author: BAUGH, Justice. On Appellant’s Motion for Rehearing.

text:
    RAILROAD COMMISSION et al. v. ARKANSAS FUEL OIL CO. et al.
    No. 9034.
    Court of Civil Appeals of Texas. Austin.
    Feb. 5, 1941.
    Rehearings Denied Feb. 26,1941.

      Gerald C. Mann, Atty. Gen., and Edgar W. Cale, Asst. Atty. Gen., for Railroad Commission.
    Underwood, Johnson, Dooley & Wilson, of Amarillo, and Saye & Saye, of Long-view, for Maud Whittington, executrix of J. O. Whittington’s estate.
    Joe E. Estes and Phillips, Trammell, Estes, Edwards & Orn, all of Fort Worth (H. C. Walker, Jr., and James B. Henderson, both of Shreveport, La., of counsel), for appellee Arkansas Fuel Oil Co.
    Frank J. Scurlock and Turner, Rodgers & Winn, all of Dallas (Donald Campbell, of Tulsa, Old., of counsel), for appellee Stanolind Oil & Gas Co.
   BAUGH, Justice.

This is a Rule 37 case. The permit involved was to operate a third well already drilled on a 3.77-acre tract in the fairway of the East Texas field in Gregg County, which tract was owned and leased by a colored Baptist Church, variously desig-natéd, but hereinafter referred to as the church. The tract of land was approximately square in dimensions. 1.3 acres, approximately square, in the northeast corner of said tract, was used as a cemetery, leaving the other church property in the form of an L. The original lease made by the church in 1931 did not include the cemetery. This lease was acquired by Whit-tington and in November, 1931, he drilled, under permit from the Railroad Commission, well No. 1, located near the center of the entire 3.77-acre tract, and about 20 feet south of the south line of the cemetery lot. Thereafter, the heirs of J. H. Rucker, who originally conveyed the property to the church in 1884, which deed provided that if the property ceased to be used for the purposes stated in the grant, it should revert to his estate, sued to recover said land. This suit was compromised and settled by an agreed judgment of June 27, 1932, setting aside to the Ruck-er heirs a .54-acre tract out of the southeast corner of the 3.77-acre tract extending from its south line to the south line of the cemetery lot. Lease on this .54-acre tract was acquired by the Danciger Oil & Refining Company, and a well drilled in the center of that tract in October, 1932. In 1934, the church leased the cemetery 1.3-acre tract. The lessees of this tract applied to the Commission for a well on the cemetery lot, which application was protested by Whittington and the other adjacent leaseholders, who are appellees in the instant suit, and was by the Commission refused. In March, 1934, Whitting-ton acquired the lease on the cemetery tract, thus giving him a leasehold estate in 3.23 acres, or on all of said tract except the .54-acre Danciger tract in the southeast corner. Whittington then applied for a second well on his 3.23 acres to be located in the southwest corner; that is, south and west of the cemetery tract and of his well No. 1. This application was protested by interested parties and denied by the Commission. Thereupon Whittington filed suit in the Federal District Court to enjoin the Commission from interfering with his drilling an additional well on his 3.23 acres, not at the place applied for, but some 200 feet north of such location thus placing it in the northwest, instead of in the southwest, portion of the 3.23-acre tract, about midway of the west line of the cemetery tract and 20 feet w;est of such line. This injunction was granted by the Federal Court on December 26, 1934, and Whittington drilled his well No. 2 in January, 1935. Suit was thereupon filed by the Commission, in which the Arkansas Fuel' Oil Company and the Stano-lind, adjacent leaseholders, intervened, to set aside the injunctive order of December 25, 1934. That case was finally heard before a three-judge Federal Court; a report of its disposition thereof, wherein a full statement of all the facts is found, appears in Whittington v. Smith, D.C., 16 F.Supp. 448, 452. In that suit Whittington attacked the constitutionality of Rule 37, and urged the necessity for an additional well on his 3.23 acres to prevent confiscation of his property, to prevent waste, etc. The Commission there pleaded, and offered extensive proof to show, that such second well would cause waste, was not needed to prevent confiscation of Whit-tington’s property, but would give him an undue drainage advantage over his neighbors. Meantime, the Commission had ordered the well, already drilled, to be closed. After a full hearing, the Federal Court dismissed Whittington’s bill for want of equity, limiting its decision, however, as follows: “What we determine, and all we determine, is that, under the facts here, plaintiff may not have the aid of a court of equity to restrain interference by the commission with his well drilled in violation of the conservation laws of the state and the rules of the commission * * *

This judgment was entered on August 18, 1936. In March, 1937, Whittington applied to the Commission for a permit to open and operate this well No. 2, which permit the Commission granted after an extensive hearing, on,July 29, 1937. This order is the one here under attack. In a trial to the court without a jury the court set aside as invalid said order or permit and enjoined the operation of the well. From this judgment, the Railroad Commission and Mrs. Maud Whittington, independent executrix, made a party upon the death of J. O. Whittington, have appealed.

The first question presented is whether the Railroad Commission is estopped by its 1934 order denying Whittington’s application for a second well on the 3.23-acre, tract, and by its pleading and proof offered in the trial in the Federal Court, to the effect that such well would cause waste, and was not needed to prevent confiscation of property and was otherwise illegal, to now come into court and urge the direct opposite to sustain its order of July 29, 1937, no material change of conditions having occurred meantime, except such as are applicable to the field as a whole.

While the Federal Court limited its decision to the grounds above stated, it is not controverted that the Railroad Commission made common cause in that court with the adjacent leaseholders in defense to Whittington’s suit; and there urged by pleadings and extensive proof that the well here in controversy would cause waste, and was not necessary to prevent confiscation of Whittington’s property. The evi--dence in the Federal Court, a transcript of which has been filed in the instant case, amply sustained both contentions. While it is now settled that though the Commission may have refused a permit, if and when conditions changed, a leaseholder may again apply to, and obtain from, the Commission a permit for such well if such changed conditions warrant it. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73; Edgar v. Stanolind Oil & Gas Co., Tex.Civ.App., 90 S.W.2d 656, writ refused. But this necessarily iifiplies that —no issue of waste being here involved— such changes reasonably affect the property rights of the applicant. That is, that they will cause confiscation of his property. Since 1936, four additional wells had been drilled on the 100-acre Barnsdall lease to the south of the Whittington tract, and two on the 146-acre Stanolind lease to the east; but the closest of these wells to the one here involved was more than 1,150 feet, and all these additional wells gave the offsetting leases a density of only one well to approximately 5½ acres. Whereas, if the 3.77-acre tract be treated as a unit, which we conclude it must be, it already had, without the well here in controversy, two wells, or a density of one well to 1.88 acres, which wells had been producing since 1931 and 1932, respectively.

On the issue of estoppel of the Railroad Commission to take and urge in the instant case a directly opposite position from that urged in its pleadings and proof involving the same land and the same well in the Federal Court, appellants now urge that whatever may have transpired in the .former suit in the Federal Court, under Art. 4411, R.C.S., and several cited cases, particularly City of San Angelo v. Deutsch, 126 Tex. 532, 91 S.W.2d 308, and Railroad Commission v. Lacy, Tex.Civ.App., 100 S.W.2d 118, any waivers, acts, mistakes or negligence of the then Attorney General in that case could not prejudice the rights of the State in the instant case. Manifestly these authorities have no application to the situation here presented. The Railroad Commission was a party to that suit, represented by the Attorney General, but itself actively participating therein seeking to uphold its own order on specific grounds. Nor is the issue here presented one in which only the State is interested. No issue of waste, the one in which the State is primarily interested, is here involved. The permit was granted on the recited ground to prevent confiscation, as between him and the adjacent property owners, of Whittington’s property, and as an exception to the general spacing rule. In such case the controlling issue involved relates primarily to the private property rights of the individuals concerned, the State’s interest being to see that these property rights are properly protected. McCutchin v. Sun Oil Co., Tex.Civ.App., 139 S.W.2d 848, writ refused.

The general rule is now well settled that a party to one law suit who takes a particular position by pleading, admission or argument, wherein a judgment is rendered in his favor, is estopped from taking an inconsistent position in a subsequent suit involving the same parties and the same subject matter. 26 Tex.Jur., § 364, p. 35, and numerous cases cited in support of the text. It is likewise a general rule that when the State enters the courts as a litigant it casts off its robe as a sovereign, comes as would an individual litigant, and is bound by the judgment rendered as would an individual litigant. State v. Cloudt, Tex.Civ.App., 84 S.W. 415; State v. Ortiz, 99 Tex. 475, 90 S.W. 1084; State v. Stanolind Oil & Gas Co., Tex.Civ. App., 96 S.W.2d 297.

We are inclined to the view that the Railroad Commission was, under the authorities, estopped to take in the instant suit a position diametrically opposed to that taken in the Federal Court, the same well, the same land, and the same parties, .though not in the identical capacities here-as in the Federal Court, being involved in both; and there being no material change in conditions between the time they denied Whittington’s application in 1934 and when they granted it in July, 1937.

Regardless of this, however, it is clear that the permit in question is invalid, as held by the trial court, for two 'reasons: First, because it was granted on a voluntary subdivision requiring an exception to Rule 37, after same became applicable to the 3.77-acre tract; and, second, because no confiscation of Whittington’s property without it was shown. The subdivision of the 3.77-acre church property was made by an agreed judgment between the Rucker heirs and the other claimants in 1932, after well No. 1 had already been drilled on said tract. This constituted a voluntary subdivision, giving no - rights thereunder to develop the tracts separately under the holding originally announced in Sun Oil Co. v. Railroad Commission, Tex.Civ.App., 68 S.W.2d 609, pursuant to which the Commission promulgated its own rule against same on May 29, 1934. See also Humble Oil & Refining Co. v. Lassater, Tex.Civ.App., 120 S.W.2d 541; Humble Oil & Refining Co. v. Potter, Tex.Civ.App., 143 S.W.2d 135, 136.

On the question of confiscation, treating the 3.77 acres as one tract with two wells already drilled thereon, in addition to the disparity in density as between this tract and the adjoining leaseholds, it was shown that the underground conditions, sand thickness, bottom hole pressure, well potentials, well allowables, etc., in this area were substantially the same; that up to August 1, 1937, this tract had produced 37,-754 barrels of oil per acre, as against 7,-795 barrels per acre produced from the offsetting leaseholds, a per acre advantage in favor of the 3.77-acre tract of 4.84 to 1. Likewise it had produced, with the two wells already situated thereon, 668 barrels per acre foot of sand thickness beneath it, as against 148 barrels per acre foot of sand thickness on offsetting leases, an advantage 4.51 to 1; and that the well here involved would greatly increase this disparity.

It is now settled that no confiscation, as that term is used in the statutes and the rules of the Commission, results if the applicant has, with the wells already in operation, “been given a fair and equal opportunity with other producers on surrounding tracts within the drainage area to recover his fair share of the oil in' place beneath his tract.” Ward Oil Corporation v. Overton Refining Co., 139 S.W.2d 292, 293, writ refused; Edgar v. Stanolind Oil & Gas Co., Tex.Civ.App., 90 S.W.2d 656, writ refused. Under the un-controverted’ facts of the instant case, the requirements of the law, without the permit here involved, have manifestly been more than met. The judgment of the trial court will therefore be affirmed.

Affirmed.

On Appellant’s Motion for Rehearing.

Appellant, Mrs. Maud Whittington, in her separate" motion for rehearing calls attention to the inaccuracy of our statement in the original opinion that the Railroad Commission brought suit in the Federal Court to set aside the injunctive order granted by that court on December 26, 1934. No independent suit was filed by the Commission; but such affirmative relief was sought by the Commission in that court through answer filed by the Commission to the suit as originally filed by Whittington. The result is the same, however, in either event. This correction is therefore made. With such correction said appellant’s motion is overruled.

Overruled.


source: Caselaw Access Project

author: BAUGH, Justice.

license: Public Domain

text:
    T. S. C. MOTOR FREIGHT LINES, Inc., v. VANWAY EXPRESS CO., Inc., et al.
    No. 9086.
    Court of Civil Appeals of Texas. Austin.
    Feb. 12, 1941.
    Rehearings Denied March 5, 1941.
    Rawlings & Sayers, and Nelson Scur-lock, all of Fort Worth, for appellant.
    James J. Shaw, George P. Kirkpatrick, and M. S. Lindsay, all of Houston, for ap-pellee Vanway Express Co., Inc.

      Gerald C. Mann, Atty. Gen. and Glenn R. Lewis, and Geo. W. Barcus, Asst, Attys. Gen., for appellee State of Texas.
   BAUGH, Justice.

Suit was by appellant against the Van-' way Express Company, Inc., and the Railroad Commission, to cancel two certificates of convenience and necessity issued by the Commission, authorizing the holder to operate motor trucks as common carriers for hire over designated highways, and between designated points, from Houston to Port Arthur via Beaumont (Cert. No. 2109) ; and from Beaumont to the Texas-Louisiana State line via Orange (Cert. No. 2796) ; to set aside an order of the Railroad Commission of May 29, 1939, approving the sale and transfer of these certificates to Vanway Express Company, Inc.; and to enjoin any operations by the Vanway under them. The appellant is a competing carrier over the same routes. Trial was to the court without a jury, and the relief sought denied, from which the T. S. C. Motor Freight Lines has appealed.

A history of these certificates will contribute to a better understanding of the issues presented in the instant case. They were originally issued to P. B. Adkins, and by him sold and transferred, with approval of the Railroad Commission, to W. W. Fulbright, doing business under the trade name of L. S. & P. Freight lines, on January 30, 1934, who began operations under them. Soon thereafter a corporation, with Fulbright as president thereof, was formed under the name of L. S. & P. Freight Lines, Inc., and though these certificates were never transferred to the corporation on the records of the Railroad Commission, nor a sale approved by the Commission, the corporation continued operation under these certificates. In January, 1935, this corporation was, at the instance of Fulbright and others, placed in the hands of a receiver by suit in the District Court of Jefferson County, Texas, and Gabe Hebert appointed receiver, who continued such operations for a short time thereafter, when all operations under such certificates appear to have ceased entirely, due to the fact, apparently, that most of the equipment used in such operations was! either turned over to creditors or sold to satisfy debts of the corporation.

On April 9, 1935, after a hearing, the Railroad Commission ordered these two certificates cancelled for failure of the operators to remit COD collections to the shippers. On April 24, 1935, Hebert, as receiver for the L. S. & P., Inc., filed a motion with the Commission to reinstate these certificates and permit him, as receiver, to operate under them. On May 13, 1935, the Commission, in an order made upon such motion, recited that no application had been made to it for the sale of such certificates, and no sale thereof had been authorized; that prior to the April 9th order of cancellation an injunction had been issued out of the District Court of Jefferson County, without its knowledge, restraining the Commission from interfering with the operation by the receiver; and that subsequent to the entry of the April 9th cancellation order, the Commission had been cited for contempt for disobeying that injunction. Its order of May 13, 1935, provided that the April 9th order of cancellation “is hereby rescinded, and said certificates reinstated, pending the final disposition thereof by a proper court of competent jurisdiction and of this Commission.”

Thereafter, with approval of the District Court of Jefferson County, Hebert, as receiver for L. S. & P., Inc., sold as the property of that corporation, these two certificates to the Van way Express Company, Inc., which sale was approved by the District Court of Jefferson County on July 8, 1935. Upon failure or refusal of the Railroad Commission to approve this sale, the Vanway filed a mandamus suit in Jefferson County District Court to compel it to do so. The mandamus was granted, but upon appeal to the Court of Civil Appeals at Beaumont that judgment was reversed, and the whole matter ordered transferred to the District Court of Travis County. See Railroad Commission v. Vanway Express Company, 103 S.W.2d 814.

When the suit was transferred to Travis County, the Railroad Commission filed its plea in abatement to the Vanway’s suit to compel the transfer to it of these certificates, one of the grounds specifically pleaded for abatement being that these two certificates, after notice and hearing had thereon, had been cancelled by a legal and final order entered on April 9, 1935, from which no appeal was ever taken; and “that no valid, legal order rescinding said cancellation has been entered.” Consequently, the certificates having been can-celled, and no longer in force, there was nothing to transfer, and no approval of a transfer to anyone could be given by the Commission. In the trial of that suit, the trial court rendered judgment on September 24, 1937, sustaining the Commission’s plea in abatement after, as recited in said judgment, “having heard the evidence in support of and against same * * That judgment became final.

Meantime, the original application of the L. S. & P. Freight Lines, Inc., for .the sale and transfer of these certificates to the Vanway, filed with the Commission on July 22, 1935, appears to have remained on its docket undisposed of. After the litigation had ended the Commission heard further evidence thereon in June, 1938, entered its order on October 4, 1938, wherein it recited generally the history of these certificates as above outlined, again concluded that these certificates were no longer in force but had been cancelled by its order of April 9, 1935, which cancellation was adjudicated by the September 24, 1937, judgment of the District Court of Travis County, and for that reason dismissed the application of the L. S. & P. for approval of a transfer to the Vanway. This order was not attacked in any manner.

Thereafter,' upon application filed on May 26, 1939, by W. W. Fulbright, doing business as L. S. & P. Freight Lines, the Commission by order dated May 29, 1939, approved the sale and transfer of these two certificates to the Vanway Express Company, Inc., and authorized the use of twelve trucks in operation thereunder. This order is the one here under attack. The grounds of attack are:

1. That the order-was entered and certificates issued ex parte, without notice to appellant, and without a hearing before the Commission.

2. That the certificates had already been cancelled by a valid Commission order of April 9, 1935, and were no longer in force;

3. That the order of May 13, 1935, which undertook to rescind that of April 9th, was entered without notice or hearing, was therefore ineffective to suspend the cancellation order, and had been so adjudged by the District Court of Travis County, on September 24, 1937; and

4. That the Commission’s own order of October 4, 1938, again holding that the certificates had been cancelled, was a final order, not appealed from, nor set .aside, and therefore binding on the Commission.

It is not controverted that no operations were conducted under these certificates from sometime in 1936 until after the first of January, 1940. The certificates were carried on the insurance records of the Railroad Commission in the name of “L. S. & P. Freight Lines, Beaumont, Texas, W. W. Fulbright,” until sometime in 1935, and thereafter as “L. S. & P. Freight Lines, Gabe Hebert, Receiver W. W. Fulbright & or L. S. & P. Freight Lines,” and the insurance policies required by law of such operators to protect shippers were kept continuously in force up to May, 1939, when the purported transfer to Vanway was made.

The trial court found in the instant case that both the order of April 9, 1935, can-celling these certificates, and that of May 13, 1935, reinstating them, were valid orders; but that the order of April 9th had never become final; that the order of the Commission of October 4, 1938, was a valid order, but that Fulbright was not a party to it; that the Travis County District Court judgment of September 24, 1937, did not bind Fulbright because he was not a party to it; that since these certificates were carried on the records of the Railroad Commission at all times in Fulbright’s name, he still owned them and consequently was entitled to sell and transfer them, with the Commission’s approval in 1939; and that the order here complained of did not amount to issuance of new certificates, requiring notice and hearing by the Commission and a finding of public convenience and necessity for such service.

The first contention made by appellant is that the Commission’s order of October 4, 1938, was a final valid order of the Commission and conclusively disposed of these two certificates. This order, after reciting numerous prior proceedings, stated: “The Commission, after reviewing the above facts, makes its findings in accordance therewith and finds that there are now no valid and subsisting certificates as above described in existence subject to sale and transfer.”

These findings were predicated not only upon the orders of April 9, 1935, and May 13, 1935, and the proceedings in the Jefferson County District Court, and the Travis County District Court, but also upon an additional hearing upon the application to sell the certificates to the Vanway conducted at Houston, Texas, on June 22, 1938, after all the former proceedings had been concluded. It cannot be said, therefore, that the October 4, 1938, order was only an attempt by the Commission to review and interpret its former orders, or to interpret the district court judgments. There is nothing to show what evidence was before the Commission at the Houston hearing; but .the fact that such hearing was held, and evidence heard thereat, indicates that the order of October 4th was not predicated wholly on prior proceedings and orders. So far as this record shows,' there may have been ample evidence adduced at the Houston hearing to sustain the finding- that the certificates were no longer in force, independent of and in addition to all prior proceedings had with reference to these two certificates. While the order entered was to dismiss the application for transfer, the specific findings on which it was entered were embodied in the order, and necessarily became a part of it. This order was a final order, and not attacked in any manner.

We think it is immaterial that W. W. Fulbright in his individual capacity was not a party to that application, as found by the trial court, nor to the hearing on which the order was entered, if such were a fact. It is not controverted that he was president of the corporation formed in the same name under which he acquired these certificates in 1934; that after the corporation was formed it operated under, and claimed to be the owner of, these certificates; that Fulbright and others caused the corporation to be placed in the hands of a receiver early in 1935, and claimed these certificates as one of its assets; that the corporation, through its receiver, applied to sell them as its property to the Vanway with full knowledge of Fulbright; that when Fulbright in his individual capacity sought to interfere with such sale he was found guilty of contempt of court by the Jefferson County District Court; and that in all the proceedings in the District Court of Jefferson County, and in the District Court of Travis County, these certificates were considered and dealt with as the property of the corporation,, manifestly with the full knowledge of Fulbright. Clearly, we think, after their status had thus been determined by the courts, as the property of the corporation of which Fulbright was the president, he cannot now be heard to contend that he and not the corporation, owns and has a right to sell same, merely because they had not been transferred by him to the corporation he had formed on the records of the Railroad Commission. Any valid finding, therefore,' by the Commission, or by judgment of the District Court, that the certificates had been, cancelled and were no longer in force, would be binding upon him.

It is to be noted that the so called reinstatement order of May 13, 1935, was entered because of the suit pending in the Jefferson County District Court, and because of the injunction issued out of that court, involving these certificates, and expressly provided that same be effective “pending the final disposition thereof by a proper court of competent jurisdiction and of this Commission.” ■ It is manifest, we think, that the purpose and effect of this order was not to determine that the certificates should be reinstated on the merits of the controversy, but that the order of cancellation of April 9, 1935, be merely held in abeyance until the suit then pending involving them were finally disposed of. This was done in the judgment of September 24, 1937, which.necessarily must have sustained as valid the cancellation order of April 9, 1935. And when the matter was again presented to the Commission it again determined by its order of October 4, 1938, that said certificates were no longer in force. That was a final order not appealed from, and was thereafter binding on the Commission. It cannot now be heard in the instant case to say that the certificates in question were valid in May, 1939, when it had twice by. final orders of its own theretofore determined otherwise, and had so pleaded in the suit against it. in the District Court of Travis County, and based on such pleading and proof, had procured a judgment in its favor on such issue. See Railroad Commission v. Arkansas Fuel Oil Co., Tex.Civ.App., 148 S.W.2d 895; 26 Tex.Jur., § 364, p. 35. These orders, and the District Court judgment, were clearly binding on the Commission, the Van way, and L. S. & P. Freight Lines, Inc. And because of the facts above stated would, we think, also be clearly binding on Fulbright. He could not solemnly assert in one judicial proceeding that the corporation of which he was president owned the certificates, and in a subsequent proceeding in a different court take an inconsistent position.

We are also of the opinion that the judgment of September 24, 1937, which necessarily adjudicated the validity, vel non, of these certificates, would be stare decisis of this question, and thereafter binding against subsequent claimants thereof whether parties to the original proceedings or not. See 26 Tex.Jur., § 368, p. 46, and authorities there cited.

It follows, therefore, that the approval by the Commission in May, 1939, of the sale and transfer of certificates no longer in force; could vest no rights thereunder in the purchaser. A renewal or revival thereof could be had only' upon proper application made to the Commission, notice to parties affected, a hearing thereon and a finding by the Commission, as contemplated by Art. 911b, Vernon’s Ann. Civ. St., as variously amended, that public convenience and necessity authorized such service, which had been abandoned from sometime in 1936 until after January 1, 1940.

For the reasons stated, the order of the Commission of May 29, 1939, approving the sale and transfer of said certificates to the Vanway Express Company, Inc., is set aside; and the cause reversed and remanded to the trial court for such ancillary relief as may be appropriate.

Reversed and remanded.


author: MURRAY, Justice.

text:
    In re BURGES’ ESTATE.
    No. 10907.
    Court of Civil Appeals of Texas. San Antonio.
    March 5, 1941.
    Boyle, Wheeler, Gresham & Terrell and Richard T. Davis, all of San Antonio, for appellant.
    Leonard Brown and Russell B. Wine, both of San Antonio, for appellee.
   MURRAY, Justice.

On June 4, 1937, T. R. Gray filed in the Probate Court of Bexar County, Texas, an application to be appointed guardian of the person and estate of Clara' Gray Burges, alleging that she was a person of unsound mind residing in Bexar County, Texas, and that her principal estate was likewise located in Bexar County, Texas. Personal service was had on Clara Gray Burges in Bexar County, Texas, and notice of said application was also given by posting.

On June 22, 1937, the day set for the hearing, Clara Gray Burges did not appear and the court appointed Bernard Ladon, Esquire, guardian ad litem of the said Clara Gray Burges for the purpose of defending the suit. The guardian ad litem filed a corn test setting up, among other things, that T. R. Gray was not the proper person to be appointed guardian of the person and estate of Clara Gray Burges, but that her husband, A. W. Burges, was a proper person to be so appointed. Thereafter, A. W. Burges, husband of Clara Gray Burges, renounced his right to be appointed guardian of the estate of his wife and asked the court to appoint the Frost National Bank of San Antonio as such guardian. On the same day, T. ,R. Gray filed a renunciation of his right to be appointed guardian of the person and estate of Clara Gray Burges and requested that the Frost National Bank of San Antonio be appointed as guardian of the estate and that A. W. Burges be appointed guardian of the person of Clara Gray Burges. Thereafter, the court entered its judgment finding that Clara Gray Burges was a person of unsound mind and incompetent of handling and transacting her affairs, and appointed Frost National Bank of San Antonio guardian of her estate and A. W. Burges, her husband, guardian of her person. Both the Bank and Burges duly qualified by giving bond and taking the oath required by law.

Thereafter, on March 16, 1938, Clara Gray Burges filed a motion in the Probate Court of Bexar County, Texas, asking that the entire proceedings be abated and, in the alternative, that she be declared to be a person of sound mind. On October 3, 1938, a hearing was had in the Probate Court of Bexar County and judgment entered declaring Clara Gray Burges to be a person of sound mind and discharging Frost National Bank 'as guardian of her estate. An appeal was taken from this order to the 37th District Court of Bexar County. The cause was then transferred to the 73rd District Court of Bexar County, and upon hearing in that court a plea in abatement was sustained upon- the grounds that Clara Gray Burges was a resident of the State of California at the time the Frost National Bank of San Antonio was appointed guardian of her estate.

Judgment was entered vacating the appointment of Frost National Bank as guardian of the estate. From this judgment the Frost National Bank has appealed.

This appeal presents but one question, whether or not the Probate Court of Bexar County, Texas, had jurisdiction to hear an application for an appointment of a guardian of the person and estate of Clara Gray Burges when she was at such time a resident of the State of California. Article 4132, Vernon’s Civil Statutes provides, among other things, that a guardianship of the estate of a nonresident person may be granted when such person has an estate located within the State of Texas, and it is made to appear that necessity exists for such guardianship. This article clearly gives the Probate Court of Bexar County jurisdiction to appoint a guardian of the estate of Clara Gray Burges if it was shown that she was a person of unsound mind and had an estate situated in Bexar County, Texas, of the probable value of $150,000. She was in Bexar County at the time the guardianship proceedings were instituted, she was personally served with a citation and notice of such proceedings was also given by posting. After she was served with such citation, she left Bexar County and returned to California. A guardian ad litem was duly appointed to represent her best interests at the hearing. It would seem,' therefore, that the Probate Court of Bexar County would have jurisdiction to appoint a guardian of her estate, unless Article 4132 is invalid and unconstitutional.

In the case of Redmon v. Leach, 130 S.W. 2d 873, the Dallas Court of Civil Appeals, in an opinion by Justice Looney, held that Article 4132 was unconstitutional and that the Legislature of this State did not have authority to enact a law giving to the probate courts of this State jurisdiction to appoint a guardian of the estate of a person who is a nonresident of the State of Texas. In that case the Supreme Court dismissed an application for writ of error for want of jurisdiction, correct judgment. Inasmuch as Justice Looney gave a number of other reasons for the conclusion reached in the opinion, we take it that the Supreme Court did not mean to approve that part of the opinion which held Article 4132 to be invalid.

The Legislature of this State has the power and authority to enact any statute that is not in conflict with the Constitution and valid laws of the United States and of the Constitution of this State. De Shazo v. Webb, 131 Tex. 108, 113 S.W.2d 519; Lower Colorado River Authority v. McCraw, 125 Tex. 268, 83 S.W.2d 629; Charles Scribner’s Sons v. Marrs, 114 Tex. 11, 262 S.W. 722. We are unable to see any reason why the provisions of Article 4132 are invalid. Such provisions do not conflict with the Constitution of the State of Texas, and the Supreme ' Court of the United States has definitely held that the Legislatures of the various states do have the power to authorize the courts of one state to pass upon the social status of citizens of other states. In Hoyt v. Sprague, 103 U.S. 613, 631, 26 L.Ed. 585, the Supreme Court of the United States, speaking through Justice Bradley says:

“As the question before us is one of power and not of comity, we think there can be no doubt that the legislature of Rhode Island, where the property was situate, had power, first, to pass laws for the appointment of guardians of the property of nonresident infants, situate in that State; and, secondly, it had power to prescribe the manner in which such guardians shall perform their duties as regards the care, management, investment, and disposal of such property; and that this power is as full and complete as where the minors are domiciled in the State.

- “Not only did the power exist, but we find that it was exercised. The laws of Rhode Island gave explicit power to the Probate Court to appoint a guardian of the property of non-resident infants. The act of October 31, 1844, declared that ‘the courts of probate of the several towns are hereby authorized and empowered to appoint guardians, when occasion shall require, over the property or estate of persons who reside out of the State and possess property therein.’ ”

The trial court erred in holding that the Probate Court of Bexar County, Texas, did not have jurisdiction to appoint a guardian of the estate of Clara Gray Burges and in sustaining the plea in abatement. Accordingly, the judgment will be reversed and the cause remanded to the District Court.


author: FUNDERBURK, Justice.

text:
    CRAWFORD v. DAVIS et al.
    No. 2098.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 7, 1941.
    Rehearing Denied Feb. 28, 1941.

      Blanton & Blanton, of Albany, for appellant.
    B. C. Chapman, of Haskell, E. V. Hard-wick, of Stamford, and Ratliff & Ratliff, of Haskell, for appellees.
   FUNDERBURK, Justice.

J. M. Crawford, as plaintiff, alleged that he was the owner of a note for the principal sum of $2,000 due by J. C. Buie, on January 1, 1930. This note had been in the hands of R. C. Couch who collected and credited certain payments thereon. In December, 1934, Crawford and Couch placed the note with Tom Davis, an attorney, with instructions to file suit upon the same before it became barred by limitation. In order to facilitate handling, at the attorney’s suggestion, Crawford indorsed the note, without recourse, to said R. C. Couch. Davis, the attorney, filed suit in the District Court of Haskell County to recover the balance due on the note and to foreclose a lien securing the same, on December 29, 1933. The defendant in that suit (J. C. Buie) resided in Johnson County. Citation was not issued until August 7, 1934, and not served until September 10, 1934. In a trial of the case on November 8, 1937, judgment was rendered for the plaintiff R. C. Couch for $2,837.46 with foreclosure of the lien. Upon appeal the judgment of the trial court was, on March 9, 1939, reversed and a “take nothing judgment” rendéred against the plaintiff, Couch, on the ground that, as a matter of law, the cause of action was barred by limitation. The bar of limitation was held to have resulted because of negligence as a matter of law in failing to have the defendant duly cited to answer.

This suit by said J. M. Crawford against said Tom Davis and R. C. Couch seeking recovery of damages by reason of the facts alleged as above stated was filed, on August 22, 1939. The defendants, in addition to other defenses, each demurred generally to plaintiff’s petition, and excepted specially on the ground that it affirmatively disclosed that the alleged cause of action was barred by the two-year statute of limitation, R.S. 1925, Art. 5526.

The court sustained the general demurrers and said special exceptions. Whereupon the plaintiff declining to amend, the suit was dismissed. From the judgment of. dismissal the plaintiff has appealed.

The parties will be referred to as plaintiff and defendants, the same as in the trial court, or by name.

The judgment indicates that the court acted upon the general demurrers and special exceptions raising the issues of limitation all at the same time. The ordinary-procedure, of course, would be for the court to act upon the general demurrer, and, unless it was overruled, questions arising upon special exceptions would not be reached. Plaintiff’s pleading, we think, considered apart from the special exceptions was not subject to general demurrer. The effect, however, of sustaining the special exceptions would be the same as sustaining .the general demurrer. In fact, after sustaining the special exceptions the pleading was subject to general demurrer. Stringer v. Robertson, Tex.Civ.App., 140 S.W. 502. The action of the court, as reflected by the record, is supported by all reasonable presumptions and is, therefore, we think, properly to be sustained upon the view that the court only sustained a general demurrer as a consequence of sustaining the special exceptions.

According to the allegations of his peti•tion, defendant’s alleged negligence, constituting the basis of the action, occurred not later than September 10, 1934 — the date of the service of citation upon Buie. Suit was filed on August 22, 1939. Allegations in the petition refer to the date of March 9, 1939. Such allegations could not have been made except in' a suit filed after that date. The question for decision is whether plaintiff’s petition showed affirmatively that the cause of action was barred by limitation.

The wrong, charged to the defendants, was one giving rise to a cause of action from the time of its commission. “The general rule is that a right of action accrues whenever facts come into existence which give rise to a cause of action.” 1 Tex.Jur. 632; Western Wool Commission Co. v. Hart, Tex.Sup., 20 S.W. 131; Steele v. Glenn, Tex.Civ.App., 57 S.W.2d 908. ’ A cause of action based upon a consummated legal wrong accrues immediately regardless of whether or not the injured party has knowledge of the wrong. Houston Water-Works v. Kennedy, 70 Tex. 233, 8 S.W. 36; Steele v. Glenn, supra.

The cause of action was barred after two years from September 10, 1934; that is, on or about September 10, 1936, unless the averments of plaintiff’s petition, taken as true, showed that the running of limitation was tolled from said time up to within two years prior to August 22, 1939. Plaintiff’s petition alleged no facts to show a tolling of limitation. To toll the running of limitation the parties, being sui juris, it was necessary to show fraudulent concealment, or, at any rate, some matter of equitable estoppel against the defendants from asserting the bar of limitation. Steele v. Glenn, supra. The petition contains no allegations of such nature.

The only pleading of the plaintiff which could be contended as averring any facts designed to show that the running of limitation was tolled was his first amended supplemental petition. This pleading was, of course, incompetent to aid his first amended original petition as to defects rendering it subject to exceptions. “It may be stated as an invariable rule” says Judge Townes, “that defects in a pleading of any fclass should be cured by an amended pleading of that class, and not by a pleading of some subsequent class.” Townes on Texas Pleading, 2d Ed., p. 447. In other words, applying the rule specifically, if plaintiff’s first amended original petition was subject to the exceptions made, that is, that it affirmatively shows that the cause of action is barred by limitation, süch defect could not be cured by allegations in plaintiff’s first supplemental petition — a pleading of a subsequent' class. Such defect could only be cured by a pleading-of the same class as the defective pleading, which would have been-a second amended original petition.

However, were the rule otherwise and we be permitted to look to the aver-ments in plaintiff’s first supplemental petition in aid of his first amended original petition, there would still appear to be no facts .alleged which, taken as true, would show that the running of limitation had been tolled. In said supplemental pleading it is alleged in substance and effect that in the case of Buie v. Couch, Tex.Civ.App., 126 S.W.2d 565, “the jury found and said District Court then held that said Tom Davis had not been guilty of negligence in having said citation issued and served upon the defendant Buie”; that the court overruled Buie’s motion for new trial predicated upon said question of negligence “and plaintiff relied upon said'judgment and the finding of said jury and the ruling of said District Court, and had no notice that it would be held that said Tom Davis was guilty of negligence as a matter of law and that said judgment would be set aside, until March 9, 1939, on which date the aforesaid Court of Civil Appeals held that said Tom Davis was guilty of negligence as a matter of law ” (Italics ours.) It was further alleged that “it was not until March 9, 1939, that plaintiff discovered the said Tom Davis had been guilty of negligence as a matter of law * * * and by the exercise of ordinary diligence plaintiff could not have discovered such facts prior to March 9, 1939, when said decision was handed down by said Court of Civil Appeals.” Plainly the effect of said allegations is that plaintiff did not know of the alleged negligence of the attorney because he did not know the law. In the absence of fraud, plaintiff was chargeable with knowledge of the law, the same as the attorney. No fraud was alleged. There is no allegation to the effect that plaintiffs want of knowledge that his attorney had been guilty of negligence occurring prior to September 10, 1934, was in any manner contributed to by any concealment by the attorney or any wrong conduct, other than the negligence itself. There is wholly absent any allegation that plaintiff had no knowledge of the acts claimed to constitute negligence, or that the attorney made any representations, false or otherwise, concerning such acts. There would seem to be no escape from the conclusion that no facts were alleged sufficient to show an estoppel of the defendants from urging the bar of limitations.

We are unable to see that the question is in any way affected by the fact that plaintiff and defendant Tom Davis sustained to each other the confidential relationship of attorney and client. Corpus Juris says: “Where an attorney-at-law is guilty of .negligence or breach of duty in performing services for his client, the client’s cause of action accrues and the statute [of limitations] begins to run at the time when the negligence or, breach of duty occurs, not at the time when it is discovered, or actual damage results or is fully ascertained.” 37 C.J. p. 830, sec. 179. See also Fox v. Jones, 4 Willson Civ.Cas.Ct. App. § 29, 14 S.W. 1007; Kruegel v. Porter, Tex.Civ.App., 136 S.W. 801, affirmed, 106 Tex. 29, 155 S.W. 174; Thompson v. Barnard et al., Tex.Civ.App., 142 S.W.2d 238.

The argument that plaintiff’s petition did not affirmatively show that the cause of action was barred by limitation does not seem to be supported by the record. The petition does show affirmatively that the alleged negligence occurred prior to September 10, 1934. The date of the decision by the Court of Civil Appeals in Buie v. Couch, Tex.Civ.App., 126 S.W.2d 565, is alleged to have been March 9, 1939. As shown in the foregoing statement, some of the allegations could not have been made, unless the suit was filed after that time. Hence, independently of the question of whether the file marks upon the pleading may be looked to as showing the time the suit was filed, we think the pleading affirmatively disclosed that the action was barred.

Besides, we have held that on a question of this kind we may look to the file marks upon the pleadings and the contents thereof, including superseded pleadings. Braddock v. Brockman, Tex.Civ.App., 49 S.W.2d 908. See also Askey v. Power, Tex.Com.App., 36 S.W.2d 446; Mothner v. Granata, Tex.Civ.App., 69 S.W.2d 775; Nassar v. Nelson, Tex.Civ.App., 112 S.W.2d 757, writ refused.

It is deemed not inappropriate to point out for the benefit of the casual reader, and in justice to the attorney involved, that in determining a question of law raised by an exception to a pleading the court is required to treat the allegations in the pleading as true. The decision of a question so raised carries no implication whatever \hat the allegations are true in fact.

It is our conclusion that the judgment of the court below should be affirmed, which is accordingly so ordered.


text:
    GREENE v. SMITH.
    No. 2094.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 31, 1941.
    H. J. Brice and Ben F. Thorpe, both of Snyder, for appellant.
    Morris G. Watson, of Rotan, for appel-lee.
   FUNDERBURK, Justice.

This suit, brought by John L. Greene, against Bettie F. Howell and husband, D. C. Howell, Ruby Lake Smith, a feme sole, E. C. Neeley and J. P. Pitner, is, according to the purport of plaintiff’s petition, primarily one to remove cloud from plaintiff’s title to 100 acres of land, described by metes and bounds.

The only facts alleged concerning the nature of the clouds on title were as follows : “Bettie F. Howell and husband, D. C. Howell, and Ruby Lake Smith are asserting or claiming some kind of interest in and to the oil and other mineral in said land by virtue of a reservation made in a deed of conveyance dated January 1, 1920, executed by Bettie F. Smith and Dixie Smith and wife, Ruby Lake Smith to W. C. Gordon and W. B. Ferrell as the same appears of record in volume 44, page 335 of the Deed Records of Scurry County, Texas, ■the extent and/or nature of such interest asserted or claimed by said parties being unknown to plaintiff.” (Italics ours.)

Then followed allegations to the effect that plaintiff had executed an oil and gas and mining lease upon the land to a third party “but the lessee has objected to the asserted claim and/or claims of defendants * * * [naming them as above] to a part of the oil, gas and minerals in the above described tract of land * * * which .objection by said lessee and the asserted claims of defendants * * * creates a cloud upon the fee simple title to said land now owned by the 'plaintiff — and plaintiff has often requested defendants Bettie F. Howell and husband D. C. Howell and Ruby Lake Smith and each of them, to refrain from such asserted claims and that said defendants * * * and each, of them have refused and still refuse to satisfy and quiet plaintiff’s title in 'and to the above described land and premises in an appropriate manner. * * * [That] the asserted claim of defendants * * * constitutes a cloud upon plaintiff’s title to the land and premises hereinabove described •and create a doubt in the mind of this plaintiff and all other persons who may be in privity with him as to his right to make disposition of said lands and premises * * * for the removal of which cloud this suit is brought.” '(Italics ours.)

Then follows a plea of estoppel of said above-named defendants “to set up any claim in and to said land adverse to the title of this plaintiff.” Apparently only as reasons why plaintiff should be quieted in .his title, and not as putting his title in issue, he alleged ownership of the' land by five and ten years’ limitation. Finally and in the alternative plaintiff sought recovery of damages in the sum of $1,000 against all the defendants, other than Ruby Lake Smith, for breach of covenants of warranty.

The defendants, except Ruby 'Lake Smith, filed disclaimers. Ruby Lake Smith answered by general and special exceptions and general denial. Further she alleged an agreement that the common source of title was Bettie F. Smith and Dixie Smith, and specially pleaded title in her from such common source, particularly through her deceased husband, Dixie Smith, to one-fourth of the. minerals in the land. The title so specially pleaded did' not include any title acquired by her subsequent to the death of Dixie. Smith or from any other source. Said defendant, treating the latter part of her answer, containing the special plea of title, as a cross-action, prayed that “she have judgment quieting the title to her undivided one fourth (1/4) interest in the oil, gas and other minerals in and under said land, and that the cloud cast upon the title of this defendant by the plaintiff by reason of his asserted claims be canceled and held for naught.” As tending to show that by the cross-action recovery of the title to the one-fourth mineral interest was sought, it was further prayed “that this defendant and plaintiff in cross-action, have judgment against the plaintiff John L. Greene for her undivided one fourth (1/4) .interest in the oil, gas and other minerals in and under such land”, etc.

As to the defendants who answered by disclaimers, the final judgment provided that they “be dismissed from this suit without prejudice.” It was further adjudged that “John L. Greene take nothing by his said suit as against the defendant, Ruby Lake Smith, and that defendant Ruby Lake Smith have judgment against the plaintiff John L. Greene quieting her title to said mineral interest in such land”, etc.

Plaintiff John L. Greene appealed, but, by the terms of his appeal bond, did not include as appellees the defendants who had disclaimed.

Appellant asserts nine propositions as reasons for a reversal of the judgment. One -element common to the “First”, “Second”, “Third”, “Fourth”, and “Sixth” propositions is that appellee pleaded a general demurrer and/or special exceptions to appellant’s petition which, not being acted upon, or called to the attention of the court, were waived by appellee’s motion for judgment in her favor upon the merits of the case. We cannot be sure we understand appellant’s contentions upon this point. In the argument it is said: “It seems clear that the statement of the court in the case of Southern Cas. Co. v. Morgan [Tex.Com.App.] 16 S.W.2d 533, is in point on the question under this group of assignments and has application to each assignment wherein it is said ‘general demurrer was pleaded but it was not presented and given disposition, hence, it was waived’ and this .statement of the law has application here.” Said argument closes thus: “Therefore, appellant here urges that the action of the trial court in failing to dispose of the demurrer and exceptions presents fundamental error requiring reversal of the judgment of the trial court.” Does appellant thus contend that the judgment is erroneous because the court did not rule upon the general and/or special exceptions? If so, then it must be answered that if the court erred in such respects the error was against ap-pellee, and appellant has no cause to complain of it. So far as possible, appellee waived such error, if any.

Is it the appellant’s contention that appellee, having waived her general demurrer and her special exceptions, the allegations of appellant’s pleadings must be taken as true; and that when so taken as true, they had the effect of barring appel-lee’s right to a judgment? If so, such position would seem to be wholly untenable. The allegations of pleadings, the sufficiency of which is challenged by exceptions, are taken as true, but only in testing the sufficiency of the pleadings as against the exceptions. If there is no ruling upon the exceptions the case stands, of course, the same as if no exceptions had been taken to the pleadings. The plaintiff would have the same burden of establishing his cause of action and the defendant his grounds of defense, or any counterclaim or cross-action. It should aways be borne in mind, however, that the mere failure of the plaintiff to establish any essential element of his cause of action requires a judgment for the defendant, regardless of affirmative defenses, or whether they be established or not. It is our conclusion that all of appellant’s propositions except those hereinafter mentioned should be overruled.

By appellant’s “Fifth Proposition” the judgment, considered as one granting affirmative relief to the appellee, is challenged on the ground that appellee “presented no evidence upon the trial in support of her answer.” By the sixth proposition it is asserted “that the evidence presented by plaintiff John L. Greene was insufficient to support the judgment in favor of the defendant Ruby Lake Smith.”

There was an agreement that the common source of title was Bettie F. Smith (Bettie F. Howell) and Dixie Sjnith — mother and son. By the undisputed evidence the following facts were established:

Title to approximately 1,000 acres of land, including the 100 acres in suit, except one-half the minerals therein, was conveyed by the agreed common source to Gordon and Ferrell. The title of Gordon and Ferrell was reconveyed to Bettie F. Howell. Ruby Lake Smith, upon the death of Dixie Smith, succeeded to all his title and interest in the land. On August 4, 1924, by an exchange of deeds, Bettie F. Howell, joined by her husband, conveyed to Ruby Lake Smith, and Ruby Lake Smith conveyed to Bettie F. Howell, each a one-half undivided interest in the same land. On January 9, 1930, Bettie F. Howell and Ruby Lake Smith made a formal statement in writing and had it placed of record in which, as relating to the above-mentioned exchange of deeds, it was declared that it was done “to the end that each should be thereafter the owner of an undivided 1/2 interest in all of the properties mentioned in said deeds.”

Thereafter on February 27, 1924, B'ettie F. Howell, joined by her husband, conveyed, by warranty deed, 100 acres of the land described by metes and bounds, to E. C. Neeley. Neeley, by like deed, dated July 21, 1924, conveyed the same 100 acres to J. P. Pitner, and on September 12, 1931, Pitner conveyed it to John L. Greene. Each of said deeds purported to convey the entire interest in the 100 acres. The con? veyances were made for a valuable consideration without notice of any defects in the title other than such notice, of course, as the several grantees were given by the records. On December 15, 1938, John L. Greene and wife executed an oil and gas lease on the 100 acres and objection was made to the title on the ground that there was an outstanding one-fourth mineral interest in Ruby Lake Smith. From the time of the conveyance of the 100 acres by Mrs. Bettie F. Howell to E. C. Neeley the title thereto was not questioned.

The question for our decision is: Does this evidence authorize the judgment providing that “defendant Ruby Lake Smith have judgment against the plaintiff John L. Greene quieting her title ,to said mineral interest in such land?” We think the evidence above recited established conclusively that the mineral reservation in the deed of Bettie F. Smith and Dixie Smith to Gordon and Ferrell was because of subsequent events rendered of no importance. It did not constitute a cloud upon appellant’s title. Neither did it alone show title to á one-fourth mineral interest in appellee.. It may be granted that at the death of Dixie Smith he had title to a one-fourth interest in the minerals, which, upon his death, descended to appellee. Subsequently Mrs. Bettie F. Howell was the owner of the land, less such one-fourth mineral interest. As to the mineral estate which had, by the de.ed to Gordon and Ferrell, been severed from the rest of the land, Bettie F. Smith and appellee were tenants in common, the former owning three-fourths and the latter one-fourth. But the simultaneous exchange of deeds, mentioned in the above statement of the evidence, had these effects: (1) it reunited the mineral interest with the rest of the land and (2) constituted the parties tenants in common of all the land, each having a one-half undivided interest therein. The deeds so clearly had such effect that no statement thereafter made by both, or either, of the parties as to their intention could vary such effect. It is immaterial that before the exchange of deeds one grantee had more, and the other less, interest than their deeds purported to convey. The deeds vested in each grantee a one-half undivided interest by operation ,of the principle of estoppel by deed.

When, therefore, Bettie F. Howell, one of the two tenants in common, conveyed the specific 100 acres to Neeley, she conveyed legal title to only a one-half undivided interest, but equitable title to an undivided 100 acres interest in the entire tract owned in co-tenancy with Ruby Lake Smith. The effect of the evidence was to show that the particular claim of Ruby Lake. Smith to a one-fourth undivided interest in the minerals by virtue of the reservation made in the deed from Bettie F. Smith and Dixie Smith to Gordon and Ferrell dated January 1, 1920, was in a sense, and by reason of a claim of title being asserted thereunder, a cloud upon appellant’s title. The evidence at the same time had the curious effect of showing that in an entirely different way and without her specially pleaded title, appellee did have an interest in the land which was not merely a cloud upon appellant’s title, but possibly to the extent thereof superior thereto.

On the other hand, the evidence considered in connection with appellee’s cross-action showed that appellant’s claim was not a mere cloud upon any title of the ap-pellee entitling her to be quieted to any particular interest in the land. If the facts exist — -which is not shown — to establish limitation title under the statutes of five and/or ten years, appellant may be the owner of the land in severalty. The issues of limitation were perhaps not developed, because of the theory that appellee’s claim to a one-fourth mineral interest was an estate severed from the rest of the land, and, therefore, that adverse possession of the surface of the land did not constitute adverse possession of the minerals.

If the facts do not exist to show limitation title in appellant, he may be able to have it set aside to him, in severalty, in a partition proceeding to which the owners of the other interests in the entire tract are parties, by assuming and discharging the burden of showing that it will not be inequitable to do so. If he cannot discharge such burden, he may nevertheless be entitled to have 'his 100-acre interest set aside to him in a partition of the entire tract held in co-tenancy.

If none of said remedies are, under the facts, available, it would seem that he would at least have a cause of action against one or more, or all, of his grantors through whom the 100 acres has descended to him upon covenants of warranty of title.

It is our conclusion that the evidence would not warrant that part of the judgment providing that appellee be quieted in her title to a one-fourth mineral interest in said land, for which reason the judgment should be reversed and the cause remanded, and it is accordingly so ordered.


author: BOND, Chief Justice.

text:
    TYLER et al. v. BAUGUSS et ux.
    No. 12957.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 25, 1941.
    Rehearing Denied Feb. 22, 1941.

      J. Hardy Neel and Ervin Neel, both of Dallas, for appellants.
    Thomas B. Ridgell, of Dallas, for ap-pellees.
   BOND, Chief Justice.

Laura.E. Bauguss, appellee, owned 200 acres of land in Henderson County, Texas, on which she and her husband, L. B. Bau-guss, had given an oil, gas and mineral lease to the Humble Oil & Refining Company, reserving unto themselves an undivided one-eighth (⅛) interest in and to all the oil, gas or other minerals in and under and that may be produced and mined from said - land. The leasehold and the land adjacent thereto being undeveloped oil property, in oil field lingo, “wildcat” territory, appellants, through the real estate firm of Griffith & Griffith, of Terrell, Texas, sought to block large acreage in that vicinity, including the Bauguss land and lands adjacent thereto, for the purpose of drilling for oil. Mr. and Mrs. Bauguss, in consideration for a well to be drilled on adjoining land belonging to Dr. Rowe, and for drilling operations to be begun within forty days from date of conveyance, agreed to ‘execute a mineral deed to appellants, Tyler & Smith, oil field operators, to an undivided one-tenth (¾o) interest in the royalty retained under said 200 acres, or, in terms as appellees understood it, “Twenty royalty acres or ⅛o of production from said land,” and to place the deed in escrow with Mr. Griffith.

On January 27, 1939, Laura E. Bauguss, joined by her husband, L. B. Bauguss, in accordance with said agreement, executed, in the form and manner required by law, a mineral deed, which shall be hereinafter referred to as the original deed, to Tyler & Smith, reciting that:. “For and in consideration of the sum of Ten Dollars cash in hand paid by Tyler & Smith, hereinafter called Grantee, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell, convey, .assign and deliver, unto the said Grantee, an undivided one-tenth interest in and to all of the oil royalty, gas royalty, and royalty in .casinghead gas, gasoline, and royalty in other minerals in and under, and that may be produced and mined from the following described lands situated in the County of Henderson and State of Texas, to-wit: (Here follows description of the 200 acres of land, and the usual provisions in such deeds for ingress and egress at all 'times for the purpose of mining, etc.)” The deed was signed and separately acknowledged by Bauguss and wife before A. B. Clark, a notary public of Dallas County, Texas, who affixed thereto proper ■notarial certificate and seal. The .deed was retained by the grantors, pending the return of Mr. Griffith, who had gone up-town, in the City of Dallas, on other business.

Simultaneously with the execution of said ■ deed, Mr. and Mrs. Bauguss signed a carbon copy of the deed, which shall be hereinafter referred to as the copy, also an escrow agreement, in the form of a letter) as follows: “Dallas, Texas. January 27, 1939. Messrs. Griffith & Griffith, Terrell, Texas. Gentlemen: Enclosed herewith find Royalty Deed to one-tenth of my royalty in my 200-acre tract of the Jas. M. Gardner Survey, Henderson County, Texas, which is equal to 20 royalty acres. This has been properly executed and acknowledged by the owner and you are instructed and requested to hold this Royalty Deed in your vault together with this letter and deliver same ■ to Tyler & Smith, Drilling Contractors, when they have completed a well on the Rowe and Baker land out of the Childers Survey, adjoining my land on the North, said well to be a fair test of the Woodbine sand. The well to be drilled is to be on the south 250 acres of the Dr. Rowe land. In the event operations are not begun to drill this well by Tyler & Smith within forty days from date hereof, you are instructed to return this Royalty Deed to me. Yours very truly, (signed) Mrs. Laura E. Bauguss, L. B. Bauguss.” The copy of the deed was for Mr. Bauguss’ files, not intended to be signed or acknowledged; the escrow agreement was to be attached to the original deed and delivered to Mr. Griffith, to be held in escrow for Tyler & Smith.

Subsequent to the execution and delivery of said original deed and the escrow agreement, with the advice and counsel of their daughter, Mrs. C. F. Christian, and their son, Vernon Bauguss, Mr. and Mrs. Bau-guss reached the conclusion that the mineral deed which they had duly executed, conveyed to grantees a greater interest in royalties than they intended, and agreed to convey. They interpreted the conveying clause in the deed, to-wit: “An undivided one-tenth interest in and to all of the oil royalty, gas royalty, and royalty in casinghead gas, gasoline, and royalty in other minerals in and under, and that may be produced and mined,”- from said land, as a conveyance of more than “20 royalty acres or ⅜o of production from said land thus, with the consent of Mr. Griffith, they caused to be inserted in the original deed) immediately following the description of the land, the clause: “The intent of this contract is to convey 20 royalty acres or ⅜0 of production from said land.” Whereupon, Mr. Griffith, who was handling the transactions for appellants, advised Mr. and Mrs. Bauguss that, because of such interlineations having been made in the deed after its execution, the deed should be re-acknowledged and then mailed, with the escrow letter or contract, to him at Terrell.

On January 30, 1939, three days after the original deed was duly executed, and the next day after said interlineations were made in the deed, appellees, with their son Vernon Bauguss, according 'to their own testimony, left home and went to the office of A. B. Clark, the notary public who took their acknowledgments to the original deed, for the purpose of re-acknowledging and forwarding it, together with the escrow agreement, to Mr. Griffith at Terrell. On arrival at Mr. Clark’s office, Mr. Bauguss presented himself to the notary for the purpose of re-acknowledging the transaction of himself and wife; however, instead of giving Mr. Clark the original deed, with the interlineation, for that purpose, he gave him the carbon copy. Mr. Bauguss testified that Mr. Clark again read and explained the deed to him and then took his acknowledgment, and as he began to prepare the notary certificate and affix the seal, he advised Mr. Clark that his wife was immediately outside his office, sitting in a car with her son, and requested him to go out there. He said: “Mr. Clark, don’t you have to go and get my wife’s acknowledgment ? She is here— out there in the car — and hadn’t you better go out there?” And he (Mr. Clark) said: “Oh, no, that is not necessary.” Mr. Bau-guss further testified that he did not know whether it was necessary to have the deed re-acknowledged or not; he said, “I thought it was all right,” and “when Mr. Clark signed and sealed the carbon copy, he handed it back to me — I asked him for a stamp and envelope, enclosed the deed and escrow letter and mailed them to Mr. Griffith.” In response to questions, Mr. Bauguss testified further:

“Q. What was the understanding with Mr. Griffith, if any, when he was holding this escrow, when was he to deliver the deed? * * * I say, when was he to deliver it to Tyler & Smith? * * * A. This is it — the letter Mr. Griffith wrote me.”

Letter mentioned is as follows:

“Terrell, Texas, January 31, 1939 “Mrs. Laura E. Bauguss,
“Dallas, Texas.
“Dear Madam:
“The Royalty , Deed to one-tenth interest in 200 acres Gardner Survey to Tyler & Smith received. I will be governed by yqur instructions that the well is to be drilled on the South 250 acres of the Rowe & Baker land and if the well commenced is not drilled to exploit the Woodbine sand, I will not deliver the deed to them. Herewith find $1.00 bill to pay the Notary charges.
“Yours very truly,
“(Signed) Griffith & Griffith
“By W. Charlton Griffith”

Mrs. Bauguss and her son each testified, corroborating the testimony of Mr. Bau-guss, that Mrs. Bauguss never appeared before the notary public to acknowledge the carbon copy of the deed; Mrs. Bauguss testifying that she accompanied her husband to the notary’s office for that purpose, but had not fully made up her mind. She said: “I thought I would have Mr. Clark to read it over and explain it to me, you know, before I acknowledged it, and after he did, if he could explain it real satisfactorily, I guess I would — might have acknowledged it — yes, sir.” She said she learned from her husband that he had mailed the deed to Mr. Griffith. “Q. Well, now, Mrs. Bauguss, your husband was looking after matters, was he, or not? Was he? A. He was — yes, sir.” Vernon Bauguss testified to the same effect, that his mother did not appear before the notary public on January 30 to acknowledge' the copy of the deed. Against the testimony of appel-lee, Mr. Clark, long a friend and neighbor of Mr. and Mrs. Bauguss and a stranger to appellants, testified that he took the separate acknowledgments of Mr. and Mrs. Bauguss at their home, the first acknowledgment being on January 27, 1939, to the original deed, and the second on January 30, 1939, to the carbon copy, and that the notarial certificates, in form required by law, correctly reflect his official acts.

The record shows that the deed, without Griffiths’, Tyler’s or Smith’s knowledge of any defects therein, was held by Mr. Griffith, and that' appellants began operations for the drilling of a well 150 feet from ap-pellees’ land line, on Dr. Rowe’s land, within forty days from the date of the deed, and discovered oil thereon, thereafter making demands upon Mr. Griffith for the deed then in escrow. Appellees made no request of Griffith, before oil was discovered, for the return of the deed, but thereafter refused to allow delivery of same to appellants, resulting in the institution of this suit.

The suit is one in trespass to try title and for damages. Appellants, in pleadings and ■proof, contend that the instruments forming the basis of their claim to an undivided interest in royalties from the land in suit were acknowledged and delivered, thus became a legal conveyance of title; and that appellees, perforce of their acts and deeds, because of the enhanced value of their estate, due to the efforts of appellants, are estopped to claim the invalidity and nondelivery of such conveyance.

The cause was tried to a jury and, on findings that the grantor, Laura E. Bauguss, did not appear before A. B. Clark on January 30, 1939, and acknowledge the instrument placed in escrow with Griffith & Griffith, judgment was entered that appellants recover nothing; also decreed that “the royalty deed in evidence in this cause and held in escrow by Griffith & Griffith be and the same is canceled and declared void.”

As has been shown, appellees contend that, as the original deed, bearing the notary’s certificate of date January 27, 1939, was never, after its alteration, reacknowl-edged and delivered; and as the carbon copy, bearing the notary’s certificate of January 30, 1939, was delivered but never acknowledged by Laura E. Bauguss, appellants’ title to the purported royalty interest described in the deeds failed.

The law is well settled in this state that any alteration made in a written instrument, which does not materially change the instrument, making it read differently from its original provisions, and which does not cause the instrument to speak differently in legal effect from that which it spoke originally, then there is no material alteration rendering the instrument void. The validity and operation, or apparent regularity of an instrument is not affected by such a change. Commercial Credit Co. v. Giles, Tex.Civ.App., 207 S.W. 596; Clem v. Chapman, Tex.Civ.App., 262 S.W. 168.

In the instant case, it is evident that the clause in appellees’ original deed, conveying to appellants “an undivided one-tenth” of the 1/8 royalty retained by them in the 200 acres, is equivalent to the inter-lineated clause- — -“20 royalty acres or 1/80” of all production. Therefore, manifestly, such interlineation made no material change in the reading of the deed and in no way affected its validity and operation. The interlineated clause shows it was intended only to clarify the granting clause of the deed, being in language more familiar to the grantors, and, in effect, a repetition only. The quantum of property to be conveyed was not changed. The conveying clause, “have granted, sold, conveyed, assigned and delivered, * * * unto the grantee, an undivided one-tenth interest in and to all of the oil royalty,” etc., in both the original'and copy deed, is, in effect, a conveyance of “20 royalty acres or 1/80” of all production. Thus, the change or alteration not having, in legal effect, changed the wording or meaning of the deed, it was unnecessary to have either instrument re-aclcnowledged because of such explanatory interlineation. The deed was sufficient with or without the interlineation to convey title to the property which the parties intended to convey and, on delivery, vested title in the grantees. Therefore, the only issue involved is, whether the deed was legally delivered to appellants.

The evidence on the issue of delivery is of such probative force as to leave no doubt that appellees intended to deliver the deed, and we think the deed was, in legal effect, delivered. When a grantor signs and acknowledges a deed, and afterward, either by acts or words, indicates that he vested and recognized the property as belonging to the grantee— even though possession be retained by the grantor — delivery is complete. The law prescribes no form of action or words to constitute delivery of a deed. The grantee will not be deprived of his rights where the grantor intended to invest him with title, though there be no manual delivery of a duly executed instrument. If the deed shall be so disposed of or held by grantor, as to clearly evince an intention on his part that it shall have effect as a conveyance, it is a sufficient delivery. As stated in More v. More, Tex.Civ.App., 7 S.W.2d 1096, 1098: “Actual manual delivery of the deed into the hands of the grantee by the grantor in person was not essential to pass title. Brown v. Brown, 61 Tex. [56] 60; Henry v. Phillips, 105 Tex. 459, 151 S.W. 533. But where, as in this case, there was no such delivery, it is necessary, in order to pass title, to show that the deed was duly executed by the grantor, and that it was the purpose and intention of the grantor to himself deliver the instrument to the grantee or to have it delivered by others to the grantee, for the purpose of passing title to the grantee. Henry v. Phillips, supra.”

It will be seen that Laura E. Bauguss and L. B. Bauguss were under contractual obligation to convey a certain proportionate undivided royalty interest in the 200 acres of land owned by them, make a necessary conveyance and deliver same to Mr. Griffith to be held in escrow, pending the operation and drilling of a well by appellants. They executed the conveyance, in accordance with their contract in all the formalities required by law, declaring therein that they had “granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell, convey, assign and deliver ” the royalty interest described in the deed. There can be no question that, at that time, at least, appellees intended to convey and deliver to appellants the deed as executed. It is equally certain that the •grantors evinced the intention of delivering the escrow letter or agreement addressed to Mr. Griffith, which was to accompany the deed, and which- expressly stated: “Enclosed herewith find royalty deed * * *. This has been properly executed and acknowledged by the owner and you are instructed and requested to hold this royalty deed in your vault together with this letter’ and deliver same to Tyler & Smith, Drilling Contractors, when they have completed a well on the Rowe & Baker land. * * *” It is clear that a true copy was mailed in contemplation of investing appellants with title; that Mr. Griffith received the copy with the escrow letter attached, without knowledge of its irregularity, if, in fact, any existed, and that appellants performed their covenants by commencing operation for the drilling of a well within the allotted time. It is evident that appellees, in mailing the copy and the escrow agreement, under a belief, as Mr. Bauguss said, “I thought it was all right”, thus leaving appellants to labor under a like understanding, recognized the legal delivery of the deed. If such was their thought or intention, the law should effectuate it, rather than indulge a nice distinction that the manual retention of the original deed, under the circumstances in this case, thwarted that which was plainly (several months before oil was discovered) their purpose. Mrs. Laura E.. Bauguss knew that the copy and escrow agreement had been mailed for transmission to Mr. Griffith and held by him for the purpose intended. She made ño effort to prevent its delivery to appellants. She did not recall it, neither did she make any attempt to do so. On the contrary, after the well was drilled, oil was discovered, and the value of their estate, because of the discovery of oil, had increased an hundredfold, Mr. Bau-guss, for the first time, and Mrs. Bauguss never, divulged the irregularity of delivery to defeat appellants’ title. With this true and clearly evidencing an intention that the deed have effect, it is of no consequence that appellees retained the original and sent the carbon copy, even though it could reasonably be said that the carbon copy was never acknowledged by either of the grantors.

If what the law regards as a delivery had been accomplished, the retaining of the original deed, and sending a copy evidencing the purposes of the original, would not defeat the conveyance of title. Relief will be granted when the legal effect of a transaction is misapprehended, if such misapprehension be induced or brought about by misleading acts and deeds of the other contracting parties. As a rule of reason and common sense, the delivered instrument amounts to a delivery of the duly executed deed and should operate by a presumed assent. Equity regards as done that which ought to have been done; looks to the intent, rather than to the form of a •transaction.

The judgment of the court below is reversed and judgment here rendered in favor of appellants for title and possession of the proportionate royalty conveyed in the mineral deed, as of date January 27, 1939, with all the rights, privileges and limitations there granted or reserved; and that the deed held in escrow by Mr. Griffith should be delivered to appellants for the purpose of proper registration.

Reversed and rendered.


author: YOUNG, Justice.

text:
    MORRISON v. MOREHEAD MFG. CO. et al.
    No. 12949.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 1, 1941.
    Rehearing Denied March 15, 1941.

      Conly K. Stevens, of Dallas, for plaintiff in error.
    Lawther, Cramer, Perry & Johnson, of Dallas, for defendants in error.
   YOUNG, Justice.

Morehead Manufacturing Company, of Detroit, Mich., obtained judgment for debt and foreclosure, upon peremptory instruction against J. S. Morrison, trading as Laundry Supreme, on chattel mortgage notes totaling $700, plus interest and attorney's fees; and appeal has been taken from such proceedings by writ of error. The consideration evidenced by Morrison’s execution of the mortgage and notes was a sale by the Manufacturing Company of specified machinery, technically described as: “One complete double unit, Morehead ‘back-to-boiler’ system, suitable for a 126 H. P. boiler at ISO# steam pressure, consisting of main boiler feed unit of 400# condensation per hour capacity, and makeup unit with automatic feed water level regulator of 1900# condensation per hour capacity.” The total purchase price therefor was $870, and $170 in check to Eggel-hof Engineering Company, Dallas, accompanied the signed order and notes.

The defense of obligor Morrison, briefly stated, was that plaintiff’s system had proved worthless upon installation and fair test; but his counsel attempts a most confusing and irregular method of asserting it, rendering all defensive pleading difficult of interpretation. First is impleaded Henry Eggelhof, in a $995.85 cross action for damages. The amended answer involves plaintiff only, praying for cancellation and rescission on account of material representations made by its alleged agent, Eggel-hof. Further defenses and affirmative matters are set forth in supplemental answers and successive trial amendments, including' total failure of consideration; breach ^ of express and implied warranty; limited withdrawal of cross action and non-suit as to Eggelhof; apparently contending, however, at all times, that both plaintiff and its purported agent were still liable for $275, consisting of $170 cash paid, $80, cost of installation, and $25 freight charges. The final plea (by trial amendment) is non est factum., This plethora of pleading fortunately becomes immaterial, by reason of recitals in the judgment that defendant, in open court, abandoned his cross action and all defenses, except that of cancellation and rescission. As this case must be reversed, we would suggest a.thorough pre-trial treatment of above voluminous, alternative and inconsistent pleas, in the interest of orderly pleading.

Plaintiff first challenges defendant’s assignments of error and propositions thereunder as being too general; not setting out specifically any distinct error. In this connection, we see that, additional to assignments brought forward in motion for new trial, there are twelve “new” assignments, two of which clearly suggest material variance between pleading, proof, and judgment (fundamental error) and will be considered; the other “new” matter disregarded; 3 T.J., Appeal and Error — Civil Cases, Sec. 592, p. 845. Of defendant’s original assignments, Nos. 26 and 27 are held sufficient only because they are supported by a proposition which we think appropriately presents the error complained of. It reads: “As it appears from the plaintiff’s petition that the notes and mortgage declared on were given in part payment of the sale price of the machinery described in the mortgage, and the undisputed evidence showed that it was complicated machinery intended for a steam laundry and not common machinery easily understood, being manufactured or sold by plaintiff as a Morehead system, ‘suitable’ for a 126 HP boiler at 150# pressure, there was an implied, if indeed not an express, warranty that the machinery so bought and Sold for defendant’s own use and not for resale was suitable for use in defendant’s steam laundry as attachments to defendant’s 126 HP boiler at 150# steam pressure, (the rule of caveat emptor not applying to such sale) it was reversible error to render judgment against the buyer upon the plaintiff’s requested verdict when the buyer defended on the ground of breach of warranty, and asked for cancellation and rescission, tendering the property on paying the buyer’s down payment and freight charges and labor to test same, and where there was ample evidence for the jury on the issue so raised.”

Morrison was operating a laundry early in 1937 when he sustained a fire, necessitating replacements in new machinery. Mr. Eggelhof, a mechanical engineer, surveyed the plant, and (we may conclude) made recommendations concerning defendant’s requirements and plaintiff’s product. A sale resulted, the purchase contract being signed, “Laundry Supreme, by J. S. Morrison,” witnessed by Eggelhof. The instrument recited retention of title in vendor until the subject matter was fully paid for; another provision reading: “* * * this contract covers all agreements concerning this transaction of every name and nature, and no representations made by an agent, or any other person not included herein shall be binding.” Purported true copies of above written contract appear thrice in the record: First, a certified copy from the county clerk’s record; second, the original, which plaintiff’s counsel stated, as a witness, was turned over to him by the Company; a third writing was introduced by defendant, on which was stamped: “This is an exact duplicate of the contract received by us and contains all the conditions under which we are shipping the goods. Morehead Mfg. Co.” These instruments are identical in wording, save that, in describing the equipment, the two exhibits of plaintiff referred to a “main boiler feed unit of 4,000# condensation per hour capacity” while defendant’s exhibit calls for “400# per hour condensation capacity”; plaintiff’s petition reads “400” in the same particular, while the judgment recited “4000”. Only one system was delivered to defendant, hence its identity is established, but whether the above discrepancies are mere typographical errors, or refer to equipment of materially different capacity, the record does not disclose. No authorized agent of plaintiff testified, and Eggelhof, the engineer, who was perhaps as well informed concerning the machinery as the manufacturer, attended the trial but did not take the witness stand. From out the confusion of testimony in the 277-page statement of facts, we gather that plaintiff’s machinery was designed to function (when attached to a high-pressure boiler) by receiving the steam, passing it through designated channels to the apparatus and presses of the particular business, such as a laundry; the condensation of water, following use of steam heat and power, being forced off into traps and thence automatically back to the boiler. Abundant evidence was introduced by defendant tending to establish that plaintiff’s system would not function when attached to defendant’s 126 HP boiler under required steam pressure; that his presses, ironers, and drying machines became col,d and unusable through excess condensation, or water, the Morehead apparatus not returning such to the boiler, with resulting loss of water in the latter; compelling a slow-down to refill with outside water. In this state of the testimony, plaintiff offering nothing to prove that the article delivered was the same as called for in the purchase order, an issue of either contract breach or rescission was raised from inconsistent specifications alone. 37 T.J., Sales, Sec. 239, pp. 524, 525. For a system that would handle 400# water condensation per hour is certainly something other than one calling for ten times that capacity in such regard — or of 4000# per hour.

Mr. Eggelhof, who first advised with defendant about the equipment, later assisted in its installation and test. There is ample evidence tending to show that after several days’ trial, the system did not work; .whereupon, it was removed and different machinery substituted. During the interval, defendant twice wired plaintiff of the troubles encountered. The goods were then tendered back, so defendant' testified, through Eggelhof, the pleadings reflecting a continuance of such tender. According to Morrison, an engineer of plaintiff Company appeared later on, and offered to secure performance of the system on conditions that were not accepted.

The relationship of Eggelhof to the Company is not clear; though whether he was an agent or not appeared easily susceptible of disclosure from the Company’s office records or communications had .between such parties relative to the transaction. This becomes important in the main, should fraud by inducement be an issue on retrial, and plaintiff sought to be bound thereby. The prior representations of Eggelhof would otherwise be inadmissible, perforce of the contract provisions already quoted, aside from familiar rules governing written instruments. That Eg-gelhof was, at least, plaintiff’s apparent or ostensible agent is fairly inferable from this record; Continental Oil Co. v. Baxter, Tex.Civ.App., 59 S.W.2d 463.

But looking alone to the purchase order, as insisted by plaintiff, we conclude the requirement on the part of the manufacturer, to furnish defendant “One complete double unit, Morehead ‘back-to-boiler’ system, suitable for a 126 HP boiler at 150# steam pressure,” etc., was tantamount to an express warranty that, when so connected up, the equipment had actual practical fitness for the service it was manufactured to perform; Words and Phrases, Permanent Edition Vol. 40, page 664, et seq.

Even in the absence of express warranty, an issue is raised from the very face of the contract as to whether the plaintiff had knowledge or notice of defendant’s business, and the purpose for which the system was obtained; and from an affirmative finding - on this, a similar warranty would be implied. “One of the recognized exceptions to the doctrine of caveat emptor is the implied warranty by a seller of the fitness or suitability of goods purchased for a known purpose. It is settled that where property is bought for a special use of which the seller has knowledge or notice at the time of the sale, and in reliance upon his judgment or skill, there is an implied warranty that it is reasonably adapted or suited to the purpose of the buyer, * * 37 T.J., Sales, Sec. 126, pp. 290, 291; Detroit Automatic Scale Co. v. Smith Milling Co., Tex.Civ.App., 217 S.W. 198; Oil Well Supply Co. v. Texanna Production Co., Tex.Civ.App., 265 S.W. 203. There being adequate evidence that the system utterly failed in performance under contract conditions, ultimate fact questions followed for determination by the jury.

Our rather free discussion of testimony is intended only for guidance of the county court upon another trial. The judgment under review is reversed and this cause remanded for disposition consistent with above conclusions.

Reversed and remanded.

On Rehearing.

Morehead Company is correct in the assertion that Morrison nowhere pleaded as a defense the discrepancies already noted between its trial petition and the several mortgage instruments, concerning the machinery in suit. The testimony of defendant '.(Morrison) is entirely insufficient to establish that the system delivered was of 400 lbs. condensation capacity per hour; and this necessary element of plaintiff’s proof does not otherwise appear in the record. The error in specifications can hardly be explained as “typographical”; but more logically suggests a material variance between pleading, proof and judgment-fundamental error. And although defendant’s plea of contract breach was predicated generally upon representations of Eggel-hof, yet his defensive allegations (paragraphs 14 and 15 amended answer and cross action) went further, we think, and raised issues on unsuitability of the equipment, following proper installation and test. Moreover, indulging every intendment fairly deducible from the record in favor of the party against whom peremptory instruction was here directed (defendant below), such mass of testimony, both written and oral, is so inconclusive as that we are unwilling for a judgment based thereon to stand. Eggelhof was also brought up on appeal, and judgment of reversal will likewise apply to him.

The motion for rehearing is overruled.