author: PRICE, Chief Justice.

text:
    GREEN et ux. v. DUNCAN.
    No. 3881.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 24, 1939.
    Rehearing Denied Dec. 21, 1939.
    Jones & Jones, of Mineóla, for appellants.
    Tom J. Mays and Carney & Carney, all of Atlanta, for appellee.
   PRICE, Chief Justice.

Appellee, Mary S. Duncan, hereinafter called plaintiff, on the 22nd day of April, 1938, filed this action in the District Court of Marion County against appellants, Londy Green and his wife Mary Green, hereinafter referred to as defendants.

Count one of plaintiff’s petition was founded on two promissory notes in the respective sums of $250 and $200, said notes being each payable to Andy Elrod, and alleged to have been given by defendant Londy Green in part payment of two described tracts of land in Marion County. Judgment on the notes, with interest at the rate of ten per cent per annum and attorney’s fees, together with a foreclosure of the vendor’s lien, was sought. On the fifty-acre tract the alleged vendor’s lien was confined to an undivided one-fourth interest therein. The date of the alleged purchase of the land was February 1, 1918. The $250 note was alleged to mature one year after its date, the one for $200 two years after its date. It was further alleged that there was now due on the notes the sum of $2754.65 principal, interest and attorney’s fees; that defendants on August 8, 1935 acknowledged the justice of said debt in writing and agreed to pay same.

Plaintiff’s second count was in the alternative. It adopted all of the allegations of the first count as part thereof. Plaintiff then alleges tha*t defendants! had, on August 8, 1935, sued plaintiff here and the other heirs of A. T. Duncan, deceased, in the District Court of Marion County, and attached to plaintiff’s, petition as an exhibit was a copy of the petition of plaintiffs (defendants here), and by reference same was made a part of the second count of plaintiff’s petition. By appropriate allegations it is shown that defendants here in that cause secured a final judgment against plaintiff here and the other heirs of A. T. Duncan, deceased, establishing and adjudicating that a certain deed from defendants here, Londy Green and wife, to A. T. Duncan was in fact a mortgage, and establishing in favor of plaintiff here and the other heirs of said A. T. Duncan that the two notes described in the first count of plaintiff’s petition here were secured by a vendor’s lien on the two tracts of land described. On the fifty-acre tract there and here described the lien was established only on the one-fourth interest therein held by Londy Green and wife; that according to the terms of said judgment there was due on the notes the sum of $1711.30. On the second count judgment was sought foreclosing the lien as established by the judgment aforesaid.

Defendants here filed answer to the first and second counts of plaintiff’s petition. This answer consisted of general exception and general denial. By way of special defense the two and four years statutes of limitations were pleaded. The defendant Mary Green set up her coverture and that the property had been her homestead for twenty years.

Defendant Londy Green set up partial failure of consideration for the notes, the factual basis alleged was that the notes were given in part payment of the ninety acres described; that the sale was on the basis of $8.35 per acre; the title had failed to the extent of thirty-four acres, and he was entitled to a credit of $251.40, if plaintiff was entitled to recover.

Plaintiff filed supplemental petition consisting of general demurrer, special exception and general denial; specially denied the notes were barred by limitation. In said supplemental petition plaintiff, as to the plea of failure of consideration, averred an estoppel to make súch plea on the ground that defendant was aware of the fact that his brothers and sisters owned an interest in the property after the death of the life tenant; that said defendant had acquired the estate of the life tenant and that there had been no interference with the possession of defendant.

At the close of the evidence the court instructed a verdict in favor of plaintiff for the amount sued for in the first count of her petition and for foreclosure of the lien on the land described. Judgment was rendered on the verdict that plaintiff recover the sum of $2,892.38 against defendants, together with a foreclosure of the lien in that amount on the property involved.

Defendants duly perfected appeal from the judgment 'and the case is here for review.

The facts are somewhat complicated and a- statement thereof is necessary. There are two tracts of land involved here; one of about 40.53 acres, the other of fifty acres. Hutch Green, the father of Londy Green, originally owned the fifty-acre tract. In the settlement between the heirs of Hutch Green and his second wife, Virginia, a life estate was given Virginia in this property. Londy Green, defendant here, was a party to this settlement along with the other heirs of Hutch Green. Virginia thereafter married Tom Stewart. On the 17th day of January, 1906, Virginia. joined by her husband, Tom Stewart, executed a conveyance of this fifty-acre tract to Londy Green. The deed was general warranty in form and purported to convey a fee simple title. In 1915 Londy Green conveyed this property by warranty deed to Andy Elrod. In 1918 Andy Elrod by warranty deed conveyed this property back to Londy Green, together with the other tract of 40.53 acres. Part of the consideration was the $250 and $200 vendor’s lien notes that are the foundation of the action asserted by plaintiff here in count one. On October 27, 1926, Londy Green executed an extension agreement extending the notes to October 27, 1929. Andy Elrod transferred these two notes to A. T. Duncan, now deceased, by written assignment dated January 4, 1932. Plaintiff now holds all rights heretofore held by A. T. Duncan in and to these two notes.

In 1932, for a recited consideration of $500 and the cancellation of the two aforesaid vendor’s lien notes in the respective sums of $250 and $200, Londy Green and wife conveyed the two tracts in controversy to A. T. Duncan.

In 1935, defendants here, Londy Green and wife, brought suit against plaintiff here and the other heirs of A. T. Duncan to have this deed last above mentioned declared a mortgage. Answer was filed to that suit by the defendants therein, and certain heirs of Hutch Green intervened therein claiming an undivided three-fourths interest in the fifty-acre tract as heirs of Hutch Green. This suit resulted in judgment in the trial court substantially as follows : That the named interveners recover of and from the plaintiffs and defendants an undivided three-fourths interest in the fifty-acre tract in question, subject to the life estate of Virginia Green (then the wife of Tom Stewart) and her assigns; the deed from Londy Green and wife to A. T. Duncan was set aside; the named defendants in the suit, including plaintiff, were adjudged to have a lien for $114.53 against the entire interest in both tracts of land representing taxes paid, and there was a foreclosure of this lien decreed. The named defendants were adjudged a recovery against Londy Green in the sum of $1,579.50, the amount of the principal and interest of the two notes, part of the purchase money, and same was adjudged a lien on all' of the 40.53-acre tract and .on the one-fourth interest in the fifty-acre tract. The lien was ordered foreclosed. On this foreclosure, however, it was ordered that if the said sum was not paid within sixty days, with interest at the rate of ten per cent per annum from the date of judgment, that an order of sale issue.

The defendants in the cause sued out and perfected a writ of error from the judgment entered to the Court of Civil Appeals at Texarkana. The plaintiffs in that cause likewise sought to have the judgment of the trial court reviewed, but whether by appeal or writ of error does not clearly appear. Suffice it to say, on appeal the two proceedings were consolidáted. The appeals were disposed of by an opinion of the Texarkana Court of Civil Appeals appearing in Southwestern Reporter as Duncan et al. v. Green et ux. 113 S.W.2d 656, 658. Plaintiffs in error (defendants in the court below) sought to have the judgment of the Court of Civil Appeals reviewed by the Supreme Court, but the application for the writ of error was dismissed by that Court for want of jurisdiction.

As we construe the judgment of the Tex-arkana Court, it modified and changed the judgment of the trial court only as to the foreclosure of the lien represented by the two vendor’s lien notes and eliminated the judgment with foreclosure for the taxes. In the course of the opinion it is said-:

“Defendants in error assailed the part of the judgment of the lower court fixing a tax lien and foreclosing same and foreclosing the vendor’s lien, the cancellation of which vendor’s lien formed a part of the consideration paid for the land in controversy by plaintiffs in error, because there was no pleading on the part of plaintiffs in error to support same. This contention we find to be correct, for the reason that neither party to the suit sought the fixing of a tax lien or the foreclosure of a tax lien and the vendor’s lien. The judgment is not erroneous, however, in fixing a lien against the property to secure the indebtedness owing by defendants in error represented by the Elrod notes, for the reason that by their original petition defendants in error concede that part of the consideration sought to be canceled represented purchase money for said land owing by them to Elrod, and that they had tendered the money in payment 'of these purchase-money notes together with other indebtedness to plaintiffs in error which had been refused. This pleading of defendants in error respecting the nature of part of the consideration of the deed from them to A. T. Duncan, and the further allegation that the deed was in fact a mortgage, can be considered to supply any defect in this regard in plaintiffs in error’s pleading. Ormsby v. Ratcliffe, Tex.Com.App., 36 S.W.2d 1005; Childress v. Robinson, Tex.Civ.App., 161 S.W. 78, writ refused; 49 Cor.Jur. p. 867, § 1276. The jury found, that the deed was intended by the parties thereto as a mortgage; therefore, under the findings of the jury based upon sufficient pleadings and proof, the instrument in form of a deed became in fact a valid and subsisting mortgage on defendants in error’s homestead in so far as the Elrod purchase-money notes were concerned. Girardeau v. Perkins, 59 Tex.Civ.App. 552, 126 S.W. 633, writ refused; 22 Tex.Jur. p. 146, § 102. * * *

“The pleadings of appellees, in our opinion, were amply sufficient to authorize the trial court to enter a judgment for the debt evidenced by the Elrod notes and fix a lien on the land securing same. It is true the appellants will suffer the inconvenience of having to bring an action to foreclose the lien already fixed by the judgment of the trial court, but they will lose no legal rights respecting said lien. Monroe v. Buchanan, 27 Tex. 241; Silliman v. Gammage, 55 Tex. 365; Elliott v. C. C. Slaughter Co., Tex.Civ.App., 236 S.W. 1114; York v. Robbins, Tex.Com.App., 255 S.W. 720.”

The defendants assailed the judgment of the trial court here by five assignments of error with relative and appropriate propositions. These assignments in substance attack the action taken, (1) on the ground that the notes were barred by limitation and that at least the question of limitation was an issuable fact; (2) that the question of partial failure of consideration was at least a question for the jury.

To avoid the statutes of limitation plaintiff relies on the judgment in the case of Duncan v. Green, supra, and the petition of defendants here (plaintiffs there) in that cause. A copy of the petition in that case is attached to plaintiff’s petition here. That petition, after alleging as to the contract existing between the parties prior to the time of the conveyance, alleged “that when plaintiff paid to the said A. T. Duncan and these defendants the sum of money then due and owing to said A. T. Duncan and these defendants, together with such sums of money, if any, that the said A. T. Duncan and these defendants should pay upon the purchase price due upon said land that the said A. T. Duncan and these defendants would reconvey said lands fcack to' these plaintiffs.” In paragraph five of this petition appears the following: “Plaintiff' would show the court that since the execution of said lien these plaintiffs have tendered to the defendants who are the sole heirs at law of the said A. T. Duncan, de-' ceased, the sums of money which they are due and owing the said A. T. Duncan, together with all sums of money the defendants or the said A. T. Duncan had paid upon the purchase price for said land and' requested a reconveyance of their homestead.” Taken in connection with the object of the action, the certainty of the' amount of the two notes, it seems to us that the reference in the deed was to the two vendor’s lien notes in question. The $500-was not money paid on the purchase price of the land according to the theory of plaintiffs therein. Cancellation of those two notes was tantamount to the payment of the balance due on the purchase price of the land.

The opinion in the case of Duncan v.Green at least impliedly so construes the pleading. There it was construed to have reference to an obligation superior to the homestead rights of plaintiff. It is to be noted the opinion and judgment exclude the lien adjudged for taxes — we presume on the ground there was no basis in the pleading therefor. This allegation not only admits a debt but impliedly invites a decree in accordance with equity.

No fault can be found with the proposition that-the purported judgment of a court without jurisdiction is not such, but is a nullity. Further, to act, a court of record must find a basis in the pleading for such action. In the case of Duncan v. Green, supra, this latter contention was invoked by defendants here. There recognition was accorded this contention, in that the action of the trial court as to the recovery and foreclosure of the lien for taxes was held void because there was no pleading justifying same; the foreclosure of the lien for the purchase money secured by the, deed adjudicated to be a mortgage was denied on account of the fact that there was no pleading upon which to base such foreclosure. The judgment did decree such a lien and provided, that the defendants had the right to foreclose same.

It is this last provision of the judgment that we are asked to hold was beyond the> jurisdiction of that court.- The dismissal-of the application for writ of error for lack of jurisdiction may import only that the Supreme Court merely held that the applicants (plaintiff here and those in privity) for the writ made no just ground of complaint as to the judgment rendered insofar as the applicants were concerned. Plaintiff here'and those in privity with her applied for the writ of error. The Supreme Court then did not expressly approve the holding that a lien existed on the lands in favor of plaintiff here. We take it that it may be fairly inferred that the holding imports that plaintiff was not entitled to have foreclosure of any lien she might have in that proceeding.

Counsel for each party to this appeal seem to concede that in the event we áre convinced the court was without jurisdiction to render this decree it is within our power to disregard the same. We believe that in that event it is not only within our power, hut it would be our duty. On the other hand, if there was jurisdiction, that judgment, insofar as it was invoked, governed the trial court and we are bound to respect and enforce same.

We believe that the pleading taken as a whole authorized and demanded the judgment rendered. One seeking an equitable remedy should show himself submissive to all equitable considerations properly conditioning the granting of such relief. “He who seeks equity must do equity.” 19 Am.Jur. p. 319, §§ 463-468; Duncan et al. v. Green et ux., supra, and authorities there cited; 29 Tex.Jur. p. 801, § 12; Guerra v. Garza, Tex.Civ.App., 93 S.W.2d 537; Wells v. Hilburn, 129 Tex. 11, 98 S.W.2d 177.

The deed, which was to all intents and purposes by the decree, together with the provision of the establishment of a lien, declared a valid mortgage to the extent of the purchase money, was tantamount to a reformation of the deed into a mortgage. It is idle to speculate and a bit presumptive when facts which may be established beyond question are used as a basis, as to why the Supreme Court dismissed the application for writ of error rather than refused same. It is suggested that had not the judgment declared the deed absolutely void but recognized same as valid as a mortgage to an extent, the application might have been refused. The application for the writ possibly stressed the view that defendants in error were not entitled to the reformation of the deed; and even if so, plaintiffs in error were entitled to a foreclosure.

We have before stated that the judgment as modified on appeal was the only judgment, in our opinion, that could or should have been rendered. We further believe that it embodies and vindicates all the legitimate rights that plaintiff here had or has in and to the property in controversy, and has exactly the same effect as to defendants here.

If defendants here had not made appropriate allegations to tender equity they probably, would not have been awarded the relief granted them by that decree. A court of equity will not set aside a deed to afford the plaintiff the opportunity to plead the statutes of limitations to an otherwise valid obligation. Hannay v. Thompson, 14 Tex. 142; Bateson v. Choate, 85 Tex. 239, 20 S.W. 64; Rincon Inv. Co. v. White, Tex.Civ.App., 54 S.W.2d 1052.

Likewise, the plaintiff here must rely on that judgment to defeat the defendants’ plea of limitation to the notes. Regardless of the sufficiency or insufficiency of the pleading in the first count to avoid the bar of limitations, the sole reliance is upon the petition of defendants in that case. The pertinent allegations thereof have been heretofore quoted. We do not believe a fair construction of these allegations reveal either an express or implied recognition of the extent or justness of the claim of defendants therein. We construe the allegation as a request to adjudicate as to the claims of the defendants there and a tender of equity with reference thereto after same are established. On this prayer the court acted and did adjudicate as to the extent and validity of the claims of the defendants there. Defendants here are es-topped by that judgment from here assailing the rights accorded the defendants in that case.

We think what we have said before disposes of the issue of partial failure of consideration urged by defendants. However, we may say if there was a partial failure of consideration it was encum-bent upon defendants here to have urged it in the other proceeding. Further, the court must have abated the obligation of the purchase money notes to an extent at least. The notes called for ten per cent per annum interest, with ten per cent interest on all past due interest. The date of the notes was 1918.' There was no plea of payment of either interest or principal. If the relief extended there to defendants here was not justified by the pleading, they have no just cause of complaint. Plaintiff here had fair opportunity in that trial to establish the validity and extent of her •claim. She is likewise bound.

There is one other matter that should be acted upon. The judgment awarded a personal recovery to the extent ■of $2,892.38 against Mary Green, the wife •of Londy Green. Mary Green pleaded coverture, the evidence sustains this plea, the record fails to show she ever signed or assumed the notes in question. There is neither pleading nor proof sustaining the personal judgment rendered against Mary Green.

It is ordered that the judgment be reformed as follows: Plaintiff recover as to Londy Green the sum of $1,379.50, with interest thereon from the 18th day of January, 1936, at the rate of ten per cent per annum; that the vendor’s lien securing such purchase money be foreclosed as to the 40.53-acre tract as to the entire interests of both defendants therein, and as to the undivided one-fourth interest held by defendants in the fifty-acre tract that the lien be decreed and foreclosed; that the personal judgment in the sum of $2,892.38 be reversed and rendered.

In part reformed and affirmed; in part reversed and rendered.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    HUMPHREY v. MIRIKE.
    No. 5539.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 9, 1939.
    Fred Humphrey, in pro. per.
    Don Mirike, of Longview, for appellee.
   HALL, Justice.

This is an appeal from an order of the County Court of Gregg County overruling a plea of privilege filed on behalf of appellant, Humphrey. At the outset we are met with a motion by appellee to dismiss this case for the reason that since the 'appeal was taken this case has been tried on its merits and a default judgment rendered on behalf of appellee against appellant for the amount sued for; ■ that no appeal was taken and said judgment has now become, final, rendering, this appeal moot. A sufficient answer to this motion is: That the case on its merits is now pending in this court on appeal by writ of error. The motion is therefore overruled.

Appellee, Mirike, filed suit in the County Court of Gregg ■ County against appellant and one McAnally upon a written contract and for the title and possession of certain personal property or its value. It was alleged by appellee that Humphrey resided in Smith County and that McAnally resided in Gregg County. It was also alleged that “defendants removed said personal property, or a greater part thereof,” from Gregg County to Smith County. The cause' was filed in November 1937, and was returnable to the January term of County Court of Gregg County. On January 5, 1938, appellant, Humphrey, filed his plea of privilege in statutory form to be sued in Smith County, the county of his residence, and on January 12, 1938, appellee, Mirike, filed his controverting plea, thus joinirig the issue of venue. No hearing was had on the plea of privilege until April 18, 1938, at a subsequent term of County Court of Gregg County, at which time it was overruled. There is nothing in the record to show that appellant agreed to a continuance of the hearing on his plea of privilege, or that the court for good cause shown continued the hearing to a subsequent term of the county court. In these circumstances the county court lost jurisdiction to hear and determine the merits of the issue raised by the plea of privilege and the controverting plea, and the only jurisdiction remaining in the county court was to issue its order transferring said cause of action to Smith County, .Texas. American Fidelity & Casualty Co. v. Jones Transfer & Storage Co., Tex.Civ.App., 46 S.W.2d 1054; Klapuch v. Dickey, Tex.Civ.App., 91 S.W.2d 484.

The judgment must be reversed, in our opinion, for another reason which is apparent from the face of the judgment entered in the case. On April 29, 1938, the court set aside its judgment of April 18th, overruling the plea of privilege and entered the following order:

“On this 29th day of April 1938, came on to be heard the motion of the defendant, Fred Humphrey, to correct an order of this court with reference to the plea of privilege in this case bearing date the 18th day of April 1938 and which has been filed in this cause on a previous day of this court.
“It appearing to the court that the court has jurisdiction over its orders during the term time, the order of April 18th as here•tofore filed in this cause on April 21, 1938, relating to the plea of privilege is set aside and in lieu thereof the following order is entered, the same being entered nunc pro tunc on this the 29th day of April 1938.
“On the 18th day of April 1938, came on to be heard the plea of privilege as filed by Fred Humphrey, defendant in the above styled and numbered cause, together with the controverting plea. The court, after having heard argument on said plea of privilege and controverting plea is of the opinion that the plea of privilege should be in all things overruled, and it is accordingly so ordered.,
“To which action of the court the defendant Fred Humphrey, then and there in open court excepted and then and there in open court gave notice of appeal to the Court of Civil Appeals for the Sixth Su-premfe Judicial District at Texarkana, Texas.
“Perry R. Meredith,
“Judge Presiding.”

We think the judgment clearly shows that no evidence was introduced on the part of appellee in support of his controverting plea. The judgment simply recites that the court based his holding overruling the plea of privilege on the argument of counsel. There is nothing in this record to show that any testimony was introduced by appellee, no statement of facts appears, and there is nothing in the transcript to show that any testimony was introduced upon which the court could base the judgment overruling said plea of privilege. After a plea of privilege is filed by a defendant in any cause and the plaintiff by proper controverting plea joins the issue of venue, the burden rests with the plaintiff to support his controverting plea by sufficient proof to show venue in the county where 'the suit is filed under some of the exceptions to the statute. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300. And this proof cannot be supplied by the allegations in either the plaintiff’s petition or controverting plea. The original petition is admissible only to show the nature of the cause of .action. Thompson v. Pure Oil Co., Tex.Civ.App., 113 S.W.2d 662, and cases cited; 43 Tex. Jur. p. 851, Sec. 113; Balderama v. Simon, Tex.Civ.App., 80 S.W.2d 1046. Appellee in this case wholly failed to discharge this burden. Therefore, for this reason the cause of action must be reversed.

For the reasons indicated above, the judgment of the trial court is reversed and remanded with instructions to transfer this cause to Smith County, Texas, the county .of appellant’s residence.

Reversed and remanded with instructions.


author: ALEXANDER, Justice.

text:
    OLIPHANT v. BUIE et al.
    No. 2158.
    Court of Civil Appeals of Texas. Waco.
    Nov. 23, 1939.
    Rehearing Denied Dec. 21, 1939.

      J. S. Callicutt, of Corsicana, for plaintiff in error.
    Davis, Jester & Tyson, of Corsicana, for defendants in error.
   ALEXANDER, Justice.

This suit was brought by J. C. Buie and others against M. F. Oliphant to recover a debt evidenced by a promissory note and to foreclose a chattel mortgage lien on a Farmall tractor and other farming tools and a cotton and corn crop. -The plaintiffs sequestered the mortgaged property pending a trial. The defendant asserted a failure of consideration of the note sued on in that it had been given in part payment of the farming tools and that such tools were not as represented. A trial before a jury resulted in a verdict and judgment for the plaintiffs. The defendant 'sued out writ of error.

Service on the writ of error was completed on October 14, 1938, but the plaintiff in error did not tender the statement of facts for filing in this court until June 21, 1939, and did not, prior to that date, file a motion for extension of the time within which to file the same. The clerk of this court failed to file the statement of facts when tendered and thereupon the plaintiff in error filed a motion for leave to file same.

Revised Statutes, Art. 1839, as amended by Acts 1931, 42nd Leg., p. 100, ch. 66, Vernon’s Ann.Civ.St. art. 1839, reads as follows: “Article 1839. In appeal or Writ of Error the appellant or plaintiff in error shall file the transcript with the Clerk of the Court of Civil Appeals within sixty days from the final Judgment or Order overruling motion for new trial, or perfection of the Writ of Error; provided, that for good cause shown before the expiration of such sixty day period, the Court shall permit the transcript to be thereafter filed upon such terms as it shall prescribe.” On the same day the above statute was adopted, the Legislature amended Article 2246 (Acts 1931, 42nd Leg., p. 100, ch. 67, Vernon’s Ann.Civ.St. art. 2246), and after fixing a time limit in which the statement of facts might be filed in the trial court, it was further provided as follows: “Sec. 2. Upon application of the party appealing, the Judge of the Court may, in term time or vacation, for good cause shown, extend the time for,filing such Statement of Facts and Bills of Exception; but the time shall not be extended in any case so as to delay the filing thereof beyond the time for filing the transcript in'the Court of Civil Appeals.”

The two amendments above referred to were adopted by the Legislature on the same day and must be construed together. We think the amendment to Art. 2246 makes it clear that the statement of facts must be filed in the appellate court within the time allowed for the filing of the transcript therein, and that the amendment to Article 1839 requires that the transcript be filed in the appellate court within sixty days after perfection of the writ of error. Art. 1839 was again amended by Acts 1933, 43rd Leg., p. 142, ch. 67, Vernon’s Ann.Civ.St. art. 1839, so as to allow the filing of motion for additional time within which to file the transcript, provided such motion was. filed before the expiration of the sixty day period above referred to. Since the provisions of this last amendment were not complied with by plaintiff in error, we need not give further consideration thereto. Our views that the time for filing the statement of facts in the appellate court is limited by the provisions of Art. 1839 as amended, limiting the time for filing the transcript, are sustained by the holdings of the Amarillo court in Evans v. Galbraith-Foxworth Lbr. Co., Tex.Civ.App., 43 S.W. 2d 481, and by the San Antonio court in Shipp v. Metzger Dairies, Tex.Civ.App., 88 S.W.2d 660. The Fort Worth court held to the contrary in the case of Robinson v. Robinson, Tex.Civ.App., 105 S.W.2d 454. That court’s holding was based on provisions of Revised Statutes, art. 2245, which allowed the appellate court unlimited authority, upon the showing of a good cause, in the granting of additional time in which to file statement of facts therein. But, in our opinion, the provisions of Art. ' 2245 are in conflict with the 1931 amendment to Art. 2246, and said article was therefore repealed by section 3 of said amendment, which expressly repealed all laws in conflict therewith. Furthermore, articles 2237, 2238 and 2239, regulating the filing of statement of facts in the lower court were amended in 1931, 42nd Leg., 1st C.S. p. 75, ch. 34, Vernon’s Ann.Civ.St. arts. 2237-2239. In said amendments the Legislature authorized the inclusion in the statement of facts of bills of exception to the admission or exclusion of evidence. These were matters that ordinarily had previously been embodied in the clerk’s transcript. In the amendment to the statutes above referred to, the Legislature refers to the court reporter’s copy of the evidence as “the transcript.” We think this indicates legislative intent to treat the statement of facts as a part of the transcript, necessitating its filing within the time now allowed by Article 1839 as amended. At a former date we refused to grant plaintiff in error permission to file statement of facts on the date tendered, and we now here adhere to that ruling.

Plaintiff in error’s first three assignments complain of the failure of the court to grant his motion for a continuance on account of the absence of three witnesses. Two of these witnesses evidently appeared and testified upon the trial of the case, for the bill of costs embodied in the transcript contains charges for witness fees for such witnesses. The record does not disclose whether or not the other one appeared and testified upon a trial of the case. Furthermore, in the absence of a statement of facts, we cannot tell whether other evidence introduced by the parties rendered the testimony of the absent witness immaterial. It is a well established rule that in order to authorize a reversal on account of the failure of the trial court to grant a motion for continuance, it must appear that the complaining party was prejudiced thereby. 9 Tex.Jur. 715. Such prejudice is not apparent where there is no statement of facts. 3 Tex.Jur. 543; Martin v. Martin, Tex.Civ.App., 229 S.W. 695, par. 1; Austin St. Ry. Co. v. Calhoun, Tex.Civ.App., 240 S.W. 327, par. 7. These assignments are therefore overruled.

By assignments Nos. 4 to 7 inclusive, plaintiff in error complains of the failure of the trial court to quash the writ of sequestration on account of lack of proper affidavit therefor. It is urged that the affidavit for sequestration was defective because it was sworn to before a notary public who was the attorney for the plaintiffs and who would receive the ten per cent attorney’s fees provided for in the note sued ■ on as a part of his compensation. A similar contention was overruled by the Eastland Court of Civil Appeals in the case of Walden v. Locke, Tex.Civ.App., 49 S.W.2d 832, par. 9. It is also urged that the affidavit was not in proper form and did not sufficiently describe the property to be sequestered. The affidavit contained in the transcript seems to contain all of the essentials required by the statute, and we think the property was sufficiently described. Furthermore, plaintiff in error concedes in his brief that a supplemental affidavit for sequestration was made by defendants in error, and that this supplemental affidavit has not been brought- up in the transcript. Plaintiff in error has made no effort to correct the transcript in this respect. Consequently, we cannot say that this supplemental affidavit did not meet all of the requirements of the statute.

By the 9th assignment, it is asserted that the trial court committed reversible error because of the failure to grant a new trial on account of the misconduct of the plaintiff, J. C. Buie and one of the jurors. The motion for new trial was supported by affidavits of three witnesses, in which it was stated that during the trial the said J. C. Buie was seen in close conversation with one of the jurors in the hall adjoining the courtroom, and that Buie put his arm around the juror and pulled him close to him and whispered something in 'his ear. Such conduct, if established on the hearing of the motion, would very clearly require the granting of a new trial. Gulf, C. & S. F. Ry. Co. v. Matthews, 28 Tex.Civ.App. 92, 66 S.W. 588, par. 11; Palm v. Cheronwsky, 28 Tex.Civ.App. 405, 67 S.W.165, par. 2; Marshall v. Watson, 16 Tex.Civ.App. 127, 40 S.W. 352; Gulf, C. & S. F. Ry. Co. v. Schroeder, Tex.Civ.App., 25 S.W. 306; First National Bank v. Hix, Tex.Civ.App., 164 S.W. 1035, par. 1. However, it appears that this matter was attempted to be established only by ex parte affidavits attached to the motion for new trial. Plaintiff in error did not undertake to sustain his contention by introducing proof upon the hearing of the motion for a new trial. No bill of exception was reserved except the general bill based on the order of the court overruling the motion for new trial. R.S. art. 2234, reads as follows: “Where the 'ground of the motion is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury or that they received other testimony, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved, or the testimony received, or the communication made, be material.”' It has been held in numerous cases that where a new trial is sought because of the happening of any of the matters mentioned in the above-statute, the ex parte affidavits attached to the motion for new trial are not admissible as proof of the truth of the matters contained therein, and that in order to establish a -right to a new trial on such grounds, proof of the truth of the allegations must be made in open court in -the regular way upon the hearing of the motion. 31 Tex. Jur. 147, sec. 137; Harris v. Smith, Tex.Com.App., 265 S.W. 546, par. 1; Gerneth v. Galbraith-Foxworth Lbr. Co., Tex.Com.App., 38 S.W.2d 775, par. 1; Puett v. Brady, Tex.Civ.App., 16 S.W.2d 832; Amberson v. Paramount Famous Lasky Corporation, Tex.Civ.App., 59 S.W.2d 875, par. 3. The matter here complained of comes within the language of the statute above referred to -and since .plaintiff in error did not establish -the truth of his allegation by the introduction of proof thereof in open court as required by such statute, the assignment must be overruled.

We have considered all other assignments and find no reversible error.

The judgment of the trial court is affirmed.


text:
    ELIOT et ux. v. MANEY & ALLEY et al.
    No. 2147.
    Court of Civil Appeals of Texas. Waco.
    Oct. 26, 1939.
    Rehearing Denied Dec. 14, 1939.

      J. S. Callicutt and Taylor & McWilliams, all of Corsicana, for plaintiffs in error.
    Gerald C. Mann, Atty. Gen., A. S. Rollins and Geo. W. Barcus, Asst. Attys. Gen., and Richard & A. P. Mays, of Corsicana, for defendants in error.
   ALEXANDER, Justice.

This suit was brought by E. A. Eliot and wife against Navarro county, The State Highway Department of Texas, J. W. Maney and J. R. Alley, composing the firm of Maney & Alley, Southern Surety Company of New York, Gib Gilchrist, State Highway Engineer, and E. C. Woodward, to recover damages alleged to have been occasioned to plaintiffs’ land by reason of the improper construction of state highway No. 75 through Navarro county. The plaintiffs alleged, in substance, that the defendants had unlawfully appropriated approximately one acre of their land for use in constructing the highway and had cut a levee which protected said land from overflow from Richland creek, and, as a consequence, the land had overflowed in 1930, injuring the crops of that year, and so flooding the land as to reduce the value of the crops for the succeeding year. It was also alleged that in 1932, by reason of the construction of the said highway and the cutting of said levee, the waters of Rich-land creek had been allowed to flood said land and materially injure the crops thereon for said year. A trial before a jury resulted in judgment for the defendants. The plaintiffs have sued out writ of error to this court.

, Assignments of error Nos. 1 to 4 complain of the failure of the court to submit to the jury certain special issues concerning the taking of the one acre of land and the value thereof. Plaintiffs’ own admissions show that the tract of land in question was condemned by Navarro county by regular proceedings instituted for that purpose prior to the time the land was appropriated for highway purposes, and that the plaintiffs did not appeal from the judgment of the county court so condemning said land. Such judgment constituted a complete bar to any subsequent action to recover for the land so condemned. 16 Tex.Jur. 844; City of Navasota v. Gudger, Tex.Civ.App., 290 S.W. 900; San Antonio & A. P. R. Co. v. Lougorio, Tex.Civ.App., 25 S.W. 1020; Davidson v. Texas & N. O. R. Co., 29 Tex.Civ.App. 54, 67 S.W. 1093. Consequently, the plaintiffs in error have no right to • here complain of the failure of the trial court to submit to the jury issues relative to the value of such land.

The court, at the conclusion of the evidence, gave an instructed verdict in favor of Navarro county. The 5th assignment of error complains of this ruling. The evidence conclusively establishes that the state of Texas, through 'its highway department, constructed the highway in question, and did all of the other things by which the plaintiffs claimed to have been damaged, and that Navarro county was in nowise responsible therefor. The trial court properly gave an instructed verdict favorable to Navarro county.

Assignments of error Nos. 6 to 15 inclusive complain of the failure of the. court to submit to the jury certain issues inquiring as to the value of the crops that would have been produced on the land in question during the year 1930 if same had not been flooded by flood waters from Richland creek. The jury, in answer to issues Nos. 1, 17 and 20, found that whatever damages were suffered by the plaintiffs in the year 1930 by reason of loss of crops and scattering of logs, trees and debris upon his land were not proximately caused by flood waters precipitated thereon through the opening made by the state highway department in the levee in question. The sufficiency of the evidence to sustain these findings is not questioned. In answer to special issue No. 31 the jury found that the damage, if any, sustained by plaintiffs by overflow during said year 1930 was caused by an unprecedented flood over which the state had no control, and for which it was in nowise responsible. Since the damáge, if any, suffered by plaintiffs was not caused by the alleged unlawful act of the defendants, it was not a material inquiry as' to the amount of damages sus-tamed during that year by plaintiffs as the result of the flooding of his land.

By assignments of error Nos. 16 to 18 inclusive, complaint is made of the failure of the court to submit certain issues as to the reduced productivity of plaintiffs’ land during the year 1931 caused by the flood waters of 1930. Since, as above stated, the jury found that the overflow of 1930 was not caused by any unlawful act on the part of the' defendants, the defendants would not be responsible for the reduced productivity of the land in 1931, caused by the 1930 flood.

By assignment of error No. 19 complaint is .made of the failure of the court to submit an issue as to whether plaintiffs’ crops for 1932 were injured by reason of flood waters coming onto his land from Richland creek due to the destruction of the levee on the east line of his land. The jury, in answer to issue No. 11, found that plaintiffs’ land and the crops thereon for the year 1932 were not damaged by flood waters precipitated thereon through the east levee on said land. The court having once properly submitted the issue 'was not required to again submit it in substantially the same language.

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

The judgment of the trial court is affirmed.

GEORGE, J., took no part in the consideration and disposition of this case.


author: PER CURIAM.

text:
    ERWIN v. SHERROD et al.
    No. 5125.
    Court of Civil Appeals of Texas. Amarillo.
    Aug. 2, 1939.
    E. A. Bills, of Littlefield, for appellant.
    Bean, Evans & Bean, of Lubbock, for appellees.
   PER CURIAM.

The appellees, B. Sherrod and Paul Sherrod, recovered judgment in the lower court against H. E. Chambers in the sum of $486.22, with interest and costs of suit, and for foreclosure of a chattel mortgage 'lien on 16 Maytag washing machines, situated in Lamb County, Texas, as against Chambers, Acrey Barton and the appellant herein,. C. G. Erwin, the latter having inter■vened in the suit seeking to establish a prior and superior lien upon the property mentioned. The appellant, having been denied the relief he sought in the trial court, gave notice of appeal, in due time made and filed a supersedeas bond in the amount and condition required by law, which bond was approved by the clerk of the trial court, and thereafter the record in the case was filed in this court.

' On July 19, 1939, after the appeal had been duly perfected and filed in this court, the appellees caused the clerk of the court below to issue an alias order of sale under the trial court judgment, commanding the sheriff or any constable of Lamb County, Texas, to seize and sell the 16 Maytag washing machines herein involved. The appellant thereupon filed in this court a petition for an injunction to restrain the execution of the order of sale, alleging that said alias order of sale had been placed in the hands of Sam Hutson, sheriff of Lamb County, and that such sheriff would sell such property unless restrained from so doing by this court. The appellees and the sheriff have entered their appearances herein for all purposes and the application of the appellant for injunctive relief' has been duly submitted for our consideration,'

Under the authorities of this State we think the filing of the supersedeas bond by the appellant herein supersedes and suspends the enforcement of the judgment below in so far as the sale of the property is concerned and the appellant is, therefore, entitled to the relief sought. Articles 2270 and 2275, Vernon’s Annotated Civil Statutes of Texas; R. B. Spencer & Co. v. Texas Pacific Coal & Oil Co., Tex.Civ.App., 84 S.W.2d 853; Adoue, et al. v. Wettermark, 28 Tex.Civ.App. 17, 68 S.W. 553, writ denied; Houtchens v. Mercer, District Judge, 119 Tex. 431, 29 S.W.2d 1031, 69 A.L.R. 1103.

The writ will issue against the appellees and the sheriff of Lamb County, as prayed for.


text:
    JOYNER et al. v. R. H. DEARING & SONS et al.
    No. 3877.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 2, 1939.
    Rehearing Denied Dec. 7, 1939.
    James & Tomlin, of Tyler (McEntire & Shank, of Dallas, on the brief), for plaintiffs in error.
    Caves & Waldrop, of Henderson, for defendants in error.
   PRICE, Chief Justice.

This case is here on writ of error to review a judgment of the District Court of Rusk County. Plaintiffs in error were plaintiffs below and will be here referred to as such; defendants in error will be designated as defendants.

Plaintiffs sought to prevent by injunction the erection of a dwelling house for an employee of defendants on a certain 7½-acre tract of land in Rusk County, the surface estate to which was vested in plaintiffs. The estate to the minerals thereunder vested in defendants. The mineral estate was vested in defendants by virtue of an oil and gas lease executed and delivered by plaintiffs to defendants’ predecessors in title. The 7⅜-acre tract of land in question here is a part of a 15-acre tract leased as aforesaid to defendants’- predecessors in title. Defendants sought by cross action to prevent interference by plaintiffs with the erection of the house on the 7½ acres of land.

On behalf of the defendants it was asserted that the lease created an easement on the surface estate of plaintiffs which entitled them to erect the house thereon for an employee and the erection of the house was reasonably essential to the.prosecution of their activity in connection with their mineral estate.

This is the second trial of this case. Judgment upon the first trial was adverse to plaintiffs, as it was in this, the second trial. The judgment in the first trial was reviewed by this Court and same was reversed and remanded for a new trial. The opinion disposing of the case was published in the Southwestern Reporter. See Joyner et al. v. R. H. Dearing & Sons et al., Tex.Civ.App., 112 S.W.2d 1109. Reference is here made t,o that opinion for a statement of. the terms of the clause of the oil and gas lease involved in both appeals.

The two trials were on identical pleadings and the evidence introduced was about the same in each. No jury was demanded at the first trial,, but at the second trial the issues were submitted to a jury. The findings of the court in the first trial and the verdict of the jury on the second trial were, on the material issues involved, substantially the same. The judgments were similar, in that both accorded the right to defendants to erect a residence for an employee on the land in connection with the prosecution of the business described in the oil and gas lease.

In all substantial particulars pertinent on this appeal the judgments are identical. Each undertakes to delimit the easement in question on the ground, that is, the specific rights thereunder. The judgment on the first trial provided for the erection of the house on the ground; that same was not to be more than twenty feet wide and twenty-four feet long, not over one story in height, the materials for the construction of the house were described, and provided that a fence might be erected around the premises, but did not specify the area that might be enclosed by the fence. The second judgment now under review established the location of the house at almost identically the same place as the first. It was not to be moré than twenty-four feet wide and thirty feet long, the house to be one story, and contained certain other unimportant specifications as to the house and its location, but no mention was made of the enclosure of same by fence. Each judgment limited the use of the house to the use as living quarters to an employee of said defendants as may be by said defendants placed in charge of and charged with the duty and responsibility of guarding, caring for, preserving, maintaining and operating said land and premises and the tools, machinery, materials, supplies, appliances and equipment placed and located thereon from time to time by the said defendants for the purpose of drilling, exploring, mining and operating for oil and gas and laying pipe lines and building tanks, power stations and structures on said land and premises to produce the oil and gas therefrom and to save, care for and dispose of such oil and gas so produced; that such rights to continue as long as defendants used the land for such purposes. Each judgment enjoins the plaintiffs from interference with defendants in the use and enjoyment of the easement in the manner specified in the judgment.

In the first judgment the location and limits of the alleged right claimed by defendants under the easement were based on the findings of the court; in the second judgment on the verdict of the jury.

At all relevant times herein there were two operating oil wells on the 7½ acres involved herein. It was necessary for an employee of defendants to go in and upon and be about the premises in order to look after the production of oil and to care for and preserve machinery and appliances placed thereon by defendants incidental to and connected with their activities in the production of oil.

In the former appeal the judgment was attacked on two grounds: (1) that by the terms of the lease defendants in error acquired no right to erect either the house or the fence; (2) because said judgment provides that “such fence to enclose no more of said tract of land than is fairly and reasonably necessary for such purpose,” [112 S.W.2d 1111] and is consequently vague, uncertain and indefinite, and therefore said judgment is void and unenforcible. On this second appeal the judgment is attacked on the first ground only, namely: that by the terms of the lease defendants in error acquired no right to erect the house. Joyner et al. v. R. H. Dearing & Sons, supra.

The omission of the attack on the ground of the fence is immaterial because the second judgment does not refer to a fence in any particular.

In the opinion of this Court in disposing of the former appeal written by Chief Justice Nealon, now deceased, it was said: “If, therefore, the erection of the house and fence are reasonably necessary to the full enjoyment of the right to produce oil from said premises ‘and to erect structures thereon to produce, save and take care of the oil and gas produced/ the court was not in error in issuing the writ of injunction. This was a question of fact which the court, upon sufficient evidence, determined in favor of plaintiffs in the court below. We think we would not be justified in disturbing this finding. If the oil is to be produced and sold profitably, the instruments and instrumentalities of production, storage, and transportation, must be safeguarded against loss by theft and fire and other causes.” Joyner et al. v. Dearing & Sons et al., supra.

The evidence, as we have stated before, on the two trials was practically identical. In respect to its sufficiency and relevancy the questions are the same. If a question of fact was raised in the first appeal it is raised on this appeal. In the second trial the court seems to have been governed by a strict conformity to the principles announced by this Court on the former appeal.

Plaintiffs may be correct, and doubtless are, that this Court is not bound by the holdings on the first appeal. Burrage et ux. v. Hunt Production Co. et al., Tex.Civ.App., 114 S.W.2d 1228 and cases cited. Suffice it to say that we have carefully reexamined the questions involved in both appeals. We believe our holdings in the former appeal were correct. The reasons for the holdings are clearly and succinctly stated in the opinion written by the beloved late Chief Justice. If we wrote further it would be but a reiteration of the views there expressed.

The judgment is affirmed.

On Rehearing.

In a forceful motion for rehearing plaintiffs in error insist neither on this appeal nor on the former appeal has the •Court understood and considered their position. We believe in this matter they are mistaken. However, we shall write briefly on this motion.

One question alone is presented, that is, did the oil lease involved grant the easement in the surface estate as claimed in the petition of defendants in ■error. In determining this question we have at all times borne in mind that an easement lies in grant; that the end sought in the construction of a lease is the intention of the parties.

In determining the scope of a grant, the language used, the situation of the parties, the purposes of the grant and the nature of the subject matter, may all be considered. The situation and condition at the time the easement claimed is sought to be actively enjoyed may be considered, if such situation may reasonably be considered as having been provided for in the grant, in determining the extent thereof.

This is not an enlargement or restriction of the grant by construction, but a determination as to whether the situation provided for in the grant does or does not exist. To illustrate, on an unexplored area the right to erect the storage tanks under the lease in question here would perhaps not exist.

A good illustration, taking into consideration the purposes of the grant in arriving at the scope and compass thereof, is afforded by the case of Right of Way Oil Co. v. Gladys City O. G. & M. Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A.,N.S., 268. There the grant of a railroad right-of-way coupled with the right to take and use all the timber, earth, stones and minerals thereunder was held not to cover the oil thereunder. Now if the right-of-way had been a mere customary easement, we hazard the opinion that the right to maintain a section house would probably be included therein.

On the area in question here there are two producing wells — wells drilled to a depth of approximately 3,600 feet, which, as we understand it, are flowing wells. These two wells and the appliances necessary to their efficient operation must represent the investment of capital substantial in amount. The appliances, no doubt, can^ be carried away; damage to the wells might be great from the acts of vandals or mischief makers. Someone constantly on the premises to guard, preserve and protect this valuable property does not seem to us to be unreasonable.

The judgment assailed does not provide for the maintenance of a country estate on the premises — it simply permits the erection of quarters for a workman to guard, protect and preserve the property and to regulate the production of oil. It seems to us that it is a question of fact whether, in connection with the production of oil, the saving and marketing thereof, this is not reasonably necessary and incidental. The oil is to be preserved' and saved in the ground as well as after it has been raised to the surface.

Now the right to erect structures on the surface for producing, saving, etc., of oil and gas must include the right to maintain, guard, protect and preserve such structures. If this he true, then the surface is subject to this granted right. Steps taken in pursuance, of the right must have due regard for the rights of the surface owner and likewise the rights of the owner of the mineral estate should be taken into consideration. A night watchman might be employed to protect the premises at night. Even were this true, some sort of a shelter would no doubt be required. In flowing the wells the entire time of a workman is not required. However, it may be that the constant presence of -an employee or the existence of a situation indicating such might afford more efficient protection than a night watchman. A habitation is notice to thieves and vandals that at all times the property is under protection and if depredations are attempted discovery may follow. We believe a question of fact was presented as to whether the erection of the house in question was within the grant. If it was reasonably necessary to the prosecution of the activities contemplated under the lease, then the right existed; otherwise it did not. Moore v. Decker, Tex.Com.App., 220 S.W. 773.

The motion is overruled.


author: MONTEITH, Chief Justice.

text:
    ED FRIEDRICH SALES CORPORATION v. DEITRICK.
    No. 10899.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 7, 1939.

      Dodson, Ezell & Duke, of San Antonio, for appellant.
    Gammage, Gammage & Bauer, of Houston, for appellee.
   MONTEITH, Chief Justice.

This is an appeal from an order overruling a plea of privilege in an action brought in the district court of Wharton County by appellee, C. Deitrick, doing business as The Corners Company, against appellant, Ed Friedrich Sales Corporation, for rescission of a contract to purchase certain refrigerating equipment, and for damages.

Appellee alleged that he was induced to purchase said equipment through false and fraudulent representations made to him by an agent of appellant; that he signed a contract providing for the purchase thereof without reading it, upon the representation of said agent that the written contract contained the agreement previously entered into between them, that it was meaningless and was a mere matter of form, and that he was in a hurry to leave. He alleged that said written contract did not contain the agreement previously entered into between them; that the equipment did not properly function, and that he was damaged thereby.

Appellant duly filed its plea of privilege to have said suit tried in Bexar County, the county of its residence.

In due time appellee filed his controverting affidavit, in which he restated the allegations of his petition. He pled that the alleged false and fraudulent representations were made by appellant’s agent in Wharton County; that he was induced to make a contract and agreement to be performed in Wharton County; that defendant was incorporated under the laws of the State of Texas, and that the venue of his suit lay in said county.

Upon a hearing on the allegations of the plea of privilege and the controverting affidavit, appellant’s plea of privilege was overruled. No findings of fact were requested, and none were filed.

Appellee testified that appellant’s agent represented to him that the equipment offered by appellant was of a superior grade and would give better service than the equipment of a competitor; that it would keep meat for a reasonable length of time; that it was adapted to his business, and that he would have no trouble with it; that after he had discussed the purchase of said equipment with appellant’s agent, both he and said agent were in a hurry and he told said agent to write up the contract and that he would sign it, provided what the agent said about the box doing the work and causing no trouble was in the contract; that said agent told him that the contract was just like the conversation as far as the box operating was concerned; that he relied upon said statement because he did not know anything about that type, of equipment, and that, for that reason, he signed said contract without reading it; that said equipment did not operate properly and that he suffered damages thereby.

The written contract in question stated that the buyer had read it, and that it stated the entire contract and covered all promises and representations made to buyer by seller’s agent and that he did not expect anything not contained therein. It stated that when accepted by seller at San Antonio, Texas, it would constitute the entire contract and that no change of its terms would bind seller, unless mutually agreed upon in writing, signed by both parties.

To fix venue of this action in Wharton County, appellee relies upon Subdivisions Nos. 7 and 23 of Article 1995, Revised Statutes of 1925.

Subdivision No. 7 of said Article, as amended in 1927, Vernon’s Ann.Civ.St. art, 1995, subd. 7, reads: “7. Fraud and Defalcation. In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile.”

The material parts of Subdivision No. 23 of said Article 1995 read: “23. Corporations and associations.- — Suits against a private corporation, association or joint stock company may be brought in any county in which the cause of action, or a part thereof, arose, or in which such corporation, association or company has an agency or representative, or in which its principal office is situated. * * *”

Appellant contends that at most its agent merely expressed an opinion as to the quality of the equipment sold to appellee and that the testimony offered to show fraud committed in Wharton County falls short of the proof required by law.

Under the well established rule, that, on appeal from an order overruling a plea of privilege, every reasonable intendment must be resolved in favor of appel-lee’s contentions (Sharp v. Mead et al., Tex.Civ.App., 127 S.W.2d 510; Fuston v. Fort Worth & D. S. P. Ry. Co., Tex.Civ.App., 68 S.W.2d 518; Douglas v. Williams, Tex.Civ.App., 83 S.W.2d 686; Pearson v. Guardian Trust Co., Tex.Civ.App., 84 S.W.2d 256), the order of the trial court, read in the light of the testimony, must be construed as an affirmative finding that the statements of appellant’s agent were representations of fact particularly within said agent’s knowledge; that appellee relied upon them in making said purchase, and that he suffered damage thereby; that such representations constituted fraud, and that such fraud was committed in Wharton County. Lloyds America et al. v. Friend, Tex.Civ.App., 91 S.W.2d 766; Katzmeir v. King, Tex.Civ.App., 131 S.W.2d 162, 163; 20 Tex.Jur., pp. 126 and 127; Gardner v. Dorsey, Tex.Civ.App., 272 S.W. 266; Sharp v. Mead, Tex.Civ.App., 127 S.W.2d 510.

Further, it is held, under Subdivision 23 of said Article 1995, which expressly authorizes the bringing of a suit against a private corporation in any county in which the cause of action, or a part thereof, arose, that a cause of action for the breach of an obligation is composed of two elements: The contract, which is the primary right of the plaintiff, and the breach thereof, which is the act or omission on the part of the defendant without which there could be no cause of action or right of recovery, and that in order to maintain a suit in any county other than that in' which the corporation’s principal place of business is located, it is only necessary that some part of either the primary right or the breach thereof must have occurred in the county where the suit was filed and that the requirement that '“a part thereof” shall have arisen in the county where the suit was brought is met by proof that the contract was made in that county. Scott v. Lewis, Tex.Civ.App., 64 S.W.2d 365; United States Pipe & Foundry Co. v. City of Waco, Tex.Civ.App., 100 S.W.2d 1099; Mercantile Bank & Trust v. Schuhart, 115 Tex. 114, 277 S.W. 621.

In the instant case it is uncontro-verted that appellant is a corporation; that all representations which led up to the purchase of said equipment were made in Wharton County; that the delivery thereof took place in Wharton County; and that the failure of said equipment to properly function, if any, took place in Wharton County. It follows, therefore, that 'appel-lee had a right to maintain the suit in that county.

The judgment of the trial court in overruling appellant’s plea of privilege is affirmed.

Affirmed.