author: O’QUINN, Justice.

text:
    ZUMMO PACKING CO. v. COTHAM.
    No. 3574.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 13, 1939.
    Rehearing Denied Dec. 20, 1939.
    David E. O’Fiel, of Beaumont, for appellant.
    Shivers & Keith, of Port Arthur (Brock-man Horne, of Port Arthur, of counsel), for appellee.
   O’QUINN, Justice.

On April 10, 1928, Zummo Packing Company recovered a judgment against C. H. Cotham, in the County Court at Law of Jefferson County, for $433.05 with interest at the rate of six per cent per annum from January 1, 1927, until paid. January 3, 1939, F. J. Zummo, claiming to be the owner of said judgment by due assignment and transfer to him, filed this action in said county court to revive said judgment, alleging that the judgment was a valid and subsisting demand, that the judgment was unsatisfied, and that no execution had been issued on same within ten years from the date of its rendition.

Defendant Cotham answered by general demurrer, special demurrer to the effect that the plaintiff’s petition showed on its face that the right to revive the judgment was barred by the ten year statute of limitation. He further answered by general denial, and specially that the right to revive the judgment was barred by Article 5532, R.S.1925, pleading the facts as above set out. The answer was duly verified.

The case was tried to the court without a jury, upon an agreed statement of facts, which recites the facts above noted. Judgment was rendered denying a revival of the judgment. From that order appellant prosecutes this appeal.

Whether or not plaintiff’s right to have the judgment revived was barred by the limitation period fixed by Article 5532, R.S.1925, is the only question presented. Said article provides that “A judgment in any court of record, where execution has not issued within twelve months after the rendition of the judgment, may be revived by scire facias or an action of debt brought thereon within ten years after date of such judgment, and not after.”

Appellant insists that Article 3773, R. S.1925, enacted in 1933, Vernon’s Ann.Civ. St. art. 3773, operated as a repeal of Article 5532. That article reads: “If no execution is issued within ten years after the rendition of a judgment in any court of record, the judgment shall become dormant and no execution shall issue thereon unless such judgment be revived. If the first execution has issued within ten years, the judgment shall not become dormant, unless ten years shall have elapsed between the issuance of executions thereon, and execution may issue at any time within ten years after the issuance of the preceding execution.”

In Gillam v. Matthews, Tex.Civ.App., 122 S.W.2d 348, and again in Mingus v. Kadane, Tex.Civ.App., 125 S.W.2d 630, this identical question was before the court, and appellant’s contention overruled. In each of these cases, application for writ of error was dismissed. On the authority of the cited cases, the judgment must be affirmed, and it is so ordered.

Affirmed.


source: Caselaw Access Project

author: BAUGH, Justice.

license: Public Domain

text:
    GRAYSON v. RODERMUND.
    No. 8869.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1939.
    W. C. McDonald, of Robert Lee, and D. I. Durham, of San Angelo, for appellant.
    C. T. Dalton, of San Angelo, for appellee.
   BAUGH, Justice.

Rodermund sued Grayson for $250 rent for 2½ months on premises in San Angelo belonging to Rodermund and occupied by Grayson after the expiration on March 1, 1938, of the latter’s lease thereon. Gray-son filed a cross-action and counter claim for damages on two counts: (1) $250 for repairs made by him on the building as tenant pursuant to an agreement with Rodermund that he could deduct the cost of such repairs so made from the rentals due; and (2) $351.25 water damage to his stock of goods in said building resulting from leakage in the roof and other defects in the building which he had requested Rodermund to repair and which needed repairs Rodermund had failed and refused to make.

Rodermund excepted to both counts in the cross-action on the ground that a former judgment (not set out nor otherwise described than by style and cause number) in the same court between the same parties was res adjudicata of the claims so asserted by Grayson. This exception was by the court sustained, and upon refusal of Gray-son to plead further, judgment was rendered in Rodermund’s favor for $250; hence this appeal. No statement of facts accompanies the record.

The controlling issue is whether the trial court erred in sustaining the demurrer and striking out appellant’s cross-action. We have concluded that it did.

It is not necessary to discuss the conditions and circumstances under which a former judgment constitutes res adjudicata of a cause of action asserted in a subsequent suit. The general principles are well established and treated at length in 26 Tex. Jur., p. 11, § 353 et seq. We are here primarily concerned with the question of how it must be pleaded. It is generally asserted as a bar or as an estoppel against the cause of action pleaded. In either case the defense must generally be specially pleaded and established by evidence; and not by demurrer to the plaintiff’s pleadings. See 26 Tex.Jur., p. 328, § 503; 17 Tex.Jur., p. 146, § 16; and cases cited in support thereof. But where the plaintiff’s petition shows upon its face that the cause of action asserted has already been formerly adjudicated the issue of res adjudicata may be raised by demurrer. Shook v. Shook, Tex.Civ.App., 145 S.W. 699, writ refused; 26 Tex.Jur., p. 330.

No such case is, however, here presented. The defendant’s cross-action in nowise disclosed, any former adjudication thereof. The plaintiff’s demurrer thereto only recited that a judgment, giving the cause number, had formerly been rendered between the same parties in the same court. The demurrer itself in nowise discloses the terms of the judgment relied upon as res adjudicata. The appellant has brought up by bill of exception the former judgment relied upon. It affirmatively appears therefrom that it was rendered in a forcible entry and detainer suit rendered in the county court upon appeal thereto from the justice court, and upon instructions to the jury to find the defendant therein (Sam Grayson) guilty. That judgment does not disclose on what ground it was rendered; but manifestly on the ground that Grayson, the tenant, was holding over after expiration of his lease, and after demand of the landlord (Rodermund) that he vacate. This for the reason that in the instant case Rodermund alleged that he had rented said premises to Grayson for several months prior to March 1, 1938; and that the debt sued for herein was for occupation of the premises by Grayson after “his lease had expired.”

Manifestly then, the judgment relied upon not only doe.£ not show upon its face to have been an adjudication of the appellant’s cross-action; but does show that the claim asserted by appellant in his cross-action could not have been validly adjudicated in that suit. This for two reasons: (1) Because in a forcible entry and detainer suit, Arts. 3984 and 3986, R.C.S.1925, prescribe the only issue to be tried in such suit, and the character of judgment to be rendered therein. (2) Because the amount of the claims asserted in this cause are beyond the jurisdiction of the justice court where that suit originated; and on appeal, the county court could have acquired no jurisdiction thereof. The county court acquires no jurisdiction of a cause of action on appeal thereto from the justice court unless the justice court itself originally had jurisdiction. 26 Tex.Jur., § 80, p. 876.

In approving appellant’s bills of exception herein, the trial judge undertook to state in his qualification thereof what the evidence on the forcible entry and detainer suit showed with reference to the character of rental contract Grayson had with Roder-mund. And appellee also insists that the court was entitled to take judicial notice of proceedings had, the orders entered, and disposition made of the issues presented in the former suit. If it be conceded that the court was entitled to do so, such judicial notice could extend only to what was shown by the records of the trial of the prior suit. The court could not take cognizance of the evidence presented on the trial of such former suit, even between the same parties, and render a judgment in the instant case based thereon. Scott v. Clark, Tex.Civ.App., 38 S.W.2d 382, 383; 26 Tex.Jur., p. 342, § 511.

Consequently, it is immaterial on what grounds the court, in the forcible entry and detainer suit, found the tenant guilty. The only issue there presented was the right of possession at the time in question. And the issue of damages to the tenant resulting from a breach by the landlord of a former rental contract could not have been adjudicated in that suit. It was, therefore, error for the trial court to sustain a demurrer to Grayson’s cross-action in the instant case on the ground that same had been adjudicated in the former suit between the parties.

For the reasons stated, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: WILLIAMS, Justice.

text:
    TEXAS CO. v. LEE et al.
    No. 5459.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 22, 1939.
    Rehearing Denied Dec. 7, 1939.
    H. R. Wilson, of Houston, for appellant.
    Lee & Porter and Wynne & Wynne, all of Longview, for appellee.
   WILLIAMS, Justice.

W. Edward Lee filed this suit in statutory form of trespass to try title including pleas of five and ten years’ statutes of limitation, Vernon’s Ann.Civ.St. arts. 5509, 5510, against The Texas Company and others for title and possession of 7/8 leasehold interest under a described 1.86 acre tract of land alleged to be located in the John Blair Survey in Gregg County. The names and disposition made of the other defendants are immaterial. The real contest was between plaintiff and The Texas Company, which answered with a general demurrer, plea, of not guilty, general denial, and special pleas of limitation title.

The findings of fact and conclusions of law filed by the court sustained plaintiff’s contentions, namely: (1) That the strip of land in controversy was situated in the Northwest corner of the Blair Survey, and within the field notes of a larger tract conveyed by Thurmond and wife in 1904 to C. G. Strong and wife, Josie; (2) that the Strongs’ possession of the land thereafter matured into a five year limitation title; and they were the owners of such title when they executed and conveyed a 7/8 leasehold estate covering 113 acres out of this survey to the Mid-Kansas Oil & Gas Company; and (3) through mesne conveyances plaintiff became the owner of the leasehold estate covering the strip in controversy.

Plaintiff introduced in evidence over objections of defendant certain documentary evidence among which were the following:

1. Patent from the State of Texas to John Blair.

2. Oil and Gas lease from C. G. Strong and wife to Mid-Kansas Oil & Gas Company, dated December 22, 1930.

3. Assignment of above lease to Tidal Oil Company dated July 29,1931; recorded September 2, 1931.

4. Release of oil payment, Mid-Kansas Oil & Gas Company to Tide Water Oil Company dated February 28, 1934; recorded April 7, 1934.

5. Quitclaim deed from Marathon Oil Company, a corporation, and Tide Water Oil Company, to W. Edward Lee, dated March 27, 1936; recorded April 6, 1936.

The objection above urged and the exception to the court’s findings, later detailed, are the basis of a proposition which reads: “In so far as concerns each of plaintiff’s muniments of title, the instrument filed by the plaintiff on December 29, 1936, pursuant to defendant’s demand, did not comply with the requisites of Art. 7378, R. S.192S, and therefore none of such muni-ments of title were admissible in evidence •under the provisions of Art. 7377.”

In response to defendant’s demand, Article 7376, plaintiff on December 29, 1936, timely filed his “written abstract of title” containing twenty paragraphs, the first three of which pertinent to this proposition read:

“(1). Each and every of the instruments and plats contained in abstract No. 2897, compiled by Gregg Abstract Company, certificate dated 10:41 A. M., November 9, 1933.
“(2). Each and every of the instruments and plats contained in abstract No. 3764, compiled by Gregg County Abstract Company, certificate dated 7 o’clock A. M., April 29, 1936.
“(3). Each and every of the instruments and plats contained in Abstract No. 3769, compiled by Gregg County Abstract Company, certificate dated 7 o’clock A. M., May 25, 1936.”

The other seventeen paragraphs relate to patents covering the adjacent Tennison and Brown Surveys, judgments, and oral testimony to be offered. At the same time plaintiff tendered and filed above abstracts with the papers in this cause.

In the findings of fact and conclusions of law, the court states:

“Each and every of the instruments offered in evidence by plaintiff as a claim of title were included in and a part of the written abstract of title filed by plaintiff.”
“The abstract of title filed by plaintiff, * * * showed the nature of each written instrument intended to be used as evidence and its date, parties to, date of proof of acknowledgment, and before what officer the same was made, * * * where recorded stating the book and page of the record; * * * While the abstract filed by plaintiff contained full copies, and in most instances furnished more information than required by statute, yet it must be said that all the statutory requirements were complied with and defendants were fully apprised thereby in writing of the claim or title to the premises upon which the plaintiff relied, and * * * this requirements of the statutes were fully met.”

It is apparent that the foregoing findings are grounded solely upon the data contained in the three abstracts. Defendant does not attack the foregoing on the ground that same was not disclosed in the abstracts, but contends that plaintiff in his “abstract in writing of the claim or title to the premises upon which he relied” should have therein specifically listed the muniments and given the date specified in Article 7378.

The abstracts were made a part of plaintiff’s abstract in writing of his title upon which he relied. The abstracts so filed have not been brought forward in this record. We are not advised as to the size or contents of either, other than what is disclosed in above-quoted findings of fact. The abstracts may have included other documentary evidence not introduced in the trial, but did include all the instruments which were introduced. Not only the data requir-éd in Art. 7378, but also the full contents of each instrument were furnished. Defendant does not claim to have been misled. The record does not intimate that the procedure used operated as a “smoke screen” to hide or becloud the chain of title upon which plaintiff relied. The evident purpose of. Article 7378 and its related articles 7376, 7377, and 7379, is to furnish the adversary the list of documentary evidence that , will be introduced against him, with such additional information as will enable him, by investigation of the book and page of the records, to ascertain the exact character of the instruments relied upon, and thereby enable him to prepare his defense as against the evidence which he is thus informed the other party will adduce upon the trial, Coler v. Alexander, 60 Tex.Civ.App. 573, 128 S.W. 664; Butler v. Duffey, Tex.Civ.App., 288 S.W. 598, and thereby affording the adversary all the advantages that would be afforded by special pleading. Anderson v. Anderson, 95 Tex. 367, 67 S.W. 404. We therefore conclude that the “abstract in writing of the claim or title” filed by plaintiff meets the requirements of Article 7378.

Plaintiff sought to connect himself with such title as Strong and wife may have acquired. There was no common source of title. In considering the next proposition we shall assume that the land was situated in the John Blair Survey and the Strongs’ possession had ripened into a five-year limitation title on December 22, 1930. On this date the Strongs conveyed a 7/8 leasehold estate to the Mid-Kansas Oil & Gas Company which in turn on July 29, 1931, assigned to the Tidal Oil Company, an Oklahoma corporation. In 1936 Tide Water Oil Company, an Oklahoma corporation, joined by the Marathon Oil Company, quitclaim-ed to plaintiff all their title and interest in the 1.86-acre tract in controversy. In this deed appears this recital: “To have and to hold the above described premises * * * unto the said W. Edward Lee, his heirs and assigns forever, so that neither Marathon Oil Company (whose corporate name was formerly Mid-Kansas Oil & Gas Company) nor Tide Water Oil Company, nor their successors, * * * claim or demand any right or title * * *.”

Plaintiff introduced in evidence a release of oil payment from Mid-Kansas Oil & Gas Company to Tide Water Oil Company. This instrument refers to the assignment of the leasehold estate by it into the Tidal Oil Company, giving reference where recorded. The concluding two paragraphs read:

“Tidal Oil Company, Party of the Second Part, the assignee in said instrument, has by an amendment to its Articles of Incorporation changed its name to and is now Tide Water Oil Company, an Oklahoma corporation.
“Now, Therefore, in consideration of the premises, and for value received, Mid-Kansas Oil and Gas Company does hereby acknowledge that it has received from Tide Water Oil Company full payment of the said sum of One Million Dollars, arid does hereby fully release and discharge Tide Water Oil Company (formerly Tidal Oil Company) of and from all obligations with reference thereto, and also, the said Mid-Kansas Oil and Gas Company does hereby release and discharge the lien reserved by it in the assignment above mentioned, to. 'secure it in the payment of sa'id sum of One Million Dollars.”

Neither the deed nor the release was an ancient instrument. Defendant was a stranger to both. As such, defendant asserts the recitals quoted above were hearsay and wholly incompetent to establish title out. of Tidal Oil Company into Marathon Oil Company and Tide Water Oil Company, through and under which plaintiff sought to deraign title to the land in controversy. Our observations will be confined to the Tidal Oil Company. In support of this proposition, defendant cites and discusses the text in 17 T.J. Sec. 211, p. 520, and the holdings in Orr v. Armstrong, Tex.Civ.App., 81 S.W.2d 710, writ refused; Teagarden v. Patten, 48 Tex.Civ.App. 571, 107 S.W. 909, writ refused; McCoy v. Pease, 17 Tex.Civ.App. 303, 42 S.W. 659; Lancaster v. Snider, Tex.Civ.App., 207 S.W. 650; Ward v. Forrester, 35 Tex.Civ.App. 319, 80 S.W. 127; Stockley v. Cissna, 6 Cir., 119 F. 812; and Henry v. Phillips, 105 Tex. 459, 151 S.W. 533. In these cases, the rejected recitals of the deeds sought to bridge a gap in the chain of title by either showing (1) A lost deed; (2) heirship, which involves the passing, of title by descent and distribution; or (3) that the grantor as the surviving wife or child was the sole heir of the deceased prior grantee. Such is not the effect of the recitals here challenged, but rather a question of identity.

In Haney v. Gartin, 51 Tex.Civ.App. 577, 113 S.W. 166, writ refused, A. W. Newlin bequeathed the land in controversy to his wife, Mary E. Newlin. Thereafter a deed was executed by F. J. Kurtz and Mary E. Kurtz to F. Butterfield, purporting to convey same. This deed, which was not an ancient instrument hut in chain of title, recited that Mary E. Kurtz was formerly Mary E. Newlin. The court held that this recital, without other evidence of its truth, .and even as against strangers to the title, is competent evidence on the issue of identity which was involved. The conclusion thus reached was grounded upon the holdings in Chamblee v. Tarbox, 27 Tex. 139, 84 Am.Dec. 614, which held that recitals ■of similar import came within an exception to the hearsay rule in that such recitals dealt with pedigree. The Chamblee case has been followed in Auerbach v. Wylie, 84 Tex. 615, 19 S.W. 856, and Russell v. Oliver, 78 Tex. 11, 14 S.W. 264. The holdings in above cases were discussed and recognized in Dittman v. Cornelius, Tex.Com.App., 234 S.W. 880, where recitals in ancient -instruments, not in the chain of title, were held to be competent evidence in that same dealt with the history or pedigree of a grantor on the. question of identity.

Change of name by marriage may be likened unto a corporation which has changed its name by an amendment to its charter. In the Haney case, supra, if Mary E. Newlin married Kurtz, which the court concluded from the recitals did happen, she merely changed her name, and such change of name did not affect her ownership of the property which passed into her under the will. The same can be said of Tidal Oil Company. Its change of name to Tide Water Oil Company did not take from it title to the property conveyed to plaintiff. The recitals in the release that Tidal had changed its name by an amendment to its charter (and the act of the parties dealing with it as such), in the absence of any controverting evidence or of any circumstances to cast any suspicion upon the trustworthiness of ■such recitals, involved the question of identity and came within an exception to the hiearsay rule. The recitals would not be classed as self-serving. The “best evidence” rule was not urged. The court’s finding of fact that plaintiff “deraigns his title from and through a consecutive ■ chain of conveyances out of C. G. Strong and wife” is sustained.

The Strongs went into possession of a part of the 113 acres in 1904 under a deed recorded that year which described the boundaries of that tract. They cleared and fenced a part from time to time, remaining in possession until the trial; and paid taxes before delinquency for five consecutive years. Strongs’ possession matured into a five-year statute of limitation title and included the strip in controversy if it was situated within the Blair Survey.

Defendant contends that the strip in controversy is situated within the Scott Survey and included within the field notes of an oil lease owned by it. The field notes in the Blair patent call for the same bearing trees, namely, two red oaks, at its Northwest corner, as called for in the field notes in the Mary Scott patent for her Southwest corner. Extensive and detailed evidence of surveyors, surveys, natural objects in the vicinity, and lay witnesses was offered by the respective litigants to establish above corner in the absence of the two bearing trees to mark the corner. It would serve no purpose to detail the facts testified to with reference to this issue, for the same presents a question of fact. There is competent evidence to support the court’s findings as to the location of this corner, and that the strip in controversy was situated within the John Blair H. R. Survey.

The judgment of the trial court is affirmed.


author: GRISSOM, Justice.

text:
    KINCAID v. LONG et al.
    No. 1957.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 1, 1939.
    Rehearing Denied Jan. 5, 1940.

      Cox & Hayden, of Abilene, and Chrest-man, Brundidge, Fountain, Elliott & Bate-man, of Dallas, for relator.
    Stinson, Hair, Brooks & Duke, of Abilene, for respondents.
   GRISSOM, Justice.

This is an original application for mandamus by Mrs. Raymond Kincaid, as relator, against Hon. M. S. Long, Judge of a district court of Taylor County, Texas, and Mrs. Eva Hampton, as respondents. Relator prays that a writ of mandamus be issued requiring Judge Long to enter a judgment for relator upon a verdict rendered in said court in cause No. 11469-A, styled Mrs. Eva Hampton v. Mrs. Raymond Kincaid. In said suit Mrs. Hampton sought recovery of damages against Mrs. Kincaid resulting from an automobile collision. The parties will be hereafter referred to as they appeared in the trial court.

Mrs. Hampton, plaintiff, alleged, among other things, that while she was in an automobile in Taylor County “near and under the underpass of the Texas & Pacific Railway Company where said highway passes under the railroad and traveling in a westerly direction on said highway” she met Mrs. Kincaid, defendant, who was driving her car in an easterly direction upon said highway; that “said defendant ran her said car across the road in front of plaintiff’s car under said underpass and bridge over said highway in and upon that part and portion of said highway that plaintiff had a right to travel upon * * * and struck plaintiff’s car * * *.” Plaintiff alleged many specific acts of negligence by defendant.

Defendant alleged, among other things, the following:

“She says that on said occasion the plaintiff was approaching her on said highway going in the opposite direction to the direction in which defendant was traveling, and that defendant saw and observed the automobile in which the plaintiff was riding several hundred yards before the two automobiles met, and that plaintiff was driving and operating her automobile at a high and dangerous rate of speed, and was driving in the middle of the highway as she approached the underpass going under the Texas & Pacific Railway right-of-way. This defendant says that as she herself approached said underpass, seeing the position of the plaintiff and her automobile in the middle of the highway, defendant bore to her right of the highway as far as she possibly could in order to give the plaintiff all possible room for clearance. That in approaching the defendant’s right hand side of the highway in order to give such clearance to the plaintiff, the defendant’s, two right-hand wheels ran off the concrete-portion of the highway onto the gravel, or soft shoulder of the highway, which caused the defendant’s automobile to skid. That at said time the defendant was making-probably twenty-five miles per hour, and since there was a curve on the highway at the point where her automobile skidded and since the highway inclined down hill at said point, the defendant was unable to control her automobile and same whipped across the road and turned entirely around and headed back in the direction from which the defendant had been approaching. Defendant says that she finally gained control of said automobile, and brought the same to a standstill on the highway and after she had stopped her automobile and same had come to a complete standstill, the plaintiff drove into the back of this defendant’s automobile at a great rate of speed,, and with great force and violence, breaking and injuring and damaging the rear end of this defendant’s automobile, and that defendant’s automobile never at any time-collided with the plaintiff’s automobile, but that the plaintiff herself drove into the-rear end of this defendant’s car and collided therewith as aforesaid.
“This defendant says that the collision in question was brought about and caused by the negligence of the plaintiff herself in the following respects, to-wit:
“(a) The plaintiff was guilty of negligence proximately causing and contributing to cause the collision complained of, in that plaintiff was operating her automobile in the center of the highway and refused and failed to yield to the defendant half of said highway immediately prior to said colli sion, when the law and the rules of the road required her to drive on her own right hand side of the highway, and yield to the defendant the other side thereof.’’ (Italics ours.)

The cause was submitted to a jury on special issues. The jury answered that they disagreed: (1) As to whether defendant was operating her automobile “immediately prior to the collision” at a rate of speed in excess of 45 miles per hour, and (2) if so, whether such speed was a proximate cause of the collision, and (3) as to whether defendant was driving her automobile at the time and place of the collision on her left hand side of the highway. (4) As to whether, if defendant did operate her car on her left side of the highway, such act was a proximate cause of the collision. In answer to No. 4-a, the jury found that defendant failed to have her car under control in making the curve in the road, “at the time and place where the collision * * * occurred.” (4-b) The jury disagreed as to whether defendant’s failure to have her car under control was negligence, and (5) as to whether such failure was a proximate cause of the collision. (6) The jury disagreed as to whether defendant failed to keep a proper lookout, and (7) if so, whether such failure was negligence, and (8) whether such failure was a proximate cause of the collision. (9) The jury disagreed as to whether the collision was the result of an unavoidable accident. (10) It found that plaintiff sustained personal injuries as a result of the collision; (11) that plaintiff discovered, or could have discovered by the exercise of ordinary care, that defendant’s automobile was in a perilous position; (12) that after plaintiff had discovered defendant’s perilous position, plaintiff failed to stop her automobile; (13) that plaintiff’s failure to stop her automobile was not negligence. (14) The jury did not answer the question, conditionally submitted, as to whether such failure to stop was a proximate cause of the collision. (15) The jury found that plaintiff did not fail to keep a proper lookout, and (18) that plaintiff was not negligent in failing to drive her automobile around defendant’s automobile. (25) The jury answered that they disagreed as to what amount of money would compensate plaintiff for her injuries.

Since the contentions of both plaintiff and defendant are based upon special issues Nos. 20 to 23, both inclusive, and the answers thereto, they are set out in full.

“20. Do you find from a preponderance of the evidence that just prior to the collision in question the plaintiff . was driving her car in the center of the highway? Answer yes or no.”
Answer: “Yes.”
“If you have answered question number twenty ‘yes’ and in that event only then answer
“21. Do you find from a preponderance of the evidence that the plaintiff was negligent in driving her car in the center of the highway, just prior to the collision in question, if you have found that she did so? 'Answer yes or no.”
Answer: “Yes.”
“If you have answered question number twenty-one ‘yes’ and in that event only then you will answer
“22. Do you find from a preponderance of the evidence that such negligence, if any you have found, in answer to the preceding question, proximately caused or contributed to cause the collision in question? Answer yes or no.”
Answer: “Yes.”
“23. Do you find from a preponderance of the evidence that plaintiff failed to yield to the defendant half of the highway immediately prior to said collision? Answer yes or no.”
Answer: “No.”.

After the return of said verdict defendant filed a motion for judgment based on said verdict, and plaintiff filed a motion to have the court declare a mistrial. The court overruled the first and sustained the second motion. In its order granting a mistrial the court found that there was no conflict in the verdict of the jury.

Defendant contends that since the jury found, in answer to special issues 20, 21 and 22, that “just prior to the collision” plaintiff was driving her car in the center of the highway, that such act was negligence and a proximate cause of the collision, it has found facts sustaining a complete ground of defense and, therefore, a judgment for defendant was required.

Plaintiff contends there is an irreconcilable conflict between the answer of the .jury to issue 20 (that “just prior to the collision * * * plaintiff was driving her car in the center of the highway”), and the answer to issue 23 (that plaintiff did not fail to yield to defendant half of the highway “immediately prior to said collision.”)

With reference to the defendant’s contention, we direct attention to defendant’s allegation of contributory negligence on the part of the plaintiff, applicable to the findings of the jury under discussion, found in paragraph 6, subdivision (a), of defendant’s answer, as follows: “The plaintiff was guilty of negligence proximately causing and contributing to cause the collision complained of, in that plaintiff was operating her automobile in the center of the highway and refused and failed to yield to the defendant half of said highway immediately prior to said collision * * *We think the effect of said specific allegation of negligence was to raise by the pleadings an ultimate issue composed, not alone of question No. 20, to-wit, whether just prior to the collision plaintiff was driving her automobile in the center of the highway, but comprising questions 20 and 23, the latter inquiring whether the plaintiff failed to yield to the defendant half of the highway immediately prior to the collision. In other words, the contributory negligence alleged was in plaintiff’s driving on her left side of the highway and failing to yield half of the road. We think defendant did not allege, or attempt to allege, that the fact that plaintiff, prior to the accident, was on her left side of the road alone was negligence and a proximate cause of the injury; if this were not otherwise manifest it is made so by defendant’s allegation that defendant saw plaintiff “several hundred yards” before the automobiles met and that plaintiff was then driving “in the middle of the highway as she approached the underpass * * * If such is the proper construction of defendant’s said allegation of contributory negligence, and we think it is, then it does not result that the jury has found favorably to defendant facts constituting the complete ground of defense alleged by defendant. The jury has found a part of an ultimate issue in favor of defendant and another part in favor of plaintiff. The result is that such finding of a part of an alleged ultimate issue, or complete ground of defense, is insufficient ■ to require judgment for defendant.

In 28 Tex. Jur. 578, it is said: “The writ will issue to compel the entry of a judgment on a special verdict, if the necessary effect of the verdict is clear and plain, and the issues are answered in such way as to require the entry of a judgment for one of the parties * * * .” We think it cannot be said with reference to the facts of this case that the necessary effect of the verdict is clear and plain and that the issues are answered in such way as to. require the entry of a judgment for defendant.

The mandamus prayed for is refused.


author: BLAIR, Justice.

text:
    CENTRAL FREIGHT LINES, Inc., v. YORK.
    No. 8889.
    Court of Civil Appeals of Texas. Austin.
    Dec. 13, 1939.

      D. M. Wilson, of Waco, for appellant.
    M. F. Kieke, of Giddings, for appellee.
   BLAIR, Justice.

Appellee, Alton York, sued appellant, 'Central Freight Lines, Inc., for breach of contract to deliver certain office furniture at Levelland from Giddings, Texas, within three days. The shipment was delayed and missent to Littlefield, Texas; and appellee •alleged certain items of actual damages resulting in tracing and trying to locate the •office furniture; and as special damages resulting from the delay, alleged that he was a practicing attorney, and that he suffered loss of attorney’s fees by reason of the- fact that he was planning to open an office at Levelland, and because his furniture was not delivered he was unable to open said office; and that if he had been able to open his office at Levelland he would have made $400 off "of law practice that would have come to him.

The cáse was submitted to a jury upon special issues; and in answer to special issue No. 4 the jury found that appellee incurred the following items of actual damages in trying to locate his office furniture:

“a. Telephone call from Lubbock to Gid-dings .$ 2.00
“b. Trips from Levelland to Giddings. 25.00
“c. Trips from Levelland to Lubbock. 1.90
**d. Trip from Brownfield to Lubbock. 1.90
“e. Telegram Giddings to Brownwood. 1.25
“f. Amount of excess freight charges. 12.81
“g. Value of the use of the office furniture during the delay in delivery... 15.00”

In answer to other special issues, the jury found that considering the character of appellee’s profession, he suffered special damages by reason of delay in the shipment of the furniture in the sum of $150. Judgment was accordingly rendered for appel-lee for the sum total of the above items of actual and special damages.

Appellant contends that the evidence as a matter of law showed no special damages. This contention must be sustained. At the time appellee contracted to ship the furniture, he told the agent of appellant that the district court was in session at Brownfield, and that he would have to have his furniture in order to obtain whatever practice he could get. The furniture did not arrive within three days, and by telephone appellee notified appellant’s agent at Giddings of such fact, and the agent put out a tracer for the furniture. The court adjourned at Brownfield in about a week and appellee then decided that he would go to Levelland, a short distance from Brownfield, and establish his law office there; the district court convening there for a three-week term at that time. He then notified the agent of appellant to ship the furniture to Levelland when it was located; but the furniture was missent to Littlefield and never arrived at Levelland. By telegraph, telephone, and driving his automobile from Brownfield to Lubbock, from Levelland to Lubbock, and from Lubbock back to Gid-dings, and thence back to Brownfield, he finally located the furniture at Littlefield after some three weeks delay; and gave up any effort to locate his office in Levelland. Appellant refused to deliver the furniture to be shipped from’ Littlefield back to either Waco or Giddings, Texas, unless appellee would pay $19.81, freight charges, which was $12.81 in excess of the $7 for which appellant agreed to ship the furniture to' Brownfield or Levelland.

Appellee stated that he had never practiced law at Brownfield; that he did not know what he could make; and after abandoning Brownfield he went to Levelland, where he made arrangements for an office, to await the arrival of his furniture; that he met several business men, the district attorney, and the district judge, who told him that Levelland would be a good place to practice law; that several business men inquired of him where his office was, and that he had to tell them that he had not opened it because his furniture had not arrived. He gave no evidence of any prospective client, or any basis of any amount that any possible client might have paid him. When asked if he could give approximately the amount of loss from the 3rd day of September until the time he finally found his furniture, he stated, “No, I cannot.” He was then asked the question, if he practiced law at either Brownfield or Levelland, and he stated, “I did not; but I was asked several times where my office was.” This is the only testimony with regard to any amount which appellee might have earned if his office furniture had arrived within the time appellant agreed to deliver it to him.

While the law authorizes ope to recover profits as a natural consequence of a breach of a contract, it requires that such damages for loss of. profits be proved with reasonable certainty; and that no recovery can be had for loss of profits which are uncertain, contingent, conjectural, or speculative. The cases also hold that no recovery can be had for loss of profits where it is uncertain whether any profits at all would have been made. Of course, the authorities recognize that to some extent profits must necessarily be uncertain and problematical, and a complainant cannot be deprived of remedy merely because of the uncertainty of the amount of profits; but the law does require absolute certainty of data upon which loss of profits are to be estimated, and such data must be based upon substantial evidence and not wholly upon speculation and conjecture. Abbott v. Andrews, Tex.Com.App., 45 S.W.2d 568; Walter Box Co. v. Blackburn, Tex.Civ.App., 157 S.W. 220, 222; 13 Tex.Jur., 216, § 115; 15 Am.Jur., 556, §§ 149-151.

With respect to the items of actual damages found by the jury, appellant complains that Item “b” for $25 traveling expenses from Levelland to Giddings to locate the office furniture which had been missent to Littlefield, was unsupported by any evidence. This contention must be sustained because while appellee testified to having made the automobile trip he did not testify to any amount of cost incurred in making that trip and gave no evidence upon which the jury could base its finding of $25.

Appellant also complains of Item “g”, with respect to the $15 found to be the value of the use of the office furniture during the delay in delivery. There is no evidence upon which the jury could base any finding that $15 was the reasonable value of the use of this furniture pending its delivery to Levelland. The only evidence on the issue was that appellee testified that he could not rent other furniture of like character at Levelland, and stated that of course the use of the furniture would have been valuable to him; but as to what was the value of its use, the jury could not determine from any evidence in the record.

The judgment with respect to Items “b” and “g” of actual damages, and with respect to the $150 special damages is reversed, and the judgment is reformed so as to allow appellee to recover only Items “a”, “c”, “d”, “e”, and “f”, aggregating $19.86; and as thus reformed the judgment of the trial court will to that extent be affirmed. In view of this disposition of the case, we regard appellant’s other propositions as being without merit, and overrule them without discussion.

Reformed and affirmed.


author: GRAVES, Justice.

text:
    BECKHAM v. PANTEX PRESSING MACH., Inc.
    No. 10894.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 14, 1939.
    Rehearing Denied Jan. 4, 1940.

      Jones & Jones, of Mineóla, for appellant.
    Burris S¿ Benton, of Houston, for appel-lee.
   GRAVES, Justice.

This statement from the appellee’s brief, slightly interlined without changing its general purport, is considered sufficient basis for the opinion:

“This was a suit brought in Harris County Court at Law by the appellee against the appellant and W. H. Raley, both residents of Wood County, Texas, to recover the balance due on a note executed by the defendant, W. H. Raley, payable to the appellee, in the sum of $620.00, which note was payable at its office at 1006 Washington Avenue, in the City of Houston, Harris County, Texas.
“Appellee alleged that the note for $620.-00 was secured by a conditional sales contract executed by the defendant, W. H. Raley, covering certain laundry and cleaning machinery, as set out in said contract, which machinery was placed in a building in the City of Mineóla, in Wood County, Texas, which building belonged to the defendant, J. L. Beckham.
“Paragraph IX of its original petition was as follows:
“ ‘That the defendant, J. L. Beckham, is now in possession of.the building in which said personal property described herein is located and is also in possession of said personal property and is claiming some sort of interest in said personal property, the exact nature of which is unknown to the plaintiff (appellee herein) ; that any interest or claim of the said J. L. Beckham, if he has a valid or legal claim to said personal property or any part thereof, is inferior and subject to the rights of plaintiff under the two conditional sales contracts described in this petition.’
“Its prayer was this :
“ ‘Plaintiff prays that the defendants, and each of them, be cited to appear and answer this petition, and upon final hearing hereof that it have judgment against the defendant, W. H. Raley, for the amount of its debt, interest and attorney’s fees; that it have foreclosure of the lien created by the Conditional Sales Contract described herein against both defendants herein, for all costs of court, etc. * * * ’
“The defendant, W. L. Raley, filed no answer, and the defendant, J. L. Beckham, filed his plea of privilege in statutory form, which the court overruled, and from that action he has prosecuted this appeal.
“Appellee, in answer to the defendant, J. L. Beckham’s, plea of privilege, filed its controverting affidavit in due time, which contained, among other things, the following allegations:
“ ‘Plaintiff hereby refers to its original petition on file in this cause and in addition to the matters and facts set out in this controverting plea, hereby incorporates by reference in support of this plea, all matters and facts set out in its original petition, the same as if said original petition was copied herein verbatim.’
“Appellee also alleged in its controverting affidavit this:
“ ‘Plaintiff would further show that said personal property at the time of the filing of plaintiff’s original petition in this cause, was located in Mineóla, Texas, in a building owned by the defendant, J. L. Beck-ham, and said building was in the possession of the said J. L. Beckham, and the said J. L. Beckham had possession of the building and the personal property described herein upon which plaintiff has a mortgage lien, and the defendant, J. L. Beck-ham, refused to release said personal property, claiming that he held a prior lien thereon to secure the payment of certain rentals, alleged to be due him by the defendant, W. H. Raley, in this cause; that the defendant, J. L. Beckham, was at the time of the institution of this suit, and is still, asserting some claim or interest in said personal property and the right to the possession of the same and for such reason is a necessary party to this action, as a judgment against the defendant, W. H. Raley, alone, would be futile unless the party in possession of said personal property, the defendant, J. L. Beckham, was also foreclosed by said judgment.’ ”

The oral testimony offered fully sustained all of these quoted averments, especially those to the effect that appellant, Beck-ham, was also in possession of the machinery, upon which the appellee corporation had a valid and subsisting mortgage, and that he was claiming, against the appellee, the right to retain such possession — even keeping the machinery in his building, to the exclusion of the appellee, under lock and key — unless and until his asserted claim for rent against the same had been paid, either by it or somebody else; indeed, the appellant does not in any way deny the fact that he was so in possession of the mortgaged property under such claim of right thereto, nor his refusal to yield up the same to the appellee unless and until his claimed rent had been paid.

The record also indisputably shows that the appellee had caused a writ of sequestration to issue out of this same court— the county court at law of Harris County-prior to the hearing below of this plea of privilege, against the appellant, and that, pursuant thereto, it had taken into its own possession, as against him, the mortgaged property on September 24 of 1938.

As is apparent from the issue as to venue so joined by the parties, the right of the appellee to sue appellant in Harris County, as for a foreclosure of its claimed lien against the machinery, is grounded by the appellee upon Section 29a of R.S.Article 1995, Vernon’s Ann.Civ.St. art. 1995, subd. 29a, pursuant to its averment that he was, by reason of his possession of the property and his refusal to yield the same to it, a necessary party to its foreclosure-suit, within the meaning of that subdivision; whereas, the appellant’s position, on the other hand, is, as applied to the facts here involved, that he was not such a necessary party, because, to use his own language, “it embraces only those persons without whose presence before the court no adjudication of any of the subject matter involved in the litigation can be had.” He cites as his main authority for that position First National Bank v. Pierce, 123 Tex. 186, 69 S.W.2d 756, and West Texas Construction Co. v. Guaranty B. & L. Co., Tex.Civ.App., 93 S.W.2d 774.

This court concludes the learned trial court was correct in holding the appellant to have been such necessary party in the particular circumstances here obtaining, under this definition of what a necessary party under that subdivision is in such circumstances, given by the Supreme Court in Pioneer B. & L. Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284, 287: “Every party whose joinder in the suit is necessary to the s.ecuring of full relief in ‘such suit’ is a necessary party in the sense that term was used in subdivision 29a.”

The differentiation between this cause, therefore, and those upon which the appellant so relies, especially the cited West Texas Construction Company case, by this court, 93 S.W.2d 774, is that none of those causes involved the application of Subdivision 29a to the foreclosure of a chattel-mortgage, in which the parties sought to be joined with the mortgagor were in possession of the mortgaged chattels, as is the distinctive situation in this instance; it further seems clear that our courts — in states of fact not in legal effect different from those here so obtaining— have consistently held that a person in possession of mortgaged property, so holding and refusing to deliver it over to the mortgagee, is a necessary party within Subdivision 29a, in a suit to foreclose the mortgage on that particular property — that in no other way could the “full relief” the Supreme Court so pronounced to be essential in the Gray case, supra, be obtained.

Since these conclusions require an af-firmance of the trial court’s judgment, it will be so ordered.

Affirmed.


text:
    EANES v. HAYNES.
    No. 1956.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 8, 1939.

      . Fred O. Jaye, of De Leon, for appellant.
    Y. W. Holmes, of Comanche, for appellee.
   GRISSOM, Justice.

Bob Haynes instituted this suit in the County Court of Comanche County against J. R. Eanes, on two promissory notes, one for the principal sum of $30, and the other for the principal sum of $150; said nqtes provide for 10 per cent interest and contain the usual provision for 10 per cent attorney’s fees.

Plaintiff alleged payments aggregating $30 which plaintiff credited on the $30 note. The trial resulted in a judgment for plaintiff against defendant for $235.71. Defendant has appealed. No briefs have been filed. We have inspected the record for fundamental error. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.2d 811.

The amount of principal, interest and attorney’s fees due at the institution of the suit, according to the allegations of plaintiff’s petition, amounted to more than -$200. With the interest excluded, the amount then due, as principal and attorney’s fees, was less than $200. Art. 5, sec. 16, of the Constitution of Texas, Vernon’s Ann.St., provides that the County Court shall have exclusive jurisdiction in all civil cases “when the matter in controversy shall exceed in ■ value $200, and not exceed $500, exclusive of interest, and concurrent jurisdiction with the District Court when the matter in controversy shall exceed $500, and not exceed $1,000, exclusive of interest * *

In a suit on a promissory note, if interest cannot be considered in determining the amount in controversy, and the principal and attorney’s fees due on the note, according to the allegations of plaintiff’s petition are less than $200, the petition does not state a cause of action within the jurisdiction of the County Court. It has been determined, in considering the foregoing constitutional provision fixing the jurisdiction of the County Court, in a suit upon a promissory note, that interest cannot be taken into consideration in determining the amount in controversy. Le Master v. Lee, Tex.Civ.App., 150 S.W. 315, 316; Oppenheim v. Hood, Tex.Civ.App., 33 S.W.2d 265; J. I. Case Co. v. Laubhan, Tex.Civ.App., 64 S.W.2d 1079; Baker v. Smelser, 88 Tex. 26, 28, 29 S.W. 377, 33 L.R.A. 163.

It has likewise been determined that the question as to whether any suit is within the jurisdiction of the court in which it is filed is to be determined “by the aver-ments in the petition in so far as they state facts in relation to the thing in controversy; and this is true, regardless of the truth of the allegations, unless it is made to appear by pleading and proof that the allegations as to jurisdiction were fraudulently made.” Booth v. Texas Employers’ Ins. Ass’n, 132 Tex. 237, 123 S.W.2d 322, 327. It has further been definitely determined that in a suit upon a promissory note, where, as in this case, foreclosure of a lien is not sought, the amount of principal and attorney’s fees fixes the amount in controversy and, therefore, determines the jurisdiction of the court. Rainey v. Laudaudale, Tex.Civ.App., 30 S.W. 1084; Johnson v. Universal Life & Accident Ins. Co., Tex.Civ.App., 96 S.W.2d 674; Belle Springs Creamery Co. v. Marshall, Tex.Civ.App., 165 S.W. 61; Moore v. Foy, 4 Willson Civ.Cas.Ct.App. § 199, 15 S.W. 199; D. O. McRimmon & Co. v. Hart, 39 Tex.Civ.App. 474, 87 S.W. 881; Altgelt v. Harris, Tex.Sup., 11 S.W. 857.

Since the amount in controversy, to-wit, the principal and attorney’s fees due on the note (and exclusive of interest), according to the allegations of the petition, amounted to less than $200, the County Court of Comanche County was without jurisdiction of the case. Art. 5, sec. 16, Constitution of Texas.

We are, therefore, required to reverse the judgment of the trial court and dismiss the case. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.2d 811. It is so ordered.


text:
    CHAIN INVESTMENT CO. et al. v. FIRST NAT. BANK OF ELDORADO.
    No. 8854.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1939.
    Rehearing Denied Jan. 3, 1940.
    Upton, Upton & Baker, of San Angelo, for appellants.
    Joab Campbell, of Eldorado, for appel-lee
   BLAIR, Justice.

This is an appeal irom an order overruling the plea of privilege of appellant Chain Investment Company to be sued in Tom Green County, the county of its residence. The controverting affidavit to the plea of privilege alleged, and the evidence on the venue hearing showed, that appellee, First ■National Bank of Eldorado, sued appellant Chain Investment Company, a corporation with its residence in Tom Green County, and J. H. Benton, a resident of Schleicher County, in Schleicher County, on a check for $400, drawn by appellant on the San Angelo National Bank, payable to defendant J. H. Benton, who for a valuable consideration endorsed and delivered the check to appellee bank, which cashed it, paying the $400 to Benton’s wife. Appellee bank duly presented the check to the payee bank, and payment was refused; and after notice of the dishonor to appellant and Benton, this suit was filed against them as maker and endorser of the check, respectively. Upon the facts thus alleged and. proved, the trial court sustained venue of the suit in Schleicher County, under the provisions of Subs. 4 and 29a of Art. 1995, which read as follows:

“4: If .two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. The transfer or assignment of a note or chose in action shall not entitle any subsequent holder to sue thereon in any other county than that in which such suit could have been prosecuted if no assignment or transfer had been made.”
“29a: Whenever there are two or more defendants in any suit brought in any county. in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

The trial court should have sustained the plea of privilege because the facts alleged in the controverting affidavit and the proof on the venue hearing bring the case clearly within the inhibition of Sub. 4, which provides that “the transfer or assignment of a note or chose in action shall not entitle any subsequent holder to sue thereon in any other county than that in which such suit could have been prosecuted if no assignment or transfer had been made.” The liability of Benton, the resident defendant, depended upon his subsequent endorsement or assignment of the check to appellee bank. Before his endorsement or assignment of the check, Benton could not have maintained a suit for its dishonor by the payee bank either against it or the appellant Chain Investment Company, the drawer of the check, in Schleicher County, because both were resi-dents of Tom Green County. This provision of the statute is mandatory; and the question here presented was definitely settled in Hemphill v. Brock, Tex.Civ.App., 267 S.W. 281; Saunders v. First Nat. Bank, Tex.Civ.App., 287 S.W. 133; Merritt v. H. O. Wooten Grocer Co., Tex.Civ.App., 35 S.W.2d 1071.

Whatever has been the conflict in the Courts of Civil Appeals decisions on the question of whether Sub. 2,9a repealed or superseded the provisions of Sub. 4, it has now been definitely settled by the Supreme Court. “It is now settled that it was nor the purpose of the new exception (Sub. 29a) to restrict the meaning or operation of any pre-existing exception contained in R.S. art. 1995, but to leave all in full operation.” 43 Tex.Jur. 759, § 42. This text is sustained by First Nat. Bank v. Pierce, 123 Tex. 186, 69 S.W.2d 756. And in the case of Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347, 353, it is held that under Sub. 29a venue is fixed by reason of the nature or character of the suit, and in a proper case may be maintained in a county where none of the defendants resides; that this subdivision, properly construed, merely operates to add another exception to R.S. art. 1995, and leaves Sub. 4 “unrepealed and wholly unamended;” and that under Sub. 4 venue may be maintained in the county of residence of one of the defendants, although he is only a proper, as distinguished from a necessary party, as required by Sub. 29a.

The rule of law is also settled that as between the provision of one of the exceptions to the venue statute and another provision, the language of which is mandatory, the latter will control. Dallam County v. S. H. Supply Co., Tex.Civ.App., 176 S.W. 798. That rule is applicable here where the mandatory provisions of Sub. 4 inhibit venue based on transferee’s or assignor’s endorsement -of a note or transfer of the chose in action to any subsequent holder in the county of the residence of the transferee or assignor, where the suit could not have been prosecuted there if no assignment or transfer had been made; which provision of the statute is mandatory.

In accordance with our above conclusions, the judgment of the trial court is reversed and the cause remanded with instructions to transfer the suit to Tom Green County.

Reversed and remanded with instructions.


author: ALEXANDER, Justice.

text:
    HARRIS et al. v. KEOUN.
    No. 2143.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1939.
    Rehearing Denied Jan. 4, 1940.
    W. L. Eason, of Waco, for appellants.
    J. W. Spivey, of Waco, for appellee.
   ALEXANDER, Justice.

This is an original proceeding instituted in the lower court to recover on a super-sedeas bond. In August 1934, G. W. Ware recovered a judgment against Mrs. C. W. Harris and others for debt with foreclosure of lien and certain other relief not necessary to here mention. The defendants in that suit appealed by supersedeas bond. On appeal we affirmed the judgment in part and reversed and rendered it in part. Motion by appellees in that suit for summary judgment against the sureties, on the super-sedeas bond was denied by this court on the ground that this court was without jurisdiction to grant such relief because the recovery on appeal was materially less than in the trial court. See Harris v. Ware, Tex.Civ.App., 93 S.W.2d 598. The Supreme Court refused writ of error in that case. Execution was issued on the judgment but was later returned “No property found.” Ware died and T. H. Keoun, as executor of his estate, brought this action as an independent suit in the trial court to recover on the supersedeas bond. From a judgment in favor of the plaintiff, the defendants have appealed.

The material question to be determined by this appeal is:- Where an appeal is taken and supersedeas bond given and the judgment of the trial court is affirmed in part and reversed and rendered in part, may the appellee, in an original proceeding instituted in the trial court, recover on the supersedeas bond to the extent that the judgment was affirmed in his favor? The question does not appear to have been heretofore settled in this state.

Revised Statutes, art. 2270, reads as follows: “An appellant or plaintiff in error, desiring to suspend the execution of the judgment may do so by giving a good and sufficient bond to be approved by the clerk, payable to appellee or defendant in error, in a sum at least double the amount of the judgment, interest and costs, conditioned that such appellant or plaintiff in error shall prosecute his appeal or writ, of error with effect; and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against him, he shall perform its judgment, sentence or decree, and pay all such damages as said cpurt may award against him.” The’ bond in question was given in compliance with this statute and was conditioned that “the appellant shall prosecute her appeal with effect and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against her, she shall perform its judgment, sentence or decreeyand pay all such damages as said court may award against her.” Appellant, in the original proceedings, secured a more favorable judgment in the Court of Civil Appeals than had been rendered against her in the trial court, and she thereby prosecuted her appeal “with effect.” Blair v. Sanborn, 82 Tex. 686, 18 S.W. 159, 160. Consequently, she and the sureties on her bond here contend that since she prosecuted her appeal with effect, she fully performed the conditions of the bond and they should be discharged from any further liability thereon. It should be noted, however, that the bond and the statute under which it was executed bind the obligors in the bond to do two things — that is, prosecute the appeal with effect and perform the judgment of the appellate court.

In the case of Trent v. Rhomberg, 66 Tex. 249, 251, 18 S.W. 510, 511, the Supreme Court had before it a suit to recover on su-persedeas bond where the appeal had been dismissed at appellant’s costs. The appellant in that case having paid the costs assessed against him by the appellate court, contended that he had fully performed the conditions of the bond because he had performed the only judgment that had been rendered against him by the appellate court. In discussing this question, the court said: “The bond was conditioned that the principal obligor ‘shall prosecute its appeal with effect, and in case the judgment of the appellate court shall be against it’ the principal ‘shall perform its judgment, sentence, or decree, and pay all such damages as said court may award against it,’ in literal conformity to the statute then and now in force. The appellees contend that these obligations are in the alternative; that they were bound either that the principal should prosecute its appeal with effect, or pay the judgment of the supreme court; and that they have performed the contract in paying the costs adjudged against them in the order dismissing the appeal. The statute provides for a contract to do two things, and not one of two. The bond is, in terms, that both shall be done, not one or the other. In Hobart v. Hilliard, 11 Pick. [Mass.] 143, the bond was conditioned to prosecute the appeal with effect, and pay the intervening damages. It was held that the appeal was prosecuted with effect, but the liability of the sureties upon the other condition was not questioned. * * * As a general rule, when the appellant prosecutes his appeal with effect, the judgment is reversed, and the cause is remanded, with no sentence or decree to be performed by the appellant, or award of damages to be paid by him. This general rule was evidently in view when an appeal-bond, with the obligation to perform the conditions in the alternative, was held to be sufficient, in Robinson v. Brinson, 20 Tex. 438. In the great majority of cases then coming before this court, if the judgment was reversed, the cause was remanded for a new trial. But, under the practice inaugurated under the present constitution, many cases are tried in the district court without a jury; and in many of them the judgment is reversed, and here rendered. In those in which the judgment is reversed, and here rendered against the appellant, the appeal is prosecuted with effect, in any sense of these terms; and yet, by the judgment of this court, the principal and sureties in the bond are bound on the other obligation contracted to perform important and onerous decrees. There is no harshness in this interpretation of the bond. The sureties are no further bound than they have contracted to be. They are given the simple justice of a literal intérpretation of the language of their undertaking. The principal is not allowed to delay the execution of an erroneous judgment without securing the performance of the proper judgment to be rendered in the court to which he appeals. The bond bound the principal to prosecute the appeal with effect, as well as to perform the judgment of the supreme, court. It is'no defense to a suit for breach of one condition that the other has been performed.”

In the case of Blair v. Sanborn, 82 Tex. 686, 18 S.W. 159, 160, the court uses language which, if standing alone, might lead to the conclusion that a surety on an appeal bond is discharged when he secures a reversal in part of the judgment appealed from. It should be noted, however, that in that case the court was dealing with a cost bond and not a supersedeas bond. Later on in that same opinion, the court referred back to its opinion in Trent v. Rhomberg, 66 Tex. 249, 251, 18 S.W. 510, where a su-persedeas bond was involved and used language which, we think, makes it clear that the court intended, to adhere to its original holding that a surety on a supersedeas bond sustains a double obligation — that is, to both prosecute the appeal with effect and to perform the judgment of the appellate court. In this connection, the court said: “In the case of Trent v. Rhomberg, 66 Tex. 249 [18 S.W. 510], an appeal was dismissed for want of prosecution, and costs were adjudged against appellant and the sureties on his appeal-bond, which operated a su-persedeas; and, in an action on that bond to recover the sum due on the judgment, it was contended that payment by appellant of the costs adjudged against him by this court was a satisfaction of his bond. But this was held not to be true, and that nothing would satisfy the bond short of a successful prosecution of the appeal, or the payment of the judgment rendered by the district court. This was manifestly just, for appellant and his sureties had contracted to prosecute the appeal with effect, which involved a presentation of the case to this court for adjudication on its merits, as well as the result of that adjudication; and a failure to present the case for adjudication was such a breach of the condition .to prosecute the appeal with effect as would have been an adjudication on the merits against appellant. When one has thus taken the first condition in an appeal-bond, he cannot be heard to say that he has satisfied the other condition by paying a judgment for costs rendered by this court, when that condition makes it obligatory on him and sureties to pay such a judgment as this court may render against them on an adjudication of the case appealed upon its merits.”

See also Denton Milling Co. v. Blewett, Tex.Civ.App., 254 S.W. 236; A. C. Horn Co. of Texas v. Bonin, Tex.Civ.App., 23 S.W.2d 804.

Our view that the appellants are liable on the supersedeas bond in question is strengthened by the holding of the Supreme Court in the case of Prim v. Farmers’ National Bank of Dublin, 51 S.W.2d 684. In that case it was held that even though the judgment rendered in the Supreme Court was less than that rendered in the district court, a summary judgment could be rendered on the supersedeas bond in the Supreme Court to the extent of the judgment so rendered against appellant. It is true that this holding was based on the provisions of Revised Statutes, art. 1767, which expressly authorized the Supreme Court to render judgment on the supersedeas bond for whatever judgment was finally rendered against the appellant. But that statute, art. 1767, did not create the liability against the sureties on the supersedeas bond but merely conferred jurisdiction pn the Supreme Court to enter a summary judgment for the enforcement of the bond in accordance with its terms. As said by Justice Greenwood in Wichita Falls R. & Ft. Worth R. Co. v. Combs, 115 Tex. 405, 283 S.W. 135, 138, in referring to this statute, “The complete purpose of the act must have been to remove the restriction on the power of the appellate courts to require full performance by sureties on supersedeas bonds of the judgment finally pronounced when such judgment exacted less of the principal than the original judgment.” If the Supreme Court, which is limited in its jurisdiction, can render judgment on the bond under such circumstances, we see no reason why a district court, which has general jurisdiction, can not render a like judgment on such a bond under similar facts.

Based on the foregoing decisions, we are of the opinion that the trial court properly held that the plaintiff was entitled to recover on the supersedeas bond even though the judgment rendered by this court in the case in which such bond was given exacted less of the appellant therein than the original judgment.

Appellants also contend that appel-lee’s motion for summary judgment in this case on the original appeal was such an election of remedies as estopped him from bringing an independent action on the bond, and that the judgment of this court denying such motion is res adjudicata of the present action. We cannot sustain this contention. We refused to enter a judgment on the bond on the original appeal of Harris v. Ware, supra, not because of lack of merit in the cause but because under the peculiar provisions of Revised Statutes, art. 1857, this court was without jurisdiction to enter the summary judgment prayed for. The erroneous selection of a tribunal without jurisdiction to hear and determine a cause ought not to be held to constitute such an election of remedies as would bar a subsequent suit on the same cause in a court having jurisdiction thereof. 15 Tex.Jur. 828; Employers’ Casualty Co. v. Rockwall County, 120 Tex. 441, 35 S.W.2d 690, 38 S.W.2d 1098; Cobb & Gregory v. Parker, Tex.Com.App., 236 S.W. 1108.

We have carefully considered all of appellants’ other assignments and find no reversible error.

The judgment of the trial court is affirmed.


author: COMBS, Justice.

text:
    SHELL PETROLEUM CORPORATION et al. v. HOWTH.
    No. 3239.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1939.
    For opinion on merits, see 133 S.W.2d 253.
    J. P. Adoue, of Houston, Orgain, Carroll & Bell and Melvin Combs, all of Beaumont, Cain & Wheat, of Liberty, Stevens & Stevens and R. H. Whilden, all of Houston, Thompson, Mitchell, Thompson & Young, W. K. Koerner, and C. P. Berry, all of St. Louis, Mo., and A. E. Groff, of Houston, for appellants.
    W. D. Gordon, Howth, Adams & Hart, and Gaston H. Wilder, Jr., all of Beaumont, for appellee.
   COMBS, Justice.

This was an action by appellee, C. W. Howth as plaintiff, against the following named parties as defendants: Shell Petrol-ettm Corporation, Ford Clevenger, Mary J. Gregory, E. P. Gregory, Billie E. Bourgeois, Sarah Blevins and husband, R. E. Blevins, Sam Gregory, Ruth Wills and husband, P. D. Wills, I. L. Gregory, R. A. Gregory, O. H. Noland, C. O. Wier, Hazel King and husband, Leroy King, Annie Reed and husband, J. L. Reed, and Susie B. Summers. The judgment of the lower court was in all things affirmed except as against Shell Petroleum- Corporation, Billie Bourgeois and I. L. (Ike) Gregory; as to these defendants the judgment of the lower court was reversed and the cause remanded for a new trial.. In his motion to re-tax costs; plaintiff Howth makes the point that 8/13ths of the costs should be taxed against those defendants who lost their appeal; and that the remaining 5/13ths of the costs should be taxed l/4th against him and 3/4ths against Shell Petroleum Corporation, O. H. Noland and C. O. Wier. The motion is overruled. All costs incurred by Shell Petroleum Corporation, Billie Bourgeois and I. L. Gregory, on appeal.are taxed against plaintiff Howth; all costs ln-ciirred by the defendants who lost their appeal are taxed against them. All items of costs not specifically taxed in the transcript against named parties shall be apportioned on the following basis: (a) Costs of the trial court; 8/13ths against the defendants who lost their appeal, 5/13ths against plaintiff Howth; (b) All costs of the appellate court actually paid by the defendants who won their appeal, to be taxed against plaintiff Howth — all other costs of the appeal to be taxed 8/13ths against the defendants who lost their appeal and 5/13ths against plaintiff Howth.


author: BOND, Chief Justice.

text:
    BROOKING et al. v. McCUTCHEN et al.
    No. 12962.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 9, 1939.

      Guthrie & Guthrie, of Dallas, and Dwight Roberts, of Kansas City, Mo., for appellants.
    J. J. Fagan, of Dallas, for appellees.
   BOND, Chief Justice.

This suit was brought by Lyllyan Shee-gog Brooking, joined by her husband, J. H. Brooking, to construe the will of her father, Robert W. Sheegog, deceased. C. W. McCutchen, sole executor, and all other beneficiaries of the will and estate were made parties defendant. The will is, as follows:

“January 10, 1039
“To Whom This May Concern:
“This is my only will and testament. My belongings I wish disposed at my death as follows:
' “The printing plant and all equipment, together with all outstanding accounts, to go to my brother, Cecil W. McCutchen.
“All cash in bank, all stocks and notes, together with my home, at 7106 Lakewood Boulevard, is to be converted into cash and divided as follows:
“One-half of all net proceeds is to be divided as follows : One-half shall go to my daughter, Lillian Sheegog Brooking, the remaining half shall be divided equally between my sister, Fannie Fulton, Lula Blackwell, and Lynden McCutchen.
“My faithful employee, J. F. Ponder, is to remain with the firm, The Sheegog-Printing Company, so long as he is physically able to do so. When he is no longer able to work, he is to be paid twenty dollars ($20.00) per week from the income of the Sheegog Printing Company, so long as he lives.
“Of course, all this is to be done after my indebtedness and my funeral expenses have been paid.-
“I hereby appoint my brother, C. W. Mc-Cutchen, sole executor without bond.
(Signed) Robert W. Sheegog
“Witness:
“Victor S. Patton
“Leo H. Pratley”

Appellants take the position that, the will disposes of only one-half of the net proceeds of all cash in bank, stocks and notes, and the home at 7106 Lakewood Boulevard, converted into cash, by a division of one-half thereof to his daughter, Lyllyan Sheegog Brooking, and the other one-half divided equally between the two sisters of the deceased, Fannie Fulton and Lula Blackwell, and a brother, Lynden McCutchen; that such bequests, together with the devise to Cecil W. McCutchen, are subject to all indebtedness and funeral expenses of deceased; and that deceased died intestate, as to the remaining half of the cash, stocks and notes, and the home, converted into cash, which, under the law of descent and distribution, Art. 2570, 1925, Mrs. Brooking, his only child, inherited. The trial court took an adverse view, charging, however, each of the beneficiaries, in proportion to the share of each, with all outstanding indebtedness and funeral expenses of the deceased; thus, in effect, interpreting the will as dividing the whole of the net cash in bank, stocks and notes, and the home, — one-half to his daughter and the remaining half to his two sisters and a brother, and accordingly entered judgment. The holding of the court finds support only in strong presumptions, which are mere rules of evidence, tending to the proper interpretation of the acts of the deceased expressed in his will.

The will is so drawn as not to admit parol evidence, and, as a consequence, the intention of the testator must be found in the language he employed in the will. All presumptions must yield to the clear intent of the testator expressed in the will. “Where the language of the will is .plain and unambiguous, the court cannot give it a meaning different from that warranted by its words merely for the purpose of carrying into effect a conjecture or hypothesis as to the testator’s intention by changing such language. 40 Cyc. 1399”. McMullen et al. v. Sims et al. Tex.Com.App., 37 S.W.2d 141. Indeed, the deceased, in merely executing the will, evidenced a desire to' dispose of his belongings at his death; and too, only i'n the manner stated by him. Obviously, he wished to give to his sisters and brothers some of his belongings, which they would not receive, but for the will, and to deprive his child of only such portion of his estate as he desired to give to the others. Ordinarily, a strong presumption exists that the testator did not intend to die intestate as to any part of his estate, by the execution of the instrument, but such presumption must necessarily yield to the otherwise clear language of his will. It cannot be presumed that the testator intended to disinherit his only child, in whole or in part, of his estate. This latter rule is paramount to all other presumptive canons. In McDonald v. Ledford, 140 Tenn. 471, 205 S.W. 312, 314, the Supreme Court of Tennessee said:

“We cannot hold that the rule that a testator is presumed to have intended not to die intestate as to any part of his estate is of greater force than the rule that an heir is not to be disinherited except by express ,words or necessary implication. Indeed, we are of opinion and hold that the latter rule should be the paramount one in case the two come in conflict, since it is less fictional or metaphysical and is based upon what we know to be the natural prompting of the parental heart: To recognize and not disregard one’s own offspring in the last testamentary disposition of his estate. Shaner v. Wilson, 207 Pa. 550, 56 A. 1086; Watson v. Martin, 228 Pa. 248, 77 A. 450, 20 Ann. Cas. 1288.”

In this connection, in 44 Tex.Jur., p. 814, § 243, the general expression of the law of this state follows the expression of the Supreme Court of Tennessee, supra, in the following language: “One may be morally bound not to disappoint the expectations of heirs and next of kin, and, as was early said by the Supreme Court, it may be questioned, perhaps, whether the Legislature ought not to place a general restriction upon the power of testamentary disposition.”

So, we think, where the testator says, “all cash in bank, all stocks and notes, together with my home, at 7106 Lakewood Boulevard, is to be converted into cash and divided as follows: One-half of all net proceeds is to be divided as follows: One-half shall go to my daughter, Lillian Shee-gog Brooking, the remaining half shall be divided equally between my sister, Fannie Fulton, Lula Blackwell, and Lynden Mc-Cutchen”, clearly deals only with one-hal'f of the named property, making testamentary of that half and leaving the other half intestacy. It is evident, the deceased had in mind when he drafted the will, to' divide the property into two moieties making disposition of two halves. In pronouncing the division, he used this language, after designating the property to be divided: “ * * is to be converted into cash and divided as follows:”, saying of this half, “One-half shall go to my daughter, Lillian Sheegog Brooking, the remaining half shall be divided equally between my sister, Fannie Fulton, Lula Blackwell, and Lynden McCutchen”; thus clearly leaving the other half of the property un-disposed of by the will. We may visualize what the deceased intended when he failed to make disposition of the other half,— either he failed to complete the disposition of the remainder of his property, or else intended that his only child should receive it under the law of descent. Since deceased failed to complete disposition of his property, whatever may have been his reasons for such failure, the language used in the instrument governs over all rules of presumption, even though it results in what we might consider absurd consequences. The division of one-half of all net proceeds of the estate implies that, one-half only is to be divided: One-half of the one-half, or one-fourth, to Lillian Sheegog Brooking, and one-half of the other one-half, or the other one-fourth, is to be divided equally between Fannie Fulton, Lula Blackwell, and Lynden McCutchen; and that the testator died intestate as to the remaining one-half of the net proceeds of his estate, other than the devise to his brother, Cecil W. McCutchen. Then, too, the testator having said in the will, following all the bequests to beneficiaries, “Of course, all this (meaning all the foregoing bequests) is to be done after my indebtedness and my funeral expenses have been paid”, each beneficiary under the will is encumbered, in proportion to the value of the share received by each, with such indebtedness and expense.

In our opinion, the will bears no other construction than that, the testator died testate as to one-half of the property, designated to be divided among his daughter, two sisters, and a brother, Lynden McCutchen; and intestate as to the other half, and that the share of each of the beneficiaries under the will shall bear the testator’s indebtedness and funeral expenses in proportion to the value of such shares. Accordingly, the judgment of the court below is affirmed in part; reversed and rendered in oart.


author: FUNDERBURK, Justice.

text:
    ROADWAY TRANSPORT CO. v. GRAY.
    No. 1961.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 15, 1939.

      Touchstone, Wight, Gormley, Strasburger & Price, of Dallas, and Steakley, Harris & Nunn, of Sweetwater for appellants.
    Beall, Beall, Yonge & Neblett and Alvin F. Nemir, all of Sweetwater, for appellee.
   FUNDERBURK, Justice.

This appeal brings up for review the action of the trial court in overruling 'pleas of privilege. The plaintiff Elmer J. Gray, a resident of Brazoria County, Texas, by his controverting plea to the defendants’ several pleas of privilege sought to sustain venue in Nolan County under exceptions 9 and 29a, as provided in R.S. 1925, Art. 1995, Vernon’s Ann.Civ.St. The defendants, J. S. Brimberry, W. A. Brim-berry, H. P. Brimberry, I. J. Brimberry, T. J. Brimberry, J. C. Brimberry, and S. G. Lacy were each residents of Howard County. Said defendants, except Lacy, constituted a partnership, doing business under the firm name of Roadway Transport Company. Lacy was an employee of the other defendants, a part of his emplo}ment being that of a truck driver. (Throughout the whole record Roadway Transport Company is treated as a defendant, independently of the other defendants resulting in a useless encumbrance of the record since, not being incorporated nor shown to be a joint stock company or association, it was not a legal entity with capacity to be sued independently of its members, and, of course, could interpose no defense not fully available to the individuals who were parties.)

There are no conclusions of fact or law in the record showing the basis of the judgment of the court.

One ground upon which the correctness of the judgment is challenged is that the testimony showed conclusively that plaintiff was guilty of contributory negligence. Contributory negligence as a ground of defense usually consists of three issues: (1) an alleged act or omission of, or chargeable to, the plaintiff; (2) that such act or omission was negligence; and (3) if negligence, whether same was a proximate cause of the injuries. Neither contributory negligence as a ground of defense, nor any of its said component issues,, was material in the trial of the pleas of privilege. If the evidence raised issues of fact upon which the trial judge as the trier thereof was warranted in concluding that the suit was one based upon “a crime, offense, or trespass” committed in Nolan County, then the judgment overruling the pleas of privilege was proper, even if the evidence did show conclusively that plaintiff was guilty of contributory negligence. No other conclusion, we think, is permissible if full recognition be given to the principles declared in many of the decisions, notably, Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, and Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

We sustain the contention that a “showing that the defendant left an unlighted truck standing on the highway at night is not a showing of active trespass which would justify depriving defendant of the right to be sued in the county of his domicile under section 9 of Art. 1995, Revised Statutes.” Negligence may or may not involve a trespass. Unless it does-then a suit seeking to enforce a liability for such negligence is not a suit based upon trespass within the exception under consideration. Plaintiff’s controverting plea by its own averments affirmatively showed that the suit was not one based upon a trespass.

But that fact is not conclusive that the judgment was improper. The record does not show that the trial judge entertained any such view. The presumption is that the court concluded that a crime was shown to have been committed in Nolan County. A crime, unlike a trespass, may consist of either acts which constitute a trespass or other elements which do not. Sproles v. Copeland, Tex.Civ.App., 67 S.W.2d 1076.

We are unable to sanction the contention that the judgment was wrong on the ground that the testimony of plaintiff established conclusively that the injury was the result of a new and independent cause. It 'may be granted that but for the position of the third party’s automobile on the highway and the effect of the lights thereon, claimed to constitute the new and independent cause, no injury would have resulted. That is not the test. The real test is, should the defendant, in the exercise of ordinary care, have reasonably foreseen as probable some such injury as that which did in fact' result, even though caus- ' ed, mediately or immediately by other agencies, such as that which appellant contends was a new and independent cause ? A new and independent cause is not shown as a matter of law, unless also, as a matter of law, the alleged negligence of the defendant was not a proximate cause of the injury. Whenever an issue of proximate cause is, under the evidence, one of fact, so also under the same evidence an issue of new and independent cause is an issue of fact. In our opinion the evidence in this case raised an issue of fact as to .whether the alleged negligence of the defendant was a proximate cause of plaintiff’s injury.

A more serious question presented, perhaps, is this: Assuming that there was evidence to warrant the conclusion ;that the suit as to Lacy, the employee truck driver, is one based upon a crime committed in Nolan County, is that conclusive also as against the pleas of privilege of the other defendants who committed no crime? Our earlier thought upon this question was that the applicability of exception 29a to the general rule of venue ás prescribed in Vernon’s Ann.Civ.St. Art. '1-995, was involved and that the question was presented of whether the defendants, other than Lacy, were necessary parties to the suit against .Lacy. Upon further consideration, however, we are satisfied no such questions are involved. Application of the particular exception to the general rule of venue — that a suit based upon a crime may be brought and maintained in .the county where the crime was committed-does hot require that all of the defendants have participated in the crime. There is not one cause of action alleged as against Lacy and another and different cause of action or causes of action alleged against the other defendants. A single cause of action is alleged against all. That cause of action being the sole subject matter of the suit, it logically results, we think, that the suit either is, or is not, one based upon a crime. The statute prescribing the exception does not by its terms require that the liability sought to be enforced by the suit shall result solely from the commission of a crime. According to the statute it is sufficient if the suit be based upon a crime. If, as to one defendant it be a suit básed upon a .crime, then obviously it is such 'a suit as to all defendants against whom the same cause of action is sought to be enforced.

This conclusion results from the language of the particular exception to the general rule of venue involved, and, of course, can afford no basis for any generalizations affecting other exceptions, of a different nature.

Upon the whole, it is our conclusion that no error in the judgment has been shown, that the judgment should be affirmed, and it is accordingly so ordered.


text:
    HIGHTOWER OIL & REFINING CORPORATION v. HEYSER.
    No. 8911.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1939.

      Brown, Prescott & Bohannon, of Brown-wood, and J. E. Brown, of Brady, for appellant.
    Levie Old, of Brownwood, for appellee.
   BAUGH, Justice.

Appellant sued appellee in the County Court of Brown County for a balance of $343.48 claimed to be due it by Heyser for merchandise sold by it to him. The trial court sustained a special exception to appellant’s petition on the ground that the debt sued for was barred by the two-year statute of limitations, and rendered judgment for appellee accordingly; hence this appeal.

The merchandise was sold and delivered to Heyser on numerous- dates between March 6, 1935, and July 11, 1935. This suit was filed on December 20, 1938. While appellant alleged in its petition that its debt was founded upon written contracts, it attached thereto a stated account, manifestly taken from its books, and also as an -exhibit an instrument (common to all items), upon which it predicated its allegations that its cause of action was founded upon contracts in writing. This instrument wa's as follows: '

Appellant’s contention is that having alleged in its petition a debt founded upon instruments in writing to which the four-year statute of limitations (Sub. 1 of Art. 5527, R.C.S. 1925) would apply,, the trial court erred in sustaining appellee’s plea of limitation of two years, raised only by special exception.

The general rule is that: “The defense of limitation may be raised by exception only when it affirmatively appears from the face of the petition that the cause of action asserted is barred.” See 28 Tex.Jur., § 198, p. 292 and cases cited. It .is the contention of appellant that itg pleadings brought it within, this rule. But for the instruments attached to its petition upon which the allegations in the body of the petition were abased, its contention would be correct.

It affirmatively appears, however, that its general allegations of a contract in writing are but appellant’s interpretation of the instruments relied upon and made a part of the petition. When that is done the alleged contract controls the character of the cause of action asserted, and not the pleader’s interpretation of such contract. Behan v. Ghio, 75 Tex. 87, 12 S.W. 996; Rowles v. Hadden, Tex.Civ.App., 210 S.W. 251; Æna Ins. Co. v. Long, Tex.Civ.App., 47 S.W.2d 854, 856; 10 Tex.Jur., § 288, p. 497.

If, therefore,- the above copied instrument does not constitute a written promise to pay, it is clear that appellant’s debt is but a suit upon open account.

In Bailey-Moline Hdw. Co. v. Modern Woodmen, 89 S.W.2d 246, the Court of Civil Appeals at Fort Worth had before it an instrument to all intents and purposes the same as that involved in the instant case. That court held that it was but a “sales slip” or memorandum of sale, and not a contract in writing to pay. Clearly that is all that the instrument here involved can be considered. It was manifestly but a memorandum, used for bookkeeping purposes, showing who made the sale, the quantity and price of the goods, and who received them. It does not show whether such goods were sold for cash or on credit. The memorandum would obviously have been the same had cash been paid for the goods at the time. It embodies no promise to pay; nor does it purport to be a written order - for goods for future delivery. That it was treated merely as a memorandum for bookkeeping purposes by appellant is demonstrated by the stated account of Heyser to appellant, obviously taken from appellant’s books, also attached to its petition as an exhibit, showing numerous pui chases and credits, on Heyser’s account with appellant.

Under these circumstances, we think it appears on the face of the petition itself, which, as stated, is predicated upon these memoranda or sales slips, that no written contract was pleaded; but that the only cause of action asserted was upon an open account. That being true the defense of limitation could be raised by special exception and the trial court did not err in sustaining such exception. The judgment will therefore be affirmed.

Affirmed.