text:
    TURNER v. WILCOX.
    No. 11160.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 12, 1940.
    W. O. Bowers, Jr., of Beaumont, for appellant.
    Everett H. Cain, of Anahuac, for appel-lee.
   CODY, Justice.

This is an appeal from the refusal by the district court of Chambers County of the motion of S. S. Turner, Administrator of the estate of Captain T. V. Jenkins, deceased, to vacate an interlocutory order appointing a receiver of the tugboat “Ernest”.

Suit was filed by appellee against the surviving wife, minor son, the administrator of the estate, and the unknown heirs of Captain Jenkins, alleging that appellee and Captain Jenkins had purchased the boat as equal owners, and were to share the profits earned by Captain Jenkins in the operation of the tugboat equally. Appellee asked for an accounting to determine the profits earned by Captain Jenkins in the operation of the tugboat from the date of her purchase in 1939, and appellee prayed for judgment for his share of the profits, and to be adjudged the full owner of the tugboat because of certain concealments alleged to have been practiced upon him by Captain Jenkins, and in the alternative to be adjudged her half owner; appellee also prayed that he be awarded a lien against the tugboat for any sums found due him from her operation. He alleged that the tugboat is without legal attendant and is in great danger of sinking if some person is not placed in charge of her, and does not operate her while the suit is pending. The petition was duly verified.

On June 11th, the court entered an order reciting service of notice, and found from the pleading and evidence that appellee has at least a one-half interest in said property, and that such interest is in danger of being lost; that unless a receiver be appointed appellee would suffer irreparable loss, and found that a receiver should be appointed, and further found E. G. Lote; to be a duly qualified person to be appointed receiver of the tugboat, the ownership of which was in dispute between appellee and appellant.

On July 31, 1940, S. S. Turner, administrator, filed a motion to the order appointing E. G. Lotz receiver of the tugboat “Ernest” on these grounds:

(1) That on May 14, 1940, when Captain' Jenkins died, he was in possession and entitled to possession of the tugboat, which was registered under his sole ownership in the office of collector of customs af Beaumont. And that appellee wrongfully removed the “Ernest” from the dock at Port Arthur without her accredited master in violation of láw, and from the County of Jefferson, the place of residence of Captain Jenkins at the time of his death to Ana-huac in Chambers County, in order to place her beyond the possession and’control of the administrator. That the appointment of .the receiver is therefore void.

(2) That under Art. 5,-Sections 8 and 16 of the Constitution Vernon’s Ann.St., the County Court of Jefferson County has the exclusive jurisdiction over the estate of Captain Jenkins, deceased, and he being in possession and entitled to possession of the tugboat at his death, his administrator, under Art. 3314, Vernon’s Annotated Civil Statutes of Texas, has the sole right of possession as it existed at the death of the intestate. And the suit having been filed' after the death of the intestate, the appointment of the receiver is void.

(3) That notwithstanding appellee’s allegations of ownership of, or partnership interest in, the tugboat, he has never registered his interest at the home port of the vessel as required by law, and that his allegations negative any danger of the property being lost because the administrator is under bond, and subject to the control of the probate court which affords ample protection against loss, and there is no alie-gation of wrongful management by the administrator.

(4) That appellee has an adequate remedy at law by sequestration or attachment of the tugboat, and is therefore not entitled to the remedy of receiver.

(5) That E. G. Lotz is not entitled to be receiver because he had asserted he had guaranteed for Captain Jenkins the payment of certain labor and supplies for the operation of the tugboat.

The court refused the motion, and the administrator appeals.

The appellant here urges each ground • set up in his motion below as a ground for reversing the order of the court below refusing to vacate the appointment of the receiver.

We cannot sustaiij the first. assignment of 'error. On the hearing of the. motion, appellee’s counsel offered in evidence the partnership-agreement between Captain Jenkins and appellee, when the following took place:

“The Court: I don’t think it is necessary to go into the merits of the suit.
“Appellant’s Counsel: I don’t think so either.
“Appellee’s Counsel: He sets up matters of fact that is necessary for us to deny.
■ “The Court: I believe they did, but that is ’going into the merits of the law suit. I don’t think it is necessary.
“Appellee’s Counsel: He shows license that Captain Jenkins is the owner.
“The. Court: It seems to me that is going to the merits of the law suit. I think your pleading would be accepted as true.”

Under appellee’s pleadings the tugboat was either appellee’s property, or it was partnership property. If it belonged to appellee exclusively, it was certainly not subject to administration in the probate court for the payment of Captain Jenkins’ creditors; and it is now well settled that an administrator is not entitled to the possession of partnership property, but that the surviving partner is entitled thereto, and must account to the administrator for the decedent’s interest after the partnership debts have been paid. Rogers v. Flournoy, 21 Tex.Civ.App. 556, 54 S.W. 386, 387; Goldstein v. Susholtz, 46 Tex.Civ.App. 582, 105 S.W. 219; Altgelt v. Alamo National Bank, 98 Tex. 252, 83 S.W. 6. The removal of partnership property .beyond Jefferson County could not be fraudulent as to the Probate Court of Jefferson County, as that court has no jurisdiction to administer partnership property. And we are unable to perceive how the shipping laws of the United States are in conflict with the superior right of a surviving partner to the possession of partnership property. Of course, if it were' admitted that the tugboat were partnership property, appellee would be entitled to possession thereof, and would not have to apply for a receiver; Goldstein v. Susholtz, supra. The dispute as to whether the property belonged to Captain Jenkins exclusively, or was partly owned by him and partly by appellee, can only be finally determined on the trial on the merits.

What has been said equally disposes of the second assignment of error, namely, that by law the County Court of Jefferson County has exclusive jurisdiction over the tugboat, and the administrator the exclusive right of possession.

Both the pleadings of appellee, and the proof at the hearing on the motion, showed that unless the tugboat was cared for it would sink and be lost. It had to be pumped out once every twelve hours, and without being pumped out it would sink from within 20 to 24 hours. But, as already shown, appellant was not entitled to administer on partnership property as against the superior right of a surviving partner to the possession thereof. The right to a receiver under these facts is authorized by Article 2293, Vernon’s Annotated Texas Civil Statutes.

We are unable to agree that Lotz became disqualified by an interest arising from the fact that the tugboat was in his charge at the time Captain Jenkins died, and he kept a keeper in charge thereafter and prevented it from sinking and becoming lost. He was not a party to the action for the appointment of a receiver. Vernon’s Annotated Texas Civil Statutes, Article 2294, provides “No party, attorney, or any person interested in any way in an action for the appointment of a receiver shall be appointed receiver.” The case of James v. Roberts Telephone & Electric Co., Tex.Com.App., 206 S.W. 933, relied on by appellant as ground for vacating the appointment of Lotz is not in point. In that case the receiver was the cashier and large stockholder of the bank which brought, and was therefore interested in, the action for the appointment of a receiver.

There being no error, the judgment of the court below should be affirmed; it is so ordered.

Affirmed.


source: Caselaw Access Project

author: SPEER, Justice.

license: Public Domain

text:
    PIPPIN v. HOLLAND, County Atty.
    No. 14155.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 13, 1940.

      Homer B. Latham and Benson & Benson all of Bowie, for appellant.
    Glenn Wilson, of Nocona, and T. H. Yar-brough, of Bowie, for appellee.
   SPEER, Justice.

This suit involves the contest of an election in a Common School District in Montague County, Texas.

On October IS, 1938, an election was held in Lone Prairie Common School District No. 11, to determine whether or not that district would be consolidated with Nocona Independent School District. The result of the election was officially declared to be for the consolidation, by a vote of 17 in favor of consolidation and 12 against.

L. W. Ritchie and Joe Pippin gave notice to Louis T. Holland, County Attorney of Montague County, in statutory form, of their intention to contest the election; accompanying the notice were grounds set ■out upon which contestants would rely. The contest was based upon allegations that the following persons, not qualified, were permitted to vote and that they voted for consolidation: T. P. Farris, Obie Vowell, Mrs. D. W. Sewell, John Gideon Thompson and Mrs. Rhoda Bell Thompson; that other persons who were legally qualified to vote in said election were denied that right, and if permitted to vote they would have voted against consolidation; they were alleged to be: J. J. Ritchie, Mrs. Vera Ritchie, J. B. Reeves and Mrs. Modrie Reeves.

Aside from general and special exceptions, not necessary to mention here, con-testee answered by general denial and specially that one Mrs. A. C. Short voted against consolidation in said election, when she was not qualified to vote at the time and place.

L. W. Ritchie, one of the original contestants, moved out of the district pending suit and by amendment the remaining contestant, Joe Pippin, prosecuted the contest.

Trial was had to the court and nearly 400 pages of transcribed testimony was heard; at the conclusion of argument by counsel, judgment was entered upholding the result of the election in favor of consolidation, and denying contestant the relief prayed for. From this judgment appeal was perfected.

The trial court filed findings of fact and conclusions of law, with respect to each of those alleged to have voted illegally, as well also as to those who were alleged to be entitled to vote and were denied the right by the election officers. It was -found by the court that the votes of T. P. Farris and Mrs. A. C. Short were cast without authority of law or fact; that Farris voted for consolidation and Mrs. Short against it. Relative to Obie Vowell,' J. G. Thompson and Mrs. Rhoda Bell Thompson, who were alleged to have voted for consolidation when they' were not legal voters, the court found that they voted, but because it was not established by a preponderance of the evidence as to how they voted, the legality of their votes became immaterial as a matter of law in this suit. The facts upon which the court relied concerning Mr. and Mrs. Thompson’s votes were substantially that Mr.- Thompson testified by deposition on direct examination that he voted for consolidation, but on cross-examination he said that in casting his ballot he marked out that part which read: “For Consolidation,” and had no recollection how the ticket read after being thus marked. Obviously, if he marked out the words, “For Consolidation”, thereafter the ticket read, “Against Consolidation”, making one part of his testimony contradictory to the other. This did not destroy his testimony as a whole, but simply raised a question of fact, with the burden of proof on contestant to show that he voted for consolidation. New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620, writ refused; Foster v. Woodward, Tex.Civ.App., 134 S.W.2d 417, writ refused; Hyde v. Marks, Tex.Civ.App., 138 S.W.2d 619, writ dismissed, correct judgment.

Mrs. Rhoda Bell Thompson testified by deposition, and when asked how she voted said that she voted “for Nocona”. That she did not know what was printed on the ticket, nor what was on it after she had marked out a part of it. From this the court found that contestant had not discharged his burden of showing that she voted for “Consolidation”, as alleged, and that it was immaterial to the issue as to whether or not she -was in fact a legal voter.

Referable to Obie Vowell and Mrs. D. W. Sewell, the remaining two alleged by contestant to be illegal voters casting their ballots for consolidation, the court found from the facts proved that they were entitled to vote in the election, and there is evidence in the record abundantly sufficient, if believed, to support the court’s findings.

The four electors alleged by contestant to be legal voters in the district, who were denied the right to vote, and who would have voted against consolidation, were J. J. Ritchie and his wife, Vera Ritchie, and J. B. Reeves and his wife, Modrie Reeves. The court found as a fact that Mr. and Mrs. Ritchie lived in a house near the line between the Lone Prairie and Belcherville Districts; that the occupants of those premises had for many years been considered by the county school superintendent and the trustees of both districts as residing in the Belcherville District, and their children had always been enrolled in that district and had attended the public schools there; that the dividing line between the districts was the line of the old Watson Survey, the location of which line was disputed, and the court found as a fact: “That exactly which district said Ritchies lived in at the time of said election is still not determined.” He further found, in effect, immediately following that part quoted, that a preponderance of the evidence shows that the Ritchies were not at the time of the election qualified electors in the Lone -Prairie School District. We take the court’s finding of fact to mean that contestant had not discharged the burden of proof placed upon him to show that the Ritchies did 'in fact reside in the Lone Prairie District. The evidence in the record supports the court’s findings, and for the. reason hereinafter stated we are not at liberty to hold otherwise. In any event, the two votes involved would not have changed the result of the election had they been cast against consolidation.

There was a further finding by the court that J. B. Reeves and wife had not resided in Montague County for six months next preceding the date of the election on October IS, 1938, and therefore they were not entitled to vote in said district, as contended for by contestant. The findings and the testimony showed that Reeves and wife had lived in Zavalla County until late in August of 1938, and voted in that county in both the first and second primaries of that year. The record supports the findings of fact filed by the court.

In election contests such as this, where the grounds of contest are that certain persons cast illegal votes, that others entitled to vote were denied that right, and that those not entitled to vote cast their ballots against the issue involved and those who were denied the right to vote would have voted, if given the opportunity, to the contrary, the burden of proof is Upon’ the contestant to establish by a preponderance of the evidence, each alleged fact and to show that the result of the election would have been different if illegal votes had not been allowed and those entitled to do so had been permitted to vote. 16 Tex.Jur., sect. 145, page 190. The text cited summarizes a number,of decisions there cited in these words: “If the election is contested upon the ground that one or more persons were unlawfully denied the right to vote, it devolves upon the contestant to show by clear and satisfactory evidence that such persons possessed all the necessary qualifications of voters. The votes of certain persons having been received and counted by the election officers, they are prima facie legal, and the burden is upon the contestant to show that they are illegal. And it is incumbent upon the contestant to prove that had the illegal voters not been permitted to vote the result would have been different.”

It is a well settled rule in this state that where fact issues are tried to the court without a jury, the findings of fact by the court have the same effect as the verdict of jury when one is had. In either event, if there is evidence of a substantial nature to support such findings or verdict, although there may be evidence to the contrary, the appellate court has no authority to substitute its own conclusions and deductions for those of the court or jury. 3 Tex. Jur., sect. 771, page 1102. The rule there announced has been followed many times since the text was published. See also, City of Wichita Falls v. Travelers Ins. Co., Tex.Civ.App., 137 S.W.2d 170, 177, writ dismissed, correct judgment.

In practically every instance passed upon by the court in determining whether or not the named persons were legally qualified as electors in the school district election, there was conflicting evidence, which could have been construed differently and could have been given more weight than was given by the trial court,. but it was his prerogative to test the credibility of the witnesses and weight of their testimony, and there is evidence of probative force to support the conclusions reached; they are final with us.

Contestant’s nine assignments of error are, substantially, that there was sufficient evidence introduced to show that each of those persons named in the petition voting for consolidation was not a legal voter, and those alleged to have been denied the right to vote would have, if permitted to do so, cast their ballots for consolidation, were legal voters. There is no complaint made by these assignments that there is no testimony in 'the record showing that those complained of as haying voted, were entitled to vote, nor that there was an absence of testimony that those denied the right were not legal voters. The assignments only raise the question of the sufficiency of the evidence to support the findings of the court and the judgment entered thereon. It cannot be said that there was no evidence offered by contestant tending to support his contentions relative to the rights of the parties mentioned, to vote in 'the election, but certainly there was evidence' to the contrary which raised an issue of fact for determination. If the assignments had been based upon the lack of any evidence to support the findings they would have been- without merit and would have found no support in the record. With the facts controverted as they were, if the court had found with the contention of contestant, it would have been supported by competent testimony. But the findings of fact (which were analogous to a jury verdict) were against those contended for by contestant, and, having support in the record by substantial evidence, the rule above announced must be applied. 17 Tex.Jur., sect. 410, page 910; 41 Tex.Jur., sect. 378, page 1246; Oats v. Dublin Nat’l Bank, 127 Tex. 2, 90 S.W.2d 824; Post v. State, 106 Tex. 500, 171 S.W. 707; Texas Co. v. Tucker, Tex.Civ.App., 129 S.W.2d 762, writ refused; Corn v. First Texas Joint Stock Land Bank of Houston, Tex.Civ.App., 131 S.W.2d 752, 760, writ refused; Ostrom v. Jackson, Tex.Civ.App., 127 S.W.2d 987; Sproles Motor Freight Lines v. Juge, Tex.Civ.App., 123 S.W.2d 919, writ dismissed, correct judgment.

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


author: GRAVES, Judge.

text:
    SMITH v. FIRST NAT. BANK IN GROVETON.
    No. 11067.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 12, 1940.
    Adams & Morgan, of Crockett, for appellant.
    Crow & Chessher, of Groveton, for ap-pellee.
   GRAVES, Judge.

This appeal is from a judgment of the Special Ninth District Court of Trinity County, of date January 13, 1940, overruling a plea of personal privilege of the defendant, F. A. Smith, in cause No. 6760 on the docket of such court, styled First National Bank in Groveton v. W. H. Moore et al., to be sued therein in Houston County, where he resided, rather than in Trinity County where the venue was laid.

The appellee concedes this to be a substantially correct statement of the nature and result of the suit, to-wit:

“On December 8, 1939, this suit was filed in the District Court of Trinity County by appellee, First National Bank in Grove-ton, against appellant, F. A. Smith, and W. H. Moore and John Moore, it being alleged by plaintiff that W. H. Moore and John Moore were partners, operating as J. S. Moore & Sons. W. H. Moore and John Moore were residents of Angelina County, Texas, and appellant, F. A. Smith, was a resident of Houston County, Texas. F. A. Smith promptly and timely filed his plea of privilege to be sued in Houston County; appellee promptly and timely filed its controverting affidavit to the plea of privilege, to which appellant excepted; and this issue was tried before the judge of the district court without a jury, on January 13, 1940, when judgment was rendered overruling the general demurrer and plea of privilege of appellant. To this action, appellant in open court excepted, gáve notice of appeal, filed his appeal bond, and this is the appeal from that judgment.
“This is a suit upon two promissory-notes, signed ‘J. S. Moore & Sons by W.. H. Moore’, both dated in 1938, and payable to the order of plaintiff, and being respectively for the sums of $6,000.00, and $3,500.00. These notes are as follows:
“ ‘$6000.00
“ ‘Groveton, Texas, Nov. 16, 1938.
“ ‘Four months after date, without grace, I, we, or either of us, as joint principals, promise to pay to the order of
“ ‘First National Bank in Groveton
“ ‘Six Thousand & No/100-Dollars at the office of the First National Bank in Groveton, Groveton, Texas, with interest at the rate of eight per cent per annum from date until paid, and ten per cent attorney’s fees (minimum fee of $10.00) if collected by law, or placed with attorneys for collection. Value received. The makers and endorsers of this note hereby waive demand, protest and notice of non-payment and consent to the extension of the same without notice. Full authority is hereby given said bank or other legal holder hereof, upon non-payment at maturity, to sell .at any time thereafter any collateral pledged .as security hereto, either at public or private sale without notice, and said bank or ■other legal holder hereof may become the purchaser of such collateral and have clear .title thereto.
“ ‘Due 3-16-39 No. 4625
“ ‘Int paid to
‘Security 4-11-39
J. S. Moore & Sons
By W. H. Moore
“ ‘Credit
“ ‘$3500.00
“ ‘Groveton, Texas, Nov. 16, 1938.
‘On Demand after date, without grace, I, we, or either of us, as joint principals, promise to pay to the order of
“ ‘First National Bank in Groveton
‘Thirty five hundred and No/100 — Dollars .at the office of the First National Bank in ■Groveton, Groveton, Texas, with interest .at the rate of eight per cent per annum from date until paid, and ten per cent attorney’s fees (minimum fee of $10.00) if ■collected by law, or placed with attorneys for collection. Value received. The mak■ers and endorsers of this note hereby waive ■demand, protest and notice. Full authority is hereby given said bank or other legal Folder hereof, upon non-payment at maturity, to sell at any time thereafter any collateral pledged as security hereto, either at public or private sale without notice, and said bank or other legal holder hereof may become the purchaser of such collateral and have clear title thereto.
“ ‘Due-No. 4626
“ ‘Security Int paid to 4-11-39
J. S. Moore & Sons
By W. H. Moore.
“ ‘Credit
“It will be noticed that they provide for eight per cent per annum interest, and for a ten per cent attorney’s fees; and the suit is for the principal, interest, and attorney’s fees due on the notes.
“The appellant, F. A. Smith, is sued upon the theory that, about June 17, 1935, J. S. Moore & Sons applied to plaintiff for a line of credit and for a loan of $10,000.-00, and that F. A. Smith executed his written guarantee and suretyship for the loan of $10,000.00 and for a $10,000.00 line of credit, the alleged guarantee being as follows:
“‘Groveton, Texas
“ ‘June 17, 1935.
“ ‘First National Bank in Groveton
“‘Groveton, Texas.
“ ‘Dear Sirs:—
“ ‘You have loaned J. S. Moore and Sons $10,000.00 and I hereby guarantee the payment of same, and any renewal of same or further extensions of credit.
“ ‘Yours very truly,
“‘(Signed) F. A. Smith
“‘F. A. Smith.’
“Plaintiff alleges that the notes sued upon were loans and indebtedness incurred by J. S. Moore & Sons, made in the course of the alleged line of credit and in reliance upon the above-alleged guarantee of F. A. Smith.
“The controverting plea set forth the foregoing, and alleged that the notes sued on were written upon the printed forms of the Bank, that F. A. Smith was familiar with such forms and knew that all of the notes and indebtedness were payable in Trinity County, Texas, and that he contracted in writing to perform his alleged guarantee in Trinity County, Texas; that the notes sued on are a continuation of the alleged guarantee contract of F. A. Smith, and that this agreement and the notes sued on are but one and the same obligation, which is in writing to be performed in Trinity County, Texas. That for these reasons, Section S of Article 1995, R.C.S., is applicable, and the suit is maintainable in Trinity County, Texas. Appellee further pleaded that John Moore and W. H.. Moore were partners, that the district court of Trinity County had venue of the suit as against them, and that F. A. Smith was a necessary party to said suit; and further, that F. A. Smith, by virtue of the alleged guarantee, became jointly and severally liable with John Moore, W. H. Moore, and J. S. Moore & Sons, upon these promissory notes; that the suit was instituted for recovery against all the defendants, jointly, as well as severally, and F. A. Smith was a necessary party thereto; that the súit 'was' properly maintainable against the Moores, and F. A. Smith was a necessary party, and the district court of Trinity County had venue under Section 29a of Article 1995, R.C.S. Appellee further alleged that J. S. Moore & Sons is a partnership and association within the meaning of Section 23, Article 1995, R.C.S., upon a' cause of action that arose in Trinity County, Texas, and that F. A. Smith is a necessary party to the suit.”

This further résumé of what are deemed the most material if not the controlling features of the evidence heard below upon the issues thus joined by appellant’s plea of privilege and the-controverting affidavit of the appellee bank, taken from the former’s brief, is thought- to be correct, if not in fact without dispute:

“Upon the plea of privilege hearing, the defendant F. A. Smith, offered no evidence, and the evidence offered by ap-pellee is contained in 37 pages of the Statement of Facts. Briefly, it was as follows: The notes sued on and signed ‘J. S. Moore & Sons, by W. H. Moore’, and the alleged guarantee signed by F. A. Smith, were introduced. L. P. Atmar, President of ap-pellee, testified that he was acquainted with the firm of J. S. Moore & Sons, that W. H. Moore is a member of the firm, that he thinks W. H. Moore had a brother, that F. A. Smith signed the alleged guarantee in his presence, and brought W. H. Moore to the Bank and asked for a loan of $10,-000.00 and stated that he, F. A. Smith, would guarantee the payment; that he, L. P. Atmar, prepared the original note for $10,000.00, and letter of guarantee, the guarantee and note being signed June 17, 1935. That it was contemplated by Mr. Atmar, Mr. Smith, and J. S. Moore & Sons, that ‘this was an application for a line of credit .and that in the future there would have to be additional credit advanced to the firm.’ That afterward, J. S. Moore & Sons, at different times, made various loans from the First National Bank in Groveton, and a ledger-sheet indicating these loans was produced and is in the Statement of Facts. There are about twenty notes shown on the statement. That J. S. Moore & Sons had been making loans with the Bank off and on for ten or fifteen years, and that each time a loan was made to J. S. Moore & Sons, notes on the Bank’s printed forms were executed by them to the Bank. That F. A. Smith spent considerable time in the Bank, and was present many times when notes for other people were prepared by Mr. Atmar. That the Bank continued to carry a line of Credit with J. S. Moore & Sons, and Mr. Smith always came with Mr. Moore and made application for these loans and asked Mr. Atmar to make them, and on several occasions came to the Bank alone and signed notes for J. S. Moore & Sons. That at one time, on July 15, 1936, J. S. Moore & Sons were out of debt to the Bank (this was shown by the copy of the Bank records in the Statement of Facts between pages 14 and 15). That J. S. Moore & Sons have always operated as a partnership, and held themselves out as partners, and always acted through either J. S. Moore in his lifetime, or W. H. Moore since the death of J. S. Moore, who is now deceased. That neither W. H. Moore nor John Moore nor F. A. Smith resides in Trinity County, Texas. That Mr. Atmar did not know how many members were, or are, in the firm of J. S. Moore & Sons, of whether his widow or daughter continued as members of the firm. There was no evidence that J. S. Moore & Sons was a partnership, other than the general understanding of L. P. Atmar; or that W. H. Moore and John Moore composed the partnership; or that there had been no change in the membership of the partnership after F. A. Smith executed the alleged guarantee and before the creation of the debts sued for.”

On the record thus presented, it is concluded ' the learned trial court erred in overruling the plea; that no one of the relied-upon subdivisions of R.S. Article 1995, Vernon’s Ann.Civ.St. art. 1995, overrode the otherwise affirmative and valuable right of the appellant, under that statute, to be sued in Houston County, where he had his domicile.

In the first place, it seems plain that the two contracts severally sued upon, that is, the notes against Moore & Sons, and the guarantee against the appellant, were, under'our authorities, separate and distinct ones, without any intrinsically-stated mutuality of obligation as to either by the makers of the other, and that, while the notes expressly bound the signers of them on the face thereof to pay them in the county of the suit, the declared-upon guarantee by the appellee did no such thing; there was therefore on the face of the papers themselves no joint obligation as between the several parties to these distinct and different undertakings upon their part, hence, while the Moores (or such of them as constituted the alleged firm) at the time material to the suit, were obligated to answer in the specified county of Trinity— although neither they nor appellant lived there—no such agreement upon their part could be so extended beyond its plainly expressed meaning as to likewise bind the appellant to go outside of his home county of Houston. 21 Tex.Jur., page 169; Lasater v. Waits, 95 Tex. 553, 68 S.W. 500; Behrens Drug Co. v. Hamilton & McCarty, 92 Tex. 284, 48 S.W. 5; Lindheim Bros, v. Muschamp, 72 Tex. 33, 12 S.W. 125; Jarecki Mfg. Co. v. Hinds, Tex.Civ.App., 295 S.W. 274; 43 Tex.Jur., paragraph 19, page 732; Holloway v. Blum, 60 Tex. 625; Hamlin et al. v. Aetna Casualty & Surety Co., Tex.Civ.App., 13 S.W.2d 382; Employers’ Casualty Co. v. Wm. Cameron, Tex.Civ.App., 288 S.W. 584; Scarbrough & Davis v. Culp, Tex.Civ.App., 276 S.W. 743; Stribling et al. v. American Surety Co., Tex.Civ.App., 41 S.W.2d 300; Farmers’ & Merchants’ Nat. Bank v. Lillard Milling Co., Tex.Civ.App., 210 S.W. 260; Phipps v. Willis, 11 Tex.Civ.App. 186, 32 S.W. 801.

The several obligations being thus separate and distinct and each party thereto being so answerable only upon his own independent undertaking, and, as just indicated, none of them being residents' of the county of the suit, it seems plain— under these differing documents—that the Moores and Smith were not jointly and severally liable to the appellee bank; wherefore, there was no venue against this appellant under either Subdivisions 4 or 5 of Article 1995, Vernon’s Ann.Civ.St. art. 1995, subds. 4, 5. Farmers’ & Merchants’ Nat. Bank v. Lillard Milling Co., supra.

In the second place, appellant was not a necessary party under Subdivision 29a to the bank’s suit, within'the rule applied in such cases as Commonwealth Bank & Trust Co. v. Heid Bros., 122 Tex. 56, 52 S.W.2d 74, and Pioneer Building & Loan Ass’n v. Gray, 132 Tex.509, 125 S.W.2d 284. In the Heid Bros, case the defendants were engaged in a joint enterprise, while in the Gray case, Gray was a grantee of the mortgaged realty sought to be foreclosed upon, wherefore, in both instances, the challenged venue was sustained because of those inhering conditions under Subdivision 29a, whereas here there were no such' determinative facts present in either particular—a guarantor, such as Smith was,' being neither in a joint enterprise with the appellee bank, nor holding such an interest in any real property involved in the litigation, as rendered it impossible for the bank to get full -relief against the Moores on their notes without him. Indeed, from all the latest definitions of a necessary party within the meaning of Subdivision 29a, it is clear that the bank could have secured full relief in its suit against the Moores for judgment on their unsecured promissory notes, without the join-der of Smith, and that he was in nowise “so vitally interested in the subject-matter of the litigation that a valid decree cannot be rendered without his presence as a party.” Bender v. Armstrong, Tex.Civ.App., 59 S.W.2d 451, 452; West Texas Const. Co. v. Guaranty Bldg. & Loan Co., Tex. Civ.App., 93 S.W.2d 774; Storrs-Schaefer Co. v. Shelton, Tex.Civ.App., 82 S.W.2d 156; Beckham v. Pantex Pressing Mach.) Tex.Civ.App., 135 S.W.2d 188; Phipps v. Willis, 11 Tex.Civ.App. 186, 32 S.W. 801.

In the third place, these parties— by the undisputed state of this evidence, as summarized—were not engaged in any joint enterprise together; that is, they assumed in writing these separate and distinct classes of obligations to the bank, the Moores to meet their specifically designated promissory notes according to the face thereof, and Smith to meet his likewise specified secondary obligation only— to guarantee the payment of a $10,000 loan, or any renewal thereof, that had been made prior to June 17 of 1935 to the bank by J. S. Moore & Sons—no particular note or loan, and no place or time of payment being specified upon'the face of such guaranty, hence the principle applied by this court in West Texas Const. Co. v. Guaranty Co., Tex.Civ.App., 93 S.W.2d 774, supra, applies, rather than that in Beckham v. Pantex Pressing Mach., Tex.Civ.App., 135 S.W.2d 188, supra, for the reason that neither the West Texas Const. Co. v. Guaranty Co., supra nor analogous cases, involved the application of Subdivision 29a to the foreclosure, either “of a chattel-mortgage, in which the parties sought to be joined with the mortgagor were in possession of the mortgaged chattels” [135 S.W.2d 190], or of a deed of trust upon land, of which the party sought to be joined was a vendee.

Further discussion being deemed unnecessary, the judgment will be reversed- and the cause remanded to the trial court, with instructions to transfer the same, as against the appellant, to Houston County.

Reversed and remanded, with instructions. •


author: SMITH, Chief Justice.

text:
    EWING et al. v. MOODY.
    No. 10777.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 27, 1940.
    Rehearing Denied Jan. 8, 1941.
    James A. Harley, of San Antonio, and Seale & Wood, of Corpus Christi, for appellants.
    Terrell, Davis, Hall & Clemens and Leroy Jeffers, all of San Antonio, for ap-pellee.
   SMITH, Chief Justice.

This appeal is from an order overruling the plea of privilege of Ethel Moody Ewing (and her husband) to be sued in Nueces County, conceded to be her domicile, in a suit brought against her by Thomas Lawson Moody, Jr., in a District Court of Bex-ar County.

The action was brought by Moody against Mrs. Ewing to establish ownership of and recover title to 23% shares of the capital stock of Dr. Moody’s Sanitarium, a corporation domiciled and operating its business exclusively within Bexar County. It appears that this stock had been previously pledged with Mrs. Ewing as collateral for a debt which Moody contends has now been discharged, and that Mrs.Ewing still has possession of the certificate and claims ownership of the stock. The record does not show where the certificate is now physically located, however.

Appellee, Moody, will be referred to as plaintiff, and appellant, Ewing, as defendant, as in the court below.

Plaintiff sought to sustain venue in Bex-ar County under the tenth exception to the general venue statute, Subd. 10, Art. 1995, R.S.1925, which provides that “suit for the recovery of personal property may be brought in any county where the property may be or where the defendant resides.”

Plaintiff contends that this suit comes within the tenth exception, because it is “a suit to recover shares of stock in a corporation, is a suit for the recovery of personal property; said shares of stock are located in the county of the domicile of the corporation; and, hence, venue of such suit may be fixed in the county of the corporation’s domicile regardless of the residence of the defendants or the physical location of the stock certificates.”

On the other hand, defendant contends that “shares of stock in any Texas corporation have their situs where the person of their Texas resident owner is, which in this case would be in Nueces County. Secondly, defendants contend, in any event, shares of stock being by nature of incorporeal rights or choses in action do not fall under Subdivision 10 of Art. 1995, R. C.S. of Texas, 1925, relating to actions to recover personal property, * *

It is provided by statute:

“Art. 1334. * * * Stock and Certificates
“The stock of any corporation created under this Title [‘Corporations—Private’] shall' be deemed personal estate * * *. Every shareholder in the corporation shall be entitled to have a certificate or certificates representing the number of shares owned by him * * As amended Acts 1939, 46th Leg., p. 134, § 1 (Vernon’s Ann.Civ.St. art. 1334).

We hold that shares of the capital stock of a corporation constitute personal property within the contemplation of the 10th exception of the venue statute. , Art. 1334, supra; Jellenik v. Mining Co., 177 U.S. 1, 20 S.Ct. 559, 44 L.Ed. 647.

Therefore, under that exception, suits such as this, to establish and recover ownership of such shares, may be brought in the county where such shares “may be” —are situated.

We hold, further, that as a matter of law and within the contemplation of the tenth exception to the venue act, the shares of the capital stock of a corporation are deemed to be in the domicile of the corporation in which its assets are situated. Anno., 122 A.L.R. 338; 7 R.C.L. p. 197, § 167; 20 Texjur. p. 722, § 21; A.L.I. Restatement Conflict of Laws, p. 84, § 53 ; Cook on Corporations (8th Ed.) p. 73, § 12; Jellenik v. Mining Company, supra; Turner v. Trust Co., Tex.Com.App., 215 S.W. 831; Presnall v. Stockyards Nat. Bank, Tex.Civ.App., 151 S.W. 873, affirmed 109 Tex. 32, 194 S.W. 384. Giving effect to these holdings, we conclude that venue of this cause was properly laid in Bexar County, where the corporation issuing the shares involved has its principal office and all its business and activities are located and conducted. Appellants’ first proposition will be overruled.

In his trial petition plaintiff alleged, purely in the alternative, a cause of action for conversion, but as no proof was offered thereunder at the hearing of the plea of privilege, those allegations cannot be given effect in determining venue.

The plaintiff below simply proved the nature of the cause of action to recover personal property in the nature of corporate shares by introducing his petition, in connection with-his controverting affidavit. The plaintiff further proved that the corporation issuing the shares of stock was domiciled and operated exclusively in the county of suit. This showing constituted sufficient evidence of the venue facts of the case. 43 Tex.Jur. pp. 741, 846, 863, §§ 26, 110, 120. We overrule defendants’ second proposition.

The judgment is affirmed.


author: O’QUINN, Justice.

text:
    EDUCATORS MUT. LIFE INS. CO. OF AMERICA v. SKINNER.
    No. 3767.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 12, 1940.
    Nelson Scurlock and Rawlings & Sayers, all of Fort Worth, for appellant.
    Callaway & Callaway, of Brownwood, for appellee.
   O’QUINN, Justice.

This appeal was prosecuted by appellant, Educators Mutual Life Insurance Company of America, to the Austin Court of Civil Appeals, from the judgment of the district court of Brown county, overruling its pica of privilege to be sued in Tarrant county. The case is on our docket by order of transfer by the Supreme Court.

The cause of action plead by appellee, G. C. Skinner, against appellant was for damages for breach of contract. Appellee alleged that on or about the 10th day of May, 1937, he entered into a written contract with appellant to serve as its district manager in Brown county and thirteen other Texas counties. By his controverting affidavit, appellee claimed venue in Brown county under Subdivision 23 of Article 1995 that his cause of action against appellant, a corporation, arose in Brown county.

If it be conceded that appellee had a lawful contract with appellant, good for twelve months or more, and if it be further conceded that the contract was executed in Brown, county, and was to be in part performed in Brown county, yet appellant contends that under the evidence it did not unlawfully breach the contract, in other words that it lawfully, under the terms of the contract, discharged appellee.

That contention is sustained in two respects :

(a) By the terms of the contract, appel-lee was obligated to produce monthly the following amount of business:

“Month Amount Required
6/10/37 to 7/10/37 $15,000
7/10/37 to 8/10/37 20,000
8/10/37 to 9/10/37 20,000
9/10/37 to 10/10/37 20,000
10/10/37 to 11/10/37 20,000
$95,000”

On the undisputed evidence, appellee produced only the following amount of business:

“Amount Produced Deficiency
$ 3,000 $12,000
3,500 . 16,500
3,000 17,000
1,000 19,000
2,000 18,000
$12,500 $82,500”

Under the contract, for the five months named appellee was obligated to produce $95,000 in business; he produced only $12,500; there was a breach of the contract to the extent of $82,500.

(b) By the terms of the contract, appel-lee was obligated to give all of his time to appellant; under the undisputed evidence appellee carried an agency with another company, and from time- to time wrote business for that company.

From the statement made, it clearly appears ’ that' appellee breached his contract and, on that breach, appellant had the right' to discharge him.

The law on these facts, as stated in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 93, is that appellee rested under the burden of establishing by evidence a cause of action against appellant *for breach of contract; in that case the court said: “The substance of this exception of article 1995 is that venue may not be maintained in a county not the domicile of the defendant unless the crime, offense, or trespass upon which the suit is based was committed in such county. Proof of the fact of the com-. mission of the crime, offense, or trespass is as essential as is proof of the place where it was committed. The commission of. the •crime, offense, or trespass is under the terms of this exception a part of the venue facts.”

The lower court tried this case on. the theory. that appellee was required to .show only that if he had a cause of action it arose in Brown county, and that he was not required to introduce evidence establishing the cause of action.’ On this point, appellant makes the following statement:

“It is apparent from the record that the trial court acted upon the erroneous theory that the plaintiff was not required to prove that the transaction constituted a cause of .action against the defendant insurance company. In the order entered by the coujt. ■overruling the plea of privilege, it is stated that the : court ‘is of the opinion that, if plaintiff has a cause of action, it arose in Brown County, which issue would be a jury issue, and, therefore, the said plea of privilege is not -well taken and should.b.e in all things overruled.’ Also, in the codicil -written by the court on the bill of exception, it is stated:
“ ‘At the conclusion -of the -evidence, it .appeared to the court that if the plaintiff Rad a cause of action, it accrued in Brown •County, thereby conferring venue in Brown •County; that whether or not the plaintiff had a cause of action involved the fact issue of whether or not the defendant had a bright to terminate the contract, and this in turn involved the fact issue ' under the pleading and evidence of whether or not' the defendant had waived certain provisions in -the contract, and that the determination of. these issues determined the merits of the suit, which is not proper under a plea of privilege hearing.’ ”

That the court was in error in its theory of the case is sustained by the following quotation from Compton v. Elliott, supra:

“By the second question certified is presented appellant’s contention that the plea of. privilege should have been overruled, because on the hearing he discharged the burden of proof resting upon him, when he introduced evidence which prima facie proved all of the essential elements of the crime or offense of malicious prosecution and that the crime or offense was committed in the county where the suit was filed. His position is that, while he had the burden of proving the venue fact or facts, he was not required to prove them in the ordinary manner, but merely to introduce enough evidence to prove them prima facie, or to raise an issue,- and that evidence offered by the defendant in contradiction of plaintiff’s prima facie case should be disregarded.
“This contention we cannot' sustain, although it is supported by decisions of some of the Courts of Civil Appeals. As has been shown, article 2007 is construed to have the effect of placing upon the plaintiff the burden of proving the facts relied upon by him to bring the case within the exception. The decisions of the Supreme Court, which have been cited above, announce this rule, without qualification. In so doing, they carry the reasonable, if not the necessary, implication that plaintiff must prove' the facts in the usual way, which means that the defendant is to be permitted by his evidence to dispute and contradict plaintiff’s evidence. * * * .
“It is true that this construction of the statute means that the issue as to the com-, mission of the crime or offense may .be twice tried, once in the hearing of the plea of privilege and once ■ in the trial on the merits, with added -expense and delay and sometimes with inconsistent results. But proof of the venue facts is the price which the plaintiff pays for the benefits which he expects to derive from the exception. He may avoid the hardship of twice proving that the crime or offense was committed by filing his suit in the county of the defendants residence.”

Appellee has filed no brief. From appellant’s brief it reasonably appears that ap-pellee may be able to establish against appellant the issues of waiver and condonement, not plead on this appeal. So, our conclusions herein are not intended to foreclose appellee’s rights on a trial on the merits.

From what we have said above, it follows that the judgment of the lower court overruling the plea of privilege should be reversed and the cause remanded to the lower court with instructions to transfer this cause to the district court of Tarrant county, and it is accordingly so ordered.

Reversed and remanded with instructions.


author: NORVELL, Justice.

text:
    PAINTER BUS LINES, Inc., v. CARPENTER.
    No. 10774.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 27, 1940.
    Rehearing Denied Jan. 8, 1941.

      Ewell H. Muse, Jr., of Austin, for appellant.
    Carter & Lewis, H. C. Carter, Champs G. Carter, and Randolph L. Carter, all of San Antonio, for appellee.
   NORVELL, Justice.

This is an appeal from an order overruling the plea of privilege of Painter Bus Lines, Inc., defendant below.

It is contended that appellee, Bonnie Val Carpenter, the plaintiff below, waived her rights asserted by her controverting affidavit in failing to obtain a hearing thereon. Article 2013, Vernon’s Tex.Civ.Stats.

The controverting affidavit was filed during the April, 1939, term of said court. No hearing was held on the plea and controverting affidavit during that term, but an order of continuance was entered which recited the court would “not have an opportunity to dispose of the plea of privilege and the controverting affidavit.” A continuance without prejudice was ordered.

During the next term of court (June, 1939) the District Court entered another order of continuance, without prejudice, reciting “that the business of the court” would “not permit the court to hold the hearing” and that the same was “postponed by agreement of the parties.” The hearing, by this order, was set for August 14, 1939, at which time the hearing was actually held and the order overruling the plea of privilege entered.

Before the hearing, however, the Special Practice Act became applicable to the Civil District Courts of Bexar County.^ See Article 2092, Vernon’s Tex.Civ.Stats., 1939 Supp., and that part of Article 199, Vernon’s Tex.Civ.Stats., 1939 Supp., relating to the District Courts of the 37th, 45th, 57th and 73rd Judicial Districts.

Appellant filed a motion to strike the controverting affidavit based upon the contention that the same had been waived. The trial court heard evidence upon the motion and overruled the same. We cannot disturb this ruling. When a hearing upon a plea of privilege and controverting affidavit is continued by a trial court “without prejudice,” this court will presume that the trial court acted legally and within the scope of its authority. Plere the orders of the trial court indicate that the continuances were ordered in accordance with the provisions of Article 2013. Clearly there is nothing contained in these orders which tends to negative the presumption that the continuances were ordered in compliance with the article. Gregg v. De Shong, Tex.Civ.App., 107 S.W.2d 893. The evidence of appellant tending to show that the second order of continuance was not the result of an agreement, related to a matter which is not controlling in view of the above holding, and need not be discussed. The fact that the special practice act became effective while the plea of privilege and controverting affidavit were pending, did not deprive the trial court of jurisdiction to set the issue for hearing on August 14, 1939, as provided for in the second order of continuance, nor did it deprive the trial court of jurisdiction to hear and determine said issue upon said date. Paul v. Dutton, Tex.Civ.App., 55 S.W.2d 606.

We next consider the merits of -the controversy over the proper venue of this case. Appellee is a resident of De Witt County and brought this action against appellant, a corporation domiciled in Uvalde County, Texas. In her petition, appellee alleged that appellant was engaged in operating busses and transporting passengers as a common carrier from Sabinal, Uvalde County, to San Antonio, Bexar County; that appellee while a passenger on one of appellant’s busses was subjected to severe cold and exposure, by reason of appellant’s negligence, and that such exposure resulted in serious illness and damage to appellee.

Appellee relies upon exceptions Nos. 23 and 24, of Article 1995, Vernon’s Tex.Civ. Stats., for the maintaining of venue of this action in Bexar County. The petition was expressly made part oí the controverting affidavit and the allegations thereof were covered by appellee’s oath. The allegations of the affidavit were sufficient to bring the case under Subdivision 23 of Article 1995, which in part provides that: “Suits against a private corporation * * * may be brought in any county * * * in which such corporation * * * has an agency or representative * * Appellant’s exceptions to the controverting affidavit were properly overruled by the trial court.

Although in the past there was some diversity of opinion among the various Courts of Civil Appeals as to the kind of showing necessary to maintain venue under exception 23 of Article 1995, as well as other-exceptions contained in the article, it has now been definitely settled by the Supreme Court that the “venue facts” which plaintiff must necessarily prove differ as to the various exceptions and are dependent upon the particular wording of each exception,- and that the venue' facts of exception 23, applicable to this case, are (1) that appellant is a corporation, and (2) that it has an agency or. representative in Bexar County.- It was not necessary for appellee to make a prima facie showing of liability. Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978; Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. See also National Aid Life v. Self, Tex.Civ.App., 140 S.W.2d 606; .General Motors Accéptance Corporation v. Lee, Tex.Civ.App., 120 S.W.2d 622; De Shong Motor Freight Lines v. North Texas Coach Co.; Tex.Civ.App., 108 S.W.2d 766.

It is undisputed that appellant is a corporation. Upon the issue of the existence of an agency in Bexar County, appellee introduced in evidence a contract originally entered into between Miller Pendleton and James Amberson, co-partners, and W. R. Painter and Sol West, also co-partners, doing business as Painter’s Bus Line. It was shown that Painter’s Bus Line was thereafter incorporated as Painter Bus Lines, Inc., and that Southwestern Greyhound Lines, Inc., succeeded to all interests, duties and liabilities under the contract which were originally held’by Pendle-ton and Amberson. It was further shown that said contract was in full force and effect at the time appellee’s injuries were alleged to have occurred, at the time the suit was filed and at the time of the hearing upon the plea of privilege.

Under the contract, Pendleton and Am-berson and their assigns were obligated to provide terminal facilities for -appellant. Pendleton and Amberson retained baggage checking privileges at the motor bus station provided for in the contract, but agreed to receive such articles and baggage as patrons desired transported by Painter’s Bus Line and deliver same to the proper bus operator, and “as agents of Painter’s Bus Line * * * bill all such articles or parcels and thus be entitled to a fee of ten cents {lOji) on each article transported.”

The contract further provided that Pendleton and Amberson should “assume entire responsibility for the handling and sale of all tickets delivered to them by the said Painter’s Bus Line and * * * remit daily all funds due and payable there-’ for, together with daily report of tickets sold or handled.”

Appellee also introduced evidence as to actual operations under the contract. From this evidence, it appears that Southwestern Greyhound Lines, Inc., as assignees of Pendleton and Amberson, furnished waiting room and toilet facilities to passengers on appellant’s line; handled appellant’s passengers’ baggage; sold its tickets and remitted money to appellant by “agency drafts,” and gave out time tables and information concerning the operation' of appellant’s lines.

The evidence above outlined is sufficient to support a finding or conclusion that appellant “has an agency or representative” in Bexar County, as those terms are used in Article 1995, Subd. 23. Dixie Motor Coach Corporation v. Watson, Tex.Civ.App., 138 S.W.2d 314; Avery Co. of Texas v. Wakefield, Tex.Civ.App., 225 S.W. 875. In the state of the record, we presume the trial court made such finding. City of San Antonio v. Uvalde Rock Asphalt Co., Tex.Civ.App., 11 S.W.2d 829. The fact that the “agency or representative” relied upon in sustaining venue is acting in a corporate capacity is immaterial insofar as the question of venue is concerned, regardless of what effect it might have in other fields of law. We are not here called upon to decide the -sufficiency of process served upon an agent or a dispute in which the extent of corporate power under a charter is concerned. It would be an anomalous situation if individuals, such as Pendleton and Amberson, could be considered as agents and representatives, and their corporate successors such as Southwestern Greyhound Lines, Inc., who performed the same services under the same contract, could not be so considered because of its corporate organization.

As the venue of this case was properly fixed in Bexar County under subdivision 23 of Article 199S, we pretermit discussion with reference to subdivision 24 of the venue article.

The judgment of the trial court is affirmed.


author: BROWN, Justice.

text:
    SECURITY MUT. CASUALTY CO. v. WOODARD.
    No. 14148.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 6, 1940.
    Rehearing Denied Jan. 10, 1941.
    Thompson & Barwise and Seth Barwise, all of Fort Worth, for appellant.
    Clark, Craik, Burns & Wed.dell and J. Harold Craik, all of Fort Worth, for ap-pellee.
   BROWN, Justice.

This is a workmen’s compensation case. Appellee Woodard, an employee of Swift & Company, sustained a severe head injury at the plant, or packing house, in Fort Worth, Texas, and having given notice of his injury and made claim be' fore the Industrial Accident Board of Texas, and not being satisfied with the ruling of the Board, appealed therefrom, and brought his suit for total, permanent disability in the District Court of Tarrant County.

The defendant insurance carrier, who is the appellant here, answered by a general demurrer and general denial.

All jurisdictional facts were agreed to by the insurance carrier except that it was not expressly agreed that Woodard was injured in Tarrant County, but each successive step, necessary to show jurisdiction of the district court in which the cause was tried, was specifically set forth and agreed to and these stipulations are then followed by the following: “That this suit was thereafter filed in the District Court of Tarrant County, Texas, on May 20th, 1939. It is further agreed that the defendant, Security Mutual Casualty Company, thereafter failed to perfect its appeal to the District Court.”

This latter portion of the stipulations follows that whereby it was agreed that both the injured employee and the insurance carrier gave notice of dissatisfaction with the ruling and award of the Board and notice of intention to appeal.

The cause was tried to a jury on special issues and all such were answered favorably to the plaintiff, finding him totally and permanently disabled, on which findings the court rendered judgment for the plaintiff and the insurance carrier has appealed.

Three assignments of error are presented. The first urges that: “The court erred in failing to grant the defendant a new trial for the reason that there was no testimony showing that the injury complained of was received in Tarrant County, Texas, and that being a burden imposed by law upon the plaintiff, it was error- for the court to refuse to grant defendant’s motion for an instructed verdict and for the failure of the court to grant a new trial as pointed out in paragraph 5 of defendant’s objections to the court’s charge.”

The assignment of error is distinctly multifarious and complains of two separate and distinct rulings of the trial court, but appellant has seen fit to present only the latter portion of the assignment and its proposition reads as follows: “The court erred in failing to grant the defendant a new trial in this suit because the evidence wholly failed to show that the alleged injury to the plaintiff occurred in Tarrant County, Texas, and absent such showing it was error for the court to enter a judgment against the defendant, or having so entered a judgment, to refuse to grant the defendant a new trial since Article 8307a of Vernon’s Ann.Civ.St. provides that it is. mandatory that a suit based upon the Workmen’s Compensation Act shall be brought in the county in which the injury is alleged to have occurred.”

In our opinion, there are several' reasons why the assignment of error is. not well taken. In the first place, we believe that the stipulations, voluntarily made-by counsel, covering the jurisdictional facts,, are such that they show that this suit was. properly brought by the employee in the-district court that had jurisdiction over the cause of action.

In the second place, the whole record,, which has been read by us, discloses that the case was tried by all parties on the-theory that the district court in which the-suit was tried was the proper tribunal in. which to try same. And, without some specific objection to the trial of the case-because of lack of jurisdiction to try same, on the part of the defendant, it does not-appear to us that a different theory may be-here presented for the first time.

In the third place, the trial court, in the-judgment, made the following findings of' fact: “That this is a compensation case growing out of injuries sustained by plaintiff, E. S. Woodard, January 19th, 1938, while in the course of his employment for Swift & Company, in Tarrant County,. Texas.”

Such finding has not been attacked by the insurance carrier and no assignment of error attacking these findings has been: presented.

We believe that for such reason the findings must stand.

But we are further of opinion that the-stipulations entered into by counsel, together with the testimony adduced, furnish: evidence sufficient to sustain the trial! court’s findings.

In the fourth place, if this assignment of error is to be considered we must look to the objections to the court’s charge on which it is bottomed.

Appellant makes no effort to show this part of the record in the statement under his assignment of error, but is content with stating that, “there was no evidence introduced during the trial of this case showing in what county the alleged injury to the plaintiff occurred”, and gives its version of the testimony adduced. But we turn to the objections made to the court’s charge and find that in its motion for a new trial its paragraph 5 in such motion is the portion of the record referred to, and the objections which purport to sustain the assignment of error read as follows: “Defendant objects and excepts to the court submitting this case to the jury for the reason that the testimony in this •case is wholly insufficient to authorize the •entry of a judgment in favor of the plaintiff in the event the jury should arrive at a verdict; and any judgment entered on any verdict brought in by virtue of the charge of the court would not be supported by the facts and evidence in this case.”

We respectfully submit that such ■objections to the court’s charge in nowise raise or support the assignment of error, hut on the other hand these objections show clearly and distinctly that they refer to the charge as given and not to any omissions on the part of the trial court to give a correct charge.

It is perfectly proper for a litigant to present a reconstructed assignment of •error, but it is imperative that any such .assigned error be one that may be fairly .and reasonably carved out of or deduced from the portion of the record on which it is bottomed.

An examination of the record shows that •without doubt the error as assigned is not ■one that may be reasonably deduced from that portion of the record from which it purports to have been taken.

Be it further said that the assigned error is not fundamental; therefore it is one that must be raised in the trial •of the case in the trial court. It was not so raised.

Appellant relies upon Lloyds Casualty Co. v. Lem, Tex.Civ.App., 62 S.W.2d 497, and Traders & General Ins. Co. v. Curby, Tex.Civ.App., 103 S.W.2d 398, but an examination of these decisions will show that they are not in conflict with our holdings here.

The second assignment of error insists that the trial court erred in submitting the issues relating to temporary incapacity conditioned upon a negative answer to the issue pertaining, to permanent incapacity; and the third assignment of error insists that the trial court erred in failing to unconditionally and unqualifiedly submit the question of temporary incapacity of the plaintiff after timely objection thereto had been made by the defendant. These assigned errors being akin are considered together.

They' are bottomed on paragraph 6 of the motion for a new trial, and this portion of the record insists that the trial court “erred in failing to sustain paragraph 11, subdivision 2, of the defendant’s exception to the court’s charge, as followsThe objections are to the instructions preceding Special Issues 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15 and 16, “and each of them for the reasons that such instructions and each of them constitute a charge on the weight of the testimony; is a comment by the court which is violative of the rights of the defendant, and indicates to the jury the manner and way in which the court expects the jury to answer the questions and indicates to the jury the way in which the court thinks the questions should be answered, and violates the rights of the defendant; are prejudicial, and places a bigger burden on the defendant than the law requires, and informs the jury of the effect of their findings.”

We submit that these objections do not complain at the charge because certain issues are submitted conditionally when same should have been submitted unconditionally.

We are of opinion that this objection to the “instructions preceding each of” fourteen designated special issues is too general to specifically call the trial court’s attention to the error which is attempted to be presented to this court.

What we said in Wachholder v. Kitchens, Tex.Civ.App., 126 S.W.2d 519, is applicable here.

We are also of opinion that the objections do not meet the requirements announced in Stillman v. Hirsch, 99 S.W.2d 270, by our Supreme Court.

All assignments of error are overruled, and the judgment is affirmed.


author: MONTEITH, Chief Justice.

text:
    STATE NAT. BANK OF HOUSTON v. WOODFIN.
    No. 11087.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 5, 1940.
    Rehearing Denied Jan. 9, 1941.

      Fulbright, Crooker, Freeman & Bates, of Houston (Paul Strong, of Houston, of counsel), for appellant.
    Fowler & Conn, of Houston (Ralph L. Fowler, of Houston,, of counsel), for ap-pellee.
   MONTEITH, Chief Justice.

E. D. Woodfin, appellee herein, brought this action against appellant, the State National Bank of Houston, for the recovery of the market value of 31 shares of stock of the Humble Oil & Refining Company, alleged to have been converted by appellant, and for the cancellation and return of a note for the sum of $815 executed by appellee in its favor.

Appellee alleged that in October, 1937, he had arranged with appellant for a loan for the purpose of purchasing certain, shares of stock of the Kirby Petroleum Company, such loan to be represented by a note to be collaterally secured by both 31 shares of stock of the Humble Oil & Refining Company and the Kirby Petroleum Company stock to be purchased; that it was understood and agreed that the proceeds of said loan were to be paid by appellant bank for appellee to the brokerage firm through which said stock was to be purchased, only upon the actual physical delivery of said stock to appellant; that in furtherance of said agreement, appellee executed and delivered to appellant a collateral note in blank and a collateral assignment of both the Humble and Kirby stock with the express understanding that said note was not to be effective until said Kirby stock was delivered to appellant. Ap-pellee alleged that appellant had paid the proceeds of said loan to said brokers without receiving said Kirby stock and had converted his Humble stock by refusing to return it to him, and that on April 4, 1938, it had sold 17 shares of said Humble stock.

Appellant answered by general denial and general demurrer. It alleged that, acting under appellee’s instructions, it had advanced to his brokers the sum of $815 for the purchase of 200 shares of Kirby Petroleum Company stock for which appellee had executed his note and deposited as collateral 31 shares of Humble Oil & Refining Company stock. It specially pled a custom to collect the full purchase price for stock purchased prior to its transfer and delivery where money was advanced for its outright purchase in a customer’s name. It alleged that appellee had declined to pay said note at maturity and that 17 of said 31 shares of Humble Oil & Refining Company stock, which had been pledged as security therefor, had been sold under a collateral pledge agreement. The remaining 14 shares of Humble stock were tendered to appellee.

In answer to special issues submitted, the jury found that the agreement between appellant and appellee was that the bank would pay them money only upon delivery to the bank of the Kirby stock; that the directions given to appellant by appellee concerning the delivery and payment for the Kirby stock were not that appellee would go over to Sterling &■ Baker and put in an order for said Kirby stock and that they would deliver the stock to appellant and pick up the check; that appellant did not in good faith and in the exercise of ordinary care interpret appellee’s directions to mean that delivery of the Kirby stock was not required before making payment for it, and that appellant did not honestly believe that it was following appellee’s directions when it allowed the money to be paid to Sterling & Baker.

Based on the jury’s findings, judgment was rendered in appellee’s favor for the sum of $1,043.04. He was awarded the title and possession of the 14 shares of Humble stock tendered him by appellant and said note for the sum of $815 was can-celled and annulled.

The record shows that Sterling & Baker, the brokers through whom appellee ordered the Kirby stock in question, notified appellant that said 200 shares of stock had been purchased for appellee by their brokers in New York and that the certificate therefor was being sent to Houston to be re-issued in appellee’s nanfie. On' October 21, 1937, appellant delivered its check for the sum of $815 to a representative of Sterling & Baker and received from him a receipt therefor obligating Sterling & Baker to deliver said 200 shares of Kirby Petroleum Company stock to appellant. On November 2, 1937, Sterling & Baker were adjudged bankrupt and were placed in the hands of a receiver. Said 200 shares of Kirby Petroleum Company stock were never delivered to either appellant or appellee.

Appellant sets up as a defense to appel-lee’s cause of action a custom, alleged to have existed in Houston and elsewhere in the buying and selling of stocks, that where money was advanced for the purchase of stock in a purchaser’s name, it was customary to collect the full purchase price therefor prior to its transfer and delivery, and contends that said custom must be read into appellee’s alleged agreement with appellant and that, therefore, appellant was not obligated thereunder to withhold the payment of the purchase price of said stock from appellee’s brokers until said stock was •delivered to it.

It has been uniformly held in this State that a custom, in order to constitute an element of contract, must be either shown to have been known personally to the parties to the contract, or to have been ■so general and universal that the parties are charged with knowledge of its existence to such an extent as to raise a presumption that they dealt with reference to it.

While the record in the instant case shows said custom to have been recognized •in brokerage and banking circles, there is neither pleading that appellee was familiar with the custom relied on, or that it was so general and universal as to charge ap-pellee with knowledge of it, nor is there evidence or circumstances which would charge him therewith. The record shows that he had been employed by an oil company for many years. He testified that he 'had never bought stocks through a broker •prior to the purchase of the Kirby Petroleum Company stock- involved herein, and that he did not know anything about any custom of stock brokers. Anderson v. Caulk, Tex.Civ.App., 5 S.W.2d 816; McNabb v. Woolfolk, Tex.Civ.App., 240 S.W. 1043.

A valid custom concerning the subject matter of a contract, knowledge of -which may be imputed to the parties, is, .according to a general rule, incorporated into the contract by implication. 42 Tex. Jur. 842. This rule is applicable, however, only when there is nothing in the agreement to exclude such inference. Murray Co. v. Gilbert, Tex.Civ.App., 80 S.W.2d 805; and evidence of a custom is not competent to contradict the plain and unambiguous terms of an express contract or to vary, control, impair,, restrict, or enlarge the explicit language of the agreement. 42 Tex.Jur. 847; Fortson v. Williams, Tex. Civ.App., 128 S.W.2d 89, and cases therein cited.

In the instant case, the appellee pled the following express agreement: “Plaintiff now alleges that said note was executed by him for the express and sole purpose of purchasing 200 shares of the capital stock of the Kirby Petroleum Company, that it was expressly agreed between plaintiff and defendant that the proceeds of such loan was to be paid to said brokers only upon the actual physical delivery of said stock to defendant, and only in such event.” The jury found, upon sufficient evidence, in answer to special issue No. 1 submitted by the court, that the agreement between Mr. Oliver (the representative of appellant bank) and Mr. Woodfin (appellee) was that the bank would pay the money only upon delivery to the bank of the Kirby stock. The terms of the agreement pled by appellant are plain and unambiguous. Under the' above authorities and the facts and circumstances in this case, we do not think that evidence of the custom relied upon by appellant is. competent to vary or modify the terms of the alleged agreement.

Appellant assigns error in the action of the trial court in submitting to the jury special issue No. 1, for the alleged reason that said issue assumed that there was an agreement between the representative of appellant and appellee with reference to the time of payment for the stock in question, when this question was one of the disputed issues in the case.

Special issue No. 1 reads: “Do you find from a preponderance of the evidence that the agreement between Mr. Oliver and Mr. Woodfin was that the bank would pay the money only upon the delivery to the bank of the Kirby stock?” The jury answered said issue in the affirmative.

This contention cannot be sustained. While it is evident from a reading of this issue' that it assumes the existence of an agreement between appellee and the representative of appellant, we think that it is also evident that the agreement assumed that appellant was to advance funds to pay for said stock, • which is admitted by both parties, and that said issue seeks to elicit from the jury an answer to the controlling issue in the case as to whether or not said stock was to be paid for only upon its delivery to the hank.

We are unable to sustain appellant’s assignment of error to the action of the trial court in refusing to submit to the jury its requested special issue No. 15, for the reason that the substance of said requested issue was, we think, covered by special issue No. 1.

Special issue No. 15, requested by appellant, reads: “Do you find from a preponderance of the evidence that Mr. Wood-fin intended in his own mind to require the defendant to actually receive the stock certificate before paying Sterling & Baker for it, but did not say anything to defendant about delivery before the bank paid for the stock?”

It is the well settled law in this state that it is not error for the court to refuse a requested issue which submits in a different form an issue which is covered by the court’s charge. Maryland Casualty Co. v. Hill, Tex.Civ.App., 91 S.W.2d 391; Tennessee Dairies v. Seibenhausen, Tex.Civ.App., 99 S.W.2d 323; Arkansas Louisiana Gas Co. v. Max, Tex.Civ.App., 118 S.W.2d 383.

The decisions are also uniform in holding that a party is not entitled to the submission of two or more issues relating to the same ground of recovery or ground of defense. Consolidated Underwriters v. Christal, Tex.Civ.App., 135 S.W.2d 127; Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356.

Appellant further assigns error in the action of the trial court in rendering judgment in favor of appellee, for the alleged reason that there is an irreconcilable conflict upon material issues in the jury’s finding in answer to special issues No. 1 and No. 2.

Special issue No. 1 reads: “Do you find from a preponderance of the evidence that the agreement between Mr. Oliver and Mr. Woodfin was that the bank would pay the money only upon delivery to the bank of the Kirby stock?” To which the jury answered: “We do”.

Special issue No. 2 reads: “Do you find from a preponderance of the evidence that the directions, if any, given by Mr. Wood-fin to Mr. Oliver, concerning the delivery of and payment for the Kirby stock, were that he (Mr. Woodfin) would go over to Sterling & Baker and put in an order for that and that they would deliver the stock to the State National Bank and pick up the check?” To which the jury answered: “We do not”.

Our courts have uniformly held that apparent conflicts in the jury’s answers should be reconciled, if this can be reasonably done in the light of the facts in the particular case, the pleadings, evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole. It is further held that findings on ultimate facts control those on merely evidentiary issues and that specific issues will control general ones, and that, if by a reasonable interpretation of the findings, it appears that they are not in real and irreconcilable conflict, that they form the proper basis for judgment. Graham v. Hines, Tex.Civ.App., 240 S.W. 1015; Bragg v. Hughes, Tex.Civ.App., 53 S.W.2d 151; Aranda v. Texas & N. O. Ry. Co., Tex.Civ.App., 140 S.W.2d 236.

While a cursory inspection of the issues in - question and the findings of the jury thereon suggest the possibility of a conflict between ultimate issues, after a thorough examination of' the issues and the answers thereto, it is our conclusion-that special issue No. 1, in which the jury found that there was an agreement that the bank would pay said funds only upon delivery of the Kirby stock, is an ultimate controlling issue in the case, and that special issue No. 2, in which the jury found that appellee did not inform the-representative of appellant that he would, go over to Sterling & ■ Baker and put in an order for said stock and direct them to-deliver the stock to the State National Bank and pick up a check in payment therefor, is an evidentiary issue and the-answer thereto is not in conflict with the-answer to special issue No. 1.

This conclusion is borne out by the answers of the jury to special issues Nos. 4- and 6, in which the jury found that appellant did not in good faith and in the exercise of ordinary care interpret appellee’s, directions to mean that delivery of the-Kirby stock was not required before making payment for it and that appellant did! not honestly believe that it was following appellee’s directions when it allowed the money to be paid to Sterling & Baker.

It follows from above conclusions that the judgment of the trial court should be in all things affirmed, and it is so ordered.

Affirmed.


author: WALKER, Chief Justice.

text:
    KRUMMEN v. STILL et ux.
    No. 3725.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 4, 1940.
    Rehearing Denied Dec. 11, 1940.
    Eugene H. Murphy and Murphy & Murphy, all of Longview, for appellant.
    Ramsey & Ramsey, of San Augustine, for appellees.
   WALKER, Chief Justice.

In 1931 appellant, Ed Krummen, sold to appellees, C. L. Still and wife, a tract of 271 acres of land near Stuttgart, Arkansas, for a consideration of $4,000 cash and $11,-000 in notes.. •

Appellees’ theory is that they were induced to buy the land by fraudulent representations made to them by appellant; that after they had charged appellant with the fraud, he and they agreed to cancel the sale, on condition that they convey the land back to him, and he cancel their notes; that they performed their part of the agreement by conveying the land back to him, hut that he refused to surrender the notes; that in 1931 they filed their suit No. 3033, C. L. Still and Josephine Still v. Ed Krummen, in the Chancery Court, Southern District of Arkansas County, Arkansas, praying for cancellation of their notes and for judgment for the $4,000 cash paid by them to appellant, and for grounds of relief plead the fraud that induced them to buy the land and the subsequent rescission; that before the case was tried, they made a second agreement with appellant settling the differences between them, whereby they agreed to dismiss their suit ■ in Arkansas and to return to Texas, and appellant agreed to cancel the notes he held against them; that they returned to Texas and abandoned their suit, but in violation of his agreement, appellant in 1936 filed a cross-action against them, and in 1938 took judgment on his cross-action against them for the amount claimed by him to be due on his notes; that this action by appellant was in fraud of their rights; that he failed to cancel his indebtedness as he agreed, and they had no notice of the cross-action and of the judgment taken against them, and they had given no further attention to their Arkansas suit after they had made their settlement with appellant in 1931.

This suit was filed by appellant against appellees in District Court of San Augustine County on the 12th day of May, 1939, praying for judgment against them for the amount of his Arkansas judgment. Ap-pellees answered, pleading the fraud that induced them to purchase the land, the settlement whereby the sale was rescinded; the institution of the suit by them in Arkansas; the settlement of that suit; and appellant’s fraud in taking the judgment against them on his cross-action.

On the 10th day of January, 1940, judgment was entered in the District Court of San Augustine County overruling all of appellant’s exceptions to appellees’ pleadings, and on trial on the merits to the court without a jury, judgment was entered that appellant “take nothing”, from which he has prosecuted his appeal to this court.

In support of the judgment, the trial court filed the following conclusions of fact and law:

Findings of-Fact
. “1. In July, 1931, plaintiff proposed to sell defendants certain lands situated in Arkansas County, Arkansas, and represented to them that said land was excellent rice growing land, that it was free from red rice, obnoxious weeds and grasses which were detrimental to the cultivation of rice, and was equipped with a modern irrigation plant and had situated thereon a well adequate for the irrigation of the entire tract, arid that said land was not subject tp any drainage or levy district taxes. That defendants believing such representations and statements to be true and relying thereon purchased said land by deed dated July 20, 1931, and as consideration therefor paid plaintiff the sum of $4000 in cash and executed four certain promissory notes in the sum of $11,000 that were secured by a lien on the land.
“2. Thereafter defendants learned that the representations and the statements made by plaintiff about the land and relied, upon by them were false, and in September, 1931, defendants informed plaintiff of such falsity and demanded of him the return of the purchase price of said land, that is $4000 in cash and the four notes totalling $11,000. Plaintiff and defendants thereupon entered into an agreement whereby the matter was fully settled, in that plaintiff agreed to cancel the notes if defendants would reconvey the land, the deed to be executed by them and delivered to W. E. Leach, of Stuttgart, Arkansas, and defendants thereby accepted said agreement.
“3. In September, 1931, after the settlement agreement defendants executed the deed conveying the land to plaintiff placed same in an envelope addressed to W. E. Leach, Stuttgart, Arkansas, properly stamped same and placed it in the United States Post Office at Kilgore, Texas.
“4. That after the execution and delivery of the deed plaintiff did not cancel said notes, and in October, 1931, defendants filed suit in Arkansas County, Arkansas, against him for the recovery of $4000 and the cancellation of said notes. After suit was filed, and while defendants were in Arkansas County, Arkansas, plaintiff again agreed to cancel said notes if defendants would abandon their suit and return to Texas, and plaintiff further agreed to have said suit that defendants filed dismissed.
“5. That defendants accepted said agreement and returned to Texas with the understanding that plaintiff would have said suit dismissed and cancel said notes. Plaintiff did not have said suit dismissed, but filed a cross-action thereto asking for judgment against defendants on said notes, and afterwards defendants’ suit was dismissed, and that plaintiff obtained judgment on his cross-action and that defendants knew nothing of said cross-action or judgment,- and the first knowledge -defendants had of said judgment was when this suit was filed to establish same. -
“Conclusions of Law
“The Arkansas judgment was procured by the fraudulent conduct of plaintiff by inducing defendants to abandon their suit and return to Texas and agreeing to have their suit dismissed and cancel said notes in full settlement of said suit, and that said fraud deprived defendants of the opportunity of interposing in the Arkansas Court their defense to plaintiff’s cross-action, to wit, the cancellation of said notes upon the reconveyance of the land, and the further defense of the cancellation of said notes for the abandonment of defendants’ suit, that each of said defenses was a meritorious defense to said cross-action and judgment obtained thereon, and that defendants were not guilty of negligence in urging said defenses.”,

Appellant has presented no assignments against the court’s conclusions of fact and law. Appellees had the right to impeach appellant’s Arkansas judgment against them on allegations of fraud, and the facts alleged constitute fraud in the procuring of the judgment sufficient to set it aside. The following proposition is announced by 27 Tex.Jur. 575: “When a sister-state judgment is assailed in Texas the attack is, of course, collateral, and in order for such an attack to be successful the judgment must be void. If the sister state court had jurisdiction of the person of the defendant and of the subject matter of the suit, its judgment imports absolute verity and precludes further examination. But this does not mean that the judgment of a court of a sister-state may not be impeached when the grounds of attack are sufficient, as, for example, want of jurisdiction of the subject matter, or of the person of the defendant, or for fraud in the procurement of the judgment. This is so because the full faith and credit clause of the Constitution refers to judgments rendered by courts having jurisdiction over the person of the defendant and the subject matter in-litigation.”

Appellees’ right to avoid the judgment on allegations of fraud and supporting proof has clear support in the following authorities: Dyer v. Johnson, Tex.Civ.App., 19 S.W.2d 421; Babcock v. Marshall, 21 Tex.Civ.App. 145, 50 S.W. 728; Hare v. Reily, Tex.Civ.App., 269 S.W. 473.

The court’s conclusions of facts support a judgment to the same extent as the verdict of a jury, and not having assigned error against the court’s fact conclusions, appellant is bound thereby.

The following stipulation, duly signed by counsel for appellant and for appellees, was filed in this court on the 14th day of September, 1940:

“It is hereby stipulated by and between the parties to this cause, through their respective attorneys of record herein, that the following documents, which now appear in the Statement of Facts at pages hereinafter shown, were offered and received in evidence upon the trial of this cause in the court below, in behalf of appellant, to wit:
“Exhibits P-2 to P-13, both inclusive (S. F. 30, lines 7 to 28; 31; 32; 33; 34, lines 1 to 11), and exhibit P-20 (S. F. 161 to 166); exhibit P-21 (S. F. 166-167), and P-22 (S. F. 167 to 173) ; and that each of said exhibits was duly certified to by John Gunnell, clerk of the said Chancery Court of the Southern District of Arkansas County, State of Arkansas, as being true, exact and compared copies of the originals thereof on file in his said office, and additionally authenticated in strict conformance with the full faith and credit provisions of the legislation enacted by the Congress of the United States in pursuance of the authority granted by Article 4, Section 1, of the Constitution of the United States.
“It is hereby further stipulated that aforesaid certificates were introduced and received in evidence upon the trial of this cause in the court below and same can be incorporated in the Statement of Facts herein as a part thereof.
“All of the parties hereto, acting through their respective attorneys of record in this cause, hereby waive the requirement that the respective briefs of parties hereto, in this cause, be filed with the District Clerk of the court below at San Augustine, Texas.
“Executed on the 22nd day of August, 1940.”

This agreement was not approved by the lower court, and tneretore has no proper office in the record, except, the stipulation in relation to filing the briefs.

The judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.


text:
    STAR FINANCE CORPORATION et al. v. CHAIN INV. CO.
    No. 3762.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1940.
    J. W. Stovall and Chas.. Gibbs, both of San Angelo, for appellants.
    Upton, Upton & Baker, of San Angelo, for appellee.
   WALKER, Chief Justice.

On the 20th day of May, 1939, Phillip Córtese executed and delivered to C. M. Kenley his promissory note in the sum of $211.20, payable in Tom Green County in monthly installments of $17.60, with interest at 10% per annum from maturity, and with 15% additional as attorneys’ fees. This note was secured by a chattel mortgage executed by Córtese to Kenley of even date with the note, on a 1932 Ford automobile. It was recited in the mortgage that it “is intended to cover all additions, equipment and betterments which may hereafter be added to said property.” At the time of the execution of the mortgage, the automobile was fully equipped with four tires and tubes. On May 22, 1939, Kenley transferred and assigned this note and mortgage to appellee, Chain Investment Company, Inc. The mortgage was duly filed with the County Clerk of Tom Green County -for the purpose of registration.

On the 8th day of July, 1939, on the consideration of $20 in cash and deferred payment to the amount to $45, appellant, Hicks Rubber Company,- sold to Córtese four tires and tubes, identified by serial numbers; the unpaid purchase price was to be paid in ten semi-monthly payments of $4.50 each, beginning with August 1, 1939, secured by a chattel mortgage in the form of a note and a conditional sales contract. The conditional sales contract stipulated that the four tires and tubes should be affixed to the Córtese Ford car, and it was recited therein that appellee held against the car the mortgage above described; the conditional sales contract also constituted a mortgage on the Córtese car. This sales contract was duly filed with the County Clerk of Tom Green County for the purpose of registration.

Immediately on completion of the sale of the tires and tubes, they were affixed on the wheels of the Córtese car by appellant, Hicks Rubber Company. The old tires and tubes were taken off the automobile, but were not traded to Hicks Rubber Company.

The conditional sales contract was transferred by appellant, Hicks Rubber Company, to appellant Star Finance Corporation. At the time of the sale of the tires and tubes,' appellant, Hicks Rubber Company, had actual and constructive notice of all the conditions and stipulations of the Córtese mortgage to Kenley.

On the 12th day of August, 1939, appellant, the Star Finance Corporation, sued Phillip Córtese and Kenley in Justice Court in McLennan County, praying for judgment for the balance due on the sales contract and for foreclosure of its chattel mortgage on the tires and tubes. On writ of sequestration, the tires and tubes were seized in Tom Green County, and removed from the Córtese car.

On the 19th of August, 1939, appellee, Chain Investment Company, Inc., filed this suit in the County Court of Tom Green County against Córtese and Kenley, the two appellants, and certain other parties, praying for judgment for the balance due on its note and for foreclosure of its mortgage lien on the Córtese automobile, together with all its equipment, including the four tires and tubes sold Córtese by appellant, Hicks Rubber Company. Pending the trial of the case on its merits, a temporary injunction issued, restraining appellants from removing the tires and tubes out of Tom Green County.

At the. time this case was tried, the amount due on appellee’s demand against Córtese and Kenley was $247.45; the amount due Star Finance Corporation on its demand against Córtese for the balance due on the tires and tubes was $51.75, which had been reduced to judgment in the McLennan County Justice Court with foreclosure on the conditional sales contract as mortgage. At the time of the trial, the automobile was of the reasonable market value of one.hundred dollars, and the four tires and tubes were of the reasonable market value of- $45.

In the trial court, by their answers, appellants simply made the issue that their mortgage, evidenced by their conditional sales contract, was superior to appellee’s chattel mortgage. On trial to the court without a jury, judgment was in favor of appellee, Chain Investment Company, against Córtese and Kenley for the unpaid balance of its note, with foreclosure of its chattel mortgage lien against the Córtese automobile with all of its equipment including the four tires and tubes in issue, and that its lien on the four tires and tubes was superior to appellants’ lien; the injunction restraining appellants from removing the tires and tubes out of Tom Green County was made permanent. Judgment was in favor of appellants, foreclosing their lien subject to appellee’s lien. Appellants prosecuted their appeal to the Austin Court of Civil Appeals. The case is on our docket by order of transfer by the Supreme Court.

Opinion

The court erred in decreeing that appel-lee’s lien on the four tires and tubes was superior to appellants’ lien. This very point was before the San Antonio Court of Civil Appeals in Firestone Service Stores, Inc., v. Darden, et al., 96 S.W.2d 316, 317; the court said: “These tires being easily identified by serial numbers, and being so attached that they are easily removed, without injury to the automobile, do not become a part of the automobile by the rule of accretion or accession.”

In Richardson v. Washington, 88 Tex. 339, 31 S.W. 614, our Supreme Court held, Judge Denman writing the opinion, that a chattel mortgage covering after-acquired property creates no lien at law, though recognizing that it may constitute a valid lien in equity. The courts hold that equity will not function to- work an injustice to third persons.

It would cause a gross injustice to appellants in this case to declare appellee’s lien superior to appellants’ lien. Appellants did not take in exchange the old tires they removed from the Córtese automobile. Ap-pellee alleged that these tires were in good condition, and it is bound by that allegation. There is nothing in the record suggesting that these tires, in good condition, were not in the possession of Córtese and subject to appellee’s demand at the time this suit was filed. There is nothing in the record denying the conclusion that Córtese used two sets of tires in operating his automobile, alternating in their use. The record rather confirms that conclusion in this: Córtese bought the four tires and tubes on the 9th day of July, 1939, on the consideration of $65. This case was tried in County Court on the 29th day of February, 1940, at which time the court found in its fact conclusions, that the four tires and tubes had a market value of $45. The Córtese automobile was a Ford pick-up truck.

The following additional authorities support our conclusion: Hamilton National Bank v. Harris, Tex.Civ.App., 260 S.W. 318; Bowen v. Lansing Wagon Works, 91 Tex. 385, 43 S.W. 872; Park v. South Bend Chilled Plow Company, Tex.Civ.App., 199 S.W. 843; Motor Credit Co. v. Smith, 181 Ark. 127, 24 S.W.2d 974, 68 A.L.R. 1239; Goodrich Silvertown Stores v. Credit System, 200 Minn. 265, 274 N.W. 172; Clarke v. Johnson, et al., 43 Nev. 359, 187 P. 510; Bousquet v. Mack Motor Truck Co., 269 Mass. 200, 168 N.E. 800; Clark v. Wells, 45 Vt. 4, 12 Am.Rep. 187; and New Orleans & O. Railway Company v. Mellen, 12 Wall. 362, 20 L.Ed. 434.

It follows that the judgment of the lower court in favor of appellee should be reformed by dissolving the injunction restraining appellants from removing the four tires 'and tubes out of Tom Green County. Also, the judgment of the lower court decreeing that appellee’s lien on the tires is superior to appellants’ ■ lien should be reversed and judgment here rendered in favor of appellants decreeing their lien superior to appellee’s lien.

Judgment of the lower court affirmed in part and reversed and rendered in part.

Affirmed in part; reversed and rendered in part.