author: SPEER, J.

text:
    JOHNSON v. JOHNSON.
    (No. 1012-5197.)
    Commission of Appeals of Texas, Section B.
    March 13, 1929.
    Lee, Lomax & Wren and W. D. Caldwell, all of Fort Worth, for plaintiff in error.
    McLean, Scott & Sayers, of Fort Worth, for defendant in error.
   SPEER, J.

The disposition of this case involves a construction of the following contract:

“This agreement made and entered into this 10th day of September, 1919, by and between Gilbert S. Johnson, hereinafter called first party and Hazel S. Johnson, his wife; hereinafter called the second party, both of the city and county of San Francisco, State of California.
“Witnesseth, that, Whereas the parties hereto are now husband and wife, and differences have arisen and do now exist between them the result ■ whereof is that the said parties have lived separate and apart since on or about the first day of November, 1914, and have become definitely and finally convinced that it will be impossible for them now, or hereafter, to live together as husband and wife, and the second party is about to commence suit for divorce against the first party, and
“Whereas the . parties ■ desire to settle all questions as to their respective property rights between themselves, and have been fully and independently advised by their respective counsel in regard thereto.
“Now, therefore, 'in consideration of the mutual covenants each to the other running, the parties hereto have agreed and do hereby agree as follows, to-wit:
“First: The personal effects of the parties and the household effects of the community have been heretofore divided between them,
“Second: The first party does and by these presents contract, convenant and agree, and bind himself, his estate, his heirs, executors and administrators to well and truly pay to the second party the sum of one hundred and fifty dollars ($150.00) on the first day of each and every calendar month hereafter, and commencing on the first day of September, 1919, during the life time of said second party, or until she remarries, the said sum of one hundred and fifty dollars ($150.00) to be delivered to the said second party, ,or to be deposited to her sole and exclusive account in some bank designated by the said second party, or her attorney, acting under her express authority.
“Third: That the said first party does by these presents contract, covenant, and agree and hereby binds himself, his estate, heirs, executors and administrators to well and truly pay the said second party, in addition to, the various sums of money heretofore agreed by him to be paid to said second party, the sum of Twenty-five hundred dollars ($2500.00), said sum of twenty-five hundred dollars to be paid by the said first party to the said second party as follows, to-wit:
“The sum of five hundred dollars ($500.00) on the first day of March, 1920; the sum of five hundred dollars on the first day of September, 19-20; the sum of five hundred dollars on the first day of March, 1921, the sum of five hundred dollars on the first day of September, 1921; and the sum of five hundred dollars on the first day of March, 1922; the said installments of five hundred dollars to be paid to the said second party at said times by delivering the same to the said second party, or by depositing the same to her sole and exclusive account in some bank designated by the said second party or by her attorney acting under her express authority.
“Fourth: The said second party does by these presents agree to accept the said several sums of one hundred and fifty dollars ($150) per month on the first day of each and every calendar month; hereafter, commencing on the first day of September, 1919, and during her life, or until her remarriage, and the additional sum of twenty-five hundred dollars ($2500.00) payable in installments as here-inabove set forth, as and for and in full of her right and claim in and to any interest in the community property of herself and the said first party, as well as in full of her right and claim to alimony, support and maintenance from the said first party.
“Fifth: The first party upon the execution of this agreement hereby agrees, to pay to the said second party the sum of seventy-five dollars ($75.00) the said second party hereby agrees to accept said sum in full payment of any and all right to alimony ,or maintenance to and including the Slst day of August, 1919.
“Sixth: The said parties hereto do hereby agree that whatever property the said first party now has, be the same community or separate property, and whatever property he may acquire shall henceforth be considered as and be his separate property, and that whatever property the said second party now has, be the same community or separate property shall henceforth be considered as and be her separate property.
“Seventh: The said parties hereto further .agree that the only child of the said parties, Junior Johnson, of the age of about twelve years and ten months, shall henceforth be and remain in the custody and care of said second party, said first party to have the right to see said child at any reasonable and convenient time.
“In witness whereof, the parties hereto have hereunto set their hands the day and year first above written.
“[Signed] Gilbert S. Johnson.
“Hazel S. Johnson.”

Hazel S. Johnson sued her former husband, Gilbert S. Johnson, upon the above contract to recover for sums then due and unpaid, and the defendant, under a plea alleging the failure of consideration to the extent of $60 per month for the support of their child, recovered an offset in that amount, and upon appeal that judgment was affirmed. (Tex. Civ. App.) 6 S.W.(2d) 175. The writ of error has been granted to Hazel S. Johnson.

It is first contended, and the Court of Civil Appeals sustained that contention, that the matter had been previously adjudicated in a suit in the Seventeenth district court of Tar-rant county, wherein this plaintiff in error had recovered in full for certain monthly installments — that the defense urged in this case was res adjudicata. But it is unnecessary for us to decide that question, for we are of the opinion, irrespective of the former adjudication, no judgment such as that rendered below can be allowed to stand.

Of course, in the absence of an attack upon the integrity of the contract, no oral evidence can ever be admitted the effect of which is to contradict, vary, or add to the. obligations of the instrument. This is academic. It is well settled, however, that the consideration expressed in a contract may often be inquired into and even be varied or contradicted. This, however, is not an exception to the elementary rule just announced, but .is a just limitation upon its application. When, the recited consideration may be varied by parol evidence without impairing the obligations of the contract, the rule itself has no application. The general rule has been defined to be: “That the consideration to be shown by the parol evidence must be consistent with that stated in the writing, otherwise the evidence cannot be admitted.” 22 Oorp. Jur. tit. Evidence, § 1565. By this is meant the evidence must be consistent with the obligations of the contract', and not merely identical with its recitations as to consideration. The same authority in the succeeding section (1566) declares: “Where the effect of parol evidence contradicting the consideration expressed in the instrument or showing the true consideration to be different therefrom would be to change or defeat the legal operation and effect of the instrument, or to add new matter to an agreement complete upon its face, the evidence is not admissible; for in such case it comes within the rule which forbids the introduction of parol evidence to vary, contradict or defeat a written instrument and not within the exception of that rule that parol evidence is admissible for the purpose of contradicting or showing that the true consideration is other and different from that expressed within the writing.”

The true rule, however, is better stated in a later section (1569) as follows: “Where the statement in a written instrument as to the consideration is more than a mere statement of fact or'acknowledgment of payment of a monied consideration, and is of a contractual nature, as where the consideration consists of a specific and true promise by one of the parties to do certain things, this part of the contract can no more be changed or modified by parol or extrinsic evidence than any other part, for the party has the right'to make a consideration of the agreement of the essence of the contract, and when this is done the provision as to the consideration by the contract must stand upon the same plane as to the other provisions of the contract with reference to conclusiveness and immunity from attack by parol or extrinsic evidence.”

This latter statement of the rule is well supported by the Texas authorities as follows : Van Sickle v. Watson, 103 Tex. 37, 123 S. W. 112; McCormick v. Kampmann, 102 Tex. 215, 115 S. W. 24; Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825. Thus a written undertaking to pay a sum for a recited consideration of the delivery of a horse may be defended by showing through parol evidence that the real consideration was a cow, where such defense would be material. But should the instrument recite the consideration to be the delivery of a horse, certainly it could not be varied by showing that the real undertaking was to deliver a cow. This would be viola-tive of the most elementary rules of evidence. ’ Where the consideration is contractual rather than recitative, the parol evidence rule saves the instrument from destruction or impairment through parol testimony. Otherwise, it is said, “would be to work in a circle, and to permit the very evil which the rule was designed to prevent.” James v. Doss (Tex. Civ. App.) 184 S. W. 623.

So that if the oral evidence upon which the defendant recovered the recoupment or offset below was incompetent under the parol evidence rule—that is, if the contract itself clearly expresses a, consideration which is contractual—then the judgments are wrong, and this brings us to an examination of the contract upon this point.

Hirst, the purpose of the parties is expressed to be a desire to settle all questions as to their respective property rights. In the execution of that purpose the husband promised to pay to the wife the sum of $150 on the first day of each and every calendar month thereafter during her lifetime or until she remarries, the same to be delivered' to her or to be deposited to her sole and exclusive account in some bank designated by her or her attorney. He further promised to pay to her the sum of $2,500 upon terms stated “to her sole and exclusive account.” It is further recited that the payments stipulated for are “in full of her right and claim in and to any interest in the community property of herself and the said first party (husband) as well as in full of her right and claim to alimony, support and maintenance from the said first party.” The parties then agree that the.property of the respective parties shall henceforth be considered as separate property respectively, and, finally, that their only child, then about 12 years of age, “shall henceforth be and remain in the custody and care”- of the wife; the husband to have the right to see it at any reasonable and convenient time. Clearly, we think, this shows that the payments of the monthly installments promised were upon the expressed consideration of an agreed adjustment of the property rights between the parties, and was therefore contractual in its nature.

We have no means of knowing that the relinquishment by the wife of her community interests was an inadequate consideration for the husband’s promise, nor are we concerned with his inquiry since the validity of the contract is not attacked in this particular. Such contracts are enforceable, as abundantly shown by the authorities cited by the Court of Civil Appeals. It is expressly stated, more than once, that the sums thus paid are to be the sole and separate property of the wife. This is contractual. If, in whole or in part, the consideration was that she should support their child, then the same would not be her sole and separate property, for such use for the benefit of the child would be to relieve to some extent at least a legal obligation which rested upon the father, and clearly would impose an obligation beyond the expressed relinquishment of her community rights and alimony. Not only is the contract silent upon the question of whether the wife assumed the duty of supporting the child, but the features which we have pointed out clearly show an agreement that the payments should be wholly hers. Moreover, no implication can be indulged, from the fact that the wife was to have the custody and care of the minor, that she therefore was to bear the expense of maintenance and support. The terms are'not synonymous at all. On the contrary, such an inference is negatived, for the stipulated monthly payments were to continue during the lifetime of the wife or until she remarries. This itself conclusively shows that the sums promised were by agreement to be hers individually.

The only authority for permitting the offset recovered by defendant in error was the parol testimony to show that the consideration for the promised monthly installments was in part the maintenance and support of the minor child. Such evidence being incompetent to contradict the terms of the written contract, the same cannot be considered by any court as a basis for judgment. Henry v. Phillips, 105 Tex. 459, 151 S. W. 533.

Nor can the allowance to defendant in error be sustained as a statutory offset or counterclaim, because that right is concluded by the contract with respect to the consideration. The necessary effect of what we have said is to preclude the allowance whether as for failure of consideration, offset, counterclaim, recoupment, or what not. Upon the uncontradicted evidence — that is, the written contract — judgment should have been rendered for the plaintiff for the amount of the payments shown to be due and unpaid.

We therefore recommend that the judgments of the trial court and of the Court of Civil Appeals affirming it be reversed, and judgment be here rendered for plaintiff in error for the sum of $4,410.25, and the further sum of $58.21 court costs as awarded by the trial court, together with 6 per cent, interest from and after April 4, 1927.

CURETON, C. J. Judgments of the District Court and Court of Civil Appeals are both reversed, and judgment rendered for the plaintiff in error, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: CRITZ, J.

license: Public Domain

text:
    LASSITER v. BOUCHE et al.
    (No. 1202-5210.)
    Commission of Appeals of Texas, Section A.
    March 20, 1929.
    John White and W. N. Coombes, both of Dallas, for plaintiff in error.
    Locke, Locke, Stroud & Randolph, of Dallas, for defendants in error.
   CRITZ, J.

Mrs. M. W. Lassiter filed this suit in the district court of Dallas county against Mrs. Jennie L. Bouche and Julius Edmond Bouche, to establish an express trust on a certain lot in the city of Dallas, and based the existence of the trust asserted on a one-half interest in the lot. At the conclusion of Mrs. Lassiter’s evidence the trial court peremptorily instructed a verdict for the defendants, and judgment was rendered accordingly. The case was duly appealed to the Court of Civil Appeals at Dallas, which court affirmed the judgment of the district court, 5 S.W.(2d) 831. The case is now before this court on writ of error granted on application of Mrs. Lassiter.

The Court of Civil Appeals makes a very clear and complete statement of the issues involved, and for the sake of brevity we refer to the statement of that court. We, however, copy the following from the opinion of the Court of Civil Appeals:

“Thus it will be seen that the legal title to the lot in question at the time of the death of Julia Kendall in 1896 stood one-half in Mrs. Jennie Bouche, made up as follows: One-sixth inherited from her father; one-twelfth convoyed to her by her sister, Mollie Wright and husband in 1883; and one-fourth acquired through the will of her mother. The legal title to the other half of the lot was in Julius Edmond Bouche, made up of the one-fourth ’acquired under the will of his uncle, C. P. Kendall, and one-fourth under the will of his grandmother. This was the status of the legal title at the time this suit was instituted on October 23, 1924.”

We are in accord with the holding of the Court of Civil Appeals, as to all of the issues of this case, except so far as the asserted trust may, or may not, exist as to the one-twelfth interest in the lot conveyed to Mrs. Bouche by Mollie E. Wright and husband, J. W. Wright, by deed dated April 23, 1883, and we are in accord with the holding of the Court of Civil Appeals as to this one-twelfth interest, in so far as said court holds that if Mrs. Lassiter is competent to testify, the trial court erred in directing a verdict for defendants ; but we are of the opinion that the Court of Civil Appeals erred in holding Mrs. Lassiter was incompetent to testify under the provisions of article 3716, R. C. S. of Texas, 1925.

In this connection it will be noted that Mrs. Lassiter proposed to prove the parol trust by herself testifying to statements and transactions by and between Mrs. Mollie E. Wright, deceased, mother of Mrs. Lassiter, and Mrs. Bouche, who is still living, and is a party to this suit. It is shown that such statements and transactions took place before the death of Mrs. Wright. If Mrs. Lassiter is competent to testify, her testimony, together with other circumstances in the record, presents a fact issue as to the one-twelfth interest. On the other hand, if Mrs. Lassiter is not competent to testify as a witness, the trial court was correct in directing a verdict and entering judgment for defendant, Mrs. Bouche, and the Court of Civil Appeals was correct in affirming that judgment.

As stated, Mrs. Lassiter is a daughter, and, generally speaking, one of the heirs at law, of Mrs. Mollie E. Wright, deceased; but, as shown, she does not bring this suit as an heir of her deceased mother, nor does she assert any rights or title in the lot in question by virtue of heirship. On the other hand, Mrs. Lassiter asserts title in the lot by virtue of a deed from Mrs. Mollie E. Wright to her. We do not think that, where title is thus asserted, the provisions of article 3716, R. C. S. of Texas 1925, have any application to disqualify Mrs. Lassiter as a witness to testify to transactions or communications by and between Mrs. Wright, deceased, and Mrs. Bouche, still living. Newton v. Newton, 77 Tex. 508, 14 S. W. 157.

In Newton v. Newton, supra, it is shown that the cause of action was based on a note executed by appellants to their father, James Newton. James Newton died, having devised and bequeathed all of his property to his second wife, the stepmother of appellants. The stepmother brought suit on the note as legatee under her husband’s will. The defendants pleaded want of consideration, and in order to maintain their defense in the trial court the defendants offered to prove by the wife of one of the defendants conversations between James Newton and her husband, during the lifetime of James Newton. The testimony was objected to and excluded by the trial court.

Our Supreme Court, speaking through Judge Gaines, holds that the wife offered as a witness was a real, though not a nominal, party, to the suit, because the community was involved, but then holds that, since the suit was brought by the plaintiff as legatee under her husband’s will, tile provisions of article 2248, R. C. S. (now article 3716), did not preclude any party from testifying. In discussing the question, Judge Gaines says that this court will not extend the provisions of the statute to a class of persons not named, although the reason for embracing them be equally as strong as those which exist for excluding the persons expressly designated, citing Roberts v. Yarboro, 41 Tex. 451; Markham v. Carothers, 47 Tex. 25.

In the Newton Case the surviving wife was, generally speaking, an heir at law of her deceased husband. Article 2571, R. C. S. 1925. On the other hand, as shown by the opinion, she did not assert any rights in the note sued on as an heir, but sued as legatee. Under these circumstances, our Supreme Court held that, her rights being asserted as a legatee, the disqualifications of article 2248 (present article 3716) had no application.

In the case at bar Mrs. Lassiter is, generally speaking, an heir at law of Mrs. Mollie E. Wright, deceased, but she does not assert any rights as such heir. On the other hand, she asserts title in the lot in question by virtue of a deed from Mrs. Mollie E. Wright to her. Under the holding in Newton v. Newton, supra, the provisions of article 3716, R. C. S., can have no application to disqualify any witness in the case at bar.

It is true that Mrs. Lassiter’s testimony reveals the fact that she holds and claims title to an interest in the lot in question under a deed from her mother, Mollie E. Wright, deceased, absolute in form, but which deed, in fact, only conveys the lot to her as trustee for herself and the other legal heirs of her said mother. However the fact that the interest in the lot was conveyed in trust for beneficiaries, who happened to be also heirs, does not alter the result of the transaction, which is to vest the legal title in Mrs. Lassi-ter, and the equitable title in the beneficiaries of the trust by operation of the deed, and not by virtue of the laws of heirship. It is also true that by the terms of the trust, as testified to by Mrs. Lassiter, the heirs of Blrs. Wright share therein in the. proportion fixed by the laws of descent and distribution; but this is true, not primarily because of the operation of any statute of heirship, but because the party conveying the property so created the trust.

We therefore recommend that the judgments of the district court and Court of Civil Appeals be reformed, and in part affirmed, and in part reversed and remanded, as follows : That the judgments of both courts be affirmed, so far as the alleged cause of action against Julius Edmond Bouche is concerned; that the judgments of both courts be affirmed so far as the alleged cause of action against Mrs. Jennie L. Bouche is concerned, except in so far as the plaintiff seeks recovery for the one-twelfth interest in the lot in question conveyed to Mrs. Jennie L. Bouche by Mrs. Mollie E. Wright and husband, J. W. Wright, by deed dated April 23, 1883; and that the judgments of both courts as to this one-twelfth interest be reversed and remanded to the district court for a new trial.

OURETON, O. J. Judgments of the district court and Court of Civil Appeals both reformed, and affirmed in part, and in part reversed and remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: HARVEY, P. J.

text:
    BRADLEY v. TRINITY STATE BANK.
    (No. 1181-5174.)
    Commission of Appeals of Texas, Section A.
    March 13, 1929.
    Stewart, DeLange & Milheiser, of Houston, for appellant.
    Hayne Nelms, of Groveton, for appellee.
   HARVEY, P. J.

Certified questions from the First Supreme Judicial District. The material facts set out in the certificate are substantially as follows:

On June 27, 1924, the appellant, Mrs. Lula Bradley, executed her promissory note to the First State Bank of Trinity. The note, according to its terms, was payable to said bank in Trinity, Tex. After the note matured the appellee, the Trinity State Bank, brought this suit on the note, against the appellant, in Trinity county. In the suit, the appellant duly filed her plea of privilege to be sued in the county of her residence, to wit, Harris county. The appellee, in due-time, filed controverting affidavit, alleging the execution of the note by the appellant, and the fact that, according to its terms, the note was payable in Trinity county. Upon! the hearing of the plea of x>rivilege the appellee introduced the note, and also introduced evidence of the fact that Trinity is in Trinity county. It was admitted by the parties that, at the time of such hearing and when the suit was filed, the appellant was a single woman and resided in Harris county. No other evidence was introduced at such hearing.

The appellant offered the testimony of herself to show that she was a married woman, living with her husband at Trinity, when the note was executed, which fact was known to the payee at the time; that “there was no consideration to the appellant for the execution of said note, same having been signed by the appellant merely at the request of her husband, and without any benefits of any character to appellant or her separate estate” ; that the note “was not signed for necessaries for the appellant or children, and not for the benefit of the separate estate of appellant”; that “no money or other thing of value was received by appellant on account of the signing or'execution of said note." Upon objection from the appellee, all .this testimony offered by the appellant was excluded from evidence. The trial court thereupon overruled the appellant’s plea of privilege. IProm the order overruling such plea the appellant appealed.

The Court of Civil Appeals affirmed said order of the trial court, and in doing so held that the trial court did not err in excluding the above testimony of the appellant, and did not err in refusing to sustain her plea of privilege on the ground that there was no evidence of the appellee’s ownership of the note. A motion for rehearing being filed by the appellant, the Court of Civil Appeals has certified to the Supreme Court the following questions:

“First. Upon the facts before stated, did the trial court err in refusing to permit appellant to testify as to her coverture ati the time the note was executed, and as to the purpose and consideration for which it was executed?
“Second. Did the trial court err in, overruling the plea of privilege, in the absence of evidence of .appellee’s ownership of the note?”

The above-mentioned holding of the Court of Civil Appeals is correct in both respects. The note was executed by the appellant. Its terms purport a valid obligation, and an undertaking by the appellant to perform that obligation in Trinity, which place is shown to be in Trinity county. By virtue of subdivision 5 of article 1995 of tbe statutes, these facts, of themselves, fix in that county the venue of the action on the note. The ownership of the note, and the validity of the obligation evidenced thereby, are matters which go only to the merits of the action. An inquiry into those matters has no proper place in determining the question of venue.

We recommend that each of the certified questions be answered “No.”

CURETON, C. J. Opinion of the Commission of Appeals, answering certified questions, is adopted, and ordered certified to the Court of Civil Appeals.


text:
    HAYNES v. J. M. RADFORD GROCERY CO.
    (No. 1184-5180.)
    Commission of Appeals of Texas, Section A.
    March 13, 1929.
    A. A. Ledbetter, of McLean, for appellant. Davidson & Hickman, of Abilene, for ap-pellee.
   HARVEY, P. J.

Certified questions from the Court of Civil Appeals for the Eleventh District. The facts upon which the questions are predicated are thus stated in- the certificate: “The above case has been submitted and is before us for disposition. The appeal was perfected by the filing of a super-sedeas bond which may, of course, have the effect of making a judgment of affirmance in this court of more value to the appellee than the judgment of the trial court. The case comes to us upon a transcript and statement of facts, without any brief by either appellant or appellee; and there is no motion of appellee either to dismiss or affirm, and no motion of appellant seeking to be excused for the failure to file briefs, or for permission to do so.”

The certified questions submitted read as follows:

“No. 1. When, upon appeal or writ of error from the trial court to the Court of Civil Appeals, no briefs are filed by either party and no excuse offered by appellant for failure to file briefs, is it the correct practice under Rule 39 for the appeal to be dismissed?
“No. 2. Under the circumstances stated in the first question, is the Court of Civil Appeals under any duty to inspect the record to discover the possible existence of fundamental error?
“No. 3. Under the circumstances stated in the first question, has the Court of Civil Appeals the discretionary power to affirm the judgment of the trial court, provided, upon an inspection of the record, no fundamental error appears?
“No. 4. If the third question is answered in the affirmative, then in a case where the Court of Civil Appeals does exercise its discretion to look into the record to determine the existence of fundamental error, and such error is found, is it then the duty to reverse the cause, or would the court, in such case, upon discovering an obstacle to affirming the judgment, thereupon dismiss the ease for want of prosecution?”

The failure of all parties to an appeal, without good cause being shown, to file briefs in accordance with the rules prescribed by the Supreme Court, authorizes the Court of Civil Appeals to dismiss the appeal without inspecting the record for fundamental error. Gant v. Timmons, 78 Tex. 11, 14 S. W. 236; Pearson v. Household Sewing Machine Co., 78 Tex. 385, 14 S. W. 890; Bowman v. Hoffman, 28 Tex. Civ. App. 311, 67 S. W. 152. If, however, the court, in the exercise of sound judicial discretion, concludes that the ends of justice will be better subserved by an af-firmance of the judgment of the trial court rather than by a dismissal of the appeal, then the court may affirm such judgment if an inspection of the record discovers no fundamental error. If such an error is discovered, it then becomes the duty of the court to reverse the judgment; for, having exercised its discretion to make the inspection, the court would not meet the requirements of justice if its eyes were closed to fundamental error when found. This just procedure was recognized by our Supreme Court many years ago (Rio Grande R. Co. v. City of Brownsville, 45 Tex. 88); and no reason is discerned for disregarding it now.

What has been said supplies answer to all the certified questions, and we recommend that they be so answered.

CURETON, C. J. The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


author: SHORT, P. J.

text:
    CLEM v. FULGHAM.
    (No. 1011-5195.)
    Commission of Appeals of Texas, Section B.
    March 13, 1929.
    George T. Burgess, of Dallas, for plaintiff in error.
    Crate Dalton, of Dallas, for defendant in error.
   SHORT, P. J.

This is a suit by defendant in error for rescission and cancellation of a deed made and delivered to him by the-plaintiff in error, and also for money expended in attempting to make use of the property for which it was purchased. The plaintiff in error was the apparent owner of the property, holding in his name the legal title and having some beneficial interest in it. The owner of the chief beneficial interest was S. Z. Park, who had conveyed the property to the plaintiff in error to secure an indebtedness due by him to the latter. This property was a city lot in Dallas, having an approximate front of 50 feet with a depth approximately of 200 feet. Park, as the owner of the property, had employed C. L. Snow to sell it for him at a price of $2,500. Snow effected the sale, in pursuance of which Park and defendant in error executed a written contract; the property being described as 50 feet frontage by 200 feet in depth. Snow also delivered to defendant in error an abstract of title. This showed a frontage of approximately 70 feet with a depth approximately of 180 feet. Defendant in error agreed to accept the property as shown by the abstract. Clem was in California during these negotiations, and aft-erwards, while in Colorado, he executed .a deed sent to him by an abstract company, presumably at Snow’s direction, conveying the property to defendant in error, the deed of which described a frontage of 70 feet by 180 in depth. After receiving this deed, defendant in error proceeded to incur certain expenses in the preparation and beginning to build an apartment house on the property. Among other things, the defendant in error made certain excavations preparatory to establishing the foundation of the house, a part of which excavation was made on land afterward discovered not to belong to Clem or to Park, consisting of 21 feet frontage. Thereupon the defendant in error ceased his operations, and brought this suit' to cancel the deed which had been made and delivered to him and claiming consequential damages growing out of the misrepresentation made in the abstract and in the deed as to the length of the frontage of the lot. The defendant in error did not at any time have any conversation with the plaintiff in error about the trade. All that the plaintiff in error did was to execute and deliver the deed sent to him by the abstract company. The Court of Civil Appeals finds that Snow was not the agent of the plaintiff in error. Consequently, whatever representations Snow may have made to the defendant in error did not bind the plaintiff in error. A jury having been impaneled and the testimony having been heard, each party moved the court to instruct the jury in his favor peremptorily, and both of these motions were overruled. However, the court did instruct the jury to return a verdict canceling the deed and assessing damages in a sum less than that claimed in the petition and supported by testimony given by defendant in error. The plaintiff in error having perfected an appeal, the Court of Civil Appeals of the Seventh District affirmed the judgment of the district court. 4 S.W.(2d) 280.

The first assignment of error challenges the correctness of the holding by the Court- of Civil Appeals that the action of the trial court in peremptorily instructing the jury was correct. This assignment we sustain. A jury having been impaneled, the plaintiff in error was entitled to have the case submitted to and decided by the jury under appropriate legal instructions. The testimony was more or less conflicting, not only as to the right of the defendant in error to rescind the contract and cancel the deed, but also as to the amount of the damages he would be entitled to recover in the event he should be entitled to a rescission and cancellation. Substantially all of the testimony tending to establish the material allegations in the petition was that of the defendant himself. The cause of action of the defendant in error is based upon constructive fraud perpetrated upon him by the plaintiff in error in executing and delivering to him a deed to land, a portion of which he did not own. It was therefore necessary for him to prove by a preponderance of the evidence that the erroneous statement in the deed was false, that he relied thereon, and so relying accepted the deed at its face value, that he had a right to rely thereon, that he was damaged, and the amount he was entitled to recover. The instruction given to the jury by the court necessarily embraced a finding by the court that each of these elements had been established conclusively. A jury having been selected for the purpose of trying out the facts, where the testimony was of the character sufficient to raise an issue, the trial judge was without -authority to deprive the plaintiff in error of his legal right to have these disputed issues determined by the verdict of the jury. It may be that the testimony of the defendant in error is not directly contradicted, but considering the fact that he was an interested witness, together with all the circumstances in the case, some of which indirectly tend to contradict the truth of some of the material statements made by the defendant in error, we are of the opinion that a question as to his credibility was presented, to determine which was the sole province of the jury which the parties had selected to try out the facts. Dashiell v. Johnson, 99 Tex. 546, 91 S. W. 1085; Coats v. Elliott, 23 Tex. 613; Mills v. Mills (Tex. Com. App.) 228 S. W. 920; Sonnentheil v. Brewing Co., 172 U. S. 408, 19 S. Ct. 233, 43 L. Ed. 495.

We have examined the other assignments of error, and' in view of the disposition we have made of the case, find it unnecessary to discuss them, particularly since what we have said heretofore indicates a sufficient expression of our opinion of the law to enable the district court, upon another trial of the case, to instruct the jury correctly upon the issues which may be made by the testimony.

We therefore recommend that the judgment of the Court of Civil Appeals be reversed, and that the case be remanded to the district court for another trial.

CURETON, C. J. Judgments of the district court and Court of Civil Appeal's both reversed, and cause remanded to the district court, as recommended by the Commission of Appeals.


text:
    BENDY et al. v. W. T. CARTER & BRO. et al.
    (No. 1201-5208.)
    Commission of Appeals of Texas, Section A.
    March 20, 1929.

      Holland & Cousins and I-Iowth, Adams & Hart, all of Beaumont, for plaintiffs in error.
    J. E. Wheat, of Woodville, and Baker, Botts, Parker & Garwood, C. L. Carter, and 5. H. German, all of Houston, for defendants in error.
   CRITZ, J.

This is a suit in trespass to try title brought by plaintiffs in error, who will hereinafter be designated plaintiffs, against defendants in error, who will hereinafter be designated defendants, to recover a tract of land in Tyler county, Tex. The trial in the district court without a jury resulted in a judgment for the defendants. This judgment on appeal was affirmed by the Court of Civil Appeals [5 S.W.(2d) 579], and the case is before the Supreme Court on writ of error granted on application of the plaintiffs.

The plaintiffs are the heirs at law of I-I. W. Bendy, Sr., deceased, and claim the property by inheritance from H. W. Bendy.

The defendants in error claim title under an execution sale of the property, as the property of H. W. Bendy. The judgment forming the basis for the execution was obtained in the district court of Tyler county, Tex., on November 7, 1870, and is as follows:

“N. W. Burtis v. Hyde & Bendy. No. 1043.
“O. T. 70 13 Day.
“This day came the parties by their attorneys and the defendant withdraws the answer by him heretofore filed and says nothing in bar of the plffs action: wherefore the said N. W. Burtis aught to recover against the said Hyde & Bendy his damages by action of the premises, and it appearing to .the Court that the cause of action- is liquidated and prpved by an instrument of writing it is ordered that the Clerk do assess the damages sustained by said plaintiff: and the said clerk now here having assessed the damages aforesaid at the sum of Fourteen Hundred & Twelve Dollars and Ten cents it is therefore considered by the court that the -said plaintiff do have and recover of the defendants the sum of Fourteen Hundred and Twelve Dollars and ten cents with interest thereon at the rate of eight per cent per an-num together with his costs- in this behalf expended and that he -have his Execution. It is further ordered that execution issue in favor of the officers of Court against defts for the costs by him in this behalf incurred for which let Execution issue.”

The above judgment was rendered on a petition filed in said court, on May 30, 1868,. which reads as. follows:

“The State of Texas, County of Tyler.
“In the Dist. Court, Fall Term A. D. 186S.
“To the Hon. H. C. Pedigo, Judge of the 15th-Judicial Dist. holding Court in & for Tyler Co.
“The petition of N. W. Burtiss & Co. a mercantile firm residing, located & doing business in the City, County & State of-r
“Respectfully shows that W. Thos. 1-Iyde & H. W. Bendy resident citizens of Tyler Co-Texas, are justly indebted to plff in the sum of Twelve Hundred Dollars, for this that said Defts I-Iyde & Bendy made executed and delivered to Plff their certain promissory note-in writing, in words & figures as follows:
“‘8399.34/100, Woodville, Apr. 1st., 1861-
“ ‘One day after date we promise to pay N. W. Burtiss & Co. or order, Seven Hundred Ninety Nine 34/100 Dolls for value received,, with eight per cent, interest.
“ ‘W. Thos. Hyde & Co.’
“Petitioners allege that said note has been* long due & that they have often demanded1 payment thereof, but that Defts, have hitherto & still refuse to pay the same, wherefore they bring this suit and ask that Defts. be cited to appear at next term of the Court to-answer this petition & for judgment for the-principal & interest of this note & for all costs-expended and for general relief & and in duty bound, etc.
“Cline, Atty. for Plff.”
Indorsed: “1043, N. W. Burtiss v. W. T. Hyde-& H. W. Bendy. Petition filed May 30,. 1868.
“H. West C. D. C. T. C.,
“By Hyde, Deputy.”

By his first assignment of error the-plaintiff contends that the judgment is one against a copartnership firm alone, and will not support an execution, levy, and sale upon the property of one of the individuals composing such partnership.

We are of the opinion that the judgment itself will not support the above contention. The judgment is entitled:

“N. W. Burtiss v. 1-Iyde & Bendy.”
It recites: “Wherefore, the said N. W. Bur-tiss ought to recover against the said Hyde '& Bendy his damages,” etc.
It further, in the decreeing portion thereof,. recites: “It is therefore considered by the court that the said plaintiff do have and recover of the defendants,” etc.

It further recites: “It is further ordered that execution issue in favor of the officers of the court against defts,” etc.

It will be noted that the judgment nowhere describes Hyde & Bendy as a partnership, and they are, at all times, referred to as the defendants; that is, the plural is used. The only thing left uncertain by the judgment itself is the identity of the defendants Hyde and Bendy.

It is a well-settled rule of law, approved by the text-writers and the Supreme Court of this state, that, if there is any uncertainty in the judgment as to the party against whom, or for whom, it is rendered, it is proper to look to the entire judgment roll, including the pleadings, to ascertain against whom, or for whom the judgment is rendered. 1 Freeman on Judgments (5th Ed.) § 80; Smith v. Chenault, 48 Tex. 455; Little v. Birdwell, 27 Tex. 689; Hays v. Yarbrough, 21 Tex. 487. It follows from this rule and the authorities cited that it is proper to look to the judgment role, and especially to the petition in the original suit, to ascertain who, and what Hyde & Bendy were, and in what capacity they were sued. When this is done, it is conclusively shown that “Hyde & Bendy,” and “the defendants” referred to in the judgment are W. Thomas Hyde and H. W. Bendy, individually.

When we examine the petition, we find that it is indorsed: “N. W. Burtiss vs. W. T. Hyde & H. W. Bendy.” It recites that: “W. Thos. Hyde and H. W. Bendy * ⅜ ⅜ are justly indebted to the plff. % * * for this: that said defts., Hyde & Bendy, made ⅜ * * their certain promissory note in writing in words and figures as follows:”

Here is set out the note executed by “W. Thos. Hyde & Co.”

The then petition alleges: “But the defts have hitherto & still refuse to pay the same,” etc.

It is thus made certain from the allegations of the petition that the suit was brought by N. W. Burtiss against W. Thos. Hyde & H. W. Bendy on a note alleged to have been • executed by “N. Thos. Hyde & Co.” The judgment is against the parties sued, and, when the judgment is viewed in the light of the petition to ascertain the parties plaintiff and defendant, it is clear that “Hyde & Ben•dy” and “the defendants” referred to in the judgment are the same parties referred to in the petition. The parties referred to in the petition are undoubtedly W. Thos. Hyde and I-I. W. Bendy, individually.

We will say in this connection, however, ■that a further examination of the judgment roll, in the light of the facts in the record, renders the above conclusion absolutely certain, as every step in the proceedings, and every paper filed therein, and issued by virtue thereof, shows the proceedings to have been by N. W. Burtiss against W. Thos. Hyde and H. W. Bendy.

In this connection we further call attention to the undisputed fact that, though I-I. W. Bendy was a citizen of Texas from about a year prior to the rendition of the judgment and until his death about twelve years after the rendition of the judgment, it is shown that he never made any claim to this land after the execution and sale.

Plaintiff’s second assignment of error is as follows:

“The Court of Civil Appeals erroneously held in this case, as a legal proposition, that a judgment in personam against a non-resident of the state is valid, though not reciting service, the presumption of service being conclusive unless overturned by the record, and that evidence aliunde the record is not to be admitted or considered as showing the want of jurisdiction over the person by the court rendering such judgment.”

There are no facts in the record to raise this issue. An examination of the record shows that H. W. Bendy was a resident of this state from 1869, a year before the judgment was rendered, and continued as such resident until his death -about twelve years after the rendition of the judgment.

We will say in this connection that, in pointing out the fact that Bendy was a citizen of Texas at the time the judgment was rendered and for some time before and thereafter, we do not intend to intimate that in a collateral attack on the judgment it would be permissible to go outside the record in the original case to hear evidence on such an issue. What we hold is that it is not necessary to pass on that question, as the record conclusively shows that Bendy was a citizen of this state at the times above indicated.

We will further say that, since the record itself certainly does not contradict the fact that I-I. W. Bendy was served in the original suit, it is proper to conclusively presume in favor of the judgment, which is here collaterally attacked, that Bendy was served with citation. Fitch and Henderson v. Boyer, 51 Tex. 836.

Furthermore, in support of the fact that the judgment was against W. Thos. Hyde and II. W. Bendy, individually, the facts show that' these two parties were engaged in the mercantile business at the time the note was signed, and did business under the firm name of W. Thos. Hyde & Co. The plaintiff had the right to sue the individual members of the firm on the obligation created by the note. Fowler Commission Co. v. Land & Co., 248 S. W. 314; (Com. App. opinion approved) Burton v. Roff (Tex. Com. App.) 292 S. W. 159. The note sued on was a joint contract as to both the partners and also several as to each of them.

What we have said disposes of this case, and we recommend that the judgment of the Court of Civil Appeals be affirmed.

GURETON, O. J. Judgment of the Court of Civil Appeals affirmed, as recommended by the Commission of Appeals. .


text:
    HOYLE et al. v. REPUBLIC INS. CO.
    (No. 1200-5206.)
    Commission of Appeals of Texas, Section A.
    March 20, 1929.
    J. W. Hassell and F. J. Scurlock, both of Dallas, for plaintiffs in error.
    Hamp P. Abney, of Sherman, and E. G-. Senter, of Dallas, for defendant in error.
   HARVEY, P. J.

This suit was brought by J. F. Hoyle to recover on a fire policy issued by the Republic Insurance Company to R. C. Hoyle, who is named as the insured in the policy. J. R. Fleming was also made a party defendant in the suit; the plaintiff alleging that he held a vendor’s lien note against the insured property and was entitled to receive the amount of the note from the proceeds of the policy. Mrs. R. C. Hoyle, joined by her husband, R. C. Hoyle, intervened and set up claim in her separate right to a part of the proceeds of the policy.

The building covered by the policy and the town lot upon which it stood were purchased by R. C. Hoyle, and title thereto taken in his name, some time before the policy issued. The sum of $2,000 of the purchase money was paid from the separate funds of Mrs. Hoyle, and the balance, amounting to $750, was paid from community funds. At the time the policy issued, the building and lot were used and occupied by R. O. Hoyle and wife as their home. Until after the fire, the insurance company and its local agent were-ignorant of the fact that any part of the purchase money for the property was paid from the separate funds of Mrs. Hoyle. After the policy issued, R. C. Hoyle and wife, for the purpose of obtaining a loan on their said homestead, executed a deed to J. F. Hoyle, purporting to convey to him the homestead for a consideration partly cash and partly a vendor’s lien note executed to R. C. Hoyle by J. F. Hoyle. This deed to J. F. Hoyle was made, and the note was executed by the latter, for the purpose of enabling R. C. Hoyle to sell the note and thus fix a lien on the property. , None of the parties to the deed intended it really to have effect according to its purport. In the transaction, R. C. Hoyle also transferred to J. F. Hoyle the policy in question. The local agent for the insurance company, with knowledge of the purpose of the-above transaction, consented to the purported transfer of the property and policy to J. F. Hoyle, and indorsed the consent of the-company on the policy. R. C. Hoyle after-wards sold the J. F. Hoyle note to J. R. Fleming. The agent for the insurance company attached a rider to the policy, which provides that loss under the policy shall be payable to J. R. Fleming as his interest may appear. Afterwards, while the policy was in force, the building covered thereby was totally destroyed by fire.

The policy contains the following provision :

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the interest of the insured in the property be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple.”

The fact that Mrs. Hoyle had an undivided interest in the insured property is relied on by the insurance company to defeat liability under the policy.

The trial court peremptorily instructed a verdict against the insurance company for the amount of the policy; and in favor of Fleming for $1,064.21 of the proceeds, and in favor of Mrs. R. C. 'Hoyle for the remainder. Judgment was rendered accordingly. None of the parties, except the insurance company, raised any objection to the judgment. The insurance'company appealed, and the Court of Civil Appeals reversed the judgment and rendered judgment for the insurance company. 5 S.W.(2d) 602.

When the family homestead is composed wholly or partly of separate property of the wife, the homestead rights of the husband are the same as when the homestead is composed entirely of community property. It has been held, with the approval of the Supreme Court, that the rights of the husband in the community homestead, after the death of the wife, are such as to constitute sole and unconditional ownership of the homestead within the meaning of a policy provision similar to the one now under consideration. Insurance Co. v. Crawford (Tex.Sup.) 16 S. W. 1068. Guided in a great measure by the authority of the case cited, we have' concluded that the fact that Mrs. Hoyle had an undivided interest in the building covered by this policy did not render the interest of her husband in the building “other than unconditional and sole ownership,” within the meaning of that clause of the policy. The rights of the husband in the family homestead, as such, are peculiar to him, as those of the wife are to her. And, inasmuch as these rights of the husband constitute “ownership” of the home, as is held in the Crawford Case, he must be treated as having “sole” ownership, within the meaning of that term as used in the policy. This ownership is also “unconditional,” as meant by that term in the policy. So long as he lives, the husband’s rights in the homestead, upon which this “ownership” is based, cannot be taken from him without his consent. His wife, by procuring a divorce, might deprive him of his homestead rights in her separate propertybut, even in this, his implied consent to the deprivation would be present as a result of his furnishing legal grounds for the divorce.

.The conclusion we have reached is not regarded as being in any wise in conflict with the decision in Insurance Co. v. Beneke (Tex. Civ. App.) 53 S. W. 98, in which case the writ of error was refused. The policy involved in that case was issued to the wife, and covered the family home which was the separate property of the wife. It was held in that case that the homestead rights of the husband did not prevent the wife’s interest in the insured property from being other than sole and unconditional ownership, within the meaning of a policy provision of this sort. That holding by no means implies that the homestead rights of the husband in the family home, which is the separate property of the wife, should be treated as other than sole and unconditional ownership, when the policy is issued to him. For it will not be denied by any well-informed man that the authorities recognize that one person may hold such a claim to or rights in property covered by a policy issued to him as will make him sole and unconditional owner of the property within the meaning of a policy provision of this sort, although the real title to the property be held by another, with consequent sole and unconditional ownership.

It is further contended by the insurance company that the trial court erred in awarding Mrs. Hoyle a share in the proceeds of the policy. There was no error in this; her husband having joined in the plea therefor. The rights of the husband and wife, respectively, in the family home at the time it is destroyed, attach to the claim for indemnity arising on an insurance policy thereon, upon the destruction of the property. Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 Am. St. Rep. 742, Lucas v. Lucas, 104 Tex. 636, 143 S. W. 1153.

We think that the trial, court acted correctly in holding the insurance company to liability under the policy and in instructing a verdict against the company.

We recommend that the judgment of the Court of Civil Appeals reversing the judgment of the trial court and rendering judgment for the defendant in error be reversed, and the judgment of the trial court be affirmed.

CURETON, C. J. Judgment of the Court of Civil Appeals reversed, and that of the district court afiirmed, as recommended by the Commission of Appeals.


author: LEDDY, J.

text:
    JOHNSON v. LAGOW et al.
    (No. 1034-5223.)
    Commission of Appeals of Texas, Section B.
    March 20, 1929.
    Shropshire & Bankhead, of Weatherford, and A. H. Kirby, of Fort Worth, for plaintiff in error.
    1-Iood & Shadle, of Weatherford, and Ayres & Payne,- of Eloydada, for defendants in error.
   LEDDY, J.

Defendants in error brought this suit in the district court of Parker county against D. E. Minney and wife, Edna Min-ney, and. W. M. Johnson, to recover the title and possession to 235 acres of land. It was .alleged that the deeds under which plaintiff in error, W. M. Johnson, claims title to the tract of land were made for the purpose of defrauding, hindering, and delaying creditors of D. P. Minney, and were therefore void; that plaintiff in error, Johnson,, paid no consideration for the land.; and that the beneficial title to same was still in D. P. Minney, until July 25, 1925, at which time defendants in error became the owners thereof by reason of having purchased the same at execution sale made under and by virtue of a judgment owned by them against D. P. Minney. Minney and wife filed disclaimer, and the cause as between the parties hereto was tried to a jury.

The j.ury found, in answer to special issues, that the deed by which Minney conveyed this property to his wife, Edna Min-ney, as well as the deed from Minney and wife to Johnson, were made for the purpose of hindering, delaying, and defrauding Min-ney’s creditors, and that at the time each of said transfers was made Johnson had full notice of such purpose or intention.

Based upon these findings, the court entered judgment for defendants in error for the land involved, and canceled the deed from Minney and wife to plaintiff in error, Johnson. This judgment was affirmed by the Court of Civil Appeals.

Plaintiff in error presents in this court but a single assignment of error, in which he complains of the action of the trial court in admitting in evidence, over his objection, certain declarations made by D. P. Minney, several months subsequent to the date of his deed to Johnson, to the effect that he still owned or claimed an interest in this land.

The general rule is thoroughly estab-' lished that declarations of a vendor in derogation of the title conveyed, made subsequent to his conveyance, not in the presence of the vendee, are inadmissible. The reason of the rule is that when a vendor has parted with his property he has no more power by his acts or declarations to impress the title than a mere stranger. But there is a well-recognized exception to the general rule to the effect that: “When a fraudulent combination is established, the acts and declarations of any one of the parties thereto while engaged in the prosecution of the common design, may be proved against the others.” Jones v. Simpson, 116 U. S. 609, 6 S. Ct. 538, 29 L. Ed. 742; Winchester & P. Mfg. Co. v. Creary, 116 U. S. 161, 6 S. Ct. 369, 29 L. Ed. 591; Shelley v. Nolen, 38 Tex. Civ. App. 343, 88 S. W. 524; Moore v. Rohinson (Tex. Civ. App.) 75 S. W. 890; Thompson v. Rosenstein (Tex. Civ. App.) 67 S. W. 439.

Before such declarations are brought within the exception, it is essential that a foundation must be first laid by proof, sufficient, in the opinion of the court, to prima facie establish the existence of concert or collusion. The Court of Civil Appeals finds there was testimony, independent of the declarations of Minney, tending to show that a fraudulent combination existed between Johnson and Minney, the object of which was to prevent Minney’s creditors from reaching the property involved, and the sufficiency of the evidence to sustain such finding is not challenged by plaintiff in error.

These parties were therefore shown to be jointly inte,rested or at least had a privity of design, and were, acting together in a transaction for their benefit, or the accomplishment of such purpose; hence the declaration of Minney was admissible against Johnson, even though made -in his absence. Gifford v. Gifford, 58 Ind. App. 665, 107 N. E. 308; Koch v. Lyon, 82 Mich. 513, 46 N. W. 779.

Plaintiff in error concedes that where a conspiracy is shown, the declaration of one conspirator is admissible against the others, even though made in their absence, if such declaration is made during the pendency of the conspiracy and is fairly within the scope thereof. He insists, however, that the conspiracy here involved terminated when Min-ney conveyed the property to Johnson. We are not prepared to assent to this view. If Johnson and Minney entered into a conspiracy to conceal Minney’s property from his creditors by placing it in Johnson’s name, which there was evidence tending to show, the conspiracy had not terminated so long as Johnson held such title in his own name. Minney’s declarations subsequent to his conveyance to Johnson were clearly within the scope of the object and purpose for which the conspiracy was formed. The conspiracy was a continuing one which the parties were engaged in carrying out at the time Min-ney’s declarations were made; hence his declarations tending to show he was still interested in ,the property were admissible against Johnson, even though made in his absence. Chicago Lumber Co. v. Cox, 94 Kan. 563, 147 P. 67; Cox v. Vise, 50 Ark. 283, 7 S. W. 136; 22 C. J. 22, p. 366, § 438, and authorities there cited.

We therefore recommend an affirmance of the judgment of the Court of Civil Appeals.

CURETON, O. J. Judgment of the Court of Civil Appeals affirmed, as recommended by the Commission of Appeals.


author: LMDDY, J.

text:
    GRAHAM et ux. v. CLEARMAN et al.
    (No. 1009-5191.)
    Commission of Appeals of Texas, Section B.
    March 13, 1929.
    J. W. Thomas and Walter Miller, both of Belton, and I. E. Graham, of Kerrville, for plaintiffs in error.
    Roberts, Monteith, Baring & Wilson and Edgar Monteith, all of Houston, for defendants in error.
   LMDDY, J.

Plaintiffs in error were appel-lees in the Court of Civil Appeals. Prom an adverse decision in that court «they applied for, and were granted, a writ of error.

Upon granting the writ a rule was entered by the Supreme Court requiring plaintiffs in error to file a writ of error bond as provided by the statute. Such order has not been complied with, but plaintiffs in error have filed an affidavit in forma pauperis in lieu of bond and insist that this entitles them to be heard by the Supreme Court.

In the case of Daniel v. Mason, 90 Tex. 162, 37 S. W. 1061, this question was determined adversely to plaintiffs in error’s contention. In that case the Supreme Court construed article 942, R.ev. St. 1895, in regard to giving bond in such cases, and, in interpreting the statute, held that no exceptions had been in-grafted upon this statute, and the court was therefore not at liberty to make one “upon reasons derived from the spirit of other statutes in reference to costs and appeals.”

Under the authority of the above case, the application for writ of error must be dismissed.

We therefore recommend that plaintiffs in error’s application for writ of error be dismissed.

CURETON, C. J. Application for writ of error dismissed, as recommended by the Commission of Appeals.


text:
    REYNOLDS et al. v. McMAN OIL & GAS CO. et al.
    (No. 887-4592.)
    Commission of Appeals of Texas. Section B.
    March 20, 1929.

      For former opinion, see 11 S. W. (2d) 778, which reversed 279 S. W. 939.
    Wm. J. Berne, of Fort Worth, and Kinder & Russell and Meade F. Griffin, all of Plainview, for plaintiffs in error.
    H. P. Brelsford and Funderburk & Richardson, all of Eastland, Thompson & Bar-wise, of Fort Worth, John Rogers, of Tulsa, Okl., and Ellis Douthit, of Abilene, for defendants in error.
   SPEER, J.

All parties have presented motions for rehearing', and exceptionally able arguments have been filed in support thereof.

We have carefully considered the questions anew, and, after all has been said, we epitomize the case a.s follows:

The instrument is a grant,of oil and gas in place. The consideration is: (1) The one-eighth part of 'all oil produced and saved from the leased premises; (2) $100 per an-num for gas from each well where gas only is found while the same is being used off the premises; and (3) $100 per annum per well for gas produced from any oil well and used off the premises. Clause 1 constitutes a legal exception from the grant of one-eighth part of all oil produced and saved from the leased premises while clauses (2) and (3) are mere rental covenants for gas used off the premises. Clause (2) of the royalty covenant applies only to gas used from a well “where gas only is found,” while clause (3) provides a similar rental for gas produced from an oil well. The clear intention of the instrument as a whole is to except from the grant “one-eighth part of all oil produced and saved from the leased premises,” and to pay and accept a rental per well per annum for gas produced and used off the premises. The “gas” mentioned in both sections, as we have shown in our original opinion, means gas, and not oil. The lease therefore in legal effect grdnts seven-eighths of the oil in place and all of the gas. The rights in the casing-head gas are controlled by the exception and not by the rental covenants. If the lease had contained apt words of grant including all casing-head gas (which is known to contain oil), the case would be different. That character of lease is illustrated by Magnolia Petroleum Co. v. Connellee (Tex. Com. App.) 11 S. W. (2d) 158. The lease in that case contained apt words of grant to evidence an intention to convey all casing-head gas, which, of course, included the modicum of oil which it carried, and it was held that all such gas was therefore within the grant. This clearly distinguishes the two cases. The motion for rehearing by defendants in error, wherein it is stated there is no difference between the two leases “except that created by the fact that the specific royalty provision in the Connellee Case covers ‘casing-head gas’ while the specific royalty provision in this case covers ‘gas produced from an oil well,’ ” is erroneous. The clause in the Connellee Case stipulates for rental for casing-head gas when sold or used off the premises, thus evidencing a grant of all such gas; whereas there is no such right expressed or implied in the present case. The royalty or any other clause of the instrument may be looked to, where pertinent, to determine the grant.

The plaintiff in error likewise seeks a rehearing, and insists that defendants in error are liable for the gross value of one-eighth of the gasoline recovered not charged with the cost of reduction, upon the theory they are trespassers; the argument being that since in law plaintiffs in error were entitled to one-eighth part of the casing-head gas as it was delivered from the ground, the defendants in error, knowing of this right, as they must have known, are not good-faith trespassers to entitle them to their expenditures in treating the gas and recovering the gasoline. It is true the rights of the parties are to be determined by the terms of the lease, which, in turn, presents a question of law; but it does not follow that defendants in error have not acted in good faith. Indeed, the particular right is of such a nature as to challenge the best thought of all the courts through which the case has passed, and defendants in error should not be mulcted in damages for claiming a right to the gas under such circumstances. It is like the case of one who enters upon land believing his title to be good, whereas it is subsequently held as a matter of law to be bad. It would be an impotent equity ■ that would deny him a recovery for his improvements made in good faith. True, this illustration is governed by statute, but a similar analogy would be where one mistaking the boundary of his land puts timber and subsequently manufactures it into lumber. The boundary line exists as a matter of law, but does not preclude a good-faith claim with respect to the operation of the law determining such line.

We recommend that both motions for rehearing be overruled.


text:
    SMYTHE et al. v. COCHRAN et al.
    (No. 1030-5215.)
    Commission of Appeals of Texas, Section B.
    March 20, 1929.
    J. F. Hair and Joe L. Hill, both of San Antonio, for appellants.
    Claude Pollard, Atty. Gen., C. W. True-heart, Asst. Atty. Gen., and L. C. Sutton and John W. Goodwin, both of Austin, for ap-pellees.
   Certified Question.

SPEER, J.

This case is before us upon certified question from the Third Supreme Judicial District, as follows:

“The above cause is pending in this court on appeal from the district court of Bell county. The questions herein certified are material to a decision of the appeal, arise upon the action of the trial court in sustaining demurrers to plaintiffs’ (appellants’) second amended original petition and in dismissing the cause upon refusal to amend, and therefore grow out of the nature and result of the suit and the facts disclosed by the record before us, which, in so far as deemed material to this certificate, follow:
“The amended petition in question is somewhat prolix and involved, and not altogther clear in some respects in its statement of the facts relied upon as basis for the relief sought. As we interpret the petition the controlling facts alleged follow:
“Appellants both before and after February 7, 1925, held unsecured non-interest bearing deposits in the First State Bank of Belton (a guaranty fund bank), which bank was on January 7, 1927, closed and taken charge of by the State Banking Commissioner. Appellants’ claims were duly allowed by the Banking Commissioner as entitled to participation in the guaranty fund. Under pie state banking law as it existed prior to February 7, 1925, the date when chapter 9 of the General Laws of the Regular Session of the 39th Legislature (1925) became effective, there was no provision whereby a bank might change its method of protecting its depositors from the guaranty fund system to the bond security system. That act, however, authorized such' change and under it, the petition alleges, a large number of banks operating under the guaranty fund system changed to the bond security system, and there remains in the treasury a large sum of money (some two million dollars as we interpret the petition) to which the banks so changing their methods would be entitled if their action in so doing legally gave them that right. The petition alleges :
“ ‘That continuously for a period of about five years, prior to January 7th, 1927, the said First State Bank of Belton, was in fact insolvent and that at all times its condition was such that the permitting of it to continue in business jeopardized the financial safety of its depositors and creditors, and that during each and all of said times, the State Banking Commissioner of Texas, knew or by the exercise of due and ordinary diligence could have known that the said First State Bank of Belton was insolvent, and that the business was in such condition that to permit it to continue in business would jeopardize the financial safety of its depositors and creditors.’
“The relief prayed for by appellants (aside from having their claims established as protected depositors of the Belton bank, relief to which they are not entitled because the petition shows that their claims have already been allowed as secured by the guaranty fund) is ‘that said trust fund in the hands of the State Banking Board, as alleged by plaintiffs be declared a trust fund, for the use and benefit of plaintiffs, and that the status of said guaranty and trust fund be judicially determined by a decree of this court; that the amount of the claims of each plaintiff herein be decreed to be paid out of such guaranty and trust fund in due course of the administration of the same.’
“Appellants contend that all deposits in the treasury to the credit of the guaranty fund on February 7, 1925, constituted a trust fund for the benefit of all then secured depositors in banks that thereafter might become insolvent, no part of which deposits could be withdrawn or diverted to any other purpose; and that as to such depositors, that is, depositors on and prior to February 7, 1925, said act in so far as it attempted to authorize withdrawal through the method of change from the guaranty fund plan to the bond security plan was unconstitutional and void as being (1) an attempt to destroy vested rights and (2) retroactive in effect. The petition in substance alleges in this regard that practically all of the solvent banks operating under the guaranty fund method on February 7, 1925, have subsequently thereto changed to the bond security plan; that banks remaining under the guaranty fund plan have become insolvent and have been taken over by the Banking Commissioner, and that the guaranty fund is wholly insolvent, unless the amount still in the treasury which was contributed prior to February 7, 1925, by banks changing to the bond security system be resorted to. This contention is based in the main upon the following language of article 444, R. S. 1925, ‘Said fund shall never be diverted from the purpose specified in this chapter, nor shall it ever be considered state funds.’
“The provision of the act repealing the guaranty fund law (chapter 12, General Laws, Regular Session 40th Legislature), that it shall not affect or impair any right vested or accrued, is also relied upon by appellants in this connection.
“The further contention is made that appellants have a vested right in the guaranty fund on deposit on February 7, 1925, by virtue of their allegations of actual insolvency of the Belton bank.
“The petition discloses two issues of fact for determination in adjudicating the questions presented, namely: First, whether appellants’ claims represent deposits made prior to February 7, 1925; and, second, whether the Belton bank was insolvent as alleged pri- or to that date. But for these fact issues, we are of the view that all questions presented for adjudication can properly be determined in a mandamus proceeding in the Supreme-Court, and that but for these fact issues the district court would be without jurisdiction.
“Because of the public importance of the controversy thus raised, and the evident necessity of having a judicial determination thereof by the Supreme Court as soon as practicable, and because.we are advised that the Supreme Court now has before it mandamus proceedings seeking a distribution of the entire guaranty fund, we deem it advisable-to certify for your decision the following, questions:
“1. Is that portion of the guaranty fund, still in the treasury which was contributed prior to February 7, 1925, by banks that have-subsequently (but prior to January 7, 1927, when the Belton -bank was c-losed by the-Commissioner) changed from the guaranty fund system to the bond security system, a-trust fund for the benefit of all secured depositors whose deposits ante-date the act of February 7, 1925, in the sense that such fund could not be withdrawn by change of plan under the act of February 7, 1925? In other-words, have appellants as holders of secured deposits in the Belton bank ante-dating February 7, 1925, a vested right in the entire fund in the treasury on that date, which vested right could not be affected or impaired by the act of February 7, 1925?
“2. If Question 1 is answered in the negative, then did the fact of actual insolvency of the Belton bank prior to February 7, 1925, create in appellants, as secured depositors prior to that date, such vested right?”

The questions certified are answered in the decisions of Lacy v. State Banking Board. (Tex. Civ. App.) 11 S.W.(2d) 496, and Lydick v. State Banking Board (Tex. Com. App.) 11 S.W.(2d) 505. The opinion of Presiding Judge Harvey on rehearing in the Lydick Case (Tex. Com. App.) 12 S.W.(2d) 954, which has been written since the above certificate was made, renders it unnecessary for us to discuss the questions, and we merely recommend that both questions be answered “No.”

OUREiTON, C. J. The opinion of the Commission of Appeals answering the certified questions is! adopted and ordered certified.


text:
    HUTCHISON v. HAMILTON et al.
    (No. 1182-5176.)
    Commission of Appeals of Texas, Section A.
    March 13, 1929.
    J. A. Wheat, of Seymour, and H. B. Penix and W. H. Penix, both of Wichita Palls, for plaintiff in error.
    James A. Stephens and D. J. Brookreson, both of Benjamin, and J. S. Kendall, of Mun-day, for defendants in error.
   CRITZ, J.

This suit was originally instituted in the district court of Knox county, Tex., by W. A. Hutchison, plaintiff in error, against Robert 'Hamilton et al., defendants in error, on three nonnegotiable promissory notes fully described in the petition. The petition declares on these notes with interest and attorney’s fees as therein provided.

The pleadings and evidence show conclusively that these notes were executed as part consideration for the following contract:

“The State of Texas, County of Dawson.
“This contract made and entered into by and between W. A. Hutchison, party of the first part, of Midland County, Texas, and Burnett, Spikes and Hamilton, parties of the second part of Knox County, Texas; witnesseth: Said party of the first part agrees to pasture for said parties of the second part about 2000 head of cattle on what is known as the Cedar Lake pasture, including two one section pasture, containing 59 sections, located in Gaines County, Texas, 12 miles southeast of Seagraves, at Station on the Santa Fé Railroad.
“Party of the first part agrees that no other cattle shall be put in this pasture except second parties cattle and that said second parties are to have exclusive control of same.
/‘Said first party is to receive second parties cattle at Seagraves, and take them to pasture, and first party binds himself to keep said fence around said pasture, and to keep up waterings in good shape on same, and in case engines are needed to keep plenty of water on hand, first party is to furnish and run said engines.
“First party agrees to put a well in pumping shape that is now not used, located about one and one half miles southeast of Daisy Mills.
“First party agrees to deliver said cattle back to Seagraves at the expiration of this contract, or in equal distance in any other direction, but first party is not responsible for said cattle, but agrees to use the same diligence in taking care of cattle, as far as water and grass is concerned, as if they were his own.
“Party of the first part agrees to remove all stock that is now ,on said pasture as quick as he can get help to remove same. Party of the second part agrees to pay party of the first part the total consideration of Eighteen Thousand Dollars, to be paid as follows: Six Thousand Dollars .cash, the receipt of which is hereby acknowledged, and two notes for $6000.00 each one due the first day of January, 1919, and the other due the first day of May, 1919, but it is agreed- if second parties should remove said cattle from said pasture, that it will mature said notes, and they shall become due and payable on demand, said notes to draw 8 per cent interest after maturity.
“This-contract made and signed in duplicate either of which may be used as the original.
' “Witness our hands this 22nd day of August, 1918.”

Hamilton et al. answered in the trial court by general denial, and further pleaded failure of consideration for the notes as follows:

“ * * * The defendants say that plaintiff should not recover herein for the reason that the consideration of the notes herein sued on, if the notes mentioned in the plaintiffs said petition are notes executed by the defendants in his fav-or, has wholly and totally failed in this, to-wit:
“The only notes ever executed and delivered by the defendants to the plaintiff were for the lease of a certain pasture situated in Gaines County, Texas, for grazing purposes, which was represented to the defendants by the plaintiff as containing 61 sections of land, for which the defendants were to pay the plaintiff an aggregate of Eighteen Thousand Dollars, of which sum ,of Six Thousand Dollars was paid in cash, and six notes, each for Two Thousand Dollars, bearing interest from maturity until paid at the rate of eight per cent, three of which were to mature on January 1st, 1919, and the other three to mature May 1st, 1919;
“That after paying the said Six Thousand Dollars cash,' and said first maturing three notes, aggregating Six Thousand Dollars, the defendants discovered that the lands delivered to them by the plaintiff in consideration of such agreed sum of Eighteen Thousand Dollars, was short more than one third, and that there was in truth and in fact less than Forty Sections .of such lands, and that they had already paid the plaintiff said sum of Twelve Thousand Dollars, which was more than the prorata part of such sum, for the number of sections actually delivered to them; ■
“That in addition to the shortage in such number of sections of land, and the amount of grazing thereon, the plaintiff had failed and refused to remove cattle and livestock that were in said pasture, as he had obligated and bound himself to do, but continued to run a great number of livestock therein, amounting at no time to less than 109 head, thereby consuming a large part of the grass thereon, and thereby lessening the value of same;
“That as soon as such shortage of acreage was discovered by the defendants, they repudiated the remaining three unpaid notes, and advised the plaintiff that they would not pay same, for the reason that they had already paid the plaintiff more than he was justly entitled to receive for same.
“Wherefore, the defendants pray that plaintiff take nothing by his suib herein, and that they go hence without day, and recover all costs in this behalf incurred.”

After pleading failure of consideration in the language above set .out, the defendants in error pleaded fraud, and their petition in this particular is in part as follows: “Further answering herein, the defendants say that the plaintiff ought not to recover herein for the reason that he procured the execution of the notes herein by fraud, and said notes were tainted with fraud from their execution, and should not bind the defendants, for the reason that

After the above follows various alleged acts of fraud, and damages resulting therefrom not necessary to be set out here.

The part of the judgment of the trial court applicable to a decision of this appeal is as follows:

“Thereupon came on to be heard the plaintiffs general demurrer to the defendants first amended original answer, and his special exceptions and the court having heard said exceptions, said special exceptions of! the plaintiff were overruled, to which the plaintiff duly excepted, the general exception of plaintiff was sustained to all of that part of the defendants said answer, except as to that part of said answer setting up a failure of consideration by reason of the shortage or deficiency in acreage, and that part of the defendants answer was held to be a good plea, to which action of the Court, Plaintiff then and there in open Court excepted.
“Thereupon the Court after hearing the evidence and argument of counsel is of the opinion that the plaintiff is not entitled to recover upon the notes as sued upon and that the defendants, should prevail upon their plea of failure of consideration, of the notes sued upon, It is therefore ordered decreed and adjudged by the Court that the plaintiff take nothing by his said suit, and that the defendant go hence without day and recover of and from the plaintiff and his bondsmen, all costs in this behalf expended.”

An examination of the judgment of the trial court shows that he sustained the general demurrer of the plaintiff to all of the answer of the defendants, “except that part of said answer setting up a failure of consideration. by reason of the shortage or. deficiency in acreage, and that part of the defend-ants’ answer was held to be a good plea.”

The defendants in error have filed no eross-assignments, and therefore the correctness of the ruling of the court in sustaining the general demurrer in part, that is, to all ef the answer except that part of same which sets up failure of consideration by reason of shortage .of acreage, etc., is not before us to pass upon. Wa will say in passing, however, that a general demurrer is an exception to a pleading that no cause of action or matter of defense is shown thereby. Lambeth v. Turner, 1 Tex. 364; Hudson v. Wheeler, 34 Tex. 356; Robinson v. Davenport, 40 Tex. 334; George v. Vaughan, 55 Tex. 329, and Carson v. Cock, 50 Tex. 325. We will further remark that we are not apprised in the record on what theory the trial court sustained the general demurrer as to all of the answer, except that part setting up failure of consideration on account of shortage in acreage.

We take the judgment and the recitals therein, hereinabove mentioned, as a direct and concrete statement by the trial court, in the judgment itself, that the one and only reason for a judgment in favor of the defendants was the bare fact that there was a shortage in acreage, and that he did not consider or find as to any other matters of defense involved in the pleading or evidence. No other conclusion can be drawn from the above recital in the judgment.

It is contended by the plaintiffs in error that the contract in question is not one of lease of'59 sections of land, but is a contract to pasture about 2,000 head of cattle. It is contended by the defendants in error that the contract is one of lease of 59 sections of land. We are of the opinion that the contract is a pasturage, and not a lease contract; but we are further of the opinion that in view of the terms, and express purposes of the contract, it is absolutely immaterial whether said contract be one of lease, or of pasturage. If the contract be construed to be a pasturage contract, its purposes are expressly limited to about 2,000 head of cattle. If the contract be construed to be a pasturage lease, it is certainly not an unlimited pasturage lease; but its purposes are expressly stated in the contract as limited to pasturage for about 2,000 head of cattle. In other words, if the contract be construed as either one of pasturage or of lease, its sole and only purpose is limited to the pasturage of about 2,000 head of cattle. Under either construction, the mere fact that there is a shortage in acreage would not constitute a defense to. the notes sued on; but, under either theory, it would be necessary for the defendants to go further and show injury, or damage, on account of such shortage.

Inasmuch as the trial court has expressly based his judgment on the shortage of acreage only, without regard to the question of injury, the judgment is erroneous, and should be reversed.

However, if we indulge the presumption in favor of the judgment of the trial court, that it is based on the shortage in acreage, together with the injury, or damages resulting therefrom, a presumption we do not think such judgment justifies, we are still of the opinion that the judgment should be reversed for the reason that there is no evidence in the record that we have been able to find, and none has been pointed out to us, to show the amount of the damages, or to show that the defendants have been injured on damaged by the shortage in acreage to an amount equal to the unpaid portion of said notes.

For the reasons stated, we recommend that the judgments of the Court of Civil Appeals and of the district court be reversed, and the cause remanded to the district court for a new trial.

CURETON, C. J. Judgments of the Court of Civil Appeals and district court both reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.