author: O’QUINN, Justice.

text:
    NACOGDOCHES COUNTY v. JINKINS.
    No. 3655.
    Court of Civil Appeals of Texas. Beaumont.
    May 17, 1940.
    Rehearing Denied May 29, 1940.

      Adams & McAlister, of Nacogdoches, for appellant.
    Seale & Thompson, of Nacogdoches, for appellee.
   O’QUINN, Justice.

Appellee, Jinkins, District Clerk of Nac-ogdoches County, Texas, sued Nacogdoches County to recover a balance of salary claimed to be due him as such clerk for the years 1937 and 1938, said county being on January 1, 1936, under the salary law applying to such office, and which has at all times since and now is subject to such law.

He' alleged that during the years 1937 and 1938 he was the duly elected and qualified District Clerk' of Nacogdoches County, and that for such years he was paid a salary of $2,750 per year; that January 13, 1936, in obedience to the salary law applicable to Nacogdoches County the Commissioners’ Court of said county, in regular session fixed the salaries of the various county officers, basing same upon the earned salary of said officers for the year 1935, and fixed his, appellee’s, salary at $3,277.03; that thereafter on January 31, 1936, at a called session of said court his salary wás changed and fixed at $3,300, that being within the limit allowed by the salary law; that the members of the Commissioners’ Court elected at the November, 1936, election, to wit: the County Judge and the four county commissioners, upon taking office, attempted to reduce his salary as theretofore set, and entered an order on the minutes of said court setting his salary at $2,750; that this was $527.03 per year less than was fixed at the January 13, 1936, session, and $550 per year less than fixed by the order of. January 31, 1936. With other appropriate and necessary' allegations, appellee prayed for judgment for $1,054.06, being the balance of salary for 1937 and 1938, as fixed at the January 13th session or, in the alternative, if the order of January 31, 1936, was proper, then for judgment for $1,100 balance of salary for the years 1937 and 1938.

Appellant, Nacogdoches County, answered by plea to the jurisdiction alleging that the court was without jurisdiction to determine the cause because appellee on March 19, 1937, by suit No. 7911, duly filed and prosecuted to judgment in the District Court of Nacogdoches County, had procured a judgment for the same claim against appellant, Nacogdoches County, said judgment requiring.appellant by mandamus to pay appellee the amount for which he sued, and which said mandamus judgment was never reversed nor satisfied, wherefore appellee was not entitled to prosecute the instant suit to judgment, nor to a judgment against appellant for said claim herein asserted. Appellant further answered by plea in abatement.to the effect that the Commissioners’ Court of Nacog-doches County, on January 11, 1937, and January 10, 1938, duly audited and entered a final judgment finally fixing appellee’s salary at $2,750 for each of said years; from which order and judgment appellee did not appeal, but same became final, wherefore the suit should be dismissed. Appellant further answered by general demurrer, several special exceptions, general denial, and specially denied that appellant was indebted to appellee in any sum for in that the Commissioners’ Court of Nac-ogdoches County, at its first regular meeting in January, 1937 and 1938, had before it the question of salary of appellee for said years, and duly set his said salary at the sum found to be just to appellee; that he accepted each month a warrant for one twelfth of said amount of' salary, and cashed said warrants and retained and received the benefits thereof, and so was estopped from now setting up or claiming any further or additional salary as due him for said years 1937 and 1938, and that by receiving and cashing said monthly warrants he had waived any further claim he might have had against appellant -for additional or back salary for said years. Appellant ' further answered that during the years 1937 and 1938, there was an acting auditor for the County- of Nacog-doches, and that appellee failed to present his asserted ■ claim to said auditor for his approval, and failed, to present his said claim to Nacogdoches County or the Commissioners’ Court thereof duly approved by the county auditor. In bar of appellee’s right to recover, appellant plead the two year statute of limitations.

By trial amendment, appellee alleged that his said claim had been presented to and approved by the county auditor of Nacogdoches County.

The case was tried to a jury upon special issues,, upon their answers to which judgment for appellee was rendered in the sum of $1,054.06. Motion for a new trial was overruled, and the case is before us on appeal.

The following facts are without dispute: Appellee Jinkins was the duly elected, qualified and acting District Clerk of Nacogdoches County during the years 1937 and 1938. Nacogdoches County was under the salary act law, Article 3912e, section 13, Vernon’s Ann.Civil Statutes, and Article 3891, R.C.S., Vernon’s Ann. Civ.St. art. 3891. Under these statutes, the salary of the District Clerk of Nacogdoches County was governed by the minimum of salary earned in 1935, and a maximum of $3,500. The District Clerk of Nacogdoches County in 1935 earned as compensation of his office the sum of $3,-241.93. As above stated, the Commissioners’ Court of Nacogdoches County, on January 13, 1936, in the first regular session, fixed the salaries of the various county officers, basing same upon the earned salary of said officers for the year 1935, and fixed appellee’s salary at $3,-277.03; that thereafter on January 31, 1936, at a called session of the court, his salary was changed and fixed at $3,300, that being within the limit allowed by law. The members of the Commissioners’ Court elected at the November, 1936, election, upon taking office, attempted to reduce his salary as theretofore set, and entered an order on the minutes of the court setting his salary at $2,750. This was $527.03 less than was fixed January 13, 1936, and $550 less than fixed by the order of January 31, 1936.

We think the order of the Commissioners’ Court made at the regular term January 13, 1936, was in accordance with law, and that the amount then fixed as the annual salary of appellee, $3,277.03, under the facts and the law was proper and controlling here. Article 3912e, section 13, fixed the salary of District Clerks in the class in which Nacogdoches County fell, at not less than the total sum earned as compensation by him in his official capacity for the fiscal year 1935 and not more than the maximum amount allowed such officer under laws existing on August 24, 1935. The legislature having prescribed the minimum (the official earnings in 1935) and that being shown to have been $3,241.93, the Commissioners’ Court did not have the authority to ignore this statutory provision of minimum salary and fix the salary at $2,-750. The terms of the statute authorizing the Commissioners’ Court to fix the salary at any sum not less than a. certain minimum and not more than a certain maximum, were mandatory and could not be ignored by the members of the court at their discretion. The order fixing appellee’s salary at $2,750 was without authority and void.

We overrule appellant’s contention that appellee having accepted the monthly warrants issued to him under the salary of $2,750 fixed by the Commissioners’ Court, he was estopped to demand additional salary. The contention is without merit. Greer v. Hunt County, Tex. Com. App., 249 S.W. 831.

Appellant’s contention that it' was entitled to judgment because appellee’s claim did not appear to have been audited and approved by the county auditor, is without force. By trial amendment appellee alleged that.the claims for balance due him as back salary for the years 1937 and 1938, were duly presented to the auditor for Nacogdoches County, and were examined and approved by said auditor. The jury found in answer to special issues that the claims (for 1937 and 1938) were presented to the auditor, but were not approved by him. The record also shows that the auditor filed the claims, when presented to him, on the claim docket for consideration by the Commissioners’ Court, and were presented to the court and refused. Under the facts, it was the duty of the Commissioners’ Court to audit and pass upon the claims. Article 2351, Sec. 10, Vernon’s Annotated Civil Statutes. Their rejection of the claims authorized appellee to institute this suit to establish his • right to judgment. Farmers State Bank v. Bowie County, 127 Tex. 641, 95 S.W.2d 1304; Greer v. Hunt County, Tex.Com. App., 249 S.W. 831; Article 1573, R.C.S.

Furthermore, it is not believed that the claim here involved is such as is required by Article 1660, R.C.S., to be prer sented to the county auditor for his approval before same can be presented to the Commissioners’ Court for its approval and payment. Article 1660 reads: “All claims, bills and accounts against the county must be filed in ample time for the auditor to examine and approve same before the meetings of the commissioners court. No claim, bill or account shall be allowed or paid until it has been examined and approved by the county auditor. The auditor shall examine the same and stamp his approval thereon. If he deems it necessary, all such accounts, bill, or claims must be verified by affidavit touching the correctness of the same. The auditor is hereby authorized to administer oaths for the purposes of this law.”

This article must be considered and construed in connection with the succeeding article, 1661, passed as a part of the same act, Acts 1905, p. 381, which reads: “Art. 1661. Requisites of approval. — He shall not audit or approve any such claim unless it has been contracted as provided by law, nor any account for the purchase of supplies or materials for the use of said county or any of its officers, unless, in addition to other requirements of law, there is attached thereto a requisition signed by the officer ordering same and approved by the county judge. Said requisition must be made out and signed and approved in triplicate by the said officers, the triplicate to remain with the officer desiring the purchase, 'the duplicate, to be filed with the county auditor, and the original to be delivered to the party from whom said purchase is to be made before any purchase shall be made. All warrants-on the county treasurer, except warrants for jury service, must be countersigned by the county auditor.”

A literal application of Article 1660 without reference to Article 1661 would require the filing with the auditor of claims of every nature, but under Article 1661 it is readily seen that the auditor has no authority to audit or approve a claim of the nature here involved. It is evident that the claims which he is authorized to audit and approve under Article 1661 are claims based upon contracts lawfully made, and accounts for supplies and material supplied and contracted for as required by, law, to which are attached the proper requisitions. There are no provisions in the law which indicate that the county auditor is vested with any authority to pass upon the merits of claims such as here. Appellee’s claim being one which under no circumstance could be approved by the county auditor, Article 1660 has no application to it. Southern Surety Co. v. McGuire, Tex.Civ. App., 275 S.W. 845, writ refused: Greer v. Hunt County, Tex.Com.App., 249 S.W. 831.

It is contended by appellant that the trial court erred in hot sustaining its plea of res adjudicata. The record reflects that in 1937 the Commissioners’ Court of Nac-ogdoches County entered an order on its minutes fixing the salary of the county officers for that year and that it fixed appel-lee’s salary at $2,750. Thereafter appellee joined with the county clerk and county attorney, and brought a suit in the district court of Nacogdoches County for mandamus against the Commissioners’ Court of Nacogdoches County, and the individual members of said court, alleging, in brief, that in setting their salaries the court acted arbitrarily, and contrary to law for in that it had set said salaries at less than the minimum allowed said plaintiffs by law, being less than the salaries earned by said plaintiffs in said offices for the year 1935, and prayed for a writ of mandamus directing and commanding said Commissioners’ Court and the several members thereof to fix said plaintiffs’ salaries at the sum earned by them for the year 1935. That case was tried to a jury and on its verdict judgment was entered directing and commanding said court and its members to set the salaries of the plaintiffs at the sum earned by them in 1935, to wit: County Clerk, $3,-254.81; County Attorney, $3,010.08; and District Clerk, $3,157.03. From that judgment the defendants appealed to this court. When the case came up for consideration by this court, it was found that all issues involved had become moot, and the appeal was dismissed. Com’rs Court of Nacogdoches County v. Winder, 113 S.W.2d 277. Mandate accordingly issued to trial court. This judgment was not res adjudicata of the matters here litigated. It was not a suit for salary, but one to compel the Commissioners’ Court to set the salaries of the county officers involved at a sum within their power to fix, at a sum between the minimum and the maximum allowed by law, which it had not done in its order of January, 1937. Further, the Commissioners’ Court did not obey the mandamus granted by the district court, and no judgment was ever had upon which execution could have issued.

We overrule appellant’s contention that the court erred in overruling its plea in abatement and in not thereon dismissing the suit. It is urged that as the Commissioners’ Court in January, 1937, and January, 1938, entered an order upon its minutes fixing appellee’s salary for said years at $2,750, from which order appellee did not appeal, but accepted the monthly warrants issued to him for each month of said years, same being one-twelfth of $2,-750, that said orders became final judgments and so was conclusive of appellee’s right to maintain his suit. There is no force in. the contention. The order fixing appellee’s salary at $2,750, being admittedly a sum less than the minimum fixed by law, Article 3912e, Sec. 13, Vernon’s Ann.Civ. St., the order was void,- and being so could be attacked in any court having jurisdiction of the matter involved.

All assignments of error presented have been considered, and none of them showing reversible error, the judgment should be affirmed, and it is so ordered. Affirmed.


source: Caselaw Access Project

author: FUNDERBURK, Justice.

license: Public Domain

text:
    SHELTON MOTOR CO., Inc., v. HIGDON.
    No. 2015.
    Court of Civil Appeals of Texas. Eastland.
    April 26, 1940.
    Rehearing Denied June 7, 1940.

      T. J. McMahon and Hudson Smart, both of Abilene, for appellant.
    Scarborough & Ely, of Abilene, for ap-pellee.
   FUNDERBURK, Justice.

In this suit, brought against Shelton Motor Company, Inc., by John L. Higdon, the plaintiff alleged that the defendant employed him “to work for defendant as a salesman, the contract beginning January 24, 1938 and continuing to September 3, 1938, at which time the contract was ter- • minated by the defendant; that plaintiff was employed as a salesman with the agreement that the defendant would guarantee the plaintiff a salary of as much as $150 per month. Defendant paid plaintiff a'commission on the cars sold and the commission on the cars sold has not amounted to the sum of $150 per month, but has amounted to only $726.41 for all the time plaintiff was employed; that the defendant is due plaintiff on the guaranteed amount the sum of $1050, leaving a balance unpaid of $323.-59, for which amount plaintiff here sues defendant.”

The court overruled a general demurrer to plaintiff’s petition; submitted the case to a jury upon special issues, and, in accordance with the verdict of the jury, rendered judgment for the plaintiff, from which the defendant has appealed.

By a single assignment of error the appellant alleges error in the action of the court in overruling its general demurrer to plaintiff’s petition. Specifically, it is contended that said pleading is insufficient (1) “in that it fails to allege that the appellee gave any consideration for the agreement that appellant would guarantee the appel-lee a salary of as much as $150 per month”; and (2) “in that it fails to allege that ap-pellee performed his contract, or that he partly performed his contract, or that he did any manner or form of thing which was accepted by appellant as performance of his contract.”

Upon the question of the sufficiency of a petition to state a cause of action, such as here presented, when the judgment of the court is rendered in response to a general demurrer, the following statutes and court rules require consideration, namely: R.S. 1925, Arts. 2003 and 1997; Rules for the District and County Courts, 2 and 17, 142 xvii, xviii. The material requirement of Art. 2003 is that plaintiff’s petition shall include “a * * * statement of the cause of action.” The material requirement of Art. 1997 is that “pleadings in civil suits in the district and county courts shall * ⅜ consist of a statement * * * of the fa.cts constituting the plaintiff’s cause of action.” The material provisions of Rule 2 are “pleadings * * * must be a statement of facts, in contradistinction to a statement of evidence of legal conclusions and of arguments.” Said Rule 17 provides that “in passing upon such [previously referred to] general exception every reasonable intendment arising upon the pleading excepted to shall be indulged in favor of its sufficiency.”

There is undoubtedly much conflict in the decisions relating to said statutory provisions and rules, an extended discussion of which may be found in our opinion in Burton-Lingo Co. v. Morton, 126 S.W.2d 727. It is elementary, of course, that if there be any conflict between the statutes and the rules the statutes will control. Const.Art. 5, sec. 25, Vernon’s Ann. St.; Missouri, K. & T. Ry. Co. v. Beasley, 106 Tex. 160, 155 S.W. 183, 160 S.W. 471.

The statutes require that plaintiff’s, petition include a “statement * * * of the facts constituting the plaintiff’s cause of action.’’ If the cause of action attempted to be alleged consists of three “facts” and only two “facts” are alleged, the pleading is insufficient to state a cause of action.

The meaning of the word “facts” as used in Art. 1997 is often misunderstood. Rule 2 was designed to make clear that the “statement of facts”, of which a pleading is required to consist, is not (1) a statement of evidence, (2) nor a statement of legal conclusions, (3) nor of arguments. There has, perhaps, never arisen any question of a conflict between Rule 2 and the Statutes. Rules 2 and 17 were adopted at the same time (year 1877) as different parts of one comprehensive act establishing rules. They were, therefore, intended to be consistent and, if possible, should, of course, be so interpreted. It should require no argument that Rule 17 — the every reasonable intendment rule — cannot be construed to permit the statement of a legal conclusion to be substituted for the statement of one or more of the “facts constituting the plaintiff’s cause of action”, without bringing said rule into conflict with Rule 2. In Lewis v. Hatton, 86 Tex. 533, 26 S.W. 50, 51, the Supreme Court, quoting from .its earlier opinion in Guffey v. Moseley, 21 Tex. 408, reaffirmed that “ ‘The theory of pur system of pleadings requires the parties to state the facts of their cases, and not legal conclusions deduced from these facts; that is, the material, issuable, substantive facts should be stated, and not the legal effect of those facts on the one hand, or matters which are merely subsidiary or evidence of the facts on the other.’ ” (Italics ours.)

Rule 17 has not infrequently been construed, not only inconsistent with Rule 2, but to the effect that upon general exceptions ambiguities in a pleading are to be resolved in favor of the sufficiency of the pleading. If such construction be correct, and, at the same time, not in conflict with the statutes, then it abrogates the common law rule that pleadings are to be construed most strongly against the pleader. But it has many times been declared' by the courts of this state that, notwithstanding Rule 17, specific allegations in a pleading are to be construed most strongly against the pleader. Snipes v. Bomar Cotton Oil Co., 106 Tex. 181, 161 S.W. 1; Western Union Tel. Co. v. Henry, 87 Tex. 165, 27 S.W. 63; Webb County v. Board of School Trustees, 95 Tex. 131, 65 S.W. 878; Pabst v. Roxana Pet. Corp., 125 Tex. 52, 80 S.W.2d 956; Wall v. Royal Ind. Co., Tex.Civ.App., 299 S.W. 319; Celli v. Sanderson, Tex.Civ.App., 207 S.W. 179; Meador v. Rudolph, Tex.Civ.App., 218 S. W. 520; Gillis v. Rosenheimer, 64 Tex. 243; Fort Worth v. Baptist Church, Tex. Civ.App., 268 S.W. 1016, Baker v. Galbreath, Tex.Civ.App., 211 S.W. 626; San Antonio Fire Fighters v. Bell, Tex.Civ. App., 223 S.W. 506; Broussard v. Mayumi, Tex.Civ.App., 144 S.W. 320; Hill v. Allison, 51 Tex. 390; Mueller v. Simon, Tex. Civ.App., 183 S.W. 63. In the late case of Pabst v. Roxana Pet. Corp., supra [125 Tex. 52, 80 S.W.2d 958], the court having in mind the “every reasonable intendment” rule, quoted approvingly from a Missouri case, Sidway v. Missouri Land & Live Stock Co., 163 Mo. 342, 63 S.W. 705, as also the rule applicable in Texas, the following : “ ‘And notwithstanding our statute * * * requires pleadings to be liberally construed, etc., this only extends to the form of the pleadings, and does not apply to the fundamental requirements of a good pleading; and the pleader is not allowed now, any more than formerly, by inserting doubtful or uncertain allegations in a pleading, to thfow upon his adversary the hazard .of correctly interpreting its meaning.’ ” (Italics ours.) The “facts” constituting the essential elements of a cause of action are “fundamental requirements of a good pleading.” (It may be observed parenthetically that apparently the modern tendency is to belittle the importance of pleadings. Suggestions are to be heard these days for abolishing the requirement that pleadings allege the “facts constituting plaintiff’s cause of action or the defendant’s ground of defense.” Such an attitude bespeaks a failure to appreciate' the utility of pleadings in the administra^’ tion of justice. It is deemed not inappropriate, in this connection, to quote the language of Chief Justice Stayton in Lewis v. Hatton, supra, as follows: “Where there is riot such certainty, [in pleadings], objections to evidence ought to be sustained, for a party ought not to be permitted to prove what he has not averred. * * * The rules governing judicial proceedings should be such as to promote fairness, candor, and probity in every stage of a case, and to attain the ends of justice with the least possible indirection, and not such as to encourage duplicity, evasion, and deception, and to elevate subtlety, craft, and cunning to the vantage ground of learning, talent, and candor. Yet such would be the tendency of such rules as should not require the pleader to state fairly and specially the facts relied on to sustain his action or defense.”)

Bearing in mind the statutes, rules and principles above mentioned, let us now apply them to the petition here under challenge. It is first alleged that the defendant “employed plaintiff to work for defendant as a salesman, the contract beginning January 24, 1938.” “A contract”, according to Williston, “is a promise or set of promises to which the law attaches legal obligations.”. Williston on Contracts, vol. 1, sec. 1; page 1. When a cause of action is upon a contract a statement in plaintiff’s pleadings to the effect that the parties made a contract, is the statement of a legal conclusion. Since employment creating the relation of master and servant, principal and agent, employer and employee, etc., results only from a contract, the averment in a pleading attempting to allege a cause of action upon the contract that “defendant employed plaintiff” is likewise ■ only a conclusion of law. Was there one, promise involved, or a set of promises? Who promised what? Was the promise of one party the consideration for a promise of the other party? If so, what were such promises? The averments of the petition here do not afford any answers to such questions.

How long was the contract .to continue in effect? It is alleged that it did continue to “September 3, 1938.” It was-not alleged that that was the date the contract, by its own terms, was to end; but the contrary is clearly implied, since it is further, alleged “at which time the contract was terminated by the defendant.” (Italics ours.) Did the defendant terminate the contract short of its contemplated duration because of some right given it by the terms of the contract to do so ? Or, did the defendant terminate it in the exercise of a legal right to do so because plaintiff had breached his own -obligations, if any, imposed by the provisions of the contract? An inference of the latter is certainly just as reasonable as an inference of the former. In Houston & T. C. Ry. Co. v. Harris, 103 Tex. 422, 128 S.W. 897, 899, Judge Williams said that the “burden being on a plaintiff to establish the defendant’s negligence, it sometimes happens, especially in actions for injuries which resulted in death, that the facts adduced leave the cause of the injury unexplained, or in doubt, so that it may as well be attributed to negligence of the injured person as to that of the defendant. The plaintiff should fail, not, as seems to have been assumed in some of the older cases, of which Texas & N. O. Ry. Co. v. Crowder, 76 Tex. [499], 500, 13 S.W. 381, is a type, because he must exclude the assumption of contributory negligence of the person injured, but because he must prove that of the person sought to be charged as a proximate cause of the injury, which he does not do so 'long as he leaves his evidence equally consistent with either hypothesis.” Since evidence must be introduced in response to pleadings and its effect be limited by the pleadings, this same principle of the law of evidence is applicable to-pleadings. If from an allegation in a pleading an inference of no liability is equally as reasonable as an inference of liability the pleading fails to state a cause of action. Such is the condition of the pleading now under consideration as respects the performance of plaintiff’s obligations, if any, imposed by the contract. There is an entire omission to allege performance, or even what would constitute performance, but, on the other hand, there is an implication of nonperformance equally consistent with the unnamed performance, if any.

. The allegation that the defendant “is due plaintiff on the guaranteed amount the sum of $1050” is purely a legal conclusion, there being ho facts alleged from which such conclusion would follow.

Finally the contract of employment not being alleged to be in writing, it neither expressly nor by any reasonable implication alleges any consideration to support it. Consideration is one of the facts constituting an essential element of a cause of action, based upon an agreement claimed to constitute a contract. 17 C.J.S. Contracts, § 536, page 1167; Cisco & N.E. Ry. Co. v. Ricks, Tex.Civ.App., 33 S.W.2d 878 and authorities cited; Hardwicke v. Trinity Universal Ins. Co., Tex.Civ.App., 89 S.W.2d 500 and authorities cited.

It is our conclusion that the court erred in overruling the general demurrer, that because thereof the judgment should be reversed and the cause remanded, which is accordingly so ordered.

On Rehearing.

Appellee’s motion for rehearing, while not convincing, does suggest the advisability of some further discussion.

We have held that plaintiff’s petition was insufficient to state a cause of action because of the absence of any allegation of (1) a consideration to support the promise sought to be enforced, and (2) performance of the obligation, ■or obligations, if any, imposed by the alleged contract upon the plaintiff.

It may be conceded that if it had been alleged that defendant employed plaintiff as a salesman to sell cars for an agreed commission; that he had sold sufficient cars for the commissions to amount to $726.41; that he had been paid (say) $500, leaving a balance due of $226.41 for the recovery of which judgment was prayed, a cause of action would have been sufficiently pleaded. If so, that would be true only because of the nature of the particular contract so described. It would be such a contract as would result from the acceptance by plaintiff of an offer by defendant substantially thus: If you sell cars for us we will pay you a commission of $- (or-per cent of' the sale price, as the ■case may be) upon each car you sell. Under such a contract plaintiff would be under no legal duty to defendant to sell •cars, or make any effort to do so. The •defendant would be under ' legal duty to ■the plaintiff only if, and when, plaintiff sold a car. The contract would be one in which the performance of an optional -act, if and when performed, would supply the consideration to support defendant’s promise to pay the agreed commission. In a suit upon a contract of that nature, the allegation that plaintiff had sold cars sufficient for the commissions to amount to $726.41 would be an averment of a consideration legally sufficient to support the promise sought to be enforced, and at the same time ' it would •constitute an averment of performance by the plaintiff, since under that kind of •contract the very fact that the sales were made would be the only performance required.

According to the allegations of plaintiff’s petition, the contract, sought by this suit to be enforced, includes a contract of the nature above stated, but also includes something more. It is only the “something more” which is here involved. The promise of defendant sought to be enforced was not to pay commissions, but to guarantee that the commissions would amount to $150 per month. In other words, a promise to indemnify against the failure of commissions to amount to $150 a month. Under that agreement so far as its provisions were disclosed by the petition, the plaintiff might not sell a single car — might not earn a dollar in commissions — yet defendant would be- under legal obligation to pay by way of indemnity $150 a month. For such an agreement to create legal obligation, or, in other words, to constitute a contract, it was necessary, in order to supply a consideration, for plaintiff to bind himself to the performance of some duty to the defendant. If plaintiff, by the terms of the agreement, was under no duty to make any effort to sell cars — -no duty to employ any particular time in such effort (and he was not so far as allegations of the pleading show) but was to be paid commissions only if, and when, he did make sales, then the promise to guarantee that the commissions upon such sales as were made would amount to as much as $150 per month was without consideration— a mere nudum pactum. The agreement, by its terms purporting to bind only one-of the parties,-did not constitute. a contract binding either of them. To make a contract of such an agreement, it was necessary that a consideration be paid’ by, or for, the plaintiff, or that plaintiff (as a provision of the contract) have promised something imposing upon him - a legal duty to defendant. There is no allegation that anything was paid by, or for, the plaintiff. The agreement not being in writing, there is no implication or presumption that anything was paid or promised. The allegations showing as they do, an employment to sell cars on commission, they rebut any implication, if one could otherwise exist, that anything was paid by plaintiff as consideration for the promise of indemnity.

If, therefore, the alleged agreement constituted a contract plaintiff must ’have promised something and thereby incurred the legal duty to perform such promise. What was it? Did he have two or three hours spare time each day from some other employment and promised to devote that time to an effort to sell cars? Did he have Saturday afternoons off and promise to devote that time to such effort? Was he otherwise wholly unemployed and promised to devote all his time in the effort to sell cars? Any of these,- — one equally with another, — would have been a consideration, but none of them, or any other, was alleged. Plaintiff’s petition does not allege any promise, and, therefore, of course, does not allege the nature thereof, or that he performed it. The averment to the effect that plaintiff earned commissions in the sum of $726.41 was not the averment of a consideration since, as seen, that being the result of a voluntary act was no consideration for the promise of guaranty. Equally true it is, that it was not the averment of any fact showing performance of an obligation, no obligation having been alleged.'

Suppose plaintiff ,had testified that as part of the alleged contract he promised to devote two hours -a day to the effort to sell cars and that he -did so. That would be evidence to show a cause of action — it would show both consideration and performance. But, how could defendant have prepared to meet, such issues? Neither consideration nor performance was alleged. Suppose plaintiff testified that he promised to work at the business of selling cars, and did work, every Saturday afternoon, and it was for that promise that defendant agreed to guarantee that the commis- - sions would amount to $150 per month? Again, evidence of consideration and performance; but an entirely- different consideration, and different performance, of which the pleading gave no more notice than the other. 'Said different considerations and performances were just as certainly provable under the pleading in question as that plaintiff promised to devote all his time to selling cars, and did do so; or anything else which would show a duty and its performance.

We see no escape from the proposition that two facts essential to show a cause of action were not alleged nor implied from any facts that were alleged.

It is accordingly our conclusion that the motion for. rehearing should be, and accordingly is, overruled.


author: COMBS, Justice.

text:
    COLLIER et al. v. CARAWAY et al.
    No. 3596.
    Court of Civil Appeals of Texas. Beaumont.
    May 29, 1940.

      Fortenberry & Fortenberry and E. E. Easterling, all of- Beaumont, James F. Parker, of Kountze, and W. O. Bowers, Jr., and Orgain, Carroll & Bell, all of Beaumont, for appellants.
    J. L. Goggans, of Dallas, and J. R. Mc-Dougald and J. R. Beck, both of Beaumont, for appellees.
   COMBS, Justice.

This is a suit in trespass to try title, involving the ownership of the oil, gas, and other minerals in 53 acres of the Joseph Ellery League of land in Hardin County. Appellee T. J. Caraway and his wife, now deceased, were common source of title. Appellants T. J. Caraway et al. claim to the oil and gas estate originated as follows:

By general warranty deed, dated March 19, 1907, T. J. Caraway and wife conveyed the 53 acres of land in question to their daughter Mrs. M. J. Calloway as a gift. That deed, after the description of the land and immediately before the habendum clause, contained ■ the following clause: “The privilege to drill an oil well is hereby reserved unto the grantors, upon the hereinaboye described tract of land.” That clause is the only reference in the deed to the mineral reservation. The deed was recorded on the date of its execution. By deed dated April 17, 1922, Mrs. Calloway, then Mrs. Jackson (she having married "W. A. Jackson in the meantime), joined by her husband conveyed the land to John Haynes, who, joined by his wife, conveyed it to J. N. Collier by deed dated August 31, 1925. Said two deeds carried the clause reserving the right to drill an oil well in haec verba as set forth in the deed from T. J. Caraway to Mrs. Calloway and above quoted. By deed dated November-, 1929, J. N. Collier and wife conveyed the land to S. C. Harris, reserving in said deed one-half of the mineral rights. No reference was made to the reservation in the former deeds of the right to drill an oil well on said land. April 19, 1931, S. C. Harris conveyed the land to Emma P. Theus, subject only to the reservation of one-half the minerals by the Colliers. March 6, 1934, Mrs. Theus and husband executed an oil and gas lease to J. W. Parr, who assigned it to Humble Oil' and Refining Company April 17, 1934. There were several subsequent conveyances of mineral interests, leases, royalties, etc., none of which made any reference to the Caraway-Calloway reservation of the “right to drill an oil well.” Neither the Caraways nor anyone holding under them have ever entered on the land and drilled for oil and, so far as the records show, the. Caraways never executed any lease or conveyance of the mineral rights or claim, whatever it was, reserved by the Carawáys in the deed to Mrs. Calloway in 1907, until January 28, 1938, when T. J. Caraway and the heirs of his deceased wife executed an oil and gas lease to appellant David E. Coffman. It was stipulated: “That prior to the early summer of the year 1936 there had not been any actual drilling for oil in that immediate vicinity of the land in question; the nearest oil field to the land in controversy prior to the -early summer of the year 1936 being about nine miles distance, which oil field came in about 1928.” This suit was filed August 29, 1938.

As above stated, the Caraways’ suit is in the form of trespass to try title and they assert ownership of the entire oil and gas estate by virtue of the reservation above set forth, subject to the lease which they made to Coffman. The ’first count of their pleading was in ordinary form of trespass to try title. The second count was to the effect that the reservation clause was ambiguous, and therefore the court should permit parol evidence to show the intention of the parties, which intention was to reserve all the .oil, gas, and other minerals. The third count alleged in the alternative that if the language of the reservation was insufficient to reserve to them the oil, gas, and other minerals, that same was the result of a mutual mistake of which the defendants had notice, and they sought reformation of the instrument to make it speak the true intention of the parties so as to reserve the oil, gas, and other minerals. The appellees in addition to their plea of not guilty, specifically, plead title .in themselves by virtue of the 3, S, 10 and 25 year statute of limitation. They .further plead the -2, 4, and 10 year statute of limitation in bar of-appellants’ suit, and further plead specifically laches, and. the statute of frauds. Two oil companies were originally parties to the suit by virtue of leases. But the controversy as to them seems to have been settled. So, the controversy before us is simply between the Caraways and others claiming'title by virtue of'the reservation and Mrs. Collier and others claiming under deed from the Caraways to Mrs. Calloway.

The facts as above briefly stated appeared without dispute. The trial court instructed a verdict and entered judgment to the effect that the appellees, Caraway et al., take nothing “except as to the right to enter in and upon said above described tract of land and drill one oil well thereon and to receive, sell and dispose of any oil produced from said well together with the right to egress -and ingress ' upon the above described land for the purpose of drilling said well and producing and removing therefrom the oil to be so produced and removed therefrom if any.” Both sides have perfected appeals from that judgment.

Opinion.

For convenience we' will refer to the parties claiming under the reservation as the Caraways, and the parties claiming under the deed to Mrs. Calloway as the Colliers.

The first contention of the Caraways is to the effect that the clause in the deed to Mrs. Calloway reading, “The privilege to drill an oil well is .hereby reserved unto the grantors, upon the hereinabove described tract of land”, reserved to the grantors the same-character of ownership of the oil and gas estate with the incidental rights of exploration, production, and marketing, as vests in the lessee by an ordinary oil and gas lease, except that it did not provide any limitation or condition which would defeat the fee title so reserved. Thus, as we construe their contention, it is that the Caraways by virtue of the reservation, retained the oil and gas estate in fee to be enjoyed at will and in perpetuity. As against that contention the Colliers contend that the clause in question is too vague and uncertain to reserve anything, and, second, that in any case, what was reserved was not in the nature of fee ownership of the oil and gas hut only the personal right to enter upon the land in question and drill one well. They contend further that since the alleged reservation created a mere equitable right it was such right as could he lost, and under the facts has long since been lost, under the doctrine of laches and stale demand.

In the outset, and without any extended discussion, we overrule the contention that the clause in question was of no force and effect because too vague and indefinite to reserve anything to the grantors. By its plain terms it reserved to the grantors “the privilege to drill an oil well” on the land which was conveyed. True it said nothing about incidental rights of use of the surface. But several oil fields notably Spindletop in Jefferson County, and Sour Lake, Saratoga, and.Batson in Hardin County, all within a radius of some thirty miles of the land in question, had been developed by the drilling of wells and the production of oil for several years. The necessary incidental rights to the drilling of an oil well and the producing and marketing of oil therefrom were then established in this region and were doubtless understood by the grantors and the grantee. Therefore such incidental rights were embodied by necessary implication in the reservation.

We overrule the contention of the Caraway’s that the reservation had the effect of reserving to them the oil, gas and mineral estate under the land. There were no apt words specifically reserving the mineral estate or the oil and gas. In fact there was no mention of or direct reference to the mineral estate or oil and gas as such. What was reserved by apt words was simply “the right to drill an oil well.” That and nothing more. Hence the reservation clause contained no apt words either specifically reserving the oil and gas or from which it can be inferred that the oil and gas estate was the subject of the reservation. Ownership of the oil estate was not essential to the exercise of the right reserved to drill an oil well. Certainly one may by appropriate contract acquire or reserve the right to drill an oil well upon the land of another and to take therefrom and to market for his own any oil which he may discover and produce without being invested with a present title, determinable fee or otherwise, to the oil estate. In this connection we will observe that while our Supreme Court has repeatedly held that the usual form of oil and gas lease in use in Texas creates a present determinable fee title to the oil and gas in place, it should be borne in mind that such holdings were based upon a construction of the effect of the .instrument under consideration. It has never been held by our courts, nor will it likely be, that the owner of land cannot by appropriate contract confer upon another the privilege or right of drilling upon the land and taking oil therefrom without investing him with ownership of the oil and gas in place. So it is our conclusion that the reservation clause here under consideration merely reserved to the Caraways an equitable right or privilege, and not a present title.

It is a familiar rule of the construction of deeds thát they are to be most strongly construed against the grantor and' in favor of the grantee. This rule applies to reservations. Settegast v. Foley Bros., 114 Tex. 452, 270 S.W. 1014; Arden v. Boone, Tex.Civ.App., 187 S.W. 995. It cannot be questioned of course that the Caraways had the right to reserve to themselves the oil or any right or ownership therein which they chose to reserve. The question here is simply one of determining what they did in fact reserve. And this must be determined from a construction of the reservation clause. The reservation so expressed may not be enlarged to include a greater estate, interest or right, than a fair construction of its language requires. Settegast v. Foley Bros, supra, 18 C.J. 344. It seems clear to us that to construe the words “the privilege to drill an oil well” as reserving the oil and gas would be to-greatly enlarge the reservation beyond' what its language requires. It would be to-read into it the right to drill many wells when only one was specified. It would be to read into it the right to appropriate completely the surface estate by the drilling of wells and the producing of oil to the exclusion of the grantee for an indefinite period. It would be to deny the grantee any right to drill oil wells on the land, notwithstanding the reservation did not by apt-words or reasonable inference specify that the right reserved to the grantors was to-be exclusive. At most it is susceptible only to the construction that the grantors had tile prior right to drill an oil well at anyplace of their selection on the land. We therefore hold that the reservation reserved to the grantors the right to drill an oil well at some point of their selection; that such reservation carried with it by necessary implication the right to ownership of the oil which they might succeed in producing therefrom and such rights and easements as are reasonably necessary and incidental to the drilling for and the production and sale of the oil if any, discovered and taken' from the land as the result of the drilling of the well.

At this point we reach what we think is the most difficult question in the case, which is, have the Caraways and those claiming under them lost their right to go upon the land, drill the well and take and market the oil therefrom by reason of their long delay in asserting the right. The reservation was made in 1907. The facts show .that for more than thirty years, the Caraways drilled no oil well, executed no lease, or otherwise attempted to exercise the right which they had reserved.

Had the reservation reserved to the Caraways a present ownership of the oil and gas or an interest therein, then their title could only be destroyed by adverse possession and limitation and the doctrine of laches and stale demand could have no application. Bremer v. Case and Deffenbaugh, 60 Tex. 151; Harvey v. Cummings, 68 Tex. 599, 5 S.W. 513; House v. Brent, 69 Tex. 27, 7 S.W. 65; Betzer v. Goff, 35 Tex.Civ.App. 406, 80 S.W. 671. But as we have said above, our construction of the reservation is that it reserved no present estate or title to the oil or other minerals but only an equitable right. Dull v. Blum, 68 Tex. 299, 4 S.W. 489; Turner v. Hunt, 131 Tex. 492, 116 S.W.2d 688, 117 A.L.R. 1066. In Dull v. Blum, supra, our Supreme Court had before it for construction a deed which purported to convey to the grantee title to a tract of 320 acres of land to be taken in a defined shape out of any one of the four corners of a larger tract. It was held that the deed conveyed no title but created only an equitable right in the grantee to select a tract and have.it conveyed to him. In discussing the point Judge Gaines said [68 Tex. 299, 4 S.W. 490] : “It is true it [the deed] has the conveying words of a deed, and purports to be a present conveyance, and not a mere promise to convey. But the terms of the instrument show that the title was not to pass as the immediate effect of the contract. Fairchild [grantee] took title to no part of the land before selection. He only acquired a right to choose and designate a tract of 320 acres, to be taken in a defined shape out of any of the four corners of a larger tract. Until the- designation was made, he clearly had no title to any specific tract; nor .did he have title to any undivided interest in the whole.” (Italics ours.) We think this principle has application to the Caraway reservation.

It should be borne in mind that although a different rule prevails in some states, in Texas it is definitely established by our Supreme Court that oil and gas are as susceptible.to ownership in place as is the surface. Hence had the Caraways exercised their right to drill an oil well and had discovered oil in paying quantities, they would thereby have definitely located the oil which their contract gave them the right to prospect for, locate and produce, thus freeing the balance of the tract for operations by their vendee and those claiming under her. But as in Dull v. Blum, supra, until they did that, and thereby exercised their right of selection they held no present title to the oil and gas, nor to any undivided interest therein. It seems to us that this conclusion follows logically and inescapably from the principle that oil and gas are susceptible to distinct and segregated ownership in place.

Since the Caraways reserved to themselves not a title but only an equitable right to enter upon the land and drill an oil well we think it was such right as could be barred by unreasonable delay in exercising it. We think it is a settled principle that the doctrine of laches may be given application where during the claimant’s delay in asserting his 'claim, there has been a change of condition which cannot be disturbed without producing injustice. Galveston, H. & S. A. Ry. Co. v. DeGroff, 102 Tex. 433, 443, 118 S.W. 134, 21 L.R.A., N.S., 749. The cases seem to proceed on the theory that laches is not, like limitation, a mere matter of the lapse of time, but is rather a question of inequity in permitting the claim to be enforced. Conrads v. Kasch, Tex.Civ.App., 26 S.W.2d 732, 737, writ refused. See Kash v. Conrads, 119 Tex. 449, 31 S.W.2d 630; O’Brien v. Wheelock, 184 U.S. 450, 22 S.Ct. 354, 46 L.Ed. 636. In the case before us we have not merely a long delay, more than thirty years in exercising the right reserved, but also a vastly changed condition. Land which was not known to be oil producing in 1907, and which had but comparatively small value at that time, had increased in value tremendously due to the discovery of oil in the immediate vicinity of it. The right to drill an oil well which was of such doubtful and uncertain value in 1907 and for many years thereafter as perhaps not to warrant its exercise became very valuable. A number of persons had acquired mineral interests and leases in the property involved. These valuable rights would now be destroyed or greatly injured should the Caraways be permitted to exercise the right which they reserved in 1907 to drill an oil well. Thus the long delay and the change of conditions invoke the doctrine of laches and stale demand. Dull v. Blum, 68 Tex. 299, 4 S.W. 489; Penn. Mutual Life Insurance Co. v. Austin, 168 U.S. 685, 18 S.Ct. 223 , 42 L.Ed. 626; 19 Am.Jur. 339 et seq.; Wagg v. Herbert, 215 U.S. 546, 30 S.Ct. 218, 54 L.Ed. 321; Hays v. Seattle, 251 U.S. 233, 40 S.Ct. 125, 64 L. Ed. 243. The counsel for the Caraways insist that there was no occasion for the Caraways to exercise their right to drill prior to the summer of 1936 when oil was discovered in the immediate vicinity of the land. A party holding such an equitable right cannot delay its exercise until time shall demonstrate whether or not his right is of sufficient value to warrant its exercise. Hammond v. Wallace, 85 Cal. 522, 24 P. 837, 20 Am.St.Rep. 239. On the contrary the very fact that the property has increased in value during his delay thus rendering his contract more valuable is an important factor in invoking the doctrine of laches. Hayward v. Eliot Nat. Bank, 96 U.S. 611, 24 L.Ed. 855; Wetzel v. Minnesota Ry. Transfer Company, 169 U.S. 237, 18 S.Ct. 307, 42 L.Ed. 730; Starkweather v. Jenner, 216 U.S. 524, 30 S.Ct. 382, 54 L.Ed. 602, 17 Ann.Cas. 1167; Campbell v. Bartlett, 122 Tenn. 208, 122 S.W. 250, 25 L.R.A.,N.S., 639. As we see it the Caraways here assert an equitable right which, should the court enforce it, will produce an inequitable result. This situation was not brought about by any wrong of those against whom the right is asserted. Instead it is due solely to the laches of those who would now enforce it after more than thirty years of silence and inaction.

Accordingly the judgment of the trial court in s'o far as it awarded to the Caraways the right to drill an oil well is reversed and here rendered in favor of the Colliers et al., and in so far as the judgment denied to the Caraways the ownership of the oil and gas it is affirmed.

In part affirmed, in part reversed and rendered.

We have withdrawn the original opinion and rewritten it in order to correct certain factual matters and to clarify certain holdings. But we have not changed any holding, and of course it will not be necessary for the parties to file any motion for rehearing against this opinion.


text:
    MECOM v. DE BLANC.
    No. 3618.
    Court of Civil Appeals of Texas. Beaumont.
    April 16, 1940.
    Rehearing Denied May 20, 1940.

      John L. Compton, Ramie Griffin, R. E. Biggs, and P. C. Matthews, all of Liberty, for appellant.
    H. D. Grogan, of Liberty, and Baker, Botts, Andrews & Wharton, Marion Phillips, and Albert P. Jones, all of Houston, for appellee.
   O’QUINN, Justice.

Appellant Mecom sued appellee De-Blanc to recover damages alleged to have been suffered by his wife, Mrs. Louise Mecom, and damages to the automobile in which she was riding, caused by a collision between the car in which Mrs. Me-com was- riding and a car driven by an employee of appellee DeBlanc. The collision occurred at the intersection of Milam and Trinity Streets in the City of Liberty, Texas.

The case was tried to a jury upon -special issues. In their verdict the jury found defendant guilty of negligence that was the proximate cause of the collision in ■ several particulars. They also found that Mrs. Mecom was guilty of contributory negligence in that: (a) She failed to keep a proper look-out to discover cars proceeding west on Trinity Street, and that this was negligence, and a proximate cause of the collision; (b) she failed to have her car under proper control, and that this was negligence, and a proximate cause of the collision; (c) she failed to sound ■ her horn upon discovering the approach of appellee’s car, and that this was negligence, and a proximate cause of the collision; (d) she failed to yield the right of way to the DeBlanc car, and that this was negligence, and a cause of the collision; (e) she failed to bring her car to a stop after she discovered the approach of the DeBlanc car on her right, and that such failure was negligence, and a proximate cause of the - collision; and (f) she failed to apply the brakes on her car after discovering the approach of the DeBlanc car, and that such failure was -negligence, and a proximate cause of the collision.

On these findings, appellee moved for a verdict which was granted and judgment accordingly entered in his favor. Motion for a new trial was overruled, and appellant has appealed.

All the assignments complain of misconduct of the jury. Four of the jurors testified. The main contention is as to the juror Whitehead. He testified that while the case was in progress of trial and before the charge was read to the jury, that he, during a recess of the trial, was walking down the streets and came to the place (intersection of Milam and Trinity streets) where the collision occurred, he stopped and looked the situation over. He had heard the testimony of the witnesses as to the visibility, that is how far one could see down the other street when approaching the intersection, and concluded that each. of the drivers, Mrs. Mecom of her car, and the driver of the DeBlanc car, could have seen the other at a greater distance than they had testified. That he was influenced by what he saw in arriving at his answer to the special issue in finding' Mrs. Mecom guilty of contributory negligence in not keeping a proper lookout. Mrs. Mecom. was travelling north oh Milam street; and the DeBlanc car was travelling west on Trinity, that is when Mrs. Mecom was going north" on Milam approaching the intersection the DeBlanc car was approaching the intersection from the right (east) on Trinity. Mrs. Mecom testified that she saw the DeBlanc car coming from the east when she was 35 or 40 feet from the intersection, and that the DeBlanc car was then some 75 or 100 feet down Trinity away from the crossing; that she did not see it any more until her car was hit; that she would estimate that he (DeBlanc car) was going 35 miles per hour, and she 25 miles per hour; that when she first saw the DeBlanc car she ■didn’t think much about it, he was so far away that she thought she had plenty of time — that she thought she would be by before he got that far; that she did not sound her horn, nor apply her brakes; that “Absolutely. I thought I had plenty of time to get by before he could cover the distance he was.”

Article 2234 of the Revised Civil Statutes of Texas reads: “Where the ground of the motion is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury or that they received other testimony, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, or the communication made, be material.” (Italics ours).

Appellant urges that the driver of the DeBlanc car could have seen Mrs. Mecom a considerable distance down the street. Then it naturally follows that Mrs. Mecom could have seen the DeBlanc car as it approached for she had the same opportunity and facility as he had. This was the view of the other three jurors who testified, that they thought the parties equally to blame, and this is justified by the facts. The reason given by the juror, Whitehead, for his conclusion that Mrs. Mecom was guilty of not keeping a proper look-out (his thinking from looking at the streets) that either party could have seen the other farther than they testified, does not appear to be reasonable. And while he testified that his finding against Mrs. Mecom on the issues of failure to have her car under proper control, failure to sound her horn after she had discovered the' approach of the DeBlanc car, failure to yield the right-of-way to the DeBlanc car after she discovered it approaching the intersection from the east or right side; failure to stop her car after discovering the approach of the DeBlanc ear on her right; and failure to apply the brakes on her automobile after discovering the approach of the DeBlanc car, were influenced by his viewing the street intersection, seems far from reasonable for in that-each of these findings was justified by the testimony of Mrs. Mecom who .admitted each of.these facts without hesitancy, so far as is disclosed by the record. ‘ They being supported by her own admissions, he could not have found to the contrary. We do not think his testimony that his viewing the streets at the intersection,'and his conclusion that either Mrs. Mecom or the driver of the DeBlanc car could have seen the other farther down the streets than they testified, could have any material bearing on the question of proper lookout, or could have had any material effect on the verdict rendered, but if so t'he findings upon the other issues of contributory negligence on the part of Mrs. Mecom could not have been affected by his conclusion because these findings, and each of them, were in accordance with Mrs. Me-com’s own admissions on these questions. And, so, as these findings, and each of them, could not have been affected by the finding on the issue of proper look-out, and each of them being sufficient upon which to, base the judgment, the court did not err in overruling the motion for a new trial.

We overrule the assignment that the jury was guilty of misconduct in that before answering the special issues in which they found Mrs. Mecom guilty of contributory negligence, they discussed a purported rule or law which they considered in effect in the City of Liberty, regulating the traffic of automobiles on the streets of said city. It is contended that no evidence of such ordinance or rule was offered. The record reflects that there was such evidence.

There is no merit in the assignment asserting that the jury was guilty of misconduct in that before they arrived at a verdict, the question of insurance carried by appellant on his car and that he would be recompensed by such insurance for any damages to his car was discussed. The record discloses that insurance was mentioned, but the jurors were promptly told that they could not consider such matter, and that it was not again mentioned. The matter of insurance was not discussed, it was merely mentioned. This did not constitute misconduct of the jury. Texas & P. Ry. Co. v. Aaron, Tex.Civ. App., 19 S.W.2d 930, writ refused. Certiorari denied by U. S. Court, 281 U.S. 756, 50 S.Ct. 409, 74 L.Ed. 1166. Blue Diamond Motor Bus Co. v. Hale, Tex: Civ.App., 69 S.W.2d 228, writ dismissed; St. Louis Southwestern Ry. Co. of Texas v. Gilpin, Tex.Civ.App., 73 S.W.2d 1054, writ refused; Yellow Cab Co. v. Word, Tex.Civ.App., 125 S.W.2d 1050.

The court heard the evidence adduced on the motion for a new trial, and overruled it. This must have been beéause the court did not believe that misconduct on the part of any juror was shown. We have discussed the testimony of the juror Whitehead relative to his having visited the street intersection where the accident occurred, and said that it did not appear to us that the reason given by him (that he thought that either or both drivers could have seen the other farther than they had testified) for finding Mrs. Me-com guilty of failing to keep a proper look-out, was seriously to be considered— it did not carry reason, there being no dispute as to the topography of the ground, and it appearing from the testimony of Mrs. Mecom that she actually saw the DeBlanc car as it approached her on the right, and that she paid no further attention to it because she thought that she could get by before the other car would reach the intersection, and further that she did not yield the right-of-way, nor blow her horn, nor stop her car, though she said she could have easily done so, and that she did not put on her brakes, all rendered her lack of proper look-out a certainty, and so the viewing of the intersection and conclusion as to how far the drivers of the cars could see by the juror were immaterial, and so not material under the statute, and hence not a ground of misconduct requiring a reversal of the judgment. Miks v. Leath, Tex.Civ.App., 26 S.W.2d 726; Barton v. Green, Tex.Civ. App., 62 S.W.2d 193, writ dismissed; Brinker v. McDonald, Tex.Civ.App., 115 S.W.2d 1185; Southwestern Bell Telephone Co. v. Ferris, Tex.Civ.App., 89 S.W.2d 229, writ dismissed.

Moreover, the other acts of contributory negligence found by the jury against Mrs. Mecom, such as failing to have her car under proper control; failing to sound her horn upon discovering the approach of the DeBlanc car; failing to yield the right-of-way to the DeBlanc car when she discovered its approach on her right; failing to bring her automobile to a stop after discovering the approach of the DeBlanc car on her right; and failing to apply the brakes on her car after discovering the approach of the DeBlanc car, or either of them, authorized judgment against appellant. This independent of the issue of failure to keep a proper look-out. That she did not sound her horn, nor yield the right-of-way, nor apply her brakes, nor stop her car, was admitted by Mrs. Me-com, and so there was no dispute as to these acts.

The court heard the motion for a new trial, and the evidence adduced as to the alleged misconduct of the jury, and after considering the whole of the record, overruled the motion. Under the statute, Article 2234, R.C.S. supra, it was within his. discretion after full consideration of the-whole record, to grant or refuse the motion, and we do not think any abuse of discretion was shown.

The judgment should be affirmed, and. it is so ordered.

Affirmed.


author: BLAIR, Justice.

text:
    CHANDLER et al. v. ALAMO MFG. CO. et al.
    No. 8846.
    Court of Civil Appeals of Texas. Austin.
    April 17, 1940.
    Rehearing Denied May 22, 1940.

      Wilkinson & Wilkinson, of Brownwood, for appellants.
    McGillivray Muse, of Dallas, for appel-lees.
   BLAIR, Justice.

The limitation questions presented by this appeal arose as follows:

Appellee Alamo Manufacturing Company is a Texas corporation engaged in the manufacture of ice cream" and other creamery products. Eighty per cent, of its stock is owned by Mrs. Lizzie C. Lee and her children, and twenty per cent, is owned by her brother, Sam J. Chandler, and his wife, Mrs. Edith S. Chandler. The building used by the Alamo Company to carry on its business is owned, one-half by Mrs. Lee, and the Chandlers claim the other one-half is owned by Mrs. Chandler as her separate property.

On January 19, 1938, the Chandlers sued the Alamo Company, alleging that it was indebted to Mrs. Chandler for rents due on her one-half interest in the building, covering a period from December 5, 1929, to July 31, 1935, aggregating the sum of about $3,000, and sought to foreclose á landlord’s lien on all of the machinery and physical properties of the Alamo Company. The defendant corporation interposed/ among' others, the defense that the indebtedness sued for was barred by the two and four-year statutes of limitations; which defense was sustained by the court trying the case without a jury, and judgment was accordingly rendered for appellee Alamo Company.

Appellants contend that the statutes of limitations plead are not operative against the cause of action asserted by Mrs. Edith S. Chandler, because of the following reasons or grounds:

1. That since the rents sued for are the separate property of Mrs. Chandler through gift of her husband, and since she is a married woman, ,the statutes of limitations are not operative against her cause of action.

2. That even if the rents sued for be regarded as community property, then, since the rents are due from the separate property of Mrs. Chandler, of which the law makes her sole manager, and since she has' been at all times involved a married woman, the statutes of limitations are not operative against her cause of action for such rentals.

3. That- in any event, the letters of the manager of appellee Alamo Company, plead by appellants, constituted an acknowledgment of the justness of the rentals sued for and an implied promise to pay same, and therefore bar of the statutes of limitations was removed.

With respect to the first question presented, the trial court expressly found that the rents from the property were community property, and that there was no gift by Sam J. Chandler of his community interest in the rentals sued for to his wife, Edith S. Chandler, so as to make such rentals a part of her separate estate. Appellants did not by specific proposition attack this finding as not being supported by evidence. However, in argument in support of the claim that the rentals are the separate property of Mrs. Chandler, appellants assert that the undisputed evidence showed them to be so. We find that the evidence supports the finding of the trial judge that there was no gift of the rentals to Mrs. Chandler, but that if there was any such gift it was of rentals that had accrued and after the limitation statutes had begun to run against the claim for rentals. On this subject, Chandler testified that he and his wife entered into an agreement back in 1910, at or before their marriage, whereby they agreed that all rentals from their separate property should become the property of the owner of the separate property. This agreement, of course, was void and of no effect because of the rule that the husband and wife cannot change the character of community property to separate property before the, property involved has come into existence. Gorman v. Gause, Tex.Com.App., 56 S.W.2d 855, 856; Brokaw v, Collett, Tex.Com.App., 1 S.W.2d 1090. Mr. Chandler deeded the building to his wife in 1922, and he testified that he gave his wife all of the rents thereafter accruing; and that he considered the rents thereafter accruing to her as her separate property, merely because she owned the building; that the rents were not turned over to his wife,'but that'-they were merely considered hers because she was the owner of the building. They both testified' that they did not know that rents from the separate properties of the Spouses cbnsti-tuted community property. A note was taken for a part of the rents in the name of Mr. Chandler, and shows to have been-indorsed by him apparently for the purpose of hypothecating it, and later it was indorsed by him to his wife. The trial court found that the ink of this indorsement was much newer than that of the other indorsement, and showed to have been made 'after this cause of action for such rentals had accrued. The testimony of both the husband and wife showed that neither of them knew that the rentals from the separate property of the wife constituted community property. From this testimony the trial court concluded that it did not coincide with their testimony given later, that they had made an agreement that the rentals from the separate property of the wife constituted her separate property.

Mr.' Chandler also testified that he gave the monthly rentals due to his wife each month after the rents became payable. Thus it is shown that if he gave the rents to his wife prior to the time they accrued, the gift was void because he could not give her the rents before they accrued. If he gave them to her after the rents had accrued, then the statute of limitations had already begun to run against them at the time they were given to her. The rule is settled that a' husband and wife do not have the power to agree in advance of the existence of community property to make it the separate property of either spouse. Davis v. Davis, Tex.Civ.App., 108 S.W.2d 681, 685; Grounds v. Sloan, 73 Tex. 662, 11 S.W. 898; San Antonio Real-Estate Bldg. & Loan Ass’n v. Stewart, 27 Tex. Civ.App., 299, 65 S.W. 665; 28 Tex.Jur., 241. See, also, Art. 5544, which provides that: “And, when the law of limitation shall begin to run, it shall continue to run, notwithstanding any supervening disability of the party entitled to sue or liable to be sued.” Hoencke v. Lomax, 55 Tex.Civ. App. 189, 118 S.W. 817.

Nor do we sustain the second contention of appellants that if the rents sued for be regarded as community property, then since they were due from the separate property of Mrs. Chandler, of which the law makes her the sole manager, and since she has been at all times a married woman, the statutes of limitations do not run against her. It is true that Art. 4614, as amended in 1929, Vernon’s Ann. Civ. St. art. 4614, and Art. 4616 provide that the wife shall have the sole management and control of her separate property, both real and personal, and that neither the separate property of the wife, nor the rents from the wife’s separate real estate, etc., shall be subject to the payment of debts contracted by the husband, nor for torts of the husband. But these statutes do not give the wife the management and control of the rents and revenues from-her separate property, as did the statutes of 1913, Chap. 32, which provision of the 1913 Act was omitted by the codifiers of the 1925 R.S. The fact of this omission was in part explained by the Supreme Court in the case of Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799, wherein it was held that the attempt of the legislature to define the wife’s separate property contrary to that provided for in the Constitution would be illegal; and in consequence, by Act of 1929, the legislature amended Art. 4614 to return the rents of the separate property to the community, and made no provision for their separate control, but left the general provisions giving the husband control of the community property under normal circumstances in effect. Pottorff v. J. D. Adams Co., Tex.Civ.App., 70 S.W.2d 745, error refused.

It is the general rule in this state that a suit to recover rents and revenues from the wife’s separate property must be brought by the husband, or he must join his wife in her suit therefor, except under the circumstances which the statute au-thorize the wife to bring a suit alone. None of these exceptions applies in the instant case. In consequence, the statutes of limitations run against the cause of action for rents accruing on the wife’s separate property just as it would run against any other community claim.

It is true that Art. 5535 provides that if a person entitled to bring any action mentioned in this subdivision of the title be at the time the cause of action accrues either a minor or married woman, etc., “the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same- time after the removal of his disability that is allowed to others by the provisions of this title.”

This statute is inapplicable because if a married woman cannot bring a suit to recover a community claim for rents and revenues to her separate property, then she cannot assert her disability of cover-ture so as to preclude the operation of the limitation statute. It is also clear from a reading of the statutory language quoted that the actions mentioned in the statute are purely personal actions of the wife or minor, and do not relate to her interest in the community estate.

We also sustain the finding of the trial judge that the instruments of writing relied upon by appellants as removing the bar of limitations do not contain an acknowledgment of the justness of the rental claim, nor any promise to pay it by appellee Alamo Company; consequently the bar of the statute was not removed.

Appellants introduced a letter written by Mrs. Chandler to the appellee Alamo Manufacturing Company, which is as follows :

“Alamo Mfg. Co.,
“Brownwood, Texas.
“Att. - Mr. R. T. Hanna, Mgr.
“Dear Sirs:
“This letter will refer to the matter of delinquent rent due by you on my half interest in the building which you occupy.
“I will appreciate very much if you can and will pay me part of the delinquency at this time, as I have to raise money at this time to pay taxes and other dues.
“In view of the fact that the past due rent runs back over a long period, and in order that my records of the account may be verified, I shall appreciate if you will give me a statement of the account as reflected by your books and tell me when you will be able to liquidate, or start liquidating the account.
“Yours truly;
“Mrs. Edith S. Chandler.”
“610 6th St.,
“San Antonio.
“Dec. 13, 1937.”
To which the Alamo Manufacturing Company, by R. T. Hanna, manager, replied, as follows:
“Brownwood, Texas, “Dec. 14, 1937.
“Mrs. Edith S. Chandler,
“510 6th St,
“San Antonio, Texas.
“Dear Mrs. Chandler:
“This will acknowledge receipt of your letter of the 13th inst., in regard to a payment on the past due rent.
“It is with regret that we are unable to comply with your request & make payment at this time.
“However, the financial condition of the company will not permit it, but the matter will be brought before the meeting of the stockholders at the January meeting, and you will be advised of their action.
“In regard to the inquiry as to the amount of this past due indebtedness, our books show two items, as follows: One note for $696.00, and an open account of $1443.38. These accounts are principal, and include no interest. Trusting that the above information is what you desired, we are, “Very truly yours,
“Alamo Mfg. Co.
“R. T. Hanna, Mgr.”

And then after the meeting in January, 1938, Mr. Hanna again wrote a personal letter to the Chandlers, and advised them as follows: “As I promised you, the matter of payment as requested was brought before the meeting but no action was taken, in fact, the only action taken at all was the reelection of the same officers and directors as before.”

These letters did not acknowledge the justness of the debt sued for, because they mention only two items, aggregating about $2,000, whereas appellants sued for three items, aggregating about $3,000. Nor did the letters contain any promise to pay the rents or any part of them. To the contrary, the general manager expressly stated that he was not passing on the matter, but would submit it to the board of directors-at their January meeting; and after that meeting he called attention to the fact that the matter had been called to the attention of the board of directors and that they had taken no action thereon. The record also shows that at the time the letters were written the Chandlers knew, according to the testimony and the finding of the trial court, that the principal stockholder, Mrs. Lizzie C. Lee, of the Alamo Manufacturing Company, who was also its vice-president, was asserting that such claim for rentals was barred by the two and four-year statutes of limitations. Not only did the letters in question state that the debtor was unable to pay the claim, but that the matter would be referred to the stockholders. The record also shows in this connection that there was ill feeling as between Mrs. Lee and her brother, Sam Chandler, and his wife, Edith, concerning the operation of the business in question; that Mr. Hanna as manager was not attempting to exercise any control, except to operate the business. That he tried to steer clear of any controversy as between the parties is shown by his letters; and in consequence we do not think they constitute an acknowledgment of the justness of the claim in writing and a willingness to pay it. The rule is well settled that when a debt is barred the new promise relied upon must acknowledge the justness of the claim and express a willingness to pay it. It must be clear and unequivocal, and neither qualified by conditions nor limitations. The letters in question do not contain a clear and unequivocal acknowledgment of appellants’ demand, nor do they contain any expression of willingness to pay the debt. Or, if it should be held that the letters acknowledged the debt in part, they did not embody any unconditional promise to pay. The following authorities sustain our conclusion: Smallwood v. Melton,. Tex.Civ.App., 97 S.W.2d 781, writ refused; Shackelford v. Neilon, Tex. Civ.App., 100 S.W.2d 1037; Krueger v. Krueger, 76 Tex. 178, 12 S.W. 1004, 7 L.R.A. 72; Lefebure Corp. v. Wallace, Tex.Civ.App., 114 S.W.2d 614; Rappmund v. Zaiontz, Tex.Civ.App., 137 S.W.2d 870.

We are also of the view in this connection that Mr. Hanna had no authority as general manager of the Alamo Company to acknowledge for it the justness of this debt and to promise to pay it. The evi■dence sufficiently supports the finding of the trial judge that he was only the manager for the purpose of operating the enterprise, somewhat as a go-between between the parties amongst whom ill feeling existed.

Our above conclusion that the rents sued for are barred by the statutes of limitations plead, renders unnecessary an adjudication of the priority of the asserted landlord’s lien and the mortgage lien of the First National Bank of Brownwood, on the machinery and physical properties of the Alamo Company, which lien was asserted in a separate suit by the bank, but consolidated with this suit.

The judgment of the trial court will be affirmed.

Affirmed.