author: FLY, C. J.

text:
    HARPER v. SMITH et al.
    (No. 7959.)
    Court of Civil Appeals of Texas. San Antonio.
    March 7, 1928.
    Rehearing Denied April 4, 1928.
    1. Detinue &wkey;j|8 — Burden was on plaintiff to prove alleged ownership and possession of goats sued for as purchaser from defendant.
    Burden was on plaintiff, in suit to recover title and possession of goats, to prove his allegations that they were his property and in his possession as purchaser thereof from defendant.
    2. Detinue <&wkey;17 — Whether intervener acquired goats sued for from defendant while un-emancipated minor became immaterial, where plaintiff failed to show his alleged purchase thereof from defendant.
    Whether son acquired goats from his parents while a minor not emancipated, and hence could not own them, as alleged in his plea in intervention, became immaterial, where plaintiff, in suit to recover title and possession from intervener’s father, failed to show that he purchased them from defendant as alleged.
    Appeal from Uvalde County Court; Green B. Fenley, Judge.
    Action by A. B. Harper, Jr., against Ed. Smith, in which Milton Smith, a minor, through his next friend, Ed. Smith, intervened. Judgment for intervener, and plaintiff appeals.
    Affirmed.
    Will Glover and Ditzler H. Jones, both of Uvalde, for appellant.
    G. B. Fenley and Atlas Jones, both of Uvalde, for appellees.
   FLY, C. J.

Appellant sued Ed. Smith to recover title and possession of 47 goats valued at $235. Milton Smith, a minor, through his next friend, Ed. Smith, filed a plea in intervention, claiming that he was the owner of 38 goats and 22 kids, taken from him through a writ of sequestration issued at the instance of appellant, and he prayed for their recovery or their value. The cause was submitted to a jury through special issues, and on their answers judgment was rendered that the intervener recover the goats or their value and the value of mohair sheared from them.

The jury in answer to 15 issues found the value of each goat, including a certain billy goat and a certain nannie goat, and found that all of them belonged to the minor, Milton Smith, although in answer to questions as to whether he acquired the goats by his labor, or as to how he acquired them, the jury said they did not know. When Ed. Smith sold his goats and other live stock to-Harper and Patterson, it was clearly understood and agreed between the parties that certain of the goats, which had been gathered, were not the property of Ed. Smith and were not included in the sale. Among the number were the goats claimed by Milton Smith, and they were separated from the herd, with the other goats belonging to different parties. Milton Smith took charge of the goats claimed by him. The evidence is amply sufficient to establish the fact that the goats claimed by Milton Smith were not sold to appellant, and that he was never in possession until he had them seized under a writ of sequestration.

Appellant alleged that the goats were his property and that he was in possession of them. The burden rested on him to prove his allegations before he was entitled to a recovery. When he failed, under the verdict of the jury, to show that he had bought the goats in controversy from Ed. Smith, he had failed in his suit, and it became a matter of no importance to him whether the goats belonged to Milton Smith or any orie else.' It is idle speculation, under the facts of the case, to set up a claim that because Milton Smith may have acquired the goats from his parents while not “emancipated,” but laboring under the handicap of minority, he could not own the goats, for if that fact should be established and the law applied as claimed, what does it profit the appellant? v He failed to establish his claim to the goats and it does not matter to whom they belong.

The judgment will be affirmed.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    AMERICAN NAT. INS. CO. v. WIGGINS et al.
    (No. 1642.)
    Court of Civil Appeals of Texas. Beaumont.
    March 8, 1928.
    1. Insurance t&wkey;l36(4) — Stipulation in policy requiring good health of insured on date policy is delivered is valid.
    Stipulation in a life or health insurance policy to effect that no obligation shall exist against insurer, unless the insured is in good health on date policy is delivered, is valid.
    2. Insurance &wkey;>l36(4) —In absence of estop-pel or waiver, insurer is not liable under policy requiring good health of insured in case insured is not in good health.
    Under policy requiring insured to be in good health on date policy is delivered, policy does not become effective and no liability attaches thereunder in case insured is not in good health on date of delivery, unless insurer is estopped from urging such defense or waives such stipulation.
    3. Insurance &wkey;>392(l) — Insurer-accepting premiums after disclosure of insured’s true physical condition, was estopped to assert defense under clause requiring good health of insured.
    Insurer under nonmedical insurance policy accepting premiums from insured after a full and complete disclosure to insurer 'of true physical condition, thereby inducing insured to believe and rely on fact that insurer would pay sum of policy in event of death to beneficiary, was estopped to assert defense under provision of policy requiring insured to be in good health on Hate policy was delivered.
    Appeal, from Hardin County Court; A. L. Bevil, Judge.
    Suit by Elyot Wiggins and husband against the American National Insurance Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Conley, Renfro & Keen, of Beaumont, for appellant.
    Smith, Crawford & Combs, of Beaumont, for appellees.
   WALKER, J.

This was a suit by appellee Elyot Wiggins, as beneficiary of a nonmed-ieal insurance policy issued by appellant on the life of Arleavy Smith. The policy was for $280. Judgment was rendered in favor of appellee for the relief prayed for.

The case is before us on conclusions of fact and law, without a statement' of facts. Appellant defended on the ground that the policy was not to become effective unless the insured on the date of its delivery was “in good health,” and, as a defense under that condition of the policy, pleaded she was not in good health on the date the policy was delivered.

Appellee replied by plea of estoppel, to the effect that the insured gave appellant’s agent and inspector a full' and true statement of the condition of her health; that he "made due report of these facts to appellant, and with knowledge of the true state of the health'of the insured, the policy was executed and delivered and subsequent premiums collected as they matured to the date of her death.

The court found that the policy contained the standard provision that no obligation was to exist on account of the delivery of the policy unless on said date the insured was “in good health, any statement of any' agent to the contrary notwithstanding.” The court further found in support of the plea of estop-pel that the insured, Arleavy Smith, gave a fair and accurate statement of her physical condition to the agent and inspector of appellant at the time the application was taken; that it was the duty of these agents to determine to the best of their knowledge and ability the physical condition of the insured, and “to make report of same to the insurance company, and that the agent and inspector complied with their duty in this case”; that appellant did not require the insured to submit to medical examination, but issued the policy without examination; that the insured never received a copy of the application; that with the knowledge of the true condition of the health of insured the policy was,executed and delivered, and that appellant collected the weekly premiums on the policy from the date of its execution and delivery until her death. On these conclusions of fact the court made the following conclusion of law in support of its judgment:

“The American National Insurance Company having induced the said Arleavy Smith to make payment of premiums and having issued said policy of insurance it accepted premiums thereon from said Arleavy Smith after a full and complete disclosure by her to said company of her true physical condition and the insurance company having by its own act induced the said Arleavy Smith to believe and rely upon the fact that it, the said company, would pay the sum of $280 in the event of her death to the beneficiary named in said policy, said insurance company is estopped to plead the condition of health of said Arleavy Smith at the time of making of her application and at the time of the delivery of her policy as a defense to plaintiff’s cause of action.”

The stipulation in a life or health insurance policy to the effect that no obligation shall exist against the insurer unless the insured is “in good health” on the date the policy is delivered, is valid. In such a case if at the time the policy is delivered the insured is not in fact “in good health,” the policy does not become effective and no liability attaches thereunder, and the insurer may defeat recovery thereon by pleading and proving such facts, unless he be estop-ped from urging such defense or waives said stipulation. Southern Surety Co. v. Benton (Tex. Com. App.) 280 S. W. 551; American National Insurance Co. v. McKellar (Tex. Civ. App.) 295 S. W. 628, and authorities therein cited. In the Benton Case it was affirmatively stated by the Commission of Appeals that the stipulation of the policy relied upon in this case as a defense against liability could be waived, and that the insurer could be estopped from asserting it. The facts found by the trial court fully support the plea of estoppel. It was said by the Supreme Court of the State, speaking through Judge Stayton, in Wagner v. Insurance Co., 92 Tex. 549, 50 S. W. 569:

“To deliver a policy with full knowledge of facts upon which its validity may be disputed, and then to insist upon these facts as grounds of avoidance, is to attempt a fraud. This the courts will neither aid nor presume; and when the alternative is to find this, or to find that, in accordance with honesty and fair - dealing, there was an intent to waive the* known ground of avoidance, they will' choose the latter. Such an issue is tantamount to an assertion that the policy is valid at the time of delivery and is a waiver of the known ground of invalidity.”

In the Benton Case relied upon by appellant, the Commission of Appeals found that the soliciting agent, Harris, had no authority from his company except to solicit and receive applications for insurance and forward them to the company, and to deliver ■such policies as might be issued by his company on the applications forwarded by him and to collect the initial premium thereon and forward same to his company. In this •case the trial court found that it was the ■duty of the inspector to solicit the information that was actually given him by Arleavy Smith and to report such information to his principal, and that he complied with his duty in this case. This constitutes a clear distinction between these two eases.

On the conclusion that the appellant was estopped to assert the defense relied upon, the judgment of the trial court is affirmed.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FUNDERBURK, J.

text:
    CITY OF RANGER v. HAGAMAN.
    (No. 417.)
    Court of Civil Appeals of Texas. Eastland.
    March 9, 1928.
    Rehearing Denied April 6, 1928.
    1. Deeds <&wkey;l 12(1) — Deed, referring to engineer’s report for description, conveyed only property described therein.
    Where conveyance of waterworks property to city referred to certain engineering company’s report for description of properties conveyed, grantor was bound only by matters of description in report, and a recital therein of engineer’s assumption that title to certain property would become vested in city on certain contingency constituted no part of such description.
    2. Waters and water courses 183(3) — City held charged with knowledge that waterworks property conveyed to it did not include interest in' pipe line as such.
    Where contract referred to in conveyance of waterworks property to city for description of such property clearly showed that right to use certain pipe line designated in the report as an “equity” did not, and could not, include any title tOj or ownership of interest in, the physical property, city was charged wRk knowledge that such item did not include interest in pipe line as such, regardless of whether city’s representatives were ever told by any one what the item was intended to include.
    3. Contracts <@=>170( 1) — Contracting parties’ stipulation as to meaning of word employed prevails over its ordinary and usual meaning.
    When contracting parties stipulate what meaning shall be given to a word employed in expressing their agreement, such meaning must prevail even over the ordinary and usual meaning of the word.
    4. Waters and water courses <§=»l83(3) — Grantor of watér works property held not liable for breach of warranty of title merely because he lacked title or interest in pipe line designated in conveyance as an “equity.”
    Where engineering company’s report and a •contract referred to in conveyance of waterworks property to city for further description of property conveyed clearly showed that item designated as an “equity” did not include any title to, or ownership of interest in, certain pipe line as such, but only to’value of right to use it, held that grantor was not liable for breach of warranty of title merely on showing that he had no title to, or ownership of any interest in, the pipe line.
    5. Evidence c&wkey;460 (2) — Unless conveyance identifies property conveyed, parol evidence is admissible to make identification.
    Unless a conveyance itself identifies the subject-matter conveyed, parol evidence is admissible to make the identification.
    6. Evidence <&wkey;460(2)— Conveyance of “equity” in pipe line held not to identify subject-matter, and parol evidence was admissible.
    Where conveyance of waterworks properties to city included an item called an “equity” in a pipe line, subject-matter of such item was not identified, and parol evidence was admissible to make the identification.
    7. Interest <&wkey;39(l)- — Action against city to recover amount due for water held one on contract, not on account, and interest was allowable from dates when sums became payable (Rev. St. 1925, art. 5070).
    Action against city for amount due for water sold to it under contracts held one on contract for amount due, and not on open account, though items going to make up the aggregate were stated in form of an account and verified; hence, under Rev. St. 1925, art. 5070, interest was allowable from time when sums became due and payable.
    Error from District Court, Eastland County ; Geo. L. Davenport, Judge.
    Action by M. H. Hagaman against the City of Ranger. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Conner & McRae, of Eastland, and D. H. Elewellen, of Ranger, for plaintiff in error.
    Chastain & Judkins, of Eastland, and L. R. Pearson, of Ranger, for defendant in error.
   FUNDERBURK, J.

M. H. Hagaman sued the city of Ranger for the sum of $5,758.68, the amount claimed to be due under the terms of certain contracts for water sold by him to said city. The right of plaintiff to recover said sum was unquestioned, unless the defendant had the right to offset it by a claim of damages, in a like sum or more, for breach of a warranty of title to a certain item in a list of property conveyed by Hagaman to the city, described by reference to a report of Elrod Engineering Company, as follows:

“Equity in T. & P. R. R. Co. 8" C. I. line between pumping plant and T. & P. standpipe is. difference between an 8" and 6” line.
“Difference in cost between laying an 8" and 6" line is $0.53 per ft.
“13,260' at $0.53, $7,027.80.
“Present value 96 per cent., $6,746.69.”

The real nature of the item designated -an “equity” is sufficiently shown by evidence to be as follows: By contract dated April 2, 1919, between the Director General of Railroads, and who will hereinafter be designated as T. & P., and M. H. Hagaman, the latter was given an option to take over the operation of a certain pumping plant and to use a certain pipe line, exclusively owned by the T. & P., in supplying water to others besides the railroad. By the same contract the T. & P., at its sole cost, became obligated to install the pipe line from Hagaman’s reservoir to the railroad tanks in Ranger, shown by the evidence to be about 13,260 feet. The size of the pipe was not specified. The term of the contract was ten years from its date, with provision for the Director General retiring at the termination of the government control of railroads, the remainder of the term to be regarded as a new contract between Haga-man and any party taking over the operation of the railroad. The contract gave the T. & P. the unqualified, right-, at the termination of the contract, to remove the pipe line. The T. & P. laid about half of the pipe line with 8-inch pipe, and “strung” 6-inch pipe for the other half. Before laying the 6-inch, Haga-man made a deal with the railroad company to take the 6-inch pipe and for the railroad to finish laying the pipe line with all 8-inch casing; Hagaman paying the difference in the cost of laying same over the cost of laying 6-inch easing as intended. It was this difference in cost that was designated by the Elrod Engineering Company as an “equity,” and was appraised (excluding depreciation) at $6,746.69. The evidence justifies us in concluding that Hagaman never at any time claimed or represented that he had any interest (in the sense -of title or ownership) in the pipe line. By way of defining what was meant by the item called “equity,” the report in which the term was used said:

“This equity represents the difference in estimated replacement costs between the line as built and a six-inch line which the railroad company proposed to build. Evidence of this equity is to be had in a contract existing between the T. & P. Railway Company and the Ranger Waterworks. We are assuming that title will become legally vested in the city of Ranger in the event of the purchase of the properties herein appraised.”

The contract thus referred to is that of date April 2, 1919, mentioned above.

The “Report of Proposed Improvements to the Properties of the Ranger Waterworks,” dated November 20, 1923, to which reference was made for description of the properties conveyed by Hagaman to the city of Ranger, was only binding upon Hagaman as to the matters of description. We regard the statement in the report that “we are assuming that title will become legally vested in the city of Ranger in the event of the purchase of the properties herein appraised” as constituting no part of such description. The description in the report of the item called an “equity” does not show that it consisted of any title to, or ownership of, the pipe line or any interest therein. The contract referred to for further description clearly shows that such “equity” did not, and could not, include any title to, or ownership of, an interest in the physical property. The city of Ranger, we think, was charged with knowledge that the item described as an “equity” did not include, any interest in the pipe line as such, and this regardless of whether the representatives of the city were ever told by any one what the item was intended to include.

As we fiew the matter, it is wholly immaterial whether the word “equity” is properly descriptive of the subject-matter of tbe conveyance. Citation of authority is not needed to support tbe proposition that, when contracting parties stipulate what meaning shall be given to a word employed in expressing their agreement, such meaning must prevail, even o-ver the ordinary and usual meaning. The description in the engineer’s report and in the contract it referred to for further description makes it certain that the word was not used in any such sense as that contended for by the city. This is as far as the inquiry need go. If it meant anything other than an interest in the pipe line, it is not important what that was, so far as this suit is concerned. In such case there can be no liability for a breach of warranty of title simply upon a showing that Hagaman had no title to, or ownership of, any interest in the pipe line.

We would be hard put to name with a simple'word the subject-matter of tbe item in question. It was not an easement, for an easement pertains only to land. It was not a license, for that is personal, and usually revokable. It was added value that was given to an existing right to use the pipe line of the railroad company for a term of ten years to supply water to the city of Ranger or others besides the railroad company, by making the whole of the line an 8-inch line instead of about half of it an eight-inch line and the remainder a 6-inch line. This added value of the use of the pipe line is what was appraised at $6,746.69 at the time the city took over the waterworks’ properties, and was first called an “equity” by the engineering firm that was employed by the city to make the appraisement.

If it is not certain from the words themselves that the word was used in this sense, Still no violence is done to any principle of law by the introduction of parol evidence to show the real subject-matter of the item thus designated as an “equity.” Unless a conveyance itself identifies the subject-matter conveyed, parol evidence is admissible to make the identification. This does no violence to the well-known rule that parol evidence, except under certain circumstances, is not admissible to contradict or vary the terms of a written instrument. The conveyance of something called an equity in a pipe line certainly does not identify the subject-matter. "When for description reference is made to a contract that shows that the owner of the so-called equity has no right, title, or interest in the pipe line, and claims none, but does have an option to make a use of same that may be valuable, the term can only be construed to apply to such right of user.

The alternative contention of the city that, if there was not a total failure of the consideration for the item in question, and consequent total breach of the warranty of title to same, then that there was a partial failure of consideration and partial breach to the extent of about 6,000 feet of the 13,260 feet of pipe line is predicated upon the same claim that the equity conveyed was an interest in the physical property.

The conclusions we have reached and as set out above likewise dispose of this contention.

The further point made that the court erred in any event in giving judgment for interest from September 1, 1926, to the date of the judgment instead of from the 1st day of January succeeding the accrual of the several amounts going to make up the aggregate sum claimed would be correct if the suit were simply one upon an open account, but it is more than that. In faqt, in no proper sense is it a suit upon open account at all. True, the different items going to make up the aggregate are stated in the form of an account, and same is verified. The suit is nevertheless one upon a contract for the amount due for water, in which contract the times of payment for the water are plainly stipulated.

The case is clearly within the terms of R. S.1925, art. 5070, which provides interest shall be allowed upon all written contracts ascertaining the sum payable from and after the time when the sum is due and payable.

There appears to us to be no error in the judgment of the trial court, and the same is therefore affirmed.
      ®wPor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: , BAUGH, J.

text:
    SOUTHERN SURETY CO. v. SOLOMON.
    (No. 7173.)
    Court of Civil Appeals of Texas. Austin.
    March 14, 1928.
    I.Parties <&wkey;29 — All parties having direct interest in subject-matter of suit are “necessary parties.”
    All parties having direct interest in the subject-matter of a suit, and whose interest will necessarily be affected by any decree that might be directed therein, are “necessary parties.”
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Necessary Parties.]
    2. Contracts <&wkey;187(3) — Agreement for valuable consideration to pay another’s debt to third person inures to benefit of third person.
    When one for a ' valuable consideration agrees with another to pay the debt of that other person to a third person, such agreement inures to the benefit of the third person who may maintain an action thereon.
    3. Frauds, statute of &wkey;>l8(2) — Insurer’s agreement to settle insured’s debt to others, in consideration of insured’s accepting smaller sum in settlement of accident policies, held not required to be in writing.
    Alleged agreement between insured and insurer whereby, in consideration of insured’s accepting a certain smaller sum in settlement of accident policies for injuries sustained, insurer agreed to settle insured’s indebtedness to third persons, was not required to be in writing, nor even required to have approval or acquiescence of such third persons tó be enforceable by insured or by such third persons against insurer.
    4. Insurance <&wkey;624(5) — Where insured claimed his release of accident insurer was given on insurer’s agreement to pay his debt to third persons, such persons held necessary parties to insured’s action on policy.
    Where insured, suing on accident*policy, alleged that written release discharging insurer from liability was void because obtained from him by fraud, duress, threats, and undue influence, in that insurer’s agent agreed to pay insured’s debt to third persons in consideration of insured’s accepting a smaller sum in settlement of policy, ⅞ eld that such third persons were necessary parties to the action, notwithstanding their disclaimer of any interest in policy or in the cause of action and their assignment to insured of any interest therein.
    5. Trial &wkey;>35l(2) — Issues raised by pleadings and proof, when requested, should be submitted to jury.
    Issues raised by the pleadings and proof, when requested, should be submitted to the jury.
    6. Trial <&wkey;>350(4) — Jury issue of good-faith controversy between insured and insurer did not arise, where insured attacked settlement for fraud, duress, and undue influence.
    As respects necessity of submitting issue to jury, issue of good-faith controversy between insured and insurer at time of settlement of claim on policy arises only when failure of consideration for payment by insurer of less than the full amount of the policy is raised, and so did not arise where insured attacked settlement and release given thereunder solely on the ground of fraud, duress, undue influence, and overreaching.
    7. Tria! &wkey;>2l9 — Court’s failure, in action tried on special issues, to define words “overreaching,” “pressure,” “threats,” “undue influence,” “misrepresentation,” and “fraud,” held error (Rev. St. 1925, art. 2189).
    In action on accident policy, in which insurer set up written release executed by insured as a defense, special issues submitting questions whether settlement was induced by overreaching, pressure, threats, and undue influence, misrepresentation, and fraud as alleged in pleading, held, erroneous, under Rev. St. 1925, art. 2189, in failing, over insurer’s objections to define words- “overreaching,” “pressure,” “threats,” “undue influence,” “misrepresentation,” and “fraud”;' such terms having a fixed legal meaning which ordinary person would not readily understand.
    8. Trial <&wkey;352(5) — Special issue whether insured was induced to make settlement by overreaching, pressure, threats, and undue influence held not objectionable for multlfari-ousness as to insurer (Rev. St. 1925, art. 2189).
    In action on accident policy, in which insurer set up as defense written release executed by insured, special issue asking jury whether settlement was induced by “overreaching, pressure, threats, and undue influence” substantially as alleged in pleading held not^ objectionable for multifariousness, under Rev. St. 1925, art. 2189, as respects insurer, since insured, in relying on all such elements combined as basis of recovery, assumed a more onerous burden than necessary.
    9. Trial <&wkey;256 (2) — Defendant, objecting to charge on issue on which plaintiff relied, held not required to submit proper charge.
    Defendant was not required to prepare and submit charge on issue on which plaintiff relied to recover, but it was sufficient to call trial court’s attention to any defects in charge given by proper objection, and it then became trial court’s duty to correct the error and give a proper charge.
    IQ. Appeal and error ⅞=216(3) — Complaining party must tender special charge to avail himself of court’s failure to submit issue, but objection to erroneous charge sufficiently preserves matter on appeal.
    Where trial court fails to submit any particular issue, the complaining party must tender a special charge thereon to avail himself of such error on appeal, but, where court undertakes to charge on or submit such issue, and submits a defective or erroneous charge thereon, a proper objection thereto is sufficient to preserve the matter on appeal.
    11. Appeal and error t&wkey;996 — Unless reasonable minds could not differ on deductions to be drawn from evidence, appellate court will riot Interfere with jury’s finding.
    In deciding whether .evidence was sufficient to take cqse to jury, on issues involved, appellate court is not concerned with its contradictions, probative force, or credibility of witnesses, but that is a matter for jury, and, unless reasonable minds could not differ on the deductions to be drawn from the evidence as a whole, the appellate court will not interfere.
    12. Insurance <&wkey;670 — Finding on special issue that settlement was induced by overreaching, pressure, threats, and undue influence held in irreconcilable conflict with finding that insured was able to exercise own judgment.
    Jury’s affirmative answer to special issue whether insured was induced to make settlement with insurer by overreaching, pressure, threats, and undue influence held- in irreconcilable conflict with its affirmative answer to issue whether insured was able to exercise his own free and intelligent judgment in determining advisability of making settlement.
    13.Insurance &wkey;>299 — Any misrepresentations as to amount of insured’s income in application held not to affect risk nor bar recovery on accident policies (Rev. St. 1925, arts. 5043, 5045).
    Under Rev. St. 1925, arts. 5043, 5045, representations made by insured in his application for insurance as to amount of his income, if false, held not to affect risk nor bar recovery on accident policies.
    Appeal from District Court, Hays County; M. O. Jeffrey, Judge.
    Action by C. D. Solomon against the Southern Surety Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for new trial.
    Barrett & Barrett, of San Antonio, and R. E. McKie, of San Marcos, for appellant.
    Will G. Barber and T. C. Johnson, Jr., both of San Marcos, for appellee.
   , BAUGH, J.

Suit was upon a health and accident insurance policy issued to appellee by appellant company. On December 28, 1923, appellee, Solomon, lost one foot through accidental means, and under the terms of said policy was insured against such loss in the sum of $2,500. He admitted payment to him by appellant of the sum of $833.33 and sued for the balance due, claiming interest, penalty, and attorney’s fees. Appellant set up as a defense a written release executed by ap-pellee, discharging it from all liability under said policy, and alleged payment to S'olomon pursuant thereto of $S33.33. By supplemental petition, Solomon pleaded that said settlement was void because obtained by overreaching, pressure, threats, undue influence, and by misrepresentation and fraud, among other things, in the following respects: That while he was still ill in the hospital at Sian Marcos from his accident and the amputation of his foot as a result thereof, H. W. Bake, the claim adjuster of appellant, came to him to adjust his claim against appellant company, and also a claim against another company in which Solomon held a policy for the principal sum of $5,000; that said Bake represented to him that he had authority also from Misses Bessie and Agnes Maney of San Antonio, Tex., to whom Solomon then owed about $6,000, to settle the indebtedness they held against him, and that, if appellee would accept $2,500 in settlement of both policies, he (Bake) would settle the $6,000. owed by him to the Maney sisters,''thus saving him at least $1,000, and that, because of such agreement, which Solomon alleged was-fraudulently made, with no intention on the part of Bake to carry out, and for the other reasons alleged, lie was induced to execute the settlement agreement, and turn over his policies to said adjuster.

The trial was to a jury on special issues, hereinafter considered, on replies to which the trial court rendered judgment in favor of Solomon, from which the surety company has appealed. Other facts pertinent to the issues raised will be set forth in the discussion of those issues.

The first contention made by appellant, raised in the trial court by plea -in abatement, is that the Maney sisters were, under appel-lee’s own pleadings, necessary parties to this suit. Appellant took their depositions, and in their testimony they each disclaimed any interest in said policy sued upon. And upon the hearing on said plea in abatement ap-pellee introduced a written instrument executed by them, disclaiming any interest in appellee’s cause of action, and assigning to him whatever interest therein, if any, might appear to exist in their favor.

It is well settled that all parties who have a direct interest in the subject-matter of a suit, and whose interest will necessarily be affected by any decree that might be rendered therein, are necessary parties. Cotton v. Coit, 88 Tex. 414, 31 S. W. 1061; Waldrep v. Roquemore, 60 Tex. Civ. App. 138, 127 S. W. 248; Alexander v. Alexander (Tex. Civ. App.) 265 S. W. 1072; Hardin v. Hardin (Tex. Civ. App.) 1 S.W.(2d) 708. In the instant case Solomon admitted that he executed the written release, and that he had received the $833.33 on the policy sued upon. Unless said release is set aside, Solomon admittedly could not recover anything further on his policy. Ignoring, on this point, the questions of overreaching, duress, etc., appellee pleaded and testified that the consideration for-its execution was twofold, payment of the $833.-33 on this policy, and a further oral agreement made with him by Lake 'that Lake would-with the $5,000 still due Solomon under said two policies settle and satisfy the entire indebtedness of approximately $6,000 due by him to the Maney sisters. As stated in Mathonican v. Scott & Baldwin, 87 Tex. 398, 28 S. W. 1064;

“It is the settled rule of this court, and of most of the courts of the American States, that when one for a valuable consideration agrees with another to pay the debt of that other person to a third person, such agreement inures to the benefit of the third party, who may maintain an action thereon.”

It was not necessary that such contract between Solomon and Lake with reference to appellee’s indebtedness to the Maney sisters should have been in writing, or even that they should have acquiesced in or approved same. Bank of Garvin v. Freeman, 107 Tex. 523, 181 S. W. 187; Hill v. Hoeldtke, 104 Tex. 600, 603, 142 S. W. 871, 40 L. R. A. (N. S.) 672.

It may be contended that an agreement by Lake to “settle in full the claims of the Misses Maney” was not such an assumption by him of said indebtedness as to make him primarily liable thereon within the rule announced in Bank v. Freeman," supra. But whether so or not it was, if made, a binding contract for a valuable consideration, which Solomon could enforce against the surety company, even though it required payment by it of the full $6,000 to the Misses Maney, and one in which the Maney sisters had an interest, if they chose to assert it, at least to the extent of the $5,000 withheld by the adjuster for purposes., of payment to them under the terms of said agreement.’

Under such facts alleged by the appel-lee, which are deemed to be established as to him for the purposes of the trial (Crosby v. Bonnowsky, 29 Tex. Civ. App. 455, 69 S. W. 212), we think that the Maney sisters were necessary parties to the suit. Not being parties, they would not be bound by the judgment-rendered. Nor do we think, as insisted by appellee, that their disclaimer in their depositions, nor their assignment filed in the hearing on said plea in abatement, obviated the necessity of their being made parties.

' Such disclaimer and assignment relate to the policy sued upon and to the cause of a'etion asserted by appellee against appellant. The cause of action, if any, however, which may have accrued to the Maney sisters under ap-pellee’s allegations, could not have arisen from the policy in suit but would have been based upon the oral contract referred to, and which did not vest in them any interest in the policy itself.

Appellant’s second contention is that •the trial court erred in refusing to submit to the jury the requested issue as to whether a good-faith controversy between appellant and appellee over appellant’s liability for any sum on said policy existed at the time the settlement agreement was made. Appellant denied liability in any sum on the ground both of misrepresentation of material facts in appel-lee’s application, and on the ground that the injury was self-inflicted. It is well settled that issues raised by the pleadings and proof, when requested, should be submitted. However, the question of a good-faith controversy between insured and insurer at the time of settlement is applicable, as we understand the rule, only when failure of consideration for payment by the insurer of-less than the full amount of the policy is raised. In the instant case, appellee did not assail said settlement agreement for failure of consideration, but relied upon fraud, duress, etc,, to set aside such settlement. If appellee established his allegations of fraud, etc., appellant’s plea of good faith became immaterial, and made the submission of that issue unnecessary. If he failed to establish his allegations on those issues, we understand him to admit that such settlement was valid and binding. In either event it was not necessary to submit the issue requested.

Special issues Nos. 2 and 3 submitted to the jury were as follows:

“(2) Was the plaintiff induced to make the settlement with H. W. Lake by overreaching, pressure, threats and undue influence, in manner substantially as alleged in his pleading? You will answer ‘He was’ or ‘He was not,’ as you may find the facts to be.” The jury answered: “He was.”
“(3) Was the plaintiff induced to make the settlement with H. W. Lake by misrepresentation and fraud in manner substantially as alleged in his pleading? You will answer ‘He was’ or ‘He was not,’ as you may find the fact to be.” The jury answered: “He was.”

Appellant seasonably objected to these issues and the trial court’s charge thereon, first, because of failure to define to the jury any of the terms used therein; second, because issue No. 2, in particular was multifarious, and submitted to the jury at least, three distinct issues of fact in one question; and, third, because the court referred the jury to plaintiff’s pleadings to define or determine what was the meaning of the terms used.

Clearly the trial court erred in failing to define the terms used. Article 2189, R. S. 1925, provides, among other things, that:

“In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.”

This statute is clear, and should be followed. Special issues Nos. 2 and 3 contained - such legal terms. “Overreaching” should, as to its legal consequences, have been defined. “Pressure” and “threats” import duress, and become a question of law (Coleman v. Coleman [Tex. Civ. App.] 293 S. W. 701), requiring explanation to the jury. “Undue influence” also has a well-defined legal signification which should have been defined. Smith v. Smith (Tex. Civ. App.) 153 S. W. 918. The same is also true of. the terms “misrepresentation” and “fraud,” used in special issue No. 3. Wortman v. Young (Tex. Civ. App.) 221 S. W. 662. These terms have come to have a fixed legal meaning which an ordinary person would not readily understand, necessitating, therefore, their explanation by the court. Robertson et al. v. Holden (Tex. Com. App.) 1 S.W.(2d) 570.

In reply to appellant’s second objection, appellee contends that the issues included in special issue No. 2, complained of as being multifarious, are presented conjunctively, and not disjunctively, and that, as pleaded and as sustained by his testimony the controlling issue was, not whether any one of such separate questions of overreaching, undue influence, etc., existed, but whether', as the result of all of them combined, Solomon was improperly induced to make said settlement. And also that as presented it imposed a heavier burden on appellee, requiring him to establish the affirmative of all of said issues before the jury could find as it did, and that therefore appellant cannot complain. Any one of the grounds embodied in said special issue would have been sufficient, if it existed, to set aside the settlement agreement. The pleadings set them all up in general terms. The evidence as to whether any of them existed was conflicting. Under such circumstances there can be no doubt that Solomon could have complained of such submission, and could have required the court to submit them separately. If, however, he chose not to rely upon any one of them, but upon all of them combined as inducing an improper settlement, and such was his basis of recovery, and under such theory and under said charge he assumed a more onerous burden than was otherwise required of him, notwithstanding the provisions of article 2189, R. S. 1925, we are not prepared to say that appellant can complain.

Nor was it necessary for appellant to tender proper charges on the questions raised. It was sufficient to call the trial court’s attention to such defects by a proper objection thereto. It then became the duty of the trial court to correct the error and give a proper charge upon the matters complained of. The appellant was not required to prepare and submit charges on issues on which the plaintiff relied to recover against it. Austin Gaslight Co. v. Anderson (Tex. Civ. App.) 262 S. W. 136. The rule as announced by our Supreme Court in Gulf, C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183, is that, where the trial court fails to submit any partícular .issue, the complaining party must have tendered a special charge thereon in order to avail himself of such error upon appeal; but, where the trial court undertakes to charge upon or submit such issue, and submits a defective or erroneous charge thereon, a proper objection thereto is sufficient to preserve the matter on appeal. Robertson et al. v. Holden,, siupra.

A proper definition or explanation of the legal terms used in said special issues would have sufficed for a proper guidance of the jury without referring them to the plaintiff’s pleadings, and renders unnecessary here any further discussion of that question raised by appellant.

Propositions 6 and 7 which assert insufficiency of appellee’s pleadings to present issues of fraud, duress, or undue influence are without merit, and are overruled.

In' propositions 8, 9, and 10 it is insisted that there was no evidence in legal contemplation to support a finding that appellee was induced to make said settlement agree-merit by duress, by undue influence, or by fraud. Appellant devotes much of its brief to these contentions, and • cites numerous authorities in support of them. In view of a reversal on other grounds, we refrain from discussing the evidence further than to say that, under all the facts and circumstances of the case, the evidence was sufficient to go to the jury on all of these issues. In passing upon such question, we are concerned with its contradictions, its probative force, or the credibility of the witnesses. That was the jury’s sphere, and, unless reasonable minds could not differ on the deductions to be drawn from the evidence as a whole, the appellate court will not interfere. Barron v. Sty. Co.(Tex. Com. App.) 249 S. W. 825; Dunlap v. Oak Cliff Pharmacy Co. (Tex. Civ. App.) 288 S. W. 236; Buchanan v. Davis (Tex. Civ. App.) 300 S. W. 989. Nor is it necessary here to define or discuss what may or may not in the instant case have constituted duress, undue influence, or fraud. The question of what are proper definitions of these terms is not before us.

Appellant’s next contention is that the answer of the jury to special issue No. 4 is in such irreconcilable conflict with their answer to special issue No. 2 that no judgment can be based thereon. Special issue No. 4 was:

“Under all the conditions then existing, was plaintiff, at the time of the settlement with H. W. Lake, in condition to, and able to, exercise his own free and intelligent judgment in determining as to the advisability of making such settlement.”

The jury answered, “He was.” One of the necessary elements both of duress and undue influence is that the complaining party must have been deprived of hi-s free and independent judgment and choice, and subjected to the will of another. If then, at the time he made the settlement with Lake, his will was overcome by, and subjected to, that of Lake, we do not see how it can be said that he was “in condition to, sfnd able to, exercise his own free and intelligent judgment” in making such settlement. Appellee insists that, though the jury found that Solomon was in “condition to, and able to,” use his own judgment in the matter, it.did not find that he did bo use it, but, on the contrary, in. answer to special issue No. 2, found that he did not. The two findings, however, are not in our opinion reconcilable.

The remaining propositions relate to statements in Solomon’s application for said policy' with reference to his income claimed by appellant to have been false, and to his wife’s testimony with reference thereto. We find no merit in these contentions. The jury found that his answers were not false, and further that the amount of Solomon’s weekly income was not material to the risk with reference to the injury received. Article 5045, R. S. 1925, expressly provides that, if in an application a fact is misrepresented which is immaterial, and which does not affect the risks, it will not bar a recovery on the policy. And article 5043 provides that the question of whether such misrepresentation, if made, was material to the risk or contributed to the loss in any manner, is a question of fact to be determined by the court or jury. If not material to the risk, their truth or falsity became immaterial. A fixed sum was provided in said policy for loss of a foot by accident, a contingency not related to his weekly income. The nature of his employment, or a change therein, if misrepresented, might be material to the risk, but the amount of his weekly income, so long as he continued in the same employment, would not affect the risk, nor bar a' recovery. Etna Life Ins. Co. v. Claypool, 128 Ky. 43, 107 S. W. 325; Claypool v. Continental Casualty Co., 129 Ky. 682, 112 S. W. 835; Sullivan v. Hartford Fire Ins. Co., 89 Tex. 665, 36 S. W. 73.

For the reasons stated, the judgment of the trial court must be reversed, and the cause remanded for another trial.

Reversed and remanded.
      <g=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=5For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    BALL v. FARMERSVILLE NAT. BANK OF FARMERSVILLE.
    (No. 3544.)
    Court of Civil Appeals of Texas. Texarkana.
    March 22, 1928.
    Rehearing Denied March 29, 1928.
    1. Bills and notes &wkey;5501 — Exclusion of proof of defendant’s offer to secure plaintiff in extension of time for payment of note held not error.
    In action by bank on notes, court helé not to have erred in rejecting defendant’s offer to prove by plaintiff’s cashier that defendant, on day case was tried, offered to secure plaintiff in order to obtain extension of time for payment, in'view of undisputed evidence that papers were not executed and that offer occurred just before case was tried.
    2. Appeal and error &wkey;>!039(i3) — Discrepancy between amount of note alleged and proved which was result of clerical error does not warrant denial of recovery thereon by appellate court.
    Where, in action on notes, discrepancy between amount of one of notes as alleged and amount as proved was doubtless result of clerical error, and even if note were for lessei amount judgment for plaintiff was not excessive, court, on appeal, will not deny recovery to plaintiff on such note.
    Appeal from District Court, Collin County T. E. Wilcox, Judge.

      Action by the Earmersville National Bank of Earmersville against T. E. Ball. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    L. O. Clifton, of McKinney, W. B. Jack Ball, of San Antonio, and Wallace Hughston, of McKinney, for appellant.
    Smith & Abernathy, of McKinney, for ap-pellee.
   WILLSON, O. J.

The suit was commenced by appellee against appellant April 14, 1927. It was to recover $8,686.47, the amount (principal, interest, and attorney’s fees) of three promissory notes made by appellant, two of them payable October 1, 1926, and the other payable October 15, 1926. Appellant defended against the recovery sought on the ground that the times for the payment of the notes had been extended one year from their re-spectivé due dates, specified above, and hence the notes were not due when the suit was commenced. The trial was before the court without a jury and resulted in a judgment May 28, 1927, in appellee’s favor against appellant for the amount of the notes.

Appellant insists it was error not to sustain his general demurrer' to appellee’s petition, but in his brief suggests no reason (and a careful reading of the petition has disclosed none to us) why the demurrer should have been sustained.

There was testimony that before the suit was commenced appellee expressed a willingness to extend the time for the payment of the notes if appellant would secure same in a way specified, and that appellant failed to do so. At the .trial appellant offered to prove by appellee’s cashier that on the day the case was tried he offered to so secure ap-pellee, and complains because the court refused to permit him to do so. In approving the bill of exceptions evidencing the ruling, the trial eoprt says:

The cashier “did testify on the trial, without objection, as follows: ‘It is a fact that the defendant [appellant] to-day expressed a willingness to execute the papers,’ but the undisputed evidence was that the papers were not executed and that this conversation occurred just before the case was tried.”

It is obvious, we think, that the complaint is without merit.

After presenting the contentions stated above, appellant in effect abandons same by a request that:

This court “reverse and render the judgment [quoting from his brief] for the amount due on the note for $3,423.10 and on the note for $1,320.83.”

The effect of such action by this court would be to deny appellee a recovery on the other one of the three notes, to wit, the one for $2,765.50. The theory upon which appellant thinks appellee should be denied a recovery upon that note is that it was described in appellee’s petition as a note for $2,755.50. The apparent discrepancy of $10 between the-amount of the note as alleged and the amount thereof as proved is doubtless the result of a clerical error which would have been corrected if appellant had called attention to it by objecting to the admission of the note when it' was offered as evidence. Calculation shows-.that even if the note was for only $2,755.50 as alleged, the amount adjudged in appellee’s favor was not excessive.

The judgment is affirmed.
      ®=»For other eases see same topic and KEY-NU1 [BER in all Key-Numbered Digests and Indexes


author: ELY, O. J.

text:
    CHANDLER v. HARRISON.
    (No. 7943.)
    Court of Civil Appeals of Texas. San Antonio.
    March 7, 1928.
    Rehearing Denied April 4, 1928.
    1. Appeal and error1 <&wkey;907(3) — Findings are adopted on appeal in absence of statement of facts.
    Where there is no statement of facts, findings of fact of trial judge must be adopted on appeal.
    2. Attorney and client <&wkey;l50 — Client, who told attorney to sue after attorney’s demand for one-third, held liable for one-third amount realized by settlement, though client had not actually received money and had discharged attorney.
    Where after attorney informed client that fee for instituting suit would be one-third of recovery and client subsequently told attorney to go ahead with the suit, and suit was compromised, attorney was entitled to recover one-third of amount provided in compromise agreement, less retainer fee, though he was discharged after the agreement had been made and though client had not been paid the money under the compromise agreement.
    Appeal from Nueces County Court; Nat Benton, Judge.
    Suit by Sidney P. Chandler against H. H. Harrison. Plaintiff recovered judgment in justice’s court, but judgment was rendered for defendant on appeal to the county court, and plaintiff appeals.
    Reversed and rendered.
    Sidney P. Chandler, of Corpus Ohristi, for appellant.
    Tarlton & Lowe, of Corpus Ohristi, for ap-pellee.
   ELY, O. J.

This suit, which originated in the justice’s court of Nueces county, involves a claim for legal services and for auditing some accounts, the whole sum, less a payment of $100, being $193.33. The suit was instituted by appellant, and the trial in the justice’s court resulted in a judgment by default against appellee for $193.33. The cause was appealed by appellee to the county court, where it was tried without a jury and judgment rendered that appellant take nothing by his suit and pay all costs incurred.

There is no statement of facts and consequently the findings of fact of the county

judge must be adopted by this court. They are as follows, with the elimination of surplus language:

“The defendant, H. H. Harrison, employed the plaintiff, an attorney, Sidney P. Chandler, to file a suit against E. B. Quaile and P. E. Quaile in the district court of Nueces county, Tex. The-plaintiff told the defendant that the fee for filing said suit would be one-third of any recovery obtained less $100 cash paid as a retainer fee. The defendant did not agree to pay the fee demanded by the plaintiff. Later defendant told plaintiff to ‘go ahead’ with the suit. Said suit was compromised and a contract entered into between'the Quaile boys and H. H. Harrison, and the plaintiff assisted in the negotiations of the compromise. ' The defendant has not been paid the money by the Quaile boys. The compromise agreement amount was approximately $800. The defendant discharged the plaintiff as his attorney after the compromise agreement and before the contract of compromise had been drawn or signed by the parties. The defendant did not agree to pay plaintiff for auditing his bank statement as alleged in plaintiff’s petition, but such services were included and paid for by defendant in the general employment by defendant of plaintiff.”

The facts found by the court show that appellant was employed by appellee to prosecute a claim in the district court against E. B. Quaile and E. F. Quaile, and the agreement between appellant and appellee was that appellant was to receive a retainer of $100, and one-third of all he might recover in the suit less the $100 paid as a retainer. Appellant filed the suit as later instructed by ap-pellee, and while pending a compromise, in which appellant assisted, 'was made between appellee and the Quailes, they agreing to pay appellee $800. The compromise was agreeable to and accepted by appellee. After appellant had recovered through the compromise the sum of at least $800 for appellee, after appellant had through the compromise performed the services agreed to be performed by him for appellee, the latter apparently sought to evade payment of his fee due appellant by discharging him. It may be true, as found by the court that the Quailes had not paid off the claim due by them to ap-pellee, but that fact could not affect the right of appellant to recover his fee. He had rendered all the service contracted for by him, and appellee accepted his services and should in good conscience pay for them. Appellee, as found by the court, may not have agreed to pay all demanded by appellant, but he did agree to one-third of the amount recovered less the $100 paid in advance.

The findings of the court show that they are connected with and grew out of the same transaction and while there may have been some delay in instituting the suit still “later defendant told plaintiff to go ahead with the suit.” That suit could have been no other than the one in which the suit was instituted. The conclusion of the county judge that ap-pellee did not agree to pay the fee demanded by appellant amounts to nothing in view of the finding that appellee had employed appellant to file a suit against the Quailes and had agreed “that the fee for filing said suit would be one7third of any recovery obtained, less $100 cash paid as a retainer fee.” Appellee may not have agreed to pay $25 for auditing accounts, but he did agree to pay one-third of any recovery made by him. His suit was the means of a recovery of $800 and he is entitled to one-third of it less the $100 retainer.

The judgment is reversed and judgment here rendered that appellant, Sidney P. Chandler, recover of appellee, H. H. Harrison, the sum of $166.66, and all costs in this behalf expended.
      ©ssPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and'Indexes


author: HIGHTOWER, O. J.

text:
    SNOW v. PRINCE et al.
    (No. 1654.)
    Court of Civil Appeals of Texas. Beaumont.
    March 27, 1928.
    Rehearing Denied April 4, 1928.
    1. Brokers <&wkey;82(4) — Instrument constituting earnest-money receipt or option to purchase, held properly excluded as variance from pleading.
    In suit to recover on contract, for commission in procuring a deed from certain persons to defendants, instrument constituting a mere earnest money receipt, or option to purchase, or executory contract for sale, but in no event constituting a deed or present conveyance to defendants, held properly excluded as being at variance with pleading.
    2. Estoppel <&wkey;IIO — Oral testimony that defendants, agreeing to pay commission for deed, took possession under different instrument heid inadmisible without plea of estop-pel or waiver.
    In suit to recover under contract, for commission in procuring deed to certain tract of land to defendants, oral testimony to effect that defendants entered into possession after execution of instrument in the nature of an earnest-money receipt, held inadmissible without plea of estoppel or waiver.
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Suit by John H. Snow against H. Prince, H. Brown, and others, subsequently dismissed as to defendant last named, and wherein executors of the estate of defendant first named were made parties in his stead after his death. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    A. E. Masterson, of Angleton, and Bryan, Colgin, Suhr & Bering, of Houston, for appellant.
    Eouts, Ameraran, Patterson & Moore, of Houston, for appellees.
   HIGHTOWER, O. J.

This suit was filed by appellant, John H. Snow, on May 15, 1920, in the district court of -Brazoria county, against H. Prince, H. Brown, A. Eeldman, and J. J. Moody, as defendants. Appellant, for his cause of action, alleged, in substance, that on .or about April 3, 1919, the defendants Prince, Brown, and' Feldman made a contract with him, by the terms of which they agreed and bound themselves to pay him $3,000, if he would procure for them a deed from certain persons to a tract of one and one-half acres of land in the oil 'field at West Columbia in Brazoria county, and he alleged, in substance, that he had carried out the contract on his part and did procure the deed, but that the defendants had failed and refused to pay him for doing so, according to their contract.

The defendants Prince, Brown, and Feld-man, all being citizens of Harris county, filed their plea of privilege to be sued in that county, which plea was sustained and the ease was transferred to the district court of Harris county. After the case had reached the district court of Plarris county, the defendí ants answered by general demurrer and general denial and the case remained on the docket without trial for a number of years, approximately seven years. In the meantime, defendant Prince died, and defendant Brown disappeared, and his whereabouts became unknown and he was dismissed from the suit by the plaintiff. The executors of Prince’s estate were made parties defendant in. his stead, and after appellant had filed several amended petitions and supplemental petitions, the case proceeded to trial and the result was an instructed verdict and judgment thereupon entered in favor of defendants then before the court.

Appellant’s second amended petition, upon which the case proceeded to trial, in stating the contract upon which the suit is based, was as follows:

‘‘That heretofore, to wit, on the 3d day of April, 1919, H. Prince, A. Feldman and H. Brown contracted with the plaintiff that if he, plaintiff, would procure the signatures of Charles Williams and wife, Minnie Williams, Thomas Rhodes and Lee Rhodes, and in the alternative, the signature of Lee Rhodes alone, to a deed to one and one-half (1½) acres of land in the West Columbia oil field in Brazoria county, Tex., adjoining the cemetery and fully described in the deed from Charles Williams and his wife, Minnie Williams, and Thomas Rhodes and Lee Rhodes to H. Prince, H. Brown and A. Feldman, of record in volume 151, page 540 of the Record of Deeds for Brazoria county, Tex., to which reference is here made for description, that they would pay to the plaintiff the sum of $3,000, in cash for such services.”
“Plaintiff alleges that he did on, to wit, the 3d day of April, 1919, procure the signatures of all of said persons to said deed, and that he did on the 3d day of April, 1919, at the special instance and request of the said H. Prince, A. Feldman, and H. Brown go to Matagorda county, Tex., cause the said Lee Rhodes tó go tó West Columbia in Brazoria county, Tex., and cause the said Lee Rhodes to execute to the said Prince, Feldman, and Brown the deed here-inabove described.
“Plaintiff alleges that he performed each and every act undertaken by him in his agreement with said Prince, Feldman and Brown, and has fully and completely performed his part of the contract, for which the said H. Prince, A. Feld-man and H. Brown agreed to pay him said sum of three thousand ($3,000) dollars aforesaid.”

Appellant then alleged the breach.on the part of the defendants of the contract pleaded by him, and prayed for recovery against them for the sum of $3,000.

This is a sufficient statement of the pleadings of the parties to make clear our disposition of the appeal.

When the case was reached for trial below, appellant offered in evidence, for the purpose of showing that he had carried out and performed his contract with the defendants Prince, Brown, and Feldman, the following instrument:

“In consideration for the amount of $100 in cash paid by parties of the first part, receipt of which is hereby acknowledged, Minnie Williams and husband, Charles Williams, Thomas Rhodes and Lee Rhodes, this agreement is made as follows:
“(1) We, the undersigned, parties of the first part, have sold and conveyed one tract of land consisting of 1½ acres, more or less, described as Rhodes tract in West Columbia, Tex., adjoining Colored Cemetery on the east, flag pond on the west, and Chas. Brown on the north to H. Prince, A. F.eldman, and H. Brown, of Houston, Tex. Parties of the second part, for the consideration of $1,500.
“(2) The parties of the first part guarantee to parties of the second part that the above mentioned and described tract is free of any incumbrance or other claims.
“(3) The parties of the first part agree to accept $1,000 as a deposit on the bargain, balance of $14,000 to be paid on Monday, April 7, 1919, on passing good title to parties of the second part. There are no 6il leases on said land. “Minnie Williams.
“Charley Williams.
“Thomas Rhodes.
“Lee Rhodes.”

This instrument was duly acknowledged by all parties signing it, the acknowledgment taking the form of an acknowledgment to a deed.

When the above instrument was offered in evidence by the appellant, counsel for ap-pellees objected to its introduction on tbe ground, substantially, that appellant’s petition alleged that bis contract witb appellees was to procure tbe signatures of tbe parties signing tbe instrument to a “deed” and that tbe instrument offered in evidence was not ■a deed, and that it was not admissible for any purpose under appellant’s pleading. In other words, counsel for appellees objected to tbe introduction of tbe instrument then offered, because there was a variance between it and appellant’s pleading. This objection was sustained by tbe trial court and appellant was not permitted to introduce tbe instrument in evidence as a compliance witb bis alleged contract.

After tbe trial court bad refused to permit appellant to introduce tbe above-mentioned instrument in evidence, counsel for appellant asked permission of tbe trial court to introduce certain parol testimony, which tbe trial court permitted, excusing tbe jury in tbe meantime. Thereupon, appellant was placed upon tbe witness stand and testified, in substance, which we shall state very briefly, that tbe signatures of tbe persons signing the instrument tendered in evidence were secured by him, and that after the instrument bad been signed by them all and duly acknowledged, defendant Feldman stated to him, appellant, that be, appellant, had earned bis money, and that be would be paid as defendants bad agreed to pay him for bis services. He further stated, in substance, that defendants never requested him to procure for them any other instrument in this transaction, and be also testified, that immediately after tbe instrument was signed appellants erected a derrick, upon tbe one and one-half acres of land described in tbe instrument, for tbe purpose of operating for oil. In other words, appellant testified that immediately after tbe instrument was executed, appellees took possession of tbe one and one-half acres of land.

Two other witnesses, R. M. Mohler and Lee Rhodes, testified, substantially, as did appellant touching the satisfaction of de-fendants with the instrument above described, and tbe erection of the derrick by defendants upon tbe one and one-half acres of land. There was also other testimony by these witnesses touching other details, all of which comes up in tbe form of a bill of exceptions, but since it has no material bearing upon the question before us, it will not be mentioned.

All this parol testimony was objected to by counsel for appellees, on tbe ground that it was wholly immaterial to any issue made by tbe pleadings, and this objection was sustained by tbe trial court, and tbe jury was recalled and peremptorily instructed to bring in a verdict for tbe defendants. Tbe action of tbe court, in excluding tbe above instrument and in refusing to admit tbe oral testimony, was duly excepted to by counsel for appellant.

Tbe only questions before us are, as to whether tbe trial court was in error/in refusing to permit the introduction in evidence of tbe above-described instrument, offered by appellant as showing a compliance on bis part witb bis alleged contract, the refusal being based upon tbe ground that there was a variance between appellant’s pleading and tbe instrument that he offered in evidence to sustain it, and whether tbe trial court was in error in refusing to admit tbe parol testimony above shown.

Upon submission, the case was orally argued by able counsel for both sides and has been briefed by both, and after careful consideration we have reached the conclusion that tbe trial court was correct in both rulings. It is clear to us that tbe instrument offered in evidence by appellant is not a “deed” or present conveyance of land by the signers to Prince, Brown, and Feldman. Tbe only earmarks of a deed that we see in this instrument are these words, “have sold and conveyed,” as used in paragraph 1 of the instrument. It is contended by counsel for appellees, that this instrument is nothing more than an earnest money receipt, and that, therefore, it was not admissible under appellant’s pleading to tbe effect that be was to procure the signatures of tbe named parties, Rhodes and others, to a “deed.” Whether this instrument was a mere earnest-money receipt, or whether it gave a mere option to purchase the land, or whether it was a mere executory contract for the sale of land, it is unnecessary for us to determine. It is of no higher dignity than one of these. It certainly is not a deed or present conveyance of the land described to Prince, Brown, and Feld-man.

“The word ‘deed’ * * * is commonly understood to mean an instrument in writing, duly executed and delivered, conveying real estate.” Lockridge v. McCommon, 90 Tex. 234, 38 S. W. 33; Peterson v. McCauley (Tex. Civ. App.) 25 S. W. 826; Wallace v. Wilcox, 27 Tex. 60.

If it were necessary to determine the exact nature of this instrument, we would be inclined to hold that it is only an earnest-money receipt. It starts off:

“In consideration for the amount of $100 in cash paid by parties of the first part, receipt of which is hereby acknowledged, Minnie Williams and husband, Charles Williams, Thomas Rhodes and Lee Rhodes, this agreement is made as follows:”

Then in the concluding part of paragraph 1 of the instrument, it is stated, that the consideration that the parties of the first part are to pay to parties of the second part for the land is “Fifteen Hundred Dollars.” (Evidently it was intended by the parties that the consideration for the land, instead of being $1,500 was to be $15,000, because, in paragraph 3 of the instrument, as we have shown, it is stated that the “balance of $14,-000” was to be paid four days later “on passing good title to parties of the second part.”) Again, paragraph 3 starts off by saying, that the parties of the first part “agree to accept $1,000 as a deposit on the bargain.” What bargain? If this instrument was intended as a deed by the parties, why the use of having it to state that the parties were making the instrument in consideration of $100, and that they agreed to accept $1,000 as a deposit ,on the bargain ? As we have stated before, this instrument bears none of the earmarks of a deed, save and except the words “have sold and conveyed.” All other portions of the instrument show clearly, we think, that the parties were making only a written instrument sufficient to bind the bargain, and that four days after the execution of the instrument a “good 'title” was to be passed by the makers of the instrument to Prince, Brown, and Eeldman. It must be kept in mind that it was not pleaded by appellant that he was only to procure the instrument above described, but his allegations are that he was to procure the “signatures” of the makers of the instrument to a “deed.” We hold that the trial court was correct in excluding the introduction of this instrument in evidence, as showing a compliance by appellant with the contract pleaded by him.

Since there was no plea of estoppel or waiver by appellant, the trial court was correct in excluding the parol testimony above mentioned-, because the only theory upon which that testimony could have been properly admitted would have been in support of a plea of waiver or estoppel, but none such was interposed. It results from these conclusions that the judgment of the trial court must be affirmed, and such has been our order.
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author: WILLSON, C. J.

text:
    SHAW, Banking Commissioner, v. LAMAR COUNTY.
    (No. 3512.)
    Court of Civil Appeals of Texas. Texarkana.
    March 22, 1928.
    Rehearing Denied March 29, 1928.
    Banks and hanking <&wkey;74 — Banking commissioner cannot recover county school funds transferred to another bank by depository bank before its insolvency .(Rev. St. 1925, arts. 2544-2558).
    Where bank designated as depository of county school funds, pursuant to authority of Rev. St. 1925, arts. 2544^-2558, later because of complaint of directors who were sureties on depository fund and at a time that bank was still solvent, transferred deposits to another bank to credit of county treasurer, banking commissioner after insolvency of depository bank was not entitled to recover funds, there being no reason why such bank did not have a right to create a trust of such funds for benefit of county.
    Appeal from District Court, Lamar County ; Newman Phillips, Judge.
    Suit by Charles O.' Austin, Banking Commissioner, against Lamar County, wherein James Shaw, having succeeded Austin as Banking Commissioner, was substituted as plaintiff. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Jno. W. Goodwin and Joseph T. Goodwin, both of Austin, and R. E. Eubank, of Paris, for appellant.
    Long & Wortham, Park & Dohoney, W. F. Moore, and Beauchamp & Lawrence, all of Paris, for appellee.
   WILLSON, C. J.

-In pursuance of authority conferred by the statute (arts. 2544 to 2558, R. S. 1925), the Commissioners’ Court of Lamar county, on March 26, 1925, designated the First State Bank of Paris (hereinafter referred to as the Paris bank) as the depository (for a period not exceeding two years from that date) of “all school funds belonging to said county,” and on the same day approved the bond of said bank in the sum of $150,000 as such depository. From time to time thereafter until May 25, 1926, when the bank ceased to do business and was taken over by the banking commissioner, money belonging to said fund was deposited by said county with said bank as such depository. In February, 1926, directors of the bank who were sureties on its bond as such depository, complained because other directors who (it was claimed) had agreed to execute said bond as sureties had not done so. The ground of the complaint was, that said other directors were sharing in the profits to the bank as such depository, without sharing the risk incurred by the directors who were sureties on the bond. It was suggested that the ground of the complaint be removed by returning to the county the. funds held by the bank as depository. It' was objected that injury to the bank might result- from doing that. It was then suggested that the funds the bank held and would receive as depository be placed t'o the credit of the county in the Republic National Bank of Dallas (hereinafter referred to as the Dallas bank). The suggestion was approved by the complaining and other directors, and on February 17, 1926, the Paris bank began making deposits in the Dallas bank to the credit of “Lamar County School Fund, G. R. Coleman, Co. Treasurer.” The deposits to the time the Paris bank ceased to do business amounted to $100,287.08. The Paris bank paid warrants drawn on it as the depository of the school fund, and from time to time was reimbursed the amount of such payments by checks in its favor drawn on the Dallas bank by G. R. Coleman, the checks being signed “Lamar County School Fund, G. R. Coleman, Co. Treasurer.” Coleman, besides being county treasurer of Lamar county, was cashier of the Paris bank. The checks so drawn by Coleman against the $100,287.08 so deposited with the Dallas bank amounted to $73,201.25, leaving $27,-085.83 as the balance remaining in the Dallas bank to the credit of the Lamar County School Fund at the time the Paris- bank ceased to do business. Afterward, to wit, on May 29, 1926, said balance of $27,085.83 was paid by the Dallas bank to John S. Baker, County Auditor of Lamar County, on a check drawn by Coleman in his favor signed “Lamar County School Fund, G. R. Coleman, Co. Treasurer.” On the theory that said $27,085.83 belonged to the Paris bank, whose affairs were in his hands as banking commissioner, Chas. O. Austin, as such commissioner demanded same of Lamar county; and his claim therefor having been rejected, commenced this suit against said county, appel-lee here, to recover the money. In his petition Austin alleged that the deposits in the Dallas Bank to the credit of Lamar county belonged to the Paris bank, because same were made without authority from the board of directors of the Paris bank and without the knowledge of Lamar county, and in the absence of its consent to receive payment of its school fund in that manner. He alleged, further, that the Paris bank was indebted to others than Lamar county in sums aggregating several hundred thousand dollars, and that if the deposits to its credit in the Dallas bank constituted payments to it, same were illegal and void because at the times same were made the Paris bank — -

“was, within the knowledge of its officers and directors, insolvent and contemplating insolvency and had committed acts of insolvency, and that said payments were made with a view to prefer as creditors of said bank the sureties on the aforesaid depository bond, said sureties being officers and directors of said First State Bank, and of preventing the application of the assets of said bank in the manner prescribed by law.”

In its answer appellee, following a general denial, alleged that the money deposited in the Dallas bank was a part of its school fund and that same was placed and deposited in said Dallas bank—

“as a special fund for paying off and meeting the obligations of said school fund; that said funds were so used with the exception of the sum of $27,085.83, which remained in said Republic National Bank of Dallas, at the time of the closing of the First State Bank of Paris, Tex. That, after having been so deposited said monies were no part of the assets of. the First State Bank of Paris, Tex., but being the property of defendant’s school .fund as aforesaid, it has a right to receive and hold the same for school purposes.”

The jury having found on special issues submitted to them, that the Paris bank was not insolvent at the time the deposits to the credit of G. R. Coleman, as county treasurer, were made in the Dallas bank, and that said deposits were not made in contemplation of the insolvency of the Paris bank, nor for the purpose, nor with the intent to prefer Lamar county as a creditor, the court rendered judgment denying appellant James Shaw (who succeeding said Austin as banking commissioner, had prosecuted the suit) a recovery of anything, and in favor of Lamar county for costs.

After Stating the Case a’s Above.

We agree, the deposits by the Paris bank in the Dallas bank to the credit of “Lamar County School Fund, G. R. Coleman, Co. Treasurer,” did not constitute .payments by" the Paris bank on its indebtedness as the depository of the Lamar county school fund. But, we do not agree with appellant in its further contention, that after the deposits were made they still belonged to and were subject to the control of the Paris bank.

As we view the case, it is that the Paris bank, being indebted to Lamar county, turned over to Coleman, as county treasurer of said county, funds for use in paying such indebtedness. The Paris bank having'done that, Coleman treated the funds as belonging to him as such county treasurer and subject to his control as such, and both the banks concerned acquiesced in that view of the matter.

The jury found, on evidence concededly sufficient, that the Paris bank was solvent at the time it made the deposits, and that same were not, made in contemplation of insol-" vency and for the purpose, and with the intent, to prefer Lamar county as a creditor. That being the case, we see no reason why the Paris bank did not have a right to create the trust for the benefit of Lamar county, nor why, if Coleman could not lawfully hold the funds as county treasurer, he could not hold them for the county as an ordinary trustee. Sharon Grain Co. v. Farmers’ Nat. Bank (Tex. Civ. App.) 277 S. W. 449; Allen v. Pollard, 109 Tex. 536, 212 S. W. 468; Christopher v. Davis (Tex. Civ. App.) 284 S. W. 253; Goldsborough v. Siegk, 150 Md. 557, 133 A. 472; In re Goodheart’s Estate (In re Hewitt) 40 Misc. Rep. 322, 81 N. Y. S. 1030; Bluefield Nat. Bank v. Picklesimer, 102 W. Va. 128, 135 S. E. 257; McKee v. Lamon, 159 U. S. 317, 16 S.Ct. 11, 40 L. Ed. 165. In the case first cited above the court said:

“It is generally held that, money or property being delivered by one person to another for a specific purpose, such as leaving money by one with another to be deposited in a bank or placed at interest, * * * or to pay the indebtedness of the former to a third party, the person accepting the money becomes a trustee, and such a transaction created a trust.”

So far as the record shows to the contrary, the Paris bank reserved no right to revoke the trust it created, and never attempted to revoke same. The deposits were upon no condition, and we think a duty to hold the funds and apply same to the payment of the Paris hank’s indebtedness as depository, or until that indebtedness was satisfied in some other way, devolved upon the trustee.

The judgment is affirmed.
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