text:
    MYATT v. ELLIOTT.
    No. 11004.
    Court of Civil Appeals of Texas. Galveston.
    July 11, 1940.
    Repealing Denied Oct. 3, 1940.
    Geo. P. Willis, Jr., of El Campo, for appellant.
    M. S. Munson, Jr., of Wharton, for ap-pellee.
   MONTEITH, Chief Justice.

This is an appeal in an action brought by appellee, A. E. Elliott, for the recovery of damages for the alleged conversion of a floating dredge. Appellant, J. L. Myatt, defended the suit upon, the grounds of abandonment, a parol gift of the property to himself and an associate, and the two years statute of limitation.

The dredge in question is located in Dry Creek, a tributary of the Colorado River in Wharton County, Texas; and is surrounded by lands under the control of appellant. By instrument dated April 2, 1937, the then owners of the property,, Gulf Coast Water Company, transferred it by written assignment to appellee. Shortly after acquiring the property appellee informed appellant that he had bought the dredge and sought his permission to remove it from its then location. Permission was denied him on the grounds that the dredge belonged to appellant.

In answer to special issues submitted, the jury found that said dredge had not been abandoned by the Markham Irrigation Company; that J. L. Myatt and D. W. Beck did not take physical possession of the property in question; and that they had not asserted title to the property or claimed and used it as their own for more than two years prior to March 31, 1939. The market value of the property was found to be $3,500.

Based on the answers to said special issues, judgment was rendered in favor of appellee and against appellant for the sum of $3,500, with interest.

Appellant complains of the action of the trial court in striking that portion of his first amended original petition in which he sought to make the Gulf Coast Water Company a party to the suit, and in denying his application for a continuance for that purpose.

' The record shows that this suit was filed on March 31, 1939. On May 22, 1939, the appearance day for the' first term of court thereafter, appellant filed his original answer consisting of a general demurrer and general denial. The case was set down for trial at that time for June 1, 1939. When it was called for trial on that date, appellant filed his first amended original answer, for the first time seeking to make the Gulf Coast Water Company a party to the suit. He pled a parol gift of said dredge to himself and D. W. Beck by the Gulf Coast Water Company and sought judgment over and against it for any damages which might be rendered against him.

Article 1992, Revised Civil Statutes, provides that before a case is called for trial additional necessary or proper parties to the suit may be brought in by either plaintiff or defendant on such terms as the court may prescribe, but not at a time or in such manner as to unreasonably delay the case.

In construing this statute it has. been uniformly held that where a pleading has been filed on the day of the trial seeking to make additional parties to the suit,, the trial court is vested with a wide discretion in permitting the filing of amendments to the pleadings and in the making of additional parties. Ohmart v. Highbarger et al., Tex.Civ.App., 43 S.W.2d 975; Dayton Lumber Co. v. Stockdale, 54 Tex.Civ.App. 611, 118 S.W. 805; Texas Electric & Ice Co. v. City of Vernon, Tex.Civ.App., 252 S.W. 255.

In the instant case the Gulf Coast Water Company, which was sought to be brought in by amendment, was not a necessary party to the suit. The record shows-that it was domiciled in an adjoining county and that to have permitted the filing of the amendment for the purpose of making it a party would, of necessity, have delayed the trial of the case until the following term of court. Under the above facts, this contention must be overruled.

Appellant complains of the action of the trial court in rendering judgment in favor of appellee for damages arising from the conversion of said dredge, for the alleged reason that no issue was requested by appellee or submitted by the court covering the issue of whether or not there had been a conversion thereof by appellant.

No issue was requested by either party as to whether there had been a conversion of said dredge by appellant. It is uncon-troverted that appellee had a written assignment of the dredge from the record owner. The record shows conclusively that the dredge was surrounded by lands under appellant’s control and that when appellee sought permission from appellant to remove it, permission was denied him on the ground that the dredge belonged to appellant. Under the above facts, it is obvious-that unless appellant had a right to withhold said dredge from appellee no issue on the question of conversion by appellant was warranted.

The jury found, on sufficient evidence, that the Markham Irrigation Company had not abandoned said dredge and that neither appellant nor' his associate, D. W. Beck, had taken possession of the property under claim of ownership for more than two years prior to the filing of the suit.

While appellant assigns error in the failure of the court to submit to the jury his requested issue No. 1, which inquires as to whether the title to said dredge passed to the defendant and D. W. Beck by parol gift from the Gulf Coast Water Company, the record fails to show any facts which would, under appellant’s pleadings, constitute a parol gift to him or show the authority in any officer or agent of the company to make such a gift.

The testimony on which appellant relies to prove a parol gift is a conversation with a Mr. Gusman, who is shown to have been a superintendent for the Gulf Coast Water Company at the time the gift was alleged to have been made.

Appellant testified that he had a conversation with Mr. Gusman, and that after said conversation he had claimed title to said dredge up to the date of the trial. The details of said conversation were stricken by the court and no proper ex•ception was taken to the court’s action. Gusman testified that he did not give said ■dredge to appellant or to Mr. Beck, and that he had no authority to give it to any one. There is no contention on the part ■of appellant that any one except' Gusman ever gave the dredge to him or D. W. Beck. There is no evidence in the record that Gusman was authorized by the Gulf ■Coast Water Company to give said dredge to appellant and no pleading of apparent ■or implied authority in him or of a ratification of his authority with possession ■of the property in appellant.

It is the settled law in this state that in a suit for the conversion of property claimed to have been sold or given to defendant by an authorized agent of the owner thereof, the burden of proof is on the defendant to prove by a preponderance of the evidence that said agent was authorized by his principal to act in the ■capacity in which he is alleged to have acted. In the instant case, in the absence of any authority in Gusman to make the alleged parol gift to appellant, taken in connection with the jury’s findings on the theory of thb abandonment of said dredge .and limitation, no error was committed by the trial court in failing to submit an issue as to the conversion of said dredge by appellant or appellant’s requested issue as to whether the title to said dredge passed to appellant and D. W. Beck by parol gift. Butterworth et al. v. France, Tex.Civ.App., 66 S.W.2d 369; Lane et al. v. Sullivan, Tex.Civ.App., 286 S.W. 541; Winter v. Morgan & Williams, Tex.Civ.App., 256 S.W. 342; Kempner v. Huntsville State Bank, Tex.Civ.App., 282 S.W. 325.

Appellant assigns error in the refusal of the court to submit his requested special! issue No. 2, as to whether or not appellant', Myatt, had removed any part of said dredge, and his special issue No. 3, inquiring as to the reasonable market value of said parts, if any were so removed.

There is evidence that certain parts of said dredge were removed by some one other than appellee, but the dates when said parts were removed are not fixed. However, we are unable to see the materiality of said requested issues. Appel-lee sued for the conversion of said dredge and in the alternative for his damages. The cause was submitted on the issue of damages for the conversion and judgment was rendered on this theory of the case. The fact that appellant was withholding the dredge and had refused to surrender it to appellee on demand constituted a complete case of damages for the conversion of the whole. It was not necessary to ap-pellee’s recovery of damages . for conversion to show that appellant had actually used any part of said property. It is the settled law that when a wrong complained of amounts to a conversion the injured party has a right to so treat it and to Sue for the value of the property. Crawford v. Thomason, 53 Tex.Civ.App. 561, 117 S.W. 181; Ripy v. Less, 55 Tex.Civ.App. 492, 118 S.W. 1084; Panhandle & S. F. Ry. Co. v. Talmage, Tex.Civ.App., 206 S.W. 862.

Further, the answer to either of said requested issues could not have affected the judgment rendered and the failure to submit them would not constitute reversible error. Brokaw v. Collett, Tex.Com.App., 1 S.W.2d 1090; Kirkland v. Oil Inv. Co., Tex.Civ.App., 41 S.W.2d 125; Citizens’ Nat. Bank of Abilene v. Overstreet, Tex.Civ.App., 77 S.W.2d 250.

Appellant complains of the action of the court in admitting, over appellant’s objection, testimony of the witness Benny J. Peters as to the value of the dredge at the time and place of the alleged conversion.

The record shows that while the witness Peters testified as to the market value of scrap iron at Bay City over the objection of appellant, he later testified as positively, and without objection, as to its value at the time and place of its conversion.

The record shows further that in connection with the testimony of the witness as to the value of scrap iron at Bay City he testified that he could move it to Bay City for $1 per ton.

Our courts have uniformly held that the proper measure of damage, where there is no market at the point at which the property in question is located, is its value where located, less the cost of transporting it to the nearest market where its value can be realized. St. Louis B. & M. R. Co. v. Droddy, Tex.Civ.App., 114 S.W. 902; Galveston, H. & S. A. R. Co. v. Brune, Tex.Civ.App., 181 S.W. 547.

We have fully considered all other propositions presented in appellant’s brief. None of them, in our opinion, show reversible error. The judgment of the trial court will, therefore, be in all things affirmed.

Affirmed.


source: Caselaw Access Project

author: FOLLEY, Justice.

license: Public Domain

text:
    PATTERSON et ux. v. SHELL PETROLEUM CORPORATION et al.
    No. 5160.
    Court of Civil Appeals of Texas. Amarillo.
    May 27, 1940.
    Rehearing Denied Sept. 23, 1940.

      Whitaker, Perkins & Turpin, of Midland, and Joe J. McGowan, of Brownfield,, for appellants.
    Carl Rountree, of Lamesa, W. A. Grif-fis, Jr., of Seagraves, Bradley & Wilson, of Lubbock, and Scott W. Key and Barks-dale Stevens, both of Houston, for appel-lees.
   FOLLEY, Justice.

This suit was originally filed by the appellants, B. T. Patterson and wife, Eva Patterson, alleged to be residents of Leon. County, Texas, on May 18, 1938, against the appellees, the Shell Oil Company,, George Baumgart, D. A. Robertson and others, in the nature of an action in trespass to try title involving the NE% of Section 826, Block D, in Yoakum County,. Texas. By amended petition filed on May 25, 1939, the appellants sought to quiet title in them to the above land and to cancel a quitclaim deed of the date of November 17, 1937, from appellants conveying the land to D. A. Robertson. The trial court sustained general demurrers filed' by the appellees to appellants’ first amended original petition, arid, upon appellants’ refusal to amend their pleadings, dismissed the suit. It is from such action that this, appeal is prosecuted.

The trial court having sustained a general demurrer to appellants’ petition we are .confronted with the rule which compels us to assume the truth of the facts alleged and to resolve every reasonable in-tendment in favor of the sufficiency of the petition. Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744, and authorities therein cited. In this connection, however, we want it distinctly understood that our conclusions hereinafter expressed are governed by the above rule and are not to be misconstrued as findings of fact upon the merits of this case.

The appellants alleged that on March 20, 1917, Edward Randall and wife, Laura B. Randall, conveyed to J. N. Farris Surveys 828, 826, 866 .and 892, in Block D,. Yoakum County, Texas; that Randall reserved a vendor’s lien upon said land to secure the payment of ten notes for $1,-280 each; that on March 6, 1917, Edward Randall and wife, joined by Mary Manson Ellis and her husband and Edward Randall Manson, conveyed Surveys 827, 829 865 and 893 in Block D of Yoakum County to J. N. Farris, reserving a vendor’s lien to secure ten other notes each in the sum of $1,280, five of such notes, Nos. 1, 3, 5, 7 and 9, being payable to Mary Manson Ellis and Edward Randall Manson, and the other five, Nos. 2, 4, 6, 8 and 10, being payable to Edward Randall; that thereafter Notes Nos. 1, 2, 3, 4 'and 5 were paid; that J. N. Farris died leaving a will devising all of his property to his wife, Maggie C. Farris, said will having been duly probated; that thereafter on or about March 15, 1923, Maggie C. Farris, for herself and as the independent executrix of the estate of her deceased' husband, conveyed the above eight sections of land to the appellee, George Baumgart, who as a part consideration assumed the payment of the above unpaid notes in the two series above referred to; that on March 20, 1924, Baumgart executed .and delivered his ten promissory notes for $800 each, numbered 1 to 10, inclusive, said notes Nos. 2 and 4 being payable to. Mary Manson Ellis and the other eight payable to Edward Randall, all of said notes being secured by a vendor’s lien on Sections 829, 828, 827, 826 and 866, and being in renewal and extension of the unpaid balance of all of the notes and liens above described; that in such . extension agreement it was stipulated that Baumgart, his heirs and assigns, should have the right at any time to secure a release of any of the land from the liens upon payment of not less than $2.50 per acre for the land desired to be released, said payments to be applied to the last maturing unpaid notes, provided such released tracts should not contain less than 160 acres; that thereafter by deed dated April 4, 1924, Baumgart and wife conveyed Sections 829, 828, 827, 826 and 866 to Zella M. White for $13,008.60 cash, the further consideration of her assumption of the payment of a debt of $8,000 as evidenced by the unpaid notes of the two series above mentioned, her further assumption of the payment of $3,432 due the State of Texas on Sections 828, 826 and 866, and the further consideration of her execution of fourteen .vendor’s lien notes dated April 4, 1924, the first thirteen being in the sum of $1,000 each and payable respectively to Baumgart on or before January 1, 1926 to 1938, inclusive, and the fourteenth note being for $2,559.40, payable on or before January 1, 1939, said notes bearing 8% interest and containing accelerated maturity clauses; that at the time said deed and the above notes were executed Baumgart and Zella M. White entered into an agreement to the effect that should Zella M. White, her heirs or assigns sell any of said land in tracts of 160 acres or multiples thereof, Baumgart would segregate the lien securing the payment of the notes held by him so as to permit each of said tracts to bear its proportionate part of his lien; that by deed of April 25, 1924, Zella M. White, joined by her husband, P. F. White, conveyed to B. F. Williams Sections 826 and 866, the recited consideration being $10 cash, the execution by Williams of two notes of $500 each payable to Zella M. White, each of said sections to carry a vendor’s lien by virtue of one of such notes; that in said deed Williams assumed the payment of $3,200, being two-fifths of the blanket lien and indebtedness of $8,000 held by Edward Randall in connection with the notes executed by Baumgart, assumed the payment of. $6,223.76, or two-fifths of the blanket mortgage and debt held by Baumgart against the five sections of .land conveyed by Baumgart to Zella M. White, and further assumed payment of the unpaid obligation due the. State of Texas for purchase money in the original grant from the State; that Williams and wife by deed dated October 10, 1924, conveyed the NE% of Survey 826 to W. E. Young and W. A. By-num, the recited consideration being $10 cash, the assumption by grantees of $400 due Edward Randall, $777.97 due Baum-gart and $125 due Zella M. White, alleged to be the proportionate amounts due on the 160 acres to the respective lienholders, and the further assumption of the indebtedness due the State of Texas upon said quarter section; and that by deed of January 5, 1925, Young and Bynum conveyed the 160 acres to the appellant, B. T. Patterson, the recited consideration being $2,000 in cash, the assumption by Patterson of the payment of the $400 indebtedness due Edward Randall, the $777.97 due Baumgart, the $125 due Mrs. Zella M. White and the $1.75 per acre, less 1/40 thereof, as the amount due the State of Texas.

The appellants further alleged that thereafter Baumgart filed suit in the District Court of Yoakum County, Texas, against certain defendants, including the appellant Patterson, for debt and foreclosure upon Sections 828, 827, 826 and 866 (which included the land herein involved); that Baumgart alleged that the residences of Patterson and the other defendants were unknown to him; that Patterson and all other defendants in said suit were cited by publication to be and appear in said court on the fourth Monday in December, 1927, the same being the 26th day of December, 1927; that thereafter on appearance day judgment wns rendered for Baumgart against all of the defendants for debt and foreclosure upon the four sections of land; that none of the defendants in such suit, other than Patterson, owned or claimed any interest in the 1^½ of Section 826; that on February 14, 1928, after the date of the judgment, order of sale was issued and on April 3, 1928, the four sections of land were sold to Baumgart under said order of sale for a consideration of $3,-200, the amount bid at such sale; that'said judgment, order of sale and sheriff’s deed made by virtue thereof were void because no affidavit for citation by publication was made as required by law, and because a p'ersonal judgment was rendered against the defendants therein; that the citation by publication was void and the judgment rendered thereon a nullity because the defendants in such judgment resided in Texas and their places of residence were known to Baumgart and his attorney; that the sale was void under said order of sale because it was made on April 3, 1928, which was after the return day of the order of sale issued on February 14, 1928, and returnable in thirty days; that the sale of the land for $3,200 was grossly inadequate; that no citation was ever served upon the defendants in such suit nor was there any waiver of service or any appearance by the defendants; that the citation by publication was void for the further reason that it was not published in Yoakum County where there was a newspaper at such time .in which the same could have been legally published, but on the contrary was published in Terry County, Texas; that the appellant Patterson, defendant therein, could and would have redeemed his land from the indebtedness and liens if he had known of the suit; that Baumgart fraudulently concealed the suit from the Patter-sons and for such purpose caused such action to be brought and Patterson to be cited by publication although Baumgart and his attorney knew the whereabouts and place of residence of all the defendants in such suit; that Baumgart cited such defendants by publication knowing that they did not live in. Yoakum County and that they would not see the publication or know of the prosecution of the suit; that by reason of such facts the appellants did not appear and defend such suit nor did they discover that such suit had 1 been brought and judgment rendered therein until a few days prior to the filing of the instant suit; that by reason of all the things above alleged the appellants were the owners of the of Section 826; that the appellees have had possession of said land intermittently for the past few years and have collected a large amount of rents and revenues therefrom, an amount in excess of the principal, interest and attorneys’ fees of said notes; and that the rental value of such land was in excess of the indebtedness due thereon ánd ,that appel-lees should be required to render an accounting of all rents and revenues received therefrom.

The appellants further alleged that on or about the month of November, 1937, the Shell Petroleum Corporation (now Shell Oil Company by change of name), by its officers and agents, and all the ap-pellees herein, conspired and fraudulently acted together to induce the appellant, B. T. Patterson, to surrender and divest himself of the ownership of the NE¼ of Section 826; that pursuant to said scheme and purpose on and prior to November 17, 1937, the appellees caused D. A. Robertson, acting for himself and the other appellees, to approach the appellant Patterson and make fraudulent representations to Patterson; that it was represented that Baum-gart had foreclosed on the land, making Patterson a party, and that by reason thereof the appellants had no interest in the land; that it was further represented that the unpaid indebtedness against the section of which appellants’ land was a part, was largely in excess of the actual market value of the land; that upon inquiries made by Patterson, D. A. Robertson, in pursuance of the fraudulent scheme and conspiracy, represented to Patterson that said lands had no mineral value ór value for oil and gas purposes and that there was no mineral development in the vicinity thereof; that Robertson further represented that he was endeavoring to clear up the title of said lands for the owner thereof from minor defects which were not of sufficient importance to affect the title but might constitute a cloud on the same or cause some delay or inconvenience in the conveyance thereof by the owner; that each and all of such representations were false and fraudulent, were known to be such by the appellees and were made for the purpose of inducing the appellants to execute a deed to Robertson to the of Section 826; that the appellants relied on such representations and but for them they would not have executed the deed; that at the time said representations were made the appellees knew, and the true facts were, that the proceedings in the foreclosure suit of George Baumgart were void and further knew that appellants had title to the of Section 826; that the appellees knew, and the true facts were, that Baumgart had taken possession of such land and had collected rents and revenues therefrom in excess of the indebtedness due on the land; that the appellees knew, and the true facts were, that the actual market value of the land was many times the amount of the indebtedness and that. such market and intrinsic value of the land was not less than $700 per acre; that the appellees knew, and the true facts were, that the lands • had a large mineral value for oil and gas purposes, and were in fact in the center of what is known as “a hot oil play” and were in great demand by all oil operators, companies, prospectors and speculators, all of which facts were not only falsely and fraudulently concealed from the appellants, but were denied in answer to appellants’ inquiry; that acting upon said false and fraudulent representations the appellants on or about November 17, 1937, for a nominal consideration of $25 executed and delivered to Robertson a quitclaim deed conveying to him all the right, title and interest of the appellants in said quarter section of land; that said deed was without consideration or in the alternative the $25 was a grossly inadequate consideration; that the appel-lees were wrongfully asserting some right, title and interest in such land which claims were invalid and cast a cloud upon appellants’ title; that the appellants should be entitled to .pay said indebtedness, if any, against said 'quarter section, and appellants offer to do so and to do equity; and that if the amounts of the rents and revenues from the land were not sufficient to satisfy all such liens and debts against the land, or if the appellants were not entitled to have the same applied upon the indebtedness, they offered to pay such amount as the court found to be due, unpaid, just and equitable, and tendered into court the return of the $25 consideration for the quitclaim deed.

The appellants further alleged that neither Baumgart nor any of the other ap-pellees ever rescinded or attempted to rescind the sale or conveyance to Zella M. White of the lands conveyed to her; that neither Baumgart nor any of the appellees ever notified the appellants of any intention to rescind the sale; that Baumgart and the other appellees were not entitled to rescind because Baumgart delayed and did not attempt to rescind the sale when the annual installments became due respectively on March 20, 1925, 1926 and 1927, and for several years thereafter, but Baumgart indicated by his silence and failure to insist upon payment of the notes that he did not intend to insist .upon the prompt payment thereof; and that George Baumgart, in bringing his foreclosure suit, elected not to rescind his conveyance of the lands to Zella M. White. Appellants prayed for judgment for the land and for cancellation of the deed to D. A. Robertson and of a deed from D. A. Robertson to George Baumgart, however, the latter deed was not theretofore mentioned in the petition. They further sought judgment that their title to said land should be quieted. It was upon the above allegations that the demurrer was sustained.

The appellants present numerous assignments and propositions attacking the action of the trial court, to which the appellees have addressed counter propositions seeking to uphold the court’s action. We think the issues are thus reduced to three principal contentions, namely: (1) whether or not there were sufficient allegations for cancellation of the quitclaim deed from the appellants to Robertson; (2) whether or not there was an election of remedies by George Baumgart in his foreclosure suit such as to preclude a rescission after such election; and (3) whether or not the petition of the appellants_ is fatally defective because it shows upon its face that the appellants were guilty of laches as a matter of law or that their claim constitutes a stale demand or is barred by limitations, as asserted by the appellees.

It is apparent from the above allegations that the first hurdle the appellants must negotiate is to show sufficient allegations to set aside the quitclaim deed of November 17, 1937, conveying their right, title and interest in the quarter section of land to D. A. Robertson. Unless such conveyance is set aside all other issues pass out of the case. The appellees assert that the appellants have not alleged a cause of action in this respect because they have pleaded no sufficient grounds for cancellation. The appellees asser* .that the alleged misrepresentations of D. A. Robertson constitute, at most, mere expressions of opinion as to matters of law and of value and do not constitute actionable representations of existing material facts justifying cancellation-.

We recognize the general rule that the “mere expression of an opinion is not a representation upon which a party contracting is entitled to rely, and which if found to be incorrect will be sufficient to avoid a contract”. Little v. Allen, 56 Tex. 133, 139. However, there are some exceptions to this general rule. 20 Tex.J-ur. 24, par. 12. We also recognize the general rule that misrepresentations as to a matter of law will not ordinarily support an action for fraud and deceit; however, this rule also has its exceptions. 20 Tex. Jur. 28, par. 14. Without discussing such exceptions to these rules it is our- opinion that the allegations above with reference to the misrepresentations of Robertson contain some 'assertions which are neither expressions of opinions nor representations as to matters of law. We refer particularly to the allegation that Robertson represented to the appellants that the lands had no mineral value or value for oil and gas purposes and that there was no mineral development in the vicinity thereof, and especially is this true since the information furnished was asserted to have been in response to inquiries made by the appellants. These representations, we think, were of very material facts which, if untrue, constituted the very essence of deceit and fraud. Feist et al. v. Roesler, Tex.Civ.App., 86 S.W.2d 787, and authorities therein cited. In controverting the truth of these allegations the appellants alleged that the appellees knew, and the true facts were, that the lands then had a market, value of $700 per acre; that they were situated in the center of what was known as “a hpt oil play”; that they were in great demand by oil companies; and that Baumgart had theretofore executed gas and oil leases on the land and had received large sums in bonuses and rentals therefrom. We think it is apparent that these allegations contain all of the requisite elements of fraud, namely: (1) that they were misstatements of material facts; (2) that such statements were false; (3) that they were made with the intention that' they should be acted upon; (4) that the appellants did not know they were false but relied thereon;' and (5) that they were injured thereby. It is therefore our opinion that these allegations were sufficient to support a judgment cancelling the quitclaim deed.

There is no dispute between the parties in regard to the sufficiency of the allegations of the appellants to show that the foreclosure sale and the sheriff’s deed in 1928 were void. It is the effect of such void foreclosure and sale and the subsequent possession of the appellee Baumgart of the land which affords the chief controversy between the parties herein. The appellants contend that the filing of the suit by Baumgart, the obtaining of the alleged void judgment therein and the attempted sale, amounted to an affirmance of the contract of conveyance and constituted an election of remedies which has not been abandoned and that the appellee Baumgart is therefore a mortgagee in possession without the right to now claim a rescission, a remedy inconsistent with the remedy pursued by him. The appellees contend that the foreclosure judgment and the sale thereunder having been alleged to be void, Baumgart was not precluded from thereafter claiming a rescission of his conveyance to Zella M. White.

We have been unable to find any authorities, and the parties herein have failed to cite us to any, which clearly decide the exact point in issue in this regard. It is elementary that Baumgart had a choice of remedies available to him when he filed his foreclosure suit. He could have abandoned the contract and recovered the land, which would have amounted to a rescission, or he could have asserted the contract and'obtained a judgment for his debt and a foreclosure of his lien. Gardener v. Griffith et al., 93 Tex. 355, 55 S.W. 314; Mozoch v. Sugg, Tex.Com.App., 254 S.W. 770; Bassham et al. v. Evans, Tex.Civ.App., 216 S.W. 446. It is well settled that when a vendor elects to sue for the debt and the establishment of his lien, and reduces the same to judgment, he loses his right to sue for and recover the land. Von Roeder v. Robson, 20 Tex. 754; Heirs of Edward Roberts v. Lovejoy, 60 Tex. 253; Gunst v. Pelham, 74 Tex. 586, 12 S.W. 233; Pierce v. Moreman et al., 84 Tex. 596, 20 S.W. 821. It has also been held that where one purchased land at a foreclosure sale, irregular or void as to the mortgagor or one claiming under him, such purchaser is claiming under the mortgage and is entitled to retain possession until his debt is paid. Robinson v. Smith, 133 Tex. 378, 128 S.W.2d 27; Jasper State Bank v. Braswell et al., 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329. But these rules afford us little comfort in determining the right of a vendor to rescind his contract of sale after he has filed suit for his debt, obtains an alleged void judgment and takes possession under a void deed in a void foreclosure sale. However, it has been held that a foreclosure under a power of sale cannot be resorted to until abandonment and dismissal of a previously instituted judicial foreclosure suit. Gandy et al. v. Cameron State Bank, Tex.Civ.App., 2 S.W.2d 971, and authorities therein cited; First Trust Joint Stock Land Bank of Chicago v. Hayes et al., Tex.Civ.App., 90 S.W.2d 331. In this connection there was no allegation of an abandonment of the remedy of foreclosure first elected by Baumgart. On the contrary the appellants alleged that neither Baumgart nor any of the other appellees ever rescinded or attempted to rescind or repudiate the sale to Zella M. White. Moreover, the appellants have alleged that the foreclosure suit was fraudulent in that Baumgart knew the residence of the defendants therein yet. he cited them by publication for the purpose of concealing the suit from them. This allegation, if true, we think would amount to legal fraud and under all these circumstances it is our opinion the theory of rescission cannot be reasonably deduced from the pleadings of the appellants.

On the issues of laches, stale demand and limitations urged by the appellees in support of the judgment, we think a sufficient answer to this contention is that ordinarily these issues are matters of special defense which may not be reached by a general demurrer. The law of limitations is by statute made available in a suit only by a defensive plea and we think (here is no variation from this statutory rule. Article 5540 R.C.S.; Johnston et al. v. Stephens et al., 121 Tex. 374, 49 S.W.2d 431; Rivers v. Washington, 34 Tex. 267; Sasser v. Davis, 27 Tex. 656, 657. It has also been held by the San Antonio Court of Civil Appeals, with the approval of the Supreme Court of this State that “laches or stale demand must be pleaded in order to avail a party invoking it against his adversary * * * Moore v. Miller et al., 155 S.W. 573, 577, writ denied. Also, in Collins et al. v. Griffith, Tex.Civ.App., 105 S.W.2d 895, 898, this court held: “The presumption of laches or limitation arising from lapse of time may be rebutted and overcome by competent testimony, and under the allegations in appellee’s petition and her prpof, the delay is explained. These are issues to be determined on a trial of the merits if appellants plead limitation or laches as a defense. 28 Tex.Jur. p. 285, par. 191; 27 Tex.Jur. p. 31, par. 14.”

The appellants asserted a partial performance of the contract on their part, further pleaded that the appellees had made no effort to collect the purchase money or rescind the sale, and also charged the appellees with fraudulent conduct both in connection with the foreclosure suit and with reference to the execution of the quitclaim deed by the appellants. Under these circumstances we think the defensive issues of laches and stale demand become questions of fact to be decided in a trial upon the merits and cannot be reached by a general demurrer to the pleadings of the appellants. At least, laches and stale demand do not appear as a matter of law upon the face of the petition. Turner et al. v. Hunt et al., 131 Tex. 492, 116 S.W.2d 688, 117 A.L.R. 1066, and authorities therein cited; Johnston et al. v. Stephens et al., Tex.Sup. Court, supra; De Cordova v. Smith’s Adm’x, 9 Tex. 129, 130, 58 Am.Dec. 136; Slaughter v. Coke County, 34 Tex.Civ.App. 598, 79 S.W. 863, writ refused; Drinkard v. Ingram et al., 21 Tex. 650, 73 Am.Dec. 250; Loomis et al. v. Cobb, Tex.Civ.App., 159 S.W. 305, writ refused; Montgomery et al. v. Trueheart, Tex.Civ.App., 146 S.W. 284, writ denied, and authorities therein cited; Bordages et al. v. Stanolind Oil & Gas Co. et al., Tex.Civ.App., 129 S.W.2d 786; Brady et al. v. Garrett, Tex.Civ.App., 66 S.W.2d 502; 21 C.J. par. 211, pages 210, 211; Walker v. Emerson, 20 Tex. 706, 707, 73 Am.Dec. 207; Shear Co. v. Stuth et al., Tex.Civ.App., 248 S.W. 158; Stafford v. Stafford, 96 Tex. 106, 70 S.W. 75.

What we have said above we think disposes of all the issues presented in this case and it follows that it is our opinion the trial court erred in sustaining the general demurrer to appellants’ petition.

The judgment is reversed and the cause remanded.

On Motion for Rehearing.

In appellees’ motion for rehearing one contention is presented which we did not discuss in our original opinion. It is to the effect that appellants’ suit being one for specific performance of an executory contract for the sale- of land the general demurrer was properly sustained because the petition of the appellants affirmatively discloses that they have been guilty of laches as a matter of law. In 'this connection it is asserted that the failure of the Pattersons to pay the purchase money as agreed, together with interest and taxes, precludes their right to seek relief in a court of equity.

We are not in accord with appellees’ contention that this suit is one for the specific performance of the original contract of sale. Under the authorities of this State we think it is settled that a general warranty deed reserving a vendor’s lien securing purchase money is ex-ecutory as between the vendor and vendee only in the sense that the naked title remains in the vendor to be automatically vested in the vendee upon payment of the purchase price and- in all other respects the deed is an executed contract. Humphreys-Mexia Co. et al. v. Gammon et al., 113 Tex. 247, 254 S.W. 296, and authorities therein cited. When the purchase money has been paid the title of the vendee in such deed becomes absolute without any action on the part of the vendor. Carey et al. v. Starr et ux., 93 Tex. 508, 56 S.W. 324. It has also been held by the Supreme Court of this State that upon a tender of the purchase money into court the title of the vendee becomes perfect. Stitzle et ux. v. Evans, 74 Tex. 596, 12 S.W. 326, 327. In the latter case it is said: “Upon payment or tender .of the purchase money in this case, the title of the appellee became perfect. Russell [& Seisfeld] v. Kirkbride, supra [62 Tex. 455]. Nothing remained for the grantors to do to complete it. The contract was not executory on their part.”

Since the appellants have tendered into court the purchase money and such other sums as may be adjudged to be due, it is still our opinion that laches and stale demand do not appear as a matter of law upon the face of appellants’ petition. 21 C.J. 215, par. 213; Riley v. McNamara, 83 Tex. 11, 18 S.W. 141.

The motion for rehearing is overruled.


text:
    BLEDSOE v. CITY OF AMARILLO.
    No. 5189.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 9, 1940.
    Rehearing Denied Oct. 7, 1940.
    James O. Cade, of Amarillo, for appellant.

      Underwood, Johnson, Dooley & Wilson, of Amarillo,' for appellee. ■
   FOLLEY, Justice.

The appellant, C. B. Bledsoe, filed this suit against the City of Amarillo seeking damages .for personal injuries alleged to have been received by him when he slipped 'and fell on Eighth Avenue in the City of Amarillo. The trial court sustained a general demurrer to 'appellant’s petition and, upon his refusal to amend, dismissed the suit.

The appellant alleged that on the 18th day of September, 1937, about eight or nine o’clock A. M. he was walking eastward on West Eighth Avenue between Madison and Monroe Streets-⅛ the City of Amarillo where there was no sidewalk on either side of such avenue or street; that the north side of the avenue was unpaved and muddy and he was walking on the south side as near to the south curb as he could get; that as he approached the alley-way halfway between Madison and Monroe he noticed that a great deal of water and mud had accumulated in the mouth of the alley where it came out into Eighth Avenue; that he walked carefully outward to the north in an effort to go around the water and mud which extended out into the avenue; that in doing so he stepped upon a piece of cardboard lying in the street which appeared to be entirely dry but that water, because of the stoppage of its normal flow, had accumulated under the cardboard in such way that it could not and was not discovered by the appellant; that as he stepped upon the cardboard it slipped by reason of mud beneath it causing him to fall and break both of his hips; that the mud and water had accumulated in the alley and in the street as a result of a large amount of trash and other debris which had been deposited by residents of the city in proper receptacles at the rear of properties in that neighborhood pursuant to instructions from the officers of the city so that such trash and debris might be hauled away ’ in certain trucks maintained by the city for that purpose; that for three or four weeks the city employees had failed and refused to move the trash and debris from such receptacles and permitted it to become scattered in the alley and to clog the normal flow of the water therein; that it had rained the previous night and trash left in the alley had caused the clogging of the alley to the extent that mud and water had collected in the street and alley at a point where the mouth of the alley, came into the street; that this-condition made the street dangerous to the people passing and more particularly to-appellant, a man sixty-nine years of age; that the appellee knew, or in the exercise-of ordinary care should have known, that leaving the street in such condition was dangerous; that the appellee was negligent in permitting trash, weeds and debris to-accumulate in said alley in such manner that water from ordinary -rainfall would' not flow through such alley to the extent that water and mud were forced to stand' out in Eighth Avenue where pedestrians might be injured in passing the mouth of' the alley; and that the appellee was negligent in permitting trash, weeds and debris,, and particularly the cardboard upon which the appellant slipped and fell, to be washed' or blown' from the alley into the street.

The theory of the trial court in sustaining the general demurrer to appellant’s-petition as expressed in the judgment -was-“that the allegations of plaintiff’s petition, if accepted as true, fail to show any causal connection between the acts and omissions-charged as negligence and the actual accident by which plaintiff was injured as that accident is described in plaintiff’s petition,, or that the accident as it occurred was in-any sense forseeable as the natural or probable consequence of the allegedly negligent act; further, that the particular thing to which plaintiff’s own pleadings charge the accident, to-wit, the presence of the cardboard upon which plaintiff slipped, is not shown by plaintiff’s pleadings to have constituted negligence on the part of defendant, and in any event plaintiff’s pleadings are wholly insufficient to assert any cause of action for which the defendant, the City of Amarillo, is entitled to respond in damages, even accepting as true the facts pleaded by plaintiff”. In this conclusion we think the trial court was correct.

Obviously, appellant’s petition does not undertake to charge the appellee with negligence on any theory that the city, with knowledge actual or constructive, had permitted a dangerous condition to exist on Eighth Avenue. The appellant does assert that for a considerable time the city had permitted the accumulation of trash and debris in the alley, but nowhere does he allege that the particular condition to>. which his injury was attributable — the de■ceptive cardboard — had existed prior to the morning the accident occurred. Nor is it alleged that the appellee knew, or by the use of reasonable diligence should have known, that this particular condition existed. It seems that a fair analysis of such pleading is that the immediate cause •of the accident was not the neglect of the city in failing to remove the trash and debris from the alley, but on the contrary was the piece of cardboard which appellant asserts was deceiving to him. He thought it was dry and chose to step on it rather than around or over it. It was ■therefore apparent to him, and, no doubt, would have been to the officials and employees of the city, that there was nothing vicious about the cardboard itself. It, alone, would not have produced the injury. It took the water and mud underneath the cardboard to create the hazardous condition affording the occasion for the fall of. the appellant. The question therefore arises as to whether those responsible for the presence of the trash and debris in the alley should reasonably have anticipated in the light of the attending circumstances that by reason of their neglect of duty the injury sustained or some similar injury ■would probably result.

We think the question presented suggests a negative answer. It is our opinion this case falls clearly within the rules announced by our Supreme Court in the following cases: . Seale v. Gulf, Colorado & Santa Fe Ry. Co., 65 Tex. 274, 57 Am.Rep. 602; Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162; City of Vernon v. Lisman et al., Tex.Com.App., 17 S.W.2d 769; and San Antonio & A. P. Ry. Co. v. Behne, Tex.Com.App., 231 S.W. 354.

In the Seale case recovery was denied for the alleged wrongful death of a young •girl who was seriously burned in trying to extinguish a fire caused by the negligence •of the defendant. In such case it is said: “That one exercising due care, and incurring no risks, in extinguishing a fire, should have the flames communicated to her clothes, and thereby lose her life, is something so improbable that the anticipation •of it should not be charged to anyone under such circumstances. Such a thing might happen, but it would be only from some ■casualty which could not possibly be foreseen; and, in such cases, as we have seen, the original negligence cannot be regarded as the proximate cause of the injury.”

In the Bigham case the negligence of the railway company in having a defective fastening upon a gate to its stock pens was held not to be the proximate cause of injuries to the owner of cattle who was injured by the cattle escaping through the gate after having been frightened by the noise of a passing freight train. In that case the opinion by Chief Justice Gaines states [90 Tex. 223, 38 S.W. 164]: “In our opinion, nothing short of prophetic ken could have anticipated the happening of the combination of events' which resulted in the injury of the person of the plaintiff. The act of the defendant in permitting the fastening to its gate to become insecure was in itself lawful; and, since it was clearly out of the range of reasonable probability that an injury to the person of any one should result, it should be held, as a matter of law, that the negligence of the company gave no right of action for such injuries.”

In the Lisman case liability was denied for the death of one whose automobile became stalled in a mud hole in the City of Vernon, Texas. While the decedent was trying to extricate his automobile from the mud hole he was struck and killed by a passing motorist. The city was alleged to have been negligent in permitting the 'mud hole to remain in the street. In that case it is said [17 S.W.2d 770]: “* * * but here the negligence of the city did not, to any extent, proximately cause the death. It was at most only the occasion for deceased’s presence in the street. The universal test of the legal conception of proximate cause, plainly stated, is whether or not the wrongdoer could reasonably have anticipated that such a consequence would follow. The whole question is thoroughly discussed in Texas & Pacific Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, which has long been considered as the last word on 'proximate cause.’ By analogy the case of Fort Worth & R. G. Ry. Co. v. Neely (Tex.Civ.App.) 60 S.W. 282, is in point. There the railroad company negligently maintained a mudhole in a public street in Granbury. Charles Neely was thrown from the buggy in which he was riding because his horse became frightened at escaping steam from a passing engine and ran into the mudhole. It was there held that the negligence with respect to the mudhole was but passive and was not the proximate cause of Neely’s injury and death. The fright of the animal and his running away was held to have been an efficient intervening cause of the accident. So here the act of the driver of the passing automobile in striking Lisman was itself an efficient intervening cause of his death, whether such act was negligence or not. It adds nothing to plaintiff’s case that the accident would not have happened but for the negligence of the city in maintaining the mudhole. That was true in the Neely Case. This does not make such act a proximate cause of the subsequent injury. It would be purely speculative to hold that the city ought, under such circumstances, to anticipate not only that an automobile might become stalled in the mudhole and that its driver or occupant would get out into the street and make an effort to start it, but that another vehicle would run him down and injure him.”

The Behne case was an action for damages brought against a railway company to recover for the death of Ed Behne who was drowned by being thrown from a tree in which he had taken refuge, from the flood waters of a stream, the tree having been struck by a bridge of.the defendant which had been washed away by the flood waters of the stream. Liability was predicated upon the failure of the railway company in constructing its road bed and tracks to provide the necessary drainage for the adjacent land. The controlling question in that- case ' was whether the failure of the railway company in that particular was the proximate cause of the drowning of the deceased. After discussing the Seale and Bigham cases the opinion in the Behne case concludes [231 S.W. 357]: “We think a proper application of the principles above announced leads to the conclusion that the failure of defendant company to provide proper drainage as required by the statute was not the proximate cause of the death of plaintiff’s son. Conceding that the flood was not so unprecedented, either in height or suddenness, as to be without the purview of the statute, and that defendant should reasonably have anticipated its happening, and that it might result in washing away the bridge; nevertheless, the chain of circumstances which brought about plaintiff’s position of peril- was so unusual and improbable as to be wholly without the sphere of events which defendant ought reasonably to be held to have anticipated. That the events of this chain were possibilities is, of course, conceded. This is demonstrated by the fact that they did happen, and as a result of the operation of natural laws. But the extreme improbability of the resultant death of plaintiff’s son rests in the fact that it could only happen at a time of heavy flood, unusual in its suddenness and under such circumstances that no one could be presumed to be, except by the barest stretch of the imagination, in the path of the destroying agency —the washed away bridge. The causal connection between the negligence which put in motion that agency, and the injury, is not controlled by the fact that the agency acted directly upon the injured party. That causal connection was broken in contemplation of law by the intervention of disconnected and independent agencies, brought into being by a chain of circumstances so improbable as to render them in law unforseeable. The breaking away of the bridge was indeed a cause, and an immediate cause, of the injury. Without it, the injury would in all probability not have happened. But the relation between the wrongful act complained of and the ultimately resultant injury is so remote as ’ to require resort, not to probabilities, 'but to fantastic speculation in bare possibilities, if not indeed to ‘prophetic ken’; which the law does not require.”

.Measured by the rules announced in the above authorities, and viewing the pleadings of the appellant in their most favorable light, we think it would be highly speculative to assert that the necessary element of forseeableness and anticipation of injury is present in the instant case. The basis of the rule in this respect as announced in the Bigham case is that one should not be held responsible for those consequences of his acts which in the light of common experience he could not reasonably be expected to have anticipated. “It would seem that there is neither a legal nor a moral obligation to guard against that which' cannot be foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed”. Although the City of Amarillo may have been guilty of negligence in leaving the trash and debris in the alley, this wrongful conduct is, in our opinion, just about as remote from the actual fall of the appellant as it would have been from injuries received from the bite of a poisonous reptile lurking under the cardboard upon which he stepped. In either event the element of proximate cause is lacking and the causal connection is absent.

The judgment is affirmed.


author: MONTEITH, Chief Justice.

text:
    GOSSETT et al. v. LONE STAR BUILDING & LOAN ASS’N et al.
    No. 11109.
    Court of Civil Appeals of Texas. Galveston.
    Aug. 1, 1940.
    Rehearing Denied Oct. 3, 1940.
    Gerald C. Mann, Atty. Gen., Wm. J. Fanning, Lloyd Armstrong, and Ocie Speer, Asst. Attys. Gen., and Joe Goodwin, of Austin, for appellants.
    J. L. Webb, of Houston, for appellees.
   MONTEITH, Chief Justice.

This is an appeal from an order overruling a plea of privilege in an action brought in the district court of Harris County by appellees, Lone Star Building & Loan Association and its officers and directors, against appellant, Z.. Gossett, Banking Commissioner of the State óf Texas, and Gerald C. Mann, Attorney General, in which appellees sought a temporary restraining order enjoining appellants from taking any action looking to their removal as officers and directors of the Lone Star Building & Loan Association, or interfering with their functions as such, until a hearing thereon was had in the district court of Harris County.

The Banking Commissioner duly filed his answer as such Banking Commissioner in said suit. Thereafter, appellees filed their first amended original petition, wherein for the first time they made Attorney General Mann a party defendant, and sought damages against both him and the Banking Commissioner, individually.

After the filing of said first amended original petition, appellants, Gerald C. Mann, Attorney General, and, Z. Gossett, Banking Commissioner, duly filed their respective pleas of privilege to be sued in Travis County, the county of their residence. In ■ due time appellees filed their controverting affidavits, in which, they claimed venue in Harris County.

Upon a hearing on the allegations of said pleas of privilege and controverting affidavits, appellants’ pleas were overruled. They appeal from this order.

In their original petition appellees alleged that the officers and directors of the Lone Star Building & Loan Association received a letter from said Banking Commissioner advising them that there would be a hearing on April 24, 1939, for the purpose of determining whether or not the officers and directors of said Association should be removed. They alleged that they would suffer irreparable injury if said Commissioner was permitted to take the course he proposed. They sought a temporary restraining order enjoining the Banking Commissioner from taking such action without court procedure, and that upon final hearing said injunction be made permanent.

A temporary restraining order was issued on April 20, 1939, restraining the Banking Commissioner from taking any action looking to the removal of appellees as said officers and directors of said Association. .

Upon a hearing in the 55th Judicial District Court of Harris County on May 23, 1939, the temporary restraining order which had'previously been granted by that court was dissolved, and the Banking Commissioner again gave notice to appellees that there would be a hearing in Austin, Texas, on May 31, 1939, for the purpose of determining whether or not they should be removed as officers and directors of the Lone Star Building & Loan Association. Said hearing was had and an order was entered by the said Z. Gossett, Banking Commissioner, on June 13, 1939, removing appellees from their respective offices in said Association. Thereafter, a copy of said order was mailed to each of appellees.

On July 6, 1939, after they had been notified of their removal as officers and directors of said Association, appellees filed their first amended original petition in said cause, wherein for the first time Attorney General Gerald C. Mann was made a party defendant. They sought by this amendment to abate .another suit, which had been instituted by the State of Texas through the Attorney General in the 53d Judicial District of Travis County, wherein the State sought to forfeit the charter of 'the Lone Star Building & Loan Association, and to liquidate and dissolve its affairs, and to obtain an injunction against the Attorney General and the Banking Commissioner from prosecuting said action. They also sought for the first time by this amendment to recover of and, from bpth Gerald C. Mann and Z. Gossett, individually, damages in the sum of $10,-000 for the alleged wrongful acts of appellants in removing them from their positions as officers and directors of the Lone Star Building & Loan Association, and for their action in filing and prosecuting said suit in the district court of Travis County.

The only evidence introduced on the trial of said plea of privilege was the testimony of Kenneth Krahl, who testified that he was Vice President, Attorney, and Director of the Lone Star Building & Loan Association; that he and the other directors, with one exception, lived in Harris County and that said corporation was domiciled therein. It was stipulated by the parties that the Attorney General and the Banking Commissioner, officially, resided' in Travis County. There is no evidence in the record that either of appellants resided in Harris County.

It was agreed by all parties that when-appellees filed their original petition in said’ cause, the venue was properly laid in Harris County as to the cause of action, therein asserted, in that said cause was a statutory action brought under Art. 881a— 32, Vernon’s Ann.Civ.St., which provides-that the Banking Commissioner of Texas-may remove any officer or director from-any Building & Loan Association for just cause, specified by him, after ten days’ notice in writing to such person. Said act provides that any officer or director so notified of the intention of the Commissioner and feeling himself aggrieved by such-removal shall have a right to appeal to the district court of his residence for a writ of injunction to restrain such removal, as in original injunction cases.

It is the contention of appellants that when the Banking Commissioner, in the exercise of his statutory authority to do so, made said order removing the officers and directors of said Association, the then pending suit was no longer effective or apt, and that the whole matter became moot as a matter of law, and that when appellees filed their first amended original petition, making the Banking Commissioner and the Attorney General 'parties to-said suit, they set up an entirely new cause of action for damages for the alleged' wrongful removal of said officers and directors.

An analysis of the pleadings convinces us that this is true. The subject matter presented in the original petition is limited to preventive relief, whereas the cause of action asserted in appellees’ first amended petition is legal in its nature and seeks compensatory relief by way of pecuniary damages for the alleged wrongful conduct of the Banking Commissioner and the Attorney General in removing the officers and directors of the Lone Star Building & Loan Association.

The cause of action set up in said amended pleading is, in no sense, an action to restrain the removal of appellees as officers and directors of Lone Star Building & Loan Association, the venue of which would lie in Harris County, since appellees allege in said pleading that the Banking Commissioner had, prior to the date of the filing thereof, at a hearing provided by statute and set for that purpose, and after the dissolution of the restraining order previously entered, ordered their removal as such officers and directors. It was not contended by appellees that they had received notices from said Banking Commissioner of an additional hearing, looking to their removal as such officers and directors/ or that such an act was contemplated.

It follows that the cause of action set up in said amended pleading is necessarily asserted for the first time therein, and since it is the settled law in this state that an amended pleading entirely supersedes .an original pleading, Taylor v. San Antonio Joint Stock Land Bank, Tex.Civ.App., 101 S.W.2d 868, the venue in this action would unquestionably be determined by the allegations contained in appellees’ first amended original petition.

It necessarily follows that appellants’ pleas of privilege were duly filed, since they were filed after the date of the filing of appellees’ first amended original petition in which they, for the first time, alleged a new and different cause of action from that set up in their original petition. Fant v. Kennedy Pasture Company, 29 Tex.Civ.App. 530, 69 S.W. 420; Farnham v. First National Bank of El Paso, Tex.Civ.App., 28 S.W.2d 883.

Under the above facts, no grounds for the maintenance of this action in Harris County having been shown in appellees’ first amended original petition, the judgment of the trial court overruling appellants’ pleas of privilege is reversed and the cause remanded, with instructions that it be transferred to the district court of Travis County.

Reversed and remanded, with instructions.


author: ALEXANDER, Justice.

text:
    PRYOR et al. v. MODERN MUTUAL HEALTH & ACCIDENT INS. CO.
    No. 2363.
    Court of Civil Appeals of Texas. Waco.
    Sept. 19, 1940.
    S. J. T. Smith, H. O. Clark, and Winthrop Seley, all of Waco, for plaintiffs in error.
    Barney A. Garrett, of Waco, for defendant in error.
   ALEXANDER, Justice.

The defendants in the lower court have attempted to remove the cause to this court by writ of error. Acts 46th Leg'., Chap. 2, p. 59, Vernon’s Annotated Civil Statutes, Art. 2249a, provide, in part, as follows:

“Section 1. No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.

"Sec. 2. All laws and parts of laws, insofar as they conflict with this Act, are repealed. Writ of error shall continue to be available under the rules and regulations of the law to a party who does not participate in the trial of the case in the trial court.

“Sec. 3. It is hereby provided that this Act shall take effect from and after January 1, 1940. * * *”

According to the recitations in the judgment, the defendants participated in the actual trial of the case in the lower court. Final judgment was rendered on February 13, 1940, and writ of error was applied for on June 14,- 1940, long after the act in question had become effective. The case comes clearly within the terms of the above act and is therefore not reviewable through means of writ of error.

The plaintiffs in error, in reply to the motion to dismiss, assert that Sampson Lodge No. 6113, Grand United Order of Odd Fellows, is a necessary party to the suit and since it was not made a party thereto and did not participate in the trial of the case, the statute above quoted is not applicable. It should be noted, however, that said alleged necessary party did not join in the petition for writ of error and is not here seeking a review of the judgment through means of writ of error. All those now seeking such review participated in the actual trial in the lower court and their right to sue out a writ of' error is therefore cut off by the statute.

The appeal is dismissed. .


author: BROWN, Justice.

text:
    RIDER v. RIDER.
    No. 14099.
    Court of Civil Appeals of Texas. Fort Worth.
    June 7, 1940.
    Rehearing Denied Sept. 27, 1940.
    W. L. Coley, of Fort Worth, for appellant.
    Rollins T. Harris, of Monahans, for appellee.
   BROWN, Justice.

Appellant brought an action for a divorce decree against his wife and she answered and filed a cross-action for a like decree.

On a trial before the district court, without the intervention of a jury, a decree was entered denying appellant a decree and giving appellee a decree on her cross-petition, and the trial court awarded the care and -custody of the three minor children born to the union to the mother, the appel-lee, gave the father the privilege of having the children visit him during the Christmas holidays for six days and during the Summer vacation for four weeks, and ordering the father to pay for the support of his children the sum of eight dollars weekly.

From this decree the father appeals and urges us to reverse the decree of the trial court.

The most unpleasant tasks that confront our district courts, in civil actions, are those of passing upon suits for dissolution of the marriage contracts that have been entered into, and awarding the care and custody of children who have been born to the contending parents. .

Under our system, a liberal discretion is vested in the judges of the district courts, when these tasks must be performed. We think this is well because they see the parties and witnesses face to face and eye to eye, and they are better enabled to thus analyze the facts and weigh the virtues of the parties and determine what, under all of the facts, seems best for the children.

No Q. and A. statement of- facts was brought to us,, and we have examined the agreed statement, and we find nothing therein to authorize our court to render a judgment holding that the district court has abused the discretion vested in him.

All assignments of error are overruled and the judgment is affirmed. Hickman v. Hickman, Tex.Civ.App., 20 S.W.2d 1073; Article 4639, Revised Civil Statutes.

Affirmed.


author: GRAVES, Justice. CODY, Justice.

text:
    BROWN et ux. v. HEWITT et al.
    No. 10981.
    Court of Civil Appeals of Texas. Galveston.
    May 9, 1940.
    On Rehearing Aug. 1, 1940.
    Rehearing Denied Oct. 3, 1940.
    Hardway,' Woodruff & Austin, of Houston, for appellants.
    Fitzpatrick & Wells, of Houston, for appellees.
   GRAVES, Justice.

This appeal is from a judgment of the 55th District Court of Harris County, sitting without a jury, refusing to enjoin the appellees, on appellants’ application, from exercising the power-of-sale contained in a $6,620.14-note and deed-of-trust upon a portion of Lots 9 and 10 of Magnolia Park Subdivision No. 1 in Houston, which the latter had executed and delivered to the former on May 25 of 1937; other incidental relief, such as appellants’ claim for the value of an abstract of title to such property the appellees held, was also refused, and the court further fixed $500 as a reasonable attorneys’ fee for the services ap-pellees’ attorneys had rendered them in connection with such note, but specifically provided that no execution should issue against appellants for that item.

At appellants’ request, the trial court filed, as in support of its judgment, these findings of fact and law, which are not challenged in any respect deemed material upon this appeal, to-wit:

“Findings of Fact.

“1. On the 1st day of January, 1937, and at all times subsequent thereto, the plaintiffs were and are the owners of the real estate in controversy, occupying and using the same for domestic purposes and the same was and is their residence and business homestead.

“2. Commencing in February, 1933, plaintiffs became indebted to the defendant, Geo. W. Hewitt, in a large sum of money secured by a lien upon said real estate and continued so indebted, but steadily reducing said indebtedness by regular monthly payments to the defendant, until the 25th day of May, 1937, at which time by agreement of the parties the balance owing on said indebtedness was increased by approximately $2,500.00 to cover the costs of improvements upon said premises, the amount of such increase being advanced by Geo. W. Hewitt upon a valid mechanic’s lien contract, and the plaintiffs then executed and delivered to said defendant their certain promissory note, and deed of trust to G. W. Hewitt, Jr., Trustee, for the to'tal of such combined amounts, being $6,620.14, with interest thereon at 8% per annum until paid and being payable in monthly installments of ‘not less than $90.00 ■each’, due on the 10th day of eaph month after date until paid in full, and further containing the usual optional accelerating maturity and 10% attorney’s fee clauses in event of default in payment.

“3. That contemporaneously with the execution and delivery of said note and deed of trust, plaintiffs delivered certain abstracts, described in plaintiffs’ petition, ■of the reasonable and actual value of $200.-00 to defendant, who agreed to return them when his lien was completely discharged.

“4. Thereafter between the 14th day of ■each month in which an installment was ■due and the 3rd day of the following month (with the exception of the August, 1938, installment which was paid on the 10th) the plaintiffs, without complaint or objection by defendant as to the time, amount, or manner of payment, paid monthly installments of $90.00 each during the months of JunC-December, 1937 and January-August, 1938, to Geo. W. Hewitt by their personal •checks mailed to him at his office and the same were accepted and credited on plaintiffs’ indebtedness to him, and that Hewitt was estopped from accelerating the maturity of the note simply for failure to pay •on time.

“5. During the month of October, 1937, Hewitt protested to plaintiffs about their buying insurance on their property in dis- ' pute other than through his office, and advised them if they bought elsewhere ‘they need expect no more favors from him’. They bought elsewhere.

“6. On August 18, 1938, A. T. Norman, now' deceased, who was acting for the Browns, advised Mr. Hewitt by letter that the Browns were preparing to pay off their loan and requested Mr. Hewitt to furnish him the correct balance owing Mr, Hewitt. Mr. Hewitt did not furnish such information, and Norman later called Hewitt on the phone and asked permission to examine the ledger account, which Hewitt refused. I find that Hewitt had a right to expect that the Browns expected to pay by the next installment date.

“7. On September 14, 1938, the plaintiffs mailed their check in the amount of $90.00 for the September installment to Mr. Hewitt, who on the same day, it seems, had placed said note in the hands of his attorneys, Fitzpatrick & Wells, for collection and declared the whole amount thereof due and payable but did not agree to pay them the 10% attorneys’ fee provided for in said note. On September IS, 1938, defendant received plaintiffs’ check and immediately returned the same to them by letter, stating he had elected to declare the whole remaining balance due and payable, plus interest at 10% per annum from September 10 on, unless the entire amount thereof, plus 10% thereof as attorneys’ fees, was immediately paid he would commence foreclosing under the deed of trust.

“7a. After the tender, referred to above, Hewitt through his attorneys on October 7, 1938, -offered in writing that Hewitt would carry the loan until the original date of maturity at the same rate of interest and would reduce the monthly payments to $85.00 per month, provided the papers were rewritten to eliminate the ‘on or before’ clause, and if Brown would pay the cost of preparing the papers, and I conclude that he intended and the parties understood that if this were done the acceleration would be waived, waiving of course the claim for attorneys’ fees. I find that Hewitt did not expressly promise to pay his attorneys any fees for the collection of the note, but having heard testimony of the services, I have, for the benefit of the record, found that the services rendered and to be rendered are worth $500.00.

“8. No demand for payment of the September installment was ever made by Hewitt on plaintiffs.

“9. At all times prior to receiving the letter from Hewitt’s attorneys' on September 16th returning their check, the Browns believed and relied on the acts and statements of defendant contained in Finding 4, and, but for such conduct on the part of the said Geo. W. Hewitt, they could and would have paid the September installment on September 10th.

“10. The correct balance unpaid bfit not due on Hewitt’s note on August 15, 1938, was $5,895.14, including principal and accrued interest.

“11. On September 23, 1938, plaintiffs again tendered the $90.00 installment for September and offered to pay in addition any penalty upon said installment, if any, which defendant claimed and was entitled to. This tender was also refused, the defendant insisting on the full amount of principal, interest and attorneys’ fees, amounting in all to approximately $6,500.-00.

“12. October 7th and again on October 10, 1938, plaintiffs tendered to defendant at his lawyers’ office the sum of $5,967.42, and demanded a release or assignment of defendant’s lien and also the abstracts in defendant’s hands; which tenders were rejected by defendant for the reason that he had elected to declare the full amount due and had placed the note in the hands of his attorneys for collection. At the time of refusing these two tenders defendant offered to waive all penalties and continue the loan paying out at $85.00 per month and 8% interest if plaintiffs would agree to eliminate the ‘not less than’ clause in the note and pay all costs of preparing new papers. Defendant refused to surrender the abstracts.

“13. Plaintiffs at expense of $250.00 obtained the $5,967.42 tendered to defendant by agreeing to pledge the property in controversy as security therefor, and a short time after the money had been tendered and refused, and after defendant had refused to execute a release or assignment of his lien, plaintiffs were obliged to return the money to the lender. Hewitt had no notice of this, so far as the evidence discloses, until the trial.

“14. At all times since September 14, 1938, and on trial the defendant has consistently declined (except as contained in his counter-tender) to accept any sum less than the full amount of unpaid principal, accrued interest at 10%, and plus 10% attorneys’ fees on the full amount; or to execute an assignment of his lien.

“15. On October 5, 1938, G. W. Hewitt, Trustee; at the request of Geo. W. Hewitt, posted the property involved for sale in November, 1938, under the powers of the deed of trust and was proceeding with the sale of same when enjoined by a temporary writ issued out of this cause on the application of plaintiffs. Defendants had no prior notice of the granting of the writ before service upon them.

“16. Defendants at all times knew where the Browns could be easily communicated with by letter, telephone or in person.

“Conclusions of Law.

“1. I conclude that Geo. W. Hewitt, because of his conduct prior to September, 1938, would have been equitably es-topped to accelerate the maturity of the remaining installments and claim 10% attorneys’ fees from the Browns on September 15, 1938, and until such time as he had demanded payment of the September installment or otherwise brought to the attention of the Browns his intention to exercise his option to invoke the penalties if the payment was not promptly made, but because of the expressed intention of the Browns to pay the debt off and their failure to do so Hewitt was not estopped.

“2. I conclude that plaintiffs are not entitled to injunctive relief, however, because they are here seeking to enjoin the enforcement of the. defendant’s deed of trust without making an actual tender of the amount they admittedly owe Hewitt on his note, being unable to do so, except upon the court granting time in which to procure a loan, which plaintiffs have not offered in their pleadings to do and which they have not asked to be permitted to do.

“3. I conclude, that plaintiffs are not entitled to have defendant’s deed of trust lien removed as a cloud, on their title, because they have not tendered into court the amount they admittedly owe Hewitt on his note.

“4. I conclude that plaintiffs are not entitled to recover damages for converting their abstracts, because defendant was entitled to retain same until he received the full amount of money due him and plaintiffs made no tender of the money into court.

“5. I conclude that Hewitt is entitled to foreclose his lien by sale and to collect the .amount principal, interest, and attorneys’ fees. There were no pleadings authorizing the court to make any condition requiring defendant to accept any sum less than that demanded or else have the injunction perpetuated. The plaintiffs admitted their inability to pay the sum they had previously tendered and the court does not feel called upon to make pleadings for the parties which they have not themselves presented. Wherefore, the injunction has been denied.”

In addition, there were certain stipulations of fact, both oral and written, the material effect of which is thus stated in appellants’ brief: “* * * that the monthly installments provided for in Hewitt’s note of $90.00 each were paid to him by plaintiffs’ check mailed to him at his office each month between the 14th and the 2nd day of the following month, excepting only the May installment, which was paid on the 11th. It was also stipulated that the amount of $5,967.42 tendered to George W. Hewitt on October 7th and 10th, 1938, was the correct amount of principal and interest up to those dates, but that figure included no attorneys’ fees which are in dispute.”

Assailing as “errors of law” the quoted conclusions of the trial court, the appellants, through able counsel, thus in substance epitomize their position:

“It is the contention of appellants that George W. Hewitt by his statements and conduct prior to September, 1938, had waived, and was estopped to assert any right he might have under the deed of trust to accelerate maturity of the balance of the note and claim attorneys’ fees, without first demanding payment of the September installment, or in some other manner bringing to the attention of the Browns that he wished the installments paid promptly on the due-date according to the face of the note.

“That, without regard to estoppel, appellants were never in default of the September installment, because it was received by Hewitt in the customary manner prior to any declaration of acceleration to them by an overt act and before he had incurred any liability' to his attorneys and before they had taken any action in his behalf.

“Never having been in such default as to enable appellee to assert the penalty clauses in his. note and deed of trust, appellants’ tender- of the full amount of principal and interest to appellees and his attorneys on October 7th and October 10th, 1938, was wrongfully refused by them and operated to discharge his deed of trust lien on the property in controversy, or at least to discharge the power of sale therein contained.

“That, even if Hewitt had been entitled to recover 10% attorneys’ fees on all or any portion of his note, nevertheless said additional 10% could not be asserted as part of the secured indebtedness upon appellants’ homestead, and therefore the tender. in October of the agreed amount of principal and interest was of the full amount of the secured indebtedness.

“That, because of the wrongful refusal of the appellees to return the abstracts to appellants after the tender of October, 1938, they are entitled to recover the agreed value of the abstracts, being $200.00.”

This court, being unable to see eye to eye with these presentments, under the facts so found, is constrained instead to hold the court below to have been correct, at least in denying the writ of injunction; it is thought the initial vice in these propositions lies in their apparent assumption that — even in the special conduct and course of dealing shown upon the elder Hewitt’s part — he was under the duty or obligation of notifying the Browns of the amount of principal and interest then due on their debt to him, in response to their letter — through their attorney — on August 19 of 1938 requesting that information, as a condition precedent to his asserting any of his own legal rights as against them under the note and' deed-of-trust; in legal effect to the contrary, it is provided in our statutes, R.S. Art. 5937, secs. 70, 82(2), and 85, and settled by court holdings, in such instances, not only that presentation for payment is not necessary to charge primary obligors, but also that such debtors are presumed to know the status of their own obligations, their creditors being under no bounden duty to advise them in advance of maturity what their obligations will amount to at any particular time.

Moreover, that letter, as the quoted sixth finding recites, did definitely advise that “my clients are preparing to pay this debt in full”; then requested the information upon the amount due “by return mail, upon receipt of which the writer will prepare the proper papers essential to liquidating this debt”. Wherefore, since Hewitt stood at arm’s length towards appellants’ request of him for a statement of the amount they owed, being under no legal duty to furnish it to them, especially as against their antagonistic notification that they were so preparing to pay the debt in full against his preference that it run on, the trial court’s finding “that Hewitt had a right to expect that the Browns expected to pay by the next installment date” was sufficiently supported.

In other words, under this sixth one, along with the others of the stated findings with like or similar import, such as those under the court’s Nos. 5, 7, and 14, the learned trial Judge was justified — from the evidence — in concluding that a change in and a discontinuance -of the indulgent acts of appellees toward appellants, in the carrying of this indebtedness that are set out in the findings, had been broken when appellants so notified the elder Hewitt on August 19, 1938, by direct statement, that they were “preparing to pay this debt in full”; and, further, that thereafter the parties, each in turn, stood upon their legal rights under the contracts outstanding between them, hence there was no such waiver nor estoppel against the appellees as appellants contend for. Indeed, having thus been directly notified before September 10, 1938, that no more favors, like extending any-of the monthly payments on the indebtedness beyond their due-dates, could be expected. from the appellees, the appellants failed to pay the installment due on the 10th of that month, whereupon the appellees, choosing to take seriously the explicit announcement that appellants were preparing from August 19th previously, “to pay this debt in full”, in turn countered by their move to require strict payment upon the “law day” and to declare the entire debt due, pursuant to the. acceleration privilege contained in the face of the note; it is thought the court below was not in error in holding them within their legal rights in so doing, if they saw fit to invoke them. McCray v. Kelly, Tex.Civ.App., 130 S.W.2d 458; Crawford v. Texas Imp. Co., Tex.Civ.App., 196 S.W. 195.

These conclusions, if sound, as they are thought to be, determine the merits of this appeal, and relieve this court of a discussion in detail of many collateral and incidental questions further raised in the brief of the parties; since the appellees did not by cross-action or otherwise in this proceeding seek a recovery upon the obli-' gations' involved, and since none was awarded them, thereby reducing the appeal as presented here to the- controlling issue of whether or not the trial court erred in refusing the injunction sought, this holding will be limited accordingly to the determination of that inquiry alone.. •

It follows that, with this construction of it, the judgment should be affirmed; it will be so ordered. -

Affirmed.

On Appellants’ Motion for Rehearing.

CODY, Justice.

The evidence in this case, and the findings of the court, make it clear that the action of Geo. W. Hewitt in undertaking to exercise his option to accelerate the maturity of the note was not done for the purpose of protecting his debt or preserving its security, but was done to coerce appellants into not paying off such debt, and into surrendering their right to pay it on or before the installment dates, in order to refinance it at a lower rate of interest. It appears that the installment maturing on September 10, 1938, could have been paid by appellants on that day as readily as four days later, and that they had mailed their check to Hewitt, and he had received it on September 10, 1938, before they knew that he would seek to mature the entire indebtedness for merely paying the installment according to their usual course of •dealing. In this state of affairs, what was said in Parker v. Mazur, Tex.Civ.App., 13 S.W.2d 174, 175, seems decisive: “The clause as to the maturity of the whole debt was not positive and self-executing, but depended for its vitality upon the will and desire of the owner and holder of the notes, and equity would demand notice of such will and desire before demand should be made for the payment of the entire debt. The failure to give notice of an intended act could not be known except to the payee of the notes, and it was harsh and inequitable for him to exercise the right of acceleration without due notice to the maker of the notes. A court of equity may relieve against a provision for acceleration * * * ‘when it is procured by * * * inequitable conduct of the creditor himself.’ ” (Citing authorities.) And in the recent case of Curtis v. Speck, 130 S.W.2d 348, writ of error refused, we held through Chief Justice Monteith that formal demand must be made for any installment on a debt before the debt can be declared due.

It appears that Hewitt had received payment of the installment, due on September 10, 1938, before he formally attempted to mature the entire indebtedness for failure to pay such installment on September 10, 1938, the law day. But, under the cited authority, Hewitt had no right to mature the entire debt, not having afforded appellants an opportunity to pay the installment before acceleration of the entire indebtedness for failure to pay such installment. Since the debt was not due, the court should have enjoined the sale.

It follows from these conclusions that appellants’ motion for rehearing should be granted, the trial court’s judgment reversed, and the cause remanded to that court with instructions to issue the injunction as prayed for. Justices GRAVES dissents, believing our original opinion to have been correct.

Rehearing granted, trial court’s judgment reversed, and cause remanded with instructions.

GRAVES, J., dissenting.


text:
    HOOPER et al. v. HALSELL.
    No. 5192.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 16, 1940.
    Griffin & Morehead, of Plainview, for appellants.
    Dan M. Cook, of Plainview, for appellee.
   FOLLEY, Justice.

This is an appeal from an order overruling a plea of privilege. The suit was filed in the County Court of Lamb County, Texas, by the appellee, Ewing Halsell, a resident of Oklahoma, against the appellants, Bob Hooper and M. L. McWhorter, alleged to have been residents of Hale County, Texas. The appellee alleged that he had a judgment lien upon three horses formerly owned by one E. E. Wells against whom he had obtained judgment; that the appellant Hooper held a second lien upon such horses, the same being inferior to ap-pellee’s lien; that Plooper had also sued Wells upon his debt and lien, had obtained judgment therefor and had sold such horses to McWhorter; that McWhorter was a mere agent for Hooper and did not in fact own the horses; that McWhorter and Hooper had caused the horses to be secreted and placed beyond the reach of appellee; that by reason of the conduct of the appellants they had converted said horses to their own use and benefit thus depriving the appellee thereof; and prayed for damages in the sum of $220, the alleged value of the horses.

The appellants filed the statutory plea of privilege to be sued in the county court of Hale County, Texas, the county of their residence. The appellee filed a controverting affidavit seeking to retain the suit in Lamb County by virtue of section 9 of article 1995, R.C.S. of Texas, relative to crime, offense and trespass. In this controverting affidavit there was an allegation of a trespass in connection with the alleged conversion but there was no allegation as to where the alleged trespass occurred nor was there any reference therein to the ap-pellee’s petition. The appellants filed a general demurrer to the controverting affidavit which was overruled by the trial court. After a hearing the court also overruled the plea of privilege. It is from this action of the court that this appeal is brought and the appellants present as assignments of error the action of the court in failing to sustain their general demurrer and in overruling their plea of privilege.

We think the rule is settled in this jurisdiction that the controverting affidavit must be tested by its own language, unaided by the petition, where it fails to make the petition a part of the affidavit. Henderson Grain Company et al. v. Russ et al., 122 Tex. 620, 64 S.W.2d 347. We also think it is equally well settled, when the defendant asserts his privilege, that to maintain venue under the “crime, offense or trespass” exception of the statute it is necessary for the plaintiff to both plead and prove that the crime, offense or trespass “was committed and that it was committed in the county where the suit is pending”. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 93. The failure of the appellee to allege in his controverting affidavit that the conversion occurred in Lamb County is therefore fatal to his right to retain the venue of this suit in such county. It follows that the court erred in overruling the general demurrer addressed to the controverting affidavit áfid further erred in overruling the plea of privilege upon the insufficient controverting affidavit.

The judgment of the trial court is reversed and the cause remanded with instructions that the same be transferred to the County Court of Hale County, Texas.