text:
    BELL et al. v. DITMORE et al.
    No. 7622.
    Court of Civil Appeals of Texas. Austin.
    April 8, 1931.
    Appellant’s and Appellee’s Motion Overruled May 6, 1931.
    Hamner & Ponder, of Sweetwater, for appellants.
    J. W. Stovall and Chas. Gibbs, both of San Angelo, for appellees.
   BLAIR, J.

This appeal is from an order overruling a motion to dissolve a temporary injunction, and involves, primarily, the construction of article 2922a, R. S. 1925, as amended in 1927 (Acts 1927,1st Called Sess., c. 78, § 1 [Vernon’s Ann. Civ. St. art. 2922a]), and article 2922c, R. S. 1925, to determine whether a county school board may create a rural high school district comprising an area of more than 100 square miles, except (a) upon approval of the board of trustees of each district affected; and (b) upon a majority of the qualified voters of the proposed district approving same at an election called for that purpose.

Article 2922a, R. S. 1925, in part reads: “Provided, also, that the county board may annex one or more common school districts to a common school district having four hundred or more scholastic population or to an independent district having one hundred and fifty or more scholastic population upon the approval of the board of trustees of the common school district having four hundred or more scholastic population, or of the independent district having one hundred and fifty or more scholastic population, as the case may be.”

As amended by House Bill 89, Acts 1927, this article in part now reads: “⅜ * * Provided also that the county school trustees may annex one or more common school districts or one or more independent school districts having less than two hundred and fifty scholastic population to a common school district having four hundred or more scholastic population or to an independent district having two hundred and fifty or more scholastic population upon the approval of the board of trustees of each school district affected.”

Article 2922c reads: “No rural high school district, as provided for herein, shall contain a greater area than one hundred square miles, or more than seven elementary school districts, except that the county school board of school trustees may form rural high school districts, as provided in Article 2922a, containing more than one hundred square miles, upon a vote of a majority of the qualified electors in the said proposed rural high school district voting at an election called for such purpose; and provided further, that the said board of county school trustees may form a rural high school district containing more than seven elementary districts upon a vote of. a majority of the qualified voters in each of the elementary districts within such, proposed rural high school district.”

Appellants’ contention is not sustained that article 2922c, which requires that proposed rural high school districts comprising an area of more than 100 square miles shall be determined by a majority of the qualified voters of such proposed districts, furnishes an additional or independent method of creating rural high school districts from that prescribed by article 2922a, as amended in 1927, which requires that proposed rural high school districts comprising an area of less than 100 square miles shall be created only upon the “approval of the board of trustees of each school district affected,” for two reasons, as follows:

First, the act of 1927, amending article 2922a, R. S. 1925, reveals the legislative intent to prohibit any grouping of'school districts to form a- rural high school by the county school board, except upon the approval of the board of each district affected, because prior to its amendment in 1927, that article merely required the county school board to obtain the consent or approval of the larger common or independent district to which one or more smaller districts were annexed in order to form a rural high school district. This procedure was manifestly unfair, because the smaller districts had no voice in the matter, and was evidently the reason for the amendment.

Second, the language of article 2922c is prohibitive in its nature, and was intended to impose limitations upon the authority given the county school board and the board of trustees of each school district affected, with respect to creating rural high school districts comprising an area of more than 100 square miles except upon a majority vote of the qualified voters approving same; that is, the manner of creating rural high school districts as provided for in article 2922a, as amended in 1927, should be followed in each instance, but that, where the proposed district comprised an area of more than 100 square miles, the cheating authorities 'should also have the ¿pproval of a majority of the qualified voters of the proposed districts at an election called for that purpose. The language, “no rural high school district, as provided for herein, shall contain a greater area than one hundred square miles,” refers to districts created under article 2922a, is prohibitive in its nature, and was intended to limit the authority of the county school board and the board of trustees of each district affected to that extent. Likewise was the power given these boards to create rural high school districts limited by the further language of article 2922c, “except that the county school board of school trustees may form rural high school districts, as provided in Article 2922a,” containing a “greater area than one hundred square miles, « * * upon a vote of a majority of the qualified electors.” In fact, the entire language of article 2922c is prohibitive in its nature and was only intended as a limitation upon the authority given by article 2922a to create rural high school districts in the manner there prescribed, and was not intended as an additional method for forming such districts. To construe article 2922c otherwise than as merely imposing limitations would be to deprive the smaller districts of a proposed grouping of the only protection they have, namely, the approval of the grouping by the board of trustees of each district affected ; because in many instances as was the case here, the larger district decides the question by virtue of having the most votes.

Appellants suggest that, as a matter involving who shall pay the costs thereby incurred, we should determine whether the trial court erred in refusing to sustain its motion to dismiss the county commissioners of Coke county as parties defendant to this suit. They were made parties defendant upon the allegation that as the commissioners’ court of Coke county they canvassed the returns of the election for the proposed district, declared the election carried by a majority, and certified the results to the county school board. These are the only duties devolving upon a commissioners’ court in elections of this character, and the injunction should not have issued against these defendants restraining them from doing something which the petition alleges and the agreed facts show they had done prior to the filing of this suit. An injunction will not issue to enjoin an act already done. Ben C. Jones v. Philquist (Tex. Civ. App.) 249 S. W. 516.

Appellants also insist that the trial court erred in refusing to sustain their plea' to the jurisdiction for want of necessary parties to this suit.

The contention of appellants is that the' county school board of Coke county, Tex., is a body politic and a legal entity by virtue of article 2683, that it was not sued as such, but only the individuals who composed it were sued; and that this court should take notice of the absence of such necessary parties. This contention is sustained-. The identical question was passed upon and decided favorably to the contention of appellants in the case of Butman v. Jones (Tex. Civ. App.) 24 S.W.(2d) 796, where it was held that, in suits involving the validity of grouping common school district with an independent district to form a high school under article 2922a, the corporate county school board as well as the corporate board of each district affected should be sued as such, and that an appellate court would take notice of want of necessary par-ties at any stage of the proceedings. We therefore reverse the judgment of the trial, court and remand the cause to afford appel-lees an opportunity to make necessary parties, failing which the suit should be dismissed.

Reversed and remanded, with instructions.


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    GOSSMAN et al. v. WEST.
    No. 9541.
    Court of Civil Appeals of Texas. Galveston.
    April 14, 1931.
    W. P. Hamblen, of Houston, for plaintiffs in error.
    Platt, West & Stevenson, of Houston, for defendant in error.
   PLEASANTS, C. J.

This appeal is from an order of the court below accepting and confirming the report of commissioners of partition appointed by the court in a suit for partition brought by defendant in error against plaintiffs in error and others to partition . land owned-jointly by the parties to the suit.

Plaintiffs in error filed the following objection -to the report of the commissioners, which was duly verified by the oath of two of the objectors:

“Now -comes Joe Gossman, Frank Goss-man, Theodore Gossman and Albert Gossman, defendants in the above numbered and entitled cause, and file this their exception to the Report filed herein by J. L. Moskowitz and J. S. Boyles, commissioners heretofore appointed by this court, and say that the report of said commissioners is unfair, unjust and inequitable to these defendants, in this, that the land sought to -be partitioned consists of two tracts out of the David Harris League in Harris County, Texas, one tract consisting of 50 acres, and one tract consisting of 150 acres, approximately, that said tracts are not contiguous, and that these defendants own approximately a one-half interest in the same, and that there is no reason why the two tracts should not be divided so that both the plaintiff and the defendants would receive a portion of both of said tracts. That both of said tracts of land front on Middle Bayou, which is a running stream of water and which provides good fishing, -bathing and other sports, in addition to furnishing water at all times for cattle and domestic uses, and is a navigable stream with a depth of 6 to 20 feet and about 50 feet in width, that in the partition, as shown by the report filed by J. L. Moskowitz and J. S. Boyles, no part of the land set apart to these defendants- has any frontage whatever on Middle Bayou but same is entirely cut off from Middle Bayou and these defendants therefore have no access to the Bayou, and that the partition as suggested in said report is unfair and inequitable and same should be set aside and new commissioners appointed.
“Wherefore, these defendants pray that said report be not accepted, but that same be cancelled and that new commissioners be appointed herein.”

No jury was asked for, and the issues of fact as well as of law raised hy -the pleadings and evidence were submitted to the court. After hearing the evidence, the court rendered judgment adopting the report of the commissioners and ordering that the title of the respective parties be vested in accordance therewith.

At the request of plaintiffs in error, the court made and filed the following findings of fact and conclusions of law:

“Findings of Facts.
“1st. By decree of this Couyt entered on the 19th day of April, 1929, commissioners were appointed to divide between plaintiff and defendants -the lands described in plaintiff’s petition, and on the 26th day of June, 1929, said commissioners filed their report in writing and under oath. On the 1st day of July, 1929, defendants, Joe Gossman, Albert Gossman, Theodore 'Gossman, and Frank Gossman, through their attorney, filed objections to said report, alleging that the same did not fairly and equitably divide said lands. I find that there is no charge of fraud either by the pleadings or the evidence. •
“2nd. This Court judicially knows that as a general proposition there is a difference in the value of land situated on a creek or bayou from that not so located, but the Court does not undertake to pass upon the value of the particular land set apart to the respective parties to this cause, except as shown by the evidence produced upon the trial hereof and the report of the commissioners. I find that the evidence offered upon the hearing of defendants’ objection is insufficient to repel the legal presumption existing in favor of the regularity and fairness of the' report of commissioners.
“3rd. I find that the commissioners have divided said lands fairly and equitably and in accordance with the order of this Court.
“Conclusions of Law.
“I conclude as a matter of law that the objections of said defendants, Joe Gossman, Albert Gossman, Theodore Gossman, and Frank Gossman, should be overruled, and that the report of the commissioners filed in this cause should be approved and confirmed by this Court, and entered of record.”

As presented by the record and the brief of plaintiffs in error, this appeal presents the one question of whether the finding of the trial court that the partition made by the commissioners and approved by the court was equal and just. Appellants’ brief thus states the question:

“This appeal is based purely on the question of fact that the award made by the Commissioners is not a fair and equitable partition of the land, and that the part awarded to the defendant in error West is proportionately much more valuable than that awarded to the plaintiffs in error.”

From our examination of the statement of fact, we find the following testimony, which amply sustains the fact conclusions of the trial court:

J. L. Moskowitz, one of the commissioners was offered as a witness by defendánt in error, and testified: “I went upon this land and went over it and consider the partition, the way we divided it, fair and equitable between the parties. As I found it, about two-thirds of that particular land was under water and about half of it was overgrown with mesquite — I guess you would call it mesquite —and trees of small growth, a thicket; and in fact I have been surveying here over twenty years and don’t know of any piece of land— well, I might say in Harris County, that has any bigger (thicket) along that bayou. East from the bayou in the neighborhood of where we gave the Gossmans their land it was probably about two-thirds clear, that is prairie and light timber. There was water in this Big Island Slough at the time we were there. It was practically all marsh land from Big Island Slough to Middle Bayou.” 1-Ie further stated on cross-examination that “the land down on the creek was not cleared; it was all brush.”

J. Stewart Boyles, county surveyor, and one of the commissioners, was offered as a witness by plaintiffs in error, and he testified:

“I think that the partition we have made is a fair and equitable partition of that 200 acres of land or else I would not have signed it. We partitioned it so as to give the four Gossmans their land in a body. In my opinion the land of the Gossmans is worth as much as the land we set aside to Mr. West; that is, in the proportion to the amount they owned * * * and my idea in this is, so far as the value of the land is concerned, I don’t see any material difference. The Gossman land is not on a road, but it is nearer the road than the proportion we set aside to Mr. West. * * *
“If I had known it was desired by both parties, or one of the parties, they could .have bayou frontage, we could very easily have done it. But as I have stated here on the stand, the reason we partitioned the property as we did was to try to. keep, the Gossman tract in a body, and to try to keep West’s tract in a body so as to adjoin the property he owned; but just to give him access to the bayou, Mr. Hamblen, didn’t enter into it with us at all. It was merely a question of Mr. West already having a tract here, a tract that comes in the bend, and a tract on the north, and we set aside to him a portion of the property so all of his land would be together. And we gave to the Gossmans so as to keep their tract in one body.”

The Gossman defendants had asked in their, pleading that their interest in the land be set aside to them jointly.

Two of the Gossmans, plaintiffs in error, testified that in their opinion the land was not fairly divided because they were given no frontage on the bayou, but neither of them testified that the market value of the land given them was not equal to that set aside to the defendant in error.

Two or three witnesses testified for plaintiffs in error that in their opinion generally land fronting on the bayou was more valuable than that without water frontage. Only one of these witnesses gave any opinion as to the relative value of the land given plaintiffs in error and that set apart to the defendant in error. This witness placed the value of the land given defendant in error on the bayou at three times that of land on the prairie in that locality.

Upon this state of the evidence, it certainly cannot be held that the finding of the court that the partition was fairly made is not supported by sufficient evidence.

The fact findings of a trial court are accorded the same dignity and eonelusiveness as those of a jury, and an appellate court is not authorized to disturb such findings, unless they are so against the overwhelming weight of the evidence that the mind and conscience of the court are convinced that they are wrong. No such case is presented by this record.

It follows that the judgment should be affirmed, and it has been so ordered.

Affirmed.


author: HIGGINS, J.

text:
    O’KEEFFE v. WERTHMANN et al.
    No. 2521.
    Court of Civil Appeals of Texas. El Paso.
    April 9, 1931.
    Rehearing Denied May 7, 1931.
    Kemp & Nagle, of El Paso, for appellant.
    C. W. Croom and D. E. Mulcahy, Co. Atty., both of El Paso, for appellees.
   HIGGINS, J.

This is a suit filed February 17, 1930, by Thomas O’Keeffe, against John, and Charles Werthmann, and others not necessary to mention, to recover a small diamond-shaped tract of land, a part of the Simeon Hart pre-emption survey No. 2. in El Paso county. The land is described in the petition as follows:

“Being a strip of land about 152 feet in width off of the south end of that certain tract of land out of the Simeon Hart Preemption Survey No. 2 conveyed to the said Thomas O’Keeffe by Thomas F. Davis, individually and as executor of the last will and testament of Juan S. Hart, Deceased, and as attorney in fact for other parties, by deed dated March 25, 1921, recorded in Book 510, on page 491, records of deeds of El Paso County, Texas, and more particularly described as follows, to-wit:
“Beginning at the south corner of said tract of land so conveyed to the said Thomas O’Keeffe as aforesaid, on the northeast bank of the Rio Grande, the same being the southwest corner of the Old Fo.rt Bliss Military Reservation; thence north with the east line of said survey so conveyed, and the west line Of the old Fort Bliss Military Reservation about 185 feet to the south line of Doniphan Drive, the same being the present County road which is about 30 feet in width; thence in a northwesterly direction with the south line of said Doniphan Drive, the same being the present County road (which County is now seeking to broaden) 152 feet; thence due south to the north bank of the Rio Grande; thence in a southeasterly direction with the north bank of the Rio Grande to the place of beginning.”

The Werthmanns pleaded not guilty, the ten years’ statute of limitations, and valuable improvements made in good faith.

As to the record title, the issue is one of boundary. The boundary issue is as to the location of the west line of the Old Fort Bliss Military Reservation. The Werthmanns claim that such line is coincident with the northwest line of the land sued for being the line marked C-D on the drawing below.

O’Keeffe claims that the reservation line is the southeast line of the disputed tract marked A-B on such drawing.

The situation is sufficiently illustrated by this crude drawing:

These issues were submitted:

“Question No. One: Do you find from a preponderance of the evidence that the tract of land described in plaintiff’s petition is enclosed within the boundaries set forth in the deed from the Juan Hart heirs to. Thomas O’Keeffe, said deed dated 25th day of March, 1921?
“Question No. Two: Do you find from a preponderance of tlie evidence that the defendants, either in person or in connection with their father under whom they claim, had peaceable and adverse possession of the land in controversy, using or enjoying the same for any period of ten years before the filing of this suit on the 17th day of February, 1930?”

In connection with the second question, definitions of the terms “peaceable possession” and “adverse possession” were given.

The first question was answered “No,” the second, “They have.”

The issues relating to improvements were conditionally submitted and were not answered.

Error is assigned to the submission of the first issue upon the ground that the uncontro-verted evidence shows that the land described in the .petition is inclosed within the boundaries set forth in the deed from the Juan Hart heirs to Thomas O’Keeffe of date March 25, 1921.

The agreed statement of facts does not disclose the boundaries of the deed mentioned. As to that deed it simply shows plaintiff introduced same in evidence, “said deed conveying the property described in plaintiff’s petition.”

In the state of the reco'rd it is thus an un-controverted fact that the land described in the petition is inclosed within the boundaries of the deed mentioned. The judgment cannot be sustained upon the first finding.

Passing to the issue of limitation the evidence clearly supports the second finding.

The Werthmanns claim under their father, Joseph Werthmann, who died in 1914. The father purchased from John O’Keeffe, a brother of the plaintiff. The land conveyed was described by lot numbers, the most northerly lot being Nol 17, and the claim of the defendants is that the land in-controversy is embraced in, that lot. The deed to the father is dated October 15, 1913, filed for record October 15, 1913. On the date last mentioned he conveyed to Frank Foster. By deed of February 27, 1914, filed for record March 21, 1914, Foster reconveyed to the father of the defendants.

In 1914 the defendants Werthmann built a house on the land in controversy; another about 1916; and a filling station and garage in 1921. The first house is built wholly upon the land in dispute. So are the filling station and garage. The 1916 house is wholly on the land, except the east corner which projects ■slightly across the southeast line of the land in dispute. For the houses built in 1914 and 1916 the, Werthmanns applied for and obtained building permits from the city of El Paso. The pertinency of this arises from the fact that the west line of the city of El Paso is the west line of the Old Fort Blis® Military Reservation, and, if that line is where defendants assert it to be, the land in dispute lies in the city of El Paso, and building permits were necessary.

Joe Werthmann, a bachelor, has lived continuously in the house first built to the present time.

With his family, Charles Werthmann has lived continuously in the 1916 house to date. Their possession of these houses has certainly been adverse. Appellant makes no point as to these facts, but contends that the disputed area was not fenced, and under the so-called encroachment doctrine appellees cannot maintain their limitation title except as to the land actually in their possession.

Appellant’s position is disclosed by two special charges requested by him and refused by the court. They read:

“In connection with special issue No. two submitted to you by the Court, you are instructed that to constitute peaceable and adverse possession of the premises described by plaintiff jn his petition, that it will be necessary for the defendants, Werthmanns, to have possession of all said premises, and it would not be sufficient merely to, occupy and use building erected thereon, though they were erected continuously for a period of ten years before the filing of the suit, but it would be necessary to constitute continuous, peaceable and adverse possession thereof that said entire premises described in plaintiff’s petition be continuously enclosed for. a period of ten years before the filing of the suit.”

No. 3: “You are instructed in connection with Question No. 2 submitted to you by'the Court, to constitute peaceable and «adverse possession, as therein defined, it would be necessary for the defendants, Werthmann, or their father, to continuously have possession of the entire premises described in plaintiff’s petition for a period of ten years next before the filing of the case, and during said period of ten years to continuously use, occupy and enjoy-said entire premises and the use,, occupation and enjoyment of a part thereof would, not be sufficient.”

In our opinion the doctrine of encroachment which has been often applied in this state has no application to the facts.disclosed by this r.ecord. Some of the cases applying the doctrine and here cited by appellant are Bracken v. Jones, 63 Tex. 187; Titel v. Garland, 99 Tex. 201, 87 S. W. 1152; Houston Oil Co. v. Holland (Tex. Com. App.) 222 S. W. 546; Carley v. Parton, 75 Tex. 98, 12 S. W. 950; Smith v. Lumber Co. (Tex. Civ. App.) 242 S. W. 767, 770; Bailey v. Kirby Lumber Co. .(Tex. Civ. App.) 195 S. W. 221, 229; Fielder v. Houston Oil Co. (Tex. Com. App.) 208 S. W. 158. Examination of these eases and others applying the rule invoked by appellant will disclose a state of facts radically different from tliat here shown.

As said by Judge Williams in Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 470, 31 B. R. A. (N. S.) 153, in discussing the doctrine: “It must he kept constantly in mind that, in applying a proposition like that, the facts of particular cases must be carefully regarded, and that additional facts may easily take the question, whether or not the evidences of possession and adverse claim were sufficiently certain and unequivocal to give notice to reasonably diligent owners, out of the province of the court and into that of the .jury.”

Charles Werthmann testified:

“Joseph Werthmann was my father. There is a monument out there where we live, and that same monument was there when we bought the property. Mr. John O’Keefe showed me that monument. He is the man from whom my father bought the property. We put our improvements right there opposite where the monument was, on that side of the monument. That monument was there on the ground when we bought it sixteen years ago. The river lies to the rear of that property, the Rio Grande River. The street car track lies on the northern part of that property, and the pavement, called Doniphan Drive. I fenced about four hundred feet of that property on the road, beginning at the monument. That fence extended three-fourths of the way around that property. My father died in 1914. He left no children besides John and I. This fence was put around this property in 1913 before my father died. My brother and I built the fence with the help of a man. There was a wooden fence in front, and wire fence in back. The picket wooden fence in front is still standing. I put three houses on the property. I started the first house there in 1913, and completed it in 1914. There was a four room house, which I live in. That house is about fifteen or twenty feet from this monument. That house is there now. I built another house there in 1916, after my brother married. I think that took me about nine months, it was completed sometime in 1916 and my brother moved into it. He has a family. He is living right there on the property now. He has two boys, and one girl. He has been living in the house since 1916. We also built a garage there. The garage is north of the monument. Mr. Thomas O’Keefe never put any improvements on that property that I know of, and no one else. I have made it my home continuously, and am still living there. I have a few chickens there but no cows. I had a cow and horse years ago. I kept the horse right in the pasture on the north side. I had a corral there. I built a little house there in 1913, and another one in 1916. I put the fence up in 1913. I started the garage in 1919 and finished it in 1921. In 1917 and 1918 I was overseas. My brother stayed here, he did not get to go over. I have been occupying the place there ever since. I have been paying-taxes on it and have got the tax receipts right here. The record will show that John O’Keefe, brother of the plaintiff in this case, deeded to my father the lots described in this map shown to the jury by deed of date October 25th, 1913, and recorded the same date. Mr. John O’Keefe showed that property to me and. my father at or about that date. They got off the street car, I was waiting for them, we walked down the road, they started right from that call, twenty-five feet right from here, and walked clean down to the monument, the only monument there at that time, and it is still there. That is where John O’Keefe told us the property went to. Before we put our improvements on there we had it surveyed. * * *
“When my father and Mr. O’Keefe came there, as I stated a while ago, I was waiting for them at the old stable — where the old stables used to be, still standing there. The stables were at the corner where my property starts, the south corner toward town. I was down there. I waited down there next to town until my father and Mr. John O’Keefe came there. I heard the conversation between Mr. John O’Keefe and my father. They got off the street car right at that old stable, and that is where he told my father. He said the property ran from there on down to the monument. We all three went down to the monument together. I was under the impression that this property was in the city limits. I received tax receipts from the city and county both. I did not know where the city limit was. I paid for the taxes in the city limits. The first house we put in was nearest to the smelter, and is standing there today. That is the one I built in 1913. I built four houses there, all told. I constructed the last house in 1927. That is not on disputed property. There were two four room houses. The house I built in 1916 is the house nearest to town. I got a city permit for the first house that I built. I got that permit in 1913. I came here to the City of El Paso, went over to the city hall and got a permit to build the house, representing that it was in the city limits of the city of El Paso. I was under the impression that it was at the time. * * *
“I can show you on that map where that fence was that I put there in 1913. It says North, at 45 angle, right about 800 feet back of the house, from the front north point about 800 feet more or less. Some of it is still standing. The fence went clean back to where that camp ground was. I built the camp ground about eight hundred feet back, I think; back six hundred feet from the point, the north point of my land, going toward town. The fence went along the county road and then down to the river. I did not have .any fence along the river bank in the disputed strip. I mean to say that there was a fence this side of that house. It is not a fact that when I built that camp or garage and filling station that I tore whatever fence there was there down; some of it is still standing there, in spots. When I built the garage and filling station in 1921 I tore the fence down in front so people could get in. * * *
“That land is what was sold to me, and that is the reason why I claim it. I bought it and that is the reason I claim it. Of course I would claim it. I bought it and it was shown to me, and it was surveyed, and if it had not been that way I would not have bought it, I would not have claimed it. That fence I had was regular chicken wire, with barbed wire on top. There was barbed wire on top and chicken wire on the bottom. I did not have chicken wire all along the road. I had chicken wire in front of the houses. I had that chicken wire before I built the garage and filling station, and when I built the garage I tore the front out. I did not tear out all the front until I built the other houses. I did not tear that out down to the river, it still stands. It is not a fact that you can walk all over that place there, without you go through a gate. You can not walk around there without being interfered with by a wire fence. That steel frame I had there' went from the garage to the house. I was going to build a big garage with that steel frame. The garage ran right to the point, the point of the land. I had a fence back to the river,, and it still stands there. Part of the fence still stands along the bank of the river. I never had a fence all along the river bank, not back of the houses, so I could not get in the water, that is practically all disputed property. My fence was knocked down- in spots, at one little place there in back. The fence went from Doniphan Drive past my house, clean down to the camp ground. It is not there any more, has not been there for several years. For a good many years it has not been there.”

John Werthmann testified:

“My name is John Werthmann. I am thirty-eight years of age. My family consists of a wife and three children. I was married in 1915,' I do not remember the month. I was married right there where I am living at the smelter. I was married in the house I am living in now. That house was built around in about 1913. My father died in 1914, December, the 1st, I think. I had been living in that house before he died. We built the next house around about 1915. That was an adobe house, 14x14 four rooms. That house has been torn down recently. We put a garage on that' property, about thirty-six feet long, I don’t know how wide. Pretty good sized garage. It fronts on the main highway. We put a steel frame on the garage, that is pretty good size, about twenty-five or thirty feet. I know where the disputed property is. It is where our improvements are. I have not lived anywhere else since I married. That has been my home all the time. Tom O’Keefe never came around there. He never claimed any of the improvements put on there by my brother and I as his property. We had a wire fence around-the property. It started from the triangle. I know where the monument is, it started from the monument. The triangle is where the monument is. The fence starts in there and goes clean up the other side of the camp ground, and takes in our improvements. There was* a wooden fence around all the houses. Part of the fence goes to the river.
“The back part of the fence went to the a-iver. The far end, next to the smelter. The one next to town did not go to the river. We built that fence in 1913. We had it fenced all in between there then. We started to put the garage on there in 1919, I guess, and finished it in 1921. We did not commence using it until 1931. When we commenced using it we tore down our fence, had to tear it down before to get material in there to build, then put it up again after that sometime. When we commenced operating we tore it down. We did not have a fence there after that.”

The monument referred to in the testimony is at the west corner of the area in dispute, marked D on the above plat.

We think this testimony amply sufficient to support the plea of limitation, even though the fence along the northwest and northeast lines may not have been very substantial nor maintained during the entire prescriptive period. In this connection we quote from Richards v. Smith, 67 Tex. 610, 4 S. W. 571, 573, where Judge Stayton said:

“We do not think an actual inclosuxe, by fence or otherwise, necessary in all cases to give an exclusive possession. The character and situation of the land, and the uses to’ which it is adapted, and may be and is actually put, must be considered in determining whether an occupation is exclusive or not. To give title by limitation there must be an adverse claim and exclusive possession or occupation of the thing for the length of time and under the circumstances prescribed by the statute.
“The adverse claim may be manifested by facts which will not amount to an exclusive possession, while an exclusive possession may be such as to be sufficient evidence of an adverse claim. The placing of material around a tract of land for the purpose of erecting a fence, or the placing of material on land to erect a house, would be evidence, more or less strong, as it might be affected by other facts, that the person so placing material asserted a claim to be the owner of the land, and, unexplained, might be held sufficient evidence of an adverse claim.
■ “If, in addition to placing material around a tract of land, the person so placing it should commence to erect a fence around it, and while doing so should, by other means than a fence, secure to himself, and actually have, the exclusive possession and occupation of the land, it would seem that limitation would Tun from the time the exclusive occupation began. The facts must clearly show the adverse claim, and from its nature, as well as an exclusive possession, of which an inclosure substantial and permanent in character, accompanied with such use as the land is adapted to, is often the most satisfactory evidence.
“When the acts done upon a tract of land are such as to give unequivocal notice to all persons of a claim to it adverse to the claim of all others, and this is accompanied by an actual possession, exclusive in its character, then limitation will run in favor of the persons so asserting adverse claim, and enjoying an exclusive possession from the time such exclusive occupancy began, whether the land be inclosed or not.”

, The following cases support the view that the doctrine of encroachment has no present application, and sustain the finding upon the issue of limitation: Smith v. Jones, supra; Porter v. Miller, 76 Tex. 593, 13 S. W. 555, 14 S. W. 334; Fielder v. Houston Oil Co. (Tex. Civ. App.) 165 S. W. 48; Id. (Tex. Com. App.) 208 S. W. 158; Houston Oil Co. v. Loftin (Tex. Civ. App.) 194 S. W. 996; Woodley v. Becknell (Tex. Civ. App.) 214 S. W. 932; Lutcher v. Keed (Tex. Com. App.) 237 S. W. 913; Houston Oil Co. v. Davis (Tex. Civ. App.) 178 S. W. 669; Houston Oil Co. v. Griffin (Tex. Civ. App.) 166 S. W. 902.

In any event the charges above quoted were properly refused, because the case was submitted upon special issues, and in such case it is improper to give charges general in their nature and instructing the jury as to the law aidsing upon the facts. Harrington, Texas & N. O. Ry. Co. v. Harrington (Tex. Com. App.) 235 S. W. 188; Freeman v. Galveston, H. & S. A. Ry. Co. (Tex. Com. App.) 287 S. W. 202; Connellee v. Nees (Tex. Com. App.) 266 S. W. 502.

This ruling disposes of the first, second, fourth, and fifth propositions.

The sixth, seventh, and eighth propositions present no error. There is no issue of fraud in this case which would toll the statute of limitations.

The evidence' excluded shows the Werth-manns were claiming that the line in dispute is where they have always contended it to be. Instead of misleading plaintiff, it put him upon notice of defendant’s claim. Besides, plaintiff’s own testimony shows that he has at all times known the defendants were actually living upon, claiming, and using the disputed area. No other conclusion can be drawn from his own testimony.

Affirmed.


author: LANE, J.

text:
    SCHUELKE v. TOWNSEND, County Clerk.
    No, 9649.
    Court of Civil Appeals of Texas. Galveston.
    April 3, 1931.
    Behearing Denied April 30, 1931.
    T. O. Crenshaw, of Houston, for relator.
    Winfree & Weslow and F. F. Beadle, all of Houston, for respondent.
   LANE, J.

On the 26th day of November, 1930, A. O. Frost et al., plaintiffs, recovered a judgment in the county court at law of Harris county, Tex., against B. E. Schuelke, defendant, for one certain automobile of the value of $400.

Thereafter, in due time, defendant, relator here, prepared and filed with the clerk of the court his affidavit asserting his inability to pay the cost of an appeal or any part thereof or to give security therefor.

After the filing of such affidavit, to wit, on the 20th day of January, 1931, A. C. Frost et al. filed with said clerk their contest of relator’s affidavit. Such contest came on for hearing before the judge of said court, who, after hearing the evidence introduced by the parties and argument of counsel, rendered judgment wherein it is recited as follows:

“It is considered by the court that defendant, B. E. Schuelke’s affidavit is insufficient to authorize him to an appeal, and that he should be required to pay the costs of appeal in this cause.
.“It is therefore ordered and adjudged and decreed by the court that the appeal shall not issue on the affidavit in lieu of a cost' bond.”

Relator excepted to the judgment of the court and gave notice of appeal therefrom.

On the 11th day of March, 1931, relator filed in this court his application for a writ of mandamus, wherein he recites that he had reguested respondent, Albert Townsend, clerk of the court, to prepare and deliver to him, free of charge, a transcript of the proceedings in the suit of A. O. Erost et al. v. B. E. Schuelke; that respondent had refused to comply with such reguest unless relator first paid for such transcript, or gave security for, the payment of same. Relator’s prayer is as follows: “Wherefore your petitioner prays the court that respondent, Albert TownSend, ■County Clerk of Harris County, Texas, be cited to appear and answer herein, and that writ of mandamus issue requiring respondent to prepare .and deliver a transcript of the aforesaid cause forthwith to relator,- B. E. Schuelke, or his attorney, free of charge.”

We have carefully read and considered relator’s application and the matters related therein, and we are not prepared to hold that the application shows that relator is entitled to the writ of mandamus prayed for; therefore the writ is denied.


author: BAUGH, J.

text:
    MARESH v. JENNINGS et al.
    No. 7573.
    Court of Civil Appeals of Texas. Austin.
    April 8, 1931.
    Rehearing Denied May 13, 1931.
    J. B. Daniel, of Temple, and A. L. Curtis, of Belton, for appellant.
    Sam D. Snodgrass and Walker Saulsbury, both of Temple, for appellees.
   BAUGH, J.

W. W. Jennings, W. F. Blum, Jr., and A. J. Jarrell sued Wm. Maresh, E. W. Moore, C. C. Carson, and H. F. Blum for contribution for moneys paid by plaintiffs on three promissory notes, signed by all of said parties. One note was for $15,000, payable to F. N. Miller; one for $2,500, payable to D. Neal; and one for $5,000, payable to P. Ham-mersmith. The defendant H. F. Blum signed only the Hammersmith note, but all other parties plaintiff, and defendant signed all of said notes. The defendant E. W. Moore died pending trial. The jury fo,und that his estate and the defendant C. O. Carson were both insolvent. No liability was established against H. F. Blum. Judgment was rendered upon special issues found by the jury, in favor of the several plaintiffs against Maresh alone for the respective amounts pleaded, from which he alone has appealed. He asserts no error as to the discharge of his co-defendants.

The facts pertinent to the issues raised on this appeal are substantially as follows: On December 17, 1927, the First State Bank of Temple became insolvent, was liquidated by the state banking commissioner, and a 100 per cent, assessment levied against its stockholders. First State Bank of Temple was immediately organized as a new corporation with a capital stock of $50,000, to which new corporation were transferred all of the assets of the old bank, including the charged off notes and accounts and the assessments levied against its stockholders. The capital stock of the new corporation was owned by the parties to this suit in the following amounts:

E. W. Moore $15,000
Win. Maresh 15,000
A. J. Jarrell 5,000
W. E. Blum, Jr. 5,000
O. C. Carson 2,500
W. W. Jennings ' 2,500
H. E. Blum 2,500
475 $47,500

The notes in question were given for money borrowed by the makers to pay for capital stock in the new bank, and the various parties received benefits therefrom in proportion to the stock so held by them. While all of said • parties executed said notes as joint and several principals, as between themselves their liability was in proportion to the benefits received; that is, in the ratio that the amount each party’s stock bore to the total amount of the stock owned by all those who signed the respective notes involved. And in ease one maker were compelled to pay more than his proportionate share of said indebtedness, he would be entitled to contribution from his co-obligors who had paid! less than their proportionate share on such pro rata basis. As stated by Judge Ely, in Graves v. Smith, 4 Tex. Civ. App. 537, 23 S. W. 603, in discussing a similar question, “If the note was signed by the three men as principals, upon a settlement among themselves of the indebtedness each one would be liable to the one paying the whole indebtedness in proportion to what each obtained out of the consideration of the note.” See also Merchants’ Nat. Bank v. McAnulty, 89 Tex. 129, 33 S. W. 963; 10 Tex. Jur. 540; 13 C. J. 825 ; 6 R. C. L. 1037, 1046. Contribution as between the makers of said notes prorated according to the benefits received seems well established by these authorities. Those who signed the Miller and Neal notes owned $45,000 of the stock in said newly organized bank, of which appellant owned $15,000, and would, therefore, owe one-thii-d of the amount of said two notes. Those who signed the Hammersmith note, which included H. E. Blum, owned $47,500 of said stock, and appellant’s portion of that note would be ¾9 of the amount thereof. Had all of the makers remained solvent, the distribution of the amount due by each would be a simple matter ; and the adjustment of the amounts with which each was chargeable purely a matter of mathematical calculation.

However, the makers E. W. Moore and C. C. Carson paid nothing, and were insolvent. H. E. Blum was discharged from any liability to the plaintiffs on the ground that he had paid all that he was due on the notes, leaving only the appellant and the three appellees, plaintiffs below, to adjust the remaining burden as between them'. The further question is therefore presented: What is the proper measure of contribution between the solvent makers of said notes with reference to the sums due on said notes by the makers who became insolvent, and which their comakers had to pay for them? Of the total of the Miller and Neal notes, the insolvent makers were due to pay ¾8 and of the Hammersmith note ⅞9.

The general rule of contribution is that the burden is to be borne ratably by the solvent obligors, leaving out of account the insolvent ones. In the instant case, only four solvent makers remaining, after the discharge of I-I. F. Blum which is not complained of, each would ordinarily be liable for ⅛ of the amount paid. And appellant earnestly insists that such is the rate and extent of the liability of each of said four, including appellant, for the additional sums they were compelled to pay because of the insolvency of Moore and Carson. We do not, however, sustain this contention. We have found no Texas ease in point on this particular question. Greene v. Anderson, 102 Ky. 216, 43 S. W. 195, is a ease directly in point. In that case the Kentucky Court of Appeals held that where co-obligors shared unequally in the proceeds of a note, and one of them subsequently became insolvent, the remaining solvent obligors must bear the entire burden in proportion to the benefits received, and not equally as to the portion due from the insolvent maker. This case was approved by the Ohio Court of Appeals in Reel v. Combes, 25 Ohio App. 476, 159 N. E. 133. The rule stated in 6 R. C. L. 1038 is: “So where three persons borrow money jointly, but appropriate individually unequal sums, the benefit to each is according to the amount appropriated by each; and if one becomes insolvent, the other two should bear the loss in proportion to the sum employed by each for his own use.”

We consider this rule sound in principle. Contribution as between co-obligors is entirely an equitable right. We can see no good reason for prorating the liability, as between themselves, of all makers of the note in paying it to the creditor on the basis of benefits received; and then asserting a different measure of liability as 'between themselves where one or more of the joint makers becomes insolvent. While, in a sense, each co-obligor becomes a surety of the solvency of all other co-obligors, that suretyship, if it may be so termed, is to the creditor, and not to each other. And equity demands, it seems to us, that he who received the greater benefit from the contract should bear the burden proportionate to his benefits whether the entire burden fell ultimately upon all of the comakers, or, whether because of insolvency of some it must rest finally upon only a part. The risk of such insolvency, like the primary obligation itself, should be commensurate with and in proportion to the benefits flowing ■to each of the joint makers.

Because of the varying amounts paid by the plaintiffs on the several notes and at different dates, the court’s judgment including each of these adjustments is necessarily long and somewhat complex in details. We deem, it unnecessary to set it out here. The amounts and dates of payments by the re- ■ spective parties on each of the notes involved is not controverted. The trial court in his judgment fixed the plaintiffs’ contribution against the defendant in accordance with the rules above discussed, which was the proper measure of recovery. No good purpose would be served in setting out here the various detailed items thereof.

Nor did the court err in overruling appellant’s plea in abatement filed in the trial court. This plea alleged, in substance, that all of the charged off notes and accounts of the old bank, together with the assessment made by the banking commissioner against its stockholders, were transferred to the newly organized bank; and that an agreement was then made between all the parties to this suit to the effect that all dividends derived from the collection "by the newly organized bank of all said charged off notes and said assessments should be applied to the payment of the motes involved herein; and that the effect of such agreement “was to create a trust estate of said charged off items and the assessments against the stockholders of the old bank, and to use the proceed® for no other purpose than to pay off and discharge the notes which had been executed to provide the capital of said bank."

He also alleged that there still remained sufficient assets in said! trust estate to pay the amount of the notes involved; that the estate of E. W. Moore had a vested interest therein; and that this suit ought to abate until his estate could be administered and until said trust estate could be wound up and the proceeds thereof properly distributed.

While there was conflict in the testimony as to such purported agreement, we think that is immaterial. The plea alleged and the proof shows that all of said charged off notes, assessments, etc., were transferred to the newly organized bank. They thereupon became its property to be handled as would any of its other notes or assets under the banking laws of the state. There is no allegation that the bank agreed to or did set aside said portion of its assets as a trust fund. Nor would such an agreement, if attempted, have been valid. The notes here involved were the personal obligations of the makers. The bank was in no sense liable for any part of them. Obviously it would have had no authority to set aside any of its property, or to designate any of its revenue, to pay the individual debts of its stockholders. Nor could the parties hereto, in their individual capacity, in which only they were alleged to have acted, make any valid agreement in any manner disposing of, or making a trust estate of, property which belonged to the bank, and the bank is not alleged to have made such an 'agreement. That set up in said plea in abatement was one which, if made, was wholly invalid, and the trial court properly overruled such plea.

While we have not undertaken seriatim nor consecutively to dispose of 'all of appellant’s contentions, what we have said disposes of the issues raised. Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


author: LOONEY, J.

text:
    McConnell et al. v. LIBECAP et al.
    No. 10204.
    Court of Civil Appeals of Texas. Dallas.
    April 25, 1931.

      George Sergeant, of Dallas, for plaintiffs in error.
    J. Hardy Neel, of Dallas, for defendants in error.
   LOONEY, J.

In a suit pending in a district court of Dallas county, S. B. Frost and about one hundred others, plaintiffs and interveners, sought to establish claims, as contractors, materialmen, and laborers, and the foreclosure of statutory liens upon a certain building located in the Fair Park Grounds in the city of Dallas, known as the “Gettysburg Battlefield Building” and the “Cyclorama,” including • the picture, painting, and all accessories, housed in said building, belonging to defendant the Cyclorama Exposition Committee, 'Incorporated.

The above is an incomplete statement of the nature of the suit, but sufficient for present purposes.

The case was tried without a jury, and on December 16, 1930, the court rendered judgment establishing the respective claims of parties, foreclosed in favor of those protected, statutory liens upon said building and the Cyclorama, etc., classified the claims, and authorized the issuance of necessary process to execute the judgment.

Among others, the court rendered judgment in favor of G. R. Mahaffey and O. P. (Howard (Mahaffey & Howard), contractors, against Cyclorama Exposition Committee, Incorporated, for debt in the sum of $20,542.50, with foreclosure of the statutory lien upon said building, and placed the claim in the third class; also rendered judgment in favor of E. W. McConnell, contractor, against said defendant for $11,470.63; and rendered judgment against McConnell in favor of Roscoe Libecap, trading as Libecap Electric Company, for $1,218, and in favor of others for debt, and their claims were adjudged liens of the first class and foreclosed on the Cy-.clorama; also judgment was rendered in favor of Roscoe Libecap against the Oyelo-rama Exposition Committee, Incorporated, for the sum of $2,752.92, with foreclosure of the statutory lien for material and labor on said building, and placed same in the fourth class of claims against said building. These are only a few results of the suit, but sufficient for the present.

On January 19, 1931, an order of sale issued on the judgment, at whose instance is not disclosed, and was placed in the hands of Louis Brown, constable of precinct 1, Dallas county, Tex., for execution, and by him was levied upon said building and picture and advertised to sell at public vendue on March 3, 1931. On that day, but prior to the sale, E. W. McConnell, party to the suit and judgment, perfected appeal by writ of error and superseded the judgment. On the approval and filing of supersedeas bond, the district clerk issued a supersedeas; thereupon the constable desisted from further action under said process. On March 7, 1931, Mahaffey & Howard procured the issuance of another order of sale and also placed same in the hands of Louis Brown, constable, for execution, who on March 12,1931, levied upon said building and Cyclorama and advertised same to sell April 7, 1931. On April 3, 1931, Roscoe Libeeap perfected appeal by writ of error, superseded the judgment, and immediately, upon the approval and filing of Ms bond, the district clerk again issued a writ of super-sedeas which was duly served upon the constable. Insfead, however, of obeying the writ and returning the process unexecuted, the officer or the deputy in charge, at the instance of J. Hardy Neel, attorney for Mahaffey & Howard, sold said property on April 7, 1931, as advertised; Mayer Raehofsky, trustee, becoming purchaser on a bid of $1,000 made by J. Hardy Neel, his representative.

In this status of the proceedings, Roseoe Libeeap filed an original application in this court against G. R. Mahaffey and O. P. Howard (Mahaffey & Howard), their attorney, J. Hardy Neel, Louis Brown, constable of precinct 1, Dallas county, Tex., and his deputies, Oscar H. Davis, Roy Odom, and William Decker, praying in effect that, this court restore the status quo, that respondents he enjoined from further attempts to execute the judgment pending appeal, and that they be suitably punished for contempt of this court.

Respondents insist that the bond filed by relator was not in compliance with the statute, did not supersede the judgment, and therefore they were well within their legal rights in selling the property under the order of sale.

The bond given by relator is payable to all other parties to the suit (plaintiffs, interven-ers, and defendant) in the sum of $1,000; is in the language of a supersedeas bond, as required by article 2270, R. O. S., and, on being approved and filed, the district clerk issued a supersedeas, authorized by article 2275, R. O. S., which wais duly served and of which respondents had notice at the time and prior to the sale of the properties under the process.

The statute (article 2249, as amended by Acts 1927, c. 52, § 1 [Vernon’s Ann. Oiv. St. art. 2249]) gives a right of appeal to the Court of Civil Appeals from every final judgment of the district court, and makes ample provision for the suspension, by the party appealing, of the execution of judgment pending the appeal. In ease of a money judgment, he may supersede its execution by giving bond in a sum at least double the amount of the judgment, as provided by article 2270, R. S.; in case the judgment is for the recovery of land or other property, its execution may be suspended by giving bond as required by article 2271, R. O. S. However, as the judgment under consideration is not against Libeeap, for the recovery of either money, land, or other property, but is in his favor for the recovery of money and the foreclosure of liens on property against others and for the classifications of claims and the establishment of priorities as between him and other creditors of a common debtor, it is apparent that the statute neither prescribes nor indicates the amount of bond to he given in order to suspend the judgment pending appeal; therefore it became the duty of the court to fix the amount of bond sufficiently large to protect all parties affected by reason of the appeal and suspension of judgment. See Hill v. Halliburton, 32 Tex. Civ. App. 21, 73 S. W. 21; Aetna Club v. Jackson (Tex. Civ. App.) 187 S. W. 971; Waters-Pieree Oil Co., v. State of Texas, 107 Tex. 1, 6, 106 S. W. 326.

In the absence of a showing to the contrary, the presumption will be indulged that the court fixed £he amount of the bond in the instant case, and its approval and the issuance of supersedeas by the clerk was its official acceptance, as being in compliance with law. Cox v. Gordon et al. (Tex. Civ. App.) 241 S. W. 286.

Our jurisdiction of the appeal attached on the approval by the district clerk of the bond, and is not in any sense dependent upon its sufficiency, either as to form or substance ; for-, if defective in either or both respects, the statute furnishes ample provision for curing, by amendment, any such defects. Dillard v. Wilson (Tex. Civ. App.) 137 S. W. 152; Eaton v. Klein (Tex. Civ. App.) 141 S. W. 828; West v. Giesen (Tex. Civ. App.) 242 S. W. 312, 322, 324. We are of opinion, therefore, that the bond given- by relator was sufficient to stay the execution of the judgment, that it superseded and rendered functus officio the order of sale, and, as it was the plain duty of the constable to immediately return the process unexecuted, the sale of properties made thereafter was without legal authority and void.

The appeal, with supersedeas, conferred upon this court jurisdiction to protect the rights of relator pending appeal, not only by K preventing enforcement of the judgment, but<fV by requiring the restoration of the status quo. i See McDowell v. Hightower, 111 Tex. 585, 242 S. W. 753; Houston, etc., Co. v. Hornberger, 106 Tex. 104, 106, 157 S. W. 744; Houston, etc., Co. v. Hornberger (Tex. Civ. App.) 141 S. W. 311, 313. To hold otherwise . would be to give full force and effect, to the I judgment and to ignore the right of relator . | to have the same stayed pending appeal. See | People’s Cemetery Ass’n v. Oakland C. Co., 24 Tex. Civ. App. 668, 60 S. W. 679, 680; Timpson & H. R. Co. v. State (Tex. Civ. App.) 222 S. W. 322; Waters-Pierce Oil Co. v. State, 107 Tex. 1, 6, 106 S. W. 326.

The office of a supersedeas appeal bond is to furnish indemnity to those who suffer damages as a result of the stay of the judgment [Adoue v. Wettermark, 28 Tex. Civ. App. 593, 68 S. W. 553; Garrett v. Katz (Tex. Civ. App.) 27 S.W.(2d) 373], but our holding, which in legal effect is that the bond is sufficient prima facie to stay the judgment, is -without prejudice to the right of any adverse party to show, by an appropriate proceeding, that the bond is in fact insufficient indemnity for damages that will result from the stay of judgment.

We therefore direct that Louis Brown, constable, and his deputy or deputies, having official, charge of the matter, cancel any indorsement made upon the order of sale showing sale of the property in question to Mayer Raehofsky, trustee; refrain from executing or if executed from delivering any deed, conveyance, or transfer of said property under said alleged sale; that said order of sale be immediately returned to the clerk of the district court, properly endorsed unexecuted, because superseded; that respondents, and each of them, refrain from any future attempts to execute said judgment pending this appeal, unless on proper showing an order is made permitting the issuance and execution of process thereon; and the clerk of this court is directed to issue all notices comprehended by this order, unless respondents waive in writing such issuance and accept service of same.

In view of the complicated nature of ■the proceeding, calculated, in our opinion, to obscure and render doubtful correct procedure to be pursued, and finding no reason to question the good faith of respondents, we hold that, while their conduct in causing the sale of the property after suspension of the judgment was altogether unauthorized, yet it amounted to no more than a technical contempt, and does not justify punishment.

The prayer of relator for injunctive relief, both mandatory and prohibitive, is granted, but the suggestion that respondents be punished for contempt of court, is denied.


author: BLAIR, J.

text:
    ADKINS et al. v. ESSLER.
    No. 7581.
    Court of Civil Appeals of Texas. Austin.
    April 29, 1931.
    Rehearing Denied May 13, 1931.
    Upton & Upton, of San Angelo, for appellants.
    Baker & Parish, of Ballinger, for appellee.
   BLAIR, J.

This is an appeal from an order overruling ■the pleas of privilege in statutory form of appellant W. E. Newton, individually and as trustee of Banner Oil Company, to be sued in Irion county, his domicile and the domicile of Banner Oil Company; and of appellants Mart Findlater and H. A. Bullock, to be sued in Tom Green county, their domicile. Appel-lee instituted the suit against Grant Adkins, G. C. Cates, F. E. Webb, Mart Findlater, H. A. Bullock, W. B. Newton, and the Banner Oil Company, a partnership composed of W. E. Newton, Mart Findlater, II. A. Bullock, and F. E. Webb, and W. E. Newton, as trustee of the said Banner Oil Company, for damages resulting to appellee from 'a collision of his automobile with a truck on highway No. 30 in Runnels county; appellee alleging that Adkins and Cates were at the time of the collision driving and operating the truck- in the employ and as agents of defendants and Banner Oil Company; that the truck was hauling a large tank 17 or 18 feet in diameter, at night, which tank overhung the truck about 4 feet and passed the center of the road; that no lights or other signal visible in the nighttime were on the tank; and that the tank was not visible to appellee at the time of the collision, which occurred while appellee was on his right-hand side of the road.

Appellee controverted the pleas of privilege and upon a hearing sustained venue in Runnels county, under subdivision 9 of article 1995, providing that “a suit based upon a * * * trespass may be brought in the county where such * * * trespass was committed”; and under subdivision 29a of article 1995, providing that, “whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the. provisions of article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.” •

While all defendants filed pleas of privilege, only appellants W. E. Newton, individually and as trustee of Banner Oil Company, and Mart Findlater and H. A. Bullock have appealed. They' contend that the evidence failed to show Banner Oil Company or appellants and Webb to be a copartnership composed of Newton, Webb, Findlater, and Bullock. The evidence showed that these four and others owned jointly an oil and gas lease on lands situated in Irion county, the title to a one-half undivided interest being held by Newton, as trustee of Banner Oil Company. A contract between Webb on the one hand and Newton, Findlater, Bullock, and others on the other hand was introduced in evidence and showed the respective interests of the parties in the lease, and provided that Webb was, to develop the lease for oil and gas, and that each party was to pay his pro rata according to his stipulated interest, of all expenses of development, and to share pro rata in all profits of production. Appellant Newton testified: “I have a connection with the Banner Oil Company. I hold an interest in said Company. The Banner Oil Company is a co-partnership.”

The answers of Newton, individually and as trustee of Banner Oil Company, and of Findlater and Bullock to the controverting affidavit admitted that Newton held title to one-half of the lease in question as trustee for Webb, Newton, Findlater, Bullock, and others named, alleging their respective interests ; and “ *• * * that said lands were held and owned by the said W. E. Newton as a matter of convenience so that he could sell and convey same as trustee without the necessity of all of the joint owners joining in said conveyance; and that said holding was named and called the Banner Oil Company.”

The development contract by Webb on the one hand and appellants Newton, Findlater, Bullock, and others on the other hand was signed by Newton individually, but not as trustee, and was signed by eleven of the eighteen parties for whom Newton alleged he held the lease as trustee, including all the appellants here. Newton further testified, with respect to the development contract, as follows: “We were all to be interested in that endeavor in a lease. We were to share profits or share losses proportionate to the interest we had.”

The preceding facts certainly raised the issue of whether Banner Oil Company was a party to the development contract, since Newton, its trustee, signed the contract and testified that, “We were all interested in that endeavor”; and established as a matter of law that the parties to the development contract constituted a mining copartnership composed of Webb, appellants Newton, Findlater, Bullock, and the other parties who signed the contract, for the purpose of developing the lease in question, and the partners became jointly and severally liable upon obligations incident to the enterprise. Wagner Supply Co. v. Bateman, 118 Tex. 498, 18 S.W.(2d) 1052; Randall v. Meredith (Tex. Sup.) 11 S. W. 170; West Side Oil Co. v. McDorman (Tex. Civ. App.) 244 S. W. 167; Indiahoma Refining Co. v. Wood (Tex. Civ. App.) 255 S. W. 212; Summers’ Oil & Gas, pp. 698, 708 and 710.

Appellants contend that the evidence failed to show that Adkins and Cates were operating the truck at the time of the collision for or as agents or employees of appellants and Webb, or of the Banner Oil Company. The contention is correct as to Cates, but not so as to Adkins. The development contract between Webb and appellants authorized Webb to.represent all the owners of the lease in the entire operations; and provided that the parties should “pay their pro-rata * * * of the expenses * * * of tanking and other necessary expenses of producing and saving any oil -or gas found.” Webb employed Adkins to haul the storage tank on his truck from Winters, Runnels county, to the lease in Irion county. Appellant Newton testified, in substance, that he knew they were going to get tanks on the lease; that storage tanks were necessary; and that he supposed Webb was looking after that “feature of the business.” These facts' show Adkins to be the agent or employee of Webb and his associates or partners in hauling the tank from Runnels county to the lease in Irion county. They clearly support the conclusion that Webb was the authorized representative of the partnership, in charge of the entire development operations, with authority to employ Adkins to haul the tank to be used In the development project; and that, under the holding of the Supreme Court in Wagner Supply Co. v. Bateman, supra, his actions were the actions of the partnership, and for which each of the mining partners became jointly and severally liable. The case cited holds that, where several parties own interests in an oil and gas lease and are jointly engaged in the development and operation of same, a mining partnership arises by operation of law whereby the partners become jointly and severally liable upon obligations incident to the enterprise.

Appellants contend that under the evidence adduced the collision between the truck and automobile did not constitute a trespass by Adkins against appellee within the meaning of subdivision 9 of article 1995, so as to fix venue in Runnels county where the accident occurred. The contention is not sustained. The evidence showed the truck to be 7 feet wide, the tank to be more than 15 feet in diámeter and to extend some 4 feet over each side of the truck. The hard surface of the road at the point of collision was about 16 feet wide. Adkins was driving the truck in the nighttime and was traveling south, and at the time of the collision the overhanging tank extended beyond the center of the road, with no light or visible signal on the tank. Appellee was driving his automobile north near the right-hand edge of the hard surface of the road. His car passed the front of the truck, but collided with the overhanging tank which he did not see, and from the collision appellee received severe injuries. The negligent operation of the truck by Adkins with the unlighted overhanging tank in the nighttime, so the tank collided in passing with appellee’s car on the extreme right edge of the road, constituting an active trespass against appellee, fixing venue for the suit to recover the resulting damages in the .county where the accident occurred. De Mars v. Montez (Tex. Civ. App.) 277 S. W. 402; Eidermann v. Hansen (Tex. Civ. App.) 285 S. W. 847; Frnka v. Beaumert (Tex. Civ. App.) 290 S. W. 808; Vaught v. Jones (Tex. Civ. App.) 8 S.W.(2d) 800; Scott v. Carlos (Tex. Civ. App.) 18 S.W.(2d) 957.

But appellants contend that, conceding the operation of the truck as detailed constituted a trespass by Adkins against appel-lee, still no joint liability as to any other defendant or defendants with Adkins was shown, and that neither defendant was a necessary party to the cause of action asserted against Adkins within the meaning of subdivision 29a of article 1995. As hereinabove held, appellants were jointly and severally liable with Adkins for his trespass, he being their employee or agent in carrying out their enterprise at the time he committed the trespass against appellee. • It therefore follows that all appellants are suable with Adkins where the trespass occurred under subdivision 29a, supra, which provides that, where a suit is properly brought in a county against one defendant, suit may be maintained “there against any and all necessary parties.” Empire Gas & Fuel Co. v. State (Tex. Civ. App.) 21 S.W.(2d) 376, 379. The identical question here raised with respect to the meaning of the term “necessary parties” was passed upon by this court in the case of Sproles v. Schepps, 26 S.W.(2d) 922, and where the term “necessary parties,” as used in subdivision 29a, supra, was construed to authorize the joining of all parties “jointly and severally liable for a single cause of action” in any county where one of such parties was properly sued on the cause of action.

We find no error in the trial court’s judgment, and it is affirmed.

Affirmed.


author: LESLIE,- J.

text:
    MEDFORD v. HENDRICKS.
    No. 848.
    Court of Civil Appeals of Texas. Eastland.
    April 10, 1931.
    Rehearing Denied May 8, 1931.
    J. Lee Cearley, of Cisco, and O. F. Chastain, of Eastland, for appellant.
    Barker & Orn, of Cisco, for appellee.
   LESLIE,- J.

This was a suit by W. L. Medford, appellant, against E. O. Hendricks, appellee, for damages alleged to have been occasioned him as a result of a collision, of their automobiles, due to the negligence of said Hendricks. The trial resulted in a judgment in favor of the defendant, and the plaintiff has appealed and seeks a reversal of the judgment of the trial court upon propositions of law, to the effect that the trial court erred in overruling his motion for a new trial, since hy that motion and the testimony introduced thereon misconduct of the jury was established warranting a new trial.

Three jurors testified as witnesses concerning the misconduct alleged in the motion. The testimony of two of them tends to support the charges alleged, but the testimony of the third is quite specific and positive to the contrary. It is simply a case of conflicting testimony, and upon such an issue presented by a motion for a new trial, and as held by this court in Estep v. Bratton, 24 S.W.(2d) 465, 469, paragraphs 5 and 6, “it is the province and duty of the trial judge to pass upon the credibility of witnesses and the weight to be given to the testimony and to find the facts, which findings are binding upon the,Gourt of Civil Appeals if supported by sufficient evidence.” Upon the sole issue of - the existence or not of misconduct, as alleged, the, trial court has heard the testimony and resolved it against appellant. He failed to sustain his allegations of misconduct, and, the evidence amply supporting the conclusions of, the trial court, this court is not authorized to disturb the same. Sandifer v. Ft. Worth Nat. Bank (Tex. Civ. App.) 8 S.W.(2d) 512; Hatt v. Walker (Tex. Civ. App.) 33 S.W.(2d) 489.

For the reasons assigned, the propositions are overruled, and the judgment of the trial court is affirmed.


text:
    YATES v. GRAYBURG OIL CO.
    No. 7575.
    Court of Civil Appeals of Texas. Austin.
    April 15, 1931.
    Rehearing Denied May 13, 1931.
    J. P. Hill, of San Angelo, for appellant.
    James Cornell and R. G. Hughes, both of San Angelo, and Ingram & Smith, of ,San Antonio, for appellee.
   BAUGH, J.

Suit by appellant against appellee, a private corporation, for alleged breach of written contract, to declare forfeiture thereunder, for injunction, for appointment of a receiver, and for damages. Appellee filed its plea of privilege to be sued in Bexar county, the place of its residence, which appellant controverted, and, after a hearing thereon, its plea was sustained, from which order Yates has appealed.

Venue in Tom Green county was asserted under subdivision 5 of article 1995, R. S., based upon a written contract performable there, and under subdivision 23 giving venue against a private corporation in any county where the cause of action or a part thereof ' arose. It appears: That I. G. Yates owned two sections of land bordering upon the west side of the Pecos river in Pecos county. • That the appellee owned and operated in June, 1929, under a lease from the state of Texas six oil wells in the Pecos river bed adjacent to said lands, and in addition thereto was “picking up,” by ditches dug for that purpose, seepage oil from said lands which would otherwise have escaped into said river. The contract in question was dated June 8, .1929, ran from June 1,1929, to May 31,1930, and granted to appelleé, among other things, the right to use surface sites on said lands for the purpose of operating its river bed lease, pumping, treating, storing, etc., the oil therefrom, including-tanks, camp sites, etc.,^ necessary for that purpose; and permission to reclaim or pick up all such seepage oil and to dig necessary ditches for that purpose.

In addition to other considerations recited, said contract provided that appellee, designated as licensee, “⅜ * * contracts, binds and obligates itself to pay to the licensor at his office in San Angelo, Tom Green County, Texas, twice monthly one-eighth (⅜) of all the seepage oil picked up and run as aforesaid and it will on the 15th day of June, 1929, render' an accurate account to licensor at his said office of all the seepage oil picked up and run as aforesaid from June 1st to June 15th, 1929, and likewise on the 1st and 15th days of July, 1929, and the 1st and 15th days* of each succeeding month thereafter during the continuation of this contract it will render an accurate account to licensor of all the seepage oil picked up and run as aforesaid from the date of the preceding accounting, and will with ■ each accounting pay to licensor at his office aforesaid the one-eighth (⅛) part thereof according to the daily posted price of oil run from the Yates field, and in the event it from any cause fails, refuses or neglects to make such accounting and promptly pay to licensor at his office aforesaid within three (3) days after each accounting period aforesaid the amounts due to him, then the license hereby granted shall be thereby forfeited and licen-sor shall have the right to sue for and recover any sums due and owing as aforesaid with interest at ten per cent per annum from the date the same has accrued as aforesaid with ten per cent additional as attorneys’ fees.

“And it is further expressly agreed that should licensee refuse, fail or neglect to faithfully keep and perform any other covenant, agreement or condition of this license contract, this contract shall thereby bo forfeited and licensee agrees that it will without question remove all its machinery from the land of the licensor, and failing to remove its said properties within -ten (10) days after any default in payment or non-compliance as aforesaid, then said machinery and properties shall be forfeited to and become the property of the licensor and he shall have the right by himself or through his agent or representative to take possession of all properties, machinery and other things of the licensee on said land and remove the same therefrom and sell and dispose of it and hold and keep the proceeds thereof. * * * ”

The other provisions of said lease are not pertinent-to the issues raised.

On June 9, 1930, appellant notified appellee that the April and May royalty remittances had not been made. Appellee thereupon made remittance for April, but not for May. On July 2, 1930, the attorney for Mr. Yates wrote appellee that its contract had expired by its terms on May 31, 1930; that it had not paid its royalties on seepage oil which wore due on May 1st and 15th; that it had not complied with its contract so as to extend such license for another year; and “as the records now stand here the license contract is terminated and the properties placed by you on the lands forfeited to Mr. Yates.” On July 24,1930, ap-pellee tendered to appellant full payment for his one-eighth of the seepage oil recovered by it during the month of May, which appellant then refused and continued to refuse to accept. Subsequent correspondence introduced indicates that such refusal to accept was because appellant was then asserting other ¡rights under the forfeiture clause of the contract, claimed by him to have accrued from appellant’s failure to pay the royalties as provided, in addition to the payment of the money for May, and was demanding of appellant the surrender of his lands and of its equipment situated thereon. No tender in this respect was shown to have been made by ap-pellee, only a tender of the royalty for the seepage oil. On August 5,1930, appellant’s attorney demanded of appellee in writing payment of May royalties, interest and attorneys’ fees, that appellee vacate his property and surrender to him possession of its equipment located thereon. Upon being informed that appellee was preparing to remove said equipment from his premises, appellant filed this suit on August 9th, seeking the.relief above indicated.

Appellee bound itself in writing to perform a part of its contract in Tom Green county. It is not controverted that it failed to do so in accordance with the express terms thereof. Appellee insists, however, and such was doubtless the view of the trial court, that upon its tender to appellant on July 24, 1939, before this suit was filed, of the sums due on May 1st and 15th, respectively, the only portion of the contract performable in Tom Green county, or which appellant could enforce in Tom Green county, was thereby extinguished, and 'that the district court thereby lost venue of the suit as to any and all other provisions of said contract, because they were not performable in Tom Green county, and that to permit appellant to refuse the tender made and thus sustain venue on the rest of his suit in Tom Green county would amount to a fraud upon the jurisdiction of that court.

There seems to be no controversy over the facts. Clearly the appellee breached its written contract with reference to payments in Tom Green county. If no tender of that payment prior to filing of said suit had been made, unquestionably, venue would have been properly laid in Tom Green county. Did such tender, under the facts and circumstances above outlined, deprive appellant of the right to litigate in said county the other claims asserted by him under his contract? We think not.

Two things are obvious we think from the provisions of the contract. One is that, because of its dependent provisions, its subject-matter, and the parties thereto, it was not a divisible contract. The second is that the parties have in express terms made the time of the payments due thereunder of the essence of the contract; and appellee, upon its failure to make such' payments within the times specified ■ expressly vested in appellant, by such default, specific additional rights of forfeiture therein named. We are not to be understood as passing upon those rights here; but, under the terms of the contract and ap'pellant’s pleadings, they were clearly placed in issue. When so asserted by appellant after appellee’s breach of its contract to make its payments at specified times for the oil taken by it from his premises, these additional demands — that is, the surrender of his premises together with its personal property located thereon — became a part of what was due him under the contract, if he chose to enforce the forfeiture provision, as much as did the royalties from the oil. All these matters he was entitled to assert in the same suit; and, if the trial court had jurisdiction over one part of the controversy, vested by virtue of the written promise to pay in Tom Green county, it had, of course, jurisdiction over the entire controversy arising out of and dependent upon the entire contract.

There is no contention that tender was made by appellee for anything except payment for the seepage oil taken in May, 1930. Haying breached its contract in one respect, and appellant having invoked a penalty provided in the contract for such breach, appel-lee was required to make a full tender of all things due to appellant under the contract. The rule as to sufficiency of a tender stated in 38 Cyc. 137, is as follows: “Nothing short of an offer of everything that the creditor is entitled to receive is sufficient, and a debtor must at his peril tender the entire sum due, including all necessary expenses-incurred or damages suffered by the creditor by reason of the default of the debtor, and a mistake in tendering an amount less than the sum due is the misfortune of the tenderer, and the position of the parties remains the same as if no tender had been made.” See, also, Tucker V. McCullough (Tex. Civ. App.) 209 S. W. 236; 5 A. L. R. 1226, and numerous annotations there cited; 10 Tex. Jur. 403.

• Appellant was not required to accept a tender of only part of what he was entitled to under his contract, admittedly breached by appellee, but was entitled to assert all claims arising from a breach, thereof in any court having jurisdiction of his cause of action. The trial court erred, therefore, in sustaining said plea of privilege. The judgment of the trial court is reversed, and the cause is remanded for trial in the district court of Tom Green county.

Reversed and remanded.

On Motion for Rehearing.

Appellee in its motion for rehearing earnestly insists that we erred in holding that the contract in question was not divisible, and that the appellant’s suit, in addition to being for a breach of contract, was also to recover possession of his lands in Pecos county from the appellee, on the grounds that appellee was a trespasser, the contract having already expired under its terms on May 31st.

Plaintiff in his petition did seek to recover, first, the May payments; second, the personal property located on his lands in Pecos county, under the forfeiture provision of the contract; and, third, possession of the lands against appellee as a trespasser. The last relief sought, it is true, was not dependent upon the contract, but, being between the same parties and involving the same subject-matter, it could properly have been joined with the suit on the contract in order to avoid a multiplicity of suits.

We do.not, however, agree with appellee that the portion of the contract performable in Tom Green county, and the portion performable in Pecos county, under its terms, was divisible or severable, and such that could properly have bqen enforced in -two separate suits. Appellee bound itself to make the payments on the dates specified in Tom Green county. Upon its failure to do so, and its further failure to remove its personal property from the appellant’s premises in Pecos county within ten days after such default, under the terms of the contract, these failures automatically forfeited to the appellant the personal property in question, located on his Pecos county land. It is obvious, therefore, that the right of forfeiture in appellant was dependent first and primarily upon the fail-ixre to pay royalties at the place and times specified. That portion of the contract was expressly performable in Tom Green county, and a breach thereof in that county was essential to work the forfeiture declared. Ap-pellee having failed to make the payments as provided for in the contract, and further having failed to remove the personal property from the Pecos county land within the ten days provided, vested in appellant his right of forfeiture. This right of forfeiture was therefore inseparable from the obligation to pay in Tom Green county; and defendant cannot, by offering to comply with the part of its contract performable in Tom Green county, and which it admittedly breached, thereby compel the appellant to go elsewhere to try a portion of his lawsuit inseparably connected with and dependent upon that part of the contract performable there.

Clearly the appellant was entitled to litigate this portion of his cause of action in Tom Green county. If his action in trespass for possession of the lands in Pecos county is in fact severable, that matter can be determined upon proper plea made for that purpose. However, it is not necessary for us to determine that issue here.

Appellee’s motion is overruled.

Overruled.


author: HICKMAN, C. J.

text:
    BERTRAND et al. v. MUTUAL MOTOR CO.
    No. 852.
    Court of Civil Appeals of Texas. Eastland.
    April 17, 1931.
    Rehearing Denied May 15/1931.
    Scarborough, Ely & King, of Abilene, for appellants.
    Leaehman & Gardere, of Dallas, for appel-lee.
   HICKMAN, C. J.

Mrs. Lillian Bertrand suffered personal injuries as the result of an automobile collision at a street intersection in the city of Abilene. The car which she was driving collided with a car belonging to appellee, Mutual Motor Company, being driven by a prospective purchaser. This suit was instituted to recover damages on account of the injuries sustained. The case was submitted to a jury on special issues, all of which were answered in favor of appellants, and the damages assessed at $4,000. The only ground of liability pleaded was that the prospective purchaser was the agent of appellee for the purpose of demonstrating the car, and that, therefore, the doctrine of respondeat superior applies. After the verdict of the jury was received, the learned trial judge concluded that' no 'liability was established and, notwithstanding the answers were favorable to appellants, rendered judgment for appellee. From this judgment an appeal has been perfected.

A fair statement of the controlling issue of law presented is made by appellants in the opening portion of their argument, as follows: “The question presented by this appeal, and the sole and only question, is whether an automobile dealer is liable for the negligent acts of a prospective purchaser while testing out a car to determine whether he will buy it. ⅞ ⅜ * Our contention is that an automobile dealer who demonstrates cars is liable for the injuries done by the ear while in the course of the demonstration, whether it be in the hands of the prospective purchaser or some other agent. In other words, it is our contention that if a dealer delivers a car to a prospective purchaser to have same demonstrated, that he makes the prospective purchaser his agent for that special purpose.”

The record does not present a case where any of the" dealer’s employees were riding with the prospective purchaser and in control of the demonstration. She was alone and controlling her own movements. Neither does it present a situation where -the dealer was negligent in turning over a car to a person known to be a careless.or incompetent driver. Negligence on that ground was neither pleaded nor disclosed by the evidence. On the contrary, the evidence discloses that she had had many years experience in driving automobiles of different makes, and there is no suggestion that the dealer had any reason to suspect that she was not a careful and competent driver. The quotation from the appellants’ brief above set out correctly states the problem as narrowed down by the record before us, and if, as a matter of law, a prospective purchaser, who is testing a car with a view to beeoni-. ing the owner thereof, is not the agent of the • owner for the special purpose of demonstrating the car, then no case of liability is made against appellee.

We have been referred to no Texas ease deciding the exact question here presented, although we think many could be cited deciding it in principle. There are, however, many well-considered opinions from other jurisdictions deciding the exact question. While the reasoning is not the same in all of these opinions, the conclusions reached are in 'harmony. A prospective purchaser cannot he the agent of the seller to demonstrate a car to himself. “The relation of agency is the consensual relation existing between two persons, by virtue of which one of them is to act for and in behalf of the other and subject to -his control.” Restatement of the Raw of Agency, by the Am. Raw Inst., as quoted in 2 Tex. Jur. p. 384, § 5. In testing a car the prospective purchaser is not acting for the benefit, or in behalf of the seller, hut is acting in hehalf of himself. His own interests and those of the seller are antagonistic. That fact prevents the existence of the relation of principal and agent. False representations made by him to himself in connection with the demonstration would afford no basis for an action for cancellation. Knowledge acquired by him while making the demonstration would not he imputed to the seller. One essential element of agency, namely, one person acting for and in behalf of another, is wholly lacking. There is also lacking the essential element of control by the one of the actions of the other. As noted above, the prospective purchaser was alone in the car when the accident occurred. She was not acting under the direction of the seller, but chose her own place and method for testing the oar. An independent contractor may act for and in behalf of another, but, since he is not under the other’s control, it is held that the relation of agency does not exist. A bailee may act for the benefit of the bailor, but that fact does not make him on agent. The same reason is applicable here. The contention of appellants would extend the scope of the liability of automobile dealers far beyond the limitations set by the adjudicated cases. We can see no reason for making this extension and can see impelling reasons for declining to do so. Marshall v. Fenton, 107 Conn. 728, 142 A. 403; Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Emery v. McCombs (Sup.) 167 N. Y. S. 474; Flaherty v. Helfont, 123 Me. 134, 122 A. 180; Goodrich v. Musgrave, etc., Co., 154 Iowa, 637, 135 N. W. 58; Barton et al. v. Studebaker Corp., 46 Cal. App. 707, 189 P. 1025; Blashfield’s Cyclopsedia of Automobile Law, Vol. 2, p. 1323, § 7.

Only one other question is presented by the briefs, and that relates to the power* of the trial court to render a judgment in favor of appellee, notwithstanding the jury answered the issues submitted in favor of appellants. The recent oases of Magnolia Petroleum Company v. Connellee (Tex. Com. App.) 11 S.W.(2d) 158, and Vogel v. Allen, 118 Tex. 196, 13 S.W.(2d) 340, recognize the general rule that a trial court is not authorized under our statutes to render a judgment non obstante veredicto, but hold that there is a well-recognized exception to the effect that, findings of the jury are immaterial and may be disregarded by the court in a case where under no view of the pleadings and evidence was the plaintiff entitled to a judgment. The record before us presents a case coming within the exception announced. As noted, the only theory of liability pleaded was that the prospective purchaser was the agent of the seller for the special purpose of demonstrating the car to herself. There is no evidence whatever indicating that appellants are entitled to recover on any theory other than the one declared upon in their petition.

We therefore hold that, under the authority of the two cases above cited, the judgment of the lower court was correct, and it will accordingly be affirmed.


text:
    AMERICAN MORTGAGE CORPORATION v. WESTERN FINANCE CORPORATION et al.
    No. 7579.
    Court of Civil Appeals of Texas. Austin.
    April 8, 1931.
   BAUGH, J.

Appeal is from the order of the district court overruling appellant’s plea of privilege to be sued in Dallas county, the place oí its residence. The Western Finance Corporation sued the appellant, also a corporation, and B. W. Draper, who resided in Tom Green county, upon certain itemized accounts for storage by it at San Ang'elo of automobiles alleged to belong to appellant. It alleged, among other things, that B. W. Draper sold to plaintiff corporation on or about October 14, 1929, his properties and assets in San Angelo, and assigned to it certain accounts due him for storing, automobiles.

Appellee filed its controverting affidavit to said plea, a hearing was had thereon, and the plea overruled. Appellant brings two assignments, one asserting the insufficiency of the controverting plea, and the other the insufficiency of the proof to sustain venue in Tom Green county.

We have read carefully the pleadings and the statement of facts, and 'sustain both ‘assignments. The controverting affidavit and the plaintiff’s petition disclose upon their face that the debt sued upon was merely an open account against appellant. Nor was it anywhere alleged or proven that such account was based upon any contract in writing or written px-omise to pay the same; nor does the pleading or the proof in any manner show that the codefendant, B. W. Draper, who resided in Tom Green county, was a necessary party, nor in any maimer liable to the plaintiff for payment of suich account, or any part of it. Plaintiff alleged that B. W. Draper assigned to it certain accounts for stoi-age due him, the nature, character, amounts, or due dates not being specified, along with all of his property, on or about October 14, 1929.' The list of itemized accounts sued upon show upon their face that all of them accrued subsequent to October 14, 1929, and consequently could not have been assigned at that time by Draper to the plaintiff corporation. The petition, the controverting affidavit, and the proof show nothing more nor less than an itemized open account in favor of the plaintiff against the appellant, on which the resident defendant, B. W. Draper, was not shown to have been in any manner liable. There being no written obligation alleged nor proven, no lien asserted against the property of the appellant located in Tom Green county, and no other fact giving venue in that county against appellant, the trial court should have granted appellant’s plea of privilege.

Under article 2007, R. S. 1925, when the venue of a suit is challenged by a proper plea of privilege, it is incumbent .upon the plaintiff to both allege and prove “specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending.” See article 2007, Vernon’s Annotated Tex. Statutes, and numerous annotations thereunder.

At most the controverting affidavit in the instant case merely alleged general conclusions, and wholly failed to allege or prove specific facts required by the statute to retain venue in Tom Green county.

Appellee has not briefed tbe case, and nothing would be added to the jurisprudence of the state by discussing here either the facts or the holdings of the courts on the issuesi l'aised. Judgment of the trial court is reversed, and the cause remanded, with instructions to transfer the case to the district court of Dallas county, in accordance with said plea of privilege.

Reversed and remanded, with instructions.