author: KRUEGER, Judge. . GRAVES, Judge.

text:
    SMITH v. STATE.
    No. 21335.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    Rehearing Denied March 19, 1941.

      F. H. Hammond, of Burnet, for appellant.
    Carlos C. Ashley, Dist. Atty., of Llano, Thos. C. Ferguson, Sp. Pros., of Burnet, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge. .

The offense is theft by bailee of property over the value of fifty dollars. The punishment assessed is confinement in the state penitentiary for a term of three years.

It appears from the State’s evidence, as disclosed by the record, that Mr. L. S. Chamberlain and his wife, Ruth Lamon Chamberlain, intended to build a home. They engaged a carpenter to assist in drawing plans for the house and to prepare a list of the material necessary to construct such a home. After they had agreed upon the plan, the carpenter made a complete list of the material required. This list . was presented to appellant, who was apparently engaged in the lumber business, with the purpose of having him make a price on the material. He agreed to furnish all the specified material for the sum of $1,295.81. However, in the course of the construction of the building some minor changes were made which increased the price of the material approximately .one hundred dollars. About the first of August, 1939, which time the home was almost completed, Mr. and Mrs. Chamberlain contemplated the building of a garage with an apartment. They consulted the appellant about obtaining from him some material on credit. He suggested that they had better make application 'to the F. H. A. for a loan. Appellant prepared, or caused to be prepared, an application for a loan to them, and they, upon his suggestion, executed a note in the sum of $2,500, payable to appellant, secured by a deed of trust on the newly constructed home, together with a designation of other property as' their homestead. After a few weeks had passed, Mr. Chamberlain, having heard nothing from the application, inquired of appellant as to what had become of it. Appellant advised him that it was turned down but that he was trying to get a bank at Temple to carry it. It was further shown that as soon .as appellant obtained the note and deed of trust, he had the deed of trust recorded and sold the note, which was payable in installments of $27.50 per month, to a bank in Bertram, Texas, for the sum of $1,975. Appellant paid the first installment due on said note. When the second installment became due, the bank notified Mr. Chamberlain, and this was the first intimation he had that appellant had sold the note and diverted it from the object of their agreement.

Appellant took the witness stand and testified that after Chamberlain had paid him a total of $1,314.93 on the material, he still owed him $2,533.16, and the note and deed of trust were given for the unpaid balance.

Appellant’s first complaint is that the trial court erred in declining to sustain his motion to quash the indictment, which contained four counts. The first count, under which he was convicted, omitting the formal parts thereof, reads in substance as follows:

“That V. C. Smith, alias Van Smith, on or about the 1st day of August, A. D., one thousand nine hundred and thirty nine and ■ anterior to the presentment of this Indictment, in the County of Burnet, State of Texas, having possession of a certain promissory note, dated August 1st, 1939, for $2500.00, and of the tenor following: (Here follows a description of the note which is set out in haec verba.)

“And also having possession of a certain Deed of Trust lien in writing of even date with said note, - granted by L. S. Chamberlain and wife, Ruth L. Chamberlain, to secure said note, purportedly creating a lien upon certain lands and premises in the City of Burnet, County of Bur-net, State of Texas, which Deed of Trust is shown of record in the Deed of Trust Records of Burnet County, Texas, in Volume 23, page 448, et seq., which said note and lien was then and there of the value of Two Thousand Five Hundred Dollars, and was then and there the property of L. S. Chamberlain and Ruth L. Chamberlain, by virtue of a bailment between them and the said V. C. Smith, alias Van Smith, and the said V. C. Smith, alias Van Smith, did then and there unlawfully and without the con-' sent of the said L. S. Chamberlain and Ruth L. Chamberlain, the owners, fraudulently convert said note and lien to his, the said V. C. Smith, alias Van Smith, own use and with the intent to deprive the said L. S. Chamberlain and Ruth L. Chamberlain, the owners thereof, of the value of the same.”

Appellant claims that the indictment failed to charge him with any offense for the following reasons:

(1) Because the note, being set out in the indictment, shows upon its face that it was made payable to him; that he was the owner thereof and could not be guilty of stealing his own property; that there are no innuendo averments explaining how or in what manner L. S. Giamberlain and Ruth Lamon Chamberlain acquired ownership or possession thereof, together with, the deed of trust, upon the real estate located in Burnet County by which the note was secured.
(2) Because the instrument upon which the prosecution is based is ambiguous, uncertain and indefinite, in that it fails to advise him of what he will be required to meet with proof upon his trial; that there is no allegation of what the said bailment was, nor the nature thereof, etc.
(3) Because it fails to negative the non-consent of the alleged joint owners of the property described therein.

Appellant’s assertion that one cannot be guilty of theft of his own property is a misconception of the law. Article 1416, P. C., specifically states four conditions which would make one guilty of theft of his own property. However, this statute has no application to the instant case.

It is charged in the indictment that the note was of the value of $2,500; that it was the property of L. S. Chamberlain and Ruth L. Chamberlain; that appellant obtained possession thereof by virtue of a bailment between them and him and that he did then and there unlawfully, and without the consent of the said L. S. Chamberlain and Ruth L. Chamberlain, the owners thereof, fraudulently convert said note and lien to his own use with the intent to deprive the said L. S. Chamberlain and Ruth L. Chamberlain, the owners, of the value thereof.

Appellant being charged as a bailee, it was not necessary to aver the particular facts constituting the bailment; nor was it necessary to state how he came to be selected as a bailee. See Section 2522, Branch’s Ann.Tex.P.C.; McCarty v. State, 45 Tex.Cr.R. 510, 512, 78 S.W. 506; Stein v. State, 132 Tex.Cr.R. 350, 104 S.W.2d 508. However, in the Stein case, supra, Judge Hawkins dissented.

With reference to the want of consent of the alleged owners, it will be observed that it is charged in the indictment that appellant did then and there unlawfully, and without the consent of L. S. Chamberlain and Ruth Chamberlain, fraudulently convert, etc. We construe this language to mean that the note was converted without the consent of L. S. Chamberlain and also without the consent of Ruth L. Chamberlain. The note was made payable to the appellant and secured by a deed of trust on real estate in Burnet County to be used by him in obtaining from the F. H. A. • (the Federal Government) for L. S. Chamberlain the amount of money therein specified, and the money so obtained was to be delivered by appellant to Chamberlain. The note was not the property of the appellant. He merely had a possessory interest in the note. It was delivered to him under,an agreement for a specific purpose; and when he violated the agreement, his possession thereof ceased to be permissive and the disposition thereof, contrary to the agreement, was an appropriation of the note.

Appellant cites us to a number of cases as' supporting his contention, among them being Arseneaux v. State, 63 Tex.Cr.R. 566, 140 S.W. 776. In our opinion, the cases cited are not applicable here. In those cases it was not alleged that the property was taken without the consent of each of the owners. We think that this case comes within the rule announced by this court in Taylor v. State, 62 Tex.Cr.R. 611, 138 S.W. 615; Butler v. State, 49 Tex.Cr.R. 159, 91 S.W. 794.

The record discloses that appellant made no effort to transfer the note to the F. H. A. in exchange for money, but immediately upon obtaining possession thereof, sold it to the Farmers State Bank at Bertram, Texas, for $1,975. The deed of trust was but an incident to the note. It followed the note, and when the note was paid dr cancelled, it extinguished the deed of trust. Hence the averment that appellant appropriated the deed of trust was surplusage. When he took the note to Bertram with the purpose of selling it to the bank and appropriate the money to his own use, he repudiated his contract with Chamberlain, and .his right to the possession thereof ceased because his intent had changed from a lawful to an unlawful purpose. We therefore overrule his contention that the court erred in declining to sustain his motion to quash the indictment.

Appellant complains of the action of the trial court in declining to sustain his motion to require the State to elect upon which of the three counts in the indictment it would seek a conviction. The indictment in this case grew out of a single transaction. It charged appellant in the first count with having converted as bailee a note for $2,500 described in the indictment, in the second count with having embezzled the note, and in the third count with having embezzled the proceeds of the note. It seems to be the settled rule- in this state that where only one act or transaction is charged and different counts are contained in the indictment to meet the possible variations of proof, the State will not be required to elect upon such counts, at least where the accused will not be prejudiced. Nor may an election be compelled where different counts charging the same character of offense are drawn to prevent a variance and there is evidence to support each count. See 23 Tex.Jur., p. 663, sec, 53; Isaacs v. State, 36 Tex.Cr.R. 505, 38 S.W. 40; Lovejoy v. State, 40 Tex.Cr.R. 89, 48 S.W. 520; Byrd v. State, 90 Tex.Cr.R. 418, 235 S.W. 891.

In the case of Mannen v. State, 109 Tex.Cr.R. 74, 3 S.W.2d 443, 444, the indictment contained three counts, all of them based on' the same act or transaction. While the State in that case did elect, this court, in passing upon the question, said: “The necessity for an election between the counts is not perceived. The averments were 'appropriate to meet possible phases of the proof and avoid variance.” Citing Gonzales v. State, 12 Tex.App. 657, 663, and other cases cited in Branch’s Ann.Tex.P.C., p. 233.

By Bill of Exception No. 2 appellant complains of the court’s action in overruling his second application for a continuance based on the absence of certain witnesses therein named. The application does not conform to the statute relating to subsequent motions for a continuance, in that it fails to allege that the defendant has a reasonable expectation of procuring the same at the next term of court. The indictment was returned against appellant on December 6, 1939, and the case was called for trial on December 9th, at which time it was postponed until December 11th. On the 11th day of December, 1939, the court granted appellant’s application for a continuance by reason of the absence of said witnesses. On June 10, 1940, appellant filed his second application for a continuance based upon the absence of the same witnesses mentioned in his first application. Under the facts disclosed by the record, if appellant had any reasonable expectation of procuring the attendance of the witnesses, it would have been an easy matter to have so stated, and in the absence of such an allegation the court could not indulge in such a presumption. See Arts. 542 and 544, C.C.P.

Bill of Exception No. 3 reflects the following occurrence: After the State had . introduced its evidence and while the defendant was testifying in his own behalf, he undertook to testify to facts showing the diligence which he exercised in his endeavor to procure the attendance of the witnesses named in his application for a continuance. The State objected thereto at that stage of the proceeding. The court sustained the objection and appellant duly excepted. We think the court was eminently correct in its ruling. Such testimony might have been offered on the hearing of the motion in the event any issue was made thereof, but such was not the case. Moreover, the application for a continuance had already been disposed of and the jury who were to pass upon the appellant’s guilt or innocence had nothing to do with the question of a continuance.

Appellant addressed a number of objections to the court’s charge. Many of them related to the court’s instruction on the law of embezzlement. However, since the jury found him guilty of theft, the objections to the court’s charge relative to embezzlement passed out of the case. Therefore, we need only consider the appellant’s objections to the court’s instruction relative to the law of theft by bailee.

The definitions in the court’s charge of the terms “bailment”, “bailee” and “conversion” are sufficient for a clear understanding by the jury of what is meant by said terms.

Appellant complains of the court’s charge relative to his affirmative defense. He contends that the court erred in declining to instruct the jury that if the note was executed and delivered to the appellant in payment of material to be furnished by him to L. S. Chamberlain and Ruth L. Chamberlain, then the jury should acquit him. It is our opinion that appellant was •not entitled to such an instruction because there was no testimony that the note was given in payment for material to be furnished at some future time. Appellant’s entire testimony shows that the note was delivered to him by L. S. Chamberlain and Ruth L. Chamberlain in payment of material which had been furnished in the construction of their home, and the court properly and adequately instructed the jury on this phase of his defense.

Bill of Exception No. 4 shows that appellant objected to the following remark by the District Attorney in his closing argument: “This defendant is no fool; he is a crook.” We are not prepared to say that the remark was not a reasonable deduction from the evidence. It seems that appellant, by education and experience, had acquired a better knowledge of business matters than the average person. He was in the lumber business. He knew how to make an application to the F. H. A. for a loan. This, together with his conduct in procuring the note and deed of trust, his haste in disposing of the note and using the money, would justify the remark. Appellant most certainly was not treading along the straight and narrow path. However, the court instructed the jury not to consider the same for any purpose. See Fowler v. State, 118 Tex.Cr.R. 424, 39 S.W.2d 621; Franklin v. State, 104 Tex.Cr.R. 240, 283 S.W. 802.

Appellant’s next contention is that the verdict of the jury is too general, in that it fails to specify on which of the three counts of the indictment they found him guilty. The court submitted all three counts to the jury, and they returned a general verdict finding appellant guilty as charged in the indictment and assessed his punishment at confinement in the state penitentiary for a term of three years. The court applied the verdict to the first count wherein appellant was charged with theft by bailee of the note in question.

In the case of Byrd v. State, 90 Tex. Cr.R. 418, 235 S.W. 891, 893, Judge Latti-more, speaking for the court, said: “The indictment contained four counts, but two of which were submitted to the jury. As we understand the rule, where but a single transaction is referred to and involved, the state may present as many counts in its pleadings as it sees fit, and no election will be required. This applies in the instant case. It is not necessary in such case that the verdict specify the count under which conviction is had. But one transaction being involved, but one conviction could legally result, and the doctrine of autrefois convict or acquit would apply to any future effort of the state to prosecute the accused.”

The same legal doctrine was applied in the case of Southern v. State, 34 Tex.Cr.R. 144, 29 S.W. 780, 53 Am.St.Rep. 702.

In the case of Lovejoy v. State, 40 Tex.Cr.R. 89, 48 S.W. 520, 522, it was said: “It may be the correct doctrine, if counts in an indictment contain distinct offenses which are repugnant one to the other, that in such case the court cannot say on which one the jury may have found defendant guilty. But there is no repugnancy in this case between the act of forging and uttering the forged instrument. Indeed, they are entirely consistent with each other, and as a general rule the forger is also the utterer.”

So, in the case under consideration, there is no repugnancy between the various counts embraced in the indictment. Hence the same rule as laid down in the case of Lovejoy v. State, supra, applies in the instant case.

Appellant’s last and final contention is that his conviction for theft by bailee is not sustained by the evidence because it shows that if there was a bailment, it was for the exclusive benefit of the bailor. He cites us to the case of Gose v. State, 129 Tex.Cr.R. 39, 84 S.W.2d 234, in support of his contention. We are of the opinion that the facts proven upon the trial of this case are such as will readily distinguish it from the Gose case, supra. In the present case, the evidence shows that appellant was a dealer in lumber. He had sold to Chamberlain all the lumber for the construction of a home and made a profit of 33⅛% on the transaction. When Chamberlain expressed the desire to obtain a loan with which to construct a garage with an apartment, appellant expected, by reason of his former business transaction with Chamberlain which had not terminated and by offering to assist him in obtaining the money with which to buy the lumber and material required to construct' the garage-apartment, to sell the necessary material to Chamberlain and to make a like profit as he did on the material furnished in the construction of the home. The fact that Chamberlain did not obtain the contemplated loan and did not purchase the material from the appellant was entirely due to appellant’s breach of trust and his misconduct in converting the note in question to his own use and benefit. That appellant expected to sell to Chamberlain the necessary material to build the garage is fairly inferable from all the surrounding facts and circumstances as well as their previous relationship. Up to the time that the note was delivered to appellant nothing had occurred which interrupted or terminated their business transactions. See Citizens’ National Bank of Jasper v. Ratcliff & Lanier, Tex.Civ.App., 238 S.W. 362.

In Tex.Jur., Vol. 5, p. 1015, sec. 5, we find the following statement: “In determining whether a bailment is gratuitous or lucrative, the court has said that inquiry is not directed to the character or certainty of the benefit or profit but to whether the bailment was accepted for the purpose of deriving the one or the other. Generally if the bailment was made at the instance or on the invitation of the bailee because of benefits, direct or contingent, expected to accrue, or on a contract, express or implied, having a legal consideration, it is not gratuitous.”

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

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.

On Motion for Rehearing.

GRAVES, Judge.

In his motion for a rehearing appellant calls to our attention a matter relative to the indictment wherein the allegation of a want of consent of the owners of the property alleged to have been taken is claimed to be a want of a joint consent, and does not negative the want of consent of both or either of such persons.

The portion of the indictment complained of is set forth in the original opinion. We note that the same negatives the consent of the owners of the property in the following language:

“ * * * and the said V. C. Smith, alias Van Smith, did then and there unlawfully and without the consent of the said L. S. Chamberlain and Ruth L. Chamberlain, the owners thereof, fraudulently convert said note and lien to his, the said V. C. Smith, alias Van Smith, own use and with the intent to deprive the said L. S. Chamberlain and Ruth L. Chamberlain, the owners thereof, of the value of the same.”

We are cited to the case of Thomas Taylor v. State, 18 Tex.App. 489, which, if applied to this case, would hold defective the allegation of a lack of consent as evidenced by the words “L. S. Chamberlain and Ruth L. Chamberlain”, standing alone, without a further description or designation of such two persons. The opinion in the above case was written by Judge Willson, and again we find an opinion written by the' same judge in Williams v. State, 19 Tex.App. 276, which reads in part as follows: “Appellant’s proposition that where ownership is alleged in two persons the want of consent of both to the taking must be alleged and proven is unquestionably correct. (McIntosh v. State, 18 Tex.App. [284] 285.) We think this requirement was sufficiently fulfilled in this case. Ownership of the property was alleged to be in the firm of Mallory & Allen, .composed of S. T. Mallory and Jacob Allen. It was alleged that the property was taken without the consent of the owner. It would have been correct to have written owners, but, as it is, the word owner is critically correct when applied to the firm, and embraces each member of the firm.”

We also find in the case of Albert Taylor v. State, 62 Tex.Cr.R. 611, 138 S.W. 615, 616, the following statement: “The first question presented in appellant’s brief is that the indictment should be quashed; the indictment alleging that the one head of cattle was the property of John Brown and L. Carr. It is insisted the indictment should have alleged that the property was taken without the consent of John Brown, and without the consent of L. Carr, or either of them. We do not think the motion is well taken. When the allegation is that the property was taken without the consent of Brown and without the consent of Carr, no additional allegation as to want of consent is necessary. Williams v. State, 19 Tex.App. 276. The cases cited by appellant are not applicable, in that in those cases it was not alleged that property was taken without the consent of each of the alleged owners. In this indictment the allegation is specific that the property was taken without the consent of each of them.”

Again, in the case of Wesley v. State, 45 Tex.Cr.R. 64, 73 S.W. 960, we find the following: “The indictment is questioned by motion in arrest of judgment because it does not sufficiently negative the consent of the owners. It is charged that the ownership was in the firm of McMullen & Marshall, consisting of T. N. McMullen and Ned Marshall. The proof shows there were two T. N. McMullens, and the Mc-Mullen mentioned in the indictment under the evidence was ‘Jr.,’ and that by reason of this fact there is a variance; and also that the general allegation that the property was taken without the consent of the owners is not sufficient; that the indictment should have specifically negatived the consent of each owner. The indictment is sufficient with reference to the allegation of want of consent of the owners. Williams v. State, 19 Tex.App. 276.”

We are aware of a contrary holding to the above in Scott v. State, Tex.Cr.App., 68 S.W. 680, and with such holding we are not in accord.

It is our holding herein that the allegation that such property was acquired “without the consent of L. S. Chamberlain and Ruth L. Chamberlain, the owners thereof”, means what it says, and that is that such acquisition was without the consent of both of them, which means either of them, they being the owners thereof.

We think the motion should be overruled, and it is accordingly so overruled.


source: Caselaw Access Project

author: KRUEGER, Judge.

license: Public Domain

text:
    THOMAS v. STATE.
    No. 21496.
    Court of Criminal Appeals of Texas.
    March 12, 1941.
    E. A. Martin and Richard Nicolds, both of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for assault with intent to murder; the penalty assessed is confinement in the penitentiary for a term of .four years.

The record is before us without a statement of facts or bills of exception. The indictment appears to be in due form. No matter has been presented justifying a reversal or requiring further discussion.

The judgment of the trial court is affirmed.

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.


author: KRUEGER, Judge. .

text:
    BAILEY v. STATE.
    No. 21488.
    Court of Criminal Appeals of Texas.
    March 12, 1941.
    Kelley & Prichard, of Odessa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge. .

The conviction is for unlawfully carrying a pistol; the penalty assessed is a fine of $125.

No such notice of appeal appears in the record as will confer jurisdiction on this court. There is a notation which seems to have been made by the court on his docket that the defendant gave notice of appeal, but this is not sufficient. The notice of appeal must be entered upon the minutes of the court. See Art. 827, C.C.P.; Branch’s Ann.Tex.P.C., sec. 588; Neloms v. State, Tex.Cr.App., 146 S.W.2d 389, and cases cited.

The appeal is dismissed.

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.


author: BEAUCHAMP, Judge.

text:
    SALADINO v. STATE.
    No. 21485.
    Court of Criminal Appeals of Texas.
    March 12, 1941.
    R. L. Wade and James MacNicoll, both of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the district court of Dallas County on a charge of arson, and his punishment assessed at two years in the penitentiary.

The proceedings appear regular. No statement of facts or bills of exception are presented and there is nothing for this court to review. '

The judgment of the trial court is affirmed.


text:
    SIMPSON v. STATE.
    No. 21489.
    Court of Criminal Appeals of Texas.
    March 12, 1941.
    Bernard Martin, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for fornication; the penalty assessed is a fine of $500.

The record shows that appellant was arrested on Saturday night and placed in jail; that on Monday morning the County Attorney, upon the affidavit of Cecil Long, a police officer, filed an information in the County Court charging appellant with the offense of fornication, to which charge he entered a plea of guilty to the court and his punishment was assessed as above indicated. Thereafter, he filed a motion for a new trial in which he asserted, among other things, that he was denied his constitutional and statutory right to have counsel and be represented by an attorney upon the trial on the charge aforesaid. Upon the hearing of the motion the court heard evidence as to the matters set up therein.

Appellant offered some testimony as to what occurred at the city jail on Sunday morning and testified as to what occurred on Monday morning prior to and at the time he entered his plea of guilty. We quote from his testimony as follows: “On Sunday morning Bill Martin came up and talked with me. He said Mr. Nelson would be down Monday morning; that they couldn’t do anything Sunday. He was talking about Otis Nelson, who is attorney for the Martin family. * * * I did not see Mr. Nelson at the city hall. * * * I stayed in jail from Saturday night until Monday morning. * * * I was brought to the court house Monday morning. * * * They carried me to the County Attorney’s office. * * * Mr. McDaniel wrote out the complaint and information charging me with this offense. * * * I asked Mr. Long if Mr. Nelson was in the back of the office. The reason I asked that kind of a question is, that I expected Mr. Nelson to be over here — they promised he would be there. I wanted an attorney when I was brought to the court house, but the officer said it was too late. * ⅜ ⅝ After I said that I would plead guilty, I walked into the court room. * * * At that time the judge said I could have a jury trial. * * * I knew if I had a jury to decide, I didn’t know what might happen. He told me I had the right to a trial before the court or jury and had the right to have a lawyer to represent me. After I asked for one and didn’t get one, I thought I couldn’t get one. By that I mean that I thought I could not pay one. No, I did not say, T believe I want to get a lawyer.’ ”

Mr. Cecil Long, who had appellant in charge and took him from the city jail to the court house, testified that appellant did not say anything about wanting an attorney; that the county judge advised appellant that he had a right to the services of an attorney, as well as other rights he had.

Mr. Leverett, also a police officer, testified to substantially the same. facts as Mr. Long. In addition thereto, he said that while they were in the County Attorney’s office appellant did not ask to use the telephone; did not say anything about wanting a lawyer and did not mention the name of Otis Nelson; that he was present when the court admonished the two defendants as to their rights to a jury trial and to have a lawyer represent them. Up until after judgment was pronounced against him, appellant did not say anything about wanting to call an attorney. After the court had assessed the fine against him, appellant turned around, walked toward Mr. Lever-ett and said: “I want to call a lawyer.” Some one said: “It is too late now.”

The County Attorney testified in substance that on Monday morning when appellant and the girl were brought to his office he was handed the voluntary statement that had been made by each of them to the officers; that after reading the same, he inquired of appellant if he wanted to plead guilty, to which he replied: “I believe that is the best thing to do.” After the complaint and information were filed the County Judge advised them separately that they had a right to plead guilty or not guilty; that they had a right to a trial before a jury or before the court; that they did not have to plead guilty, and that each was entitled to be represented by an attorney, but that nothing was said by either of the defendants in regard to an attorney. After each had entered a plea of guilty and the court adjudged each of them guilty and assessed a fine of $500 against each of the defendants, the County Attorney overheard a remark by appellant to the effect that: “I believe I want to see a lawyer.”

There is no question but what a citizen has a right under the Constitution and the statute to be heard by himself or counsel or both, but he must make his wishes known to the court especially when he is fully advised thereof by the court. Appellant was not an ordinary 'ignorant negro. He had completed the ninth grade in high school and had attended a college in Alabama for three years and he knew the full import of the court’s advice. However, it is equally true that one accused of a criminal offense may waive any constitutional and statutory right except that of trial by jury in a capital case. See Porter v. State, 137 Tex.Cr.R. 473, 131 S.W.2d 964; Hall v. State, 137 Tex.Cr.R. 475, 131 S.W.2d 965.

It is true that Otis Nelson went with the Martins to the city jail on Sunday morning but Mr. Nelson did not even try to talk to appellant after he had been informed of appellant’s voluntary statement. It is also true that he inquired of the officers as to the nature of the charge that would be made; that they told him they did not then know. He thought perhaps they would charge appellant with having illicit sexual relations with a weak-minded girl and he wanted the officers to telephone him the next morning; that they did call his office but he was not there. He went to the court house that morning but did not go to see the County Attorney or inquire as to the nature of the charge that was preferred against appellant; that he did not appear in behalf of appellant on the motion for a new trial; nor is there any reason assigned for his failure to do so. Consequently, the conclusion is warranted that Nelson did not deem himself employed or that he did not believe that he could be of any material assistance to appellant in view of the voluntary confession.

It is our opinion that whether appellant was denied his constitutional and statutory right or waived it, was a controverted issue which the trial court decided adversely to him and we would not, under the facts, be justified in setting aside his conclusion on such an issue. Therefore, the judgment of the trial court is affirmed.

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.


author: FOLLEY, Justice.

text:
    SELBY et al. v. SELBY.
    No. 5269.
    Court of Civil Appeals of Texas. Amarillo.
    March 3, 1941.
    R. T. Correll, of Perryton, and Works & Bassett, of Amarillo, for appellants.
    Oscar C. Flowers, of Perryton, for ap-pellee Emma Selby.
   FOLLEY, Justice.

This is an appeal from a judgment in favor of the appellee Mrs. Emma Selby for a life estate in one-third of the east-one-half of Section 45, Block 10, and the north one-half of Section 1009, Block 43, in Ochiltree County, Texas, and, subject to said life estate, decreeing the fee-simple title in such land to be in the appellants, Dennis Selby, Charles Selby and Ray Sel-by, who are the three sons of the appellee and her deceased husband, H. C. Selby, who died intestate. Recovery was also allowed the appellants for an interest in certain other real property in the town of Perry ton, Texas, but from that portion of the judgment there is no appeal or cross-assignments of error. Hence, this recovery in favor of the appellants is not before us and of it we have no jurisdiction. Milliken v. Coker et al., 132 Tex. 23, 115 S.W.2d 620.

There is presented only one question in this appeal and that is whether or not under this record the appellee was entitled to a life estate in one-third of the above-named tracts of land.

The cause was tried upon an agreed statement of facts. It appears that H. C. Selby and Emma Selby were husband and wife and the parents of the appellants. In 1925 they permanently separated and, though not divorced, continued to live apart until the death of H. C. Selby on November 21, 1936. During the marriage relation they accumulated as community property several tracts of land in Ochiltree County. On or about March 8, 1929, while they were living apart and with no intention of ever living together again as husband and wife, they made and entered into a property settlement as to the real property of the community estate. There was no formal written contract stipulating the terms of such agreement but the same is established by a series of general warranty deeds executed on March 8, 1929. On such date H. C. Selby executed and delivered two deeds to his wife, Emma Selby, conveying to her as her separate property the south one-half of Section 44, Block 10, containing 320 acres of land, and the northwest one-fourth of Section 1008, Block 43, containing 160 acres of land, all situated in Ochiltree County. In each of such deeds was the following provision: “The intention of this deed being the separation and division of property. The property ■ herein conveyed to be and remain the separate property of said Emma Selby, without any community interest of the said H. C. Selby whatever, from and after this date”. On the same date H. C. Selby and wife, Emma Selby, executed two deeds to R. L. Thom conveying to him the above-mentioned east one-half of Section 45, Block 10, containing 320 acres of land, and the north one-half of Section 1009, Block 43, containing 320 acres of land. Simultaneously, R. L. Thom executed and delivered to H. C. Selby two deeds reconveying the same two half sections of land to H. C. Selby which had been conveyed to him by Selby and wife. In each of the deeds from Thom to Selby was the following stipulation: “The intention of this deed being the separation and division of property. The property herein conveyed to be and remain the separate property of the said H. C. Selby, without any community interest of the said Emma Selby whatever, from and after this date.” The consideration expressed in each of the above deeds was $10, and, ill addition thereto, the husband assumed certain indebtedness against one of the. tracts conveyed to him and the wife assumed certain indebtedness against one of the tracts deeded to her.

In the stipulation of facts it was further agreed that the property settlement entered into and consummated by the exchange of the deeds relating to the real estate of H. C. and Emma Selby -was a fair, equitable and just division of such property; that the marital relations existing between them were never dissolved by divorce ; that after the parties had consummated the division of the real estate as represented in such deeds each took possession of the realty conveyed to him or her; that each retained the possession and absolute control thereof from that date until the death of H. C. Selby, neither of them during such time claiming or making any demands upon the other for any change in said division but both abiding thereby.

The appellants contend that under the above facts they were entitled to a recovery of the entire fee-simple title to the two half sections of land held by their father at the time of his death free of any life estate or other claims upon the part of the appellee. The appellee claims that since such property under the separation agreement became the separate properly of H. C. Selby, who died intestate, she, as his lawful wife at the time of his death, is entitled to a life estate in one-third of such land by reason of the law of descent and distribution. Article 2571, Vernon’s Annotated Civil Statutes.

Under the authority of Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324, and Corrigan v. Goss et al., Tex.Civ.App., 160 S.W. 652, 654, writ refused, the contention of the appellants must be upheld.

In the Rains v. Wheeler case it was held that where a “husband and wife have already separated, or have determined upon a separation and are in the act of executing it, a deed of separation, including partition of community property, will be upheld, provided that they have been entered - into without coercion or other undue influence, and the provisions are just and equitable”. Quotation from Corrigan v. Goss et al., supra.

The case of Corrigan v. Goss et al. is ah most squarely in point with the instant case. Corrigan was possessed of considerable property when he married his second wife, the appellant therein, and during their coverture he accumulated considerable more property. Domestic infelicity arose and they agreed to separate permanently and divide the property. A fair and equitable division of the property was made and the wife took the part assigned to her and kept the same thereafter. After the separation and partition Corrigan purchased two piece's of real estate in Houston Heights which were involved in controversy in the suit. This property was paid for in part with the money which had been allotted to him in the partition. After the death of her husband Mrs. Corrigan sued the executor and others alleging certain property described in her petition to be community property of herself and her deceased husband, seeking one-half thereof, and also seeking to have set aside to her as her homestead certain property alleged to have been inherited by her husband from his former wife. She was denied any recovery. In disposing of the appeal from such judgment, the El Paso Court of Civil Appeals said:

“It is clear that this agreement and partition deed were not intended to convey property by one spouse to another, but an equitable division in view of final separation ; that is, in view of no longer acting together in the acquisition of property, which the law fixes as community, or separate, according to its manner of acquisition, but each to take in the future such property as he may acquire as his own, unin-cumbered by the marital relation.
“Hence it follows that property acquired by either spouse after separation, brought about by such an agreement, becomes the separate property of the one who acquired it, free from the claims of the other, because they are no longer, in law, acting together in their legal capacity of husband and wife. And this partition'deed being valid and binding, it settled all property rights between the parties, including the homestead rights of appellant.”

It is true the chief controversy in the Corrigan case was over property acquired by the husband after the separation and with funds received in part by him from the partition. However, such fact does not, we think, distinguish it from the instant case. If the acquisition of separate property by the husband after the partition was “unincumbered by the marital relation”, certainly, with as much or more logic and good reason, the property actually divided and set apart to the respective spouses would be “free from the claims of the other, because they are no longer, in law, acting together in their legal capacity of husband and wife”, and such partition being valid and binding, “it settled all property rights between the parties”, including the life estate claims of the widow.

The judgment of the trial court is therefore reformed so as to allow the appellants a recovery of the entire fee-simple title to the land involved, share and share alike, free'of the life estate or other claims of the appellee, and as so reformed the judgment is affirmed.

Reformed and affirmed.


author: LESLIE, Chief Justice.

text:
    HARTFORD ACCIDENT & INDEMNITY CO. v. STANLEY.
    No. 2095.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 7, 1941.
    Rehearing Denied March 7, 1941.

      Blanton & Blanton, of Abilene, for appellant.
    Scarborough, Yates & Scarborough, of Abilene, for appellee.
   LESLIE, Chief Justice.

This is the usual workmen’s compensation case. The trial resulted in a judgment favorable to the plaintiff, Scott Weldon Stanley, the injured employee, against the carrier, Hartford Accident & Indemnity Company, prosecuting this appeal.

The appeal is predicated upon two alleged errors; first, the court’s exclusion of certain evidence, and, second, misconduct of the jury.

In the first assignment, it is insisted that “the court erred in refusing to permit the defendant to introduce evidence that the plaintiff, on the 11th day of August, 1939, which was some time after the accident (February 22, 1939) which allegedly caused his total incapacity, was tried in the corporation court of the city of Abilene on the charge of being drunk and disturbing the peace, and that the plaintiff pleaded guilty on said charge and was fined.” The proposition under this assignment is to the effect that the testimony was admissible inasmuch as Stanley was seeking a lump sum settlement and had alleged, among other things, “that he was prudent and careful and that failure to award compensation in a lump sum would cause manifest hardship and injustice.”

Assuming without deciding that such evidence would have been admissible for the purpose offered, we first consider the appellee’s counter propositions and objections to the consideration of said assignment. It is the contention that no point pertaining to the exclusion of such testimony was properly preserved and perpetuated in the record in accordance with Art. 2237, sec. 2a, Vernon’s Ann.Civ.St.

We find the record in this respect to be in substance as follows: At the conclusion of the cross-examination of the appellee, the witness was excused. What then followed is reflected by a statement found in the stenographer’s notes purporting to have been made by appellant’s attorney. That statement is to the tenor following: “(The following dictated into the record by Mr. Blanton, out of the hearing of the Jury: Mr. Blanton: That the defendant could prove that on the 8/11/39, Scott Weldon Stanley, the Plaintiff, was arrested for being drunk and disturbing the peace; plead guilty and was fined $10.00. This to be offered on the question of lump sum payment, wherein it was alleged that he was a man of prudence and was careful, and it was only for that purpose. To which the Judge sustained an objection, and to which the Defendant duly • excepted and the Court gave the Defendant a full Bill on it. — Reporter)”

We have examined the statement of facts, especially the direct and cross-examination of the appellee, Stanley, and we cannot ascertain therefrom that the appellant’s counsel intended to elicit such testimony (indicated by the above statement) either from the appellee on cross-examination, or from some other witness or independent source of testimony, such as the records of the corporation court, or its judgment, evidencing such plea of guilty, etc., if any.

The above statement and excerpt lodged in the stenographer’s notes is not believed to be a legal bill of exception in terms of correct rules of procedure in such matters. We do not think it is to be regarded as a part of the “Q. and A. Statement of Facts.” It appears to be nothing more than the ex parte statement of the appellant’s attorney. It does not reflect the nature of the objections made by the opposing counsel, and there is no evidence that it was submitted to the court for his approval. If appellant was able to produce such testimony as the conclusions in the above statement called for (aside from the cross-examination of the appellee), such testimony was neither submitted to the court, nor developed in open court, either in or out of the presence of the jury. In other words, no proper bill of exception was developed by disclosing to the court (at least) the specific testimony by which a drunkenness charge, etc., was to be established, and no agreement between the litigants, or their attorneys, is found in the record, or a formal bill of exception reflecting such testimony or its nature. So far as the record shows, the appellant may have thought he “could prove” the matters set out in the above statement by hearsay testimony and the trial court excluded such. The presumption is that a valid objection was made and sustained by the court. Apparently the ap-pellee was given no chance to explain or object to the substance or form in which the above purported bill of exception was presented and lodged in the record.

We are of the opinion that said excerpt noted as it was constitutes no such basis for a valid bill of exception in the Q. &. A. record, and no effort was made to present a formal bill of exception to the ruling. The counter proposition objecting to the consideration of this assignment is sustained.

The next proposition is based upon the assignment of error raising^ the question of misconduct on the part of the jurors while considering their verdict. Evidence bearing upon injury, lump sum settlement, etc., was conflicting, and the issue of misconduct is raised by the appellant in this language: “ * * * one juror testified positively that during the deliberations of the jury and before the questions were answered, he heard discussion about the way insurance companies collect fees from employees and then when suits come up they have some excuse and fail to pay them and doctors testify in their behalf and that the doctors were getting high paid salaries from the insurance companies and were always in favor of them, which matter was not in evidence on the trial, and three jurors testified in effect that they were present in the jury room and didn’t hear such discussion, and it appeared from the testimony that the jurors were talking all around in groups, the testimony of the three jurors was negative in character and was insufficient to support a finding that such prejudicial misconduct did not occur in the face of the unimpeached, consistent and unbiased testimony of the one juror that it did occur, and the trial court should not have overruled the motion for new trial, but should have sustained it on the second ground thereof.”

We have carefully considered the testimony on the issue of existence or occurrence of the misconduct alleged. Such testimony is conflicting. The ruling of the trial court finding that no such misconduct occurred will be sustained upon the following authorities: Texas Emp. Ins. Ass’n. v. Chocolate Shop, Inc., Tex.Com.App., 44 S.W.2d 989; Bradshaw v. Abrams, Tex.Com.App., 24 S.W.2d 372; Estep v. Bratton, Tex.Civ.App., 24 S.W.2d 465; Medford v. Hendricks, Tex.Civ.App., 38 S.W.2d 413; Brinker v. McDonald, Tex.Civ.App., 115 S.W.2d 1185; Uselton v. Southern Underwriters, Tex.Civ.App., 131 S.W.2d 1040; Eichlitz v. Allen, Tex.Civ.App., 131 S.W.2d 43.

■ For the reasons assigned, the appellant’s assignments of error are overruled, and the judgment of the trial court is affirmed.


author: FUNDERBURK, Justice.

text:
    HARTFORD ACCIDENT & INDEMNITY CO. v. GRAVES.
    No. 2096.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 7, 1941.
    Rehearing Denied March 7, 1941.
    Cantey, Hanger, McMahon, McKnight & Johnson, of Fort Worth, for appellant.
    Scarborough, Yates & Scarborough, of Abilene, for appellee.
   FUNDERBURK, Justice.

Carroll Graves, an employee of West Texas Cotton Oil Company, suffered an accidental injury on January 16, 1938, while in the course of his employment. • His claim for compensation insurance was settled by a compromise agreement approved by the Industrial Accident Board. In accordance with the settlement agreement said employee was paid the sum of $10 by Hartford Accident & Indemnity Company, the insurance carrier for said employer. Afterwards said Carroll Graves, who will hereinafter be referred to as the employee, brought this suit against said Hartford Accident & Indemnity Company, hereinafter referred to as the insurer, to set aside said compromise settlement on the ground that he was induced by fraud to enter into the agreement and accept the $10 in payment of his claim.

In a jury trial the case was submitted upon special issues, all of which, unless it was Special Issue No. 5, were found in favor of the employee. The insurer duly filed a motion for judgment entitled “Motion for Judgment Non Obstante Veredic-to.” In said motion it was alleged that the “court erred in submitting said special issues (referring to all of the issues as thereinbefore set out) or any of them, to the jury and that said findings are wrong, (with the exception of the answer to Special Issue No. 5) and all others except No. 5 should be held for naught”, etc. (Italics ours.) The motion further alleges “that judgment should be entered for the defendant notwithstanding the answers to all the issues submitted by the court to the jury with the exception of Special Issue No. 5, and the defendant calls to the court’s attention the fact that by answering Special Issue No. 5, as it did to the effect that Dr. Clark, the defendant’s physician at the time he gave certain advice to the plaintiff, did not know that the plaintiff was contemplating a compromise settlement with the defendant, and it is submitted, therefore, that the statement made by Dr. Clark could not have been fraudulent in-as-much as he did not contemplate the plaintiff’s entering into a compromise settlement with this defendant at the time he made the statement,” etc. The court overruled said motion and rendered judgment for the employee. The insurer has appealed.

Fraud consisting of false representations inducing one to enter into a contract comprises a- number of essential elements. These elements are variously stated in the opinions of courts and by text writers. Some at least of the variations in the statements may result from the fact that sometimes an element is stated which includes by implication two or more elements. For example, reliance upon a representation may include, by necessary implication, belief of the truth thereof. Sometimes the element of materiality is implied in the statement of the representations.

Based, as may be presumed, upon a general survey of all the authorities, Corpus Juris gives the general elements of actionable fraud as follows: “(1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker’s knowledge of its falsity or ignorance of its truth. (5) His intention that it should be acted upon by the person and in the manner reasonably contemplated. (6) The hearer’s ignorance of its falsity. (7) His reliance on its truth.' (8) His right to rely thereon. (9) And his consequent and proximate injury.” 26 C.J. p. 1062, sec. 6. (As to element (4) — “The speaker’s knowledge of its falsity, or ignorance of its truth”, the courts of Texas have taken a minority view. 26 C.J. 1131, sec. S3. The effect is to eliminate this element from actionable fraud in this State. See authorities cited Id., p. 1133, note 15 (e). In Texas Jurisprudence the elements of fraud are given thus: Defendant “made or was connected with making of the representation; that the representation was as to a material fact; that the representation was false at the time it was made; that the representation was made with intent and design to induce the plaintiff to do or refrain from doing some act; that the representation was relied on by the plaintiff — in other words, that the plaintiff believed it to be true and was induced thereby to act or refrain from acting; and that • the plaintiff thereby suffered damage or injury.” 20 Tex.Jur. p. 17, sec. 8.

It is to be observed that according to both of said authorities, one element of actionable fraud is, as stated in Corpus Juris, “His intention that it [the representation] should be acted upon by the person and in the manner reasonably contemplated”, and, as stated by Tex.Jur., “that the representation was made with intent and design to induce the plaintiff to do or refrain from doing some act.” This same element is stated in American Jurisprudence and in Ruling Case Law, thus: “ * * * that it [the representation] was made with intent to deceive and for the purpose of inducing the other party to act upon it.” 23 Am.Jur. 773, sec. 20; 12 R.C.L. 240, sec. 10. The insurer cites the opinion of Judge Sharp in Wilson v. Jones, Tex.Com.App., 45 S.W.2d 572, 573, which, by combination and the omission of the element of knowledge of falsity, enumerates the elements as six — one being that “he [one charged with fraud] made it [the representation] with the intention that^ it should be acted upon by the party.”

It is believed that no authoritative text book, „or court decision, purporting to state all the essential elements of actionable fraud, based upon representations, can be found which omits the element of intention that the representation should induce the action (or inaction) claimed to have been induced thereby. As applicable to the making of a contract, or the relinquishment of a right, induced by a representation relied upon as an element of fraud, it is thought to be just as essential that the representation was made with the intention that it have such effect as that it did have such effect.

The employee’s petition in this case expressly alleged the essential elements of fraud, except one to the effect that the representation made by Dr. Clark was made with the intention that it induce the employee to settle his claim by agreement in ignorance of the seriousness of his injury. That element, however, though not expressly alleged, was undoubtedly implied in the following allegations, namely: “This plaintiff would show that at the time Dr. J. Frank Clark told this plaintiff that he had only a sprain of his back and that there was no involvement other than a minor sprain, the said Dr. Clark told plaintiff said falsehood knowing that the defendant, Hartford Accident & Indemnity Company, was going to attempt a settlement with the defendant and knew at the time he made said representation that if he told the said plaintiff his true condition that this plaintiff would never have signed the compromise settlement agreement which was later signed with the defendant through its agents.” If by the allegations just quoted, it was not intended to plead, as an element of the alleged fraud, that the representation was made with intention that it induce the defendant to make the compromise agreement, then such issue was not pleaded at all. If by said allegations said element was implied, then if that issue was submitted to the jury, it was by Special Issue No. 5. Special Issue No. 5 was stated thus: “Do you find from a preponderance of the evidence that at the time Dr. Clark gave the plaintiff the advice mentioned in Special Issue No. 3, if he did give it, that he, Dr. Clark, knew that the plaintiff was contemplating a compromise settlement with the defendant?” The jury answered this issue “No.” The “advice mentioned in Special Issue No. 3” was that Dr. Clark “had told plaintiff that he had only a minor strain to the muscles of his back.” It cannot be questioned, we think, .that the issue submitted as Special Issue No. 5 was the issue pleaded. Such issue as submitted may not have been well stated, but it was just as well stated in the special issue submitted as in the pleading which tendered it. Had the jury answered Special Issue No. 5 “Yes,” that answer would have implied a finding of one of the essential elements of actionable fraud; namely, that the alleged representation (referred to as advice) was made by Dr. Clark with the intention that it induce the employee to make the settlement agreement. The answer “No” constituted a finding to the effect that the representation was not made with such intention.

The finding upon Special Issue No. 5 rendered the special verdict, as a whole, ineffective to support a judgment for the employee. The employee had the burden of establishing in his favor, conclusively by the evidence, or by verdict of the jury, each and all of the essential elements of fraud as pleaded. According to the verdict of the jury he failed to establish one such element. The result was to require judgment for the insurer.

The insurer’s propositions, other than the third proposition, are believed to be without merit and are overruled without discussion. •

It is our view that no important effect should be ascribed to the fact that the insurer’s motion was entitled “A Motion for Judgment Non Obstante Veredic-to.” By its express terms, the insurer sought the advantage of the finding in its favor upon Special Issue No. 5 and in part, at least, insisted that it was entitled to judgment by reason of said finding, and notwithstanding the findings upon other issues. In such respect the motion was, in reality, a motion for judgment upon the verdict of the jury.

It is our conclusion that the only proper judgment which could have been rendered in accordance with the pleadings and the verdict of the jury was a judgment for the insurer, and that the motion presented that question to the trial court for decision.

We are, therefore, of the opinion that the judgment should be reversed and judgment here rendered for the insurer. It is so ordered.


author: SUTTON, Justice.

text:
    ELLWOOD et al. v. NUTEX OIL CO.
    No. 4042.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 13, 1941.
    Rehearing Denied March 13, 1941.
    Fouts, Amerman & Moore, of Houston, and Hal Browne, of San Antonio, for appellants.
    Robert H. Rice and Rice & Rice, all of San Antonio, for appellee.
   SUTTON, Justice.

This is an appeal from the 73rd District Court of Bexar County. The parties will be designated here as in the trial court.

The plaintiffs, D. C. Ellwood and H. W. Young, sued the defendant, Nutex Oil Company, on a written contract to recover the sum of $15,000 they claimed to be due them as damages as a result of the failure of the defendant to comply with the terms of the contract. The trial was to the court without a jury, and at the conclusion of the testimony the court, without hearing argument, rendered judgment in favor of the defendant, stating “the contract is not susceptible of the plaintiffs’ theory of this case.” From that judgment the plaintiffs have perfected this appeal.

The correctness or incorrectness of the trial court’s construction of the contract is the principal question to be determined on this appeal.

The contract recited the plaintiffs desired to make investments in the oil business and had at that time advanced certain sums to be so invested; that the defendant was engaged in buying and selling oil and gas leases and the development of them; and that the plaintiffs were to retain an interest in certain oil and gas leases thereinafter described on certain properties in Victoria County. Then follow's a description of the three leases, which we omit, but we copy the pertinent portions of the contract, as follows:

“It is agreed that in consideration of said funds so furnished by parties of the first part, and such assistance in financing, as hereinabove set out, that party of the second part will purchase said leases here-inabove described, and parties of the first part are to receive therefor an undivided twenty-five (25%) per cent interest in and to said leases so described.
“In the event said parties of the first part shall give party of the second part thirty (30) days’ notice advising said party of the second part that they desire sufficient acreage sold out of said tracts to reimburse the said parties of the first part for the amount of money which they have invested therein, said party of the second part agrees and contracts to .bring buyer for the purchase of a sufficient amount of said acreage to return to parties of the first part their original investment.
“In the event that parties of the first part, after having been consulted with reference to the sale price of such acreage, can not and do not agree upon the sale price of such acreage, then both parties herein covenant and agree that party of the second part will set aside, convey and transfer to parties of the first part such amount of acreage as will equal the undivided one-quarter (1/4) interest in said tracts.
“In the event division thereof can not be agreed upon by the parties thereto, then and in such event, each of said parties shall select one arbitrator and the two so selected shall select one other (all of whom shall be experienced oil operators) and said three arbitrators shall divide said tracts and apportion to said parties of the first part such an amount of acreage as would equitably constitute such parties of the first part’s undivided one-fourth interest.
“It is agreed that after such partition is made by such arbitrators, that each of the parties hereto shall execute the necessary transfers and assignments 'to vest title in the respective parties of such acreage so partitioned.”

It is apparent the plaintiffs were to have and receive an undivided 25% interest in the three leases; that on thirty days notice to the defendant it would bring a buyer for a sufficient amount of the acreage to return to plaintiffs their money; • that if the plaintiffs were not satisfied with the price obtainable for the -acreage thus offered they had the right to refuse it and have their undivided twenty-five per cent segregated and set aside to them, and if the parties were unable to agree upon the partition and the acreage to be set aside, then resort should be had to arbitration.

To us the contract is plain and unambiguous.

The evidence discloses the defendant believed it had made a rich oil discovery in lands in close proximity to these three leases; that their values would be greatly enhanced by the bringing in of the well it was drilling, and the only opportunity to obtain the leases at ■ a price attractive to them was then; that the defendant had no money to invest in them. We think it easily inferable that the defendant offered the promise to sell the acreage and reimburse plaintiffs as an inducement to put up the money while the opportunity was open to them and when the leases might be had at a price that would enable all of them to reap large profits.

It is undisputed that the plaintiffs furnished the $15,000, and that the money went into the purchase of the leases. It is also admitted the plaintiffs made the written demand on the defendant to sell a sufficient amount bf the acreage to fully reimbürse them. The evidence fails to show that at any time after the demand was made the defendant produced a buyer for any part of the acreage at any price. This was necessary to put the plaintiffs to a choice as to whether they would accept the offer and sell, or partition their interest out. Mr. Camp did testify he advised the plaintiffs the leases could be sold for whatever they were then worth, possibly $7,500, and as he put it, “a half loaf is better than no loaf at all,” and the plaintiffs insisted on a sale for the full amount of $15,000. Mr. Camp’s testimony is that the conversations occurred before the demand and not afterwards. As we understand the record, there was no effort made to sell any part or the whole of the leases after the demand. Mr. Camp took the position in his testimony there was no use, because the leases were generally believed to be and conceded to be condemned and of no substantial value.

The defendant seeks to avoid liability on the contract on three grounds: (1) That the contract cannot be construed as a promise to pay money; (2) if it may be, then it is ambiguous, and, taking into consideration the situation of the parties, it was plainly not the intention of the parties to so contract; and (3) that the plaintiffs, being unwilling to accept the price at which the leases could have been sold, were entitled only to a separation of their interest.

We think the plain language of the contract made it the duty of the defendant to produce a buyer, on thirty days notice, for a sufficient amount of the acreage to reimburse the plaintiffs for the amount of money furnished by them. If it failed, and the evidence without dispute shows it did, then the only question is whether or not it is liable in damages for its failure. The defendant in its brief on this appeal has undertaken to defend itself against the assaults of the plaintiffs and to uphold the construction of the contract and judgment of the trial court on the three grounds stated above. It has not undertaken to show why it could not and should not be held to respond in damages to the plaintiffs. We know of no reason in law why this provision of the contract cannot and should not be enforced.

What we have already said disposes of the second proposition asserted by the defendant. To us the contract is plain and unambiguous and requires no resort to evidence outside the contract for a proper construction of it.

A partition of the leases was at the option of the plaintiffs. The contract provides that on thirty days notice and demand the defendant will produce a buyer for a sufficient amount of the acreage to reimburse them for the amount contributed. Then follows the provision that if they are unwilling to accept the price and sell, they shall have their interest set apart to them. The defendant cannot resort to this provision until it has produced a buyer for a sufficient amount of the acreage to repay the plaintiffs and their failure to accept the price. Had the Company produced a buyer for, say, $7,500, and the plaintiffs refused to permit it to sell at such a price, it might have a different situation, but that did not occur.

The plaintiffs complain that the defendant bought leases that were encumbered. That is not open to them, because the leases to' be bought were specifically mentioned and they had to take notice of their condition and encumbrances. They also complain that the defendant sold portions of the leases and placed itself in a position where it could not sell a sufficient amount ■of the acreage to comply with its obligation. That may or may not be true. The ■evidence does not disclose that as the reason or a reason for its failure. The record indicates, if it does not make plain, that the real reason was because the area had been condemned and the leases rendered practically worthless, as a result óf which no real effort was made to sell them. But under our interpretation of the contract, it does not matter why the failure of the defendant, the mere fact that it did fail to produce the buyer for the acreage is sufficient to render it liable. It might have relieved itself in part had it produced a buyer at a less sum and shown a refusal by the plaintiffs to agree; but that it has not done.

The defendant has raised no defense of illegality in its brief, nor of impossibility of performance because of the condemnation of the area and of the three leases, though Mr. Camp in his testimony offered such as an excuse for the failure to sell. But, if urged, such defenses could not be available to it, because there is nothing illegal in the contract, and the obligation is unconditional and absolute. The Company must be held to have assumed the risk of its inability to produce a buyer for a sufficient amount of the acreage to reimburse the plaintiffs, as provided in the contract. We think this case falls within the general rules applicable to contracts, that one who unconditionally obligates himself to do a thing possible of performance, must be held to perform it (Kingsville Cotton Oil Co. v. Dallas Waste Mills, Tex.Civ.App., 210 S.W. 832; Masterson v. Amarillo Oil Co., Tex.Civ.App., 253 S.W. 908, writ refused) ; and though performance, subsequent to the contract, may become difficult or even impossible, does not relieve the promisor, and particularly where he might have foreseen the difficulty and impossibility. Levy Plumbing Co. v. Standard Sanitary Mfg. Co., Tex.Civ.App., 68 S.W.2d 273, writ refused; Embry v. Lewis, Tex.Civ.App., 19 S.W.2d 87.

We think it unnecessary to discuss the other questions raised by plaintiffs in their brief.

From what has been said on our construction of the contract it follows that the case must be reversed. The case has been fully developed and there is no occasion to remand it. The judgment of the trial court is, therefore, reversed, and judgment is here rendered for the plaintiffs for the sum of $15,000, with interest from the date the suit was filed at the rate of six per cent per annum, and costs.


author: BOND, Chief Justice. ■

text:
    SAROS v. STRICKLAND.
    No. 13041.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 15, 1941.
    Rehearing Denied March 15, 1941.

      Hughes & Monroe and P. P. Ballowe, all of Dallas, for appellant.
    Louis Wilson, of Dallas, for appellee.
   BOND, Chief Justice. ■

On November 30, 1938, Henry Strickland made application to the probate court of Dallas County, Texas, for appointment as administrator of the estate of Anita Martinez, deceased, showing necessity therefor and asking that he “or some other suitable person” be appointed, and that such appointment, unless contested at the next regular term of court, be made permanent. The court appointed Strickland temporary administrator of said estate, and he qualified as such by taking the oath and executing a bond, as required by law, and in compliance with the order of the court.

On December 3, 1938, Sam Saros filed in the probate court, a contest on the action of said court (1) in appointing Strickland temporary administrator, (2) appointment of Strickland as permanent administrator, and (3) asking that Strickland’s appointment be revoked and that he, Saros, be given preferential right to such appointments; basing his contest on the allegations that he was the husband of deceased, thus being the next o'f kin; that, under the law, he had a preferential right to such appointments, and that Henry Strickland is a negro, not related to deceased, thus not a competent or suitable person to have jurisdiction and control over her estate.

On December 6, 1938, Henry Strickland filed an answer to the contest, challenging the claim of contestant Sam Saros for preferential appointments, both as temporary and permanent administrator of said estate, denying that deceased was a white woman and that contestant was her husband; and, in his own behalf, specially alleged that Anita Martinez was a negro, being the sister of William Daugherty (a negro), who, as next of kin of deceased, had waived his preferential right to such appointment in favor of applicant; further alleging that he is' not disqualified or unfit to act as such administrator by reason of being a negro, and seeking to retain his appointment as temporary administrator, and to be appointed permanent administrator.

It will be observed that the contest over the appointment of both temporary and permanent administrators centers on the issue of whether deceased was a negro. If, in fact, she was a negro and her alleged marriage to Sam Saros, a white man, occurred in Texas, manifestly the purported marriage was illegal, Art. 4607, R.S., and contestant would have no preferential right to such appointments. This was the only controversial issue determinable in the probate court to qualify Strickland and disqualify Saros to act as temporary administrator and be ’ appointed permanent administrator at the next ensuing term of the probate court.

On hearing, December 7, 1938, the probate court revoked the appointment of Henry Strickland as temporary administrator, and appointed one Henry Feld in his stead, fixing Feld’s bond and limiting his power and tenure until such contest be determined and a permanent administrator appointed with full power. Henry Feld qualified as temporary administrator and thereafter took charge of the estate, depriving Strickland of acting in the premises. Strickland appealed to the 101st District Court of Dallas County.

On appeal, contestant Sam Saros first interposed a plea to the jurisdiction of the district court, on the ground that the order revoking the appointment of Strickland, as temporary administrator, and appointing .Feld was purely interlocutory, and that no final decree or judgment was ever entered in the county court from which appeal could lie; and that, under Art. 3378, R.S., the probate court was compelled to appoint a temporary administrator, in view of the contest filed by Saros; therefore, having appointed Feld under such circumstances, no appeal could lie to the district court. The court overruled the plea; thereupon, contestant Saros and proponent Strickland presented the same issues of contest as in the probate court. .

On May 5, 1939, the cause was submitted to a jury and on findings, (1) that the deceased, Anita Martinez, was a negro, and (2) that the deceased and contestant Sam Saros were not man and wife of a common-law marriage, the district court entered judgment, revoking the appointment of Henry Feld as temporary administrator, restoring Henry Strickland, with full authority to exercise each and every power theretofore granted him by the probate court, and directing a mandatory injunction to issue against contestant Sam Saros, enjoining and commanding him, his agents, servants, counsellors, and employees to desist and refrain from interfering with the control of deceased’s property by Strickland, and ordered the judgment transmitted to the probate court for observance. The contestant alone appeals.

The appeal is predicated on three propositions : (1) On the action of the trial court in overruling appellant’s plea to the jurisdiction of the court; (2) on the action of the district court in admitting the testimony of William Daugherty, alleged brother of deceased, identifying deceased’s handwriting in about thirty-five letters, allegedly received by him from her, in violation of the inhibitions in Art. 3716, R.S., precluding heirs from testifying to transactions and communications with a deceased person; and (3) on the action of the court, in granting a mandatory injunction, absent submitted issues and findings of the jury on which such order might be based.

On the first proposition, it will be observed that the controversial issues, raised in the probate court by pleadings of the parties, were the same as those raised on appeal in the district court. Under Art. 3702, R.S., providing, “Such cases [probate cases on appeal] shall be tried de novo in the district court, and shall be governed by the same rules of procedure as other civil cases in said court,” the appeal carried the whole case to the district court, to be tried as though brought in that court originally, without reference to its course in the lower court.

The function of a district court on appeal, fom a probate court, is, not to review but to try the case on its merits. Robertson v. National Spiritualists’ Ass’n, Tex.Civ.App., 25 S.W.2d 889; Coats v. Bain, Tex.Civ.App., 258 S.W. 897. The district court has the same power the county court originally had, also appellate jurisdiction to revise, declare void and set aside the orders of the county court, sitting in probate. This includes power to allow all - necessary amendments, intervention of new parties, admission of any evidence and other matters that might have been admissible and urged in the probate court, but which do not change the character of the proceedings. We therefore conclude that the district court had jurisdiction to determine all issues involved in this proceeding, and that Henry Strickland was, by the .order of the probate court, an aggrieved party and had the right of appeal. His appointment as temporary administrator was revoked, and another appointed, which gave rise to a trial de novo in the district court.

Appellant’s second proposition, involving the action of the district judge in admitting the testimony of William Daugherty (called as a witness by Strickland), identifying numerous letters claimed to have been written to him by deceased, in violation of Art. 3716, R.S., which provides: “In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be 'allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

The assignment of error requires consideration of evidence, or the action of the trial court in the admission or rejection of the testimony. Such assignment cannot be considered, on appeal in absence of full bills of exception or statement of facts, in question and answer form, where the matters complained of — the objections, the court’s r.ulings, and exceptions thereto —clearly appear of record. in said statement of facts, prepared by the official stenographer. Art. 2237, as amended, Acts 1939, 46th Leg., p. 215, Vernon’s Ann.Civ. St. art. 2237.

The record reaches this Court without formal bills of exception or a statement of facts, in question and answer form, showing the matters complained of— objections and exceptions to the court’s rulings on admission of William Daugherty’s testimony. The purported statement of facts is in narrative form, comprising 153 pages, neither agreed to nor signed by ap-pellee or his representative; and, attached thereto is the following certificate of the trial judge: “* * * during the trial of the case, by agreement of the parties, Sam Saros was permitted to make a blanket objection and reserved blanket bills of exceptions to the testimony of William Daugherty, the alleged brother of the deceased, on the grounds that his testimony and the identification of letters allegedly received by him from the deceased, ■ constituted communications and transactions between an heir and a deceased person, and was in violation of the statute on that subject, and it was subject to such objection and exception; that all the letters shown in the foregoing statement of facts were admitted in evidence, and the foregoing is approved as a bill of exceptions to show that the court did over objection and exception overrule and not sustain the objection so made by Sam Saros as to the testimony of William Daugherty identifying her handwriting, and the'action of the court in permitting the portions of said letters as were introduced to be read before the jury; and the ultimate time for the' filing of this statement of facts both in the trial court and in the Court of Civil Appeals having drawn very near, time will not permit for the further preparation of .a separate bill of exceptions, which is the reason for the court entering this certificate in the present form, that the appellant in this cause may have the full benefit of the objection made by him in the trial court.”

It could hardly be said that the narrative statement of facts, certified as it is by the trial judge and filed in the cause, could be considered a bill of exceptions, absent notice to, or agreement of, the adverse party. Appellate courts will not be left to conjecture as to which of the numerous objections and exceptions are included in “blanket objections and blanket exceptions” as presented here for review, nor be required to wade through the statement of facts to ascertain what objections were made. The trial court is required to prepare and file bills of exception only where the parties disagree as to the matters complained of, and certainly appellee is allowed an opportunity to inspect any bill of exception and make objections thereto before same is filed as a part of the record in the cause. While the statute, Art. 2237, requires no particular form of words in a bill of exception, yet it does provide that “the objection to the ruling or action of the Court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain, and no more, and the whole as briefly as possible”; or, that the exceptions to the action of the court shall be noted in the question and answer statement of facts, prepared by the official stenographer. Therefore, in the absence of a bill of exception presented in a manner required by law, this Court is not authorized to consider the assignment.

However, in resolving the question, courts generally apply the rule that the nature of the right asserted in the pleadings is the controlling factor, as to whether the testimony of an alleged heir is prohibited by Art. 3716. When an executor or administrator sues, or is sued in his representative capacity, to establish or defend’ a claim or right in an estate, clearly the testimony of an heir relating to communications and transactions with the deceased, is inhibited by the statute, supra; but, where the suit is one solely for or against an individual, in his individual capacity, which does not involve the estate, and in which judgment would not bind heirs, devisees and legatees in any right or claim they may have in the estate, the inhibitions of the statute have no application.

This suit is one by and against individuals : Henry Strickland’s appointment as temporary administrator of the estate of Anita Martinez was revoked and another appointed. He was shorn of fiduciary authority. William Daugherty, the alleged brother, was not a party to the proceedings in either the probate or district court, having waived all rights he might have asserted in the administration of the estate. Sam Saros sought only to establish his right to administer the estate perforce of a common-law marriage with the deceased. The controversy, therefore, resolved itself into a contest between Strickland and Saros as to which should be appointed administrator of the estate. The right to appointment was personal to them and nowise involved the title to, or distribution of the estate among the heirs, devisees and legatees. If and when such contest arises, the statute provides that “the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives”'of the deceased. We think that, if the assignment of error had been supported by a proper bill of exception, it would have presented no error in this proceeding.

The third assignment of error, directed to the action of the trial court in granting mandatory injunctive relief in aid of appellee’s administration of the estate, in absence of findings of the jury that such was necessary, presents no error. There was no issue submitted to the jury, and none requested; so, in the absence of exceptions to the charge, or request for findings of fact, we must assume that the trial court’s judgment was based on sufficient evidence. Certainly the assignment does not raise fundamental error. There was pleading for injunctive relief; therefore, we must assume the trial court found facts sufficient for his action. The assignment is overruled.

Obviously, the order appointing a. temporary administrator of this estate was made by the probate court in vacation, terminable at its next regular term, and providing that if no contest was filed, the appointment should be made permanent. The next regular term of said court, of which all courts may take judicial cognizance, convened on the first Monday in January, 1939. The appeal from the order revoking the appointment of Henry Strickland and appointing Henry Feld as temporary administrator, was made on the contest having been filed by Sam Saros, before the convening ofi'the next term of said court. The order appointing Feld limited his tenure as temporary administrator until the final determination of the contest. On appeal, the district court, on findings of the jury (June 26, 1939), determined the contest in favor of Strickland, and directed that he be reinstated as temporary administrator of said estate. Thus it appears that, after the appointment of Strickland as temporary administrator, the January, March and May, 1939, terms of the probate court convened, and no contest, either in the probate or district court — other than the one filed by Saros — was filed in said proceedings.

We think, in the absence of further contest, the district court had ample power to effectually appoint Strickland permanent administrator of said estate and fix his bond as the exigencies of the case demanded.

The proceedings having gone over more than three terms of the probate court without further contest, we think, under the findings of the jury, the appointment of Strickland should have been made permanent, fixing his bond as required by law, and certifying the action of the district court to the probate court for observance; accordingly, we reform, and as reformed affirm, the judgment of the court below, and direct that the district court appoint Henry Strickland permanent administrator of the estate of Anita Martinez, fix his bond as such, and certify the order as amended to the Probate Court of Dallas County for observance.

Judgment of the lower court reformed and, as reformed, affirmed.