are old ' negroes living near Frankston, in Henderspn county, and in 1926 they owned 480 acres of land upon which they resided, and had also accumulated several thousand dollars in money, and owned one promissory note of $5,000, known as the Mandelstam note. They were also owners of $4,000 stock in an unincorporated negro bank in the city of Palestine. Some time in 1926 .this bank became insolvent, and notice of the condition of the bank was given Bradley and wife by the officers of the bank.

G. G. Hassell was in business at Frankston at the time of the failure of the colored bank, doing a large credit business. W. W. Scarborough was employed by Hassell, and as a part of his duties inspected the crops from time to time upon which Hassell had mortgages. Bradley and wife were customers of Hassell, and hpd traded with him for several years.

It appears from the pleadings and evidence of Bradley and wife that, immediately after they had received notice of the insolvency of the negro bank, G. G. Hassell and W. W. Scarborough, who also had learned of the bank’s failure, came to Bradley and wife and represented to them that they were going' to lose everything they owned or possessed, but, if they would turn over to them all their property, both real and personal, that they could make a much better settlement with the creditors of the bank than Bradley and wife could, and, when they had made the settlement, they would return to Bradley and wife the property remaining.

Bradley and wife, relying upon the honesty and integrity of Hassell and W. W. Scarborough, and desiring to have the best settlement possible made with the creditors of the bank, and in that purpose, turned over to Hassell and Scarborough 480 acres of land and the $5,000 Mandelstam note, which note was of the value of $5,000. They executed a warranty deed to the land, and assigned the note to Hassell. No consideration whatever, though, was paid by Hassell or Scarborough to Bradley and wife for this property.

It further appears that neither Hassell nor Scarborough, after getting the property in their possession, made any attempt whatever to secure a settlement with the creditors of the bank for Bradley and wife or on their account, but, on the contrary, they appropriated the property to their own use and benefit in the following ways, as shown by the petition of plaintiffs, the material allegations of the petition being supported by the evidence:

“Complaining further, plaintiffs would show to the Oourt that G. G. Hassell did not pay them anything for the execution of this deed; that -the $8,000.00 cash considei-ation contained therein was fictitious and that no amount whatsoever was paid to these plaintiffs at the time the same was executed; but that in furtherance of said common design and conspiracy to defraud these plaintiffs of their life earnings, the defendant G. G. Hassell, did on the 15th day of January, 1927, represent to the plaintiffs that in order for the transaction to be bona fide on its face and the fact that the plaintiffs were to remain in possession of said land and premises for the year 1927, it would be better for them to execute to him a rental contract; and the plaintiffs, still relying on the honesty and integrity of said defendant, believing the representations they made to be true, which representations they now know were not true and were fraudulent and malicious, did on the 15th diay of January, 1927, make and execute this rental contract, in which they contracted and agreed to deliver to the defendant, G. G. Hassell ¼ of the cotton and ⅛ of the grain raised on said land and premises as rent; that in furtherance of said common design and conspiracy, the defendant G. G. Hassell, did, without consideration and for the sole purpose of fraudulently taking from these plaintiffs that to which they were entitled, assign said rental contract to the defendants, J. M. Cely and J. R. Cely; and that J. M. Cely and J. R. Cely were acquainted with the facts at the time they accepted the same, and that they did not pay anything therefor; but with full knowledge of the facts and circumstances surrounding the execution of the entire transaction, did willfully and maliciously join and enter into said conspiracy for the purpose of fraudulently taking from these plaintiffs their entire property.
“Complaining further, plaintiffs would show to the Court that in the early part of April, 1927, the above described land and premises became valuable as mineral property and that certain parties presented themselves to the plaintiffs for the purpose of leasing from them the 480 acres of land herein-above described; but that acting upon the advice of the defendant, G. G. Hassell, plaintiffs informed these parties that they could not lease the land; that the title was in the defendant, G. G. Hassell, but requested that they see Mr. Hassell in regard thereto; and that on April 15th, 1927, defendant, G. G. Hassell, did make and execute to John W. Easterwood an oil and gas lease, covering this entire 480 acres of land, which lease is recorded in Volume 127, page 518, of the Deed Records of Henderson County, Texas; and that as a consideration for said lease, the said John W. Easterwood did pay to G. G. Hassell the sum of $4,810.00 in cash; and that at the time the abstract covering the property was examined and it was found that these plaintiffs were still in possession thereof, the purchaser of the lease refused to accept the same without these plaintiffs did sign an affidavit showing that the sale to G. G. Hassell was bona fide; and that G. G. Hassell had an affidavit prepared for> the execution of these plaintiffs; and represented to them at the time that this was the only way the land could be leased, and as they were to get the money, it would -make no difference for them to execute the affidavit; and that it was merely a formal matter and that all of them, being the plaintiffs and defendants herein, knew that no title had passed, and it was merely made to enable the title to be passed by the lessee; and that, relying upon the representations made by the said G. G. Hassell, these plaintiffs did execute said affidavit before J. C. Dixon, a Notary Public of Anderson County, Texas, and that thereafter, the money was paid to the defendant, G. G. Hassell; that a short time thereafter, in May, 1927, these plaintiffs, more especially G. W. Bradley, (requested of G. G. Hassell that he pay to this plaintiff the lease money, and that the defendant Hassell paid to this plaintiff the sum of $2,000.00, which he stated to him. was all the money that he had received from the lease and was the money he 'had gotten therefor, the payment being .made in cash money of thirty-six fifty-dollar bills and ten twenty-dollar bills; but the said representations made by the defendant, G. G. Hassell, were untrue, were made in the furtherance of the common conspiracy to mulct from these plaintiffs all of their property, in order that the same could be divided and split among the defendants herein in such proportions as they might determine were equitable among themselves, leaving out and overlooking the -interest of these plaintiffs, in that they were entitled to all of the money rather than what little amounts the defendants and each of them wanted to give; and that, by this transaction, these defendants fraudulently'and maliciously took plaintiffs’ money in the sum of $2,810.-00, which they had no right bo, which they had no title to,'and which they had no interest in, but took it and kept it, by violating the confidence of these plaintiffs.
“Complaining further, plaintiffs would show to the Court that in June of 1927, the defendant, W. W. Scarborough, and the defendant, Marvin Cely, represented to the plaintiffs, G. W. Bradley and wife that they wanted the note of A. B. Mandelstam and that it was in the -hands of G. G. Hassell, and plaintiffs were not going to get anything out of it at all; and that if plaintiffs would sell it to them, they would get the note from the defendant, G. G. Hassell; and offered at the time to deliver to the plaintiff the sum of $3,000.00 for this note; plaintiff told said defendants that he was not going to take that much m-oney for the note; that Mr. Mandel-stam had requested him that anytime he wanted his money to let him know; and that the note was worth the full face value of $5,000.00 and interest accumulated thereon in cash money; hut that said defendants, and each of them, represented to the plaintiff that he had to take the money and that ‘By God, they were going to have the note,’ and forced into his hands the sum of $3,000.00, which oc-cui'rence took place in the warehouse of G. G. Hassell, immediately behind his store building ; that they then went into the store building of G. G. Hassell and demanded the Man-delstam note, which was immediately turned over to them by the defendant, G. G. Hassell; that this plaintiff then laid the money upon the counter and again affirmed his decision and that he did not want that money for the note, but was again informed that he had to take it, which information was given to him by the defendant, J. M. Gely or Marvin Oely, and by the defendants W. W. Scarborough and G. G. Hassell; and that G. G. Hassell then picked up the money and counted out for himself the sum of $1,123.23, which he claimed that these plaintiffs owed him, but which in truth and in fact they only owed to him the sum of $98.60; and then handed back to the plaintiff the balance of $1,876.77, which amount they forced him to take; that immediately thereafter, A. B. Mandelstam learned of the fact of his note being in the hands of these defendants, together with the fact of how it was obtained, and immediately paid to them within three or four days thereafter the full amount of principal and interest due on said note; and that by said conspiracy and by fraud, the defendants took from these plaintiffs the sum of $3,623.23 by this transaction, which amount they still withhold from them.
“Complaining further, plaintiffs would show to the Court that thereafter, on the 23rd day of June, 1927, these defendants came to the plaintiffs and represented to them that the defendant, G. G. Hassell, had held the land as long as he desired and was ready to deed it back to them; but that if he deeded it back to them in its entirety, being 482 acres, that he-could still lose the 280 acres over and above his homestead and suggested that he deed to the plaintiff 200 acres of land and deed to G. O. Scarborough, who was the son of W. W. Scarborough, the remaining 282 acres; that these plaintiffs, still relying on the honesty and integrity of said defendants and each of them, without knowing how they had been robbed in the past, agreed to this transfer; and that on ’the 23rd day of June, 1927, G. G. Hassell made and executed to these plaintiffs his Warranty Deed, covering 200 acres of the land, and executed to G. G. Scarborough his Warranty Deed conveying the remaining part thereof or 280.92 acres; that this deed shows a consideration of $3,000.00 cash in hand paid; but that in truth and in fact, no moneys were paid at all and never had been paid, all of which fact was known to the defendants, and each of them.
“Complaining further, plaintiffs would show to the Court that after a part of these transactions took place, and after these plaintiffs found out that the defendant G. G. Has-sell had obtained the sum of $4,810.00 for the lease and had turned over to them only the sum of $2,000.00, the defendant, W. W. Scarborough, represented to these plaintiffs that they were going bo lose everything they had and that there was but one way they could save themselves, and that was by having him as their friend, by whom to prove facts that has transpired, and he told the plaintiff the amount that Hassell had received for the lease and, in order to place himself in their good graces and to retain the confidence that they had in him, suggested to the plaintiffs that they employ an attorney of his selection to obtain this money from Hassell; and represented to them that he would stand by them throughout the entire transaction; and that at this time, and a short time thereafter, he procured from these plaintiffs $4,500.00 in cash money; but immediately after he had obtained the money, which he obtained under false pretenses, and which be obtained fraudulently, he refused to pay it back to the plaintiffs, but instead, built himself a fine house in the town of Erankston, using these plaintiffs’ hard-earned money to build for himself and family a beautiful 'home, .when he had no intention of returning the money to them at all; and that thereafter, admitted to the plaintiffs, and more especially to the plaintiff, George Bradley, that he owed to him the sum of $7,900.00, which was the $4,500.00 that he had obtained from him under false pretenses and the balance represented his part of the proceeds of the division of the spoils obtained in the unlawful conspiracy; and represented to him that he desired to pay this money but that the only way he could pay it was in land, and that he was the owner of a tract of land of 162⅛ acres of land in Kaufman County, Texas; and that this land was reasonably Worth the sum of $125.00 per acre, or a total of $20,000.00, and represented to the plaintiffs that their land was worth only the sum of $5,000.00, this being the 200 acres to which the plaintiffs had title, the other part being in the name of G. C. Scarborough, the son of the defendant, W. W. Scarborough; and that, still relying upon the honesty and integrity of said defendant, still believing that he would and could tell the truth, and seeking to recoup the loss of $7,900.00, which the defendant W. W. Scarborough owed to them, without knowing the .value of the ICaufman County Land, but relying solely upon the rep-reservations of said defendant, these plaintiffs agreed to the trade, and a deed was executed by Walter Welbom Scarborough, in whose name the land was at that time, as the defendant, W. W. Scarborough, owed everybody under the sun who would let him owe them, a large part of whom had placed their accounts in judgments, and from these accounts and judgments he was hiding and secreting his property; and for that reason, was carrying his lands in the name of his sons and making them parties to the illegal contract ; and believing that said land was worth the amount of money of $125.00 per acre, as represented by the defendant, W. W. Scarborough, this trade was made, and these plaintiffs deeded to G. G. Scarborough, the remaining 200 acres of land, and agreed to cancel the indebtedness that W. W. Scarborough, the father of G. G. Scarborough owed to them; and in return therefor, received a deed to the 162½ acres of land in Kaufman County, Texas, out of the Charles Askins Survey, and described as follows, to wit: [Here follows description.]
“Complaining further, plaintiffs would show to the Court that this land was of no value at all, that it had a loan against it to the Eirst Joint Stock Land Bank of $5,500.00, which was more than the land itself was worth; and that all of these facts were known to the defendant, W. W. Scarborough and to the defendant, Walter Welbom Scarborough, but that falsely and fraudulently for the purpose of taking from these plaintiffs their land, without consideration, and without paying them therefor, represented the facts as here-inabove set forth; and by this means and in furtherance of the common conspiracy and design, the defendants herein obtained a Deed to these plaintiffs’ property in Henderson County, Texas, as hereinabove described; and that the consideration recited in said Deed to the defendant, G. C. Scarborough, is untrue, is fictitious, and false and fraudulent.
“Complaining further, plaintiffs would show to the Court that all of the Deeds here-inabove sot forth from these plaintiffs to the defendants, or any of them, were false, were untrue, were obtained by fraudulent means and representations, were made in fraud and in furtherance of .the common conspiracy and design on the part of the defendants and each of them to rob these plaintiffs out of their land and premises and out of their property, which they had acquired by a life time of hard work; and in truth and in fact, passed no title whatsoever; but these plaintiffs are now and have always been during all of this time the fee simple owners of said land and premises and entitled to the possession thereof ; and the plaintiffs wherefore now tender to the defendant, W. W. Scarborough, a Deed to the land and premises in Kaufman County, Texas, as hereinabove described.
“Wherefore, premises considered,’ plaintiffs pray that the defendants and each of .them be cited to appear and answer this petition and that, upon a hearing hereof, that they have judgment divesting out of the defendants, and each of them, and investing in these plaintiffs all of the right, title, and interest of said defendants, if any they ever had, which these plaintiffs expressly deny, and investing the same in and to these plaintiffs and that they have judgment against said defendants, and each of them, both jointly and severally, for the full sum of $2810.00 for the lease money and $3623.23 for the Man-delstam note money; and as against the defendant W. W. Scarborough that they have judgment for the full sum of $4500.00, being the money obtained by him from these plaintiffs, with interest on each of said items from the date of the filing of this suit, until paid, at the rate of 0% per annum; for all costs of suit, together with such other and further relief, both general and special, in law and in equity, to which they may show themselves entitled.”

Upon the trial it was developed that there were several hundred dollars in the First State Bank of Frankston deposited in the bank to the account of G. G. Hassell, special, by the owners of the lease which Hassell had executed on the lands of Bradley; said money representing the rentals called for in the lease.

The issues as submitted to the jury by the court and the answers thereto are as follows:

“Question No. 1: Do you find from a preponderance of the evidence that the defendants, Hassell and Scarborough, upon learning of the failure of the negro bank at Palestine, Texas, agreed together to induce the plaintiffs to transfer the title to their land to Has-sell and Scarborough or either of them, with the intent to defraud Plaintiffs out of said land?” Answer of the jury: “Yes.”
“Question No. 2: Do you find from a preponderance of the evidence that the Defendants Hassell and Scarborough, upon learning of the failure of the negro bank at Palestine, Texas, induced the Plaintiffs to transfer the title of their land to said Hassell and W. W. Scarborough, or either of them?” Answer of the jury: “Yes.”
“Question No. 3: Do you find from a preponderance of the evidence that the purpose of Hassell and W. W. Scarborough in inducing the Plaintiffs to transfer the title bo their land to Hassell or W. W. Scarborough, or either of them, was to defraud the Plaintiffs out of their said land, or any portion thereof?” Answer of the jury: “Yes.”
“Question No. 4: Did the Plaintiffs, G. W. Bradley and wife, lease the 481 acres of land to the Defendant, G. G. Hassell, for an agreed consideration of $2000.00 in cash?” Answer of the jury: “No.”
“Question No. 5: Do you find, from a preponderance of the evidence, that the Defendant, G. G. Hassell, in executing the lease to John W. Easterwood, dated April 15th, 1927,, was acting for Plaintiffs, G. W. Bradley and wife?” Answer of the Jury: “No.”
“Question No. 6: Did the Plaintiff G. W. Bradley sell the Mandelstam note to J. M. Gely for an agreed consideration of §>3,000.00 cash?” Answer of the jury: “No.”
“Question No. 7: What was the value of the Mandelstam note on the day it was obtained by Cely?” Answer of the jury: $5,-000.00 and interest.
“If you have answered question No. 1 ‘No,’ then you need not answer the following question ; but if you have answered question No. 1 ‘Yes,’ that is that the defendants, Hassell and W. W. Scarborough did enter into an agreement to induce the Plaintiffs to transfer the title to their land to Hassell and W. W. Scarborough, or either of them, with the intent to defraud Plaintiffs out of said land, then you will answer the following question:
“Question No. 8: Do you find from a preponderance of the evidence that the contract of date September 5th, 1927, in which the 481 acres of land in Henderson County, Texas, was deeded to G. C. Scarborough wias made in furtherance of this agreement?” Answer of the jury: “Yes.”

By a great number óf assignments the appellants complain that the petition of appel-lees on its face shows that the property was turned over to appellants for the purpose of defrauding the creditors of appellees, and therefore, the parties being in pari delicto, the court could not grant any relief to the parties, but should leave all of them where they are found. We do not agree that the petition is susceptible of the construction placed upon it by appellants. It is our opinion that the petition alleges a case in which Hassell and W. W. .Scarborough were made the agents of appellees for the vexw legitimate purpose of effecting a fair and reasonable settlement agreeable with the creditors of the insolvent bank, and that the property was placed in the hands of G. G. Hassell as their trustee to be used only for the purpose of satisfactorily settling with such creditors their liabilities to them as stockholders of the bank.

Appellants assigned as error the refusal of the court to give certain special charges which were requested by them. We have carefully considered each of the charges refused by the court, and are convinced that the issues as presented by the charges refused were unnecessary to go to the jury when considered in connection with the charge of the court.

It is insisted by appellants that the court erred in giving appellees judgment for the amount of money in the First State Bank of Frankston in the account of G. G. Hassell, special. The evidence discloses that all the money in this account represented rentals from the lease which Hassell executed on the lands of appellees, and Hassell testified that he did not claim any of the money in that account. Therefore we think the court was authorized in entering the judgment for appel-lees against all of the appellants for the amount of money in that account.

We think the evidence is entirely sufficient to support the judgment. Without reciting the details, the record before this court goes to show that the appellees have in nowise received any consideration for their property passed to appellants entirely in agency for a specified purpose.

All of appellants’ assignments not 'here discussed have been considered, and, being of the opinion that none of them present error, they are overruled.

The judgment of the trial court is affirmed.


author: WALTHALL, J.

text:
    BIGELOW v. DELAWARE PUNCH CO.
    No. 2509.
    Court of Civil Appeals of Texas. El Paso.
    March 19, 1931.
    Rehearing Denied April 9, 1931.

      Harrison, Scott & Rasberry, of El Paso, for appellant.
    Leo I-Ieisel, of El Paso, for appellee.
   WALTHALL, J.

Delaware Punch Company, representing in its petition that at all times thereinafter mentioned it has been and now “is a foreign corporation, organized and existing under the laws of the State of Delaware, duly authorized to do business within the State of Texas,” and stating the location of its principal place of business to be at San Antonio, Tex., brought this suit against R. V. Bigelow, doing a mercantile business as the R. -V. Bigelow Supply Company, to recover for certain specified and itemized goods, wares, and merchandise sold and delivered to Bigelow at El Paso, Tex., under a written contract, and to recover the possession of twelve dispensers, stating their value, and stating that certain credits were to be allowed upon an adjustment of the verified account.

Bigelow answered by general demurrer, general denial; denied the whole of the verified account; alleged that plaintiff, is a foreign corporation maintaining its principal office at San Antonio, Tex.; ' alleged that the execution of the contracts mentioned was procured by misrepresentations, stating same, and that said misrepresentations were a part of the consideration for the purchase of said goods, wares, and merchandise- then held by him, and that prior to the filing of suit defendant tendered to plaintiff the return of said goods, and- in his answer renewed said tender; and pleaded other facts which defendant alleges were, in violation of article 7426 of the statutes, conspiracies against trade.

At the close of the evidence and before the case was submitted to the jury, defendant submitted a motion to dismiss the suit on the ground that the evidence shows that plaintiff is a foreign corporation doing business in Texas, that the transactions relating to the sale and delivery of the merchandise involved in the suit occurred in Texas, and that there was no competent proof that plaintiff had complied with the Texas laws regulating foreign corp,orations doing business in this state. The court overruled the motion and submitted the case to the jury upon special issues. On the (return of the verdict defendant submitted a motion for judgment in his favor, which the court overruled.

The dispensers having been returned by defendant and accepted by plaintiff, judgment was” rendered that plaintiff take nothing for same, and entered judgment for plaintiff on the verdict for the goods, wares, and merchandise.

The court overruled defendant’s motion for a new trial, and defendant prosecutes this appeal.

Opinion.

We will designate the parties as plaintiff and defendant as in the trial court.

Defendant submits error to the order of the court in overruling his motion and renewed motion for a new trial on the ground that there was no proof of plaintiff’s compliance with the statute regulating foreign corporations doing business in this state, in that there was no evidence that plaintiff had filed with the secretary of state a duly certified copy of its articles of incorporation and secured a permit to do business in this state.

On that issue plaintiff took the deposition of the president of the plaintiff corporation, and submitted the following question: “Q. If you answered the previous interrogatory to the effect that the Delaware Punch Company is a Delaware Corporation, state whether or not it has a permit to do business within the State of Texas.” To which the witness answered, “Xes.”

The above is all the proof on the issue found in the record.

The petition and evidence show that plaintiff is a foreign corporation and maintains its principal office, its factory and warehouse in San Antonio, Tex., from which its orders for its goods are sold and shipped. The business shown is not interstate commerce.

Opon the general subject of private foreign corporations, title 32, chapter 19, article 1520, of the statutes of this state, provides that any corporation for pecuniary profit, organized or created under the laws of any other state, desiring to transact or solicit business in Texas, or to establish a general or special office in this state, shall file with the secretary of state a duly certified copy of its articles of incorporation, and thereupon such official shall issue to such corporation a permit to transact business in this state, for the period stated.

Article 15S5, same chapter, provides: “Evidence. — Either the original permit or certified' copies thereof by the Secretary of State shall be evidence of the compliance on the part of any corporation with the terms of this chapter.”

Article 1536, same chapter, provides: “Right to sue. — No such corporation can maintain any suit or action, either legal or equitable, in any court of this State upon any demand, whether arising out of contract or tort, unless at the time such contract was made, or tort committed, the corporation had filed its articles of incorporation under the provisions of this chapter.”

The point presented has been decided against appellee’s contention by the Supreme Court in Taber v. Interstate Bldg. & Loan Association, 91 Tex. 92, 40 S. W. 954. The statute states the facts necessary to be proved. In addition to the fact that appellee had a permit to do business in this state, it must be made to appear that such permit was granted before the contract and business here shown were transacted.

The burden of making such proof is on the suing foreign corporation. The reason for the rule is more fully discussed in Holloway v. Memphis, El Paso & Pacific R. R. Co., 23 Tex. 465, 76 Am. Dec. 68. The law is mandatory in its terms. See, also, Elliott Electric Co. v. Clevenger (Tex. Civ. App.) 300 S. W. 91, and cases there referred to.

The question presented is not a want of legal capacity to sue, as suggested by plaintiff. A foreign corporation, having complied with the statute, has legal capacity to sue. Plaintiff’s petition shows that it is a foreign corporation, and alleges that it was “duly authorized to do business within the State of Texas.” While the statement that plaintiff was “duly authorized,” etc., is a legal conclu•sion, the proof must show the facts which duly authorized plaintiff to enter into the contract and transact business; that is, that at the time of entering into the contract and transacting the business under the contract plaintiff had then filed its articles of incorporation with the secretary of state and secured a permit to do business in this state. The question presented is one of proof and not of pleading. Defendant could not be required to anticipate that plaintiff would not make the required proof that it was “duly authorized” to do business in this state.

The proof was not sufficient, and the court should have sustained defendant’s motion.

Other points are presented as to matters arising on the trial which we need not discuss.

It appearing that the proof has not been fully developed, the case is reversed and remanded.

On Motion for Rehearing.

We think appellant has not fully understood just what we held in the opinion;

Appellant refers us to U. O. Colson Co. v. Powell (Tex. Civ. App.) 13 S.W.(2d) 405, and, quoting from that case, submits that the defense that plaintiff is a foreign corporation without a permit to do business in this state, and with no right to maintain the suit, must be specially pleaded by Bigelow, and would .be waived by not pleading and proof.

That holding was a correct statement of the law in that case, an equitable proceeding to set aside a judgment of a court of competent jurisdiction, and from which the party seeking relief had an adequate remedy by appeal, but did not avail itself of it. A review of the eases referred to by Judge Blair in that case will fully reveal the character oí cases where the law stated in that case is applicable.

That case and the cases there referred to have no application to this case. The only question in the instant case is the sufficiency of the proof to show that appellee, a foreign corporation, had a permit to do business in this state and whether it had such permit at the time the business involved in the suit was transacted.

The case of Taber v. Interstate Bldg. & Loan, 91 Tex. 92, 40 S. W. 954, 955, and referred to in the original opinion, decided the questions presented here on a certified question. It was there held: “It was necessary for the corporation (plaintiff below) to prove that it had-a permit to do business in Texas at the time that the contract sued upon was made in order that the court might enter judgment in its favor.” In that case the question was raised by general denial. In Washington-Dean Co. v. Crow Bros. et al. (Tex. Civ. App.) 1 S.W.(2d) 914, it is said that foreign corporations must allege and prove permit to transact business in this state. In Elliott Electric Co. v. Clevenger (Tex. Civ. App.) 300 S. W. 91, it was contended, as here, that objection of noncompliance of a foreign corporation with the statute requiring a permit was a matter of defense. It was held that in this state compliance with the statute of permit to do business, in view of its terms, must be both pleaded and proved by the foreign corporation to entitle it to maintain the action, and refers to Taber v. Building & Loan Ass’n, supra, and other cases referring to the Taber Case so holding.

. See cases in Shepards S. W. Rep. Citations, vol. 23, November, 1930 p. 93.

There is no doubt, in our opinion, but that the burden of proof is on the foreign corporation to show its right'to sue and to have judgment in its favor, and that it had such right at the time the transactions were had. We have found no ease holding otherwise.

The motion is overruled.


text:
    JACKSON et al. v. FIRST NAT. BANK OF SAN ANGELO.
    No. 7555.
    Court of Civil Appeals of Texas. Austin.
    March 18, 1931.
    Rehearing Denied April 8, 1931.
    Collins, Jackson & Snodgrass, of San Angelo, and Earl D. Scott, of Jourdanton, for appellants.
    Upton & Upton, of San Angelo, for appellee.
   BLAIR, J.

This appeal is from an order overruling the pleas of privilege in statutory form of appellants, A. M. Peeler and Roy Jackson, to be sued in Webb county, the county of their residence or domicile. Appellee, the First National Bank of San Angelo, Tex., filed the suit in the district court of Tom Green county, alleging that the defendant Howard P. Miller, .was a resident of San Antonio, Bexar county; that defendant Clay Mann was a resident of Texas, but now located in Oklahoma City, Okl.; that defendant A. M. Peeler was a resident of Bexar and Atascosa counties; and that defendant Roy Jackson was a resident of Webb county; that Howard P. Miller executed to appellee his note for $10,000, dated October 10, 1929, and payable to the order of appellee at San Angelo, Tex., 180 days after date, and that same was past due and unpaid; that, at the time -of the execution of the note, Miller executed his chattel mortgage upon -certain goats, described by age and brand, upon certain cows and bulls, described by age and brand, and upon 412 head of steers, one and two years old, and branded Q on left loin or hip; that, prior to the execution of the note and mortgage, Peeler and Jackson sold to Miller the 412 head of steers described, and agreed to deliver the same free of any liens; that Miller and Mann negotiated with appellee bank for the loan and agreed to execute the note and mortgage, and appellee agreed to make the loan subject to an inspection of the live stock; that, just prior to the date of the note and mortgage, appellee sent Will C. Jones to inspect the live stock; that he inquired of appellant Roy Jackson as to the whereabouts of Ploward P. Miller’s steers, and informed him that he wished to inspect them for the purpose of making a loan; that Jackson assisted him in making the inspection, pointing -out from other cattle the cattle that belonged' to Miller, and that Jackson never at any time asserted any claim, right, title, or interest in the cattle or of their possession during the inspection of .them; that the said Johes made inquiry of appellant A. M. Peeler as to the number, kind, and location of the cattle owned by Miller; that Peeler told him -that these 412 head of steers belonged to Miller, and that Peeler never claimed at any time that these steers belonged to him or to Jackson, or to both of them; and that, relying upon these representations Peeler and Jackson, Jones reported a favorable inspection of the cattle, and appellee, acting upon this information, made the loan in suit. Appellee also alleged that Peeler and Jackson were partners in the cattle; that, if not partners,, they were jointly interested in certain ranch enterprises; that the said 412 steers were in their possession; and that they were claiming some right, title, or interest in same, but that, whatever their claim be, it was inferior to the claim and the mortgage lien of appellee; and appellee prayed for judgment against Miller on the note and for foreclosure of the chattel mortgage as against all defendants.

In addition to alleging the above facts in its controverting plea to the pleas of privilege, appellee also, alleged, as follows: “That at the date -of the execution of said note, and said mortgage the defendant, Howard P. Miller, was the owner of said live stock, and had a right to execute a valid mortgage and lien upon same to secure the payment of said note; and that at the time of the institution of this suit, and the time of the filing of the pleas of privilege herein, and at this time, said defendants, Jackson and Peeler, are asserting some right, title or interest in and to the live stock, the nature of which and the extent of which is unknown to plaintiff, but whatever interest they have or assert is inferior to the claim and lien of the plaintiff herein to said live stock.”

On the trial of the pleas of privilege, the trial coirrt sustained venue in Tom Green county under subdivision 5 of article 1095, which provides that, “if a person has contracted in writing to perform an obligation in a particular county, suit may be brought * * ⅜ ⅛'such county” on the obligation; and under subdivision 29a, which provides that, “whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against anv and all necessary parties thereto.”

This appeal is predicatea upon the following-sole proposition: “Since none of the defendants reside in Tom Green County, Texas, and since the alleged venue in Tom Green County must be predicated solely upon the written promise -of Miller to pay the note in Tom Green County, it was necessary for plaintiff to plead and prove prima facie that appellants were necessary parties to the suit against Miller in order to sustain venue in such County, and since the proof not only failed to show appellants -to be necessary parties to such action but on the other hand conclusively established the fact that appellants wore not necessary parties to such action, it was error for the lower court to overrule the pleas of privilege.”

Appellee, introduced the note and mortgage on the 'hearing of the pleas of privilege. Roy Jackson, called as a witness by appellee, testified Peeler had written him that he had contracted to sell the steers involved in this suit to Miller; that Miller and Will C. Jones introduced themselves to him and wanted to see the cattle, and that he told them the cattle were in the trap; a Mexican got up some horses and Jackson went with and showed Jones the cattle which are now in the possession of himself and Peeler. Among other things, Jackson testified as follows: “I am one of the defendants in this case, and am acquainted with the 412 head of steeys involved here. They are now on the Peeler Ranch in Atascosa County, and are in the possession of Mr. Peeler; Peeler, Gouger and Jackson claim the cattle.”

Jackson further testified: “We were to pasture the cattle there. He told me that day he had paid Mr. Peeler pasturage on these cattle; and that caused me to believe that Peeler might have delivered the cattle; but I didn’t know.”

Appellant Peeler testified as follows: “I contracted these steers to Mr. Miller on September 22 at $46.00 a head with a 10% cut of. $36.00, the cattle to be delivered and paid for as soon as they could be cleaned. The cattle had ticks on them; and they were to be paid for at the shipping pens, free of ticks. We had a short memoi-andum of the trade, which I wrote and gave to Mr. Miller. Mr. Miller gave me a check for $1,000.00 as part payment; and I wrote him .a receipt. ' Mr. Miller said he had a pasture above San Antonio, and was going to ship the cattle to that pasture; and we were to dead them and deliver them to him so they would stand inspection to go into clean territory. Later on ho decided to leave the cattle and not move them; and I got him some grass with one of -my neighbors; and he was to receive the cattle and pay for them on the 15th of October, but didn’t do that.”

On cross-examination, Mr. Peeler testified: “Mr. Jones was with Mr. Miller; and he_ asked me how many of those cattle there were; and I told him there were about 400. I suppose the cattle were sold to Miller. That is what we were talking about. I didn’t say that there were about 400 in there that belonged to Miller; but I said there were about 400 steers, and I meant 400 we had sold to Miller. * * * These were the steers I was talking about that I had contracted to Mr. Miller.”

The evidence also showed that Miller paid $1,000 of the purchase price of the cattle to Peeler, and that the note and mortgage were payable and enforceable by 'their express terms in Tom Green county. By this evidence appellee bank established a .cause of action on the note and mortgage which was maintainable against Miller in Tom Green county, and also established a prima facie cause of action of estoppel against Peeler and Jackson to deny Millers title to the cattle, because Miller thereafter failed to carry out his promise to pay the entire purchase price, -or to now assert any claim or lien superior to appellee’s mortgage lien on the cattle; and it necessarily follows from these facts and conclusions that appellants Peeler and Jackson were necessary parties to the foreclosure suit.

In McLeroy v. Thrift (Tex. Civ. App.) 22 S.W.(2d) 497, 498, it was held, as follows: “Second, that so regarding the action as concerns the appellant, he — claiming an adverse interest in property on which a mortgage lien was sought to be foreclosed against another, along with himself- — should be held to be a necessary party to the suit under subdivision 29a, supra, oil the view that only in that way would the plaintiff be afforded adequate relief; Townes on Texas Pleading, 2d Edition, p. 259, subd. —; Boydston v. Morris, 71 Tex. 697, 10 S. W. 331; Lind et ux. v. Merchants’ State Bank & Trust Co. (Tex. Civ. App.) 16 S.W.(2d) 385; Carter v. Attoway, 46 Tex. 108; First State Bank v. Hill (Tex. Civ. App.) 2 S.W.(2d) 1023; Hall v. Hall, 11 Tex. 526; Templeman v. Gresham, 61 Tex. 50.”

See, also, Lind et ux. v. Merchants’ State Bank & Trust Co. (Tex. Civ. App.) 16 S.W.(2d) 385; Eirst State Bank of Crowell et al. v. Hill et al. (Tex. Civ. App.) 2 S.W.(2d) 1023.

Appellants in effect concede that, if ap-pellee made out a prima facie case against them, the above quotation from the McLeroy v. Thrift Case is “directly contrary to our (appellants’) contentions,” except that the residence of the maker of the note in that case was in the county of the suit. But the residence of. the maker of the note is not material under subdivision 29a, supra, which authorizes the maintaining of a suit in the county where “such suit is lawfully maintainable” against one or more of the defendants sued. This court decided this exact question in the case of Demmer v. Lampasas Auto Co., 34 S.W.(2d) 421.- There it was held that, although neither of the defendants resided in the county where the note and mortgage on an automobile in suit were payable and enforceable, still the suit was maintainable there against the maker of the note' under its terms and that the suit was also maintainable there against all defendants who claimed any interest in the automobile, so that a common judgment for foreclosure of the mortgage could be had against all defendants, and in order to afford the plaintiff full and adequate relief.

The judgment of the trial court will be affirmed.

Affirmed.