source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    MUELLER v. BOBBITT et ux.
    No. 12439.
    Court of Civil Appeals of Texas. Fort Worth.
    March 7, 1931.
    Rehearing Denied April 18, 1961.
    Bartlett, Brown & Thornton, of Dallas, for appellant.
    Simpson, Collins & Moore, of Fort Worth, for appellees.
   BUCK, J.

D. T. Bobbitt, who in his first amended petition was joined by his wife, sued Fred Mueller for injuries to Mrs. Bobbitt and to their Essex automobile, alleged to have occurred by reason of the Bobbitt car being-struck by the Mueller car on April 7, 1929, on the White Settlement road, west of Fort Worth. Plaintiffs alleged that, while they were coming from Lake Worth to Fort Worth early one morning, and soon after they passed the Mueller home, the car driven by Mueller came up behind them, and in attempting to pass their car the Mueller car sideswiped and hit their car, turning their car around, practically demolishing and destroying the market value of their car, and by reason of the collision Mrs. Bobbitt was thrown from the front seat, where she had been riding with her husband, to the back seat; that plaintiffs were not aware of the approach of defendant’s ear until it hit their car; that they heard no signal given by the defendant; that the striking of plaintiffs’ car was due to defendant’s negligence in various respects; that the injuries to plaintiff Ruth Bobbitt and the damage to their car were directly and proximately caused by one or more acts of negligence, either acting separately or concurrently in violation of certain provisions of the criminal statutes, to wit, that the defendant was driving in excess of 35 miles an hour, in violation of article 789 of the Penal Code as revised in 1925; that defendant was negligent on the occasion, involved, in that at the time he struck plaintiffs’ car he was driving his car at such a rate of speed as to endanger the life and limb of any person or the safety of any property; that he did not have adequate brakes in good working order, in violation of the criminal statute; that in attempting to drive his car around plaintiffs’ car he turned again to the right before the road was reasonably clear of sucb overtaking vehicle, in violation of subdivision O of article 801 of the Penal Code; that he did not give audible and suitable signal before attempting to pass their vehicle, in violation of article 801 of the Penal Code; that defendant was negligent on tbe occasion in question, in that he was operating his car at the time of the accident at a rate of speed of about 40 miles an hour, in a thickly populated area, and on a highway and at a time of day when thousands of persons and motor-ears, wagons, and other vehicles were traveling along such highway and crossing in different directions; that defendant was negligent, in that the highway over which plaintiff and defendant were traveling was a wide road affording sufficient and ample room for cars to overtake and pass each other, and there was adequate and sufficient room and space on the left of plaintiffs’ car for the car of defendant to have traveled and avoided plaintiffs’ car, all of which he negligently failed to do; that defendant was negligent, in that on the occasion in question he was not keeping the proper lookout and exercising ordinary care to keep the proper lookout in the direction he was going and discovering plaintiffs and other persons on the highway and the danger that he would strike and collide with them if he continued in the direction he was going.

It was alleged by plaintiffs that Mrs. Bobbitt at the time of the collision was a woman of youthful years, was strong and robust of health, and as a result o.f said collision she suffered painful and permanent injuries, and she received cuts on her head, shoulders, back, legs, and arms, her head was severely mashed and bruised, her spine hurt, and she received various other injuries to her ligaments, muscles, and tendons, and her nervous system was injured and greatly affected, and her female organs were greatly injured; that Mrs. Bobbitt was pregnant, and as a result of said collision she suffered a miscarriage, which caused her great pain, mental anguish, grief, and sorrow, which further affected her nervous system; that she was confined to her bed for several weeks after said accident, and as a result of said injuries she was forced to submit to an operation consisting of a curettement. Plaintiffs prayed for judgment and damages in the sum of $10,000.

Plaintiffs alleged that the car they were in was an Essex coach, 1926 model; that it was in a good state of repair, and that it was damaged to such an extent that it cannot be profitably repaired, and that it was of the reasonable cash market value at the time of the accident of the sum of $300, which amount has been lost by plaintiffs as a result of the collision; that they have been forced to expend the sum of $500 for doctors’ bills, nurses’ bills, hospital bills, and medical bills on account of the injuries to Mrs. Bobbitt, and that they will expend in the future the sum of $500 for such bills; that plaintiff was strong and robust in health, and capable of doing, and was doing, the ordinary duties of a housewife and mother, but that as a result of said collision and resulting injuries she has not been able to perform such duties since the accident, and will not be able to perform the same for the balance of her life, to their further damage in addition to those alleged in the sum of $5,000.

Opinion.

The cause was tried on November 14, 1929, before the court without the intervention of a jury, and the court, after hearing the evidence and listening to the arguments, rendered judgment for the Bobbitts for $4,000 and interest at 6 per cent, per annum until the judgment is fully satisfied, and all costs of court against' the defendant, Fred Mueller. From this judgment the defendant has appealed to this court.

The Ninety-Sixth district court convened on October 7, 1929, and adjourned on January 4,1930. Defendant’s bill of exception No. 1 complains of the failure of the trial court to file his findings of fact and conclusions of law. In this bill is copied certain correspondence between W. L. Thornton, plaintiffs’ attorney, and Judge Lattimore. The first letter, dated November 25, 1929, at Dallas, reads as follows:

“Judge Hal Lattimore, Fort Worth, Texas.
“Dear Sir: — In re Bobbitt v. Mueller. Will you please make up findings of fact and conclusions of law in the above case? It has occurred to us that probably the fairest finding of facts would be a statement of facts in narrative form. . So if you have no objection to making your findings of facts that way just instruct your stenographer to make up a narrative statement of facts.”
It is stated in the bill that the letter was received by the court and turned over to the official court reporter for reply, and that said reporter did reply to the same on December 2,1929, by writing on the back of said letter, the following letter:
“December 2, 1929.
“Mr. Thornton: Judge Lattimore asks that I advise you he will be. glad to make for you his findings of fact and conclusions of law in either manner you most desire it. If you wish to order from me the narrative statement of facts in the case, at your expense, he will be glad to consider that as his findings and conclusions; otherwise he will make up for you in more brief form his own findings' of fact and conclusions of law. Please advise us further your wishes in the matter.
“[Signed] Gordon Whatley, Reporter.”

That letter was received by said Thornton on the 4th or 5th day of December, 1929, who immediately and within two or three days from the reply of said letter got in touch with said reporter, over the telephone, and instructed him to make up said narrative statement of facts, which said reporter did, and on February 11, 1930, he called the said Thornton on the telephone and advised him that the statement of facts was ready, and he was informed by said Thornton that he would be in Fort Wórth not later than noon February 12, 1930; that said Thornton arrived at Fort Worth about ten minutes before 12 o’clock noon, and went immediately to the courtroom of the Ninety-Sixth district court, where the Judge thereof was engaged in the trial of a case; that he then went to the office of the reporter, and was shown the statement of facts in narrative form; that later, and after the court had adjourned for the noon recess, the said Thornton inquired of the court if he had prepared his conclusions of law and findings of fact, and was told by the court that no conclusions of law had been filed, but that the court would approve the narrative statement of facts prepared by the reporter as the court’s findings of fact, and the court proceeded to sign the certificate prepared by the reporter for that purpose. Whereupon the said Thornton got in touch with Arthur Uee Moore, one of the attorneys for the plaintiffs, and explained the situation to him, when the said Moore stated that he bad had no notice that a request for findings of fact and conclusions of law had been made. Counsel for defendant then excepted to the failure .of the.trial court to file his findings of fact and conclusions of law as required by article 2247 of the Statutes. This bill is approved by Judge Latti-more in the following words: ■

“Approved: H. S. Lattimore — Judge.
“Approved with this statement that the court understood and still understands that defendant preferred the narrative statement of facts prepared by the reporter as the findings and conclusions of the court and that the court knew at all times that this narrative was being prepared and that same has been prepared and signed by the court and delivered to counsel for plaintiff, that independent findings and conclusions would have been filed by the court before February 3,1930 (the trial term expiring January 3, 1930) except for reliance upon the fact that attorney for plaintiff had taken the matter of such narrative in his own hands and was having same prepared as above stated.
“H. S. Lattimore, Judge.
“Signed February 12, 1930.”
The statement of facts before us was filed in the lower court on June 26, 1930, and filed in this court on June 27, 1930. There is no exception made by appellee to the filing of the statement of facts at a late date, and, appellant having filed the same, he is in no position to take advantage of' his own delay. We believe from the correspondence above noted and the statement of Judge Lattimore attached to the approval of the bill of exception that the court had reason to believe, and did believe, that appellant was in favor of the filing of the statement of facts in lieu of the filing of the findings of fact and conclusions of law. There is in the record three conclusions of'law filed by the trial court on February 12, 1930, as follows:
“1. That defendant was guilty of negligence in failing to keep a proper lookout and in driving too fast and too near plaintiff’s car and same was proximate cause of the accident.
“2. Plaintiffs were not negligent.
“3. That plaintiff should recover in the amount of the judgment.”

The fourth assignment is directed to one conclusion of law filed by the trial court that the defendant was guilty of negligence in failing to keep a proper lookout, because the undisputed evidence showed that defendant, at all times, kept a proper lookout prior to the collision. It is true that the defendant below testified that he was following the Bobbitt car about 25 or 30 feet behind it, and the road was sloppy and wet, and the Bobbitt car stopped suddenly right in front of him, and he tried to avoid hitting it, but the front right fender or wheel of his car hit the left hind wheel of the Bobbitt car. But the Bobbitts testified that they did not stop their car, but were going at lessened rate of speed, some 5 or 10 miles an hour, when the accident occurred. The trial court was the judge of the credibility of the witnesses and of the facts proved, and we do not think his findings can be disturbed on a conflict of testimony. Pope v. Beauchamp, 110 Tex. 271, 280, 219 S. W. 447.

The fifth assignment complains of the conclusions of law filed by the court that the defendant was guilty of negligence in driving too fast, because, as alleged,- the undisputed testimony of both plaintiff and defendant showed that defendant was not driving faster than 30 miles an hour prior to- the collision. The Bobbitts both testified that they were not aware of a car following their car until their car was hit by the Mueller car. Therefore they could not testify, and did not testify, as to how fast the Mueller car was being driven. But one following a car may be negligent in getting too close to the ear ahead, so that he cannot easily avoid hitting it, and we think the court was authorized to find from the evidence that Mueller was too close to the car ahead, and that such fact was one of the reasons for the collision. The court was not bound to believe Mueller’s testimony, as he was an interested party, the defendant in the case.

The eighth assignment complains that the -court was in error in rendering judgment for the plaintiffs because it was shown by a great preponderance of the evidence.that the injuries sustained by plaintiffs were the result of an unavoidable accident. We think the evidence is sufficient to show that the injuries were sustained through the negligence of the defendant and were not the result of an unavoidable accident.

We have carefully read the cases cited by appellant on this assignment, and find nothing contrary to our holding. Vesper v. Lavender (Tex. Civ. App.) 149 S. W. 377; Williams v. Pool (Tex. Civ. App.) 293 S. W. 233.

The ninth assignment complains of the conclusion of law that plaintiffs were not negligent, which finding was in the face of the undisputed testimony of all parties, and especially against the testimony of plaintiffs themselves,, where they both admitted that they did slow down their car from a speed of 25 to 30 miles an hour to 5 to 10 miles an hour, without holding out their hands or giving any kind of warning of their intention to slow down or stop their car.

' The evidence of D. T. Bobbift was that his car was running between 5 and 10 miles an hour, and' was just rolling down the hill; that he did not hear Mr. Mueller give any signal or warning of any kind indicating his approach. His wife testified to practically the same tenor.

Article 796, of the Penal Code, reads in part:

“Every motor vehicle shall be equipped with a bell, gong, horn, whistle or other device in good working order, capable of emitting an abrupt sound adequate in quality and volume to give warning of the approach of such motor vehicle to pedestrians. * ⅞ * Every person operating a motor vehicle shall sound said bell, gong, horn, whistle or other device whenever necessary as a warning of danger but not at other times or for other purposes. ⅜ * ⅜ ”

Article 801, subd. (D), reads: “It is the duty of the driver, rider, or operator of a vehicle about to be overtaken and passed to give way to the right in favor of the overtaking vehicle on suitable and audible signal, given by or on behalf of the operator, driver or other person'in charge and control of such overtaking vehicle, if such overtaking vehicle be a motor vehicle.”

Article 801, subd. (J), reads: “The person in control of any vehicle moving slowly along upon any public highway shall keep such vehicle as closely as possible to the right hand boundary of the highway, allowing more swiftly moving vehicles reasonably free passage to the left.”

Article 801, subd. (K), reads: “The person in charge of any vehicle upon any public highway before turning, stopping or changing the course of such vehicle shall see first that there is sufficient space for such movement to be made in safety, and if the movement or operation of other vehicles may reasonably be affected by such turning, stopping or changing of course, shall give plainly visible or audible signal to the person operating, driving or in charge of such vehicle of his intentions so to turn, stop or change said course.”

The testimony of plaintiffs was that their car was on the right-hand side of the road and the right-hand wheels were off the paving. We do not see how it can be reasonably claimed, that they were negligent or that by their acts they contributed to or caused the accident in question.

After giving a careful study of the record, including the statement of facts, we conclude that the judgment of the trial court should be affirmed, and it is so ordered.


author: MCCLENDON, C. J.

text:
    LASSIG et al. v. CAHILL.
    No. 7559.
    Court of Civil Appeals of Texas. Austin.
    June 26, 1931.
    Rehearing Overruled July 22, 1931.

      Ross, Wood, Lawler & Wood and Dyess, Jaworsk-i & Strong, all of Houston, for appellants.
    C. V. Lansberry, of Round Rock, and H. N. Graves, of Georgetown, and Thos. H. Stone, of Houston, for appellee.
   MCCLENDON, C. J.

Cahill sued Lassig (and a corporation, his assignee) to cancel a 50-year lease, under which Lassig was given the exclusive privilege of quarrying stone on land near Round Rock. In the alternative Cahill sought damages for failure to reasonably develop and for breach of certain covenants in the lease. Trial was to the court without a jury, and judgment was in favor of Cahill, canceling the lease. From this judgment Lassig and his codefendant have appealed.

The lease was executed April 27, 1923. It provided for a royalty of $2 per railroad car of stone mined and shipped from the premises, and that, if less than 100 cars were shipped in any year, lessee should pay $300. The lease was to be forfeited upon failure to ship the minimum of 100 cars or to pay the $300. The original petition, filed December 27, 1929, alleged three grounds of forfeiture, in substance as follows: (1) Failure to ship 100 cars prior to April 27, 1924, whereupon Lassig “became indebted” to Cahill for $300, and upon failqre to pay which the lease was forfeited; verbal extension of the lease for one year upon payment by Lassig of $250 and his promise to begin operations on a large scale; subsequent annual extensions from year to year upon like promises up to April 27, 1929, when Lassig represented he had large financial backing and would put the quarries in operation on a large scale if granted a little more time; and failure of Lassig to perform any of these promises, whereby the lease became forfeited. (2) Failure to perform an obligation in the lease to erect and maintain a gate where spur track entered the premises, whereby Cahill was inconvenienced and damaged in loss of and injury to stock. (3) Failure to operate and develop tl)e quarries since the latter part oí 1923, whereby both the written lease and verbal extensions were forfeited. Substantially the same grounds are alleged in the amended petition upon which the case was tried, with an additional alternative prayer for damages.

In addition to the holding that the lease had been forfeited by abandonment, which we will later consider, the trial court found that the cash consideration of $50 recited in the lease had never been paid “and has therefore failed” ; and that the provision for erecting and maintaining gates had not been complied with. These findings and plaintiff’s first ground of forfeiture will be first disposed of.

The failure of consideration finding which was not alleged in plaintiff’s pleadings arose out of the following circumstances: April 25, 1922, a lease in terms substantially the same as that of 1923 was executed. It recited a cash consideration of $50, which admittedly was paid. It covered only 87 acres, but contained tbe stipulation that Cabin owned 1,000 adjoining acres covered by a previous lease, wbicb had been abandoned, and Cahill agreed “to include said property within the terms of this lease agreement or supplemental agreement, upon the same terms and conditions as herein provided as soon as he can get fully released from said prior lease agreement.” The 1923 lease carried the $50 cash consideration recital, and differed from the 1922 lease only in that it included the additional acreage. Lassig paid the $300 (due April 27, 1924, for failure to ship 100 cars) by check dated April 24, 1924, bearing the notation, “for one year rental on lease”; which check Cahill indorsed and cashed. The $50 recited in the 1923 lease was never paid. Lassig’s version of the matter was that the 1923 lease was merely substituted for that of 1922, and the recitation referred to the $50 paid on the latter. No demand was ever made for a $50 payment on the 1923 lease, and no complaint was ever made that it had not been paid. Cahill merely testified that he never got the $50, which fact Lassig frankly admitted, except as stated, under the 1922 lease. At the end of each year under the 1923 lease, including 1929, Lassig paid, and Cahill accepted, the $300 for failure to ship the 100 cars. Checks covering these payments for the years ending 1925, 1926, 1927, and 1928, were introduced, each showing the indorsement of Cahill. In acknowledging the 1926 check, Cahill wrote (4 — 19—26): “Your cheek and letter came to hand O'. K. to pay the lease. Many thanks, I was needing the check.” Accompanying the 1928 payment, which was in the form of a cashier’s check in favor of Cahill with the notation “for one years Rental for lease,” and was indorsed and cashed by Cahill, Lassig wrote, “Enclosed please find cashier’s check for $300.00 for one year’s rental for lease.” Cahill admitted getting the 1929 payment for which he executed the following receipt:

“Received of Oswald J. Lassig and Lassig Limestone Quarry Corporation, Houston, Texas, this the 22 day of April, 1929, the sum of Three Hundred and No/100 ($300.00) Dollars to cover lease rental on leases originally executed as between J. D. Cahill and Oswald J. Lassig, both of which are recorded in the Deed Records of Travis County, Texas.
“[Signed] J. D. Cahill.”

From the foregoing it is manifest that, if Lassig’s version of the recital of cash consideration was not correct, Cahill nevertheless acquiesced therein, and, in any event, waived the failure to pay same as a ground of forfeiture or failure of consideration.

The agreement in the lease regarding the erection and maintenance of gates was clearly not a limitation or condition subsequent, breach of which would terminate or afford ground to forfeit the lease; but was only a covenant for breach of which damages constituted the legal remedy.

There is no basis in the evidence for Las-sig’s first alleged ground of forfeiture. There was no failure to pay the $300 in 1924, and consequent abandonment and verbal one-year extension of the lease. That Cahill got this $300 is established by undisputed proof, including Cahill’s own admission. Lassig gave Cahill a check for this amount on a Houston bank, dated April 24, 1924. Cahill indorsed the check and deposited it with a bank in Round Rock, which latter indorsed it April 26, 1924; and it was paid in Houston April 28, 1924. There was never any claim by Ca-hill that the lease had been forfeited for default in this payment; and, as above shown, at the end of each succeeding year the $300 was accepted in recognition of and in accordance with the terms of the written lease. Cahill’s own testimony negatives the theory of default and verbal renewal as shown in the following excerpts:

“There was no agreement that way, that in April, 1924, Mr. Lássig wanted a one year oral extension and I agreed to that for $250, and he paid me the $250. * * * he never paid me $250. I had no agreement of that kind with Mr. Lassig.”
“I did not have any agreement where I told Lassig that I would let him stay one more year by paying me $250.00; I did not have any agreement of that kind.”
“I say here in my suit that I granted him an extension from time to time. I told him just to go ahead, I hope you will make money ; and he went ahead under the same written lease that he started with in April, 1923.”

This brings us to what we regard the controlling issue in the case, namely, whether the trial court’s judgment can be sustained upon the theory of cessation or abandonment.

Appellee’s theory in this regard may be summarized as follows: The leased -premises contained valuable deposits of building stone, the development and marketing of which constituted the main consideration for the lease ; the $300 in event of not shipping the minimum 100 cars each year was not a rental in lieu of development, but a penalty to force development; and therefore a total cessation or abandonment of operations on the .lease worked a forfeiture, regardless of the $300 annual payments. This theory was upheld. by the trial court.

We will consider this theory in the light of the provisions of the lease, the trial court’s findings, and the evidence viewed most strongly in support of those findings.

The lease was for 50 years, granting “the exclusive right and privilege of mining and quarrying the rocks and stone only, and removing the same from the following described property.” In addition to the $50, the lease recited “the further consideration of the covenants, and agreements hereinafter mentioned.”

We copy in full the pertinent portions of the lease:

(4) “Second party further agrees to pay to the first party the sum of Two (2.00) dollars per railroad car for every car of rock shipped or used by him off of said land, whether rough rock, cut rock, dressed rock or crushed rock. The payments‘to be made hereunder on the 15th day of each month for all rock shipped for the previous calendar month, and second party agrees to begin operations and the quarrying of said rock on the land hereby leased within six (6) months from date hereof.

(5) “Second party shall have the privilege of removing twenty-five (25) cars of said rock from said land hereby leased without additional payment, said payment of $50.00 here-inbefore mentioned to be applied as a credit for said twenty-five (25) cars of rock.” •

(8) “Second party agrees to pay Two (2.00) Dollars per car for all rock as stated in paragraph four (4) of this lease; and in addition thereto the party of the second part agrees that if there is any year that he does not quarry and ship as many as One Hundred (100) cars, then he agrees to pay to party of the first part the sum of Three Hundred ($300.00) Dollars ,at McNeil, Travis County, Texas, for each and every year he fails to quarry and ship as many as one hundred (100) cars of rock; and if he ships more than one hundred (100) cars then he is to pay Two ($2.00) Dollars for every car shipped, and in «ase the party of the second part fails to ship as many as one hundred (100) cars of rock or fails to pay the Three Hundred ($300.00) Dollars any year, then this lease is forfeited and the party of the first part may take possession without bringing suit in court.”

(10) “Second party agrees to pay promptly and punctually all of the rents and for all rock hereinbefore provided for, and that he will quietly deliver up the said premises upon the expiration of the term of his occupancy. * * *"

The trial court’s findings pertinent to the issue considered, read:

“Third: That the defendants have quarried approximately 20 car loads of rock since April 27th, A. D. 1923, up to the trial of this cause, and the rock quarried was in the latter part of the year A. D. 1923, and have not operated the quarries on the leased premises with' any degree of diligence whatsoever; that at the end of each quarry year, that is on or about the 27th day of April of each year, the plaintiff did complain to the defendants relative to his failure to operate the quarry on these premises in a diligent manner, and each time the defendants would promise more diligence m their operations.
“Fourth: That the defendants, Oswald J. Lassig, and the Lassig Limestone Quarry Corporation, have not proceeded with the development of these premises, and are not able to do so. That neither one of the defendants are possessed of sufficient capital to properly develop these rock and stone' deposits.
“Fifth: That the machinery placed by the defendants on the lands of the plaintiff for the operations of said quarry, is antiquated, obsolete and not sufficient for the purpose of operating said quarry and developing .the rock and stone industry upon these premises.
“Sixth: That the defendants, and both of them, have abandoned the leased premises for more than two yedrs at a time, without any effort to operate or develop the same.
“Seventh: That the plaintiff, at a great cost to himself, in the beginning of this lease, purchased land for the purpose of enabling the defendants to connect their quarry with railroad transportation, but the defendants only paid the railroad company to build a short spur track which would only accommodate a few railroad cars and lacked several hundred feet of extending to this quarry, which necessitated the trucking of stone from the quarry to the railroad sp'ur track and not permit the loading of the cars by crane or shovel from the quarry as contemplated by plaintiff when he purchased the large tract of additional land for the defendants’ use for this purpose; and the I. & G. N. Railroad built a spur track as above mentioned for the use of the defendants for the loading of rock, which spur track has long since been removed by the Railroad, on account of the use of same having been abandoned by the defendants.”
“Ninth: I further find that if the defendants had operated this quarry or a quarry on the leased premises with reasonable diligence, and even with the antiquated machinery they had upon the ground, that they could have gotten out at least three cars of stone each week, and with proper machinery and with ordinary diligence in the operations of these quarries could have gotten out easily a hundred car loads of stone a week.
“Tenth: I further find that neither of the defendants are possessed of sufficient funds, or credit, to operate this rock quarry with reasonable diligence.
“Eleventh: I further find that the stone and rock under the leased premises herein inquired about is very valuable, and is found in large quantities thereon, and if operated and developed with' reasonable diligence the revenues therefrom would be in a substantial amount to this pláintiff under this contract.
“Twelfth: I further find that the sum of $300.00 agreed to be paid by the defendants per year, would be approximately twenty-five cents per acre for such leased premises, and would hardly pay the taxes thereon; and that the stone on each acre of said premises is worth in the market many thousands of dollars.
“Thirteenth: I further find that upon the execution of this lease agreement that the understanding of both parties was that large quantities of stone was to be quarried and marketed from these premises for the' mutual benefit of both parties, and not that the premises be kept by lessee for speculative purposes and allowed to remain undeveloped.
“Fourteenth: That the leased premises have already been held an unreasonable length of time without any serious effort on the part of the defendants to develop and operate quarries thereon.”

From these findings the court made the following conclusions of law:

“3. That the $300.00 agreed to be paid by the defendants each year to the plaintiff was a penalty for failure to ship as many as one hundred railroad carloads of stone during the preceding year, and was not a rental.
“4. That the defendants failed the first year to develop the quarries, and that since then have failed to operate and’ develop the quarry or quarries, and have therefore lost their estate for failure to operate quarries and develop the premises, and have therefore forfeited their rights under said lease.
“5. That defendants estate was only a determinable fee, and as a matter of law was lost through the cessation of operations and failure to'develop. *
“6. That defendants have abandoned the premises for the purpose for which the lease was entered into.
“7. That the defendants are not able to develop the premises, and have long since spent all their capital, and are therefore unable to answer in damages to plaintiff for failure to use the premises for the-purpose of which the lease was entered into, and therefore their lease is subject to cancellation.
“8. It is the settled law in this State that where a mineral lease conveys no absolute title, but only a determinable fee, there can be no complete cessation of the use of the leased land for purposes of mineral exploration, development and production, save at the cost of the loss of the lessees estate.”

The trial court correctly construed the lease as a terminable estate (not a fee, however, but an estate for 50 years). But we are not in accord with the trial court’s views to the' effect that the cessation of production since 1923 worked an abandonment and consequent forfeiture of the lease, notwithstanding the payment and acceptance each year of the $300; and this regardless of whether these payments be classified as penalty or rental.

There is much contrariety of view in the decisions of other states both as to the character of interest or estate created by mineral leases and as to the effect of breach of obligations, express or implied, on the part of the lessee, where forfeiture is not expressly provided for. In our state these questions have been clarified by our Supreme Court in a number of decisions.- In Stephens County v. Oil Co., 113 Tex. 160, 254 S. W. 290, 29 A. L. R. 566, and other cases decided at the same time, mineral leases providing for duration as long as there is production in paying quantities were held to create estates in the minerals in fee upon limitation. In Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.(2d) 27, 30, it was held that breach of implied obligation to reasonably develop did not work a forfeiture of the lease either ipso facto as upon limitation or at the election of the lessor, as upon condition subsequent; but gave to the lessor a right of action for damages or in a proper case for specific performance and cancellation in case the decree were not complied with. It was also recognized that the interest of the lessee might be lost by total cessation .of production or abandonment. This latter holding was predicated upon the proposition that there ha<j been a total cessation or abandonment of the purposes and objects of the grant which terminated the lease ipso facto as upon limitation. The Supreme' Court decisions upon the subject'were carefully reviewed.

If we should apply this holding to the case at bar as made by the trial court’s findings, then there was an absolute termination of the lease several years prior to the payment in April, 1929. Such construction of the lease would be counter to' that given it by both lessor and lessee from its inception up to the payment in 1929. The continued recognition of the existence of the lease and the acceptance of payments thereunder by the lessor were inconsistent with its prior termination; and clearly should bar the lessor from asserting a prior termination of the estate upon principles of waiver and estoppel. See Summers on Oil and Gas, p. 531 et seq., § 167, and authorities there cited.

Cahill’s suit; in so far as it sought cancellation of the lease, must therefore depend upon what transpired after the 1929 payment.

While the testimony of both Cahill and Lassig is in many respects obscure and confusing, thus rendering difficult the construction therefrom of a consistent connected story, we think the following may be fairly deduced from the evidence regarding what transpired at and subsequently to the 1929 payment. When the payment was made and the receipt taken, Cahill complained, as he had theretofore done, that the quarries were not being developed and bringing in sufficient revenue to him. Lassig promised, as he had previously done on several occasions, to begin development, representing that he was arranging for financial backing, and expected to develop on a large scale. It appears from Lassig’s testimony that in 1923 he had a large contract to supply stone for the erection of the Herman Hospital in Houston. It was in the execution of this contract that the quarrying was done in 1923. A great deal of the stone supplied was rejected as inferior, and finally some of the stone already' used in the building was condemned by the architect, and the contractor canceled his contract with Lassig.’ Before doing any more quarrying in 1929, Lassig testified that he proceeded to core drill, so as to determine, in advance, the character of the stone. It is undisputed that beginning shortly after the 1929 payment, up to the filing of the suit, with the exception of some six weeks in the fall when his foreman had to go to a hospital for treatment, he had his son and foreman engaged in operations at the quarries, during which time some core drilling was done; and several pieces of machinery were added to the equipment. In so far as cessation is concerned, there had been no production since the latter part of 1923; consequently there could not have been a cessation of production since the 1929 payment.

We have grave doubts whether the evidence will support a finding of abandonment since the 1929 payment. The case was not tried on that theory in the court below, neither as to the pleadings of Cahill nor as to the findings and conclusions of the trial court. And, as that is the only theory upon which, in any event, the trial court’s judgment could be upheld, it would be necessary to remand the case for further trial.

We have reached the conclusion, however, that, upon proper application of the principles anonunced by our Supreme Court, the doctrine of termination of the estate by abandonment cannot be applied to the lease under consideration.

We are dealing here, not with a contract which grants a mere license, or a letting of the premises upon a rental basis, but with a •vested estate in the rock and stone on the premises for a definite period of years.

The lease here differs materially from those involved in the cases in which the Supreme Court has held that the estate terminated upon permanent cessation or abandonment, in that in those cases the only benefit accruing to the lessor at the time of cessation or abandonment was in the form of royalties derived from production.

In Texas Co. v. Davis, 113 Tex. 321, 254 S. W. 304, 305, 255 S. W. 601, the lease provided that it should be void in case operations were not commenced and prosecuted with due diligence within two years from date; “provided that said second party may prevent such forfeiture from year to year by paying to the first party the sum of $10.00 per year, until such well is commenced or until shipments from such mine have begun, and it is agreed that the completion of a well shall operate as a full liquidation of all rental under this provision during the remainder of the term [25 years] of this lease.”

. Anent this provision the Supreme Court said:

“The Court of Civil Appeals [232 S. W. 549] concluded that the wells'drilled by Underwood’s assigns liquidated all rentals and' kept the grant in effect for 25 years. We think that the $10 per year payment clause-had no relation to anything save prevention of a forfeiture from failure to drill with diligence, within two years from the date of the grant. After a well was drilled, with the required diligence, the grantee and his assigns-were invested with title, freed of the express condition- subsequent, to the oil, gas, and other minerals, and incidental rights, for 25-years from the time of discovery of the oil,, gas, or other minerals, and as much longer as same might be produced from the 76½ acres of land in paying quantities. But such title vested only for the purpose specified in the writing through which the title was derived. If it were true that the full purpose of the contract was to merely prove the 76½ acres to be oil-bearing, there would be reason for saying that completion of a successful test vested indefeasible rights in the grantee or his assigns for 25 years or longer, but to-so prove the land was no more than thé first step towards the accomplishment of the true and, ultimate purpose of all parties, viz. the mutually profitable production of oil, gas, or other valuable mineral. Grubb v. McAfee, 109 Tex. 531, 212 S. W. 464. The title and rights conveyed to Underwood or his assigns-were to be held and used for no other purpose than mineral exploration, development, and' production. When that purpose was no longer prosecuted by Underwood and his assigns, their title and estate instantly terminated.”

In Waggoner v. Sigler Oil Co., above, in referring to the purpose clause in the lease in Texas Company v. Davis, the Supreme Court said that it “⅜ * * was referred to in a dictum * * ⅜ as creating a condition subsequent ; that effect having been ascribed to it by distinguished counsel on both sides, and by the learned judges writing the majority and minority opinions in the Court of Civil Appeals (232 S. W. 549). This may have arisen from failure to recognize a distinction between the customary ‘drill or pay’ clause and the ‘unless’ clause. The clauses under consideration in the Davis Case and here come within the class of ‘unless’ clauses. The correct rule seems to be that, while the usual ‘drill or pay’ clause in an oil lease does introduce a condition subsequent, for the benefit of the lessor alone, yet, as said by Mr. Summers, ‘where the “unless” drilling clause is used, a failure of the lessee to drill or pay a stipulated sum of money ipso facto terminates the lease, without the necessity of re-entry, action or their equivalents by the lessor. For this reason the interest created in the lessee by such lease cannot be one terminable by breach of condition subsequent. Some courts have designated them options or optional leases, but the interests created b^ them are perhaps better classified as estates upon common law limitation, wherein the interests in the grantee or lessee continue until the happening of the event upon which they terminate.’ Summers, Oil and Gas, pp. 483, 506 to 512.”

The lease here provided for compensation •during the entire life of the estate in the form of royalties from production, an annual minimum being provided, and, in the event the minimum were not produced in any one year, there was an express obligation on the part of the lessee to pay $300, the language being •‘then he agrees to pay to party of the first part” that sum. This is the construction placed upon that language by Cahill’s pleadings ■(he alleges that Lassig “became indebted” to him in this sum, by reason of failure to ship the minimum); and . by the parties in their dealings, correspondence, check notations, and receipts, including the April, 1927, payment.

This construction is also deduced from Cahill’s testimony. He had made two prior leases covering the property, first to Ferguson who had opened a quarry (extent, of operation not shown) and later to Landerdale who Had done nothing, under his lease. He had owned the land and lived in the vicinity many years, and was familiar with the quarrying business and with the character of his property. He wished it developed, and had the lease drawn with that end in view in the light of his knowledge and previous experience. He placed the minimum at 100 cars because he believed that, if that amount was shipped, the property would be developed; and he inserted the $300 alternative payment because he felt that this would insure production of •the minimum. The further alternative, of course, would be forfeiture of the lease.

Conceding that the purpose of the lessor was the development of his property in order to obtain the revenues from production royalties, we do not think the vested estate terminated from failure to produce in the face of those express obligations, inserted for the manifest an,d admitted purpose of securing such production to the lessor.

The implied obligation to reasonably develop, however, remained, and the $300 payments we think do not satisfy that obligation; for the breach of- which Cahill has his remedies. as pointed out in the Waggoner Case.

Yfith some of the trial court’s fact findings we are not in accord, but they are not pertinent to any issue in the ease under our above interpretation of the rights of the parties, and therefore discussion of them is preter-mitted. The evidence is ample to support a finding of cessation of production and abandonment several years prior to 1929, if the estate should be held' terminable on those grounds, irrespective of the discussed provisions of the lease and the acceptance of the $300 annual payments.

The trial court’s judgment is reversed, and the cause remanded to that court for further trial.

Reversed and remanded.


author: DUNKLIN, J.

text:
    REPUBLIC SUPPLY CO. v. BARROW.
    No. 12414.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 28, 1931.
    Rehearing Denied April 18, 1931.

      Fischer & Fischer, of Wichita. Falls, for appellant.
    C. P. Engelking, of Electra, for appellee.
   DUNKLIN, J.

The waiver of diligence on the part of the plaintiff to enforce collection of the note agairist the maker, embodied in the note sued on, having been overlooked on original hearing, the motion for rehearing is granted; the judgment heretofore rendered by this court is set aside, the opinion heretofore filed is withdrawn, and the opinion this day filed is filed as a substitute original opinion, and the appeal .will be disposed of in accordance with the terms of that opinion.

Opinion.

The Republic Supply Company instituted this suit against H. O. Barrow, as indorser on a promissory note for the principal sum of $1,311.69, dated July 25, 1925, due 60 days after date with interest thereon at the rate of 8 per cent, per annum, and with 10 per cent, additional as attorneys’ fees, which was executed by G. D. Lewis as maker, the Republic 'Supply Company being the payee of the note. G. D. Lewis, the maker of the note, was not made a party defendant; plaintiff’s excuse for not suing him consisting of an allegation that after the execution of the note Lewis had moved out of the state, to the state of Colorado, during the year 1925, and that ever since he has been a resident of that state; and further that said Lewis is now insolvent.

Defendant Barrow presented a special exception to the plaintiff’s petition by way of abatement of’the suit, on the ground that it appeared therefrom that he was only secondarily liable on the note, and that Lewis, the maker of the note, was a necessary party defendant, and that the suit could not be maintained against him as the sole defendant.

In addition to a general denial, defendant also pleaded specially that he indorsed the note in Wichita county and at the time he did so Lewis then had certain oil well drilling supplies, consisting of tools and accessories which were owned by him and located in Wichita county, loaded and ready for shipment to Las Animas county, Colo., and that defendant was induced to indorse the note at the request of plaintiff’s representative and Lewis, and in consideration of a parol agreement on the part of plaintiff, acting through said representative, to take a valid chattel mortgage on such supplies and duly record the same both in Wichita county, Tex., and Las Animas county, Colo.; that on the due date of the note, plaintiff would demand payment of the same from Lewis, and, in the event of his failure to pay the same, plaintiff would promptly enter suit to foreclose the chattel mortgage and have the property covered thereby sold under foreclobure proceedings, and the proceeds applied to the payment of the note; and that defendant’s liability would not arise unless and until the proceeds of such sale should prove to be insufficient to satisfy the note, and that demand would be made upon the defendant for the balance only of the amount remaining unpaid; and that plaintiff further agreed that no demand would be made on the defendant for payment of the note until after such foreclosure' proceedings.'

The defendant further pleaded that a chattel mortgage was taken on such supplies which were of a value far in excess of the amount of the note, but that plaintiff failed and refused to take any legal steps to enforce payment of the note by Lewis by suing him either for personal judgment or for a foreclosure of the chattel mortgage in Colorado, where the mortgaged property had been transported. Plaintiff further pleaded that his indorsement of the note was for accommodation only, and without consideration. All the facts so pleaded were alleged as further ground for an abatement of the suit.

By supplemental petition and in reply to defendant’s answer, plaintiff pleaded the insolvency of Lewis, with the further allegation that, ever since the execution of the note by Lewis, he and the personal property covered by the chattel mortgage have been in the state of Colorado and beyond tbe jurisdiction of tbe courts of Texas.

This appeal bas been prosecuted by tbe plaintiff from a judgment denying it tbe relief prayed for.

Tbe trial was before a jury, and tbe following was tbe only issue submitted, with tbe finding of tbe jury tbereon: “Do you find from a preponderance of tbe evidence that at tbe time defendant H. O. Barrow, signed bis name on tbe back of tbe note in question, it was orally agreed by plaintiff with tbe defendant that tbe plaintiff would first resort to a foreclosure of the chattel mortgage lien on tbe drilling tools of G. D. Lewis, before calling upon defendant Barrow for a payment of tbe note sued on? Answer: Yes.”

Tbe proof showed that plaintiff had never taken any steps to sue Lewis either for a personal judgment or to foreclose the chattel mortgage, although tbe note sued on matured September 25, 1925, and this suit was instituted May 23, 1929. It is a rule universally recognized that in a suit 'to enforce an ordinary contract in writing, which does not involve title to land, testimony is admissible to show a contemporaneous parol agreement that tbe instrument was delivered with tbe understanding that it was not to become effective until tbe happening of a certain event. See decisions cited in Holt v. Gordon, 107 Tex. 137, 174 S. W. 1097; 10 R. C. L. pp. 1053, 1054, §§ 249, 250. While tbe pleadings of defendant in this case were sufficient to tender tbe issue that at tbe time he indorsed and delivered tbe note to tbe plaintiff there was a parol agreement between him and tbe plaintiff’s representative that be was not to become liable until there bad been a foreclosure of tbe chattel mortgage and an application of tbe proceeds of the property under foreclosure sale to tbe payment of the note, and while tbe testimony of defendant was sufficient to sustain that allegation, yet there was no finding by tbe jury op that issue, nor was that issue presented or requested by tbe defendant, and any defense based tbereon was therefore waived. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, and authorities there cited.

Testimony introduced to establish tbe parol agreement found by tbe jury was objected to on tbe ground that its admission would be in violation of tbe parol evidence rule, since it would vary this provision in tbe body of tbe promissory note sued on; tbe note being indorsed in blank, without any qualification, by tbe defendant Barrow: “Tbe sureties, endorsers, and guarantors severally waive presentment for payment, protest and notice of protest and nonpayment of this note and suit to fix their liability and diligence in enforcing its payment, and agree that time of payment may be extended without notice to them and without affecting their liability.”

All assignments of error based upon tbe introduction of parol testimony of tbe character noted are sustained. 6 Texas Jurisprudence, par. 151, p. 7S4, par. 154, p. 787, and the decisions cited in footnotes to sustain tbe test.

For tbe same reason, such testimony could not be given tbe effect to establish tbe defense of failure of consideration. It follows, therefore, that tbe parol agreement found by the jury constituted no defense to plaintiff’s suit.

But tbe plaintiff introduced no evidence to sustain the allegations in its pleadings, to tbe effect that G. D. Lewis, the maker of tbe note, was a nonresident of the state, residing in the state of Colorado, or was insolvent.

Article 1987, Rev. Oiv. Statutes of 1925, reads: “Tbe assignor, indorser, guarantor and surety upon a contract, and tbe drawer of a bill which bas been accepted, may be sued without suing tbe maker, acceptor or other principal obligor, when tbe principal obligor resides beyond tbe limits of the State, or where be cannot be reached by the ordinary process of law, or when bis residence is unknown and cannot be ascertained by the use of reasonable diligence, or when be is dead, or actually or notoriously insolvent.”

As a condition precedent to plaintiff’s right to maintain the suit against tbe defendant, tbe burden was upon it to both plead and prove the facts already recited, which were alleged as a reason why tbe maker of tbe note was not made a party defendant to tbe suit. Whitaker v. Brooks (Tex. Civ. App.) 137 S. W. 921. And in tbe absence of any competent proof to sustain such allegations, tbe trial court erred in failing to abate tbe suit. Furthermore, that issue was not submitted to *he jury nor did plaintiff request its submission, and it therefore waived any right to relief based tbereon. Ormsby v. Ratcliffe, supra.

Accordingly, the judgment of tbe trial court decreeing that plaintiff was not entitled to recover on the merits of its suit, which was apparently predicated upon tbe verdict of the jury, must be set aside and vacated, and tbe judgment which tbe trial court should have rendered will be here entered, abating and dismissing the suit. All costs incurred in tbe trial court and in this court will be adjudged against appellant, plaintiff in tbe court below.

On Motion for Rehearing.

The provisions of tbe Negotiable Instruments Act, fixing tbe obligations of indorsers (Rev. St. 1925, art. 5936), which are so 'earnestly stressed by appellant, do not purport to change tbe common-law rule of practice to tbe effect that the principals who have executed such instruments are necessary parties defendants in suits to enforce their collection. Article 1987 of tbe Revised Civil Statutes of 1925 was enacted as an exception to that common-law rule. Furthermore, Article 19S6, Rev. Statutes 1925, reads: “The acceptor of a bill of exchange, or a principal obligor in a contract, may be sued either alone or jointly with any other party who may be liable thereon; but no judgment shall be rendered against a party not primarily liable on such bill or other contract, unless judgment be also rendered against such acceptor or other principal obligor, except where the plaintiff may discontinue his suit against such principal obligor as hereinafter provided.”

See, also, 6 Tex. Jur., pages 89,6-899, paragraphs 234 and 235.

Accordingly, the motion for rehearing is overruled.


author: JACKSON, J.

text:
    SLAUGHTER et al. v. SUNDOWN INDEPENDENT SCHOOL DIST. et al.
    No. 3568.
    Court of Civil Appeals of Texas. Amarillo.
    March 11, 1931.
    Rehearing Denied April 1, 1931.
    Lockhart, Garrard & Brown, of Lubbock, for appellants.
    Vickers & Campbell, of Lubbock, for' ap-pellees.
   JACKSON, J.

The appellants filed in the district court of Hockley county, Tex., a suit against the Sundown independent school district, cause No. 179, and suit against the Clauene independent school district, cause No. 180, and the respective trustees of each district, to recover from each district taxes they had paid to the respective districts under protest.

While no new or additional pleadings were filed, the cases were consolidated and tried together.

The appellants alleged, in substance, that they were the owners of 4,921 acres of unimproved grazing lands in the Sundown district and the owners of 8,85(5 acres of unimproved grazing lands in the Clauene district.

That the respective trustees of each district levied $1 on each $100 valuation of the taxable property in said districts for school purposes, and valued appellants’ land at $20 per acre.

That the trustees, officers, and agents of said school districts made a blanket assessment against all lands in each of said districts at a valuation of $20 per acre, without regard to the character of the land, the location thereof, or the improvements thereon. That while appellants’ land is unimproved grazing land, the other lands in the district, or a greater portion thereof, are farming lands in a high state of cultivation, with valuable improvements thereon. That, if the other lands in the district are to be valued for tax purposes at only $20 per acre, appellants’ land should not be valued at over $10 per acre for such purpose. That the taxes levied and collected against appellants by said two school districts on a valuation of $20 per acre on appellants’ land amounted in the aggregate to the sum of $2,795.62. That the assessment and collection of taxes by said school districts at a valuation of $20 per acre against appellants’ unimproved grazing land and the assessment and collection of taxes at a valuation of $20 per acre against the other lands in said districts, which were farming lands under a high state of cultivation with improvements thereon, did not constitute the equal and uniform taxation of property in the districts in proportion to its value under the Constitution and laws of the state. That, if said assessments and valuations had been equal and uniform and in proportion to value, appel-' lants would have been required to pay to both districts the aggregate sum of only $1,397.81. That such unequal and arbitrary valuation, assessment, and collection of taxes constituted a discrimination against appellants and violated the rights guaranteed to them under the Constitution and laws of the state.

That appellants paid said sum of $2,795.02 under pressure and over their protest in order to escape the interest and penalty that would be charged against them on February 1st for nonpayment. That there is in the treasury of each district sufficient funds, or that there are unpaid delinquent taxes for the year 1929 due in each district, amounting to a sum sufficient to refund and return to appellants the money each district illegally collected and withholds from them and for which they sue.

The appellees answered by general demurrer, special exceptions, and general denial.

They specially allege that the taxes against appellants’ property had been duly and legally assessed and the valuation thereof in each district ascertained by the equalization board for each of said districts and appellants notified of such valuation. That appellants made no protest to such equalization boards relative to such valuations, and in no way contested the decision of said boards, and ap-pellees cáused their assessment rolls to be made up and delivered to the tax collectors and appellants voluntarily paid such taxes, and such payments were lawful and not illegal by reason of all of which the appellants are estopped in law and1 equity to recover judgment for any amount against either of said school districts.

At the conclusion of the testimony, the court peremptorily directed a verdict in favor of appellees, and, on the verdict returned in obedience to such instruction, the court rendered judgment that the appellants take nothing by their suit and the appellees go hence with th'eir costs, from which judgment this appeal is prosecuted.

The appellants challenge as error the action of the trial court in peremptorily directing a verdict against them, asserting that the pleadings and the testimony present issues of fact which they were entitled to have the jury determine.

The appellees contend that the trial court correctly directed- a verdict in their behalf, claiming that the assessment of the taxes and the valuation of the property by the equalization boards were legal; that the appellants’ suit is a collateral attack upon the judgment of the board, which is a quasi judicial tribunal, and that appellants’ payment was voluntary.

The testimony discloses without controversy that, before the districts were canvassed, the school trustees directed' the assessors to assess the land in the entire district at $20 per acre; that this value was not placed on the land by the assessor; that some of the owners of property in the districts rendered their lands at less than $20 per acre, but, when the boards of equalization met, they arbitrarily fixed the tax on all the lands in the district at the price of $20 per acre, regardless of whether the land was good or bad, without regard to how the land was located, whether close to the sehoolhouse or far off and without regard to whether the lands were improved or unimproved. That no difference was made in the value of the improved land and the unimproved land or in the value of the grazing lands or cultivated lands in equalizing the values. That no effort was made to assess' each tract according to the value thereof, but a blanket valuation of $20 per acre was placed on all the lands in the districts.

That appellants were nonresidents of Hockley county, but sent in the rendition for their lands fixing the value at $10 per acre. That, when the boards of equalization met, they placed the value of all the lands in the districts at $20 per acre and raised appel-. lants’ land from the amount at which it had been rendered to a value of $20 .per acre. That they notified appellants that their taxes had been raised, but appellants did not appear before the equalization boards and protest the valuations. That the boards, after the value was raised by them, requested appellants to change their rendition to $20 per acre, but they refused to do so.

The testimony tends to show that appellants’ land is raw unimproved land used for grazing purposes; that it is about on an average in value with other unimproved lands in the districts; that from one-third to one-half of the land in the districts is improved; .that the difference in the value of improved lands and unimproved lands is approximately $10 per acre, depending on the value of the improvements. That where the improvements cost less, the enhancement is less, and,, where the improvements cost more, the enhancement is more. That most of the improved lands are small farms and consist of a labor of land, or 177 acres, with a small house, well, windmill, and a field thereon which is cultivated.

That appellants offered to pay their taxes on a value of $10 per acre as it was rendered, and tendered that amount to the tax collectors, which was refused. That on January 28, 1930, after the collectors refused to accept appellants’ taxes on a valuation of $10’ per acre, appellants paid the tax on the valuation placed on their property by the boards of equalization, under protest, advising the collectors that they were doing so for- the purpose of escaping the penalty and interest that would accrue if their taxes became delinquent and for the purpose of avoiding litigation. On the check with which the taxes were paid is indorsed a protest to the effect that they are paid to escape penalty, interest, and suit.

The act creating the Clauene independent school district authorizes the board of trustees of said district to act as a board of equalization and gives them the authority conferred by law on the commissioners’ court when sitting as a board of equalization. Special Acts of the 39th Legislature (1925), Reg. Sess., p. 69, c. 30.

The record does not disclose how the Sundown independent school district was created, but indicates that it was created out of a portion of the territory of the Clauene independent school district after the taxes for the year 1929, involved in this controversy, had been assessed and the values equalized by the authorities of the Clauene independent school district, and that such assessment and equalization were adopted by the Sundown independent school district. .

In Garza Land & Cattle Co. v. Redwine Independent School District et al., 282 S. W. 905, 908, this court said:

“Article 7530, V. S. C. S. (article 7174, R. C. S. 1925), provides, in substance, that each separate parcel of land shall be valued at its true and full value, and that the assessor shall value each tract or lot by itself at such price as he believes it to be fairly worth in money at the time of the assessment.
“Article 7504, V. S. C. S. (article 7146, R. C. S. 1925), provides that real estate, for the purpose of taxation, shall be construed to mean the land itself, the buildings, structures, and improvements thereon.
“Article 7564, V. S. C. S. (article 7206, R. C. S. 1925), constitutes the commissioners’ court of each county a board of equalization for the purpose of equalizing the taxes, and directs:
‘That they shall equalize improved lands in three classes, first-class to embrace the better quality of land and improvements, the second-class to embrace the second quality of lands and improvements, and the third-class to embrace lands of but small value or inferior improvements. The unimproved lands shall embrace first, second and third class, and all other property made as nearly uniform as possible.’
“Section 12 of the acts of the Legislature creating the Redwine independent school district (Gammel’s Laws of Texas, vol. 20, p. 216) authorizes the trustees to fix the values of the property in the district for taxing purposes, and gives them all the power of the commissioners’ court when sitting as a board of equalization to fix such values.
“It is certain that the assessor made no attempt to arrive at the true and full value of each tract of land in the district, and equally certain that the trustees, acting as a board of equalization, made no effort to separate the improved lands so as to embrace the better quality of land and improvements in the first class, the second quality of lands and improvements in the second class, and the third quality of lands with inferior improvements in the third class; nor were the unimproved lands so divided for valuation purposes as to embrace first, second, and third class lands; hence, the values were not ascertained as provided by law, but were determined and fixed arbitrarily by a method or system which was at complete variance with the provisions of the statutes.”

In Druesdow et al. v. Baker et al., 229 S. W. 493, 495, the Commission of Appeals says: “The decisions of the Tax Board in the matter of valuations are quasi judicial in their nature. This action is therefore a collateral attack upon the judgment of a quasi judicial tribunal. Such an attack cannot be justified in the absence of fraud, or something equivalent thereto; lack of jurisdiction; an obvious violation of the law, or the adoption of a fundamentally wrong principle or method, the application of which substantially injures complainant. No mere difference of opinion, as to the reasonableness of its valuation, when such valuations, though deemed erroneous, are the result of honest judgment, will warrant interference by the courts. Pittsburg, C., C. & St. L. R. Co. v. Backus, 154 U. S. 434, 14 S. Ct. 1114, 38 L. Ed. 1039; Western Union Telegraph Co. v. Taggart, 163 U. S. 30, 16 S. Ct. 1054, 41 L. Ed. 49.”

In Ogburn v. Ward County Irr. Dist. No. 1, 280 S. W. 169, 171, in the opinion by the Commission of Appeals, approved by the Supreme Court, it is said: “Without reference to the value of improvements all lands in the district were by the board given an arbitrary value according to the respective zones in which they are situated and the use to which they were put. All personal property was valued at one-half its real value. This action on the part of the board was in violation of the constitutional provision that property should be taxed in proportion to and at its fair value, and that taxation shall be equal and uniform. They have arbitrarily and grossly overvalued his property and discriminated against him. The defendant in error is not entitled to recover on the value placed .on his property by. the board. Lively v. Railway Co., 120 S. W. 852, 102 Tex. 545; Power v. Andrews (Tex. Civ. App.) 253 S. W. 870. While it is not necessary here to so decide, we are inclined to the opinion that, under the facts in this case, no recovery could be had on the values at which this land was appraised by,the board, even had Ogburn been given the notice required by law. The total disregard of the Constitution and laws in appraising property by the special tribunal provided, should, we think, be held to be such jurisdictional defect as should defeat a recovery of the taxes based thereon.”

If the board of trustees had all the land in the districts assessed at the arbitrary value of $20 per acre, and the equalization boards arbitrarily placed such value on all the lands, as this record indicates without substantial contradiction, and without an effort to classify the land under the statute and arrive at its true value and without regard to the character, location, or improvements situated on the different tracts of land, such action “was in violation of the constitutional provision that property should be taxed in proportion to and at its fair value, and that taxation shall be equal and uniform.” Og-burn v. Ward County Irr. Dist. No. 1, supra.

Under these conditions, such action of the boards was subject to collateral attack because in obvious violation of the law and the Constitution of the state and fundamentally wrong in principle and method. Druesdow et al. v. Baker et al., supra. See, also, Rowland v. City of Tyler (Tex. Com. App.) 5 S.W.(2d) 756.

If appellants were required to pay taxes on a valuation greater in proportion to its fair value than a great portion of the other landowners in the district, they were substantially injured and they were entitled to have the jury determine, under the testimony, the value of their lands and the values of the other lands in the district.

In our opinion, the testimony does not show, as a matter of law, that the payment of the taxes by appellants to the school districts was such a voluntary payment as to defeat a recovery of such amount of the taxes as were illegal. The testimony tends to show that they offered to pay on the amount of $10 per acre, that their offer was refused, that on January 2Sth they paid the taxes and advised the collectors that they were doing so under protest to prevent the accrual of interest and penalty after January 31st, and that suit would be instituted by appellants to recover the illegal taxes paid. This suit was filed on May 29, 1930, for that purpose.

In Galveston Gas Co. v. County of Galveston, 54 Tex. 287, the Supreme Court announces that:

“The rule heretofore enforced in this court in regard to the recovery back of taxes illegally exacted, is perhaps more liberal than that sanctioned by the current of authority generally. City of Marshall v. Snediker, 25 Tex. 471 [78 Am. Dec. 534]; Baker v. Panola County, 30 Tex. 86; Galveston County v. Gorham, 49 Tex. 301 et seq.
“These cases recognize that a payment may be compulsory, although not made to relieve the person or goods from seizure or detention, actual or threatened, if made under circumstances creating a moral pressure of ‘equal influence in perverting the free will.’ Galveston County v. Gorham, 49 Tex. 279, supra. Where made to avoid.the danger o'f a heavy penalty, which, however, could only have been enforced by a criminal prosecution, in which the party would have had his opportunity to set up the illegality of the tax as a defense, the recovery back was allowed. 25 Tex. and 30 Tex., supra. On the same principle, we think that the plaintiff here was not compelled to risk the heavy loss which might have resulted from the sale, although his possession could only have been disturbed by a suit, in which he would have had his day in court. The moral pressure was sufficiently great, the necessity sufficiently immediate and urgent, to remove the payment, made under protest, from the class of voluntary payments.”

In the case of Galveston County v. Gor-ham, 49 Tex. 279, it is held that the taxes in that ease were voluntarily paid and could not be recovered, but, on page 310 of 49 Tex., the court says, in effect, that, if there had been a protest or notice given that suit would be brought to recover the illegal taxes, and suit had been brought promptly, a voluntary payment would have been rebutted.

In City of San Antonio v. Grayburg (Tex. Civ. App.) 259 S. W. 985, 986, the court says: “The chief inquiry, then, is, Was the payment of the taxes voluntary or involuntary? The trial court found thát the payment was involuntary and was made under protest, and we have concluded that the evidence warranted that finding. It was shown that, when the company sought to pay its taxes to the city for the year in question, it sent its check to the collector for the amount of the taxes assessed against it, less the item in question. The tax collector refused to receive this payment, demanding the entire amount assessed for all purposes, which aggregated about $2,-000. The company was then confronted with the alternative of paying the questioned item, or defaulting in the payment of the entire amount, upon which the penalties provided by law would thereupon accrue at the rate of 2 per cent, a month. In such situation, and being required to act at once in order to avoid the accrual of the threatened penalty, the company paid the improperly assessed item, with the intention of subsequently taking such steps as would be necessary to recover the amount. The facts stated warranted the finding of the court that the taxes were paid involuntarily and under protest, and, the tax having been improperly assessed, the taxpayer is entitled to recover the amount thus paid.”

The appellants were entitled to have the jury determine under the facts whether their payment was voluntary or under protest.

The judgment is reversed, and the cause remanded.