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

text:
    LINZ et al. v. EASTLAND COUNTY.
    No. 1119—5381.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.

      W. H. Elippen, Seay, Seay, Malone & Lipscomb, and Thompson, Knight, Baker & Harris, all of Dallas, Turner, Seaberry & Springer and Allen D. Dabney, all of Eastland, and Gib Callaway', of Brownwood, for plaintiffs in error.
    J. R. Stubblefield, Chas. C. Robey, Frank Sparks, and Joe I-I. Jones, Co. Atty., and B. W. Patterson, all of Eastland, Beall, Worsh-am, Rollins, Burford & Ryburn and Albert B. Hall, all of Dallas, and John T..Suggs, of Den-ison, for defendant in error.
   RYAN, J.

This is .the second suit growing out of the attempt of Eastland county to recover certain funds on deposit in the Security State Bank & Trust Company, at the time the bank closed its doors and its affairs were taken over by the commissioner of insurance and banking.

Eastland county first filed its action in the district court of Eastland county against the Security State Bank & Trust Company, the commissioner of insurance and banking, and Jl R. Burnett, special agent of the commissioner, to establish as a general deposit certain of its funds, and Lave them classified as claims entitled to be paid out of the depositors’ guaranty fund. In substance, the petition alleged that on August 3, 1921, the defendant bank had complied with the provisions of the bank deposit guaranty statute, in that its unsecured noninterest-bearing deposits were protected by the depositors’ guaranty fund; that on that date (when the commissioner closed the bank for liquidation) the county had on deposit in said bank $629,847.-42, which was protected by said fund, for which it filed its claim, which the commissioner rejected.

The facts in that case were: On February 14, 1921, the commissioners’ court of East-land county designated the Security State Bank & Trust Company as the county depository, and said bank entered into bond as required by law; on April 14, 1921, one of the sureties on said bond requested to be released, and the commissioners’ court made an order requiring the hank to furnish a new bond, which was tendered and accepted on the same day. Subsequent to the approval of said bond, several of the sureties thereon suffered heavy financial losses, as a result of which, the county judge, on July 12, 1921, by letter advised the bank that the commissioners’ court “finds that the bond is insufficient, and yon are notified to tender said court a good and sufficient bond, and that the funds belonging to the county will be immediately withdrawn, unless the same is placed in noninter-est bearing account protected by the 'State Guaranty Fund.”

The bank immediately replied, addressed to the commissioners’ court: “This is to advise you that we will secure just such a bond as your body will deem adequate, and in the meantime we have placed the funds of this county on a noninterest bearing basis, which deposit, under the terms of the banking laws, is protected by the Depositors’ Guaranty Fund of the State of Texas.”

The county subsequently thereto deposited $85,557.83 in the bank, some of it on the day before the bank closed. When the bank closed, on August 2, 1921, the county had on deposit in said bank two items, one of $556,535.15, and the other $73,312.27, making a total of $629,847.42 as sued for.

The district court rendered judgment in favor of the county establishing and classifying its claims, as unsecured, noninterest-bear-ing deposits, secured by the guaranty fund, and directed payment accordingly.

On appeal by the commissioner of insurance and banking, the Court of Civil Appeals at El Paso held that the attempt of the commissioners’ court in agreement with the bank’s officers to transfer the funds to a noninterest-bear-ing account within the guaranty fund statute was futile, and the deposits still remained secured and interest bearing, and therefore not chargeable against the guaranty fund. In that respect the trial court’s judgment was reversed and rendered by the Court of Civil Appeals in favor of the commissioner of insurance and banking. Chapman v. Eastland County, 260 S. W. 889.

Writ of error was granted by the Supreme •Court and referred to this section of the Commission of Appeals. We held, speaking through Judge Speer, that on July 12, 1921, when said letters were written and the bank attempted to place the funds in a noninterest-bearing account protected by the guaranty fund, the bank was hopelessly insolvent. “Under these facts,” said Judge Speer, “the questions arise, first, was Eastland County a depositor in the Security State Bank & Trust Company, within the protection of the depositors’ guaranty fund, as to the total of $629,847.42; and; if not, second, was East-land County entitled as such depositor to protection for payment out of that fund as to the $85,557.83 deposited after the agreement referred to? We are of the opinion that the first question should be answered, ‘No,’ and the second one, ‘Yes.’ ”

The contention there was that although Eastland county -was not under the statute entitled to protection under the original arrangement with the Security State Bank & Trust Company as its depositary, the county’s status was changed, after the agreement of July 12, 1921, from that of a secured interest-bearing depositor to that of an unsecured non-interest-bearing deppsitor, within the contemplation of the statute.

It was held by Judge Speer that the attempted change by a depositor from an interest-bearing deposit to a noninterest-bearing one, at a time when the bank was insolvent, would not create the status of “depositor” so as to entitle such depositor to the benefits of the guaranty fund — such attempted change, if given effect, would operate as a fraud. Attention was also called to the Act of February 2S, 1923 (38th Leg. c. 45), amending article 486 of the Revised Statutes, so as to provide that any deposit of public funds, whether interest bearing or not, deposited in a state bank, shall not be insured.

The Commission of Appeals held that as to the item of $85,557.83 deposited after the agreement of July 12, 1921, the county came within contemplation of the statute and entitled, to that extent, to payment out of the guaranty fund, but not as to deposits previously made.

Accordingly, the judgments of the district court and Court of Civil Appeals were reversed, and judgment was rendered by the Supreme Court for the county, establishing the total amount of its claim as such was established by the trial court, but ordering that no part of the same be paid out of the guaranty fund save the sum of $85,557:83 so deposited after July 12, 1921. 276 S. W. 654, 655; 277 S. W. 629.

The judgment entry was afterwards modified so as to allow a recovery by 'the county from the defendants in error of the costs of the district court, but denying recovery of interest upon the $85,577.83 established as a claim to be paid out of the guaranty fund. 278 S. W. 425.

This judgment for $85,577.83, after it became final, was paid by the commissioner of insurance and banking to Eastland county; in the liquidation of the bank, further sums amounting to $133,250.94 were paid the county out of the bank’s general assets.

After the decision by the Court of Civil Appeals, but before any action was had in the Supreme Court (writ of error having been granted), Eastland county, pn July 3, 1925, filed the present suit against the City National Bank, the Security State Bank & Trust Company, Charles O. Austin, the then commissioner of hanking of the state of Texas, and the several sureties on bonds Nos. 1, 2, and 3 named below, to recover from said banks and said sureties the amount remaining uncollected on the county’s judgment against the Security Bank & Trust Company, obtained in the former suit.

It appears from this record that in February, 1919, the American National Bank of Eastland was designated as the county’s depositary for the statutory two years’ term. In June, 1920, the county had a large sum of money derived from the sale of an - issue of road bonds, as a special fund. The American National Bank refused to act as depositary for that special fund, whereupon the City National Bank was elected such special depositary, and it agreed to pay the county 4.52 per cent, interest on daily .balances, and executed to the county five surety bonds aggregating $330,000 in ¾-mount; such surety bonds and the respective amounts signed by each were: Southern Surety Company, $30,000; National Surety Company, $100,000; Fidelity & Deposit Company of Maryland, $40,000 and $100,000, respectively, on the two bonds executed by it; and the United States Fidelity & Guaranty Company, $60,000. These sureties are herein referred to as corporate sureties and the bonds executed by them, collectively, as bond No. 1.

In November, 1920, the assets of the City National Bank were taken over and all its liabilities assumed by the Security Bank & Trust Company. At that time the county had' on deposit with the City National Bank, according to its books, the sum of $662,436.55, which credit was carried forward in the books of the Security Bank & Trust Company. Although no official recognition of this change of special depositary was made by the county, its authorities proceeded to deal with the Security Bank, as they had dealt with the City Bank, depositing therein proceeds from the sale of road bonds, and receiving monthly statements of the condition of the county’s account, and accepting credits each month for the amount of interest due on daily balances, in accordance with the City Bank’s contract with the-county. This arrangement continued, with the American National Bank remaining as the general depositary, until February, 1921, when, under the statute, a new depositary for the ensuing two years was required to be designated. In due course, after bids were advertised for, the Security State Bank & Trust Company was so designated as county depositary, under a contract to pay $5.65 per cent, interest on. daily balances. As such depositary it delivered to the county its statutory bond in the sum of $750,000 with S. D. Young, Edwin I-Iobby, D. E. Waggoner, Geo. W. Riddle, W. I-I. Gaston, Clarence Linz, Joe Burkett, and Allen D. Dabney, as sureties. This bond, herein referred to as bond No. 2, was approved by the commissioners’ court on April 13,1921. v

On April 14, 1921, S. D. Young applied to the county to be relieved as a bondsnian, and the Security Bank filed a now bond, which was approved by an order dateddMay 30, 1921, with C. T. Barringer, J. S. Mullen, R. A. I-Iodges,. M. I-I. Smith, Edwin Hobby, R. L. Hunt, Joe Burkett, and Allen D. Dabney, as sureties. This was in the same amount as bond No. 2 and in the exact language thereof, and ufill be herein referred to as bond No. 3.

Upon trial by the court below, without'a jury, after James Shaw, commissioner' of banking, had been substituted as a party to the suit in place of his predecessor, Chas. O. Austin, and Edwin Hobby and R. L. I-Iunt. sureties (both then deceased) eliminated as parties, and recovery denied against the Lion Banking & Surety Company and W. G. Kelly, its receiver, and also denied against the heirs of W. I-I. Gaston, another deceased surety, judgment was rendered for the county: (1) Against the Security State Bank & Trust Company and the sureties on bond No. 3 (except Edwin I-Iobby and R. L. Hunt) for the sum of $355,587.88, with interest from August 3, 1921, at the rate of 5.65 per cent, per an-num, and costs of suit; (2) against the sureties on bond No. 2 (except Edwin Hobby, W. I-I. Gaston, and Allen D. Dabney) for the sum of $175,336.63, with interest from date of judgment, at the rate of 6 per cent, per an-num, and costs of suit; (3) against the City National Bank for the sum of $187,141.01, with interest at the rate of 4.52 per cent, per annum, and costs of suit; and against the sureties on bond No. 1, for the following amounts, with interest from August 3, 1921, at the rate of 4.52 per cent, per annum and costs of suit, viz.: United States Fidelity & Guaranty Company, $60,000; National Surety Company, $100,000Southern Surety Company, $30,000; and Fidelity & Deposit Company of Maryland, $140,000.

It was further adjudged that the county be entitled to but one satisfaction of its judgment, and when the amount of $355,587.88, together with interest and costs shall have been paid, the same shall constitute a complete satisfaction thereof, also that subrogation be awarded the different groups of sureties in the inverse order of their bonds.

The Court of Civil Appeals at Eastland reversed the county’s judgment against the corporate sureties on bond No. 1 and rendered judgment in their favor; affirmed the trial court’s judgment against the’ defendants who did not appeal; and in all other respects reversed such judgment and remanded the cause for a new trial. 12 S.W.(2d) 662.

Opinion.

1. The Court of Civil Appeals correctly decided that the county was not entitled to any recovery against the corporate sureties on bond No. 1.

Bond No. 1 was given to secure certain special funds realized from the sale of an issue of good roads bonds, deposited with the City National Bank, which had become the county’s special depositary therefor, under the provisions of article 2443a, added to the Revised Statutes of 1911 by Act of the Legislature approved February 12, 1917 (Gen. Laws, 25th Leg., c. 11). In November, 1920, these funds, with other assets of the City National Bank, were by it turned over to the Security Bank, which assumed all the City Bank’s liabilities and the county’s warrants against such funds were paid by the latter bank, but so long as the funds were properly accounted for, it is immaterial whether the City Bank retained their physical possession or placed them elsewhere.

The Court of Civil Appeals finds, and the proof shows, that the City Bank had on deposit when its assets were taken over by the Security Bank, the sum of $282,436.55 (not including school funds which are not involved in this litigation), and by the 16th day of March, 1921, the county had withdrawn in the regular course of business sufficient funds to total that amount. No deposit was -made by the county in the City Bank after November 24,1920.

The funds, while special in the sense that they were set aside for special purposes by the county, were, so far as the depositary bank was concerned, a general deposit repayable by the bank on demand of the county, as called for, in any current money (Young v. Bundy [Tex. Civ. App.] 158 S. W. 566); the bank had the right to mingle it with other money deposits (Marine Bank v. Fulton County Bank, 2 Wall. 252, 17 L. Ed. 785), and the title to the money passed from the depositor to the bank, which became debtor to the depositor in a like amount. Baker v. Kennedy, 53 Tex. 200; First State Bank v. Shannon (Tex. Civ. App.) 159 S. W. 398; First Nat. Bank v. Abernathy (Tex. Civ. App.) 153 S. W. 349. The obligation of the bank was to pay on the demand of the depositor, but not to keep and return the specific bills received. 7 C. J. p. 628.

This being true, the payments made by the bank — no formal application thereof having been made by either the county or the bank — should be credited according to priority of time, liquidating the oldest Items first, as was correctly held by the Court of Civil Appeals (City National Bank v. Eastland County, 12 S.W.(2d) 662, 667), citing the following authorities: McLendon Hardware Co. v. Black (Tex. Civ. App.) 264 S. W. 1011; International Shoe Co. v. Kaufman (Tex. Civ. App.) 270 S. W. 1109; Friedman-Shelby Shoe Co. v. Davidson (Tex. Civ. App.) 189 S. W. 1029. To the same effect, see Bitter v. Dexar County (Tex. Com. App.) 11 S. W.(2d) 163, 166.

It is further Shown by the record that when the Security Bank became the general depositary in February, 1921, all of the county’s funds were placed in the same general account and vouchers drawn against it. Then on April 22, 1921, although no formal order requiring that to be done was made by the county commissioners’ court, a new account was opened to the county treasurer’s credit called the “Ed S. Pritchard Special Collection Account,” in which was credited practically all the county’s deposits made after that date, so that there were then two accounts, one being the general account, which included the old money, and the “Pritchard Special Account,” which included only deposits made after April 22, 1921.

The county continued regularly to draw warrants against the bank, which were all’ charged against the old account until on June 21st this old account, which included the original deposit in the City National Bank, had been reduced to $5,412.36, and on the next day warrants for more than $13,-000 were drawn and paid out of said account, after- the Pritchard special account was transferred thereto.

The parties themselves acted upon the assumption that such payments were being made according to the said legal rule of application of payments, and when the old balance was exhausted, the new, or Pritchard special account, was turned into the old account.

It follows, therefore, that the county has no cause of action against the City National Bank and its corporate sureties on bond No. 1.

2. When in February, 1921, the Security Bank was designated as the general county depositary and succeeded both the American National Bank of Eastland (which had theretofore been the county depositary) and the City National Bank (theretofore the special depositary), it became the depositary of all the county’s funds, general and special.

The point that under article 2444, Rev. St. 1911, as amended by section 3, chap. 11,-Acts 1917, the comptroller of public accounts must have approved bond No. 3 before it could become effective, seems not to have been raised in the trial court nor in the Court of Civil Appeals by any of the parties and was injected into the case for the first time by that court. All parties treated that bond as having been properly approved, but the Court of Civil Appeals held that they are required to give effect to such provision as to approval by the comptroller, and because the record is silent on that question, the burden devolved upon the bondsmen on bond No. 2 who sought relief from their obligations on the ground that bond No. 8 had been substituted therefor, to show such-approval by the comptroller.

The record is likewise silent on the question of whether the comptroller approved bond No. 2, but as to this the Court of Civil Appeals found liability on the ground that statutory provisions with reference to approval of bonds are made for the protection of public funds and not for the benefit of sureties and that sureties who execute a bond, upon the faith of which public funds . are delivered to their principal, cannot defend against liability on the bond on the ground that same had never been approved.

The Court of Civil Appeals therefore concluded that if bond No. 3 was never approved by the comptroller, the sureties on bond No. 2 remained liable for the defaults of the bank. This seems illogical to us; the same reasoning applied to both bonds, and if liability exists on bond No. 2 for the reasons given by the Court of Civil Appeals, likewise liability should, exist on bond No. 3.

Article 2444 provided: “As soon as said bond be given and approved by the commissioners’ court, and the State Comptroller of Public Accounts, an order shall be made and entered upon the minutes of said court designating such banking corporation, association, or individual banker, as a depository of the funds of said county until sixty days ■after the time fixed for the next selection of a depository,” etc.

No specified or formal manner is prescribed for the comptroller’s approval; it and that of the commissioners, if required, were antecedent things to be done but the final and effective act in the procedure is the formal order of the commissioners’ court entered upon the court’s minutes, designating the depositary; into it Was merged the antecedent proceedings and it must be conclusively presumed, in the state of this record, that everything required to be done, was done. It was only after approval of the bond by the commissioners’ court and the state comptroller, that such order designating a depositary could be made, and this was required to be formally done and entered upon the minutes.

We therefore hold that bond No. 3 as well as bond No. 2 was enforceable.

3. As correctly held by the Court of Civil Appeals,, statutory provisions with reference to the approval of bonds are made for the protection of public funds, and not for the benefit’ of the sureties,' and a surety who executes a bond and delivers it to the proper authorities, and" upon the faith of which public funds are delivered to the principal, cannot defend against liability on the bond on the ground that same had never been approved. 12 S.W.(2d) 662, 670.

As said by the Supreme Court of Missouri, in School District v. Security Bank, 26 S. W.(2d) 785, 792: “By signing and delivering the bond, the sureties, including appellants, intended that the bank should become such a depositary. That act enabled the bank to get hold of one-eighth of plaintiff’s funds. ⅜ * ⅞ engagement of the sureties on the bond in suit was to stand sponsor for the bank — to answer for its default. That default could arise whether the bank was a , depositary de facto, or de jure. That default has arisen, and appellants, as sureties on the bond, must answer therefor.”

Unless the statute expressly declares that a bond not executed in the form prescribed shall be void, the statute will be construed to be directory only and a substantial compliance with it will suffice. Mechem on Public Officers, § 268. That it was not approved by the designated officers, if acted on, is im- ' material. Id. § 269.

Mr. Murfree, in his work on Official Bonds, section 59, says: “It is safe to say, however, that no law which requires of an. official person the duty of examining and approving an official bond can be so far mandatory as that his neglect to discharge his duty, can release the obligors from the liability they incur by its execution, if under it, the office has been assumed and duty performed, or neglected.”

This rule is approved by Chief Justice James in Harper v. Golden (Tex. Civ. App.) 39 S. W. 623. See, also, 29 Cyc. 1452; 9 C. J. 25. In Burnett v. Henderson, 21 Tex. 589, and King v. Ireland, 68 Tex. 685, 5 S. W. 499, sureties were held estopped from denying the official character of their principal.

In this character of bond, the statute contains no provision that the bond shall be void, or the principal therein shall not enter Into the functions of his office, unless such bond is so approved; in this respect it differs from tax collector’s bonds, which must be approved, as to state moneys, by the comptroller, and proper commissioners’ court (Rev. St. 1925, art. 7217), and as to county moneys by the commissioners’ court (Rev. Stat. 1925, art. 7249), because the law emphatically prohibits any tax collector from entering upon the discharge of the duties of his office, until “all of the bonds required of him by law for the collection of any taxes, State, county or special, shall have been given and approved.” Article 7251, Rev. Stat. 1925. It is under this essentially different statute that the courts have held the comptroller’s approval necessary in the case of tax collector’s bonds, as in State v. Wells, 61 Tex. 562, and Finch v. State, 71 Tex. 52, 9 S. W. 85, but this rule does not, as we have seen, apply to the bonds in the instant case.

4. Under article 1845, Rev. Stat. 1911, as amended by Acts 1919, p. 24, the county had the statutory right to sue the bondsmen on both bonds, in the same action, they being sureties for the same depositary and the difficulty of determining when the default sued for occurred, and which set of sureties were liable therefor, having been properly alleged in the petition, there was therefore no misjoinder of parties. Harris County v. Charlton, 112 Tex. 19, 243 S. W. 460, 245 S. W. 644; Skipwith v. Hurt, 94 Tex. 322, 60 S. W. 423.

5. Sureties on bond No. 2 contend that whatever claim the county may have against them is 'barred by the statute of limitation of four years, in that bond No. 3 was accepted and approved by the county and became a substitute for bond No. 2 more than four years before this suit was begun; that the county’s cause of action against the sureties on bond No. 2 matured on either April 14, 1921 (when bond No. 3 was first approved), or on May 30, 1921 (when formal order of approval was entered in the minutes of the county commissioners’ court), and this suit was not begun until July 3, 1925, more than four years thereafter.

The county’s reply to such plea of limitations is that the statute “does not run against a county when acting in a governmental capacity,” and the funds sued for are held and disbursable only in such capacity; this, •because the statute of limitations does not apply to the state orbits governmental agencies.

It is the opinion of the members of the Supreme Court, on the authority of Bitter v. Bexar County (Tex. Com. App.) 11 S. W.(2d) 163; Harris County v. Charlton, 112 Tex. 19, 243 S. W. 460, 245 S. W. 644; and Houston & T. C. Ry. Co. v. Travis County, 62 Tex. 18, that the statutes of limitations are available as against the county’s claim in so far as applicable to the county’s general fund.

County funds are classified into three accounts, viz.: (1) Jury fund, out of which jurors in the district and other courts, including the feeding of jurors, are paid; (2) the road and bridge fund, out of which all scrip issued under the provisions of the road law or for work done on roads and bridges are paid; and (3) the general fund, out of which all the general indebtedness of the county, including feeding and guarding prisoners, and pauper’s claims, are paid. Rev. Stat. 1925, art. 1626; art. 1628.

Counties may cause such other accounts to be kept, creating other classes of funds, as they may deem proper (Rev. Stat. 1925, art. 1629); but these, of course, must be for purposes properly within the purview of counties under -the Constitution, such as school funds and road funds derivable from the issuance of bonds, or from special taxation, and therefore not classifiable as general funds.

Wo therefore hold that the four years’ statute of limitation applies in this case to so much of the county’s claim against bond No. 2 as belongs to the general fund. As to other funds, we hold that no statute of limitations will run in favor of bond No. 2 as to funds belonging to the jury the school, or the road or bridge funds, oi any other fund of like character, such as school district and road district funds.

6. It is also contended that the county’s suit against the bank and the commissioner of insurance and banking, in which the county sought to establish its entire claim as a non-interest-bearing, unsecured deposit, payable out of the guaranty fund, and the pursuit of that claim to final judgment in the Su- • preme Court, constituted an election of remedies which bars the county from maintaining this suit which is based upon the proposition that the account sued on here was secured and interest bearing.

The county had two different rights or subjects of action, one against the bank and insurance and banking commissioner, for the amount deposited after July 12, 1921, as an unsecured noninterest-bearing account, and-therefore protected by the state guaranty fund, the other against the bank and sureties on its bonds as county depositary for the amounts deposited prior to that date. These constituted two different depositary funds. Judge Speer,-in effect, so held in Eastland County v. Chapman (Tex. Com. App.) 276 S. W. 654; Id. (Tex. Com. App.) 277 S.W. 629; Id. (Tex. Com. App.) 278 S. W. 425.

As correctly held by the Court of Civil Appeals, the county never had two remedies on any portion of its deposit in the bank. For the money deposited (unsecured and noninter-est bearing) after July 12, 1921, no right of action existed against the bond sureties and no right of action existed against the guaranty fund for moneys deposited prior to that date. In the former case, the remedy was against the guaranty fund; in the latter, against the makers of the bonds. The two obligations were entirely different.

The county undertook to protect itself by filing two claims with the commissioner, one as a secured and the other as an unsecured depositor., It then sued the commissioner on the theory that the entire deposit was unsecured. That was a fancied remedy as to the secured deposit, which remedy never existed, as held by Judge Speer, and the .futile pursuit of it, either because the facts turn out to be different from what the plaintiff supposed them to be, or the law applicable to the facts is found to be other than supposed, does not preclude the plaintiff from thereafter invoking the proper remedy (9 R. C. L. p. 9621, but before that suit was finally disposed of in the Supreme Court the present suit was filed.

As said by Judge Powell of this section of the Commission of Appeals, in Poe v. Continental Oil & Cotton Co., 231 S. W. 717, 719, “the higher courts are a unit in support of the proposition that the doctrine [election of remedies] does not apply unless the claimant actually has two valid and available remedies at the time he makes his election,” quoting with approval Bandy v. Cates, 44 Tex. Civ. App. 38, 97 S. W. 710, 711, where Judge Key uses the following language: “His supposition that he had a particular remedy and his effort to enforce it is immaterial and does not constitute an election, unless the remedy in fact existed.”

If, as held by Judge Speer, the county is not entitled to the relief sought in the other suit, as against the guaranty fund, its action in that case did not constitute such election as would cut it off from its right to recover on the bonds. Bandy v. Cates, 44 Tex. Civ. App. 38, 97 S. W. 710; Brodkey v. Lesser (Tex. Civ. App.) 157 S. W. 457; Bierce v. Hutchins, 205 U. S. 340, 27 S. Ct. 524, 51 L. Ed. 828.

The holding in First State Bank v. Collier (Tex. Com. App.) 23 S.W.(2d) 716, is not inconsistent with the doctrine above announced. There the bank, with a subscribed and paid-up capital stock of $100,000.00, afterwards increased to $150,000, operated under the guaranty fund plan provided by Acts of the 2d Called Session of the 31st Legislature, to secure its depositors; afterwards in April, 1926, the bank amended its charter so as to change the form of securing its depositors to the bond security plan as permitted by act of the 39th Legislature, Regular Session; the capital stock was then decreased to’$100,000. The amount of the reduced capital stock was not withdrawn, but passed to the surplus in the bank and used as assets in its liquidation. On May 6, 1926, the bank delivered to the banking commissioner by way of pledge and to secure its depositors, $100,000 in United States bonds, which the commissioner approved, said bonds having been previously approved by the county judge of Lamar county. No bond or policy of insurance was ever filed with the commissioner. The United States bonds deposited on May 6, 1926, were purchased by the bank with its “bills receivable.”

The bank went into liquidation on May 26, 1926, in charge of the banking commissioner. The United States bonds deposited with, him were sold, and Collier with the other unsecured depositors accorded preferential payment from the proceeds, upon the commissioner’s assumption that there had been a valid change in the securing of such depositors from the guaranty fund plan to the bond security system. Such depositors, when they received such payments, were notified that the sums paid them by the commissioner were the proceeds of the securities deposited with him by the bank under the bond security system. The appellees in that suit accepted such payments and made no protest against the bank being liquidated under the bond security system. They received a further dividend out of the bank’s general assets, and not until long afterwards did they set up the claim that the bank’s effort to change from the guaranty fund plan to the bond security system was ineffective because of failure to comply with the statutes regulating such change. It was further shown that appellees received the same amount on their claims as they would have been entitled to had every step taken by the bank in making such change been in strict compliance with the statute. It was correctly held, also, that under the bank guaranty law a bank could not be a bond security bank and at the same time have its depositors protected under the guaranty fund plan.

By proving their claims against the bank as a bond security bank and receiving payment thereon, the depositors in question recognized the validity of the transfer made by the bank from the guaranty fund plan to the bond security system and yvaived their right to denounce such transfer as unlawful.

In Tyler County Bank v. Shivers (Tex. Com. App.) 6 S.W.(2d) 108, the depositors had presented their claims to the commissioner of banking as common creditors and afterwards sought to impress a trust upon the assets of the bank. This section of the commission properly held that the remedies are inconsistent and in the absence of fraud or mistake, with full knowledge of all the circumstances, an election of one precludes the pursuit of the other.

In those cases the election was made with Cull knowledge of all the circumstances and with reference to only one fund or character of fund; here there were two funds of different character and with different applicable remedies.

7. Certain of the plaintiffs in error insist that even if the county is not barred by an election of remedies, it is estopped by judicial admissions made in the former suit of East-land County v. Chapman, Comm’r, also that the. judgment therein is res judicata here.

A party will not be allowed , in a subsequent judicial proceeding to take a position in conflict with a position taken by him in a former judicial proceeding to the prejudice of the adverse party—the parties ánd the questions involved being the same. Smith v. Chipley, 118 Tex. 415, 16 S.W.(2d) 269; 10 R. C. L. 702. Rut, "in this ease the issues and the parties are not the same as in the former or original suit. The sureties were not parties to the original suit and the issues presented in this case were not there adjudicated against the county and in favor of the sureties. The identical “thing adjudged” there was not adjudged here. 34 Cyc. 1666.

As stated in 34 C. J. 806: “Where a plaintiff is defeated in an action upon a certain theory of his legal rights or as to the legal effects of a given transaction or state of facts, through failure to substantiate his view of the case, this will not as a rule preclude him from renewing the litigation, without any change in the facts, but basing his claim on a new and more correct theory. This rule applies ⅜ * * where plaintiff alleges a different ground of liability on the part of defendant.” This doctrine is approved in Downing v. Diaz, 80 Tex. 455, 16 S. W. 49, wherein it was held that a party suing unsuccessfully as heir of Jacinto Cuellar, for the recovery of land, could thereafter sue for the same land, as heir to Joaquin Cuellar —the judgment in the former suit did not operate as a bar “for he now sued in a different right.”

As correctly held by the Court of Civil Appeals, there are not sufficient facts shown in this record to support an equitable estoppel, and no such injury is shown to have resulted to the sureties as would estop the county in the present case (thus releasing the parties who were actually liable), in the absence of a clear showing of injury.

The Court of Civil Appeals also correctly held that the sureties were not released by the attempt of the county to change the deposit from a secured to an unsecured account after July 12; 1921.

Such attempted change, so far as moneys deposited prior to that date are concerned, was not' effective and did not effectuate such change of status. Eastland County v. Chapman (Tex. Sup.) 276 S. W. 654.

We agree with the Court of Civil Appeals that the defense of discharge of sureties by change of contract is not in this case at all, for the further reason that the sureties did not guarantee the performance of any contract between the county and its depositary, but only the acts and conduct of the depositary. 12 S.W.(2d) 662, 673.

8. Bonds Nos. 2 and 3 were both conditioned that the bank shall faithfully perform all the duties and obligations devolving upon it by law, as the county depositary for Eastland county, and shall pay upon presentation all checks drawn upon it by the county treasurer, that the county funds shall be faithfully kept and accounted for according to law, shall in every respect comply with all requirements of the acts of the Legislature and perform each and all of the conditions contained in and discharge all the duties imposed by said acts.

The obligation being, among others, that the county funds shall be faithfully kept and accounted for, means that the bond was intended to cover not only funds subsequently deposited, but those already deposited, as well.

The obligors on bond No. 3 therefore are liable to the county for all funds, Pritchard v. National Surety Co. (C. C. A.) 2 F.(2d) 591, on deposit with the bank at the time it closed its doors and ceased to pay those deposits, not to exceed the amount of the bond.

The obligors on bond No. 2 are liable to the county (not exceeding its amount) to the extent of any default which occurred prior to the approval of bond No. 3, less any payments made thereon by the bank under the doctrine of appropriation of payments above discussed in connection with the obligations on bond No. 1, and less any amounts barred by limitations as above stated, and any recovery against the qbligors on bond No. 2 should be credited (when paid) against the recovery on bond No. 3. Loyd v. City of Fort Worth, 82 Tex. 249, 17 S. W. 612; 29 Cyc. 1458; C. J. 1073 (§ 409), 1082 (§ 441); Murfree, Official Bonds, §§ 219, 636, 680, 794; Mechem on Public Officers, § 287.

The county is, of course, entitled to but one satisfaction of its judgment, and the obli-gors on bond No. 3 are entitled to recovery over against those on bond No. 2 for any part of the latter’s obligations, if any, the former may be compelled to pay.

,9. The statute (Rev. Stat. 1925, art. 5072) provides that all judgments of courts of this state shall bear interest at the rate of 6 per cent, per annum from and after the date of the judgment except where the contract upon which the judgment is founded bears a specified interest greater than 6 per cent, and not exceeding 10’ per cent, per an-num, in which case the judgment shall bear the same rate of interest specified in such contract, after the date of such judgment. Therefore, because the obligations sued on bear a contract interest rate of less than 6 «per cent, per annum, interest thereon should be calculated at the contract rate until the date of judgment; the judgment to bear interest at the rate of 6 per cent, per annum after its date. Sheldon v. Martin (Tex. Sup.) 8 S. W. 61; Galveston County Drainage District v. Foster (C. C. A.) 284 F. 932.

We recommend that as against the defendants in the trial court who did not appeal, the judgment be affirmed; that the judgment of the trial court in favor of the county against the corporate sureties on bond No. 1 be reversed and judgment rendered in their favor, and that in all other respects the judgment of the trial court be reversed .and the cause remanded for a new trial in accordance with this opinion.

CURETON, O. J.

Judgments of the district court and Court of Civil Appeals are both in part affirmed, in part reversed and rendered, and in part reversed and remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the question discussed in its opinion.


source: Caselaw Access Project

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

license: Public Domain

text:
    PITTS et al. v. CAMP COUNTY et al.
    No. 1269—5680.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.

      Moses M. Smith, of Pittsburg, and S. P. Jones and Franklin Jones, both of Marshall, for appellants.
    J. D. Bass and J. A. Guest, both of Pitts-burg, and J. A. Ward, of Mt. Pleasant, for ap-pellees.
   SHORT, P. J.

The following statement and questions comprise the certificate from the Court of Civil Appeals of the Sixth district:

“W. H. Pitts signed, acknowledged and delivered the following deed:
“ ‘The State of Texas
“ ‘Camp County.
“ ‘Know all men by these presents:'
“ ‘That I, William H. Pitts of the County and State aforesaid, for and in consideration of the sum of Ten Dollars to me in hand paid by W. R. Barnes, presiding' justice of the county court of said County, the receipt whereof is hereby acknowledged, before the signing and delivery of these presents, and for tlie further consideration that the County Seat of said county was located in the town of Pittsburg at an election held on the 20th day of June, A. D. 1874, have granted, bargained, sold and conveyed, and do by these presents grant, bargain, sell and convey unto the said W. R. Barnes, presiding Justice as aforesaid, and his successors in office the following described lots or parcels of land lying, situate and being in the town of Pittsburg, in said County, to-wit: Lots Nos. 6, 7, 8, 9, and 10, each 40 feet wide and 110 feet long, bounded on the north by Church Alley, on the south by Jefferson Street, east by lot No. 11, and west by lot No. 5, as a place for erecting the courthouse, and any other public buildings which may be necessary for said County of Camp.
‘“To have and to hold > the above described lots together with all and singular the right's and hereditaments and appurtenances to the same in any manner appertaining unto the said W. R. Barnes, presiding justice as aforesaid, and his successors in office, for the use aforesaid forever.
“ ‘And I do hereby bind myself, my heirs, executors, and administrators and assigns forever to warrant and forever to defend the right and title in and to the above described premises to the said W. R. Barnes, presiding justice as aforesaid, and his successors in office against all persons whomsoever lawfully claiming or to claim the same or any part thereof.
“ ‘Nevertheless, the condition of this conveyance is such that if the county seat should be hereafter removed to any place in the said county, then, and in that case, this obligation shall be null and void, and the property herein conveyed shall revert to the said W. H. Pitts, his heirs or assigns.
“ ‘In testimony whereof I .hereunto set my hand and affix my seal, using a scroll for seal. This 1st day of August, A. D. 1874.
“ ‘[Signed] Wm. H. Pitts.’
“The deed was duly filed for record September 28, 1874.
“II. The appellants, who are the heirs of W. H. Pitts, deceased, instituted this suit against Camp County and the City of Pitts-burg for the recovery of Lots 6, 7, 8, 9 and 10, which are the lots designated in the above deed. The suit was in the form of trespass to try title and to remove cloud from title. Besides other allegations in the petition, the above mentioned deed was set out and the following averment was made:
“ ‘Petitioners show that'by said instrument the said W.'H., Pitts dedicated and intended to dedicate said land to the use of the County of Camp, for the sole, specific use and benefit of said Camp County for the erection of a courthouse, and other public County buildings and for no other purpose and intended, as therein expressed, that in the event said County site should be removed to any other place in said County than said property, that the right to use and occupy said property should cease forever and said property should revert to said W. I-I. Pitts or his heirs. That said grant did not pass, was not intended to pass the fee in said land, but only the use for the specific use as a site for the courthouse and other County buildings for said County, and that the effect of said instrument was intended to and was and is, that for the specific use aforesaid alone the County of Camp by and through its proper officers could and did accept the said grant of the said property to be used for a courthouse site, and for the necessary County public buildings, and did erect a Courthouse thereon soon after obtaining said contract of dedication, and for the building for the County Officers, and continued to so use said land and premises until about the first day of February, 1929, -when, having obtained other lots and parcels of land therefore and desiring and intending (to) abandon the site, place and property, it erected and built a new Courthouse with all the offices for all the County Officers of said County; the said County having removed the seat and sit'e and location of the Courthouse from the said described land, the said County after so building said new Courthouse on another and different tract and parcel of land at another and a different place, discontinued the use of said granted and dedicated tract of land above described, for the purposes for -which it was dedicated and accepted, and abandoned the same as to such purposes, and removed all the County Officers, and all County Furniture to the new site, on a different tract and into a •new Courthouse thus differently situated-.’
“The appellees pleaded, besides other matters, that:
“ ‘These defendants further allege that at the time of the holding of said election for the location of the county seat for Camp County, Texas, and at the time of the execution of the foregoing mentioned deed and conveyance to •the said W. R. Barnes, the said W. H. Pitts was the owner of practically all of the land on which the City of Pittsburg was then located/and on which it is now located; that it was the purpose and intention of the said W. H. Pitts and the principal moving consideration actuating him in making the said conveyance to locate the county seat of Camp County at Pittsburg and thereby enhance the value of his lands and to make Pittsburg in Camp County the principal town of. Camp County for the purpose of profit to himself by' making his lands more valuable and creating a demand and market therefor and to maintain and retain the county seat at Pittsburg until and so long as it was necessary to enable him to sell and dispose of his lands and properties in Pittsburg at an enhanced and increased value.’
“ ‘These defendants further allege that the condition of defeasance set out in the said conveyance has not been broken by the said Camp County nor by the said W! B. Barnes nor any of his successors in office, but that the County of Camp has built, with the aid and assistance of the city of Pittsburg, a municipal corporation, which furnished a part of the financial assistance for the erection thereof, a modern two-story brick building for the purpose of furnishing a ladies’ rest room for the citizenship of Camp County and a gents’ toilet and a grand jury room on the up-stairs floor, and has permitted the city of Pittsburg, in consideration of financial aid from the said city, to use and occupy a part of the said building as a fire station and public building necessary for Camp County and the citizenship of the said county of Pitts-burg, and to occupy the same by the fire chief and the fire engines of the said city.’ • ..
“ ‘These defendants further allege that the county seat has been maintained at Pittsburg • in said county since 1874; that immediately after the deed of conveyance was so executed by W. H. Pitts, Camp County constructed a brick courthouse and jail thereon, at that time a modern courthouse and jail for a county of the size of Camp, and the said .county used, occupied and maintained the said courthouse and jail on the property herein in controversy exclusively until the building of the .present courthouse, as alleged by plaintiffs, for the full period of more than 54 years, and the said county has never at any time concluded to abandon the said property and has never at any time yielded its possession thereof, but has at all times claimed to own the said property in fee simple and now claims the title to the said property in fee " simple; that the condition of defeasance stated in said deed was-placed there for the purpose of protecting the said -W. H. Pitts, in maintaining and causing the county to maintain and continue the county seat at Pitts-burg for the enhancement of his property for the general upbuilding of the town of Pitts-burg and for the welfare in a financial way of himself and family, and that by reason thereof and the continued úse of the said property for the great length of time and by reason of the disposition of the properties of the said W. H. Pitts and his heirs in the said county the necessity for the condition of defeasance has long past. Pittsburg is now a town of about 1S00 or 2,000 inhabitants, and is more than five times in size any other town or village in the county.’
“Camp County further asked for the removal of cloud from its title.
“III. The case was tried before the court without a jury on April 4,1920, and, upon the written request of the plaintiffs filed during the term, the court made the following findings of fact:
“ T. I find that from a time prior to 1872 up until his death about 1898, W. H. Pitts was a citizen in Camp County, Texas, and in 1874 owned quite a large quantity of land in Pittsburg in Camp County, both in town lots and in country property, a part of which the town of Pittsburg is located on and the balance adjacent thereto, and in addition to that . he owned land in the country 2, 3 and 4 miles from Pittsburg.
“ ‘2. I find that W. H. Pitts died about 1898 and left surviving him a son, Dr. T. N. Pitts, and a daughter, Mrs. Ella Plateau, and that Dr. T. N. Pitts died about 1907 and that Mrs. Viola Pitts is the surviving widow of Dr. T. N. Pitts and the other plaintiffs are the heirs of the said Dr. T. N. Pitts other than Mrs. Ella Plateau.
“ ‘3. I find that In April, 1874, Camp County was created by an Act of the Legislature from a part of Upshur County, and the act provided for the holding of an election for county officers and for the location of a county seat for Camp County.
“ ‘4. I find that under the said act creating Camp County there was an election legally held on June 20, 1874, for the election of county and precinct officers and for the location of a county seat, and that at said election three places in Camp County were voted on, viz.: -Pittsburg, Leesburg, a point about 6 miles west of Pittsburg, and Center Point, about three or four miles S. E. from Pittsburg, and that as a result of said election 500 votes were cast for Pittsburg as the county seat, 228 votes were cast for Leesburg as the county seat, and 69 votes were cast for Center Point as the county seat of Camp County.
“ ‘5. I find that at the time of said election W. H. Pitts and his family lived and resided in Pittsburg, and that he had 20 or more lots of land upon the street in Pittsburg on which the land in controversy herein is situated, being business lots that had been laid off and a plat made thereof and the lots were 26 feet by 110 feet both on the north side and the south side of the main street, which is called Jefferson Street, running south and adjacent to the land in controversy for two blocks west, and from thence west it is called Quit-man Street; that the plat of said town at the time showed a street running east and west south from Jefferson Street called Marshall Street, and a street running E. and W. north of the land in controversy called Church Alley, and that Church Alley at its west extremity intersects the continuation of Jefferson Street, which bends about thirty degrees toward the north.
“ ‘6. I find that during the campaign immediately prior to the election W. H-. Pitts made statements that if the county ss&t was located at Pittsburg he would deed to the county the property on which to locate the courthouse and*other county buildings and that his desire was to have the county seat located at Pitts-burg with the expectation and belief that his property would be enhanced in value and a better market would be created for his said property and that he would thereby receive a benefit and profit in the sale of his town and adjacent country property.
“ ‘8. I find that there is no record in the .County Clerk or County Treasurer’s office showing the issuance of any warrant for the sum of Ten Dollars payable to W. H. Pitts which is referred to in the conveyance above copied, and I do not find whether the Ten Dollars was actually paid to W. H. Pitts or not, but I do find that the principal actuating and moving consideration inducing the said W. H. Pitts to make the said conveyance was the location of the county seat of Camp County at Pittsburg and the maintenance and retention of the county seat at Pittsburg for the purpose of enhancing the value of the property owned by the said W. H. Pitts in the town of Pittsburg and adjacent, to the property conveyed in the foregoing deed.
“ ‘9. I find -that the proper authorities of Camp County within a reasonable time after the execution and delivery of the foregoing conveyance erected a brick courthouse on the property so conveyed and also a brick jail house, and that the said courthouse and jail house were kept and all the county offices were kept on this property except a grand jury room and a petit jury room from the time of the erection thereof, about 1874 or 1875 until about 1917 or 1918, when the county, on account of the dilapidated 'condition of the old jail, built a new jail house on property owned by Camp County immediately north of the property in controversy and about 150 feet distant from the old courthouse, and that the old courthouse so built when the property was conveyed to the county has been continuously used by the county officers and all the county business, including the District Court has been conducted in the old courthouse until abo’ut February, 1929.
“ ‘10.' I find that about 1926 the old courthouse was wholly inadequate for the accommodation of jurors and of the grand jury when district court was in session, and that there was no rest room or toilet in connection with the courthouse, and that Camp County and the City of Pittsburg, a municipal corporation, made an agreement whereby each would pay half the expenses o'f erecting a modern brick and concrete building two stories high and about 40 feet square; that the ground floor on the west e'nd was used for a ladies’ rest room and a gent’s toilet, and the east portion of the ground floor was to be used as a place t.o keep the fire truck and apparatus by the city of Pittsburg with the consent of the Commissioners’ Court of Camp County. The upper story was equipped so that the east end would be used for the fire chief, who was the person occupying and caring for the fire truck and engine, and that on the west side of said building was a grand jury room properly equipped for the. sessions ■ of the grand jury 'and a petit jury room properly equipped for petit jurors, and that the said building has been continuously used in connection with the old courthouse for county purposes and was a necessary public building for Camp County.
“ ‘11. I further find that the old brick courthouse on the property in litigation has become cracked and was a dangerous building and was wholly inadequate for. county purposes, and that it has become necessary that a new courthouse be built for the use-of the officers and for court purposes, and that Camp County owned a lot about three hundred feet east and west by 400 feet north and south on which the jail was already located, and that the county commissioners’ court, in the exercise of its authority, in the year 1928 began the erection of a modern new courthouse on the said lot about 200 feet north from the old courthouse; that there is a street about 30 feet wid,e running east and west between the lots in controversy herein and the lot or block on which the new courthouse was erected.
“ ‘12. I find that the new courthouse is equipped with a basement story, a first floor and a second floor and a third floor; that the basement story accommodates the Justice of the Peace and one other office, and that the heating apparatus and fuel compartments are located therein. The first floor contains the County Judge’s room and the County court room, the county clerk’s office, the sheriff’s of.fice, the County Treasurer’s office and County Superintendent’s office. The second floor is occupied on. the east side by the district court room, which is two stories high, occupying the space perpendicularly of the second and third floor, with a balcony at the south end and the Judge’s office in the northeast corner in the rear of the Judge’s stand, and a room for the jury to retire immediately north from the Judge’s stand, and on the west side is the dis.-trict clerk’s office at the northwest corner, and one or two other office rooms and the County Attorney’s office.
“ ‘On the west side on the third floor is a grand jury room fitted for the use of the grand jury and a petit jury dormitory, a place for sleeping quarters and resting ahfl bathing for the petit jurors, and that on the northeast corner of the third floor is a petit jury deliberating room. This new courthouse is equipped with running water and toilets for the accommodation of both white and colored people, and is steam heated.
“ ‘13. I find that the grand jury either of their own accord or at the request of properly constituted authorities, and whether of their own accord or at the request of others or not I do not find, at the present term of court occupied the grand jury room on the second floor of the new building on the lots in controversy.
“ ‘14. I find that the county seat of Oamp County is still located at Pittsburg in Camp County, Texas, where it was located at the election held on June 20, 1874, and that there has never been any effort on the part of any citizen of Camp County to remove the county seat of Camp County to any other place in the county, and that the said lots in controversy have been used, occupied, controlled, and held by the county for more than 54 years.
“ ‘15. I further find that after the completion of the new courthouse in February, 1929, all of the officers of Camp County moved their offices, records and papers in their custody-into the new courthouse, and they now are occupying their quarters in the new courthouse except the County Demonstration Agent, and I do not find where his quarters are.
“ ‘16. I find that the location of the county seat in Pittsburg at the election held on June 20, 1874, did enhance the value of the property owned by W. H. Pitts after deeding off to the county the property in controversy herein, and that at the time of his death he had sold and disposed of all of his business property in Pittsburg except about 6 or 7 lots, which are held by the heirs of his son, T. N. Pitts, in the third block west from the property in controversy, being about 600 feet from the old courthouse on the property in controversy, and X find that the only property held and owned by Mrs. Ella Flateau, the surviving daughter of W. H. Pitts, in the county of Pittsburg is located a quarter of a mile or more south of west from the courthouse and is very little improved. I find that all of the heirs of W. H. Pitts and his son, T. N. Pitts, live away from Camp County except Mrs. Yiola Pitts, the widow of T. N. Pitts, who lives in Pitts-burg something near 600 yards west from the property in controversy and that she holds for life the business lots that were owned by her husband at his death in the third block west from the courthouse and they are small lots and designated on the map as half lots.
“ ‘17. I find that the retaining of the courthouse on the lots of land in controversy herein or a building of the new courthouse on the property north thereof about 200 feet does not in any way affect injuriously or diminish the value or the use of the property owned by the heirs of W. H. Pitts in Pittsburg, and that they have no interest in maintaining the courthouse "bn the lots of land in controversy herein, and they are seeking to recover heréin solely upon the ground of misuser and claiming a forfeiture under the conveyance hereinbefore set out.
“ ‘18. I find that none of the plaintiffs nor any one representing them have.-ojser at any time objected to the building of the jail on the property where the new courthouse is now located, and that it has been, .on .the said property for 12 or more, years, .and that none of the plaintiffs have ever.. objected to the erection, use and- occupation of the new building on the property ip ¡controversy herein that is now being used by the county of Camp for a ladies’ rest room and toilet and by the city of Pittsburg as a fire station, but that thé same was permitted to be erected at the expenditure of .$14,000.00 and used continuously, after .its erection without complaint or objection from the plaintiffs, or any of them, or any representative of them.
“ T9. I find that in erecting the new courthouse it was the intention of the county to abandon the old courthouse and the property described in the plaintiff’s petition for all 'courthouse and jail purposes, and it in fact has so abandoned the same for the aforesaid purposes. But the building thereon’ is being used as a public building by the citizens of Camp County as a public rest room and toilet, and is intended to be so used in the future.’
“Conclusion of Law
“I conclude that the conveyance made by W. H. Pitts to W. R. Barnes, Chief Justice of the County Court of Camp County, must be given such construction as will give full force and effect to all the parts thereof.
“I further conclude that the said conveyance must be strictly construed most favorably for the grantee and against the grantor.
“I conclude that so construing the said conveyance the intention of the parties -viewed from the circumstances surrounding them at the time, and particularly the intention of the grantor, was to convey the property in controversy to Camp County and to place a' restrictive clause therein to prevent the county seat of Camp County being removed to some other place than Pittsburg in Camp County in order that he might reap the benefits of enhanced price and the building up of I’ittsburg and the sale of his remaining property incident thereto, which was the real consideration for the conveyance.
“I further conclude that by placing the restrictive clause in said conveyance providing that the condition of this conveyance is such that if the county seat -should hereafter-be removed to any place in said county, then and in that event this obligation shall become null and void and the property herein conveyed shall revert to the said \V. H. Pitts, his heirs and assigns, was ■ a restriction on the right of forfeiture in the grantor, and that no forfeiture can take place under any circumstances until this condition, subsequent was broken.
“Upon the foregoing facts and conclusions of law I am of opinion that the plaintiffs should not recover and the defendants should recover of the plaintiffs all costs in this behalf incurred and expended, and that Camp County having pleaded the facts and prayed for the title and possession of said property and to have the claims of plaintiffs adjudged a cloud upon the county’s title and that it be removed, such relief should he granted and was by the judgment of the court granted.
“Such I understand to be the holding in Stevens v. G. H. & S. A. Ry. Co. (Tex. Com. App.) 212 S. W. 639, and Olcott v. Gabert, 86 Tex. 121, 23 S. W. 985.
“The above findings have support in the evidence. '
“IV. The trial court entered judgment (1) denying the plaintiffs a recovery, and (2) decreeing that Camp County, on its eross-a.ction, recover as against plaintiffs the title and possession of the lots in suit, as well as removing the cloud on title by reason of the claim of plaintiffs.
“V. Question 1. Did Camp County, in the light of the surrounding circumstances and the purposes sought to be obtained by W. II. Pitts, acquire an indefeasible fee simple title to the lots?
“Question 2. Is the deed above set out •to be construed as one passing the fee simple title to the property, or as one establishing a dedication merely of the property for the particular uses of a courthouse and other public buildings? If it is a deed as one establishing the dedication merely, then has Camp County relinquished its rights to the lots dedicated by permanent abandonment, as done, of its use for purposes of a site for the county courthouse?
“Question 3. Did the trial court err in holding, as he did, that the title to the property did not revert to the heirs of W. H. Pitts, because in the circumstances shown there had been no violation of the reversionary clause of the deed stating, in effect, that should the county seat ever be removed from Pittsburg the property should revert to the grantor, his heirs or assigns?”

Since the parties in their respective briefs agree that the written instrument quoted in the certificate is not ambiguous, and since ,we have reached the same conclusion, much of the oral testimony introduced becomes immaterial. ,

The policy of the law is to render the alienation or transfer of land as free as it is possible to do, where the grantor possesses the legal qualifications to execute such transfer, in the absence of fraud, accident or mistake, and therefore conditions, rendering the transfer inoperative, are not favored by the law.

The trial court found that the $10, named in the instrument as a part of the consideration, was not in fact paid, and so this part of the language, used in the instrument, must be ignored. Where the consideration, moving a grantor to execute a written conveyance of property, is not contractual in its nature, it is permitted to prove the real consideration, the doing of which does not infringe upon the rule that the terms of a valid written instrument cannot be varied by oral testimony. This is especially true, where the oral testimony does not contradict the written instrument, but rather shows what the real consideration is. Lanier v. Foust, 81 Tex. 186, 16 S. W. 994; Taylor v. Merrill, 64 Tex. 494, and authorities there cited.

The language in the instrument “and for the further consideration that the County Seat of said county was located in the town of Pittsburg at an election held on the 20th day of June A. D. 1874,” may be explained by proof of facts elucidating the circumstances pertinent thereto, in existence at the time the instrument was executed.

However, these circumstances must be proven, if at all, by competent testimony and in a way prescribed by legal rules for the introduction of evidence. Testimohy tending to establish a remote inference, where there is no logical connection between the principal fact sought to be proved and the deduction to be drawn therefrom, by reason of such testimony, is never admissible.

The oral statement of William H. Pitts, made on some unidentified occasion at some unidentified time, prior to the election on June 20, 1874, to the effect that he would give the land for the courthouse, if the citizens of Camp county would vote for Pitts-burg as the county seat, was too remote and indefinite to throw any light on the meaning of the language quoted, as used by the grantor in said instrument. This is especially true, in the absence of testimony to the effect that this oral statement had been given general publicity and that it probably had influenced a sufficient number of the voters, who otherwise would not have voted in favor of Pittsburg, to do so..

For the same reason testimony that Pitts had made certain conveyances of land located in the town of Pittsburg, and in its vicinity, prior to the election held on June 29, 1874, was inadmissible to furnish an explanation and meaning' of the language quoted. Certainly the testimony that Pitts had made certain conveyances of land, located in the town of Pittsburg, and in its vicinity after August 1, 1874, could not throw any light upon what he meant by this language used in this instrument dated on that day, in the absence of testimony tending to show he had in mind the intention to make these conveyances at the time he executed the instrument under. discussion.

The circumstances, which might be proven must be pertinent to the language sought to be explained, and to the situation of Pitts at the time he used it. What he may have said or done at some remote period, prior to August 1, 1874, or what he may have done at different times thereafter, which had no visible or open connection with what he did on August 1, 1874, even though sufficient to establish an inference, would be too remote, in aid of the effort to give meaning to the language quoted. Jones on Evidence (3d Ed.) par. 137, p. 181; Wigmore on Evidence) vol. 1, p. 255; Greenleaf on Evidence, vol. 1, p. 81 (Lewis Ed.).

It is an almost universal rule of economics that the market value of property is determined by the extent of the demand therefor and the ability to supply that demand, this market value usually being increased or lessened according as the demand and supply is increased or lessened. In the absence of pleading and proof to the contrary, it is to be presumed that on August 1, 1874, the three towns which had contended for the location of the county seat of Gamp county had existing therein similar conditions, with reference to the law of supply and demand, for property such as William H. Pitts owned in the town of Pittsburg. It is also a matter of common knowledge that where conditions are presumed to exist, such as did exist in Gamp County on that date, the location of the county seat at one of these towns would, under this law of economics, enhance the value of-property at the county seat over similar property similarly situated in other towns. So we conclude that the eighth finding of fact by the trial court, to the effect that the principal consideration inducing Pitts to make the conveyance, was the maintenance and retention of the county seat at Pittsburg for the purpose of enhancing the value of property owned by him therein and adjacent thereto, finds ample support in the circumstances existing at the time the conveyance was made, irrespective of the testimony erroneously admitted, which was introduced by the appellees having for its purpose proof of this fact.

There was testimony introduced by both parties which had the tendency to throw light on the meaning of the language Which we have quoted, and also upon the situation of Pitts at the time he used it in executing the instrument. This' testimony is sufficient to support the following numbered findings of ■fact by the trial judge, to wit: 1-3-4-5-8 and 9.

Giving effect to these findings of fact, supported as they are by testimony, this introduction or preface to the written instrument of August 1, 1874, would seem to be justified: “Whereas the undersigned is a piti-zen of Camp County, Texas, and the owner of considerable real estate located in the town of Pittsburg and its vicinity; and whereas Gamp Oounty has been created by an act of the legislature, which provided for the holding of an election for the location of a county seat for Camp County; whereas said election was held on June 20, 1874, at .which three places were candidates for the location for the county seat for Gamp County; which resiilted in favor of the town of Pittsburg; whereas I am the owner of certain town lots in Pittsburg adjacent to certain other town lots hereinafter described, the latter being in my opinion suitable as a place for erecting a courthouse, and other public buildings which may be necessary to be used by the County of Camp; and whereas I realize that the maintenance and retention of the Cpunty Seat of Camp County at the town of Pittsburg will have the effect of enhancing the market value of property which I now own or may hereafter own there, so long as the county seat shall be so maintained and retained there; now therefore,following which language is the instrument quoted in the (Certificate.

It is a well-settled rule that in construing a contract, evidenced by a written instrument, the intention of the parties is of primary and controlling importance. Texas Farm Bureau Cotton Association v. Stovall, 113 Tex. 273, 253 S. W. 1101; 2 R. C. L. 1, 1216, par. 34. Where the contract is unambiguous, this intention -must be determined from the instrument itself, considering all its parts and their proper relation to each other. This rule, under the uniform authorities, is not violated by the other well-settled rule that when the whole consideration is not stated, or the meaning of the language expressing the consideration is not clear, or where the circumstances surrounding the grantor at the time he used- language expressing the consideration is not shown by the instrument, parol evidence is admitted to explain the meaning of the language used, with reference to • the consideration. Taylor v. Merrill, supra, and authorities therein cited.

When all the language used by William I-I. Pitts, in the instrument he executed on August 1, 1874, is given effect by the preface which we have constructed from the findings of fact, it does not vary the meaning of the language used in the instrument actually executed.

The phrase “county seat” is used twice in this instrument, the first 'time being in the granting clause, and the second time in expressing the condition which the grantor imposed upon the grantee, and his successors in office, in order to render continuously valid and effective his act in doing what he did, as evidenced by his written instrument. This phrase had a definite meaning at the time it was' used, and this meaning, of this phrase, as used in this instrument, may he amplified by the circumstances surrounding the parties at the time of its use, though, of course, the meaning could not be varied. It is a cardinal principle of the law, as well as statutory in this state, that words are given their usual and' ordinary meaning. “Seat” and. “Site,” when used by prefixing the word “County,” means the same thing. The county site is “the place where the county business is transacted, the courthouse located and the superi- or court held.” 15 O. J. 675. The phrase “county seat” is defined by the Century Dictionary to be “the seat of government of a county; the toion (italics ours) in which the county and other courts are held, and where' the county officers perform their functions.” This term in Re Allison, 13 Colo. 525, 22 P. 820, 821, 10 L. R. A. 790, 16 Am. St. Rep. 224, is thus defined: “The term [‘county seat’], as in common parlance applied to a particular town or city, simply designates the town or city [italics ours] where the county seat is for the time being established.” In Marengo County v. Matkin, 134 Ala. 275, 32 So. 669, 670, it is said: “ordinarily the term ‘county seat,’ applies not merely to the lot and buildings used for transacting the public business, but to the territory occupied, by such town as may be designated as a county seat. [Italics ours.] * * * A county seat is not necessarily eo-extensive with the town of its location, is not identical with the municipality, and does not move by force of the latter’s expansion.” Thus, where an act of the legislature selects a certain town as county seat, the board of county commissioners had no authority to move the county courthouse to a portion of the town not embraced within its limits when the act was passed, notwithstanding that act of adding territory to the town was passed after the locating act, and that the actual establishment -of the courthouse occurred after the enlargement of the town., In 15 O. J. p. 421 § 55, it is declared that the term “county seat,” is meant in its ordinary use, the town (italics ours) where the courthouse is required to be established, and where the public records are to be kept, and where the courts hold their sessions, and where the public officers are required to reside or keep their offices. So we conclude that by the phrase “county seat” as used in this instrument, is meant the territory which comprised at the time the town of Pittsburg, which town, being then unincorporated, meant the inhabited territory, and not any particular part of said territory.

Having reached these conclusions, with, reference to these phrases used in this instrument, which we have discussed, and .keeping in mind the rule of law that, In construing a written instrument every material word used therein must, if possible, be given effect, in arriving at the intention of the grantor, it.now becomes necessary to construe that part of the granting clause, following the description of the lots, used in the instrument, which is as follows: “As a place for erecting the courthouse, and any other public buildings which may be necessary for said County of Camp.”

The Supreme Court of this state, speaking through Judge Gaines, in Olcott v. Gabert, 86 Tex. 121, 23 S. W. 985, 986, said: “Yet the rule is well recognized that the mere declaration of the uses to which the granted premises are to be. applied do not ordinarily import a condition. Where the declared purpose for which the property shall be used is a matter that will enure to the special benefit of the grantor,-the courts are more inclined to treat the conveyance as conditional, than when * * * the use is for the benefit of a special class of 'persons, or of the public at large.” It is true, in that case, unlike the facts in this case, the instrument construed did not contain any language expressly stating that the grant was made upon any condition. In this case we are not put to the necessity of arriving at the intention of the grantor by applying the ordinary rules of construction of written instruments, since the grantor has expressly stated the condition upon which the grant was made, as well as the circumstances under which it was made. The facts show, without dispute, that the county seat of Pittsburg has not been removed outside of the limits of Pittsburg, as it existed at the time the deed was executed. The location of the present courthouse of Gamp county is just across the street from the former location of said building, the t\yo buildings being about 200 feet apart.

As said in Glen Rose Collegiate Institute v. Glen Rose Independent School District, 58 Tex. Civ. App. 435, 125 S. W. 379, 382, where the instrument under construction contains only two expressed conditions of an absolute defeasance or forfeiture of the estate conveyed, both of which conditions had been complied with, prior to the subsequent abandonment by the grantee of the premises" “the fact that the provision to perpetually maintain the institution was inserted in the clause and generally mentioned in the deed as among the purposes of its execution, but was omitted from the only clause providing for an absolute forfeiture of the land granted is significant.” So in this ease we have stated in • the instrument, in unambiguous terms, the only condition attached to the title of the grantee, and his successors in office, the happening of which should defeat that title. This is especially true in view of the general rule that, with certain exceptions not here involved, tlie instrument to be construed must be construed most strongly against the grantor, and forfeitures of an estate are not favored, as well as where, as in this case, the facts show that the purpose of the grantor, in executing the deed, was for the benefit of all the persons owning taxable property in Camp county, by relieving them of the necessity of having their property taxed to procure funds with which to buy a location for the courthouse and other necessary buildings to be used by the people of Camp county, at the county seat located at Pittsburg.

The law will not imply an intention upon the part of the grantor to impose upon the grantee and his successors in office any greater condition to be attached to the estate conveyed, or any other condition, than the one expressly stated, under the rule of expressio unius est exclusio alterius — '(the expression of one thing is the exclusion Of another). Here William H. Pitts in so many words declared, in effect, that the instrument he executed was to be valid and effective so long as the county seat of Camp county should remain within the territory of that town, as it was thpn situated, but that upon its removal from that territory the property should revert to him and his heirs or assigns.

What we have said in the discussion of the language, in the instrument last quoted is equally applicable to the last phrase in the habendum clause, which language is: “For the use aforesaid forever,” since this language has direct reference to the language quoted in the granting clause of the instrument. It appears from other findings of fact by the trial court, that the grantee and his successors in office did accept the benefits of this instrument, by erecting within a reasonable time after its execution and delivery, a substantial courthouse on the property conveyed, as well as other public buildings apparently necessary for the use of the county, and had maintained said buildings for such jise continuously for more than 50 years, when the location was abandoned, as a place for said public buildings, by reason of the facts found, and not controverted, that these buildings had become decayed, obsolete and insufficient to meet the demands of Camp county, and that at the end of which time the specified use of these buildings had been abandoned, without there- having occurred ■ that condition of affairs which would have justified the appellants to have demanded a restitution of the lots conveyed to them, as the heirs of William H. Pitts. In the absence of proof that the county seat of Camp county had been removed beyond the territorial limits of the town of Pittsburg, as it existed on ■ August 1, 1874, the appellants in this case have no cause of action against.Camp county and so long as the county seat of Camp county remains located within said territorial limits Camp county is entitled to the unrestricted possession of the property involved in ⅛⅛ case.

We therefore recommend that question No. 1 be answered “No”; that question No. 3 be answered “No.” These answers render ¡unnecessary any answer to question No. 2. , ■

CURETON, C. J.

‘The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


author: HARVEY, P. J. OURETON, O. J.

text:
    CITY OF GOOSE CREEK et al. v. HUNNICUTT.
    No. 1337—5456.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    See, also, 15 S.W.(2d) 227.
    Eugene Bruce, of Houston, and Ethan Bruce, of Goose Creek, for appellants.
    Mfirk M. Carter, of Goose Creek, for appel-lee. .
   HARVEY, P. J.

On May 8, 1928, and for some years prior thereto, the city of Goose Creek, in Harris county, was a duly incorporated city under the general statutes. On the date named, the city then containing a population of more than five thousand, an election was held for the purpose of determining whether or not a proposed new charter, bringing the city within the class known as home rule cities, should he adopted. The majority of the votes cast? in the election was in favor of the adoption of the new charter, according to the official declaration of the result of the election. The new charter was filed with the secretary of state, and the city began to function thereunder. J. D. Hunnicutt, a resident property taxpayer and qualified voter of the city, after giving the prescribed notice of intention to do so, seasonably instituted this suit to contest said election, alleging facts to show that the majority of the legal votes cast in the election was against the adoption of the new charter. The mayor of the city and the commissioners under the old charter were made the eontestees in the suit. The contestees, by their answer, duly challenged the authority of Hunnicutt to' maintain this suit. The trial court overruled this contention, and, after a hearing on the merits, rendered judgment adjudging the defeat of the charter. The con-testees appealed, and the Court of Civil Appeals for the First Supreme Judicial District, in which the ease is pending, has submitted two certified questions. By the first of these questions, the court inquires, in effect, if Hun-nicutt, because of his being a resident voter of the city, and a property taxpayer therein, can maintain the suit brought by him. We shall address ourselves to this first question.

The mere act of incorporating a municipality, whether such incorporation be effected under the home rule' amendment (Const, art. 11, § 5) or not, embraces nothing more than the creation of a governmental agency, which becomes invested with such powers as the law confers. It is true that legislative power to incorporate a home rule city is, by constitutional provision, delegated to the inhabitants' of the territory affected; nevertheless a city so incorporated is a political subdivision of the state for governmental purposes. In the immediate result of the election for incorporation, the individual citizen, evén though he be a property taxpayer, has no .justiciable interest. 1-Ie has no interest except in common with the general public. The incorporation, and the means through which it is undertaken to be accomplished, are matters of general public concern. The election for incorporation, therefore, cannot be contested, except by the state through its proper officers. The Legislature has no power, under our Constitution, to authorize a private citizen to represent the state 'in such suit. Staples v. State, 112 Tex. 61, 245 S. W. 639; Maud v. Terrell, 109 Tex. 97, 200 S. W. 375; Allen v. Fisher, 118 Tex. 38, 9 S.W.(2d) 731.

The present case ⅛ distinguishable on the facts from the case of Hooker v. Foster, 117 Tex. 237, 1 S.W.(2d) 276, upon which, together with article 3069 of the Statutes, the appellee, Hunnicutt, relies for authority to maintain this suit. In that case the election under contest was held in a school district in which the contestants were resident 'property taxpayers, and the immediate purpose of the election was the authorization of a tax. In the instant case, the immediate purpose of the election was the erection of a new municipal corporation in place of the old one. The matter of taxation was but remotely involved.

We recommend that the first question certified be answered in the negative. In view of this answer, the second question becomes immaterial. It is therefore unnecessary to state the second question or the facts set out in the certificate relating to that question.

OURETON, O. J.

The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified.


author: GRITE, J.

text:
    STUART et al. v. STRAWN INDEPENDENT SCHOOL DIST.
    Motion No. 9642; No. 1417—5618.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    For original opinion, see 36 S.W.(2d) 480, which affirmed judgment of the Court of Civil-Appeals, 21 S.W.(2d) 713.
   GRITE, J.

This case is before us on motion to retax costs filed by Stuart et al.

The suit was originally filed in the district court -of Palo Pinto county, Tex., by Strawn Independent School District against Stuart et al. to recover certain delinquent taxes alleged to be due by tbem to the district. Trial in the district court resulted in a judgment for Stuart et al. This judgment was reversed by the Court of Civil Appeals at Eastland, and the cause remanded to the district court for a new trial. The opinion of the Court of Civil Appeals shows that that court adjudged the costs equally between the appellant and the appellees. Strawn Independent School District v. Stuart et al., 21 S.W.(2d) 715. It seems that the judgment formally entered in the minutes of the Court of Civil Appeals did not conform to the judgment actually awarded’by that court as shown by its opinion, in that the judgment as entered in the minutes adjudged all costs against the appellees, Stuart et al. they being the losing parties.

Writ of error was applied for 'by Stuart et al. and granted by the Sux>reme Court. The judgment of the Court of Civil Appeals as formally entered in the minutes was certified to the Supreme Court. It will thus be seen • that according to the records certified the opinion showed that the costs were divided, while the formal judgment as entered contradicted the opinion and did not divide the costs, but adjudged them as above shown.

In the above state of the record, the Supreme Court affirmed the judgment of the Court of Civil Appeals, and adjudged all costs of appeal in both appellate courts against the Stuarts, who were the losing parties to both appeals.

After the rendition of the judgment in the Supreme Court, and after the motion of Stuart et al. for rehearing was overruled, the Court of Civil Appeals on May 12,1931, undertook, to correct its record, and entered an order correcting its original judgment so as to award the costs in conformity with its opinion. It was ordered that the judgment should be corrected as of date of the original judgment, September 27,1929.

After the above proceedings in the Court of Civil Appeals, Stuart et al. filed a motion in this court to retax the costs,' and have attached to such motion certified copies of the above proceedings in the Court of Civil Appeals.

In our opinion Stuart et al. should pay the costs of appeal in both courts as originally adjudged by this court. They are the losing parties in both appellate courts, and we find nothing in the record that will justify us in relieving them of costs.

Being of the opinion that Stuart et al. should pay the costs of appeal in both appellate courts we do not consider it necessary to pass on the right of the Court of Civil Appeals to make the correction in the judgment as hereinabove shown at the time it was made. Whatever judgment they did enter, with reference to costs, has been superseded by the judgment of this court. The judgment of this court adjudges costs for both appeals against Stuart et al., and that judgment must obtain regardless of the judgment entered by the Court of Civil Appeals.


author: CHRISTIAN, J.

text:
    BALL v. STATE.
    No. 14222.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Edgar E. Witt and Tirey & Tirey, all of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery; the punishment, confinement in the penitentiary for five years.

Roy Collins went into the place of business of Ross Bailey, and, exhibiting a pistol, forced Bailey to deliver approximately $127 in money to him. Collins was placed on the witness stand by the state. 1-Ie testified on his direct-examination by the district attorney that appellant was not with him at the time he committed the offense, and, further, that appellant was not outside waiting in an automobile while he committed the robbery. In short, he denied that appellant had anything to do with the commission of the offense. The state introduced witnesses, among them being thq' district attorney, who testified that Collins had stated to them shortly before going on the witness stand that appellant was outside in an automobile waiting for him when-he (Collins) committed the offense. The injured party testified that Collins came into the store alone. He knew nothing about appellant having any connection with the commission of the crime. The state used an accomplice witness, Forest Ilocker, who testified, in substance, that he, Roy Collins, and appellant met in Austin near the Texan Hotel and planned the robbery; that thereafter they drove to Waco and stopped the automobile near Bailey’s store; that he and appellant waited in the car while Collins went in and committed the robbery; that thereafter they separated with the agreement that they would divide the money. The state offered in evidence appellant’s written .confession made toi ,the district attorney, wherein appellant stated that he went with Collins to Waco and waited outside while Collins robbed Bailey’s store. A witness for the state testified that she saw an automobile leave Bailey’s store immediately after the robbery. This witness was unable to identify appellant as one of the occupants of the car. Over appellant’s objection, the state offered in evidence a letter \yritten by appellant to Roy Collins, in which appellant requested Collins to send him some money. We quote this letter in part as follows: . “I tried to get in touch with you by telephone yesterday morning about this deal here. It is good for about two grand on Saturday night easy, and the party will'not be any trouble. I have been out twice. Everything is perfect. I could not get Drake to do a thing about the deal on Sunday night. I wanted him to go out last night but he would not do it. I told him I would go and get a car if he would drive it. He said it was too much of a chance on the car.”

Appellant’s confession appears to be the only testimony in the record furnishing cor-rbb’oration of the testimony of the accomplice witness. Appellant testified that the confession was not freely and voluntarily made, and related matters which, if believed, would have led to' the. conclusion that coercion was used. The court submitted the issue to the jury, ad- ■ vising. them, in effect, that, if they had a reasonable doubt as to whether the confession .was yoluntarily made, it should not be considered for any purpose. Appellant timely and. properly objected to the charge on the ground that the court should have instructed the. jury that, if they had a reasonable doubt as to whether the confession was voluntarily made, he should be acquitted. In the exception, the court’s attention was directed to the fact that outside of the confession there was no evidence in the record sufficient to corroborate the accomplice witness. The opinion is expressed that the learned trial judge should have responded to the exception and amended the charge.

The offense was committed on the night of July 12, 1930, in the city of Waco. The letter hereinbefore quoted from was placed in the post office in Dallas on July 20. 1930, approximately eight days after the offense had been committed in Waco. The letter was timely and properly objected to, as was the testimony of the witness Roy Collins to the effect that the letter meant that appellant knew of a place where a party could be “hijacked” out of $2,000 without any trouble or danger. Appellant was also required to testify to the same facts when being cross-examined by the district attorney. -In each instance he interposed proper objection. This letter in no manner tended to connect appellant with the commission of the offense committed by Collins eight days before the letter was written. If the state’s testimony was to be believed, there was no question as to the intent or identity of appellant. “Evidence of a disconnected substantive offense is not admissible in support of another offense, and, for a stronger reason, evidence of an intention to commit another offense is^iot admissible.” Branch’s Annotated Penal Code, § 166; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096: Spillman v. State, 38 Tex. Cr. R. 607, 44 S. W. 149, 150; Windham v. State, 59 Tex. Cr. R. 366, 128 S. W. 1130. The testimony concerning the letter and the meaning of the expressions used therein by appellant merely tended to show that appellant was a criminal generally. It was not admissible under any of the exceptions to the general rule inhibiting testimony of extraneous crimes or other transactions. That the testimony concerning the letter was prejudicial is obvious. The opinion is expressed that the bills of exception relating to the matter present reversible error.

For the errors discussed, the judgment is 'reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: HAWKINS, J.

text:
    DAVIS v. STATE.
    No. 14367.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    T. T. Thompson, of Clarksville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for manufacturing intoxicating liquor; punishment being one year in the penitentiary.

The record is before us without statement of facts or bills of exception. In this condition nothing is presented for review.

The judgment is affirmed.


text:
    TIPPS v. STATE.
    No. 14267.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    W- Van Sickle, of Alpine, for appellant. Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant was convicted of giving a worthless check, the punishment assessed being a fine of $25 and five days’ confinement in the county jail.

No statement of facts or bills of exception are found in the record. In such condition nothing is presented for review.

The judgment is affirmed.