author: GEORGE, Justice.

text:
    TEXAS CITIES GAS CO. et al. v. DICKENS et al.
    No. 2171.
    Court of Civil Appeals of Texas. Waco.
    Oct. 19, 1939.
    Rehearing Denied Dec. 7, 1939.

      Darden, Burleson & Wilson, of Waco, for appellants.
    John McGlasson, Eugene McGlasson, Sleeper, Boynton & Kendall, and Richey, Sheehy & Teeling, all of Waco, for ap-pellees.
   GEORGE, Justice.

This is a suit to recover damages for personal injuries alleged to have been received by N. P. Dickens as the result of the negligence of Texas Cities Gas Company, Lone Star Gas Company, The First National Bank of Waco, Texas, and Waco Land Trust and its trustees, E. A. Flowers, T. B. Brazelton and W. B. Dossett. Plaintiff N. P. Dickens alleged that a two inch gas line in the tunnel under the annex to the Liberty Building sprung a leak or became separated at its coupling and gas therefrom flowed into and accumulated in the basement of the Liberty Building; that such gas was caused to explode and produce a tremendous fire; that he was a fireman on duty on October 4, 1936, and that he, while in the performance of his duties, received certain personal injuries from an explosion of gas occurring while he was fighting the fire in' the Liberty Building and annex; that The First National Bank of Waco and Waco Land Trust were the owners and operators of the Liberty Building and annex on October 4, 1936; that Texas Cities Gas Company in 1929 furnished the material and installed the pipes and equipment necessary for supplying the building with gas; that Lone Star Gas Company furnished gas to Texas Cities Gas Company; that Lone Star Gas Company and Texas Cities Gas Company increased the gas pressure in the gas lines of Texas Cities Gas Company a few days prior to the 4th day of October, 1936; that The First National Bank of Waco and Waco Land Trust were guilty of negligence (1) in placing Warren Moore in charge of the boiler room and tunnel; (2) in not inspecting the gas pipes and connections from time to time to see that they were in good condition and free from leaks; and (3) in turning off the switch, while acting through their servant, Warren Moore, thereby producing the spark that caused the gas accumulated in the basement of the building to explode at a time when such servant knew or should have known that gas was escaping and accumulating in the basement; and Texas Cities Gas Company was guilty of negligence (1) in the manner in which it caused the gas lines to be installed in the Liberty Building and annex; (2) in allowing gas to be distributed in defective and weak lines; (3) in not causing an inspection to be made of its gas lines; (4) in causing and in allowing high pressure to be placed in its intermediate lines in and adjacent to the Liberty Building and its annex; (5) in not cutting off the gas immediately after the explosion; (6) in allowing gas to flow into the building while the fire was raging in the basement of the building; (7) in causing an unusual and excessive gas pressure to be built up in its gas lines in and adjacent to the Liberty Building and annex; (8) in installing a Hammond coupler in the gas line in the tunnel under the annex without anchoring and bracing the line so that it would not vibrate and separate regardless of the pressure that might be placed in the line; and (9) in failing to paint the line in the tunnel so that an inspection would reveal any slipping or separating of the joint; that Lone Star Gas Company was guilty of negligence in causing high pressure to be built up in the distributing lines of the Texas Cities Gas Company in the city of Waco at a time when it knew the distributing system of the Texas Cities Gas Company was old, defective and worn; that the acts and omissions of the Texas Cities Gas Company, Lone Star Gas Company, The First National Bank of Waco, Texas, and Waco Land Trust concurred in producing the explosion that resulted in the injuries received by plaintiff and that such concurring acts and omissions of the defendants proximately caused the injuries and damages received by plaintiff.

The defendants Texas Cities Gas Company and Lone Star Gas Company answered and plead general demurrer, special exceptions and general denial and certain acts and omissions on the part of Dickens as contributory negligence and certain acts and omissions on the part of the Bank and Land Trust as sole proximate cause, and by way of cross-action sought to recover against the Bank and Land Trust common law indemnity, contractual indemnity and statutory contribution. The Bank and Land Trust answered and plead general demurrer, special exceptions, general denial, contributory negligence on the part of Dickens, and certain acts and omissions, on the part of the Gas Companies as sole proximate cause, and by way of cross-action sought to recover common law indemnity and statutory contribution from the Gas Companies.

The case was tried before the court and a jury. Upon the conclusion of the hearing of the evidence the Bank and Land Trust moved the court to peremptorily instruct the jury to return a verdict in favor of the Bank and Land Trust against N. P. Dickens and against the Gas Companies oh their cross-action. The Gas Companies also moved the court to peremptorily instruct the jury to return a verdict in their favor and against N. P. Dickens. The trial court instructed a verdict in favor of the Bank, Land Trust and Lone Star Gas Company against N. P. Dickens and against the.Gas Companies on their cross-action. The court then submitted to the jury the cause between N. P. Dickens and Texas Cities Gas Company. The jury returned a verdict upon the issues submitted favorable to N. P. Dickens. Thereafter, Texas Cities Gas Company filed a motion asking the court to set aside the verdict of the jury and grant it a new trial. The court set aside the verdict of the jury in favor of Dickens and the Lone Star Gas Company and the judgment rendered thereon and granted Texas Cities Gas Company a new trial as to plaintiff N. P. Dickens. The Bank and Land Trust, then filed a motion to sever the suit of N. P. Dickens against the Gas Companies from the suit of N. P. Dickens against the Bank and Land Trust and the cross-action of the Gas Companies against the Bank and Land Trust and that such causes, after severance, be docketed separately, and that the court then render final judgment on the instructed verdict in favor of the Bank and Land Trust. The court thereupon entered an order severing the cause as prayed for and directing that it be docketed separately on the docket of the trial court. The court then proceeded to enter a judgment in the severed cause without further hearing or another trial on the merits.

The trial court granted the motion to sever and entered its order decreeing that plaintiff, N. P. Dickens, take nothing as against the defendants The First National Bank of Waco, Texas, and Waco Land Trust, and that Texas Cities Gas Company and Lone Star Gas Company take nothing on their cross-action against The First National Bank of Waco, Texas, and Waco Land Trust, on the ground that plaintiff N. P. Dickens’ petition stated two causes of action based on separate and distinct subject matters and enforceable against different defendants, that is, that plaintiff’s petition stated a separate and single cause of action based on one tort against Texas Cities Gas Company and Lone Star Gas Company and another single and separate cause of action based on another tort against The First National Bank of Waco, Texas, and Waco Land Trust. If the trial court’s construction of plaintiff’s petition is correct, then its action is properly.before this court for consideration and review, but if plaintiff’s petition stated one cause of action based on joint and concurring acts and omissions on the part of all the defendants, then this court is without jurisdiction for the reason that only one judgment can be entered in that character of cause. A trial court is not authorized, over the objection of any of the interested parties, to split a single cause of action into two or more parts. 1 Tex. Jur. sec. 53, pp. 670-671.

The cause of action as plead by N. P. Dickens against Texas Cities Gas Company, Lone Star Gas Company, The First National Bank of Waco, Texas, and Waco Land Trust is one. For it is bottomed on the theory that the concurring acts and omissions of all defendants directly produced the injuries received by N. P. Dickens. The allegations are to the effect that the negligent acts of each and all concurred and contributed in producing such personal injuries. The plaintiff’s right of action, if any he has, grew out of one transaction or occurrence. If the negligent acts and omissions of the Gas Companies brought about the release of the gas into the basement of the Liberty Building, it was the act of Warren Moore, servant of the Bank, in turning off the switch that produced the spark that set off the explosion and resulting fire. It was the joint and concurring acts and omissions of the Gas Companies and the servant of the Bank that brought about the condition that made it possible for the plaintiff N. P. Dickens to be injured. Thus, it is apparent that N. P. Dickens’ suit is not based on separate and distinct subject matters. The case was tried as one cause and. as an entirety. The fact that the pleadings and proof of the several defendants presented and supported separate and different defenses to the suit does not render the cause severable. If the plaintiff failed for any reason in the trial court to establish joint liability on the part of any or all of the defendants, that fact would authorize the trial court to instruct a verdict in favor of such defendants but it would not authorize the court to sever the cause for that reason and render judgment for such defendant or defendants and continue the case for another hearing as to the other defendants. The amount of damages sustained by the plaintiff as the result of the concurring and contributing acts of the defendants could be reasonably ascertained and award made therefor but the proportion, if any, contributed by each could not, The damages, if any, occasioned by each could not in a case of this character be separated from that inflicted by the others. And it is for these reasons that no one of the defendants, either before or after hearing, was entitled to demand and receive a severance of the cause and a separate trial. The trial court granted the severance after trial of the cause as an entirety but did not grant and have a separate trial on either of the causes after severance.

Where there are several defendants in an action, no final judgment can be rendered by the trial court in favor of or against one or more of the defendants until it is rendered in favor of or against all of them. Art. 2211, Revised Civil Statutes of Texas, Vernon’s Ann.Civ.St. art. 2211; Wootters v. Kauffman, 67 Tex. 488, 3 S.W. 465; Kline v. Power, Tex.Civ.App., 114 S.W.2d 617; Martin v. Crow, 28 Tex. 613.

The setting aside of the verdict of the jury as to Texas Cities Gas Company and Lone Star Gas Company and granting them a new trial as against the plaintiff N. P. Dickens operated to set aside the verdict of the jury in favor of The First National Bank of Waco, Texas, and Waco Land Trust and to grant to all parties a new trial. Long v. Garnett, 45 Tex. 400; Gulf C. & S. F. Ry. Co. v. James, 73 Tex. 12, 10 S.W. 744, par. 6, 15 Am.St.Rep. 743; Schintz v. Morris, Tex.Civ.App., 35 S.W. 516, Id., Tex.Civ.App., 35 S.W. 825; Levy v. Gill, Tex.Civ.App., 46 S.W. 84; St. Louis S. F. & T. R. Co. v. Smith, Tex.Civ.App., 99 S.W. 171; Marmion v. Herrin Transportation Co., Tex.Civ.App., 127 S.W.2d 558; Hamilton v. Prescott, 73 Tex. 565, 566, 11 S.W. 548; Smith v. Thornton, Tex.Com.App., 119 Tex. 344, 29 S.W.2d 314; Danner v. Walker-Smith Co., Tex. Civ.App., 154 S.W. 295.

The test of whether the judgment is final so as to be appealable is whether it disposes of the whole matter in controversy as to all of the parties. Mignon v. Brinson, 74 Tex. 18, 11 S.W. 903; Whitaker v. Gee, 61 Tex. 217; Havard v. Carter-Kelley Lbr. Co., Tex.Civ.App., 162 S. W. 922; Gulf, C. & S. F. R. Co. v. Atlantic Fruit Distributors, Tex.Civ.App., 184 S.W. 294; Wright v. Chandler, Tex.Civ.App., 173 S.W. 1173; Busby v. Schrank, Tex.Civ.App. 174 S.W. 295; Martin v. Daniel, Tex.Civ.App., 265 S.W. 409; Pecos & N. T. R. Co. v. Epps & Matsler, Tex.Civ.App., 117 S.W. 1012.

We are of the opinion that the orders of the trial court in severing the cause and rendering judgment in favor of The First National Bank of Waco, Texas, and Waco Land Trust do not constitute a final judgment and that this court, for such reason, is without jurisdiction of the attempted appeal. The appeal is dismissed.


source: Caselaw Access Project

author: GRAVES, Justice.

license: Public Domain

text:
    BROUSSARD et al. v. AMERICAN NAT. INS. CO.
    No. 10893.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 16, 1939.
    Rehearing Denied Dec. 7, 1939.
    W. D. Gordon and Howth, Adams & Hart, all of Beaumont, for appellants.
    Frank S. Anderson and Chas. G. Dibrell, Jr., both of Galveston, and Orgain, Carroll & Bell, of Beaumont, for appellee.
   GRAVES, Justice.

This appeal is from a judgment of the district court of Chambers County, sitting without a jury, whereby appellee was awarded a recovery against the appellants of the title to and possession of two tracts of land, aggregating 199.46 acres, lying in Chambers County, 173.34 acres of it being in the Anson Taylor league and labor, and the other 26.12 acres in the Andrew Weaver labor; the appellants, in turn, having been denied any recovery on their cross-action in trespass to try title against the appellee for either tract.

In- support of its judgment the court filed findings of fact and conclusions of law, which findings as such have not been challenged by either side as not supported by the evidence — no statement of facts at all having been brought to this court — the controversy on the appeal being waged solely upon whether or not the judgment, along with its attending conclusions of law, is sound.

The controllingly material ones of the stated findings may be thus, in substance, reproduced:

“In 1912 A. L. Schwartz conveyed to D. L. Broussard, Jr., the lands in controversy, in part payment of which Broussard executed vendor’s lien notes to Schwartz and in the deed a vendor’s lien was retained to secure their payment.
“In July, 1914, said vendor’s lien notes being in part unpaid, the Insurance Company, upon request and agreement of D. L. Broussard, Jr., paid the balance thereon to L. W. Schwartz, said payment being made by draft drawn on it by D. L. Broussard, Jr., in favor of L. W. Schwartz. Coincident therewith, and as a part of the transaction, D. L. Broussard, Jr., and wife, executed said notes and delivered to the Insurance Company a deed of trust to Frank Webb, trustee, on said lands to better secure the notes described, all of which were of date July 13, 1914, and said deed of trust was filed for record in Chambers County, July 14, 1914, and duly recorded.
“D. L. Broussard, Jr., and wife executed the two renewals and "extension set forth in plaintiff’s pleading and that D. L. Brous-sard, Jr., made payments from time to time up to April, 1921.
“Upon the 8th day of January, 1915, D. L. Broussard, Jr., conveyed said land to D. L. Broussard, Sr., in which deed it was recited that D. L. Broussard, Sr., assumed the payment of the outstanding vendor’s lien notes.
“D. L. Broussard, Sr., at no time assumed the responsibilities of ownership of said land; at no time did he take or have possession of said land; he did not render it for taxes, nor at any time pay taxes thereon, or in anywise exercise any right of dominion over the same.
“D. L. Broussard, Sr., did not at any time ever have possession of said land, and at no time after the execution of said deed asserted any claim to the land in controversy, or at any time ever offered any objection to the claim of ownership or the possession of said land by the Insurance Company.
“Said two tracts of land adjoined, and after the purchase by D. L. Broussard, Jr., in 1912, he took possession of same, which possession continued until 1921, during which time said land was under fence. In 1921 D. L. Broussard, Jr., abandoned said land and any right, title, and interest he had therein, and removed therefrom.
“In 1922, said land being abandoned by D. L. Broussard, Jr., the Insurance Company filed suit wherein D. L. Broussard, Jr., and wife, Effie Broussard, and Gulf Refining Company were defendants, seeking judgment against D. L. Broussard, Jr., on said above described notes and for foreclosure of the deed of trust lien, said suit being No. 38039 on the docket of the district court of Galveston County. D. L. Broussard, Sr., was not a party to said suit and was not affected thereby. On the 7th day of April, 1922, plaintiff recovered judgment for $3,724.64, with interest against D. L. Broussard, Jr., and for the foreclosure of the deed of trust against the defendants. On the 1st day of August, 1922, order of sale was issued out of the district court in said cause to the sheriff or constable of Chambers County, and the sheriff, acting under the same, sold the property on the 3rd day of October, 1922, to the Insurance Company and deed was duly made by such sheriff to said company and said order of sale, sheriff’s return, and deed were filed, and recorded in the Deed Records of Chambers County.
“Immediately after the sale of said lands, the lands having theretofore been abandoned by D. L. Broussard, Jr., and D. L. Broussard, Sr., not having any possession of same or making any claim thereto, the Insurance Company paid off and discharged all delinquent state and county taxes on the property, said taxes being delinquent then for the years 1918, 1919, 1920, and 1921, ‘and otherwise assumed, in relation to said land, the responsibility of ownership and exercised dominion thereof, and beginning with the year 1923 it assessed said land for taxation and paid all taxes thereon as they matured and before delinquency down to and including the year 1937’, and paid delinquent taxes to Trinity River Irrigation Company for the years 1918, 1919, and 1920, all of which delinquent taxes prior to the time of the purchase by the Insurance Company were assessed to D. L. Broussard, Jr., and, exclusive of the year 1937, it had paid in taxes the total sum of $1,813.77.
“During the crop year of 1925, one Pinckney, under lease agreement with the Insurance Company, lived upon said land and raised a crop on a portion of same, tie lived there almost a year before September 1, 1925, (entry being in the fall of 1924). On September 1, 1925, the Insurance Company, by written -lease, leased the land to G. M. Stephenson, who entered upon the land, plowing a portion of it for crop planting. While the lease was for only one year, Stephenson, without surrendering said land, continued to use it thereafter, though in an unfenced condition, until the spring of 1931, although about the year 1928 he made another lease with the Insurance Company of said lands, in which J. H. Blair was also associated. The land was continuously -used under said lease for grazing purposes, said persons at all times recognizing the title of the Insurance Company, under whom they entered.
“On the 31st 'day of March, 1931, the Insurance Company by written agreement leased the land to Guy Frezia; there was associated with him in said lease, although not named in it, George Stephenson and J. H. Blair, and shortly thereafter they enclosed said land together with certain other lands leased and controlled by them, which enclosure was made by the construction of fences (portion of existing fences being used by consent of owners) upon three sides of the enclosure and Double Bayou being used as a barrier upon the west side of the enclosure'. Double Bayou as so used for the west boundary and barrier of said pasture .formed for all practical purposes a barrier against grazing cattle and was such .barrier as commonly used in that section of the country as a barrier against cattle.
. “Said tenants paid to the Insurance Company $25.00 per year as rent on said land, ánd'a lease was renewed for'the following' year 'andr rent paid thereon, and Frezia entered into another lease with • the Insurance Company 'covering the period of timé- from- March- 31, 1933, to March 30,-1934, in' which Stephenson and Blair were also, associated- with Frezia, as was the case' in the 1931 lease. For two years-after- the fencing of. the land' by Stephenson, ‘Blair and Frezia; -in the year 1931, the land was used by such parties for -grazing purposes, there being in said pasture continuously from said time from 200 to 300 head of cattle belonging' to such owner. The pasture contained about 1500 .acres of land.
“After two years, Frezia, who had entered and held title under .the Insurance Company,- removed his cattle and at said time removed a portion, of the. fence enclosing the land, and thereupon George M. Stephenson and J. H. Blair, who continued the use of the land and pasture under their entry under lease from the Insurance Company, removed a portion of the fence theretofore built south of an old road extending east and west immediately north of the pasture as same was originally fenced by Frezia, Stephenson and Blair, and replaced the fence taken down by Frezia, but in so doing extended the pasture across an old public road then little used, which entered the pasture as reconstructed on the east side and extended across same to Double Bayou on the west. The bridge across Double Bayou originally used by the users of said road, had been destroyed by fire prior to the time of fencing said lands in 1931, and in so extending the pasture north of the road, they extended the use of Double Bayou as a barrier on the west, north of the old road. The Bayou north of the road was not of such a nature as to form an absolute barrier against cattle and other stock. When the pasture was extended as above, a gate was placed across the old road, which remained for a short while, which road at that time was little used.
“ ‘From the time of the enclosure of the land in controversy as herein found, in April, 1931, until the time of the trial of this suit, George M. Stephenson (until the time of his death 1936), and his wife and son thereafter, and J. H. Blair under lease agreement with the Insurance Company, had the actual use and possession of the land in controversy for grazing purposes and did so use and possess the same.’
“ ‘The Insurance Company from the time of its purchase at sheriff’s sale in October, 1922, continuously asserted claim of ownership of the land in controversy and exercised the right of dominion over the same and after its first entry and possession it has not surrendered its possession or claim to said land, but same has been in good faith continuously maintained and asserted.’
“Upon the 7th day of April, 1937, D. L. Broussard, Sr., joined by his wife, executed a deed to said land to A. D. Hawkins, which deed recited a consideration of $10.-00, but Hawkins paid no actual consideration for said deed; at the time of the taking of said deed D. L. Broussard, Sr., advised A. D. Hawkins that if D. L. Brous-sard, Jr., had conveyed said land to him he did not know anything about it. On May 24, 1937, during the pendency of the suit, A. D. Hawkins and W. F. Peyton, for a recited consideration of $10.00 and other good and valuable considerations, conveyed to C. W. Howth, M. G. Adams, Lamar Hart, and Mike Daughtry an undivided one-half interest in the land in controversy, but neither A. D. Hawkins, W. F. Peyton, nór any of the persons named as grantees, testified in the cause and there was no evidence other than the deed showing any consideration was paid for said deed. At the time of the making of the deed to A.D. Hawkins by D. L. Broussard, Sr., and the subsequent deed above named, the Insurance Company was in the actual and exclusive possession of the lands mentioned.
“The Insurance Company through its tenants was continuously in possession of said land from April, 1931, to time of trial, and it was continuously being used by it through tenants. However, the court further found that, because the use of the Bayou as a barrier north of the old road referred to was not of such use as to put a true owner upon notice, that the Insurance Company did not have for a continuous period of five years such possession of said land as matured in it title under the five-year statute of limitation.
“The land was principally usable for rice land and grazing, but after 1921, because of lack of irrigation facilities, it was not usable as rice land and was practically useable only for grazing purposes.”
The conclusions of law, in his verbis, were these:
“1. That the defendants in this suit have ‘the legal record-title to the land in controversy’
“2. That the Insurance Company has not matured in itself a title by adverse possession under any statute of limitation.
“3. That from the time of its original entry through its tenant, Pinckney, to the time of the filing of this suit, and at said time the plaintiff, Insurance Company, was a mortgagee in possession, but the defendants cannot recover the land without payment of the debt.
“4. That the defendants, neither in their answer to plaintiff’s suit, nor in their cross-action, having exercised ór claimed any right of redemption, nor by pleading tendered any remaining amounts due on said above-mentioned notes, or offered to pay same, or prayed for adjustment of equities, but, to the contrary, pleaded the bar of limitation against plaintiff’s cause of action, and by way of cross-action said defendants having sued for said lands without tender of the amount due on said note, are not entitled to any adjustment of equities.
“5. I further conclude that plaintiff, Insurance Company, is entitled to judgment for the title and possession of the lands described in plaintiff’s first amended petition, and the defendants as cross-plaintiffs take nothing on their cross-action to recover of original plaintiff, Insurance Company, the lands sued for.”

It is thought the controlling question the appeal presents is whether or not the ap-pellee — as against appellants’ claims to own the land down under the deed thereto from Broussard, Jr., to Broussard, Sr., as to which the trial court concluded they had “the legal record-title to the land in controversy” — was correctly found and held to have been in the position of a mortgagee-in-possession of the land, hence entitled to recover it as such against appellants, who neither paid, tendered, nor offered to do equity concerning the appellee’s established vendor’s lien indebtedness against the title.

Under the state of the record and its unchallenged findings of fact, it is concluded that the trial court’s judgment was correct; true, the appellee formally sued in trespass to try title as plaintiff, to which the appellants, as defendants, responded by cross-action, likewise declaring in trespass to try title that they owned the land; but the appellee further — in an alternative pleading that became the primary declaration of its cause of action upon the court’s holding that the defendants held the record-title — set up fully its claim to having been such a mortgagee-in-possession and entitled to all the privileges, rights, and immunities inhering in that status as against the appellants’ stated claims; in doing so, it averred specifically that it was such a mortgagee-in-possession, setting out substantially the matters and things as averments which the learned trial court, after hearing the testimony, matured into the findings of fact upon that subject, as the same have hereinbefore been quoted.

Wherefore, there was no lack of either supporting pleading or evidence to entitle it to so sue in maintenance of such possession, and to recover the land as against those who in no manner answered or met that declared-upon cause of action; Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329; Connor Bros. v. Williams, 130 Tex. 572, 112 S.W.2d 709, 711; City National Bank v. Moody, Tex.Civ.App., 115 S.W.2d 745; in other words, the appellants ignored entirely the appellee’s claim to having been such a mortgagee-in-possession, and based their cause upon the wholly independent consideration that Broussard, Sr.,—down under whom they all claimed—had not been a party to the appellee’s foreclosure suit in 1922, consequently that they themselves were strangers and third parties to the whole claim of the appellee to being such a mortgagee-in-possession, and that their title down under'the deed from Broussard, Jr., to Broussard, Sr., was entirely unaffected thereby.

This answering position is deemed to be unsound, in that it was both pled and proved that Broussard, Sr.,, who is one of the appellants here, in his relied-upon deed from his son of January 8, 1915, as part of the contract thereby evidenced between them, expressly in that instrument, which promptly went to record, assumed and agreed “to pay off and discharge all those certain outstanding vendor’s lien-notes given (by Broussard, Jr.) in payment for the hereinafter described tracts or parcels of land”, the notes themselves being specifically described, together with the liens securing them.

These very liens, which thus between those two parties to that Broussard deed were agreed to constitute the original purchase-money liens against the land, as un-disputedly thereafter .novated and at all times kept alive, were the liens the appel-lee pled and recovered upon in this judgment.

In such circumstances, this court is prone to hold that, as applied to the uncontro-verted findings here, the mere fact that Broussard, Jr., so conveyed this land to his father, who thus assumed the payment of the appellee’s vendor’s lien debt against it, but never did so pay, nor ever claimed any ownership of or exercised any dominion over the land itself, did not deprive the ap-pellee as such a mortgagee in lawful possession of the right of both occupying and maintaining that position—not only toward Broussard, Sr., but also toward the other appellants, who hold under him. This conclusion, by analogy at least—is thought to be supported by these authorities: Connor Bros. v. Williams, 130 Tex. 572, 112 S.W.2d 709, 711; Murrell v. Kelly-Goodfellow Shoe Co., 18 Tex.Civ.App. 114, 44 S.W. 27; Majors v. Strickland, Tex.Civ.App., 6 S.W.2d 133, 135; Duke v. Reed, 64 Tex. 705; Jones on Mortgages, 8th Ed., Section 886, Vol. 2, p. 219.

Broussard, Sr., and all those holding with him under that deed were thus of record charged with notice that Broussard, Sr., was not a third party as affected the vendor’s lien indebtedness so still outstanding in and held by the appellee, along with its actual possession of the land itself continuously down from at least 1924 until the trial of this suit in 1938.

Neither, upon like or similar considerations, did the foreclosure' of appellee’s mortgage in 1922, to which appellant Brous-sard, Sr., was not a party, destroy or injuriously affect, to appellants’ advantage, the rights of the appellee as such a mortgagee-in-possession; this for the main reason that appellee actually took possession under that foreclosure, which it steadfastly maintained until the trial of this cause, while Broussard, Sr., despite his recited assumption of the outstanding vendor’s lien indebtedness against the land, never paid that, nor ever exercised any other duty or privilege as to the land thereafter—Brous-sard, Jr., having finally abandoned it to the appellee in 1921; see the Braswell, Williams, and Moody cases, cited supra.

Under the cited holdings, it would seem to make no difference as to the operation of this rule, even were the 1922 foreclosure held to be void, as appellants’ contend, because, as they assert, the property was the homestead of Mr. and Mrs. Broussard, Jr. However, this court is unable to see eye to eye with the claim, despite the trial court’s finding that it had been the homestead of the junior Broussards from its acquisition by them until they abandoned it as such in 1921, for two reasons: (1) Such homestead character had been removed by abandonment one year before such foreclosure; (2) by the unattacked finding upon that feature, the indebtedness to secure the payment of which the foreclosure was invoked, represented the still-unpaid original vendor’s lien notes the Broussard juniors had given for the deferred part of the purchase-money for the property; Flanagan v. Cushman, 48 Tex. 241, 247; Johnson v. Portwood, 89 Tex. 235, 248, 34 S.W. 596, 600, 787; Woods v. West, Tex.Com.App., 37 S.W.2d 129.

It follows also that appellants’ claims to having been such third parties, because the others of them than Brous-sard, Sr., were in no way obligors upon nor directly bound to pay such debt of Broussard, Jr., are unsound; they, by the holdings of our Supreme Court, are in no better position than would have been Broussard, Jr., the original obligor, or Brorrssard, Sr., the assumer of the original debt, hence they cannot defeat the rights of appellee as a mortgagee-in-possession without paying the debt due it, on the claim that the original notes are barred by limitation. Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329; City National Bank v. Moody, Tex.Civ.App., 115 S.W.2d 745; Vanderwolk v. Matthaei, Tex.Civ.App., 167 S.W. 304, writ denied; Duke v. Reed, 64 Tex. 705; Connor Bros. v. Williams, 130 Tex. 572, 112 S.W.2d 709, 711; Murrell v. Kelly-Goodfellow Shoe Co., 18 Tex.Civ.App. 114, 44 S.W. 27, 30; Majors v. Strickland, Tex.Civ.App., 6 S.W.2d 133, 135; Jones on Mortgages, 8th Ed., Sec. 886, Vol. 2, p. 219; 41 C.J. 613.

The record-title found by the court to have been in appellants was, therefore, merely a naked one, without attending power in them either to possess, appropriate, or to otherwise exercise any dominion over the land — they not having overcome in any required respect the appellee’s superior right by virtue of being a mortgagee-in-possession.

These conclusions require an affirmance; it will be so ordered.

Affirmed.


author: YOUNG, Justice.

text:
    ROBERTSON v. TEXAS & N. O. R. CO.
    No. 12776.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1939.
    Rehearing Denied Nov. 25, 1939.
    White & Yarborough, of Dallas, for appellant.
    Baker, Botts, Andrew & Wharton, of Houston, and Robertson, Leachman, Payne, Gardere & Lancaster and Gus M. Plodges, all of Dallas, for appellee.
   YOUNG, Justice.

Appellant’s suit in the trial court was for injuries — a hernia — sustained by him while in the service of appellee Railroad Company as a section hand at. Miller’s Switch, Dallas County; the particular work in which he was engaged on said August 12, 1937, being the lifting of certain iron rails in concert with three fellow employes, by use of a lining bar. Upon a trial to a jury and return of verdict on submitted issues (appellee’s motion for peremptory instruction being denied), both parties filed motions for judgment, appellee’s motion being non obstante veredicto. After due notice and hearing, appellant’s motion was overruled, that of appellee was -sustained, and judgment entered accordingly. Plaintiff, Hartho H. Robertson, has consequently prosecuted his appeal to this Court. The allegations of plaintiff’s trial pleading are indicated in the issues submitted to the jury, which fact issues and the jury’s answers thereto may be briefly summarized: (1) That at the time and on the occasion in question, plaintiff was undertaking to lift railroad rails by the use of a bar; (2) that when plaintiff was using such bar, he was working under the immediate direction and control of defendant’s foreman; (3) that he sustained injuries while attempting to lift such railroad rails; (4) that, at the time, plaintiff was inexperienced in the kind and character of work he was doing; (5) defendant, through its foreman on said occasion, failed to furnish a sufficient number of men to do the particular work; (6) that such failure constituted negligence and a proximate cause of plaintiff’s injuries; (7) that at the time, defendant’s foreman ordered and directed only four men, including plaintiff, to lift the iron rails, such being negligence and a proximate cause of the injuries to plaintiff ; (8) defendant’s foreman failed to warn plaintiff of any danger involved in the work in question, such being negligence and a proximate cause, etc; (9) said injuries to plaintiff were not the result of an unavoidable accident; (10) that plaintiff did not know of the risk, if any, in the work he was engaged in performing; (11) plaintiff did not have equal knowledge with defendant’s foreman with reference to the risk, if any, in the work he was ■engaged in performing; (12) that such risk was not readily apparent, nor one normally incident to plaintiff’s occupation ns a section hand; (13) that plaintiff did mot have equal means of knowledge with defendant’s foreman as to the weight he was undertaking to lift; (14) that plaintiff did.not fail to exercise ordinary care for his own safety in the manner in which he undertook to lift the rails; (IS) that plaintiff’s proportion of negligence on the occasion of his injuries was none, the defendant’s proportion thereof being 100 per cent; and damages were fixed in the sum of $3,500. Another issue found that the track upon which plaintiff was working at the time was used in interstate commerce. The defendant alleged, among other things, that it was a corhmon carrier, engaged in interstate commerce, and that plaintiff, at the time, was himself actually engaged in interstate commerce; furthermore, that plaintiff had assumed the risk of the injury complained of.

There was testimony that plaintiff’s work was on the main line of defendant’s railroad, over which, as a substantial part of the traffic, were carried freight and passengers to and from points outside the State of Texas. Plaintiff, Hartho H. Robertson, testified, in effect, that he was twenty-four years of age, and had worked for defendant as a section hand from January to the date of his injury. Prior to this, he had worked on a farm, chopping cotton, plowing, among other things; had driven a truck — cut and split cord wood, sawed blocks; had carried wood, loading it in a wagon, and hauling same to town; had regularly pitched baseball; that he had done hard work ever since he was big enough; had lifted wood, brick and planks, and “buster” plows; and had engaged in construction work at the Dallas Centennial, shoveling concrete. On the particular occasion, plaintiff testified that he was on the main track of the railroad, with its two lines of rails running along. Where he was lifting, there were five rails fastened together on each side; that each rail was 33 feet in length, and that he knew the weight of each rail to be 990 pounds. He was engaged in pushing the end of his lining bar under the rail and lifting on it, at the word of the foreman; that when he did so, it was too much weight and “I could not hold it up and I went down with the bar”; and that the rails were spiked onto the cross-ties. He further stated that while he was lifting the rail, he could feel a bulge-out in his abdomen, it being like a blow inside of him, and it pushed out; that in lifting, he went down on the ground with the bar and raised up on it; that he just stuck his bar under the rail and lifted up; a lining bar being similar to a crowbar, except straight. As to the rail, plaintiff testified by deposition :

“Q. How far over in all were you ■moving it? A. I never measured it. I don’t know.
“Q. A foot or six inches? A. I don’t know. We moved it until the section foreman told us it was enough. That’s all I know.
“Q. About how many lifts did you make •on it? A. Never counted them.”

It is not disputed that plaintiff’s employment was on defendant’s said main line, which line was being put to use in interstate commerce. Defendant was a common carrier, operating between states. That such facts bring this case within the purview of the Federal Employers’ Liability Act, 45 U.S.C.A. §§ 51-59, and renders available the common law defense of .assumed risk, is well settled; there being nothing in this record to indicate any violation of said act whereby defendant would be deprived of such defensive issue. 45 U.S.C.A. §§ 51-59; Pederson v. Delaware L. & W. Railroad Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed 1125, Ann.Cas. 1914C, 153; Gulf C. & S. F. R. Co. v. Spivey, Tex.Civ.App., Austin, 56 S.W.2d 655; certiorari denied, 290 U.S. 676, 54 S.Ct. 98, 78 L.Ed. 583; Pisano v. Texas & N. O. R. Co., Tex.Civ.App., Gal., 112 S.W.2d 316.

In relevant propositions, appellant strenuously contends that issues of fact were raised by the testimony, as submitted in the court’s charge; and, under the jury’s answers thereto, plaintiff should have had judgment in the amount fixed in their verdict. On the other hand, the trial court in its rendition for defendant, non obstante veredicto, evidently concluded that the facts herein, when clarified, simply made applicable the well-recognized rule that a man is the best judge of his own strength and assumes the risk of injury from overexerting himself in lifting. The principle of law contended for by defendant as decisive of the instant case, has been followed from an early date by the Texas courts, that “A servant assumes the risk of physical injury to himself, sustained by reason of his overtaxing his strength or powers of endurance in doing the work for which he is employed, when the occasion presents no emergency requiring hasty action”. 39 C.J. (Master and Servant) p. 766, Sec. 965. See, also, Stenvog v. Minnesota Transfer R. Co., 108 Minn. 199, 121 N.W. 903, 25 L.R.A.,N.S., 362, 17 Ann.Cas. 240. As pointed out in the L.R.A. Annotations to the case last cited, it is only fact situations that involve lifting or over-exertion that fall within the rule; for which reason, appellant’s principal authority of Panhandle & S. F. R. Co. v. Brooks, Tex.Civ.App., Amarillo, 199 S.W. 665; Id., Tex.Com.App., 222 S.W. 186, has no particular application. In the Brooks case, supra, injury did not result from lifting or over-exertion, but from the sudden dropping of a bridge timber over a drain box, onto the plaintiff, throwing its weight on him with a jerk before he had time to turn loose; the affirmance thereof by the Commission of Appeals turning on sufficiency of pleading upon special exception and the validity of a contract limiting liability. The Supreme Court approved only the judgment recommended by the Commission. Notwithstanding the jury findings that plaintiff was inexperienced in the particular work, the danger incident thereto not being apparent or known to him, yet we are of the opinion that Robertson’s own statement of the transaction surrounding the alleged injury precludes a recovery. The situation was as plainly observable to plaintiff as to anyone present, including defendant’s foreman. All other physical conditions were equally apparent to him. The weight of the rails only was material. This he knew; also that he was undertaking, in conjunction with three others, to lift or move by the use of a bar, five such rails, of the same size and hooked together. The injuries resulting to plaintiff from lifting or over-exertion are classified as “strain cases”, where in the consequence of overtaxing one’s strength are ordinarily assumed by the complaining party as a matter of law. The Supreme Court of Montana, in Matson v. Hines, 63 Mont. 214, 207 P. 474, 475, states the general rule cumulative to the principle already announced from 39 C.J. p. 766, “* * * that the lifting of a heavy object involves no peril that is not obvious to any person of common understanding. The employee is the best judge of his own lifting capacity, and the risk is upon him if he over-taxes it. An employee, who undertakes to lift, or assist in lifting, a heavy object, knowing its weight and condition, assumes the risk of the injury due to the task being too great for his strength, and, in case injury-results, he is not entitled to recover damages from his employer”: Our State decisions aré in accord where the facts make applicable the above rule; and, as already pointed out, the cases relied on by appellant are dissimilar, involving, for the most part, injuries from other definite causes, for example, obstructions. As illustrative of the recognition given the quoted rule by our own jurisdiction, see International & G. N. R. Co. v. Figures, 40 Tex.Civ.App. 255, 89 S.W. 780, 781, where the injured party (Figures), being familiar from experience with the matter of handling and lifting metal, saw the iron bolster near the scrap iron he was assisting to load, but did not know its weight. The bolster really weighed 575 pounds, and the foreman over Figures testified that the object was heavy and dangerous; that one man had been hurt with it, but directed its loading into the car by plaintiff and another. Judge Reese, for the Galveston Court, in discussing the facts, said it was true that Long, the foreman, had testified of the bolster being dangerous, and that one man had been hurt with it, but the unavoidable inference from such testimony was “that the danger lay in its weight, and not in any occult properties of the piece of iron peculiarly within his knowledge. This was a matter as fully within the observation of' appellee as of Long, especially in view of his testimony that he was familiar from experience with the matter of handling and lifting iron. Indeed, whatever danger, if any, there might have been in two men attempting to lift and load this bolster into the car, was a matter so open to common observation as to be necessarily perceivable by any man of ordinary understanding. But even if appellee. did not know, and by the use of ordinary care could not have discovered before talcing hold of the bolster, whatever danger there was, if any, in two men undertaking to lift and load it into the car, certainly he had but to take hold of it, preparatory to lifting it, to discover, as fully as could have been known to Long, whether he and Caldwell could handle it with safety. In undertaking, with the assistance of Caldwell alone, to lift and load the bolster into the car, appellee must be held to have assumed the risk of whatever danger there was in doing so on account of the weight of the piece.” See the recent case of Fort Worth & D. C. Ry. Co. v. Doty, Tex. Civ.App., Fort Worth, 64 S.W.2d 796 (Sup. Ct. adopted) 95 S.W.2d 104, where the reasoning of Judge Hickman is to the same effect. Despite the great volume of testimony in the record on behalf of appellant, and generously quoted in his brief, the relevant facts of this case are not complicated, and, in our opinion, the law controlling them is specific and well settled. Such facts are that plaintiff, while using a simple tool, a lining bar, by inserting one end under the rail of an ordinary railroad track, and. lifting on the other end, overexerted his strength and sustained a hernia. There was no emergency, no falling, no unknown factor, as we view it; just an ordinary tool, the usual railroad, and a man used to physical labor and lifting. Hartho Robertson had worked as a section hand on the railroad for some eight or nine months prior thereto. He had long engaged in various kinds of manual labor, involving physical exertion. His activity on the occasion of his injury was a simple one, i. e., the application of physical strength by leverage upon a heavy object, with the weight and construction of which he was familiar. The general testimony of plaintiff that he had never attempted to do this particular job and that he was inexperienced in railroad work, cannot obscure the fact that there was involved only the physical factor of exerting his strength; and that, in the situation thus presented, he must have assumed the risk of overtaxing it. Texas & P. Ry. Co. v. Miller, 36 Tex.Civ.App. 240, 81 S.W. 535; Parish v. Missouri K. & T. Ry. Co., Tex.Civ.App., 76 S.W. 234; Ehrenberger v. Chicago, R. I. & P. Ry. Co., 182 Iowa 1339, 166 N.W. 735, 10 A.L.R. 1388, 1399 Anno. Quite pertinent is the language of Judge Baugh, in Gulf, C. & S. F. R. Co. v. Spivey, supra, [56 S.W.2d 658], when applying the principle of law which we think is here controlling :

“After a rather exhaustive search, we have been unable to find any case, where injury resulted from the act of the employee in overtaxing his strength, and where the common-law defense of assumed risk was not denied to the employer, which does not hold that the employee, being the best if not the sole judge of his own strength, assumes the risk of resultant injury, whether external or internal.”

From a careful study of this record and briefs of the parties, we believe the judgment of the trial court was correct and it is accordingly affirmed. Appellee’s alternative propositions based on certain cross assignments of error have not been considered in view of the above disposition.

Affirmed.


author: BOND, Chief Justice.

text:
    EDWARDS v. KELLER et al.
    No. 12780.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1939.
    Rehearing Denied Nov. 25, 1939.
    J. E. Newberry and Montgomery & Campbell, all of Dallas, for appellant.
    Hughes & Monroe and P. P. Ballowe, all of Dallas, and John L. Flynn, Asst. Atty. Gen., of California, for appellees.
    Jack Keller, of Dallas, per se.
   BOND, Chief Justice.

Appellant, W. W. Edwards, instituted this suit against Great Republic Life Insurance Company, a corporation, to' recover damages for the breach of a contract of employment. Jack Keller, receiver, was vouched into the suit to effect collection of the claim out of the estate of the corporation in the hands of the receiver. This appeal is from a judgment in favor of appel-lees.

The material facts are, in substance, as follows: The Great Republic Life Insurance Company was a corporation chartered under the laws of the State of California, with its principal offices in that slate, with permits to do business in the States of Oklahoma and Texas. The business affairs of the corporation were under the management and control of a board composed of eleven directors, elected within the limitations of and subject to the laws of the chartered state and the by-laws of the Company. The directors were elected annually by the stockholders of the. corporation and clothed with authority to select annually the president, vice-president, secretary and treasurer, and appoint five of its members as an executive committee. The by-laws, material here, dealing with the duties of the president, provide: “Subject to the approval of the executive committee, the president shall appoint and fix the compensation or salary of all clerks or other employes not appointed by the. board of directors, and may dismiss such clerks and employes”, and “He shall countersign all checks, sign- certificates of stock, sign policies of insurance, and sign such contracts and other instruments in writing as are first approved by the board of directors or the executive committee”. The by-laws further provide that the executive committee shall keep minutes of its proceedings and, “within the limitations of and subject to the laws of the state and the by-laws of the company, and the rules, orders, contracts, resolutions, and approval of the board of directors, have control of the moneys and other property, of the company, of the investment of its funds, and all purchases and loans”. At the time of the institution of this suit, however, the affairs of the corporation, since May, 1934, were in the hands of a conservator, duly appointed, qualified and acting, by order of a Superior Court of California.

In 1932, appellant, W. W. Edwards, president of Oklahoma Southern Life Insurance Company, entered into negotiations with the president of the Great Republic Life Insurance Company, resulting in a merger of the two companies, and, soon thereafter, on October 3, 1932, the contract involved in suit was entered into by Edwards and T. J. McComb, president of the Great Republic Life Insurance Company. The contract, in writing, cites the employment of Edwards, at a salary of $1,000 per month for a period of two years from and after October 1, 1932 “in such capacity as the Great Republic Life Insurance Company may from time to time direct for the period j of two (2) years * * * ”. In pursuance of such agreement, Edwards, immediately after the contract was executed, moved from Oklahoma, where the contract was entered into, to the California offices of the Insurance Company and there entered upon such duties as the Company directed, and received the monthly salary of $1,-000, to December 1, 1933, when the executive committee, with the approval of the board of directors (Edwards being a member of the committee, as well as a director), .reduced the salary of Edwards to $500 per month. Appellant continued in the service of the company, receiving, under protest, the monthly salary of $500, until May 15, 1934, when, at the instance of the Conservator of the State of California, his employment was terminated. This suit was brought to recover the $500 per month remaining unpaid on the contract, from December 1, 1933, to May 15, 1934; and, $1,-000 per month from May 15, 1934, to October 1, 1934, a total of $7,250, with legal interest and costs of suit.

The record discloses that neither the executive committee nor the board of directors of the corporation expressly authorized the execution of the contract involved in this suit; and, there is nothing in the minutes of the proceedings of either of the boards showing that the contract made by the president of the corporation was ever approved or ratified by the executive committee or the board of directors. The contract, in all of its terms, was never presented or called to the attention of either board; and, the most that can be said is, that some five or six members of the board knew of the emp^ment of Edwards by the month and that the salary was being paid to appellant out of funds belonging to the corporation.

However, be that as it may, assuming for the purpose here that the directors did know, or that they even participated in the making of the contract, extending the employment of Edwards over the period of two years, we think such a contract was void, because of the lack of power in the directors and president to make it. The statute of this State (Art. 1323, R.S., Vernon’s Ann.Civ.St. art. 1323) expressly provides for the election of directors of a corporation annually, at the annual meeting of the stockholders, and, in the absence of a contrary showing, it must be assumed that the statutes of Oklahoma and California are the same as those of Texas. The bylaws of defendant also have similar provisions. Thus, by means of such annual election, the stockholders of the corporation are clothed with the ultimate power of direction in the administration of its affairs; they are the sovereigns of the corporation, and, where the terms of a contract extend over the tenure of the executive officers, thereby taking from the incoming board of directors, officers, and stockholders of the corporation, the power of directing the corporate affairs, denying to them the ultimate and final power in such matters, such contracts are void. Neither the board of directors nor the president of the corporation 'can exceed the limitations placed upon them by the laws affecting the corporation. The terms of the statute and the by-laws of the corporation are necessarily read into every contract made on behalf of the corporation ; therefore, appellant, knowing the limitations of the corporate officers, and that the work to be performed by him was “in such capacity as the corporation from time to time directs”, and at a salary of $12,000 a year, extending over a period of two years, is in no position to urge that the making of such contract came within the powers of such corporate officers. The contract would deprive the stockholders and successive directors, within such period of time, of the power to exercise the administration of corporate affairs, to dismiss such employe, reduce his salary, and otherwise control his employment. We are of the opinion, therefore, that the contract was contrary to public policy. So, if it can be said from the record that the directors knew that its president had entered into the contract at the time it was made, or that the board had thereafter ratified the same by express orders, we think their act in so doing would not and did not breathe life into the contract void ab initio. It is true that neither a corporation nor an individual can accept services or property under an ultra vires contract, receive all its benefits, and then refuse to pay therefor; but, such is not the case at bar. The services rendered by appellant were paid for by the corporation, and, the contract being void, it was clearly within the power of the board of directors to change, alter or terminate the contract and dismiss appellant at will. Limitations placed on the executive officers of the corporation by the laws of the state and by-laws of the corporation forbid a contract as involved here.

In Beaton v. Continental Southland Savings & Loan Ass’n et al., Tex.Civ.App., 101 S.W.2d 905, 909, a breach of contract of employment extending over a period of ten years was involved. In the course of the opinion, this Court said: “In its last analysis, the shareholders, and not the board of directors, are the sovereigns of the instant building and loan association. If the board of directors should prescribe that a certain administrative course should be pursued for a period of ten years, such act would be void. Why? Because it takes from the incoming board of directors, stamped with the approval of the shareholders, the power given it both by statute and by the Continental by-laws. But, over and above this, it is void, for the reason that, for the period of ten years, it denies to the shareholders the ultimate and final power in such matters, the right to elect the board of directors to carry out their administrative ideas.”

So, also, in Denton Milling Co. v. Blewett, Tex.Civ.App., 254 S.W. 236, 238, the directors of the Milling Company entered into a contract with Blewett, to be manager of the corporation for a period of five years, at a stipulated salary per an-num. The contract was-declared void by the Texarkana Court of Appeals (writ of error refused by the Supreme Court), and, in the opinion, the court said:

“Each new board is responsible to the stockholders for the manner in which the business is conducted, and should, in the nature of things, be free to select its own agents. If one board of directors may contract with a manager for employment extending over a term of five years, they can materially -handicap the freedom and power of their successors in the management of the business of the corporation. * * * It is manifest that in providing for a change in the directorate once every year it was intended to reserve to the stockholders the power to also control all those important agents upon whose efficiency the business success of the corporation depended. * * * The stockholders could do little at their annual meetings toward removing an inefficient management of the affairs of the concern if so important an official as the manager could not be changed when a change was needed. The following authorities, we think, sustain this conclusion : Llewellyn v. Aberdeen Brewing Co., 65 Wash. 319, 118 P. 30, Ann.Cas.1913B, 667, and cases cited in notes; Beers v. New York Life Ins. Co., 66 Hun, 75, 20 N.Y.S. 788.”

In the instant case, there is no dispute that appellant rendered services to the corporation and received the compensation provided in the contract, until the compensation was reduced by the board of directors on December 1, 1933, and thereafter received the reduced compensation until the corporation and all of its affairs were placed in the hands of the Conservator, in California, and then his services were terminated by order of the Conservator on May 15, 1934. We are of the opinion, therefore, that the contract, being' contrary to the public policy of this and the sister states of Oklahoma and California, and contrary to the corporation’s policy in administering its affairs, the directors were authorized to reduce appellant’s compensation, and that the Conservator, successor to the corporation, was empowered to terminate the contract.

Furthermore, the record discloses that, in May, 1934, the State of California, by the Insurance Commissioner of that state, instituted suit in a Superior Court of California, against the Great Republic Life Insurance Company, and, according to the laws of that state, caused to'be appointed a Conservator to take over the corporation and all its assets, and enjoined it and all its officers, agents and employes from further transacting any corporate affairs. In July, 1934, appellant, W. W. Edwards, by petition duly verified, intervened in the conservatorship suit, seeking to establish his claim against the corporation for compensation, under the contract; and, in addition thereto, sought to subject the assets of the corporation, in the hands of the conservator, to the payment thereof. Appellant alleged that he was a creditor and salaried officer of the Great Republic Life Insurance Company, a corporation; that it was indebted to him under the contract of employment.

“That copy of said written contract is attached hereto, marked Exhibit “A” and by such reference made a part hereof. That the said sum of Four Thousand Two Hundred and Fifty ($4,250.00) Dollars remains wholly due, owing and unpaid.
“II. That within four years last past and prior to the filing of this petition, the defendant, Great Republic Life Insurance Co. a corporation, Became indebted to petitioner on an open book account for services rendered on behalf of the defendant in the sum of Four Thousand Two Hundred and Fifty ($4,250.00) Dollars. That no part of said sum' of $4,250.00 has ever been paid. That the said sum of $4,250.00 remains wholly due, owing and unpaid.
“HI. That within two years last past defendant became indebted to your petitioner in-the sum of Four Thousand Two Hundred and Fifty ($4,250.00) Dollars for services rendered and performed by petitioner for and on behalf of the defendant, at the special instance and request of said defendant. That the reasonable value of said services so performed and rendered was and is the sum of $4,250.00. That no part of said sum of $4,250.00 has ever been paid. That the said sum of $4,250.00 remains wholly due, owing and unpaid.”

The issues raised in appellant’s petition were categorically denied by the answers of the Conservator, especially responding for the corporation and in behalf of the state. On hearing before the court, judgment was entered, denying appellant’s plea of intervention. No appeal was taken from the action of the court; the judgment was final.

In the instant suit, as in the case in the California court, Edwards is the complaining party; the Insurance Company is the primary defendant, and the cause of action is based on his claim for compensation, arising out of the contract of employment, payable out of corporate funds in the hands of a fiduciary of the defendant. The final adjudication of the suit in California, in our opinion, is res adjudicata in the present suit; and, under the “Full Faith and Credit Act” of Congress, the Federal Constitution (Art. IV, Sec. 1, U.S.Const.; U.S.C.A.; U.S.C.A. Title 28, Sec. 687), the judgment of the foreign jurisdiction must be given force and effect in this proceeding.

The Act of Congress requires that a judgment rendered in one jurisdiction, between the same parties on the same cause of action, be given full recognition and binding effect in another jurisdiction. The suit in California, according to the above petition, clearly sought to establish a debt, a liability, against the corporation, and the suit here has the same purpose; the only difference in the two suits being that, if and when the claim for compensation was finally determined by a court of competent jurisdiction, same be directed, in California, paid out of the assets of the corporation, in' the hands of the conservator; and, in Texas, out of the funds in the hands of the receiver. In both cases, relief is sought to recover the claim for compensation, based on the same contract of employment, to be paid from the assets of the corporation. The fiduciary in either case is not personally liable, but in each, the suit was directed against the corporation.

In view of the Act of Congress, supra, the judgment of the California court, denying liability on the contract here sued upon, as shown by the attested records of the court of the domiciliary state of plaintiff and defendant, makes the judgment of that court final and binding on Texas courts.

For the reasons above stated, the judgment of the court below is affirmed.


author: LOONEY, Justice.

text:
    DALLAS JOINT STOCK LAND BANK OF DALLAS v. STATE ex rel. COBB et al.
    No. 12885.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 28, 1939.
    Rehearing Denied Nov. 25, 1939.

      Lawther, Cramer, Perry & Johnson, of Dallas, for appellant.
    Andrew Patton, Dist. Atty., and E. G. Moseley, David M. Weinstein, Harold Mc-Cracken, and Paul G. Peurifoy, Asst. Dist. Attys., all of Dallas, for appellees.
   LOONEY, Justice.

This is an appeal from a judgment of the court below, compelling The Dallas Joint Stock Land Bank of Dallas to answer certain interrogatories propounded by Ed Cobb, Assessor and Collector of Taxes, and Andrew Patton, District Attorney, for Dallas County, plaintiffs in a bill of discovery suit.

This is the third phase of the litigation between the parties to reach this Court. The first was an original application by the defendant Land Bank against Honorable Jno. A. Rawlins, District Judge, to compel him to set the amount of a supersedeas bond to be given, to suspend the execution of the judgment pending this appeal. The writ was granted for the reasons stated in our opinion, Dallas Joint Stock Land Bank v. Rawlins, 129 S.W.2d 485. The second was an appeal by the plaintiffs herein from an order granting a temporary injunction at the instance of the defendant corporation, enjoining plaintiffs from attempting to procure information concerning the ownership of stock in defendant corporation, and from filing or prosecuting any suits, bills of discovery, applications for injunctions, or other proceedings against defendant, its employes or stockholders, in an effort to tax or to collect from the owners taxes due on stock held in defendant corporation. We sustained the appeal, reversed the order of the court below, and dissolved the temporary injunction previously granted, for reasons stated in the opinion, Cobb v. Dallas Joint Stock Land Bank, 129 S.W.2d 487. The opinions in these cases are referred to for a better understanding of the nature of the litigation.

Plaintiffs alleged, in substance, that valid assessments had been made, against the shares of stock owned by each unknown stockholder of the Land Bank, for the years 1931 to and including 1938; that it was necessary for plaintiffs to ascertain the names of the stockholders who resided in Dallas County (alleging the belief that all resided in Dallas County), and the number of shares of stock owned by each on the respective dates mentioned; that such information was in the exclusive possession of the Land Bank and could not be obtained by plaintiffs from any other source; that, on demand, defendant had refused to furnish the information, and that the stockholders had failed to reveal their identity, that such information cannot be obtained from any other source, or by any means other than by the process of a bill of discovery; that a valid cause of action existed in favor of the State of Texas and County of Dallas for the delinquent taxes due by each individual stockholder, wherefore, plaintiffs sought judgment, compelling the Land Bank to answer the following interrogatories: First: “State, as revealed by your books and records, the names and addresses of the stockholders of The Dallas joint Stock Land Bank of Dallas, who resided in Dallas County, Texas, on the first day of January, for each of the following years: 1931, 1932, 1933, 1934, 1935, 1936, 1937 and 1938.” Second: “State, as revealed by your books and records the amount and number of shares held by each of such stockholders as asked for in the foregoing interrogatory as of the first day of January, 1931, 1932, 1933, 1934, 1935, 1936, 1937 and 1938.”

The defendant filed a general denial and special pleas to the effect that, being a governmental agency, its stock was not taxable against its stockholders, hence the levies against them are invalid; that the stock was illegally assessed, the assessments being arbitrary and discriminatory; that the information sought by plaintiffs is privileged, as defendant owes no duty to disclose to any person, other than to the Federal Farm Credit Administration, the names of its stockholders, and the amount of stock owned by each; that the defendant had theretofore paid all taxes due by it to the State of Texas and to the County of Dallas, and that, by the proceedings instituted, defendant is not sued as a litigant, but is sought to be used merely as a witness.

The Bank made timely demand for a jury, and paid the jury fee, but was denied the right of a jury trial. This ruling was excepted to and forms the basis of an assignment of error. After hearing the case, without the intervention of a jury, the court ordered the defendant to answer the interrogatories as propounded, to which it excepted, perfected appeal, and has filed assignments of error.

The questions discussed are only those that, in our opinion, are necessary for the disposition of the case. The defendant contends that the denial by the trial court of its request for a jury was a violation of its constitutional rights and constitutes reversible error.

A bill of discovery as an independent action, was unknown to our jurisprudence until authorized by the Legislature in 1923, as shown by Art. 2002, as follows: “All trial courts shall entertain suits in the nature of bills of discovery, and grant relief therein in accordance with the usages of courts of equity. Such remedy shall be cumulative of all other remedies.” Prior to the Act of 1923, discovery was had simply as ancillary to a pending suit. See Cronin v. Gay, 20 Tex. 460, 465; Love v. Keowne, 58 Tex. 191, 197. The general rule seems to be that, in the absence of an express constitutional or statutory requirement, the right of a jury trial in suits at equity does not exist, it being the peculiar province of the chancellor to determine all issues of fact as well as of law. See 35 C.J. 159, § 30, and authorities cited. This doctrine was recognized by Chief Justice Gaines in Ex parte Allison, 99 Tex. 455, 462, 90 S.W. 870, 871, 2 L.R.A.,N.S., 1111, 122 Am.St. Rep. 653; he said: “In courts of law the parties are entitled to have the issues of fact determined by a jury, which is not the case in a court of equity”; later, however, in same case, Chief Justice Gaines said: “But under our system, in which law and equity are blended and the right of trial by jury exists, whether the remedy be legal or equitable, the difficulty vanishes. Before the injunction could be made pei'petual under the statute in question it is the right of the defendant to have the jury pass upon the facts”. The Constitution, Sec. 15 of the Bill of Rights, Vernon’s Ann.St. provides that: “The right of trial by jury shall remain inviolate”, and Sec. 10 of Art. 5 provides that: “In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury * * So, we are of opinion that, in an equitable proceeding, such as the discovery suit under consideration, parties are entitled to have controverted issues of fact, if any there be, that tend to establish or defeat the right to a discovery, determined by a jury. But, as the material facts here involved are not controverted, the error of the court in denying defendant’s request for a jury, was harmless, for, if a jury had been impaneled, in view of the case presented by the record, there would have been no issue of a controversial nature, tending to establish or defeat the right of discovery, to be submitted to a jury. So, we overrule this contention of the defendant.

That the corporate stock sought to be taxed was subject to taxation, we think is undoubted; Article 7145 provides that: “All property, real, personal or mixed, except such as may be herinafter expressly exempted, is subject to taxation, and the same shall be rendered and listed as herein prescribed.” The owner is required to list the same under oath. See Art. 7162, Subd. 38, that expressly requires the “Amount and value of shares of capital stock companies and associations not incorporated by the laws of this State”, to be rendered for taxation by the owners; and Sec. 11 of Art. 8 of the Constitution provides “ * * * And all lands and other property not rendered for taxation by the owner thereof shall be assessed at its fair value by the proper officer”. The Federal Act creating joint stock land banks, Title 12, p. 872, U.S.C.A., § 932 provides that: “Nothing herein shall prevent the shares in any joint stock land bank from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the State within which the bank is located * * *

As the record discloses that the taxing official attempted to comply with the statute in making the assessments, although assessed in solido against unknown owners, which, in the absence of knowledge as to the names of the owners and the amount of stock owned by each, could not have been done otherwise, we think that, prima facie at least, the record discloses a valid assessment and a valid cause of action in favor of the State and County against the owners of said stock for the amount due by each.

While it may be true that, on trial of causes against the stockholders, it may be shown that the assessments are illegal, but, in our opinion, that is a defensive matter that belongs exclusively to suits against stockholders for the collection of these taxes. As against the defendant, plaintiffs were only required to show pri-ma facie — as we think they did — that a valid cause of action existed in favor of the State and County against the stockholders of the defendant corporation, for the recovery of the amount of taxes due on the value of the stock owned by each for the years indicated. The doctrine is announced in 17 Am.Jur., Discovery, § 11, p. 10, that: “ * * * it may be said in general that to entitle a party to an examination, he should be able to convince the court that prima facie he has a cause of action, or that there is a reasonable basis for a belief that a cause of action exists in his favor.”; and, in Walsh v. Press Co., 48 App.Div. 333, 62 N.Y.S. 833, 834, the court said': “A discovery will not be ordered to enable a party to find out whether he has a cause of action * * a prima facie case, or at least facts pointing directly to that result, must be shown before a discovery in aid thereof will be ordered.” Also see Frowein v. Lindheim, 58 Hun. 609, 12 N.Y.S. 526.

The defendant also contends that, being a governmental agency, it was its duty to treat as confidential the names of its stockholders and the amount of stock owned by each, therefore, the information sought by the bill of discovery was privileged. In the case of Higdon v. Lincoln Joint Stock Land Bank, 223 Iowa 57, 272 N.W. 93, 95, the Supreme Court of Iowa said: “Joint Stock Land Banks are privately owned corporations, organized for profit to their stockholders through the business of making loans on farm mortgages, and are not government instrumentalities”, citing Federal Land Bank v. Priddy, 295 U.S. 229, 55 S.Ct. 705, 79 L.Ed. 1408. We do not think it can be seriously contended that, under controlling rules of evidence, the information sought is privileged. See Wigmore, vol. 4, p. 2285.

Nor do we think it was essential to the rendition of a valid judgment against defendant Land Bank that either of its officers, agents or employes should have been made a party to the suit. Doubtless, its representative charged with the custody of the record containing the information sought, would have been a proper party, but, in our opinion, was not a necessary party. In 18 C.J. 1064, § 10, the following pertinent doctrine is announced: “Upon the ground that corporations cannot answer under oath, but only under their corporate seals, it has been held that a bill of discovery cannot be maintained against a corporation alone, and that it is indispensable to make some proper officer or agent of the corporation a defendant, if discovery is sought. There is, however, direct authority to the contrary, it being held that a bill, or cross bill, purely for discovery lies against a corporation, without joining any officer, and that the corporation must answer such bill, or cross bill, fully, under its seal, although not under oath.” Also see the authorities cited in Note 7.

The defendant also insists that the suit is not maintainable, because a mere fishing expedition; that defendant is not sued on the cause of action asserted, but is proceeded against simply as a witness; that, if permissible at all, a dicovery suit will lie only against the parties liable on the alleged cause of action. We discussed this question in the opinion filed in Dallas Joint Stock Land Bank v. Rawlins, Judge, 129 S.W.2d 485, 486, and quote what we said as pertinent and decisive of the point; we said: “Generally speaking, a bill of discovery is a proceeding by a party against an adversary, for the discovery of facts within the knowledge of the adversary, or documents, writings, or other things within his possession or power, to be used either offensively or defensively in a pending or contemplated action. However, it has been repeatedly held that, where it is sought to discover the name or names of persons against whom an action is maintainable and is contemplated, as in the instant case, courts, in the exercise of their equity jurisdiction, may entertain a bill for such purpose against a Respondent, who, although in no sense liable in regard to the matter giving rise to the contemplated action, yet acquires knowledge of the facts sought while acting for or with those against whotn liability is claimed, as in the case at bar, the Respondent, a corporation, in'a sense the representative of its stockholders, acquires knowledge of, and possesses the records that reveal the information sought. See Post v. Toledo, Cincinnati & St L. R. Co., 144 Mass. 341, 11 N.E. 540, 59 Am.Rep. 86; Kurtz v. Brown, 3 Cir., 152 F. 372, 11 Ann.Cas. 576, and the authorities cited in Note; also, see 9 R. C.L. 173, Sec. 11.” Also, see 17 Am.Jur., Discovery and Inspection, p. 9, § 10.

Defendant also contends that, the assessments were vitiated because the tax-assessing official discriminated against the stockholders intentionally and persistently, in that, he neglected and refused to assess others owning similar corporate properties, and valued the shares of stock, owned by defendant’s stockholders, higher than other personal properties were accepted for taxation, same being an unjustifiable and unconstitutional discrimination against the owners of the stock in defendant corporation.

In disposing of the injunction suit by the defendant against plaintiffs, heretofore mentioned, reported in 129 S.W.2d 487, we said, at page 489, that: “In so far as the Land Bank took up the cudgel for its stockholders, in seeking to protect them from the alleged efforts of public officials and their subordinates to procure information in regard to the ownership of stock in the Bank, and from threatened judicial proceedings, in efforts to ascertain and collect taxes alleged to be due( the State and County by each individual stockholder, the action, in our opinion, was wholly unauthorized, as the Bank showed no justiciable interest in that phase of the subject matter of litigation, or any right to maintain an action ©n behalf of its stockholders.” What was said in the case just mentioned is pertinent here. The matter of discrimination alleged may or may not constitute a valid defense in favor of the stockholders against suits, based upon said assessment, brought by the State and County for the collection of taxes, but that fact, if it be a fact, in our opinion, is not available as a defense to the present action.

After duly considering all assignments and propositions urged for reversal, and failing to find reversible error, we affirm the judgment of the court below.

Affirmed.

BOND, C. J., not sitting.


author: ALEXANDER, Justice.

text:
    ELLIOTT et al. v. SAN BENITO BANK & TRUST CO.
    No. 2180.
    Court of Civil Appeals of Texas. Waco.
    Nov. 23, 1939.

      E. T. Yates, of Brownsville, for plaintiffs in error.
    Spears & Montgomery and C. C. Bowie, all of San Benito, and W. H. Betts, of Hempstead, for defendant in e-rror.
   ALEXANDER, Justice.

On March 3, 1928, the San Benito Bank & Trust Company recovered judgment by default in the district court of Cameron county against F. M. Elliott for debt with foreclosure of lien on .land. On April 4, 1928, the plaintiff filed a motion to correct the description of the land described in the judgment. At that time the defendant signed a waiver of notice on said motion in the following language: “I hereby waive notice of the foregoing motion and agree that judgment may be corrected in accordance with the prayer of said motion.” On the same day the trial court entered a corrected judgment for the debt with foreclosure of the lien on the land in question. No appeal was prosecuted from said judgment at that time. In September 1937, nine years later, the bank filed a motion in the same court to correct the sheriff’s return on the original citation that had been served on the defendant, it being alleged that the citation had been issued on December 20, 1927, and served on January 16, 1928, but returned as having been served on January 16, 1927. Elliott had died in the meantime and his heirs were given notice on the motion to correct the sheriff’s return. After hearing the evidence, the trial court granted the motion and ordered the sheriff’s return corrected as prayed. Subsequent to the entry of said order, the defendants, Elliott’s heirs, sued out a writ of error and are now seeking to have the entire judgment set aside on account of certain alleged defects in the form of the original citation that was served on Elliott on January 16, 1928.

The defendant, by filing the waiver of notice on the motion to correct the judgment in April, 1928, thereby submitted himself to the jurisdiction of the court and waived all defects in the citation previously served on him. Revised Statutes, art. 2047; 4 Tex.Jur. 642 ; 33 Tex.Jur. 799. Consequently, if we had jurisdiction of the appeal from the judgment as amended in 1928, we would be compelled to affirm the judgment regardless of any defects in the original citation.

However, we have determined that we are without jurisdiction to entertain this appeal. The amended judgment entered in April 1928 disposed of all of the issues in the case and on its face appears to be a final judgment. The time for suing out a writ of error from that judgment began to run from the rendition of the amended judgment, 3 Tex.Jur. 278; San Antonio & A. P. R. Co. v. Thigpen, Tex.Civ.App., 57 S.W. 66; Hall v. Read, 28 Tex.Civ.App. 18, 66 S.W. 809, and expired six months thereafter. Revised Statutes, art. 2255. Certainly the time to sue out a writ of error or to appeal from that judgment had expired nine years later, when it was attempted to sue out this writ of error. The order directing the amendment of the sheriff’s return on the original citation did not purport to change or amend or otherwise alter the judgment previously entered. The defendants, in their answer to the motion to amend the sheriff’s return, did not seek to have the prior judgment reviewed in any respect, but merely sought to defeat the motion to amend the return. The order authorizing the amendment of the sheriffs return was not in itself such a final judgment as would authorize an appeal therefrom. 3 C.J. 479 ; 4 C.J.S., Appeal and Error, § 116, page 216; 3 Tex.Jur. 125-142.

We are therefore without jurisdiction to entertain this appeal at this time. The appeal is dismissed at plaintiffs in error’s cost.


text:
    WILLINGHAM v. THOMPSON.
    No. 12793.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 11, 1939.

      Eades & Eades, of' Dallas, for appellant.
    D. A. Frank and D. A. Frank, Jr., both of Dallas, for appellee.
   BOND, Chief Justice.

This appeal is from a judgment in favor of appellee, .John C. Thompson, for real estate commission for the sale of a tract of land belonging to the estate of Mary Estol Sherman, deceased, being administered by Guy E. Willingham, as independent executor. Appellant will be designated herein as defendant and appellee as plaintiff, as in the trial court.

Plaintiff alleged sufficient grounds for recovery of the commission, if sustained by proof. The ultimate question turns upon whether the plaintiff had a contract with defendant as will- support a recovery, and, if so, whether the evidence is sufficient to- raise the issue as to whether the plaintiff was the procuring cause, culminating in the sale of the land to the purchaser. If plaintiff had such contract, and the sale by defendant to the purchaser was the proximate result of plaintiff’s efforts, then the findings of the jury to the effect that plaintiff was the procuring cause of the sale, must be given full verity and this Court would not be authorized to disturb its findings.

Plaintiff alleged that on and prior to September, 1937, he was engaged in the real estate business in the City' of Dallas, and was employed by defendant to make sale of certain property belonging to the estate; accordingly, introduced L. F. Cor-rigan to the defendant, as a purchaser, ready, able, and willing to buy the property ; that Corrigan did purchase said property from defendant for $12,500, and that, by reason thereof, plaintiff was entitled to five per cent of said consideration as commission for making the sale. De^ fendant answered by general demurrer and denial and, in the alternative, specially answered that plaintiff was a volunteer, acting on behalf of the purchaser and not the seller, and had abandoned his efforts toward a sale before its consummation by defendant through another agency.

Plaintiff must recover, if at all, upon the contract declared upon, and the primary essential element, as in all contracts, either express or implied, is the meeting of the minds of the parties, by an offer on one hand and an acceptance on the other. The right of plaintiff to compensation is predicated upon an express contract of employment. If Thompson was not so employed by Willingham to sell the land, clearly no obligation rested upon defendant to pay him anything, even though he may have rendered services in effecting the sale.

The material facts are uncontroverted. Whatever authority Thompson had, or assumed, to interest himself in defendant’s property, is related by his own testimony and that of defendant, which plaintiff insists is material to the issue, and shows all the necessary elements for him to recover. Indeed, if it can be said that the testimony shows an express contract of employment by the defendant and that he was the procuring cause of the sale, or that such could reasonably be inferred, indulging every legitimate conclusion favorable to plaintiff which might be drawn from the facts proved, the judgment of the court below should be affirmed.

These are the material facts: Mary Es-tol Sherman died in July, 1935, leaving a written will which was duly probated and her brother, Guy E. Willingham, was appointed independent executor to take charge of all her property, including the lot in question. Plaintiff Thompson secured an offer from one Winfield Morton to purchase this property for $25,000, pri- or to the death of Mrs. Sherman, but she did not accept the proposition, or execute a contract with Thompson to sell the land. Shortly after the death of Mrs. Sherman, Thompson contacted Willingham and presented to him the Morton $25,000 offer, which Willingham also refused to consider, stating that he -wanted and expected to get $35,000 for the property. Subsequently, plaintiff again saw Willingham and wanted him to sell the property to Corrigan for $25,000, which Willingham refused to do. On May 13, 1936, Willingham sold the property to R. L. Simons for a consideration. of $35,000 — $4,000 cash and the balance evidenced by notes. Simons defaulted and the property was reacquired by defendant. Thompson testified that, a short time before Willingham sold the property to Simons, he tried to get Wil-lingham to go to Corrigan’s office and sign a contract to sell the property to him for $25,000. Willingham declined to go. Plaintiff never again took the matter up with Willingham or Corrigan until after the property had been sold to Corrigan on September 21, 1937, through Cecil Moore, another agency. He abandoned all efforts to sell the property. Quoting from his testimony:

“Q. Then later, did you know anything about the transaction until you saw the deed on record? A. I was waiting until the Centennial was over and Willingham had the lot back in his possession and I was waiting until the Centennial was over to make a cash offer of $20,000 and when it was over I called him and he said he had just sold it.
“On cross-examination, plaintiff further testified:
“Q. You said you were waiting until the Centennial was over before you took it up with Mr. Willingham? A. Yes.
“Q. After the sale was made to Simons for $35,000 and he paid $4,000 cash, the property was taken back, you never again saw Corrigan about this transaction, did you? A. No, not after it was sold to the Jew.
“Q. You never did take it up with Corrigan? A. No Sir.
“Q. When you called Willingham up who did you have as a buyer then? A. J. D. Smith for the same building and the same tenants.
“Q. And you were going to sell it to him for $20,000? A. Yes.
“Q. He was your client? A. He was.
“Q. Mr. Willingham never did list this property with you, did he? A. I never asked him to.
“Q. He never did tell you what price he would take for it, did he? A. No, he told me he was going to get $35,000.
“Q. He never did tell you what you could sell it for? A. No.”

At the conclusion of the testimony, defendant presented a motion for judgment, which was overruled by the trial court, to which the defendant duly excepted; and again, on motion for new trial, the action of the court was called in question by proper assignment of error, which was refused; to which, defendant also excepted. We think the question for review is properly before this Court. There being no issue submitted to the jury, none requested, and, we think, none required under the related testimony, the trial court was without a predicate to base a finding that such a contract exists. In the absolute failure of evidence to prove or tend to prove an issue, no presumption arises that the court favorably found on the issue to support the judgment. The uncontradicted evidence «shows that defendant never listed the property with plaintiff to sell, never gave him a price for which he was authorized to make a sale, and the fact that plaintiff submitted an offer on behalf of Corrigan, that was not acceptable to defendant, did not entitle plaintiff to a commission, even though the property was later sold to Corrigan through another agent; especially so, where the sale was consummated more than a year after plaintiff had ceased to interest himself in the property.

Where a broker makes an unsuccessful attempt to sell property to a prospective purchaser, and then abandons his efforts, another agent may sell to such purchaser without the owner’s being liable to the first broker. Plaintiff admits that he had abandoned his efforts after sale of the property to Simons, and did not intend' to renew his efforts to sell until after the Texas Centennial Exposition had closed. In the meantime, defendant had reacquired the property from Simons and sold it to Corrigan through the agent Cecil Smith, to whom he paid commission. The jury also found that the plaintiff had abandoned the undertaking.

In Fordtran v. Stowers, 52 Tex.Civ.App. 226, 113 S.W. 631, 634, plaintiff sued for commission, alleging a contract to sell the land; defendant denied the contract. Judgment was for the defendant and, on appeal, the case was affirmed and writ of error denied by the Supreme Court. In the course of the opinion, the court said: “One of the essential elements of a contract is an agreement or meeting of the minds of the parties, by an offer on the one hand, and an acceptance on the other. This necessary element must be present in an implied, as well as in an express, contract. If it is absent in either, no obligation is created. * * * If, then, the plaintiff’s services in effecting the sale were voluntary, and without authority or promise from the defendant, as the jury found, and as we believe the evidence clearly shows, there was an absence of an essential element — ⅛ meeting of the minds by an offer on the one hand, and acceptance on the other’ — of a contract, either express or implied, and no obligation rested upon the defendant to pay plaintiff anything, though he may have rendered services in effecting the sale. * * * Unless, as we have before held, there was a contract, express or implied (in this case, it must, have been express as it was so-alleged), between the parties creating plaintiff defendant’s agent to effect the sale, the former, though he may have been the efficient cause of its consummation was not entitled to recover anything for his services. As in all classes of agents a broker has authority to act for his principal only by virtue of an appointment express or implied, by the latter. True no particular form is necessary for such appointment. Ordinarily all that is necessary to show is that the broker acted with the consent of his principal, whether given by a written instrument, by words or by implication from the conduct of the parties. This consent is the sine qua non to the broker’s right to recover commissions for making a sale. For if the broker renders services as a mere volunteer, without authority, express or implied, the owner of the property is not bound to pay him anything for such services. Pipkin v. Horne (Tex.Civ.App.) 68 S.W. 1000; Ehrenworth v. Putnam (Tex.Civ.App.) 55 S.W. 190; Dunn v. Price, 87 Tex. 318, 28 S.W. 681; Cook v. Welch [9 Allen, 350], 91 Mass. 350; Hinds v. Henry, 36 N.J.L., 328; McVickar v. Roche, 74 App.Div. 397, 77 N.Y.S. 501; Viley v. Pettit, 96 Ky. 576, 29 S.W. 438; Walton v. Clark, 54 Minn. 341, 56 N.W. 40; Barton v. Powers, 182 Mass. 467, 65 N.E. 826.”

See, also, Brown v. Odneal, Tex.Civ.App., 239 S.W. 350; Williams & Jones v. Gouldy, Tex.Civ.App., 239 S.W. 364; Goode v. Sears, Tex.Civ.App., 226 S.W. 463; Powell v. Mulder, Tex.Civ.App., 228 S.W. 302; Slaughter v. Andrews, Tex.Civ.App., 83 S.W.2d 721.

In the case of Dunn v. Price, 87 Tex. 318, 28 S.W. 681, 682, the uncontroverted record shows that the plaintiff procured a purchaser, but did not disclose a contract of employment. Our Supreme Court, through Chief Justice Gaines, said: “There was no express promise to pay anything in this case; nor do we think that one can be clearly implied from .the language used. If one requests another to perform a service for him, the law will ordinarily imply a promise to compensate him for the work. But where one, having property to sell, tells a broker that, if he will bring him a purchaser, he will sell at a certain price, it is by no means certain that he intends to imply a promise to pay a commission. The broker may get his compensation from the purchaser. In this case the defendant did not authorize the plaintiff to sell his property, nor did he employ him to sell it. He merely said to him, in effect, that, if he would bring him a purchaser, he would show him that he would sell for the sum of $30,000. Can it be said that it is clear that the defendant did not expect him to get his compensation from the purchaser whom he might procure? That such was his intention (if, indeed, his language was anything more than mere idle banter) is shown by the fact that his language was that he would take $30,000 for the property, and that there is not an expression in'it to indicate that he was willing to take that sum less a commission for selling. This conclusion is strengthened by the further fact that he had previously declined to employ the plaintiff to make the sale.”

So, in the case at bar, it must be conceded that, to entitle plaintiff to recover a commission for his efforts to bring about the sale, it was indispensable that he show he was employed, or was requested by the owner to perform a service for which the law will imply a promise to compensate him. Such is not, revealed in this record. Defendant’s motion for judgment should have been sustained; the case having been fully developed, the duty rests upon this Court to render such judgment as the trial court should have rendered; accordingly, the judgment of the court below is reversed, and here rendered for the defendant.

Reversed and rendered.