author: SLATTON, Commissioner.

text:
    ROSS et al. v. TIDE WATER OIL CO. et al.
    No. 1846—7591.
    Commission of Appeals of Texas, Section B.
    Jan. 1, 1941.
    V. M. Johnston and Clay Cotten, both of Palestine, Geppert, Geppert, & Victery, of Teague, and C. S. Bradley and Bradley & Bradley, all of Groesbeck, for plaintiffs in error.
    Vinson, Elkins, Weems & Francis, of Houston, Thompson, Knight, Baker, Harris & Wright, of Dallas, A. M. Barton, and George Burkitt, both of Palestine, E. E. Sanders, and James & Conner, all of Fort Worth, and Dwight L. Simmons, and J. Hart Willis, both of Dallas, for defendants in error.
    J. Roy Creighton, of Mineral Wells, and Lyndsay D. Hawkins, of Breckenridge, amici curiae.
   SLATTON, Commissioner.

Falvie L. Ross brought this suit in the form of trespass to try title to recover an undivided interest in an 80-acre tract of land and for the cancellation of three mineral leases and deeds. Falvie L. Ross died during the pendency of the suit and the same was prosecuted by .Charlie Ross, through next friend Porter Cooper, and L. C. Jefferson individually and as executor of the estate of Falvie L. Ross, deceased. It was alleged that on the 20th day of July, 1926, plaintiffs in error were the owners in fee simple of an undivided interest in and to the 80-acre tract of land.

That Falvie L. Ross died May 27, 1936; that she and Charlie Ross had been husband and wife for a period of approximately twelve years prior to her death.

That Charlie Ross became insane about ten years preceding suit and has been continuously insane since said date.

That Charlie Ross and wife, Falvie L. Ross, deceased, established and designated the land sued for as their homestead about 1928 and that the same had never been abandoned.

That on or about January 16, 1933, Fal-vie L. Ross, joined by her husband, executed and delivered a purported oil and gas lease in favor of John H. Reagan covering said land; that said lease was assigned to P. N. Wiggins, Jr.; that thereafter by mesne conveyances the legal title to said leasehold mineral estate became invested in defendants Tide Water Oil Company and Seaboard Oil Corporation.

That on September 5, 1933, Falvie L. Ross, joined by her husband, executed a purported ratification of said lease to P. N. Wiggins, Jr., including therein an additional 1.83 acres of land.

That on June 18, 1933, Falvie L. Ross, joined by her husband, executed and delivered to Wildman Petroleum Corporation a purported mineral deed and that this mineral estate was by mesne conveyances assigned to the aforesaid oil companies.

' That at the time of the execution of the purported ratification lease and the purported mineral deed, Charlie Ross was insane and was insane at all material times mentioned in plaintiffs in error’s pleadings, and that for such reason said mineral leases and deeds should he cancelled and held for naught.

That P. N. Wiggins, Jr., at the time of securing said assignments, was acting for and on behalf of Tide Water Oil Company and Seaboard Oil Corporation.

The defendants in error answered by general denial, plea of not guilty and by allegations, that they were innocent purchasers for value without notice of fraud or inadequacy of price and consideration.

The parties stipulated that the 80 acres involved in suit was originally the property of the mother and father of Falvie L. Ross; that the mother died intestate in 1895, leaving as her legal heirs her husband and several children; that Falvie L. Ross acquired an undivided interest in said land from her mother, subject to the life estate and homestead rights of her father. It was further stipulated that no order of court was obtained authorizing Falvie L. Ross to execute the mineral leases and deeds without the joinder of her husband.

A jury trial resulted in findings that Charlie Ross- was insane at the time he executed the mineral leases and deeds and that Falvie and Charlie Ross acquired a homestead right in the 80-acre tract of land in 1928 which was never abandoned.

Judgment was entered cancelling the mineral leases and deeds and awarding plaintiffs in error the title and possession of the undivided interest in the land.

The aggrieved parties appealed to the Court of Civil Appeals. The judgment appealed from was by the Galveston Court of Civil Appeals reversed and rendered in favor of Tide Water Oil Company et al. 123 S.W.2d 479. This court granted a writ of error.

It is unnecessary for us to state the various contentions of the parties to this appeal. It appears that the land in controversy was the separate estate of Falvie L. Ross. For the purpose of this decision it may be assumed that the land in suit was the homestead of Falvie L. Ross and her husband and was never abandoned by them. The fact that the homestead right of Falvie L. Ross and her husband, Charlie Ross, attached to the separate estate of Falvie L. Ross, did not destroy the power of Falvie L. Ross to convey her separate estate without the joinder of her husband, he being insane. It has been the rule in this state, beginning with Wright v. Hays’ Adm’r, 10 Tex. 130, that joinder by the husband is unnecessary in a conveyance by the wife where the husband has permanently abandoned the wife, or where the husband is insane. In the Wright case it is said: “The general rule at common law now is, that, where a husband absolutely deserts his wife, or leaves the State without any intention of returning, or becomes the subject of a foreign State, or is civiliter mortuus, his wife is regarded as a feme sole, and may hold property by deed, make contracts, and sue and be sued upon them.”

In Clements v. Ewing, 71 Tex. 370, 9 S.W. 312, 313, Mr. Chief Justice Stayton, speaking for the court, said: “Under such circumstances (permanent abandonment), the'wife was empowered to manage and dispose of her separate estate as a feme sole. It is said that it was not proved that any necessity for the sale of the land existed at the time Mrs. Hicks made the conveyance. To authorize Mrs. Hicks to sell her separate estate, when abandoned by her husband, without Being joined by him, it was not necessary that a necessity for such sale should exist. The rule invoked has application only when the abandoned wife sells community property, and has its existence for the protection of the delinquent husband.”

In the case of Clark v. Wicker, 30 S.W. 1114, 1117, the Dallas Court of Civil Appeals held: “We agree with the learned judge below upon the conclusion reached that a married woman may legally convey her separate real estate, without being joined in the deed by her husband, where the husband has become incurably insane. Upon this ground, under the facts of this case, Mrs. Clark’s deed, acting without her husband, was valid, and conveyed title to the property in question.”

To the same effect is the case of Shields v. Aultman, Miller & Co., 20 Tex.Civ.App. 345, 50 S.W. 219, writ of error refused.

The rule is the same with reference to homestead which is the separate property of the wife. In the case of Mabry v. Citizens’ Lumber Co., 47 Tex.Civ.App. 443, 105 S.W. 1156, 1157, writ of error refused, the court said: “It is well settled, we think, that the wife alone may convey her homestead situated upon her separate property -in cases where the husband has abandoned her. See Hector v. Knox, 63 Tex. 613; Lacy v. Rollins, 74 Tex. 566, 12 S.W. 314; Speer on Married Women, §§ 31, 105. In such cases the wife is treated by the decisions as having a power to convey her property equal to that of a feme sole, and it hence seems clear that section 50, art. 16, of our Constitution XVernon’s Ann.St.] does not inhibit the conveyance or lien under consideration.”

In the case of Harris v. Hamilton, Tex.Com.App., 221 S.W. 273, 275, it is said: “The power to convey necessarily includes the power to mortgage, in the absence of some constitutional or statutory inhibition. It has been repeatedly held in this state that a married woman, after being permanently abandoned by her husband, can convey her separate property, whether her homestead or not, without the joinder of her husband. Hector v. Knox, 63 Tex. 613; Lacy v. Rollins, 74 Tex. 566, 12 S.W. 314; Mabry v. Lumber Co., 47 Tex.Civ.App. 443, 105 S.W. 1156. The basis of these decisions is that, while the married relation has not been legally severed, a status is created in the wife, in so far as her property rights aré concerned, identical with that of a feme sole, giving her full power over her property the same as if the marital relation did not exist. We therefore conclude that both the notes constituted a valid lien upon all of the property embraced within the deed of May 15, 1911.”

It is contended by plaintiffs in error that a married woman living with her insane husband cannot convey title to her separate real estate, the homestead of herself and husband, without substantial compliance with the provisions of Articles 4617 and 4618, Vernon’s Annotated Civil Statutes.

The statutes governing the conveyance of the wife’s separate lands or the homestead, whether the separate property of-the husband or wife or the community property of both, as they existed in 1933, are as follows:

Article 1299 of the Revised Civil Statutes is as follows: “The husband and wife shall join in the conveyance of real estate, the sepárate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband before some officer authorized by law to take acknowledgments to deeds for the purpose of being recorded, and certified to in the mode pointed out in articles 6605 and 6608.”

Article 4617 is as follows: “If the husband be insane or shall have permanently abandoned his wife, or shall refuse to join in such encumbrance, conveyance or transfer of such property, the wife may apply to the district court of the county of her. residence, and the court, in term time or vacation, upon satisfactory proof that such encumbrance, conveyance or transfer would be advantageous to the interests of the wife, shall make an order granting her permission to make such encumbrance, conveyance or transfer without the joinder of her husband, and she may then encumber, convey or transfer said property without such joinder. * * * ” (This article was amended by Acts of 1937, 45th Leg., p. 1343, Ch. 499, not material in this proceeding.)

Article 4618 provides as follows: “The homestead, whether the separate property of the husband or wife, or the community property of both, shall not be disposed of except by the joint conveyance of both the husband and the wife, except where the husband is insane or has permanently abandoned the wife, in which instances the wife may sell and make -title to any such homestead, if her separate property, in the manner herein provided for conveying or making title to her other separate property.”

The last two statutes quoted seem to be the result of an amendment in 1913 and an amendment in 1917. It is to be noted that the amendments authorized such an order where the husband is insane or has permanently abandoned the wife. The emergency clause of the 1917 amendment is as follows: “The fact that there is now no statutory enactment granting to married women the right to manage and dispose of their separate property in cases of abandonment by the husband, and cases in which he is insane, and that great confusion now prevails in the minds of the public as to their property rights in such instances, is unjust to a large number of citizens of this State, creates an emergency,” etc. Acts 1917, p. 436.

In the case of Moss v. Ingram, 239 S.W. 1029, 1033, writ of error refused, Mr. Justice Higgins, in passing upon a similar contention as that made here, used the following language: “In this connection plaintiff in error contends that the rule of decision giving to an abandoned wife the power to convey without the joinder of her husband has been abrogated by the act of the Thirty-Third Legislature, p. 61, amending article 4621, R.S.1911 (Vernon’s Sayles Annotated Civil Statutes, 1914, Article 4621). By this act it was provided that if the husband refused to join with the wife in the incumbrance or conveyance of the wife’s separate real estate, she might apply to and obtain permission from the district court to so incumber or convey her said estate without the joinder of her husband. Plaintiff in error insists that this act provides the exclusive and only way in which the wife may incumber or convey her separate real estate without the joinder of her husband, and that the permission of the district court so to do is an indispensable prerequisite. But we do not so construe the act. In. our opinion it was cumulative of her rights theretofore recognized, and not restrictive thereof. Article 4621 was again amended in 1917 (Vernon’s Ann.Civ.St. Supp.1918, Art. 4621). The last amendment deals with the right of a permanently abandoned wife to incumber and convey her separate estate, but that amendment was subsequent to the transaction here involved, and it is unnecessary to consider what, if any, effect it had upon the right theretofore recognized of an abandoned wife to convey her separate estate.”

In the case of Newman v. Gill, Jones, Tyler & Potter, Tex.Civ.App., 243 S.W. 697, a contract of conveyance by a married woman without the joinder of her husband, from whom she was separated was upheld. Likewise, the Dallas Court of Civil Appeals, in the case of Royall v. Webster, 279 S.W. 895, upheld the power of an abandoned wife to convey her separate property without the husband joining her in such conveyance. In the case of Green v. Windham, 115 Tex. 162, 278 S.W. 1101, this court held that the surviving husband or wife, the other spouse having been legally adjudged insane, by qualifying as administrator of the community estate under the provisions of law, can sell and convey the community homestead. Referring to the wording of the statute, which it is contended provides for the exclusive method of conveyance, it is to be noted that the statute provides that thé wife may apply to the district court and the wife may sell and make title to any such homestead. In 39 Texas Jurisprudence, on page 37, under Section 15, it is stated: “Thus, where no right or benefit depends upon its imperative use, the word 'shall’ is held to be merely directory and as having been used in the sense of ‘may’. On the other hand, ‘may’ ordinarily connotes discretion or permission; and it will not be treated as a word of command unless there is something in the context or subject matter of the act to indicate that it was used in that sense.”

In the case of San Angelo National Bank v. J. H. Fitzpatrick, 88 Tex. 213, 30 S.W. 1053, 1054, this court said: “We are aware that the word ‘may’ is sometimes construed as if it were ‘shall’; but it is not to be denied that in its primary and ordinary signification it is a word of permission, and not a word of command. Before treating it as a word of command, there should be something either in the subject matter or the context to indicate an intention that it was employed in that sense. If it had been the purpose to give the legislature no discretion in the matter, it seems to us a term would have been employed, the import of which was not doubtful, and it would have declared unmistakably that it was the duty of the legislature to provide for the appointment of a special judge.”

The power of the wife, under circumstances such as presented in this case, to convey her separate lands or homestead without the joinder of her husband, he being insane, being almost universally recognized by the courts prior to the statutory enactments in question and the legislature having used permissive words and not words of command, we must construe the statutory enactments to be cumulative of her rights theretofore recognized and not restrictive thereof.

Plaintiffs in error rely upon the cases of Cromer v. Schafer, 250 S.W. 444, by the San Antonio Court of Civil Appeals, and Falls v. Key et al., 278 S.W. 893, by the Fort Worth Court of Civil Appeals. In the first case mentioned no writ of error was prosecuted to this court. The application for writ of error in the Falls-case was dismissed for want of jurisdiction by this court, evidently upon the theory that the judgment rendered in the case was correct. Regardless of the theory upon which the court acted, it cannot be said that this court in anywise approved the reasoning contained in the opinion with reference to the proposition of law now under consideration. In order to settle the conflicts now existing between the Courts of Civil Appeals on the question of law presented in this case, it becomes necessary to disapprove the holding contained in each of the above cases on which the plaintiffs in error rely.

Community administration laws well illustrate permissive legislation for the management and disposition of property by one spouse where the other has died or become insane. That the community administration laws are not exclusive is demonstrated by the case of Reynolds Mortgage Co. v. Gambill, 115 Tex. 273, 280 S.W. 531. In that case it is said:

“ ‘Was the deed of J. M. Gambill and his insane wife sufficient to convey their community homestead?’ We answer the question certified, ‘Yes.’
“There has been much uncertainty in the minds of the Courts of Civil Appeals, and no doubt the profession generally, as to the rule of law with respect to the interesting question here certified, due, perhaps, to the conflicting holdings by the different Courts of Civil Appeals; one of such courts repudiating its former decision upon the same question, and denying its soundness. See Priddy v. Tabor (Tex.Civ.App.) 189 S.W. 111. But whatever uncertainty has heretofore existed, we think the question is entirely settled by the decision of the Supreme Court in Green v. Windham, 115 Tex. 162, 278 S.W. 1101 (delivered January 6, 1926), the opinion in which was handed down the day prior to the submission of this cause before us. In that opinion Mr. Justice Pierson says:
“ ‘We would feel disposed to enter into a more extended discussion of the principles of law involved but for the fact that this court has twice expressed its approval of the conclusion here reached, in the cases of Shields v. Aultman, Miller & Co., 20 Tex.Civ.App. 345, 50 S.W. 219, in 1899, and Gilley v. Troop, 146 S.W. 954, in 1912. In each of these cases, by the Court of Civil Appeals, the sole issue was the power of the surviving sane spouse to convey the homestead, i. e., the'validity of the husband’s deed, the wife being insane. * * *
“ ‘In the case of Priddy v. Tabor, 189 S.W. 111, the honorable Court of Civil Appeals held differently. A writ of error was granted, but the case was dismissed from the docket of this court by agreement of the parties. But for the conflict with that case, .probably the \mt of error herein would not have been granted.’
“So that this decision expressly approving that particular ground of decision in the Shields-Aultman and Gilley-Troop cases removes all doubt as to whether or not the refusal of writs in those cases was predicated upon the theory of abandonment which appeared in both cases. Nothing need be, or can be, said further upon this particular phase of the case.
“There, is, however, a question raised suggesting that, even though the constitutional prohibition against conveyance by the husband without the wife’s joinder does not apply, still the homestead being admittedly the community property, and the conveyance having been by the husband individually, and not as administrator, the question certified should yet be answered in the negative. There is no merit in this suggestion.' In the Green v. Windham case, supra, the agreed statement of facts disclosed that the husband, for himself, and as administrator of the community estate of himself and his insane wife, executed the conveyance in question. The Supreme Court gave scant notice to this feature of the case, however, dismissing it with this observation:
“ ‘The question of the existence or nonexistence of debts against the community estate is of no importance in the case.’
“Of course, if this question was of no importance in the case, it was because the husband’s right to convey was not dependent upon an administration.”

To the same effect, see Pierce v. Gibson, 108 Tex. 62, 184 S.W. 502, 1 A.L.R. 1675; Sanger Bros. v. Heirs of Moody, 60 Tex. 96, 98.

It follows from what we have said that the judgment of the Court of Civil Appeals which reversed and rendered the judgment in favor of defendants in error must be affirmed.

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: GERMAN, Commissioner.

license: Public Domain

text:
    RIDDLE v. LANIER.
    No. 2326—7544.
    Commission of Appeals of Texas, Section A.
    Jan. 1, 1941.
    John Atchison and Cecil Murphy, both of Gainesville, for plaintiff in error.
    W. S. Moore, of Gainesville, for defendant in error.
   GERMAN, Commissioner.

C. C. Lanier as plaintiff sued A. J. Riddle as defendant in the District Court of Cooke County for damages growing out of breach of a contract to drill a test oil well. The parties will be designated as in the trial court.

It appears that prior to May 31, 1935, plaintiff assembled a block of oil leases on some 3,000 acres of land in Cooke County, the block being made up of numerous leases by various landowners. None of these leases are in the record, and we are left entirely without information as to the rights and obligations of plaintiff under same. However, there is sufficient parol evidence to indicate that they were the usual commercial leases, providing for the usual royalties, and requiring the.beginning of operations within a specified time, or payment of annual rentals in lieu of operations.

It further appears that on May 31, 1935, plaintiff entered into some kind of a general contract with the various landowners, wherein it was contracted that the drilling of one well upon what was known as the Thetford 60 acres was to be taken as the fulfillment of the obligation to begin operations under the various leases. Unfortunately we do not have full information as to the terms of this contract. From the parol testimony we are led to the conclusion that this contract, together with the original leases by the various landowners, was placed in a bank to be delivered, either at the time of the commencement of the well on the Thet-ford tra.ct, or when the drilling of that well was completed.

Plaintiff by his testimony shows that he was unable to drill the test well on the Thetford tract, and further shows that his principal business was to assemble a block of leases, and then assign a portion of the leases to some one else as consideration for the drilling of a test well. On November 13, 1935, plaintiff entered into a contract with defendant wherein defendant assumed the obligation of drilling the test well, and wherein plaintiff agreed to assign to defendant as a consideration therefor leases upon some 1,030 acres of said lands. Said contract, among other things, recites the following : “Whereas second party (plaintiff) did enter into a written contract on the 31st day of May, 1935, with J. D. Leeper and other land owners in Cooke County, Texas, wherein certain rights, interests, obligations and performances were assumed by C. C. Lanier, the said contract being hereby incorporated by direct reference and the same made a part hereof for every purpose.” The contract referred to was not put in evidence.

The contract further recited that the first party (defendant) desired to perform and assume all of the obligations in the said contract executed by and between C. C. Lanier and J. D. Leeper and other landowners, and second party (plaintiff) desired to assign the rights, title and interest in and to the said contract above referred to and incorporated in the contract. The various leases to be .assigned were set out in the contract. It was further provided that all the assignments to be executed by plaintiff were to be executed to V: V. Waite, for the benefit of defendant, and that same was to be the full consideration to be paid defendant for the execution and performance of the contract. The principal obligation assumed by defendant is as follows: “First party agrees to drill a test well on the 60 acre tract hereinafter described and to continue drilling of said well with due diligence until the same shall have reached the depth of 3500 feet, unless oil or gas in commercial quantities is found at a lesser depth, or unless the El-lenburger Limestone or Granite, or some other impenetrable substance is encountered, making further drilling operations impracticable.”

Shortly after the making of said contract of November 13, 1935, defendant began drilling a well on the Thetford tract. He proceeded with the drilling until a depth of 1,830 feet was reached, without encountering Ellenburger Limestone or Granite, or some other impenetrable substance. The work was abandoned at that depth, the machinery was removed, and the_hole plugged. Apparently the only reason why defendant refused to drill the well deeper was the belief on his part that no oil would be discovered if the contract was fully performed.

Plaintiff instituted this suit, claiming that he had been damaged to the extent of the cost of the drilling the test well, and further had been damaged in depreciation in the; value of leases on the remaining 1,370 acres of land. He has waived all. damages as to the Thetford 60 acres, although he had retained a one-half interest in the leases covering that tract.

In the trial court the jury found that the cost of completing the well which had been abandoned on the Thetford tract would have been $22,000. It was further found that the cost of drilling a well from the surface to the contracted depth would have been $15,000. The jury found that the reasonable cash market value of plaintiff’s leases on the remaining 1,370 acres before the well was abandoned was $6 per acre, or $8,220, while the reasonable cash market value of same after the well was abandoned was $1 per acre, or $1,370. There was a further finding that if the well had been completed to the depth of 3,500 feet, or to the Ellen-burger Lime or Granite or some other impenetrable substance, plaintiff’s remaining leases would have been worthless. It was also found that the Ellenburger Lime would not have been encountered if the well had been drilled to a depth of 3,500 feet.

The trial court denied plaintiff’s claim for damages based o*i cost of drilling the well, but entered judgment in his favor for $4,-558.75. This amount represented decrease in value of leases before and after .abandonment of the well, less the value of certain leases which the court found had been sold prior to the abandonment of the well. This judgment was affirmed by the Court of Civil Appeals. 121 S.W.2d 655.

Both sides appealed, and both have come to this court by writ of error.

Defendant contends that under the facts of this record, plaintiff was not entitled to recover the decrease in value of his leases. His writ of error was granted, and plaintiff’s writ was granted because’ of the granting of defendant’s. Plaintiff urgently contends that he was entitled to recover the cost of drilling the test well, and in addition was entitled to special damages, said special damages being the difference between the value of his remaining leases before the abandonment of the well and their value after abandonment of the well, with no deductions for sales of leases made before the abandonment.

We will first dispose of plaintiff’s proposition that he was entitled to recover the cost of drilling' the test well, to wit, $15,000. What is known as the “cost” theory of damages for failure to drill an oil well of a prospective or exploratory character has been vigorously debated in many cases. This is well illustrated by the recent case of Fite v. Miller, 192 La. 229, 187 So. 650, and the annotations thereunder in 122 A.L.R. 458. Practically every case touching the various phases of the question is there mentioned.. In a few of the earlier cases the cost theory was adopted in certain classes of cases. This was particularly true in Oklahoma. It is fitting, however, to say that the federal courts in a case arising in Oklahoma have recently refused to follow that rule. Hoffer Oil Corp. v. Carpenter, 10 Cir., 34 F.2d 589, certiorari denied 280 U.S. 608, 50 S.Ct. 158, 74 L.Ed. 651.

Without an extended discussion of the subject, or of cases, we may say that it is now settled by the great preponderance • of decisions, and especially by our own, that the cost of drilling a test or exploratory well for oil has been entirely repudiated, except perhaps in cases where the cost has. been paid in advance for the drilling of a well, which, when and if completed, will belong entirely to the owner of the land or leases, and in which the driller will have no interest. Guardian Trust Co. v. Brothers, Tex.Civ.App., 59 S.W.2d 343, writ refused; Fain-McGaha Oil Corp. v. Owens, 132 Tex. 109, 121 S.W.2d 982; Golston v. Bartlett, Tex.Civ.App., 112 S.W.2d 1077; Atlantic Oil Producing Co. v. Masterson, 5 Cir., 30 F.2d 481, and cases supra.

In the case of Guardian Trust Company v. Brothers, supra, it was clearly recognized that the general rule of measuring damages in case of breach of contract applied to a contract for drilling an oil well. In discussing the question of damages in that case the court stated the general rule in this language [59 S.W.2d 345]: “In determining this question it is necessary to keep in mind the universally recognized rule that, for breach of contract the injured party is entitled to have the value to him of its performance, and, in awarding compensatory damages, he should be put as near as possible in the same position as that in which he would have been put by performance. The rule is stated in 17 C.J. § 168, pages 848, 849, in this language: 'But a plaintiff is not to be put in a better position by a recovery of damages for the breach of a contract than he would have been in if there had been performance.’ ”

There is absolutely no reason why this rule of “value of performance” should not be applied in the present case. Nor is there, to our minds, any logical reason why it could be said in this particular instance that the cost of drilling a well was the value of performance. No more should the cost rule measure the value of performance 'in this case, where speculative and anticipated profits on sales of leases were the primary benefit contracted for, than in other cases where prospective and anticipated royalties are the primary benefits contracted for. Plaintiff seeks to say, however, that the cost rule should govern here, because, he contends, the cost of drilling the well was paid in advance by assignment of leases. He overlooks the fact, however, which is emphasized in some of the decisions, that he was not paying defendant for the drilling of a well which was to become the property of plaintiff when completed. Plaintiff was not contracting for a well as such. What he was contracting for primarily was benefits to his remaining leases. He has waived damages as to the Thetford 60-acre tract and claims damages solely by reason of the remaining leases covering 1370 acres. We think his pleadings clearly define the measure of his damages and refute his logic concerning cost of drilling the test well. The benefits which he alleges he would have received (that is, value of performance) if the well had been drilled have been explicitly defined.

Paragraph 11 of his petition is as follows : “The plaintiff further alleges that by reason of the wrongful abandonment of the drilling of said well, and the failure and refusal of the defendant to comply with the terms of the contract for the drilling of a well as provided, the plaintiff suffered other and special damages in addition to the reasonable cost of the drilling of said well to completion and in addition to the damages suffered as to his rights in.the 60-acre tract of the Thetford tract on which said well was to be drilled, in that the plaintiff had retained oil and gas leases on some 1,370 acres of land adjoining said Thetford tract and in the same general vicinity, and that owing to the making of said contract to drill said well and the prospect of the same being drilled to its contract depth and owing to the fact that oil and gas either or both would have probably been found in paying quantities, the value of the said oil and gas leases so retained by the plaintiff, had been enhanced in value; that if said well had been completed to its contract depth, and while same was being so completed, plaintiff could have and would have sold his said leases at prices ranging from $10.00 to $25.00 per acre; that at the time said well was wrongfully abandoned, and had the drilling of the same been continued, the reasonable cash market value of said leases was $10.00 to $25.00 per acre, depending on location and distance froto said well; and he alleges that said market value was completely destroyed by the wrongful abandonment of said well by the defendant and his failure and refusal to drill said well, or another well to completion as provided in said contract, and that on this account and by way of special damages, the plaintiff suffered damages in the sum of $9,000.00, in addition to the damages suffered in the reasonable cost of completing the drilling of a well under the provisions of said contract, and for all of which the defendant has become and is liable.”

The fact that plaintiff designated the damages thus claimed as special damages does not change the fact that he thereby definitely set forth what the value.of performance would have been to him.

From this part of the pleading it appears that plaintiff based his claim for damages as regards his leases upon the theory that if the well had been completed, “while same was being completed,” he could and would have sold his leases at prices ranging from $10 to $25 per acre. There is good authority holding that this character of alleged profits is too remote and speculative to form the basis of special damages. Artwein v. Link, 108 Kan. 393, 195 P. 877. However, we do not need to decide this question, because there is no basis in the findings of fact to permit a recovery in this respect. It will be noted that the judgment awarded plaintiff was based on two findings by the jury’. One as to the effect that plaintiffs remaining leases were worth $8,220 before the well was abandoned, and the other that they were worth $1,370 after it was abandoned. It is undisputed, however, that up to the time of abandonment plaintiff would not have sold any of these leases, even if he could. In one instance plaintiff testified as follows: “Q. You didn’t sell any during the time the well was drilled? “A. You didn’t have very much time to sell it. I didn’t want to sell.”

In another instance he testified in this regard as follows: “Q. Mr. Murphy asked you if it wasn’t true that you didn’t sell a foot of the acreage retained by you under your contract with Riddle as a part of the 2300 and odd acre block, and you said'you didn’t sell any of it. . 1 wish you would tell the jury why you didn’t sell any of that acreage. A. My contract had been made with Mr. Riddle to drill the well and. I thought the well would be drilled. It takes time to sell acreage in the first place, and in the second place I didn’t want to drill my acreage until we got to a greater depth.' There was a possibility of getting into deeper sands and I didn’t want to sell my acreage at that depth.”

It is thus clearly shown that plaintiff was taking his “gamble” on complete performance of the contract. The record is wholly without a finding of fact as to what plaintiff’s profits, if any, would have been in the matter of sale of leases if the well had been drilled to the depth of 3,500 feet. It is obvious that if he made any profit at all he would have been required to sell some or all leases before the well reached the depth of 3,500 feet. Under finding of the jury immediately it reached that depth the leases became worthless. The only finding concerns the difference in value of the leases before the abandonment of a well and after the abandonment of the well. This is far from a finding as to the profits plaintiff would have made on sales, if any, during the time the well was being completed. The burden of proof was upon plaintiff to show what the value of full performance would have been to him. He obtained no finding in his favor in this regard. On the contrary, there was a finding by the jury to the effect that if the well had been drilled to the depth of 3,500 feet plaintiff’s leases would have been worthless. In light of the evidence we interpret this finding to mean that no oil would have been discovered if the well had been drilled to completion as contracted. In our opinion, there was ample evidence to sustain such a finding. However, plaintiff made no assignment in the Court of Civil Appeals attacking this finding as being without support in the evidence.

Defendant complains of- lack of necessary parties. We do not think the landowners and royalty holders were necessary parties. The leases have long since been forfeited, and the decision of this case can in no manner affect them. However, we are of the opinion that in event o.f another trial the contract of May 31, 1935, should be produced, or its terms proven more fully than was done in this trial.

. The judgments of the Court of Civil Appeals and of the district court are reversed, and the cause is remanded.

Opinion adopted by the Supreme Court.


author: GRAVES, Judge. BEAUCHAMP, Judge.

text:
    FLIPPIN v. STATE.
    No. 21167.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.
    Rehearing Denied Jan. 8, 1941.
    Tom L. Price and Joe S. Moss, both of Post, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This case has twice heretofore been before this court. It is first reported in 131 Tex.Cr.R. 356, 99 S.W.2d 307, and again in, 134 Tex.Cr.R. 352, 115 S.W.2d 665, and upon this trial appellant was again found guilty and awarded a penalty of two years in the penitentiary.

The facts in this trial were, with a few minor exceptions, practically the same as those set forth in 134 Tex.Cr.R. 352, 115 S.W.2d 665, and we refer to that report as to these facts.

Doubtless on account of the two previous trials of this case in Terry County, where the offense is alleged to have occurred, and -the publicity given the matter in that county, the trial’ court upon his own motion changed the venue of this cause to Lyñn County where this trial was had.

Appellant’s hill of exceptions No. 1 relates to the fact that upon the jury being impaneled and the issue joined, the district attorney, in open court, made the following statement: “I offer in evidence order of the court on change of venue from Terry County to Lynn County,” which order was then admitted under the ruling of the court, but same was not read to the' jury, nor its contents shown to them. It appeared from the indictment that the offense set forth therein occurred in Terry County, and of course the jury had the indictment read to them. In order to show venue in Lynn County,- this, order changing the venue should appear in the record. We are not impressed with, the gravity of the statement made by the district attorney that he was introducing in evidence something that the record required to be herein. We are cited to the Floyd case, Floyd v. State, 117 Tex.Cr.R. 384, 36 S.W.2d 739, as evidencing error in this bill. It is noted that the decrees, judgments and proceedings in the court from which the venue was changed were admitted before the jury and read in that Case, and were made the basis of nine bills of exceptions.- Not so, however, in this case. None of these orders were read nor shown to the jury. To the same effect do we find the further cases furnished’us, the objectionable portion sustained by this court being based on the reading before the jury of the different orders, judgments and decrees that took place in the court of the first forum. There being no such reading of the orders in the present case, this bill is overruled. .

Bill of exceptions No. 2 relates to the testimony of the then Sheriff Smith of Terry County in describing certain auto tire tracks found at the scene of the alleged theft and comparing same with tires found on appellant’s truck. We think the objection thereto went to the weight rather than to the admissibility of the testimony. The sheriff testified that he made a diagram of the tracks at the time same were found at the scene, and that such tracks thus shown were similar to the tires on appellant’s truck. This bill is overruled.

Bill-of exceptions No. 3 complains of an annotation made on a check which was given in payment- for 35 sacks of Sudan grass seed to a man positively identified as appellant' but who gave his name at such time as J. W. Waters. This notation objected to was“3321 Sudan”. This check was endorsed “J. W. Waters, Colo. City.” This annotation was identified. as being in the handwriting of Mr. Ingraham in whose handwriting the balance of the check-was testified to have been made by a witness who unequivocally swore that he knew Ingraham’s handwriting; that he had seen it many times. In our former opinion in this case, 134 Tex.Cr.R. 352, 115 S.W.2d 665, this identical check was held to be admissible, and we here reiterate that statement. It was not necessary that such witness be a handwriting expert; he testified that he knew Ingraham’s handwriting, and such check was in In-graham’s handwriting. See ' Flippin v. State, supra.

Bill of exceptions No. 4 complains of the fact that .in questioning one,-pf the witnesses herein relative to his testimony, the district attorney then asked such witness if he did not- at a former trial hereof give certain testimony which would have been in contradiction to that given in the present trial. While it is true that a former trial of a case should not be refétféd to in the presence of the jury, in an effort at impeachment by a showing of differént testimony being given at a former trial,’ it is sometimes necessary in laying a predicate to make reference to such former trjal. It has even been held that a party may impeach his own witness under a claim, of surprise when the witness gave testimony materially different from that given on a former trial, by showing such former statements. See Floyd v. State, 117 Tex.Cr.R. 384, 36 S.W.2d 739, on page 741, and cases there cited. We also note that the bill does not show that the witness made any answer to the question, and also that the court’s ruling theréon stated; “I have told them not to consider anything about there having been a previous trial as any evidence against this man.” We see no error reflected in this bill.

We have disposed of all bills presented, and perceiving no error herein the-judgment is affirmed.

On Motion for Rehearing.

BEAUCHAMP, Judge.

■ We have given consideration to appellant’s motion for rehearing - and ■ are strengthened in our view that the original opinion properly disposes of the case. The several questions raised were 'considered originally at great length. We find no authorities to sustain the contention in appellant’s motion that the court erred in such conclusion and appellant has cited us to none. We, therefore, consider a further discussion inappropriate.

The motion for rehearing is overruled.


author: LESLIE, Chief Justice.

text:
    NORWOOD v. FARMERS & MERCHANTS NAT. BANK OF ABILENE et al.
    No. 2057, 2058.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 8, 1940.
    Rehearing Denied Dec. 6, 1940.
    Scarborough, Yates & Scarborough, of Abilene, for appellant.
    T. J. McMahon and Hudson Smart, both of Abilene, for appellees.
   LESLIE, Chief Justice.

As stated in the briefs “identical judgments were entered in the district court” in the above cases. They have been briefed together. The parties agreed to the entry of the same judgment in each case below. That was without prejudice to the rights of appeal. As the appeals are presented together, they will be so considered.

Willis Norwood and wife, Maggie M. Norwood, during SO years of married life, accumulated an estate valued at approximately $200,000. May 3, 1939, Willis Nor-wood died, leaving a will disposing of his property. At the time of his death he owed no debts. The appellee bank and T. J. McMahon were named trustees for the handling of the estate. Later McMahon resigned. The bank was also named as independent executor of the estate and as such offered the will for probate. Wiley Norwood, a son of deceased, filed a protest, resisting the probate of the will. Thereupon the bank made application to be appointed temporary administrator of said estate. It was appointed, qualifiedxas such, and took possession of the entire community estate of the deceased and his wife. This was without the consent of the latter as to her share of the property.

The questions presented by this appeal are in substance covered by the twelfth paragraph of the stipulations entered into by the litigants:

“That the following expenses were incurred in the temporary administration, which all parties agree are reasonable, proper and necessary expenses; that it is the contention of the temporary administrator that the entire expenses should be charged to the entire estate and paid one half by the community share of Willis Norwood, deceased, and one half by the community share of Mrs. Maggie' Nor-wood. It is the contention of Mrs. Nor-wood, that the entire expense should be paid by the temporary administrator out of the community share of Willis Nor-wood, deceased, said expenses being as follows: to-wit:
Laughter Funeral Home (Funeral expenses of Willis Norwood) . $ 998.50
T. J. McMahon (Attorney’s fees as temporary adm’r.) .,. 1,000.00
Farmers & Merchants National Bank of Abilene, Texas {Fees for temporary adm’r.) 500.00
$2,498.50”

The thirteenth paragraph of the stipulations is as follows: “It is further stipulated that Item II of the joint will of Willis Norwood and Maggie M. Norwood is as follows, to-wit: We, and each of us, desire and direct that all of the just debts of each of us be paid by the executors hereinafter named as soon after our respective deaths as may be practicable.’ ”

The County Court authorized the administrator to subject the community estate (both shares thereof) to the payment of the above claims. Mrs. Norwood excepted and appealed to the District Court, and the trials there resulted in a judgment, in substance, the same. That is, the effect of the judgment was to require one half of the costs of the matters or items in controversy to be borne by the interest in the estate belonging to Mrs. Norwood. To this she excepted and appeals.

Upon request the trial court filed findings of fact and conclusions of law. They are in substance the same as the agreed statement of facts.

The appeal is predicated upon two propositions of law. The first is that since the funeral expenses were not incurred during marriage and the estate was solvent, the share of Willis Norwood in the estate was primarily liable for such expenses and the share of Mrs. Norwood was only secondarily liable, if liable at all.

The second proposition is in substance that since the temporary administration was merely a pendente lite administration, the administrator had no right to the possession of Mrs. Norwood’s property, “if any at all, beyond the right to insure that true community debts would not be paid wholly from the share of Willis Norwood and therefore the administrator had no right to charge Mrs. Norwood’s interest in the estate with any part of the administrative costs of the temporary administration.”

The appellee (administrator) replies to these contentions with the following counter propositions:

(1) The Farmer.s & Merchants National Bank of Abilene, .as temporary administrator of the estate of Willis Norwood, deceased, was required as such to take charge of the entire community estate of the deceased Willis Norwood, and the surviving spouse, Mrs. Maggie M. Norwood, hence such temporary administration being for the benefit of the entire community estate, the reasonable and necessary expenses incident thereto are properly and necessarily deductible from the whole of the community estate, the balance of said community estate, after the deduction of such reasonable and necessary expenses, being the proper subject of partition between the deceased spouse’s administrator and the survivor.

(2) “Since there was no separate estate of either spouse, the community estate was primarily liable for the funeral expenses of Willis Norwood, deceased, hence the trial court did not err in charging one half thereof to the community share of Mrs. Norwood.”

We are of the opinion that the contest of the probate of the will by Wiley Norwood rendered the appointment of a temporary administrator proper and necessary. Huth v. Huth, Tex.Civ.App., 187 S.W. 523, 525, 528, writ refused. That administration was in all respects lawful. This authority also holds that it is the.right and duty of the temporary administrator under such circumstances to take charge and custody of the entire community estate of the deceased and his wife. In that opinion the court, after discussing the propriety and necessity for the appointment of a temporary administrator in the case of a will contest, also discussed and passed upon the right and duty of such temporary administrator to take possession and preserve, etc., the entire community estate of the deceased and the surviving spouse. The contention was there made that if it be conceded that the County Court had the authority to appoint a temporary administrator of the estate of the deceased wife, with power to take possession of the property belonging to said estate, “still said court had no lawful authority to empower said temporary administrator to take possession of appellant’s one-half undivided interest of the community property belonging to himself and the estate of his deceased. wife * * That such order would be void, constitute an unlawful seizure of his property, and violate sections 9 and 13 of the Bill of Rights of the Constitution of the State of Texas, Vernon’s Ann. St. and the 14th Amendment to the Constitution of the United States.

-In. response to such contention the_court held:

“We do not think this contention tenable. The whole of the property in question was the common property of appellant and the estate of his deceased wife, a one-half undivided interest of which was owned by appellant and the other one-hálf of which belonged to the estate of his deceased wife. Such property consisted of real and personal property, money, notes, choses in action, etc., and is incapable of an equitable partition and division between appellant and the' estate of his deceased wife, without the intervention of a court of competent jurisdiction.
“It is provided by article 3559, Revised Statutes [now Art. 3630], that, until a partition of common property is applied for and made as therein provided, the executor or administrator of the deceased shall have the right, and it shall he his duty, to recover possession of all such common property and hold the same in trust fO'r the benefit of the creditors and others entitled thereto under the provisions of said article'. We think that, in view of what has been- said, there- can be no serious doubt that the county court had the authority to appoint and empower the temporary administrator to take possession of the whole of said common property and to hold the same until a partition is had, as provided for by article 3560, Revised Statutes, hereinbefore set out, or until said will contest is terminated’ and a permanent- administrator is appointed and qualified. Therefore it follows that the order appointing said temporary administrator with such powers was not void, nor was there any attempt to deprive appellant of his property without due process of law, as contended by him.” (Italics ours).

For other authorities to the same effect, see Moke & Bro. v. Brackett, 28 Tex. 443; Hollingsworth v. Davis, 62 Tex. 438; Waterman Lumber & Supply Co. v. Robbins, Tex.Com.App., 206 S.W. 825; Moore v. Wooten, Tex.Com.App., 283 S.W. 153; Pace v. Eoff, Tex.Com.App., 48 S.W.2d 956.

Further, we think the rule is well established that the entire community estate is liable for the necessary and reasonable charges incident to the temporary administration. The three items in the above stipulation are the only ones involved and the parties have agreed that each of them ’was “reasonable, proper and necessary.” As authority for this rule and its application to the facts of this case, we cite Williams v. Howard, 10 Tex.Civ.App. 527, 31 S.W. 835, writ refused; Moore v. Wooten, Tex.Com.App., 280 S.W. 742; Mitchell v. De Witt, 20 Tex. 294; Morris v. Halbert, 36 Tex. 19.

In the Williams case, supra [10 Tex.Civ.App. 527, 31 S.W. 839], where the question of the authority of the administrator of the husband’s estate to manage, control and deal with the entire community property was raised, the court held: “An administrator upon the husband’s estate takes charge of the community property, and it is his duty to care for and preserve it. The expense of doing this is charged to the whole property, and not solely to the husband’s share. Had the administrator, for the preservation of this certificate, paid for its location with money in his hands, the sum so expended would have been-charged to the entire fund, the wife thus being required to bear her share of the-expense; and, in like manner, she must bear her share when the payment is made-with a part of the certificate. It must be-borne- in- mind that this certificate was in the hands of the administrator for administration purposes, and it is not the case-of an ordinary tenant in common making a contract with a third party for the location of the whole in consideration of a part.” (Italics ours)

In the Moore case, supra [280 S.W. 747], the court, in considering the duties and powers of administrators, including.the question of payment, of the costs and expenses of administration and the property from which funds for the payment of such costs and expenses shall be derived, held:

“If any part of this land was the separate estate of the wife, then in that event it would not be charged with any of the community debts or any part of the expenses of the administration of the estate of W. R. WoOten, deceased; but the contrary rule is applicable to the estate of the husband. Whether the undivided one-half interest in the 1,500 acres was a part of his separate estate or a part of the community of himself and wife, it was nevertheless charged, not only with all the debts of the community and all of his separate debts, but as well with all the expenses of administration in this proceeding. Since all of the estate of W. R. Wooten was charged with the community debts as well as the expenses of administration, and this estate, of course, for these purposes included the community interest of the wife, if in fact she had any community interest * * , (Italics ours).

. In the light of these authorities we conclude that there was no error in the trial court’s judgment allowing the respective fees to the attorney and the temporary administrator and charging same to the community estate as a whole.

Wé think the authorities are also clear and to the effect that the item of funeral expenses is a legitimate charge against said community estate and deductible therefrom before partition. Richardson v. McCloskey, Tex.Com.App., 276 S.W. 680; Goldberg v. Zellner, Tex.Com.App., 235 S.W. 870; Hocker v. Piper, Tex.Civ.App., 2 S.W.2d 997. In the Richardson McCloskey opinion the court held in part as follows [276 S.W. 683] :

“The first item provided for by statute in the order of payment of claims against an estate of a decedent is that of funeral expenses and expenses of last sickness. 'The statute (art. 3460), does not undertake to define the term ‘funeral expenses.’ Expenditures for monuments and tombstones are generally held authorized as part of the funeral expenses where the cost of such expenditures is not disproportionate ¡to the value of the deceased’s estate. Indeed, such holding is well nigh universal. .[Citing-many authorities from different jurisdictions.] * * * - . .
“Indeed, the case of Goldberg v. Zellner (Tex.Com.App.) 235 S.W. 870, cited by the Court of Civil Appeals [261 S.W. 801], is itself authority for the holding that the community estate is primarily liable for such expense in the absence of a contract to the contrary.
“At all events and upon sound reasoning, aside from precedent, we are of opinion that a liberal interpretation of our statute and a decent regard for the memory of the dead would warrant and require a holding that funeral expenses would include a tombstone in keeping with the estate of the deceased, and that an expenditure for such purpose should be allowed and charged against the estate."

It follows from what has been said that .the appellant’s propositions are each, overruled. Further, if there be anything in the opinion in Blair v. Stewart, 5 Cir., 49 F.2d 257, implying a different application of the rules of law employed in the disposition of this appeal, then we are of the opinion that that authority cannot be given any effect here in view of the opinions of our Supreme Court above cited, as well as those of other appellate courts of this State. ,

For the reasons assigned, the judgment of the trial court in each of said causes is affirmed.


text:
    DOBB v. PERRY.
    No. 2064.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 15, 1940.

      Clark F. Roberds, of Cisco, for appellant.
    B. F. Russell, of Baird, for appellee.
   LESLIE, Chief Justice.

George A. Perry filed this suit in Callahan County against W. J. Dobbs (doing business as the Dobbs Oil Company), a resident of' Dallas County.' Dobbs filed a plea of privilege and Perry controverted the same, seeking to hold venue in Callahan County under exception 5 of Article 1995, Vernon’s Ann.Civ.St. (written contract performable in a particular county). The plea was overruled.

Perry predicates his suit for alleged damages on failure of Dobbs to drill a test oil well to the Ellenburger formation in Callahan County, the failure to drill which damaged plaintiff.

In substance, the suit grows out of the following facts: W. L. Murrell and W. T. Daniel, looking for a block of acreage upon which to drill a deep test for oil, approached Perry for information concerning such block. He informed them he had it already assembled but it took an Ellenburger test to get it. He showed the acreage to them and introduced them to the owner. They were favorably impressed and informed Perry they had a “party in Dallas” whom they thought it would suit. Soon thereafter they brought the land to the attention of W. J. Dobbs who approved it and entered into a written contract to drill an Ellenburger test on certain lands situated in Callahan County.

The written contract was signed by W. J. Dobbs “party of the first part” and W. L. Murrell and W. T. Daniel “party of the second part” and it did not bear the name of the plaintiff Perry, or specifically refer to him in its contents.

After Dobbs inspected the acreage the written contract was drawn up in Perry’s office in Baird and the original was left with him. Perry, being in the oil business, obtained the required leases on specified forms covering the land. As agreed by all parties, the leases were placed in the First National Bank at Baird to be delivered to Dobbs as soon as he spudded in an oil well on the land. In due time Dobbs began the drilling of such well and thereby obtained delivery of the leases according to understanding. ' In acquiring and delivering the leases it was discussed and understood by Dobbs, Murrell and Daniel, and Perry, that the latter was- to have re-assigned to him a part of the acreage for his services in “getting up the block.” Such was true as to Murrell and Daniel, and in due time after delivery of the leases to Dobbs, he reconveyed a part of the acreage to Perry, as well as other parts to Murrell and Daniel. Of the block of 2,589 acres Dobbs .reconveyed to Perry three separate tracts aggregating 200 acres.

Upon the faith of an Ellenburger test stipulated for in the contract, Perry sold 120 acres of his leased land for $6 per acre, but had to return $720 when Dobbs breached his contract to drill such test. Plaintiff alleges he could have sold the 200 acres at a market value of $6 per acre had Dobbs kept his contract to drill the test “at a location on said land in Callahan County, Texas”.

The damages based on the necessity of returning the $720 (due to the alleged breach of contract) as well as Perry’s failure for the same reason to sell the remaining 80 acres are fully alleged in plaintiffs petition made a part of the controverting affidavit. However, the amount of damages, if any, based on inability to market any tract of acreage as alleged is not now under consideration as that has to do with the final trial of the case on its merits. Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675.

We are now concerned merely with the inquiry: Does Perry bring himself by pleadings and testimony within the provision of exception 5 entitling him to prosecute the suit against Dobbs in Callahan County ?

It is first contended that the court erred in admitting the contract in evidence “for the reason that the plaintiff’s name appeared nowhere in said instrument, nor was plaintiff a party to the contract.” This was the only objection made to the introduction of the contract. As pointed out, there were pleadings and proof that the contract was for the benefit of Perry, although his name did not appear thereon. In that state of the record, the particular objection made did not exclude the contract, nor can the objection made be extended to cover objections not made but which might have been tenable. A specific objection which has been overruled will be effective as a ground of complaint on appeal only to the extent of the grounds named. Texas Law of Evidence (McCormick & Ray) p. 22. For numerous cases holding that objections to the admission of testimony upon different grounds than those specifically urged in the trial court will not be considered on appeal, see 3 Texas Digest, Appeal and Error, Also, Texas Court Rules, District & County, (Smoot) p. 493, rule 58; 67 S.W. xxiv. The contract was admitted as against the specific objection noted and in this we think there was no error, especially in the light of the pleadings and plaintiff’s further testimony of his definite interest in the contract, and Dobbs’s known recognition of and action thereon. There is evidence to support the court’s conclusion that Dobbs signed the contract.

In appellant’s brief he further' insists and reasons that since the plaintiff’s name does not appear on the contract, he is not a party to the same, or entitled to any benefits thereunder.

It is true Perry’s name does not appear on the face of the contract, but by pleadings and proof (sufficient to support the trial court’s judgment in that respect) it is made to appear that the written con-tract was made, iii part, at least, for the benefit of Perry, as well as other parties thereto. In fact, Perry appears to be merely a non-signing party to the contract, all of which was well known to Dobbs who, acting upon the agreement, reconveyed to each of these parties acreage as compensation for services rendered in blocking up the land. Such being the case, he is entitled to enforce his rights, if any, under the contract. 10 Tex.Jur. p. 478, § 278, et seq., and authorities cited thereunder; Diacomis v. Wright, Tex.Com.App., 34 S.W.2d 806; United States Fidelity & Guaranty Co. v. Eubanks, 126 Tex. 405, 87 S.W.2d 248.

Appellant’s propositions are overruled, and for the reasons assigned the judgment of the trial court is affirmed.


author: JACKSON, Chief Justice.

text:
    SOUTHERN UNDERWRITERS v. DYKES et al.
    No. 5229.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 9, 1940.

      Will R. Saunders, of Dallas, and Simpson, Dorenfield & Fullingim,’ of Amarillo (Henry D. Akin, of Dallas, of counsel), for plaintiff in error.
    S. D. Stennis and John V. Osborne, both of Pampa, for defendants in error.
   JACKSON, Chief Justice.

This is an appeal by writ of error from a judgment in a compensation suit in which the defendants in error, Mrs. C. S. Dykes individually and as next friend for Betty' Joe Estes, a minor, Claudia Dykes, now the wife of Johnnie Cole, Doris Dykes, now the wife of Billie Cornwell, Ona Fay Estes, now the wife of Frank Kirby, whom we will hereafter call appellees, secured an order setting aside an adverse award by the Industrial Accident Board and recovered the sum of $1,932 on a compensation policy issued to the Llano Construction Company by the Southern Underwriters, the plaintiff in error, which we will hereafter designate as appellant.

The appellees are beneficiaries of C. S. Dykes, deceased, under the Workmen’s Compensation Act and alleged that on the 13th day of August, 1935, while acting in the course of his employment for the Llano Construction Company, C. S. Dykes received severe internal and external injuries from which he died on March 23, 1937.

The appellant answered by general demurrer, special exceptions and general denial.

The questions on which this appeal is predicated will sufficiently appear from the findings of the jury, the assignments of error and our discussion thereof.

On special issues submitted by the court the jury found in effect .that the appellant on August 13, 1935, had an outstanding policy of compensation insurance covering the employees of the Llano Construction Company; that C. S. Dykes sustained personal injuries while assisting in carrying two joints of four-inch pipe, was an employee of the Llano Construction Company, sustained injuries in the course of his employment, which were a procuring cause of his ■ death; that his death was not solely caused by disease nor by an. attack of influenza in 1937, was not solely - due to pyorrhea, prostatitis, nor a combination of the effects of pyorrhea, prostatitis’ and influenza ; that it was not due solely to heart failure nor solely to natural causes.

On these findings judgment was- rendered for appellees and the amount thereof distributed among them and from the judgment this appeal is prosecuted.

The appellant assails as error the action of the trial court in overruling its general demurrer because the petition is insufficient to state a cause of action and the allegation charging that the deceased suffered severe internal and external injuries are but conclusions of the pleader.

The appellees, after stating the date and place of the injury and that the deceased with three other employees was carrying a heavy joint of pipe, allege that the other employees unexpectedly dropped their' end of the pipe throwing the entire weight thereof on the deceased, and by this unexpected and accidental event the pipe crushed him to the ground “causing various severe internal and external injuries from which and as a proximate result of which the said C. S. Dykes on the'23rd day of March, 1937, died.” There is no other allegation relative to the injuries suffered, no further description or suggestion as to the character, severity, kind or location of the injuries and the appellant under its general demurrer insists that the allegation in the petition is only a conclusion.

The contention that the allegation attacked by the demurrer is a conclusion of the pleader is obviously correct.

In Whatley v. Cato Oil Co., Inc., et al., Tex.Civ.App., 115 S.W.2d 1205, 1208, it is said: “There is some confusion in the decisions relative to conclusions which are subject to general exceptions, but the opinion of the Supreme Court in Garza et al. v. Kenedy et al., 299 S.W. 231, 233, contains the latest expression we have found thereon and the rule is said to bé: ‘In testing the sufficiency of a petition by a general demurrer, much liberality is indulged by the courts, even though much of the pleading is made up of what is generally termed “conclusions of the pleader,” drawn from the facts not revealed. Yet, such a defect in pleading can only be reached by special demurrer against that defect and cannot be reached by general demurrer.’ This holding is followed in Hanson et al. v. Pratt, Tex.Civ.App., 51 S.W.2d 629; Arkansas Drilling Co. et al. v. Burma Oil & Gas Co. et al., Tex.Civ.App., 68 S.W.2d 336, and Fagan v. Wadel-Connally Hardware Co., Tex.Civ.App., 89 S.W.2d 1080.”

In view of the holding of the Supreme Court the general demurrer is overruled.

The appellant directs a special exception to the portion of the paragraph of the petition quoted above attacking the allegation that the deceased suffered internal and external injuries from which he died for the reason that such allegation is indefinite, uncertain, failed to state any particular internal injuries or any particular external injuries suffered by the deceased; that the appellant was not advised of the nature or character of any injury or injuries nor what appellees would attempt to prove, and such allegation is only the conclusion of the pleader.

In Texas Employers’ Ins. Ass’n v. Downing, Tex.Civ.App., 218 S.W. 112, 115, in an opinion by Judge Boyce, writ of error denied, the insufficiency of the allegation of injuries was considered and decided. The complainant in that case after alleging the other elements of the cause of action stated: “That while dragging a piece of ice, weighing about 300 pounds, down an incline he slipped and fell down such incline, and the piece of ice slid down against him, and so crushed him that he has been totally and permanently disabled.” This allegation was attacked by special exceptions because it did not inform the defendant of the character and extent of the injury to any particular part of the claimant’s body and the court said: “We think the court should have sustained the special demurrers.”

See also Norwich Union Indemnity Co. v. Wilson et al., Tex.Civ.App., 17 S.W.2d 68; Wall et al. v. Royal Indemnity Co., Tex.Civ.App., 299 S.W. 319; Traders & General Ins. Co. v. Marrable, Tex.Civ.App., 126 S.W.2d 746; Bluitt et al. v. Pearson et al., 117 Tex. 467, 7 S.W.2d 524; Baker v. Hahn, Tex.Civ.App., 161 S.W. 443.

In Houston Electric Co. v. McDade, 34 Tex.Civ.App. 497, 79 S.W. 100, writ refused, plaintiff alleged that she had been thrown to the ground violently; that her spine was dislocated, her shoulder and arm, hip and leg bruised and injured, “and, in fact, greatly injuring and wounding plaintiff’s entire body, and injuring plaintiff internally.” In considering the admissibility of testimony under this allegation of internal injury, the court said: “It is clear that a special exception to the allegation of internal injuries would have required plaintiff to state more definitely what were the internal injuries claimed to have been received by her, and we think it equally clear that the allegation unexcepted to was sufficient to admit proof of injury to her womb.”

In Magill et al. v. McCamley, Tex.Civ.App., 182 S.W. 22, 23, writ refused, the court, in passing upon a special exception directed at the pleading because no facts were given upon which the conclusions stated in the allegation were based, held: “It is elementary that an allegation or averment of a legal conclusion, when no facts are stated from which such conclusion can be drawn, is insufficient pleading.”

The purpose of a special exception is to require the plaintiff to state more fully, clearly and specifically the facts that constitute the cause of action so the court may understand and submit'to the jury the issues presented by the pleading and the testimony and the defendant may properly prepare for trial and guard against surprise. The appellees contend that inasmuch as there had been a previous trial of the case the appellant was apprised of the proof to be offered. This assertion is followed by the argument that appellees did not know and could not state more specifically the internal or external injuries. Certainly if appellant was advised by the former trial what the testimony would be, the appellees were informed by the same testimony the particular injuries on which they would rely for a recovery. However, the court judicially knows that the testimony in a second trial frequently varies so much from the facts presented by the testimony on a previous trial that the litigant should not be deprived of the fact allegations upon which the adverse party depends at the second trial. The appellees claim that this proceeding is statutory and the same certainty is not required as is demanded in a common law action; also that the rule is more liberal to beneficiaries seeking to recover for the death of an employee 'than to the employee in a suit for compensation for injury. The pleading in a compensation suit is construed liberally but the- sufficiency of plaintiff’s petition in such a suit is largely determined by the general rules of good pleading. 45 Tex.Jur. 802, para. 293.

Article 8306, Section 16 of the Workmen’s Compensation Act, Vernon’s Annotated Texas Civil Statutes,. provides: “In all cases of injury resulting in death, where such injury was sustained in the course of employment, cause of action shall survive.”

It is not a separate cause of action which survives but the same cause of action that accrued to the employee survives to the beneficiaries. Texas Employers’ Ins. Ass’n v. Morgan et al., Tex.Com.App., 295 S.W. 588.

In 45 Tex.Jur. 804, the author states: "The general rule is that injuries must be specifically alleged and described.”

Article 8307, Section 5, Vernon’s Annotated Tex. Civil Statutes, among other things, stipulates: “The burden of proof shall be upon the party claiming compensation.”

Article 8309 under second subdivision 4 of Section 1, provides that: “Any reference to any employé herein who has been injured shall, when the employé is dead, also include the legal beneficiaries.”

In a compensation suit, whether by the injured employee or by the beneficiaries of the deceased employee, the burden is on the employee to plead and prove that he suffered accidental injury or injuries by accidental means in order to recover for incapacity and upon the beneficiaries of the deceased to plead and prove the same facts to recover compensation for the death of the employee.

Under the allegation that the deceased suffered severe internal and external injuries resulting in his death testimony of any injury from a bruise on his toe to a cerebral hemorrhage could be considered. The appellees did not claim in their petition they for any reason were unable to allege more specifically the injuries upon which they relied and in our opinion the special exception of appellant to the general allegation of injuries should have been sustained. The wisdom of this rule is apparent from the submission by the court of Special Issue No. 2, hereafter considered.

The appellant presents as error the action of the trial court in refusing to direct a verdict in its behalf because the evidence, it says, is wholly insufficient to show that the death of C. S. Dykes on March 23, 1937, was caused by any injuries he received on August 13, 1935, or that such injuries had any causal connection with, or were a producing cause of, his death.

There is testimony in the record to the effect that C. S. Dykes on August 13, 1935, was strong, healthy, able-bodied, weighed about 180 pounds, was then, and had for seven or eight years, engaged in manual labor; that on that date while in the course of his employment he, together with three other fellow employees, were carrying on their shoulders two joints of four-inch pipe some forty feet in length, weighing about 700 pounds; that Dykes was in the rear and when they reached the place where the pipe was to be dropped some of the men in front hollered, “Throw it.” The other employees threw the pipe off their shoulders but Dykes did not, the front end struck the ground, the rear end remained on the right shoulder of Dykes and the weight of the pipe crushed him to a sitting position; that he was addled, dazed and nauseated, complained of pain, was carried to the office of Dr. Wild, examined, treated and sent to the hospital where he remained until August 18th when he was discharged. Dykes went home, continued to suffer, returned to the hospital, stayed one night, returned home again and stayed in bed for several weeks. He was never able to work after the injury. Some time thereafter he began to lose weight and prior to his death weighed only 135 pounds; that after the accident he suffered with smothering spells; that his right arm was badly swollen for some six weeks after the accident and then began to shrink and he lost the use thereof for all practical purposes and he walked sideways apparently favoring his right side.

Dr. Bruno testified that he examined the deceased on several occasions between the date of his injury and his death and in his opinion he had been injured internally, the result of which caused an aneurism from trauma, exertion and strain sustained in the accident; that an aneurism is an enlarged place in a vein or artery caused by damage thereto; it bulges out when the heart beats and the place, becomes weak; that the aneurism was in the sub-clavian artery on the right side and in his opinion was a cause of the death of the deceased. Dr. Wild who examined the deceased on the 13th of August, 1935, the date of the accident, testified that there was no visible external injury upon the body of the deceased on that day or at any time during the several days he kept him in the hospital. Dr. Aronson examined Mr. Dykes on August 30th and testified to no visible injury and said he discovered no internal injury which in his opinion was a producing cause of the death. Dr. Hendricks who examined Mr. Dykes on February 15, 1936 testified to no external injuries and gave it as his opinion that the accident resulted in no injury which was a producing cause of the death. Dr. Over-ton examined the deceased on February 17, 1936, but testified to no visible injury and stated he discovered no injury that in his opinion was a producing cause of the death of C. S. Dykes. Dr. McBribe gave his opinion based on hypothetical questions that the injuries described could not have been a producing cause of the death of Mr. Dykes. The testimony is sharply controverted and the findings of a jury that there was no causal connection between the' accident and the death would have found ample support in the testimony. Nevertheless, we do not feel warranted in holding under the law and this record that the appellant was entitled to a directed verdict.

In Texas Employers’ Ins. Ass’n v. Humphrey, Tex.Civ.App., 140 S.W.2d 313, writ refused, it is held that in ascertaining whether a fact issue should be withdrawn from the jury all adverse testimony should "be discarded and also that the opinion testimony of physicians is only advisory, not conclusive, and may be disregarded by the trier of the facts.

The appellant by proper assignment challenges as erroneous because too unlimited in its scope and allows the jury to consider any and all injuries whether pleaded or proved or not, the submission of the court of Issue No. 2, as follows: “Do you find from the preponderance of the evidence that C. S. Dykes sustained any personal injuries while carrying two joints of four-inch pipe on or about the 13th day of August, 1935 ?”, which the jury answered in the affirmative.

In Traders’ & General Ins. Co. v. Low, Tex.Civ.App., 74 S.W.2d 122, 123, writ refused, it is held:

“Issues submitted in such general language that permits the jury to find that the appellee sustained injuries which were not alleged, but upon which there is testimony, constitute reversible error. New Amsterdam Casualty Co. v. Rutherford et ux. (Tex.Civ.App.) 26 S.W.(2d) 377.
“It is elementary that a plaintiff can recover only upon the cause of action which he alleges. Ft. Worth & Denver City Ry. Co. v. Jenkins (Tex.Civ.App.) 42 S.W.(2d) 267, and authorities cited. See, also, Safety First Bus Co. v. Skibinski et al. (Tex.Civ.App.) 36 S.W.(2d) 288.”

The law as announced in the above case is apparently the settled law of Texas. Texas Indemnity Ins. Co. v. Pemberton, Tex.Civ.App., 9 S.W.2d 65; Texas Employers’ Ins. Ass’n v. Pierson, Tex.Civ.App., 135 S.W.2d 550; Southern Underwriters v. Wright, Tex.Civ.App., 142 S.W.2d 297.

While the court submitted this issue, in substantially the language in the petition to which he overruled the special exception, his error in overruling the exception is emphasized by the submission of the issue in such general terms as allowed the introduction of testimony to prove any injury whether internal or external. This assignment is sustained.

The appellant assails as error the action of the trial court in refusing to submit its requested Issue No.'20, which is as follows : “Do you find from a preponderance of the evidence that C. S. Dykes sustained a traumatic aneurism as a natural result of accidental personal injuries, if any, sustained by him on August 13, 1935 ?”

It will be recalled that the only causal connection between an internal injury suffered by deceased by accident and his death is the testimony of Dr. Bruno that he died from a traumatic aneurism occasioned by the accident. This testimony is sharply and affirmatively controverted by the five other physicians and surgeons, two of whom were voluntarily selected by the deceased both to treat him and give testimony in the trial of his case. The only proof that external injuries may have had any causal connection with the death are the inferences to be drawn from the testimony of the lay witnesses and their testimony was sharply and.affirmatively contradicted and in our opinion this special issue should have been given.

The appellant by a proper assignment complains of the statements made by one of appellees’ counsel in opening the argument to the jury for the reason that counsel for appellant was criticised and castigated for failure to produce Dr. Webb in person to testify at the trial or to secure his evidence'by deposition. The argument of which complaint is made stated concisely is that the testimony of Mrs. Dykes that deceased had influenza in 1937, was treated by Dr. Webb, that deceased had recovered, and Dr. Webb was the physician called at the time deceased died but did not reach him before death; that, the appellant’s attorney in cross-examination asked Mrs. Dykes if she had not called Dr'. Webb, that he arrived after the death of the deceased and had she not told the doctor at that time that the deceased died from heart trouble; that the appellant knew where Dr. Webb could be found; that it had .secured physicians from Amarillo, Pampa and Oklahoma City and if they thought Dr. Webb would testify that the deceased died from heart trouble why didn’t they bring this physician as a witness or have his deposition taken. On objection the court instructed the jury not to consider this argument. There is nothing to indicate that Dr. Webb was an employee of the appellant or that it had any more control over him than did the appel-lees or under any greater obligation to secure his testimony by attendance or by deposition than did appellees. The cross-examination was legal and proper. The evidence on all material issues is sharply controverted.

In Robbins et al. v. Wynne, Tex.Com.App., 44 S.W.2d 946, 947, the attorney for one of the litigants in his argument used this language: “* * * ‘that he, counsel, did not put Mrs. Howard, a sister of defendant’s wife, and a niece of the plaintiff, Mrs. Robbins, on the stand because Mrs. Howard had been a recent recipient of the plaintiff, Mrs. Robbins’, bounty and that Mrs. Howard had told him, defendant’s counsel, that she therefore did not wish to testify in the case.’ ” When objection was urged to the statements the counsel at once withdrew the remarks, asked the jury not to consider them and also requested the court to instruct the jury not to consider such remarks for any purpose and the court so directed the jury. Commenting on this proceeding, the court says:

“We think the above transaction presents error which must result in a reversal of this case.
“We do not think the error was of such a character that this court can say with any degree of certainty that counsel’s acknowledgment of his error in the presence of the jury, and the court’s instruction to disregard it, have rendered the error harmless. In fact, we think that a wrong has been done which was and is fatal to this trial.”

The other assignments presenting as error the statement of the same counsel in the opening argument to the jury we deem it unnecessary to discuss.

Notwithstanding the reports abound with opinions admonishing attorneys not to indulge in improper, prejudicial, unwarranted and unjustifiable argument and many judgments are reversed because thereof, the frequency with which lawyers ignore this admonition is to be regretted. Such statements will not be made on another trial and what we have said relative thereto is to again caution attorneys to refrain from allowing their zeal and enthusiasm in argument to the jury to jeopardize the rights of their clients. Service Mutual Ins. Co. v. Blain, Tex.Civ.App., 135 S.W.2d 745; Liberty Mutual Ins. Co. v. McDaniel, Tex.Civ.App., 102 S.W.2d 493; Safeway Stores, Inc. v. Brigance, Tex.Civ.App., 118 S.W.2d 812; Traders & General Ins. Co. v. Crouch, Tex.Civ.App., 113 S.W.2d 650; Indemnity Ins. Co. of North America v. Harris, Tex.Civ.App., 53 S.W.2d 631; Morgan v. Maunders, Tex.Civ.App., 37 S.W.2d 791; San Antonio Public Service Co. v. Smith, Tex.Civ.App., 57 S.W.2d 179; Lottman v. Cuilla, Tex.Com.App., 288 S.W. 123; Robbins v. Wynne, supra; Woodard v. Texas & P. Ry. Co., 126 Tex. 30, 86 S.W.2d 38; Texas Ind. Ins. Co. v. McCurry, Tex.Com.App., 41 S.W.2d 215, 78 A.L.R. 760.

The other assignments of appellant, in our opinion, do not present reversible error.

The judgment is reversed and the cause remanded.


author: BLAIR, Justice.

text:
    ROYAL CREDIT CLOTHIERS v. PHILLIPS.
    No. 8966.
    Court of Civil Appeals of Texas. Austin.
    Dec. 11, 1940.
    Rehearing Denied Dec. 31, 1940.

      Elton M. Hyder, of Ft. Worth, for appellant.
    No briefs filed for appellee.
   BLAIR, Justice.

This appeal is from an order overruling the plea of privilege of appellant, Royal Credit Clothiers, a corporation, to be sued in Tarrant County, its residence and principal place of business. By his controverting affidavit, appellee, George A. Phillips, alleged and on the venue hearing proved in substance that by an oral contract he was employed by appellant to manage its store in Austin, Travis County, Texas, for a period of one year, at a salary of $35 per week to begin with, which after the first week was increased to $40, but at the end of four months he was fired without good cause; and for which breach of contract he sought both actual and exemplary damages. Ap-pellee also alleged and proved that appellant was incorporated under the corporate name of Royal Credit Clothiers, Inc., that its in-corporators were F. M. Skinner and his wife, Allie Skinner, who filed and recorded an affidavit in Travis County that appellant was operating in Austin, Travis County, Texas, as “Royal Credit Clothiers, Inc., D B A Lacy’s”; that appellant had an agent or manager conducting "and managing its business in Austin in the person of G. L. Lindsey; that the contract of employment was made and performed in Austin, and the breach thereof occurred in Travis County. Under these allegations and proof of facts, appellee asserted and the trial court sustained venue in Travis County by virtue of the provisions of Art. 1995, Sub. 23, Vernon’s Ann.Civ.St., which read: “Suits against a private corporation * * * may be brought in any county in which the cause of action, or a part thereof, arose, or in which such corporation * * * has an agency or representative.”

Under the foregoing proof, we overrule the several propositions of appellant that appellee failed to show that appellant was a private corporation. It was shown to be operating a retail clothing business. The evidence also showed that appellant had a place of business in Austin, Travis County, Texas, and that G. L. Lindsey was its manager and representative in Austin.

Nor is there any merit to the contention that appellee failed to show any contract of employment by any authorized agent of the corporation. He was employed by an agent of the corporation, talked the matter of how much business he was expected to produce with both Mr. and Mrs. Skinner, and actually worked for the corporation operating under the name assumed by them for a period of about four months, producing more than $20,000 worth of business for the corporation; and without any stated reason he was discharged.

The order appealed from is affirmed.

Affirmed.


author: WALKER, Chief Justice.

text:
    LOMBARDO v. REED et al.
    No. 3742.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 21, 1940.
    Rehearing Denied Dec. 11, 1940.
    Morris & Bennett, of Beaumont, for appellant.
    Vinson, Elkins, .Weems & Francis and H. W. Van Zandt, all of Houston, for appellee.
   WALKER, Chief Justice.

This suit was filed May 8, 1939, in County Court of Jefferson County at Law, Jefferson County, Texas, by appellant, Thomas Lombardo, Trustee, against appellees, •C. E. Reed and Geo. W.- Bowes, on a promissory note for the sum of $411.96, dated January 7, 1935, executed by appellees to appellant, payable in monthly installments beginning January 1, 1935 — the first two installments of $10 each, the remaining installments of $15 each — with interest after maturity at 6% per annum, and for 10% additional as attorney’s fees. On default in the payment of any monthly installment, the payee on his option could mature all remaining installments, in which event the note would draw interest at the rate of 10% per annum from the exercise of the option.

On trial to a jury, judgment was for ap-pellees on their pleas of limitation and that they executed the note as an accommodation maker and an accommodation surety for appellant. Neither of these findings has supp'ort in the evidence.

On the issue of limitation: Not one cent was paid on the note. On a former trial, appellant filed his motion for judgment non obstante veredicto, and submitted a form of judgment with interest from the 15th day of January, 1935. On this trial the jury found that appellant exercised his option to mature the note as of that date. On cross-examination, appellant testified:

“Q. Here is what I believe you are asking for, principal of the note with interest thereon from January 15, 1935, at the rate of ten per cent per annum, together with ten per cent of said amount, principal and interest, at attorney’s fees, is that correct? A. I guess so, the lawyer fixed it up. * * *
“Q. Now this note provides that on the failure to pay any installment or any interest the holder may mature the same and the whole note will at once become due and payable? A. Yes, sir.
“Q. You understand you are asking for interest on the whole amount from maturity, Januaty 15, 1935, at the rate of ten per cent? A..That is what the note reads.
“Q. Which means you matured the whole note on January 15, 1935 * * * A. How can I mature * * *
“Q. Because it says the failure to pay any installment shall mature the whole note. A. I didn’t mature that note altogether until we filed the suit.
“Q. Well, in order for you to get interest from January 15, 1935, which you are asking for, you matured it at that time? * * * A. I didn’t do it then, I done it at the time we filed the suit, that is when the note became due.
“Q. At the time you say you filed the suit it became due at that time ? A. No, the interest became due after each payment is made, otherwise when the payments are supposed to be made, that is when it becomes due on each payment.”

This testimony is insufficient to support an inference that appellant matured the note as .of January 15, 1935. Whatever inference could be given the fact, standing alone, that appellant asked the court on a former trial for judgment with interest from January 15, 1935, was rebutted as a matter of law by his testimony in explanation of this requested judgment. On the evidence, the legal conclusion must follow that appellant did not exercise his option to mature the note.

There is no evidence to sustain the finding that appellees were accommodation maker and surety on the note. Operating a filling station in Rosenberg, Texas, ap-pellee Reed bought his supplies from Oleander Oil & Supply Company. The amount of the note is the exact balance due by him on his account with the Company, as shown by its books. After his account was closed, the business of the Company was sold to Pure Oil Company, and appellant was made trustee for the stockholders, to collect the outstanding accounts. At the time this note was executed there were only two stockholders — appellant owning 65% and a Mr. Sullivan owning 35%. -On appellant’s testimony, he took this note from appellees in payment of appellee Reed’s account. He testified that Bowes had orally guaranteed the payment of the account, and Bowes’ testimony was subject to the same inference. Appellant testified that Reed was the principal on the note and, on his oral guaranty, Bowes was the surety.

Reed testified that, operating his business at Rosenberg, he began to lose money and notified the Company that he was going to close his business; that to keep the business a going concern the Company agreed with him to furnish him supplies on a commission basis and to absorb his losses; that he remitted regularly for the supplies shipped him under this contract and that the Company remitted him regularly for his commissions ; that the amount of the note was the balance of the account, as shown on the books of the Company. He did not testify that this balance was the loss sustained by him in operating his business, nor that he executed the note as an accommodation to appellant, nor that appellant told him he would not have to pay the note. We quote from his testimony:

“Q. How did you happen to sign that note ? A. I signed that note after Mr. Little’s death. Mr. Lombardo came over and asked me, talked to me about it and said he wanted to present a report to the other stockholders. * * *
“Mr. Bennett: We object on the ground that the testimony contradicts a written contract.
“The Court: Overruled.
“Mr. Bennett: Note our exception.
“A. * * * that he wanted to present a report to his stockholders and wanted to make as satisfactory a report as he could. * * *
“Q. Well, after you signed this note you were called on several times to pay it, weren’t you?' A. I was called on at one time by Mr. Lombardo, here in Beaumont.
“Q. When was that? A. One Christmas I was over here, I believe it was, I don’t remember the date, it was probably two years ago.
“Q. At that time you told him you would pay it when you could, didn’t you? A. At that time I didn’t tell Mr. Lombardo anything, I went to see Mr. Bowes to see what he knew about it.
“Q. That is all.”

Appellee Reed did not testify that at any time after the note was executed he denied his liability thereon to appellant, prior to the time this suit was filed.

Appellee Bowes testified:

“Mr. Lombardo came to me about making a note, said he wanted the note in his reports to the stockholders to show them he was actively pursuing the job of collecting' these accounts and he wanted to know if Reed signed a note if I would .sign it, so then I told him to send the note over to Reed and if he signed it why then I would sign it. When Reed had signed the note he brought it back to me and I put my name ori it in view of the past reliable transactions we had had and he now comes to collect on it, that is all, the whole story of the thing.
“Q. Did you tell Mr. Lombardo you would be surety on the note, that you would pay the note ? A. No, sir.
“Q. Did Mr Lombardo say anything at the time about collecting the note ? A. .No.
“Q. He told you, I believe you testified, he wanted it so it would look good on his books? A. That is it, to include it in his report to his other stockholders. * * *
“Q. Did he say anything about collecting the note? A. No.
“Q. Any time thereafter? A. We mentioned it a time or two after that.
“Q. How long after the note was signed was that ? A. Oh, I don’t know.
“Q. What did he say? A. Just wondered if they were going to make any payments on it.”

On the undisputed evidence, the judgment of the lower court in favor of appellees must be reversed and judgment here rendered for appellant for the amount of his note, with interest' at 6%, with 10% additional as attorney’s fees.

Reversed and rendered.