text:
    RAINEY v. JONES.
    No. 5702.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 2, 1941.
    Rehearing Denied Jan. 16, 1941.

      R. H. Good and W. H. Crunk, both of Cooper, for appellant.
    C. C. McKinney, of Cooper, and Jackson & Stell, of Sulphur Springs, for appellee.
   WILLIAMS, Justice.

A ditch, on the east side of an abandoned rural road, running north and south, both situated between plaintiff R. L. Rainey’s land on the east and defendant J. R. Jones’ land on the west, drained to the south such surface water as emptied into it. The ditch was adjacent to plaintiff’s west boundary line, and, as found by the jury, was situated upon defendant’s land. In response to special issues the jury sustained plaintiff’s allegations that defendant had prior thereto constructed a series of terraces and drainage ditches upon defendant’s land which diverted surface water thereon from its natural course to the southeast into and through a culvert, constructed by defendant, across the abandoned road into the ditch; that this caused the banks of the ditch to crumble, the ditch to fill up, and the water flowing into it to spread and overflow plaintiff’s land. Defendant answered with a general denial and charged that plaintiff had constructed terraces and drainage ditches which diverted surface water from its natural flow on plaintiff’s land to the southwest into the ditch and that plaintiff had placed obstructions in the ditch. In response to special issues, the jury also sustained defendant’s allegations.

The jury found above alleged acts of defendant in diverting surface water to be the proximate cause of the ditch overflowing with the resultant damage to plaintiff’s land. In response to another issue the ju’-y also found above alleged acts of plaintiff in diverting surface water to be the proximate cause of the ditch overflowing with the resultant damage to plaintiff’s land. Then, in response to a further issue, the jury answered that the present condition and location of defendant’s terraces and his culvert in the old road will in the future be the proximate cause of surface waters from defendant’s land being diverted to the east of the old road, overflowing on to the land of plaintiff, in such manner as- to damage his land.

The court entered judgment which denied plaintiff the issuance of a mandatory writ of injunction to require defendant to abate the above-mentioned artificial obstruction erected by the latter. This record indicates that plaintiff waived submission of any issue bearing upon amount of his alleged damages sued for. Plaintiff’s propositions, grounded on his assignments of error to the court’s refusal to grant his motion to declare a mistrial and in entering above judgment, assert the jury findings on the three ultimate issues above set out are in irreconcilable conflict and a valid judgment thereon could not be granted either party. Litigants, under agreement, bring forward only a brief summary of the evidence given on the trial which they deemed sufficient for consideration of above sole question presented on this appeal.

The jury was instructed that “proximate cause means that which naturally and without the intervention of any new intervening cause produced the injury and damage complained of without which such injury and damage would not have occurred.” With this definition it is to be observed that the acts of defendant “without the intervention of any new intervening cause” produced the overflow; and that defendant’s maintenance of his present artificial obstructions will continue to cause the ditch to overflow in the future. These findings, if standing alone, would not have authorized a judgment denying plaintiff equitable relief. The jury also found that plaintiff’s acts without the intervention of any new intervening cause produced the overflow. In the absence of further jury findings, we are left to speculation or conjecture if plaintiff’s maintenance of his present artificial obstruction will in the future continue to cause the ditch to overflow, and if so, to what extent. We need not determine if the findings are in irreconcilable conflict. This record presents an absence of ultimate findings of facts upon which to predicate a judgment for either party. We express no opinion upon the present state of the pleadings. In the reversal and remanding of this cause, attention is directed to Moody v. Vandergriff, Tex.Civ.App., 293 S.W. 215, and authorities there cited or discussed, wherein it is held that a defendant who wrongfully diverts surface water is not relieved of all liability to a plaintiff who also diverts such water, when water diverted by each unites in causing an overflow which damages the plaintiff. In such a case the defendant is liable for a proportionate part of the damages suffered by the plaintiff. 44 T.J. p. 194; 44 T.J. p. 178, Sec. 135. As to the submission of such additional issues, see Houston & T. C. Ry. Co. v. Wright, Tex.Civ.App., 195 S.W. 605; Walters v. Prairie Oil & Gas Co., 85 Old. 77, 204 P. 906; Houston & T. C. Ry. Co. v. Hanson, Tex.Civ.App., 227 S.W. 375, 377.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: PRICE, Chief Justice.

license: Public Domain

text:
    YEAGER v. LAREDO NAT. BANK.
    No. 3985.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 24, 1940.
    Rehearing Denied Jan. 9, 1941.
    Nat. B. King, C. N. Fansler, and Neel & King, all of Laredo, for appellant.
    Gordon Gibson, of Laredo, for appellee.
   PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Webb County establishing an unsecured clairti in the sum of $5,-685.90 against the estate of Miles T. Cog-ley, deceased, and denying same as a secured claim.

Mrs. Cora F. Yeager, appellant here, was the owner of the claim in question. The claim was allowed by the adminis-tratrix with the will annexed as a secured claim. The security being thirty shares of the capital stock of City Lumber Company, a corporation. The claim was filed in the County Court and the appellee, La-r.edo National Bank, an unsecured creditor, filed opposition to the allowance thereof as a secured claim, but did not oppose its allowance as an unsecured claim. Judgment of the County Court ' allowed the claim as a secured claim. Appellee here in due time perfected an appeal to the District Court of Webb County.

In the District Court the claim was allowed as an unsecured claim, but disallowed as a secured claim.

The trial was to the court without a jury and was heard on the transcript of the evidence taken before the County Court. In short, on written testimony only. Findings of fact and conclusions of law were not requested of the trial court, and none were made.

Regardless of the fact that the judgment was rendered on written evidence, which was without conflict, and in -passing on same the trial court had no peculiar advantage ove% this court in so doing, it is conceived to be our duty to attribute to the trial court, if supported by any substantial evidence, such findings as will support the judgment. If so supported, the findings are final and not to be set aside.

The claim was founded on'a promissory note in the sum of $4,500, dated May 25, 1936, payable one year after date to the order of appellant, the rate of interest being eight per cent, signed by Miles T. Cogley, Trustee.

Miles T. Cogley died on the 7th day of February, 1938. This note was found by the administratrix after his death in a box or safe in his home. Attached thereto was the corporate stock in question which he had endorsed in blank.

The transactions out of which this claim arose had their inception about twenty years ago. Deceased Cogley was president of the Milmo National Bank of Laredo. He carried an account in the bank as Miles T. Cogley, Trustee. The source of this account was money entrusted to him for investment. When money was received by him for this purpose same was deposited in the account. At the time of the receipt of money for this purpose it was his custom to sign and place among his papers a note payable to the order of the customer in the amount of money received, signed Miles T. Cogley, Trustee. These notes were not delivered to the payee thereof, but remained in Cogley’s custody and control. When loans were made out of this trust account the money was withdrawn by check thereon. If payments of principal or interest were made to the persons advancing the money, same were deposited in this account and paid out of same. This general way of conducting the business is indisputably established by the evidence.

In the year 1918 appellant entrusted $7500 to him to be used in obtaining an income for her. This transaction, or rather series of transactions, was handled in about the same general way as above indicated. At the time of the receipt of the money he executed a promissory note in that amount, payable to her order, due one year after date, bearing eight per cent interest per annum. From time to time new notes of renewal were executed. These notes were never delivered, but at all times remained in his possession and control. At the time the note for $4,500 in question was executed, the $7,500 had been reduced by payments to that amount. One year’s interest in the sum of $360 was paid on the $4,500 note. This note was never in the possession or control of the appellant.

At the time of the delivery by appellant of the $7,500 to Mr. Cogley he attached to the note the stock in question -endorsed in blank. From time to time, as renewal notes were signed, he would detach the stock from the old note and attach same to the new.

There is no direct evidence that at the time the $7,500 was delivered to him by appellant there was any agreement that the return of the money by him to her was to be secured by the stock in question.

As to the transactions between appellant and Cogley at the time of the delivery of the money his lips are sealed by death and hers by law.

From time to time appellant’s daughter went to see him for her mother about the investment. He assured appellant’s daughter that the money was amply secured by the stock in question. On the daughter’s last visit, about one year before his death, he again assured her the money was well secured and showed her the note in question here with the stock attached thereto endorsed in blank.

On numerous occasions he told those in charge of the bookkeeping in connection with his trustee account .that appellant’s claim was secured by the stock in question, and they saw same attached by him to the notes.

The inference is compelled from the evidence introduced that at all times from the receipt of the $7,500 from appellant to his death that Miles T. Cogley thought that the stock in question was dedicated to the securing the return to appellant of the money delivered to him by her. This is true, regardless as to whether the relationship was that of debtor and creditor or of trustee and beneficiary. It is evidenced by the fact that he attached the stock, by his declarations to third parties, by his declarations to appellant’s daughter. He conceived it to be his duty to hold and keep this stock for the securing of his obligation to appellant. His actions, from the inception of the transaction to its close, were consistent with his conception of his legal duty.

In denying the claim as a secured claim the trial court most certainly found that the money of appellant was not traced to the acquisition of the stock by Cogley. This stock represented a stock dividend due Cogley from the corporation. Also, we think, the finding must be attributed that possession of this stock was never delivered to appellant in pledge to secure the return of appellant’s money.

In any event, the above findings were ■clearly in consonance with the evidence introduced. Necessarily there must be attributed finding that by contract, either express or implied, Miles Cogley was bound to return the'$4,500 to appellant, and in case •of failure to meet this obligation, if such •claim was placed in the hands of an attorney, to pay ten per cent additional as attorney’s fees. In no other way than by contract is it conceivable that Cogley was so bound. The judgment rendered affirms this.

It is the exact obligation purported to be •evidenced by the promissory note. Likewise, we think, must be attributed the finding of the trial court that there was no .agreement existing between Miles T. Cog-'ley and appellant that her claim be secured by the stock in question. This is the only finding that is consistent with the judgment rendered. This theory is, we think, projected by the pleadings, and, to say the least, in •our opinion, raised by the evidence.

A lien may be created on personal property good, as between the parties, by parol. To the creation and existence of the lien possession by appellant of the property was not essential. Sparkman v. First State Bank, 112 Tex. 33, 244 S.W. 127.

Such a mortgage is, in our opinion, good, •except as against creditors, etc., as provided in Article 5490, R.S.1925. Appellee, having no specific lien on the property in question, is not a creditor within the meaning of that article.

The mere attaching of the stock to the note, in and of itself, is not sufficient to ■establish such an agreement for a lien. The mere signing of an undelivered note, in and of itself, was perhaps insufficient to evidence an obligation to return the money. It was, however., strong evidence of this obligation in the nature of a declaration against interest. As before stated, this obligation arose by virtue of either an express or implied contract. If there was not some agreement that the stock should stand as security, the attaching of same to the note was an anomalous action. Repeatedly Cog-ley declared the stock was security for the return of the money. These declarations were made from time to time to disinterested third parties. They were made from time to time to Mrs. Withoff, who was appellant’s daughter and acting as her agent.

On the last occasion Mrs. Withoff talked to him on behalf of her mother, the note and stock were shown her. She was assured that the debt was secured by the stock in question. This transaction is, in our opinion, standing alone, sufficient to create an equitable lien on the stock in question.

A preexisting indebtedness is sufficient consideration to support a chattel mortgage. 14 C.J.S., Chattel Mortgages, § 42, p. 649.

It is a fact that Mrs. Withoff was the daughter of appellant, but her testimony is uncontradicted. If not corroborated h}", it is consistent with, numerous declarations made by Cogley to disinterested third parties, also consistent with his acts over a period of eighteen years in faithfully retaining the stock to the end and purpose of securing the performance of the obligation owed to appellant.

In our opinion the overwhelming preponderance of the evidénce established that there was a parol contract between appellant and Cogley that this stock was to be security for the return of the money involved.

The question then arises as to whether we should reverse and render the judgment entered as to the security, or simply reverse and remand the cause. It seems that the case has been fully developed and can have but one end. It is, therefore, ordered that the judgment, insofar as it denied the claim as secured, is reversed, and judgment is here rendered that said claim be established as secured by the thirty shares of stock in question, and this judgment be certified to the County Court of Webb County for observance.


author: BLAIR, Justice.

text:
    LANDRUM et al. v. CENTENNIAL RURAL HIGH SCHOOL DIST. et al.
    No. 9083.
    Court of Civil Appeals of Texas. Austin.
    Dec. 31, 1940.
    Rehearing Denied Jan. 22, 1941.

      E. M. Critz, of Coleman, for appellants.
    W. Marcus Weatherred, of Coleman, for appellees.
   BLAIR, Justice.

We have reached the conclusion that all questions with respect to the suit of appellants to restrain the issuance and sale of the bonds involved have become moot. The facts upon which we base this conclusion are as follows:

On March 18, 1939, Centennial Rural High School District voted bonds in the sum of $28,000, “for the purpose of constructing and equipping a high school, gymnasium, and teacherage.” On April 3, 1939, the State Board of Education authorized the purchase of these bonds with state permanent school funds when approved by the Attorney General. On April 5, 1939, the appellants in the instant case, taxpayers of the school district, filed a contest of the bond election, which was determined against them. Tom Landrum et al. v. Centennial Rural High School District, Tex.Civ.App., 134 S.W.2d 353, writ of error dismissed; correct judgment. The bonds were dated April 10, 1939, and on March 29, 1940, appellants, after having unsuccessfully contested the bond election, filed this proceeding, seeking to perpetually enjoin and restrain the appellee school district and its board of trustees (1) from issuing, selling and delivering the bonds; and (2) from levying, assessing, and collecting any taxes for the payment of the bonds; and by amended pleadings filed May 29, 1940, appellants alleged that the bonds were void because of certain irregularities in the election authorizing the bonds and the taxes to pay them, and because the bonds were issued for purposes not authorized by Sec. 3 of Art. 7 of the Vernon’s Ann.St. Constitution, and of Sub. 2 of Art. 2784, and, if applicable, of Art. 2922Í as amended in 1927, Vernon’s Ann.Civ.St. Art. 2922Í. On June 13, 1940, the trial court denied appellants any injunctive relief, decreed that the bonds were valid, and authorized their sale by appellees; from which judgment this appeal is prosecuted.

Appellants alleged that the Attorney General had approved, or was threatening to approve, and would approve the bonds if not restrained, but neither he nor the State Comptroller, whose duty it was to register them, was made a party to this proceeding. Appellants gave notice of appeal, and filed only a cost bond. They did not seek by temporary injunction, supersedeas, or otherwise, to enjoin the approval, registration, or sale of the bonds pending the appeal. By affidavit and official certificates filed herein by appellees, it is shown that after the final judgment of the trial court on June 13, 1940, denying the injunction and decreeing the bonds to be valid, the Attorney General on July 3, 1940, approved $25,500 of the bonds,- — $2,500 of the $28,000 voted having already matured on that date were not allowed, — and on the same date the bonds were registered by the State Comptroller; and on August 9, 1940, the State Treasurer issued a warrant against the permanent school fund in payment of the bonds, and appellee district received the money thereon on August 10, 1940.

Having successfully defended the action to restrain the issuance and sale of the bonds and having also obtained a decree declaring them to be valid and authorizing their sale, appellees were free, pending an appeal by appellants from such judgment, to proceed to complete the sale of the bonds unless restrained by some proper method from doing so. The rule is settled that where injunctive relief has been denied, the plaintiff cannot create the injunction by merely giving notice of appeal from the order denying the injunction, or by merely filing a cost bond. Art. 2268, R.S.1925. Appellants had at least two remedies open to them: First, to obtain pending the appeal a temporary injunction or order to preserve the status quo. Bird v. Alexander, Tex.Civ.App., 288 S.W. 606; Art. 1823, R.S. 1925. Second, appellants could have superseded the judgment of the trial court denying them an injunction and decreeing the bonds to be valid, and authorizing their sale. Houtchens v. Mercer, 119 Tex. 431, 29 S.W.2d 1031, 69 A.L.R. 1103. Not having taken any proper step to prevent the issuance and sale of the bonds pending the appeal, they cannot obtáin an injunction prohibiting the sale of bonds which have already been sold, delivered and paid for pending the appeal. And it was held in Walling v. Malone Ind. Sch. Dist., Tex.Civ.App., 195 S.W. 671, that where school district bonds have been sold to the State Board of Education, such Board is a necessary party to a suit contesting the validity of the issue; and in any event a judgment declaring the bonds invalid as between appellants and appellees in the instant case would not be binding upon the Board, it not being a party to this suit. Nor do we pass upon the question of whether the State Board of Education may be sued to cancel bonds which it has purchased with permanent school funds without express authority from the Legislature-to do so.

Nor do we sustain the contention of appellants in this connection that the filing of their suit to cancel the bonds invoked the rule of lis pendens. The bonds are commercial paper and entitled to the privileges and immunities attaching to negotiable instruments, and “they are not, therefore, within the rule of lis pendens.” Board v. Texas & P. Ry. Co., 46 Tex. 316.

Appellees also contend that all questions with respect to the suit of appellants to restrain appellees from levying and collecting the taxes voted to pay the bonds have also become moot. This contention is predicated upon the claim that the taxes are only an incident of the bonds; and that since the bonds have been approved, registered, sold, delivered and paid for by the State Board of Education, all questions with respect to such incidental taxes have become moot. If it may be assumed that the State Board of' Education is an innocent purchaser of the bonds, the rule stated is a correct one. See Walling v. Malone Ind. Sch. Dist., supra, wherein the court recited that the State Board of Education had purchased the bonds; that it was not a party to the suit; that the bonds were valid in the hands of the Board as innocent purchaser; and that since the bonds were valid, the taxes authorized to pay them were likewise valid as a necessary incident to the bonds, the court reasoning that. the bonds without the taxes to pay them would be worthless.

But appellants contend in this connection that although the bonds have been approved and sold, their validity, or the validity of the taxes to be levied and collected in the future to pay them, may be attacked if the bonds were fraudulently issued, or issued in violation of some constitutional or statutory restrictions, under the provisions of Article 2670, R.S.1925. This statute so provides, but no such ground of invalidity of the bonds appears in the instant case.

The alleged grounds of invalidity of the bonds relate in the main to mere irregularities in the bond and tax election, and were matters which should have been and must be held to have been concluded against appellants in their election contest suit. That is, the questions of whether the uniform maintenance tax for the school district had been properly adopted, or whether a proper majority was favorable to the uniform tax for the district, or whether the language “to determine whether the commissioners court of said county shall be authorized to levy, assess and collect” the tax necessary to pay the bond, as contained in the petition and notice of the election, when same should have read, “whether the Board of Trustees of the said district shall be authorized to levy, assess and collect” said tax, or whether the ballot should have submitted separately the question as to whether the bonds should be issued to build the three buildings contemplated, are all questions relating to mere irregularities or fairness of the election procedure, and do not render the bonds invalid. These relate only to fact questions which,do not render the bonds void on their face nor as a matter of law; and since the bonds have been issued and sold and contain recitals that all facts existed which conferred authority to issue them, and are negotiable bonds, they are valid in the hands of innocent purchasers or bona fide holders, and are collectible, notwithstanding the nonexistence of facts required to confer authority to issue them under the Texas rule of estoppel arising through recitals in the bonds or the portions of the bond record which a purchaser is required to examine. Citizens’ Bank v. City of Terrell, 78 Tex. 450, 14 S.W. 1003; Nolan County v. State, 83 Tex. 182, 17 S.W. 823; City of Tyler v. Tyler B. & L. Ass’n, 99 Tex. 6, 86 S.W. 750.

The same rule applies to the ground raised that the bonds were voted and issued for purposes not authorized by the constitutional and statutory provisions relating thereto. The petition for the election, the election notice, the order authorizing the bonds and tax to pay them, and the bonds themselves recite that they were voted “for the purpose of constructing and equipping a high school, gymnasium, and teacherage” within the district. The Constitution and applicable statutes provide that bonds may be voted and taxes levied and collected by rural high school districts for the purpose of constructing and equipping “school buildings” within such districts. Sec. 3 of Art. 7 Vernon’s Ann. St. Const., Art. 29221, as amended in 1927 Vernon’s Ann.Civ.St. Art. 29221. Neither the Constitution nor the statutes define what is meant by the term “school buildings,” and in consequence a question of fact arises as to what sort of a building would be necessary or useful for the purpose of conducting a public free school, which question is necessarily left to the determination of the governing authorities of the school district. And since neither the bond record required to be examined, nor the bonds themselves show on their face, or as a matter of law, that the bonds were voted or issued for purposes not authorized by law, appellants cannot prevail under the rule announced by the authorities above cited.

It may also be observed that Art. 2797, R.S., provides for the use of school funds in constructing teacherages; and in the case of Adams v. Miles, Tex.Civ.App., 300 S.W. 211, affirmed by Commission of Appeals, 41 S.W.2d 21, it is held that a teacherage comes within the meaning of a “schoolhouse” or school building; and in other jurisdictions it is generally held that the term “schoolhouse”, or “school buildings” includes gymnasiums and teacherages. McNair v. School Dist., 87 Mont. 423, 288 P. 188, 69 A.L.R. 866-874; Alexander v. Phillips, 31 Ariz. 503, 254 P. 1056, 52 A.L.R. 244-259.

The judgment of the trial court is affirmed.

Affirmed.


author: HALL, Justice.

text:
    TALLEY et al. v. SHASTA OIL CO.
    No. 5684.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 14, 1940.

      Florence & Florence, of Gilmer and Jones & Jones and C. A. Brian, all of Marshall, for appellants.
    Lightfoot, Robertson & Gano, of Fort Worth, for appellee.
   HALL, Justice.

This is an appeal from an order of the District Court of Gregg County sustaining appellee’s plea of privilege. Appellant Mrs. Anice Talley, individually and as next friend and guardian of her minor children, brought this suit in the District Court of Gregg County against the appellee for damages occasioned by the death of Robert Lee Talley, the husband and father of appellants. It was alleged that Robert Lee Talley was employed by appellee on one of its oil wells in Ector County and on account of gross negligence of appellee the said Robert Lee Talley met his death. Ap-pellee in due time filed its plea of privilege to be sued in Midland County, Texas, the county of its residence. Appellants filed controverting affidavit in which it was sought to hold venue in Gregg County under Secs. 23 and 27 of Article 199S, R.C.S. of 1925. No contention was made that ap-pellee’s residence was not in Midland County. In said controverting affidavit it was alleged that one H. L. Culpepper was the agent and field superintendent of ap-pellee and that he resided in Gregg County. By an amendment to the controverting affidavit J. M. Holcomb is alleged to be the superintendent of Shasta Oil Company and reside in Gregg County. The issues thus joined were tried before the court without a jury and resulted in judgment for appellee, transferring said cause to Midland County, Texas, the admitted residence of appellee.

All appellant’s propositions assert that the action of the trial court in sustaining appellee’s plea of privilege is contrary to the overwhelming preponderance of the evidence. The evidence showed that Cul-pepper and three or four other employees of appellee resided in Gregg County and operated some twenty-five oil wells belonging to it; that Culpepp£r and the other employees ran the oil into the tanks and into the pipe lines, looked after the leases generally, received oil run tickets from the pipe line company, which they forwarded to appellee at Midland, Texas; that there was a painted sign on appellee’s lease in these words:

“Shasta Oil Company
“Shano Oil Company
“East Texas Headquarters.”

And on a mail box across the road from the lease was painted “Shasta Oil Company, Shano Oil Company.” The witness Cul-pepper testified that this sign and mail box were there when he began working for the company some two years before the trial; that he did not know who. put them there and that he had received no instructions with respect to them. The witness Culpepper testified further that he transacted no business for the company, and when bills came to him for the company he forwarded them to the main office at Midlánd, Texas. That on some occasions he would buy a few pipe connections to be used around the oil wells; that he made out daily gauge reports and'sent them to the office at Midland. This witness testified that he was not superintendent, and had nothing to do with the management of the company’s business, save and except as heretofore set out. The witness testified further that a man by name of Holcomb who resides in Gregg County, but makes his headquarters in Midland, travels around for the company and looks after their leases. Sometimes he comes to East Texas.

“Q. Does he tell you fellows what to do when he comes here ? A. At times he does, and at times he doesn’t. Sometimes he goes around and things are in good shape.
“Q. I understand, sometimes things go right and sometimes they don’t, but when they aren’t right, does he jack you up about it? A. Yes, sir.
“Q. And tells you how to work it out? A. Sure.
“Q. If, for example, he finds anything wrong on the lease here in Gregg County, he will tell you what to do? A. Yes, sir.
“Q. And you boys will do it? A. Try to do it the best you can.
“Q. Do you have an East Texas superintendent? A. No, sir; no East Texas superintendent.
“Q. Do you have any kind of a superintendent living «in Gregg County? A. I don’t know what Mr. Holcomb is, I don’t know what his position is with the company.
“Q. He is taller up than you? I mean, higher than you? A. I don’t know vuhat he is.
* * *
"Q. Do you know whether or not he is listed as superintendent for Shasta Oil Company ? A. I just couldn’t tell you. I have never seen nothing on it, I don’t know whether he is or not.
“Q. But he does tell you boys what to do when he is here in Gregg County? A. Yes, sir; he does.”

The above summary of the testimony is that upon which it is sought to maintain the venue of this case in Gregg County.

“The right to sue in another than the county of domicile is for the benefit of the plaintiff, and he must present the facts necessary to show that his case comes within the countenance' and support of the exceptions to the general rule that no person who is an inhabitant of this state shall be sued out of the county in which he has his. domicile.” Cannel Coal Co. v. Luna, Tex.Civ.App., 144 S.W. 721, 723, writ dismissed.

“The law never presumes agency; it is always a fact to be proved.” 2 T.J. p. 500 Sec. 103. (All italics ours.) To the same effect is 3 C.J.S., Agency, p. 253, § 315, par. b. Thus the burden of establishing that appellee had an agent or representative in Gregg County rested upon the appellant.

“Agency, properly speaking, relates to commercial or business transactions, while service deals with matters of manual or mechanical execution; and the essential distinction is that the agent is employed to establish contractual relations between his principal and third persons, while the servant is not. If one is employed to perform personal service for another and his physical movements in the performance of such service are subject to the other’s control, he is a servant, while if he is employed to represent another in contractual negotiations or similar transactions, he is an agent.” 2 C.J.S., Agency, p. 1029, § 2 subd. e.

In Rendlcman v. Niagara Sprayer Co., D.C., 16 F.2d 122, it is said: “A ‘servant’ is a worker for another who deals ordinarily with things, and -who has no power to bring about contractual relations with third persons; while an 'agent’ is one who deals not only with things, but persons, using his own discretion as to means, and frequently establishing contractual relations between his principle and third persons.” ,

The testimony set out above when read in the light of these authorities, in our opinion, establishes without dispute that Culpepper and those working with him were simply employees or servants of ap-pellee and not agents or representatives, and the meagre testimony of Culpepper with respect to the powers and duties of Holcomb, at most, presented a question of fact as to whether Holcomb was an agent or representative of appellee within the meaning of exceptions 23 and 27, Article 1995, R.C.S.1925. This issue was decided by the trier of the facts, in this instance the trial judge, against the contention of appellant.

The judgment of the court below sustaining appellee’s plea of privilege and transferring this cause to Midland County, Texas, is warranted by the evidence, and is in all things affirmed.


author: WILLIAMS, Justice.

text:
    RYAN v. TEXAS-CANADIAN OIL CORPORATION, Limited.
    No. 5692.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 14, 1940.
    Cantey, Hanger, McMahon, McICnight & Johnson and J. A. Gooch, all of Fort Worth, for appellant.
    Weeks, Hankerson & Potter and Chas. F. Potter, all of Tyler, for appellee.
   WILLIAMS, Justice.

Appellant, John C. Ryan, defendant below, asserts that the trial court erred in overruling his plea of privilege to be sued in the county of his residence, namely, Tarrant County, where the promissory note sued on, the basis of the suit, shows it to have been made payable to the Texas-Canadian Development Company instead .of to the plaintiff, Texas-Canadian Oil Corp’n, Limited, appellee herein.

Proof was made that defendant executed the note sued upon. The note, which was introduced in evidence, is payable to the order of Texas-Canadian Development Company. It is made payable at Tyler, Texas, in the county where this suit was filed. The endorsement on its back, which also was introduced in evi- • donee, reads: “Dec. 31, 1937. Pay to the order of the Texas Canadian Oil Corp., Limited. (signed) Texas Canadian Development Co., Inc., by W. A. Merryman, Sec.-Treasurer.” The note was in the possession of and then being exhibited by ¡plaintiff through its president who testified. We need not consider the provisions of Article 5935, Sec. 59. As stated in Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810, 811: “The ownership of the note * * * are matters which go only to the merits of the action. An inquiry into those matters has no proper place in .determining the question of venue.” See, also, Vitopil v. Gray, Tex.Civ.App., 111 S.W.2d 1202. Under sub. 5 of Article 1995, R.C.S., Vernon's Ann.Civ.St. art. 1995, subd. 5, this suit is maintainable in Smith County.

The action of the court in overruling' defendant’s plea of privilege to be sued in Tarrant County, entered in 1939, is sustained.

The judgment is affirmed.


author: FUNDERBURK, Justice.

text:
    RUDCO OIL & GAS CO. v. LEMASTERS.
    No. 2062.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 6, 1940.
    Rehearing Denied Jan. 10, 1941.

      Frank Sparks, of Eastland, for plaintiff in error.
    Allen D. Dabney, of Eastland, for defendant in error.
   FUNDERBURK, Justice.

This suit was brought by W. S. Lemas-ters against Rudco Oil and Gas Company to recover damages to a 48-acre tract of land near Desdemona, Texas, alleged to have resulted from negligence of the defendant in that the defendant “failed to impound, channel, take care of and drain into well built and regulated slush pits and traps of. sufficient capacity so as would have and could have arrested the overflow” of certain “waste oil and waste material” from defendant’s gasoline-plant on nearby premises. A particular further allegation was to the effect that defendant had, without the consent of plaintiff, constructed three pipe lines over part of plaintiff’s land “with cut outs for drips and wash outs for gasoline and oily substances” which were caused to be blown “discharging into the main water streams hundreds of gallons of waste and drip oil and gasoline * * * permitted to flow down the hillside and natural stream on and across plaintiff’s land and into tank of water” with stated damaging consequences. The alleged damages consisted of the total destruction of the value of six acres of the land, the impairment to the extent of one-half of the value of the rest of the land, and the destruction of the usefulness of a lake of water on the land, aggregating the sum of $715.

The defendant, in addition to other defensive matters, pleaded that if plaintiff had suffered damages of the nature alleged “companies and persons other than -this defendant were responsible for such damages, if any, and caused and contributed to cause the same.”

Upon trial by jury, a verdict was returned for the plaintiff, awarding damages in the sum of $250. From the judgment in accordance with said verdict, defendant seeks a review of the case by-writ of error upon petition and bond and waiver of citation in error and service thereof, filed January 1, 1940.

For convenience the plaintiff-in-error will be referred to as defendant, and defendant-in-error as plaintiff, the same as 'in the trial court.

The record suggests a question of the jurisdiction of this court not urged by plaintiff, and, therefore, not dealt with in the briefs of either party. The question is whether this court has jurisdiction to review the case upon writ of error not perfected before January 1, 1940. According to the record, defendant, by its attorney, participated in the trial of the case; judgment was rendered October 9, 1939, and petition for writ of error, bond and a waiver of the issuance and service of citation in error, were all filed January I, 1940.

Under a recent decision by the Waco Court of Civil Appeals, in United Employers Cas. Co. v. Skinner, 141 S.W.2d 955, subsequently re-affirmed by the same court, in United Employers Cas. Co. v. McGee, 143 S.W.2d 653, and followed by the Amarillo Court of Civil Appeals, in Blankenship v. Stallings, 141 S.W.2d 957, this court is without jurisdiction to review this case. The same question came before this court upon a motion to dismiss a writ of error in Edith Copus et al. v. J. H. Chorn et al., and by a majority and a minority opinion rendered November 15, 1940, the motion to dismiss was denied, the majority opinion sustaining the jurisdiction. Copus v. Chorn, 145 S.W.2d 958.

The Skinner case was decided under the assumption that the act of the Legislature (Acts 1939, p. 59, c. 2, Vernon's Ann.Civ.St. art. 2249a), upon which the ’ question arises went into effe’ct in June, 1939, by reason of an emergency clause and passage of the act by the necessary vote. This assumption, it is believed, was incorrect and being material was sufficient of itself to account for the action of the Supreme Court in refusing a writ of error in the case. According to a note of the Secretary of State accompanying the publication of the acts of the Legislature, said act was passed over the Governor’s veto by a vote in the Senate of 17 to 8. The Texas Senate consists of 31 members, and, according to section 39, Art. 3 of the Constitution, Vernon’s Ann. St., a bill may be passed as an emergency act only if same be voted by “two-thirds of all the members elected to each House.” It, therefore, appears that 17 is not two-thirds of the 31 members elected to the Senate, and the act did not become effective as an emergency measure.

The act, if it had contained no provision to the contrary, would, under said section of the Constitution, have become effective ninety days after adjournment, or about September 21, 1939. However, section 3 provides: “that this act shall take effect from and after January 1, 1940.” The law did not take effect, therefore, ninety days after adjournment, unless the Legislature was without power to enact thaf it take effect at a specified later date. It would be arguing a self-evident proposition to say that it could not take effect on or about September 21, 1939, and yet not take effect until “from and after January 1, 1940.” We assume it has not been decided in this State that the Legislature is without power to make a statute effective at a date later than ninety days after adjournment of the Legislature. We shall, therefore, here assume, without deciding, that the Legislature does have that power, and has exercised it in the act in question.

In order fully to appreciate the effect of the act under consideration, it is well to consider the pre-existing statutory provisions affected by said act. Such provisions are so numerous that to state the substance .or effect of more than a few of them would unreasonably extend this opinion. Some of said provisions applied exclusively to procedure for the review of cases by writ of error. Of these may be mentioned R.S.1925, Arts. 2255 to 2264, inclusive. Others of said provisions expressly or by reference, and in some cases with special variations, applied alike to appeal and writ of error. Of these may be mentioned R.S.1925,-Arts. 1839 to 1850, inclusive, 2241, 2246, 2249, 2252 and 2265 to 2285, inclusive, Vernon’s Ann.Civ.St. Arts. 1839 to 1850, inclusive, 2241, 2246, 2249, 2252 and 2265 to 2285, inclusive.

Said Art. 2246 (as relating to writ of error) provided, in effect, that the plaintiff-in-error “shall have fifty (50) days after * * * perfection of writ of error, within which to prepare and file his statement of facts,” etc. Article 2249 (as to writ of error) provided: “Writ of Error may be taken to the Court of Civi^ Appeals from every final judgment” etc. (followed by limitations and exceptions applying equally to appeals). Article 2259⅛ provided to the effect that when petition for writ of error and bond be filed the clerk should issue citations to defendants^ in error. Article 2260 prescribed the requisites of such citations. Article 2261 provided for the manner of service and returns thereof. Article 2267 (as to writs ' of error) provided: “when the bond, or affidavit • in lieu thereof, provided for in.,' the two preceding articles, has been filed and the previous requirements of this chapter have been complied with, the * * *, writ of error * * * shall be held to be perfected.” Article 2270 gave a plaintiff in error the right to suspend execu-, tion of the judgment by filing supersedeas ' bond. Article 2278 imposed upon the clerk the duty after writ of error had been, perfected to prepare, upon application therefor, a transcript. Article 1839 (as previously amended) insofar as applicable, to a plaintiff in error provided that “ * * * in * * * writ of error the * * * plaintiff in error shall file the transcript, and statement of facts with the Clerk of the Court of Civil Appeals within sixty (60) days from * * * service of the, writ of error,” etc. Article 1844 provided: “The * * * plaintiff in error need not file assignments of error with the Clerk, of the Court below but he may embody in his brief in the appellate court all assignments of error,” etc.

Each and every one of these statutes and others not mentioned, insofar as they related to review by writ of error — which all of them did — were repealed to the extent that they applied to any “party who participates either in person or by his attorney in the actual trial of the case in the trial court.” Such repeal did not result merely from implication, but expressly, the language of the act being “all- laws and parts of laws, insofar as they conflict with this act, are repealed.”

When did such repeal become effective? Was it on or about September 21, 1939, — ninety days after adjournment of the Legislature? Or, was it “from and after January 1, 1940,” as expressly provided in the act? Whatever the true answer, there would seem to be no room for any difference of opinion that such repeal became effective simultaneously with the cessation of the right of parties who should participate in the trial of their cases to have same reviewed by writ of error. Until the act taking away such right went into effect, there was no conflict of the act with any law or part of a law, and, therefore, no means of identifying laws or parts of laws in conflict therewith. There was, until such time, no subject matter upon which the provision for repeal could operate.

■ If the act went into effect “from and áfter January 1, 1940”, as it plainly says, then undoubtedly that is the time when the repeal of conflicting laws and parts of laws became effective. If such repeal became effective from and after January 1, 1940, then certainly up to that time there was no change in any of the laws. Up to that time any party to an appealable suit had the right and option expressly granted by such laws to a review by writ of error. Such right existed as to a suit tried on December 31, 19.39, just the same as to a suit tried at any time prior thereto. This is just as certainly and necessarily' true as that prior to January 1, 1940, there ‘had been no repeal of the statutes authorizing such method of review.

On the other hand, if such repeal became effective from and after September 21, 1939, then in no case tried after .that time did a party. who participated in the trial have the right to have the case reviewed by writ of error. All laws giving that right and prescribing the procedure to be followed having been repealed the 1 right or remedy of review by writ of error had simply ceased to exist. That result would render the fact immaterial 'whether writ of error was perfected before or after January 1, 1940.

The Skinner decision, if we understand it, does not hold that any law of part of a law was repealed before January 1, 1940. This is evident from the fact that it does hold that *the right of review by writ of error continued up to said time. Such a right, dependent as it is upon statutes, cOuld not exist if those statutes had previously. been repealed, or, in other words, J:ould not exist after the repeal of such statutes.

In the Skinner case the act in question días been given a construction simply to the effect that after January 1, 1940, the right to review by writ of error in cases to which the act purports to apply has been abolished — a proposition not to be questioned — and further that up to January 1, 1940, the right to review by writ of error continued, but the time in which to perfect writ of error has been progressively shortened from six months, or more, to the vanishing point on December 31, 1939. It is implicit in the decision that in a case, for example,1 in which judgment is rendered ten minutes before midnight on December 31, 1939, a dissatisfied party who participated in the trial of the case had the right to review by writ of error, but his time, in which to perfect writ of error, had been, in effect, cut down to ten minutes. In our view, if it should be conceded that the act requires such a construction, then it would be unconstitutional under the authority of the following decisions: Odum v. Garner, 86 Tex. 374, 25 S.W. 18; Union Assur. Society v. Equitable Trust Co., 122 Tex. 293, 58 S.W.2d 58; Hunter v. Moore, 122 Tex. 583, 62 S.W.2d 97; Wright v. Hardie & Co., 88 Tex. 653, 32 S.W. 885; Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905.

The act is susceptible to a construction which will involve no conflict with con-, stitutional restrictions. Ordinarily, at least, statutes speak from the date they become effective, and operate prospectively. As between a construction which would render the act unconstitutional and one which would give it.the usual effect of prospective operation and at the same time be free from constitutional objection, it is not unreasonable, we think, to adopt a construction to the effect that the act is applicable to cases tried “from and after January 1, ■1940.” Under that construction the simple test of whether the statute applies is the fact of the participation, or not, of a party in the trial of the case. Under this view the emergency clause will simply be treated as a nullity because (if for no other reason) it failed of the necessary vote to give it any effect. If it be answered that under such interpretation no reason appears why the Legislature should have provided for a postponed effective date of the act, it may be replied that all the reasons influencing legislative action do not necessarily have to appear. Besides, the courts would be hard put to assign valid reasons for a great deal of legislative action.

Because of the impossibility of such a thing, the Legislature could not make an act effective only from and after two different dates. If the act became effective from and after the earlier date, then, although it might be in effect from and after the later date, that manifestly would not be the time it became effective. If the act became effective from and after the later date, then, of course, the time it became effective was not the earlier date.

No principle of notice, it would seem, can be material, or here involved. Let it be granted that the passage of the act was full notice of its provisions from and after the time of such passage. Would simple notice that at a future date a law will be changed be notice of any change of the law before that time ? Rather, would not such notice be to the effect that up to such future date the existing law would remain unchanged ? Specifically applied, would not the notice be that up to the last minute of the time a party who had participated in the trial of his own case under the full authority of the unchanged law have a right to review of his case by writ of error? The Skinner decision seems to imply a construction of the act in question to the effect that the laws authorizing the review of cases by writ of error were in no respects repealed absolutely before January 1, 1940, but notice of such future repeal afforded by the passage of the act so operated as to attach a condition to the unrepealed laws. In other words, it operated to convert the absolute provisions of such law to provisions operative conditionally and contingently. But we submit as an axiomatic proposition that laws operating absolutely cannot be made to operate only conditionally except by an act of the Legislature effecting some character or degree of the repeal of such laws.

The logic of the ' proposition is irresistible, it seems to us, that the act in question neither by the provisions in the body thereof, nor the caption by which its provisions are limited, carries any character of notice that any law is to any extent or degree repealed until from and after January 1, 1940.

Without further extensión of the discussion upon this general phase of the case we refer to said opinions in Copus v. Chorn, supra.

In the last-named opinions, as well as in the preceding part of this opinion, we have construed the Skinner decision as holding that the expiration of the time in which to perfect writ of error was December 31, 1939. If it should be granted that the Skinner decision is correct in principle, it is nevertheless true that it was immaterial under the facts of that case whether such time expired with December 31, 1939, or with January 1, 1940. Therefore, anything in the opinion which could be construed as making a distinction between said dates wás necessarily dicta.

In the present case, writ of erro? was perfected on January 1, 1940. The law, by express provision, went into effect “from and after January 1, 1940.” It is the general rule that when a right is granted, or duty imposed “from and/or after” a specified date, the first day is excluded. Hill v. Kerr, 78 Tex. 213, 14 S.W. 566; Halbert v. San Saba, etc., Ass’n, 89 Tex. 230, 232, 34 S.W. 639, 49 L.R.A. 193; Lubbock v. Cook, 49 Tex. 96; Dowell v. Vinton, 1 White & W. Civ.Cas.Ct.App. § 327, pages 140, 142; Eyl v. State, 37 Tex.Civ.App. 297, 84 S.W. 607.

This rule is especially applicable where the question of construction relates to the preservation of a right or exclusion of a forfeiture. O’Connor v. Towns, 1 Tex. 107; Winston v. State, 32 Tex.Cr.R. 59, 22 S.W. 138; Hill v. Kerr, supra; Shepard v. Avery, 89 Tex. 301, 34 S.W. 440. “In computing time ‘from’ or ‘after’ a specified day or event”, says the text of Tex.Jur., “the general rule is to exclude the first day and to include the last.” 41 Tex.Jur. p. 347, sec. 7. Here we are not concerned with two dates but one “from and after” which an act of the Legislature is in effect.

It is a settled general rule that fractions of a day are not considered in the computation of time. 41 Tex.Jur. p. 345, sec. 5. The constitutional provision against retroactive laws would in many cases be violated unless a statute providing a particular date, from and after which it was to be in force, should be construed to-exclude the first day. For example, suppose such a ’statute affecting substantive rights be passed with an emergency clause, at the closing hours of a particular day. It simply could not be in effect so as to include the day of its passage without having some retroactive effect. Therefore, we think that in any event this court has jurisdiction of this case.

Upon the merits of the case defendant contends in the first place that the court erred in refusing a peremptory instruction in its favor on the ground that there was no evidence to show what part, of the oil, waste material, drip oil or gasoline was released by defendant on plaintiff’s property, and what part was released by other persons; and that there was further no evidence to show that the oil, gasoline, waste material and drip gasoline was of such a character and content as would inflict the damage to the plaintiff’s property of which complaint is made.

There being, as ’we think, evidence to show injuries to plaintiff’s land, and lake of water, resulting from alleged negligence of defendant, the court could not properly instruct a verdict upon the ground here urged, unless it could be said there was conclusive evidence to the effect that such injuries resulted in part from the acts or omissions of independent 'third persons. If that were the case, then the burden of proceeding would have been on the plaintiff to show that some definite part of the injury and damages resulted from the negligence of the defendant, in the absence of which being necessary to enable the jury to determine the amount, it would have been the duty of the court to instruct a verdict for the defendant, or perhaps, limit the recovery to nominal damages. (As to the latter alternative we do not here undertake to speak authoritatively).

If the injuries and damages with which the plaintiff sought to charge the defendant were caused in some indefinite part by third parties acting independently of the defendant that’ was a matter of defense. If the evidence established the fact conclusively the plaintiff could not recover, unless he established the amount of damages caused by the negligence of defendant and excluding that caused by third parties. If the evidence failed to establish conclusively that defendant alone caused the injuries, or that such third persons caused all, or part, of the injuries, but only raised issues of such facts, then the burden rested upon defendant to procure findings that the injuries or part of, the same were caused by third persons. If the evidence raised such issues and the court failed to submit them the error would be waived unless defendant requested their submission. According to the evidence set out in the briefs of the parties, we think the evidence only raised issues of such facts, and, there being evidence to support a finding that the injuries and damages resulted alone from the negligence of the defendant, the court, under the circumstances, did not err in refusing the defendant’s request for an instructed verdict.

As to the point that the court should have instructed a verdict because “there was no evidence to show that the oil, gasoline, waste material and drip oil was of such character and content as would inflict the damage to plaintiff’s property complained of” there certainly was evidence tending to show that damage was inflicted from such cause which necessarily includes evidence of the damaging characteristics of such substances.

Besides, we think we must take judicial knowledge that oil, waste material (from a refinery), drip oil or gasoline may pollute water used for domestic purposes and damage land.

It is next contended by a number of propositions, each referable to a particular special issue, that certain of the special issues were multifarious or duplicitous, and the court erred in giving them over objections pointing out such defects. Special issue No. 5 was: “Do you find from a preponderance of the evidence that the water in plaintiff’s tank on his land became polluted or contaminated by waste oil, waste material, drip oil or gasoline flowing therein on and after January 1, 1937?” Special issue No. 6, submitted conditionally upon an affirmative answer to issue No. 5, was: “Do you find from a preponderance of the evidence that defendant permitted said waste oil, waste material, drip oil or gasoline, if any, to flow from defendant’s gasoline plant and (or) pipeline owned or controlled by it, into plaintiff’s said tank?” Issue No. 6 was followed with special issue No; 7 inquiring as to whether the subject matter of the former was negligence; special issue No. 8 inquiring as to whether such negligence was a proximate cause of the injuries, and special issue No. 9 inquiring as to total damage, if any, from such cause.

It is apparent from the statement of the case that the alleged cause of action comprised different grounds of recovery. For example, one (or more) ground of recovery related to defendant’s gasoline plant situated upon other land than that of plaintiff. Another (or others) related to defendant’s pipelines allegedly “without the consent of plaintiff constructed * * * over part of plaintiff’s land.” The negligence specifically charged to defendant relating to its gasoline plant was that it “failed to impound, channel, take care of and drain into well built and regulated slush pits and traps of sufficient capacity so as would have and could have arrested the overflow” of certain “waste oil and waste material together with the used water mixed and mingled with oily substances.” With reference to the three pipelines the specific negligence alleged (or rather more accurately willful trespass) was that the pipelines were laid “with cut outs for drips and wash outs for gasoline and oily substances [and] * * * defendant would constantly and continuously * * * caused [cause] said lines to be blown discharging into the main water streams hundreds of gallons of waste and drip oil and gasoline.”

It must be admitted that it is difficult, if not impossible, to identify the several issues submitted with the issues pleaded; but it does appear certainly, we think, that each of said issues sought to elicit findings regarding the subject matter of issues which, as pleaded, were elements of different grounds of recovery. We think it deducible from the authorities as a sound proposition of law that where an alleged cause of action consists of more than one ground of recovery, the issues constituting elements in different grounds of recovery may not be combined and submitted as a single issue over timely objection that same is duplicitous and multifarious.

Not as directly supporting the proposition just stated, but the general conclusion that issues like those here involved are duplicitous or multifarious, see the most recent case of Empire Gas & Fuel Co. v. Muegge, Tex.Com.App., 143 S.W.2d 763.

There are decisions, it must be admitted, which are a little difficult to distinguish, but in view of the above most recent holding of the Commission of Appeals, approved by the Supreme Court, we think it would serve no useful purpose to discuss them. It is sufficient to say that we think the above proposition is applicable to this case and is in conflict with no well-considered decision.

It is, therefore, our conclusion that the judgment of the court below should be reversed and the cause remanded, which is accordingly so ordered.


author: BROWN, Justice.

text:
    TRAVELERS INS. CO. et al. v. KEY et al.
    No. 14157.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 20, 1940.
    Rehearing Denied Jan. 24, 1941.
    Renfro & Kilgore, of Dallas, for appellants. V
    George M. Hopkins, of Denton, for ap-pellees.
   BROWN, Justice.

Appellees, Key and wife, rented a certain tract of land and moved thereon and made it their home. They brought suit in the district court of Denton County against The Travelers Insurance Company and one C. L. Fisher, alleging that Fisher, as agent for said Insurance Company, plowed up and destroyed a culvert thereon and made im"passable a certain public road which had been used by the public for many years and specially by Key and wife.

That the damage done to such road had injured the plaintiffs by reason of the fact that they could not use the road and were compelled to move their mailbox to a place, on a highway into which the injured road ran, which was much further from their residence, and that they were compelled, in going to and from Justin, Texas, and Den-ton, Texas, to and from market and to and from the cotton gin, and to and from church, etc., to travel a distance of three miles further than they customarily were required to travel when the road that was damaged by the defendants was used by them.

With such general allegations they sought actual damages in'the sum of $1,000, and then pleaded certain conduct upon the part of the defendants, not necessary to be noticed here, as entitling them to exemplary damages. The defendants answered by general demurrer and special exceptions to the sufficiency of the petition, generally denied the allegations, and alleged that the road was used at all of the times when the plaintiffs charge that it was made impassable, also limitations to the action.

The cause was tried to a jury and three issues were submitted.

(1) “Do you find from a preponderance of the evidence plaintiff, W. J. Key, has been damaged on account of plowing the roadway and removing the culvert?” The jury answered “Yes”.

(2) “What amount of money do you find from a preponderance of the evidence would reasonably compensate the plaintiff Key for damages sustained by, him by virtue of plowing the roadway and removing the culvert, if any you have found in answer to No. 1?” The jury answered, “$300.00.”

To the third issue the jury found against the defendants on the plea of limitations.

The defendants made objections ,to the charge of the court and requested peremptory instructions in their behalf, and the plaintiffs moved for judgment on the verdict and the defendants for judgment notwithstanding the verdict.

The trial court rendered judgment in favor of Mr. and Mrs. Key against both defendants, jointly and severally, for $300.00 and costs. Hence this appeal.

It is undisputed that in traveling from his home Key had the use of a good, all-weather road, and the inconvenience suffered by him was that he simply had to travel further on such good road to get to his R.F.D. mailbox'and to and from market, the cotton gin, church, etc.

Appellants’ first contention is that the plaintiffs’ pleading is insufficient to show damages specially suffered, as distinguished from such damages as the public generally suffered.

Such cases as City of San Antonio v. Strumberg, 70 Tex. 366, 7 S.W. 754; Owens v. Varnell, Tex.Civ.App., 145 S.W. 256, writ dismissed; Ingram v. Turner, 59 Tex.Civ.App. 7, 125 S.W.2d 327, writ refused; Sigel v. Buccaneer Hotel Co., Tex.Civ.App., 40 S.W.2d 168, writ refused, and Evans v. Scott, Tex.Civ.App., 97 S.W. 116, are cited in support of this contention.

The rule contended for is well established and is found in Vol. 21, Tex-.Juri., para. 199, at pages 714, 715, para. 204, at pages 718, 719, para. 206, at pages 720, 721.

If this were a suit seeking injunctive relief, we would have but little difficulty in arriving at a disposition thereof, but it is admitted that the condition complained about does not now exist, and that it lasted for only a short while, and the plaintiffs are asking for damages claimed to have been suffered while they say the road was made impassable' by the defendants.

We are of opinion that the plaintiffs’ petition is vulnerable as against a special exception, but as against a general demurrer we are inclined to hold that it attempts to plead injuries special to the plaintiffs.

There does not, in our opinion, appear to be an insuperable barrier to plaintiffs’ right of recovery and we hesitate to reverse and render.

We do not believe that plaintiffs’ pleading is as specific in relation to their special damages as the rule requires.

We have read the statement of facts and we do not believe that the testimony adduced to establish special damages is of such a nature that it will support the verdict of the jury, even if the issues had been properly prepared.

The testimony of wholly disinterested witnesses is to the effect that the road was never impassable but was continuously used, and while the plaintiffs deny that they ever used it, after it was plowed up (as they insist), they did admit that one of their daughters drove her car over it, that Key went with her to open the gates for her.

We see no reason why Mrs. Key was permitted to recover damages jointly with her husband. Whatever damages, if any, she may have suffered are such as are recoverable by her husband, under proper pleading and proof. No issue touching damages sustained by her was submitted.

The general issues touching damages and the amount of plaintiffs’ damages should not have been given, but should have been confined to the special damages alleged to have been suffered, if supported by proof, and the answers made by the jury are not supported by any testimony of probative force.

We are of opinion that a tenant may recover damages for specific injury to his leasehold estate in like manner as may the owner of the fee.

In view of the holdings in Texas & Pac. Ry. Co. v. Mercer et al., 127 Tex. 220, 90 S.W.2d 557, 106 A.L.R. 1299 (Commission of Appeals adopted by Supreme Court), the-judgment of the district court is reversed and the cause is remanded.


text:
    WHITE et al. v. SHANNON.
    No. 3975.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 5, 1940.
    Rehearing Denied Jan. 9, 1941.
    J. M. Deaver and Fred C. Knollenberg, both of El Paso, for appellants.
    William E. Ward and R. E. Cunningham, both of El Paso, for appellee.
   PRICE, Chief Justice.

This is an appeal from the District Court of El Paso County. Lee Shannon, as plaintiff, recovered a judgment in the sum of $666.67 against James C. White and Charles Kibby. White and Kibby perfected this appeal. Shannon presents a cross-assignment alleging error in that under the evidence and verdict he was entitled to a judgment in the sum of $833.33 instead of the amount for which the judgment was rendered. Trial was to a jury, the case submitted on special issues, and judgment was entered in favor of plaintiff on the verdict in the amount above stated.

The parties will be herein designated by their respective last names.

Involved in the dispute is the division of a real estate commission in the sum of $7,000 received by White and Kibby from W. D. Malone. Kibby and White were at all relevant times real estate brokers, Kibby working out of the office of White on some sort of an agreement for the sharing of commissions realized through the efforts of Kibby or the joint efforts where the purchaser was obtained through the efforts of Kibby. Shannon knew L. R. Allison was desirous of purchasing a large farm. He approached Kibby, and it was agreed that in the event Allison purchased the farm through White and Kibby that Shannon should have one-third of the amount paid by the owner. White at all relevant times knew of this agreement between Kibby and Shannon and approved and acted thereon. Shannon introduced Allison to Kibby and White. Through their efforts Allison was induced to purchase the farm of W. D. Malone for a large sum. Malone paid Kibby and White $7,000 as commission for finding the purchaser.

Kibby and White paid $1,500 to Shannon as the portion of the commission to which he was entitled, and he agreed to accept same in satisfaction thereof. He alleged that he was induced to accept same by the fraudulent representations and conceal-ments of Kibby and White. These representations and concealments being, withholding from him the information that the commission in truth and in fact was $7,000 and falsely represented that same was only $5,000. January 27, 1939, Kibby addressed the following letter to Shannon:

“We hereby agree to pay you Fifteen Hundred Dollars out of the Commission on the sale made between W. D. Malone and Mr. Allison, when the deal is finally consummated.
“(Signed) C. P. Kibby”.
Endorsed on the letter is the following:
“I hereby accept the above agreement.
“(Signed) Lee Shannon (signed) Jas. C. White.”

In pursuance of this letter White delivered to Shannon $865 in vendor’s lien notes on which Shannon was liable, and gave him his check,in the sum of $635, on which check was written: “In full Com. on Malone-Allison.” Shannon cashed this check with such endorsement thereon.

As has been stated, Shannon pleaded fraudulent representation and fraudulent concealment.

Kibby and White pleaded the contract and the payment thereon as an accord and satisfaction of the claims of Shannon.

The jury found that Kibby, purporting to act in his own behalf and in that of White, made the contract to share one-third of the commission with Shannon; that Kibby had authority from White to make such contract and White knew of such contract and approved same; that January 27, 1939 White represented to Shannon that the commission was $5,000; that such representation was relied upon by Shannon, and but for same Shannon would not have entered into the compromise agreement of January 27,1939; that at the time Shannon cashed White’s check for $635 he did not know same bore the notation, “In full Com. on Malone-Allison” ; that Shannon at the time he cashed the check did not know that the amount exceeded $5,000; further, there was no bona fide dispute between Kibby and Shannon or between Shannon and White as to there being a commission due Shannon; that White did not refuse on January 27, 1939 to answer interrogatories propounded by Shannon or his brother-in-law; that on that date White refused to tell Shannon’s brother-in-law what the commission was on the Malone deal; that White remained silent when interrogated by Shannon or his brother-in-law as to the matter.

White and Kibby base their appeal on some eighteen propositions, some of which are mere abstractions. However, we shall attempt to summarize them. It is contended that Shannon was not legally entitled to set aside the compromise agreement as to the commission without tendering back the $1,500 received thereunder; that it was not shown that Kibby was authorized to bind White or White and Kibby in the manner of the agreement as to the division of the commission; that there is no pleading nor proof to set aside the accord and satisfaction consummated by Shannon cashing White’s check with the notation thereon that it was in full settlement of the commission due.

We deem the evidence ample to sustain the findings of the jury that White at all times knew of the contract to give Shannon one-third of any commission collected; that Kibby had authority to so contract, and that White at all times knew and approved of this contract.

This proposition is advanced by Kibby and White: “Where a check is accepted and cashed, reciting that it was in full payment of an account which was disputed, no amount of protest would vary the legal effect of accepting and cashing the check.”

There can be but little question of the correctness of the proposition as an abstraction. The facts assumed do not apply here. Dispute there had been as to the amount due Shannon on the commission. This dispute was settled by the letter of January 27, 1939, and at the time there was no dispute. That the claim be unliquidated or in dispute is the very essence of the proposition advanced. Pitts v. National Independent Fisheries Co., 71 Colo. 316, 206 P. 571, 34 A.L.R. 1035; Supplementary citation, Root & Fehl v. Murray Tool Co., Tex.Com.App., 26 S.W.2d 189, 75 A.L.R. 905.

The check was a fulfillment of the contract of January 27th, and- so long as that contract stands was in full settlement of the Shannon portion of the commission. An accord and satisfaction is founded on contract, and, as in any other contract, the minds of the parties must meet on the matters comprehended therein.

Under the findings Shannon could make no other assumption than that the notation referred to the $1,500 provided for in the contract of the 27th.

Shannon in his pleading did not tender a return of the $1,500 received from White.

White and Kibby advanced this proposition: “To avoid the binding effect of a compromise and settlement, the plaintiff must offer to restore what he has already received.”

Again, as applicable to some situations, there can be little quarrel with the proposition. However, we cannot think that same applies where it is charged that one has, through fraud, been induced to accept less than what is legally due him, he must return what he has legally received. Unquestionably, if he maintains his position he must account for what he has received. Grabenheimer v. Blum, 63 Tex. 369; Western Medical Arts Bldg. Corp. v. Bryan, Tex.Civ.App., 5 S.W.2d 862.

The finding of the jury was that, under the contract with White and Kibby, Shannon was to receive one-third of the amount collected; that he was induced to accept $1,500 as representing that commission by the misrepresentations that the total amount was $5,000, when in truth and in fact the commission was $7,000. It is undisputed that the commission was $7,000. The evidence conflicted as to the concealment and misrepresentation, but we deem it ample to support the findings of the jury thereon. The evidence indicates that several days before the contract of January 27th, the commission had been settled upon between Malone and White at $7,000.

We think the evidence ample to sustain the finding that White and Kibby knew of and participated in the misrepresentation and concealments charged by Shannon. We believe the finding of the jury that Shannon cashed the check without having notice of the notation thereon is an immaterial finding.

It is complained that the court permitted Shannon to file trial amendment. This, we think, was a matter within the discretion of the trial court.

It is urged that there is no evidence to support any misrepresentation on the part of Kibby. The jury found that White made the representations in the presence of Kibby, and we think on the whole record that there can be little question but that Kibby was responsible therefor.

In our opinion the brief of White and Kibby does not point out reversible error in the record.

We come now to the consideration of Shannon’s cross-assignment of error. Under the sustained findings of the jury Shannon was entitled to one-third of the $7,000 commission. This would amount to $2,333.-33½. Undisputedly Shannon received $1,-500, which would leave him entitled, under the findings of the jury, to $833.33½. The judgment entered on the verdict was for $666.67. We sustain the cross-assignment of Shannon, and it is ordered that the judgment be here reformed, and that Shannon recover of and from Kibby and White the sum of $833.33⅜.

So reformed and modified, the judgment is affirmed.


text:
    SOWELL v. BEST et al.
    No. 5861.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 19, 1940.

      W. B. Harrell and Russell Allen, both of Dallas, for appellant.
    Aubrey A. Wilson, of Gladewater, for appellees.
   HALL, Justice.

Appellant herein, T. W. Sowell, as a stockholder of Riverside Production Company, instituted this suit in the District Court of Gregg County in his own behalf and in behalf of other stockholders, against C. E. Best and E. D. Dillard, doing business as B & D Well Servicing Company, and J. L. Leach as Constable of Precinct No. 3, Gregg County, Texas, as appellees herein.

Appellant alleged in his sworn petition that Riverside Production Company’s right to do business in Texas has been forfeited on account of its failure to pay a franchise tax, but that said corporation had not been dissolved nor was there any proceedings pending having for its purpose the dissolution of same. It was alleged further by appellant that certain personal property belonging to said corporation had been seized and sold by appellee J. L. Leach as Constable of Precinct No. 3, Gregg County, who was acting under authority of an execution issued out of the County Court of Gregg County, directing the seizure and sale of property of J. B. Sowell to satisfy a judgment theretofore rendered by said County Court against J. B. Sowell. Appellant alleged further that the property levied upon and sold by said constable was the property of the Riverside Production Company, a corporation, and was at all times in its actual possession and custody and was of the value in excess of $500. That appellees Best and Dillard purported to be the purchasers at said constable’s sale and were threatening to go upon the premises of the corporation and remove the corporate property therefrom claimed to have been purchased by them at the constable’s sale. Appellant in his prayer sought a temporary injunction against these acts by the constable and Best and Dillard, restraining them from attempting to take possession of said property and to remove it from the premises of the corporation.

Appellees answered that the amount in controversy in their suit against J. B. Sow-ell and the judgment rendered by the County Court was less than $500, and that the District Court had “no authority to issue an injunction * * '* restraining any act of the County Court of Gregg County, Texas, in the enforcement of its original judgment and that the jurisdiction of said cause is rightfully in the County Court of Gregg County, Texas,” and praying that appellant’s application for injunction be dismissed. The court below granted the motion of appellees and dismissed this cause of action for want of jurisdiction.

Appellant’s second proposition is that “the District Court has jurisdiction of a suit to enjoin interference with a corporation’s personal property by persons claiming to be the purchasers of such property at a constable’s sale under a County Court execution against a third party where the value of the property is in excess of $500.” Appellant alleged in his petition in the court below that the execution levied by the constable on the property of the Riverside Production Company was to satisfy a judgment rendered in a County Court case in Gregg County in which the corporation was in no wise involved; that the property levied on was the property of the corporation of which appellant was a stockholder, and was not the property of the defendant in execution, J. B. Sowell. For the purposes of this appeal, those allegations must be taken as true. Pratt-Hewit Oil Corp. v. Hewit, 122 Tex. 38, 52 S.W.2d 64. And it should also be noted that the injunction sought by appellant would not have affected the judgment in the County Court against J. B. Sowell, but it was sought by appellant to prevent the satisfaction of said execution out of the property owned by the Riverside Production Company. In such circumstances, it is believed that the District Court would have the authority to hear this application to determine whether an injunction should or should not be granted. In other words, the District Court of Gregg County has jurisdiction to hear and determine the matters alleged in appellant’s application.

The judgment of the court below is reversed and the cause remanded..