author: STOKES, Justice.

text:
    LIPSCOMB et al. v. LOFLAND et al.
    No. 5127.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1940.
    Rehearing Denied July 1, 1940.

      A. T. Cole, of Clarendon, and J. O. Fitzjarrald, of Memphis, for plaintiffs in. error.
    Gibson & Sutton, of Amarillo, - for defendants in error.
   STOKES, Justice.

We handed down an opinion in this case on March 11, 1940, in which the case was. reversed and remanded. Motions for rehearing have been filed by all parties and a reconsideration of the entire record has convinced us that we erred in reversing the judgment. . The original opinion is, therefore, ; withdrawn- .and the following-opinion substituted therefor:

Plaintiffs in error, Audrey Lofland Lipscomb, joined by her husband, Lloyd Lipscomb, and joined also by C. W. Ryan as guardian of the estate of Billie Marylin Lofland, a minor, filed this suit in the district court against Maye Lofland, the original guardian of the estates of Audrey Lofland Lipscomb and Billie Marylin Lof-land, and against Fidelity & Deposit Company of Maryland, surety on the general guardianship bond and two special real estate sales bonds of Maye Lofland. The purpose of the suit was to recover certain amounts claimed as being due the former wards by reason of the alleged waste, devastation and conversion of property coming into the hands of the guardian and belonging to the wards. It was alleged in the petition that certain proceedings in the probate court of Hall County, especially the orders entered by it in the guardianship pertaining to the disposition of the proceeds of the sale of certain real estate and personal property and money belonging to the wards, were void for various reasons set out in the petition and the orders entered by that court directing and approving the disposition and application of such proceeds and money, and approving the annual account of the guardian, were void because of the want of authority in the probate court to enter them under the circumstances alleged to have existed in the guardianship at the times they were entered.

The case was submitted to the court without the intervention of a jury and resulted in a judgment in favor of the defendants, from which the plaintiffs have sued' out a writ of error.

Defendants in error contend that the suit -of plaintiffs in error constitutes a collateral attack upon the various orders and judgments entered by the probate court in the guardianship proceedings which cannot be maintained under the allegations and proof. While the record contains a large number of assignments of error and propositions of law, the controlling question in the case is presented by these contentions of the parties.

John Lofland, the husband of the guardian and the natural father of Audrey Lof-land, died intestate on the 22nd of April, 1929, leaving his wife, Maye Lofland, and a daughter, Audrey, who was then a minor. John Lofland and his wife had adopted plaintiff in error, Billie Marylin Lofland, and she was living with the family at the time of his death. During his lifetime John Lofland maintained a policy of insurance upon his life in the sum of $10,-000 in which his wife, Maye Lofland, and his natural daughter, Audrey, were the beneficiaries. After his death, Maye Lof-land made application and qualified as guardian of the estates of the two children and collected $8,400 from the life insurance company, being the amount due thereon after deducting some loans which had been advanced to John Lofland during his lifetime. Of the amount so collected, one-half, or $4,200, was appropriated by the guardian as her own property and the other half inventoried in the guardianship as the property of her ward, Audrey Loflan'd. Immediately after collecting the proceeds of the life insurance policy, Mrs. . Lofland, out of her own funds, paid various and sundry accounts owing by her husband at the time of his death, amounting in the aggregate to $4,-199.84. She then made application to the probate court to be reimbursed this amount out of the $4,200 belonging to the estate of Audrey Lofland, alleging that the accounts which she had paid constituted charges against the entire estate of her deceased husband and that she was entitled to be subrogated to the rights of the creditors whom she had paid. The county judge heard the application, entered an order granting the same, and 'un--der it the guardian appropriated as a reimbursement to herself the sum of $4,-199.84, which constituted all of the proceeds of the life insurance policy which belonged to Audrey Lofland except 160.

The record shows that John Lofland, at the'time of his death, owned 960 acres of land which was-his separate property, and also a homestead in the town of Memphis which was the community property of him-; self and his surviving wife. The land was encumbered for a large amount in the nature of a -loan and the- guardian made application to sell 760 acres of it. The application was granted by the court,' the sale consummated, ‘reported and confirmed by order duly entered in the guardianship. By this transaction, 200 acres of the land was saved to the estates of the minors, free and clear of all encumbrance. The record further shows that the homestead was sold under application and order of the court for the sum of $3,500, one-half of which belonged to the minors but .was not included in the inventory. . .

On September 9, 1930, the guardian filed her first annual account in which it is shown that in her administration of Audrey’s estate she had collected a total of $11,583.20. and had disbursed $9,257.80. The report included one-half of the proceeds of the sale of the homestead. She claimed commissions of $993.05 and reported a loss on a cattle transaction of $529.50- which exhausted the entire estate inventoried or reported to the court as being in her hands, except the 200 acres of land and left the estate indebted to her in the sum of $197.15. In this report she also made an exhibit of her administration of Billie Marylin’s estate. The report was approved on the 6th of October, 1930, by order duly entered in thé guardianship by the county judge.

On the 17th of February, 1932, Maye Lofland filed an application to be permitted to resign and in connection with it, before it, was acted upon by the court, she filed a purported final report. On the 6th of June, 1932, her resignation was accepted by an order duly entered by the court in which it was ordered that the final report, together with the order, be spread upon the minutes of the court.

On August 11, 1932, A. T. Cole, as next friend of the minors, filed in the county court of Hall County a petition for a bill .of review, in which he sought to have set aside and held for naught all of the orders approving any expenditures by the guardian out of the funds of the guardianship, and prayed that the orders and proceedings be reconsidered and- reviewed by the court, and that the guardian be ordered to return the sum of $12,000 which he alleged' she had wrongfully expended as guardian. The guardian filed her answer -and the petition for bill of review was heard by the county court on the 1st of February, 1933. The judgment entered by the court on that day shows that the cause came on to be considered and the. court was of the opinion that the law was against it. The court found .that the former county judge had not committed errors in any of the orders entered in the guardianship as set out in the bill and the relief prayed for was, therefore, denied. Exception was taken to the judgment and notice of appeal to the district court was entered but the appeal was not perfected nor any further proceeding had upon the bill of review.

Plaintiffs in error, in their assignments of error, propositions of law and brief, raise a large number of questions concerning specific actions of the probate court pertaining to these and other items received and disposed of through orders of the court by the guardian, but the items and orders we have mentioned will • be sufficient, we think, to demonstrate the nature of the questions raised. The question here to be decided is whether or not the manner in which the items of property belonging to the wards were disposed of and the orders of the court in reference thereto may be attacked in a proceeding of the nature revealed by the record in this case.

If the orders entered by the probate court were within its jurisdiction and were such as that court had power to make, they cannot be attacked in a collateral proceeding no matter how erroneous they may be. The probate court, when acting within the powers granted to it by the constitution and statutes, is a court of general jurisdiction and it is well established by the decisions that, when so acting, judgments entered by it are equally as immune from collateral attack as are those of any other court of our system of jurisprudence. Dallas Joint Stock Land Bank v. Forsyth, 130 Tex. 563, 109 S.W.2d 1046; Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325; Murchison v. White, 54 Tex. 78, 83; Jones v. Wynne, 133 Tex. 436, 129 S.W.2d 279. The county court is given general jurisdiction in probate matters by Sec. 16, Art. 5 of the Constitution, Vernon’s Ann.St., and Art. 4102, R.C.S. 1925, Vernon’s Ann.Civ. St. art. 4102, provides that the county court shall appoint guardians of minors, settle accounts of guardians, and transact all business appertaining to the estates of minors.

A collateral attack upon a judgment, as distinguished from a direct attack, is an effort to avoid the binding force of. the judgment, such attempt being made in a proceeding instituted for some purpose other than those purposes for which a judgment may be directly attacked. Its nature is revealed, for instance, when it is shown that it is an action for debt on a judgment and the defendant attempts to adjudicate the fact of the indebtedness or in a suit of trespass to try title, where one of the links in a chain of title consists of a judgment and the adverse' party attempts to avoid its effect. A direct attack is said to be an attempt to amend, correct, reform, vacate or enjoin the execution of a judgment, such attempt being initiated for that specific purpose, such as a motion for rehearing, an appeal, writ of error, bill of review, or an injunction to restrain its execution. Crawford v. McDonald, supra. The rule is well established that a judgment may be avoided in a collateral proceeding if the judgment is void. If, however, the matter is within the court’s jurisdiction and the grounds relied upon to avoid it pertain merely to matters of procedure, it then becomes a question of whether or not error was committed and can be reached only by a direct attack.

The record in this case shows that the guardian made application to the probate court to sell the 760 acres of land. She accompanied her application 'with an exhibit of the condition of the estate. The application was presented to the court and an order entered directing the guardian to make the sale. After the sale was made and reported to the court a real estate sales bond was executed and filed as provided by law, and an order entered by the court confirming the sale. The same procedure was had with reference to the sale of the homestead property in the town of Memphis and, although some errors may have been committed in the manner in which the properties were ordered to be sold and in the procedure through which the sales were made and in the orders confirming them, the proceedings were undoubtedly those of which the probate court had jurisdiction and any errors that may have been committed were merely errors of procedure and did not render void the judgments and orders of the court. The probate court undoubtedly had power to enter orders of the kind here being discussed. It had the right of decision in each and all of these matters and its judgments and orders were not void even though it may be conceded some of them were erroneous.

As to the orders entered by the court authorizing the guardian to reimburse herself for the expenditure out of her separate funds of $4,199.84, in our opinion the same conclusion must be drawn. The probate court unquestionably had jurisdiction of the $4,200 collected by the guardian for her ward upon the life insurance policy of the ward’s deceased father. The money had been collected from the life insurance company under orders of the probate court. The guardian had qualified as such and given a general bond in the form provided by the statute. The guardian alleged in the application that she was entitled to be subrogated to the rights of the creditors of the estate of John Lofland, deceased, and it was Sworn to by her. While it is true the obligations paid by her were those of the deceased father of her ward, it is also true that the ward inherited from her father a three-fourths interest in 960 acres of land which was encumbered by a large indebtedness. It was alleged that the holders of the loan against the land were threatening foreclosure proceedings and it could have been the opinion of the county judge that the interest of the minor in the land could best be preserved by discharging the general debts of her deceased, father which also constituted claims against his estate. Whether the probate court took that view or some other however, it had the authority and power to pass upon the application. That being true the order granting it must stand against collateral attack because the only means by which it could be destroyed would be to show that the probate court committed error in the action taken when the application was passed upon and granted. There is no doubt that the allegations of the guardian could have been supported by proof which would have at least presented an issue as to whether or not it was to the best interest of the minor and her estate to discharge the general indebtedness of the estate of her deceased father in order to relieve the property inherited by the minor of the claims against his entire estate. That being true and the issue having been adjudicated in the probate court, the district court had no power in this case to go behind the judgment of the probate court and again litigate that which was settled when the order was entered by the probate court.

In making sale of the homestead property in Memphis the record shows that procedure was followed in the probate court substantially the same as was followed in regard to the sale of the land, and we find nothing in the record which would warrant us in holding that the probate court was without jurisdiction to entertain and grant the orders applied for by the guardian. If in those matters procedure was followed which failed strictly to observe that which is prescribed by the statute, the most that can be said is that the probate court committed error and plaintiffs in errors’ remedy was by appeal or some form of direct attack. Not having, in that respect followed the procedure laid down by the statute, they cannot now be heard to say that error was committed and the judgments entered should be nullified and held for naught. In saying this we are ignoring the fact that a bill of review was instituted and prosecuted to final judgment from which no appeal was perfected. We do not deem it necessary to discuss that proceeding.

What we have said pertains to those items of property which were included in the inventory and appraisement or over which the court assumed to exercise authority and jurisdiction. In our opinion, as to them, the suit filed in the district court was a collateral attack and plaintiffs in error were not entitled to recover thereon. Reeves v. Fuqua, Tex.Civ.App., 184 S.W. 682; Miller v. Miller, Tex.Civ.App., 53 S.W. 362; Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876.

The record reveals that at the time of John Lofland’s death, he and his wife, Maye Lofland, owned a quantity of household and kitchen furniture, and also an automobile, all of which was community property. After his death, Mrs. Lofland and her children, Audrey and Billie Marylin, who were then very young, continued to occupy the homestead and their use of the household furniture and automobile continued in the same manner as it had been used by Mrs. Lofland and her husband during his lifetime. None of this property was included in the inventory of the guardianship. After Mrs. Lofland, under orders of the court, sold the homestead, she purchased another home and some additional furniture and, with the children, moved into the new residence, taking the old furniture with her, all of which she continued to use in the home. After living there for some time the new house and all of the furniture were destroyed by fire. The record shows that Mrs. Lofland also purchased a new automobile and exchanged the old one as part of the purchase price. Plaintiffs in error contend that the furniture and automobile were converted, devastated and wasted by Mrs. Lofland and include in their suit a claim for the value of their interest in these items. .

The household furniture and automobile being community property oí John Lofland and his surviving wife, the children inherited from him his interest therein and thereafter it belonged to them and their mother as tenants in common. Mrs. Lofland continued to use the property for the benefit of the children, as well as herself. The record reveals no demand either by the children or their subsequent guardian for possession of their interest or portion of the household articles and automobile, and the law is well established in this state that unless the right of a co-tenant to the equal use and enjoyment of such property is denied by the other, or he is in some manner ousted or deprived of its use, the tenant in possession is nor liable to him for his use thereof. They are both entitled to possession and neither guilty of a conversion thereof or liable to the other for its reasonable use. The possession of one is the possession of all and neither holds adversely to the other. Stewart v. Marshburn, Tex.Civ.App., 240 S.W. 331; Davidson v. Green, 27 Tex.Civ.App. 394, 65 S.W. 1110, 1111; Morris v. Morris, 47 Tex.Civ.App. 244, 105 S.W. 242; Markum v. Markum, Tex.Civ.App., 273 S.W. 296; Roberts v. Roberts, Tex.Civ.App., 278 S.W. 937; Arrington v. McDaniel, Tex.Com.App., 14 S.W.2d 1009.

The record indicates that Mrs. Lofland procured insurance on the new furniture purchased by her and it is not shown that the old furniture was covered by insurance. The proceeds of the insurance policy were paid to those from whom she purchased the new furniture in discharge of an indebtedness'for a portion of the purchase price. It is not contended that she owed to plaintiffs in error the duty of maintaining insurance on the old furniture and in the absence of a showing to the contrary, which the record does not contain, it will be assumed that the new automobile was used by her for the benefit of herself and plaintiffs in error in the same manner as the old one had been. We find nothing in this which would give rise to a suit on behalf of the children against their mother for waste or conversion and the contentions of plaintiffs in error in this respect are overruled.

Upon a careful examination .of the motions for rehearing and a reconsideration of the assignments of error and propositions presented by the briefs, we are of the opinion that no reversible error is shown. The motion for rehearing of plaintiffs in error will be overruled and the motion of defendant in error, Fidelity & Deposit Company of Maryland, will be granted, and the judgment of the court below in all respects affirmed.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    STRICKLER v. INTERNATIONAL HARVESTER CO. et al.
    No. 2226.
    Court of Civil Appeals of Texas. Waco.
    May 16, 1940.
    Rehearing Denied June 27, 1940.

      Barney A. Garrett and E. Doyle Garrett, both of Waco, for plaintiff in error.
    Cecil R. Glass, of Marlin, and Hubard T. Bowyer, of Dallas, for defendants in error.
   TIREY, Justice.

Ben Strickier, plaintiff, instituted this suit in the district court of Falls county against J. R. Taylor Company and International Harvester Company to cancel a promissory note and chattel mortgage executed and delivered by him to J. R. Taylor Company as part payment for secondhand tractor and tractor equipment, or, in the alternative, to recover damages resulting from fraudulent representations made to him by J. R. Taylor Company for itself and as agent for International Harvester Company that induced him to execute the note and mortgage in question. The International Harvester Company, in its original answer and cross-action, asked for judgment on the note and for foreclosure of its chattel mortgage lien. The case was tried before a jury and at the conclusion of the evidence, the trial court instructed the jury to return a verdict in favor of defendants, International Harvester Company and J. R. Taylor Company, and further instructed the jury to return a verdict in favor of International Harvester Company on its cross-action against plaintiff, Ben Strickler, for the amount of the principal, interest and attorney’s fees on the note in suit. This action of the court is assigned as error.

Plaintiff alleged, in substance, that International Harvester Company was engaged in the manufacture, sale and distribution of farm implements, and that it transacted business in Texas through distributors or agents, and that J. R. Taylor Company was a distributor and agent of said International Harvester Company in the transaction herein com-, plained of; and that J. R. Taylor, as such agent, through false and fraudulent representations which plaintiff believed, relied on, and on which he acted, on October 10, 1936, sold to plaintiff certain secondhand farm equipment at a purchase price, of $950, $150 paid in cash and the delivery by plaintiff of four mules at an agreed valuation of $400, leaving a balance owing on the purchase price which was evidenced by the note in suit. Plaintiff’s allegations of fraud were sufficient to relieve him of liability on the note to J. R. Taylor Company, and, in the alternative, for damages, if found to be true, and his allegations that J.. R. Taylor was acting as the agent of the International Harvester Company were sufficient to relieve him of liability to International Company, if true.

Upon the trial of the case, plaintiff offered testimony with reference to certain representations and statements made to him by J. R. Taylor, president of J. R. Taylor Company, inducing him to make the- purchase in question; that Taylor told witness that he did not have a secondhand tractor and equipment reconditioned as plaintiff desired, but that he would pick up one in a few days and overhaul and recondition same for the plaintiff; that on October 7, 1936, Tayl- or told plaintiff that he had secured and had for sale a tractor and equipment at Lott which had been thoroughly overhauled and reconditioned, with all badly worn, used and damaged parts replaced with new parts, and that said tractor and equipment was in first-class condition and practically as good as new, said tractor being the same number as the one in suit; that plaintiff knew J. R. Taylor and believed the statements and representations to be true, and relied on same, and that he did not know that the representations and statements made by Taylor to him concerning the tractor and equipment were not true, and the said misrepresentations of the witness were made to him to induce him to purchase the equipment in question. We think such testimony, if true, would support plaintiff’s allegations of fraud in his amended pleadings. The trial court refused to allow plaintiff to adduce said testimony, and plaintiff properly perfected his bill of exception. Plaintiff further offered to prove by Ed Phillips, who was in the employ of J. R. Taylor Company, that he knew about the sale of the tractor by J. R. Taylor Company to plaintiff, and that J. R. Taylor instructed him to go to its warehouse at Lott and get a tractor that had been overhauled and bring it in to be delivered to plaintiff; that when he went to the warehouse at Lott to get the tractor the mechanic in charge of overhauling the tractors for J. R. Taylor Company advised him that the tractor had not been overhauled and was not ready for delivery; that he then called J. R. Taylor of said company over the telephone and advised Taylor that the tractor had not been overhauled and was not ready; that some days later J. R. Taylor ordered the witness to again take the truck and get the tractor and equipment from Lott for plaintiff, and that when he arrived at Lott the mechanic in charge again advised him that the tractor had not been' overhauled and that nothing had been done to the tractor, and that it was not ready for delivery; that he again advised J. R. Taylor of the conversation that he had had with the mechanic, and that Taylor then ordered him to load the tractor and bring it on in for delivery, and that the tractor and equip-' ment was placed on his truck and that it was carried by h'im to Marlin and it was delivered to plaintiff without being overhauled. The court refused to permit this testimony to go to the jury on the ground that it was an attempt to vary the terms of a written contract by parol testimony and plaintiff properly preserved his bill of exception to such action. The exclusion of the testimony offered by each of the witnesses has been assigned as error. We think this assignment of plaintiff in error must be sustained. It is true that Strickler executed an order for secondhand goods to J. R. Taylor Company, a dealer, under date of October 2, 1936, which order, among other things, provided: “I hereby order of you without warranty of any character on your part the following goods: * * It appears that the note in suit was dated October 6, 1936, and that the chattel mortgage was executed by Strickler on October 7, 1936. The number of the tractor was not given in the order for secondhand goods, but it was set • out in the note. We think such facts definitely support plaintiff in error’s theory of the case that J. R. Taylor Company did not have on hand (at the time the order was given) the equipment sold and delivered to plaintiff. The rule seems to be well settled that whenever a contract has been obtained by false and fraudulent representations which induced the party to make the same, it may be avoided by the party thus defrauded. In other words, the proffered testimony comes under the exception that parol evidence is admissible to establish that a written instrument is vitiated or rendered voidable by fraud. Edward Thompson Co. v. Sawyers, 111 Tex. 374, 234 S.W. 873; J. B. Colt Co. v. Wheeler, Tex.Civ.App., 12 S.W.2d 1102, writ dismissed, Tex.Com.App., 23 S.W.2d 299; McCaskey Cash Register Co. v. Krause, Tex.Civ.App., 31 S.W.2d 858.

The International Harvester Company contends that the evidence offered by plaintiff was insufficient to raise an issue of agency of J. R. Taylor Company for International Harvester Company of the sale of the machinery in question, and that said testimony as to it was an attempt to vary the terms of a written instrument and was properly excluded. This question has given us some concern. We have carefully examined the evidence and the original -instruments that were sent up with the statement of facts. - It appears that the order blank in question, the note and the chattel mortgage in suit were on forms prepared by t.he International Harvester Company. It also appears that the equipment in question was manufactured by the International Harvester Company; that the note was payable at Dallas, Dallas county, Texas, where the Texas office of the International Harvester Company was located; that J. R. Taylor was interested in the International Harvester Company at Dallas, Texas, the holder of the note in suit; that J. R. Taylor’s present office and place of business is in Marlin, Falls county, Texas, and that his notes are payable at Marlin, Falls county, Texas. It further appears that J. R. Taylor Company had in its possession a stamp impressed with the name “International Harvester Company,” and that this stamp waSf used in the assignment of the mortgage and note from J. R. Taylor Company to International Harvester Company. It is true that- J. R. Taylor testified that he was not the agent of International Harvester Company and that he bought machinery from them outright and sold it to his customers on such terms as he desired and that the equipment in question belonged to him and that in making the sale he was acting solely for J. R. Taylor Company. Does the foregoing testimony raise a fact issue of agency of J. R. Taylor Company for International Harvester Company ? In determining this matter on directed verdict, we can only consider the evidence tending to support the material allegations in the plaintiff’s pleading, wholly disregarding that which is opposed to it or contradictory -in its nature. Anchor v. Gose, Tex.Civ.App., 8 S.W.2d 690; Wininger v. Ft. Worth & D. C. R. Co., 105 Tex. 56, 143 S.W. 1150. We have carefully considered, this matter, and we think that since this case will have to be reversed as to J. R. Taylor Company and since the facts and circumstances ' relating to the agency of J. R. Taylor Company are dependent upon a full development of the case in its entirety and because we feel that the case has not been fully developed, we have decided that this cause must be reversed as to all parties in order that the trial court may be able to give to plaintiff in error the full measure of such relief as he may be able to show himself entitled. Hamilton v. Prescott, 73 Tex. 565, 11 S.W. 548; Wimple v. Patterson, Tex.Civ.App., 117 S.W. 1034, point page 1037; American Indemnity Co. v. Martin, 126 Tex. 73, 84 S.W.2d 697, point 2, page 698.

For the reasons above given, this cause is reversed as to all parties, and this cause is remanded for a new trial.


author: FOLLEY, Justice.

text:
    SAULSBURY v. ATLAS SUPPLY CO. et al.
    No. 5162.
    Court of Civil Appeals of Texas. Amarillo.
    May 27, 1940.
    Rehearing Denied July 1, 1940.
    Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellant.
    Walter E. Rogers, of Pampa, for appel-lees.
   FOLLEY, Justice.

This is an appeal from a judgment overruling the plea of privilege of the appellant, W. B. Saulsbury, seeking removal of this suit to the 47th or the 108th District Court of Potter County, Texas, the county of appellant’s residence. The suit was filed by the appellees, Atlas Supply Company and the Hinderliter Tool Company, seeking judgment against the appellant upon certain promissory notes and foreclosure of a lien upon certain personal property. The appellees sought to retain venue in Gray County under Subdivision 12 of article 1995 of the Revised Civil Statutes, which provides- that a “suit for the foreclosure of a mortgage or other lien may be brought in the county where the property or any part thereof subject to such lien is situated”.

The cause was tried before the court without a jury upon an agreed stipulation of facts, and it is upon such stipulated facts that this appeal is predicated. The agreed facts recite that the appellant resides in Potter County, Texas; that on February 24, 1937, the appellant executed and delivered to the Atlas Supply Company his note of such date' in the sum of $1,134.77, payable to the Atlas Supply Company at Muskogee, Oklahoma, on or before six months after date; that such note was in renewal of an earlier note payable to the same company in the sum of $2,762.50; that on August 19, 1932, the appellant executed and delivered to the Hinderliter Tool Company his note dated December 19, 1932, in the sum of $750, payable to the Hinderliter Tool Company at Tulsa, Oklahoma, on or before sixty days after date; that each of such notes was unpaid and the respective companies were the owners and holders thereof; that to secure the Hinderliter Tool Company note and the original Atlas Supply Company note, in renewal of which the note declared upon in this suit by the Atlas Supply Company was executed, the appellant on September 8, 1932, executed and delivered his deed of trust conveying to L. L. McColm, trustee for the Atlas Supply Company and the Hinderliter Tool Company, all the oil and gas and other minerals to be produced from the North Half of Section 184, Block B-2, H. & G. N. Ry. Co. Survey in Gray County, Texas, intending to convey the leasehold rights of the appellant in such land; that said deed of trust further conveyed two 500-barrel steel storage tanks, one 250-barrel wood water tank, one two-room lease house, one 84-foot turnbuckle derrick, 3,000 feet of 2-inch tubing and rods, 135 feet of liner, 2,350 feet of 8j4-inch pipe, together with all other pipe in hole, one 80 hp. oil well boiler, one oil well engine, together with all flow lines, connections and fittings on the lease; that this leasehold estate, known as the Sheridan lease, taking its name from the original owners from whom the appellant purchased, is not in controversy in this suit, it having been released by the appellant on December 20, 1935, since which time Saulsbury has not owned and has not asserted any claim to the same, it having reverted to the original owners; that of the personal property above enumerated there remains in Gray County only two items covered by the deed of trust; that in the month of June, 1935, the appellant undertook to remove from the Sheridan lease the personal property there situated and did remove therefrom and from Gray County the engines and boilers; that at the same time he attempted to pull and remove all the casing in the single oil well on the lease and did succeed in pulling the casing in the main but in the course of the effort the casing broke so that about 50 feet of the 8¼-inch pipe was left in the well where it has since remained; that this 50 feet of pipe is all of the property covered by the deed of trust remaining on the Sheridan lease; that the appellant deemed it impracticable to remove the remaining pipe, made no further effort to remove the same, has never since asserted any right therein and so far as the appellant and the Sheridans are concerned there has been an abandonment of the remaining pipe in the well on the Sheridan lease; that after such abandonment the Sheridans, who are the fee-simple owners of the land, some time in 1936 leased the entire Section 184 for oil and gas development to B. D. Harrington and he and his assignees have continuously since such time owned the leasehold estate of Section 184 where is to be found the remaining pipe in the old well; that the casing which was successfully pulled from the Sheridan well, estimated at about 1,300 feet, was removed to a well located on the NEi/4 of Section 37, Block 25, H. & G. N. Ry. Co. Survey in Gray County; that the casing so removed has continuously since remained on Section 37; that at the time of the removal of this casing the leasehold estate in the NE% of Section 37 was owned jointly by the Saulsbury Oil Company, a corporation, and the Phillips Petroleum Company, a corporation; that after such removal of the casing, and about April 19, 1937, the leasehold estate on the NEj4 of Section 37 was assigned to George G. Travis, who has since owned such leasehold estate; that upon the selling of the leasehold estate of such quarter section the appellant traded to Travis the casing in the well thereon, being the same casing which had been removed from the Sheridan lease, so that since April 19, 1937, Travis has asserted the ownership of this casing and has been the owner thereof, subject to whatever rights the appellees may have therein under the original deed of trust executed by the appellant; that since April 19, 1937, the appellant has owned no interest in such casing and has asserted no claim or title thereto; that other than the two items of personal property above described no part of the personal property mentioned in the deed of trust remains in Gray County and as to those two items the appellant is no longer the owner thereof; and that the appellant, W. B. Saulsbury, is the sole defendant in this case, no other claimant or owner of the property having been made a party herein.

The appellant having filed his plea of privilege to be sued in the county of his residence the appellees sustained the burden of alleging and proving that their cause of action was one within the exceptions of the exclusive venue statute requiring suits to be filed in the county of the defendant’s residence. In this connection the venue facts which must be alleged and proved are those which are stated in the particular exception of the statute relied upon by the appellees. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. The notes sued upon, being payable in the State of Oklahoma, are admittedly not sufficient to sustain the venue in any county other than that of the residence of appellant. Therefore, the appellees were obliged to show that this suit was to foreclose a mortgage on some of the property situated in Gray'County subject to the lien.

Our conclusions herein must be circumscribed by the fact that the real owners of the casing involved in the foreclosure suit are not parties defendant and such conclusions are not to be misconstrued as being applicable to a situation where such parties are defendants..

It is admitted in the above stipulation of facts that the appellant owns no interest in the property upon which this foreclosure suit is sought to be maintained in Gray County. The question therefore arises as to whether or not this suit against the appellant only is one for the foreclosure of a lien upon property situated in Gray County subject thereto. We think the answer to this question may be found in the determination of the question as to whether or not, under the pleadings and proof in this record, the trial court would have been authorized to render a judgment against the appellant foreclosing the lien on the property in Gray County. Under the circumstances of this case a judgment of foreclosure would reach and affect only such interest in the property as was owned by the appellant. An order of sale issuing under such a judgment of foreclosure would upon execution pass to the purchaser only such title and interest as was held by the appellant. The appellant having no interest in the property in Gray County and the real owners thereof not being before the court, it is our opinion the court was without jurisdiction to render a judgment for foreclosure or for order of sale. This being true it follows that this was not a “suit for the foreclosure of a mortgage or other lien” and that the appel-lees have failed to discharge the burden sustained by them under Subdivision 12 of ■article 1995, R.C.S.

The judgment is reversed and the trial court directed to sustain the plea of privilege and transfer the case to one of the aforesaid district courts of Potter County, Texas.


author: PRICE, Chief Justice.

text:
    SAVAGE OIL CO. v. JOHNSON et al.
    No. 3941.
    Court of Civil Appeals of Texas. El Paso.
    April 25, 1940.
    Rehearing Denied May 23, 1940.

      J. E. Quaid, of El Paso, for appellant.
    Chas. Owen, J. M. Deaver, and C. W. Croom, all of El Paso, for appellees.
   PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of El Paso County in favor of Mrs. E. M. Johnson, plaintiff, against Savage Oil Company, defendant, in the sum of $1,327.51; further adjudging and foreclosing a landlord’s and chattel mortgage lien against certain personal property. In the judgment defendant J. C. Ross is awarded, on his cross-action, a judgment against the plaintiff in the sum of $270, and same is adjudged a lien in that amount against the recovery of the plaintiff against the Savage Oil Company. Relief was denied defendant Savage Oil Company on its cross-action. The trial was before the court, and findings of fact and conclusions of law do not appear in the record. Defendant Savage Oil Company perfected appeal from the judgment

Plaintiff in her petition alleged she was a married woman, but that for more than two years prior to the institution of her suit she had been permanently separated from her husband, and that since said time he had not lived with or supported her; that her husband was a non-resident of the State, and that his consent could not be procured to join in the suit, and that at all times mentioned she had acted as a feme sole, and was entitled to bring and prosecute the suit in her own name.

She sought recovery on a note signed by appellant and for rents delinquent on a lease executed and delivered by her to appellant on certain of her property situated in the City of El Paso, and for a foreclosure of-a lien on certain personal property securing the amounts alleged to- be due her on the lease and note; damages were also sought for injury to the leased premises.

Defendant Ross replied by a cross-action seeking to recover for legal services, and asserting a lien on the note sued on by plaintiff to secure payment of his indebtedness.

Appellant replied to appellee’s petition by general demurrer, general denial, plea of payment and limitations; further, by cross-action sought recovery from plaintiff for interference with its possession of the leased premises, and for loss and damage of certain personal property belonging to it, the possession of which plaintiff was alleged to have refused to surrender to it. It was also pleaded that appellee had interfered with appellant’s possession of the premises in several different ways to its damage.

Appellant asserts that the court erred in rendering judgment against it, in that plaintiff, being a married woman, failed to prove her allegations showing her right and capacity to prosecute the suit without the joinder of her husband. The pleading in this respect has been summarized. Before passing to a consideration of the evidence it may be mentioned that there was no direct averment that the property leased was the separate property of plaintiff, and further that appellant did not plead in abatement on account of the non-joinder of the husband.

Appellant had possession of the property involved under two leases. The first lease was made to Juan Morales in 1927, and was for a period of five years. This lease, which we shall hereafter call the first lease, was transferred by the lessee to appellant shortly after same was executed. In this lease plaintiff is described' as a feme sole by the name of Evangeline Mercier Johnson, also known as Miss Evangeline Mercier. The premises were held by appellant under this lease until sometime in 1932. There was a holding over after the expiration of this lease. In May, 1933, plaintiff executed and delivered to appellant a lease. for two years on the property in controversy. Prior to the execution and delivery of this lease plaintiff obtained an order from one of the district courts exercising jurisdiction'in El Paso County authorizing her, as a married woman, to execute same. She executed the same under the name of Mrs. Arnett, but recited therein she was also known as Mrs. E. M. Johnson. It is further recited that she was a married woman living separate and apart from her husband, P. G. Arnett, but had authority to make the lease by order of the court. It is recited, in substance, that the property is her separate property.

The date of plaintiff’s marriage does not appear. It would seem that she was not married on the date of the first lease in 1927. The property is the same property covered by the second lease. It is a fair and just inference that this property was the separate property of plaintiff.

The consideration for the note sued on was unpaid rent under the first lease. It is clear that insofar as same represents rents due before her marriage, same would constitute her separate property; as to rents becoming due after her marriage on a lease entered into before her marriage, it is perhaps unnecessary to decide as to the status of community or otherwise; the rents coming due under the second lease were clearly community property.

The evidence shows that her husband filed suit for divorce against her, dismissed same, and she filed a suit for divorce which, under the evidence, was probably pending at the time of this trial. Appellant claimed and held the property under a lease which, in substance, recited the authority for the execution thereof to be abandonment by her husband. An order authorizing the execution was referred to, and with such context that the basis of the order could not be other than abandonment by the husband. There is no evidence of any change of relationship between plaintiff and her husband from 1933, the date of the execution of the lease, to the date of the institution of this suit. If there was no change in this relationship, and she had a right to execute the lease, she had a right to institute and prosecute the suit. The theory of appellant’s cross-action is that she had authority to act in the premises. There is no plea of abatement shown in the record.

Art. 1983, R.S.1925, authorizes the wife to sue alone for her separate property in case her husband fails or neglects so to do. The arrearages on the note sued on extended over a -considerable period of time and he filed no suit thereon. There is no question but that the right to sue for community indebtedness is that of the husband in ordinary cases;. and that the husband is ordinarily a necessary party to the suit for the wife’s separate property.

Appellant, however, asserts that the note and the rents sued for are presumed to be community property. This contention may be correct, bfft in exceptional cases the wife may sue to recover community property. Law of Marital Rights, Speer, 3d Ed., Sec. 510, and authorities there cited.

One of these cases is when she has been abandoned and deserted by her husband. Appellant claimed and held possession under the lease, the validity of which depended on the existence of the very fact of abandonment by the husband. Part of the obligations sued for are under this very lease. At the time the lease was executed appellant had notice of the status of plaintiff as a married woman. The evidence seems to indicate that the relationship between plaintiff and her husband is the same as it was at the time of the execution of the lease. There is no evidence to the contrary. We believe that it was a justifiable inference that at the time of the institution and prosecution of this suit plaintiff’s husband had abandoned her within the meaning of the law authorizing the prosecution of suits by the wife for community property.

We will now consider appellant’s assignment, in substance, that the court in face of the undisputed evidence denied it relief on its cross-action. In the cross-action it was alleged that plaintiff took possession of certain of the personal property on the leased premises and refused to allow appellant to remove same therefrom; that part of this property had been stolen and the rest damaged to such an extent as to be almost worthless. The note sued on by plaintiff recites that same was secured by chattel mortgage on the filling station in question. The second lease provides that on the expiration thereof appellant, the rent not being in arrears, might remove its property from the premises. The nature of the property was pumps, tanks, a compressor, and a sheet iron structure. The evidence tended to show that the compressor had disappeared and the other property had been greatly damaged. However, the lease, impliedly at least, gave the plaintiff the right to hold this property pending the payment of the rent. There is no evidence that she converted same to her own use. If she exercised ordinary care in the preservation and custody thereof we think she would not be liable for loss or damage thereto. 49 C.J. p. 946, par. 93; Douglass v. Mundine, 57 Tex. 344; Marberry v. Farmers’ & Mechanics’ Nat. Bank, 6 Tex.Civ.App. 607, 26 S.W. 215.

The trial was to the court and findings consistent with the judgment entered are assumed. We cannot say that there was not evidence sufficient to sustain the findings of the trial court on appellant’s cross-action. Appellant could have at any time regained possession of the property in question by payment of the rent.

The judgment recites that there was due plaintiff under the terms of the lease sued on $875, less a credit of $135, and allowed a recovery of $740 for rents due under the lease. Plaintiff in her petition alleges that $705 was due on the lease after the credit -of $135 had been allowed. In this state of the pleading we think the judgment is excessive on. this item to the extent of $35.

Appellee by cross assignment complains of the judgment rendered against her in favor of defendant J. C. Ross on his cross-action. We are without power to consider this assignment for the reason no appeal was perfected from such judgment.

Except as to the matter of the $35 mentioned, we find no reversible error in the case.

It is ordered that the judgment be reformed eliminating $35 from the recovery, and as so reformed affirmed.

It does not appear that this matter was called to the attention of the trial court, hence the costs will be taxed against appellant.


author: MONTEITH, Justice.

text:
    WALSTON v. GIBSON.
    No. 11012.
    Court of Civil Appeals of Texas. Galveston.
    May 23, 1940.
    Rehearing Denied June 20, 1940.

      • W. R. Petty, of Palestine, for appellant.
    J. D. Pickett, of Palestine, for appellee.
   MONTEITH, Justice.

This is an appeal in an action in trespass to try title brought.by appellee, D. L. Gibson, against appellant, G. C. Walston, for the recovery of the title and possession of a tract of land in Anderson County, Texas, and for the removal of a cloud on his title thereto.

Appellant answered by general demurrer, general denial and a plea of not guilty. He specially pled that a note and lien relied on by appellee were barred by the statute of limitation of four years, Vernon’s Ann.Civ. St. art. 5527, and disclaimed all interest in said land except a one-sixth interest therein alleged to have been inherited by him from his mother.

By trial amendment appellee pled that he had purchased from the original vendor a note secured by a vendor’s lien on the land in controversy; that J. H. Walston, one of the original makers of said note, individually and as community survivor, had executed a renewal of said note in his favor, renewing and extending the lien retained therein on said land, and that afterwards the said J. H. Walston had deeded said land to him in consideration of the cancellation and surrender of said note. He alleged that the consideration for his surrender thereof and the release of his indebtedness had totally failed by reason of the fact that the said J. H. Walston, prior to the date of the execution of said deed to him, had ponveyed the land in controversy ,to appellant. He prayed that said original indebtedness and lien be revived and decreéd to be a valid lien and debt against said land; that the deed of J. H. Walston to him be cancelled, and for judgment against appellant on his contract to assume payment of said note, with foreclosure of his lien.

J. Harmon Walston and Ada Pearl Gibson, wife of appellee, intervened in the suit. They sought no specific relief and did not appeal from the judgment of the court.

In a trial before the court without a jury judgment was rendered cancelling the deed from J. H. Walston to appellee, reviving said note for $1,260 and the lien by which it was secured, and in favor of ap-pellee against appellant for his debt with foreclosure of his lien.

The record shows that the land in controversy was conveyed by Gene Cook and wife to J. H. Walston and wife, R. C. Walston, on.November 14, 1918; that as a part of the consideration therefor grantees executed their promissory note for the s'um of $1,000, payable to Gene Cook and secured by a vendor’s lien on the land in controversy, and that appellee purchased said note from Gene Cook prior to its maturity; that R. C. Walston died, intestate, on March 18, 1934, leaving as her sole surviving heirs at law her husband and her surviving children, appellant, G. C. Wals-ton, and intervenors, J. Harmon Walston and Ada Pearl Gibson; that on March 26, 1937, there was $2,500 due on said note and that the said J. H. Walston, individually and as community survivor, in consideration of a reduction of the amount due and the extension of the balance thereof for a period of five years, executed a renewal note in favor of appellee in the amount of $1,260, renewing and extending the lien on said land as security therefor. By deed dated April 28, 1937, J. H. Wals-ton conveyed the land in controversy to appellant, G. C. Walston, in consideration of his assumption of the payment of said note for $1,260. By deed dated March 25, 1938, J. H. Walston, who was in default in the payment of interest due on said note, conveyed said land to appellee in consideration of the cancellation and surrender of said note. Appellee had no actual knowledge of the execution of said deed from J. H. Walston to appellant at the time said land was conveyed to him by J. H. Walston. J. H. Walston died, intestate, on February 18, 1939, leaving as his sole surviving heirs appellant, G. C. Walston, and intervenors, J. Harmon Walston and Ada Pearl Gibson. There was no administration on the estates of either Mrs. R. C. Walston or J. H. Walston. At the time of the death of Mrs. R. C. Walston and at the time of the death of J. H. Walston all debts due by them or by their community estate had been paid with the exception of what was due on said note.

The controlling questions presented in this appeal are, (1) whether J. H. Walston, after the death of his wife, without the joinder of her heirs, had the authority to renew and revive said note and lien in discharge of a community debt without having first qualified under the statute as community survivor, and (2) whether, even if he had this authority, he was empowered, as community survivor, to renew and revive said note and lien after the expiration of the period required by. the statute of limitation to bar the debt and lien. Both of these questions have been decided by the Supreme Court of this State.

It is now the settled law that, in the absence of fraud, all power to sell property belonging to the community estate to pay community claims, which may be executed by the regularly qualified survivor, vests in the survivor who fails to qualify under our statutes; for failure to qualify in no way restricts or limits a survivor’s powers to apply community assets to the discharge of the community debts. Stone v. Jackson, 109 Tex. 385, 210 S.W. 953; Griffin v. Stanolind Oil & Gas Co., 133 Tex. 45, 125 S.W.2d 545; Fidelity Union Ins. Co. v. Hutchins et al., Tex.Sup., 133 S.W.2d 105.

That J. H. Walston was empowered, as community survivor, to renew and revive said note and the lien by which it was secured, in discharge of a community debt after the expiration of the period required by the statute of limitation to bar the debt, has also been decided by the Supreme Court.

In the case of Stone v. Jackson, 109 Tex. 385, 210 S.W. 953, 954, in which the facts are similar in all material respects to those in the instant case, the Supreme Court, speaking through Justice Greenwood, says:

“The controlling question presented is of far-reaching importance and is whether the surviving husband is empowered to convey community land, in order to secure the discharge of a community debt, after the expiration of the period required by the statute of limitations to bar the debt.
“Nothing is clearer in our law, as declared both by statute and by repeated decisions of this court,' than that the community property of the husband and wife is subject to the payment of the debts contracted by either of them during the marriage, except when otherwise specially provided * * *.
“It is equally clear that the husband is not only ordinarily entitled to the exclusive management and disposition of the property of the community estate during the marriage, but that such right or power of management and disposition, for the purpose of discharging the .ordinary debts of the community estate, continues and is likewise exclusive, after the death of the wife; it having been determined that this right or power of the surviving husband overrides that of the administrator of the estate of the wife. * * *
“The conveyance of Price, after the death of his wife, being but the completion of a pre-existing arrangement, made during the existence of the matrimony, must be held as valid as if made in the lifetime of the wife. A's surviving partner, he had authority to perfect a transaction commenced during the partnership, and this rule is of special force and application in cases of conjugal partnership, in which there is a head that has the entire control of the affairs of the partnership, with no restraint except that it shall not be abused with fraudulent intent against the rights of the other partner. Such being the rights of the husband, as head of the community and as surviving partner, the heirs of the wife cannot repudiate his acts and contracts, begun before, but finished after, the death of their mother. They received their mother’s interest, but incumbered with burdens which, have the same binding force and effect upon them, as they have upon the husband and surviving partner. * * *
“We do not think that the question presented here differs in principle from that considered in Stramler v. Coe [15 Tex. 211]; and if the husband possessed the power, in that case, to convey the entiré interest of the community in performance of an obligation contracted by him during the marriage, though limitation had barred suit to enforce the obligation, so in our opinion, the surviving husband must be held, in this case, to have possessed like power to make a conveyance of community land, as against any claim of his wife’s children, when such conveyance was executed to satisfy a community debt, though the husband’might have defeated a suit on the debt by means of limitation.”

The rule laid down in the case of Stone ,v. Jackson, supra, is followed in the case of Kauffmann v. Hahn, Tex.Civ.App., 59 S.W.2d 435, 436, in which the court says:

“The notes were original obligations of appellant to evidence sums of money borrowed from appellee to be used in the payment of community debts; but even if it be admitted that the instruments were given to revive and secure debts already barred, appellant, as survivor, representing the community estate, had full power and authority to revive such debts and give liens to secure them.”

In further support of the contention that the community survivor may pay a community debt that has been barred by limitation, the court in the case of Alldredge v. Wilson, Tex.Civ.App., 268 S.W. 1045, 1047, says: “The fact that the community debts may have been barred by limitation at the time Alldredge [community survivor] made the conveyance to Henderson would not defeat his deed.”

In the case of Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 1085, 115 A.L.R. 329, the court in sustaining this contention uses the following language : “The lapse of time does not satisfy the debt, and although the debt and lien may be barred by limitation, the moral obligation will support an agreement renewing the debt and reviving the lien.”

It follows, therefore, that J. H. Wals-ton, as community survivor, had the legal right to renew and extend the purchase-money note given for the tract of land in question, even though, at the time of the renewal thereof, limitation could have been successfully invoked to defeat an action thereon, and that appellant, having purchased said land burdened with the debt and having assumed the payment of said note as a part of the consideration therefor, the trial court rendered the correct judgment in decreeing that appellee was entitled to judgment against appellant on the renewed purchase-money note, and in foreclosing the lien and ordering the land sold in satisfaction thereof.

We have fully considered all other propositions presented in appellant’s brief. In our opinion no error is shown in the record which requires a reversal of the judgment. The judgment of the trial court will, therefore, be in all things affirmed.

Affirmed,


author: O’QUINN, Justice.

text:
    GILKEY et al. v. SOUTHLAND LIFE INS. CO.
    No. 3689.
    Court of Civil Appeals of Texas. Beaumont.
    June 11, 1940.
    Rehearing Denied June 26, 1940.
    W. B. Pope and Post, McCord & Dillard, all of Dallas, for appellants.
    Malone, Lipscomb, White & Seay, of Dallas, for appellee.
   O’QUINN, Justice.

This suit was filed on April 5, 1939, in district court of Dallas county, by the surviving widow, sons, and daughters of Roy O. Gilkey, who died on January 10, 1935, to recover the amounts due on three certain policies of life insurance issued by appellee, Southland Life Insurance Company, on the life of the deceased and payable to his estate. Appellee answered by general demurrer, general denial, and certain special defenses. On trial to the court without a jury, judgment was for appellee, from which plaintiff, Grady Gil-key, alone prosecuted his appeal to the Dallas Court of Civil Appeals. The case is on the docket of this court by order of transfer by the Supreme Court.

In support of his judgment, the trial court filed the following conclusions of fact:

“On February 17, 1923, the defendant issued to Roy O. Gilkey its Ordinary Life Policy No. 55306, in the amount of $1,-000.00 naming Nova Ellen Gilkey as beneficiary. Such policy of insurance provided that any indebtedness owing by the insured to the Company should be deducted from the proceeds of any settlement thereof.
“2. On November 15, 1926 the defendant issued its' Policy No. 90000 for $5,000.00 to Roy O. Gilkey upon the Ordinary Life Plan, naming the estate of the insured as beneficiary in consideration of the payment in advance of a premium of $160.75 and of a like premium on each November 15th in each succeeding year during the life of the insured. The policy provided that if any premium should not be paid when due, the policy should, subject to its terms, lapse and be of no further force or effect. The first premium due November 15, 1926 was paid. The second, premium due November 15, 1927 was not paid in cash but the insured gave the defendant his unsecured note for $160.75 due October 15, 1928, which note was paid November 1, 1928. The premium due November 15, 1928 was. not paid in cash, but the insured executed a lien note payable to the defendant for $160.75 due October 15, 1929. This note was not paid at maturity but was extended to ' November 14, 1929. When the premium due' November 15, 1929, fell due, the defendant made a policy loan to the insured in the amount of $285.00, which was at that time the full cash loan value of this policy. The insured also paid $63.25 in. cash. This total sum of $348.25 was used to pay the note of $160-.75 given for the 1928 premium, with interest thereon amounting to $9.65, and to pay the premium due November 15, 1929, in the amount of $160.75, and to pay advance interest upon said policy loan for one year in the amount of $17.-10. The entire cash surrender value of the policy was consumed by this transaction. When the next premium fell due on November 15, 1930, the insured paid in cash another year’s advance interest upon the policy loan above referred to, but did not pay the current premium in cash. He gave to the defendant his note in the amount of $160.75 due November 1, 1931. This note provided that failure to pay it when due would lapse the policy and that the amount owing to the defendant upon such note in such event would be the pro rata premium earned by the defendant for carrying such policy of insurance in full force from November 15, 1930, to the date of the lapse. This note was never paid. No further premiums on said policy were ever paid. On November 1, 1931, the defendant, by keeping such insurance in force from November 15, 1930 to November 1, 1931, had earned a premium of $57.34. To evidence this indebtedness, Roy O. Gilkey gave the defendant his promissory note in the amount of $57.34, maturing November 1, 1932. The maturity date of said $57.34 note was subsequently extended to November 1, 1933; later to August 30, 1934, and later to February 24, 1935. On February 4, 1935 there was due and' unpaid upon this note in principal and accrued interest, the sum of $68.40. On November 1, 1931, the date on which said policy lapsed, there was no cash value thereunder to provide for any form of extended insurance.
“3. On November 23, 1927,.the defendant issued its Policy No. 99367 for' $5,-000.00 upon the Ordinary Life Plan to Roy O. Gilkey, naming the estate of the insured as beneficiary, in consideration of an advance premium of $168.35 and a like premium payable each November 23rd during the life of the insured, and providing that it, subject to its terms, should lapse if any premium be not paid when due. The first premium due November 23, 1927 was paid. The premium due November 23, 1928, was not paid in cash but the insured gave an unsecured note payable to the defendant for $168.35; due November 1, 1929, which was extended to November 22, 1929. This note had not been paid when the November 23, 1929, premium became due and to pay that note and the November 23, 1929, premium, the insured made a policy loan on Policy No. 99367 in the amount of $190.00, this being the full cash loan'value of said policy at that time. "The insured also paid $93.03 cash and used part of a policy loan upon Policy No. 55306, amounting to $75.17 to keep this policy in force. From these two loans and cash payment totaling $358.20, the insured' paid the premium note given for the 1928 premium amounting to $168.35 of principal and $10.10 of accrued interest, and the premium due November 23, 1929, amount.ing to $168.35, and also advance interest upon such policy loan on Policy No. 99367 to November 23, 1930, amounting to $11.40 or a total of $358.20. This policy loan exhausted the cash value of this policy.
“The insured did not pay the premium due November 23, 1930 but gave an un'secured note for $168.35, payable November 1, 1931 in settlement thereof. This note provided that if it were not paid at maturity, the policy would lapse and that/ the amount which would be due upon the note in such event would be the premium earned by the defendant for carrying such insurance in force from November 23, 1930, to the date of lapse. This note was never paid. As of November 1, 1931, the maturity date of said note, the defendant had earned a premium of $63.27 for carrying such insurance in force from November 23, 1930 to November 1, 1931. To evidence this indebtedness, Roy O. Gilkey gave the defendant his note in the amount of $63.27 due November 1, 1932. The maturity date of this note was extended to November 1, 1933; then to August 24, 1934; and still later to February 24, 1935. On February 4, 1935, the principal and accrued interest due on said note amounted to $75-.58. No further premiums were ever paid on said policy. At the time of its lapse on November 1, 1931, there was no cash value in said policy to purchase any form of extended insurance.
4. On November 23, 1927 the defendant issued its Policy No. 99368 for $2,-000.00 upon the Ordinary Life Plan, on the life of Roy O. Gilkey, naming as the beneficiary the estate of the insured. Such policy that it was issued in consideration of the payment in advance of the first year’s premium of $67.34, and of the payment of a like sum on the 23rd day of each November thereafter throughout the life of the insured, and further provided that failure to pay any premium when due should, subject to its terms, lapse. The first premium due November 23, 1927 was paid. The second premium due November 23, 1928, was not paid cash, but the insured gave to the defendant his unsecured note for $67.34 due November 1, 1929, and subsequently extended to November 22, 1929. Said note was not paid at maturity. When the November 23, 1929 premium became due the insured paid in cash the sum of $67.28 and made a policy loan upon Policy No. 99368 for its full cash value of $76.00. From this total of $143.28 was paid the note for the November 23, 1928, premium amounting to $67.34, with accrued interest of $4.04, the premium due November 23, 1929 in the amount of $67.34, and advance interest upon such policy loan to November 23, 1930, in the amount of $4.56, totalling $143.28. This policy loan exhausted the cash loan value of this policy. On or about November 23, 1930, the insured paid another year’s advance interest upon the policy loan above mentioned amounting to $4.65, and another premium being due upon that date, he executed-' and delivered to defendant an unsecured note in the amount of $67-.34, due November 1, 1931. This note provided that failure to pay the same when due should lapse said policy, -subject to its terms, and that the earned premium due this defendant for carrying said insurance in force up to the maturity date of said note should be the amount owing thereon. This note was never paid. Om November 1, 1931, the date of lapse of the policy, the defendant, by carrying said/ policy of insurance in force from November 23, 1930 to November' 1, 1931 had earned a pro rata premium of $25.10. To evidence this indebtedness Roy O. Gilkey executed and delivered to the defendant his note in the amount of $25.10 due November 1, 1932, bearing interest at the rate of 6% per annum. This note was extended to November 1, 1933; later to August 24, 1934; and still later to February 24, 1935. On February 4, 1935 there was due and owing on said note in principal and interest $29.99. No further premiums were ever paid on said policy. At the time of its lapse on November 1, 1931 there was no cash value in said policy to purchase any form of extended insurance.
“5. Roy O. Gilkey died on January 10, 1935. ’ An administration upon his estate was commenced in the County Court of Kaufman County, Texas, shortly after his. death.
“6. On or about February 4, 1935, the defendant's agent, one Frank B. Rhea, gave to the plaintiff, Nova Ellen Gilkey a draft of the defendant company in the amount of $658.78, in settlement of Policy No. 55306, and exhibited to the plaintiff, Nova Ellen Gilkey, a letter from the defendant company to the agent Rhea stating that from the face value of said policy of $1,000.00, plus unearned interest of 80⅜ certain deductions were made, to-wit;
Premium Note. 35.91
Interest on Note.■. 1.93
Earned Portion Note on Policy 90000 . 66.97
Interest on above note. 1.52
Earned portion note on Policy No.
99367 . 73.91
Interest on above note... 1.67
Earned portion note on Policy 99368 . 29.33
Interest on above note. .66
Total . $342.02
Payment of $658.78, representing the difference between the face value of the policy and the total of said deductions was made to plaintiff, Nova Ellen Gilkey.
“7. This suit was filed April 5, 1939.
“8. No evidence was submitted to establish that the plaintiffs counstituted all of the heirs of the insured, Roy O. Gil key.”

The pleadings of the parties, both appellant and appellee, simply invoke the due application of the law to the facts found by the court.

On the issue of limitation plead by appellant, the court made the following conclusion of law: “Roy O. Gilkey died January 10, 1935, and this suit was filed April 5, 1939. There being nothing to suspend the running of the statute of limitations, any cause of action which the plaintiffs may have had has been barred by the four-year statute of limitations.”

The facts assumed in this conclusion of law — that Roy O. Gilkey died January 10, 1935, that the suit was filed April 5, 1939, that there was nothing to suspend the running of the Statute of limitations — all have support in the evidence. It follows that the court correctly concluded that appellant’s cause of action was barred by the statute of four years, Vernon’s Ann.Civ.St. art. 5527.

In his conclusions of law, the court found that policy No. 90000 lapsed November 1, 1931, “because of the failure of Roy O. Gilkey to pay the promissory note dated November 15, 1930, due November 1, 1931”; that policy No. 99367 lapsed November 1, 1931, “upon the failure of Roy O. Gilkey to pay the note due upon that date which had been given to defendant in settlement of the premium due upon said policy upon November 23, 1930”; that policy No. 99368 lapsed November 1, 1937, “upon the failure of Roy O. Gilkey to pay the promissory note due upon that date which had been given to defendant in lieu of payment of the premium due upon said policy on November 23, 1930.”

. The court also made the following conclusion of law: “Under the terms of Policy No. 55306, the defendant was entitled to deduct from the proceeds thereof all indebtedness owing by Roy O. Gil-ey to the defendant including the indebtedness represented by the notes above mentioned which had been given for earned premiums on Policies Nos. 90000, 99367 and 99368. As such deductions were fully explained to the plaintiff, Nova Ellen Gilkey, by the defendant’s agent, Frank B. Rhea, the plaintiffs were in no way deceived as to what deductions were made from such payment and why such deductions were made.”

On the facts, the court made the following additional conclusion of law: “There is no pleading or proof to exempt this case from the general rule that suit upon a cause of action belonging to the estate of a decedent must be brought by the executor or administrator of such estate. The only evidence in this regard being that an administration was commenced, this is sufficient to negative the right of action claimed by the plaintiffs and to entitle the defendant to judgment.”

While it is our conclusion that all these additional conclusions of law by the trial court have due support in the facts found, we pretermit their discussion. Since ap-pellee plead the statute of limitations of four years, and since that issue was found in its favor by the trial court, which finding we have affirmed, it would serve no useful purpose to enter into a discussion of the other conclusions of law.

Appellant has assignments against the fact conclusions by the trial court. The specific facts found and recited, as facts, were clearly established, if not by the un-contradicted testimony, at least they have satisfactory support. Appellant’s assignments are directed primarily to the conclusions drawn by the trial court from the facts — especially as these facts relate to the execution of the premium notes and the application made by appellee of the proceeds of these notes. In so far as appellant attacks the conclusions of fact, his assignments of error are overruled. As above stated, in so far as his assignments invoke the legal construction of the facts, except as they relate to the issues of limitation, we pretermit their discussion.

Because the cause of action was barred by limitation, the judgment of the lower court is affirmed.

Affirmed.


author: COMBS, Justice. .

text:
    McCORMICK v. TEXAS LIQUOR CONTROL BOARD.
    No. 3670.
    Court of Civil Appeals of Texas. Beaumont.
    May 30, 1940.
    Justice & Justice and Bishop & Parsons, all of Athens, for appellant.
    Gerald C. Mann, Atty. Gen., and M. C. Martin, Fred C. Chandler, W. P. Watts, and Geo. W. Barcus, Asst. Attys. Gen., for appellee.
   COMBS, Justice. .

The appellant owns and operates a drug store in Trinidad, Henderson County, which is dry territory. Prior to October 9, 1939, he was permitted to sell whiskey on doctor’s prescriptions under a Medical Pharmacy Permit. After a hearing held on that date, Bert Ford, Administrator of the Liquor Control Board, cancelled the permit on the ground that appellant had made sale of liquor without a doctor’s prescrip'tion to one Franklin, an agent of the Liquor Control Board, and on trial de novo before 'the judge of the District Court of the Third Judicial District at Athens, a judgment was .entered sustaining the order of cancellation. This appeal is from that judgment.

The hearing before the district judge 'was on the record as made before the administrator except that one ofthe attorneys for the appellant testified at some length 'concerning the manner in which the administrator conducted the hearing. This testimony was to the general effect that the administrator acted capriciously in that he first announced he would enter an order suspending appellant’s permit for a period of 60 days, but when the appellant stated that he would appeal from such order the administrator then announced that if there was to be an appeal he would enter an order cancelling the permit. And further, that the administrator used methods of duress, in that he informed the appellant if he would plead guilty and pay a fine of $100, he would suspend the permit for 30 days. The sufficiency of the evidence offered before the administrator was also attacked.

Opinion.

Upon a careful review of the record, we think the judgment of the trial judge should be sustained. The agent Franklin testifying by affidavit, as is permitted by the Liquor Control Act, stated positively that on September 5, 1939, at about 12:15 p. m., he went into the drugstore of the appellant and purchased a pint of whiskey from appellant and paid him $1.60 therefor; that at the time he’ purchased the whiskey the appellant did not ask him if he had a prescription from a doctor; that there was no doctor on the premises; that he did not have any prescription and that appellant, McCormick, did not make any .request that he obtain one. It was also testified before the administrator that appellant’s permit had been suspended once before. Thus it will be seen that there was substantial and positive evidence warranting cancellation of the permit. We cannot presume, in the face of that evidence, that the administrator acted capriciously. The Liquor Control Act, Vernon’s Ann.P.C. Art. 666—1 et seq., is purely regulatory in nature and the administrator of the Liquor Control Board is not governed by the strict rules governing courts in the conduct of his hearings. Our courts have consistently held that the action of the administrator in cancelling a permit will not be interfered with by the courts where it appears that he acted upon substantial evidence warranting cancellation of the permit. Texas Liquor Control Board v. Lanza, Tex.Civ.App., 129 S.W.2d 1153; Texas Liquor Control Board v. Smalley, Tex.Civ.App., 129 S.W.2d 466. In attacking the order of the Board, cancelling his permit, appellant had the burden of proving the invalidity of the order of cancellation by showing that the administrator’s findings were without substantial evidence to support them. Vernon’s Ann.P.C., Art. 666—12a, subsec. 5; Texas Liquor Control Board v. Lanza, Tex.Civ.App., 129 S.W.2d 1153. The appellant did not discharge that burden.

The judgment of the trial court is affirmed.


author: BAUGH, Justice.

text:
    UNDERWRITERS LIFE INS. CO. v. BORNEMANN.
    No. 8960.
    Court of Civil Appeals of Texas. Austin.
    June 5, 1940.

      Richey, Sheehy & Teeling, of Waco, for appellant.
    Jerome Sneed, Jr., and G. A. Martins, both of Austin, for appellee.
   BAUGH, Justice.

Appeal is from an order of the trial court overruling appellant’s plea of privilege to be sued in McLennan County, where its principal offices are located. The plea was controverted and a hear-' ing had thereon. Appellee sued appellant, alleging that it was a corporation, for $250 on an insurance policy on the life of her husband in which she was named beneficiary. He was killed on. December 24, 1938. She alleged that appellant had possession of the policy, and gave it notice to produce same.

In her controverting affidavit, she predicated venue in Travis County on the provisions of Sec. 28a of Art. 1995, Vernon’s Ann.Civ.Tex.Stats., and Sec. 17 of Art. 4859f, Acts 43rd Legislature, c. 245, and the fact that she and her husband resided in Travis County at the time of his death.

Appellant contends in its several propositions that appellee did not make the proof, of venue facts sufficient to overcome its plea of privilege:

1. In that she did not prove that appellant came within either of the articles of the statutes above cited;

2. That she did not prove that a policy had been issued to her deceased husband.

The latter contention cannot be sustained. The policy was alleged to have been in possession of appellant, and having failed to produce it, after notice given, appellee was entitled to offer secondary evidence thereon. This evidence consisted of a notice sent by appellant, mailed at Waco to the insured at Austin, identifying his policy with it by number, and stating that his next premium thereon would be due on December 30, 1938. This notice was found in the deceased’s pocket when he was killed on December 24, 1938. Also a letter from appellant mailed to and received by A. B. Wuster-hausen, nephew and agent of appellee, in response to his notice to appellant by long distance call of the death of the insured, in which the appellant enclosed forms for proof of death, and in which it stated that the deceased held a policy in said company specifically designating it by number. Absent the policy, which absence was occasioned by the failure or refusal of the appellant to produce it, this notice and letter clearly constituted an admission by appellant that the deceased carried a policy with it, and made prima facie proof of the existence of the policy.

It was not necessary, as is apparently urged by appellant, for appellee on the venue hearing to show a right of recovery on the policy. That was a matter for trial on the merits. The rule announced in Compton v. Elliot, 126 Tex. 232, 88 S.W.2d 91, and other similar cases, wherein the venue itself is dependent upon a prima facie showing- of a right of recovery, is not applicable here. This case is controlled by the rule announced in Davis v. Texas Life Ins. Co., Tex.Civ.App., 22 S.W.2d 960, cited with approval by the Supreme Court in Farmers Seed & Gin Company v. Brooks, 125 Tex. 234, 81 S.W.2d 675, where venue facts, such as suits on a written instrument specifying place of performance, are not dependent upon a right of recovery on the instrument, but upon proof of its execution and place of performance.

Appellant’s first contention, however, must be sustained. Art. 1995, Sec. 28a, Vernon’s Ann. Civ.Tex.Statutes (Acts 1931, 42nd Leg., p. 251, Ch. 150, § 1), relied upon by appellee in her controverting plea, authorizes suit in the county of the beneficiary’s residence, upon any policy issued by a fraternal benefit society or a statewide mutual assessment company, whether incorporated or not. There was no proof whatever that appellant belonged to, was classified as, or did business under, either of these classifications. There are no allegations in the petition of ap-pellee that it belonged to either of these classes. On the other hand, it was sued merely as a corporation, and alleged to be such. Appellee, on the hearing herein, failed to prove this allegation.

While the Legislature (Acts 1939, 46th Leg.S.B. #70, c. 27, Sec. 1), Vernon’s Ann.Civ.St. art. 2007, amended Art. 2007, R.C.S.1925, by adding thereto the following: “provided that such plea shall not be construed to embrace any of the matters set forth in the Revised Civil Statutes, Article 2010,” this amendment did not become effective until January 1, 1940, and was not therefore applicable when this hearing was had in July, 1939. Though there had been some confusion and uncertainty, prior to the 1939 amendment, as to whether, under the provisions of Art. 2010, a plaintiff, as against a plea of privilege duly filed by a defendant, was required on a hearing on such plea to prove, as an essential venue fact, that the defendant was a corporation, it has been definitely held that where this fact was a basis for retaining venue where the suit is filed, he must make such proof. See Texas Employers Ins. Ass’n v. Collier, Tex.Civ.App., 77 S.W.2d 878; Stockyards Nat. Bank of Ft. Worth v. Alexander, Tex.Civ.App., 113 S.W.2d 288; Rowan Drilling Co. v. Le Bus, Tex.Civ.App., 119 S.W.2d 97. Doubtless it was in the light of these decisions that Art. 2007 was amended in 1939. The instant case, however, is referable to the statute prior to such amendment; and under the cases cited it was incumbent upon the appellee to prove, as an essential venue fact, that the appellant was a corporation, as alleged. This she failed to do.

It is not necessary, however, for us in reversing the action of the trial court to order it transferred to the County Court of McLennan County. It is now settled that where ‘a case, including orders on pleas of privilege, has not been fully developed, and the ends of justice may be best subserved by a remand, rather than a rendition thereof, it may be remanded to the trial court for another hearing, instead of being rendered. Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593; Brown v. Cox, Tex.Civ.App., 53 S.W.2d 848; Jones Fine Bread Co. v. Smith, Tex.Civ.App., 136 S.W.2d 234.

Accordingly the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


text:
    JONES v. TORRANCE.
    No. 2210.
    Court of Civil Appeals of Texas. Waco.
    May 23, 1940.
    Rehearing Denied June 27, 1940.

      George Clark and John B. Fisher, Jr., both of Waco, for appellant.
    Stansell Bryan, of Waco, for appellee.
   TIREY, Justice.

Plaintiff, J. R. Torrance, a real estate broker, brought this suit in the Justice Court against A. P. Jones and Ralph H. Schultz, joint defendants, for a commission for services rendered in bringing about a sale of real estate from Jones to Schultz and his wife. In the Justice Court judgment was rendered for defendant. The plaintiff appealed to the County Court of McLennan County, and the case was tried before a jury. In the County Court the plaintiff voluntarily dismissed his suit as to Schultz and proceeded against Jones only, and the jury returned a verdict favorable to plaintiff and judgment was entered on the verdict of the jury in favor of plaintiff, and defendant has appealed.

The parties will be designated as in the trial court:

The evidence substantially shows that Schultz and his wife, prior to the sale in question, owned some property in Dallas, Texas, that they desired to trade or exchange Sor a small farm near the city of 'Waco. The first negotation concerning the matter was had between Mrs. Schultz, wife of defendant Schvltz, and the plaintiff in the postoffice at Waco. According to plaintiff's testimony, after these negotiations, Schultz and wife inspected the small farm belonging to Jones and were interested and wanted him to make the trip to Dallas and inspect their property and then contact Jones in order to see if an exchange could be effected; that in a few days after negotiations began, he made a trip to Dallas and made an inspection of the property belonging to Schultz and wife, and on the same trip went on over to Fort Worth and negotiated with Jones over the telephone concerning the matter. Torrance testified as to this conversation, in substance, as follows: (1) that Jones was not interested in the Dallas property and wanted to sell his Waco property on a net basis; (2) that he refused to handle it on a net basis and that Jones inquired of him as to the amount of his commission and he advised him five per cent of the sales price and that Jones gave him a price of $2,750 on the property and agreed to pay him five per cent and asked him to submit such price to the purchaser; (3) that he gave Jones the name of Schultz as his prospect and advised him of the business that Schultz was in; (4) that Jones said he understood about the commission and that he had discussed the matter with other real estate men; (5) that on the morning after his return from Fort Worth he submitted his price to Schultz. Tones testified, in substance, as to this conversation as follows: (1) that he advised Torrance that he was not interested m any trade for Dallas property; (2) that he understood Torrance was a real estate man, and that Torrance could sell his property; (3) that he asked Torrance what his commission would be and Torrance said the usual five per cent; (4) that he advised Torrance that he had a small equity in the property and could not afford to pay five per cent on the sales price and he refused to authorize Torrance to sell and refused to pay him a commission; (5) that Torrance did not mention the name of Schultz to him in this conversation. Jones further testified that after his telephone conversation with Torrance (not remembering the time intervening) Mrs. Schultz called him over the telephone about his property; that a few days after his telephone conversation with Mrs. Schultz he came to Waco and closed the sale for the property; that he had no further contact or communication with Torrance until after the sale of the property.

Defendant, by various assignments and propositions, complains of the trial court’s failure to give his special issues Nos. 1 to 12, inclusive. The points raised by each of the assignments and propositions are substantially to the effect that they presented affirmatively defendant’s defense to the plaintiff’s cause of action, namely, (1) that plaintiff Torrance had attempted to represent, without their knowledge and consent, both the seller Jones and the purchaser Schultz; (2) that the plaintiff Torrance was acting as the agent of the purchaser Schultz, or solely as his agent; (3) that Jones refused to list the property in question with Torrance for sale; and (4) that Schultz was not induced by the efforts of Torrance to purchase the property. We overrule each of these assignments.

We have carefully considered the evidence and have concluded .that the issues requested under Nos. 1 and 2, above, were not raised by the evidence. We have also concluded that the issues requested under Nos. 3 and 4, supra, are necessarily embraced in the determination of the ultimate fact issues, namely, whether or not Jones employed Torrance to make the sale and agreed to pay a commission, and whether or not Torrance’s efforts were .in fact the procuring cause of the sale to Schultz. “A litigant is not entitled to have two issues submitted which are opposites one to the other.” Wright v. Traders & General Ins. Co, 132 Tex. 172, 123 S.W.2d 314, point at page 316; Wichita Valley R. Co. v. Williams, Tex.Civ.App., 6 S.W.2d 439. The evidence is uncontradicted that when Torrance began his negotiations with Jones that Jones advised Torrance that he was not interested in trading for Dallas property and that Torrance immediately requested the permission of Jones for the privilege of selling his property; that Jones immediately inquired of Torrance as to what his commission would be for the sale of the property, and that Torrance advised Jones that it would be the regular five per cent commission. Now the evidence is in dispute as to whether or not Jones employed Torrance to sell' the property and agreed to pay him five per cent of the sales price. Torrance testified that he did. Jones testified that he did not. Jones testified that Torrance did not mention the name of Schultz to him. Torrance testified that he did and that Jones gave him a price of $2,750 on the property and that he gave this information to Schultz on the morning after his return from Fort Worth. Nothing was said about a commission when Torrance communicated the price of the Jones property to Schultz. Jones testified that Schultz called him over the telephone about the property after his conversation with Torrance, and that in a few days after his conversation with Schultz, he came to Waco and closed the sale. Jones further testified that in the telephone conversation with Schultz that Torrance’s name was not mentioned, and further that in the negotiations with Schultz, wherein the sale was completed, that no mention was made by Schultz or any other person to him that Torrance was in anywise interested or had anything to do with this sale. Mrs. Schultz testified that Torrance never mentioned the Jones property to her; that Mr. Schultz testified that he never had any conversation with Torrance until after he had consummated the trade. Torrance testified that the deed passed in less than two weeks after his negotiations began with Mrs. Schultz at the postoffice, it is true that Torrance filed suit in the Justice Court against Jones and Schultz jointly, and as a basis for his cause of action alleged a contract with both parties and a conspiracy between Jones and Schultz to defeat the payment of his commission. It is also true that after Torrance learned that the sale had been completed from Jones to Schultz that Torrance went to the employer of Schultz and tried to -get Schultz dismissed; however, the only evidence adduced as to a contract between Schultz and Torrance was that given by Torrance and it was to the effect that up until the time Schultz looked at the property, it was a straight purchase by Schultz; that after Schultz inspected the Jones property, Schxtltz wanted to put his Dallas property in as part exchange.for the Jones property and that Torrance advised Schultz that he would owe him a commission of 2½% on whatever amount Jones accepted the Schultz property for in trade. That contingency did not arise. It is our opinion that this case comes under that well established doctrine that “a person may act as an agent of both parties to an exchange of lands, if his duties to each are not such as to require him to do incompatible things.” Leake v. Scaief, Tex.Civ.App., 140 S.W. 814, point 1, at page 816; T. A. Hill & Son v. Patton & Schwartz, Tex.Civ.App., 160 S.W. 1155, 1157; Allen v. Roach, Tex.Com.App., 292 S.W. 195, point 4, at page 197; 7 Tex.Jur. p. 438. We therefore hold that the only ultimate fact issues raised by the evidence in this case were the questions as to (1) whether or not Jones employed Torrance to sell the property in question and agreed to pay him five per cent commission on the sales price, and (2) whether or not the efforts of Torrance were the efficient and procuring cause of the sale. These questions, in our opinion, were properly submitted by the trial court and the jury answered them adversely to the defendant. We recognize that there are conflicts in the testimony of plaintiff with that offered by the defendant, but this raised a jury question. Glazer v. Woodward, Tex.Civ.App., 127 S.W.2d 938, points 1-3, at page 940, writ refused. Each of the assignments and propositions urged to the failure of the court to submit special issues Nos. 1-12, inclusive, by defendant is overruled.

Defendant has assigned as error the court’s definition of the term “procuring cause.” The trial court instructed the jury that the term “procuring cause”, as used in the main charge, was as follows: “By the term ‘procuring cause of the sale,’ is meant such act or acts in connection with the sale, if any, which so far contributed to bringing about the sale that but for such acts in the matter the sale would not have been accomplished by what was actually done by the other parties to that end.”

The defendant’s objection to the above definition was that it incorrectly and improperly defined the term “procuring cause” and requested the court to define the term as follows: “By the term ‘procuring cause’ as used herein, is meant that cause which, in a natural and continued sequence, unbroken by any new, independent, intervening cause, produced the event, without which it would not have occurred.”

We overrule this assignment. The contention made by plaintiff in the case was that he found Schultz, the purchaser of the property, and that after Jones, the seller, agreed to employ him to sell the property and gave him a price of $2,750 and agreed to pay five per cent commission on the sales price, that he then disclosed the name of his purchaser to Jones, and that he, Torrance, communicated the price the next morning to Schultz. The plaintiff thereafter contends that Jones and the Schultzes conducted negotiations that consummated the sale and there is evidence in the record that the sale was consummated in less than two weeks after Torrance had his conversation with Mrs. Schultz at the postoffice. We think our courts have uniformly held that if the agent brings the parties together and they then, independently of the acts of the agent, continue negotiations until the trade is consummated, the agent is, as a matter of law, the procuring cause of the sale. Keener v. Cleveland, Tex.Com.App., 250 S.W. 151; Edmonson v. Tinsley, Tex.Civ.App., 15 S.W.2d 118, point at page 120. Moreover, we are of the opinion that the evidence in this cause did not raise an issue of new and independent cause. Young v. Massey, 128 Tex. 638, 101 S.W.2d 809. We think the definition of “procuring cause” was applicable to the evidence in this case. Drossos v. Giles, Tex.Civ.App., 288 S.W. 275.

Defendant complains bitterly of the trial court’s refusal to sustain general demurrer and special exceptions to the plaintiff’s pleading in the county court, on the ground that plaintiff plead and relied upon a new and different cause of action pleaded in the justice court. We overrule each of these assignments. It is true, the plaintiff sued Jones and Schultz jointly in the justice court and alleged that he had a contract with each of them and set up that Jones and Schultz entered into a conspiracy to defeat his commission. Plaintiff’s pleading in the justice court alleged a contract with Jones and that he was the procuring cause of the sale of the land in question from Jones to Schultz and alleged that his commission was the sum of $128. That is the same' cause of action that plaintiff alleged against Jones’ in the county court, and we do not think that defendant Jones is in a position to complain because plaintiff did not allege conspiracy in the county court and voluntarily dismissed the suit against Schultz. We have carefully considered the pleadings, and, under the rule announced by the Supreme Court in Phœnix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707, it is our opinion that the cause of action alleged by plaintiff against Jones in the justice court is substantially the cause of action alleged against him in the county court.

We have carefully considered each of the other assignments raised by defendant, and have concluded that each is without merit. It follows that the judgment of the trial court is in all things affirmed.