author: LANE, J.

text:
    HUGHES v. COUNTY COM’RS’ COURT OF HARRIS COUNTY et al.
    No. 9576.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 21, 1931.
    Rehearing Denied Feb. 12, 1931.

      Randolph & Hughes, W. D. Hill, and Thos. H. Stone, all of Houston, for appellant.
    Sam Neathery, City Atty., William D. Orem, Asst. City Atty., both of Houston, for appellee City of Houston.
    Kennerly, Williams, Lee, Hill & Sears, Geo. D. Sears, and Geo. A. Hill, Jr., all of Houston, for appellee County Com’rs’ Court.
   LANE, J.

We deem the following statement of the nature and result of the case sufficient to present the matters presented on this appeal:

The road or street referred to in the record as Yale street was formerly and originally a public road in Harris county, Tex., extending northwardly and southwardly. Subsequently and many years since that part of the road lying north of White Oak bayou fell within the limits of the city of Houston Heights, which was thereafter incorporated, and such part of the road became a part of a street in said city and was designated as Yale street. At a still later date the city of Houston extended its corporate lines so as to include the incorporated city of Houston Heights, and that part of said road lying north of White Oak bayou and within the limits of Houston Heights became Yale street in the city of Houston. Still later that portion of said road lying south of White Oak bayou fell within the corporate limits of Houston when such limits were extended, and since said last extension both those parts of the road that formerly were in Houston Heights and that south of White Oak bayou, are now Yale street in the city of Houston.

In October, 1929, both the city of Houston and the county of Harris, desiring to have Yale street improved, same being an extension of the aforesaid county road, entered into a written agreement whereby the county through its proper officers agreed that on proper estimates it would contribute the sum of $25,000 as its part of the cost of such improvements, and whereby the city of Houston agreed to pay the balance of the cost of such improvements over and above such sum as might be raised from assessments made against and paid by abutting property owners and railway companies; the costs assumed by the city amounting to approximately a quarter of a million dollars.

After such agreement was entered into, the city and county jointly advertised for bids for the aforesaid contemplated improvements of Yale street, to be submitted on the 20th day of August, 1930, wherein it was stipulated • that such bids would be jointly opened and the contract jointly awarded in the name of the city of Houston and the county of Harris, in accord with the contract entered into between the city and county.

After such agreement and advertisement were made, the commissioners’ court of Harris county, in conjunction with the city council of the city of Houston, began to lay out Yale street to a width of 120 feet, and the commissioners of the county set aside $25,000 out of the road and bridge funds of the county for the purpose of assisting in the contemplated improvements of Yale street, in accordance with the aforesaid agreement.

That part of the original road outside of the city and that part now known as Yale street within the city forms a connecting link between West Montgomery road, a county highway leading north and northwestward to the limits of Harris county, and on the south and east with Washington street and Waugh drive, which connects with the Washington county road, a cardinal highway leading northward toward the cities of Hempstead, Austin, Waco, Dallas, and others, and through Waugh drive with the Westheimer and Richmond roads, both of which are county highways leading to the west and south limits of Harris county, and with the old Spanish Trail, a cardinal highway leading toward San Antonio and important points west, and with the Galveston road, thus affording to the citizens of Harris county residing within and without the city of Houston direct interconnection between the county highways above mentioned without requiring, in most eases, the use of the more congested streets of the city of Houston, the use of which is fraught with danger, inconvenience, and delays to the citizens of both the city and county.

On the 1st day of August, 1930, after the calls for bids, as hereinbefore stated, were published, Taylor J. Hughes filed his petition praying for the issuance of an injunction to restrain the county commissioners’ court of Harris county from entering into a contract with any contractor for the construction of the contemplated improvements of Yale street, above mentioned, which were proposed to be done under and in pursuance of the aforementioned agreement entered into between the city and county, whereby the county agreed to pay $25,000 as its part of the costs of said contemplated improvements.

The county answered, admitting the contract with the city of Houston, pleading it, asserting its right to have made the contract, also declaring its purpose to enter into a contract with a contractor on satisfactory bid for the paving of the portion of Yale street within the city of Houston, and of contributing the sum of approximately $25,000 toward the payment of the cost of improvement of said street, either by paying it to the contractor or by paying it to the city of Houston, and announcing its purpose to carry out the improvement program unless restrained by the court. The city of Houston intervened and adopted the answer of the county of Harris.

Both defendant and intervener made general denial of the allegations of the plaintiff’s petition.

On September 3, 1930, the cause came on for final hearing before Judge Allen B. Han-nay of the 113th judicial district court, who, after hearing the pleadings and the evidence establishing the facts as stated in our preliminary statement, held that the^law and evidence was with the defendant and intervener, denied the injunction prayed for, and rendered judgment accordingly. Plaintiff, Taylor J. Hughes, has appealed.

The trial Judge, upon request therefor, filed his findings of fact and conclusions of law, in which he found that the matters and things stated by us in our preliminary statement had been shown by the evidence, and that the law was with defendants. The facts as found by the court are in no wise challenged by appellant.

Eor cause of reversal of the judgment, appellant insists: Eirst, that, under the Constitution and general laws of the state, counties of the state as governmental agencies have no jurisdiction whatever within the territorial limits of incorporated cities and towns, whether incorporated under the general laws or under the Home Rule Amendment to the Constitution (Const, art. 11, § 5), nor have they any dominion or control whatever over the street and public thoroughfares within such cities and towns; second, that the county of Harris has no dominion or control over such streets and thoroughfares under and by virtue of the special road law of Harris county enacted by the legislature on the 5th day of March, 1913 (Loe. & Sp. Laws, c. 17); and, third, that Harris county has no lawful right of authority under the Constitution and general laws of the state, or under the special road law of Harris county, to expend county funds for street improvements within the corporate limits of the city of Houston, acting with or without the corporate sanction and co-operation of the city.

Considering the contentions of appellant in the order stated, we readily concede that Harris county can have no dominion or control whatever over any of the streets or public thoroughfares within the corporate limits of the city of Houston without the consent of the city, provided such streets or thoroughfares do not form a part, at least, of roads that have been or may be laid out or constructed by the county of Harris, or under its direction, or of roads existing by dedication prior to being taken into the limits of the city. But the case before us for consideration presents no such proposition. The facts as found by the trial court, which are unchallenged, show that the street or road involved was, prior to its being embraced within the limits of the city of Houston, a public road of the county of Harris, and they also show, that the city has-not only consented for the county to take part in the improvement of this street or road, but has by its contract with the county expressly invited the co-operation of the county in making such improvement. We are not, therefore, called upon to decide whether or not Harris county can, by virtue of the provisions of either the general laws of the state of Texas or the local road law of Harris county enter upon and make improvements on Tale street, and a public road of the county, without the consent of the city. No such question is presented to us by this appeal.

We agree with appellees that there are but two questions presented for our determination. Such questions are: Eirst, Has the county' of Harris the lawful authority to cooperate with the city of Houston to improve that part of such street and public road lying within the corporate limits of the city by expending county funds for such purpose? and, second, In view of the pleadings and evidence, did the trial court abuse its discretion in refusing the temporary injunction at the behest of a taxpayer, who, by reason of the proposed expenditure of public funds in the contemplated improvement, would suffer not exceeding 4 cents?

The county has, by virtue of the provisions of the general laws of this state, as well as by the Harris county local road law,* the right to expend its funds in the improvement of a street within the corporate limits of a city which is also a public road of the county, especially so when such improvement is done with the consent and invitation of the city authorities.

The Legislature is specially authorized -to pass laws, general and local, providing for the laying out, construction, and repairing of coúnty roads, by section 2 of article 11, and section 9 of article 8, of our Constitution. Smith v. Grayson County, 18 Tex. Civ. App. 153, 44 S. W. 921; Ex parte Cooks, 61 Tex. Cr. R. 449, 135 S. W. 139.

In obedience to the mandate of article 8, section 9, of the Constitution, which we think self-enacting, the Legislature in 1911 and 1899 passed what is now articles 2351 and 2352 of our Civil Statutes. By article 2351, the commissioners’ courts were authorized, among other things, to lay out and establish public roads and to exercise general control over all public roads in their respective counties, and by article 2352 such court is authorized to levy and collect taxes for road purposes and for the erection of- public buildings, streets, sewers, etc. The right to levy and collect taxes for certain purposes carries with it tlie right to expend the funds when so collected to carry out the purposes for which it was collected. It is immaterial to inquire whether the dominion and control over roads is given by statutes other than the articles named. Article 2352 clearly carries with it the implied power of the commissioners’ courts to expend the road funds of their respective counties in the improvement of streets, especially such streets as constitute a part of a public road of the county, because by the provisions of the Constitution counties are given the right to levy and collect taxes for the improvement of both roads and streets. The Harris county special road law was validly passed in March, 1913 (Loc. & Sp. Laws 1913, c. 17), under section 9 of article 8 of our Constitution, which gave the Legislature power to pass special or local laws with respect to roads and highways. Under the provisions of the Harris county special road law, the commissioners’ court of that county was given authority to improve roads theretofore laid out or constructed, or that might later be laid out by the county. In section 29 of such law, it is provided that the word “road” as used in the act is meant to embrace “every part of every u'oad, whether inside or outside of any incorporated city or town in Harris county.” And section 33 thereof provides the act shall be construed to be cumulative of all general laws of this state on the subject treated in the act, when not in conflict therewith, but, in case of such conflict, the act shall control as to Harris county.

We here substantially copy from the able brief of appellee Harris county as follows, which we adopt as our own:

“Aside from these plain constitutional and statutory warrants, which seem not to have been brought to the attention of the courts, it has been held from an early date that the counties have general authority and supervision of all roads; that cities have special power and control over their streets, but that where the city consents, the county may exercise control and supervision and expend its funds in aid of street improvement. Such has been the rule of decision laid down by the courts at an early -date; such has been the advice of the attorney general, as evidenced in his written opinions for nearly twenty years.
“The Supreme Court of Texas, in the case of State v. Jones, 18 Tex. 874, recognized clearly that so long as there was no opposition or conflict between the city or county, with respect to road matters within a city, that the general authority of the county court over- roads continues to exist within the city. In passing upon the question, Chief Justice Hemphill adopts* the opinion of the lower court which is set out in full, and among other things, it is said:
“ ‘Until the town council acts under the authority conferred by its charter, the general authority of the county court over the subject matter continues to exist, and may be exercised. It is only when both bodies attempt to act in opposition to, and in conflict with each other, that the power and authority of one must cease and yield to that of the other, and in such a state of things, I am of the opinion that the authority of the county court must yield to that of the town council.’
“The question was squarely presented and just as squarely decided in the case of Smith v. Cathey (Tex. Civ. App.) 226 S. W. 158. In that case, a suit was brought to enjoin the Commissioners of Wood County from paying out of county funds a sum of money to be expended on the Jim Hogg Highway within the incorporated- town of Winnsboro,' and within Wood County. Even under the general law it was held that with the assent, express or implied, of the city of Winnsboro, the county had such power under the general law, and in the absence of a showing of conflict, or interference with the city’s jurisdiction, the Court assumes as a matter of law that there was no conflict, and that the general power of the county should be given effect. They say:
“ ‘By subdivision 6 is given power to exercise control and superintendence over all roáds and highways in the counties. This is subject to the powers usually granted to cities and towns over streets, etc., within its limits, when it chooses to take jurisdiction and the city or town sees proper to exercise such powers. But where the city or town does not deem it proper to exercise such jurisdiction, and does not object to the county keeping up such road or street, the county has the right to do so.
“ ‘From the organization of this state the commissioners’ courts of the different counties have been given control and jurisdiction over roads and highways, and this has been restricted by the law in respect to incorporated cities and towns, which is still respected in those cases. In this case the town council makes no objection to the county' taking this part of the highway under its control. When matters of this kind came before the court in a case reported in State v. Jones, 18 Tex. 874, the question of jurisdiction of the commissioners’ court over roads and highways is first reported. In deciding that case the Supreme Court was content to adopt the opinion of the lower court, which says:
“ ‘ “The county court does, it is true, possess a general jurisdiction coextensive with the limits of the county, to lay out and establish public roads and highways, but, as that jurisdiction is conferred by a .general law which is applicable to every county in the state, it is at all times sabject to be, changed or modified by special laws, acting. upon the same subject in particular counties, or special localities,” etc. “It has been said in argument that, if tbe law incorporating tbe town takes away from tbe county court tbe power to lay out and regulate roads witbin tbe town limits, and tbe council does not choose to exercise the power conferred upon it to lay out streets and highways, then the people of tbe county will be subjected to tbe inconvenience of having no road for travel or the transportation of their commerce through the town tract,” etc. “Such a consequence, in my judgment, by no means follows. Until the town council acts under the authority conferred by its charter, the general authority of the county court over the subject-matter continues to exist, and may be exercised. -It- is only when both bodies attempt to act in opposition to and in conflict with each other that the power and authority of one must cease and yield to that of the other, and in such a state of things, I am of the opinion that the authority of the county court must yield to that of the town council.”.
“ ‘Under the law, when the city council has taken charge of the roads, streets, and alleys thereof, and keeps them in repair, for the benefit of its inhabitants, the county commissioners have no right to interfere with the council’s jurisdiction, but in this case the city council has apparently failed to assume jurisdiction of this part of the highway, and, as w'e assume, has allowed the county commissioners to enter upon and take control without at least showing a disposition to oppose control by the county commissioners, which is apparently for the best interest of the citizens and with the consent of the town council.
“ ‘The Legislature in changing the highway and road laws did so for their betterment, but the general policy from the beginning, that "the county commissioners should have general control over the roads, still remains.
“ ‘The, proper authorities established the Jim Hogg highway along a thoroughfare in Winnsboro, and it was the duty of said commissioners to keep that portion in connection with the other parts of said highway, and it has jurisdiction in this instance.
“ ‘The bonds voted for this enterprise were placed in the county commissioners’ hands for disposition, and it was legal for them to contract for the expenditure of said funds in the way they were so used. On several occasions the Attorney General of Texas in the course of his duty had occasion to pass upon such acts, and has declared the commissioners’ court had the right to so expend such bonds, so said holding is persuasive, though not binding, and we so rule. Article 2241, Vernon’s Sayles’ Tex. Civ. Stats. 1914; State v. Jones, 18 Tex. 874; City of Llano v. Wilbern, Co. Judge (Tex. Civ. App.) 152 S. W. 477; Bluitt v. State, 56 Tex. Cr. R. 525, 121 S. W. 171; Williams v. Carroll (Tex. Civ. App.) 182 S. W. 29; City of Texarkana v. Telegraph Co., 48 Tex. Civ. App. 16, 106 S. W. 915; Aransas County v. Coleman-Fulton Pasture Co., 108 Tex. 216, 191 S. W. 553; Texarkana v. Edwards, 76 Ark. 22, 88 S. W. 862; State v. H. & T. C. Ry. Co. (Tex. Civ. App.) 209 S. W. 820; H. & T. C. Ry. Co. v. State, 95 Tex. 532, 68 S. W. 777.
“ ‘The county commissioners of Wood County, who had the control and supervision of roads and highways of said county, were apparently acting for the good of the public in this matter, and, it so appearing to us, we affirm the judgment of the lower court.’
“In the case at bar, it is not necessary to assume an absence of conflict. , It appears affirmatively that there is entire accord. So that even if it be assumed that the power to exercise control over a road is a necessary predicate for finding authority to expend county funds in improving a street — -which we have shown is not at all true — the law seems declared that such power does exist in the county; it is temporarily in abeyance so long as the city exercises its right, but even under the general law, where the city waives its right, the general power of the county is fully restored and it may assume control and superintendence over ways within the city.
“The authority to expend funds for the improvement of ways within a city is clearly expressed in the constitution, and the statutes, but these cases say .that even in the matter of control, as opposed to the mere right to spend, the power of the county remains unimpaired so long as no conflict between it and the city appears. This, as the wise judge in the ancient case of State v. Jones remarks, is but a common sense solution of a proposition which contains no real contradiction, except those made by the conjuring touch of an adroit advocate.”

In 1915, when Judge Looney, now associate justice of the Court of Civil Appeals at Dallas, was Attorney General of this state, and the present Chief Justice of our Supreme Court was his first assistant, counties were advised by opinions from the Attorney General’s department that, where there was no conflict as to jurisdiction between a city and county as to jurisdiction, the county has the authority to expend funds on street and road improvements within city limits. In Reports of the Attorney General 1914, 1916, p. 728 et seq., is to be found an opinion upon the question here involved in reply to the following question:

“In the construction of our roads in this county, the greater portion of which has been done under a special road law, we find that our main roads are not connected up by reason of the fact that they pass through small incorporated towns in our county. The commissioners want to expend their money to build good roads in these incorporated towns, for instance we have a lateral road running from Arlington to Grapevine,-both of these towns are incorporated, but by reason of the fact that the cardinal roads run through the center of these two places there is a hiatus of from one-half mile to a mile in each of the towns on the sub-cardinal road which have not been built. Our commissioners want to know if they have authority to construct those lateral roads after they strike the limits of these towns to connect with the cardinal and sub-cardinal roads.”

In that opinion it is said: .

“The general laws of the State must be looked to for the determination of the powers of your commissioners court to build the roads you have made inquiry about, because your special law is silent on this subject.
. “Upon the whole case, we are of the opinion that your commissioners’ court would not have authority, without the consent and acquiescence of the city councils of the cities or towns in the county, to construct roads within such cities or towns, unless it might be in a city or incorporated town ‘in which from some cause there is not a de facto municipal government in the active discharge of their official duties.’ We think, however, that with the consent of the city councils they might construct or co-operate in constructing roads through such towns or cities.”

Again in 1919, when Chief Justice Cureton was the Attorney General, the Commissioners’ court of Haskell county desired to levy a tax and pay the funds arising therefrom to pave the courthouse square “and all streets leading from the courthouse square connecting with public roads of tbe county.” The Attorney General pointed out the general control of the county and the special control of the cities already adverted to, and, after quoting article 8, section 9, of the Constitution, giving counties the power to levy a tax “for the erection of public buildings, streets,” etc., 'said that such section “ * * * clearly indicated where the county has authority to do so, it may improve such streets as the county commissioners may determine. I would therefore advise you that the county commissioners may levy a special tax and pay the entire cost of the pavements of such •portions of the courthouse square within an incorporated town or city as are used for highway purposes, and the streets leading therefrom and connecting with the county roads, providing they have first obtained the consent of the governing body of the city to do so.” Reports and Opinions of Attorney General of Texas 1918 to 1920, p. 118.

It has long been recognized by all of our courts that opinions rendered by the Attorney General to other subdivisions of the government over a long period of years, the construction therein given to a law, while not binding on the courts, is highly persuasive upon them, and it has often been said by our courts that such opinions will not be lightly regarded.

In Harris county there are a dozen municipalities. If the contentions of counsel for appellant are correct, the county of Harris stands powerless to expend a dollar on roads through such municipalities. It would be compelled to leave gaps in important highways, even though it is anxious and able to improve the same out of its road fund, and even though the municipality concerned is willing and anxious it should do so.

It can hardly be seriously thought that the people in adopting the Constitution, or that the Legislature, intended to leave the public powerless to maintain its public roads which pass through incorporated cities. * To our minds, every consideration of a sane public policy, as well as common sense, sustains the suggestion just made. The Legislature has conferred upon Harris county the right to improve its roads, or any part thereof, whether inside or outside of any incorporated city or town within the county. Special Road Law of Harris County, Acts 33rd Leg. p. 64.

Appellant cites Norwood v. Gonzales County, 79 Tex. 218, 14 S. W. 1057, and Benat v. Dallas County (Tex. Civ. App.) 266 S. W. 540, 541, as supporting his contention. Both of these cases were condemnation cases, and are not applicable to the facts of the present case. In Texas Midland v. Kaufman County Imp. District (Tex. Civ. App.) 175 S. W. 483, it is said: “All grants of governing authority conferring the right of eminent domain, are to be strictly pursued.’ The proposition is correct and universally conceded.” Lewis on Eminent Domain, § 253.

In Benat v. Dallas County, supra; Judge Looney, speaking for the Dallas court, held that the county had no authority to condemn land in an incorporated city for road purposes, saying: “Appellees insist that under the doctrine of Smith v. Cathey [Tex. Civ. App.], 226 S. W. 158, decided by this court, opinion by the late Chief Justice Rainey, the proceedings in question are justified. We cannot accept this view. The Smith-Cathey Case did not involve the right of the county to lay out or control a street in the city of Winnsboro, or to condemn land for that purpose. The suit was by a taxpayer to enjoin the commissioners’ court of Wood county from expending the county’s funds in paving Main street in the incorporated city of Winns-boro. This court held in harmony with the doctrine of other cases, and also in harmony with rulings of the Attorney General, that the commissioners’ court was authorized to expend county funds to pave the street, as the city authorities did not object. This is as far as the doctrine goes, and is as far, in our judgment, as it should be extended.”

The weight of authority seems to indicate that under the general law the counties have the constitutional and statutory power to expend their road funds in the improvement of their roads which pass through a municipality, and that they have the right to improve such roads, though they be streets of such municipalities, with the consent of the municipalities. State v. Jones, 18 Tex. 874; Smith v. Cathey (Tex. Civ. App.) 226 S. W. 158; Benat v. Dallas County (Tex. Civ. App.) 266 S.W. 540.

In addition to the reasons already expressed for an affirmance of the judgment of the trial court, we hold that, in view of the importance of the improvement made on Yale street, the large sum already expended widening the same, and the further large sum to be paid by the city for the completion of the contemplated improvements, and in view of the fact that appellant’s loss, if any, by reason of the expenditure of $25,000 by the county in aid of the improvement would be practically 3 or 4 cents only, the trial court did not abuse his discretion in applying the well-settled rule.of “balance of conveniences” and in denying the injunction prayed for.

Eor the reasons expressed, the judgment is in all things affirmed.

Affirmed.


source: Caselaw Access Project

author: LESLIE, J.

license: Public Domain

text:
    GIBSON & JOHNSON v. WARD. SAME v. AXE. SAME v. GIST.
    Nos. 789, 790, 792.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 23, 1931.
    Rehearing Denied Feb. 20, 1931.
    C. G. Whitten, of Abileue, for appellants.
    Kirby, King & Overshiner, of Abilene, for appellees.
   LESLIE, J.

In the trial court separate suits, as indicated by the above styled and numbered causes, were filed against Gibson & Johnson by plaintiffs, Mrs. Lena Axe, B. E. Ward, and J. N. Sewell and Ed Gist. Like issues of fact and law being involved, the suits were consolidated, tried together, and from a judgment in favor of the plaintiffs in each case the defendants appeal.

The lawsuits arise out of a contract between Gibson & Johnson, lessees, and John Axe and fourteen other lessors. From lessors’ viewpoint, the contract was designed to procure the drilling of a well for oil and gas on a block of acreage owned and controlled by themselves, and it contained a provision that, if the lessors complied with the contract and the lessees did not, the contract and leases thereunder became null and void as to lessors and the lessees should forfeit and pay to lessors, according to their respective acreage, the sum of $5 per acre as liquidated damages. The contract and a statement of the nature of the suits may be found in the opinion by this court in Read v. Gibson & Johnson, 12 S.W.(2d) 620, and in the opinion of the El Paso Court of Civil Appeals in Gibson & Johnson v. Hill, 34 S.W.(2d) 346, 347. Those cases are companion cases to the instant ones.

By way of defense Gibson & Johnson entered a general denial and specially pleaded, among other defenses: (1) That the original contract of January, 1927, was superseded by a subsequent contract embodied in what is known as the 88 Texas Form lease; (2) that the subject-matter of the original contract failed, since certain tracts of land contributed to the lease by several of the eighteen signers were the homesteads respectively of such signers, and the original contract undertaking to' contribute the same not being signed and acknowledged by the husband and wife in such cases, and in such manner as to make same effective as a conveyance of a homestead, Gibson & Johnson were not bound thereby, and the contract as to them was void; (3) that the original contract was entered into between Gibson & Johnson on the one hand, and the lessors on the other, as a joint contract, and not severable in respect to the forfeit claimed by each lessor, and that, if the contract was not held to be joint, then the contract, as stated, was due to a mutual mistake of the parties, and relief from the effect thereof was sought.

These cases were tried before the court without a jury. The court has filed findings of fact and conclusions of law. The appeal is presented here on four propositions. They will be considered seriatim.

The first proposition is to the effect that the original contract by Gibson & Johnson and the lessors was subsequently superseded by or merged into the terms of a lease contract in the form of the well-known 88 Texas Form lease. It is asserted that the judgment for liquidated damages is contrary to the law-and the evidence, in that the original contract only contains the provisions stipulating for $5 per acre for liquidated damages in favor of lessors on default of lessees, whereas the 88 lease contract contains no such covenant, but provides that, if no well bo commenced on said land on or before the 26th day of February, 1928, the lease should terminate as to both parties, unless the lessees, on or before that date, paid to the lessors the sum of $1 per acre, which was to operate as a rental and cover the privilege of deferring the commencement of the well for twelve months.

As stated in 13 O. J. p. 598, a simple contract does not of itself merge or extinguish a prior one. The question of merger or substitution depends upon the intention of the parties. It does, not appear, as a matter of law, from this record and the contracts involved, that the latter contract superseded the first. Viewing the question of merger as a fact issue, the contents of the original contract, those of the contemplated lease, and surrounding circumstances refute the idea of merger as contended for by appellant. Of course, the original contract contemplated the lease contract between the respective parties, but the lease contracts, as said in the Hill Case, supras “were never consummated,” and “the doctrine of merger has no application.” True, they were placed in escrow by the lessors, as per the original contract, 'but the lessees, by letter of date May 20, 1927, declined -to go further in compliance with the original contract, stating as a reason for so doing that some of the owners in the block had taken down their leases. It appears that the lessees (Gibson & Johnson) served this notice on the lessors (plaintiffs), at a time when they were rightfully, under the terms of the contract, attempting to comply with the same by meeting certain objections made to their respective titles by lessees’ attorney. In addition, the trial court further finds that, in so notifying the lessors, Gibson & Johnson were not justified under the terms of the contract.

In addition to the circumstance that no merger was possible, since there was never any delivery of the 88 Form lease, which was essential to its becoming a binding contract, it is apparent that the original contract and the lease contract each had its purpose and were designed to effect a different object. Though in some respects they covered common ground, they did not cover the same ground. For instance, one essential difference is found in the provision for liquidated damages in the event of lessees’ default.

The opinion of Dyer v. Chamness (Tex. Civ. App.) 275 S. W. 166, does not, in our ojunion, sustain the contention of appellants on the issue of merger. That was a suit to cancel an oil and gas lease and remove cloud from title. The lease had been executed pursuant to a preliminary contract which had become merged into the second perforce of compliance with the second contract. Having thus performed, the lessee in that case was able to prevent the cancellation of the lease. The situation in the instant case is different. The notification served by lessees May 20th on lessors to call and get their leases marked the end of any effort upon the part of these appellants to comply with the terms of the original contract, and as found by the court, that action left them in default.

The first proposition is overruled.

The second proposition is to the effect that the court erred in failing to construe the original contract as joint in all of its parts, instead of several as regards the right of each lessor to recover liquidated damages (in proportion to the acreage contributed) from the lessees on their failure to comply with the contract of January, 1927. It is claimed the court erred in holding Gibson & Johnson bound by the contract until each of the plaintiffs showed a valid contract offered to Gibson & Johnson.conveying a block of 2635 acres of land, the contract being joint as to the acreage, as well as to the drilling of the well. . Stated otherwise, and perhaps more specifically, the contention is that, before either of the plaintiffs (lessors) would be entitled to sue and recover on the original contract, he would have to plead and show the status of the lands of each of the other lessors signing the contract; that is, whether the same was homestead or not, and if homestead, unless same' was signed and privily acknowledged by the respective wives of such lessors, the whole contract was void as being an unseverable contract and not legally binding upon Gibson & Johnson unless binding on each and all of the lessors signing the contract.

We think this contention resolved against the appellants by the opinion of this court in the Read Case. 12 S.W.(2d) 623. The question was there carefully considered and written on rather extensively, both in the original opinion, paragraphs 7 and 8, and on motion for rehearing, paragraphs 9 and 10. Clearly the opinion in the Read and Hill Cases, supra, hold that each lessor, by showing compliance on his part with the contract, had a cause of action against the lessees for the damages accruing to him on its breach by the lessees, and that without regard to the character of title owned by other lessors to the respective tracts contributed by them to the block, and also without regard to the manner of execution (whether defective or not) by them of the original contract. It was also there held that the covenant in the contract that the lessees should drill a well on.the block of land intended to be leased did not render the contract joint and entire in respect to the stipulation for liquidated damages and the rights of the plaintiffs to recover the same in these suits. We are 'convinced that our original opinion is sound on these questions, and that they have been definitely adjudicáted. Houston, etc., Land Co. v. Westergreen (Tex. Sup.) 27 S.W.(2d) 526.

This disposes of the contention that the contract sued on was unenforceable against the appellants because of alleged vice or invalidity in the execution thereof by lessors other than the particular plaintiff suing defendants Gibson & Johnson, and consideration will now be given to the question as to whether or not the original contract, signed by the husband and not signed and privily acknowledged by the wife, is enforceable by the particular plaintiff against the defendants; the land being the homestead of such plaintiff.^ That is, would such state of facts be available as a defense to an action for damages for breach of the original contract, the plaintiff thereafter in due time having tendered to the purchaser a conveyance properly signed and acknowledged by himself and wife? We therefore consider the effect of this contention upon the right of recovery by the plaintiffs in the eases now under consideration, and for brevity the contention will be referred to as the homestead question.

The plaintiff Mrs. Lena Axe is not affected by it, since she was a widow at the time of the execution of the contract sued on, and as to her no question as to the validity of that contract arises.

As to Ed Gist, the testimony bearing upon the homestead question in his case is, as found in appellants’ brief, as follows:

“I am a married man. I use this place for a farm and cultivate it each year, but I live on my uncle’s place where the house -is. There is a house on my farm. I do claim this 170 acres as my home. I have some children and they live with me. I signed the original eontract when I put in the 170 acres. My wife did not sign.”

The extract fully reflects all the testimony on the point. It discloses the status of the property at the time of the trial, but it can-. not be said to establish the homestead character of the land three years prior to the trial when the original contract was executed.

It is suggested that the testimony bearing on the homestead question relative to the B. E. Ward lease, although conclusively showing it to be a homestead at the date of the original contract, does not show that such impediment to the deal existed at the date the appellant breached the contract. That in this respect the appellants failed to discharge the burden of establishing the special defense pleaded by them. Such seems to be the state of the testimony, and doubtless accounts for the views of the trial court in failing to give effect to appellants’ contention. The testimony relating to the homestead question in each instance being of doubtful and equivocal nature in material respects as pointed out, necessarily the express findings of fact by the court, and those implied from such findings, resolve the homestead question in favor of appellees. Cates v. Clark (Tex. Sup.) 33 S. W. (2d) 1065, 1066; Landers v. McCutchan (Tex. Civ. App.) 161 S. W. 960.

In the first case, and upon a record similar to that before us, the Supreme Court holds:

“In view of this record and the findings of fact by the trial court under the well-recognized rule of law, it is presumed that, in support of such judgment entered, all facts were found in favor of the defendants in error which have any support in the evidence.” -

, ' We think our conclusions correct in view of the fact that the findings of the court in the instant ease, (1) made no specific findings on the homestead issue, (2) no request for such findings was made, and (3) no specific attack was made on the findings on this particular ground.

A more fundamental reason, however, for overruling this contention based upon the homestead question, is found in the proposition that, when a husband enters into an executory contract for the sale of a homestead, and afterwards tenders to the purchaser a sufficient conveyance joined in by his wife, the husband can compel the purchaser to respond in damages if he fails to take and pay for the land. Milliken v. Townsend (Tex. Com. App.) 16 S.W.(2d) 259.

At the risk of some repetition, this phase of the controversy will be further-considered in disposing of the next proposition.

By the third proposition complaint is made that the court erred “in admitting in evidence the original drilling contract of date January, 1927, because the same was not properly signed, acknowledged and executed by the lessors and their wives herein, the same being a contract conveying an interest in real estate which was used and occupied as the homestead of some of the signers.” The appellees object to the consideration of this proposition, as well as the assignment on which it is based, for the reason that the objection of the appellants to the admission of that instrument is not evidenced by a bill of exceptions showing that such objection was made and overruled by the court.

An objection to the introduction of testimony, to be available on appeal, must be preserved and presented by a bill of exceptions. Article 2237, Vernon’s Ann. Civ. Statutes, and numerous authorities there cited; Tex. Jur. vol. 3, p. 566, § 398:

The objection is sustained.

However, assuming the point preserved and presented, and since it is in substance embraced in proposition No. 2, further consideration will 'be given it.

Therefore, on the assumption stated, and construing the contention to be -that the exec-utory contract of a husband for the sale of an oil and gas lease on the homestead cannot form the basis of an action by the husband for damages against the intended purchaser on his refusal to take and pay for the lease, the husband showing an ability and willingness to comply by executing a proper lease signed and-acknowledged by the wife, we overrule the proposition, for the valid reason that the plaintiffs (lessors), through proper joinder by their respective wives, and within the time prescribed in the contract for their doing so, showed a willingness and ability to deliver to defendants, or in escrow, the leases stipulated for in the contract signed originally by the husbands only, and did in fact deposit such with the escrow agent. This, as noted, was sufficient to obviate the objections under consideration. The opinion in Milliken.v. Townsend (Tex. Com. App.) 16 S.W.(2d) 259, is considered conclusive on this phase of the case, although that case involved the question of specific performance rather" than damages as such. The court’s holding on that material point is aptly stated in the syllabus:

“Where married man became able to perform his contract to exchange homestead for defendant’s home and household effects, wife having supplied her consent to conveyance in manner prescribed by law, and he offered, in specific performance suit, deed duly signed and acknowledged by himself and wife, and was ready and willing to perform contract in all respects, he was entitled to specific performance.”

That, in principle, is a picture of the situation here, viewed from the standpoint of the appellees. The general rule in such cases is quoted in Long v. Martin (Tex. Civ. App.) 234 S. W. 91, 95, as follows:

“The general rule is that when a contract is entered into in good faith it is not necessary that the vendor, be actually in the situation to perform it at the time it is entered into, provided he be able at the proper time to place himself in that situation.” Citing Armstrong v. Palmer (Tex. Civ. App.) 218 S. W. 631; Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 983; Townshend v. Goodfellow, 40 Minn. 312, 41 N. W. 1056, 3 L. R. A. 739, 12 Am. St. Rep. 736.

Also see 19 C. J. 924; White v. Bates, 234 Ill. 276, 84 N. E. 906, citing and following Long v. Martin, supra.

A contract by the husband to convey the homestead is not unlawful, but if he is unable to do so by reason of nonjoinder of a wife in proper conveyance, he is liable in damages for his breach of the undertaking. Fonda v. Colquitt (Tex. Civ. App.) 165 S. W. 1195.

Upon principle and reason it logically follows tliat there would be an action in his favor for damages accruing to him by reason of-the breach of the contract by the intending purchaser, the husband being ready, able, and willing to perform, as appears to be the position of the plaintiffs in this instance. Upon the record before us it is not a question of whether or not such a conveyance can be enforced by the grantees, Gibson & Johnson, but the specific question is, when grantors (lessors) show themselves in a position to perform, can the grantees (lessees) urge the power of a married woman to retract as a defense in an action against them for damages? For the reasons assigned we think not. Additional authorities in support of the rule announced are: Frazier v. Lambert, 53 Tex. Civ. App. 506, 115 S. W. 1174; Kollaer v. Puckett (Tex. Civ. App.) 232 S. W. 914; Commercial Hotel v. Weeks (Tex. Civ. App.) 254 S. W. 521; J. B. Watkins, etc., Co. v. Campbell (Tex. Civ. App.) 81 S. W. 560; Crutcher v. Sligar (Tex. Civ. App.) 224 S. W. 227; Stringfellow v. Early, 15 Tex. Civ. App. 597, 40 S. W. 871.

For the reasons assigned we think both propositions 2 and 3 should be overruled.

The fourth proposition complains that the court erred in overruling special exceptions, etc. Appellees object to the consideration of the proposition on the ground that it is not supported by the record. We find no order evidencing that the same was ever called to the attention of the court or that it was acted upon by the court.

In Tex. Jur. vol. 3, p. 231, § 153, it is said:

“When the record fails to show an action upon special exceptions to the pleadings the appellant thereby waives the right to object in this respect in the appellate court.”

A great number of authorities are cited in - support of the proposition.

For the reasons assigned, the judgment of the trial court in each of said causes is affirmed.


text:
    H. F. GIBSON et al., Appellants, v. Samuel CANON, Appellee. SAME v. T. C. RICHARDSON, Appellee. SAME v. F. H. MONROE, Appellee.
    Nos. 799, 800, 801.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 23, 1931.
    Rehearing Denied Feb. 20, 1931.
    C. G. Whitten and D. M. Oldham, Jr., both of Abilene, for appellants.
    Stinson, Hair, Brooks & Duke, of Abilene, for appellee. :
   LESLIE, J.

The above styled and numbered causes are companion cases to that of Gibson & Johnson v. B. E. Ward et al. (Tex. Civ. App.) 35 S.W.(2d) 824. There are three propositions urged as grounds for reversal of the judgment of the trial court in each of the cases. These propositions are identical with the first, second, and third discussed in the Ward Case. For the reasons there assigned they are overruled in the instant cases, and the judgment of the trial court in each of the above cases is affirmed.

HICKMAN, C. J., and FUNDERBURK, J., ‘ concur.


text:
    GIBSON & JOHNSON, Appellants, v. John AXE, Appellee.
    No. 823.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 23, 1931.
    Rehearing Denied Feb. 20, 1931.
    C. G. Whitten and D. M. Oldham, Jr., both of Abilene, for appellants.
    Kirby, King & Overshiner, of Abilene, for appellee. •
   LESLIE, J.

This case is companion to that of Gibson & Johnson v. B. E. Ward et al. (Tex. Civ. App.) 35 S.W.(2d) 824, this day decided, and the opinion there disposes of the two questions presented by this appeal. The propositions were decided adversely to the appellants.

The question of defective execution of the original contract does not arise in this case, since John Axe was a widower at the time of its execution. The homestead question is out of the case.

The common question that does arise is whether the original contract was severable, and that was fully stated, discussed, and resolved adversely to appellants in Read v. Gibson & Johnson (Tex. Civ. App.) 12 S.W.(2d) 620; Gibson & Johnson v. Hill (Tex. Civ. App.) 34 S.W.(2d) 346; and in the Ward Case, supra.

For the reasons assigned, the judgment is affirmed.

HICKMAN, C. J., and FUNDERBURK, J., concur.


text:
    GIBSON & JOHNSON v. GIST.
    No. 791.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 23, 1931.
    Rehearing Denied Feb. 20, 1931.
    C. G. Whitten and D. M. Oldham, Jr., both of Abilene, for appellants.
    Kirby, King & Overshiner, of Abilene, for appellee.
   LESLIE, J.

This is a companion case to those this day decided by the opinion in the cases of (1) Lena Axe, (2) B. E. Ward et al., and (3) Ed Gist (Tex. Civ. App.) 35 S.W.(2d) 824, Gibson & Johnson were the defendants in each case. The facts are very fully set out in the opinion referred to, and that opinion discusses and disposes of the issues in the instant' case presented by propositions 1, 3, 4, and 5. Those points will not be further considered, but the same rulings will be here made, and for. the same reasons.

The second point here raised and not found in the appeal of the above cases is to the effect that the trial court erred in not permitting the appellants Gibson & Johnson to introduce in evidence their attorney’s opinion on the appellee’s title showing the alleged defects in the latter’s title, and their reason for rejecting same.

The appellee objects to the consideration of the proposition and the assignment on which based, for the reason that the point was not perserved by any proper bill of exceptions. Several defects are urged against the bill found in the record, and the main one is, in substance, that the bill fails to state the purpose for which the testimony was offered. We think the bill sufficiently indicates the purpose of the testimony, and that it is reasonably free from the other objections urged; but the error of the court in excluding the testimony is harmless, inasmuch as the record discloses that the point and purposes which the attorney’s letter would have established are fully established by other testimony to the same effect, and not objected to on the trial. Its relevancy was upon the existence of appellee’s life estate in the lands, and the appellants’ objections to the title for that reason.

However, after this objection was lodged to the title and within the thirty days permitted by the contract in which Gist might cure the defect, it appears that the appellants renounced the contract and' notified said Gist by letter, in part, as follows:

“This is to advise you that several of the landowners in your block have taken their lease out of the Abilene State Bank. * * * We, therefore, ask that you call at the Abilene State Bank at your earliest convenience and get your lease and call at our office for your abstract.”

This marked the end of the negotiations between the parties, and thereafter the action of appellee Gist with reference to the transaction is stated in his testimony as follows :

“Up to this time when I got this letter I was ready and willing to deliver the oil lease and carry out the contract. I did not do anything afterwards, after I received the letter, towards curing the title. I left it as it was a week or two.”

In response to the issues and the testimony, the trial court, after the general findings with reference to the execution of the contract, further found:

“That the plaintiffs afterwards in due time furnished to the defendants an abstract of title to said lands, and afterwards the defendants made certain written objections to said title; that with due diligence the plaintiffs attempted to cure said objections, and afterwards, on or about the 17th day of May, 1927, and within the thirty days permitted by said contract to the plaintiffs in which to cure said objections, and while said plaintiffs were in good faith attempting to cure said objections, the defendants refused to carry out their contract with plaintiffs and refused to take and paj> for, said lease on the ground that some of the lessors had refused to cure their titles, thus breaking up the block of land; that plaintiffs did not refuse to cure tile objections to their said title, but at the .time of the refusal of the defendants to carry out their contract on the grounds aforesaid, the plaintiffs were ready and willing to cure the objections to their title; * * * that the refusal of defendants to carry but their contract with the plaintiffs as aforesaid was not justified under the terms of said original contract; that the defendants thereby breached their said contract with the plaintiffs, who Were excused from any further performance of the same on their part,” etc.

It thus appears, that the breach occurred before the expiration of said thirty days, and while the objections were in the hands of the plaintiff's attorney with instructions to cure the same. As shown by the opinion in the Ward Case, it was not necessary that the plaintiff have the absolute title at the time he contracted to make the lease. As there shown, it was sufficient that he was able to perform at the time and under the terms of the contract. Long et al. v. Martin (Tex. Civ. App.) 234 S. W. 91, 99.

As bearing upon Othello Gist’s duty to proceed further with the performance of the contract, after receiving from Gibson & Johnson the letter of May 20th, the court in the opinion just cited, in dealing with á similar issue, used this language:

“When the plaintiffs declared their renunciation of the contract the defendant was authorized to accept their renunciation, and was relieved from further performance on his part. Cornelius v. Harris [Tex. Civ. App.] 163 S. W. 346, and authorities cited.”

The principle is equally applicable in the situation before us.

In the first of these cases before this court (Read v. Gibson & Johnson, 12 S.W. (2d) 620), it was held that Gibson & Johnson having based their refusal to carry out the contract on the grounds that other lessors had refused to cure objections to their title, or had taken down their abstracts, were es-topped afterwards to assign additional grounds for their refusal to comply with the original contract. This question was there fully discussed and the reasons and authorities for so holding may be found in that opinion.

It further appears from the terms of the contract that it cast an obligation on the appellants to cure the defects and for so doing “charge the amount, not to 'exceed $50.00 * * * against the amount of lease money against the one failing to correct his title as aforesaid.”

The record is silent as to what efforts, if any, the appellant made under this provision of the contract.

In so disposing of this appeal we are not called on to determine whether or not Othello Gist could have conveyed a merchantable title to the mineral rights, nor is it necessary to indicate the procedure, if any, by which he could have done so. The appellants’ renunciation of the contract intervened. Long .v. Martin, supra.

For these reasons and those assigned in the opinion in the Ward Case, the judgment of the trial court is affirmed.


author: WALTHALL, J.

text:
    JACKSON et ux. v. JACKSON.
    No. 2475.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 29, 1931.
    Rehearing Denied Feb. 19, 1931.

      Scarborough, Ely & King, of Abilene, for appellants.
    Kirby, King & Overshiner, of Abilene, for appellee.
   WALTHALL, J.

Mrs. Newton Jackson brought this suit against I. N. Jackson and wife, Mrs. Elma Jackson, to recover damages, actual and exemplary, alleging that by wrongful acts, and actuated by malice, they (defendants) induced her husband, Newton Jackson, to abandon her as his wife. Briefly stated, plaintiff alleged that she was married to Newton Jackson ; that Newton Jackson was the son of the defendants, I. N. Jackson and wife, Elma Jackson, and that by reason of the facts alleged, instigated by malice, defendants alienated the affections of their son from her, and caused him to abandon her as his wife.

Defendants answered by general demurrer, general denial, and special, denial of each and every allegation of plaintiff’s petition.

By trial amendment defendants pleaded that, should it be found that Newton Jackson left plaintiff on the advice of defendants, same was not willful, but was done in good faith for what was considered best for the welfare of their son, Newton Jackson.-

The case was tried to a jury and submitted upon special issues.

Upon the special issues submitted the jury found: That I. N. Jackson and wife, Mrs. Elma Jackson, by wrongful acts, induced Newton Jackson to abandon his wife, and that, in inducing Newton Jackson to abandon his wife, I. N. Jackson and Mrs. Elma Jackson were actuated by malice. The jury found and stated the sum of money which, if paid now, would compensate plaintiff for the damages sustained by her on account of ,the loss of affections, love, and companionship of her husband. The jury also found and assessed against defendants, jointly, a sum of money as exemplary damages. The jury found that in inducing Newton Jackson to abandon his wife such action on their part was not done in good faith and for the best welfare of their son. .

The court entered judgment in conformance with the verdict.

The court overruled defendants’ motion for a new trial, to which defendants excepted, gave notice of record, and perfected this appeal. Defendants also filed assignments of error.

Opinion.

Appellants present forty-two propositions. We think we may group them in what we may say.

Appellee had .testified that when her husband left her in California he left her without funds or friends; that she was about to become a mother. She was then permitted to testify, over objection, that she called upon appellants to assist her financially and that they refused to do s”o. Again, appellee was asked: “Did you ask Mrs. Jackson for financial support on account of the fact that you were to become a mother?” In answer ap-pellee was permitted to testify, over objection, “she (referring to Mrs. Jackson) said she would help. She said she would pay my •doctor’s bill and buy me a little clothes for my baby. So they wrote to Dr. Pickard telling him that they would be responsible for the doctor’s bill.” Again, appellant, I. N. Jackson, was asked: “Did you not tell the plaintiff that you would pay for the clothes for her and her baby?” Witness was permitted to answer, over objection: He “would not turn any body loose to charge things to him.” To which counsel for appellee said: “Then you visited your displeasure upon the child of your own blood?” Again, appellant was asked by counsel for appelle'e: “Have you contributed anything to the support and maintenance of your grandson, the plaintiff’s child?” Witness was permitted to say, over objection, he “had not contributed anything to the support of plaintiff or her child.”

Appellant, Mrs. I. N. Jackson, was asked the same question last above stated, and, over objection, she made a similar answer'. The objection to each of the above questions and answers was that appellants were under no obligation to support appellee or her child, and that the questions and answers, and' the conduct of appellee’s counsel were prejudicial and inflammatory.

Appellants submit that they were under no obligation to suppdrt appellee or her child, and that the cases and authorities referred to sustain their position.

In her counter proposition appellee submits that the evidence was admissible as tending to show malice, on the issue of exemplary damages, and as showing appellants’ unkind and hostile attitude toward appellee, a circumstance which might be taken with other circumstances tending to show that appellants brought about the separation.

This is not a case where appellee is suing appellants for support of herself and child. The issues presented by appellee, and submitted, are that appellants wrongfully induced her husband to abandon her as his wife, and that in'doing so they were actuated by malice, and asked for actual and exemplary damages.

In addition to the general denial, the only special issue, tendered and submitted by appellants, was that, if they did induce their son to abandon appellee as his wife, in doing so they acted in good faith and for the best welfare of their son.

Appellants’ son, Newton Jackson, was of age when he married appellee, and when ap-pellee requested and appellants refused financial assistance to appellee. Por the purpose of the proposition that appellants were under no legal obligation to send money to appellee, or to render her or her" child any financial assistance whatever, under any of the circumstances under which financial assistance was requested of them by appellee, it might be conceded that appellants were under no legal obligation to render appellee or her child financial or other assistance. The question Still remains, Was the evidence admissible as tending to prove or disprove any issue in the case?

Without quoting from the evidence we think it unquestionably shows that appellants’ son took appellee in his automobile from her home in Abilene with the intention, and in fact did take her to California, and while on the way married her. Appellants -introduced in- evidence the following telegrams, omitting formal parts:

“Apr. 12 — 29.
“I. N. Jackson,
“Dear Mama Papa I married Irene Win-inger November fourth please forgive love from us
'-‘[Signed] Newton Jac-kson 7:30 A. M.”
“April 13, 1929.
“I. N. Jackson Mrs. Jackson Newton left me today account letter- enclosed in Clara Letter without funds and to become a mother please wire some money to help needed badly Answer quick.
“[Signed] Irene Jackson.”
The following unsigned letter was introduced in evidence. Appellant, Mrs. Jackson, admitted having written it.
“Apr. 17.
“Irene:
“We have just received your letter. We are certainly sorry all this has happened. You got yourself into this now you will have to get out the best you can. You know we were opposed to Newton having anything to do with you. You have caused us a great deal of trouble, and caused him to be away from home right now. If we had have known anything about all this we would have stopped it and saved a lot of trouble. Now you need not expect anything from us, now or hereafter.”

At the time the above letter was written Newton had arrived at home (Abilene).

A portion of the following letter was introduced by appellee, and the rest by appellants, so we copy the whole of it. In the meantime appellee had returned to Abilene.

“Abilene, Texas. May 6,
“Dear Newton:
“We have just received your letter. That girl came right over here. Now we don’t want you to be like Leland. If you love that girl, now is the time to say so. I told her I would write you and show her the letter so you can write us one and write what you want her to know. I believe if you write us and say you are through forever with her, and expect to get a divorce, she will let up. She says she is from Mo. We are considering taking her to a Dr. at Sweetwater to see if it is true, if it is, we will buy her a ticket to St. Louis, where she says her sister is going. You see if we don’t know her condition, she might try to show a child of her sister or someone else as that one and cause us a lot of trouble. We have certainly had a lot of trouble.” (The rest of the letter, except in the’ close, refers to matters wholly foreign to any issues here.) The letter closes as follows:
“Papa will send the money. Write soon.
“Love, Mama.”

The letter does not give Newton’s address, but the evidence shows that he was in Fort Worth. Appellants introduced in evidence a letter from Newton to his mother. It is without date and does not give his address. It is lengthy, and we state only some of its contents. It acknowledges receipt of a letter from his mother the day he wrote, and with reference to “the girl I married, asking me whether or not I loved her.” The letter states he does not love her, but hates her, and would never as long as he lived consider living with her, and planned to quit her weeks before he did; states he loaths and despises her, and prays that he “may never see her again in this life or in the hereafter” ; advises against giving her money, consideration, or sympathy ; did not know her condition and did not care, and all that he could “wish for her in this life is eternal trouble,” and saying: “I would not take her back nor help her even if you asked me to, nor do I have any sympathy for her. I must close hoping that I have expressed myself clearly.”

The above letter was read to appellee before appellee went to Fort Worth.

We state some uncontroverted facts from the record. When appellee returned from California she went to see the appellants at their home in Abilene. That was about three weeks after Newton had returned. Appellee asked appellants to tell' her where Newton was, and they refused to do so.

The evidence covers some two hundred pages of the record, and we can state briefly only a few facts testified to by the witnesses, with some brief quotations, in order to determine the relevancy of some of the evidence referred to in the propositions, and other matters raised in the briefs.

Appellee testified that she went to appellants’ home and had conversations with them both before and after she learned of the whereabouts of her husband. She said: They said they had heard from Newton but would not tell her where he was but told why. She (Mrs. Jackson) said : “They were absolutely through. They' would not let me live with him. I asked her why, and she said, if I was not like I was — that I was ignorant. Mrs. Jackson said I was not in his class. I was too low class. * * * She said they would not care for me living with him if it was not for that. Both Mr. and Mrs. Jackson were present. When they told me that I was not his social equal I don’t know what I said. I just told them I thought I was. I told them I knew I didn’t have everything he did, but if they would tell Newton to come back to me, why we would leave Abilene and stay away from her. She said it was disgracing her because we went off there and married. I told them if they would let him come back to me we would leave Abilene and not come back. To that proposition they told me that they would not let him come back at all. Said if he ever came back they would be through with him and that they were going to disinherit him. * * * I went back- there the third time, and on that time she told me not to come back any more. It wouldn’t do any good. She sáid, ‘We are going-to send him to Beño.’ And Mr. Jackson said, ‘Yes, yes, we are going to send him to Beno if you start anything.’ They were going to send him to Beno to get a divorce from me. * * * I asked them where he (her husband) was but they would not tell me. I continued to try to find out where my husband was and I found out the next morning. I found out that he was staying at the Westbrook Hotel in Port Worth. My mother and I then went to Port Worth. We found Newton there. We went into the lobby of the Westbrook Hotel and were there when Newton came in. My mother was present. * * * When we met him he just says, ‘Well, hello.’ I told him I wanted to talk to him and he said ‘All right.’ So we went up to his room. We talked and he acted like he was .glad to see me and everything. * * * After we talked a while he said he was intending to come and get me. * * * I detailed to Newton the interview I had with his mother and father, and he said he intended to come after me in another two weeks anyway. He intended to come by. there. He had learned his lesson about leaving me, that’s what he said. As to his attitude toward me after that conversation, we talked and he told mother that I could stay right there with him and that he. would go register me in the hotel and we could get an apartment in a few days, that he had a job with the Hudson-E&sex people. He told mother that he would keep me there and he registered me in and mother went to another hotel where we were registered in and she stayed there. The next morning he went to work and the next morning mother came, home. * * * We all talked and got it all straightened out. Newton said he wanted to take me back and everything. In that conversation while we were there in Port Worth Newton made a statement to me as to his mother’s and father’s statement to him. He told me why he left me. He told me that the letter he got in San Bernardino was the cause, and he said his father and mother was the cause of his leaving me. He told me that was why he left me, because of his people, because of his mother and father. * * * He told me that he would never have left me but for what they wrote him. He told me that he left me because of what they had told him. * * * Because they disapproved of me. * * * He also said he didn’t care, he couldn’t live without me. He said, T don’t care what they say, we will live together— we will live together regardless of what they say. I don’t think I can make a living but I can try. I don’t think they will help me any further. * * * After that I had been there four or five days and his mother and father showed up on the scene. Newton told me they were coming and we were checking out of the hotel. * * * I saw them walking in * * * the door. * * * Newton was paying the hotel manager and Newton told me to run and hide. Mr. and Mrs. Jackson were going up the elevator. When Newton came down he said, ‘Come on honey and get our suitcases and put them in the car.’ He said, ‘See there, you almost got us caught.’ He also said that he thought they saw me, and he said they told him to come back up there after a while. We were going to our apartment. We went there and as soon as we got there he said he would go back up there so they would not suspect anything. * » ⅜ We moved to our home and he left me there. * * * He talked pleasantly to me. He said, T have to go back where they are because they will wonder where I am.’ * ⅜ * He just stayed about one hour and then he came back. When he came back he said his father saw me, * * * but did not tell his mother or something like that. He cried and he said he was afraid we were going to have some more trouble * * * with them. He said he was afraid that his people saw me and he was afraid they would make him leave me again.”

Witness said Newton went back to work. She had no conversation with appellants at that time. After coming from work Newton went to where appellee was, then went to where appellants were, but did not offer to take appellee. He came back to appellee, and stayed with her that night. Appellants left Fort Worth after a stay of two days. About twó days later appellee and Newton went to Abilene. Appellee testified: “About coming borne, be said bis father was going to give him some money and that be was going to California and take me with him and we would not let them know we were going back together until we got out there. We came home and he took me to my home. * * * That was about ten o’clock at night. He told me to get my things together and he would be by for me about 5 o^clock in the morning. I got my things ready but at 5 o’clock he did not come'for me. He never did come for me that night.” She testified that she and her sister went to the Jackson home, and that she knocked on the front and back doors and that when they came to the door she asked them whether Newton was there; they said he was not; she told them that Newton was to come for her. They replied, “We gave him some money and sent him to Nevada to get a divorce. You need never expect to see him any more. They said they sent him away for good this time, and said I wouldn’t ever find him any more.” Witness testified that she had told them and had written them that she was in a family way. They said they “did not think it was Newton’s,” and continued to say things like that. They wanted her to go to Sweetwater to be examined and when she consented they said they had changed their mind. Said they did not want any one in Abilene to know that she and Newton were married. Her baby was born on the 13th of November. From the time Newton was to take her to California and did not, she had not seen him and he had not lived with her. She had asked appellants-where Newton was, asked if they wouldn’t write him to send her some money, said they would not; Mrs. Jackson said she would pay the doctor’s bill and buy a little clothes for .the baby; later asked her why she wouldn’t pay the doctor’s bill. Said she did not say she would, and Mr. Jackson said, “My -wife did not tell you any such thing; ” “she said I was not telling the truth.”

There is much evidence similar to the above, both from, appellee and her mother. Appel-lee’s mother testified that appellee in her presence asked appellant I. N. Jackson whether he had heard from her husband. He said: “No, no, no, I don’t know. I don’t know where he is at. We just sent him off to get a divorce, me and mama. * * * Don’t know where he is. Just gave him money and sent him off. You need not think you will ever see him any more. * * * ” As to why he sent, him off said, “My daughter was poor and she was not welcome in society. * * * You cannot have him; no, no. We sent him off to get a divorce. * * * That was after Newton had gone away the last time.”

The evidence shows that appellee was about fourteen years old when she first commenced going with Newton, and was in her 17th year when she was married to him on November 24, 1928; he was about 26 years old.

In justice to appellants we will say that they admit having a number of conversations with appellee, but deny much of what appel-lee testified to; deny that they told appellee that they objected to her living with Newton as his wife because she was ignorant, or poor, or because she had no social position or prestige in Abilene, nor because Newton was educated and had financial backing; deny that they told her they had sent him away to get a divorce, or that they had done so, or that they had advised him to get a divorce; testified they were willing for Newton to live with appellee, if he wanted to.

We think the evidence admissible on the issues submitted as showing the attitude of appellants toward appellee.

If appellee’s testimony is to be credited, the jury could get the idea therefrom that appellants were acting together with appel-lee’s husband in abandoning appellee under the most distressing circumstances, and in refusing to give her information as to his whereabouts. Especially would that seem to be true after their reunion at Fort Worth and their return to Abilene. According to ap-pellee’s testimony, and it seems to be borne out by the undisputed credible facts, that Newton, if left to himself, wanted to live with appellee as his wife, but was influenced to abandon her the second time.

In his evidence Newton did not explain why he had abandoned his wife after he had taken her back and lived with her at Fort Worth, had brought her to Abilene telling her to have everything ready early the following morning for their continued journey, and, after going to his parents’ home, again left her without a word of explanation. Certainly nothing of a serious nature had intervened between their reunion at Fort Worth and his leaving her the second time at Abilene; if so, it is not made to appear in the record. No explanation is given as to the cause of Newton’s leaving appellee at Abilene. According to the evidence of appellee, Newton had said to her that he intended to take her with him, regardless of what appellants said or did, and yet, when he reached his home where appellants then were, he left his wife without any explanation then or thereafter. That appellants advised or caused the separation could be established by circumstantial as well as by direct evidence.

Appellants assign as prejudicial, inflammatory, and unjustified, remarks of counsel both in. the opening and closing arguments to the' jury. The court instructed the jury to disregard the remarks made in the opening argument, and counsel withdrew a portion of the remarks made in the closing. Appellants say tlie remarks were calculated to and did “extract from the jury an unrighteous verdict for this appellee.” We need not quote the verbiage of the remarks. We cannot attribute the verdict in favor of appellee wholly to the remarks of counsel. Counsel was authorized to discuss the evidence as the evidence is disclosed by the record, and to state and discuss such facts as counsel in good faith draws from all the circumstances of the case. Crosby County Cattle Company v. Corn (Tex. Civ. App.) 25 S.W.(2d) 283, and cases there cited. It is not submitted that counsel went outside the record or discussed facts not within the proof. Some of the facts stated by counsel are unquestioned, and if the testimony of appellee in all she said is to be believed, and a reasonable deduction therefrom as to what the facts are, counsel could hardly go outside the record in discussing them. The fact that remarks of counsel are harsh would not authorize or justify a reversal of the case. The- court may not restrict counsel in argument to any certain view of the facts, or the deductions to be drawn therefrom. If, as the record shows, appellants were well-to-do people, and if, as the record shows, their son Newton was to some extent dependent upon the financial support of his parents, and if, as the evidence shows, his parents threatened to withdraw their financial support, and to disinherit him if he continued to live with appellee, and had sent him away to secure a divorce from appellee, and that he had actually abandoned appellee and gone away for such, purpose, because of such threat of appellants, and if, as she testified, appellants said to her she was not in his class intellectually, financially, or socially, and if, as appellee testified, Newton said to her that he left her because of his parents, because of what they had said to him, the argument of counsel would not be outside the evidence. If the argument of counsel is within the proof, appeals to sympathy are not ordinarily considered improper and furnish no ground of complaint. 38 Cyc. 1498; Gulf, C. & S. F. Ry. Co. v. Norfleet, 78 Tex. 321, 14 S. W. 703.

There is no complaint that the verdict is excessive by reason of the argument complained of. Appellee sued for several times more than she recovered.

Beginning with the eleventh proposition and continuing through several following, appellants submit that it was error, being hearsay, to admit as evidence the statements made by Newton to appellee and her mother.

We have already stated much of the testimony of appellee and her mother embraced in the several propositions, and we need not repeat the same here. Some statements of Newton more fully stated elsewhere are: Reason he could not take her to his parents’ home: He told her to “run and hide”; “come on, honey, get our suitcases and put them in the car”; “he said he left me (in California) on account of his parents, because they disapproved of me;” “he told me that he would never have left me but for what they (appellants) wrote to him;” “said that his father and mother were the cause of his leaving her;” “said he left me on account of his parents; said, T don’t care what they say, we will live together; I don’t think I could make a living but I can try;’ ” said “he cried and said he was afraid we were going to have more trouble with them; said he was afraid his people saw me (Fort Worth) and that they would make him leave me again.” Appellee said her husband had never contributed anything to her support after he left her; that' her husband received letters from his father and mother which made him cry and worry. Mrs. Levy testified: After leaving appellants’ home appellee cried, saying appellants had sent her husband away. Appellee testified: Newton said he would live with her if appellants would permit. Appellee’s mother testified same as last above.

Appellants say in their brief that there is no Texas decision directly on the point presented, but refer to a few in other jurisdictions which hold the evidence admissible, such as Hardwick v. Hardwick, 130 Iowa, 230, 106 N. W. 639; Moir v. Moir, 181 Iowa, 1005, 165 N. W. 221; Gilbreath v. Gilbreath, 42 Colo. 5, 94 P. 23; Melcher v. Melcher, 102 Neb. 790, 169 N. W. 720, 4 A. L. R. 492, but submit that the weight of the authority is contrary to such holding.

The facts in the Hardwick Case are very similar to those here. The husband had abandoned the wife and the action was by the wife against her husband’s father for inducing the abandonment. The wife had gone to her mother’s home. On the trial the wife was permitted to state that her husband said to her that his father wanted him to leave her, her husband’s disposition towards her, and how his statement of his attitude to her affected him. The court held that the statement of his father’s wishes in the particular matter was a part of the matter described, and a declaration essential to give it meaning; that the declaration was a verbal act and tended to prove the effect of the father’s influence exerted on the son, the'issue being whether the father had wrongfully and maliciously induced the separation; that it was proper to show the declarations and acts of the father in respect to his son’s marriage relation,- and the way such declarations and acts caused him to treat his wife. Without stating the case at length, Moir v. Moir is in point and holds that the statement made by the husband that his father was insisting on him leaving her and was doing what he could to separate him and his wife, is admissible. The eases Gilbreath v. Gilbreath and Melcher v. Melcher hold similarly to the above. The opinions in the above cases refer to other eases so holding. The inquiry here was •whether Newton, the husband, had affection for his wife, and whether the appellants, by their acts and conduct, alienated such affection and thus brought about the abandonment. The conditions and facts are continuous and extend over a time from their first separation in California, down to and including their final separation after returning from Port Worth. The inquiry here involves Newton’s disposition toward, and his affection for appellee, and his declarations and conduct with reference to his parents’ attitude toward appellee and Newton’s relation toward and with appellee during the whole period.

The evidence strongly tends to show that Newton had affection for his wife; without quoting it, on more than one occasion he had with much feeling so expressed himself, and his acts disclosed it. His acts and conduct in California on receipt of letters from his parents, and his acts and conduct at Fort Worth on the arrival of his parents and while they were there, and on his arrival at Abilene, tend strongly to show his parents’ attitude toward appellee, verbal acts without expression in words, and, as we think, part of the res geste of the matters under investigation. What he said to appellee and to appellee’s mother at Abilene and at Fort Worth as to his acts, and as to his parents’ attitude toward appellee, were parts of the continuous things said and done, and res geste. Some authorities and courts speak of such as original evidence. Appellee and her mother testified to practically the same conversations with appellants.

Mr. Greenleaf, vol. 1, § 102, p. 158, also in note one under same section, also in section 108 and 123, discuss the subject here as original evidence, and hold as admissible correspondence and declarations to third parties as to the cause of the separation.

Mr. Jones in his work on evidence, under the head of res gestee, says' that: “Where emotions, feelings or state of the mind of third parties are to be proved the courts often permit their declarations as original evidence, although such statements have many of the elements of hearsay. This has often been illustrated to actions for the alienation of the wife’s affections, and other actions where the state of the feelings has been relevant” — citing cases.

Volume 22 O. J. 279, states the general rule to be that, where the existence of a particular mental state in a particular individual is a relevant fact, his declarations are admitted as circumstantial evidence, and part of the res gestee, and adds: “The effect of a certain influence on the mind of the declarant may be shown by his statements.”

Jones’ Commentaries on Evidence, quoting from a decision, says: “The declarations must be calculated to unfold the nature and quality of the facts which they are intended to explain; they must so harmonize with those facts as to form one transaction. There must be a transaction of which they are considered a part; they must be concomitant with the principal act, and so connected with it as to be regarded as the result and consequence of co-existent motives.” Vol. 2, p. 825, par. 348.

We think the above, on the admissibility of the evidence, fits the facts in controversy. In view of all the facts in evidence, without repeating them in this connection, the abandonment of appellee by her husband at Abilene, on the return from Fort Worth, can hardly be explained, except on the theory explained by the declarations admitted. They are parts of and harmonize with the transaction extended, of which they are considered' a part. It may be that some two or three statements of witnesses do not come within the rule announced, but we think they were competent as parts of the res gestas.

We have concluded the evidence was properly admitted as circumstances tending to explain the abandonment, the truth of the declarations, and the weight to be given them being for the jury.

Appellants present a number of propositions submitting error to the exclusion by the court of the testimony of a number of witnesses offered as tending to show that the reputation of appellee, her mother, and a witness for appellee, for virtue and chastity, was bad. Appellants submit that the evidence was admissible on the issues of good faith in giving advice to their son, Newton, and in mitigation of damages.

Appellee objects to the consideration of the propositions and the assignments of error on which they are based on the ground that same are based on insufficient bills of exceptions, stating wherein the bills are insufficient. An inspection of the bills discloses that many of them are insufficient under the rules. Some of the propositions, we think, might be considered on the issue of good faith on the part of appellants in advising their son. We are now passing solely upon the sufficiency of the assignments and the propositions as being sufficient for consideration, and not upon the admissibility of the evidence offered.

Appellants offered to show by a number of witnesses that the reputation of appellee for virtue and chastity, prior to her marriage with appellants’ son, was bad. The court excluded the tendered evidence of the several witnesses whose names are stated in the bills of exception. We have concluded that, if we may consider any one of the propositions, we may as well consider all on the issue of good faith, grouping them, as they practically present the same question.

The one contention made by appellant under the several propositions is to the effect that the law gives to a parent the fight, as long as the parent acts in good faith, to advise the child according to what the parent thinks is for the best interest of the child.

The question presented, as to the excluded evidence, seems to be, Does it tend to prove or disprove any issue in the case?

Appellee alleged certain acts and conduct on the part of appellants which appellee alleged to be wrongful and which show malice. Appellants deny that they did the acts complained of, and in their trial amendment specifically deny that they ever at any time advised or attempted to induce their son to abandon appellee, and pleaded in the alternative that, if their son left appellee on their advice, same was not willful, but was done in good faith and considered best for the welfare of their son. There is no suggestion or admission by appellee that she was of immoral character or that her reputation was that of a woman of immoral character; nor do appellants allege that appellee was a woman of immoral character, or that her reputation was such, nor do they in their .alternative plea of acting in good faith even remotely suggest that, if their son left appellee on their advice, such advice was given because of any immoral character, or reputation of immoral character of appellee, as was offered to be shown by the excluded evidence.

Appellants denied repeatedly in their evidence that they at any time, by acts or words, did anything to alienate the affection of their son, or advised the abandonment. It would seem that, under the pleading and the evidence of appellants, to show that appellee was a woman of immoral character, or that her reputation was such, evidence of appellee’s immoral character would not tend to show that appellants acted in good faith in giving their son advice, without alleging, and if not alleging, at least without proving, that they had some information or knowledge of ap-pellee’s immoral character, or her reputation as such, and that they acted upon such information or knowledge in giving advice.

We have found no Texas case in point. In White v. White, 76 Kan. 82, 90 P. 1087, 1089, plaintiff brought suit against her father-in-law to recover damages for alienating the affections of her husband and causing their separation. The court excluded evidence offered by the defendant tending to show the general reputation of the plaintiff for chastity at the time of the marriage. In disposing of the case the Supreme Court of Kansas said: “It is not alleged in the answer that the separation was caused by this fact, or even that it had ever come to the knowledge of the plaintiff’s husband; nor did the defendant offer to show that this reputation had any influence whatever in causing the estrangement; and no evidence was offered which would justify such an inference. On the contrary, the testimony shows that the young couple lived happily together until the acts averred in the petition occurred. However unchaste a young woman may be before her marriage, if she and her husband afterwards live together in peace, affection and marital happiness, a third person cannot invoke her past conduct as a defense for maliciously wrecking the home and destroying her happiness. The evidence could have no legitimate purpose in the trial of the case, and was properly excluded.”

Sutherland on Damages, vol. 4, pp. 4983, 4984, says: “Evidence of the plaintiff’s reputation for chastity when married is immaterial if it had nothing to do 'in bringing about the separation from her husband. The bad character of the wife of plaintiff before marriage cannot be shown unless specially pleaded.” Also, 30 C. J..p. 1126, par. 986, and note.

The husband of appellee testified that he knew appellee’s bad habits before he married her, in fact was a contributing cause with her, and did it voluntarily because they wanted to, and he and his parents testified that his parents knew nothing of appellee’s reputation before his marriage with her. We have concluded that to be a defense on the plea of good faith appellants must have known of the reputation of appellee and have acted in reference to such reputation, if they acted at all in inducing the separation, and that in the'condition of the evidence the court was not in error in excluding the evidence referred to in the several bills of exception.

The thirty-seventh, thirty-eighth, thirty-ninth, and fortieth propositions are not properly briefed under the rules, and as to them appellee’s objections are sustained.

The forty-first and forty-second propositions, we think, present no reversible error.

Binding no reversible error in the record, the case is affirmed.