text:
    BUDDE v. NAVARRO OIL CO.
    No. 3737.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 14, 1940.
    Rehearing Denied Dec. 4, 1940.
    Greenwood, Moody & Robertson, of Austin, and C. O. Marsh, and McComb & Davis, all of Conroe, for appellant.
    Farish, Durno & Gordon, DeWitt M. Gordon, Jr., and Robert S. Durno, all .-of Houston, Pitts & Liles, of Conroe, and 'Peter M. Chuoke, Jr., of Houston, for appel-lee.
   WALKER, Chief Justice.

In cause No. 17220, S. O. Shaffer v. J. B. Brown, in district court of Montgomery county, judgment by agreement was entered on the 29th day of May, 1935, dividing among J. B. Brown and his wife, Mary F. Brown, S. O. Shaffer and his wife, Mary D. Shaffer, and Leo W. Budde, the Brown preemption survey of 50.39 acres of land' in Montgomery county, in the following pro-. portions: to J. B. Brown and wife, Mary F. Brown, the surface rights and an undivided one-half interest in the mineral rights; to S. O. Shaffer and wife, Mary D. Shaffer, and Leo W. Budde, jointly, the other one-half interest in the mineral rights. It was further decreed “that the said S. O. Shaffer and M. D. Shafer and the intervenor, Leo W. Budde, shall hold the interest hereby decreed to them 60% to the said S. O. Shaffer and wife, M. D. Shaffer, and 40% to the in-tervenor, Leo W. Budde.” All other parties to the suit were disposed of by the terms of the judgment. On June 14, 1932, the Browns executed a mineral lease to Navarro Oil Company, covering the E. P. Brown pre-emption survey, the land in controversy in cause No. 19220. On February 10, 1933, the Shaffers executed a mineral lease on this survey, duly recorded, to Navarro Oil Company, retaining a royalty interest of ⅛⅛ in the oil in and under the land. We give section No. 1 of this lease: “1. Lessor in consideration of ten and no/100 dollars ($10.00) in hand paid receipt of which is hereby acknowleged and other consideration as stipulated and provided for in a contract of even date herewith between the undersigned parties and other interested parties, the original of which is in possession of J. L. Pitts, Conroe, Texas.”

The contract referred to in the Shaffer lease, and of even date therewith, was executed by S. O. Shaffer and wife, Mary D. Shaffer, the law firm of Pitts & Liles, and W. N. Foster as lessors, and Navarro Oil Company as lessee, and provided for an oil payment of $50,000 by Navarro Oil Company to the lessors out of oil to be produced from the leased premises, and provided further for an additional royalty interest of l/32nd payable also by Navarro Oil Company.

Leo W. Budde intervened in cause No. 17220, after Shaffer had executed his lease to Navarro Oil Company, alleging that S. O. Shaffer and Mary D. Shaffer were holding in trust for him an undivided one-half interest in the Brown survey. On the 15th day of November, 1933, the district court of Montgomery county entered its judgment in cause No. 17220 against the Browns and in favor of the Shaffers and Budde for the title and possession of the Brown survey, the land in controversy, andón an agreement between the Shaffers and Budde divided the land in controversy between them, 3/5ths to the Shaffers and 2/5ths to Budde. The agreement between the Shaffers and Budde became a final judgment, but on appeal the judgment against the Browns was reversed by this court and the cause remanded for a new trial, as between them claiming all the land in controversy and the Shaffers and Budde claiming all the land in controversy; Brown v. Shaffer, Tex.Civ.App., 78 S.W.2d 1054, former opinion, Shaffer v. Brown, Tex.Civ.App., 59 S.W.2d 854.

The judgment of May 29, 1935, referred to above, was entered after the second remand, and was on the following written agreement, and a copy of the judgment was attached as an exhibit to the agreement:

“J. B. Brown, et al
■ — and— No. 19121
Navarro Oil Company
“This Contract and Agreement made and entered into on this 1st day of May, 1935, by and between J. B. Brown and wife, Mary F. Brown and assigns, hereinafter referred to as ‘Brown’, S. O. Shaffer and wife, M. D. Shaffer, and assigns, hereinafter referred to as ‘Shaffer’, Leo W. Budde and assigns, hereinafter referred to as ‘Budde’, and Navarro Oil Company, a corporation, hereinafter referred to as ‘Navarro’, Wit-nesseth:
“Whereas, ‘Brown’, ‘Shaffer’ and ‘Budde’ are in litigation over the title in and to the property hereinafter described; and
“Whereas, ‘Navarro’ owns the oil and gas mining rights under the terms and conditions of certain oil and gas mining leases hereinafter referred to the seven-eighths (7/8ths) working interest in and to said property; and
“Whereas, the said ‘Brown’, the said ‘Shaffer’ and the said ‘Budde’ are desirous of settling, compromising and disposing of their controversy over the title in and to said property and their interest therein and thereto; and
“Whereas, ‘Navarro’ is desirous of contributing and aiding them to the extent of and as hereinafter provided:
“Now, Therefore, it is hereby agreed by and between the parties hereto as follows, to-wit:
“1. The said ‘Brown’, ‘Shaffer’ and ‘Budde’, and all interests which they represent hereby agree that they will make, execute and deliver unto ‘Navarro’ a new lease which will be an affirmation and confirmation of the leases heretofore made, executed and delivered by ‘Shaffer’ and ‘Brown’ providing for the usual one-eighth (l/8th) royalty to the land owner and other provisions usually contained in Texas 88 Producers Form Lease, which, however, shall in the discretion of the ‘Navarro’ be on either form of lease heretofore executed by ‘Brown’ or ‘Shaffer’; and said parties shall execute releases of all oil payments provided in said leases owned by them to ‘Nawsfo' except one-thirty-second (l/32nd) royalty as provided in Paragraph No. 7 hereof.
“2. It is further agreed by the ‘Navarro’ that "in consideration of the execution of the new lease covering said property hereinafter described in lieu of and in substitution for the two leases which have heretofore been executed by ‘Brown’ and ‘Shaffer’ the said ‘Navarro’ agrees to pay, as hereinafter provided, the sum of Sixty-one Thousand Two Hundred Dollars (61,200.00) the land referred to above being described as follows: The E. P. Brown Preemption Survey in Montgomery County Texas, Patent No. 117, Vol. 29, containing by actual survey 50.39 acres, and being more particularly described in oil, gas and mining lease from J. P. Brown and others to Navarro Oil Company of date June 14, 1932, recorded in Vol. 143, page 457 of the Deed Records of Montgomery County, Texas, in oil, gas and mining lease from S. O. Shaffer and wife, M. D. Shaffer, to Navarro Oil Cpmpany of date February 10, 1933, recorded in Vol. 155,' page 563, Deed Records of Montgomery County, Texas.
“3. It is further agreed between ‘Brown’, ‘Shaffer’ and ‘Budde’ that all moneys 'received from any and every source, including the ‘Navarro’ as bonus payment, and the Tidal Pipe Line Company, shall be -divided between ‘Brown’ and ‘Shaffer’ and ‘Budde’, one-half to ‘Brown’ and sixty (60) per cent of one-half to ‘Shaffer’ and forty (40) per cent of one-half to Budde, and the checks therefor shall be made out to said interest as directed and this agreement and contract shall be the authority and direction to said companies for such payment.
“4. It is further agreed between the parties hereto that said law suit and the controversy between the parties hereto shall be settled and finally disposed of upon the following basis, to-wit:
“(a) The said J. B. Brown and wife, Mary F. Brown, in their individual right, shall have the title to said land, together with the full fee simple title in and to one-half of all mineral rights therein and thereto.
“(b) The said S. O. Shaffer and M. D. Shaffer and Leo W. Budde shall have the •full fee simple title in and to one-half of all mineral rights in said land, with the right of ingress and egress, and the right to enter and do geophysical and other exploration work, and the right to enter upon and explore, develop and operate the mineral rights in and to said land without any obligation whatsoever unto the said ‘Brown’ for any damages of any character of nature. The one-half awarded to the said ‘Shaffer’ and ‘Budde’ shall be apportioned by said judgment sixty (60) per cent to ‘Shaffer’ and forty (40) per cent to ‘Budde’. A copy of the judgment to be entered in said cause is hereto attached and made a part hereof.
“5. It is further agreed between the parties hereto that all unpaid court costs and all accrued taxes due and payable shall be paid by ‘Navarro’ out of the Sixty-one Thousand Two Hundred Dollars ($61,-200.00) which they hereby obligate themselves to pay and the balance of the said Sixty-one Thousand Two Hundred Dollars ($61,200.00) distributed between the parties hereto as herein provided.
“6. It is further expressly agreed as to the accumulated one-eighth royalty now held by the Tidal Pipe Line Company the same shall be, as hereinafter provided, divided equally between ‘Brown’ and ‘Shaffer’, the ‘Shaffer’ interest to be divided sixty (60) per cent to ‘Shaffer’ and forty (40) per cent to ‘Budde’. It is further expressly agreed that ‘Navarro’ shall be entitled to receive all accumulated oil now held by the Tidal Pipe Line Company on account of oil payments provided in leases heretofore executed, and this agreement is the authority and direction of said Tidal Pipe Line Company, to pay over and deliver to said ‘Navarro’ all said sums, and this instrument shall be their voucher and acquittal therefor.
“7. It is further expressly agreed by and between ‘Navarro’ and ‘Shaffer’, that ‘Shaffer’ and the interest represented by ‘Shaffer’ herein shall have and receive during the productive life of the lease of the ‘Navarro’, a one-thirty-second (l/32nd) royalty effective as of May 1, 1935 in addition to the landowner’s one-eighth (l/8th) royalty provided in the lease to be executed to the said ‘Navarro’.
“This contract is signed and executed by all the parties interested in said property on the day and year hereinbefore set out.
“Parties Designated ‘Shaffer’.
S. O. Shaffer. M. D. Shaffer. Pitts & Liles, by:
J. L. Pitts. J. L. Pitts. J. Robert Liles.
“Parties Designated ‘Brown’
Guy H. Hooper J. B. Brown
W. N. Foster Mary F. Brown
R. D. Simonton S. A. Crawford
W. A. Evans T. W. Crawford
W. L. Dean,
By: S. W. Dean
Frank Dean,
Emma Wycough, executors of Estate of W. L. Dean, Deceased. T. E. Humphrey, Individually and as surviving partner of Dean & Humphrey. Also Ind. Exr. Estate of Ella Corley, Dean, deed.
“Parties Designated ‘Budde’
Leo W. Budde.
“Llewellyn, Dougharty & Reeves,
By: J. Llewellyn
F. K. Dougharty,
Geo. E. Reeves.
“Navarro Oil Company,
By: Jeff D. Farish, Attorney.”

The new lease called for by the agreement upon which final judgment was entered was duly executed and delivered, and reserved in the lessors a l/8th royalty. We quote as follows from that lease: “S. O. Shaffer & wife, et al. — To—Navarro Oil Company. 19122 This agreement made this 1st day of May, 1935, between S. O. Shaffer and his wife, M. D. Shaffer; Pitts & Liles, a partnership composed of J. L. Pitts and J. Robert Liles; Guy H. Hooper; W. N. Foster; R. D. Simonton; W. A. Evans; Dean & Humphrey, a partnership formerly composed of W. L. Dean and T. T. Humphrey; W. L. Dean by Frank Dean, W. S. Dean, Emma Wycough, Executors of estate of W. L. Dean, deceased; T. E. Humphrey; J. B. Brown, Mary F. Brown, S. A. Crawford, T. W. Crawford, Leo W. Budde; Llewellyn, Dougharty & Reeves, a partnership composed of J. Llewellyn, Frank Dougharty, and George E. Reeves; and Foster & Williams, a firm composed of W. N. Foster and W. M. Williams; and W. M. Williams, lessors (whether one or more), and Navarro Oil Company, Lessee, Witnesseth: * * * 3-a In addition to the one-eighth (⅛) royalty herein reserved by the Lessors, there is reserved, and the Lessee obligates itself to pay unto S. O. Shaffer and wife, M. D. Shaffer, and their assigns, effective as of May 1st, 1935, as a royalty one-thirty-second (l/32nd) part of the production from said land if, as ' and when produced.”

Leo W. Budde conveyed to his attorneys, Geo. E. Reeves, and Llewellyn & Dougharty, one-half of his interest in the E. P. Brown survey. On the 29th day of May, 1935, the. date of the final judgment referred to above, Budde and his attorneys, Reeves and Llewellyn & Dougharty, executed a division order, in part as follows:

“The undersigned, and each-of us, as sellers, guarantee and warrant that we are the legal owners, in the proportions set out below, of all the oil produced from the Navarro Oil Co.- — Brown-Shaffer-Budde Lease located in the E. P. Brown Preemption Survey in Montgomery County, State of Texas, and commencing at 7:00 o’clock A. M. on the 1st day of May, 1935; and until further notice, from the undersigned, you are authorized to receive for purchase and give credit for all oil received from said property as per directions below:

On the 12th day of September, 1935, Budde executed to the pipe line company a second division order, describing his royalty interest as in the first division order.

On the 6th day of June, 1935, the Shaf-fers executed a release to the Navarro Oil Company, referring to the original lease, of date 10th day of February, 1933, executed by them to Navarro Oil Company, and to the supplementary contract of even date with the lease, providing for the bonus payment and for the additional royalty of l/32nd. We quote as follows from that release :

“Whereas, on May 1, 1935, there was a new lease entered into between all parties interested in said land growing out of said litigation and conveyances from the original litigants, in which lease it was provided to pay S. O. Shaffer and M. D. Shaffer, and their assigns, effective as of May 1, 1935, a royalty equal to l/32nd part of the production of said lease.
“Whereas, Navarro Oil Company has agreed, in order to assist in compromising said litigation, to pay a cash consideration to be divided between all parties as per the judgment of the court and the signed agreement entered into on the first day of May, 1935, directing Navarro Oil Com-' pany to make said payment, which said sum Navarro Oil Company agreed to pay was $61,200.00, all oil payments to be paid back to Navarro Oil Company as well as any funds or moneys it had in escrow.
“Now, therefore, in consideration of the above, we, S. O. Shaffer and M. D. Shaffer, his wife, hereby relinquish and release unto Navarro Oil Company any claim whatsoever of any oil payment or any overriding royalty other than that named in the new lease dated May 1, 1935.”

Navarro Oil Company was at no time a party to cause No. 17220. It drilled oil wells on the Brown survey and produced oil therefrom continuously from 1933 to the present day, and delivered all the oil produced by it to the pipe line company.

Leo W. Budde, the appellant, filed this suit against appellee, Navarro Oil Company, on the 31st day of May, 1937, claiming 40% of the overriding royalty of l/32nd of all tlie oil produced subsequent to the 10th day of February, 1933, from the E. P. Brown pre-emption survey, the land in controversy in cause No. 17220, and of all oil to be produced in the future. The theory of his petition is that by the contract dated May 1, 1935, and the judgment rendered thereon on the 29th day of May, 1935, ap-pellee obligated itself to pay him, in addition to other royalties, “40% of a l/32nd part of the production from said land subsequent to the 10th day of February, 1933, as when produced.”

Appellee answered by plea in abatement that the contract dated May 5, 1935, provided that the 1 /32nd royalty put in issue by appellant’s petition was to be paid by it to Shaffer and the interest represented by Shaffer, as described in the contract of settlement, further by general demurrer, general denial, plea of not guilty, and specially pleas of the several statutes of limitations.

On trial to the court without a jury, the plea in abatement was overruled, and on the merits judgment was entered that appellant take nothing by his suit. No findings of fact or conclusions of law were requested or filed. By the recitations of its judgment, the court found “as a fact that Leo W. Budde had no actual knowledge prior to June 12, 1935, of the one-thirty-second overriding royalty interest retained by S. O. Shaffer et al., in connection with the oil and gas lease executed by S. O. Shaffer et al., to the Navarro Oil Company, dated February 10th, 1933. That no part of the l/32nd overriding royalty oil was placed in the pipeline to the credit of Leo W. Budde, but all of the oil due on said l/32nd overriding royalty was placed in the pipeline to the credit of other lessors.”

Appellant has duly prosecuted his appeal to this court.

Opinion.

The finding of the court made in its judgment that appellant had no “actual knowledge” of the l/32nd overriding royalty prior to the 12th day of June, 1933, must be construed as knowledge in fact; that because the lease made by the Shaffers to appellee, which-was of record and to which appellant was privy by virtue of the judgment of November IS, 1933, clearly referred to this royalty contract and advised appellant where it could be found; again, the contract of settlement of’May 1, 1935, to which appellant was a party by his personal signature, referred directly to the overriding royalty contract, and its release was a part of the consideration for the execution of that contract.

The agreement of May 1, 1935, expressly provided that the l/32nd overriding royalty belonged to the Shaffers and their privies, and that appellant had no interest therein; by the express language of the contract, appellant was excluded from the Shaffer privies. Clause No. -7 of the contract of settlement is clear and without ambiguity, and affirmatively invests title to the l/32nd overriding royalty in the Shaffers. The language of the contract is clear that appellant had actual notice by its very terms of the nature and beneficiaries of the l/32nd overriding royalty; not only that, but the contract of settlement called for a new lease to be executed by all the parties, and appellant joined in the execution of that lease. The new lease expressly provided that the overriding royalty should belong to the Shaffers and their assigns — the terms of the contract excluded appellant from among the Shaffer assigns. Knowing the nature and obligations of the contract providing for the l/32nd overriding royalty and that he had no interest therein, appellant executed two division orders dividing his royalty payments-and directing their payment ; in these orders he made no claim to the overriding royalty. By the terms of the settlement agreement, appellant authorized appellee to pay the proceeds of the overriding royalty to the Shaffers. Appellant’s attorneys owned one-half his interest; they are not parties to this suit, nor have they at any time claimed any interest in the, overriding royalty.

Shaffer v. Brown, cause No. 17220, had been in court a long time; the Brown survey was valuable oil property; the proceeds-of the oil produced from this survey were held by the pipe line company, and the owners were deprived of its use. The contract of May 1, 1935, was an agreement on a valuable consideration whereby the proceeds of this oil were released for distribution. As a consideration moving from him, appellant released his interest in this royalty, and agreed that it should be paid to the Shaffers. Appellant had no interest in the overriding royalty under the contract of May 1, 1935.

If not entitled to an interest in the overriding royalty of May 1, 1935, then appellant asserts that he is entitled to 40% of l/32nd of the oil produced from February 10, 1933, to May 1, 1935. That contention is denied. By the express provisions of the settlement agreement of May 1, 1935, all oil run prior to that date was released to appellee and paid for by appellee under the terms of the agreement, and appellant received his interest in the proceeds of that settlement.

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

Affirmed.


source: Caselaw Access Project

author: WALKER, Chief Justice.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. MOORE et al.
    No. 3740.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 20, 1940.
    Rehearing Denied Dec. 4, 1940.
    E. B. Pickett, Jr., of Liberty, and Sewell, Taylor, Morris & Connally and J. Toll Underwood, all of Houston, for appellant.
    Bill Daniel, Price Daniel, and Thomas A. Wheat, all of Liberty, for appellees.
   WALKER, Chief Justice.

This is a workman’s compensation case, filed in the district court of Liberty county by appellees, Mrs. Loula Moore, a widow, the mother of Herbert B. Moore, deceased, and her sons against appellant, Texas Employers’ Insurance Association, as the compensation insurance carrier of the Greta Oil Company, for compensation for the death of Herbert B. Moore, who was killed in an automobile’ accident in the state of Louisiana on the 7th day of September, 1937. Appellant’s defense was that, at the time of Moore’s death, he was an employee of the Cavalier Oil Company, and was insured under the Workmen’s Compensation Act of Louisiana by Associated Indemnity Company, the compensation insurance carrier of Cavalier Oil Company; and if the deceased was an employee of Greta Oil Company, whose compensation appellant carried, he was not a “Texas employee,” employed “temporarily or incidentally” for performing services in Louisiana, within the meaning of the extraterritorial provisions of the Texas Workmen’s Compensation Act.

The jury found the following facts :

(1) Moore was hired as an employee of Greta Oil Company on May 15, 1937.

(2) His contract of employment contemplated a temporary stay in Louisiana.

(3) Moore was an employee of Greta Oil Company under his contract of hire, on, the date of his injury and death.

(4) Moore’s injuries and death were sustained by him while in the course of his employment with Greta Oil Company.

(5) The vice-president and manager of Greta Oil Company, immediately following the injury, assured plaintiffs that he would file the necessary claim for compensation insurance for them. ■

(6) Moore was not in the personal service of George L. Noble, Jr., on the date of his injury.

(7) Moore was not employed under a contract of hire by the Cavalier Oil Company.

(8) Moore was not in the service of Cavalier Oil Company on the date of his injury.

(9) Moore was not an employee of Cavalier Oil Company at the time he was killed, and was not injured in the course of his employment with that company.

(10) Appellees had good cause for their failure to file their claim for compensation within six months.

On the verdict, judgment was rendered in favor of appellees for compensation for 360 weeks at $20 per week, with interests and costs, from which appellant duly prosecuted its appeal to this court.

Appellant’s first point is that, on the undisputed evidence, Moore was not an employee of Greta Oil Company but was an employee of Cavalier Oil Company, and was killed in the course of his employment with that company.

From appellees’ standpoint, the evidence on this issue may be summarized as follows: The Greta Oil Company and the Chapman Minerals Company are Texas Corporations, domiciled in the city of Houston in adjacent offices, and all the stock of both companies was owned by members of the O. R. Seagraves family. The Cavalier Oil Company is a Delaware Corporation, domiciled in Louisiana, without a permit to do business in Texas. George L. Noble, Jr., was vice-president and general manager of the Greta Oil Company and, though he owned one-third of the stock of the Cavalier Oil Company and was one of its directors, he had no authority to act as agent for that company in any respect or in any capacity.

On the 11th day of May, 1936, the Cavalier Oil Company owned in Louisiana a “wild cat” acreage of about 7,000 acres, but had no funds and no rig to develop it for oil. On that date it made a contract with Chapman Minerals Company to finance the drilling of a well on its acreage in Louisiana, on the consideration of “an undivided 80% interest in all of the leases comprising said block including the tract upon which saidt well is to be drilled.” Neither Chapman Minerals Company nor the Cavalier Oil Company owned a drilling rig, but the Greta Oil Company owned a rig, and the Chapman Minerals Company contracted with the Greta Oil Company for its rig and for it to superintend the drilling of the well. This contract is not in the record, but Mr. Noble, vice-president and general manager of Greta Oil Company, testified as to its nature and contents:

“Mr. Morris: Q. Then after you got that financed, you, acting for the Cavalier Oil Company, borrowed or rented the rig from the Greta Oil Company with the assurance that you would return it in good shape ? A. No, that is not exactly correct.
“Q. How was it? A. The Chapman Minerals Corporation arranged with the Greta Oil Company for the use of the rig, and Chapman Minerals Corporation gave the Greta Oil Company 1500 acres of what it acquired from the Cavalier Oil Company.
“Q. Then the Cavalier never did give any acreage to the Greta Oil Company ? A. No, the Cavalier Oil Company gave all of the acreage to Chapman Mineral Corporation and they assigned 1500 acres to. the Greta Oil Company. * * *
“Q. And the Cavalier rented a rig from the Greta Oil Corporation to drill this well.? A. Chapman Minerals did., ( .
“Q. Chapman Minerals did • from the Greta Oil Corporation? • A. Gave' them fifteen hundred (1500) acres for.-the use'of that rig. * * * ;
“Q. Didn’t you say the Cavalier ■ Oil Company gave up 80% to Mr. Seagraves to drill the well? A. That is right — he owned the Chapman Minerals Corporation.
“Q. And Chapman Minerals Corporation made a contract with the Greta Oil Company to furnish the rig and supervise the drilling of the well? A. That is right.
“Q. Therefore the contract was never between the Greta Oil Company and the Cavalier Oil Company to drill the well, is that right? A. Yes. * -
“Q. Had they turned it over to Chapman Minerals Corporation or to Mr. Sea-graves before they made a deal with the Greta Oil Company? A. It was all signed up at the same time.
“Q. Therefore, there was no deal direct between the Cavalier Oil Company and the Greta Oil Company, is that correct? A. Yes. Wait a minute, Greta insisted on me being over there.”

On the issue of Herbert B. Moore’s employment, Mr. Noble testified (Q. and A. reduced to narrative) :

“Herbert B. Moore called me and asked me for this job and I gave it to him. I employed him to supervise this well. He came to my office in Houston and I employed him about May IS, 1937. I talked to him over the phone out at Hull and I told him I could give him a job; he came in Monday and I sent him over to Louisiana. He came in a few days before Monday, Saturday morning I think. At the time I talked to him I was in the office of Greta Oil Company, or at my home. When he came to see me, he came to the office of Greta Oil Company. It was in the office of Greta Oil Company that I talked to him about his employment and made the definite employment. Mr. Moore had worked for me before that time; I met him in 1922. He was an oil field worker and I was acquainted with his ability and the kind of work he did. He was skilled along the lines of oil field work; he was a good man and worked for the same company I had worked for — the Houston Production Company. I am sure he had been working at least a year before this accident in the same kind of work I gave him but I hadn't seen him for a couple of years prior to that. I agreed to pay him $275.00 per month. The first thing that had to be done by Mr. Moore under his employment with me was to set the rig up properly and correctly; he spent several days setting the rig up. Wait just a minute, I hadn’t assembled the crew; that was the first thing Mr. Moore had to do — to get a crew. I told him to get some of his friends on the rig — that is customary. If I remember correctly Mr. Moore went back to Hull and got the men there in one day. He assembled part of his crew in Texas, but he had. a bunch of Louisiana boys that he hired over there. Mr. Moore performed some service under his contract with me over here in Texas in getting the crew together before he went to Louisiana. I told Mr. Moore, while he was in charge of the hole, that I wanted him to be careful. He was to report to me and let me know how he was getting along; I would let him know when to pour; I wanted to know if everything was going all right; he was hired to take good care of the rig —that was what he was hired for. His employment began on the ISth of March, 1937, in the office of the Greta Oil Company. * * * I turned over the supervision of that well and the care of the rig to Mr. Herbert Moore; he was working under my supervision. * * * In employing Mr. Moore I was acting as vice-president and general manager of Greta Oil Company and I employed him to supervise the drilling of the well, in execution of the Greta Oil Company’s contract with Chapman Minerals Company.
“ 'Q. I will ask you to state whether or not all your work and supervision of the well and caring for the rig was through your official capacity as vice-president and general manager of the Greta Oil Company? A. That is correct.’”

Mr. Arthur P. ' Portas, president of Cavalier Oil Company, testified: “There was no contract between the Greta Oil Company and the Cavalier Oil Company. The Chapman Minerals Company, as a result of our contract with Mr. Seagraves, took over and financed the well. The Cavalier Oil Company did not put up any money for the drilling of the well, nor did it furnish any rig or any equipment for the drilling of the well. Everything was handled through Chapman Minerals Company. We had no arrangement of any kind with Greta Oil Company. Mr. Herbert Moore’s duties did not require him to do scouting for Cavalier Oil Company. The Cavalier Oil Company was not interested in scouting work of other wild cat propositions in- Texas.”

This evidence clearly raised the issue that Herbert B. Moore was employed by the Greta Oil Company to supervise the drilling of the well on the wild cat holdings of Cavalier Oil Company and that he was under the direction and control of Greta Oil Company, and in no way subject to the control of Cavalier Oil Company. It requires the citation of no authorities to support the verdict of the jury on these issues.

On the issue whether Herbert B. Moore was killed in the course of his employment with Greta Oil Company: The undisputed evidence is that Herbert B. Moore was killed in an automobile accident while “scouting” another wild cat oil proposition, and not while supervising the drilling of the well; he was scouting for another job for the rig owned by Greta Oil Company. Had he found the job, it would have been submitted to Mr. Noble as vice-president and general manager of Greta Oil Company. Mr. Moore was actually on his way to Kentwood, Louisiana, on this scouting trip. Mr. Noble testified:

“While Herbert Moore was in Louisiana I authorized him to make a scouting trip or two. The general business of Greta Oil Company consisted of drilling wells for others. It was my' duty as vice-president and general manager of Greta Oil Company to look for other wells. We were looking for other wells; in the oil business you are always looking for business. In going to Kentwood to inspect this drilling proposition for drilling a well near Kentwood, Herbert Moore was travel-ling within the line and scope of the employment for which I employed him. On December 13, 1937, I made the following statement, which is correct:
“ ‘In addition to Mr. Moore’s job as tool pusher on this particular well, he also made various scouting trips for me, and it is my information that at the time of his injuries on September 3, 1937, he was going to inspect a drilling proposition near Kentwood, Louisiana. This would be entirely within his line of duty.’ He was working twenty four hours a day and was subject to call at any and all times. If Mr. Moore, on his way to Kentwood at the time he was killed, was scouting a proposition for the use of the rig — if he, was scouting Kentwood for the use of the rig — it would have to be for the Greta. * * * I am sure that he was doing this so as to bring it to my attention in hopes that if the proposition had merit, my corporation might take it over. He would consider this a scouting job and would have been entirely in his line of duty if he was on such' a mission. In his scouting work, Mr. Moore was exclusively under my supervision. All of my work in drilling the well in Louisiana and in this scouting was through my capacity as vice-president and general manager of the Greta Oil Compa'ny.”

After Herbert B. Moore’s death, the holdings of the Greta Oil Company were purchased by the Barnsdall Oil Company, which assumed all the debts and salary accounts due by the Greta Oil Company to its employees. The list of unpaid salaries due by Greta Oil Company included the unpaid salary account of Herbert B. Moore, and after his death his final salary check was paid by Barnsdall Oil Company, under its contract of purchase with the Greta Oil Company.

This evidence fully supports the verdict of the jury that Herbert B. Moore was killed while in the co'urse of his employment with Greta Oil Company, and while in the discharge of the duties of his employment.

The jury found that the “contract of employment of Herbert B. Moore contemplated a temporary stay by Herbert B. Moore in the State of Louisiana.” The evidence supports this finding. Herbert B. Moore’s contract of employment was general, with no limitation as to time of employment. (The contract was made in Texas, and the first duties of the employment were discharged by him in Texas. The Greta Oil Company had only one drilling proposition in Louisiana, but had other drilling propositions in Texas, down near Corpus Christi. .He was employed because he was a skilled workman; because Mr. Noble knew him and had con-fidénce in him; because the Greta Oil Company needed his services in developing its oil holdings. Moore lived in Texas, in Liberty county. He made his home with his mother; the evidence clearly raised the issue that in leaving his home to go to Louisiana, it was his intention to stay there only temporarily. We quote again from the testimony of Mr. Noble: “In 1937, the Greta Oil Company owned producing wells in the Greta fields in Refugio county, also in the Saxtet field in Nueces county, and in San Patricio county. The Greta Oil Company drilled several wells in the Greta field, several in the Saxtet field, and one in the Taft field in 1937. Since the Greta Oil Company was organized it has been engaged in the general production business in the State of Texas, and only in the State of Texas. The Greta had no operations in Louisiana, except this one well. * * * The work in Louisiana was just of a temporary nature.”

We think the testimony raised the issue that Herbert B. Moore, at the time of his death, was a Texas employee within the meaning of Article 8306, Sec. 19, R.C.S., Vernon’s Ann. Civ. St. art. 8306, § 19, as that section has been construed by our Supreme Court in Southern Underwriters v. Gallagher, Tex.Sup., 136 S.W.2d 590, and the authorities therein cited.

In support of its contention that Moore was not a Texas employee, appellant advances the following proposition: “Mr. Moore never on any occasion performed any character of services whatsoever for the. Greta Oil Company in Texas. * * * The appellees may perhaps argue that Moore did perform services in Texas before he left for Louisiana. It is not necessary to consider the question as to whether or not his calling of several of his friends and telling them that he had a job for them in Louisiana constituted the performing of services in Texas. It is only necessary to inquire for whom this calling was done. /These men called by Mr. Moore were to work for the Cavalier Oil Company in Louisiana on the Cavalier well. .Thus it can not be said that Moore prior to his departure from Texas performed any services for the Greta Oil Company.”

The evidence does not support this contention. Mr. Noble, on his own testimony —at least the evidence raised that issue— employed Mr. Moore to work for the Greta Oil Company in drilling the well in Louisiana, and instructed him to employ other men as employees of the Greta Oil Company to assist on this job:'

Appellant insists that the verdict is without support because the court failed to submit to the jury “the indispensable issue as to whether or not Herbert Moore was a ‘Texas employee’ of the Greta.” The court’s charge submitted the essential elements of that issue, and was sufficient under the Pepper case, Wichita Falls & O. R. Co. v. Pepper, 134 Tex. 360, 135 S.W. 2d 79.

Appellant’s fifth proposition is to the effect that, by the agreement between the Greta Oil Company and the Cavalier Oil Company, the Cavalier was bound to carry compensation insurance for all men employed on the well. This proposition is without support in the facts. There was no contract of any kind or character between Cavalier Oil Company and the Greta Oil Company; see the testimony of Mr. Portas, president of the Cavalier Oil Company, copied above.

' The sixth proposition, to the effect that -the court erred in its definition of the term' “employee,” is overruled. Appellant’s objection was that the definition “was incomplete, erroneous and inadequate, in that the jury was not instructed that, a person who voluntarily rendered services for another without remuneration •was a mere volunteer and not an employee.” This exception is without support in the evidence. The same exception to the court’s definition of “injuries sustained in the course of employment” is overruled.

The court did not err in receiving in evidence the check given by Barnsdall Oil Company in payment of the deceased’s last month’s salary.

Appellees concede that the judgment is erroneous to the extent that the award in their favor of a lump sum was not discounted on the statutory basis of 6 per cent., and in awarding interest on the matured compensation, for the reason that this interest had no support in the pleadings.

It follows that the judgment of the lower court should be reformed by allowing appellant the proper discounts, and our clerk is directed to make this calculation and to deduct the discounts from the court’s award in favor of appellees. As reformed the judgment should be in all things affirmed.

Reformed and affirmed.


author: BROWN, Justice.

text:
    C. V. HILL & CO., Inc., v. PARKER.
    No. 14139.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 22, 1940.

      D. A. Webb, of Fort Worth, for appellant.
    John L. Poulter, of Fort Worth (appearing on appeal only) for appellee.
   BROWN, Justice.

Appellant here, C. V. Hill &, Co., Inc., acting through one H. A. Pádgett, who was handling appellant’s products, sold a certain meat ice box and equipment connected therewith to appellee, W. E. Parker, and after the sale was made — which sale transaction was oral since no written contract of sale was pleaded, or introduced in evidence — Parker executed a chattel mortgage on the persona] property to the seller — appellant—to secure the payment,of the promissory notes which, represent the purchase price.

Parker did not pay for the equipment and appellant brought suit on the deferred -payment notes, and prayed for- a foreclosure of its mortgage lien, and sequestrated the property.

Appellee Parker answered, alleging that Padgett orally represented that .the property was new, when in fact if was used equipment; that it was defective and would not preserve fresh meats and that it was not suitable for the purposes for which it was sold, and alleged special damages .occasioned-by losses sustained through the defects in-the machinery; and alleged that he notified the parties of the unsatisfactory conditions.

Appellant sought to relieve itself of the representations alleged to have been made by Padgett by pleading that Parker cannot vary the terms of the written contract sued upon, and more especially because of the language used in the chattel mortgage which we here quote. After setting forth the description of the personal property and the balance of the unpaid purchase price, the mortgage provides:

“To have and to Hold, said chattels and all and any replacements thereof and additions thereto unto said mortgagee- herein and unto mortgagee’s heirs, executors, administrators and assigns and to mortgagee’s and their sole use forever. And the mortgagor herein for said mortgagor and for the heirs, executors, administrators and assigns of said mortgagor does hereby covenant to and with said mortgagee and the heirs, executors, administrators and assigns of said mortgagee, that said mortgagor is lawfully possessed of said chattel as mortgagor’s own property; that the same is free from all encumbrances and that mortgagor and the executors, administrators and assigns of the mortgagor will warrant and defend the same to said mortgagee and to the heirs, executors, administrators, and assigns of said mortgagee against the lawful claims and demands of all persons, and that said chattels shall not become part of the realty no matter how annexed thereto, and to maintain fire insurance payable to mortgagee sufficient to protect mortgagee against loss or damage of said chattel and mortgagor further covenants and agrees for himself, his heirs, executors, administrators and assigns that said chattel shall remain at No. 4605 Camp Bowie Street, Port Worth, Texas, and that he will not remove or attempt to remove or permit the same to be removed therefrom, nor dispose of, encumber or misuse said chattels, nor permit the same to be disposed of, encumbered or misused. And mortgagor and the executors, administrators and assigns of mortgagor do further covenant and agree to promptly pay when due all taxes, license fees or other public charges that may be levied against or upon said chattels and to satisfy any and all liens that may be assessed upon or against the same.
“Provided, nevertheless, that if the said, mortgagor and executors and administrators of mortgagor shall well and truly pay unto said mortgagee and to the executors, administrators and assigns of said mortgagee the sum of $1,195.00, balance of purchase money, evidence by a series of promissory notes of even date herewith, executed by the mortgagor to the order of the mortgagee, payable in equal consecutive monthly instalments of $49.79 and $49.83 each, and with interest from date payable monthly on unpaid balances, at the rate of- % per annum, and' with interest from maturity at the highest lawful rate, the first instalment payable on the 25th day of May, then this mortgage is to be void, otherwise to remain in full force and effect.
“And provided further, that it shall be lawful for the said, mortgagor to retain possession of said chattels and at mortgagor’s own expense to keep and use the .same until said mortgagor or the executors or administrators or assigns of said mortgagor shall maleé default in the payment of any of the instalments above specified, or until the breach of any of the covenants expressed herein. No waiver or condonation of any breach or default shall constitute a waiver of future breaches or defaults. And the said mortgagor docs hereby covenant and agree that in case default shall be made in the payment of the in-stalments aforesaid, or any of them according to their tenor, or any of the covenants expressed herein, or whenever the mortgagee shall deem the debt insecure, or should any surety company on any bond guaranteeing the performance of any of the mortgagor’s obligations hereunder, or indemnifying the holder of said notes against loss through conversion, or otherwise, desire to withdraw from said bond, all of the unpaid instalments shall at the option of the holder hereof, without notice of said option to any one, become at once due and payable and the then holder of said notes shall thereupon have the right to take immediate possession of said chattels and for that purpose may, with or without legal process, enter upon or into any premises where the said chattels or any part thereof may be found, and take possession thereof, and remove the same to such other place as it may deem most safe and convenient, and at such time as may be deemed best by such holder, at the risk and expense of mortgagor and reserving the right to bid upon such sale, sell and dispose of said chattels or any part thereof either where the mortgagor’s place of business is located or such other place to which said property may have been removed» either at private sale or public auction, in bulk or in any parcels and if at public sale after giving five (5) days’ notice by written notice to be posted in three public placés in the city, village or township in which said chattels may be offered for sale, and out of the money arising from such sale there shall first be paid the expenses of such seizure, holding, removal, repairing and sale, including reasonable attorney’s fees; second, all sums then unpaid, both principal and interest on said notes; and the balance or surplus money, if any, shall be paid to mortgagor or the legal representative of mortgagor. If the proceeds of such sale -be insufficient to pay such costs, charges, expenses and unpaid balance, mortgagor agrees to pay the deficit.
“Undersigned agrees that the mortgagor shall not be responsible for spoilage of perishable food products during and after installation of refrigerated equipment and agrees to provide, at his expense, a suitable place for the storage of the said food products.
“Upon the breach of any of the covenants expressed herein, mortgagor hereby confers irrevocable authority upon any attorney at law to appear for him in any court, waive the issue and service of process and confess a judgment against him in favor of the holder hereof for such amount as may appear to be unpaid upon the promissory notes of even date herewith given in evidence of the balance due hereunder, together with costs and attorney’s fees and to release all errors and waive all rights of appeal.
“The guarantees embodied in this contract are not binding upon the Seller unless all payments due under the terms of this contract are paid up to and including the date of any'claim made by Purchaser under said guarantee.
“If, pursuant to any warranty or guaranty herein contained, or for any other reason whatsoever, the buyer asserts any ■claim, or sustains any loss or damage whatsoever, as a result of, or arising out of, any defect in the chattels herein described, ■the seller shall be required only to repair such defect, and to put such chattels in good working condition, and any claim for damages shall be accordingly restricted, and the seller shall not, otherwise, be liable for any damages, consequential or otherwise, by reason of such defect, to the buyer or to any third person.
“It is agreed that this mortgage shall not be countermanded; that it covers all agreements between the parties hereto relative to this transaction; that you shall not be bound by any representation of promises of any agent not embodied herein; that any if made, are hereby waived and shall in no way affect this agreement, but that all terms and statements are herein merged or agreed to be abandoned. All injury to articles caused by improper use shall be at the loss of mortgagee and the guarantee of mortgagor shall not apply to such injury. The receipt of duplicate hereof is hereby acknowledged. In the event of loss of articles by fire, flood, theft or otherwise, the entire loss of balance of rent herein provided for shall fall upon the mortgagee if not so insured.
“It is expressly agreed that this writing shall bind the heirs, executors, administrators and assigns of the respective parties and shall be effective upon acceptance by :the mortgagee in the space provided below.
“In witness whereof, said mortgagor has hereunto set his hand and seal this Sth day of April, 1938.
“W. E. Parker (seal)
“4605 Camp Bowie Street
“Witness: H. A. Padgett.
“Accepted: April 11, 1938, C. V. Hill & Company, Inc.
“Earl J. Kressler,
“Secretary.”

Appellant further pleaded that Parker kept and used the equipment for several months and is therefore estopped fromi pleading either fraud in the inception of the contract, or cancellation and rescission.

The cause was tried to a jury and in response to special issues the jury found: (1) that in order to induce Parker to purchase the equipment, Padgett stated to him that it was new; (2) that Parker believed the statement; (3) that Parker would not have bought the equipment but for such representations. These issues- were requested by the defendant, and were given in connection with the main charge, wherein the jury found: (1) that Padgett “was acting for and in behalf of and under the authority of the plaintiff, C. V. Hill & Co., Inc.”; (2) that the equipment was wholly unfit for the purposes for which it was sold; (3) that it was substantially unfit for the purposes for which it was sold; (4) that the defective condition of the equipment caused unusual shrinkage and discoloration of the meat kept in it; (5)- that $210 would fairly and reasonably compensate Parker for the loss sustained by him on account of the shrinkage and discoloration of the meat; (6) that Parker demanded that the plaintiff take the equipment back; (7) that the demand was made within a reasonable time after the equipment was placed in the store.

Appellant (and plaintiff below) presented a motion for judgment notwithstanding the verdict, and urged the trial court to disregard the findings made by the jury, including the findings of special damages sustained by the plaintiff. The trial court declined to render judgment in toto for the plaintiff, but did decline to give the defendant judgment for his special damages as found by the jury, and-rendered judgment that the plaintiff take nothing by reason of its suit on the notes and mortgage lien, and cancelled the same.

From this judgment the plaintiff has appealed, and although there are more than sixty paragraphs in the motion for a new-trial, only seventeen assignments of error are found in the brief.

The first' assignment of error contends that the trial court erred in not sustaining plaintiff’s general demurrer urged against the defendant’s answer and cross-action. This assignment of error is bottomed on the theory that plaintiff’s cause of action is brought upon a written contract and that defendant’s pleading wholly fails to set up fraud, accident or mistake, and it therefore “states no defense or cause of action against the contract in writing.”

We do not think that this suit presents such a question as is presented where the contract of sale and the chattel mortgage lien are all embodied in the same instrument.

As we read this record it occurs to us that the sale was made orally and that the promissory notes were executed in pursuance to the sale so made, and the chattel mortgage was executed to secure the payment of the promissory notes. The chattel mortgage does not pretend to be a bill of sale, or a contract to sell. It is designated at the very top of the instrument, “Chattel mortgage”, and it purports, from its very beginning, to convey unto the mortgagee the chattels to secure the unpaid purchase price of same.

Analyzing the language used in this chattel mortgage, we conclude that the provision, “It is agreed that this mortgage shall not be countermanded; that it covers all agreements between the parties hereto relative to this transaction; that you shall not be bound by any representation or promises of any agent not embodied herein; that any if made, are hereby waived and shall in no way affect this agreement, but that all terms and statements are herein merged or agreed to be abandoned”, does not preclude the mortgagor from pleading any breach of warranty that was made at the time of the sale orally, or from pleading failure of consideration, or false and fraudulent statements inducing the sale.

Although this mortgage makes some mention of “any warranty or guaranty herein contained”, an examination of the chattel mortgage discloses that there is neither warranty or guaranty embodied therein.

We confess that we have never seen'a similar instrument. We have seen many where the bill of sale reserved title in the seller until the purchase price was paid, and many where the bill of sale contained a mortgage lien expressly given to secure the payment of the purchase price, but here is a plain, straight-forward chattel mortgage, on property purporting to belong to the mortgagor, to secure the balance of the purchase price owing to the mortgagee.

We cannot give the force and weight to the quoted portions of the mortgage, on which appellant relies, that we would give if this instrument were a bill of sale and mortgage incorporated in one instrument.

This instrument does not pretend to say that by it the mortgagee purports to sell the described chattels to the mortgagor.

We think that there are several ambiguous and uncertain provisions in the chattel mortgage.

We do not believe that the pronouncements in Avery Co. of Texas v. Harrison Co., Tex.Com.App., 267 S.W. 254, and relied upon by appellant controls the instant suit, nor do we believe that our conclusions are at variance with the holdings in Distributors Inv. Co. et al. v. Patton, 130 Tex. 449, 110 S.W.2d 47, likewise by the Commission of Appeals.

There was no error in overruling the general demurrer urged against the defendant’s answer.

The second and third propositions urged are asserted to be germane to appellant’s fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth assignments of error. These contend that loss of expected profits hoped to be realized from a new business venture is too speculative to constitute a proper measure of damages, and that such loss which resulted from the acts of the party claiming them is an improper measure of damages.

We believe that the portions of the defendant’s pleading where he seeks to recover for lost profits should have been stricken when excepted to, as was done.

Appellant asserts that his fourth proposition is germane to his thirteenth, fourteenth, fifteenth, sixteenth and seventeenth assignments of error. This proposition contends that when Parker accepted pll of the benefits of the contract, by continuously using the equipment for a period of approximately eight months (until suit was brought and the property sequestrated), he has, as a matter of law, waived any right of cancellation and rescission that he may have had.

We believe that there is merit in the contention. Such cases as J. B. Colt Co. v. Head, Tex.Com.App., 292 S.W. 198, seem to so hold.

We are of opinion that this cause has been tried upon the wrong theory, and that the defense, if any such exists, must be bottomed upon the difference, if any, between the contract price (the value of the property as represented by the seller) and the actual value of the property which was delivered to the buyer. Texas Harvester Co. v. Wilson-Whaley Co., Tex.Civ.App., 210 S.W. 574, writ refused.

We deem it. unnecessary, in the view we take of the case, to discuss the remaining propositions.

For the reasons given the judgment of the trial court -is reversed'and the cause is remanded.


author: O’QUINN, Justice.

text:
    STEPHENSON et ux. v. ETTIE et ux.
    No. 3741.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 22, 1940.
    Rehearing Denied Dec. 4, 1940.
    D. C. Bennett and J. T. Adams, both of Orange, for appellants.
    W. P. Sexton, of Orange, and J. H. Benckenstein and Jack M. Moore, both of Beaumont (only on appeal), for appellees.
   O’QUINN, Justice.

This is an action in trespass to try title, filed in district court of- Orange county on the 28th day of August, 1939, by appellees, Mr. and Mrs. S. T. Ettie, against appellants, Mr. and Mrs. Herman Stephenson, putting in issue the title and possession of lots 1 and 2 in the Chenault & Labit addition of the city of Orange, Texas. Appellants answered by pleas of general demurrer, general denial, and of the statute of ten years’ limitation. On trial to the court without a jury, judgment was rendered on the 19th day of February, 1940, in favor of appellees against appellants for the title and possession of the land in controversy, from which appellants have duly prosecuted their appeal to .this court.

Appellants complain that the trial court refused to file conclusions of fact and law after they had asked the court in writing to file such conclusions. The motion for conclusions of fact and law was filed on February 14, 1940, prior to the rendition of judgment on February 19, 1940, and appellants failed to call their 'motion to the attention of the court, and did not subsequently renew it. On this statement, appellants waived their motion for conclusions of fact and law. Article 2247, Vernon’s Ann.Civ.St.; Stanley v. Bank of Logansport, Tex.Civ.App., 44 S.W.2d 445. The rule is thus stated in 41 Tex.Jur. 1274, Trial—Civil Cases, § 400: “Since 1931 an appellant who does not, in the statutory time and manner, notify the judge in writing, calling attention to his failure to make requested findings and conclusions, may not complain of the failure to make them.”

Over appellants’ objection, appel-lees introduced in evidence a deed to them to the land in controversy, from Mrs. S. E. Carr, a feme sole, dated April 25, 1916. This deed was duly recorded in-the deed records of Orange county on April 2⅜ 1916. The court erred in receiving this deed in evidence over appellants’ exception that it had. not been filed among the papers of the case for three days before the trial, as required by Article 3726, Vernon’s Ann.Civ.St., there being no agreement that the parties might read from the record, and no notice that appellees would offer the original deed in evidence. But this ruling was harmless error.

The evidence clearly raised the issue that appellees entered into possession of this property in 1916, claiming to own it, and were continuously in possession, personally and by tenants, until possession was claimed by appellants shortly before suit was filed. Appellants had no record title, and they had no possession prior to the possession of appellees. The prior good faith possession and claim of appel-lees was sufficient to support the judgment of .the court in their favor. Dean v. Grogan-Cochran Lbr. Co., Tex.Civ.App., 58 S.W.2d 552.

On another theory the judgment in favor of appellees has support. The evidence raised the issue, resolved 'by the court in appellees’ favor, that appellants took possession of the land in controversy as tenants of appellees; as tenants they could not controvert appellees’ title.

It follows that the judgment of the lower court should be affirmed and it is accordingly so ordered.

Affirmed.


author: SHARP, Justice.

text:
    CARPENTER v. SHEPPARD, Comptroller of Public Accounts, et al.
    No. 7798; Motion No. 14742.
    Supreme Court of Texas.
    Oct. 24, 1940.
    On Rehearing Nov. 22, 1940.
    Charles L. Black, Looney & Clark, Everett L. Looney, and Dan Moody, all of Austin, Blalock, Blalock, Lohman & Bla-lock, of Marshall, and R. L. Bobbitt and Claude V. Birkhead, both of San Antonio, for relator Carpenter.
    Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, R. W. Fairchild, and Ocie Speer, Asst. Attys. Gen., for respondents Sheppard et al.
    Carl L. Phinney, of Dallas, F. G. Swanson, of Tyler, Johnson & Rogers, Wm. N. Hensley, and John K. Weber, all of San Antonio, Cantey, Hanger, McMahon, McKnight & Johnson, Ira Butler, Frank P. Culver, Jr., Chester B. Collins, Gillis A. Johnson, Warren Scarborough, and Frank Taylor, all of Fort Worth, and Clark C. Wren, of Houston, amici curiae.
   SHARP, Justice.

Orville S. Carpenter by original mandamus proceedings seeks to compel the Honorable George H. Sheppard, Comptroller of Public Accounts of the State of Texas, to issue and deliver to him a warrant against the State-Treasurer of the State of Texas for the salary to which he is entitled for the full month of September, 1940, and to compel the Honorable Charley Lockhart, State Treasurer of the State of Texas, to pay such warrant when presented to him.

Orville S. Carpenter will hereinafter be called Relator, and George H. Sheppard and Charley Lockhart will hereinafter be called Respondents.

The following alleged facts constitute the basis for such mandamus proceedings: That Relator is a resident citizen of the State of Texas, and on February 15, 1937, was appointed a member and made Chairman and Executive Director of the Texas Unemployment Compensation Commission for the term ending November 21, 1940. That on September 27, 1937, his appointment was duly confirmed by the State Senate of the State of Texas; that he took the oath of office, and has been since then and is now a duly qualified and acting member and the 'Chairman and Executive Director of said Commission, and has been and is now performing, and throughout the month of September, 1940, did perform, all the duties pertaining to such office. That Respondent George H. Sheppard is the duly electee! and qualified and acting Comptroller of Public Accounts of the State of Texas, and that Respondent Charley Lock-hart is the duly elected and qualified and acting Treasurer of the State of Texas.

That Relator is a member of the National Guard of the United States and of the State of Texas, and that on the 28th day of December, 1938, he was duly commissioned by the Governor of Texas with the'rank of Major in said National Guard and assigned to the State Staff Corps; that he has been given Federal recognition with the rank of Major in the National Guard of the United States and of the State of Texas, and that on the 30th day of January, 1939, he was commissioned with the rank of Major in the National Guard of the United States in the Army of the United States, and that he now holds said rank in said service.

That pursuant to the proclamation of the President, under authority of Public Resolution No. 96, S.J.Res. 286, Chapter 689, Acts of the 76th Congress, 3rd Session, approved August 27, 1940, 50 U.S.C. A.Appendix, § 401 et seq., Relator was by command of Major General Brees ordered to active duty, effective September 19, 1940, for a period of twélve months, unless sooner relieved, and assigned to the Eighth Corps Area Service Command and detailed to duty with the Military Department of the State of Texas at Austin, Texas, for duty in connection with selective service planning of the State of Texas under Public.Law No. 783, S. 4164, Chapter 720, Acts of the 76th Congress', 3rd Session, known as the Selective Training and Service Act of; 1940, 50 U.S.C.A. Appendix, § 301 et seq., being an Act to provide for the common defense by increasing the personnel of the armed forces of the United States and providing for their training; that in obedience to said order Relator reported for the performance of the duties assigned to him thereunder, and has been discharging such duties since September 19, 1940, and has not been relieved therefrom.

That Relator has prepared and presented to Respondent George H. Sheppard, in the manner and form required by law, an af.fidavit and certificate showing that he has performed the services required of him by law as a member and Chairman and Executive Director of the Texas Unemployment Compensation Commission, and áll other facts required by the laws of Texas to entitle him to receive payment of his salary as such member and'Chairman and Executive Director of the Texas Unemployment Compensation Commission, and that he has,, in the manner and form required by law, demanded of the said George H. Sheppard the issuance of a warrant in payment of his salary as such officer for the full month of September, 1940.

That the Legislature of Texas appropriated money to pay the yearly salaries, of the members of the Texas Unemployment Compensation Commission, including the Chairman and Executive Director, in twelve equal monthly installments, and such funds are available for the payment of the salary due him for September, 1940.

That Relator during the month of September, 1940, including the period from, September 19, 1940, to September 30, 1940, discharged all duties imposed upon him bylaw as a member and Chairman and Executive Director of the Texas Unemployment Compensation Commission, and by virtue ■ of that fact and his being a member and. Chairman and Executive Director of the Texas Unemployment Compensation Commission he is entitled to draw the salary-of said office for the full month of Sep--tember, 1940, which is now due him and has not been paid.

That Respondent George H. Sheppard has refused to issue to Relator a warrant for his salary as a member and Executive Director of the Texas Unemployment Compensation Commission, as above described, for the full month of September, 1940, and that in response to Relator’s demand therefor said Respondent has replied: “I have been informed that you were mustered into the Federal Service September 19, 1940, and in accordance with the Attorney General’s opinion No. O — 2769 I am issuing a warrant for services rendered from September 1st through September 18, 1940.”

Relator further contends that he is entitled to a warrant for his salary for the entire month of September, 1940, and that the only reason for Respondent George H. Sheppard’s refusal to issue same is because of Relator’s having been ordered to military duty as herein alleged.

The Attorney General takes issue with the Relator and contends that he vacated his office as a member of the Texas Unemployment Compensation Commission on September 19, 1940, when on such date he entered the active military service of the United States, and in such service holds and exercises the office of Major, an office of profit and trust under the United States, and that to permit him to hold the two offices would violate Section 12 of Article 16 of the State Constitution, Vernon’s Ann.St., which reads: “No member of Congress, nor person holding or exercising any office of profit or trust, under the United States, or either of them, or under any foreign power, shall be eligible as a member of the Legislature, or hold or exercise any office of profit or trust under this State.”

The sole question for decision here is: When an officer in the National Guard of Texas responds to the call of the President of the United States for one year’s military training under the Joint Resolution of Congress approved by the President on August 27, 1940, does this act on his part constitute him an officer of the United States Army and make him no longer an officer of the State National Guard, thereby vacating the State office held by him?

That this State retains a right, concurrent with that of the United States Government, to organize and train its militia, is clearly recognized in Section 8 of Article 1 of the Constitution of the United States and Section 46 of Article 16 of the Constitution of Texas. For a discussion of this right, see Houston v. Moore, 5 Wheat. 1, 16, 5 L.Ed. 19. By virtue of such concurrent authority, the Legislature of this State has made detailed provisions for the organization, equipment, and functioning of the State militia. See Title 94, Chapters 1, 2, 3, and 4, Article 5765 et seq., R.C.S.1925, Vernon’s Ann. Civ.St. art. 5765 et seq. The active militia is by statute now called the Texas National Guard. Article 5765, R.C.S.1925. This Act, now Article 5890b, Vernon’s Ann. Civ. St., was enacted at the Regular Session of the 45th Legislature, 1937, Chapter 366.

That ’the National Guard plays an important part in the military program of this country can hardly be questioned. It is not only a potential part of the United States Army in time of peace, but is subject to be called into service by both the State and National Governments. Article 5830 et seq., R.C.S.1925, Vernon’s Ann.Civ. St. art. 5830 et seq.

The applicable Federal legislation provides : “ * * * All persons so ordered into the active military service of the United States shall from the date of such order stand relieved from duty in the National Guard of their respective States, Territories, and the District of Columbia so long as they shall remain in the active military service of the United States, and during such time shall be subject to such laws and regulations for the government of the Army of the United States as may be applicable to members of the Army whose permanent retention in active military service is not contemplated by law. The organization of said units existing at the date of the. order into a'ctive Federal service shall be maintained intact insofar as practicable.” 32 U.S.C.A. § 81.

In the same section of the National Defense Act it is further provided that, when such enlisted men and officers in the State National Guard are relieved from active duty in the military service of the United States, “all individuals and units shall thereupon revert to their National Guard status.”

We quote the following provisions from the National Defense Act, as amended:

“The President has the authority to call all or a part of the National Guard, as part of the militia of the United States, into the service of the United States whenever the country is invaded or in danger of invasion from any foreign nation, or there is rebellion or danger of rebellion against the authority of the Government, or the President is unable with the regular forces at his command to execute the laws of the Union.
“The President has the authority to order the National Guard of the United States, as a part of the Army of the United States, into the active military service of the United States when Congress shall have declared a national emergency and authorized the use of armed land forces in excess of those of the Regular Army.
* * ⅜
“When any or all parts of the National Guard are called as such into the service of the United States, they become a component of the Army of the United States but their units and members retain their State status as Federally recognized units and members of the National Guard in a state of temporary suspension.”

A brief review of the attitude of the people of this State towards the status of the members of the National Guard of Texas will be helpful in a consideration of this question. In 1918 the Court of Criminal Appeals, in the case of Lowe v. State, 83 Tex.Cr.R. 134, 201 S.W. 986, held that a district judge who was an officer of the National Guard of Texas and went on the pay roll of the Federal Government' as an officer in the military service, thereby vacated his office as judge. In 1922 the Court of Criminal Appeals, in Ex parte Dailey, 93 Tex.Cr.R. 68, 246 S.W. 91, 26 A.L.R. 138, held that a district judge did not vacate his office as district judge by accepting appointment as a captain in the National Guard of Texas, there being no showing that he had been called into the active service of the United States.

The foregoing cases discussed the constitutional provisions then in force in this State. In order to put at rest the question as to whether or not the Constitution of Texas would permit officers of the National Guard of Texas, and other officers mentioned therein, to hold public office in Texas when called as members of the National Guard into service by the President, the Legislature submitted two amendments to the voters of Texas for adoption, Acts 1931, pp. 931, 932, as follows:

“Sec. 2. That Section 33 of Article 16, of the Constitution of' the State of Texas, be amended so as to read as follows :
“ ‘Section 33. The Accounting Officers of this State shall .neither draw nor pay a warrant upon the Treasury in favor of any person, for salary or compensation as agent, officer or appointee, who holds at the same time any other office or position of honor, trust or profit, under this State or the United States, except as prescribed in this Constitution. Provided, that this restriction as to the drawing and paying of warrants upon the Treasury shall not apply to officers of the National Guard of Texas, the 'National Guard Reserve, the Officers Reserve Corps of the United States, nor to enlisted men of the National Guard, the National Guard Reserve, and the Organized Reserves of the United States, nor to retired officers of the United States Army, Navy, and Marine Corps, and retired warrant officers and retired enlisted men of the United States Army, Navy, and Marine Corps.’
“Sec. 3. That Section 40 of Article 16 of the Constitution of the State of Texas be amended so as to read as follows:
“ ‘Section 40. No person shall hold or exercise, at the same time, more than one Civil Office of emolument, except that of Justice of Peace, County Commissioner, Notary Public and Postmaster, Officer of the National Guard, the National Guard Reserve, and the Officers Reserve Corps of the United States and enlisted men of the National Guard, the National Guard Reserve, and the Organized Reserves of the United States, and retired officers of the United States Army, Navy, and Marine Corps, and retired" warrant officers, and retired enlisted men of the United States Army, Navy, and Marine Corps, . unless otherwise specially provided herein. Provided, that nothing in this Constitution shall be construed to prohibit an officer or enlisted man of the National Guard, and the National Guard Reserve, or an officer in the Officers Reserve Corps of the United States, or an enlisted man in the Organized Reserves of the United States; or retired officers of the United States Army, Navy, and Marine Corps, and retired warrant officers, and retired enlisted men of the United States Army, Navy, and Marine Corps, from holding in conjunction with such office any other office or position of honor, trust or profit, under this State or the United States, or from voting at any Election; General, Special or primary, in this State when otherwise qualified.’ ”

The foregoing constitutional amendments were submitted to the people of Texas and were adopted in 1932.

Article 5766, R.C.S.1925, provides that: “All able-bodied male citizens, and able-bodied males of foreign birth who have declared their intention to become citizens, who are residents of this State and between eighteen and forty-five years of age, and who are not exempted by the laws of the United States or of this State, shall constitute the militia and he subject to military duty.”

Article 5768, R.C.S.1925, provides that the Governor shall be Commander-in-Chief of the military forces of the State, except such members as may be at times in the service of the United States, and Article 5779, R.C.S.1925, authorizes the Governor to appoint officers necessary to commence or complete such organizations.

Article 5837a of the General Laws of the 40th Legislature, Chapter 183, relating to the action of Texas in accepting the National Defense Act, enacted and amended by the Congress of the United States, among other things provides that the State of Texas recognizes the right of the President of the United States to call into the military service of the United States the Texas National Guard for certain duties, and further provides: “On the termination of the emergency all persons so called or drafted who shall be discharged from the army shall resume their membership in Texas National Guard and in the Texas National Guard Reserve, and shall continue to serve until the dates upon which their commissions or enlistments entered into prior to the call or draft, would have expired if uninterrupted, unless sooner discharged.”

Relator was a member of the National Guard of Texas and an officer in it when he was called into service for National military duty. When he was called for service in the United States Army, he did not resign as an officer in the National Guard .of Texas. He was called to serve in the United States Army, not as a private citizen, but because he was an officer in the National Guard of Texas,— and for no other reason. If he had not been an officer in the National Guard, he would not have been subject to call by the Congress or by the President. Where-ever Relator goes while under such call, he still will be, so far as Texas is concerned, an officer in its National Guard.

The National Guard is one of the favorite branches of our military forces. Past experience taught this country that it was necessary during peacetime to have a trained and efficient Army, in the event war should occur. Those who enlist in the National Guard perform a patriotic service to our country. They show a willingness to protect the welfare of our country in time of peace, and to defend it in time of war. The members of the National Guard sacrifice their time and business to be trained for efficient' service when needed. The foregoing constitutional amendments were adopted for the very purpose of not penalizing those who were members and officers of the National Guard. It may well be assumed that the welfare of public business would be considered by those who have the power to call into service a State official who is an officer in the State National Guard. It is clearly not the purpose of those in authority to neglect any branch of our Government, either National or State. Furthermore, this record does not show that Relator has neglected to perform the duties of his office, or that he will do so in the future. To assume otherwise would be to assert a condition that this record does not sustain. _ Relator shows that he is filling his office and performing his public duties while serving his country as an officer under call of the President.

The final argument is made that the administration of the public business of the State would suffer if it should be held contrary to the contentions made by the Attorney General. These difficulties are all the concern of the Legislature and for it to solve, and not for the courts. The Legislature has already made provision for someone else to handle the business of various departments of government, in case of the illness of the heads of such departments or their inability to serve. It has recognized that there would result a serious interference in the conduct of public business in the event the Attorney General should be ill for a year and for that reason incapable of performing his duties of office, and so the Legislature has provided for a First Assistant Attorney General. Article 4412, R.C.S.1925. A similar provision has been made in the case of the Secretary of State (Article 4340, Vernon’s Ann. Civ. St. art. 4340), the Comptroller of Public Accounts (Article 4352), the State Treasurer (Article • 4376), and the Commissioner of the General Land Office (Article 5255).

If the Legislature should conclude that an officer in the National Guard cannot perform the duties of the office held by him in this State, while temporarily in the active military service of the United States, it may make provision for such inability, just as it has made similar provisions in respect to other State offices, where the head of the department is unable for any reason to perform the duties of the office. It may adjust salaries on account of failure to perform the duties assigned to offices. Section 10, Article 16, Constitution.

The complete answer to the contentions made by the Attorney General is the plain and specific language used in Sections 33 and 40 of Article 16 of the Constitution, above copied herein. Those amendments reflect the will of the people. of this State with reference to the members of the National Guard. The clear policy of this State with respect to that matter is plainly expressed therein. The people have the right to change that policy if they desire. That right does not rest either with the courts or with any other branch of the State Government. Courts should presume that the people intended to do precisely what they have done in adopting those amendments. This presumption should be indulged in willingly, and not grudgingly. The courts are not concerned with the wisdom or lack of wisdom of a constitutional amendment. Courts need not exert their ingenuity to find reasons to thwart the intention of the people clearly expressed in the Constitution, which is the supreme law of the land. When this policy so expressed is established, it “supplants all other laws and rules that are inconsistent with it.” Gillespie v. Lightfoot, 103 Tex. 359, 127 S.W. 799, 801.

This Court, in an opinion by Chief Justice Phillips, in Simmons v. Arnim, 110 Tex. 309, 324, 220 S.W. 66, 70, used the following language with respect to the duty of courts in construing statutes, and what is said there is clearly applicable where courts are construing constitutional provisions: “Courts must take statutes as they find them. More than that, they should be willing to take them as they find them. They should search out carefully the intendment of a statute, giving full effect to all of its terms. But they must find its intent in its language, and not elsewhere. They are not the law-making body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of the written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.”

It is not the province of this Court to solve difficulties of a purely legislative nature, but that duty rests exclusively with the Legislature itself. It is not the province of this Court to solve a condition that does not exist. We do not have before us a case where an office has been neglected and the business of the public unattended to; but, on the contrary, this record shows that the duties of that office are being performed and that the administration of its affairs is being carried on. The arguments made by Respondents are based upon suppositions, and not upon actual conditions. We must assume that those who are in charge of the military affairs of this Nation and this State will conduct themselves so as to protect the rights of the people and the administration of their affairs by their public officers.

By virtue of Sections 33 and 40 of Article 16 of the Constitution, we hold that Relator did not vacate his office as a member and Chairman and Executive Director of the Texas Unemployment Compensation Commission, when called into the military service of the United States and appointed an officer therein. We further hold that his appointment as Major in the United States Army does not violate Section 12 of Article 16 ¡of the Constitution. Therefore he is entitled to be paid his salary.

The Attorney General’s Department has shown much zeal and ability in presenting its contentions in this case. While this Court must hold contrariwise, it does so without any reproach on that Department, which is rather to be commended for deciding to present this important matter for the Court’s review and decision.

The writ of mandamus as prayed for by Relator will be granted, and the Honorable George H. Sheppard, Comptroller of Public Accounts of the State of Texas, is directed to issue and deliver to Relator a warrant against the State Treasury of the State of Texas for his salary for the full month of September, 1940, to which he is entitled, and the Honorable Charley Lockhart, State Treasurer of the State of Texas, is directed to pay such warrant in due order.

On Motion for Rehearing.

In our original opinion we quoted certain provisions as being contained in the National Defense Act, when in fact these provisions are really contained in the Army Regulations adopted in pursuance of such Act. We desire now to make certain changes in our opinion so as to show the correct source of these quotations.

The Army Regulations relating to the National Guard contain the following provisions :

“The President has the authority to call all or a part of the National Guard, as part of the militia of the United States, into the service of the United States whenever the country is invaded or in danger of invasion from any foreign nation, or there is rebellion or danger of rebellion against the authority of the Government, or the President is unable with the regular forces at his command to execute the laws of the Union. See sec. 4, act January 21, 1903 (32 Stat. 776), as amended by sec. 3, act May 27, 1908 (35 Stat. 400) ; 32 U.S.C. § 81a [32 U.S.C.A. § 81a]; M. L., 1929, sec. 1295; secs. 1 and 101, National Defense Act, as amended [10 U.S. C.A. § 2, 32 U.S.C.A. § 82],
“The President has the authority to order the National Guard of the United States, as a part of the Army of the United States, into the active military service of the United States when Congress shall have declared a national emergency and authorized the use of armed land forces in excess of those of the Regular Army. See secs. 1 and 111, National Defense Act, as amended [10 U.S.C.A. § 2, 32 U.S.C.A. § 81].
“When any or all parts of the National Guard are called as such into the service of the United States, they become a component of the Army of the United States but their units and members retain their State status as Federally recognized units and members of the National Guard in a state of temporary suspension. * * * See 29 Op.Atty.Gen., 322, 1911-1912; secs. 4 and 5, act January 21, 1903 (32 Stat. 776), as amended by act May 27, 1908 (35 Stat. 400); 32 U.S.C. § 81a [32 U.S.C.A. §§ 81a, 81b]; M.L., 1929, sec. 1295; and sec. 101, National Defense Act, as amended [32 U.S.C.A. §82].”
We delete from our original opinion the following statement: “This Act, now Article 5890b, R.C.S., was enacted at the Regular Session of the 45th Legislature, 1937, Chapter 366.”

The Attorney General in substance contends in his motion for rehearing that this Court erroneously held in its original opinion that the calling of relator to service as a member of the National Guard of the United States did not result in his vacating the civil office held by him in this State, and that such holding violates certain provisions of the law passed by Congress. The Attorney General contends that the following Federal statute upholds his contention that relator has vacated his State office by assuming the status of an officer in the United States Army under the conditions shown by this record: “No officer of the Army on the active list shall hold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and his commission shall be thereby vacated.” Title 10, Section 576, U.S.C.A.

Furthermore, in support of this contention the Attorney General strongly relies upon the following cases, among others: United States ex rel. Gillett v. Dern, Secretary of War, et al., 64 App.D.C. 81, 74 F.2d 485, and Thomas L. Fekete, Jr., v. City of East St. Louis, 315 Ill. 58, 145 N.E. 692, 694, 40 A.L.R. 650.

The provisions of the statute above quoted do not, either directly or by implication, sustain the contention of the Attorney General. If it should be held that this relator occupies the status of an “officer of the Army on the active list,” and that the State office he now holds is a “civil office,” both within the meaning of the above statute— a question we do not decide, but leave to the Federal authorities to decide — still such statute makes no provision that an officer included within its terms vacates his civil office.

The real question before us is: Does relator by being called into the active service of the National Guard of the United States vacate the civil office held by him in the State? We are not called upon to decide whether he vacates his commission in the National Guard of the United States. That is a question for the Federal authorities to decide, and not for us to determine.

The case of Thomas L. Fekete, Jr., v. City of East St. Louis, supra, was decided on December 16, 1924, and the decision in that case was based on certain other decisions, among which was the opinion in Lowe v. State, 83 Tex.Cr.R. 134, 201 S.W. 986. In the course of the opinion it was said: “The identical question here involved was decided in Lowe v. State, 83 Tex.Cr.R. 134, 201 S.W. 986. In that case a judge became an officer in the National Guard in 1917, and was later taken by the United States as an officer in the military service. Under a constitutional provision practically identical with ours, the court held when the judge accepted the position of an officer in the military service of the United States, and was placed on the pay roll as such, he vacated his office as judge.”

As pointed out in our original opinion, Sections 33 and 40 of Article 16 of the Constitution of Texas, Vernon’s Ann.St., were adopted for the purpose of avoiding the holding in the Lowe case. The case of Thomas L. Fekete, Jr., v. City of East St. Louis, supra, was decided long prior to the adoption of Sections 33 and 40 of Article 16 of the Constitution, and the opinion in that case is not applicable to the case before us. It is not in any way in point, or even persuasive. The case of United States ex rel. v. Dern, Secretary of War, supra, involved the construction of an Act of Congress wherein, in substance, it was provided that under the War Department Appropriation Act of 1933 an officer in the National Guard, receiving a pension from the United States, cannot, without surrendering the pension, receive benefits extended by the Federal Government to members of the State Militia. See Act March 4, 1933, sec. 1, 47 Stat. 1589; Act June 15, 1933, 48 Stat. 153. Thus it will be seen that the question involved in that case was the right to draw both a pension and compensation under the Federal laws. The question involved here was not involved in that case, and the court did not have before it for construction the provisions of a state constitution similar to Sections 33 and 40 of Article 16 of our Constitution. Therefore the opinion of the court in that case is not applicable here.

We' have carefully considered the contentions made by the Attorney General in his motion for rehearing, and same are hereby overruled. With the corrections herein made, our former opinion stands.


text:
    STANOLIND OIL & GAS CO. et al. v. STATE et al.
    Motions Nos. 14284, 14287; No. 7412.
    Supreme Court of Texas.
    Dec. 19, 1940.

      For former opinion, see 133 S.W.2d 767.
    Turner, Rodgers & Winn, of Dallas, Clay Tallman and Donald Campbell, both of Tulsa, Old., Collins, Jackson & Snod-grass, of San Angelo, Cantey, Hanger, McMahon, McKnight & Johnson, Warren Scarborough, Gillis A. Johnson, and Ira Butler, all of Fort Worth, Henry H. Brooks, of Austin, and Geo. T. Wilson, of San Angelo, for plaintiffs in error.
    Wm. McCraw, Former Atty. Gen., H. Grady Chandler, of Austin, and Gerald C. Mann, Atty. Gen., for defendants in error.
    J. B. Dibrell, Jr., of Coleman, John Say-les, of Abilene, Bryan, Suhr, Bering & Bell and E. H. Suhr, all of Houston, and Wag-staff, Harwell, Douthit & Alvis, of Abilene, amici curiae.
   SHARP, Justice.

After a careful consideration of the motions for rehearing filed in this cause, we have decided to modify the original judgment rendered in this cause.

We have set out in our original opinion the method whereby the Stanolind Oil & Gas Company attempted to obtain a lease from the State of Texas on the land in controversy. The evidence in this cause consists of records made by the Stanolind Oil & Gas Company and the testimony of its surveyor - regarding his efforts to obtain such lease, and which testimony on this issue is undisputed. The Stanolind Oil & Gas Company made no effort to explain or modify the statements contained in such records to the effect that such land was vacant and was subject to lease.

The Stanolind Oil & Gas Company by its acts unquestionably admitted such land to be vacant and subject to lease. After the introduction of much testimony, the trial court determined that the land in controversy was vacant and that there was no issue of fact for the jury to determine. The General Land Commissioner, acting on the record before him, executed leases on the land involved here in accordance with the provisions of the statutes.

The authorities hold that where a litigant admits positive and definite facts, which if true would defeat his right to recover, and such statements or admissions are not subsequently modified or explained by him so as to show that he was mistaken, although testifying in good faith, he is conclusively bound by such admissions, and cannot successfully complain if the court directs a verdict against him. Watkins Co. et al. v. King, Tex.Civ.App., 83 S.W.2d 405; Southern Surety Co. v. Inabnit et al., Tex.Civ.App., 1 S.W.2d 412; Mhoon v. Cain, 77 Tex. 316, 14 S.W. 24; Nerio v. Christen, Tex.Civ.App., 189 S.W. 1038; Smith v. Boston Elevated Ry. Co., 1 Cir., 184 F. 387, 37 L.R.A.,N.S., 429; Hubbs-Diggs Co. v. Mitchell, Tex.Civ.App., 256 S.W. 702; Stephenson v. Barrow, Tex.Com.App., 15 S.W.2d 575, 576, 577; Broad River Lumber Co. v. Middleby, 4 Cir., 194 F. 817, 821, par. 3; Harlow v. Leclair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973, 976, 977, and note page 979 et seq.; 17 Tex. Jur., p. 577 et seq.

We again reiterate the fundamental rule that it is the purpose of the law to-put' an end to litigation and expedite the administration of justice. This Court, in the recent case of Permian Oil Co. v. Smith et al., 129 Tex. 413, 107 S.W.2d 564, 567, 111 A.L.R. 1175, said: “It must be borne in mind that the purpose of the law remains constant to prevent the failure of justice as the result of permitting the retrial between the same parties or their privies of a cause of action or of an issue which has been finally disposed of.”

We hold that, if it should be determined that all or any of the land involved here is embraced in other surveys, all rights held by any party or parties, not parties to this suit, in such lands embraced in such survey or surveys shall not be affected by this decision.

The motion for rehearing filed by plaintiffs in error, Stanolind Oil & Gas Company et al., is hereby overruled. The motion, for rehearing filed by defendants in error, State of Texas et al., is granted in part, as shown by the following reformation of the judgment of the District .Court, but in all other respects said motion is overruled.

It is ordered and decreed that the judgment of the District Court be reformed so-that same shall not prejudice or affect the rights, if any, of persons not parties to this suit with respect to the tract of land described in the District Court judgment, and such judgment shall not adjudicate or affect 'the boundaries of any land except that heretofore described in the District Court judgment. As thus reformed, the judgment of the District Court is affirmed, and the judgment of the Court of Civil Appeals is reversed.

MOORE, C. J., disqualified and not sitting.