author: KRUEGER, Judge. PER CURIAM.

text:
    ARSOLA v. STATE.
    No. 20607.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    Anthony Morales, Jr., and Jones & Jones, all of Del Rio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is forgery. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant was indicted on April 10, 1939 for the offense of forging the name of Mrs. Eva Lena Hill to a check in the sum of $20.90. He was in jail at the time the indictment was returned by the Grand Jury, and was brought into open court and advised by the judge of the court that under the’ law he was entitled to two days in which to prepare for trial. He told the court that he was guilty and wanted to plead guilty; that he did not want to wait for two days, but wanted to get it over with. The court properly admonished him of the consequences of such a plea, but appellant persisted in pleading guilty. The Court also advised him of his right to waive a jury and his right to file a plea for suspension of sentence. It appears that appellant, with the consent of the District Attorney and the approval of the Court, waived his right to trial by a jury, filed a plea for suspension of sentence, which ülea was filed for him by the District Attorney. He then entered a plea of guilty. The state notwithstanding said plea, proved that the check which appellant passed was a forgery. The court assessed his punishment as above stated, but declined to suspend his sentence. Appellant filed a mo tion for a new trial based upon two grounds: (1) That he was not given the statutory time of two days in which to file special pleas and prepare for trial, and (2) that the Court failed to appoint an attorney to prepare and file an application for suspension and to present the same. The state contested the motion and upon a hearing thereof it developed that the District Attorney prepared the plea for suspension of sentence. The Court overruled the motion to which appellant excepted and gave notice of appeal to this Court. The record discloses that appellant had never been theretofore convicted of a felony in this or any other state.

Before entering upon a discussion of either of these questions, we note that while the motion for new trial was not filed until five days after the conviction of the appellant, still this Court will presume that good cause was shown therefor since the trial court entertained it upon its merits; this was a discretionary matter under the statute. See Art. 755, C.C.P., Vernon’s Ann.C.C.P. art. 755; Moray v. State, 61 Tex.Cr.R. 547, 135 S.W. 569; Bottom v. State, 105 Tex.Cr.R. 75, 286 S.W. 1091; Hart v. State, 21 Tex.App. 163, 17 S.W. 421; Young v. State, 54 Tex.Cr.R. 379, 113 S.W. 16.

The only one of' the above two questions which we deem necessary to consider is the failure of the Court to appoint counsel for appellant to prepare and present the plea for a suspension of sentence. Whether the District Attorney performed these services at his own volition or at the request of the Court is not disclosed. At any rate, however, it is improper for the District Attorney to represent both tlw State and the defendant on the question. This Court has held that the District Attorney’s office imposes upon him the duty of representing the state, and he cannot at the same time represent the defendant on the question of a suspension of sentence. See Moses v. State, 94 Tex.Cr.R. 353, 251 S.W. 219; McMurray v. State, 119 Tex.Cr.R. 74, 45 S.W.2d 217; Noble v. State, 112 Tex.Cr.R. 541, 17 S.W.2d 1063; Art. 776, C.C.P. The right to file a plea for suspension of sentence and to have the same properly presented, together with all pertinent evidence, is a valuable right, conferred by statute upon one accused of certain crimes, and it is our opinion that the learned trial court fell into error in failing to follow its mandatory provisions. See also the mandatory provision of Art. 10a, Vernon’s Ann.C.C.P.

For the error discussed, the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court..


source: Caselaw Access Project

author: GRAVES, Justice.

license: Public Domain

text:
    NATIONAL LIFE & ACCIDENT INS. CO. v. CASTILLO.
    No. 10887.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 2, 1939.
    Rehearing Denied Nov. 29, 1939.

      Battaile & Burr, of Houston, for plaintiff in error.
    Bryan, Suhr, Bering & Bell and George Eddy, all of Houston, for defendant in error.
   GRAVES, Justice.

This concededly correct statement is taken from the Insurance Company’s brief:

“The appellee, Joe Castillo, instituted this suit against the defendant, The National Life and Accident Insurance Company, in the County Court at Law of Harris County, Texas.
“The defendant company, on the 22nd day of July, 1937, issued a policy of life insurance upon the life of Vera B. Castillo, plaintiff’s wife, in the amount of $500.00. Plaintiff was the named beneficiary under the policy. On January* 28, 1938 — approximately six months latér- — the insured died as a result of complications following child birth. (In applying for the insurance policy, the insured, upon written application attached to and made a part of the contract, stated in reply to an inquiry as to her pregnancy that she was not pregnant).
“Following the death of insured, plaintiff made due proofs of his wife’s death and demand for payment of the policy, which payment was refused, the company tendering only the return of the premiums paid.
‘ This suit then ensued, plaintiff seeking judgment for the face of the policy — $500.-00 — plus the statutory-penalty and attorneys’ fees.
“The cause was tried to a jury which, at the conclusion of the testimony, was peremptorily instructed to return a verdict for the plaintiff. Judgment was then entered for $710.00 in the plaintiff’s behalf, the same representing the amount of the policy, $500.00, a penalty of $60.00, and $150.00 reasonable attorneys’ fees.”

Under the disposition determined upon for this appeal, no written opinion is required of this court; in deference, however, to counsel for both sides, who have so painstakingly briefed and argued it, this •very general statement of the main grounds upon which an affirmance of the trial court’s judgment will be ordered is made:

(1) The defendant in error’s contention that the insurance company is not entitled to complain at all in this court, because “it did not except or object to the court’s peremptory charge, nor did it submit issues embodying its conception of disputed matters of fact”, is overruled; this court, more than twenty years ago, in Kirlicks et al. v. Texas Co. et al., 201 S.W. 687, held that R.S. Article 2185 (then 1971) does not apply to a peremptory instruction but only to actual jury trials, and the Supreme Court affirmed that holding in Decker v. Kirlicks, 110 Tex. 90, 216 S.W. 385, as well as in Walker v. Haley, 110 Tex. 50, 214 S.W. 295, thereby settling a then-prevailing conflict between different Courts of Civil Appeals on that question. In this instance the insurance company did in open court except to the order granting the peremptory instruction, likewise giving notice of appeal, which it has duly prosecuted to this Court.

(2) The gist of the insurance company’s contention here is thus stated in its brief:

“To state the proposition in another way, where an applicant for a policy of life-insurance represents that her answers to all questions contained in the application are ‘full, true, complete, and without exception, and made as inducements to the execution of a policy of life-insurance,’ and the applicant was asked the specific question, ‘Are you now pregnant?’, to which she answered ‘No’, and said applicant dies less than seven months from the date of the application from complications resulting from pregnancy and childbirth (insured having been delivered of a full-period child within such time), the policy of insurance issued pursuant to said application may be voided by the company, representation as to her pregnancy being a material one as a matter of law. * * *
“Where, as in this case, applicant, Vera B. Castillo, in her application as attached to the policy and made a- part of the insurance-contract, makes a representation which is false and untrue, and such representation is material to the risk assumed by the company, and contributes to the contingency or event that matures the policy, the said false representation vitiates the insurance contract, regardless of whether the applicant knew of the falsity of the representation at the time of making the same or not.”

This presentment makes two unjustified assertions: First, that the insured’s representation of non-pregnancy was both untrue and false in the sense of being deceitful or made with fraudulent knowledge and intent, and second, that its having subsequently been shown to have been untrue at the time also demonstrated that she was not then in good health.

The evidence was conclusive if not undisputed to the effect that Mrs. Castillo had not before known she was in that condition when the insurance company’s physician so advised her of it while she was making her application for the policy in suit, and also that she was at that time in good health for one enceinte, being in all respects normal.

(3) There was no evidence showing or tending to show either that such representation was wilfully or fraudulently made for the purpose of inducing the insurer to issue the policy, or, as just indicated, that the applicant was in any other condition than a state of normal good health for a young woman who had been so enceinte for two months, but had not known of it.

(.4) It further undisputedly appears that the insured made the statement disclaiming knowledge of her pregnancy to the insurance company’s examining physician, while he was acting within the scope of his employment for it in making out and completing her application for the insurance, and that the company afterwards with full knowledge of the fact that she was then so actually pregnant, issued the policy to her, thereby estopping itself from relying upon such statement as having been a fraudulent misrepresentation. 24 Texas Jurisprudence, page 817, paragraph 112; American National Ins. Co. v. Bailey, Tex.Civ.App., 3 S.W.2d 539; National Life & Acc. Co. v. Muckelroy et al., Tex.Civ.App., 40 S.W.2d 1115; First Texas Prudential Ins. Co. v. Nute, Tex.Civ.App., 53 S.W.2d 807; Martinez v. First Texas Prudential Ins. Co., Tex.Civ.App., 90 S.W.2d 645.

(5) It likewise undisputedly appears that the insured had made application for $1000 insurance, which the plaintiff in error after the receipt of such application, including presumably its physician’s report to the effect that the applicant was then pregnant, reduced — in the amount granted — to one-half of that so applied for, and at the same time charged a higher rate thereon; this being in utilization of its privileges as shown by Part I, Item 26, Subdivision 4, of the application for the policy.

(6) Under Section 4 of the general. provisions of the policy in suit, paragraph 2, it is expressly provided — following R.S. Articles 4732, par. 4, and 5043 to the same effect, that “all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid this policy unless it is contained in a written application and a copy of such application is endorsed upon or attached to the policy when issued”. The absence of any fraud in this instance having appeared conclusively, as above indicated, this defense against the validity of the policy wholly failed. 24 Tex.Jur., p. 919, par. 174, p. 921, par. 175; National Life & Acc. Ins. Co. v. Kinney, Tex.Civ.App., 282 S.W. 633; American Central Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864; First Texas Prudential Ins. Co. v. Pipes, Tex.Civ.App., 56 S.W.2d 203; Colorado Life Co. v. Newell et al., Tex.Civ.App., 78 S.W.2d 1049; Southern Life & Health Ins. Co. v. Ramirez, Tex.Civ.App., 93 S.W.2d 234; Texas Prudential Ins. Co. v. Beach, Tex.Civ.App., 98 S.W.2d 1057; Imperial Life Ins. Co. v. Cartwright, Tex.Civ.App., 119 S.W.2d 683.

(7) The defendant in error here, having fully made out his case under both the facts and the law, was entitled to recover on this policy, unless such right was defeated by the representation of non-pregnancy so interposed; since it was not, for the reasons given, there remained nothing for the learned trial court to do other than to award the peremptory instruction it did.

Without further discussion, the action so taken below will be affirmed.

Affirmed.


author: MONTEITH, Chief Justice.

text:
    VONTSTEEN et al. v. ROLLISH et ux.
    No. 10888.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 9, 1939.
    Rehearing Denied Nov. 29, 1939.
    Lockhart, Hughes & Lockhart and H. C. Hughes, all of Qalveston, for appellants.
    Armstrong, Cranford, Barker & Bed-ford, Owen D. Barker, Frank B. Nussbaum, and James A. Piperi, all of Galveston, for appellees.
   MONTEITH, Chief Justice.

This is an appeal in an action brought by appellee Eugene Rollish, individually, and for the use and benefit of his wife, Blanche Rollish, against appellants, John E. Vontsteen and Ohlhausen Dredging Company, to recover damages alleged to have been sustained as a result of the negligent operation of an automobile driven by the said John E. Vontsteen which resulted in the death of their son, Robert Erwin Rollish, about two years of age.

The suit arose out of a collision which occurred in the City of Galveston on November 28, 1937, between an automobile being driven by appellee Eugene Rollish, in which Blanche Rollish and Robert Erwin Rollish were also riding, and an automobile owned by the Ohlhausen Dredging Company, being driven by appellant John E. Vontsteen, who was at that time employed by appellant Ohlhausen Dredging Company. Appellee was proceeding in a northerly direction on 61st Street in the City of Galveston when he arrived at or near the intersection of 61st Street with State highway No. 6, with the intention of entering said highway and of proceeding in a westerly direction thereon. The collision occurred off of the concrete portion of the highway a short distance west of its intersection with 61st Street. Robert Erwin Rollish died as a result of the injuries received in such collision.

Appellee alleged that he was approaching said highway at a slow rate of speed when he observed the automobile being driven by appellant John E. Vontsteen leave the concrete portion of said highway, at a point considerably west of said intersection, in a manner indicating that said automobile would collide with his automobile; that in order to avoid the collision, he swerved his car to the left to reach the ditch before being struck by said automobile, hut that by reason of the negligence of said appellant the automobile being driven by him collided with appellee’s automobile, and because of the force of said impact the infant, Robert Erwin Rollish, received injuries which proximately resulted in his death a short time thereafter. Appellee alleged numerous specific acts of negligence on the part of appellant John E. Vontsteen, claimed to amount to negligence proximately causing the collision.

Appellants answered by general demurrer and general denial. They alleged that said collision was brought about solely by various acts and omissions on the part of Eugene Rollish, which they claimed amounted to contributory negligence.

The case was tried before a jury, who, in answer to special issues submitted, found, among other facts, that appellant John E. Vontsteen, at the time of said collision, was driving his automobile at an excessive rate of speed under the circumstances; that in so doing he was guilty of negligence, and that such negligence was a proximate cause of the collision. The jury found further against appellants on all issues involving the doctrine of discovered peril, including an issue to the effect that the failure of appellant John E. Vontsteen to use ordinary care to avoid said collision was the cause of the collision, and of the death of said Robert Erwin Rollish. The jury found that appellee was not guilty of negligence in any of the particulars alleged by appellants. Based on this verdict, the court rendered judgment in favor of appellee and against appellants in the sum of $4,101.

The controlling questions involved in this appeal are, first, whether there is support in the evidence for the submission of the issues involving the doctrine of discovered peril, and, second, whether there is sufficient evidence in the record to support the jury’s findings thereon.

The rule, in passing on the question as to whether there was evidence to take to the jury the issues of discovered peril, is that if, disregarding all adverse evidence and giving credit to all evidence favorable to the party in whose favor the verdict has been rendered, and indulging every legitimate conclusion favorable thereto which might have been drawn from the facts proved, a jury might have found in favor of said party in answer to issues involving discovered peril, such issues should have been submitted to the jury. Thurmond et al. v. Pepper et al., Tex.Civ.App., 119 S.W.2d 900; Stinnett v. Gulf C. & S. F. R. Co., Tex.Civ.App., 38 S.W.2d 615; Fernandez v. Rahe, Tex.Civ.App., 61 S.W.2d 529; Jones v. Jones, Tex.Civ.App., 41 S.W.2d 496; Gross v. Shell Pipe Line Corp., Tex.Civ.App., 48 S.W.2d 377; International & Great N. R. Co. v. Acker, Tex.Civ.App., 128 S.W.2d 506; Kirksey v. Southern Traction Co., 110 Tex. 190, 217 S.W. 139.

A summary of the evidence shows that appellee Rollish testified that as he approached highway No. 6, he was unable to cross on account of cars going in both directions, and as he turned left down the highway toward Houston in order to get across he had a collision with a car coming from Houston. He testified that he saw this car approaching some 80 feet away and estimated that it was traveling at the rate of between 55 and 60 miles per hour; that he was traveling at the rate of 12 miles per hour; that the car pulled off of the highway and came down the south side and struck his car; that at the time he first saw said automobile there was no car between the two cars. That he was trying to get to the ditch to keep from getting struck by the Vontsteen car.

Appellee Mrs. Blanche Rollish testified that when they approached the intersection of 61st Street and state highway No. 6, she saw the car being driven by appellant John E. Vontsteen coming down the shoulder of highway No. 6 and that Mr. Rollish turned to the left to the ditch trying to avoid being struck by the car; that at the point where they started swerving to the left, the Vontsteen car was 100 or more feet away on the shoulder of the highway; that there was an open road on the left-hand side of the concrete between Vont-steen and Rollish, and nothing to make Vontsteen get out on the shoulder.

Appellant John E. Vontsteen testified that he was going in to town to obtain some repair parts for machinery; that he was traveling at the rate of between 40 and 50 miles per hour; that as he approached 61st Street he saw a car coming out from behind a service station at the rate of about 30 miles per hour; that they did not slack their speed or make any attempt to stop at the intersection, but got on to the pavement, and that he immediately moved his car onto the shell shoulder in order to give said car the right of way, but that the car turned to the left and headed for the ditch directly across his path; that he applied his brakes hard and tried to get back on the pavement and ease the shock of contact, but that the car struck his car on the right-hand side; that he was about 75 feet away'when he saw said car leaving the concrete; that he applied his brakes prior to that time to bring himself down to the lower speed, and that after said car started across his path he applied his brakes hard. The witness testified that when he first saw this car approaching he appreciated the fact that the car was approaching the highway too rapidly; that he knew that there was not room on the highway for all the cars unless he stopped or fell back and that this prompted him to slow down and get on the shoulder; that the two cars were about 125 feet apart when that happened. The witness testified that his brakes were in good condition before the accident.

C. M. Daily, a witness for appellants, testified that he observed the skid marks of the Vontsteen car up to the point of collision; that they were about 10 feet in length. He testified that a car with brakes similar to those on the Vontsteen car, travelling at the rate of 40 miles per hour, should stop within 40 or 50 feet; that the Vontsteen car should stop within 22 feet, if traveling at the rate of 25 miles per hour, after the application of the foot pedal.

Under the above testimony, we think that the issue of discovered peril should undoubtedly have been submitted to the jury, and further that the probative force of the evidence was such that this court would not be warranted in setting aside the verdict and judgment of the trial court, based thereon.

While there are other assignments presented, as we view the record the assignment on the issues of discovered peril raises the controlling question in the case and renders the remaining assignments immaterial. The rule is now well established in this state that where the defendant discovers the peril of plaintiff in time to avoid injury by the exercise of ordinary care in the use of all means at hand, consistent with the safety of others, a new duty arises to exercise such care and failure to do so creates liability regardless of the original cause of plaintiff’s perilous position. Hines v. Foreman, Tex.Com.App., 243 S.W. 479; Hays v. Gainesville St. Ry. Co., 70 Tex. 602, 8 S.W. 491, 8 Am.St.Rep. 624; Baker v. Shafter, Tex.Com.App., 231 S.W. 349; St. Louis Southwestern Ry. Co. of Texas v. Cambron, 62 Tex.Civ.App. 465, 131 S.W. 1130; St Louis B. & M. R. Co. v. Cole, Tex.Com.App., 14 S.W.2d 1024; Hall v. Weaver, Tex.Civ.App., 101 S.W.2d 1035, 1037; International & G. N. R. Co. v. Acker, Tex.Civ.App., 128 S.W.2d 506.

Under the above authorities we feel that no reversible error is revealed by the record. The judgment of the trial court will therefore be in all things affirmed.

Affirmed.


author: SMITH, Chief Justice.

text:
    In re RITCHIE’S ESTATE.
    No. 10614.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 1, 1939.
    Rehearing Denied Nov. 29, 1939.

      Joe Briscoe, of Devine, and William E. Remy and Jane 'Lewis Maverick, both of, San Antonio, for appellants.
    .■ Swearingen & Miller and Perry Sayles, all of San -Antonio, for appellee.
   SMITH, Chief Justice.

This appeal is from an order of the District Court probating a purported codicil, to the will of Mrs. Lottie M. Ritchie, a widow, now deceased, which had been previously admitted to probate.

On August 1, 1927, before she executed her will or any codicil thereto, the testatrix •sold .and conveyed to the proponent, Mrs, Annie, ,J. Lee, a lot situate in the City of San Antonio. A, copy of that conveyance is not shown in the record, but it does appear by piece-meal here and there in the record that the property was sold to Mrs. Lee for a consideration of $2,800, evidenced by her promissory note payable in monthly installments, a substantial portion of which was shown to have been paid by proponent prior to the death of the testatrix, who had not transferred the note or lien. The note was secured by a deed of trust lien. ,

Thereafter, on June 17, 1932, the testatrix executed her will in which she de- • vised to the two contestants, appellants herein, all the residue of her estate remaining after payment of certain special bequests. The note and lien constituted a part of the residue and was inventoried as' such. On October 4, 1933, the testatrix executed the purported codicil here in controversy, and thereafter, on October 5, 1934, she executed a second and admittedly valid codicil, which was probated with the'original will, but which does not affect the questions raised in this appeal.

The testatrix died on December 31, 1934, and the original will and admittedly effective codicil were admitted to probate on January 22, 1935.

Two years later, on January 25, 1937, appellee, Mrs. Lee, a nominal beneficiary under the original will, filed her application in the probate court for probate of the purported codicil executed on October 4, 1933 and here in controversy. The application was contested by Lottie Grace Adams and her co-residuary legatee, appellants herein. That application was denied in the probate court, but, on appeal by Mrs. Lee, was sustained in the district court, and the instrument was ordered probated as a part of the decedent’s will. Lottie Grace Adams and her co-legatee have appealed. They will be designated herein as contestants, and Mrs. Lee as proponent.

The record shows that the order denying the probate of the codicil was rendered and entered in the minutes of the probate court on May 9, 1938, but the transcript of the record from the probate court was not filed in the district court until October 26th. Under this state of facts contestants moved to dismiss the appeal from the district court upon the ground that proponent had not filed, in the district court, the transcript of the record of the probate court within the time prescribed in Arts. 3701 and 3702, which provide:

"Art. 3701. Appeal on affidavit. — Where the party who desires to appeal is unable to give the appeal bond, it shall be sufficient if he file with the county clerk, within the time prescribed for giving such bond, an affidavit that he has made diligent efforts to give such bond and is unable to do so by reason of his poverty, and such affidavit shall operate a perfection of the appeal in respect to the matter of costs.”
“Art. 3702. Papers sent to district court. —Upon such appeal bond or affidavit being filed with the county clerk, he shall immediately transmit all the original papers in said proceedings to the clerk of the district court together with the appeal bond or affidavit and a certified copy of the order or decree appealed from on or before the first day of the next term of such district court, if possible, otherwise to the next succeeding term thereof, and the district clerk shall immediately file and docket the cause in the district court. * * * ”

The facts are, in this connection, that “the first day of the next term of such district court” was August 15th, following the filing of proponent’s affidavit in lieu of cost bond in the probate court on May 9th; the first day of the next succeeding term of the district court was October 3d, and as the transcript was filed during that term, it was returnable to the November term, which convened on the first Monday in that month. The result is, then, that the transcript of the record from the probate court was not filed with the district clerk on or before the first day of the next, or of the second, succeeding term of the district court after the filing of the affidavit in lieu of bond in the probate court. We are thus relegated to the question of whether the appeal should have been dismissed from the district court because of the admitted delay, beyond the time prescribed in Art. 3702, in filing the transcript from the probate court.

On the hearing of the motion to dismiss the clerk of the probate court and proponent’s counsel testified to facts bearing on the issue of proponent’s diligence in prosecuting the appeal, and upon that evidence the trial judge found, by necessary implication, that proponent had.shown good cause for the delay.

Undoubtedly, the duty rests upon a party appealing from an order of the probate court to see to it that the clerk of that court timely prepares and forwards the record to1 the district court, and in a case where the clerk delays without good cause, or refuses, to perform that duty, the burden rests upon the party appealing to resort to mandamus, if necessary, to require the clerk to act. Davis v. American Freehold Land Mtg. Co., 12 Tex.Civ.App. 37, 33 S.W. 271; Hoefling v. Esser’s Estate, Tex.Civ.App., 46 S.W. 294, writ refused; Newton v. Leal, Tex.Civ.App., 56 S.W. 209.

It is well settled, however, that when the probate clerk has failed to prepare the transcript and file it in the district court within the time prescribed in Art. 3702, the question of whether the appeal has been prosecuted with diligence is for the determination of the district court, which acquires jurisdiction of the cause upon the filing, in the probate court, of the appeal bond, or, as in this case, the affidavit of inability. 13 Tex.Jur. p. 648, § 62; Ball v. Lowell, 56 Tex. 579; Stewart v. Moore, Tex.Com.App., 291 S.W. 886; Rowe v. Rowe, Tex.Civ.App., 8 S.W.2d 228. The question of diligence was raised by the evidence in this case, and we cannot say the trial judge abused his discretion in his ruling thereon. We overrule contestants’ first and second propositions. It becomes necessary, then, to consider the appeal on its merits.

The instrument ordered probated as a valid codicil to the original will is as follows :

“Copy. San Antonio, Tex. Oct. 4, 1935.
“I sold to Mrs. Annie J. Lee, lot A. 7, Block 11, N. C. B. 45, house No. 316 So. Pine St., San Antonio, Texas, and she executed and delivered to me her note for (2,800.00) two thousand eight hundred dollars payable in monthly installments of $25.00 or more (when she possibly can) per month, including interest. The note and deed dated Aug. first, 1927. After my death if there is any balance due on this note, and Mrs. Lee is not able to make payment as they come due she is not to be dispossessed of the property. If Mrs, Lee has not paid the note in full, upon her death, the property is to become part of my estate. Lottie M. Ritchie.”

It is the contention of proponent, as ground for probate of the purported codicil, that the instrument should be given effect as a devise to proponent of the right of possession of said city lot so long as, during her life time, she may be financially unable to pay the installments on said note as they accrue, notwithstanding the lien retained against the lot by the testatrix as security for the note executed by proponent as the consideration for the lot. It is conceded that the note and lien constituted a part of the residue of the estate devised to contestants, unless that devise was revoked by the purported codicil. We are of the opinion that the contention is without merit. The original will is admittedly clear and positive in its terms. It is certain, too, that the note and lien constituted a part of the residue of the estate passing under the will to contestants, and were inventoried as such. The purported codicil is vague, and in no sense positive in its terms. It does not refer to the original will or any provision thereof, as did the genuine codicil executed a year after this instrument, in which a specific bequest in the will was diverted to a different beneficiary. It contains no expression, even by necessary implication, of any intention to revoke any provision of the will. In it the testatrix does not purport to cancel the note, or any part of it, or to release the lien given to secure its payment. On the contrary, it reaffirms the status of the note as a part of the residue of the estate by expressly providing that if it be not paid in full before proponent’s death “it is to become a part of my estate.” At most, if probated as a codicil, it was not mandatory, but precatory, only, for in it the testatrix simply expresses the wish that the holders of the note — in this instance the contestants —do not press payment, but indulge delays of payment, if it should occur that the maker is unable to pay the installments on the note as they mature. We conclude that the instrument cannot be given effect as a valid codicil for the purpose of excluding the note from the residue of the estate and thereby and to that extent revoking the devise of the whole residue to contestants, since the instrument, if a codicil, could have no other effect. We hold, therefore, that the trial court erred in ordering the probate of said instrument as a valid codicil to the will. Laborde v. First State Bank & Trust Co., Tex.Civ.App., 101 S.W.2d 389, writ refused; Redmond v. Redmond, Tex.Civ.App., 127 S.W. 2d 309, writ refused.

The judgment will be reversed, and judgment here rendered denying the probate of the instrument, and as so rendered this judgment will be certified to the district court for observance.


author: GEORGE, Justice.

text:
    JOHNSON et al. v. FRIERSON et al.
    No. 2140.
    Court of Civil Appeals of Texas. Waco.
    Oct. 12, 1939.
    Rehearing Denied Nov. 23, 1939.

      Lem Wray, of Waxahachie, for appellants.
    J. C. Lumpkins and A. D. Emerson, both of Waxahachie, for appellees.
   GEORGE, Justice.

M. E. Frierson and Tom J. Frierson instituted this suit in the district court of Ellis county against Maria Johnson and husband, Tom Johnson, seeking recovery on $1,100 note executed by Maria Johnson on September 26, 1928 and foreclosure of vendor’s lien, and in the alternative for judgment on notes aggregating $800 executed-by Tom and Maria Johnson to Duna-way Bros., and in the further alternative alleging-that they were equitable assignees of the balance due on the notes aggregating $800 and mortgagees in possession of the property with the knowledge and consent of Tom and Maria Johnson; that they had paid the taxes and insurance premiums on the properly and all costs of repairs and were by virtue of such facts entitled to retain possession of the property until the obligation evidenced by the notes to Dun-away Bros., were paid, etc. Tom and Maria Johnson answered, pleading general denial and specially that all instruments executed as of January 1, 1928 were void, because (1) the property was community of Tom and Maria Johnson, (2) that all such instruments were executed without the knowledge and joinder of the husband, Tom Johnson, (3) that the property at all times since 1917 had been the homestead of Tom and Maria Johnson, and (4) that Tom J. Frierson by misrepresentations induced Maria Johnson to pay him rent and to purchase the property and make him payments on the $1,100 note, and asked that the cloud cast on their title by the deed and note of September 26, 1928 be canceled and removed. But they did not plead limitation as a bar to a recovery of the balance due by them on the notes executed to Dunaway Bros. The case was tried before the court and a jury and judgment was rendered that Tom and Maria Johnson pay into the registry of the court for the use and benefit of Tom J. Frierson and M. E. Frierson the sum of $410.75 within thirty days from the date of the judgment, and that Tom and Maria Johnson be quieted in their title and possession of the property in controversy, but that if they failed to do so, then that the Frier-son’s debt evidenced by the $1100.00 note in the amount of $1474.81 be established as a debt against lot No. 48, Fairview Addition to the city of Waxahachie, and that the vendor’s lien securing payment of said sum be foreclosed on said property as it existed on August 27, 1928 (September 26, 1928), and that order of sale issue, etc.

The jury found, in response to special issues submitted to them, (1) that O. B. Dunaway on and after April 3, 1928 and prior to the sale by him to Tom Frierson of said lot No. 48, obtained peaceable possession of such property; (2) that there was not any amount now due and unpaid -on the original indebtedness incurred by Tom and Maria Johnson to Dunaway Bros.; (3) that Tom Frierson obtained peaceable possession of said lot No. 48 after he bad purchased it from O. B. Duna-way and prior to the time that he and his wife deeded same to Maria Johnson; (4) that Tom Frierson obtained possession of said property with the knowledge and consent of Tom and Maria Johnson prior to the time he deeded the lot to Maria Johnson; (5) that Maria Johnson had made cash payments aggregating $480.19 oil the $1100.00 note; (6) that Tom Frierson had paid taxes on the lot in the aggregate amount of $264.02; (7) that Tom Frier-,son had expended for repairs on the improvements located on said lot the aggregate sum of $101.55; (8) that Tom Frier-son had paid fire insurance premiums on the property in the sum of $52.33; (9) that Alice Booker was the agent of Tom and María Johnson at and after the time_ O. B. Dunaway became the purchaser of .said lot at trustee’s' sale on April 3, 1928; (10) that Alice Booker was not the agent •of Tom and Maria Johnson at and prior to the time the property was deeded by Tom^Frierson and wife, Martha Frierson, to Maria Johnson; (11) that Martha Fri-erson agreed with Alice Booker that the Friersons would let Maria Johnson buy said lot No. 48 if they bought the same from O. B. Dunaway; (12) that Alice Booker paid rents to O, B. Dunaway for Maria and Tom Johnson after O. B. Dun-away bought the lot on April 3, 1928; (13) that Maria 'and Tom Johnson paid rents to Tom and Martha Frierson after they purchased the property from O. B. Dunaway and prior to the time the deed was made by Tom Frierson and Martha Frierson to Maria Johnson; (14) that Tom Johnson and Maria Johnson, with full knowledge that the lot had been sold to O. B. Dunaway at trustee’s sale on April 3, 1928 and that it had thereafter been conveyed to Tom Frierson on August 17, 1928, acquiesced in such two previous" deeds on September 26, 1928, when the deed was made by Tom and Martha Frierson to Maria Johnson; (15) that Tom Frierson represented to Maria Johnson that he had a good title to said lot; (16) that Maria Johnson relied on such representations made to her by Tom Frierson; (17) that Maria Johnson was induced by such representations to purchase lot No. 48; (18) that Maria Johnson would not have paid rent to Tom Frierson on said lot No. 48 had she not believed and relied upon his representations that he had a good title to said property; (19) that Maria Johnson ceased to rely on the representations of the said Tom Frierson on or about September 19, 1936; (20) that Tom and Martha Frierson had collected rents on said property in the sum of $232.25; (21) that Tom Johnson learned that his wife, Maria Johnson, had bought the lot from, Tom Frier-son in September 1929; (22) that Maria Johnson learned that O. B. Dunaway had sold the lot in question to Tom Frierson • on August 27, 1928; (23) that Maria _Johnson learned that Dunaway Bros., had caused the property to be foreclosed and sold at trustee’s sale on or about August 1928; (24) that Tom Johnson learned that Dunaway Bros., had caused the lot to be foreclosed and sold at trustee’s sale on or about May 1, 1928; 'and (25) that Maria Johnson was induced to pay rents on the property by the representations of Tom Frierson that he had a good title to said property.

Tom and Maria Johnson were married on March 10, 1907. • Lot No. 48, Fairview Addition to the city of Waxahachie, was conveyed to Tom Johnson by R. W. Get-zendaner by deed dated December 5, 1912. Tom Johnson and Maria Johnson, on September 1, 1917, executed a mechanic’s and materialman’s lien on the lot to Dunaway Bros., to secure payment of notes aggregating $800 in consideration of Dunaway Bros, furnishing material for the construction of a house on lot No. 48. The payment of the $800 was additionally secured by deed of trust to J. E. Dunaway, trustee. The deed of- trust provided that Tom and Maria Johnson should pay all taxes as they became due and keep the buildings insured against loss by fire in some solvent insurance company to the extent insurance could be obtained thereon, and that loss, if any, by fire should be payable to the trustee as his interests might appear. It also authorized the trustee to pay the taxes and insurance premiums in the event Tom and Maria failed so to do. It further provided that such taxes " and insurance premiums so paid by the trustee should become a part of the principal indebtedness and bear interest at the same rate. Tom and Maria Johnson moved into the house upon its completion and commenced to use it as their home. On June 16, 1923, the time of the payment of the balance due on that indebtedness in the sum of $447.50 was in writing extended to January 1, 1924. The property was sold on April 3, 1928 by J. F. Dunaway,, trustee, for the sum of $714.83, the amount then due to Dunaway Bros., who immediately thereafter took possession of the property as owner tinder and in reliance on such foreclosure and purchase. It appears that possession was taken without the consent of either Tom or .Maria Johnson, but that neither of them, after obtaining knowledge thereof, objected. O. B. Dunaway collected some rent on the property from Alice Booker. O. B. Dunaway, on August 27, 1928, conveyed the property by deed to Tom J. Frierson for $600, $100 cash and five notes of $100 -each. Tom J. Frierson, upon his purchase ■of the property, took possession and collected $6 in rent from Maria Johnson. Tom J. Frierson conveyed the property to his wife, M. E. Frierson, by warranty deed dated September 26, 1928. Tom J. Frier-son and M. E. Frierson, on September 26, 1928 conveyed the property to Maria Johnson by deed, for the consideration of $1200, $100 cash in hand paid and $1100 evidenced by note of that date and retained therein lien to secure payment of such $1100 note. Tom Johnson went to Dallas in 1926 to work as a carpenter. He purchased a lot in Dallas in 1929, built a house thereon, and lived in it for a short time. Maria Johnson occupied the house in Waxahachie and made payments on the $1100 note until sometime in 1930, when she went to live in Dallas with her husband. She then turned the property over to Tom J. Frier-son and requested him to take care of it and rent it for her. Tom J. Frierson has had possession of the property since that time with the consent of Maria Johnson and with the knowledge of Tom Johnson and has collected the rents therefrom, paid taxes, fire insurance premiums and ■costs of repairs thereon.

There can be no valid execution of a power of sale in a mortgage or deed of trust after the expiration of the time expressly specified by statute, for the purpose of the original act of 1905, Articles 5693, 5694 and 5695, and the several amendatory acts (same being embodied at this time in Article 5520, Vernon’s Ann. Civ.St. art. 5520, and art. 5522) was to fix a time within which power of sale conferred in mortgages and deeds of trust might be exercised. Yates v. Darby, Tex.Com.App., 131 S.W.2d 95; Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447; First National Bank of Alvarado v. Lane, Tex.Civ.App., 265 S.W. 763; Howard v. Stahl, Tex.Civ.App., 211 S.W. 826; Rudolph v. Hively, Tex.Civ.App., 188 S.W. 721; 41 C.J. 944, sec. 1378. Thus, the sale made by J. F. Dunaway, as trustee in the deed of trust, to O. B. Dunaway, member of the partnership of Dunaway Bros., on April 3, 1928, four years, three months and two days after the maturity of the notes given to Dunaway Bros., did - not divest Tom and Maria Johnson of their - title to the property in controversy. However, it does hot follow from this that the - moral obligation of Tom and Maria Johnson to permit the property to be appro-priated by O. B. Dunaway and his vendees to the payment of the balance due on such indebtedness was terminated. Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447; First National Bank of Alvarado v. Lane, Tex.Civ.App., 265 S.W. 763.

Where a foreclosure sale under a power in a deed of trust is void, the purchaser has the rights of an equitable assignee of the debt and lien. That is, he is entitled to be subrogated to the rights of the trust creditor. Morrow v. Morgan, 48 Tex. 304; Browne v. King, 111 Tex. 330, 235 S.W. 522; Hays v. Tilson, 18 Tex.Civ.App. 610, 45 S.W. 479, error refused; Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329; Kaylor v. Kelsey, 91 Neb. 404, 136 N.W. 54, 40 L.R.A.,N.S., 839. And the rule that a purchaser at a void foreclosure sale becomes an equitable assignee of the debt and deed of trust lien applies to each successive grantee. Browne v. King, 111 Tex. 330, 235 S.W. 522; Ketcham v. Deutsch, 211 N.Y. 85, 105 N.E. 85; Cooper v. Harvey, 21 S.D. 471, 113 N.W. 717; 41 C.J. 1011.

If the beneficiary in a deed of trust buys the property at an invalid trustee’s sale and goes into possession, his rights are merely those of a mortgagee in possession after condition broken. Stallings v. Thomas, 55 Ark. 326, 18 S.W. 184. And he is entitled to his debt and interest and reimbursement for the taxes and fire insurance premiums paid by him and the costs of necessary repairs and is bound to account for the payments made to him and the rents and profits received by him or which he ought to have received by the use of reasonable diligence and care. Pioneer Bldg. & Loan Ass’n v. Cowan, Tex.Civ.App., 123 S.W.2d 726, 727.

The court, speaking through Judge Smedley in the case of Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 1083, 115 A.L.R. 329, said:

“* * * a mortgagee who has purchased the land at foreclosure sale, irregular or void as to the mortgagor (or as to one having title under the mortgagor), and who has taken possession under and in reliance upon such foreclosure and purchase, may retain possession against the suit of the mortgagor, or one holding under him, until his debt is paid. * * * The Texas decisions extend the equitable right to third persons, as well as to mortgagees, who purchase at void foreclosure proceedings, by treating the mortgage as still in effect and subrogating the purchaser to the rights of the mortgagee to the extent of the purchase money paid at the foreclosure sale. * * * While these articles [arts. 5520 and 5522] are in a sense registration statutes, they are in general sense and purpose statutes of limitation. Watson v. First National Bank of Coleman [Tex.Com.App., 285 S.W. 1050], supra. The lapse of time does not satisfy the debt, and although the debt and lien may be barred by limitation the moral obligation will support an agreement renewing the debt and reviving the lien. * * * It is our opinion that the equities of the Jasper State Bank, the valid lien, the unsatisfied debt, and possession taken and held peaceably and in good faith under the trustee’s sales, should not be sacrificed to the plea of limitation.”

And the court, speaking through Chief Justice Gallagher in the case of First National Bank of Alvarado v. Lane, Tex.Civ.App., 265 S.W. 763, 765, said:

“It is contended that this case belongs to the latter class by reason of the fact that said article 5693 provides that ‘the lien created in such mortgages or deeds of trust shall cease to exist four years after the maturity of the debt secured thereby.’ If we concede that said provision of the statute does ‘take away the right’ to a lien within the meaning of the rule announced in the latter class of cases, still this does not ordinarily mean that such right is satisfied, but rather that in a legal sense, so far as enforcément of the same by contractual provision or by decree of court against anybody claiming the benefit of such bar is concerned, the existence of such lien is at an end. With the moral obligation of the original debtor giving the lien to permit the property covered thereby to be appropriated by . the creditor to the payment of his debt, the statute does not attempt to deal. 17 R.C. L. p. 666, § 4; Eingartner v. Illinois Steel Co., 103 Wis. 373, 79 N.W. 433, 434, 74 Am.St.Rep. 871. There is nothing in the statutes applicable in this case forbidding the foreclosure of such liens in court with the consent or acquiescence of the parties adversely affected thereby, and such consent or acquiescence may be evidenced by a failure to plead such statutes in bar or such foreclosure. It seems that a lien which has become barred and determined by the provisions of said statutes and priority thereof against a junior lien-holder interposing the same as a defense denied may nevertheless be foreclosed in the same action against a party who has not pleaded such statutes in bar of such foreclosure.”

Inasmuch as appellants did not plead limitation as a bar to a recovery on the original notes and liens executed by them to Dunaway Bros., appellees, as equitable assignees of such unsatisfied debt and liens, were entitled to judgment for the amount due on such notes and under the deed of trust at the time of the trial, together with foreclosure of such liens. And since such aggregate amount was greater than the amount actually allowed appellees by the judgment of the trial court, appellants are not in a position to complain. Furthermore, we are of the opinion that reason and the equities of the instant case bring it within the rule applied in cases of a mortgagee lawfully in possession. The original notes executed by appellants to Dunaway Bros, bore interest at the rate of ten per cent and provided for ten per cent attorney’s fees. O. B. Dunaway purchased the property at trustee’s sale on April 3, 1928 for the sum of $714.83, the amount then due on the original notes and sold the property to appellees on August 27, 1928 for the sum of $600, $100 cash and the balance evidenced by notes bearing interest at the rate of eight per cent per annum. Tom J. Frierson paid taxes on the property in the amount of $264.02, insurance premiums in the amount of $52.33, and costs of repairs in the amount of $101.55. The trial court in his calculations-charged appellants with the $600, the $264.-02, $52.33 and $101.55, together with interest thereon at the rate of eight per cent per annum and credited them with the $580.19 paid by Maria Johnson to Tom J. Frierson, and the $238.25 collected by Tom J. Frierson as rents from the property, together with interest thereon at the rate of eight per cent per annum. The above set out amounts were established by the uncontroverted and undisputed testimony of the parties. The trial court was. not authorized by the facts of this case to render judgment in any event for M. E-Frierson and Tom J. Frierson on the balance due on the $1100 note and award them foreclosure of the purported vendor’s lien. Appellees sought in their pleadings to recover judgment on the balance due on the original notes executed to Dunaway Bros., and the facts of this case authorized the trial court to render judgment for appellees on such notes, together with. foreclosure of the liens securing the payment thereof. The facts further warranted the court in considering appellees as mortgagees in possession in adjusting all equities existing between the parties at the time of the trial. Therefore, the judgment of the trial court is reformed so as to decree that M. E. Frierson and Tom J. Frierson do have and recover of and from Tom Johnson the sum of $410.75, together with interest thereon from May 30, 1938, until paid at the rate of eight per cent per annum, together with foreclosure of deed of trust and mechanic’s liens as they existed on September 1, 1917, against both Tom and Maria Johnson, and that order of sale and writ of possession issue in the time and manner provided by law.

The judgment of the trial court as reformed is affirmed.


author: WALKER, Chief Justice.

text:
    UNITED EMPLOYERS CASUALTY CO. v. DANIELS.
    No. 3628.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1939.
    Benbow & Saunders, of Dallas, for plaintiff in error.
    Collins, Pate, Hatchell & Garrison, of Lufkin, for defendant in error.
   WALKER, Chief Justice.

This case is now before us on motion by defendant in error, Obie Lee Daniels, to require plaintiff in error, United Employers Casualty Company, to give an additional supersedeas bond, on allegations of insolvency of the sureties on the bond now on file the motion was filed under authority of Art. 2272, R.S.1925, which reads : “Additional bond.- — -In all cases carried by appeal or writ of error from the district or county court to the Court of Civil Appeals or .to the Supreme Court, in which a supersedeas bond shall be given, and whenever the said bond shall become insufficient by reason of the insolvency of the sureties on such bond, or from any other cause, the court in which the said appeal or writ of error is pending, shall, upon proper showing of such insufficiency be'ing made, require the giving of additional supersedeas bond in like amount as the original, to be approved by the clerk of the court in which said appeal or writ of error is pending.”

The supersedeas bond in issue is for the sum of $8,000, with B. F. Farrar and W. F. Weatherford as sureties. Answering the motion, plaintiff in error makes the following statement as to the solvency of its sureties: “That the bond filed herein by the plaintiff in error is signed by two good and sufficient sureties, to-wit, B. F. Farrar and W. F. Weatherford, and said bond has been approved by the Clerk of the District Court from which the writ of error in this case is being prosecuted and attached to said supersedeas bond filed by the plaintiff in error herein is an affidavit of B. F. Farrar, one of the sureties on said bond, that he owns property in Dallas County, Texas, free and clear from any encumbrances, of the total value of $38,-050.00 and that he owns an equity of $11,280.00 in property encumbered with monthly amortization loans, which property is paying for itself out of the 'rent, and also attached to said bond is an affidavit of W. E. Weatherford, one of the sureties thereon, that he owns 329 acres of land in Ellis County, Texas, which is not his homestead as he is a single man, of the reasonable market value of $20,000.00, all of which facts are stated under oath and which are not denied under oath by the defendant in error.”

The Farrar farm is rendered for taxes on the valuation of $3,765. There are now pending in this court five cases wherein judgments were rendered against plaintiff in error and in which it has filed supersedeas bonds to the amount of $30,750, with Farrar and Weatherford as its sureties. In a sixth case on our docket the transcript is not before us. We recently affirmed a seventh case in which writ of error has been granted by the Supreme Court. Defendant in error has filed with us in support of his motion certificates from clerks of certain courts of Texas to the effect that plaintiff in error now has pending appeals, superseded by bonds in the sum of $188,700, with Farrar and Weatherford as its sole sureties. It is perfectly obvious that Farrar and Weatherford by signing these supersedeas bonds have assumed obligations that they could not discharge in the event the bonds became fixed liabilities against them; so obvious that the issue was raised against plaintiff in error of an attempt to perfect its appeal in a manner to force the defendants in error to look only to its assets for payment of their judgments. To constitute a good and sufficient supersedeas bond the sureties themselves, if called upon, must be able to discharge the judgment; that Farrar and Weather-ford could not do on the judgments superseded by their surety obligations.

We note the following statements by plaintiff in error in its reply to the motion: (a) “It is well recognized that an insurance company or a bonding company is in good standing although it does not have enough capital stock and surplus to take care of the face amount of all outstanding insurance or bonds, as the liability thereon is merely contingent.” .

The statement is conceded. The purpose of the supersedeas bond is to protect the defendant in error in the judgment against the insolvency of the corporation, resulting from the affirmance of the judgments against it. (b) “In this connection the plaintiff in error alleges that it is informed and believes that the attorneys for the claimants over the state have entered into a conspiracy to require new bonds in all of the cases on which the said two sureties have signed.”

We would not so designate the concerted action by the attorneys with clients holding judgments against plaintiff in error; rather in our judgment the conduct of the attorneys should be construed as an honest effort on their part to discharge their professional duties to their clients. These judgments are not for property converted, or damages suffered to property rights, but they are compensation for bodily injuries received, resulting in incapacity to labor. Possibly no trust more sacred was ever committed to the watchful care of the Bar of this state — the attorneys representing these claimants; and when it is made to appear that judgments in favor of these claimants have been superseded by straw bonds, the attorneys owe the duty to confer together in an effort to find a legal remedy against the form of lawful appeal resorted to by plaintiff in error to supersede the execution of the judgments against it. We designate the bonds filed by the plaintiff in error as “straw bonds,” for the reason that by a stroke of the pen before their property could be seized by execution, these bondsmen could make themselves execution proof.

The motion to require an additional supersedeas bond is granted. Plaintiff in error, under the provisions of Art. 2273, R.C.S., will be allowed twenty days from the date of the service of this order in which to file an additional supersedeas bond to be approved by the clerk of this court. It is the further order of the court that the bond now on file is sufficient as a cost bond.


text:
    UNITED EMPLOYERS CASUALTY COMPANY, Plaintiff in Error, v. Robert L. KNIGHT, Defendant in Error.
    No. 3617.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 4, 1939.
    Benbow & Saunders, of Dallas, for plaintiff in error.
    Collins, Pate, Iiatchell & Garrison, of Lufkin, for defendant in error.
   WALKER, Chief Justice.

This case is now before us on motion by defendant in error to require plaintiff in error to file an additional supersedeas bond. The motion is a companion motion with that filed by the defendant in error in United Employers Casualty Company, plaintiff in error v. Obie Lee Daniels, defendant in error, Tex.Civ.App., 133 S.W.2d 599, in which by written opinion the motion was granted. For the reasons stated in the opinion in that case, the motion to require an additional supersedeas bond is granted. Plaintiff in error, under the provisions of Art. 2273, R.C.S., will be allowed twenty days from the date of the service of this order in which to file an additional super-sedeas bond to be approved by the clerk of this court. It is the further order of the court that the bond now on file is sufficient as a cost bond.


author: DUNKLIN, Chief Justice.

text:
    BRADFORD v. MANNEY.
    No. 13975.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 20, 1939.
    Rehearing Denied Dec. 1, 1939.

      Clarence E. Farmer, of Fort Worth, for appellant.
    Julien C. Hyer, of Fort Worth, for ap-pellee.
   DUNKLIN, Chief Justice.

E. E. Manney employed B. R. Bradford to move a 14 Linotype printing machine with its auxiliary attachments from the office of the Turrentine Printing Company on Commerce Street, in the City of Fort Worth, to Manney’s place of business in “Riverside”, another place in the City. At the time of his said employment, Bradford was engaged in the general business of moving that and other kinds of merchandise from one location to another, under the trade name of Bradford Transfer Company, and employing trucks and wjorlters for that purpose. His servants undertook to load the machine into a truck at the office of the Turrentine Printing Company, and in so doing permitted it to fall on the sidewalk, resulting in its damaged condition. Later the machine was moved by the Fort Worth House Moving Company, employed by Manney.

E. E. Manney had bought the machine for a price of $2,500, and was having it moved to Riverside for use in his printing business in which he was there engaged. He instituted this suit against B. R. Bradford to recover damages for injuries to the machine, resulting from its fall on the sidewalk, as noted above. And from a judgment in his favor for $700, with costs of suit, the defendant has appealed.

Trial was before a jury and the following are the issues submitted with findings of the jury thereon:

“Question No. 1: Do you find from a preponderance of the evidence that the Linotype machine was damaged on the occasion in question ? Answer yes or no.
“Answer: Yes.
“Question No. 2: If you have answered question No. 1 ‘yes’ then answer the following question; otherwise you need not answer:
“From a preponderance of the evidence what amount of money, if any, if paid now in cash, would reasonably compensate the plaintiff for such damage, if any, to said linotype machine? Answer in dollars and cents, if any.
“Answer: $700.00.”

The statement of facts agreed to by both parties shows the following:

“Counsel representing the respective parties hereto agreed to submit this case to the jury on the issues shown in the clerk’s transcript.”

In appellant’s brief, as a part of his statement of the nature and result of the suit, this is said:

“There was no question as to the machine being damaged. The only question was, how much damage.”

Then follow several- propositions, presenting the contention that the damages awarded by the jury were excessive and that the trial court erred in overruling defendant’s motion for new trial, by reason thereof. .

Plaintiff Manney testified that the machine had been in use since the year 1926; he had just bought it for $2,500; the date of the trial being September 15, 1938; he had been in the printing business for 25 years, during which time he had worked with linotype printing machines and was familiar with their construction; such machines are very intricate and said to include more than 10,000 working parts; this machine weighed 4,500 to 5,000 pounds; the cost of new parts to replace those broken would be about $90 and cost of labor for replacement would be about $40. He further testified as follows:

“That was just the parts that were actually broken. The machine was knocked completely out of line when it fell, and we have had to have a great deal of labor in order to get the alignment so that we could get any service at all. The machine should be knocked down and reassembled. The adjustments are very fine, and the fall of the machine has affected the mechanism so that we have had a good deal of trouble with it for more than a year. I think that $750.00 would be the usual and reasonable cost of dissembling the machine and replacing these parts that have been knocked out of line, in order to put it in the same shape as it was before.
“In my opinion as an expert, I would say that because of its fall the machine has been damaged $750.00 worth, in addition to these parts. The list price on that machine, with its auxiliary equipment, is $9,-200.00. It might be a little higher than that. * * * * * *
“The difference in the market value of this machine immediately prior to its falling and immediately after it fell on the sidewalk, while being moved by these people, is about $900.00. I base that upon the cost of replacing the parts actually broken, the dissembling and reassembling of the machine to make its intricate parts work properly and the cost of the labor in connection with that, the loss of time and production incident to that, and in addition to that, the resale value of the machine would be materially lessened. My opinion is that it would be difficult to get anything like a reasonable price out of any linotype machine that had been dropped. Based upon $90.00 for parts, $40.00 for labor, and $750.00, it would be $882.00, and figuring it the other way, it would figure about $900.00 difference in market value, as I figure it.
⅝ * * * * *
“An automobile a year old is an old car, but a linotype machine does not depreciate like other machines. I paid $2,500.00 for the machine, but I did not pay cash for it.”

- Carl Eckholm, a disinterested witness, testified:

“I work for the Star Telegram in the mechanical department. I am chief machinist in the linotype department. I have been dealing with linotype machines since 1902, about thirty-six years. The Star Telegram printing department has about twenty-two linotype machines.
“I have known Mr. Manney since he bought that machine. I was familiar with the machine down at William’s place. 1 had known the machine some time. When I went down there to disconnect the machine, it was a good machine, in good workable running condition. Mr. Manney paid me a small sum, 1 believe something like $2.50, for disconnecting the machine and connecting it again over in Riverside.
******
“I went over to Riverside and worked on the machine until about two o’clock in the morning. I finally got it to running after a fashion, but not right. I had occasion to see what parts needed repairing or replacing on the machine. I told Mr. Manney that it would take about $100.00 worth of new parts. I would have to put in a new bracket, and the reasonable and customary charge - for that work would be about $15.00. After you get the bracket on, it wouldn’t take very long then to install the other parts, about three or four hours. I would put the other parts on for about $25.00.
“From my thirty-six years of experience in working with linotype machines, it is my opinion that no machine can be dropped that far, breaking a great big shaft like that, and breaking the base, and still be in the same shape after it is repaired as, it was before it was dropped. The only way you could do it would be to dissemble the whole thing and put new dowell pins in it, and put a new magazine on for the one that was bent, and put new parts all the way through, is the only way I could guarantee that the machine would be in perfect condition like it was before it was turned over. Just like an automobile. It would be awfully hard to tell you what the cost would be to put it back in that condition. After a machine has been turned over, you can’t sell it to anybody that knows it had been turned over. They won’t buy it. Based upon my experience of thirty-six years in handling these machines and seeing them bought and sold, I would say that the difference in market value of that machine immediately before it hit the sidewalk and immediately after it hit the sidewalk, before it was repaired, was $800.00 to $900.00 or $1,000.00. I believe that if you take the sale value of the machine, that is what the difference would be. As to the difference in value after the machine had been taken down and put back together, it is hard to judge, unless you go into it. I would rather not pledge myself on that question technically. The sale value of the machine was about $900.00 less after it was turned over than it was before.”

Plaintiff and Eckholm were the only witnesses offered to prove the difference in the fnarket value of the machine before and after its injury; and it cannot be said, as insisted by appellant, that it was insufficient to support the finding of the jury that the machine was damaged to the extent of $700. That was a measure of damages alleged in the petition, to which defendant did not except; and furthermore, as shown above, he agreed on the trial that the issues were correctly submitted to the jury.

It is well settled by the Constitution, Statutes and decisions of the appellate courts of this State that it is the exclusive province of the jury to. determine issues of fact upon conflicting evidence or upon evidence which is open to diverse inferences. 41 Tex.Jur., sect. 164, p. 933, sect. 168, p. 938, sect. 170, p. 940. And that the Courts of Civil Appeals are without power to set aside the findings of the jury on disputed issues of fact, unless the evidence so manifestly preponderates against such findings as to show that they were the result of bias in favor of the winning party, or prejudice against the losing party. 41 Tex.Jur., sect. 764, p. 1088 et seq.

As shown above, the testimony introduced, showing the depreciation in the value of the machine by its fall on the sidewalk, was undisputed; and under the authorities cited, all assignments of error to the finding of the jury that it was damaged thereby in the sum of $700 are overruled. San Antonio & A. P. R. Co. v. Parr, Tex.Civ.App., 26 S.W. 861; Harlingen v. Scroggins, Tex.Civ.App., 121 S.W.2d 408.

Another assignment is presented to the refusal of the court to set aside the judgment and grant a new trial, in order to give defendant an opportunity to introduce newly discovered evidence. The portion of the motion for new trial on that ground reads:

“Plaintiff has newly discovered evidence to be produced by witnesses with testimony that was not known to the defendant at the time of the trial nor theretofore but has since been brought to his attention. The tenor of the newly discovered evidence is that the plaintiff ordered the linotype handled the way it was when it was damaged and that this was done at the direction of the plaintiff and this was the proximate cause of the damage. That this evidence will be given by Mr. V. Watson and Mr. Fisher. Plaintiff has made use of the machine since that damage was done and that without even the repairs that were shown on the trial of this cause to be necessary, and that even on the night of the day of the alleged damage it was used and is now in good running order.”

In the first place, only the “tenor of the newly discovered evidence” is alleged and not the facts on which that legal conclusion is based. Watts v. Texas Employers’, Tex.Civ.App., 264 S.W. 186.

In the second place, there is no showing that the failure to procure it at the trial was not due to a lack of diligence on the part of the defendant. Dutton v. Kinsey, Tex.Civ.App., 124 S.W.2d 446; McDonald v. Lastinger, Tex.Civ.App., 214 S. W. 829.

In the third place, affidavits of the witnesses referred to of the facts sought to be proved by them are not attached to the motion. Cherbonnier v. Shirley, Tex.Civ.App., 185 S.W. 641.

Nor is the motion for new trial verified by defendant, or anyone authorized to speak in his behalf. Neal Commission Co. v. Golston, Tex.Civ.App., 197 S.W. 1124. Moreover, it appears from the statement of facts that V. Watson, one of1 the witnesses for whose testimony a new trial was desired, testified on the trial and no excuse is offered for failure to interrogate him on the point now sought to be brought out on a new trial.

For each of those reasons, there is no merit in the assignment now under discussion.

Accordingly, the judgment of the trial court is affirmed.


text:
    FULLER v. TEXAS PARK LOT et al.
    No. 13980.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 10, 1939.
    J. O. Hughes and Chas. T. Rowland, both of Fort Worth, for appellant.
    Arthur Haddaway, John R. Thompson, B. F. Bouldin, and Allen & Gambill, all of Fort Worth, for appellees.
   DUNKLIN, Chief Justice.

John Fuller was employed as an attendant in the filling station in Fort Worth, Texas, known as the Texas Park Lot. His duties included the general duties of servicing automobiles brought into the station, such as repairing tires, greasing, polishing and supplying them with gas, lubricating oil, etc.

On or about March 16th, 1938, while engaged in the performance of the duties of his employment, and while servicing a Plymouth car with gas at its rear end that had been brought in there by a customer for that purpose, he was struck and injured by the bumper of another car, a Buick that had been driven in the station by another customer. The floor of the filling station was of concrete and at the place of the accident it sloped north towards Eighth Street. There were three electric gasoline pumps in a row mounted on a stand about six inches high, about three feet apart, located between two driveways leading into Eighth Street. From where the driveway begins to slope there is about a two foot drop to Eighth Street.

Both the Plymouth and the Buick cars were headed north towards Eighth Street, the Plymouth being in front of the Buick. Immediately prior to the accident the 'Buick was driven in and stopped about 8 feet back of where plaintiff was putting gas in the Plymouth. The driver of the Buick got out and after putting water in that car, he got back in. it, after which the Buick moved forward and plaintiff was caught between the bumper of that car and the bumper of the Plymouth which he was then servicing, resulting in serious personal injuries, for which he had medical and hospital treatment, and on account of which he was disabled for work for quite ariong period of time.

He instituted this suit to recover damages for those injuries. E. C. Young, the owner of the parking station, B. J. Campbell, lessee, who was operating it, and W. M. Kennard, Jr., alleged to be the owner and in possession of the Buick car, were all made defendants; with allegations that plaintiff's injury was caused by negligence of each and all of them.

It was alleged that defendants, Young and Campbell, maintained and operated the filling station, as partners, and were guilty of negligence in failing to furnish plaintiff a safe place to work, in that, by reason of the sloping floor of the station, a car left standing without brakes, as was the Buick, would easily roll down upon him; in failing to post some one at the entrance of the station to direct the entry and stoppage of customers’ cars entering it, in order to avoid injury to plaintiff while engaged as he was; in failing to forewarn plaintiff of the danger of being struck by the Buick; in failing to arrange for a proper spacing distance between the Buick and where plaintiff was working when he was injured. And further, that all the defendants were guilty of negligence in failing to give plaintiff any warning of the dangerous approach of the Buick while plaintiff was servicing the Plymouth and in time for him to have avoided the injury.

Defendants, Young and Campbell, filed a verified answer, denying that they were engaged as partners in operating the station; and all the defendants filed general denial of the allegations in plaintiff’s petition.

Defendant Campbell pleaded specially that it was not customary for filling stations in Fort Worth, or in the State, to employ guards to direct incoming or outgoing cars, or to warn employees of dangers incident to handling cars while in a filling station; that the filling station where plaintiff was injured was operated and equipped in the usual manner of filling stations generally; and that plaintiff’s injury was caused solely by the negligent failure of the driver of the Buick car to apply his brakes in time to avoid the injury, and failure to keep his brakes in fit condition for that purpose.

At the conclusion of evidence offered at the trial, the court instructed a verdict in favor of all the defendants, and from a judgment on that verdict, plaintiff has appealed.

The only testimony offered by plaintiff to prove the alleged partnership of defendants, Young and Campbell, was as follows. Plaintiff’s testimony that he was employed by defendant Campbell and had worked at that station for four years; Campbell was there most of the time during those four years; Campbell told witness Young was the boss and he was manager; Campbell raised witness’s wages from $10 to $12 per week and paid him every week; witness asked' Young about allowing a raise in his salary and Young told him it was all right if Campbell was willing; Campbell told witness Young owned the land on which the filling station was operated, and was getting 40% of the income from operation of the station and he, Campbell, was getting 60%; whenever he felt like it, Young would direct employees there about their work and- go out and collect money owing for gas, and witness had seen him fill a car with gas.

Testimony of plaintiff’s witness, Carl Martin, that he had been employed at the filling station for more than five years and knew defendants, Young and Campbell, all that time; that Campbell was the boss at the. station and in his absence witness acted as boss; Young parked his car there every day and at times would sit around the office.

We do not believe such testimony was sufficient to prove the alleged partnership between Young and Campbell in the operation of the filling station, even if the hearsay testimony of plaintiff as to what they told him relative thereto is given probative effect. The verified denial of partnership placed the burden of proof on plaintiff to establish that relation. Bolding v. Camp, Tex.Com.App., 6 S.W.2d 94.

Division of the net income from operation of the station, so as to allow Young 40%, by reason of his ownership of the land on which the filling station was located, and 60% to Campbell, as operator, was insufficient to prove the alleged partnership. Fink v. Brown, Tex.Com.App., 215 S.W. 846; Ogus, Rabinovich & Ogus v. Foley Bros. Dry Goods Co., Tex.Com.App., 252 S.W. 1048; Strawn Nat. Bank v. Marchbanks, Tex.Civ.App., 74 S.W.2d 447, error refused; Gardner v. Wesner, Tex.Civ.App., 55 S.W.2d 1104, error refused.

Testimony of Young’s habitual parking and presence in the station, occasional trips out to collect accounts due for gas, amounted to no more than a scintilla of proof, insufficient to prove the partnership relation. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059; Bolding v. Camp, supra.

Aside from the issue of partnership, the evidence was insufficient to show liability of either Campbell or Young for failure to furnish plaintiff a safe place to work. Plaintiff testified he was 34 years old and had worked at the same station in the same service for four years. All that time he was familiar with the slope of the concrete floor of the station where he was in the habit of working, and was working when he was injured, and of the danger of a car rolling down the incline when left without brakes set and without a driver to control it. Under such circumstances he assumed the risk incident to working on the sloping floor and is in no position to complain of alleged negligence, even if it could be said that a charge of negligence could be based on the failure of the operator of a filling station to see to it that its floor is free of such slopes, which we do not believe can be said.

This statement in 29 Tex.Jur., page 52, is supported by many decisions cited: “Knowledge of the risks is charged to an experienced servant as a matter of law, and where the particular task involves no greater risk than that run by anyone who works at an occupation of the kind in question, the servant, whether experienced or not, assumes the risk, unless he has been set at a task outside his usual line of work and the danger is unknown to him.”

On page 60 of the same volume, this is quoted from Butler v. Frazee, 211 U.S. 459, 29 S.Ct. 136, 53 L.Ed. 281, which was quoted and followed by our Supreme Court in Hamilton v. St. Louis, S. F. & T. R. Co., 115 Tex. 455, 283 S.W. 475, 476: “Where the conditions are constant and of long standing, and the danger is one that is suggested by the common knowledge which all possess, and both the conditions and the dangers are obvious to the common understanding, and the employee is of full age, intelligence and adequate experience, and all these elements of the problem appear without contradiction from the plaintiff’s own evidence, the question becomes one of law for the decision of the court. Upon such a state of the evidence a verdict for the plaintiff cannot be sustained, and it is the duty of the judge presiding at the trial to instruct the jury accordingly.”

In the absence of any evidence that it was customary for filling station operatives to have some employee on hand to direct drivers of cars coming into the station to stop their cars at such places as will avoid injuring other employees engaged in the duties plaintiff was hired to perform, we conclude as a matter of law, that failure to resort to that precaution cannot be held negligence warranting a recovery in this case.

Plaintiff testified that just prior to his injury, he saw the Buick car drive in the station and come to a stop with the front bumper eight feet distant from him; he then proceeded to service the Plymouth car with his back towards the Buick car, and while doing so, that car ran forward and he was pinioned between its front bumper and the rear bumper of the Plymouth which he was then servicing.

Carl Martin, introduced as a witness for plaintiff, testified he was in the office of tire filling station when the Buick car drove up and came to a stop. Its driver then alighted and himself serviced it with water. Then he “crawled back in this Buick and in some way — now as far as knowing just how the accident happened, I don’t, but his foot slipped off or he threw it in the wrong gear, I don’t know which, and he run down and the two bumpers hit together and John was in between them at the rear of the Plymouth car and the front end of the Buick. Naturally the Plymouth moved some, but I don’t know how much it moved. John fell and I ran out and picked him up and brought him in and called for the ambulance. I don’t know who the man was that was in the Buick car. I had some words with him but as 'far as knowing just what I said or what he said I could not be positive. He got out and came in the station and stood there a few minutes.” Witness testified further that the driver of the Buick was a white man.

The evidence recited above was ample to support a finding by the court or jury that plaintiff’s injury was proximately caused by the negligence of the driver of the Buick car.

Plaintiff’s witness, Satterwhite, deputy tax collector in the auto license department of Tarrant County, testified from those official records that the Buick car was registered in the name of Arch E. Parnum in the year 1937, and was transferred on February 5th, 1938, into the name of W. M. Kennard, Jr., identified as defendant. The judgment recites appearance of that defendant in person at the time of trial,, but he did not testify in the case or offer any excuse for not doing so, which of itself raised a presumption against him. 17 Tex.Jur., para. 88, page 308. Under such showing, we conclude that a prima facie case was made out against him, and that the court erred in instructing a verdict in his favor. In briefs filed for him here by his counsel, this is said: “There is testimony that the driver of the Buick car which inflicted the injury was ‘mighty white’, and while there is no testimony in the record to the effect that W. M.' Ken-nard, Jr., appellee, is a dark negro, such is a fact— cf which the court can take judicial notice.” We are unable to concur in that view. In this connection it is to be noted that there is an absence of pleading by plaintiff that the Buick car was being operated by Kennard through an agent, if not by himself.

As against defendants, B. J. Campbell and E. C. Young, plaintiff’s case appears to have been fully developed, and since plaintiff failed to show right of recovery against either of them, the judgment in their favor is affirmed.

But the judgment in favor of defendant, W. M. Kennard, Jr., is reversed and plaintiff’s suit as against him is remanded for a new trial. 3 Tex.Jur., pages 813, 814, and cases there cited.

Affirmed in part and reversed and remanded in part.


author: GERMAN, Commissioner.

text:
    FARMERS STATE BANK IN MERKEL v. DELANEY.
    No. 2282-7426.
    Commission of Appeals of Texas, Section A.
    Dec. 6, 1939.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for plaintiff in error.
    Grisham & King, of Abilene, for defendant in error.
   GERMAN, Commissioner.

The Farmers State Bank of Merkel, having become insolvent, was on February 17, 1930, taken over by the Banking Commissioner for liquidation. By contract dated April 14, 1930, duly authorized and approved by the district court in the manner provided by law, sale of assets of the old bank was made to a new bank, organized under the name of Farmers State Bank in Merkel. Prior to the formal organization of the new bank, those who contemplated such organization prepared a preorganization agreement, which was presented to practically all of the creditors of the old bank, and was signed by them. Delaney-Delmer Chevrolet Company had on deposit with the old bank at the time it was closed the sum of $5017.54. As such depositor, it signed the agreement mentioned, which read as follows:

“For the purpose of assisting in the organization of a new bank, which is to take over in part the assets of the Farmers State Bank of Merkel, which has recently closed its doors, I agree to accept a certificate of deposit in the new bank when organized for eighty per cent of the amount of my deposit in the Farmers State Bank of Merkel, now in liquidation, and to look to the assets of the Farmers State Bank of Merkel, now in liquidation, for the payment of or part payment of the remaining twenty per cent of my deposit after the new bank has taken over such assets of the Farmers State Bank of Merkel that are necessary in the organization of the new bank for the purpose of paying the eighty per cent so deposited in said new bank, and such other necessary matters in connection with the new organization, including payment of depositors under $100.00.
“I also agree that all depositors in the Farmers State Bank of Merkel, who have less than $100.00 on deposit, may be taken over by the new bank in full, and I also agree that this agreement is binding upon me when those holding ninety-five per cent of the deposits in Farmers State Bank of Merkel have signed a similar agreement to this, by which the new bank takes over eighty per cent of the deposits of those so signing.
“After the organization of the new bank is provided for, the remaining assets of the Farmers State Bank of Merkel will be used as a fund to liquidate the remaining twenty per cent of the deposits in Farmers State Bank of Merkel so far as it will go.
“In the reorganization of new bank consent is given to those handling the remaining assets to pledge the real estate, not taken over by the new bank, to secure any banks taking' over not to exceed $40,000.00 of notes of the new bank that such banks will not lose anything by reason of taking over such paper. I also agree that the receiver of the Farmers State Bank of Merkel, Texas, may transfer the remaining assets to A. T. Sheppard, W. O. Boney, and M. Armstrong to handle for the depositors as above provided for.”

As will be noted, this agreement was dated March 1, 1930, but the sale of the assets to the new bank was not consummated until about April 14, 1930. On April 15, 1930, the new bank credited Delaney-Delmer Chevrolet Company on its books with $4,014.04, and furnished it with a deposit slip reading as follows:

“Charge Account of Delaney-Delmar Chev. Co.
“20% Reduction in Deposits per Agreement. 1,003.50
“80% Credited your Account in New Bank . 4,014.04
5,017.54
“The Farmers State Bank in Merkel
“Merkel, Texas, Apr. 15, 1930.”

Thereafter, Delaney-Delmer Chevrolet Company, in the due course of business, checked out of said bank the said sum of $4,014.04.

Also on April 15, 1930, the new bank, in pursuance of proper authority from its Board of Directors, transferred and assigned to W. O. Boney, M. Armstrong and A. T. Sheppard, Trustees, certain lands, bills receivable and other assets assigned to the bank the day before, which said trustees were to “administer for the benefit of those depositors of the Farmers State Bank of Merkel, who received only eighty per cent of their money on deposit in the old bank.” It is undisputed that these assets, aggregating a book value of $54,-340.84, which were known as the “20% Fund”, were thereafter administered solely for the benefit of the depositors who had signed agreements similar to the one above set out.

On April 27, 1934, L. A. Delaney, successor to Delaney-Delmer Chevrolet Company, made demand upon the bank for the balance of $1,003.50. This demand was refused, and the present suit followed. Delaney was plaintiff, and will be designated as such here. Farmers State Bank in Merkel was defendant, and will be so referred to in this opinion.

Plaintiff bottoms his case entirely upon the clause of assumption in the contract by which the assets of the old bank were taken over by the new bank. So far as pertinent, that provision is as follows:

“The Purchasing Bank binds itself absolutely and at all events to assume, pay off, liquidate, and discharge and satisfy all lawful debts, lawful liabilities and lawful claims of all creditors of The Farmers State Bank, excepting, however, any liability of said The Farmers State' Bank to its stockholders as such.
“The liabilities assumed herein by the Purchasing Bank are in full and shall be so paid without deduction or discount, and in accordance with the terms and provisions of the original contracts, agreements and undertakings between said The' Farmers State Bank and its depositors, creditors and other lawful claimants above referred to.”

Although relying upon this contractual obligation, nevertheless, in order to avoid the bar of the statutes of limitations, plaintiff takes the further position: That by virtue of the taking over of the assets of the old bank, by the new bank, and the assumption to pay its debts, he, upon organization of the new bank, became a general depositor therein to the amount of $5,017.54; and being a general depositor, limitation would not begin to run until after demand upon the bank for the balance of the $1,003.50.

The case was tried before the court without a jury and the court filed findings of fact and conclusions of law. Judgment was in favor of defendant. Among other things, the trial court found that because of the agreement above set out and the practical construction thereof by the parties, plaintiff never became a depositor in the new bank as to said sum of $1,003.50, being the 20 per cent of the former deposit which was to be paid out of assets which the bank never in fact acquired, but which were administered by the trustees mentioned. In this connection a contention is made that the trial court was in error in finding that all of the assets of the old bank were not in fact acquired by the new bank. Technically, such contention may be correct, but in reality the finding of the court is true. It will be noted that the agreement of March 1, 1930, provided that the reserved assets were to be conveyed by the “receiver” of the old bank to the named trustees. There was in fact no receiver, other than the Commissioner of Banking, and while all the assets were formally transferred by him to the new bank, it on the next day executed conveyance to the trustees named in the agreement. Thus it will be seen that the bank in reality became only the instrumentality through which title to these assets passed to the trustees. It is recited in said assignment that it was with the consent of the Commissioner of Banking.

The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment in favor of plaintiff. 115 S.W. 2d 736.

We do not find it necessary to discuss any of the matters discussed by the Court of Civil Appeals. Although the judgment of the trial court could perhaps be upheld on other grounds, yet we think that court-settled the case by the following conclusion : “I conclude, as a matter of law, that the plaintiff is bound by his contract dated March 1, 1930, and that all parts of said contract have been complied with; and that he is not entitled to recover the 20% in any event.”

Plaintiff does not deny making the contract on March 1, 1930. There was not a single assignment in the Court of Civil Appeals attacking the validity of this agreement. Even if it may not have been a binding contract at the time it was signed, it became valid when accepted by the new bank and acted upon in the manner indicated. The only assignment which even suggests that it was unenforceable was one which contends that it was inconsistent with the contract of assignment made by the Commissioner o f Banking. We see no inconsistency at all between the two contracts. They are entirely independent. The one deals with assignment of the assets of the bank, while the other relates to the status which plaintiff’s deposit in the new bank was to assume, and the manner in which it was to be paid. This contract was voluntarily made. There is no complaint that it was illegal, or without consideration, or the result of fraud, accident, or mistake. We see no reason whatever why plaintiff should not abide by this contract; especially after it has been accepted by the bank, complied with by it, and acquiesced in for more than four years. While no authorities are necessary, yet we think the case of Dobbs v. People’s State Bank, 265 Ky. 117, 95 S.W.2d 1111, is to some extent, in principle, pertinent.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

Opinion adopted by the Supreme Court.