author: YOUNG, Justice.

text:
    AETNA CASUALTY & SURETY CO. v. DIXON.
    No. 13027.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 2, 1940.
    Rehearing Denied Nov. 30, 1940.

      Lawther, Cramer, Perry & Johnson, of Dallas, for appellant.
    Saner, Saner & Jack, of Dallas, Patterson & Patterson, of Austin, and Dougherty & Dougherty, of Mesa, Ariz., for appellee.
   YOUNG, Justice.

Mrs. Ercel Dixon, claiming as statutory dependent under the Workmen’s Compensation Law, recovered death benefits in the trial court, arising from the loss of her brother, while employed by the Geophysical Service, Inc., from which judgment, appeal is taken. Appellant insurance carrier filed suit to set aside an award of the Industrial Accident Board, favorable to Mrs. Dixon, the latter asserting claim in answer and cross-action that, after jury trial, became the basis of her final recovery of $17.30 per week over a period of 360 weeks, calculated in a lump sum. In substance, appellee’s allegations for affirmative relief were, that Dave Sanders, a resident of Texas, had been employed by the Geophysical Service for more than one year prior to his death; service being rendered principally in Texas where the employment contract had been entered into; that about February 21, 1938, the employer temporarily transferred Sanders to the State of Louisiana, where he continued to render the same' type of services as theretofore performed in Texas, and for the same salary, viz., $125 per month; that afterward, on July 13, 1938, while Dave Sanders was rendering said services in the State of Louisiana, and working in the usual course of his employment, he was drowned; pleading that appellant and said employer had in possession all records as to the employment and wages of Sanders, dates and places of work, and notice was given for their production. Mrs. Dixon further alleged that her brother was a single man, having never been married; that she was a widow, with four minor children, receiving regular contributions from said Dave Sanders, on whom she was wholly dependent at the time of his demise. Definité allegations were made as. to the average weekly wage of Sanders, in accord with the several sections of the statute, .in which. connection it was stated that: “Previous to the 1st day of September, 1937, Dave Sanders (deceased) was employed by Geophysical Service on a daily basis, working intermittently for said Geophysical Service, having worked for said Geophysical Service during the month of January, 1937, in or near Lufkin, Angelina County, Texas * * and that, beginning September 1, 1937, he was employed on basis of $125 per month while at Harlingen, Texas, continuing on such salary until his death.

Issues 1 and 2 submitted to.the jury, and their answers thereto, were: (1) “Do you find from a preponderance of the evidence that at the time of the death of Dave Sanders he was working in the course of the employment for which he had been hired at Lufkin, Texas, in January, 1937? Answer: Yes.” (2) “Do you find from a preponderance of the evidence that while ■Dave Sanders was working under such employment, if any, entered into in the State of Texas, if you have found the fact so to be, the Geophysical Service, Incorporated, sent him to the State of Louisiana to work temporarily in the work in which he was engaged at the time of his death? Answer: Yes.”

Remaining issues were as to the average weekly wage of Sanders (not in controversy), and that the evidence justified payment of compensation to claimant in a 'lump sum instead of in weekly installments. Aside from appellant’s propositions 14 and 15, later to be noted, the main question on this appeal is, whether Dave Sanders was a Texas employee at the time of his death in Louisiana, and thereby entitled to the protection of the Workmen’s Compensation Act (Vernon’s Ann.Civ.St. Art. 8306, sec. 19). Claimant’s pleading and the evidence are challenged in many propositions as insufficient to support issues 1 and 2; that the facts involved in said issues were undisputed; and that, as a matter of law, under the whole record, Sanders was not an employee who had been hired in this State within contemplation of the statute.

For a disposition of the law points presented, we are required to rather fully summarize deceased’s employment record and all evidence relevant thereto. The employer, Geophysical Service, Inc., is a Delaware corporation, with only a formal office there, the main office, where all records, supplies and equipment are kept and from which all operations are directed, being in Dallas, Texas; maintaining no office in Louisiana, save the usual designated agent for service, required of all foreign corporations. The company operates pursuant to contracts with oil companies, under which extensive tests are made for oil in designated areas. After obtaining such an assignment, the employer’s method of operation is to send a party of workmen — or organize one — to do the job; including skilled and regular workers already employed, and new help from time to time as needed. A representative of the oil company (contractor) is usually with the party to point out particular spots for exploration within the given area. When a job is finished, Geophysical Service orders all equipment back to Dallas, or transferred to another locus. Employer’s party of workmen is thus constantly moved from place to place in doing the work it has agreed to perform. Any field party, sent to a certain place, requires a base of operations, so a small field office is opened for that purpose, usually in the town near where the workmen are temporarily operating. When the contract is completed in one locality, the field office is then moved up to where the crew has the next job, and used, generally, to provide the party with living accommodations. The company warehouse is at all times maintained in Dallas.

Relative to the service record of Dave Sanders, Mr. Edwards, assistant treasurer of the employer, alone testified, and from the original pay roll sheets and other data ⅛ the main office. Evidence from such source revealed that Sanders was first employed by Geophysical Service, Inc., for two days near Lufkin, Texas, as recorder’^ helper, with a field party 'there, on a daily wage, the last day of such service being January 26, 1937. He next appeared on the pay roll February 18, 1937, at Houma, La., where a field operation was being conducted, working nine days that month on a per diem basis, as recorder’s helper; and continued to be so employed until April, the party then moving to Harlingen, Texas. The next ten months were spent in that vicinity, Sanders working full time and paid by the day until September 1, when he was put on the, Dallas pay roll at a fixed .salary of $125 per month, in vouchers from the main office, drawn on a Dallas bank. 'Sanders remained on such permanent pay roll and at such wage until his death in July, 1938. On February 18, 1938, upon instructions, he reported at the Dalias ■office, was furnished transportation with ■orders to join a field party at Hammond, La. In this interim, he was paid regular salary and expenses. The employer’s field .party, to which Sanders was attached, operated near Hammond and Baton Rouge, La., until June, 1938; then transferred to a point near New Orleans, where he was drowned in the course of employment. His field party (No. 316) moved from the New Orleans location to Texas in December; then operated in Arkansas and Missouri, and finally disbanded in Dallas about March 15, 1939.

According to appellee, Mrs. Dixon, her brother was Texas-born, first living near Gilmer, and was never outside the State except on the two occasions in Louisiana, while employed by the Geophysical Service. Appellee made no claim for death benefits in Louisiana, but relies solely upon Texas laws for recovery thereof.

Sec. 19, commonly known as the '“extraterritorial” provision of Art. 8306, allows compensation for injuries received outside the State, by an “employee, who has been hired in this State”, under conditions ■set forth in the statute. It is well settled that such section serves to extend the protection of the Workmen’s Compensation ■Law to Texas employees who are incidentally or temporarily sent out of this .State.by their employer. A major contention of. appellant is, that the first two days .of labor rendered by Sanders near .Lufkin, Texas, to the Geophysical Service, Inc., under the undisputed facts, bore no relationship to the continuity of an employment which began in February, 1937, at Houma, La., and ended with Sanders’ death in the same state some seventeen months later; that he was a Louisiana employee of his company, temporarily in this State, so far as the Texas sojourn was concerned, and had returned to the domicile of his-original employment at the time of his tragic ill fortune. The argument, in other words, is that, indisputably, in the inception of deceased’s employment at Houma, La. (February, 1937), which continued to the end, there was no evidence of a contemplated performance in Texas, hence he was at all times an employee of such adjoining state, and protected, if at all, by the compensation' laws of that jurisdiction. The evidence does not directly disclose the connection between the January, 1937, employment of Sanders at Lufkin and his reappearance upon the pay roll at Houma, La., some three weeks later — whether same was a mere coincidence, or resulted from a previous understanding. Appellant urges, with vigor, that under the testimony of Mr. Edwards (the Geophysical Service officer), Sanders was a Louisiana employee, in his sworn statement that such employee was hired in Louisiana on February 18, 1937, and prior to that date, so far as he knew, Sanders had not been sent to Louisiana by the company. Edwards, however, did not assume to testify from first-hand knowledge, but from office records in his charge, as appears from the answer of this witness on re-direct examination, viz.: “As I recall my testimony, I said that he (Sanders) worked in January near Lufkin and then later on, February 18 was the time, I think, he reappeared on the pay roll near Houma, Louisiana, and at Hammond, Louisiana, and during that time he was not paid and I presume he was not working. Q. Those were separate employment contracts? A. I don’t know what they were, but they were separate periods in which he worked.”

Absent direct evidence on the point, we believe a relationship of employer and employee on a day to day basis can be inferred from the pay roll sheets, whereby Sanders’ second date of employment bears sequence to the first. Certainly, if the two localities were in Texas and not across a state line, there would be little logic in appellant’s assertion that an interval of several weeks was sufficient to break the continuity of deceased’s day to day employment with the subscriber. Moreover, it being the custom of such employer to transfer its crews of workmen from place to place, and there being no evidence of a new contract entered into by Sanders in Louisiana, it can be presumed in law that the relationship entered into between the parties a few weeks previously at Lufkin, Texas, continued in force and effect when he again became a “recorder’s helper” in such other state: “It is a general rule, with wide applications, that where the existence of a status or a state of things, a personal relation or a custom is once established, it is presumed that such status, etc., continues until the contrary is shown, or until a different presumption is raised from the nature of the subject in question.” 17 T.J., Evidence — Civil Cases, § 62, p. 25 5; 20 Am.Jur., § 207, p. 205; Vernon’s Ann.St. Art. 3713, Evidence, Rule 12, Note 18.

But, if we be mistaken in this, still we think it fairly deducible from the entire record that Dave Sanders had acquired the status of a Texas employee when he was sent by Geophysical Service to Louisiana about Febru'ary 21, 1938, in the course of which employment, and within twelve months, he met his death. Deceased was a resident of Texas, first hired by the subscriber at Lufkin, Texas, in January, 1937, next appearing on the company’s pay roll the following month in Louisiana, with no indicia of a new employment contract in said state. After a few months’, labor, he returned to Texas, working constantly for his company at Harlingen and Edinburg; on September 1, 1937, placed upon the permanent pay roll with regular monthly salary thereafter; and, following a period of ten months’ service in Texas, he was sent to Louisiana on work clearly proven as temporary, when he was drowned. The rule announced in Texas Employers’ Ins. Ass’n v. Volek, Tex.Com. App., 69 S.W.2d 33, 35, regarding liability-in extraterritorial cases, applies with peculiar aptness to such facts. The Court, through Judge Critz, there said: “It will be noted that the statute only purports to cover ‘an employee who has been hired in this State.’ This clause certainly does not have reference to the place where the hiring was originally made. The primary purpose of our Compensation Law is to protect our own workmen. The purpose of the extraterritorial provision is to protect, under our law, employees who are such in this state under some contract of hiring, and who are incidentally or temporarily sent out of this state to perform labor or services.” (Italics ours.) The test just stated has been consistently applied in later decisions of our Supreme Court; Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955; Southern Underwriters v. Gallagher, Tex.Sup., 136 S.W.2d 590.

Appellant urges a want of evidence to justify the jury verdict for appellee in a lump sum. We think their finding in this regard has sufficient support in the facts, which show Mrs. Dixon to be a widow, with four dependent minor children, and no other income save $45 per month for her own labor during eight months of the year; has bills that she is unable to pay; rents a small board house, and plans to use the lump sum to purchase a home for herself and family, and provide adequate education for the children, — which objects, as appellee testified, cannot be accomplished through weekly payments; 45 T.J., Workmen’s Compensation, § 226, pp. 682-685; Associated Indemnity Corporation v. Wilson, Tex.Civ.App., 21 S.W.2d 314, writ refused; the particular matter being largely within the discretion of the trial court. Millers’ Indemnity Underwriters v. Green, Tex.Civ.App., 237 S.W. 979, writ refused.

Fundamental error is urged by appellant in that, no jury finding established a filing of claim by appellee within the six months’ period, or good cause for failure to comply with the statute, though the issue was raised by denial under oath. The judgment recited that, from the undisputed facts, Ercel Dixon had duly filed her claim with the Industrial Accident Board within six months after the death of Dave Sanders. Appellant made no request for the submission of any issue on the point; and neither in objections to the court’s charge nor in motion for new trial did it complain of failure to submit the question. The two letters received by the Industrial Accident Board from appellee, well within the time limit of six months, amply met the requirements of the law; Art. 8307, sec. 4a; the writings embracing all facts necessary to constitute a timely and proper claim; 45 T. J., § 266, p. 746. Hence there was no conflict in such particular for the jury to pass upon.

A thorough examination of this record indicates no reversible error and the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: FOLLEY, Justice.

license: Public Domain

text:
    ETTER v. DISHMAN et al.
    No. 5116.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 2, 1940.
    R. D. Oswalt, of Crowell, and J. Shirley Cook, of Vernon, for appellant.
    Leslie Thomas, of Crowell, for appellees.
   FOLLEY, Justice.

The parties to this appeal have failed to file briefs and no excuse is offered or good cause shown for such failure.

Under the rules prescribed by the Supreme Court and the authorities on the subject we are authorized and obliged to dismiss this appeal. Haynes v. J. M. Radford Grocery Co., Tex.Com.App., 118 Tex. 277, 14 S.W.2d 811.

The appeal is dismissed.


author: BLAIR, Justice.

text:
    TAYLOR v. HARKEY et al.
    No. 8998.
    Court of Civil Appeals of Texas. Austin.
    Nov. 20, 1940.
    Frank M. Harrell, of San Saba, for appellant.
    No briefs filed for appellees.
   BLAIR, Justice.

Appellant, J. C. Taylor, and Mrs. Ella Taylor were prior to her death husband and wife. They executed separate but mutual wills. After her death her will was duly probated. Thereafter a controversy arose between appellant and appel-lees (beneficiary remaindermen) as to whether the will should be construed as bequeathing a fee-simple estate to appellant to the testatrix’ one-half of the community real property. The trial court construed the will as showing the intention of testatrix not to permit appellant to sell, dispose of, or mortgage her one-half community interest in such real property, except such as was necessary for the support and maintenance of appellant, or to conserve such real estate; hence this appeal.

We are of the view that the construction placed upon the will by the trial court is directly opposed to its express provisions. Omitting formal and immaterial parts, it reads as follows:

“Third. I will and bequeath unto my beloved husband, J. C. Taylor, all of the property, both real and personal, that I may die seized and possessed of to have and to hold during his natural life, and to use and enjoy the fruits and revenues derived therefrom, as long as he shall live and at his death to vest in. the parties and in the manner hereinafter stated; it is my will and desire however, and I hereby authorize and empower my said husband, J. C. Taylor, to sell of dispose of or exchange for other property, any and all property that I may die seized of, during his lifetime as he may see fit and proper and to use the proceeds of the sale of said property, or any property that he may sell, acquire by exchange, for any purpose that he may see fit and proper.
“Fourth. I will and bequeath to B. F. Harkey and his wife Lula Harkey, as long as they or either of them shall live, the following described’ tracts of land, lying and being situated in San Saba County, Texas, to-wit: (description omitted). It is my will and desire that the said B. F. Harkey and wife, Lula Harkey, shall have and hold said above described tracts of land as long as they or either of them shall live, and fully enjoy the' fruits and revenues derived therefrom during all of said time, and at the death of the survivor of them, it is my will and wish that the title to said tracts of land shall vest absolutely, share and share alike, in their children, and should any of their children die before the death of their said parents and leave surviving children, then such children shall have the share of their parents, share and share alike.”

By paragraphs Fifth, Sixth, and Seventh testatrix bequeathed life estates or successive life estates to others of the appel-lees, with provisions for final vesting of title in remaindermen as in paragraph Fourth.

“Eighth. It is my will and desire that B. F. Harkey shall have all stock that I own in the San Saba National Bank of San Saba, if same is not sold or disposed of by my husband after my death, during his lifetime.”

By paragraphs Ninth to Fourteenth, both inclusive, testatrix devised household furniture, pictures, and cash devises to several of the appellees, each to be delivered or paid at the time of the death of appellant; and by the “Fifteenth: I will and bequeath the residue of the property, both real and personal that I may die seized and possessed of, and that may be in the hands or possession of my said husband, J. C. Taylor, at the time of his death, should he survive me, to B. F. Harkey and B. D. Harkey, share and share alike.”

The Sixteenth paragraph appointed appellant independent executor, if he survived testatrix; if not, B. F. Harkey was named independent executor.

“Seventeenth: The property mentioned in this will being -jointly owned by myself and my husband, J. C. Taylor, and my said husband having this day made a will in my favor with similar provisions as are contained in this will, and it being understood by and between myself and my husband that this will shall be irrevocable after the death of the first of us that shall die.
“It is further my intent in making this will that the above specific legacies shall be paid out of the joint property and that only one-half thereof shall be paid out of my part of said property, and that I only intend to will and bequeath my undivided one-half interest in such property.”

By the plain and unambiguous language of paragraph Third, it is manifest that testatrix not only intended to give her husband a life estate in her one-half of the community real estate, but she also intended to fully authorize and empower him to sell and dispose of such property and to use the proceeds of the sale for any purpose that he might see fit and proper; and that what was left at the time of his death should vest in the devisees or legatees named. We find no language in the will, nor any bequest or devise which would in any way limit the absolute power given appellant to dispose of the property, nor which would limit the power of sale of only so much of the property as may be necessary for the support and maintenance of appellant, the husband, or to conserve the real estate. Such construction would destroy or render ineffective the absolute power given appellant to sell or otherwise dispose of the property as “he saw fit and proper,” and “to use the proceeds of the sale * * * for any purpose that he may see fit and proper.” We think it clear that testatrix did not intend to impose upon her husband an obligation to keep the property in trust for the dev-isees or legatees named; but she authorized and empowered him to sell and use all of it for “any purpose he saw fit and proper,” with a limitation over, giving to others at the death of the husband such part of the property as the latter may not have disposed of or consumed. The cases hold that an absolute power of disposition of property is conferred upon a devisee or legatee by a statement in a will that he is “to sell and dispose of as he may think proper or best,” or by language of similar import; and that the power of sale or disposition is also implied from a limitation over of the residue of the property. McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412; Kilpatrick v. Cassel, Tex.Civ.App., 19 S.W.2d 805; Johnson v. Kirby, Tex.Civ.App., 193 S.W. 1074, error refused; Danish v. Disbrow, 51 Tex. 235; West v. Glisson, Tex.Civ.App., 184 S.W. 1042, error refused.

The judgment of the trial court is reversed and judgment is here rendered for appellant, construing the will as authorizing and empowering him “-‘to sell or dispose of or exchange for other property, any and all” of testatrix’ property, ■ and to use the proceeds “for any purpose that he may see fit and proper.”

Reversed and rendered.


author: ALEXANDER, Justice.

text:
    BOREN et al. v. CERF'S TRUST ESTATE et al.
    No. 2384.
    Court of Civil Appeals of Texas. Waco.
    Dec. 5, 1940.
    . E. P. Bryan, H. R. Bishop, and Ross M. Scott, all of Dallas,-for appellant.
    Thompson, Knight, Harris, Wright & Weisberg and Sol Goodell, all of Dallas, and J. P. Moseley, of Ennis, for appellees.
   ALEXANDER, Justice.

This is an application to dismiss the appeal -on the ground that the record was not filed in this court within the time provided by law. The order overruling motion for new trial is dated August 7, 1940, but was not entered in the Minutes until August 12, 1940. Affidavits filed in connection with the contest here under consideration make it clear that the judgment overruling motion for new trial was actually pronounced on August 7, 1940, but the order evidencing same was not signed until sometime thereafter and was not filed with the clerk until August 12th. No motion has been filed requesting additional time in which to file the record in this court. Revised Statutes, art. 1839, Vernon’s Ann.Civ.St. art. 1839, reads, in part, as follows: “In appeal or writ of error the appellant or plaintiff in error shall file the transcript and statement of facts with the Clerk of the Court of Civil Appeáls within sixty (60) days from the final judgment or order overruling- motion for new trial, or service of the writ of error; * * The record was not filed in this court until October 8, 1940. It is apparent that if the 60-day period provided for in the above article for the filing of' the transcript in this court begins to run from August 12, 1940, the record was filed in time; but if it runs from August 7th, it was filed too late.

It is appellant’s contention that the order overruling motion for new trial never became effective, so as to start the running of the period for the prosecution of the appeal and filing of the. transcript, until said order" had been entered in the Minutes. In the case of Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, Chief Justice Phillips called attention to the distinction between the rendition of a judgment and its entry in the Minutes of the court, and held that the judgment became effective when it was rendered or pronounced in open court, regardless of the date of the recording thereof in the Minutes of the court. See also 15 R.C.L. 571. In the case of Long v. Martin, 112 Tex. 365, 247 S.W. 827, the Supreme Court had under consideration the language of Revised Statutes, art. 1742, wherein it was provided that a petition for writ of error to the Supreme Court “shall be filed with the clerk of the Court of Civil Appeals within thirty days from the overruling of the motion for rehearing.” It was there held that the time for filing the petition began to run from the date of the pronouncement of the judgment overruling the motion for. rehearing and not from the time the order evidencing the same was entered in the Minutes. In the case of Sloan v. Richey, Tex.Civ.App., 143 S.W.2d 119, the San Antonio court had under consideration the provisions of Revised Statutes, art. 2092, sec. 31, wherein it was provided: “In appeals from such civil district courts the appeal bond shall he filed within thirty days after the judgment or order appealed from is rendered * * See Acts 1939, 46th Leg. p. 205, sec. 1, Vernon’s Ann.Civ.St. art. 2092. Chief Justice Smith in that case held that the time for filing the appeal bond began when the judgment was pronounced and not from the date when the same was entered in the Minutes. Application for a writ of error to the Supreme Court in the case was dismissed for want of jurisdiction to correct judgment. See also Samuels Glass Co. v. Martin, Tex.Civ.App., 131 S.W.2d 325; Cleburne National Bank v. Bowers, 130 Tex. 637, 112 S.W.2d 717; Id., Tex.Civ.App., 113 S.W.2d 578; Hunter v. Moore, 122 Tex. 583, 62 S.W.2d 97, par. 3.

Revised Statutes, art. 2253, Vernon’s Ann.Civ.St. art. 2253, provides, in part, as follows: “An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered by the appellant giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record; * * Counsel for appellant quotes that part of the above article reading as follows: “ * * * which shall be noted on the docket and entered of record” and contends that the time for prosecuting the appeal and filing of the transcript does not begin to run until order overruling motion for new trial is “noted on the docket and entered of record.” In our opinion, the quoted language refers to the notice of appeal and not to the order overruling motion for new trial. In other words, it is the notice of appeal that is directed to be “noted on the docket and entered of record.” . See 3 Tex.Jur. 287; Western Union Telegraph Co. v. O’Keefe, 87 Tex. 423, 28 S.W. 945.

We are of the opinion that the timé for filing the transcript began to run on August 7th, when the trial court pronounced its judgment overruling motion for new trial, and as a consequence the transcript was filed too late. The motion to dismiss appeal is sustained and the appeal is dismissed at appellant’s costs.


author: CODY, Justice.

text:
    O. K. THEATRES, Inc., et al. v. JOHNSON et al.
    No. 11212.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 12, 1940.

      Wm. H. Flippen and John W. Miller, both of Dallas, for relators.
    Edward M. Winkler, of Fort Stockton, for respondents S. C. Johnson and others.
   CODY, Justice.

This is a writ of prohibition proceeding. It is here instituted by relators against the Honorable W. C. Jackson, Judge of the 112th District Court of Pecos County, Texas, and against S. C. Johnson, Mrs. Lurline Johnson, Walter Donald Johnson, and Mrs. Sammie Ruth (Johnson) Lynch, and husband, F. M. Lynch, Jr., respondents. It is sought to prohibit the Honorable W. C. Jackson from hearing, and the other named respondents from prosecuting, cause numbered on the docket of said district court 970, and styled Mrs. Lurline Johnson et al. v. Oskar Korn.

Relators’ application for the writ of prohibition is based on allegations which are in substance these:

That relators on August 14, 1940, filed in the 80th Judicial District Court of Harris County, Texas, cause number D-268,439, styled Oskar Korn et al. v. Federated Hardware Mutuals et al., in which, among other things, relators, as plaintiffs, seek as against respondents S. C. Johnson and Walter Donald Johnson, as defendants, the cancellation of a lease contract on a theatre building in Fort Stockton, Texas, alleged to have been virtually destroyed by fire. (Certified copy of the petition relators filed in the Harris County suit is attached to relator’s application for writ of prohibition.)

That respondents S. C. Johnson and Walter Donald Johnson on August 17, 1940, sued relators, in cause No. 2636 in the 83rd District Court of Pecos County, and in said suit said respondents, as plaintiffs, sued for rent and other money which is alleged to have accrued after the date when relators’ right to cancellation had attached. (A copy of the petition filed in the Pecos County suit No. 2636 is attached to the application.) That thereafter, and after leave to file an application for a writ of prohibition against the prosecution of said cause No. 2636 had been granted by this Court and set for hearing, plaintiffs in said cause No. 2636 dismissed same, and the application for writ of prohibition against the further prosecution of cause No. 2636 was dismissed as moot by this Court.

That, thereafter, respondents Walter Donald Johnson and S. C. Johnson filed a suit in Brewster County, being cause No. 1937, styled Lurline Johnson et al. v. Oskar Korn et al., and in said suit sought to recover money alleged to be due under the aforesaid lease contract, being a matter having been put in issue in the Harris County suit aforesaid between these relators and Walter Donald and S. C. Johnson. That the petition in the Brewster County suit (certified copy of which is attached to the application for writ of prohibition) alleged, among other matter: “That the aforesaid property (meaning the theatre property which was the subject matter of the lease which was sought to be cancelled in the Harris County suit) now belongs to plaintiff Walter Donald Johnson, and he is entitled to all of the uses and benefits accruing under said contract and leasehold agreement that S. C. Johnson had and received when the same was originally executed.”

That thereafter relators applied to this court for leave to file application for writ of prohibition against the prosecution of the Brewster County suit, and it was then made to appear that S. C. and Walter Donald Johnson dismissed their said cause No. 1937, and the application was dismissed as against them as moot, and thereafter Lur-line Johnson, who was co-plaintiff in the Brewster County suit, dismissed said suit.

That in the Harris County suit respondents S. C. Johnson and Walter Donald Johnson, as defendants, filed pleas of privilege to have said Harris County suit transferred to the District Court of Pecos County, Texas. At the hearing thereon, on November 20, 1940, it was developed in the evidence that cause No. 970 had been filed in the 112th District Court of Pecos County, wherein respondents herein, other than the Honorable W. C. Jackson, judge of said Court, were plaintiffs, and relators were defendants. It is alleged in plaintiffs’ petition in said Pecos County suit (and a certified copy is attached to rela-tors’ application herein) that there had been a written agreement between said plaintiffs whereby the' title to the theatre property was vested in undivided interests, as follows: In Lurline Johnson, an undivided three-fifths interest; in Walter Donald Johnson, an undivided one-fifth interest; in Sammie Ruth (Johnson) Lynch, an undivided one-fifth interest.. That said agreement, which is alleged to have been made prior to the institution of the Harris County suit, among other things provides: “It is understood that S. C. Johnson shall have control of all of said property (including the property involved in the Harris County suit) during his life time. That is to say, he can rent, lease and hold same, collecting all rents, paying all taxes and looking after it, net revenues from same to be owned in proportion herein stated, and we, Lurline Johnson, Walter Donald Johnson and Sammie Ruth Johnson, hereby authorize and empower the said S. C. Johnson to handle said property as stated above for us and in our stead.”

And relators assert that by said agreement S. C. Johnson is agent and trustee for Mrs. Johnson, Walter Donald Johnson, and Mrs. Lynch, the wife and children of S. C. Johnson, respectively.

Relators plead that at the time of instituting the Harris County suit they did not know of said agreement, and that Walter Donald Johnson was the record owner of the theatre property by virtue of the decree entered in the Federal District Court at El Paso, Law No. 1760, styled Walter Donald Johnson v. Mrs. Lurline Johnson et vir. (copy of said judgment is attached to relators’ application).

Relators further alleged that in the Harris County suit, they made Walter Donald Johnson, a party defendant, as being the record owner, and S. C. Johnson, as claiming some character of interest, therein, and that thereby the record owner of the property and trust agent, and attorney in fact, were parties to the Harris County suit.

Relators further alleged that the filing of cause No. 970 was an invasion of the jurisdiction of the district court of Harris County, and an encroachment upon the jurisdiction of this court, and an interference with the orderly trial of the Harris County suit, and relators seek to enjoin plaintiffs in cause No. 970 from further prosecution of same, in addition to applying for writ of prohibition.

By supplemental application, relators allege that on November 30, 1940, the pleas of privilege of the defendants in the Harris County case, being respondents S. C. Johnson and Walter Donald Johnson, were overruled, and that they have given notice of appeal therefrom to this Court. (Certified copy of such order is attached to the application.)

Respondents’ answer asserts that the application for the writ fails to show any ground therefor,' and fails to show that relators have exhausted their remedy at law. Also that the Harris County suit was brought against the Federated Hardware Mutuals for the purpose of determining re-lators’ rights to certain insurance funds, and that, as an incident to the recovery' of such funds, relators asked for the cancellation of the lease on the Fort Stockton theatre property. And that the pleas of privilege to remove the Harris County suit to Pecos County were overruled on November 30, 1940, notwithstanding respondents filed disclaimers to any funds held by Federated Hardware Mutuals for relators, and although the Great Southern Life Ins. Co. also filed a disclaimer to any matter in controversy. That the cause No. 970 filed in Pecos County was not filed to injure or harass relators. That the written agreement through which Mrs. Lurline Johnson and Mrs. Sammie Ruth (Johnson) Lynch own their rights had been lost, and was only found a short time before cause No. 970 was filed in Pecos County. That said last mentioned respondents , own and control four-fifths of the property, and were not and are not parties to the Harris County suit, and their rights could not he determined in the Harris County suit, and that S. C. Johnson was only sued as an individual, and not in a representative capacity in said suit. That cause No. 970 is not returnable until January, 1941, term, and rela-tors are not entitled to maintain their application for prohibition until they have first exhausted their remedy at law by filing a plea in abatement. Respondents also allege reasons for the filing and dismissals of the other suits.

We do not understand the force of respondents’ answer where it refers to the overruling of pleas of privilege though disclaimers had been filed by certain parties, including S. C. and Walter Donald Johnson. Any assignments of error claimed to have been made in overruling pleas of privilege in the Harris County suit can only be considered in an appeal from such order in that case, and cannot be considered in this action.

When the petition of relators was filed in the District Court of Harris County "that • court’s jurisdiction attached to the cause of action made by such petition, with power to permit proper pleadings to be filed, amended, amplified, and such new parties made as are proper and' necessary to determine the essential questions involved; and to do all things with reference to the rights of the parties, and the matters in litigation, or properly to be put in litigation, which are authorized by the Constitution .and laws of the State. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; Conn v. Campbell, 119 Tex. 82, 24 S.W.2d 813.” National Debenture Corp. v. Adams, Tex.Civ.App., 115 S.W.2d 757, 760. Should it be conceded that Mrs. Johnson and Mrs. Lynch are necessary parties, still under the authorities cited, they were subjected to the jurisdiction of the Harris County District Court, by the filing of relators’ petition in said Coúrt. And by amendment, they can be made parties to said suit. It appears from relators’ .aoolication that the record title to the Fort Stockton theatre property was in Walter Donald Johnson, and that relators knew that S. C. Johnson was claiming some interest therein. But it is plain that they knew nothing of the equitable estates of Mrs. Johnson and Mrs. Lynch, and therefore could not have made them parties to said suit when they instituted it. Now, under the authority of Cleveland v. Ward, supra, by amendment, Mrs. Johnson and Mrs. Lynch can be made parties. The point is too well settled to require further discussion.

We do not understand that any question is made as to our jurisdiction, when it is invoked, to protect the orderly trial of cases by the courts within our Supreme Judicial District, where jurisdiction to try same has attached, against interference by courts without said District. Driscoll v. Casstevens, Tex.Civ.App., 110 S.W.2d 958; National Debenture Corporation v. Adams, supra.

Under the undisputed facts in this case there is no doubt but that jurisdiction attached to the Harris County suit to try the issues as to whether the lease has remained in force from and after the time the building burned. If the lease contract should, under the law and facts, be cancel-led, as of the time of the fire, the incidental result would be to cancel all rent to accrue thereunder thereafter. Under normal circumstances, these relators should urge a plea in abatement in the 112th District Court of Pecos County. For a plea in abatement urged there should effect the. same result as a writ of prohibition, and if Courts of Civil Appeals entertained applications for writs of prohibition .because there is apprehension that the trial court,will rule adversely on a plea in abatement, the administration of justice would be in a very unsatisfactory state. It lies within the sound discretion of this court to grant the writ, even though a plea in abatement urged in the Pecos County suit should effect the same result. In the light of the history of this litigation, of the institution of three different suits encroaching on the jurisdiction of the Harris County District Court, we think that relators should not be further burdened by our declining to give a remedy which lies without our discretion.

Under these conclusions, it becomes ourl duty to grant the prayed for writ of prohibition. The clerk is therefore directed to issue a writ of prohibition against the Honorable W. C. Jackson, Judge of the 112th Judicial District Court of Pecos County, Texas, commanding- him to desist from further proceeding in, except an order of dismissal may be entered, and against the other respondents commanding them to desist from further prosecuting or attempting to prosecute, cause No. 970 pending on the docket of said district court of Pecos County, styled Lurline Johnson et al. v. Oskar Korn.

Application for writ of prohibition granted.


author: STOKES, Justice.

text:
    DILLARD et al. v. CLUTTER.
    No. 5224.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 18, 1940.
    Rehearing Denied Dec. 16, 1940.
    McWhorter & Howard and W. F. Schenck, all of Lubbock, for appellants.
    Vickers & Campbell, of Lubbock, for ap-pellee.
   STOKES, Justice.

On November 1, 1938, appellee, B. C. Clutter, sold to the appellants, Tillman R. Dillard, Weldon B. Dillard, and J. J. Dillard, 69 head of dairy cattle, together with a mechanical milker, Frigidaire equipment, bottles, motortruck, and a large number of other articles constituting his complete dairy equipment. As part of the consideration appellants executed three notes, one in the sum of $6,930, one in the sum of' $300, and the third note in the sum of $1,390.04. The $300 note was payable January 1, 1939, and the other two notes wer-e payable in monthly installments. To secure the payment of the notes appellants executed three chattel mortgages, one upon the 69 head of dairy cattle purchased from appellee, one upon 13 head of dairy cattle already owned by appellants, and the third upon a Frigidaire, compressor, ice maker, milk pump, with sanitary pipe and fittings, and other articles composing the dairy equipment, all of which they had purchased from appellee as a unit. After paying a number of installments on the installment notes appellants defaulted in the payment of the indebtedness and appellee filed this suit on July 29, 1939, seeking to recover the entire balance due on all of the notes and to foreclose the chattel mortgage liens.

In their answer appellants included a cross-action in which they alleged that when they purchased the dairy cattle and equipment, appellee represented to them that the cattle were sound and healthy and that they would produce milk which would meet the quality of Grade A as required by the milk and sanitary ordinances of the city of Lubbock near which appellants’ dairy was located and in which appellee knew appellants intended to sell milk produced by the dairy cattle being purchased by them. They alleged further that some 80% of the cattle which they purchased from appellee were afflicted with contagious diseases known as mastitis and Bang’s disease and that shortly after purchasing the cattle the official grade of appellants’ milk products was reduced by the city authorities of the city of Lubbock from Grade A to Grade B on account of the diseases affecting the cattle purchased by them from appellee. They, alleged in this connection that if the cattle purchased from appellee had been sound and healthy cattle as represented by him, they would have produced 600 quarts of milk per day which appellants could and would have sold at the price of 10⅜⅞ per quart, or $60 per day, but that, by reason of the diseased condition of the cattle, appellants were able to sell only 300 quarts of such milk per day for which they were enabled to realize only $30 per day, and that they were able to dispose of the balance of the milk only to pasteurizing plants and cheese factories at a nominal sum. Appellants alleged fraud perpetrated upon them by appellee and also that the representations concerning the health of the cattle amounted to a warranty by appel-lee that the cattle were in the condition in which he represented them to be.

Upon the trial of the case they abandoned and waived their allegations of fraud and sought recovery only upon the' warranty, on account of which they sought a rescission of the purchase, tendered the cattle back to appellee and prayed for judgment against him for .the amount which they had paid on the notes together with a large amount of damages which they alleged they had sustained by reason of the diseases having been communicated to their own original dairy herd, loss of patronage and other items of damage specified in their pleading.

The case was submitted to a jury upon special issues and the jury found (a) that at the time of the sale some of appellee’s cattle were suffering with the diseases of mastitis and Bang’s disease, but that appel-lee was not aware of it; (b) that the 13 head of dairy cattle already owned by appellants were free of the diseases prior to the time they purchased appellee’s cattle, and that they became infected with the diseases as a direct result of being placed with the cattle purchased; (c) that the grade of milk produced by appellants was reduced by the authorities of the city of Lubbock from Grade A to Grade B in April, 1939, as a result of the cattle being infected with the diseases mentioned; (d) that appellee represented to appellants at the time of the sale that the cattle which he sold to them were sound and healthy but that appellants were not induced to purchase them by reason of such representations; (e) that appellants inspected the cattle before purchasing them from appel-lee and relied upon their own skill and knowledge of the cattle business in purchasing the cattle in question, and (f) that appellants had suffered damages in the sum of $1,000 as a direct and proximate result of appellee’s cattle being infected with mastitis and Bang’s disease. -

Based upon the verdict of the jury the court rendered judgment in favor of appel-lee for the balance due and unpaid on the notes sued upon after deducting from such balance the sum of $1,000 as damages found by the jury to have been sustained by appellants on account of the diseased condition of the cattle purchased by them from appel-lee. Other than the deduction from the indebtedness of the $1,000 found by the jury to be the amount of damages sustained by appellants, they were denied any relief upon their cross-action.

Appellants duly excepted to the judgment, gave notice of appeal, and have duly perfected their appeal to this court.

A number of assignments of error and propositions are presented in the brief, but in the view we take of the case the controlling question presented for decision relates to whether or not, under the circumstances shown by the evidence and verdict of the jury, appellants had the right, uhder the law, to tender the cattle back to appellee in full satisfaction of the balance due upon the notes executed by them; recover the money paid on the notes, and recover also the damages alleged to have been sustained by them on account of the diseased condition of the cattle which they purchased from appellee.

As we have stated, appellants abandoned their cause of action for fraud and relied solely upon the alleged warranty. The question of fraud, therefore, passed out of the case. They would not have been entitled to recover as for fraud, however, even if they had not waived it, because of the finding of the jury to the effect that they were not induced to purchase the cattle by reason of any rep-' resentations made by appellee; but that they inspected the cattle before purchasing them and relied upon their own skill and knowledge of the cattle business in making the purchase. Lawson-Richards, Inc., v. Blalock Lbr. Co., Tex.Civ.App., 30 S.W.2d 797; Boles v. Aldridge, 107 Tex. 209, 175 S.W. 1052.

The contentions made by appellants are, therefore, reduced to the one question of whether or not they were entitled to the judgment for which they contended by reason of the alleged warranty of the soundness and good health of the cattle. The transaction did not include any agreement of appellee to take back the cattle sold in the event they were not in the condition represented by him or did not in all respects meet the warranty or representation made by him.

There is no general rule of law better established in this State than that, in the absence of fraud or an, express agreement to take back an article or property sold under a warranty, the vendee cannot return the article and recover back all of the purchase money or that part of it which he has paid. Wright & Clark v. Davenport, 44 Tex. 164; Potter v. Mobley, Tex.Civ.App., 194 S.W. 205; Barnett v. Williams, Tex.Civ.App., 242 S.W. 348; Exchange Bank v. Hensley et al., Tex.Civ.App., 240 S.W. 679; Sessums Motor Co. v. White, Tex.Civ.App., 239 S.W. 329; Fetzer v. Haralson, Tex.Civ.App., 147 S.W. 290; J. B. Colt Co. v. Reeves, Tex.Civ.App., 266 S.W. 564; Jesse French Piano & Organ Co. v. Thomas, 36 Tex.Civ.App. 78, 80 S.W. 1063.

The only condition under which a buyer has the right of rescission by reason of the warranty of the seller, in the absence of fraud or an agreement for rescission, is where the article or property purchased proves wholly unsuitable for the use or purpose to which it is known by the seller that the buyer intends to place it, or the identity of the article and it proves to be something other than that which' was purchased. In that event it may be returned and the contract of purchase rescinded upon an agreement of warranty. But if the warranty goes to the degree of fitness or to the quality of the article or property purchased and it proves to be inferior in quality, no rescission is allowed and the remedy is only one for damages. Wright & Clark v. Davenport, and other cases, supra.

Appellants do not contend in their pleading nor does the evidence show that the cattle purchased by them from ap-pellee were of no value whatever, nor that they did not produce milk of the grade and quality contemplated by them. On the other hand, they allege that the cattle were deficient, by reason of the diseases, to the extent of 80%. The proof showed that, upon examination by the inspector August 28, 1939, 39 head of the cattle were afflicted with the diseases mentioned. They allege that if the cattle had been as represented they would have produced 600 quarts of milk per day which they would have sold at 10‡ per quart, thus realizing a return of $60 per day; but that by reason of the diseased condition of some of the cattle they were able to sell only 300 quarts of milk per day for which they realized only $30, together with an additional nominal sum which they obtained for the balance of the milk, which the record indicates was that portion of it which was contaminated by reason of the diseases with which some of the cattle were afflicted. From this it must be concluded that the cattle did not prove to be wholly unsuitable for the purposes for which appellants purchased them, but that they were inferior in quality and some of them were not sound and healthy as appellee had represented them to be.

Our attention has not been called to any evidence in the record to the effect that the cattle could not have been treated and restored to their normal Health, nor that any of them had died, or would inevitably die, from the effects of the diseases with which they were afflicted. Appellants introduced much , testimony concerning the damages which they had sustained on account of loss of patronage, reduction in the grade of some of the milk produced by the cattle, sanitary work on the premises made necessary by infection from the presence of the diseased' cattle, and the communication of the diseases to some of the dairy cattle originally owned by them. t All this was submitted by the court to the jury in special issue No. 18 wherein they were asked: “What sum of money, if paid now, do you find from a preponderance of the evidence will fairly and justly compensate defendants for the damages, if any, suffered and sustained by them as a direct and proximate result of mastitis, if any, and/or Bang’s disease, if any?” To this special issue the jury answered by inserting the sum of $1,000. This amount was allowed appellants by the court in the judgment entered by him upon the verdict, and the special issue was broad enough to cover all of the damages alleged and contended for by appellants. No question is raised as’ to the correctness of the calculation made by the court on the balance due on the notes and, in our opinion, appellants were accorded all of the relief to which they were entitled under the pleadings and the evidence adduced at the trial.

In our opinion no error is shown by any of the assignments of error presented by appellants, and the judgment of the court below will, therefore, be affirmed.


author: MURRAY, Justice.

text:
    CARDWELL v. CARDWELL.
    No. 10781.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 4, 1940.
    Joe Burkett, of San Antonio, for appellant.
    H. D. Barrow and R. R. Smith, both of Jourdanton, for appellee.
   MURRAY, Justice.

This suit was instituted in the District Court of Atascosa County, Texas, by V. S. Cardwell, on July 30, 1939, against his former wife, Frances M. Cardwell, and Carl Hollingsworth, Esq., as receiver, seeking to set aside a judgment entered in that Court at its March Term, 1937, and also seeking an injunction against the receiver to prevent the threatened sale of certain property.

The petition was presented to the judge of that court, who ordered a temporary restraining order issued, restraining the receiver from making the sale until a hearing could be had, and set the cause for a hearing on the first day of the October Term of the District Court of Atascosa County, which was required to meet by statute, Art. 199, Vernon’s Texas Civil Statutes, on the sixth Monday after the first Monday in August, which was in 1939 the 9th day of October of that-year. .

On Monday, October 9, 1939, neither the appellant V. S. Cardwell nor his attorney appeared. ' The court continued the cause until the next day, when again neither appeared, whereupon the Court dismissed the cause for want of prosecution.

Appellant appeared several days later, but during the same term of the Court, and filed a motion ,to set aside the order of dismissal and reinstate the cause. This motion was by the court overruled and V. S. Cardwell has prosecuted this appeal.

The only reason given by appellant and his counsel for not appearing at the time the cause was set for hearing was that they were under the impression that the District Court convened in Atascosa County on October 16th, instead of on October 9th. This was an insufficient reason for the absence of appellant and his counsel on the day the case was set for trial. Bolls v. Galloway, 1 White & W. Civ.Cas.Ct.App. § 724.

The matter of reinstating this cause was a matter addressed to the discretion of the trial court, and there is nothing in the record to show that court abused its discretion in not reinstating the cause.

The judgment is affirmed.


author: SPEER, Justice.

text:
    MARLETT et al. v. BROWNFIELD.
    No. 14141.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 29, 1940.

      H. -E. Lobdell and H. G. Woodruff, both of Decatur, for appellants.
    E. I. Key, of Denton, for appellee.
   SPEER, Justice.

W. C. Brownfield brought this suit in the district court of Denton County, Texas, against his three sisters, Lonie Marlett, Alpha Balthrop and Ammer Kelley, and their respective husbands, for partition of 356 acres of land in that county.

Plaintiff and his three sisters are the only children of C. L. Brownfield and his deceased wife, Nancy Brownfield. All necessary allegations were made to authorize a decree partitioning the land, after proof. The controversy arose over the respective interests of the parties.

Mrs. M. J. Fortenberry, a widow, owned the land prior to her death. On August 12, 1898, she executed and delivered to C. L. Brownfield and his wife, Nancy Brownfield (the latter being grantor’s daughter), a deed purporting to convey 213 acres of the land in controversy. On the same day Mrs. Fortenberry executed her will, bequeathing to her daughter, Nancy Brownfield, 143 acres of land out of the William Fortenberry Survey, and a part of a 137-acre tract conveyed to her by Jot Gunter and others, reciting that the land so bequeathed was all of the land owned by testatrix in Denton County. The will was probated in Wise County, after Mrs. For-tenberry’s death in 1898.

On February 20, 1939, C. L. Brownfield, by deed reciting him to be a single man (his wife, Nancy Brownfield, having previously died), conveyed to his son, W. C. Brownfield, the plaintiff herein, grantor’s undivided one-half interest in 213 acres, described as in the deed from Mrs. M. J. Fortenberry, which is a part of the 356 acres in controversy.

When this suit was instituted, plaintiff and defendants owned jointly the whole 356-acre tract. Plaintiff, W. C. Brownfield, claimed one-half of the 213 acres, by virtue of the deed from his father, and an equal one-fourth interest with his sisters, the defendants, in the other one-half and in the remaining 143 acres willed by M. J. Fortenberry to their mother, Nancy Brownfield.

Defendants claimed in their pleadings that the father, C. L. Brownfield, had no interest in any part of the land and that the conveyance by him to plaintiff, W. C. Brownfield, passed no title, and that parties plaintiff and defendants owned the entire tract of 356 acres jointly in equal parts. Defendants based their contention that nothing passed under the deed from C. L. to W. C. Brownfield upon allegations that the deed from M. J. Fortenberry to “C. L. Brownfield and wife, Nancy Brownfield”, dated August 12, 1898, was a forgery, in that the original instrument, when executed, was to Nancy Brownfield (the mother of the parties to this suit) and that after the execution and delivery of the deed, it had been altered throughout, so as to show conveyance of the 213 acres to “C. L. Brownfield and wife, Nancy Brownfield”, instead of to “Nancy Brownfield”.

The case was tried to a jury; one special issue was submitted and answered. That issue involved the controversy which arose under the defendants’ allegations that the deed above mentioned had been altered since 'its execution. The jury found in response to the issue submitted against defendants’ contention of a forgery or alteration of the deed.

Upon the verdict, judgment was entered partitioning the land between- the parties, awarding to plaintiff five-eighths interest in the 213 acres and one-fourth interest in the remaining 143 acres, and to each of the defendants one-fourth interest in the 143 acres and the same interest in one-half of the 213 acres. From this judgment defendants have perfected this appeal.

Defendants rely upon four assignments of error. Two and three are upon, the same point. The assignments are, in effect: (1) the location of the 143 acres decreed by the court to be owned equally by all parties is erroneously and arbitrarily located and described in the judgment without evidence to support it; (2 and 3) the court erred in not sustaining their motion for judgment notwithstanding the verdict; and (4) the cpurt erred in awarding plaintiff' five-eighths undivided interest in the 213 acres, giving effect to the conveyance from C. L. Brownfield to plaintiff.

It is appropriate to say just here that plaintiff, the appellee, insists that this court is without jurisdiction to determine this appeal because no sufficient appeal bond was filed in the trial court, and furthermore, that even though we do have jurisdiction, we cannot consider the assignments of error presented by defendants, since there was no motion for new trial filed below, and no assignment presents fundamental error.

Referable to our jurisdiction and the sufficiency of the appeal bond, we shall give that matter no further consideration here more than to say that we disposed of the point contrary to plaintiff’s contention in response to motions filed before the cause came on for submission upon its merits. See Marlett et al. v. Brownfield, Tex.Civ.App., 140 S.W.2d 353.

Plaintiff’s contention that we cannot consider the assignments of error'because there was no motion for new trial presented is without merit. The record discloses that the judgment appealed from was entered, on the last day of the term of the district court of Denton County. This being true, and, as here, where it does not appear that the term was extended for any purpose, no motion for new trial was necessary as a prerequisite to appeal and assignments of error. Article 2232, R.C.S., and Rule 71a for district and county courts (126 Tex. vii). The authorities cited by plaintiff’s counsel are not applicable. See the above rule and the decision by our Supreme Court in Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270.

We shall discuss the assignments of error in reverse order to the manner in which they are presented in the brief. Our reason for doing so is obvious from what we shall say in discussing them.

By the fourth .assignment, complaint is made that the trial court awarded to plaintiff an undivided five-eighths interest in the 213-acre tract. The contention is based upon assertions that (a) plaintiff took nothing under the deed from his father, which purported to convey an undivided one-half interest in that tract, because the deed was a forgery or was altered after its execution, so as to include C. L. Brownfield as a grantee, (b) the description of the 213 acres contained in the deed from Mrs. Fortenberry to “C. L. Brownfield and wife, Nancy Brownfield” was insufficient to pass title, and (c) even if there was no alteration of the deed and it ’had been good as to description, the consideration paid for the 213 acres attempted to be conveyed was paid out of the wife’s separate property, and although the husband was named as a grantee, such record title as he took was in trust for the wife. Therefore, it is argued that the whole title in fact was in the wife, Nancy Brownfield, and at her death, plaintiff and defendants inherited the title in equal parts.

The contention that no title passed to C. L. Brownfield under the deed from Mrs. Fortenberry cannot be sustained, because the jury found upon ample testimony that C. L. Brownfield was a grantee in that deed. The uncontradicted evidence is to the effect that the change in the deed complained of by defendants was made before its delivery 'to and acceptance by the grantee.

It is argued that the description in the deed to C. L. Brownfield was insufficient to pass any title. An examination ot the record discloses that the description covers the whole 356 acres, describing it by metes and bounds. Following the description this is said: “Except 143 acres out of south and west sides of said described lands.” If it could be said that the exception did not retain to grantor airy part of the land described, then the deed would have passed title to the whole 356 acres; this would have materially lessened the interests of the respective defendants, who are complaining here. But in arriving at a proper construction of this deed, we must look to the intention of the parties, as disclosed by the instrument; if the instrument itself does not fully disclose the intentions, other than that a reservation or exception was made, then extrinsic facts may be resorted to, in aid of making certain what was intended to be excepted. 14 Tex.Jur., § 179, p. 962.

It has been held that if a deed purports to convey all of the lots in a given block and excepts from the conveyance one of the lots, giving its number, the instrument is sufficient to pass title to those lots not excepted. In such a conveyance, extrinsic evidence would be required to show which lot was excepted, when locations on the ground are attempted. Koenigheim v. Miles et al., 67 Tex. 113, 2 S.W. 81.

There is another part of the evidence in this case which we think tends to shed light on the intentions of the parties to the deed above mentioned. On the same day the deed was executed, the grantor, Mrs. Fortenberry, made her will, in which she bequeathed to her daughter, Nancy Brownfield (one of the grantees in the deed), the 143 acres which was apparently attempted to be excepted from the deed. In the will the 143 acres is referred to as a part of the William Fortenberry Survey, and a part of the 137 acres conveyed to testatrix, by a deed from Jot Gunter and others, on April 18, 1894, and testatrix said this was all the land owned by her in Denton County. The will and references therein made to deeds of conveyance may be looked to in this case for. better identification of the land excepted, making certain that part which passed by the conveyance.

Defendants urge another objection. to the sufficiency of the Fortenberry deed to Brownfield; this, too, is entitled to our consideration. It is pointed out that the beginning point in the description calls for the southwest corner of the Wm. Forten-berry 160-acre survey and proceeds to describe the 356 acres by metes and bounds. No discrepancy in the description would be apparent but for the fact that counsel has attached to his brief a plat of several surveys (but not shown to-have been in evidence) which shows that there are two Fortenberry 160-acre surveys, the west line of one being the east line of the other, and it is contended that this renders the beginning point uncertain. Giving effect to the plat in the brief and following the description by calls, it will be found that second, third and fourth calls make definite points on lines and corners of other surveys. By reversing the calls from these definitely locat.ed points, the place of beginning can be made certain. The means thus employed have support in Gill v. Peterson, 126 Tex. 216, 86 S.W.2d 629; Dallas County Fresh Water Supply District No. 7 v. Mercantile Securities Corp., Tex.Civ.App., 110 S.W.2d 187, writ dismissed; 7 Tex.Jur., § 25, p. 148. The complaint that the deed was void for lack of certainty in the particulars mentioned is overruled.

The fourth subdivision of assignr ment of error 4, discussed by defendants, is to.the effect that, even if the deed from Fortenberry did name C. L. Brownfield as one of the grantees, he received no title to himself in the land, but that he took only in trust for his wife, Nancy, since the whole consideration for the conveyance of the 213 acres was the exchange of the wife’s 106½ acres situated in Wise County. Defendants’ contention would be correct if the facts in the case supported it, but such is not the case here. The undisputed evidence shows that prior to 1898 and prior to her marriage to C. L. Brownfield, Nancy Brownfield (nee Fortenberry) owned 106½ acres of land in Wise County; that at the time of her marriage to C. L. Brownfield, the land was unimproved; that after their marriage, they improved the place by fencing it, placing thereon a house, granary and other outhouses, dug a well, cleared up the timber and put the land in cultivation, making it their home for a number of years. That a deal was made between Brownfield and wife with Mrs. Fortenberry, by which the 106½ acres thus improved would be exchanged for 213 acres in Denton County, With the improvements placed on the wife’s separate land by the community of Brownfield and wife, it was agreed that the conveyance of the 213 acres- should be made to both C. L. Brownfield and his wife, Nancy; that when the deed was prepared and brought out to the farm for execution, it contained only the name of Nancy Brownfield as a grantee, and the husband refused to join in the deed to the 106½ acres given in exchange until the 'other deed named him as a joint graptee, because he said this was the trade made between the parties; that the deed was then changed before its delivery 'by writing “C. L.” over the name “Nancy”, making the deed read, •“C. L. Brownfield and wife, Nancy Brownfield”, as grantees. Some portions of the testimony mentioned are for the purpose of showing that there was evidence to support the jury’s finding that there was no alteration of the deed after its execution and delivery. None of the testimony given was in any way contradicted, and it must follow that the community funds that went into improvements on the wife’s 106½ acres gave the husband an interest to that extent, for which he was entitled to reimbursement. Neither the amount so expended for improvements nor the value of the land is shown by the record, but since C. L. Brownfield’s interest was recognized by M. J. Fortenberry when she made him a party grantee, the contention made that he took only in trust for his wife can not be sustained.

Second and third assignments of error complain because the court overruled their motion for judgment non obstante veredicto. The record discloses that such a motion was filed and notice given, but it nowhere appears that any action was taken by the court on the motion; no ruling thereon was made in any judgment or order entered; the effect of such proceeding is (that the matter was not called to the attention of the court the same as if complaint is made of the overruling of demurrers when no ruling is shown to have been made thereon. No action of the court is pointed out as error for our consideration. If it could be said that the entry of judgment on the verdict was equivalent to an overruling of the motion for judgment notwithstanding the verdict, to which we do not assent, then we think no error is shown, because the motion was to disregard the verdict and was not confined to an immaterial finding of fact. It is only when a directed verdict would have been .proper that such a motion can he sustained. Article 2211, R.C.S. Clearly no directed verdict for defendants would have been proper. We therefore overrule assignments 2 and 3.

The first assignment complains because the 143 acres decreed to plaintiff and defendants equally, share and share alike, was arbitrary and without evidence to support it. We have already seen that the 143 acres referred to is that part reserved and excepted in the deed from M. J. For-tenberry to C. L. and Nancy Brownfield, and on the same day willed to Nancy by her mother, Mrs. Fortenberry. Plaintiff and defendants were Nancy Brownfield’s only children; she having died intestate, her children inherited that tract jointly. The judgment complained of designates the 143 acres by metes and bounds, in which 137 acres are described as being that land purchased by M. J. Fortenberry from Jot Gunter et al., on April 18, 1894, by deed recorded in Vol. 192, p. 190, Deed Records of Denton County, and including 6 acres out of the Fortenberry Survey, adjacent to the 137 acres described, so as to form a parallelogram the longside of which joins the 137 acres, and out of a part of the west side of the Fortenberry Survey. The exception reserved in the' Fortenberry deed called fpr 143 acres out of the south and west sides of the 356 acres described therein. The designation of the 143 acres complained of follows, with some degree of accuracy, the lands reserved by Mrs. For-tenberry from the deed to the Brownfields, as well also that described in Mrs. Forten-berry’s will. The 6 acres cut out of the Fortenberry 160-acre tract could have been made in another shape and yet not conflict with the deed or will, but it does not appear that there was any difference in the value of the 6 acres so designated by the court and the same number of acres out of the west side of the tract if cut in a different shape. It is not contended that if the 6 acres had been in a different shape or located elsewhere that defendants would have benefited by it. Plaintiff held an undivided one-half interest in the 213 acres under a deed from his father, C. L. Brownfield, 'the remaining one-half and the 143 acres were owned jointly in equal parts by all parties to the suit, and the only way in which either party could be affected by the judgment as entered would be, if there was a difference in value of the acreage in the vicinity from which the 6 acres were taken; this was not shown by the evidence and it was not made to appear that any loss was sustained by either party. The reservation made in the Fortenberry deed and the will bequeathing the 143 acres furnishes some evidence of a substantial nature in support of the judgment designating the tract which was to be partitioned equally. A judgment otherwise correct will not be reversed for an irregularity termed error of the court, not shown to have deprived the complaining party of a substantial right. Courts of Civil Appeals Rule 62a.

We see no good reason in law or equity to reverse the judgment of the trial court upon the complaint made, when it is not even contended that defendants suffered any wrong or were deprived of any right to' which they were entitled, because the court designated the location of the 143 acres as was done. It may, of course, be possible that it could have been shown that the land being located as it was in the'judgment, defendants would have received more in values if it had been otherwise located, yet all this is purely speculative. Appellate courts are not authorized to reverse and remand an errorless judgment solely to enable a party to more fully develop his case upon another trial. Robertson v. Connecticut Gen. Life Ins. Co., Tex.Civ.App., 140 S.W.2d 936; Texas Employers Ins. Ass’n v. Kennedy, Tex.Com.App., 143 S.W.2d 583; National Life Co. v. McKelvey, 131 Tex. 81, 113 S.W.2d 160; Harris v. Shafer, 86 Tex. 314, 23 S.W. 979, 24 S.W. 263; 3 Tex.Jur., § 804, p. 1143.

Finding no error in the record requiring a reversal of the judgment entered, it becomes our duty to affirm it. It is so ordered.


author: PRICE, Chief Justice.

text:
    PAYNE ADVERTISING AGENCY, Inc., v. WILHELM.
    No. 3997.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1940.
    Rehearing Denied Dec. 5, 1940.
    Birkhead, Beckmann, Stanard & Vance, of San Antonio (W. Glendon Roberts, of San Antonio, of counsel), for appellant.
    Hugh L. Steger and Seeligson, Cox & Patterson, all of San Antonio, for appellee.
   PRICE, Chief Justice.

This is an appeal from the judgment of one of the District Courts exercising jurisdiction in Bexar County. Payne Advertising Agency, Inc., brought suit against the defendant, Stephen R. Wilhelm, for damages in the alleged sum of $4,594.59 for defendant’s breach of his employment contract and on a sworn account in the sum of $275.92. The case was tried to the court without a jury, and though judgment was rendered in favor of plaintiff on the sworn account, the judgment denied plaintiff a recovery on account of its alleged cause of action for damages for defendant’s breach of his employment contract. No complaint is made of the judgment on the sworn account. Plaintiff duly perfected this appeal and the case is here for review.

The parties throughout have designated themselves in accordance with their designation in the trial court,' and they will be so designated in this opinion.

On motion of the plaintiff the court made findings of fact and conclusions of law. While same are somewhat lengthy, it is deemed appropriate to set .them out in full.

“Findings of Fact.
“I. Since sometime prior to September, 1936, to date of this trial, plaintiff was engaged in the general advertising agency business in the City of San Antonio, Texas, in which plaintiff rendered various advertising services to its customers, through the various means of advertising, such as radio programs, newspapers, magazines, billboards, and placards. Plaintiff’s compensation for rendering such advertising services was in the nature of commissions based on a certain percentage of the sums spent by its customers for the advertising handled by plaintiff. Plaintiff had no understanding or contract with said radio customers as to the continuation or duration of their business, or as to the amount thereof, which amount fluctuated.
“II. Prior to September, 1936, plaintiff did comparatively little radio advertising business, but in that month plaintiff established a Radio Department in his business and employed defendant, Stephen R. Wilhelm, by written contract of employment, as manager of said Radio Department. Defendant continued in the employment of plaintiff as manager of said Radio Department under this contract of September, 1936, until said contract was rescinded by the parties on July 2, 1937, at which time a new written contract of employment, dated July 2, 1937, was entered into between plaintiff and defendant. This new contract of July 2, 1937, reads as follows :
“ ‘Memorandum of Agreement.
“ ‘This agreement made this 2nd day of July, 1937, by and between Payne Advertising Agency, Inc., a corporation operating under the laws of the State of Texas, acting herein by and through its president, duly authorized, hereinafter styled the party of the first part, and Steve Wilhelm, of the City of San Antonio, Bexar County, Texas, hereinafter styled the party of the second part, Witriesseth:
“ ‘1. The party of the first part agrees to employ the party of the second part to conduct and manage the Radio Department of the Payne Advertising Agency for and during the ensuing two years from the date of this agreement.
“ ‘2. The party of the second part agrees to devote his time and best efforts exclusively to the development and up-building of said Radio Department of the Payne Advertising Agency during the period of this agreement.
“ ‘3. The party of the first part agrees . to pay the party of the second part a sum equal to sixty-five per cent (65%) of the net commissions and/or earnings of said Radio Department, said net commissions and/or earnings being arrived at by deducting the monthly operating costs and expenses of the Radio Department from the sum of the gross commissions and/or earnings of same.
“ ‘4. In the event that the total gross earnings of the Radio Department shall exceed the sum of twenty thousand ($20,-000) dollars per year, the above paragraph, number 3, shall be null and void, and party of the first part then agrees to pay the party of the second part a sum equal to 50% of the gross commissions and/or earnings of said Radio Department, party of the first part assuming the obligations of all expense connected with the proper operation of said Radio Department.
“ ‘5. In the event that the total gross .earnings of the Radio Department shall exceed the sum of forty thousand ($40,-000) dollars per year, the above paragraphs, numbers three and four, shall be null and void, and party of the first part then agrees to pay the party of the second part a sum equal to 35% of the gross commissions and/or earnings of said Radio Department, party of the first part assuming the obligation of all expense connected with the proper operation of said Radio Department.
“ ‘6. It is understood and agreed that all charges made to clients for any services in connection with the Radio Department, no matter of what nature, shall be authorized by the party of the first part and billed in the regular manner by the agency. In like manner, all collections, payments on account, advances for services and items of similar nature shall be handled through the office of the agency, and the party of the second part hereby expressly agrees to this method 'of handling the financial details of the Department.
“ ‘7. It is hereby agreed that all professional services of party of the second part are a part of the earnings of the Radio Department of the Payne Advertising Agency, with the exception that all talent charges for talent performed by party of the second part are the exclusive property of party of the second part.
“ ‘In Witness Whereof the parties hereto have signed their names this 2nd day of July, 1937.
“ ‘Payne Advertising Agency, Incorporated,
“ ‘By J. S. Payne, President,
“ ‘Party of the First Part
“ ‘Steve Wilhelm,
“ ‘Steve Wilhelm,
“ ‘Party of the Second Part.’
“III. Under the above contract of July 2, 1937, defendant continued in the employment of plaintiff as manager of its Radio Department until October 1, 1937, when defendant terminated his services to plaintiff and left plaintiff’s employment. Plaintiff fully performed its party of said contract in all respects, and did not consent to, or acquiesce in, defendant’s terminating said employment.
“(a) Defendant possessed extraordinary ability and talents as a radio announcer as well as a salesman of radio advertising space and services. Defendant’s duties arid services to plaintiff as manager of said Radio Department required special skill and merit, and consisted of the selling of radio space and radio advertising services to persons or business firms who might be interested therein; and under said contract of July 2, 1937, as well as under said contract of September, 1936, defendant agreed to devote his time and hest efforts exclusively to the development and upbuild-ing of said Radio Department. As a direct result of defendant’s terminating said employment plaintiff lost the value of defendant’s services.
“(b) When defendant entered plaintiff’s employment in September, 1936, he brought to plaintiff’s Radio Department certain customers and from time to time during the following thirteen months while defendant remained in plaintiff’s employment, he brought other customers to said Radio Department, and for said thirteen-month period plaintiff received from the business of the Radio Department an average monthly net profit of $81.63. For the first seven months of that period beginning with the month of September, 1936, and ending March 31, 1937, plaintiff received from the business of its Radio Department an average monthly net profit of $49.83. Beginning with the month of March, 1937, the business of the Radio Department began to increase, and for the succeeding six months, being the six-months period immediately preceding October 1, 1937 (the date on which defendant left plaintiff’s employment), there was a considerable increase in said business over previous months, and for that period plaintiff received from the business of its Radio Department an average monthly net profit of $106.05; and for the last three months of said period, from July 1, 1937 (the day prior to the making of the new contract of July 2, 1937), to October 1, 1937, there were additional increases in business of the Radio Department over previous months and for said last three months plaintiff received from its Radio Department an average monthly net profit of $136.17.
“(c) Plaintiff’s Radio Department and its radio advertising business showed a profit prior to and at the time of the defendant’s termination of said employment on October 1, 1937. In the early part of September, 1937, defendant without the knowledge or consent of plaintiff, established an advertising agency of his own under the name of 'Stephen R. Wilhelm Advertising Agency.’ On October 1, 1937, most of plaintiff’s customers ceased to patronize plaintiff and did not patronize plaintiff thereafter. Immediately, plaintiff’s radio advertising business dropped from a net profit of $121.50 for the month of September, 1937, to a gross profit of $27.41 for the month of October, 1937, and from then on for the remainder of the two-year period of the contract of July 2, 1937, which expired on July 2, 1939, there was a considerable decline in profits which plaintiff received from its radio advertising business, the average monthly gross profits which plaintiff received from such business for the remainder of the contract period (October 1, 1937, to July 2, 1939), being $18.84.
“(d) The net profits mentioned in subdivisions (b) and (c) of this paragraph III, which plaintiff received from its Radio Department prior to October 1, 1937, represent plaintiff’s share of the net commissions or net earnings of said Radio Department after deducting from said net commissions or net earnings defendant’s 65 per cent thereof as provided by said contracts of September, 1936, and July 2, 1937.
“(e) I further find as a fact that after Wilhelm left the plaintiff’s employment, plaintiff did not employ any other person to manage the Radio Department of the Payne Advertising Company; that little, if any, effort was made by plaintiff to replace Wilhelm.
“IV. All of the testimony introduced in the trial was from the officers, agents, employees and books of plaintiff, and defendant did not offer any testimony.
“Conclusions of Law.
“The elements of damages claimed by plaintiff, that is, loss of anticipated profits, cannot be recovered because they are dependent upon uncertain and changing conditions and the chances of business, and there is no evidence from which they may be intelligently estimated, and the loss of the defendant’s services was too uncertain, speculative, contingent and remote to justify a finding as to the amount of such damages, or to form the basis of the judgment that there would have been any profits at all.”

There is no question made as to the pleadings, and it is deemed unnecessary to summarize same.

Under the record as made here we have an unlawful breach of a contract of employment. A duty is indisputably shown and the breach thereof.

The appeal centers around the third element of the cause of action. Without a showing of damage a cause of action is not proven. Damage here is the ultimate issue. The elements of damage for which plaintiff sought recovery were lost profits and loss of the value of the services.of defendant. After all, the two elements of damage are in reality about the same. The value of the services of defendant to plaintiff should represent the profits accruing to plaintiff from such services. No substantial conflict appears in the testimony. Defendant offered no testimony. The question is, then, did the evidence present an issuable question of fact as to whether there was -a loss of profits by plaintiff as a result of the breach of the contract? If an issue was raised by the testimony as to whether or not there was a loss of profits, then the decision of the trial court is final thereon; if it fails to be sufficient to raise such issue, the judgment of the trial court is likewise correct. In the event that the probative effect of the testimony was such that it established a loss of profits with such certainty that the minds of reasonable men could not differ relative thereto, there is reversible error shown in the case.

The evidence tends to show, and the trial court findings affirm, that defendant possessed extraordinary ability and talents as a radio announcer, as well as a salesman of radio advertising and services. Further, that from the commencement of defendant’s services in September, 1936, under another contract, to their close under the contract in question here, profits had accrued to plaintiff from the Radio Department of its business. The amount of these monthly profits is shown by the evidence and found by the trial court. For the entire thirteen months of defendant’s services to plaintiff its net profits averaged $81.63 per month. For the six months next preceding October 1, 1937, plaintiff’s profits averaged $106.05 per month; for the period from July 2, 1937, to October, 1937, plaintiff’s average monthly net profit was $135.17. This was the period of service under the contract ■ directly involved herein. After defendant quit the employment, the average monthly gross profit from the Radio Department for the remainder of the two years the contract by its terms was to be in force, was $18.84 per month.

There is wanting from the brief of appellant any reference to the statement of facts showing that the realization of the net profits during defendant’s services were due solely to his efforts; there is wanting in evidence here efforts made in the transaction of business after defendant quit the service.

It cannot be gainsaid that the minds of reasonable men may differ on the probative effect of undisputed testimony; likewise as to established facts not comprehending the ultimate issue. Even if it be conceded that it might be inferred from the evidence and facts found that plaintiff lost profits as a natural or contemplated consequence of the facts found, the question posed in this appeal is not answered. This might be true, and a different inference be likewise supported from the same facts.

In substance and effect the trial court found that the evidence failed to show that it was more probable that profits were lost, than that they were not lost. Judgment for defendant was a logical and necessary-consequence of such finding.

We do not interpret the conclusions of the trial judge to mean that had a loss of profits been shown by the evidence there could be no recovery thereof, but rather that no loss of profits was shown as a natural consequence of the wrong of defendant.

Profits were realized during the employment, the amount thereof was shown. A substantial decrease occurred after the employment ceased. Defendant had a special and peculiar skill and ability in the line of his employment. Some of plaintiff’s customers ceased to patronize plaintiff and patronized a competing business established by defendant. If a loss of profits is necessarily inferred, it must be from the above-recited facts.

On the other hand, the extent of the contribution of defendant to the profits realized is only established by the fact that such profits were realized during his employment and by the fact that he had ability in the line of his employment.

The manner of the transaction of the business after the breach of contract does not appear. It is here also only by inference that the decrease in the profits may be attributed to defendant’s wrong. This inference, if logically legitimate, finds its basis only in the shrinkage of the profits thereafter.

In discussing the sufficiency of evidence to sustain an award of damages for loss of .profits in the case of Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099, Judge Sharp says: “In a case of this kind the real difficulty lies not so much in the statement of the rules as it does in the application of the correct rule.”

In the course of the opinion in the case last above referred to, it is stated: “It is impossible to announce with exact certainty any rule measuring the profits the loss for which recovery may be had. The courts draw a distinction between uncertainty merely as to the amount and uncertainty as to the fact of legal damages. Cases may be cited which hold that uncertainty as to the fact of legal damages is fatal to recovery, but uncertainty as to the amount will not defeat recovery. A party who breaks his contract cannot escape liability because it is impossible to state or prove a perfect measure of damages.”

Numerous authorities are cited in support of the proposition announced. On the facts of the case it was held that an issue of fact was raised as to whether there had been a loss of profit. In other words, a question of fact was presented, and a judgment was held to be sustained by the evidence for lost profits.

This is true of many of the other cases cited by appellant in support of its assignments. In almost every instance the question is discussed from the standpoint of the sufficiency of the evidence to sustain a finding of damage as a result of lost profits. In effect most of the cases are authority that the evidence therein was sufficient to make the loss of profits an issue, and finding of lost profits was sustained.

In the instant case we have the situation presented as to whether a finding is sustained that the evidence fails to show a loss of profits. Here we have no misapprehension by the trial court of the law applicable. The holding is not that in all cases lost profits are not recoverable, but the evidence is insufficient to show such loss.

The only facts vital in the disposition of this case as to which, under the evidence, there could be any dispute were as to whether profits were lost as a natural consequence of the breach of the contract, and, if so, the amount thereof. This being true, many of the findings of the trial court, such as to the making of profits while the contract was being observed and the loss following the'breach, are evidentiary in their nature and not ultimate. The terms of the contract are clear and the breach thereof is indisputable.

Could we say, if the trial had been to a jury, the court should have submitted only one question, and that, in substance, What sum would reasonably compensate plaintiff for the loss of profits which resulted to plaintiff as a natural and probable result of defendant’s breach of contract? Such a submission would assume that profits were lost. Unless, under such a jury submission, the court might have properly assumed, as an established fact, that profits were lost, the submission would be clearly incorrect— erroneous because it assumed an issuable fact that, was for the jury.

We believe under the evidence here there was an issue as to whether or not future profits were lost. This being so, the finding of the trial court is final on the question.

We cannot in this case substitute the findings of this court for those of the trial court.

The judgment is affirmed.