author: MONTEITH, Chief Justice.

text:
    KEEN v. TEXAS UNEMPLOYMENT COMPENSATION COMMISSION.
    No. 11111.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 13, 1941.
    H. C. Keen, of Beaumont, for appellant.
    T. L. Foster, of Dallas, and Joiner Cartwright, John B. Thomas, and Chas. F. Hei-drick, all of Beaumont, for Sun Oil Co. as amicus curia.
    Gerald C. Mann, Atty. Gen. of Texas, and Glenn R. Lewis, Morris Hodges, and Lee Shoptaw, Asst. Attys. Gen., for appel-lee.
   MONTEITH, Chief Justice.

This is an appeal from a judgment of the County Court of Matagorda County denying appellant, George R. Keen, Jr., unemployment benefits under the Texas Unemployment Compensation Act.

The trial was before the court upon the following agreed statement of facts as an agreed case under Article 2177, Vernon’s Annotated Civil Statutes.

“1. Plaintifif is George R. Keen, Jr., a resident of Matagorda County, Texas. The defendant is the Texas Unemployment Compensation Commission, of which Orville S. Carpenter, C. R. Miller and Patrick D. Moreland are members. That proper service has been had on all parties.
“That this suit is an appeal under Article 5221b — 4, of the Revised Statutes of the State of Texas [Vernon’s Ann.Civ. St. art. 5221b — 4], from a final order of the Texas Unemployment Compensation, Commission denying payment of benefits to the plaintiff herein, who was Claimant below, and involved a claim under the Texas Unemployment Laws — Article 5221b —1 et seq.
“3. Claimant, George R. Keen, Jr., resigned his position with an oil company at Beaumont, Texas, in September, 1938, to immediately enter the University of Texas and has been a full time student in that institution working for his degree since that time; was said student on July 12, 1939, when he filed his initial claim and is still enrolled as a full time student working for his degree. He has had no employment since entering the University. His actual class attendance is from 9 A.M. to 1 P.M., and he is available for work after 1 P.M. and before 9 A.M.; that the time required for study outside the four class work hours would not interfere with doing eight hours work between 1 P.M. and 9 A.M. He is not available for any employment that required his services between 9 A.M. and 1 P.M.
“4. Claimant was denied benefits because he was a full time student in the University of Texas and not available for work. No other disqualification for benefits is involved herein.
“5. In the event Claimant is eligible to receive benefits from the Commission he would be entitled to such sum as is provided for by law, to wit, $158.50 payable in biweekly installments of $30 each.
“6. The Claimant has satisfied each and every requirement so far as procedure is concerned under the Act and has made the various claims and given the proper .notices, filed suit within the time required, and this ■cause is properly before this Court so far as matters of'procedure and other formal matters are concerned.”

The trial court held in his judgment that appellant was not available for work under the requirements of the Unemployment Compensation Act and denied recovery thereunder.

This case involves the construction of Article 5221b — 2, Vernon’s Annotated Civil Statutes of Texas, and presents the question of whether, under above facts, appellant, who voluntarily resigned from his employment to enter school and who was admittedly not available for any work which would interfere with his school work, was entitled to the benefits or available for work under the provisions of the Texas Unemployment Compensation Act.

Although the Unemployment Compensation Acts of practically every state in the union, as well as that of Great Britain, are identical with the provision of said Article 5221b — 2 "in that they provide that an unemployed person must be “available for work” in order to be eligible for benefits thereunder, we are informed by both parties to this appeal that they have been unable to find a reported case in which the question raised herein is involved.

The parts' of said Article 5221b — 2, Vernon’s Annotated Civil Statutes, material to this appeal read:

“An unemployed individual shall be eligible to receive benefits with respect to any benefit period only if the Commission finds that:
******
“(c) He is able to work, and is available for work.”

The Texas Unemployment Compensation Commission found, under above facts, that appellant was not available for work under the requirements of the Compensation Act and denied payments of benefits thereunder.

The Texas Unemployment Compensation Act indicates a legislative intent to provide a method of compensation for persons who are unemployed through no fault of their own. There is nothing in the subject matter of the Act, however, which would justify the presumption that the legislature intended to thereby make available for compensation benefits all persons who voluntarily resign from their employment to enter other occupations, where the conditions are such as to render them unavailable for work and to prevent them from accepting any offer of suitable employment.

In the instant case, it is admitted that appellant voluntarily resigned a position with an oil company in Beaumont, Texas, to attend the University of Texas, and that he will refuse to accept any employment between the hours of 9 A.M. and 1 P.M., for the reason that such employment will interfere with his school work. He is therefore not available for full time employment similar to that in which he was previously engaged.

The Unemployment Compensation Commission and the trial court were justified in finding, under above facts, that appellant was not available for work within the meaning of said Article 5221b — 2. The judgment of the trial court will be, therefore, in all things affirmed.

Affirmed.


source: Caselaw Access Project

author: STOKES, Justice.

license: Public Domain

text:
    DE WITT v. KENT COUNTY et al.
    No. 5206.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 14, 1940.
    Rehearing Denied Feb. 24, 1941.

      Roberts & O’Connor, of Breckenridge, for appellant.
    Glover Engledow, of Jayton, for appel-lees.
   STOKES, Justice.

This suit was filed by appellant against appellees, Kent County, its county judge and commissioners, the county treasurer and tax collector, to recover upon two warrants issued by the commissioners’ court on October 14, 1929,'in the sum of $500 each, together with. 6% interest and 10% attorney’s fees as provided in the warrants. These warrants were Nos. 5 and 6 of a series of thirteen warrants issued in part payment for a- tractor and road grader purchased by the commissioners’ court from the Lone Star Road Machinery Company and the warrants were purchased by appellant about the month of March, 1932. Appellees pleaded breach of warranty and failure of consideration, alleging that the representatives of the machinery company, at the time of purchasing the machinery, represented and warranted to the commissioners’ court that it would economically and properly perform any and all work desired or required in building and maintaining the roads of the county, and that the tractor had wholly failed in these respects. In reply to these defensive pleas appellant pleaded that the appellees were estopped from asserting the defenses pleaded by them by virtue of an order passed and entered by the commissioners’ court to the effect that the bid of the Lone Star Road Machinery Company, being the lowest and best bid received, was accepted, the machinery purchased, and directing the issuance of the. warrants in payment therefor. The order further provided that the contract was ratified and approved and declared to be the contract of the commissioners’ court and of Kent County; that the machinery company had furnished the machinery in accordance with the terms of its contract and it had been inspected by the court and found in all respects satisfactory, well worth the price agreed upon, and that the county had received full value and consideration for the price to be paid therefor. He further pleaded estoppel by virtue of recitals in the warrants to the effect that all acts, conditions and things required to be done precedent to, and in the issuance of, the warrants had been properly done, happened and performed in regular and due time, form and manner as required by law. Appellant further pleaded res adjudicata, based upon the order of the commissioners’ court; waiver by waiting more than four years before repudiating the contract, and the two and •four years statutes of limitation against the defenses pleaded by appellees.

The case was submitted to a jury-upon special issues and the jury found (1) that the representatives of the machinery company represented to the commissioners’ court that the tractor would economically and properly perform any and all work desired or required in building or maintaining the roads of the county. (2) That, in executing the contract for the purchase of the machinery, the commissioners’ court relied upon such representations. (3) That the tractor would not economically and properly perform the work desired or required in building and maintaining the roads. (4) That the county received no benefits in the purchase and use of the tractor, and (5) that the tractor, at the time and place of its delivery to the county, was of the value of $900. Special issue No. 4 was submitted to the jury but afterwards withdrawn and by agreement, submitted to the court who -found that the commissioners in the fall of 1929 first discovered and determined among themselves that the tractor was defective and would not properly do the work for which it had been purchased.

At the close of the testimony appellant presented and urged a motion for a peremptory instruction in his favor, which was overruled, and after the verdict was returned he presented and urged a motion for judgment in his favor non obstante vere-dicto, which was likewise overruled, and the court entered judgment in favor of ap-pellees to the effect that appellant take nothing by his suit and pay the costs of court.

Appellant duly excepted to the judgment, gave notice of appeal, and presents the case in this court upon a large number of assignments of error and propositions of law which we think may be reduced to four general contentions as follbws: First, that the court erred in overruling his motions for a peremptory instruction and for judgment non obstante veredicto. Secondly, that the matters in dispute had been adjudicated and settled by the order entered by the commissioners’ court when it purchased the machinery and, therefore, his plea of res adjudicata should have been sustained. Thirdly, that appellees had waived their right to defend his cause of action by waiting more than four years to repudiate the contract and, fourthly, that under its pleas of two and four years limitation, Vernon’s Ann.Civ.St. arts. 5526, 5527, ' appellees’ rights under their defensive pleas were barred and they were not entitled to urge the same.

The. record shows that the commissioners’ court agreed to pay a total consideration of $8,368 for the tractor and grader, the agreed price of the tractor being $6,193 and the price of the grader being $2,175. In payment for the machinery the county delivered to the road machinery company some old road machinery owned by it of the agreed value of $1,500 and issued thirteen warrants, the first being in the sum of $868, and the balance of the series in the sum of $500 each. Appellant purchased from the machinery company warrants Nos. 4, 5 and 6, and the county paid the first four warrants, including the interest, when they became due. On March 28, 1934, the county attorney of Kent Counr ty notified appellant that the commissioners’ court had ordered the county treasurer not to pay the other warrants of the series; that the tractor had failed to perform the work as represented and that he had been instructed to defend any suit that may be filed thereon.

Appellant’s first contention is that appel-lees were estopped to urge their defenses against his suit upon the warrants because he was an innocent purchaser thereof, paid value for the same, relying upon the order entered by the commissioners’ court and the recitals in the warrants, and was without any notice of the contentions of the county that the tractor was not as represented by the machinery company.

This is the second appeal in this case, the opinion on the former appeal. being reported in Tex.Civ.App., 109 S.W.2d 348. The first and second contentions presented in this appeal by appellant were disposed of by us upon the former appeal in which we held that neither the recitals in the order of the commissioners’ court to the effect that the company had furnished the machinery, that it had been inspected by the members of the court and accepted by them as satisfactory and worth the price agreed upon, nor the recitations in the warrants to the effect that all acts, conditions and things required to be done precedent to, and in the issuance of, the warrants had been properly done, happened and performed in regular and due time, form and manner as required by law, constituted either res adjudicata or estoppel. In view of appellant’s insistence in this appeal upon these principles we will say further, however, that the law is well established in this State by a long line of decisions that warrants issued by a municipal corporation such as those here involved are not negotiable instruments in any respect except that title to them may be transferred by endorsement and delivery. City of Belton v. Harris Trust & Savings Bank, Tex. Civ.App., 273 S.W. 914; Lasater v. Lopez, 110 Tex. 179, 186, 217 S.W. 373. Such warrants impose no obligation on a municipal corporation if it was not liable for the debt evidenced by them. No act of .negligence or fraudulent conduct of any agent of such municipal corporation in connection with the issuance of such warrants will bind the corporation to any liability by way of estoppel or otherwise if the corporation receives no benefit from the transaction. Nat. Surety Co. v. State Trust & Savings Co., 119 Tex. 353, 29 S.W.2d 1027; City of San Angelo v. Deutsch, 126 Tex. 532, 91 S.W.2d 308; 2nd Dillon Mun. Corp., par. 857. The law charges the holder of such warrants, whoever he may be, whether the original payee or a purchaser for value, with notice of infirmities arising by acts and conduct of the payee which discharge the legal liability of the municipal corporation issuing them regardless of whether such holder has actual knowledge thereof or not.

Appellant'cites us to the case of Payne v. First Nat. Bank, Tex.Com.App., 291 S.W. 209, and other cases of like import, as authority for his contention here. In that case the city issued warrants to one Neil under a purported contract in which he agreed to construct a bridge for the city. The opinion reveals that Neil did not build the bridge nor furnish any material or labor for its construction, and it was never intended that he should do so. The city built its own bridge and the warrants were issued in order that Neil may dispose of them and deliver the proceeds to the city. The court held the warrants were illegally issued but that the city got the bridge and was es-topped from denying liability on the warrants. In many other cases where it was shown that the municipal corporation received full value for warrants illegally issued the courts have held it was estopped to defend against the warrants on the ground that-they were issued through illegal methods. While the courts have often loosely used the term “estoppel” as a basis for such holding, the real basis for it is that an implied contract arose under which the municipal corporation was obligated to pay the reasonable value for that which it received. City of Dublin v. Thornton & Co., Tex.Civ.App., 60 S.W.2d 302; Sluder v. City of San Antonio, Tex.Com.App., 2 S.W.2d 841; City of San Antonio v. French, 80 Tex. 575, 16 S.W. 440, 26 Am. St.Rep. 763.

We have been cited to no case, nor have we found any, in which it has been held that a municipal corporation is bound by the doctrine of estoppel or otherwise upon non-negotiable warrants when the corporation received no benefit under them or the consideration for which they were given had failed. It is an indispensable clement of such estoppel as is here relied upon by appellant, if it may properly be termed such when applied to non-negotiable warrants, that benefits have been received by the corporation issuing them. If no benefits have been received therefrom or the consideration has failed, the city, county or other municipal corporation issuing them cannot be estopped to assert failure of consideration, fraud or invalidity of the warrants and is under no implied obligation to pay them. City of Del Rio v. Lowe, Tex.Civ.App., 111 S.W.2d 1208, and authorities there cited; Nacogdoches County v. Lafferty, Tex.Com.App., 61 S.W.2d 994; City of Dublin v. Thornton & Co., Tex.Civ.App., 60 S.W.2d 302.

We find no merit in the contention of appellant regarding his plea of estoppel and his assignments of error in respect thereto will be overruled.

The next contention made by appellant is that, by entering the order of September 9, 1929, the commissioners’ court of Kent County adjudicated the questions presented by its answer in this case and, therefore, they now constitute res adjudicata. This contention is untenable for the reason that the record does not show that the question of whether or not the machinery company from whom the road machinery was purchased had performed its contract was before the court at the time such order was entered, nor could it have been a subject of adjudication at that time. The machinery had just been purchased and the record shows that the incidents which proved it was not of the quality represented by the machinery company happened after the order was entered. This contention will likewise be overruled. Nacogdoches County v. Lafferty, supra.

The next contention presented by appellant is that of waiver. He contends that appellees having waited for more than four years before formally repudiating the contract under which it purchased the road machinery, it waived any defenses it may have had in respect to the warrants sued upon and should not now be permitted to rely upon them. We do not find the elements of waiver in any of the transactions involved. The evidence shows that the tractor began failing in the proper performance of its work shortly after it was purchased. It broke down a number of times and the machinery company furnished parts for its repair. This covered a space of at least several months and, finally, the county ceased altogether any effort to use it. Waiver, according to common acceptation, is an intentional relinquishment of a right that is known to the person possessing it. True, it may consist of, or be evidenced by, conduct which warrants the inference of relinquishment, but it is a voluntary act nevertheless and the conduct must be such as to imply a voluntary election consciously and purposely to dispense with or forego a right. We find nothing in the record before us which indicates any such intention on the part of appellees and we cannot agree with appellant on this contention. The Practorians v. Strickland, Tex.Com.App., 66 S.W.2d 686; Biggs & Co. v. Lokey, Tex.Civ.App., 62 S.W.2d 665; Missouri, K. & T. Ry. Co. v. Hendricks, 49 Tex.Civ.App. 314, 108 S.W. 745.

The final contention presented by appellant is that the defenses asserted by appellees are barred by the statute of limitations. Their defenses were, in effect, that the consideration for which the warrants sued upon were issued had failed and the warranty given by the machinery com-pany had been breached. They contended that, by reason of facts alleged by them constituting such failure and breach, the county was not liable on the warrants. These were intrinsically and purely of a defensive nature and could operate only to negative the rights asserted by appellant to recover upon the warrants. The rule of law is that where the defensive matter interposed by a defendant constitutes an independent cause of action and does not go to the foundation of the plaintiff's claim, it cannot operate as a reduction of the demand except by way of set-off or counterclaim and the plaintiff may avoid them under a proper plea of limitation. Where the subject matter of the defense is purely defensive in its nature, however, and operates merely as a negation of the demand asserted by the plaintiff, the statute of limitations does not apply. Nelson v. San Antonio Traction Co., 107 Tex. 180, 175 S.W. 434; Mason v. Peterson, Tex.Com.App., 250 S. W. 142. The record shows without dispute that the county had delivered to the machinery company used road machinery owned by it of the agreed value of $1,500, and that it had paid the first four warrants and interest thereon amounting in the aggregate to $4,213 on the contract for the road grader and tractor for which the warrants were given. The price of the grader was $2,175 and no question was raised as to its being deficient in any respect. The jury found that the tractor was of the value of $900 when delivered to appellees. This makes a total of $3,075 which, under the record in this case, is the amount of consideration or property which Kent County received for the warrants and its old machinery. It had paid out far more than this amount and the conclusion is inescapable that it had received no benefits whatever for the balance paid by it nor for the amounts represented by the two warrants sued upon by appellant. The case is governed, therefore, by the law as announced in the authorities which we have cited in support of our conclusions.

What we have said demonstrates, we think, that the appellee, Kent County, was not bound upon the warrants sued upon and no error was committed by the court in respect to the matters complained of in the assignments of error presented by appellant. The judgment of the court below will be affirmed.


author: FOLLEY, Justice.

text:
    VERNER et al. v. TOMLINSON.
    No. 5260.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 10, 1941.
    T. L. Price and Joe S. Moss, both of Post, and Edgar E. Payne, of Levelland, for appellants.
    Carl E. Ratliff, of Levelland, and Brad'ley & Wilson, of Lubbock, for appellee.
   FOLLEY, Justice.

The appellant W. F. Verner, joined by his brother as his agent and by D. Makey, alleged to have been his tenant for the year 1940, filed this suit against the ap-pellee, J. F. Tomlinson, in the nature of an. action in trespass to try title to 160 acres of land in Hockley County, Texas, and also for possession thereof and damages to the premises. The appellee, who for several years prior to 1940 had been tenant on the land, disclaimed as to the title to the land but alleged an oral contract with W. F. Verner for the rental of the land for the year 1940. The rents and revenues from the land for 1940 or other years were not in controversy.

Upon the trial it was agreed by all the parties that W. F. Verner was the owner of the fee-simple title to the land, and that the right of possession for 1940 and damages sought by the appellant W. F. Verner were the only issues in the case. The cause was submitted to a jury upon a single issue which inquired if W. F. Ver-ner rented the land to J. F. Tomlinson for the year 1940. This issue was answered in the affirmative. The appellants requested no issues relative to damages to the premises.

Upon the verdict of the jury the court rendered judgment for the appellant W. F. Verner for the title to the land, but decreed that the appellee was entitled to the possession thereof for farming purposes for the year 1940. All other relief prayed for by the parties was expressly denied by the court. From that portion of the judgment adjudging in appellee’s favor the possession of the land for 1940 the appellants have prosecuted this appeal under a supersedeas bond. From the remainder of the judgment there is no appeal by any of the parties.

Under the present record the only matter before us is that of possession of the land for the year 1940. The year 1940 having expired it is apparent the matter in controversy in this case has become moot and appellate courts will not review controversies which have for any reason ceased to exist. State v. Society for Friendless Children, 130 Tex. 533, 111 S.W.2d 1075; First Coleman Nat. Bank of Coleman v. Whitfield et ux., Tex.Civ.App., 69 S.W.2d 819; Hansen et al. v. Bacher, Tex.Com.App., 299 S.W. 225; Danciger Oil & Refining Co. of Texas v. Railroad Commission of Texas et al., 122 Tex. 243, 56 S.W.2d 1075; McWhorter v. Northcut, Mayor, et al., 94 Tex. 86, 58 S.W. 720; Robinson, Sheriff v. State ex rel. Eubank, 87 Tex. 562, 29 S.W. 649; Id., Tex.Sup., 29 S.W. 1063; Lacoste v. Duffy, 49 Tex. 767, 30 Am.Rep. 122; Gordon v. State, 47 Tex. 208; Dallas Joint Stock Land Bank et al. v. Dallas County Levee Imp. Dist. No. 9 et al., Tex.Civ.App., 263 S.W. 1103; Teer et al. v. McGann et al., Tex.Civ.App., 65 S.W.2d 362.

The issue before us being moot, and in order to remove all question as to the effect of the judgment for possession as res adjudicata in any future controversy which may arise, the proper practice requires that we reverse that portion of the trial court’s judgment relative to the possession of the land for 1940 and to dismiss such cause. In so doing, however, we do not want to be understood as disturbing in any. manner that portion of the judgment in favor of W. F. Verner in regard to the title.

That part of the trial court’s judgment as to the possession of the land for the year 1940 is reversed and dismissed.


author: CODY, Justice.

text:
    WEISZ v. HORTON et al.
    No. 11078.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 6, 1941.
    Rehearing Denied Feb. 27, 1941.
    Russel A. Bonham and Mary Nan Bon-ham, both of Houston, for appellant.
    Jno. O. Douglas, of Houston, for appel-lees.
   CODY, Justice.

It is appellant’s main contention on this appeal that the trial court did not enter judgment in conformity with the jury’s verdict on special issues.. It is his further contention that such error is fundamental in character, and is apparent upon the face of the record. The court below entered judgment for appellant and against appellee for the principal sum of $294.02 upon the verdict aforesaid and upon the court’s own independent findings, but appellant claims that if the Court had entered judgment in conformity with the verdict that judgment would have been entered in his favor in the sum of $539.02; so appellant seeks not a reversal, but a reformation of the judgment of the court below.

Appellant, who was plaintiff, pled in substance: That about August 1, 1938, appellee employed him as an agent to sell certain household commodities upon a contract basis on a house to house solicitation. That the merchandise was to be consigned to him by appellee at its retail price, “and his account credited each time a sale was made and the lease contract was turned in and accepted by the defendant.” That he was to receive a commission of 25%. Appellant pled a tabulated statement of the value of the merchandise which he alleged he sold each week up until November 5, 1938, together with the amounts of commission claimed thereon. The total value of the merchandise which he alleged he thus sold was $7,618.25. Appellant further alleged that “of the total contracts sold by this plaintiff $800 thereof were not accepted by the defendant, but were returned to plaintiff * * * ”; and appellant alleged that his net sales totalled $6,818.25, and that the commissions thereon earned amounted to $1,704.53. Appellant alleged that the only record he made of the sales consisted of the total value of the merchandise sold by him per week, but that appellee had a complete record or set of books covering each sale in detail, showing the articles sold, the dates when sold, the names of the purchasers, etc. Appellant then pled by tabulation the sums of money which had been paid to him by ap-pellee, together with the dates each payment was made. And the totals of such payments were alleged to be $454.13; and appellant sued for $1,250.

The allegations of appellee’s answer were in substance: That he employed appellant as his agent to sell merchandise on August 5, 1938, but did not agree to pay him 25% commission. That appellant worked for him until November 5, 1938, and sold approximately $4,700 worth of merchandise. That appellee has a complete and accurate set of books as alleged by appellant, and that, as appears therefrom, appellee owes appellant only the sum of $29.57.

The court submitted the case to the jury upon two special issues, and the jury found: (1) That the total sales made by appellant during the time he worked for appellee was $7,600, and (2) That the agreed percentage that appellee was to pay appellant for compensation on sales was 15%.

The court entered the' following judgment, omitting formal parts:

“That, the motion of the plaintiff for judgment upon the findings of the jury, in the above styled and numbered cause came on for hearing on this the 22nd day of December, 1939;
“That, upon due consideration of such motion, after reviewing transcript of portions of the evidence offered at the trial of the cause, and after hearing the remarks of attorneys for both the plaintiff and the defendant, the Court entered judgment for the plaintiff in the sum of $294.02.
“It is therefore, adjudged, and decreed by the court that the plaintiff, Adolph Weisz, do have and recover of the defendant, D. D. Horton, doing business as Horton-Luse Company, the sum of $294.02, and the costs of suit, for which execution may issue; to which judgment the plaintiff, through his attorney excepted, and gave notice of appeal to the court of Civil Appeals of the First Supreme Judicial District at Galveston, Texas.”

The foregoing statement, with the exception of appellant’s motion for judgment upon the form of judgment thereto attached, presents the “record” in this case upon which we are authorized to consider appellant’s assignment of fundamental error “apparent upon the face of the record.”

Appellant makes no contention that this is not a proper case for the court to exercise its function of making independent findings of fact from the evidence before him in order to supplement the jury’s verdict. Indeed the appellant sought in his motion for judgment to have the court make independent findings based upon appellant’s “admissions” and enter judgment on such independent findings for appellant against appellee for $539.02. Appellant’s position is. that there was no evidence legally before the court to support his independent findings on which he entered judgment for appellant for only the sum of $294.02.

It would be a formidable task for us to determine whether there was any evidence before the court to sustain his independent findings. It would involve reading the entire statement of facts, and we have no authority to search the statement of facts to see if there is any such evidence upon a mere assignment of fundamental error apparent upon the face of the record. To relieve us of doing this appellant refers in his brief to the “off the record” explanation by the court of how he arrived at the judgment which was entered, and as to the- evidence on which he based his independent findings. We do not understand that “off the record” statements by the trial court are available here for holding that the trial court committed fundamental error “apparent upon the face of the record”. Certainly the explanation given by the trial court of how he arrived at the judgment which he entered forms no part, at least eo nomine, of the “record”. This explanation of the trial court is arranged in appellee’s brief in convenient form, and, with certain elaborations, is as follows:

Total contracts signed by customers . $7600.00
Less “returns”. 1645.79
$5954.21
15% of $5954.21. 891.78
Cash pd by appellee to appellant. $479.13
Cash collected by appellant on sales. 19.03
Goods charged back.... 189.60
Constable Fees. 10.00
Due appellant. 194.02 ''
$ 891.78

To the $194.02 which the court thus found appellee owed appellant there was added $100 by the court.

Appellee has raised no objection to the addition of this $100 item against him; so the occasion for such addition is not here material.

From the foregoing tabulation it appears that the court considered it necessary to deduct the item of $1,645.79 designated “returns” from the jury’s answer to special issue No. 1 'in order to determine the sum upon which appellant’s commission ought to be calculated. From the pleadings, from the draft of judgment which appellant moved the Court to enter, and from the statements of the parties in their briefs, we conclude that the term “returns” is used to designate the unpaid portion of the purchase price due on an article which ap-pellee has sold at the time the contract is cancelled out with a purchaser. It seems that appellee’s business is a credit one, and a sale appears to be effected .in this manner: The salesman has the customer to sign a so-called “lease-contract”, under which he agrees to pay “rentals” at stipulated intervals until the amount of the purchase price has been paid, whereupon the “lease-contract” becomes a sale. But if the customer quit paying, the “lease-con-tráct” became known as a “return”, and the salesman was not entitled to any commission on the unpaid purchase price of the article which was returned to appellee.

Appellant has made no contention that there was not actual evidence before the court to warrant the finding that appellee had proved there had been “returns” on articles sold by appellant to the extent of $1,645.79. He contends that, in legal contemplation, there was no such evidence before the Court because there were no pleadings which authorized its admission. Appellant’s contention is based on the view that these “returns” are set-offs or counterclaims which appellee is seeking to avail himself of; and, of course, offsets or counterclaims must be pled with particularity. to authorize proof thereof. R.S. Article 2014. This is a mistaken view. These “returns” are not choses in action upon which appellee could recover in an independent, suit against appellant. And it is elementary that a set-off or counterclaim “is, or occupies the same position as, an independent suit by the defendant in the original suit against the plaintiff.” 38 Tex.Jur., 293, 294, and authorities there cited. Evidence of them was obviously offered to show what were the net payments received by appellee on the “lease-contracts” obtained by appellant, and thus fix the sum on which appellant’s commission should be calculated.

Now it will be noted from the above tabulation that the court, after finding that appellant had earned $891.78 in commissions, does offset there against payments which appellant had made appellee: cash collected by appellant belonging to ap-pellee ; goods charged back; and constable fees. The trial court very correctly credited appellee with the payments of commissions which appellant admitted having received. But it may very well be that, as appellee had not pled the three other items which the court set off against the commissions appellant was found entitled to recover, that there was no proper evidence before the court to warrant such offsets. And had appellant assigned error thereto in such a way as to bring the error within our jurisdiction, it would be our duty to rule thereon. But appellant has merely invoked our jurisdiction to pass upon fundamental error apparent upon the face of the record. We are without jurisdiction to rule on errors, other than fundamental errors apparent upon the face of the record, unless they are regularly assigned. This is a salutary rule. Courts of record must act from the record, not upon reports as to reasons given by the trial court “off the record” for its actions.

Wherefore, there being no fundamental error apparent upon the face of the record, the judgment of the court will accordingly be in all things affirmed.

Affirmed.


author: BROWN, Justice.

text:
    KOENIG et al. v. GRAND LODGE OF ORDER OF SONS OF HERMAN et al.
    No. 14174.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 31, 1941.
    Rehearing Denied Peb. 28, 1941.

      Marcellus Kleberg, of Fort Worth, for appellants.
    John L. Poulter, of Fort Worth, for ap-pellees.
   BROWN, Justice.

Charles Specht, deceased, was the father of Mrs. Bertha S. Koenig and Herman C. Specht. He secured a life insurance policy in October, 1921, from a fraternal organization known as The Sons of Herman, and named his said son as the beneficiary. Later, in June, 1936, the insured changed the beneficiary and made his said daughter such. He died in February, 1939, and the son and daughter both claimed the proceeds of the policy.

Confronted with such a situation, the insurer filed a bill of interpleader, setting up such facts and the further fact that in March, 1935, the insured borrowed $200 from the insurer on the policy and owed such sum, with the accumulated interest at six per cent per annum, and it paid the face of the policy — $1,000—into the treasury of the court, less the amount of the loan and interest — the sum tendered being $764.67, and it prayed that Mrs. Koenig and Herman Specht be brought into court in order to determine to whom the said monies belong and that it be discharged with its costs and a reasonable attorney’s fee as a stakeholder.

Herman Specht answered that he had an oral agreement with his father, whereby he was to pay the insurance premiums provided his father made him the beneficiary, and that he had paid all such premiums on such promise and the promise to keep him as the beneficiary. He further alleges that he prid all such premiums up to June 28, 1936, the total sum paid being $545.60; that he therefore has a vested right in the proceeds of the policy, or at least that he has a lien on the proceeds to the extent of the premiums paid by him. He further alleged that his father did not have mental capacity to understand and realize the consequences of his act at the tme he was induced to change the beneficiary.

Mrs. Koenig answered that the insured had the right to change the beneficiary in said insurance contract; that he did so, and she thus became the owner of and had the right to the proceeds of same. She further pleaded that she, out of her separate funds, paid all of the premiums on such policy from the time she was named beneficiary until her father’s death — the sum so paid being $117.80. She further pleaded that she likewise paid all of the funeral expenses in the sum ’of $306.50. She also prayed for all the proceeds and in the alternative for the funeral expenses and premiums paid by her.

The cause was tried to a jury and the following findings made to special issues:

(1) That in 1921 Charles Specht and Herman Specht had a verbal agreement to the effect that ’if Herman would pay the premiums on the policy of insurance, Charles Specht would make Herman the beneficiary and maintain the policy in that condition, (2) that Herman paid $548.70 on premiums, in pursuance of such agreement, (3) that at the time the beneficiary was changed, Charles Specht did not have sufficient mental ability to understand ‘the nature and effect of the transaction there involved, (4) that Mrs. Koenig has paid premiums in the sum of $108.50,

The litigants agreed that the stakeholder was entitled to a fee of $100.

The trial court then rendered judgment deducting the amount of the loan on the policy, the $100 fee, and awarded $108.50 to Mrs. Koenig and the balance of $547.27 was awarded to Herman Specht.

Mrs. Koenig, joined by her husband, appeals.

Before discussing the issues, it is necessary to state that no complete statement of facts has been brought to us. A partial statement containing the testimony of only 'three witnesses, and which shows upon its face that it was brought up only in connection with a bill of exception taken to argument made by Herman Specht’s attorney, is before us, and the certificate of the trial judge discloses that it is approved as such and the court uses this language: “The foregoing is approved as being the transcript of testimony of the witnesses, Herman C. Specht, Bertha S. Koenig and Theo Koenig, given upon the trial of the above cause, with respect to a bill of exception preserved to the argument made by John Poulter, attorney for contestant, Herman Specht, but not as to the other witnesses who testified in said case.”

We find no reversible error in any of the argument, to which exception is taken, and these assignments of error are overruled, because of the absence of all of the evidence introduced and the absence of the argument of opposing counsel, where the bills of exception urge that there ,was no evidence and no argument to provoke the argument. Atchison, T. & S. F. Ry. Co. v. Locklin, 87 Tex. 467, 29 S.W. 469; Corn et al. v. Crosby County Cattle Co. et al. Tex.Com.App., 25 S.W.2d 290.

The assignment of error complaining of the overruling of two general demurrers is presented by a bill of exception, which cannot be done. The transcript must contain an order, or judgment, showing the disposition made of the demurrers and the exception taken. Merrick v. Street, Tex.Civ.App., 91 S.W.2d 851, writ refused.

An assignment of error complaining that the trial court refused the oral request of the appellants to define the terms “mental ability” and “mental capacity” is brought forward by a bill of exception showing that the request was merely oral. There is no provision in our procedure for such requests to be made orally, and if so made and the trial court overrules the same there can be no error.

Under the provisions of Articles 2185, 2186, 2188 and 2189, Revised Civil Statutes, all objections to the court’s charge must be in writing, and acted upon by the court, or they are waived, and all special charges must be prepared by the party desiring same given, presented to opposing counsel and the court and acted upon by the court before error can be shown.

The objections to the charge as disclosed by the transcript, pages 30 to 32, show no objection to the charge because of a failure to define the above-mentioned terms, and no requested charge to so define appears in the record.

But if it is incumbent upon us to pass upon this assignment of error, we find no error shown.

The issue complained of is: “From a preponderance of the evidence, do you find that at the time of the ch nge of beneficiary of the policy of insurance in question here, Charles Specht did not have sufficient mental ability to understand the nature and effect, of the transaction there involved ?”

Such cases as McCleskey v. McCleskey, Tex.Civ.App., 7 S.W.2d 657, resolve the ■contention - against appellants.

We do not believe that the term, or terms, need to be defined. We hold that the language used in the issue is not technical and that it is such that ordinary persons serving on juries can and do understand it, as it was used.

The assignment of error urging that the trial court should have made special issue No. 1 read so as to require Herman Specht to .pay all of the premiums down to the death of Charles Specht is .without merit, because the case was not pleaded and presented on such a theory, and, as we view the record, Herman Specht was entitled to recover, under the verdict, all of the proceeds of the policy that was payable to the beneficiary except the amount of premiums that were paid by Mrs. Koenig. The judgment so provides, and, as is disclosed by the record, Herman Specht actually recovered only the amount of premiums that he paid, and which amount the jury found.

The assignments of error which attempt to attack the verdict and judgment on the theory that they are .not supported by the evidence, or because they are contrary to the overwhelming preponderance of the evidence, cannot be considered by us because there is no complete statement of facts presented, and we have no way of knowing what the evidence was on which the charge was prepared and the judgment rendered.

The bill of exceptions showing that the trial court permitted the -witness Ginn to testify as to his opinion of the mental condition of Charles Specht, on the theory that such witness had not testified to acts or facts on which to base his opinion, does not show reversible error, because same was qualified by the trial judge with the statement: “This bill does not show all of the testimony of such witness.”

The bill does not purport to show all of the testimony of the witness and the qualification distinctly states that the bill does not show it.

Without a statement of facts we are unable to say that the trial court erred in permitting the witness to give his opinion as to the mental condition of Charles Specht.

This record reveals a just and fair judgment as between this brother and sister, who are contending for the proceeds of the insurance contract.

When the required deductions were made by the trial court, the amount remaining was a few dollars less than the aggregate sums paid by these children, and the trial court divided such sum on the basis of the premiums paid by each, as found by the jury, awarding first the premiums paid by Mrs. Koenig, and the balance to Herman Specht.

We find no error; all assignments of error are overruled and the judgment is affirmed.


author: HALE, Justice.

text:
    RUDOLPH et al. v. SMITH.
    No. 2289.
    Court of Civil Appeals of Texas. Waco.
    Feb. 6, 1941.
    Rehearing Denied Feb. 27, 1941.

      Mark Smith, of Waxahachie, for appellants.
    L. D. Johnston and H. R. Stovall, both 'of Waxahachie, for appellee.
   HALE, Justice.

Appellant, W. K. Rudolph as administrator of the estate of J. W. Hopkins, deceased, and appellee, J. A. Smith, signed a written instrument, dated February 17, 1937, designated “sales contract,” by the terms of which the administrator agreed to sell to appellee 52½ acres of land belonging to said estate, to give immediate possession of the property, to secure an order from the Probate Court authorizing such sale and to make title to said property good by bringing suit to clear title or remove cloud therefrom. Appellee agreed, by the terms of such instrument, to pay the administrator the sum of $550 cash for said property, the sum of $150 to be paid as “earnest money” and the remainder to be paid upon receiving deed and an abstract showing a good and merchantable' title to the land. Upon the execution of said instrument, appellee paid the sum of $150 to the administrator and went into possession of the property and continued in possession of the same until the trial of the case in October 1939.

Appellee, who will hereinafter be referred to as plaintiff, instituted this suit against W. K. Rudolph, individually and in his capacity as administrator, and against S. M. Rudolph, alleging that the administrator executed and delivered to him the sales contract hereinbefore referred to; that he had full faith in the administrator perfecting title to said land and furnishing an abstract as he had contracted to do, and that he paid to the administrator the sum of $150, which had never been returned to him, to his damage in the sum of $150; that he went into possession of the property and began at once to make certain necessary improvements thereon in the establishment of a home for himself and family at an expense to him of about $750; that said improvements were necessary in order to make the property suitable for a home and that they were made in good faith with the knowledge, consent and approval of W. K. Rudolph, and that by reason of such permanent and -valuable improvements, the value .of said property had been increased by a sum in excess of $1,000; that a certain deed from the administrator to plaintiff purporting to convey title to the 52½ acres was not delivered to plaintiff, but was placed of record on October 20, 1937, without his knowledge or consent and in fraud of his rights; that a certain deed which plaintiff made to S. M. Rudolph on or about December 20, 1937, purporting to convey the property in question was a nullity because S. M. Rudolph was a brother of the administrator and “they schemed together to defraud the plaintiff out of the $150.00 earnest money and the cost of all improvements herein alleged”; that plaintiff, on various and sundry occasions, at times when he was able, willing and ready to pay the full price of said property, had requested W. K. Rudolph to perform the contract and to complete the abstract of title “in order that he might procure a deed to said property” and that W. K. Rudolph breached said contract on or about September 15, 1938 by “then and there notifying plaintiff that he would not comply with said sales contract.” Such is the substance in full of the allegations in the petition. Plaintiff prayed for judgment jointly and severally against S. M. Rudolph and W. K. Rudolph, individually and as administrator, for $1,150 and for a “judgment lien” against the land described in his petition and for costs of suit and for general and special relief.

W. K. Rudolph filed separate answers for himself individually and as administrator, setting up general demurrers, fourteen special exceptions, general denial and a plea of compliance with the terms of the contract sued upon. S. M. Rudolph filed answer consisting of a plea in abatement on the ground of improper joinder, geiieral demurrer and general denial. The trial court overruled the plea of misjoinder and each of the general demurrers and special exceptions of the several defendants and to which they excepted.

The jury found on special issues that: On or about February 17, 1937, W. K. Rudolph agreed with plaintiff that plaintiff could make such improvements on said land as he cared to make; in the fall of 1937 plaintiff informed W. K. Rudolph that he, plaintiff, did not have the money with which to pay for the remainder of the amount of purchase price he had agreed to pay for said land; the purported deed in evidence from W. K. Rudolph as administrator to plaintiff was never delivered to plaintiff; the deed from plaintiff and wife to S. M. Rudolph was made for the purpose of obtaining a loan on said land to enable plaintiff to pay the balance of the purchase price he had agreed to pay for same; it was agreed between S. M. Rudolph and plaintiff when they each signed the purported lease contract in evidence bearing date of December 20, 1937, that said instrument should represent their respective rights in said land without reference to the purported sales contract signed by W. K. Rudolph, administrator, and plaintiff on February 17, 1937; on or about September 28, 1938, plaintiff, in good faith, at a reasonable time and place, requested W. K. Rudolph to furnish him an abstract of title to the 52½ acre tract of land, at which time plaintiff was ready, able and willing to pay the balance of the purchase price for said land, and plaintiff so informed W. K. Rudolph, who then refused to furnish to plaintiff such abstract; plaintiff, after he had gone into possession of the land and prior to September 28, 1938, made valuable and permanent improvements on said land, in good faith, of the reasonable value of $1,000; and the reasonable and fair rental value of said land from the time plaintiff went into possession of the same on February 17, 1937 up to the time of the trial in October 1939 was nothing.

The court rendered judgment in favor of plaintiff and against S. M. Rudolph and W. K. Rudolph, individually and as administrator of the estate of J. W. Hopkins, deceased, for the sum of $750, decreeing that said sum shall be and constitute a charge and lien against the land therein described, providing that the defendants, or either of them, shall have ninety days from the date thereof within which to pay plaintiff $750, and that upon the payment of said sum they should be entitled to a writ of possession; but that if such sum be not paid to plaintiff within ninety days from the date thereof, then plaintiff should be entitled to have his foreclosure as against all of the defendants and to have said land sold in payment of said sum of $750.

The various grounds in the amended motion of the defendants for new trial are presented by appellants as their assignments of error here. One of the assignments thus presented is “because the court erred in overruling defendants’ general and special exceptions to plaintiff’s petition.” Another assignment is “because the court erred in- overruling defendant S. M. Rudolph’s plea in abatement and also in overruling his general exception to plaintiff’s-petition as against ■ him.” Still other assignments are, “because the verdict of the jury is contrary to the evidence” and “because the judgment of the court is contrary to the law” and “because the court erred in overruling defendants’ exceptions to the court’s charge.” Appellee objects to a consideration by this court of any of the assignments presented because each is duplicitous and multifarious and because such assignments do not constitute distinct specifications of error. Notwithstanding the liberal construction which this court has always given to the rules of practice and procedure, we-do not believe we are authorized to consider a number of the assignments urged.

However, it is our duty to note any. fundamental error apparent on the face of the record, whether such error be assigned or not. And it is well settled under the existing law of this state that the overruling of a general demurrer to a petition, if error, is fundamental and need not be assigned as such. Sneed v. Moodie, 24 Tex. 159; City of San Antonio v. Talerico, 98 Tex. 151, 81 S.W. 518; Davis v. Parks, Tex.Civ.App., 157 S.W. 449; Grayson County v. Harrell, Tex.Civ.App., 202 S.W. 160, writ refused; Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270.

The foundation of the cause of action which the plaintiff attempted to set forth in his petition was a written contract which was plead in haec verba and which recited on its face that it embraced the obligation of “W. K. Rudolph, administrator of the estate of J. W. Hopkins, deceased,” and which was signed “W. K. Rudolph, administrator.” There was no allegation of any fact or facts in the petition, even though every reasonable intendment be indulged in favor of the same, which could serve as .the basis for a legal inference that either S. M. Rudolph or W. K. Rudolph, individually, assumed any obligation under such contract, or that either of them was legally liable to plaintiff for any of the damages alleged for the breach of the contract sued upon or otherwise. Woodward v. Acme Lumber Co., Tex.Civ.App., 103 S.W.2d 1054.

A careful reading of the pertinent statutes relating to the sale and disposition of property belonging to the estate of a decedent will immediately suggest many reasons why the petition of plaintiff failed to state a cause of action against the administrator in this case. In this connection we call attention only to Article 3553, Vernon’s Annotated Civil Statutes, which provides specifically that no sale of property of an estate shall be made by an administrator without an order of the Probate Court authorizing the same. A proper order of the Probate Court is therefore essential to the validity of the sale of property by an administrator. Webb v. Reynolds, Tex.Com.App., 207 S.W. 914; Moore v. Wooten, Tex.Com.App., 280 S.W. 742. If the contract sued upon was not a valid one, the plaintiff would have no cause of action either for specific performance or for damages on account of a breach thereof. Saulsbury v. Anderson, Tex.Civ.App., 39 S.W.2d 142; Bradley v. Howell, Tex.Civ.App., 126 S.W.2d 547. Not only was there no allegation in the petition of the plaintiff to the effect that W. K. Rudolph, as administrator, was authorized to execute the sales contract sued upon, but we think the contrary affirmatively appears, as otherwise there would be no reason for the administrator to agree in the contract to secure an order from the Probate Court authorizing such sale. Without further comment, we hold that the trial court erred in overruling the general demurrer interposed on behalf of each of the defendants to the plaintiff’s petition.

Article 2211 of Vernon’s Annotated Civil Statutes provides that the judgments of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any. Moreover, it is well established under the Texas law as it now exists, that a judgment which is not supported by pleadings is fundamentally erroneous. Howe v. Keystone Pipe & Supply Co., 115 Tex. 158, 274 S.W. 563; Queen Ins. Co. v. Galveston, H. & S. A. R. Co., Tex.Com.App., 296 S.W. 484; Bray v. Bray, Tex.Civ.App., 1 S.W.2d 525; City of Fort Worth v. Gause, 129 Tex. 25, 101 S.W.2d. 221.

The judgment appealed from is quite lengthy, including, as it does, the findings of the jury on special issues and various findings by the trial court. Among other things, the judgment recites on its face that “at the close of all the evidence in the case and after both sides had rested, the court sent the jury into the jury room and asked counsel for the respective parties what they were each asserting or claiming in the suit,” and after counsel had stated their respective claims, the judge of the court then stated that he would permit the defendants to make such further proof before the jury as they cared to make. The judgment further recites that after the verdict had been received, the court, “having suggested to counsel for plaintiff that notwithstanding the verdict of the jury, and the fact that counsel for defendants refused to offer any evidence as to the reasonable and fair rental value of said property and failed to plead for any such recovery, he thought defendants were, in equity, entitled to some allowance therefor, and the plaintiff offering to do equity in all things and make such remitti-tur as the court deemed proper; * * * and the plaintiff agreeing to remit to and allow defendants credit and the benefit of said sum of $250.00; and it further appearing to the court that the other equities in the case are about equal,” rendered judgment as hereinbefore shown. Neither the judgment nor the transcript showed any motion for judgment non obstante vere-dicto. The action of the court in thus disregarding the findings of the jury and in substituting his own findings was clearly error. Hines v. Parks 128 Tex. 289, 96 S.W.2d 970.

There was evidence admitted on the trial tending to show that immediately after the sales contract was signed on February 17, 1937, the administrator procured an order of this Probate Court authorizing such sale; that suit was thereafter instituted and prosecuted to judgment in the District Court of Ellis County for the purpose of removing cloud from the title to the land in question at an expense to the administrator of $159.45; that plaintiff then informed the administrator that he did not have the money with which to pay the purchase price agreed upon and a deed was then executed by the administrator conveying the property to plaintiff and plaintiff in turn conveyed the property to S. M. Rudolph under some kind of a written contract dated December 20, 1937, in otdcr that a loan might be secured by S. M. Rudolph against said land and the proceeds thereof used to pay the purchase price originally agreed upon by plaintiff and the administrator; that S. M. Rudolph was unable to consummate the contemplated loan and on or about September 28, 1938, plaintiff requested W. K. Rudolph to furnish him an abstract; that W. K. Rudolph caused a complete abstract to be compiled, which was tendered to plaintiff on October 10, 1938.

The evidence thus introduced explains in a measure the findings of the jury, many of which would be unintelligible and meaningless by looking alone to the pleadings, and indicates that the parties, under proper pleadings, do have rights to be adjudicated, depending upon what the ultimate facts may be. But evidence without pleadings to support a judgment is as fatally defective under presently existing law as pleadings without evidence, and in the absence of any pleadings in this case with respect to the orders, decrees, deeds and contract between plaintiff and S. M. Rudolph, referred to in the testimony and verdict, no valid judgment can properly be based on such evidence or findings.

From what has been said, we think it conclusively appears on the face of the pleadings and judgment appealed from that the latter was improperly based upon findings of the court and jury and on evidence, if any, which did not have any support whatsoever in the pleadings.

Although the deeds, orders, decrees and contract between plaintiff and S. M. Rudolph, hereinbefore referred to, seem to have been admitted in evidence, none of them are contained in the statement of facts. It also appears that the abstract of title to the property in question was produced in court, but there is no satisfactory showing, either in the pleadings or evidence, as to whether such abstract disclosed a good and merchantable title, or if so, as to whether such title vested in the estate of J. W. Hopkins or in plaintiff or in S. M. Rudolph. The record before us is therefore not sufficiently complete, either from the standpoint of the ■ pleadings or the evidence, to warrant us in making any suggestions with respect to what further proceedings may properly be had in the trial court.

Because we are of the opinion that there was fundamental error (1) in overruling the general demurrers of each of the defendants below, and (2) in rendering a judgment which was without support in the pleadings and which did not conform to the verdict, the judgment of the trial court is reversed and the cause is remanded for such further proceedings, not inconsistent with this opinion, as may be deemed proper.


author: SPEER, Justice.

text:
    TEXAS & N. O. R. CO. v. YOUNG, District Judge.
    No. 14252.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 14, 1941.

      Thompson & Barwise and Seth Barwise, all of Fort Worth, for relator Texas & N. O. R. Co.
    Culbertson, Morgan, Christopher & Bailey and Cecil A. Morgan, all of Fort Worth, for cross-relator Ida M. Hornburg.
   SPEER, Justice.

We have before us two applications for writs of mandamus against Hon. Bruce Young, Judge of the 48th District Court of Tarrant County, in which both defendant and plaintiffs in cause No. 27597-A, Mrs. Ida M. Hornburg et al. v. Texas & New Orleans Railroad Company, are asking that we grant the writ requiring said judge to enter judgment in favor of the respective parties on a jury verdict theretofore returned.

We have consolidated these two proceedings, and irrespective of the fact that the parties to the suit style themselves relators and Judge Young as respondent, we shall refer to the parties as “company” and to plaintiffs as they appeared in the lower court.

By petitions for the writs, both the company and the plaintiffs' contend that the verdict of the jury entitles them to a judgment, and ask that we require the judge to so .enter it.

Obviously, in such controversies as this, the pleadings, court orders and statement of facts are not before us. The respective parties have made a statement of the nature and result of the suit below, which discloses that plaintiffs sued the railroad company for damages growing out of the death of Ralph Hornburg. There is no conflict in the statements. Both parties have attached to their respective petitions copies of the questions and answers which make up the jury verdict, and upon the verdict both rely for the relief sought.

In such a situation as' this, we must assume that the pleadings and evidence were sufficient to authorize the submission of the special issues, and that the evidence supports the answers made. Upon these assumptions we must determine which of the parties, if either, is entitled to judgment.

By its verdict, the jury convicted the company of negligence, because (a) the crossing on Berry Street (in the City of Fort Worth) was more than ordinarily dangerous at night; that failure to maintain at the crossing a warning signal was negligence and a proximate cause of the accident; and (b) failure to maintain a proper light at the crossing was negligence and a proximate cause. The company was acquitted of negligence relating to discovered peril. The jury verdict acquitted deceased of contributory negligence insofar as the manner of operating his automobile is concerned.

Notwithstanding the findings by the jury of negligence by the company, it contends here that because of findings of contributory negligence by deceased which proximately contributed to the accident, it is entitled to judgment. Strangely enough, plaintiffs rely upon the same special issues and answers in their contention that judgment should be entered for them. These issues and answers are as follows:

“Question No. 22: Do you find from a preponderance of the evidence that as Ralph Hornburg (deceased) approached the crossing in question, he failed to keep a proper lookout in the direction from which defendant's train was approaching?”
“In connection with this question you are instructed that by the term ‘proper lookout’ is meant the kind and character of lookout which a reasonably prudent person in the exercise of ordinary care for his own safety, would have kept under the same or similar circumstances.” The answer was “Yes.”
Question 23 was submitted and to be answered only in the event the jury had answered No. 22 as it did, in the affirmative. It inquired if the failure to keep a proper lookout was the proximate cause or contributed to cause the accident. This inquiry was answered “Yes.”
In answer to question 24 the jury found that deceased did not know of defendant’s approaching train in sufficient time to enable him, by the exercise of ordinary care, to avoid the collision.
“Question 25: Do you find from a preponderance of the evidence that a person, exercising ordinary care in driving a car west along Berry Street, approaching the railroad crossing at the time and place in question, would have discovered the approach of defendant’s train at a time when, by the exercise of ordinary care, such driver could have avoided colliding with defendant’s train?” Answer: “No.”
It is' argued by the company that the foregoing questions and answers convict deceased of contributory negligence and entitle it to a judgment, and plaintiffs contend that when questions 22 to 25, both inclusive, are considered together, number 25 and its answer acquits deceased of negligence and entitles plaintiffs to judgment on other findings of negligence by the company and the amount found by the jury.

Plaintiffs rely upon the case of Gulf, C. & S. F. Ry. Co. v. Russell, 125 Tex. 443, 82 S.W.2d 948. Company counsel have filed no briefs with us, and in oral presentation of their petition admitted that the Russell case rendered their right to judgment somewhat doubtful.

A careful study of the Russell case reveals that plaintiff sued the company for damages and alleged as negligence of the company, a failure by the train operatives to keep a proper lookout for his presence on the track at the time and place of his injuries. The case was tried to a jury on a general charge. The substance of the charge on negligence was that if the jury found from the evidence that the employees failed to keep a proper lookout and that such failure was negligence and a proximate cause of the injury, they should find for the plaintiff. Under the charge, a verdict was rendered for plaintiff, and the court reversed and rendered judgment for the company under a holding that the verdict had no support in the evidence. The court reviewed the evidence at length and indicated that it indisputably appeared that under the existing conditions, the operatives of the train could not have seen Russell if they had kept a reasonable lookout; that Russell was a trespasser and the company only owed him a duty as such; that in the absence of any evidence that the operatives could have seen him if they had kept a reasonable lookout, that phase of the case was not submitted to the jury. The court said, in substance, that under the pleadings it was not only necessary for plaintiff to prove that the train operatives did not keep a reasonable lookout, but also to show that if they had done so they would have discovered plaintiff in time to have avoided the accident. Having reached the conclusion that the verdict did not support the judgment, the court made this further observation, at page 953 of 82 S.W.2d: “We have also made this statement of the evidence to show that there was in fact no sufficient evidence upon which the jury was authorized to base a finding thát the operatives of the train did not keep a reasonable lookout.” Assuredly, if, as stated by the court, there was no evidence to support a finding of failure to keep a lookout, and no evidence that if they had done so, they would have discovered the plaintiff in time to avoid injuring him, there was no existing reason why the other remaining element, that of proximate cause, could exist. The reversal and rendition was based upon the holding in Texas & Pacific Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049. In the Shoemaker case, the court held that the • alleged negligent act was properly submitted, but that there was no evidence of a causal connection between the act and the injury; that this must appear before the negligent act can be said to be the proximate cause of the injury. It is as essential that there be competent evidence of the causal connection — that of proximate cause — as that the alleged negligent act or omission be established. Missouri P. Ry. Co. v. Porter, 73 Tex. 304, 11 S.W. 324; Texas & N. O. Ry. Co. v. Crowder, 63 Tex. 502. Thus, it is apparent that in the absence of evidence of negligence for failure to keep a lookout, and evidence that if one had been kept the operatives of the train would have seen a person on the track and avoided injuring him, no just criticism can be urged to the holding in Gulf, C. & S. F. Ry. Co. v. Russell, supra. We do not consider that we have a similar situation before us, for, as stated, we must assume that there was evidence to support the issues and their answers.

The verdict in the instant casé, insofar as it found negligence by the railroad company and proximate cause, showed liability for which plaintiff could recover, unless defeated by a finding of contributory negligence upon the part of deceased and proximate cause. As above stated, we must assume that contributory negligence was pleaded by the company and, further, that there was evidence sufficient to require its submission to the jury, along with proximate cause, and whether or not, if deceased had kept a proper lookout, he would have discovered the approaching train.

It is now well settled that a party is entitled to have every phase of his case which he has pleaded and upon which evidence is offered, submitted to the jury. This rule is applicable to defendant’s-allegations of contributory negligence. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517. The cited case has been approved by our Supreme Court many tiriies. The requirement that such issues be submitted must mean that they be answered in such manner as to apprise the court of what the jury intended to find the facts to be.

By answer to special issue 22, and the definition given in connection with it, both quoted above, the jury found that deceased failed to use ordinary care, such as a person situated as he was at the time would use, to keep a proper lookout for the approaching train. One can perceive of how this answer could be true, even though if he had kept a proper lookout, it would' have availed him nothing, since he could not have seen the train if he had looked, as was found in response to special issue 25. But, as stated in the Shoemaker case, supra, there is no causal connection between deceased’s failure to keep a lookout and the finding that it was a proximate cause or contributing cause to the accident, as found in answer to the 23rd special issue. In other words, the answers to special issues Nos. 23 and 25 cannot both be true in law — one is destructive of the other, and amounts to no answer at all, insofar as is necessary to support a judgment for plaintiffs. It will be observed that the jury, by its answer to question 23, said that deceased’s failure to keep a proper lookout was the proximate cause of the collision which resulted in his death. The answer is supposed to have been based upon the court’s definition of proximate cause. Reading the definition and answer together and paraphrasing the two, the jury found that deceased’s failure to keep a lookout was the moving and efficient cause of the collision, unbroken by any new and independent cause and an incident which he should have reasonably foreseen. The answer to question 25 is to the effect that if deceased had kept a proper lookout, he would not have seen the approaching train in time to have avoided the collision. We can perceive of no state of facts under which both answers can stand. The one is directly contradictory of the other.

When irreconcilable answers are given to material issues in a case, and under instructions of the court, the jury is unable to reconcile their answers, a mistrial should be declared. Texas & N. O. Ry. Co. v. Houston Undertaking Co., Tex. Civ.App., 218 S.W. 84, writ refused. The railroad company was not entitled to have judgment entered in its favor because there were findings of negligence by it proximately causing the accident, and it did not procure an effective finding by the jury that deceased was guilty of contributory negligence, proximately causing his death. It would not be proper to direct the entry of a judgment in this case for plaintiffs, because to do so would deprive the company of its right to have its defensive matter of contributory negligence and whether or not it was a proximate cause passed upon by the jury without its effect being destroyed by another irreconcilable answer in connection with those findings. Somewhat analogous to our last statement is the holding in Harrell v. St. Louis & S. W. Ry. Co., Tex.Com.App., 222 S.W. 221, 223.

A party litigant should not be deprived of his right to a submission to the jury of his grounds of defense, simply because conflicting answers may be given by the jury, as was the result in the case at bar. Texas Indemnity Ins. Co. v. Thibodeaux, 129 Tex. 655, 106 S.W.2d 268. In cases where juries make conflicting answers, and they are irreconcilable, the court may call their attention to the conflict and require them to deliberate further, and, if possible, to remove the difficulty. Federal Underwriters Exchange v. Hightower, Tex.Civ.App., 142 S.W.2d 963, writ dismissed, correct judgment. We are not in a position to know what was done in this case when the verdict was returned with the conflicting answers, but may presume that the trial court did his duty and endeavored to have the jury eliminate the conflicts in their answers. It remains, however, that they are still there, and that a mistrial should have been declared.

For the reasons stated, we cannot give either of the petitioners the-relief sought, and they are accordingly both denied the writs prayed for. The trial court will proceed with the cause in such manner as he deems proper, not inconsistent with what is here said. The costs of this hearing will be taxed in equal amounts against the respective company and the plaintiffs.


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    TRANSIT GRAIN & COMMISSION CO. v. SNAPP.
    No. 5235.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 27, 1941.
    Rehearing Denied March 3, 1941.
    Clayton & Bralley, of Amarillo, for appellant.
    J. D. Barker, of Canyon, and E. O. Northcutt, of Amarillo, for appellee.
   FOLLEY, Justice.

This is an appeal from an order overruling a plea of privilege. The suit was filed in Randall County, Texas, by the appellee, W. R. Snapp, against the appellant, Transit Grain & Commission Company, a private corporation of Tarrant County, Texas. The suit was to recover for wages and commissions in the sum of $505.20 alleged to have been due the ap-pellee from the appellant in connection with the former’s management and operation of a grain elevator in Randall County from June 1, 1938, to May 31, 1939.

The appellee alleged that the appellant agreed to pay him $680 in salary for the year’s work which was to be paid in twelve monthly installments, the first four in the sum of $110 each and the next eight in the sum of $30 each; that in addition to the salary it was agreed appellee should receive one-half of one cent per bushel for the wheat purchased by him for the defendant during the first six months of his employment; that appellee purchased 49,-039 bushels of wheat for the appellant during the first six months’ period; that the appellee duly performed and rendered the services in compliance with his employment contract whereby the sum of $925.20 became due him; and that of this amount the appellant had paid him only $420, leaving a balance due in the sum of $505.20 for which the appellee sought judgment.

The appellant filed its plea of privilege to be sued in Tarrant County, the place of its residence. The appellee filed his controverting affidavit in which he attempted to retain the venue in Randall County by virtue of subdivision 23 of article 1995, R.C.S. of Texas, which, among other things, provides that suits against a private corporation may be brought in any county in which the cause of action, or a part thereof, arose, or in which such corporation has an agency or representative, or in which its principal office is situated.

It is admitted that the appellant is a private corporation, that it has no agency or representative in Randall County and that its domicile and principal office is in Tarrant County. The issue as to venue is thus reduced to the first portion of subdivision 23 relative to the place where the cause of action or a part thereof arose.

There was proof to the effect that under a verbal agreement with Leo Potishman, president of the appellant company, made in the lobby of the Herring Hotel in Amarillo, Potter County, Texas, in May, 1938, the appellee was employed by the appellant, Transit Grain & Commission Company, to manage and operate a grain elevator located at Ogg Switch in Randall County for a period of one year beginning June 1, 1938; that in pursuance of this agreement the appellee managed and operated such elevator in Randall County from June 1, 1938, to June 1, 1939; and that during such period he purchased 31 or 32 car loads of wheat for the appellant. It was not shown by the testimony the amount earned by the appellee or the amount collected by him from the appellant, however, the appellee testified that the last check he received for his services was one in the sum of $30, which was received by him from the appellant the last of November or the first of December, 1938. He further testified that such check was for a month’s salary, either for the month of November or the month of December, 1938. There was no other showing as to money due or payments made except that the appellant introduced in evidence four checks totaling $326.40 which showed on their faces to have been for payments of the appellee’s salary for June, July and August, 1938.

The appellant asserts that the appellee failed to establish by the proof the necessary venue facts to sustain venue in Randall County under that portion of exception 23 relative to maintaining suits against private corporations in the county where the cause of action or a part thereof arose.

In Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674, 676, Justice Critz, speaking for the Supreme Court of Texas with reference to the above exception, said: "The provision of exception 23 of article 1995, supra, which permits ‘a private corporation, association or joint stock company’ to be sued ‘in any county in which the cause of action, or a part thereof, arose,’ means that either some part of the transaction creating the primary right, or some part of the transaction relating to the breach of that right, must have occurred in the county where the suit is brought/”

In United States Pipe & Foundry Co. v. City of Waco et al., 100 S.W.2d 1099, 1109 (affirmed by the Supreme Court in 130 Tex. 126, 108 S.W.2d 432), relative to the meaning of the term “cause of action” as used in the exception, Justice Alexander, speaking for the Tenth Court of Civil Appeals, said: “A cause of action consists not alone, of the genesis of the right but of the breach of the right, and in order to maintain the suit in some county other than that in which the corporation’s principal place of business is located, it is necessary and only necessary that some part of the primary right, or some part of the transaction relating to the breach of that right, must have occurred in the county where the suit is filed.”

Under the above authorities, and those cited therein, it is our opinion the appellee has established the fact that a part of his cause of action arose in Randall County, which is as far as the proof needs to extend upon the question of venue under this portion of exception 23. Stanolind Oil & Gas Co. v. Christian, Tex.Civ.App., 64 S.W.2d 363; Western Wool Commission Co. v. Hart, Tex.Sup., 20 S.W. 131; Phillio v. Blythe, 12 Tex. 124. It was sufficiently shown that he was employed to do certain work at an elevator in Randall County and that such duties were performed wholly in such county. The performance of the oral contract was certainly “some part of the transaction creating the primary right” or “some part of the primary right” itself, as expressed in the language quoted from the above authorities.

The appellee’s motion for rehearing is granted; our former opinion is withdrawn, this opinion substituted therefor, and the judgment is affirmed.


author: RICE, Chief Justice.

text:
    TRINITY UNIVERSAL INS. CO. v. WOITASKE et al.
    No. 2264.
    Court of Civil Appeals of Texas. Waco.
    Feb. 6, 1941.
    Rehearing Denied March 6, 1941.

      Touchstone, Wight, Gormley & Touchstone, of Dallas, for appellant.
    Hal Browne, of San Antonio, and Allen & Allen, of Hamilton, for appellees.
   RICE, Chief Justice.

William R. Lynch entered into a contract with Hamilton County, Texas, obligating himself to erect a jail for the use of said county, and to furnish the labor and material therefor.' As a part of the contract, he executed and delivered a penal bond with the Trinity Universal Insurance Company as surety, conditioned as required by Art. 5160, Vernon’s Annotated Civil Statutes. Thereafter, A. J. Woitaske furnished the labor and material to erect and plaster certain partition wails in said building in consideration of the sum of $709, to be paid by Lynch when Woitaske completed his contract. Higginbotham Bros. & Company, a corporation, delivered to Lynch lumber and building material used in said construction to the value of $776.41. Lynch failed to pay either of said accounts. A. J. Woitaske brought this suit against Lynch and Trinity Universal Insurance Company for the sum due him by Lynch under said contract. Higginbotham Bros. & Company intervened, praying for judgment against said defendants for the amount of its account. On a trial to the court, judgment was rendered in favor of A. J. Woitaske and against the defendants Lynch and Trinity Universal Insurance Company, jointly, in the sum of $709; and in favor of Higginbotham Bros. & Company, intervener, against the same defendants, jointly, in the sum of $776.41. From this judgment Trinity Universal Insurance Company alone appeals.

The verified claim filed by appellee Woit-aske, and on which his cause of action is predicated, is itemized as follows:

“For labor performed and material furnished in the construction of the County Jail at Hamilton, Hamilton County, Texas, from starting July 11th, 1938, and completed August 5th, 1938, itemized as follows :
Material furnished for lathing by affiant . $199.00
Labor on lathing. 95.00
Material for plastering. 175.00
Labor on plastering. 240.00
Insurance. 11.40
Social Security. 3.00
Total balance due on account as per contract. $723.40,”

Appellant contends that this claim is not itemized as required by the provisions of Article 5160, Vernon’s Annotated Civil Statutes, and that a compliance with said article in this respect is a condition precedent to a recovery against a surety on the bond of a public contractor.

Article 5160 requires that claims “shall be itemized and sworn to as required by Statutes as to mechanic’s lien claims.” See Articles 5453 and 5456.

The Supreme Court, in the case of Ball v. Davis, 118 Tex. 534, 18 S.W.2d 1063, 1064, passed upon the validity of two claims similar, in respect to itemization, to the claim of appellee Woitaske. The court held that the claims were not sufficiently itemized, and were too indefinite to comply with the statute. In coming to this conclusion the court sáid: “The statute (article 5453) requires the account to be itemized. The term used means that the account must be set out by items.” The following cases support the foregoing proposition: Union Indemnity Co. v. Rockwell, Tex.Com.App., 57 S.W.2d 90; McClellan v. Haley, Tex.Com.App., 250 S.W. 413; Hardin v. McCarthy, Tex.Civ.App., 55 S.W.2d 1099; National Surety Co. v. United Brick & Tile Co., Tex.Civ.App., 71 S.W.2d 937; Austin Bridge Co. v. Drake, Tex.Civ.App. 79 S.W.2d 677.

Applying to the facts of this case the rule laid down by the cases cited above, we are of the opinion that the claim of Woitaske was not sufficiently itemized to meet the requirements of Article 5160. It was not itemized either as to the dates on which the material was delivered, or on which the labor was performed; nor was it itemized as to the various items or quantities of material actually delivered.

Appellant takes the position that Higgin-botham Bros. & Company, having admittedly filed its claim in the office of the County Clerk of Hamilton County on September 19, 1938, said intervener can recover only for the value of those materials shown by said claim to have been delivered within the period of ninety days prior to September 19, 1938. Although appellant contends that this period would only include materials delivered subsequent to June 21, 1938, it admits liability in the sum of $54.45, being the value of items furnished on and after June 20, 1938.

It is stipulated that intervener filed its itemized account with the County Clerk of Hamilton County on the 19th day of September, 1938; and that a correct statement of the account was attached to intervener’s petition. The account shows delivery of materials on dates beginning April 18th and ending August 25th; and that no materials were delivered on June 19, 1938. Inter-vener’s 'local manager testified that the items in the account were delivered on the dates they were charged.

The judgment rendered in favor of in-tervener and against appellant was for the value of all materials delivered to Lynch after deducting credits.

Error is assigned by appellant to the action of the trial court in rendering judgment for the value of materials delivered prior to June 20, 1938.

Appellant contends that the judgment is excessive by the sum of $721.96, being the value of materials delivered prior to June 20, 1938, after deducting credits; and that the trial court should have rendered judgment against it for $54.45, said sum being the value of materials delivered on and subsequent to June 20, 1938.

It being admitted that the claim of intervener Higginbotham Bros. & Company was filed on September 19, 1938, this assignment is sustained. Article 5160, Vernon’s Annotated Civil Statutes, provides, in part: “Such claims shall be filed with the County Clerk of the County, in which said work is being prosecuted, within ninety days from the date of the delivery of said material and the performance of said work.”

In the case of National Surety Co. v. United Brick & Tile Co., Tex.Civ.App., 71 S.W.2d 937, it is held that the above quoted requirement of Article 5160 is mandatory and conclusive. This opinion is quoted from and cited with approval in the case of Aetna Casualty & Surety Co. v. Hawn Lbr. Co., 128 Tex. 296, 97 S.W.2d 460.

Intervener plead that appellant was es-topped to urge as a defense such failure to file a claim within ninety days because a check given it by Lynch in full payment of his account would have been paid by the Hamilton National Bank as liquidating agent but for the fact that appellant made demand on Hamilton county that it deliver no further bonds, warrants or funds to the Hamilton National Bank in payment of its contract with Lynch for work done under said contract; that this demand was made at a time to preclude intervener from - a literal compliance with the terms of Article 5160, in that the ninety day period expired after receipt by it of said check and prior to the demand on Hamilton County to refrain from further payments on the contract. The following facts were adduced to sustain said plea of estoppel: On the 25th day of August, 1938, defendant Lynch delivered to intervener his check, payable to the latter, in the sum of $776.41, drawn on the Hamilton National Bank, Hamilton, Texas, for the amount of his account with intervener; and at the time Lynch informed intervener’s local manager- that the money to pay the check was not then in-the bank, but that as quickly as the County turned the money over to the bank the check would be paid. This check was never paid. The local manager of inter-vener testified that he relied on Lynch’s honesty; expected the check to be paid, and failed to file intervener’s claim until September 19, 1938, on which date he learned that some controversy had arisen and the warrants of the County had not been delivered to the bank.

A representative of the surety company testified that in September he learned about trouble on the Lynch job; that he came through Hamilton on the 16th day of September, 1938, and visited the county judge, who advised him, in answer to his question as to whether or- not the funds were ready to be paid on the job, that “there were a bunch of outstanding bills out here in town and they were not going to pay anything until he had paid those bills."

There was introduced in evidence a letter to the County Judge of Hamilton County from the appellant, dated September 18 (16) 1938, instructing th.e judge not to pay out any of the funds that might be due Lynch. Appellant’s representative testified this letter was delivered September 16th.

In our opinion, these facts are not sufficient to sustain intervener’s plea of estoppel. There 'is no evidence that in-tervener was induced to refrain from filing its claim within the statutory period by any promise of or ii} reliance upon any act of appellant. There is no evidence that 'appellant knew that Lynch had given his post-dated check to appellee to cover his account or that Lynch had made any representation to said appellee that the check would be paid at a later date. It is not in evidence that Hamilton County withheld payment under its contract because of the act of appellant in delivering to the County Judge of said county the letter of September 18 (16), 1938.

Appellant contends that the judgment of 'the tria| court against it and in favor of each of the appellees should be reversed; that judgment should be rendered by this court that appellee Woitaske take nothing against appellant and that intervener Hig-ginbotham Bros. & Company recover of appellant the sum of $54.45, without interest and costs.

We do not agree with this contention of appellant. It is our opinion that as between appellant and appellees, justice will be better served by reversing afid remanding this cause to the trial court for a new trial.

The record before us raises the inference that Hamilton County withheld the payment of a portion of the money to which the contractor was entitled under the terms of his contract with the county, because said contractor had failed to pay some of his bills. It may be that these funds are yet in the possession of Hamilton County; and, if so, there remains the possibility that appellees, by appropriate proceedings, may establish some right to or interest therein, under the provisions of Articles 5472a and 5472b, Vernon’s Annotated Civil Statutes.

Therefore, in order to afford the appellees Woitaske and Higginbotham Bros. & Company an opportunity, if they care to do so, to further develop their respective causes of action, the judgment of the trial court in favor of Woitaske and against the Trinity Universal Insurance Company; and likewise the judgment in favor of in-tervener Higginbotham Bros. & Company against the same defendant, is reversed and this cause, insofar as it relates to the causes of action asserted by Woitaske and by in-tervener Higginbotham Bros. & Company, respectively, against the defendant Trinity Universal Insurance Company, is remanded to the trial court for a new trial.

Defendant Lynch not having appealed from the judgment of the trial court, the judgment in favor of plaintiff Woitaske against the defendant Lynch; and likewise the judgment in favor of intervener Hig-ginbotham Bros. & Company against defendant Lynch, is hereby affirmed.

Affirmed in part and reversed and remanded in part.


text:
    TEXAS LONG LEAF LUMBER CO. v. WHITE.
    No. 11152.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 20, 1941.

      Dean & Humphrey, of Huntsville, for appellant.
    Reginald Bracewell and Jack Ellingson, both of Huntsville, for appellee.
   CODY, Justice.

This suit was brought by appellee in a justice court of Walker County, Texas, to enforce an alleged agreement whereby appellant bound itself to protect such account as one G. T. Whittaker should incur with appellee to the extent of, and out of, such sums as became due the said G. T. Whittaker upon appellant’s account with the said Whit-taker.

Appellee alleged in substance that he' sold oil and gas in the filling station business, and that appellant was a corporation engaged in the lumber business, operating a sawmill in Trinity County, Texas, and that G. T. Whittaker was a logging contractor engaged in hauling logs to appellant’s mill. That about January 1, 1937, appellee became dissatisfied with the state of Whittaker’s account, and informed appellant that unless appellant made a satisfactory arrangement to protect Whit-taker’s account with appellee that he, ap-pellee, would no longer furnish oil and gas to Whittaker. That it was thereupon orally agreed between appellee and appellant that appellee should continue to supply oil and gas to Whittaker with which to operate his trucks, and that appellant would thereafter collect what was due to appellee from Whittaker on each of Whit-taker’s pay days, i. e., on each day that was appointed for appellant to pay Whit-taker what was due from it to Whittaker for hauling its logs, and that such payments to appellee by appellant should be made upon a written order from Whittaker ordering appellant to pay appellee the sum due him from Whittaker out of the sum due Whittaker from appellant. That payments were made thereafter by appellant to appellee for various periods from January, 1937, to May 15, 1937. That thereafter, on June 12, 1937, which was a Whit-taker pay day, and at. which time Whit-taker owed appellee $170, for oil and gas furnished the preceding 15-day period, appellant paid out of sums then due Whit-taker for hauling said preceding 15-day period $225 to the First National'Bank of Huntsville in satisfaction of a note due from. Whittaker to said bank, said payment being without authority from appellee and contrary to the order of Whittaker. That appellee demanded payment from appellant of the amount due appellee from Whittaker by mail on'July 21, 1937, and that appellant denied liability therefor. That appellant had agreed not to pay out of sums due Whittaker from it any obligations of Whittaker in preference to the obligations due appellee.

Appellant’s answer consisted of a general demurrer and general denial.

From a judgment for appellee in the justice court, appellant appealed to the county court, and a trial de novo was heard 'in the County Court on May 6, 1940. Ap'pellant moved for an instructed verdict at the conclusion of the evidence which was overruled. While appellee’s pleadings are somewhat confused, we are unable to hold that they were insufficient to authorize the submission of the special issues to the jury. In view of the disposition we make of this appeal it is unnecessary for us to set forth the special issues submitted to the jury other than special issue No. 1, which reads as follows:

“Was the order which the plaintiff obtained from G. T. Whittaker, on February 12, 1937, to constitute the basis of defendant’s authority to honor the plaintiff’s statements on G. T. Whittaker for oil, gas and tires?” To which the jury answered: “No”.

Appellant seasonably objected to special issue No. 1 “ * * * because the jury is not given any guide or test as to the measure of evidence required in answering said issue.”

The order inquired about in special issue No. 1 was dated February 12, 1937, and was in writing, and was addressed to appellant and was signed by G. T. Whit-taker, and read: “I am now employed on the log job near Dodge and Oakhurst, Texas, and ask that you deduct from my time the amount of gas, oil, and tire bill each pay day as presented by White Oil Company, Huntsville, Texas, and charge same to my account until further notice.” •

In view of the fact that it was undisputed that Whittaker notified appellant not to pay his account as claimed to he due by appellee, and as the evidence before the jury would certainly have supported an affirmative answer to special issue No. 1, it was reversible error for the court to decline to instruct the jury in connection with special issue No. 1, to return answer, thereto upon the preponderance of the evidence. The error was fundamental and elementary.

The judgment of the trial court is reversed, and the cause remanded, for a new trial.

Reversed and remanded.