author: GRAVES, Justice.

text:
    STAYTON et al. v. RODRIGUEZ.
    No. 11031.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 24, 1940.
    M. R. Irion and Frank Cain, both of Dallas, for appellants.
    A. B. Gerland and C. H. Chernosky, both of Houston, for appellee.
   GRAVES, Justice.

This appeal is from a judgment of the 61st District Court of Harris County overruling the pleas of privilege of J. W. and Alton Stayton to be sued in Chambers County where they resided, in cause No. 260,093, styled Alifonza Rodriguez • vs. J. W. Stayton et al. in the District Court of Harris County, wherein they had been sued along with H. F. Stayton, a resident of Harris County, pursuant to Subsections 4 and 29a of Article 1995, Revised Civil Statutes of 1925, Vernon’s Ann.Civ.St. Art. 1995, subds. 4, 29a.

The subject matter of such cause No. 260,093 in the Harris County District Court was an .action by Alifonza Rodriguez against the three named Staytons, as brothers, two of whom owned a commercial truck line called “Stayton Truck Line”, for damages for injuries to herself as a result of Jose Contreras’ truck, in which she was then riding, having been run over by one of the Stayton trucks, driven by Alton Stayton, as agent and employee of the other brothers as its owners, on July 15, 1939, while both trucks were proceeding along the highway about one and one-half miles west of Wharton in Wharton County, Texas.

The plaintiff in that suit alleged many grounds of negligence by the defendants and especially by Alton Stayton as having each and all been a proximate cause of the accident and resulting damages to herself complained of, including these:

“(a) That Alton Stayton immediately before and at the time he drove said truck against Jose Contreras’ said truck and in so overtaking Contreras’ said truck and negligently and carelessly and in violation of the law, then and there failed in not driving to the right until said road was reasonably clear of Contreras’ said truck.
'“(b) That defendant, Alton Stayton, immediately before and at the time he drove said truck against Jose Contreras’ said truck negligently, carelessly and in violation of the laws of the State of Texas drove said truck at a reckless, excessive and dangerous rate of speed in excess of 50 miles per hour.
“(c) That Alton Stayton immediately before and at the time of said collision under all of. the facts and circumstances then existing, negligently and carelessly operated said truck at an excessive and negligent speed as to endanger plaintiff’s life and the lives of other occupants of Contreras’ said truck.
“(d) That immediately before said collision Jose Contreras’ said automobile and the said third automobile hereinbefore mentioned and the driver who is unknown to plaintiff, were passing each other in opposite directions and said two vehicles had the right of way at said point under the law and defendant, Alton Stayton, at said time was to the rear of Contreras’ said truck and that the defendant, Alton Stayton, at said time mentioned, negligently, carelessly and in violation of the law, attempted at said time mentioned to pass said two vehicles, that is Jose Contreras’ said truck and said third car mentioned.
"(e) That 'Alton Stayton in so overtaking and attempting to pass Contreras’ truck, then and there negligently, carelessly and in violation of the law, failed to give such assistance to the plaintiff, or to Jose Contreras, as the circumstances then reasonably demanded of the defendant, Alton Stayton, in order to obtain clearance and avoid striking Jose Contreras’ said automobile as aforesaid.
“(f) That Alton Stayton in so approaching and- overtaking Jose Contreras’ vehicle, then and there negligently, carelessly and in violation of the law, failed to sound audible and suitable signal to inform the plaintiff, Jose Contreras, of his said approach and attempt to pass.”

The appellants’ pleas of privilege, so presented, were duly filed and in statutory form; the appellee filed her controverting affidavit, likewise in due time and form, and repeated all of her stated averments, attaching thereto a copy of her petition iri that cause.

The trial court heard the pleas of privilege and the controverting plea, received evidence, and arguments of counsel thereon, and overruled the pleas of privilege upon the issues so joined by the parties.

In this court the appellants freely conceded, to quote the language of their brief, “that there was sufficient proof offered, and accepted in evidence to prove each of these elements of a cause of action except the element of negligence”, but with much earnestness they further contend “that there was no evidence, offered and accepted by the court, upon which the trial court could have predicated a finding of negligence against Alton Stayton.”

This court, after a painstaking examination of the statement of facts, including an invited consideration of the physical and geographical scenes therein described and dealt with, is unable to see eye to eye with the appellants, concluding rather that the learned trial court was correct in holding the evidence .to show a probable case of negligence against Alton Stayton, the driver for and employee of the other Stay-tons.

It is true that the evidence was circumstantial in large measure — probably due in part at least to the trial court’s refusal to permit Jose Contreras to testify to the speed of appellants’ truck just prior to the collision — but that fact in no wise militates against its admissibility and potency as proof; indeed, when all the circumstances adduced by the witnesses for the appellee are considered, it seems plain to this court that the trial court was authorized if not required to find that appellants’ driver, at an unlawful speed, dashed up behind and ran into Jose Contreras’ truck, in which this appellee was riding, and, as he himself testified, “tore it to pieces”, when Contreras was properly moving along upon his own right-hand side of the highway at a moderate speed of twenty-five miles per hour, being otherwise in exercise of due care upon his part, as this appellee was also upon hers, and that the impact so precipitated upon him from the rear by the appellants’ truck threw his car — and the appellee within it — with great force around at an angle of about 45 degrees from the direction in which he had been going and across the highway itself and into the near middle of a railroad right-of-way, through a wire fence, perhaps 100 feet in distance; there were many other contributing details of the proof that clearly furnished proper basis for a legitimate inference upon the court’s part that such unlawful spe.ed, and such lack of care in the face of unusual conditions, was so visited upon the appellee by the appellants’ driver; as one of these incidents, it was shown that. almost simultaneously with the attempt of the appellants’ truck to pass the one in which the appellee was so riding, there had been a third truck passing well-nigh abreast of the appellants’ and Jose Contreras’ trucks, but going in the opposite direction along the highway, thereby creating a dangerous situation.

It would serve no useful purpose to detail the testimony, since it is this court’s conclusion from it as an entirety that the controlling ones at least of the quoted allegations of negligence against the appellants and their driver, Alton Stayton, were established to the full measure required by such holdings as those in: Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Sisco v. Sklar, Tex.Civ.App., 113 S.W.2d 999, and Farmer v. Williamson et ah, Tex.Civ.App., 131 S.W.2d 973.

Pursuant to these conclusions, the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: FOLLEY, Justice.

license: Public Domain

text:
    CLARE v. MARONEY et ux.
    No. 5298.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 14, 1940.
    Joe S. Moss and T. L. Price, both of Post, for appellant
    R. L. Graves, of Brownfield, for appel-lees.
   FOLLEY, Justice.

Appellees have filed a motion to advance the submission of this cause by virtue of the provisions of article 4662, R.C.S. of 1925, asserting that the appeal is from the dissolution of an interlocutory order.

The motion must be denied because it appears that the judgment appealed from is one upon the merits embracing only incidentally the dissolution of the interlocutory order. Such an appeal is not within the contemplation of article 4662 providing for the advancement of appeals. McAllen and Harlingen Local No. 688 v. Publix Theatres Corporation, Tex.Civ.App., 51 S.W.2d 1090; Early-Foster Co. v. Mid-Tex Mills et al., Tex.Civ.App., 232 S.W. 1117; Commissioners’ Court of Henderson County v. Burk, Tex.Civ.App., 255 S.W. 793.

The motion is overruled.


author: WALTHALL, Justice.

text:
    J. & C. DRILLING CO. v. CROW & PEASE.
    No. 4011.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 10, 1940.
    Rehearing Denied Oct. 31, 1940.

      Hobart Huson, of Refugio, for appellant.
    Seale & Wood and Minor W. Pitts, Jr., all of Corpus Christi, for appellee.
   WALTHALL, Justice.

This case presents an appeal from a judgment of the District Court of Nueces ■County overruling a plea of privilege by appellant to be sued in Refugio County, the county in which appellant, a private domestic .corporation, has its principal office.

Plaintiffs, lawyers, brokers and dealers in land and mineral interests, brought this suit against defendant for commissions alleged to be due them under a contract for obtaining drilling contracts for defendant.

Defendant filed a plea of privilege, which was controverted, and upon the hearing the plea was overruled by the court on the ground that the cause of action, or a portion thereof, arose in the county of the suit.

Plaintiff’s petition alleged, substantially, that in the latter part of 1936, defendant, a corporation, acting by and through its authorized agents, in Nueces County, Texas, specifically requested plaintiffs to procure for it, and to aid it in the procurement of, a drilling contract or contracts with the Buckingham Oil Company, agreeing to pay plaintiffs the usual and customary commissions for such services in the event plaintiffs were successful in aiding them in obtaining such a contract or contracts.

Inasmuch as there is a controversy as to whether there was a contract between plaintiffs and defendant by which plaintiffs were to be paid for their services for. procuring a contract or contracts for defendant, we state substantially the oral conversation between plaintiffs and defendant and the facts relating thereto as constituting the contract of employment upon which plaintiffs rely, and which were, in the main, undisputed.

Plaintiff Crow and his agent, Collins, took T. G. Benson' and Frank W. Jones, of Refugio County, as prospective purchasers, to look at 3. farm in Nueces County which had been listed for sale with Crow & Pease. Benson and Jones owned all of the stock of the defendant corporation. While returning in their automobile from inspection of the farm, and while in Nueces County, the conversation turned to oil drilling operations in that vicinity. Collins remarked that a few days before Crow & Pease had been instrumental in turning an oil drilling contract to another contractor, and said in the conversation that it was too bad they had not thought of Benson and Jones, Benson replied: “Why didn’t you call me up and tell me about it ?” Crow replied: “We didn’t think about you boys wanting a lease. I thought you were contracted up.” Benson replied: “At any time anything like that comes up call us up. We will take care of you boys. And another thing, old man Bob at Aransas (Charles V. Bob, manager of the Buckingham Oil Company, with leases on properties at Aransas Pass) will have some drilling contracts. You can get us contracts up there, and I know you and Bob are close friends.” Crow replied: “I don’t know about the friend business, but- believe we can get you contracts.” Benson stated : “Go get them now and you get us in there and we will take care of you.” Crow replied: “If there is anything going on like that I can get it for you, because I know Mr. Bob, and have just sold a block for him to drill.” Benson replied: “We will depend on you.”

Crow testified that shortly after the above conversation he saw Mr. Charles V. Bob, of the Buckingham Company, with reference to obtaining such contracts and recommended Benson and Jones, and that Bob asked that Benson and Jones come to Corpus Christi to discuss the matter. Crow called Benson and Jones over the telephone, and they came to his office in Corpus Christi the same day, and Bob came to Corpus Christi and there met Benson and Jones and the negotiations were begun which culminated in the making of the contracts between the Buckingham Oil Company and the J. & C. Drilling Company, whereby the defendant (appellant) contracted to drill nine wells for the Buckingham Oil Company. The contracts and the amount of money paid for each well appear in the evidence and the money paid for the drilling aggregates $246,637.70. We think we need not more fully state the details of the drilling contracts.

Opinion

Appellant presents several assignments of error and propositions thereunder. There is such similarity in the several assignments and propositions that we think to state the several contentions made rather than discuss severally each of the assignments.

Appellant submits that appellees did not show a meritorious and bona fide cause of action, in that the evidence did not show a contract whereby appellant solicited the aid of the appellees in procuring the drilling contracts and agreed to pay them the usual commission for such service in the event such contracts were obtained; that it is not shown that Benson and Jones had authority to make such contract for appellant corporation; that it is not shown that appellee Crow was the procuring cause of the entering into the contract that was entered into between appellant and the Buckingham Oil Company.

We have stated above substantially the conversation between Benson and Jones and Crow and the action taken by the parties as suggested in the conversation which led up to the making of the contracts, and to the action of the parties in performing the several contracts.

We find nothing in the evidence to suggest that the parties were not acting in good faith, so we think the trial court, on the hearing of the plea, could so infer. The evidence, we think, shows a contract of employment.

The record shows that appellant is a private corporation, and appellant so admits in its brief.

The conversation between Benson- and Jones and Crow evidencing the contract of employment having occurred in Nueces County, and also the contract between appellant and Mr. Bob, the cause of action being based upon the contract of employment, and that, or a part thereof, having occurred in Nueces County, it is unimportant as to venue, where the drilling under the contract was to be performed. Subdivision 23 of Article 1995, R.C.S.

Conceding that the conversation between Benson and Jones and Crow sufficiently states the elements of a contract of employment, we think it is not necessary for this court, in this proceeding, to determine the amount or the consideration appellant agreed to pay appellees for their services. The expressions used by Benson and Jones in the conversation with Crow which refer to the pay for the services they were to render in securing the drilling contracts are: “We will take care of you boys,” and “Go get them (contracts) now and you get us in there and we will take care of you,” show, we think, a definite specific promise to pay a consideration for the services to be rendered. “If you (appellees) get us in there,” necessarily means that if appellees were instrumental in getting Mr. Bob to give Benson and Jones the drilling contracts, a money consideration would be due appellees for the services rendered.

We have stated elsewhere appellees’' efforts and the result.

Appellees allege a demand for compensation and a refusal to pay any sum.

In its brief appellant admits that “J. & C. Drilling Company was a private domestic corporation, and that if appellees had a cause of action against appellant under the facts of the record in this case, that such-cause, or a part thereof, arose in Nueces County,” but deny that such cause existed under the evidence. .

When Benson and Jones went to Corpus Christi to discuss the drilling contracts with Mr. Bob they decided to, and did,, take the contracts in the name of the J. & C. Drilling Company, the evidence showing that they owned the stock of the corporation, and in fact were the company in the-contract. Tex.Jur., Vol. 10, p. 651; Hall v. Crawford & Delphenis, Tex.Civ.App., 11 S.W.2d 804; Boston & Texas Corporation et al. v. Guarantee Life Ins. Co., Tex. Civ.App., 233 S.W. 1022; Thompson on Corporations, Sec. 8043; Tex.Jur., Vol. 10, p. 364.

We think the above is all that is necessary or proper for us to consider on the question of venue.

We do not concur in appellant’s apparent contention as to the meaning of the words used by Benson, “We will take care of you,” etc., as meaning that he would take care of appellees, real estate brokers, dealing in lands, mineral leases and drilling contracts, at such time or in a manner as suited his own pleasure.

We say the above only in determining whether the parties had in mind the making of a business contract. We have concluded that the court could fairly conclude, as he did that a business contract was entered into with the intention to pay appel-lees for their services, in the event appel-lees secured the contracts the parties had in mind.

The case is affirmed.


author: CODY, Justice.

text:
    PARKER et al. v. PARKER et al.
    No. 11054.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 10, 1940.
    Rehearing Denied Nov. 7, 1940.
    Carney & Carney and Tom N. Cope, both of Atlanta, Green & Farmer, of Tulsa, Okl., and Smitherman & Smither-man, of Shreveport, La., for appellants.
    Bartlett & Patman, of Linden, for ap-pellees.
   CODY, Justice.

This is a case of first impression in this State, in so far as it involves the question of whether, where parties own different tracts of land which are con-tinguous and lease them in all respects as though they were a single tract owned by the lessors in common, said lessors thereby pool their interest so that they will share pro rata in the royalty no matter from which land oil is produced.

On June 25, 1935, George E. Parker and wife, Mamie W.; Willie Parker and wife, Lelia May; Mrs. Elizabeth P. McGee and husband, Edwin; Erbert Parker; Mrs. Willie Squyers and husband, R. C. Squyers, executed an oil and gas lease to Jones & Ferguson covering 244 acres of land in Cass County, Texas, for the cash consideration of $3,050. The land was described as a single tract of land, and the lease provided for the payment of royalty to each lessor in the proportion that his ownership bore to the whole 244 acres. We subjoin to our opinion a copy of the lease (omitting the acknowledgments) .

In point of fact appellees, who were plaintiffs below, owned a tract of 66 acres, and the remaining Parker heirs owned a tract of 178 acres; and these two tracts formed the 244 acres which was covered by the lease, as before stated.

In June, 1936, the lessees paid the rentals in lieu of the drilling obligations to keep the lease in force. And thereafter the lessees, Jones & Ferguson, assigned a certain 80 acres, which constituted a part of the George E. Parker et al. 178 acres, to Bay Oil Corporation, who drilled thereofi and brought in a producing well.

Subsequent to the completion of the discovery well, Jones & Ferguson (lessees) assigned all the remainder of the lease to the Ray Drilling Company, which completed three producing wells on the 178-acre tract; and no wells have ever been drilled on the 66-acre tract.

In June, 1937, the Ray Drilling Company tendered to the credit of appellees rental on the 66 acres in lieu of performing drilling obligations. In this connection a special issue was submitted to the jury, the answer of which will be found to dispose of any question which such action might be considered to have raised.

Appellees, as plaintiffs, brought this suit to have the court construe the lease as a “unitized” or pool lease, and to be declared the owners of 66/244ths of the one-eighth royalty provided for by the lease. Appellees further allege that ap-pellee, Erbert Parker, was a half brother of the owners of the 178 acres, and that he and they had always been friendly in their dealings, and that it was mutually understood by the parties to the lease at the time it was executed that production on any part of the 244 acres should inure to the benefit of all so that all lessors should participate in the royalty from production had from any part of the 244 acres, and in the alternative pled that if the lease as drawn was insufficient to effectuate the intention of the parties to make of the lease a “unitized” one, that said lease be reformed, etc.

In response to special issues the jury found:

1. That the parties who signed the lease, prior to and at the time of signing it, had orally agreed that the lease was to be considered a unitized lease.

2. That Mrs. Willie Adcock (one of the appellees owning the 66 acres), after the discovery of oil, received and accepted delay rentals at the rate of a dollar an acre on her interest in the 66-acre tract, set apart to her and her son by partition in 1918. -

3. That appellee, Erbert Parker, after the discovery of oil did not receive and accept delay rentals at the rate of a dollar an acre on his interest in the 66-acre tract set apart to him and his mother in the partition in 1918.

4. That Erbert Parker and Mrs. Willie Adcock, appellees, did not fail to claim any royalty from the lessee or the lessee's assigns before the drilling of the well drilled subsequent to the discovery well.

The court rendered judgment for appel-lees that they owned 66/244ths of the one-eighth royalty from the whole 244-acre tract covered by the lease in question.

The primary question here involved was passed on by the Supreme Court of West Virginia in South Penn. Oil Co. v. Snodgrass, 71 W.Va. 438, 76 S.E. 961, 963, 43 L.R.A.,N.S., 848, where it was held that an oil and gas lease executed by three several owners of contiguous lands, embracing which said lands described the demised premises as a single tract, contemplating a single well as a condition of its continuance, providing for payment of delay money to them jointly and, otherwise, treating them as tenants in common, is a joint lease of a single tract of land. In the opinion the court said: “Nowhere in the lease is there an intimation of several ownerships of parts of it, or a suggestion of intent to make separate tenancies. The proviso is for ‘a well,’ not wells, ‘on the said premises’ * * *. The clause providing for extension of the lease beyond the 10-year [i. e. primary] term requires only production of oil or gas thereafter, without any stipulation for production from more than one place or any particular place.”

Again the court said: “We perceive no legal obstacle to a combination of several tracts of land, owned by different persons, into a lease as a single tract, since the lessors can apportion the rental among themselves in amounts corresponding with their interests, and we have decided that it can be done.” The holding is sound. In the instant case the lessee was bound to pay a one-eighth royalty to “lessor”, and the “lessor” in the lease consisted of several owners. The Supreme Court of Louisiana has reached the same conclusion. Nabors v. Producers’ Oil Co., 140 La. 985, 74 So. 527, L.R.A. 1917D, 1115. In the case just referred to the court held: A mining lease whereby several lessors or grantors dispose of the mineral rights on several tracts of land for a gross price, without stating the amount paid to each grantor and without stating or designating the area of land belonging to each grantor, creates a joint obligation. And “The language of the instrument leaves no doubt that their contract was joint and not severable. For example, the contract declares that lessees [lessors] are to be ‘hereinafter styled grantor, whether one or more.’ ” The holding by the Supreme Court of California is in accord with that of Louisiana and West Virginia. Higgins v. California Oil & Asphalt Co., 109 Cal. 304, 41 P. 1087. See, also, Campbell v. Lynch, 81 W.Va. 374, 94 S.E. 739, L.R.A. 1918B, 1070. It is true that the Court of Appeals of Louisiana has expressed a different view from that of its own Supreme Court. United Gas Public Service Company v. Eaton, La.App., 153 So. 702, 709. But this opinion is by the intermediate court, not by the Supreme Court of Louisiana, and its force is weakened by the dissent of Mills, J. In his dissenting opinion he points out that, under the case of Nabors v. Producers’ Oil Co., supra, the lease there in question is a joint or entire lease and not severable. He says, “Why should this lease, which contains no suggestion of separation of interest. in the description of the land or terms, be held a joint lease as to everything except its very essence [,] development? The view adopted in the majority opinion does not make of it a gambling proposition, as suggested, but on the other hand invests the lessees with the sole power to determine whose land they will develop and which one of the joint lessors will receive the whole consideration for the lease to the exclusion of joint lessors. * * * I cannot conclude from the terms of the lease that any such condition was contemplated. On the other hand, it seems reasonable to me that the intention -was that all the joint lessors should share proportionately in the consideration realized from the joint venture. To me, the best indication that the lease was intended to be joint is that the lessors entered into a joint and not a separate lease.” We have not at hand the means of determining whether this case ever reached the Supreme Court. In any case, the opinion of Judge Mills is correct in principle. The owners of the land by the form of the lease have empowered the lessee to treat the tract of land as subject to a common ownership, and to keep the lease alive by drilling at any place thereon, and could arbitrarily or accidentally refrain from ever drilling upon the land of one of the lessors, and yet keep such lessor’s land subject to his lease. The courts would not place a construction on a contract which would thus work a manifest injustice and hardship upon some of the parties unless the intent was clear and unambiguous. But in the present instance the clear terms of the lease require the “lessee” to-pay the cash consideration to the “lessor” (i. e., to all the owners) on the basis that the tract is leased as a whole, and to pay the royalties to the same “lessor”, in the proportion that the property belonging to each bore to the entire 244 acres, no matter in what part of the tract production is had. The lease here in question by its terms is a unitized lease as a matter of law. But this result was not an unforeseen accident brought about by unskillful drafting of the lease. The evidence shows, and the jury found, that the parties definitely and expressly intended the result which the lease as drawn effectuates.

What we have said disposes of the contention that the statute of frauds presents an obstacle to the holding that the lease is one that is “unitized”. The lease is in writing and signed by all the parties, and it is the written terms of the lease, not any mere oral agreement, that imposes upon the “lessee” the' obligation to pay the royalties to the “lessor” on the production wherever the well may be located on the lease.

We affirm the case without further comment than to add that we find that Japhet v. McRae, Tex.Com.App., 276 S.W. 669, is not in point.

Exhibit

“George E. Parker, TO M. Carl Jones and et al. E. C. Ferguson.

“Agreement, Made and entered into this 25th day of. June, 1935, by and between George E. Parker, and Mamie W. Parker, his wife, Willie Parker, and Lelia May Parker, his wife, Mrs. Elizabeth P. McGee, and Edwin McGee, her husband, Erbert (Erby) Parker, single, and Mrs. Willie Squyers, and R. C. Squyers, her husband, of Cass County, Texas, party of the first part hereinafter called Lessor (whether one or more), and McCarl Jones and E. C Ferguson, both of Shreveport, Louisiana, party of the second part, Lessee.

“Witnesseth: that the said Lessor, for and in consideration of Three Thousand & Fifty ($3050.00) Dollars, cash in hand paid, and other good and valuable considerations, receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained, on the part of the Lessee to be paid, kept and performed, has granted, demised, leased and let, and by these presents does grant, de-mise, lease and let unto the said Lessee, for the sole and only purpose of mining and operating for oil and gas, and laying pipe lines, and building tanks, power stations and structures thereon to produce, save and take care of said products, all that certain land situated in the County of Cass, State of Texas, described as follows, to-wit:

“Being two hundred and forty four (244) acres of land, more or less, out of the Greenham Crowder Survey, being ful'ly described in a deed from C. L. Shelton and wife, I. M. Shelton, to J. B. Parker of date April 13th, 1903, duly recorded in the Deed Records of Cass County, Texas, in Vol. B-3, page 289, and deed from L. W. Parker and wife, S. I. Parker,, to J. P. Parker, of date February 9th, 1907, duly recorded in the deed Records of Cass County, Texas, in Vol. Q-3, page 606, less 14 acres deeded by J. P. Parker to W. P. Parker, as per deed of December 30th, 1910, duly recorded in the Deed Records of Cass County, Texas, in Vol. Q-3, page 609, reference being hereby made to the deeds referred to for a full description of the land and premises to which this lease applies.

“It is the intention of the parties that this lease cover and apply to all lands whatsoever owned by the lessors in the said Greenham Crowder Survey, Cass County, Texas, whether specifically described herein or not, or whether specifically' described in the deeds to which reference is hereinabove made or not. Containing 244 acres, more or less.

“It is agreed that this lease shall remain in force for a term of five years from this date (hereinafter called ‘primary term’) and as long thereafter as oil, gas or either of them is produced from said land by Lessee or the obligations in lieu of production are fulfilled. •

. “In consideration of the premises the said Lessee covenants and agrees:

“(1) To deliver to the credit of Lessor, free of cost, in the pipe line to which he may connect his wells, the equal one-eighth part of all oil produced and saved from said leased premises.

“(2) To pay to Lessor at the rate of Two Hundred ($200.00) Dollars per year, payable quarterly, for each well producing gas (whether casinghead gas or otherwise) while such gas is not being utilized or sold off the premises, whether before pipe line connection or during subsequent suspension of withdrawal, but during the time such gas shall be utilized or sold off the premises the royalty above named shall cease and the Lessor shall be paid one-eighth (1/8) of the value of such gas in its natural state (including gasoline, whether same be recovered by drips or through an absorption plant or by any other process), calculated at the rate of three (3‡) cents per one thousand cubic feet, corrected to two pounds above atmospheric pressure, and Lessor to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling house on said land during the same time by making his own connections with the well at his own risk and expense.

“It is agreed that taxes levied on the severance or production of oil and gas hereunder shall be due and payable in the following proportions:

“One-eighth by the Lessor, and seven-eighths by the Lessee.

“If drilling operations are not commenced on said land on or before the 25th day of June, 1936, this lease shall then terminate as to both parties, unless Lessee shall pay or tender to Lessor or to the Credit of Lessor in Atlanta National Bank at Atlanta, Texas, (which bank is Lessor’s agent) the sum of Two Hundred Forty Four Dollars ($244.00), (hereinafter called ‘rental’), which shall extend for twelve months the time within which drilling operations may be commenced. Thereafter, annually, in like manner, and upon like payments or tenders, the commencement of drilling operations may be further deferred for periods of twelve months during the primary term. The payments or tenders of rental may be made by the check or draft of Lessee mailed or delivered to said Bank, on or before such date of payment. Drilling operations hereunder shall be deemed to be commenced when the first material is placed on the ground. Notwithstanding any devolution. change or division in the ownership of said land, the payments or tenders of rental in the manner herein provided shall he binding on the successors, assigns or legal representatives of Lessor. If such bank (or any successor bank) should fail, liquidate or be succeeded by another bank, Lessee shall not be held in default for failure to make such payments or tenders until thirty days after Lessor shall deliver to Lessee an instrument in writing, duly executed and acknowledged, naming another bank as agent to receive such payments or tenders. And it is understood and agreed that the consideration first recited herein the down payment, covers not only the privilege granted to date when said rental is payable as aforesaid, but also Lessee’s option of extending that period as aforesaid, and any and all other rights herein conferred.

“If prior to the discovery of oil or gas on said land Lessee should drill a dry hole or holes thereon, this lease shall not be terminated thereby, if Lessee, on or before the next ensuing rental paying date commences further drilling operations or commences or resumes the payment of rentals. If after the discovery of oil or gas .the production thereof should cease from any cause, this lease shall not be terminated thereby if Lessee commences additional drilling operations within sixty days thereafter, or (if it be within the primary term) commences or resumes the payment or tender of rentals' on or before the next ensuing rental paying date, or fulfills the obligations in lieu of drilling or production. If at the expiration of the primary term oil or gas has not been found on said land, but Lessee is then engaged in drilling operations thereon, this lease shall remain in force so long as drilling operations are prosecuted, and, if they result in the finding of oil or gas, so long thereafter as oil or gas is or can be produced from any well on said land, but if such well, being .drilled when the primary term expires, then Lessee shall have the option to commence other drilling operations within sixty days from the completion or abandonment of such attempt, for drilling of another well on said 'land in search of oil, gas or other minerals and in like manner this lease may be maintained in existence after the primary term by the drilling of other wells until oil, gas or other minerals are found in paying quantities, provided not more than sixty days shall elapse between the completion or abandonment of one well and the beginning of operations for the drilling of another.

“The Lessee shall have the exclusive right to take all waste oil, from its own wells, or coming on this property from other sources and agrees to pay to Lessor an equal one-eighth thereof, if utilized or sold.

“If said Lessor owns a less interest in the above described land than the entire and undivided fee simple estate therein, then the royalties and rentals herein provided shall be paid the Lessor only in the proportion which their interest bears to the whole and undivided fee.

“Lessee shall have the right to use, free of cost, gas, oil and water produced on said land, also waste oil, for their operations thereon, except water from wells of Lessor.

“When requested by Lessor, Lessee shall bury their pipe lines below plow depth.

“No well shall be drilled nearer than 200 feet to the house or barn now on said premises, without the written consent of the Lessor.

“Lessee shall pay for damages caused by their operations to growing crops on said land.

“Lessee shall have the right at any time to remove all machinery and fixtures placed on said premises, including the right to draw and remove casing.

“If the estate of either party hereto is assigned, and the privilege of assigning in whole or in part is hereby expressly allowed, the covenants hereof shall extend to their heirs, executors, administrators, successors, or assigns, but no change in the ownership of the land or assignment of rentals or royalties shall be binding on the Lessee until after the Lessee has been furnished with a written transfer or assignment, or a true copy thereof; and it is hereby agreed in the event this lease shall be assigned as to a part or as to parts of the above described lands and the as-signee or assignees of such part or parts shall fail or make default in the payment of the proportionate part of the rents due from him or them, such default shall not operate to defeat or affect this lease is so far as it covers a part or parts of said lands upon which said Lessee or any as-signee thereof shall make due payment of said rental.

“Lessor hereby warrants and agrees to defend the title to the lands herein described, and agrees that the Lessee shall have the right at any time to redeem for Lessor, by payment, any mortgage, taxes or other liens on the above described lands, in the event of default of payment by Lessor, and be subrogated to the rights of the holder thereof.

“In Testimony Whereof, We Sign, this the 25th day of June, 1935.

“$3.50 in Revenue Stamps

“Duly Cancelled.

“George E. Parker

“Mamie W. Parker

“Erbert Parker

“Willie Parker

“Lelia Mae Parker

“R. C. Squyres

“Willie Squyres

“Edwin (J) McGee

“Mrs. Elizabeth P. McGee,

“Lessors.”


author: PRICE, Chief Justice.

text:
    WOODMEN OF THE WORLD LIFE INS. SOC. v. SOSEBEE et al.
    No. 3979.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 19, 1940.
    Rehearing Denied Oct. 10, 1940.

      Thomas & Thomas, of Anson, for appellant.
    Smith & Smith, of Anson, for appel-lees.
   PRICE, Chief Justice.

Plaintiffs, as the heirs of Homer Sose-bee, deceased, instituted this action in the District Court of Jones County against Woodmen of the World Life Insurance Society, as defendant, on a certificate or policy issued by the Woodmen of the World on his life. Trial was to a jury on special issues. Judgment was entered on the verdict in favor of plaintiffs, and defendant has perfected this appeal.

Beyond question if the policy was in force on the date of the death of Homer Sosebee, plaintiffs had the right to recover th.ereon.

Homer Sosebee died on the 3rd day of January, 1938.

Determination of two questions raised by the brief of appellant will dispose of. this appeal: First, did, prior to the death of the insured, the policy lapse and terminate on account of failure to pay the premium due thereon on or before the last day of March,. 1932? Second, did the Court err in allowing Marvin Sose-bee to testify as to a purported letter written by the witness to the defendant’s agent, V. A. Eblen?

The pleadings of the parties were sufficient to raise all of the matters hereinafter discussed. The evidence ■ is practically undisputed — However, insufficient as a matter of law to establish the facts beyond issue.

The policy sued on was issued to Homer Sosebee in December, 1913, at Paducah, Texas. It contained a provision for the automatic lapsing of the policy for failure to pay all dues and assessments on or before the last day of the month of their accrual. The policy was issued by a fraternal benefit society, the constitution and laws of which provided that no subordinate body, subordinate officer or member should have the power to • waive any of the provisions of the constitution and laws of the society. The provision before referred to as to payment of assessments and dues was likewise a part of the constitution and laws of the Order and a part of the contract here in question. Beyond any question Art. 4846, R.S.1925, applied to the policy in question.

The dues and assessments for the month of March, 1932, on the policy were not paid on or before the last day of that month. Appellant, who will hereinafter be referred to as defendant, contended that the policy thereby automatically lapsed, and from shortly after March, 1932, has consistently at all times taken that position.

In regard to this failure, plaintiffs by pleading alleged that prior to the accrual of said dues for said month that it was agreed by and between Marvin Sosebee and V. A. Eblen, the clerk of the local Lodge charged by defendant with receiving and collecting dues and assessments from members, that thereaftér the said Eblen would draw a draft therefor, when same became due, on said Sosebee’s bank in Anson, Texas; that the said agent of defendant failed to so draw the said draft; that if same had been drawn it would have been promptly paid; that he relied on the agreement of Eblen to draw the draft, and but for such reliance would have paid such dues in accordance with the assessment; that if the draft had been drawn the dues would have been paid; that as soon as it was learned that Eblen had not drawn the draft as promised, the dues were tendered to the defendant through Eblen; that from time to time as they accrued plaintiffs have tendered the dues to the defendant and defendant has refused to accept same.

A brief statement of the evidence as to the payment of dues and assessments accruing on this policy will aid in the discussion of the questions involved. From the date of the issuance of the policy up to 1928 Homer Sosebee paid the dues thereon at times and in amounts satisfactory to defendant. These payments were made to the clerk of the local Camp at Paducah, Texas. In 1928 Homer Sose-bee’s mind failed and he was committed to an institution in San Antonio for care and treatment; thereafter two of his brothers for sometime paid the dues and assessments on the policy; then Marvin Sosebee, another brother, undertook to make payments. He paid the assessments by his check, at times paying two or three months in advance. On January 8, 1932, he paid to Eblen the dues for January and February, 1932, by his check. In the letter transmitting said check he made the request of Eblen that thereafter Eblen draw on him for the dues through the bank at Anson, Texas. Eb-len promptly replied in substance that he had communicated with the bank and the arrangement was satisfactory. Eblen did not draw the draft for the dues for March, 1932. Had the draft been drawn it would have been promptly paid. On April 26, 1932, Sosebee received a letter from Eblen apprising him that_the March dues had not been paid. Immediately on receipt of the letter Sosebee sent Eblen a check covering the March and April dues. On May 1, 1932, Eblen sent Sosebee a receipt for the March and April dues. Eb-len .forwarded these dues to the defendant. Defendant in due time returned same to Eblen and Eblen tendered same to Sosebee.

Beyond any question the constitution and by-laws of the defendant Order were binding on the policy holders. No subordinate body nor officer thereof had the power to alter, vary or modify same. The certificate and the constitution and laws provided for the automatic forfeiture of the policy for failure to pay the dues in the time prescribed. The constitution and by-laws in accordance with Art. 4846, R.S.1925, provided that no subordinate body nor member could alter or waive same. If the action charged against Clerk Eblen in any way was in violation of the constitution and laws, in that it altered or varied the contract, then it could not operate as a waiver or estop-pel. It lacks efficacy as a waiver because it was without authorization; lacks efficacy as an estoppel because there being no authority and plaintiffs, being charged with notice of such lack of authority, could not he misled thereby. The requirement of the contract was that payment must be made on or before the last day of the month. By -express provision it was beyond the power of Eblen to either waive or alter this provision. His authority was to collect, receive and transmit the amounts due under the contract. This authority he derived from the defendant. If this be true, he was an agent of the defendant, an agent with a narrow and limited authority, but an agent nevertheless. It is true that he was without authority to collect after the thirty days contemplated had expired, but within that thirty days he had the power and duty to receive and collect for the. defendant.

The manner of receiving and collecting was not prescribed in the constitution and laws or the certificate. A strict construction of the authority would be that he could only receive cash. Such a construction would absolutely ignore the surrounding facts and circumstances and the usual and customary way of doing business of this character. Of course, from time to time he took the checks of the members for their dues. Taking checks involved the duty of presenting same to the bank for payment. This duty we think he owed to the defendant.

Under the facts and the verdict, however, we have a somewhat different question involved. Instead of a written order on his bank Sosebee authorized him to make a written order on the bank instead of giving him a check. Eblen, after communicating with the bank, indicated his assent thereto. Drawing and presenting the draft was perhaps as convenient as presenting a check. This arrangement, perhaps, conduced to the convenience of each party. Incidental to the authority to. receive and collect, we think likewise Eblen had the implied' authority to make any reasonable arrangement to facilitate his performance of this duty, provided this authority was not expressly withheld from him. Likewise, we think, the power to accept payments included the power to accept conditional payment. An illustration of this power is the receipt by the agent of the debtor’s check. Payment is conditioned on the payment of the check.

While the agency of Eblen was limited and special, when acting within the scope thereof his acts were the acts of the defendant. Sovereign Camp, W.O.W. v. Piper, 5 Cir., 93 F.2d 354; Modern Woodmen of America v. Harper, 127 Tex. 489, 94 S.W.2d 156; Johnson v. Sovereign Camp, W.O.W., 125 Tex. 329, 83 S.W.2d 605.

Johnson v. Sovereign Camp, supra, has much in common with the instant case. It is true that there the practice of having the clerk apply to the bank for payment had subsisted for a long time. Here, the representative of the defendant made a written representation that he would make demand on the bank. This promise was relied upon. Under the contract if it had been fulfilled the March payment would have been paid. In Johnson v. W.O.W. it was held that the Society was estopped, not on the ground of any actual or presumed notice of the Sovereign Camp of the conduct of the agent, but on account of the fact that the clerk was its agent. The clerk, by his conduct, acting in behalf of the Society, created duties to the plaintiffs. The duty was something more than to merely receive and transmit the premiums. This duty arose by reason of the conduct of the agent alone.

The case of Sovereign Camp, W.O.W. v. Newsom, 142 Ark. 132, 219 S.W. 759, 14 A.L.R. 903, is strongly persuasive here. There, the dues were paid by the agent of the Society drawing a draft on assured. The agent failed to draw for the March assessment and same was not paid in the time provided. It was held that the Society was estopped to forfeit on account of non-payment. Further, the facts being established, an instructed verdict was justified. This case has been followed by a long line of decisions in Arkansas and several other states.

We think also the principle announced in McCorkle v. Texas Benevolent Ass’n, 71 Tex. 149, 8 S.W. 516, applies here. In that case a general agent acted. But it is only a question of authority. Acts of an agent within the authority delegated are the acts of the principal. Within the thirty days contemplated there was no restriction placed on Eblen as to the place, manner or mode of collecting and receiving payment.

The cases cited by appellant on the proposition in substance that plaintiffs utterly failed to make a case have received our careful consideration and study. We believe all are distinguishable from the instant case. We shall not prolong this opinion with a detailed discussion, but confine ourselves to one case.

Appellant forcefully asserts that the case of Sovereign Camp, W.O.W. v. Moraida, 131 Tex. 250, 113 S.W.2d 177, is conclusive on this point. In that case the collecting agent, without notice to or authorization from the Sovereign Camp, undertook to extend the time of payment of the monthly dues. This action was contrary to the constitution and laws of the Society, and hence 'not binding on the defendant therein. In our opinion there is no conflict between that case and the case of Johnson v. Woodmen, supra. In the former case the agent was acting entirely without the scope of his authority; in the latter the action was within the scope of the authority of the agent.

All assignments of error as to failure to grant instructed verdict or judgment non obstante veredicto are overruled.

In our opinion a'judgment in favor of plaintiffs can only be sustained on the finding that Eblen made with Marvin Sosebee the agreement alleged and submitted. The allegations of plaintiffs’ petition fail to show whether such agreement was oral or written.

If agreement there was between Marvin Sosebee and defendant’s agent, it was evidenced by the letter of Marvin Sosebee to said agent and 'the reply. The reply was in evidence and was as follows:

“I will be very glad to draw on you and the bank said it would be O. K.
“Thank you very much.
“V. A. Eblen.”

The witness testified that the above letter was in reply to a letter written by him to Mr. Eblen. In seeking to lay a predicate for parol evidence of his letter to Eblen the witness testified that he had been unable to secure the original; he had visited Mr. Eblen’s home at Paducah and made inquiry for Eblen, but at that time Eblen was not at home, and he talked to Mrs. Eblen. There was objection to what Mrs. Eblen said, and witness did not testify as to same. He further testified he had made an effort to obtain the letter. Counsel then in open court made demand on defendant to produce the letter. Counsel for defendant then stated that it was the first time it had been apprised that any such letter had been written and it had no such letter in its possession and no notice had been given to produce such letter. Witness was then asked to state the contents of the letter. Defendant then interposed these objections: “The defendant excepts further to the witness undertaking to testify as to the contents of a letter written by himself to the Clerk of the Local Camp at Paducah, Texas, for the reason that this defendant was never apprised that the plaintiff would undertake to introduce any such letter, or the contents of any such letter, or even that such letter was written, until counsel undertakes to admit such testimony during the trial of this case. The defendant has had no notice whatever to produce the original of such letter, and had no opportunity whatever to make any investigation in regard to any such letter, or to prepare its defense to meet the contents of any such letter, and at the time of the making of this objection, has no idea as to what the contents of the letter may be; and it is wholly a self-serving declaration on the part of one of the plaintiffs in this case. The letter itself would be the best evidence, and it is not binding on this defendant under the Constitution Laws and By-Laws of this Society and the contract sued on; wholly inadmissible for any purpose.”

These objections were overruled and defendant excepted.

The witness testified as follows: “I wrote Mr. Eblen about the first of January, 1932, sending him a check to pay two months dues for Homer V. Sosebee, and at the same time requesting Mr. Eb-len that for subsequent months that he draw a draft on me, through the bank here at Anson, to pay the monthly dues each month, as they accrue, and in. reply in sending me the receipts back, his letter is attached to the receipts sent to me.”

In order to introduce secondary evidence of a written document charged to be in the possession of an adverse party, a reasonable notice to produce same must be served on such party. There are exceptions, or apparent exceptions, to the rule, such as where the pleadings contain such notice or where by the very nature of the suit said party is charged with the' possession thereof. The reasonableness of the notice depends on the surrounding conditions. If the document is then in the immediate control and possession of such party, then notice at the trial would seem to be sufficient. Wigmore, 3rd Ed., Vol. 2, Sect. 1204. The purpose of the requirement is to afford the party time and opportunity to produce same from his possession. If there is a denial of possession it would seem that notice in the course of the trial should he sufficient. Gainer v. Cotton, 49 Tex. 101, Syllabus 11; Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390; Fowler Paper Co. v. Jones Sales Book Co., 183 Ill.App. 310.

Of course, as stated in Dunbar v. United States, supra, where there is a denial of possession the existence of the document is an issue in the case.

The objections as made, we think, only challenge the predicate for the admission of the ground for failure to serve notice to produce. No objection was' made to the witness’s statement that he was unable to obtain the letter. He said he had gone from Anson to Paducah to obtain the letter, inquired of Eblen’s wife. If the objection had been made that he had shown no proper diligence to obtain the original, the predicate might have been more complete. We are inclined to the belief that even though this objection had been made the showing was sufficient. The letter had been mailed to a point outside the jurisdiction of the court. If in Cottle County a subpoena duces tecum could not legally compel its production in the District Court of Jones County. Sayles v. Bradley & Metcalf Co., 92 Tex. 406, 49 S.W. 209; Missouri, K. & T. Ry. Co. v. Dilworth, 95 Tex. 327, 67 S.W. 88.

However, this is perhaps beyond the issues here involved. The only objection as to the lack of predicate was the failure to give defendant a notice to produce. In reply to the notice to produce defendant did not object on account of lack of time, but denied possession. If additional time had. been given there is no evidence that the defendant could or would have produced the letter.

The cancelled check for the payment of the January and February dues of 1932 and the receipt therefor were in evidence.

We overrule the assignments presenting this matter.

There is an assignment questioning the correctness of the court’s action in overruling a special- demurrer to plaintiff’s allegations as to penalty and attorneys’ fees.

The first amended petition of plaintiffs as to penalty and attorneys’ fees is as follows: “Plaintiffs would further show to the Court that the notice of the death of the insured and the claim for the insurance has been filed with the defendant for more than 30 days before the filing of this suit and that the defendant denied liability and wholly repudiated and breached, or attempted to breach, its said contract, and plaintiffs have elected and now declare that they are entitled to a 12% penalty against the defendant for failure in refusing to pay said claim, and the 12% penalty is recoverable against the defendant * * *; that they had contracted and agreed to pay said attorneys a reasonable fee for their services, and would further show to the Court that $300 would be a reasonable attorney’s fee in this cause.”

To this pleading defendant addressed the following special exceptions, Nos. 9 and 10: “9. This defendant specially excepts to Section 7 of said petition wherein plaintiffs allege they are entitled to recover attorneys’ fees and 12% penalty against this defendant for the reason ’that, under the laws of this State, the plaintiffs do not therein allege facts which enable or entitle them to recover attorneys’ fees or penalty against this defendant.”

Special exception ten is not reproduced because it is practically the same as No. 9.

These exceptions were overruled, as shown by the judgment of the Court, over the exception of defendant.

Article 4831a, Vernon’s Annotated Civil Statutes, is applicable here as defendant is a fraternal benefit society. It provides, in substance, in all cases where a loss occurs and the Society liable therefor shall fail to pay the same within sixty days after the demand therefor, such Society shall be liable to pay the holder 12% damages on the amount of the loss, together with a reasonable attorney’s fee. Generally speaking, statutes providing for penalty and attorney’s fees on failure to pay an insurance policy are penal in their nature and are to be strictly construed. Mutual Life Ins. Co. v. Ford, 103 Tex. 522, 131 S.W. 406; National Casualty Co. v. Mahoney, Tex.Civ.App., 296 S.W. 335; Southland Life Ins. Co. v. Dunn, Tex.Civ.App., 71 S.W.2d 1103.

Now the averment that they had failed to pay after demand for more than thirty days is not tantamount to an averment that they had failed to pay within sixty days. More than thirty days may be more than sixty days and it may be less. It is true that the special exceptions as to this matter in form are simply general demurrers, but in our opinion the averments quoted and the entire petition fail to aver an unequivocal demand for payment and a failure for sixty days to comply therewith. The original petition of plaintiffs appears in the transcript. The file mark was introduced in evidence, but not the petition itself, as we understand it. The original petition cannot be used in aid of the aver-ments of the trial petition.

There was error in overruling defendant’s special exceptions.

It appears that the 12% penalty awarded amounted to $100.88, and attorneys’ fees were allowed in the sum of -$250. If ap-pellees file a remittitur of said amounts, together with interest accrued thereon, within twenty days from the date of the handing down of this opinion, the judgment will be affirmed; otherwise same is reversed and remanded.


text:
    TAYLOR et al. v. BREWSTER COUNTY.
    No. 3966.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 19, 1940.
    Rehearing Denied Oct. 10, 1940.
    Jones, Turney, Hardie, Grambling & Howell, of El Paso, Arthur Owens, of Alpine, and Weaver H. Baker, of Junction, for appellants.
    Joseph G. Bennis, of El Paso, and A. M. Turney, Co. Atty., and Frank O. Ray, both of Alpine, for appellee.
   PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Brewster County. Brewster County, the appellee, recovered against the appellant Elmer Taylor, Sheriff and Tax Collector of said county, and appellant American Employers Insurance Company, the surety for Taylor in his official capacity, the aggregate sum of $2,020.09, and with judgment over for said amount in favor of appellant surety against appellant Taylor for said sum, together with the additional sum of $298. One thousand eight hundred and fifty-five and 28/100 dollars of the main judgment bearing interest at the rate of six per cent per annum from January 1, 1938, the balance with six' per cent interest from January 1, 1939. The alleged basis for the judgment was failure to account by appellant Taylor for excess official fees. The pleadings of ■the parties are somewhat voluminous and it is not deemed necessary to set forth their substance. Suffice it to say that they are .deemed sufficient to raise all of the questions hereinafter discussed. Trial was to the court without a jury and upon stipulated facts. The stipulation as to the facts, omitting caption, signature of counsel for the parties and certificate of the trial judge, was as follows:

“The plaintiff and defendants and their respective attorneys of record, in open court, in the above cause, stipulate and agree that the facts upon which the court rendered his judgment in this cause are as follows:
“(a) That Elmer Taylor was the duly elected, qualified and acting Sheriff, Collector and Assessor of Taxes for Brewster County, Texas, for the calendar years 1937 and 1938.
“(b) That Elmer Taylor, at the request of the officials of the Marathon Independent School District and the Alpine Independent School District, both political subdivisions of Brewster County, Texas, assessed all properties within the boundaries of such school districts for the calendar years 1937 and 1938, and collected all the taxes due thereon for such years.
“(c) That for the calendar year 1937 Elmer Taylor retained for the assessing of such school taxes in such districts the sum of $430.82 and for the collection thereof the sum of $817.68.
“That for the calendar year 1938 Elmer Taylor retained for the assessing of such school taxes in such districts the sum of $519.14 and for the collection thereof the sum of $913.32.
“(d) That all of the aforesaid sums of money, aggregating $2,680.96, are in addition to the maximum of $3,000.00 per annum allowed by law unto Elmer Taylor as Sheriff, Collector and Assessor of Taxes for Brewster County, -Texas, and constitute moneys derived exclusively from the taxes of such school districts.
“(e) That Brewster County, Texas, has a population, according to the last Federal census, of less than 10,000 people.
“(f) That all other items set out in plaintiff’s first amended original petition, together with the first supplement thereto, are, as a matter of fact, law and equity, properly allowable unto the defendant Elmer Taylor.
“(g) That the officials of Brewster County, Texas, were placed on a fee basis of compensation for the calendar years of 1937 and 1938.
"(h) During the year 1937 the Commissioners’ Court of Brewster County authorized the payment to Elmer Taylor of ex-officio compensation in the amount of $2,790.00, and such compensation was paid in equal monthly installments throughout 1937.
“(i) The American Employers Insurance Company is the surety on Elmer Taylor’s bond for the years 1937 and 1938 and is liable, as such surety, for any judgment rendered against Elmer Taylor, unless relieved by reason of the payment to Elmer Taylor of the ex-officio compensation above referred to.
“(j) During the years of 1937 and 1938, respectively, the defendant Elmer Taylor received those certain sums of money set out in plaintiff’s first amended original petition.
“(k) It is agreed that-$250.00, plus actual expenses, is a reasonable fee for services rendered by the attorneys for the American Employers Insurance Company.”

This stipulation is dated the 8th day of September, 1939, and was filed in the office of the District Clerk on that date. The Judge’s certificate to the agreed statement of facts bears the same date, and it is certified that the cause was tried upon said agreed facts alone.

Incorporated in the court’s judgment are the following findings of law:

“(Z) The Court finds, as a matter of law, that the defendant, Elmer Taylor, is required by law to account, as fees of office, for the sum of $430.82, received by him as compensation for the assessing of Independent School Taxes for the year 1937, and the further sum of $817.68 as compensation for the collecting of Independent School Taxes for the year 1937, said sums aggregating $1248.50; that said sum being charged to the said Elmer Taylor and due credit being given him for all authorized deductions for the year 1937 there remains due and accountable by the said Elmer Taylor to the plaintiff, County of Brewster, the sum of $1855.28.
“(m) That during the year 1938 the defendant, Elmer Taylor, retained for the assessing of Independent School Taxes the sum of $519.15 and for the collection of such taxes the sum of $913.32, aggregating the sum of $1432.46, which said sum the court finds, as a matter of law, are fees of office of the said Elmer Taylor, as Sheriff, Tax Assessor and Collector of Brewster County and for which the said Elmer Taylor is bound in law to account to the plaintiff; charging the said Elmer Taylor with said aggregate sum of $1432.46 as fees of office and allowing the said Elmer Taylor all authorized deductions for the year 1938 there remains $165.81 excess fees for which the said Elmer Taylor is bound in law to account to the plaintiff herein.”

Fairly deducible from the statement of facts, we think, is that, including the fees received from the two independent school districts and the ex-officio fees of $2,790, paid during the year 1937, appellant Taylor collected for the year 1937 the sum of $1,855.25 in excess of $3,000,- his maximum official compensation. For the year 1938 he collected $165.81 in excess of the $3,000 maximum. This, after allowing all legitimate claims for expenses.

Appellants contend that this action may not be maintained for the reason that accounts of appellant Taylor have never been audited and passed upon by the Commissioners’ Court of Brewster County; further that the commissions retained for the assessing and collection of taxes for the two school districts are not accountable as fees of office. In substance, that the title to the funds sought to be recovered is not vested in the County but in the respective school districts. These contentions are urged in a joint brief. The appellant Surety Company has also filed another brief in which in substance it is asserted that the $2,790 paid as ex-officio compensation for the year 1937 was voluntarily paid by the appellee without warrant of law and ap-pellee is not entitled to recover from it as Surety.

In regard to the contention that this account should have been first submitted to the Commissioners’ Court, it is to be noted, first, that the claim asserted is not a claim against the County; second, that it nowhere appears that appellant Taylor ever sought to have his accounts adjusted by the Commissioners’ Court. Neither Brewster County nor the Commissioners’ Court could present the claim of appellant Taylor for expenses incurred. This burden, we think, was that of appellant. The trial court made an allowance for such expenses, and the correctness of the allowance is not here questioned.

We hold that the appellee was entitled to maintain this suit without the accounts being first settled and audited by the Commissioners’ Court.

A determination as to whether or not the amounts retained for the assessment and collection of the taxes for the school districts were accountable as official fees will dispose of another question as to the right of appellee to maintain this suit.

In this action the appellee seeks to recover in its own right and not on behalf of the two.school districts involved. The power and duty to assess and collect the taxes in question are conferred by Article 2792, R.S. 1925, Vernon’s Ann.Civ.St. art. 2792. It appears from the stipulation that the Board of Trustees elected to have appellant Taylor, in his capacity as County Tax Assessor and Collector, to collect their taxes. It is clear that he acted as an officer of the County. He was not an officer or employee of the two school districts. It is clear appellant Taylor could not be an officer of the County and an officer of the School Districts at one and the same time. He could not hold two offices at the same time. Pruitt v. Glen Rose Independent School Dist, No. 1, 126 Tex. 45, 84 S.W.2d 1004, 100 A.L.R. 1158.

We deem the case of Nichols v. Galveston County, 111 Tex. 50, 228 S.W. 547, conclusive on this matter.

It is true that the statute as to accountable fees is not the same as the statute applicable to these transactions. However, the change in the statute rather broadens than restricts what are to be deemed as official fees. Art. 3891, R.S.1925, Vernon’s Ann.Civ.St. art. 3891.

The money as received tentatively belonged to the officer, subject to his duty to account therefor to the County under the fee bill.

It follows that the judgment as to appellant Taylor should in all things be affirmed.

As stated, appellant Surety Company in its separate brief urges in substance it is not liable as surety because during the year 1937 appellee voluntarily paid Taylor the sum of $2,790 in monthly installments of $232.50 each as ex-officio compensation, and that no finding was made by the Commissioners’- Court that there was a necessity for the payment of such ex-officio compensation. The authority for the allowance of ex-officio compensation to county officers is to be found in Article 3895, R.S.1925, Vernon’s Ann.Civ.St. art. 3895. This article, insofar as applicable here, provides: “In cases where the compensation and excess fees which the officers are allowed to retain shall not reach the maximum provided for in this chapter, the commissioners court shall allow compensation for ex-officio services when, in their judgment,' such compensation is necessary, provided, such compensation for ex-of-ficio services allowed shall not increase the compensation of the official beyond the maximum of compensation and excess fees allowed to- be retained by him under this chapter.” In 1933 this proviso was added thereto: “Provided, however, the ex officio herein authorized shall be allowed only after an opportunity for a public hearing and only upon the- affirmative vote of at least three members of the Commissioners’ Court.”

The stipulation in regard to the allowance of ex-officio compensation upon which the trial court entered judgment has heretofore been copied, but we will set same forth again: “During the year 1937 the Commissioners’ Court of Brewster County authorized the payment to Elmer Taylor of ex-officio compensation in the amount of $2790, and such compensation was paid in equal monthly installments throughout 1937.” This stipulation governs here. Sometime after the judgment was entered herein and subsequent to the perfection of appeal herein, the parties filed an agreed stipulation relating to this matter. No approval of the trial judge appears on this subsequent stipulation. It has no place in the transcript and cannot be considered in the determination of the case.

The trial court evidently construed the stipulation to mean that the Commissioners’ Court validly authorized the payment of this ex-officio compensation. Conditions existing as provided in Art. 3895, it might validly make this allowance. It clearly appears from the agreed statement of facts that but for the ex-of-ficio allowance the fees of office would not have amounted to the maximum of $3,000, which was the maximum compensation allowed appellant Taylor. The time when the Commissioners’ Court may make this allowance is not specified in Art. 3895. The allowance does seem large. However, we have not the benefit of the amount realized in fees of the office during preceding years. Under the conditions named in the stat-. ute it was entrusted to the discretion of the Commissioners’ Court. If these conditions did not exist or could not exist, the action of the Commissioners’ Court would be void and conferred no authority for the payment. The quoted portion of the stipulation is as to an ultimate fact. Only acting in the manner provided for in the quoted statute could it authorize the payment. It has power to act in the premises. Action was taken therein. The construction is justified, if not compelled, that it acted lawfully. If this be correct, the money came lawfully into the custody of appellant Taylor. The bond covered account for money coming into his hands lawfully. This, to our mind, is the distinction between this case and the cases cited in appellant Surety Company’s brief. In the cited cases the money was received without warrant of law. In this case the ex-officio compensation came lawfully into his hands and it was his duty to account therefor.

We think that the trial court correctly construed the stipulation that there was a valid authorization by the Commissioners’ Court for the collection of ex-officio compensation.

We find no error in the case and it is ordered affirmed.

On Motions for Rehearing.

Careful consideration has been given to the respective motions' for rehearing by the appellants, and we are constrained to adhere to our disposition of the case.

There is one sentence in the original opinion which should be corrected. In the opinion it was stated: “The money as received tentatively belonged to the officer, subject to his duty to account therefor to the County under the fee bill.” The sentence should read: “The fees as received tentatively belonged to the officer, subject to his duty to account therefor to the County under the fee bill.”

Motions are overruled.


author: BROWN, Justice.

text:
    ANDERSON v. HALE et al.
    No. 14115.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 11, 1940.
    Davenport & Tipps, of Wichita Falls, for appellant.
    Harris & Martin, of Wichita Falls, for appellees.
   BROWN, Justice.

Appellant brought suit in the District Court of Wichita County against M. M. Easterday, Mrs. C. P. Hale and Elwyn Hale, in which suit he alleged that he is the owner of an undivided one-half interest in an oil and gas lease covering 80 acres of land in said county; that the title to such lease was in his name and he entered into am oral agreement with said Easterday, under which appellant would furnish the oil and gas lease and supervise the drilling of a well thereon and Easterday would furnish the money for such operations and that when the well was completed each would own an undivided one-half interest therein.

He next alleges that on May 2nd, 1938, he executed a purported assignment of such lease to Easterday; that there was no consideration for the assignment; that it was not acknowledged before any officer; that it was not to be recorded; that it was obtained from appellant by false and fraudulent representations made to him by Easter-day, the'substance of such being that Easter-day was attempting to raise money to continue drilling operations on such lease and “needed some kind of instrument from plaintiff, who held the title to said lease in escrow by virtue of an assignment from one Harry Hill, which assignment was in escrow in the hands of Arch Dawson, an attorney of Wichita Falls, Texas, and further, that in view of the fact that the original lease was also in escrow in the hands of said attorney that there was nothing outside of the papers held by said attorney to show the existence of any lease, and further, that if the plaintiff would give to the defendant, M. M. Easterday, an assignment of said lease, the said defendant could take that and use it to show the existence of said lease and the fact that it had been assigned to plaintiff and from plaintiff to the defendant, and that the defendant Easterday, by virtue of same, would be enabled to raise money with which to carry on said operations.” He further alleged that Easterday represented to him that after such assigix ment had served its purpose, same would be given back to plaintiff and would be de-' stroyed, and that it would be used for no-other purpose than that represented, would not be recorded and would not be used for the purpose of asserting title had passed out of plaintiff. He further alleged that after Easterday procured such assignment he recorded same and executed a deed of trust upon the property to Mrs. C. P. Hale, as beneficiary, which was neither authorized nor ratified by him; that Easterday and ,Mrs. Hale thus conspired to defraud him of his interest in the lease; and that Mrs. Hale knew of all such facts when she took-the deed of trust. He further alleged that he and all of the defendants named had formed a copartnership, “by which the said parties would join and as said partners develop said property, the said plaintiff giving to the defendants a one-half interest in the lease in consideration of the defendants providing the money with which to develop said property and purchase equipment for said purposes”; that a fiduciary relationship thus arose and the defendants each owed him the utmost good faith. He further alleged that Mrs. Hale had the property sold under the deed of trust, but that such sale is void, and same was a part of the conspiracy to defraud him of his interest in the lease.

He prayed for a cancellation of the assignment and of the deed of trust and judgment for the title to and possession of an undivided one-half interest in the property, and for special and general relief.

The cause was tried to a jury and only two special issues submitted; these and the two answers are: “(1) Find from a preponderance of the evidence if the defendant, Mrs. C. P. Hale, on May 26th, 1938, the date she took the Deed of Trust, had notice of the interest of the plaintiff, Joe S. Anderson, if any, that he had in the eighty (80) acre oil and gas lease in controversy ?" Answer: “Yes”. “(2) Find from a preponderance of the evidence if the assignment given by Joe S. Anderson to M. M. Easter-day, dated May 2nd, 1938, was given to the said M. M. Easterday by the said Joe S. Anderson for the purpose of enabling the said M. M. Easterday to raise money with which to finish drilling and completing the well which was being drilled on the eighty (80) acre oil and gas lease in controversy ?” Answer: “No”.

No other issue of fact was requested by either party and no objection was urged by either party to the charge as given.

Plaintiff made a motion for judgment, which was denied, and the defendants, Mrs. C. P. Hale and Elwyn Hale, who had brought a cross-action, the purpose of which was to quiet title in said property, made a motion -for judgment notwithstanding the verdict, and this motion was granted and judgment rendered that plaintiff Anderson take nothing and that Mrs. C. P. Hale recover judgment for title to and possession of the property involved as against both Easterday and Anderson.

Anderson having appealed presents the six assignments of error, in substance as follows: (1) the court erred in rendering judgment for defendants because same is contrary to the verdict returned by the jury to the issues submitted; (2) the court erred in rendering judgment non obstante vere-dicto for the defendants because the jury found that when Mrs. Hale took the deed of trust on the property she knew that Anderson at that time owned an interest in the said lease, and because the jury found that the assignment from Anderson to Easterday was not made for the purpose of obtaining money for the completion of the well; (3) the third is in effect the same as the first; (4) the court erred in failing to enter judgment for the plaintiff on his motion therefor; (5) the court erred in rendering judgment for the defendants because under the finding of the'jury to issue No. 1 the deed of trust would be void and of no effect; (6) the court erred in failing to render judgment for the plaintiff because the undisputed testimony shows and the jury found that Mrs. Hale advanced the money and knew at the time that Anderson was an owner of an interest in same (meaning, evidently, the lease) and that he did not agree to nor sign the deed of trust, and the purported sale thereunder would be void and of no force and effect for all of the reasons stated.

We see no merit in any of the assignments of error.

When appellant was asked to detail his agreement with Easterday, he testified: “The agreement was that he would raise the money necessary to drill the well, and complete the well, and I was to take charge of the operations, of the drilling of it, and he was to have one-half interest for getting the money, and I was to have my half for getting the lease and looking after it.” All of the evidence tends to show that the matter was being handled in such a manner.

It affirmatively appears from both the pleading and the testimony of Anderson that he voluntarily gave Easterday the assignment which purported to place the entire title to the lease in Easterday, and that this was done for the purpose of permitting Easterday to use the assignment to obtain money with which to drill and complete the well.

The undisputed testimony shows that such purpose was carried out by Easterday and that'Mrs. Hale furnished the money.

We cannot conceive of the assignment being used in any other way than that disclosed by the record before us.

If the purpose of Anderson’s pleading and testimony is simply to show that the assignment was executed and delivered to Easter-day so that Easterday could exhibit it to a prospective lender in order to bolster up his financial standing and thus obtain funds from such lender on the theory that Easter-day owned this property in his own right, then and in such event Anderson would be in no better position than he finds himself when the assignment appears to be • bona fide.

The finding made by the jury to issue No* 1 gives no comfort to Anderson.

What if Mrs. Hale did have notice of the interest that Anderson had in the lease when she furnished money to drill the well that Easterday and Anderson were putting down at the time? There is nothing even tending to show that she knew the assignment from Anderson to Easterday was for any purpose other than a bona fide transfer of the title to Easterday and no effort was made to establish any such other purpose, or any conspiracy between Mrs. Hale and Easterday to defraud Anderson.

Every issue attempted to be raised by Anderson has been abandoned except the two issues that were submitted to the jury.

We have read the statement of facts and we do not find where any specific testimony was adduced which tended to show that Mrs. Hale knew what interest, if any, Anderson had in the lease, but even if she knew that the assignment was for the purpose of raising money to drill the well and if she knew that when the well was drilled Easterday was in honor bound to reconvey to Anderson an undivided one-half interest in the lease, we can see no reason why her deed of trust would not, under the circumstances, become a valid lien against the premises, or why Anderson would not be bound thereby.

By his acts Anderson deliberately made it possible for Easterday to give a lien upon the oil and gas lease to raise money to drill a well thereon. This Easterday did and Anderson cannot at this late date deprive the lender of the rights that arose through and from his personal acts.

The finding made by the jury to Issue No. 2 is not only contrary to the undisputed evi-. dence given by Anderson but it is not supported by either direct or circumstantial evidence. Stevens & Andrews v. Gainesville Nat’l Bank, 62 Tex. 499; Silverman v. Harmon, Tex.Civ.App., 250 S.W. 206, writ dismissed; Marx v. Elsworth, 2 Posey Unrep.Cas. 83.

These cases support the equitable doctrine that, “It is a general rule that where one of two innocent persons must suffer by the misconduct of a third person, that party shall suffer who, by his own acts and conduct, has enabled such third person, by giving him credit, to practice a fraud or imposition upon the other party.”

The judgment is affirmed.