text:
    GILLETTE MOTOR TRANSPORT, Inc., v. LUCAS.
    No. 10944.
    Court of Civil Appeals of Texas. Galveston.
    March 7, 1940.
    Rehearing Denied April 4, 1940.

      Vinson, Elkins, Weems & Francis and Frank G. Dyer, all of Houston, for appellant.
    Sewall Myer and Lewis Fisher, both of Houston, for appellee.
   GRAVES, Justice.

This statement, conceded by the appel-lee to be correct, is taken from appellant’s brief:

“Plaintiff filed this suit in the district court of Harris County, Texas, on August 14, 1937, against the defendant. For cause of action, plaintiff alleged that on October 27, 1936, at about 11 o’clock A. M., he was run into by a truck owned and operated by the defendant Gillette Motor Transport, Inc. That such collision was a proximate result of the negligence of the defendant. That on account of the injuries received by him in the collision he had been damaged in the sum of $25,000.00.
“Defendant answered by general demurrer, general denial, and by alleging various acts of negligence on the part of the plaintiff, each of which acts was alleged to be a proximate cause of the collision and damages to plaintiff; •
“The case was tried before a jury on special issues. The jury found, in response to the special issues submitted to them, that the driver of defendant’s truck, as he approached the place of the happening under inquiry, failed to keep a proper lookout for persons about the place. That such failure to keep a proper lookout was a proximate cause of plaintiff’s injuries. That the driver of defendant’s truck, as he approached the place of the happening under inquiry, failed to sound his horn. That such failure was negligence, and that such negligence was a proximate cause of plaintiff’s injuries. That the driver of defendant’s truck, at the time and under the circumstances in evidence, did not operate said truck at an excessive rate of speed as he approached the place of the happening. That plaintiff, as he left the office of the defendant on the occasion under inquiry, did not fail to keep a proper lookout for motor vehicles approaching the place where the injury occurred. That, as plaintiff walked from the doorway on the occasion under inquiry, he did not do so at an excessive rate of speed. - That the collision in question was not the result .of an unavoidable accident.
“In answer to Special'Issue No. 15, the jury awarded plaintiff $10,000.00 in damages.
“On April 12, 1939, the court entered its order in all things overruling its motion for new trial, to which action the defendant then and there and in open court excepted and gave notice of appeal.”

There is no complaint over the amount of, nor the sufficiency of the evidence to support, the jury’s verdict, the appellant grounding its appeal herein solely upon contentions, the controlling ones of which are these:

(1) That the trial court erred in refusing to submit to the jury appellant’s requested special issues 7 to 12, inclusive;,

(2) That the court also erred in submitting its own special issue No. 9;

(3) That the court further erred in refusing its request to submit to the jury, in. the charge, an issue as to whether or not appellee’s alleged failure to keep a proper lookout for motor-vehicles approaching the place where the injury occurred was negligence.

After careful consideration of the able briefs and arguments submitted by both, sides, it is this court’s conclusion that the attacks so made by the appellant upon the manner, form, and substance, in which, the learned trial court submitted the cause —in the developed state of the pleadings and evidence — are not well taken; in final purport, these criticisms in the aggregate presented the view that the trial court’s theory of submission was erroneous, in that it not only failed to give appellant the advantage of its having pled, under its-charge of contributory negligence against the appellee, (1) that he walked into the path of the truck without keeping a proper lookout, (2) that he stepped from the door of the filling-station into the driveway without looking to his left for vehicles that might be approaching on such driveway, and- (3) that immediately prior to the collision he was walking from the doorway of the filling-station across the driveway without keeping a proper lookout for motor-vehicles driving along it; but also left a fatal hiatus in omitting to inquire — in connection with its own issue No. 9 — as to whether or not the failure to keep a lookout therein inquired about was negligence. It cites as supporting such criticisms these authorities:

Under (1): Dallas Ry. & Terminal Co. v. Fuchs, Tex.Civ.App., 52 S.W.2d 685; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Gulf, C. & S. F. R. Co. v. Gardner, Tex.Civ.App., 266 S.W. 809; Jones v. Hester, Tex.Civ.App., 16 S.W.2d 399; Northern Texas Traction Co. v. Weed, Tex.Com.App., 300 S.W. 41; S. Blickman, Inc., v. Chilton, Tex.Civ.App., 114 S.W.2d 646; 41 Tex.Jur. 1100.

Under (2): S. H. Kress & Co. v. Jennings, Tex.Civ.App., 64 S.W.2d 1074; Wonderful Workers of the World v. Winn, Tex.Civ.App., 31 S.W. 879; 41 Tex.Jur., 1100.

Under (3) : Clements v. Wright et ux., Tex.Civ.App., 47 S.W.2d 652; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Gulf, C. & S. F. v. Pendery, Tex.Civ.App., 27 S.W. 213; Kasch v. Anton, Tex.Civ.App., 81 S.W.2d 1097; Lumbermen’s Reciprocal Ass’n v. Wilmoth, Tex.Com.App., 12 S.W.2d 972; McFaddin v. Hebert, 118 Tex. 314, 15 S.W.2d 213; Olivares v. San Antonio & A. P. R. Co., 37 Tex.Civ.App. 278, 84 S.W. 248; Simmonds v. St. Louis, B. & M. R. Co., 29 S.W.2d 989; Stinnett v. Paramount-Famous Lasky Corp. of N. Y., Tex.Com.App., 37 S.W.2d 145; Texas Power & Light Co. v. Culwell, Tex.Com.App., 34 S.W.2d 820.

This court thinks, on a sifting of the evidence especially, that appellant materially misconstrues its purport — that is, the case for the jury it presented as a whole — and thereby becomes technical in concluding that, taken in connection with its own specific pleading upon contributory negligence, it brought the cause for the jury under such holdings as its cited Fuchs, Fox, and Weed cases. Those determinations all seem plainly distinguishable from the situation here presented.

The facts were few and uncomplicated. The scene of the accident was hardby a filling-station at or near the intersection of Crawford and Commerce Streets in the City of Houston, and there was likewise nothing elaborate, difficult, or hard to describe in-its environment; indeed, a number of pictures of it make :simple and clear the conditions under which the accident was described by the witnesses as having happened; a cement driveway ran under the shed of the station past one of its doorways ; the appellee testified that he stepped out of that doorway on to 'such driveway, took a couple of steps, which appellant persistently reduces (under other statements of his to that effect) to a couple of feet, saw a Mr. Shruptine on his left side standing near one of the gasoline tanks; that after taking “two or three steps” from such, door on to the concrete driveway he stopped, looked in both 'directions,, saw no truck, there being none in sight, and then continued walking diagonally down the driveway toward Crawford street, with his back and left side in the direction from which the truck came, and by the time he had gotten about ten feet from the filling-station door it struck and injured him; he had thus gone some six feet, or slightly more, in two or three steps after having looked in both directions, and had neither seen nor heard the truck, - which probably took him something like two or three seconds of time to do, before the accident happened; the corner from around which the truck came was described by other witnesses as a “blind” one.

The driveway was some 16 to 18 feet wide, and was right next to the filling-station and the door from which the appel-lee stepped just prior to his injury — that door itself being only a step or two from the “blind” corner of the building around which the truck came; as indicated, the appellee testified he was about 10 feet from that filling-station door, going in a diagonal direction along the driveway, or yard, as he termed it, and about 8 or 9 feet from the wall of the station-building when he was struck; the 16 to 18 foot width of the driveway evidently furnished the basis of the testimony of several witnesses that there was plenty of room for the truck to have passed around the appellee, when so coming up behind him, without striking him, but that the driver thereof made no effort to avoid hitting him; even the driver of the truck himself testified that the door out of which the appellee came was only 6 or 8 feet from the corner of the building around which the truck was going; further, that the appellee was 5 or 6 feet from that door, when the truck struck him.

It seems plain from these circumstances not only that the jury’s findings were well sustained, but that the trial court’s theQry of the controlling issues of fact was correct, especially as embodied in its much-criticised issue No. 9; the court had first properly defined “negligence” and “proper lookout”, the latter in these terms: “A proper lookout is such a lookout as an ordinarily prudent person would have kept under the same or similar circumstances”; then followed given special issue No. 9, as follows:

“Do you find from a preponderance of the evidence that the plaintiff, as he left the office of the defendant on the occasion under inquiry, failed to keep a proper lookout for motor vehicles approaching the place where the injury occurred?
“You will answer, ‘He did so fail’, or ‘He did not so fail.’ ”

Appellant’s opposing issues, its Nos. 7 and 10, were these:

No. 7: “Do you find from a preponderance of the evidence that plaintiff walked into the path of the truck without keeping a proper lookout?
“Answer, ‘We do’ or ‘We do not’.”
No. 10: “Do you find from a preponderance of the evidence that immediately prior to the collision in question plaintiff was walking from the doorway of the filling station across the driveway without keeping a proper lookout for motor vehicles driving along said driveway?
“Answer, ‘We do’ or ‘We do not’.”

As this court understands the material facts attending the accident, a substantial resume of which has been given supra, the main charge as thus given comprehended them, thereby embodying in other form and language essentially the same matters appellant declared upon in its plea of contributory negligence, and couched in its quoted requested special issues Nos. 7 and 10; in other words, there was no substantial difference between the issue as given and the ones tendered, the two expressions, “as he left the office”, and “walked into the path of the truck”, as applied to the undisputed evidence, necessarily in practical effect meaning one and the same place; that is, the facts all show the driveway, or yard, was the path of the truck, and, to have designated it only as “the path of the truck” would have carried an implication that the appellee did or should have known the truck might then come along it — contrary to his own positive testimony.

This declaration from the recent case of Jordan v. Morten Inv. Co., 127 Tex. 37, 90 S.W.2d 241, 242, is therefore applicable: “There is no substantial difference between the issue given and the one tendered, and * * * the answer to the former comprehends the material facts involved in the latter * * * The case presented is not one in which the court has failed to submit any charge at all upon, a defensive issue raised by the pleadings- and evidence. The court actually submitted the defense, and, even if the issue-submitted were subject to the criticism that it was general in its terms and did not particularly point out all of the elements embodied in the specially requested issue,, nevertheless it was, in the main, a correct issue.” See also McBurnett V. Smith, Tex.Civ.App., 286 S.W. 599; Grand Lodge v. Bleavins, Tex.Civ.App., 282 S.W. 949, error dismissed; Church v. Pagenstecher, Tex.Civ.App., 104 S.W.2d 72.

Nor is it thought there is anything, prejudicial to appellant in the court’s refusal to give its requested issue in effect submitting again the inquiry whether ap-pellee had been guilty of negligence in his-alleged failure to keep a proper lookout for motor-vehicles approaching the place of the injury; it is concluded that the court’s issue No. 9, taken with its connected definitions of both “negligence” and: “proper lookout”, properly submitted the two phases or branches of appellant’s-defense of contributory negligence, both of which had to be found in its favor before such defense could be established; in other words, and especially as applicable here, such a definition as the court gave-of “proper lookout”, included the element of negligence as an inherent and integral' part thereof. Indeed, that method of submission, in such circumstances, seems to-be quite a generally used one. Missouri, K. & T. R. Co. v. Long, Tex.Civ.App., 23 S.W.2d 401, writ of error refused.

It is difficult to see how such a grouping, in the one issue No. 9 of these indispensable features of the defense of contributory negligence as pleaded, could have-worked any injury upon the appellant— quite the contrary would appear to have been its effect. If this conclusion upon that phase of the case be sound, as it is thought to be, extended discussion is unnecessary.

Under the views expressed, the judgment should be affirmed; it will be so-ordered.

Affirmed.


source: Caselaw Access Project

author: DUNKLIN, Chief Justice.

license: Public Domain

text:
    GRAY v. TAYLOR et ux.
    No. 14053.
    Court of Civil Appeals of Texas. Fort Worth.
    March 15, 1940.
    Rehearing Denied April 12, 1940.
    T. R. Boone, of Wichita Falls, for appellant.
    James W. Harvey, of Archer City, and •Kilgore & Rogers, of Wichita Falls, for appellees.
   DUNKLIN, Chief Justice.

On May 9th, 1921, W. H. Taylor and wife, the owners of the fee, executed to H. C. Lampkin and F. W. Dumraese an oil and gas lease on 20 acres of land in Archer County. One of the stipulations in that instrument was the agreement of the lessees “to deliver to the credit of the lessors, free of cost, in the pipe line to which they may connect their wells, the equal 4/8ths part of all oil saved and produced from said leased premises.”

On May 11th, 1921, those lessees entered into a contract with S. D. Harper and J. E. Jones, composing a partnership, by the terms of which Harper and Jones contracted to develop the lease for oil and gas, in consideration of which Lampkin and Dumraese contracted and agreed to execute and deliver title to 7/16ths of all the oil and gas produced from the lease, thus leaving l/16th interest remaining in Lampkin and Dum-raese. In that contract, Lampkin and Dum-raese were designated parties of the first part, and Harper and Jones as second parties, and it embodied these stipulations:

“Second parties contract and agree to drill at least four wells for oil and gas on said land, the first of said wells to be commenced within 15 days from May 9th, 1921; the second well to be commenced within 15 days after the completion of the first well; the third well to be commenced within 15 days from the completion of the second well; and the fourth well to be commenced within 15 days after the completion of the third well; all drilling operations to be prosecuted with due diligence until each well is drilled and completed, to a depth of 1700 feet, unless oil or gas is found in paying quantities at a less depth.
“Second parties agree to drill said wells entirely at their expense for all labor and materials necessary to drill and complete said wells, including all casing and supplies necessary to connect said wells with pipe lines or tanks to receive the oil therefrom; after said wells shall have been completed for the production of oil as aforesaid, all further expenses of operation and maintenance for all the wells which may be drilled on said lease shall be borne equally by the parties to this contract.
“It is agreed that all other wells which may be drilled on said lease shall be drilled and equipped at the equal expense of each of the parties to this contract.”

On May 12th, 1921, H. C. Lampkin and F. W. Dumraese transferred and assigned to Harper & Jones Drilling Company 7/16ths of the leasehold estate theretofore acquired by them from W. H. Taylor and wife, thus leaving the grantors a l/16th interest.

On May 28th, 1921, Harper and Jones conveyed to R. J. Donohue an undivided l/16th interest out of the 7/16tlis interest recited to be the interest they had acquired from Lampkin and Dumraese, the interest so conveyed being designated as an overriding royalty.

On February 21st, 1922, H. C. Lampkin, F. W. Dumraese and J. W. Donehoo, as first parties, entered into a contract in writing with S. D. Harper, as second party, reciting the execution of the contract of date May 11th, 1921, shown above, by the terms of which the first parties agreed and obligated themselves to pay to Harper & Jones Drilling Company ½ of all sums of money expended by them in the operation and maintenance of the oil and gas lease, and that Harper was the sole owner of all the title theretofore existing in the partnership firm of Harper & Jones Drilling Company, and that Harper had theretofore filed a material contractor’s lien against the 1 /16th undivided interest of the first parties, in and to the lease theretofore acquired by them, for the purpose of securing the sum of $2,455.63, owing to the second party Harper, for ½ the cost of operating and maintaining two certain wells located on the lease, and:

“Whereas, some dispute has arisen as to the correctness of said above mentioned claim for $2,455.00, the parties hereto have entered into the following contract and agreement, which is to be in lieu of and supercede that provision of the above mentioned contract of May T 1th, 1921, providing for the distribution of expense of operating and maintaining said above lease. First party hereby agrees that from August 1st, 1921, until January 31st, 1922, inclusive, second party shall receive the sum of $90.00 per month, to cover first parties’ pro rata part of the expense of operating and maintaining said above described lease, and the Texhoma Oil & Refining Company is hereby authorized to pay to second party the sum of $540.00 from the proceeds due first party for their l/16th part of the oil run from said lease, before making any payment direct to them for any oil run from said lease. That after February 1st, 1922, first parties agree to pay second parties the sum of $90.00 per month for their pro rata part of the cost of operating and maintaining the lease above described, until the completion of wells Nos. 3 and 4 upon said lease, which said wells are to be hereafter drilled by second party; and after the completion of said wells Nos. 3 and 4, first parties agree to pay to second party the sum of $100.00 per month for their pro rata cost of operating and maintaining said lease. The Texhoma Oil & Refining Company, its successors and assigns, are hereby authorized and directed to pay to the said S. D. Harper the sum of $90.00 per month, as above provided, from and after February 1st, 1922, until the completion of wells Nos. 3 and 4 above referred to, and after the completion of said wells, to pay to the said S. D. Harper the sum of $100.00 per month, said payments to be made from any funds due by the said Texhoma Oil & Refining Company to first parties herein, for their undivided l/16th interest in the oil run by said company from said lease. The parties hereto agree to notify the Texhoma Oil & Refining Company, in writing, of the-completion of wells Nos. 3 and 4.
“It is expressly understood and agreed by and between the parties hereto that the sum of $100.00 per month is to be paid to-second party as hereinabove stipulated, until such time as the parties hereto may mutually agree to vary or change the amount of said monthly payments.
“It is further expressly understood and agreed by and between the parties hereto-that the l/16th interest in and to said above described lease owned by first parties, is held and owned by 'them in the following proportion, namely:
“H. M. Lampkin, 1/3 of 1/16.
"F. W. Dumraese, 1/3 of 1/16.
“J. W. Donehoo, 1/3 of 1/16.
and in this proportion the above named parties shall bear their respective part of the above stipulated monthly.operating expense, that is, $30.00 per month shall be paid from any sum that may be due and owing to each of the first parties herein, until the completion of said wells No. 3 and 4, as above specified and thereafter, the sum of $33.33-1/3 shall be paid from any amount due and owing each of said parties, for oil run from the above described lease, until such time as this contract may be mutually changed as hereinafter provided.
“It is understood and agreed that the terms and condition of this contract shall inure to the benefit of, and be binding upon the heirs, executors, administrators and assigns of the parties hereto.”

The Statement of Facts shows an agreement of the parties on the trial that the parties who signed the last noted instrument, of date February 21st, 1922, were then the owners of the oil and gas lease. And further, that plaintiff Herbert S. Gray later acquired all other interests in the leasehold estate, except said l/16th interest. And that on or about June 12th, 1937, the owners of said l/16th interest released the same to defendants W. H. Taylor and wife.

On September 19th, 1933, defendants W. H. Taylor and wife, Mary Ann Taylor, executed and delivered to W. P. Ferguson an instrument in writing, reciting the execution by them of their lease to H. C. Lamp-kin and F. W. Dumraese, and further reciting :

“That said lease provided, among other things, that lessees were to deliver to the credit of lessors, free of cost, in the pipe line to which they might connect said wells, the equal 4/8ths part of all oil saved and produced from said leased premises.
“That W. P. Ferguson is the owner of said oil and gas lease, and that his predecessors in title created an indebtedness of ten thousand dollars ($10,000.00) against said property, and that same is now owing to the undersigned, but that said W. P. Ferguson is in no way personally liable for same.
“That there is a present danger of an abandonment of said lease, and to avoid such abandonment, we, the said W. H. Taylor and wife, Mary Ann Taylor, hereby sell and convey to W. P. Ferguson, his heirs and assigns, 3/8ths of all the oil and gas that may be produced from said land, and being a part of the royalty retained by us in the original lease to H. C. Lampkin and F. W. Dumraese, provided, howeverj there shall be paid to us the proceeds from 2/8ths of the part hereby conveyed, to be applied to the payment of said Ten Thousand Dollars ($10,000.00) indebtedness, said payments to be made if and when said oil is produced and sold and that when said 2/8ths of said oil has amounted to enough to pay said Ten Thousand Dollars ($10,000.00) without interest, then our only interest shall be a l/8th royalty hereby reserved, but in this connection neither W. P. Ferguson nor his assigns are to be personally liable for any portion of said indebtedness.
“That said original lease from us to H. C, Lampkin and F. W. Dumraese provided, among other things, that the lessees were ‘to deliver to the credit of lessor, free of cost in the pipe line to which they may connect said wells, the equal 4/8ths part of all oil saved and produced from said leased premises', and said lease is hereby reformed and amended so as to read that lessees are ‘to deliver to the credit of lessor, free of cost, in the pipe line to which they may connect said wells, l/8th part of all oil saved and produced from said leased premises’, but in all other respects said lease remains unchanged.”

Thereafter, by mesne conveyances, the plaintiff, Herbert S. Gray, acquired all the interest in the lease theretofore owned by W. P. Ferguson, and plaintiff took over the four wells then on the lease, and after expending several thousand dollars cleaning and rehabilitating them, with such success that by October, 1936, the $10,000 which Taylor and wife were to receive out of the proceeds under their said contract with W. P. Ferguson had been fully paid out of the 2/8ths of the royalty on the premises, in accordance with the terms of that contract, but the owners of the l/16th interest theretofore reserved by Lampkin and Dumraese in their contract and deed to Harper and Jones did not contribute to any of that expense.

W. H. Taylor and wife acquired the l/16th interest in the lease formerly owned by Lampkin, Dumraese and Donehoo on June 12th, 1937, without paying a money consideration therefor; and they acquired same with actual notice of the terms of the contract of Lampkin, Dumraese and Done-hoo, of date February 21st, 1922, to pay plaintiff $100 per month for his services in operating the lease, upon the condition stated. But they did not agree to assume that obligation as a consideration for that deed. On the contrary, they immediately notified plaintiff that they would not be bound thereby.

After defendants acquired that l/16th interest, plaintiff continued drilling operations for the period of time beginning with the first of June, 1937, and extending through the month of May, 1939, and expended therefor the sum of $7,603.77. The oil -developed from the lease during that period was sold to the Continental Oil Company, and that company has withheld payment of $1,660.42 of the proceeds accruing from said l/16th interest, to await a judicial determination of the respective claims of the parties thereto.

Plaintiff instituted this suit against defendants W. H. Taylor and wife, Mrs. Mary Ann Taylor, to establish a prior right to that fund.

In the first count of his petition, he alleged that prior to the time defendants acquired said l/16th interest in the lease formerly owned by Lampkin and Dumraese, he, plaintiff, had operated the lease for 23½ months, under the contract of Lampkin, Dumraese and Donehoo, of date February 21st, 1922, and those parties had become indebted to him at the .rate of $100 per month, aggregating $2,350. And that under the further provision in that contract, that the same would be paid “until such time as the parties thereto may mutually agree to vary or change the amount of said monthly payments”, and the stipulation therein,. “that the terms and conditions of this contract shall inure to the benefit of, and be binding upon the heirs, executors, administrators, and assigns, of the parties of the first part” (Lampkin,, Dumraese and Donehoo), (he was entitled to an equitable lien on said 1 /16th interest in the lease for $2,350, and defendants took same subject thereto. Upon that theory plaintiff sought a recovery of the entire amount of the funds now impounded in the hands of the Continental Oil Company.

In the second count of his petition, he alleged that between the dates June 15th, 1937, and June 1st, 1939, the lease was operated as a mining partnership or tenancy in common and in such operation plaintiff had expended $8,277.49, of which amount defendants’ interest is justly chargeable with $1,P34.81, with $60 accrued interest thereon, aggregating $1,094.81, even though the contract of Lampkin, Dumraese and Donehoo, of date February 21st, 1922, to pay Harper and Jones the salary therein specified, be held unenforceable.

The case was tried without a jury, and the judgment rendered recites findings that the contract of date February 21st, 1922, wherein Lampkin, Dumraese and Donehoo agreed to pay Harper and Jones for their services in operating the lease, a salary of $100 per month, after completion of wells Nos. 3 and 4, is unenforceable as against the l/16th interest acquired by defendants from said Lampkin, Dumraese and Done-hoo, but that said interest is properly chargeable with l/14th of the aggregate sum of $7,603.77, expended in the operation of the lease from June 1st, 1937, to June 1st, 1938; said charge amounting to $543.12. Plaintiff was then allowed a recovery of that amount out of the $1,660.42 impounded with the Continental Oil Company, and the balance of that sum was awarded to defendants. But that the judgment shall be without prejudice to establish a lien for operating expenses incurred after June 1st, 1939.

Plaintiff has appealed.

After Lampkin, Dumraese and Donehoo entered into their contract, of date February 21st, 1922, with Harper and Jones, for operating the lease, the latter took charge, and out of proceeds of operation, completed drilling wells Nos. 3 and 4, contracted for, thus leaving the remainder of the contract to pay the salary of $100, executory as to both parties. Appellee has cited authorities strongly indicating that the contract then became unenforceable, by reason of uncertainty, as held by the trial court, such as Williston on Contracts, pages 104, 123 and 131; Mayer v. McCreery, 119 N.Y. 434, 23 N.E. 1045; Pickrell v. Buckler, Tex.Civ.App., 293 S.W. 667, writ denied, 116 Tex. 567, 296 S.W. 1062; Cammack v. Rogers, 32 Tex.Civ.App. 125, 74 S.W. 945; and 10 Tex.Jur., sect. 101, p. 175, and decisions there cited. 6 R.C.L., pp. 643 to 647.

This announcement on page 131, Willis-ton on Contracts, above cited, fairly reflects the holdings in the other authorities cited: “Although a promise may be sufficiently definite when it contains an option given to the promisor or promisee, yet if an essential element is reserved for the future agreement of both parties, the promise can give rise to no legal obligation until such future agreement. Since either party by the very terms of the promise may refuse to agree to anything to which the other party will agree, it is impossible for the law to affix any obligation to such a promise.”

And this from Boatright v. Steinite Radio Corporation, 10 Cir., 46 F.2d 385, 389: “Where an essential element of a contract is reserved for future agreement of. the parties, no legal obligation arises until such future agreement is concluded. * * * An ex-ecutory contract to sell, which provides that the price shall be fixed by future agreement between the parties, is incomplete and nonenforceable until the parties agree on the price.”

However, we deem it unnecessary to determine that point.

In the first place, the contract of Lampkin, Dumraese and Donehoo was not a covenant running with title. No lien was given to secure its performance, and since defendants did not assume it, but expressly notified plaintiff before the services were performed that they would not be bound by it, we fail to perceive on what principle defendants became personally liable therefor, or that the charge therefor could he fixed as an equitable lien on the lease, by virtue of the .prior personal contract of Lampkin et al. to pay therefor. It is to be noted further that when defendants took over the l/16th interest in the lease, Harper and Jones were dead.

Accordingly, all assignments of error are overruled, and the judgment is affirmed.

On Motion for Rehearing

In response to appellant’s request, we shall attempt to further clarify our conclusions reached on original' hearing.

The right to recover of Lampkin and Dumraese under their contract with Harper and Jones, the sum of $100 per month for drilling operations performed by plaintiff after he acquired 15/16ths interest in the entire leasehold estate, and the same right of recovery against Taylor and wife after they acquired the l/16th interest in question from Lampkin and Dumraese, lies at the very foundation of plaintiff’s claim of an equitable lien on the l/16th interest in the leasehold estate as against Taylor and wife, assignees of Lampkin and Dum-raese. The lien was claimed as an incident only of the contract of Lampkin and Dum-raese with Harper and Jones. It must fail if the contract was not then enforceable against them. Even if Lampkin and Dum-raese had owned that l/16th interest at the time plaintiff incurred the expenses for operation of the lease, by 'reason of which he sought to establish an equitable lien on that interest — which ownership did not exist — their prior contract to contribute $100 per month towards operation expenses was not then enforceable against them for. lack of definiteness, because it was expressly stipulated in their contract with Harper and Jones that their obligation to pay the same would continue until “such time as the parties hereto may mutually agree to vary or change the amount of said monthly payment” ; thus giving either party to the contract the option to terminate the agreement to contribute that sum towards drilling operations, at any time. 10 Tex.Jur., para. 101, page 175; para. 196, page 341; para. 198, page 344; para. 266, page 399; para. 213, page 377; para. 223, page 393. It was not enforceable against W. H. Taylor, the assignee of Lampkin and Dumraese, for the adclitional reasons, first, it was the personal contract of Lampkin and Dumraese to pay Harper and Jones expenses which the latter might incur and which the Taylors did not assume; second, it was not a covenant running with title; and third, Harper and Jones being then dead, it was impossible for them to mutually agree with Lampkin and Dum-raese to a continuation of that executory contract to the time plaintiff incurred drilling expenses in question; in the absence of which Lampkin and Dumraese were not bound to such continuation, for that further reason. 10 Tex.Jur., para. 253, page 438; 38 Tex.Jur., para. 6, page 649; para. 34, page 695;. para. 23, page 678; para. 28, page 687; para. 79, page 765; 12 Tex.Jur., para. 43, page 65.

It is to be noted further that plaintiff’s suit, in the first count of his petition, was not for damages for breach of the personal contract of Lampkin and Dumraese to contribute $100 per month towards operating expenses, but was an action to fix a lien on the l/16th interest in controversy, as an incident to the breach of that contract by Lampkin and Dumraese, on the theory that the contract was enforceable as against Lampkin and Dumraese, in the first instance, and as against W. H. Taylor and wife, their vendees, under a quitclaim deed, who bought with notice of the contract, but who did not assume it. Nor were Lamp-kin and Dumraese made defendants in the suit.

Moreover, in his motion for' rehearing, appellant admits that the contract in question of Lampkin and Dumraese was not a covenant running with their title to the l/16th interest in the leasehold estate, and also that he made no claim of personal liability of defendants for $100 per month for drilling expenses incurred by plaintiff; by reason of the prior contract of Lampkin and Dumraese to pay expenses of that character which Harper and Jones might incur.

When plaintiff incurred the expenses for operation of the entire lease, he was a co-tenant with Taylor and wife, as assignees of Lampkin and Dumraese, and the 1/lóth interest in the leasehold in question was therefore chargeable with an equitable lien for its pro rata portion of such expenses, by reason of such co-tenancy, independently of the contract of Lampkin and Dumraese in question, as prayed for in the second alternative count in plaintiff’s petition; and that relief was decreed to plaintiff in the judgment rendered.

The motion for rehearing is overruled.


author: CODY, Justice.

text:
    MARKOWSKY et al. v. NEWMAN et al.
    No. 10923.
    Court of Civil Appeals of Texas. Galveston.
    March 14, 1940.
    Rehearing Denied April 4, 1940.
    Lewright, Dyer & Sorrell, of Corpus Christi, for appellants.
    E. A. Tully, Jr., City Atty., John J. Bell, and H. W. Wallace, all of Cuero, for ap-pellees.
   CODY, Justice.

This is a contested bond-election case, which was tried without a jury. The election was held in the City of Cuero on November 29, 1938. The proposition submitted to the qualified voters was whether the City of Cuero should issue $150,000 of lighting and power system revenue bonds for the purpose of constructing and installing its own electric lighting and power system. The next day the returns were canvassed, and as a result it was declared that the proposition for the issuance of the bonds had been carried by a majority of 85 votes. As a result of the contest brought by appellants, the court found that 61 of the persons who had voted had cast illegal ballots, which was not sufficient to affect the result of the ballot, and overruled the contest.

The trial court sustained an exception to appellahts’ allegations that 353 persons had participated in the election who were not qualified voters because they had not voluntarily rendered their property for taxation, and had not rendered their property for taxation on or before April 1, 1938, pursuant to the requirements of Article 1043, R.S.1925, Vernon’s Ann.Civ.St. art. 1043,

Article 2955a, which is framed on Art. VI, Section 3a, of our Constitution, Vernon’s Ann.St., provides that when an election is held by any city for the purpose of issuing bonds only qualified electors who own taxable property in the city, etc., when such election is held, and who had duly rendered the same for taxation, shall be qualified to vote. We certified, among others, these questions to the Supreme Court:

“Did the court err in sustaining the exception aforesaid (which is quoted in full in the certificate), and thereby holding in effect what the Honorable Fort Worth court held, namely, that assessment of property for taxation by the assessor will satisfy the legal requirement for qualification to vote in a bond-election equally with the voluntary rendition of his property for taxation by a property-owner ?” Which the Supreme Court answered, “No”.
“Is Article 1043 mandatory, or merely directory?” To which the Supreme Court has returned an answer which we construe as “No”. Gus A. Markowsky et al. v. J. T. Newman et al., which is numbered 7594 in the Supreme Court of Texas, and filed in that Court February 21, 1940, and which appears in 136 S.W.2d 808.

Appellants’ assignments of error based on the theory that the correct answers to the above questions should be “Yes”, are accordingly overruled.

It abundantly appears that some of the partisans for the bond-issue caused some voters to be hauled to the polls who were physically able to go to the polling place without assistance, contrary to Art. 3025, R.S.1925. There seems to be no penalty attachéd to such violation. No authority was cited for the proposition that a violation of this statute renders the ballot of the offending voter illegal. And from the evidence it would appear that this reprehensible practice was not confined to partisans of the bond-issue. Furthermore, it would seem impossible to say that if the ballots of the offending voters were not counted the result of the election would have been different. It further appears that counsel for appellants, when contestees presented an exception to the part of the petition which alleged that voters were hauled to the polls and the court sustained it, agreed that such exception was correctly sustained.

It was not reversible error for the trial court to sustain appellees’ objection to the question propounded to the witness Wasserman, presiding judge of one of the election boxes, which would have elicited the information that he voted for the bonds, because under the pleadings and proof it was not material. There was no allegation or proof that challenged the good faith of the witness in making returns of the vote. “The test of whether a fact inquired about on cross-examination is collateral to the issue is this: Would the cross-examining party be entitled to prove it as a part of his case tending to establish his plea ? Or whether the question and answer which is proposed to be contradicted would be admissible if proposed by the party calling him.” (Citing authorities). Dooley v. Boiders, Tex.Civ.App., 128 S.W. 690, 692. See also Ellerd v. Murray, Tex.Civ.App., 247 S.W. 631.

The case was tried before the court without a jury. So we cannot see how it could be possibly held that the ruling was a violation of the trial judge’s sound discretion. Allison v. Wheless, Tex.Civ.App., 84 S.W.2d 529, 530; Taylor v. McFatter, Tex.Civ.App., 109 S.W. 395.

We believe there was no evidence of fraud, dishonesty, or error of the election officials, in calling and tabulating the votes and making returns produced in this case. Mere allegations will not be sufficient to justify an invasion of the secrecy of the ballot box in order to see if, by such invasion, they can, peradventure, be sustained. Altgelt v. Callaghan, Tex.Civ.App., 144 S.W. 1166; 20 Corpus Juris, 254, Sec. 352a; Sec. 353b.

The judgment of the trial court should be sustained; and it is so ordered.

Affirmed.

GRAVES, J., having disqualified himself, did not sit.


author: BLAIR, Justice.

text:
    MAASS v. SEFCIK.
    No. 8866.
    Court of Civil Appeals of Texas. Austin.
    March 6, 1940.
    Rehearing Denied April 3, 1940.

      Murphy & Leslie, of San Angelo, and Paul Petty, of Ballinger, for appellant.
    A. K. Doss and W. E. Martin, both of Abilene, for appellee.
   BLAIR, Justice.

Appellant, Fritz Maass, sued appellee,. Joe J. Sefcik, for $25,000 damages alleged to have resulted: (1) from the malicious-prosecution and false imprisonment of appellant by appellee; and (2) from the making 'of false and slanderous statements-coñcerning appellant by appellee; and from an adverse judgment appellant has brought this appeal.

The litigation grew out of the matters-of appellant’s having, together with his-mother, leased a farm and ranch from W. G. Voss for the year 1935, for an agreed money rental secured by a lien on the crops raised. Appellant testified that he signed the lease contract, but that in fact the lease contract was between his father and mother and Voss.- Appellant also testified that he sold several bales of cotton raised on the-farm to appellee, but that he turned ap-pellee’s checks therefor.over to his mother; and that he did not know whether she,paid Voss any of the proceeds of the sale of the cotton. Voss sued appellant, his father and mother, and appellee Sefcik, and by judgment and execution thereon compelled ap-pellee to pay some $400 for the conversion of the cotton he purchased, which was charged with the lien of Voss. It was in connection with the efforts of appellee Sef-cik to collect from appellant the money he had been compelled to pay on the Voss judgment for the cotton he had purchased from appellant that the alleged action for malicious prosecution and for slander arose.

Appellant alleged that appellee caused two criminal prosecutions to be instituted against him, — one in the justice court of Tom Green county, charging appellant with having fraudulently disposed of, mortgaged property; and one in the justice court of Runnels county, charging appellant with the embezzlement of the proceeds of one bale of cotton raised on the Voss farm, which appellant was alleged to have sold and kept the proceeds.

Appellant did not allege that he had been damaged by reason of the filing of the criminal prosecution against him in Tom Green county, but did allege that he was damaged by the filing of the criminal prosecution in Runnels county by being arrested on a warrant issued thereunder and being placed in jail, causing him to lose his job, and causing mental anguish and other items of damages alleged. The grand jury of neither county indicted appellant on. the charge filed in either justice court, and each was dismissed.

The jury found that appellee did not cause the filing of the complaint in the justice court of Runnels county charging appellant with embezzlement; and the damages sought on this count of the petition went out of the case.

Appellant alleged, however, that he was .also damaged by the slanderous statements made by appellee after the filing of the ■criminal prosecutions; and the jury found in answer to three special issues submitted that appellee made the following statements to the persons named concerning appellant:

1. “Fritz Maass has illegally disposed of mortgaged cotton worth about $450.”

2. “Fritz Maass has illegally disposed of mortgaged property and kept the money.”

3. “Fritz Maass is a dishonest person; he disposed of mortgaged property and ■embezzled the money he got on these checks.”

These issues were followed in the court’s charge by issue No. 11, by which the court asked the jury to find whether “Fritz Maass has suffered damages by reason of such statements”; to which the jury answered: “No”; and issue No. 12, by which the court asked the jury to find what amount, in money, would fairly and reasonably compensate appellant for his actual damages sustained; to which the jury answered: “None.”

The trial court first rendered judgment for appellant for $1 nominal damages and costs of suit; but upon motion of appellee, the trial court set aside .the first judgment and rendered the judgment for appellee from which this appeal is prosecuted.

Appellant objected to the submission of issue No. 11, because the answers of the jury to the preceding issues, if found by the. jury favorably to appellant, would charge him with a crime and be slanderous per se, and from which damages would result as a matter of law; and the court was requested to so charge the jury and to submit to them only the' amount of damages sustained.

The law is settled that in actions for libel or slander, where the words used are libelous or slanderous per se, the law presumes some damages, and that it is not necessary to prove them in order to recover. In such a case the plaintiff is entitled to recover at least nominal damages; and he is not limited to nominal damages where he has shown that actual damages have reasonably and naturally resulted from the defamation. Such was the holding of this court in the case of Freeman v. Schwenker, 73 S.W.2d 609, wherein the same question here presented was decided. See, also, 27 Texas Juris, 690-693, and cases there cited.

Appellee contends, however, that if this court should find that the trial court erred in submitting to the jury the issue of whether appellant sustained any damages, then this court should reverse the judgment of the trial court and render judgment for appellant for $1 nominal damages and for such of the costs of suit as were incurred by him, as provided by Art. 2062, R.S.1925, because no actual damages were shown by the evidence to have resulted from the slanderous statements made by appellee concerning appellant. Such is the rule announced by this court in the Freeman case, supra; and it is applicable to the instant case. See, also, Anderson v. Alcus, Tex.Civ.App., 42 S.W.2d 294; and Flournoy v. Story, Tex.Civ.App., 37 S.W.2d 272.

There was no evidence as a matter of law from which the jury could have found more than nominal damages to have resulted from the statements found by the jury to have been made by appellee concerning appellant. They were made to two witnesss, who testified in his behalf, and were not shown to have been communicated to any other person. The only damages testified to by these two witnesses, or by any other witness, or by appellant himself, related solely to damages, which may have resulted from the arrest and imprisonment of appellant on the charge of embezzlement filed in the justice court of Runnels county. The jury found that appellee did. not cause the filing of this criminal prosecution, and such damages were therefore not chargeable to appellee. Appellant sought no damages based on the criminal charge of disposing of mortgaged property, filed in Tom Green county. Appellant himself testified that he signed the note and lease contract, which recited that the note “is secured by a landlord’s lien on all crops, including pecans grown on the place.” Art. 1SS8 of our criminal statutes, Vernon’s Ann.P.C. art. 1558, provides that one fraudulently disposing of property covered by “any mortgage, deed of trust or other lien, in writing, upon any * * * growing crop of farm produce * * *” is guilty of the offense of disposing of mortgaged property. The hen given by appellant on the cotton in question is in writing; and the statute defines the offense of selling or otherwise disposing of it with intent to defraud the person having the lien as being the “fraudulent disposition of mortgaged property.” The lease contract giving the lien is in fact a mortgage within the meaning of the statute. Appellant admitted that he sold the cotton raised on the leased premises to appellee and did not pay the proceeds to the lienholder. He claimed to have delivered the checks given to him by appellee in payment of the cotton to his mother, and that he did not know whether she paid the lienholder any of the proceeds. The lease contract and the note given for the rentals were both admitted to be signed by appellant. He therefore owed the debt secured by the lien on the crops which he sold and did not pay the proceeds tO' the lienholder.

It is true that appellant claimed to have turned the checks given in payment of the cotton over to his mother after endorsing them; and he also claimed that his mother and father were the actual lessees; but neither of these issues was submitted nor requested to be submitted to the jury. Nor was any issue submitted or requested to be submitted as to whether the mother paid the proceeds of the checks to the lienholder. In consequence, and if material, appellant waived these issues, and must be held to be the lessee or mortgagor who gave the lien in writing on the cotton. He admitted that he sold the cotton in question and did not pay the proceeds on the note secured by the lien on the cotton. And in any event no actual damages were shown to have resulted from the statements made by appellee concerning appellant.

In answer to special issue 3-D, the jury found in effect that appellant was “guilty of the offense of disposing of mortgaged property.” The only objection to the submission of this issue was that since the truth of the statements of appellee was not plead, the trial court should have instructed the jury that appellant was not guilty of selling mortgaged property. The effect of the first judgment rendered by the trial court was to hold that appellant was not guilty of selling mortgaged property. That is, the trial court apparently did not regard this finding material, and rendered judgment for $1 nominal damages and costs of suit. This first judgment was set aside on motion of appellee, and judgment was then rendered that appellant take nothing by his suit.

We hold that the statements made by appellee are slanderous per se, and that the first judgment rendered by the trial court is correct, except as to costs, which should have been assessed under the terms of Art. 2062, which provide that “in civil actions for * * * slander and defamation of character, if the verdict or judgment shall be for the plaintiff, but for less than twenty dollars, the plaintiff shall not recover his costs, but each party shall be taxed with the costs incurred by him.” In this conclusion we hold that the evidence as a matter of law only established nominal damages as resulting from the slanderous statements found by the jury to have been made by appellee concerning appellant.

By several propositions appellant complains of the admission of certain evidence and of argument of counsel of ap-pellee to the jury. None of these complaints relate to or bear upon the question of the amount of damages to appellant by reason of the slanderous statements. And since appellant proved no actual damages as a matter of law which reasonably and naturally resulted from the slanderous statements, the error or errors presented by the aforementioned assignments must be held to be harmless.

In accordance with our above conclusions, the judgment of the trial court is reversed and judgment is here rendered for appellant for $1 nominal damages and for the costs incurred by appellee in the trial court, and for all costs of this appeal, except those incurred by appellant in perfecting the record herein, which additional record, relating to a former trial of this case, is not material to any issue raised on this appeal from the second trial of the case, and these last-named costs are taxed against appellant.

Reversed and rendered.


author: MONTEITH, Chief Justice.

text:
    ALLBRITTON et al. v. MADING’S DRUG STORES, Inc., et al.
    No. 10974.
    Court of Civil Appeals of Texas. Galveston.

      March 21, 1940.
    Lewis W. Cutrer, of Houston, for appellants.
    Maurice Epstein, of Houston, for ap-pellee Mading’s Drug Stores, Inc.

      Kemper, Hicks & Cramer, of Houston (John G. Cramer, of Houston, of counsel), for appellee W. E. White.
   MONTEITH, Chief Justice.

This is an appeal in an action brought by appellants, E. L. Allbritton and L. E. Thom-asson, against appellees, Mading’s Drug Stores, Inc., and W. E. White, for loss of profits resulting from an alleged breach of a lease contract.

In this opinion appellants Allbritton and Thomasson will be designated as appellants. Appellee Mading’s Drug Stores, Inc., will be designated as appellee Mading’s and appellee W. E. White will be designated as appellee White.

Appellants alleged that they had entered into a written contract with appellee White, for the leasing of store space in a building then being erected in the City of Houston as a business community center, under the terms of which they were given the sole and exclusive right to conduct a restaurant, cafeteria or delicatessen business therein; that appellee Mading’s, who had also leased store space in said building, caused them to sustain damages in the loss of profits in the sum of $350 per month by selling and serving food on said premises, which they were prohibited from doing under the terms of their lease contract.

By alternative plea they sought damages against appellee White for loss of profits for the alleged breach of said lease contract.

Appellee Mading’s answered by general demurrer and general denial and alleged that it had entered into a lease contract with appellee White prior to the date of the lease to appellants, and that under its lease it had the right to prepare and sell foods on said prethises. By cross-action it sought judgment over against appellee White in the event judgment was rendered against it.

Appellee White answered by general demurrer and general denial, and specially pled that he did not breach any of the terms or provisions of said lease contract with appellants. By cross-action he sought recovery over and against appellee Mad-ing’s, in the event judgment was rendered against him.

At the conclusion of appellants’ evidence in a trial before a jury, appellees rested their cases and presented motions for an instructed verdict. Appellees’ motions were granted and judgment was entered accordingly, denying the relief sought by appellants.

Appellants assign error in the action of the court in instructing a verdict in favor of appellees and in the failure of the court to allow the jury to pass on the issue of nominal damages in their favor growing out of the alleged breach of said lease contract.

In compliance with an order of the trial court requiring them to plead their loss of profits more specifically, appellants alleged that they had sustained damages in the sum of $3500, “in that prior to the time, as aforesaid, that defendant, Mading’s Drug Stores, Inc., began the wrongful acts herein complained of and the time that defendant White refused to compel the defendant Mading’s Drug Stores, Inc., to cease such wrongful acts, plaintiffs’ average net monthly profits which they derived from the operation of their restaurant amounted to $700.00 per month, but since the time the defendants began the course of conduct complained of, plaintiffs’ average monthly profits have been reduced to $350.-00 per month.”

The record shows that on March 5, 1936, appellee Mading’s entered into a written contract with appellee White to lease a store room in the west end of a business community center building to be erected, for the purpose of conducting a drug store and soda fountain business, and that it moved into said location the latter part of June, 1936, and immediately began selling food to its customers.

On April 6, 1936, appellants entered into a written contract with appellee White to lease store space in the east end of said building. By the terms of their lease contract they were given the sole and exclusive right to conduct a restaurant, cafeteria or delicatessen business on said premises. Said lease provided that no lease would be made to “any like or similar business to that conducted by lessee on said premises, or to any business substantially competitive to a restaurant.” Appellants began the operation of their restaurant on July 19, 1936.

The record shows that the average monthly profits derived by appellants from the operation of their business for the last five and a fraction months of 1936 were $563.79; that for the twelve months of 1937 they were $620.88, and for the twelve months of 1938 they were $627.09.

Appellants’ business was a new enterprise. There is no showing that they or anyone else had conducted a similar business in this locality prior to the time they began the operation of their restaurant, and there is no showing in the record of any loss of profits which could have been caused by the operation of the Mading establishment, and no basis in the record from which these facts could be determined.

While our courts have recognized that loss of profits is a recoverable element of damages in an action for breach of contract or damages to a business, nevertheless it is uniformly held that alleged profits which are merely conjectural or incapable of being ascertained with any reasonable degree of certainty do not afford a proper basis for the recovery of damages, 13 Tex.Jur., page 207, section 108; Drumm Seed & Floral Co. v. McFarlane Co., Tex.Civ.App., 30 S.W. 93; Hedrick v. Smith, Tex.Civ.App., 146 S.W. 305; Walter Box Co. v. Blackburn, Tex.Civ.App., 157 S.W. 220; Texas Power & Light Co. v. Roberts, Tex.Civ.App., 187 S.W. 225.

Further, our courts have drawn a distinction between cases involving the loss of profits of an established business and those involving the loss of profits in an enterprise not established at the time of the alleged breach of contract.

Where the business is shown to have been already established and making a profit at the time the contract was breached, such preexisting profits, together with other facts and circumstances, may indicate with reasonable certainty the amount of profits lost. In cases of this kind it is permissible to show the amount of business done by the plaintiff in a corresponding period of time not too remote and the business during the time for which recovery is sought, 13 Tex.Jur., page 215, section 114.

In suits in which recovery is sought for loss of profits in an enterprise not established at the time of the breach of contract, it is held that the profits which might have been verified from the plaintiff’s business are not susceptible of being proved to the degree of certainty which the law demands, and that no recovery may be had, for the reason that there is no basis for estimating the profits which would have been earned, and further that it is not certain that any profits would have been made from the operation of the business; 13 Tex.Jur., page 216, section 115; Walter Box Co. v. Blackburn, Tex.Civ.App., 157 S.W. 220; First National Bank v. Donahoe, Tex.Civ.App., 293 S.W. 217.

The exact question involved in this case has recently been decided by the Supreme Court in the case of Southwest Battery Corporation v. Owen et al., 131 Tex. 423, 115 S.W.2d 1097, 1098, in which Justice Sharp in his opinion says :

“The various legal encyclopediaes and textbooks lay down certain rules applicable to an action for damages for loss of profits. In [17] Corpus Juris, p. 785, § 112-f, the rule is stated in the following language:
“ 'The generally accepted rule is that, where it is shown that a loss of profits is the natural and probable consequences of the act or omission complained of, and the amount is shown with sufficient certainty, there may be a recovery therefor; but anticipated profits cannot be recovered where they are dependent upon uncertain and changing conditions, such as market fluctuations, or the chances of business, or where there is no evidence from which they may be intelligently estimated. So evidence to establish profits must not be uncertain or speculative. It is not necessary that profits should be susceptible of exact calculation, it is sufficient that there be data from which they may be ascertained with a reasonable degree of certainty and exactness.’ * * *
“In the early decisions a rigid rule affecting the right of recovery for lost profits was announced. Modern business methods have caused a relaxation of that hard rule. 13 Tex.Jur., p. 198, § 102; 17 C.J. p. 785, § 112-b; 8 R.C.L. p. 601.
“The rule denying a recovery where the facts show that such profits claimed are too uncertain or speculative, or where the enterprise is new or unestablished, is still enforced, on the ground that the profits which might have been made from such business are not susceptible of being established by proof to that degree of certainty which the law demands; 13 Tex.Jur. p. 207, § 108; p. 216, § 115; 17 C.J. pp. 790, 791, and causes cited in notes.”

In the instant case the record shows that Mading’s Drug §tores, Inc., was a going business and was serving food at the time plaintiffs opened their restaurant on July 19, 1936, and that the alleged breach of said contract complained of occurred before plaintiffs’ business was established.

Obviously, there is nothing in the record upon which to base an estimate of the profits appellants would have made in the event appellee Mading’s had not conducted its business in said location, nor is it certain that they would have made additional profits from their business in the event Mad-ing’s Drug Stores, Inc., had not operated in competition with them.

Appellants assign error in the failure of the trial court to allow the jury to pass on the issue of nominal damages in their favor, growing out of the alleged breach of said lease contract.

While it is the rule that for every breach of contract the law conclusively presumes that nominal damages were suffered, Cotherman v. Oriental Oil Co., Tex.Civ.App., 272 S.W. 616, in order for a litigant to recover even nominal damages and his costs, it is necessary that he ask for said damages in the manner provided by law. A party cannot waive or refuse to ask for a special issue or instructions on the question of nominal damages, and thereafter claim the benefit of the law entitling him to such instruction.

In the case-of Mitchell v. Heard, Tex.Civ.App., 98 S.W.2d 832, 836, appellant contended that he was entitled, as a matter of law and under the facts of the case, to a directed verdict in some amount, and that the trial court should have so instructed the jury, leaving the amount of his damages alone to be determined by the jury. The jury had found, under proper instructions and definitions, that appellants had suffered no damages, as a matter of fact; and had returned their verdict accordingly. The court held that the trial court was without authority, under such findings of the jury, to enter judgment in favor of appellant for any sum, other than a nominal amount, and that if, as a matter of law, the court should find, under other and separate findings of the jury, that appellant was entitled to nominal damages and costs, then appellant could have and should have filed an appropriate motion, after the return of the jury’s verdict, asking the court to enter judgment in his favor for a nominal amount, based on such other findings. The court further held that, “In a case where the record shows that a party is entitled only to nominal damages, and he makes no request for a judgment therefor in the trial court, such case will not be reversed merely to permit the jury to award nominal damages. Freeman v. Schwenker [Tex.Civ.App., 73 S.W.2d 609], supra; Northcutt v. Hume (Tex.Civ.App.) 174 S.W. 974; Major v. Hefley-Coleman Co. (Tex.Civ.App.) 164 S.W. 445; Von Schoech v. Herald News Co. (Tex.Civ.App.) 237 S.W. 651.” Morin et al. v. Houston Press Co., Tex.Civ.App., 103 S.W.2d 1087; De Garza et al. v. Magnolia Petroleum Co., Tex.Civ.App., 107 S.W.2d 1078, 1082.

In the instant case the court determined that there was no question to go to the jury with reference to actual or exemplary damages. However, appellants did not request a charge or instruction on nominal damages. They filed no motion in the trial court for a judgment non obstante vere-dicto for nominal damages, did not ask that the judgment of the trial court be reformed,’ or that the costs be re-taxed against appel-lees, or either of them, and they do not in this court seek to have the court render a judgment in their favor for nominal damages and costs of court. Having failed to request a judgment of the trial court for nominal damages and costs of court, and having failed to request such judgment in this court, appellants have waived any right they may have had for such a judgment and are not entitled upon appeal to have this case remanded and a new trial granted.

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

Affirmed.


author: YÓUNG, Justice.

text:
    GOSSETT, Banking Com’r, v. FIRST-TRUST JOINT STOCK LAND BANK OF CHICAGO.
    No. 12852.
    Court of Civil Appeals of Texas. Dallas.
    March 2, 1940.
    Rehearing Denied March 30, 1940.

      Joe T. Goodwin, of Austin, for appellant.
    Lawther, Cramer, Perry & Johnson and Lawrence F. Green, all of Dallas, for ap-pellee.
   YÓUNG, Justice.

Z. Gossett, as State Banking Commissioner and Statutory Receiver of the Benjamin State Bank, has appealed from an order of a Dallas County district court, appointing a receiver to 440 acres of land in Knox County, ancillary to appellee Land Bank's suit in debt and foreclosure; the appointment being on same date as application, and without notice to appellant.

The First-Trust Joint Stock Land Bank of Chicago, as owner of a certain deed of trust note and lien, had filed its said suit against Mrs. Mattie Reed, individually and as executrix of the estate of W. H. Reed, deceased, some tenants, and Z. Gossett, Banking Commissioner of Texas, as Statutory Receiver for the Benjamin State Bank, to establish its debt and lien aforesaid; and during the pendency thereof, made application for a receiver. Defendant, ' Mrs. Mattie Reed, promptly filed answer agreeing to such appointment, and,, on the same day, an ex parte receivership was ordered. The Land Bank’s application for this relief alleged that, at the time thereof, appellant was in charge of said Benjamin State Bank, as receiver; that the lands were situated in Knox County ; making its original petition a part thereof. The main pleading likewise • disclosed the capacity in which appellant was administering the affairs of said State Bank for purpose of liquidation; and that the Banking Commissioner was claiming some right, title and interest in the lands, perforce of a prior foreclosure by the Benjamin State Bank of a second lien against the realty in question. Appellee’s original petition contained other allegations showing claims of the Banking Commissioner, such as payment of semi-annual interest on the first, lien note, taking assignments of lien therefor. The record and briefs further disclose that the Benjamin State Bank closed on March 18, 1936, came regularly into the hands of the Banking Commissioner of Texas for administration in a cause filed April 27, 1936, in the District Court of Knox County, styled “In Re Liquidation Benjamin State Bank, No. 2768-A”; and that its assets and affairs, continuously since said date, had been in his hands for statutory settlement and distribution; that later on, Mrs. Mattie Reed filed suit in the same court (Knox County) to recover said land, the Banking Commissioner securing judgment, which, upon appeal, was reversed and remanded. Vide, Reed v. Benjamin State Bank, Tex.Civ.App., 114 S.W.2d 365. A second trial of said cause was had, and, upon jury verdict, judgment was rendered in favor of Mrs. Reed for title and possession of the land. The Banking Commissioner duly appealed in an order superseding the judgment, which appeal is now pending in the Court of Civil Appeals at Eastland, Eleventh District. It appears further that the land in controversy has been in the possession of appellant Commissioner (through tenants) since the closing of the State Bank; that in the exercise of such control, this official has paid the taxes thereon, claiming all rights of possession; that the District Court of Knox County likewise has continued to exercise its jurisdiction relative to the liquidation of said State Bank, including the granting of many orders disposing of assets and properties, approving reports of the Banking Commissioner with respect to expenses of liquidation, compromise and settlement of claims, etc. The Banking Commissioner did not, at any time since the land came into his possession, agree to surrender control thereof to appellee Land Bank, or waive any right thereto. Knowledge of the instant proceedings was acquired some days after the appointment was made. It is certified by the trial court that no evidence was heard on said application for receiver, and that his order was based upon a consideration of pleadings. Appel-lee’s application asserts, as grounds: “That the value of said property is now insufficient to discharge plaintiff’s debt, principal interest and attorney’s fees, and the conditions of said deed of trust have not been performed. That unless this Honorable Court appoints a receiver to take charge of said lands, to collect the rents thereupon and therein during the pendency of this suit, this plaintiff will Suffer ⅛-reparable injury.” \

It is appellee’s contention that (1) the action just referred to is at the instance of a first lienor, contains statutory allegations, is joined in by Mrs. Mattie Reed, to whom was decreed the title by the Knox County District Court, and is sufficient to justify the appointment of a receiver, ex parte; (2) the suit of the Land Bank was in the county where the first lien note was payable, and the subject matter thereof — the land' — was not in custodia legis, as regards the Land Bank’s superior rights; the statutory receiver, having entered appearance in the main suit with no attack upon the jurisdiction of the Dallas Court. To these propositions, we cannot agree. The repeated decisions of this Court alone, are to the effect that a receiver should not be appointed without notice to all parties adversely interested, unless it be made to appear that the plaintiff in suit would suffer material injury by the delay necessary to give notice. (Italics ours.) See Underwood v. Clark, Tex.Civ.App., 103 S.W.2d 199, and authorities there cited, including 36 Tex.Jur. pp. 104-111, secs. 48, 49. Also, the particular realty was already in possession of a receiver appointed by the District Court of Knox County. Appellee could properly maintain its suit for debt and foreclosure against the Banking Commissioner, as receiver, in Dallas County, the judgment to be presented to and enforced by the court in which the prior receivership was pending. Art. 2310; Baylor University v. Chester Sav. Bank, Tex.Civ.App., 82 S.W.2d 738, writ refused. The second judgment, determining that appellant had no interest in the land, had been superseded and was on appeal, with the result of continuing the Banking Commissioner’s right of possession thereto. The trial court’s order granting appeal from the Mattie Reed judgment, recited that it should be held in abeyance and no process issue for enforcement until final disposition of the appealed cause. No rights could be asserted under it, pending appellate proceedings, and the direct effect of the instant appointment was to invade appellant’s possession as receiver. This, a court of coordinate jurisdiction cannot do. McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56.

This cause is accordingly reversed and here rendered, vacating said receivership order.

Reversed and rendered.


author: BOND, Chief Justice.

text:
    GOODIE GOODIE SANDWICH, Inc., v. STATE.
    No. 12884.
    Court of Civil Appeals of Texas. Dallas.
    March 2, 1940.
    Rehearing Denied March 30, 1940.

      Andrew Priest, of Dallas, and Lasseter, Simpson, Spruiell & Lowry, of Tyler, for appellant.
    Gerald C. Mann, Atty. Gen., W. P. Watts, Fred C. Chandler, and Geo. W. Barcus, Assts. Atty. Gen., and E. G. Moseley, Harold McCracken, and David M. Weinstein, Assts. Dist. Atty., all of Dallas, for appellee.
   BOND, Chief Justice.

The State of Texas, acting upon the relation of Hon. Gerald C. Mann, Attorney General of Texas, and Hon. Andrew Patton, District Attorney of Dallas County, Texas, instituted this suit against Goodie Goodie Sandwich, Inc., to enjoin it from selling, possessing for the purpose of sale, or in any manner distributing, storing, soliciting or taking orders for alcoholic beverages, except beer containing not in excess of 3.2% of alcohol by weight, within the area known as Justice Precinct No. 7 of Dallas County, Texas. The proceeding is brought by virtue and upon authority of the Liquor Control Act of the State of Texas (R.S. art. 5110).

The undisputed evidence shows that appellant is conducting and operating a place of business, in the manner above suggested, at a location in Dallas County, about 750 feet east of the east levee of the present diversion channel of the Trinity River, and west approximately 550 feet from the old or abandoned channel of the river. The territory comprising the area where appellant’s place of business is located has been recognized as being in Precinct No. 7 since its creation in 1880 by the Commissioners’ Court of Dallas County, the Trinity River being its east boundary line. In 1890, local option was adopted, prohibiting the sale of intoxicating liquors within the prescribed limits of said Precinct, and since that time, local option has never been repealed, nor has there ever been an election held in the Precinct, involving the sale, barter or exchange of vinous or malt liquors containing in excess of 3.2% of alcohol by volume. In 1933, under provisions of our State Constitution (Sec. 20, Art. 16), see Laws 1933, p. 971, Vernon’s Ann.St., a majority of the qualified voters of the Precinct determined by vote that only the sale of beer containing not more than 3.2% of alcohol by weight should be legalized within the limits of Precinct No. 7, thus leaving unaffected the inhibition of local option for all other intoxicating liquors, as determined by the election of 1890.

The sole question to be determined in this appeal is, whether appellant’s place of business lies within Precinct No. 7, as said Precinct existed in 1890 when the valid local option election was held, and the sale of intoxicating beverages containing alcohol in excess of 3.2% by volume was prohibited. If Precinct No. 7 was laid off and designated by the Commissioners’ Court in 1880, to include the territory west of the Trinity River, following the meanders of the river as its eastern boundary, as has been recognized by the law enforcement agencies of the State and County, and the citizens generally of Dallas County, then the sale of intoxicating liquors, other than beer (expressly granted by the election of 1933), is prohibited at appellant’s place of business.

It has long been recognized by the courts of this State that, when the voters of a county, justice precinct, town or city have, by means of an election properly held, prohibited the sale of intoxicating liquors in such precinct or other political subdivision, it shall thus be unlawful, until the voters of such area shall determine otherwise by an election for that purpose. Intoxicating liquor, once voted out, can only be legalized by a majority vote of the territory that had voted it out. A change or abolition of the precinct or subdivision boundaries would not alter the status of the territory in relation to the sale of liquors. Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549; Hill v. Howth, 101 Tex. 620, 111 S.W. 649; Jackson v. State, 135 Tex.Cr.R. 140, 118 S.W.2d 313.

Appellant attacks the boundary description of Precinct No. 7 as laid off and designated by the Commissioners’ Court in 1880, and again in 1929, as being too indefinite and uncertain for the elections in 1890 and 1933 to include the territory where its place of business is located. In 1880, the boundary line of Precinct No. 7 was, by order of the Commissioners’ Court, defined as, “Beginning at the mouth of Five Mile Creek on the Trinity River to the mouth of the West Fork”, thus continuing north, northwest, west, and south, with complement calls, to the place of beginning. In 1929, the Commissioners’ Court again designated the boundaries of Precinct No. 7 in an effort to make the call, i. e., “Beginning at the mouth of Five Mile Creek on the Trinity River to the mouth of the West Fork”, more specific, following the course adopted in 1880; thus, after defining three sides of the Precinct, the call concludes with this description: “Thepce N with County line about 9 miles to channel center of W Fork of Trinity River; thence down said stream, with its meanderings to its junction, Elm Fork and Trinity River; thence down the Trinity River, with its meanderings, to the place of beginning,” It will be observed that the bound, designated in the order of 1880 as beginning at the “mouth” (the confluence of Five Mile Creek and the Trinity River), suggests no direct course, other than “on the Trinity River to the mouth of the West Fork”. The Trinity River is one of the state waterways, denominated in the record as a navigable stream; thus, the call beginning at the confluence of the named creek and river, then “on the Trinity River to the mouth of the West Fork”, can have no other course bearing than the meanders of the river.

In R.C.L. 4, p. 97, Sec. 29, the rule is expressed: “In surveying land adjacent to a stream, whether navigable or not, lines are often run from one point to another along or near the bank or margin of the stream, in such a manner as to leave a quantity of land lying between these lines and the thread or bank of the stream. These are called meander lines, and they are not the boundaries of the tract, but they merely define the sinuosities of the stream which constitute the boundary, and as a general rule the mentioning in a deed or grant of a meander line on the bank of a river as a boundary, will convey title as far as the shore unless a contrary intention is clearly apparent.”

So, also, in Stover v. Gilbert, 112 Tex. 429, 247 S.W. 841, 843, our Supreme Court, in answering what effect a call down a river has in fixing the boundary line, used the language: “The beginning corner of the Williams survey is on the northeast bank of the Brazos river. From there the call is, ‘Thence down the river the following courses and distance.’ The call ‘down the river’ means with the river (Brown v. Huger, 21 How. 305, 16 L.Ed. 125; St. Louis v. Rutz, 138 U.S. 226, 11 S.Ct. 357, 34 L.Ed. 941); and this will control' over the calls for course and distance. The rule is concisely stated in Corpus Juris, book 9, p. 189, as follows: ‘The general rule adopted by both state and federal courts is that meander lines are not run as boundaries of the tract surveyed, but for the purpose of defining the sinuosities of the banks of the stream or other body of water, and as a means of ascertaining the quantity of land embraced in the survey. The stream, dr other body of water, and not the meander line as actually run on the ground, is the boundary, the purpose of meander lines being merely for the benefit of the government in ascertaining the quantity of land in the survey for which it requires payment’ ”

We think the undisputed facts and circumstances shown by the State and testified to by numerous witnesses, that the Trinity River has always been considered the bound of Precinct No. 7, that the call in the boundary as beginning at a designated point on the river, and then “on the river” to another fixed point on the river (there being no other designated course revealed by testimony or otherwise), signify that the bound of the Precinct must follow the course of the stream as the real boundary. The beginning corner of the Precinct boundary is at the “mouth” of Five Mile Creek; from there, the call is, “on the Trinity River to the mouth of the West Fork”. The call “down the river” can have no meaning other than “w-ith the river”. It is manifest that the Trinity River -was intended by the order of the Commissioners’ Court of 1880, as the boundary line of Precinct No. 7, and that the order of 1929, more definitely designating the bound, “down the Trinity River, with its meanderings, to the place of beginning”, merely accentuates the conclusion that the Trinity River, as designated in the order of 1880, is still the local option Precinct boundary line, as determined in the election of 1890; thus, appellant’s place of business is located in prohibition territory.

In 1938, the Commissioners’ Court entered an order amending, changing,' fixing and establishing the boundary lines of' Justice Precinct No. 1 and Justice Precinct No. 7, with reference to the Trinity River, so intended to follow the diversion, or new channel of the river, located some 1,300 feet west of the old or abandoned channel, thus leaving the territory where appellant’s place of business is located, wholly outside of Precinct No. 7, and definitely fixing the center of the new channel, constructed in 1929, 1930 and 1931, as the proper boundary line of said Precincts. At the time the order was entered, the old channel of the Trinity River had been filled in and, in places, almost obliterated. For such reasons, the Commissioners’ Court exercised the discretion conferred upon it by the State Constitution (Sec. 18, Art. 5) Vernon’s Ann.St, and Revised Statute (Art. 2351), in changing the boundary of the Precinct to follow the newly constructed diversion channel of the river.

It cannot be gainsaid that the Commissioners’ Court had the power and authority to define, re-define, change, or alter the boundaries of precincts within -the county, and to ascertain the facts necessary to the exercise of such powers; but it does not lie within the power of the Court to detach “dry” territory from a “dry” precinct and attach it to a “wet” precinct, thereby making the detached territory “wet”, and allowing the sale, barter and exchange of prohibited liquors within the detached territory, perforce of the change.

The trial court, having enjoined the sale, distribution, and possession for the purpose of sale, of all intoxicating liquors, except beer containing alcohol not in excess of the allowable, at appellant’s place of business, the judgment must be affirmed; it is so ordered.

Affirmed.


text:
    MIDWAY LIQUOR CO., Inc., v. STATE.
    No. 12883.

      Court of Civil Appeals of Texas. Dallas.
    March 2, 1940.
    Rehearing Denied March 30, 1940.

      Andrew Priest, of Dallas, and Lasseter, Simpson, Spruiell & Lowry, of Tyler, for appellant.
    Gerald C. Mann, Atty. Gen., W. P. ' Watts, Fred C. Chandler, and Geo. W. Bar-cus, Assts. Atty. Gen., and E. G. Moseley, Harold McCracken, and David M. Wein-stein, Assts. Dist. Atty., all of Dallas, for appellee.
   BOND, Chief Justice.

This record discloses an analogous situation to that in the case of Goodie-Goodie Sandwich, Inc. v. State of Texas, 138 S.W.2d 906, this day decided by this Court. Appellant’s place of business is located adjacent to that of the Goodie-Goodie Corporation, and, it too, has been enjoined from selling,- possessing for the purpose of sale, bartering or exchanging prohibited intoxicating liquors at its place of business. The conclusion is reached in the above cited case that, the territory where appellant’s place of business is located, is within Precinct No. 7- of Dallas County, where local option is legally effective; therefore, on the strength of our holding, the judgment of the court below is affirmed.

Affirmed.


author: BAUGH, Justice.

text:
    JOHNSON et al. v. COLE et al.
    No. 8890.
    Court of Civil Appeals of Texas. Austin.
    March 13, 1940.
    Rehearing Denied April 3, 1940.

      Walter Miller, of Belton, and W. H. Reid, of Dallas, for plaintiffs in error.
    Lee Curtis, of Belton, and Moore & Moore, of Paris, for defendants in error.
   BAUGH, Justice.

On January 29, 1938, Robert Johnson and others filed this suit in the District Court of Bell County against T. W. Cole and others to vacate and set aside a personal judgment rendered in the same court on June 7, 1921, in favor of Cole against E. D. and Robert Johnson for the sum of $1,441.05. Other ancillary relief was sought against the sheriff, not material here. From a judgment denying the plaintiffs any relief this writ of error has been prosecuted.

The 1921 judgment against the Johnsons was attacked as void, or at least voidable, upon substantially the following grounds:

1. That Robert Johnson was never served with citation therein, and consequently the court never acquired jurisdiction to render any personal judgment against him.

2. That the citation therein purporting to have been served upon him was fatally defective, and constituted no service upon him, even if actually delivered to him.

3. That said judgment, based upon the recitals that “E. D. Johnson and Robert Johnson, by their attorney, having admitted that they are indebted to the plaintiff, T. W. Cole, in the sum of ($1,441.05) Fourteen Hundred and Forty One Dollars and °¾00 Dollars,” was invalid because neither the petition on which it was entered was verified, as required by Art. 2225, R.C.S. 1925; nor was any power of attorney filed and its contents recited in the judgment, authorizing such attorney to confess judgment, as required by said Article of the statute.

The Johnsons requested submission to the jury of these issues, which submissions were refused and judgment rendered for defendants in error.

We consider first the contention that the citation to Robert Johnson was fatally defective. This citation, the original of which has been presented for our inspection, shows that it was issued “this the 13th day of February A.D. 1920.” It cited Robert Johnson to appear to answer the petition of plaintiffs filed “on the 16th day of May A.D. 1919,” appearance to be on the first Monday in March, A.D. 1912 (according to plaintiffs in error’s contention), or 1920 (according to defendants in error’s contention). The sheriff’s return thereon shows that it “Came to hand on the 13 day of Feb. 19120 at 10 a m,” and was served on Robert Johnson, “2/16/1920/ 12 M in Belton.”

Art. 2022, R.C.S. (Art. 1852, R.S. 1911), prescribes the requisites of a citation and is mandatory. See authorities under note 1, Vernon’s Ann.Tex.Civ.Stats. And a citation which summons a defendant to appear at an impossible date is void. Martinez v. Watson, Tex.Civ.App., 21 S.W.2d 54; Tyner v. Glass, Tex.Civ.App., 27 S.W.2d 916; Campbell & Co. v. Roots, Tex.Civ.App., 60 S.W.2d 896; 33 Tex.Jur., § 18, p. 816.

The first irregularity in the citation here complained of is that it was shown on the sheriff’s return to have come into his hands on the 13th day of February, 19120. The citation in question was issued upon a printed form, prepared for use between the years 1910 and 1920, wherein were printed the numerals 191 — , thus leaving to be filled in only the last numeral to designate the proper year. Instead of striking out the 1 following the 19 on the printed form, and inserting 20, the sheriff manifestly inadvertently overlooked this numeral, which, of course, became inapplicable' to the year 1920, and merely inserted in ink in the blank following the numerals 191 — , the numerals 20. That this constituted a mere oversight or inadvertence is, we think, affirmatively obvious. And in view of the date the citation was issued and the date it was shown upon the return to have been served, no doubt can exist, and no reasonable interpretation be placed upon it, other than that it shows a receipt thereof by the sheriff on February 13, 1920, even if this portion of the return be essential to valid process. Art. 2025, R.C.S.1925, does direct the receiving officer to indorse on the citation the day and hour he received same; but we •■have found no case holding that this Article is mandatory; nor that failure of'the sheriff to comply with it, where citation -has- been duly issued and duly and timely served upon a defendant, would render such service void. We fail to see how such irregularity could in any manner injure, the defendant, if the citation were in all other respects in compliance with law. See Miller v. Davis, Tex.Civ.App., 180 S.W. 1140.

The second contention made is that the citation was void because it shows to' have cited the defendant to appear “on the first Monday in March 1912,” an impossible date. As stated above, the citation in question was prepared on a printed form wherein the numerals 191— were printed. The date in question was filled in on a typewriter, and shows the following: the' numeral 1 following the 19 was stricken through with a diagonal line made by the typewriter, not by the numeral 1. Following this diagonal line in the blank space after the printed 191 — , there was written the figure 2, and following '2, though indistinct but still legible on the original citation before us appears a 0 made by the typewriter. It is clear, we think, from these facts and circumstances, that the manifest intention and effort of the Clerk was to strike out the inapplicable 1 following the 19, and insert the numerals 20 following the 19, thus showing the term of court to which it was returnable to be the first Monday in March, 1920, and not 1912, as urged by plaintiffs in error. Not only was this the clear purpose and undertaking of the District Clerk, but we think it was effectually accomplished; that the defendant could not reasonably have construed it otherwise; and that the citation in reality apprized him of the true date of the next regular term of said court. Consequently, the citation did not indicate an impossible date, and was not void for that reason.

The next contention made is that the trial court erred in refusing, upon request of plaintiffs in error, to submit to the jury the issue of whether or not Robert Johnson was in fact served with citation. This, of course, was but an attempted impeachment of the officer’s return. The only evidence on this issue was the testimony of Robert Johnson that he was not served; and that of his brother, also a defendant in the original suit and against whom judgment was rendered in that suit, and a plaintiff in the instant suit to set it aside, to the effect that Robert Johnson could not have been in Bell County at the time the return showed that he was served. It was not controverted that the officer who executed said return died prior to the trial of the instant suit.

It is now settled that to impeach such a return, the testimony of one witness is not sufficient, that his testimony must be strongly corroborated, and that the proof must be clear and satisfactory. Gatlin v. Dibrell, 74 Tex. 36, 11 S.W. 908; Joseph v. Kiber, Tex.Civ.App., 260 S.W. 269 Barkate v. Allen, Tex.Civ.App., 282 S.W. 670; San Antonio Paper Co. v. Morgan, Tex.Civ.App., 53 S.W.2d 651; 33 Tex.Jur., § 78, p. 892. In Wedgeworth v. Pope, Tex.Civ.App., 12 S.W.2d 1045, 1049, writ refused, it was stated that such “evidence tending to impeach an officer’s return must be conclusive and convincing, and not, like the ordinary issue of fact, determined by a mere preponderance of the testimony.”

The burden was manifestly not met in the instant case, and the trial court did not err in refusing to submit the issue to the jury. Not only was Robert Johnson’s testimony not corroborated by competent evidence, but no steps were taken by him to vacate said judgment for almost 17 years after its rendition, though Robert Johnson, according to his own testimony, knew of its existence more than four years before he filed this suit, and did not then attack it until an execution had been levied upon his property.

The next attack upon said judgment as rendering it void upon its face is that it does not recite service of process upon the defendants, and purports only to be a judgment by confession of the attorneys. That the petition on which it was rendered was not verified; and that no power of attorney to confess judgment was filed nor its contents recited in said judgment as required by Art. 2225, R.C.S.1925.

This Article, originally enacted 1846, provides that a defendant “may, without process, appear in person or by attorney, and confess judgment therefor in open court” upon the conditions thereinafter recited. It is clear that the proceeding therein provided contemplated lack of service of process, in which event, the terms. of the statute should be complied with. Though not recited in the judgment, the sheriff’s return showed, as above discussed, issuance and service of process on Robert Johnson. In Cruger v. Sullivan, 11 Tex.Civ.App. 377, 32 S.W. 448, writ refused, the court, speaking through Judge Neill, held that this Article “does not apply to cases where process has been served * * * ”; and in Hopkins v. Howard, 12 Tex. 7, the Supreme Court held that a judgment by confession even without process was not void for non compliance with such statute, but only erroneous.

The judgment in question was not, therefore, void upon its face. The court hfid jurisdiction of the subject-matter and potential jurisdiction of the parties. And where a judgment in such case does not recite service of process, the entire record may be looked to to ascertain if actual jurisdiction has been acquired. Stockyards National Bank v. Presnall, 109 Tex. 32, 194 S.W. 384; Hopkins v. Cain, 105 Tex. 591, 143 S.W. 1145. When that is done we find that citation to Robert Johnson was duly issued and properly returned showing service thereof upon him, and the officer’s return not successfully impeached. That being true, jurisdiction of the court over the person of that defendant was conclusively shown. These facts would have authorized a valid default judgment against him, immune against collateral attack.

The judgment attacked, when the record therein is consulted, shows to be a valid judgment. That being true the burden rested upon Robert Johnson, even in a direct attack thereon, to show the contrary. According to his own testimony, he learned of the existence of this judgment in 1933 or 1934; and there was evidence strongly indicating that he knew of it prior to that time. He did not file this suit until January, 1938, though under no disability meantime. Under these facts he was barred by limitation of four years from attacking that judgment even in a direct suit to vacate it. Swearingen v. Swearingen, Tex.Civ.App., 193 S.W. 442, writ refused; 25 Tex.Jur., § 227, p. 643.

The only other contention made is that the finding of the jury on the only issue submitted to them is contrary to the uncontroverted evidence. This issue was submitted to determine whether the plaintiff in error or his son owned a Vi interest in certain lands in Bell County, levied upon as the property of plaintiff in error. The son, Robert A. Johnson, joined in this suit, asserting title thereto. The interest involved was conveyed by deed from Halbert P. Johnson, brother of plaintiff in error, to Robert A. Johnson, without designating him as the senior or junior Johnson, on October 1, 1935. Plaintiff in error was the only witness on this issue, and testified that the grantee in that deed was his son, nephew of the grantor. He also testified, however, that his name was Robert A. Johnson, the same as that of his son, and that he had in the past executed instruments in writing as Robert A. Johnson. His being the only testimony, and he being a party to the suit and an interested witness, a jury issue as to identity of such grantee was presented, and the fact that the grantor was his brother, that his own name was Robert A. Johnson, and that he had therefore executed instruments in that name was sufficient to sustain the jury’s finding that he, and not his son, was the grantee in the deed. Simmonds v. St. Louis, B. & M. R. Co., 127 Tex. 23, 91 S.W.2d 332, 333.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.