author: GALLAGHER, Chief Justice.

text:
    RILEY v. WALTON et al.
    No. 2222.
    Court of Civil Appeals of Texas. Waco.
    May 16, 1940.
    Robert W. Brown and J. D. Brown, Jr., both of Gatesville, for appellant.
    Stinnett & Stinnett and C. E. Alvis, Jr., all of Gatesville, for appellees.
   GALLAGHER, Chief Justice.

This suit was instituted by Mrs. Martha Walton, joined, by her husband, George Walton, against J. S. Riley, individually and as executor of the estate of Ruth J. Riley, deceased, on a claim against said executor and said estate which had been duly presented to him as such executor and upon which he had failed or refused to act. Said claim was originally for professional services rendered by an attorney for the benefit of the separate property of Mrs. Riley, and was evidenced by a note and secured by a mortgage lien on certain land belonging to her. Said instruments were dated September 19, 1910, and were signed by both her and her husband. They were transferred to Mrs. Walton on December 28, 1920, by the then, holder. The amount due thereon at that time was $209. Said note bore interest from date and provided for payment of attorney’s fees in event of suit. The maturity dates thereof were renewed and extended from time to time. The last such extension was made to Mrs. Walton on January 9, 1933, and was signed by Mrs. Riley and her husband.

Mrs. Riley died testate on September 21, 1935. Her will was admitted to probate in the county court of Coryell county on November 27, 1935. Her surviving husband, J. S. Riley, was named therein as executor. , He was exempted from giving bond as such but was not authorized to administer the estate independent of the probate court. He duly qualified as execu-tof and letters testamentary were issued to him on January 18, 1937.

Mrs. Walton presented her said claim, duly verified and' accompanied by the last extension contract; to said executor, as required by Articles 3514 and 3515a, sec. 1,- subdivision (a) of Vernon’s Texas Civil-Statutes Annotated. She stated in said claim that she desired “to have the same allowed and approved as a matured secured claim to be paid in the due course . of administration.” Said executor failed and refused to either allow, reject or otherwise act on said claim, and the claimant, Mrs. Walton, joined by her husband, then instituted this suit in the county court of said county to establish the same. See Article 3517, Vernon’s Texas Civil Statutes Annotated.

Said Riley, for himself and as executor of the estate of his deceased wife, filed an answer in which he included a plea assailing the jurisdiction of the county court to entertain a suit to establish said claim on the ground that said court was without jurisdiction to determine whether such claim was secured by a valid lien on real estate, and asserting that plaintiffs had waived their lien by bringing their suit in the county court, which was without jurisdiction to foreclose liens on real estate.

The trial was before the court without a jury. The court, in addition to the facts above recited, further found that said suit was one for debt in an amount within the jurisdiction of the county court; that no foreclosure of lien on any security was sought, and that no issue of waiver of lien was presented. The court further found that plaintiff Mrs. Walton was entitled to a judgment establishing such claim and thereupon ordered, adjudged and decreed that she do have and recover of and from defendant J. S. Riley, individually,, and of and from the estate of Mrs. Ruth J. Riley, of which he was executor, jointly and severally, the sum of $525.29 (being $209 principal, $272.14 interest and $48.11 attorney’s fees) with interest thereon from date. The court awarded execution for the enforcement of said judgment against J. S. Riley, individually, but not against said estate, but further ordered that the clerk furnish on request a certified copy of said judgment for filing in the county court sitting in probate, for entry upon the claim docket and for classification and enforcement in due course of the administration of said estate in the manner provided by law. The defendant J. S. Riley, individually and as executor of the estate of Ruth J. Riley, deceased, excepted to the judgment and gave notice of appeal. No appeal bond was filed by him in any capacity and the case is before us for review only as to errors, if any, affecting him in his representative capacity as executor of said estate.

Appellant contends that the county court of Coryell county had no jurisdiction of a civil suit to establish the claim sued on in this case and hereinbefore fully described, becausa; the debt sued upon was secured by a lien on real estate and appellees did not seek to have such lien established by the court, and further contends that the county court was without jurisdiction to establish such lien. These contentions are based on appellant’s construction of the provisions of Articles 3514 and 3515a, sec. 1, subdivision (a), to which reference has been made. Article 3514 provides, in substance, that no executor shall allow any claim for money against his testator nor shall the county judge approve the same unless such claim is accompanied by an affidavit that the claim is just and that all legal offsets, payments and credits known to affiant have been allowed. This article has remained in its present form since 1876. Under said article it was held that a suit to establish a rejected claim for money was within the jurisdiction of the county court when the amount involved was within, such jurisdiction, regardless of the fact that a vendor’s lien was specifically retained in the note which evidenced the demand. Jordan v. Massey, Tex.Civ.App., 134 S.W. 804, par. 1; Carter v. Gray, 125 Tex. 219, 81 S.W.2d 647. The same holding was made even when the lien was evidenced by a separate instrument. Western Mtg. & Invest. Co. v. Jackman, Adm’r, 77 Tex. 622, 14 S.W. 305; Ralston v. Stainbrook, Tex.Civ.App., 187 S.W. 413.

Article 3515a, hereinbefore referred to, was enacted and became a law in 1931, Two methods of presenting and enforcing claims for money when such claims were secured by liens were there provided, only one of which is here involved. Subdivision (a), section 1 of said article, required the claimant to state in his claim whether he desired to have the same allowed and approved as a matured secured claim to be paid in due course of administration, and provided that in such event same should be so paid if allowed and approved. The Supreme Court held that in such cases the procedure prior to 1931 was applicable. Wyatt v. Morse, 129 Tex. 199, 102 S.W. 2d 396, 398.

There is, however, another phase of the case which requires consideration. The moneyed demand sought to be established in this case arose on September 19, 1910, and was evidenced by -a note and a lien securing the same bearing that date. Both of said instruments were signed by Mrs. Riley and her said husband. Subsequent extensions of the maturity dates thereof did not affect the material elements of the contracts then and there entered' into nor control the vested rights there acquired'. Such rights passed from the payee in the original instruments by successive assignments to Mrs. Walton, the plaintiff .in this suit, arid were not changed nor abridged by the provisions of Article 3515a subsequently enacted. Laubhan v. Peoria Life Ins. Co., 129 Tex. 225, 102 S.W.2d 399. The facts of this case do not bring it within the jurisdiction of the district court under the exception recognized in paragraph 4 of the opinion in the- case last cited. The trial of this cause in the county court and the judgment therein rendered are in harmony with the procedure for the presentment and establishment of claims against the estates of decedents as prescribed by the provisions of Article 3514 of our Revised 'Statutes, in force when the original cause of action-herein accrued, as such article was construed and applied in Jordan v. Massey, supra, and cases cited in that connection, •to which reference is here made.

- The judgment of the trial court in favor of appellees against appellant as executor of the estate of Mrs. Ruth J. Riley, deceased,, is affirmed.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    JONES v. KELLOGG et al.
    No. 10867.
    Court of Civil Appeals of Texas. San Antonio.
    May 8, 1940.
    'Rehearing Denied May 29, 1940.
    Joe Burkett, of San Antonio, and Atlas Jones, of Uvalde, for appellant.
    Suttle & Kessler, of Uvalde, for appel-lees.
   MURRAY, Justice.

This is an appeal from an order of the District Court of Uvalde County dismissing an attempted appeal to that court from an order of the County Court of Uvalde County, wherein A. L. (Casey) Jones was denied leave to change his beer business from 103 West Front Street, in the City of Uvalde, to a place one mile off Highway No. 90, east of the City of Uvalde.

' The only question here presented is whether the district court has jurisdiction to hear an -appeal of this nature.

The district court hás no appellate jurisdiction over orders of the county court, unless such jurisdiction is expressly given it by law. Section 8, Art. 5, Constitution of Texas, Vernon’s Ann.St.; Arts. 1906, 1907 and 1908, R.C.S.1925; 11 Tex.jur. 724. '

Article 667 — 6, Vernon's Penal Code, prescribes the method of applying for a license to sell beer and provides for an appeal from a refusal of the County Judge to grant the license. The same article, Sec. 7, provides for the expiration and renewal of licenses, and also the-method of applying for a change of address, by a license holder from one location to-•another, this section providing in part as. follows: “Should any holder of a license desire to change the place of business designated in such license, he may do so by applying to the County Judge and receiving his consent or approval as in the case of original application for license as herein provided.” '

It is the contention of appellant-that this reference, contained in Section 7, refers back to Section 6, and adopts the method of appeal provided for therein as the method of appeal where an application for a change of address is denied. We overrule this contention. If it was the intention of the legislature to provide for an appeal from the county court to the district court, where an application for a change of address was refused, there should have been a plain provision to this effect. Davis v. Hubbard, Tex.Civ.App., 233 S.W. 875.

The district court did not have jurisdiction to hear this appeal and fo.r a like reason we do not have jurisdiction to hear this attempted appeal from the district court.

The appeal will be dismissed.


author: JOHNSON, Chief Justice.

text:
    TRADERS & GENERAL INS. CO. v. HARPER.
    No. 5540.
    Court of Civil Appeals of Texas. Texarkana.
    May 21, 1940.
    Rehearing Denied May 23, 1940.
    Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for plaintiff in error.
    Phillips, Williamson & Smith and A. C. Cooke, all of Tyler, for defendant in error.
   JOHNSON, Chief Justice.

This is a suit arising under the Workmen’s Compensation Act wherein J. C. Harper was the employee, Southwest Contracting Company the employer, and Traders & General Insurance Company the insurer. Both the employee and insurer perfected appeals from the award of the Industrial Accident Board, and thereafter these suits were consolidated and tried on the employee’s first amended original petition wherein he sought compensation for alleged total and permanent incapacity sustained May 4, 1937, as the result of injuries to his body, struck and mashed by stone and dirt by the sudden caving in of a ditch in which he was working for Southwest Contracting Company.

Trial to a jury upon special issues resulted in a verdict and judgment awarding Harper compensation for total and permanent incapacity, at the rate of $13.85 per week, payable in a lump sum settlement. From an order overruling its motion for a new trial, Traders'& General Insurance Company gave notice of appeal and has perfected same by way of writ of error.

Appellant’s propositions 1 to 6, inclusive, contend that the trial court was without authority to award appellee compensation “at the rate of $13.85 per week,” because no issues were submitted, and no findings of the jury had, establishing an average weekly wage rate under Subsection 1, 2 or 3, of Sec. 1, Art. 8309, Vernon’s Ann.Civ.St. Appellee alleged that he was earning $4 per day, $28 per week, at the time of his injury; and by alternative pleas he alleged facts which if supported by proof would establish his average weekly wages under said sections of the statute respectively; and the petition contained further allegations to the effect that appellant had admitted his weekly compensation rate to be $13.85 per week by voluntarily paying him that sum per week for a period of 18 weeks. Appellant alleged that such payments were made by it to appellee upon misrepresentations of fact made by appellee to appellant concerning his wage rate and therefore appellant was not in any manner bound by reason of having made such payments. Appellee testified that at the time of his injury and for a period of eight days preceding same he was doing pipe line work for Southwest Contracting Company near Oil Center in Cass County, Texas; that he was earning $4 per day; that this work had been going on in that neighborhood for about eighteen months or two years; that he knew the name of two men, Coy Draper and Lillian Young, who had been working regularly on the job; that in filing his claim for compensation he correctly stated the amount, $4 per day, he was earning; that no person representing appellant had ever made inquiry of him concerning his wage rate, and that he had never in any way misrepresented same; that appellant had paid him compensation for 18 weeks at the rate of $13.85 per week. Appellant introduced no evidence tending to support its plea that in paying appellee compensation for 18 weeks at the rate of $13.85 per week it had done so upon misrepresentation of fact made by appellee as to his wage rate. Nor is it shown that appellant made such payments upon misrepresentation by any one, or by mistake of fact on its part as to appellee’s wage rate, nor is it shown that appellee’s compensation rate should be less than $13.85 per week. In the absence of any evidence that the payments were made upon mistake or misrepresentation as to appellee’s wage rate, or that he was entitled to a smaller compensation wage rate, we think that appellant’s admission in paying appellee compensation for 18 weeks at the rate of $13.85 per week is sufficient to support the judgment awarding that rate. Traders & General Ins. Co. v. Patterson, Tex.Civ. App., 123 S.W.2d 766; Traders & General Ins. Co. v. Slusser, Tex.Civ.App., 110 S.W.2d 598; Texas Employers Ins. Ass’n v. Hamor, Tex.Civ.App., 97 S.W.2d 1041; Traders & General Ins. Co. v. Rhoda-barger, Tex.Civ.App., 93 S.W.2d 1180; Fidelity & Casualty Company of New York v. Branton, Tex.Civ.App., 70 S.W.2d 780; Texas Employers’ Ins. Ass’n v. Beckworth, Tex.Civ.App., 42 S.W.2d 827; Southern Surety Co. v. Eppler, Tex.Civ. App., 26 S.W.2d 697; Georgia Casualty Co. v. Ginn, Tex.Civ.App., 272 S.W. 601; Lawler’s Workmen’s Compensation Law, p. 319, Sec. 163, par. 2.

Under propositions 7 to 14, inclusive, appellant complains of the instructions accompanying special issues Nos. 6, 7, 8, 9, 10, 14, 15, and 17, wherein the court immediately following each of said questions, instructed the jury as to the form or language to be used in wording their answers. Said instructions following special issues Nos. 6 and 9, contained in appellant’s propositions No. 7 and No. 10, are illustrative of the other issues and of the accompanying instructions complained of following same. Appellant’s 7th proposition reads as follows: “In a compensation case tried before a court and jury the burden of proof is on the claimant to establish total and permanent incapacity from a preponderance of the evidence. The court erred, therefore, in submitting Special Issue No. Six reading as follows: ‘Do you find from a preponderance of the evidence that such total incapacity, if any, is permanent? Answer: Yes or No.’, to which the jury answered ‘yes’ over the objections of the defendant to the effect that such issue as framed was confusing and misleading when taken in connection with the court’s definition of ‘preponderance of the evidence’ and was confusing to the minds of the jury in that the court’s instruction had the effect of placing the burden of proof upon the defendant to establish the negative of said issues by a preponderance of the evidence, which is a greater burden than the law imposes upon it.”

Appellant’s 10th proposition reads as follows: “In a compensation case tried before a court and jury the burden of proof is on the claimant to establish that the incapacity is not partial from a preponderance of the evidence. The court erred, therefore, in submitting Special Issue No. Nine reading as follows: 'Do you find from a preponderance of the evidence that the incapacity of J. C. Harper, if any, is not partial incapacity?’ Answer: ‘It is not partial’ or ‘It is partial.’, to which the jury answered ‘It is not partial’ over the objections of the defendant to the effect that such issue as framed was confusing and misleading when taken in connection with the court’s definition of ‘preponderance of the evidence’ and was confusing to the minds of the jury in that the court’s instruction had the effect of placing the burden of proof upon the defendant to establish the negative of said issue by a preponderance of the evidence, which is a greater burden than the law imposes upon it.”

Appellant’s objections and exceptions filed in the trial court and referred to in each proposition read as follows: “Said defendant objects and excepts to the court’s main charge, and particularly Question #1, for the reason that there is no evidence of any kind or character, and particularly no evidence of sufficient probative value upon which to base the submission of the said issue, and there are insufficient pleadings upon which to base the submission of such issue; and further, for the reason that said question, when taken in connection with the said definition of ‘preponderance of the evidence,’ and basing the submission of this question on a preponderance of the evidence is misleading and confusing to the minds of the jury, and has the effect of placing the burden of proof upon this defendant to establish the negative of the said issue by a preponderance of the evidence.”

Appellant objected to the special issues Nos. 6, 7, 8, 9, 10, 14, 15, and 17, “for each and all of the reasons heretofore assigned to the submission of question No. 1.” The trial court in the beginning of his charge defined preponderance of the evidence as follows: “By the term ‘preponderance of the evidence’ is meant the greater weight of the credible testimony.” No objection was raised in the trial court, nor is any here made as to the correctness of said definition. Appellant does not now contend that the trial court erred in placing the burden of proof in each of the questions where it belonged.

It will be noted that in appel-ant’s objections filed in the trial court no mfention is made nor any objections expressly voiced against the trial court’s instructions following the questions, instructing the jury as to the wording of their answers in response to the questions. The objections in the trial court were directed to the question, contending “that said question, when taken in connection with the said definition of ‘preponderance of the evidence,’ and basing the submission of this question on a preponderance of the evidence is misleading and confusing to the minds of the jury, and has the effect of placing the burden of proof upon this defendant to establish the negative of the issue by a preponderance of the evidence.” No complaint of the question is urged by appellant in this court, but in its arguments under each of the propositions appellant now expresses an' objection directed to the instructions following the question, the contention here raised is that said instructions (directing the jury to answer question No. 6 “yes” or “no”; and to answer question No. 9 “It is not partial” or “It is partial”) had the effect of causing the jury to believe that the burden of proof was upon defendant to establish the negative of the issues from a preponderance of the evidence. If by strained construction the language used in stating the objections to the trial court may be said to impliedly raise the particular objection now urged, it can not be said that it expressly does so. On the other hand, by expressly calling his attention to the question and to the definition of “preponderance of the evidence” preceding the question, and in not mentioning the instructions following the question (which instructions is the particular portion of the charge now complained of), the objections made to the trial court would tend to direct his attention away from rather than point out to him the particular complaint now raised. Objections to the charge ought to be specific, constructive and helpful to the trial court, and in plain and unambiguous language point out to him the particular portion of the charge complained of and the objections thereto, in order that the charge may, if necessary, be modified. It is a settled rule that in order for an objection to a charge or an instruction given in connection with a special issue, to be of avail, that portion of the charge and the error complained of must be pointed out to the trial court. The objections presented to the trial court, with respect to the point now raised, do not meet the rule, and for that reason appellant’s propositions 7 to 14, inclusive, are overruled. San Antonio Public Service Co. v. Murray, 127 Tex. 77, 90 S.W.2d 830; Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920; Perkins v. Nevill, Tex.Com. App., 58 S.W.2d 50; Gulf, T. & W. Ry. Co. v. Dickey, 108 Tex. 126, 187 S.W. 184; Walker v. Haley, 110 Tex. 50, 214 S.W. 295; Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474; Chisos Mining Co. v. Llanez, Tex.Civ.App., 298 S.W. 642; Gulf, C. &. S. F. Ry. v. Hines, Tex.Civ.App., 4 S.W.2d 641; Norwich Union Indemnity Co. v. Wilson, Tex.Civ.App., 17 SW.2d 68; Chase Bag Co. v. Longoria, Tex.Civ. App., 45 S.W.2d 242; Fort Worth & D. C. Ry. Co. v. Rowe, Tex: Civ.App., 69 S.W. 2d 169; McWilliams v. Hailey, Tex.Civ. App., 95 S.W.2d 985.

.It will here be noted that the trial court’s instructions, directing the jury to answer “Yes” or “No,” to a question naturally required to be so answered, such as above question No. 6, is held not reversible error. Stevenson v. Wilson, Tex.Civ.App., 130 S.W.2d 317; Federal Underwriters Exchange v. Bullard, Tex.Civ.App., 128 S.W. 2d 126; Willis v. Smith, Tex.Civ.App., 120 S.W.2d 899.

And it is further noted that the trial court’s instructions following special issue No. 9, above quoted, follow the suggested instructions in Southern Ice & Utilities Co. v. Richardson, 128 Tex. 82, 95 S.W.2d 956, 958, reading: “It is suggested, as a further aid to the jury in avoiding confusion in answering an issue requiring consideration of a negative inquiry, that it be instructed to answer the question either, that, ‘It was due to an unavoidable accident,’ or, ‘It was not due to an unavoidable accident,’ as it may find the facts to be.” See Federal Underwriters Exchange v. Carroll, Tex.Civ.App., 130 S.W.2d 1101. The above suggestion was in force at the time the present case was tried, February 21, 1938. But we call attention, for future practice, to the more r,ecent case of Gulf, C. & S. F. Ry. Co. v. Giun, 131 Tex. 548, 116 S.W.2d 693, 695, 116 A.L.R. 795 (decided since the present case was tried) in which it is suggested: “ * * * that it is conducive to certainty that the answer will be expressed in accordance with the actual finding made, to instruct the jury that in the event its finding is in the affirmative the form of the answer should be, ‘It was not an unavoidable accident’; and that ‘otherwise, the answer should be “No.” ’ Such an instruction not only tends to certainty that the finding will be correctly expressed, but tends as well to make certain that the jury understands that an affirmative finding, if made, must be made from a preponderance of the evidence. The suggested instruction is an improvement over that made in Southern Ice & Utilities Co. v. Richardson, 128 Tex. 82, 95 S.W.2d 956, in that it is not subject to the construction that it in effect withdraws the instruction as to burden of proof which is correctly placed on plaintiff by the form of the question.”

The judgment of the trial court is affirmed.


author: JACKSON, Chief Justice.

text:
    UNIVERSAL CREDIT CO. et al. v. O’NEAL et al.
    No. 5159.
    Court of Civil Appeals of Texas. Amarillo.
    May 15, 1940.

      S. L. Lewis, of Dallas, for plaintiffs in error.
    G. E. Lockhart and W. R. Porter, both of Lubbock, for defendants in error.
   JACKSON, Chief Justice.

The record shows that on November 25, 1938 D. O’Neal, in Washington, Missouri, purchased from H. M. Miller, doing business under the trade name of Miller Motor Company, one 1939 Model Ford De Luxe Tudor Sedan and paid $269.-40 of the purchase price in cash and executed and delivered a contract by the terms of which he promised to pay the Universal Credit Company at its office the balance of $630 in eighteen equal monthly installments of $35 each, the first due December 26, 1938 and one due on the 26th day of each month thereafter until the debt was satisfied.

This contract was, in effect, a note, and chattel mortgage evidencing the deferred payments on the car and creating a lien thereon to secure the payment of the unpaid purchase price.

The provisions of this mortgage contract, material to this appeal, are in substance that the instrument constitutes the entire agreement between the parties; that the car was not to be used for hire and not to be removed from the State of Missouri without the written consent of the mortgagee unless the indebtedness had been paid; provides that time is of the essence of the contract and failure to pay any installment when due, or if mortgagee deems himself insecure, the mortgage shall be in default and the payments remaining unpaid shall immediately become due at the election of the holder.

On the delivery of the automobile to Mr. O’Neal in Missouri he left and after having driven through several states arrived in Texas. He failed to pay the $35 installment due December 26th and on December 28th he left the car in Lubbock with the Lubbock Body and Fender Company on the insistence and by the direction of Mr. J. W. Livingston. The parties agreed in open court that the mortgage contract was executed by D. O’Neal and H. M. Miller; that the Universal Credit Company never had any right, title or interest in or to the contract or the automobile described therein; that J. W. Livingston in regard to the transaction of December 28, 1938 was acting as the agent of H. M. Miller and the Universal Credit Company relative to said transaction was acting for H. M. Miller.

The appellees, D. O’Neal and G. E. Lockhart, instituted this suit in the District Court of Lubbock County, Texas, and on February 10, 1939 filed a first amended original petition in which they sought to recover against the appellants, the Universal Credit Company and H. M. Miller, the sum of $1,299 as damages for the alleged conversion and loss of use of the automobile here involved in Lubbock on December 28, 1938.

They allege the purchase of the car from Miller by O’Neal, the cash paid by him, his execution of the chattel mortgage contract for the sum of $630 payable in monthly installments of $35 each; that before he purchased the automobile he advised appellant Miller that he was engaged in the business of selling magazines in various states, representing the Union Circulation Company of New York City; had under him at different times from three to five sub-agents from whom he received' as a part of his compensation a commission of 50% of the sales made by each sub-agent; that it was necessary for him to use the automobile outside of Missouri and appellant Miller was advised thereof; that the contract he signed did provide that if the automobile was removed from the State of Missouri without written consent that the whole debt could be declared due and the automobile repossessed, but that appellant Miller knew before the sale that the business of O’Neal required him to use the car out of the state and sold the car with the understanding that it would be used in his business; that O’Neal was not in default but tendered the first $35 installment on December 26, 1938 and it was refused; that appellants did not repossess the car on account of any breach of the contract or default by him and they are therefore estopped to assert the right to take the car into their possession because of its removal from the State of Missouri or default in payment or for the reason that they deemed themselves insecure; that because of the unlawful acts of the appellants in taking possession of the automobile appellees were damaged in the sum of $799, the value of the car; that O’Neal was forced to abandon his contract with the Union Circulation Company, was unable to supervise his sub-agents and had to resume the work of a sub-agent himself; that he was making out of his business at the time of the conversion, clear of all expenses, $100 per week, and since the conversion on account of the loss of the use of the car he had been damaged $500.

The appellant Miller answered by general demurrer, numerous special exceptions, general denial, alleged the sale of the automobile in Washington, Missouri, to O’Neal for $899.40; acknowledged the payment in cash of $269.40; pleaded the chattel mortgage contract and the eighteen $35 monthly installments; that the Universal Credit Company refused to buy the mortgage contract; that O’Neal breached the contract by removing the car from the State of Missouri; was in default in his payments; and by reason of these breaches of the contract by O’Neal he felt insecure in the payments and peacefully repossessed the automobile; asked for the foreclosure of the chattel mortgage, for reasonable attorney’s fees and for such relief as he was entitled to in law or in equity.

The Universal Credit Company urged a general demurrer, numerous special exceptions, general denial; pleaded in substance the facts alleged by appellant Miller, and in addition averred that it refused to purchase the contract, never acquired the debt or any interest therein, and disclaimed all right, title or interest in the automobile.

In response to special issues submitted by the court the jury found that J. W. Livingston took possession of appellee’s automobile without his consent on the 28th day of December, 1938; that Livingston was acting for the Universal Credit Company in taking possession of the car; that the reasonable value of the car on said date was $725; that the Universal Credit Company knew at the time they took possession the purpose for which ap-pellee was using the car; that H. W. Miller knew for what the car was used and knew before the sale of the automobile to appellee he would move the machine from the State of Missouri; that Miller did not take possession of the automobile because it had been moved from Missouri nor because appellee had failed to pay the installment on the 26th of December, 1938, nor because he felt unsafe and insecure in the payment of the installments; that appellee was damaged by being deprived of the use of the car the sum of $500.

On these findings the court rendered judgment against H. M. Miller and the Universal Credit Company in favor of D. O’Neal and G. E. Lockhart for the aggregate amount of $1,025 with interest at the rate of 6% per annum until paid, each of said parties to receive one-half of such aggregate sum. The court also allowed the Universal Credit Company a recovery against its codefendant, H. M. Miller, for any sum recovered against the Universal Credit Company, from which judgments this appeal is prosecuted.

The appellants challenge as error the sufficiency of the petition of appellees setting up the defense of estoppel and contend that the testimony introduced under such plea was in violation of the parole •evidence rule.

The appellees admit that O’Neal executed and delivered the mortgage contract containing the stipulations which if breached authorized its maturity at the election of the holder thereof but claim that the appellants are estopped to urge such stipulations for the reason that Miller was advised and knew before the sale the business in which O’Neal was engaged ; that such business was transacted outside of Missouri and would necessitate the removal of the car therefrom, and introduced testimony to sustain these allegations. The appellees did not plead fraud, accident or mistake. The parties were dealing as strangers. The written contract was executed after the oral negotiations for the purchase thereof and the information O’Neal claims to have given Miller. In our opinion, neither the pleading nor the proof was sufficient to constitute an estoppel since under this record Miller owed appellee O’Neal no duty to advise him that he or his assignors would not rely upon and enforce all the provisions of the written contract.

In Liberty State Bank et al. v. Guardian Savings & Loan Ass’n, 127 Tex. 311, 94 S.W.2d 133, 134, the Supreme Court says: “The principle of estoppel in pais may be invoked against a party only when he has failed to do that which it was his duty to do. He cannot be estopped because of his failure to do that which he owed no duty to do.”

It is unnecessary to cite authorities to show that the admission of this testimony was in violation of the parole evidence rule which prohibits the introduction of oral testimony to vary, modify or change the terms of a written contract in the absence of an allegation of fraud, accident or mistake.

The jury, on ample testimony, found that H. M. Miller did not take possession of the automobile because it has been removed from Missouri nor on account of O’Neal having failed to pay the installment due the 26th of December, nor for the reason that he felt unsafe and insecure in the payment of his debt. Under these findings the overruling of the exception to the plea of estoppel and the admission of the testimony in violation of the parole evidence rule, while error, are immaterial.

The appellants urge as error the action of the court in admitting the testimony of O’Neal to the effect that the value of the automobile after it had been operated by him was $799 over the objection that the witness was not an expert and not qualified to testify to the market value of the car. The witness testified that the car was worth $799 but failed to state at what place he fixed the value. He testified that he knew the value; that his company bought cars every year, but his evidence does not show what company he referred to, whether it bought new or secondhand cars, what he had to do with the purchase thereof, or what make was purchased, nor does the record disclose that there was no market value for new or secondhand cars at Lubbock, Texas. In our opinion, this witness was not qualified to testify to value, Grayce Oil Co. et al. v. Peterson et al., 128 Tex. 550, 98 S.W.2d 781, and authorities cited, but while appellants objected to this testimony they failed to reserve an exception to the ruling of the court in permitting the introduction thereof and this assignment is overruled. Manton v. City of San Antonio, Tex.Civ.App., 207 S.W. 951; Western Union Telegraph Co. v. Gardner et al., Tex.Civ.App., 278 S.W. 278.

The appellant complains of the action of the court in admitting over objection the testimony of O’Neal that he was making better than $100 per week by the use of the automobile and rendering judgment on the finding of the jury thereon.

The appellees alleged that by reason of the unlawful act of appellants O’Neal had to abandon his contract with the Union Circulation Company, was not able to supervise his sub-agents and resumed the position of a sub-agent; that he was making in his business when the automobile was converted, clear of expenses, $100 per week and on account of the loss of the use of the car he was damaged in the sum of $500. They did not allege that another car suitable to the use of O’Neal was not available nor allege the rental value of the use of an automobile. O’Neal testified that he had a crew of five- girls whom he transported from place to place in the car working under his direction and as a part of his compensation he received a commission of 50% on the magazines sold by each of them; that by the use of the automobile, and the superintendency of his sub-agents and his work he was making better than $100 per week. It is obvious, we think, that the use of the automobile was incidental to his business.

In Brown et al. v. Guaranty Securities Co., Tex.Com.App., 265 S.W. 547, 550, in an opinion approved by the Supreme Court, the Commission of Appeals says: “The facts show that Mrs. Brown was using her automobile as a real estate agent, and the court submitted as a measure of damages the reasonable earnings of Mrs. Brown in her business with the use of her car over and above her expenses from the time the car was taken from her until the 1st day of November, A. D. 1921: The car was only incidental to her work, and therefore in our opinion the measure of damages would have been the reasonable rental value of the car.”

Generally the measure of damages for the conversion of an automobile or other personal property is its market value at the time and place of conversion. Morriss v. Knepper, Tex.Civ.App., 10 S.W.2d 1012; Universal Credit Co. v. Wyatt, Tex.Civ. App., 56 S.W.2d 487; Waller, Sheriff, et al. v. Hail, Tex.Civ.App., 46 S.W. 82; Ward v. Odem, Tex.Civ.App., 153 S.W. 634; Stalker v. Williams, Tex.Civ.App., 3 S.W.2d 534. The pleading was not sufficient to authorize the introduction of the testimony and the evidence did not warrant the jury in finding appellants had suffered damages in the sum of $300 by the loss of the use of the automobile. This assignment is sustained.

The appellants complain of the action of the court in rendering judgment in favor of appellees for the sum of $1,025 because they pleaded a debt amounting to $630 due appellants on the unpaid purchase price of the machine and appellants were, in any event, entitled to credit therefor on any damages recovered.

The appellants pleaded their debt and mortgage; it is admitted that the deferred payments on the purchase price of the automobile were never paid, and appellants were entitled to credit on any judgment obtained against them for the amount of their debt due and unpaid.

In Sanders v. O’Connor, Tex.Civ.App., 98 S.W.2d 401, it is held that the damages due the owner of property that had been converted by a party to whom the owner is indebted is ascertained by deducting the debt from the reasonable value of the property converted. See, also, Runnels et al. v. La Fitte et ux., Tex.Civ.App., 61 S.W.2d 585; Universal Credit Co. v. Ratliff, Tex.Civ.App., 57 S.W.2d 238; 42 Tex.Jur. 575, para. 59.

The judgment is reversed and the cause remanded.


author: MONTEITH, Chief Justice.

text:
    BOVA et al. v. WYATT.
    No. 10979.
    Court of Civil Appeals of Texas. Galveston.
    April 25, 1940.
    Rehearing Denied May 30, 1940.
    Geo. W. Dixon and H. J. Hendrix, both ■of Houston, for plaintiffs in error.
    Hardway & Austin and L. P. Gwin, all of Houston, for defendant in error.
   MONTEITH, Chief Justice.

This is an appeal by writ of error in •a trespass to try title action brought by •defendant in error, R. O. Wyatt, against plaintiffs in error, Cumire Bova and husband, J. P. Bova, to recover title and possession of SO acres of land located in Walker County, Texas. For convenience, the parties will be designated in this opinion as in the trial court.

Plaintiff pled a formal suit in trespass to try title. Defendants answered by general demurrer, general denial, and a plea of not guilty. By cross-action Mrs. Bova alleged the ownership of said land in herself.

In a trial before the court without a jury judgment was rendered in favor of plaintiff. The court’s ''judgment embodies the following findings of fact, which are borne out by the record:

“(a) That George W. Dixon is the common source of title.
“(b) That on the 24th day of April, 1929, Marine Banking and Trust Company recovered a judgment in cause No. 47568 in the Justice Court of Harris County, Texas, against George W. Dixon, which judgment on the 10th day of February, 1937, was duly transferred and assigned with all rights and liens securing same to R. O. Wyatt by the Marine Bank and Trust Company, which in turn had previously obtained the judgment and liens securing same by assignment from the plaintiff in the judgment.
“(c) That execution was duly issued and returned on said judgment within the year and on the 22nd day of February, 1936, an abstract of judgment was duly indexed and recorded in the Judgment Records of Walker County and indexes thereto.
“(d) That thereafter at the request of R. O. Wyatt an alias execution issued on said judgment to the Sheriff of Walker County, Texas, which was on.the 13th day of November, 1937, levied upon the real estate in controversy and in pursuance of such levy an execution sale was held on the first Tuesday in December 1937, at which sale R. O. Wyatt became -the purchaser by paying the amount of costs due the sheriff and crediting the balance of his bid on the judgment, and in pursuance of which sale the sheriff of Walker County executed and delivered to him a proper sheriff’s deed to the land in controversy.
“(e) That on the 23rd day of March, 1929, George W. Dixon conveyed the land in controversy to Mrs. Cumire Bova, his sister, and which deed was not recorded in the deed records of Walker County until the 18th day of November, 1937.”

The record shows that Mrs. Bova was notified of the fact that notices of sheriff’s sale under said levy had' been posted and that she then, on November 18, 1937, five days after said execution lien had attached, had her deed to said land recorded in the deed records of Walker County, and that, prior to said execution sale, she notified the sheriff of Walker County that she had a superior title to said land.

Based on said deed from George W. Dixon to Mrs. Bova dated March 23, 1929, but not placed of record until after the levy of said writ of execution and the recording and indexing of said abstract of judgment, defendants contend that Mrs. Bova, having shown a senior title to said land from the common source, and having notified the sheriff of Walker County of her ownership, of said land under said senior title prior to the sale of said land under execution, is entitled to have judgment rendered in her favor.

Neither of these contentions can be sustained.

Article 6627, R.S.1925, provides that an unrecorded deed of conveyance to land “shall be void as to all creditors and subsequent purchasers * * * without notice.” It is the settled law in this state that a judgment creditor who has fixed a lien upon real estate by judicial process and who has had *an abstract of his judgment duly recorded in the judgment records and in the indexes thereto in the county in which said real estate is situated is a creditor within the meaning of said Article 6627. Henderson v. Odessa Building & Finance Co., Tex.Com.App., 24 S.W. 2d 393.

Further, the notice given by Mrs. Bova to the sheriff of Walker County did not affect the rights of the purchaser at said execution sale and was ineffective since both said abstract and execution liens were acquired prior to the date of- the giving of such notice. Brinkman v. Tinkler, Tex.Civ.App., 117 S.W.2d 139; Ives v. Culton, Tex.Com.App., 229 S.W. 321.

Defendants contend that plaintiff did not establish his ownership of the judgment on which said execution sale was based. We have carefully considered the evidence pointed out in the briefs of the parties and have concluded that the trial court was justified in his finding that the judgment in cause No. 47568 “was duly transferred and assigned with all rights and liens securing same to plaintiff, R. O. Wyatt.”

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

Affirmed.


text:
    ST. JOHN et al. v. KINSER.
    No. 10840.
    Court of Civil Appeals of Texas. San Antonio.
    May 1, 1940.
    Rehearing Denied May 29, 1940.

      Crane & Glarner, of Raymondville, and Arthur A. Klein, of Harlingen, for appellants.
    B. D. Kimbrough, of McAllen, for ap-pellee.
   MURRAY, Justice.

Appellee, Henrietta Kinser, has filed a motion to affirm as to appellant E. W. Archer and dismiss appeal as to appellant Alice St. John, Administratrix, or, in the alternative, to dismiss as to both appellants.

Appellant Alice St. John, Administratrix, has filed a motion for leave to file a supplemental transcript and an answer to ap-pellee’s motion. Appellant E. W. Archer has also filed an answer to appellee’s motion.

From the record before us it appears that on November 24, 1939, judgment was entered in the County Court of Willacy County in favor of Henrietta Kinser against E. W. Archer for the sum of $860. It was further decreed that Alice St. John, Administratrix, with the will annexed, of the estate of A. D. Struthers, deceased, recover nothing.

The judgment further shows that both Alice St. John, Administratrix, and E. W. Archer excepted and gave notice of appeal.

On December 13, 1939, ,E. W. Archer filed his appeal bond. On December 19, 1939, Alice St. John, Administratrix, filed her first amended motion for a new trial. On December 23, 1939, this motion was granted by Charles R. Johnson, County Judge, the judgment was set aside and the cause restored to the docket for trial. After granting the new trial Judge Johnson left the county. On December 30, 1939, the same being the last day of the term, Kennedy Smith, Esquire, a practicing attorney of Raymondville, was duly elected Special County Judge. Upon a hearing he set aside Judge Johnson’s order granting a new trial and overruled the motion for a new trial. To this last motion Alice St. John, Administratrix, again excepted and gave notice of appeal. This perfected her appeal, bond not being necessary.

On February 14, 1940, Alice St. John tendered in this Court a purported transcript of the record, which was filed by the Clerk of this Court. ,

On February 6, 1940, E. W. Archer filed in this Court his motion for an extension of time within which to file transcript and statement of facts; this motion was No. 13891. Before we passed upon this motion a transcript was filed and this Court, deeming it unnecessary to file two transcripts, dismissed the motion.

Appellee, Henrietta Kinser, contends that the judgment should be affirmed as to E. W. Archer because of his failure to file a statement of facts in the trial court, as required by Art. 2246, R.C.S.1925, Vernon’s Ann.Civ.St. art. 2246, within fifty days after said final judgment. We overrule this contention. The failure to file a statement of facts in the trial court would not furnish grounds for affirming a case on certificate in the court of appeals.

Archer filed a motion for an extension of time within which to file the record in this Court. This motion was made within the seventy-five days provided for by Art. 1839, Vernon’s Annotated Civil Statutes. This motion stated good grounds for an enlargement of time and showed good reasons for the delay and would have been granted by this Court but for the fact that when we came to a consideration of the motion, we found a record already on file; this being the record tendered by Alice St. John, Adminis-tratrix. It would clearly now be unjust for this Court to affirm the judgment because

Archer did not tender a record here, within the prescribed time.

Appellee next contends that the appeal should be dismissed as to Alice St. John, Administratrix, because the record filed here by her is defective. We overrule this contention. Alice St. John has asked leave to file a supplemental transcript supplying the defects of the original transcript and it being our duty to resolve all matters in favor of the appeal where we may properly do so, will grant this motion to file supplemental transcript.

Appellee’s motion to affirm as to appellant E. W. Archer, and dismiss appeal as to appellant Alice St. John, Administratrix, or, in the alternative, to dismiss as to both appellants, is overruled and the motion of Alice St. John for leave to file supplemental transcript is granted.


author: LESLIE, Chief Justice.

text:
    WATTS v. HARTFORD ACCIDENT & INDEMNITY CO.
    No. 2020.
    Court of Civil Appeals of Texas. Eastland.
    May 17, 1940.
    Scarborough & Ely, of Abilene, for appellant.
    Blanton & Blanton, of Abilene, for ap-pellee. ,
   LESLIE, Chief Justice.

This workman’s compensation case by Nathan Watts reached the district court, where a trial resulted in a judgment adverse to him and in favor of Hartford' Accident & Indemnity Company. He appeals.

Watts requested the trial court to file findings of fact and conclusions of law. His contentions seem to be (a) the “court failed to file findings of fact and conclusions of law” (second proposition), and (b) that the findings of fact and conclusions of law which were filed, were filed “after the expiration of the court’s term, and the order signed by the trial court accompanying same was signed after the minutes of the court had been signed when the regular term of court had expired” (First proposition). In the statement of the first proposition appellant “requests the court to refuse to consider the supplemental transcript, for the reason that the same contains findings of fact and conclusions of law which were filed after the expiration of the court’s term * * * ”, etc. There is no statement of facts in the record.

Article 2247, R.S.1925, reads; “When demand is made therefor, the Judge of a District or County Court thirty days before the time for filing transcript in the-cause shall prepare his findings of fact and conclusions of law in any case tried' 'before the Court. If he shall fail so to prepare them, the party so demanding, in order to complain of the failure, shall, in-writing, within five days after such period, call the omission to the attention of the Judge, whereupon the period for due preparation and filing shall be automatically extended for five days after such notification.”

The judgment appealed from was rendered and entered May 26, 1939. Transcript on appeal was due to be filed in this-court by July 25, 1939. Art. 1839, R.S. 1925, Vernon’s Ann.Civ.St. Art. 1839. Under the quoted statute it was not necessary that the findings of fact and conclusions of law be filed in the trial court until “thirty days before the time for filing transcript” in the court of civil appeals. Neither was it necessary that the findings be filed within the term of court at which the judgment was rendered. Thirty days before the time for filing the transcript in this court is the first period within which to file the same, and in the event the judge omitted to do so, five additional days were given in which to call the omission to his attention. After his attention is so directed the period for due preparation and filing of the findings is “automatically extended for five days after such notification.”

In the instant case the findings and conclusions should have been filed not later than June 24, 1939, to be within the thirty day period “before the time for filing transcript” on appeal. Ordinarily the transcript should have been filed not later than July 25, 1939, or sixty days after the entry of the judgment on May 26, 1939. The findings, etc., were filed below on June 26, 1939, two days later, or twenty-eight days “before the time for filing transcript.” They were brought before this court in a supplemental transcript filed July 14, 1939, whereas the original transcript was filed here June 24, 1939. The time for filing any transcript at all could have been delayed until July 25, 1939.

In this state of the record, obviously there is no merit in the contention that the trial court failed to file findings of fact and conclusions of law. Neither did the trial court commit any error in failing to file the findings within the term of court at which the judgment was rendered. That disposes of the precise points made by the appellant.

However, if the trial court, with or without reason, had refused to make and file findings of fact and conclusions of law in response to the first request therefor, no error would have been shown had the appellant failed in writing and with'in the five day period to call the omission to the attention of the judge. Further, such notification, if any, would have automatically extended the time in which the judge had another opportunity to comply with the request, and no error, would have occurred simply because the judge had pursued that course. In the instant case, the record discloses that without any complaint at all on the part of the appellant, and without having his attention called to his omission to make and file the findings, and without consuming any additional time allowed by the statute for making the same after notice, the judge did, in fact, file findings, etc., June 26, 1939. We are of the opinion that this slight delay under the circumstances was immaterial and without prejudicial effect. There is no reasonable doubt of its harmless effect. Bell v. Blackwell, Tex. Com.App., 283 S.W. 765, 767.

This is especially true in view of the sole contentions made and above set out.

For the reason assigned the judgment of the trial court is affirmed.


text:
    WEBSTER v. WEBSTER.
    No. 5644.
    Court of Civil Appeals of Texas. Texarkana.
    May 2, 1940.
    W. E. Tumlin, of Marshall, for appellant.
    No appearance for appellee.
   JOHNSON, Chief Justice.

This suit was filed by. appellant, Hattie Lillian Webster, against her husband, James Webster, asking for divorce on the alleged ground that James was guilty of adultery. Trial of the case to the court without a jury resulted in judgment denying the divorce. Plaintiff has appealed.

The trial court filed his findings of fact and conclusions of law, from which it appears that Hattie, after testifying to their marriage and residence, further testified that James had frequently carried another woman, naming her,'out to parties; that on such occasions he did not get home until eleven or twelve o’clock at night. That one night she went out to investigate and found James and the woman in an automobile “hugging and kissing” and that when she walked up James “speeded away.” That when James came home that night she accused him of “misconduct” with the woman, which he did not deny, and she then “quit” him.

Appellant contends that as a matter of law she was entitled to divorce upon the above testimony. The contention is not sustained. The testimony does not meet the requirements of the statute, R.C.S.. Article 4629, Sec. 3, authorizing a divorce to be granted in favor of the wife against the husband “where he shall have abandoned her and lived in adultery with another woman.”

The judgment of the trial court is affirmed.


author: GRISSOM, Justice.

text:
    NATIONAL AID LIFE v. SELF et al.
    No. 2016.
    Court of Civil Appeals of Texas. Eastland.
    May 3, 1940.
    Rehearing Denied May 81, 1940.
    Chrestman, Brundidge, Fountain, Elliott & Bateman, of Dallas, and Lyndsay D. Hawkins, of Breckenridge, for appellant.
    D. T. Bowles and Floyd Jones, both of Breckenridge, for appellees.
   GRISSOM, Justice.

Kate Self, joined by her husband, R. B. Self, sued the National Aid Life in Stephens County, alleging that the Mutual Life Insurance Company had issued two policies in the sum of $1,000 each upon the life of Walter H. Simpler, payable to Kate Self, as beneficiary; that the name of the Mutual Life Insurance Company was changed to Mutual Life Insurance Association; that all assessments on said policies had been paid; that defendant National Aid Life had assumed the payment of said policies; that Simpler had died; that defendant had refused to pay the policies, etc.

Defendant filed its plea of privilege asserting the right to he sued in the county of its residence, to-wit, Tarrant County. Plaintiffs filed a controverting plea alleging that the National Aid Life was a corporation and a state-wide mutual assessment company. Plaintiffs alleged facts showing venue of the case in Stephens County under subdivisions 23 and 28a, Art. 1995, Vernon’s Texas Civil Statutes 1936.

Upon a trial to the court, judgment was rendered overruling defendant’s plea of privilege. Defendant has appealed.

Subdivision 28a of Art. 1995, provides: “Fraternal benefit societies and statewide mutual assessment companies. — In all actions brought against Fraternal Benefit Societies and/or Statewide Mutual Assessment Companies, regardless of the plan upon which they operate and whether incorporated or not, growing out of or based upon any alleged right or claim or loss or proceeds due, arising from or predicated upon any policy or contract issued or made by such Fraternal Benefit Society and/or Statewide Mutual Assessment Companies, venue shall tie in the county where the policyholder or beneficiary instituting such suit resides or in the county of the principal office of such association or where such cause of action arose.” (Italics ours.)

Under said subdivision plaintiffs were entitled to maintain their suit in Stephens County if they established, as the venue facts, that the defendant is (1) a state-wide mutual assessment company, and (2) that Mrs. Self, the beneficiary in the policies sued on, resides in Stephens County.

Plaintiffs’ controverting affidavit shows plaintiffs’ suit to be based upon a right or claim predicated upon a contract made by defendant. The evidence shows that the beneficiary in the policies sued on resides in Stephens County. We are further of the opinion that the evidence is sufficient to sustain a finding that the defendant is a state-wide mutual assessment company within the purview of subdivision 28a.

Defendant' alleged, in paragraph 3 of its plea of privilege, as follows: “This defendant is an incorporated insurance association, chartered under the laws of the State of Oklahoma, and is admitted to do business in Texas under Chapter 5, Title 78, of the Revised Statutes of the State of Texas. That it has its principal office in this State in Tarrant County, Texas, and in the City of Fort Worth, in said County and State.”

Chapter 5, Title 78 of the Revised Statutes, referred to in the plea of privilege, was repealed in 1929. Said chapter, as it formerly existed, consisted of three articles. The first sentence of the first article in said repealed chapter, to-wit, Art. 4781, under a chapter entitled “Assessment Or Natural Premium Companies”, was headed “Foreign assessment companies,” and read “Companies or associations organized under the laws of any other State of the United States, carrying on the business of life or casualty insurance on the assessment or natural premium plan, having cash assets of a sum not less than 07ie hundred thousand dollars, invested as required by the laws of this State regulating other insurance companies, shall be licensed by the Commissioner to do business in this State, and be subject only to the provisions of this chapter.” The remainder of said article stated the requirements prerequisite to the issuance of a license to such a" company to do business in Texas. Article 4782 prescribed the fees to be charged. Article 4783 provided that the provisions of Chapter 5 should not apply to mutual benefit organizations doing business through lodges or councils.

Article 4859f, Acts 1933, as amended in 1935, entitled “Mutual assessment life insurance corporations” provides: “Sec. 1. Any corporation organized and incorporated under a preexisting law in this State without capital stock and not for profit, which law has been amended or repealed or reenacted, and which was operating and actually carrying on in this State immediately prior to January 1, 1933, the state-wide business of mutually protecting or insuring the lives of its members by assessments made upon its members may comply with the terms of this Act, subject to the subsequent provisions hereof.”

Section 14 provides in part: “No person, firm, unincorporated association, or corporation shall carry on in this State the statewide business of mutually protecting or insuring the lives of its members by assessments made upon its members except under the terms of and by complying with the provisions of this Act.”

Article 4860a — 18 styled “Repeals and effect” is a part of Chapter 9, entitled “Mutual Insurance Companies”, and provides: “Chapters 5 * * * of Title 78 of the Revised Civil Statutes of 1925, and all other laws or parts of laws in conflict with the provisions of this Act, are hereby repealed; provided that such repeals and the provisions of this Act shall not apply to or affect any Company or Association of this State now doing business under the laws repealed, and they shall continue to be governed by the regulatory provisions of such laws.”

The following chapter, to-wit, 9A (art. 4875a — 1 et seq.), is entitled “Local Mutual Aid Associations.”

Notices of the premiums due on the policies sued on for September 1, 1938, were sent by the defendant to Mrs. Self. The heading of the notices read “National Aid Life, Texas Division, Fort Worth, Texas.” Mrs. Self testified that the defendant sent her its certificates of assumption, whereby defendant assumed payment of the policies sued on. Such certificates of assumption directed her to attach said certificates to her Mutual Life policies. Mrs. Self signed the name of the insured to a receipt and acceptance of defendant’s certificates of assumption and returned them to the defendant who produced them upon the trial. She further testified that with the defendant’s certificates of assumption she received a communication from the defendant addressed to the policyholders of the Mutual Life Insurance Company, which communication was headed “National Aid Life, Texas Division, Fort Worth, Texas.” This instrument recited that the Mutual Life Insurance Association of Breckenridge had been merged with National Aid Life under contract of re-insurance approved by the Insurance Commissioners of Texas and Oklahoma. It further recited, among other things: (1) “The Mutual Life Insurance Company, of Breckenridge, and * * * are being merged'together into the Texas Division of National Aid Life, with the Texas office located in the Fair Building, Fort Worth. Your premiums may be paid in Breckenridge, or mailed to National Aid Life, Fort Worth * * (2) “Enclosed herewith you will find your official assumption certificate. You simply keep your Mutual Life policy and attach this assumption certificate to it.”

The instrument then welcomed the addressee “as one of our more than forty-thousand policy holders.” The instrument further, under a subdivision designated as “Some Facts About National Aid Life”, advised the addressee “National Aid Life has more life business in force than any other natural premium company in the United States.” “A separate division is maintained for the State of Texas, which is located in the Fair Building, Fort Worth, Texas.”

“National Aid Life has branch offices in Texas at Brenham, Breckenridge, Fort Worth, Georgetown and Mineral Wells. You may pay your premiums at any of these branch offices.”

“The home office of National Aid Life is located in the National Aid Life Building in Oklahoma City, Oklahoma.

“The central office for the State of Texas is located in the Fair Building, in Fort Worth, Texas.”

Following the defendant’s financial statement is found this statement, “National Aid Life Maintains substantial bank accounts in more than thirty five banks in the State of Texas. Included among them are the First National Bank of Fort Worth, First National Bank of Breckenridge, the State National' Bank and City National Bank of Mineral Wells, and the Grayson County State Bank of Sherman.”

We are of the opinion that the foregoing is sufficient to show that the defendant is a state-wide mutual assessment - company within the' purview of subdivision 28a of Art. 1995. We, therefore, conclude that venue of the case in Stephens County is sustainable under said subdivision 28a.

Subdivision 23 of Art. 1995 provides, in part: “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.”

We are of the opinion that, as applied to the facts of this case, venue is shown in Stephens County under subdivision 23, supra, if the plaintiff has alleged and proved (1) that the defendant is a private corporation, and (2) that it “has an agency or representative” in Stephens County. Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 405, 48 S.W.2d 978, 981; Duncan Coffee Co. v. Haynes, Tex. Civ.App., 129 S.W.2d. 1163, 1164; Texas Employers’ Ins. Ass’n v. Collier, Tex.Civ. App., 77 S.W.2d 878; Maytag Southwestern Co. v. Rupert, Tex.Civ.App., 95 S.W. 2d 728, 730; DeShong Motor Freight Lines, Inc. v. North Texas Coach Co., Tex. Civ.App., 108 S.W.2d 766; Midlothian Oil & Gin Co. v. Commercial Standard Ins. Co., Tex.Civ.App., 120 S.W.2d 518; City Drug Stores v. Hutson, Tex.Civ.App., 121 S.W.2d 428. Plaintiffs alleged, and.the defendant admitted, in their respective pleadings that defendant is a private corporation. Aheel v. Weil, 115 Tex. 490, 283 S.W. 769; Southland Greyhound Lines Inc. v. Taggart, Tex.Civ.App., 70 S.W.2d 244; General Motors Acceptance Corp. v. Lee, Tex. Civ.App., 120 S.W.2d 622; Waggoner v. Edwards, Tex.Civ.App., 68 S.W.2d 655, 663. We shall now consider whether or not the evidence is sufficient to' authorize the court’s finding that the defendant has an agency or representative in Stephens County. We have heretofore pointed out, in connection with the discussion of the evidence applicable to subdivision 28a, that the communications of defendant stated in connection with the information .that certain companies were being merged into the Texas division of National Aid Life with its Texas office located at Fort Worth that “your premiums may he paid in Breckenridge * * * ” and “National Aid Life • has branch offices in Texas at * * Breckenridge * * *. You may pay your premiums at any of these branch offices”, and further that “National Aid Life maintains substantial hank accounts in more than thirty-five banks in the State of Texas. Included among them are the * * * First National Bank of Breckenridge * *

J. U. Gibbs testified that he had lived in Breckenridge since 1920; that he was engaged in the business of selling life insurance for the defendant; that he had been sélling insurance for defendant since 1938; that is, since they took over the Mutual Life Insurance Company; ' that prior to •said time he was working for the Mutua] Life Insurance Company, of Breckenridge; that he solicited insurance for the defendant ; that he accepted applications for policies with the defendant; that he sent, them to the defendant at its home office in Oklahoma City; that defendant sent him some of the policies to be delivered to persons insured by the defendant; that he solicited insurance for the defendant in Stephens, Shackelford, Eastland and Young Counties; that he knew that the defendant operated in a number of places in Texas.

We are of the opinion that the foregoing is sufficient to sustain the court’s finding, in substance, that the defendant has an agency or representative in Stephens County. See Southern Ins. Co. v. Wolverton Hardware Co., Tex.Sup., 19 S.W. 615, 616; Art. 5056, Vernon’s Texas Civil Statutes 1936; General Motors Acceptance Corp. v. Lee, Tex.Civ.App., 120 S.W.2d 622, 625. We, therefore, conclude that defendant is a private corporation with an agency or representative in Stephens County, and that the venue of said case is properly shown to be in Stephens County under subdivision 23, supra.

Appellant presents many propositions based upon the action of the court in permitting the introduction of the first and last pages of a re-insurance contract without proof of the execution of the instrument by the defendant, and in permitting the introduction' of said portions of the reinsurance contract without introduction of the entire instrument. Propositions are also directed to the court’s conclusion that plaintiffs’ cause of action arose in Stephens County. Most of said propositions we deem immaterial under our conclusions heretofore stated, and other propositions are answered by what has already been said. We shall, therefore, not discuss defendant’s propositions in detail.

Under the provisions of subdivisions 23 and 28a of Art. 1995, Vernon’s Texas Statutes 1936, applicable to the facts of this case, we think proof of a cause of action is not required as one of the venue facts. Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675. We further are of the opinion that it is immaterial whether the court was correct in permitting the introduction of the reinsurance contract without proof of -its execution, since proof of a cause of action was not required as a venue fact. Since venue in Stephens County was established without such proof, in a trial to the court, if error, it was harmless. DeShong Motor Freight Lines v. North Texas Coach Co., Tex.Civ.App., 108 S.W.2d 766; Duncan Coffee Co. v. Haynes, Tex.Civ.App., 129 S.W.2d 1163, 1164; Allison v. Victoria Bank & Trust Co., Tex.Civ.App., 138 S.W.2d 151, 155.

The judgment is affirmed.


author: TAYLOR, Commissioner.

text:
    GREENE v. CONDOR PETROLEUM CO. et al.
    No. 1828-7522.
    Commission of Appeals of Texas, Section B.
    June 5, 1940.
    Kirby, King & Overshiner, A. K. Doss, and Cox & Hayden, all of Abilene, for appellant.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellees.
   TAYLOR, Commissioner.

This suit was filed by E. H. Greene, plaintiff in error here, against Condor Petroleum Company and others, for compensation for services alleged to have been rendered by him pursuant to an express employment by the company acting for itself and the other defendants.

The trial court sustained a general demurrer to the petition. Plaintiff elected to stand upon the allegations of his petition and the suit was dismissed. The Eastland Court of Civil Appeals affirmed the judgment of the trial court. 121 S.W.2d 381.

Writ of error was granted upon an assignment alleging error against the holding that plaintiff’s amended petition is insufficient as against a general demurrer, and further alleging the decision of the Court of Civil Appeals is in conflict with, among other cases, Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031, which reversed the judgment of the East-land Court of Civil Appeals in that case. 98 S.W.2d 239.

The sole question presented is whether the facts alleged by plaintiff constitute a cause of action.

Plaintiff alleges that on August 17, 1932, Condor Petroleum Company, as first party, entered into a contract with second party (plaintiff, R. G. Piper, and F. A. Sansome, Trustee), whereby the first party conveyed to the second party an undivided one-half interest in an oil and gas lease containing 2475.86 acres; that each of the three individuals composing the second party acquired by the. terms of the contract a one-third interest in the one-half interest in the lease conveyed, to them; that plaintiff owns an undivided one-twelfth interest in the lease and that he and the other defendants are “the joint sole owners of the property.”

A copy of the contract referred to is attached to and made a part of plaintiff’s petition. Its material provisions will therefore be briefly stated before proceeding with a statement of the further allegations of the petition.

The first paragraph of the contract provides that in consideration of the premises and mutual covenants (not necessary to be stated) of the parties, the first party (Condor Petroleum Company) assigns and conveys an undivided one-half interest in the lease unto second party (plaintiff, Piper and Sansome), its successors and assigns, reciting in this connection that each of the three individuals known as second party "“has a one-third interest in the one-half interest herein assigned.” It is pointed out in connection with this recitation that defendants, other than those who were parties to the contract, acquired such rights and interests as they may have subsequent to the execution of the contract and subject to its terms.

Paragraph II of the contract recites that the company agrees at its own cost and ' expense to drill an oil well on the lease to the prescribed depth under certain terms and conditions not necessary to be stated here further than to point out that it provides that in the event the first test well is completed, either as a dry hole or as a noncommercial producer, and the company •desires to drill a second test before forfeiting the block of leases in question, the second party agrees to advance one-half ■of the cost thereof upon the conditions and with the result stated in the contract.

Paragraph III provides that after completion by first party “of the first well, and/or the second well, as contemplated by the agreement, it is mutually agreed that first party, its successors, assigns or legal representatives, shall have and are hereby .given and granted by second party, its •successors, assigns, or legal representatives, exclusive charge, possession, control and supervision of all operations of every kind to be conducted on the said property for the development, production, treating, handling and marketing of oil, gas and other minerals therefrom, as well as the payment of rentals, royalties, taxes and other charges which' may arise and become due, * * * *.” It is further stipulated in this connection that first party has the right to delegate and assign all rights given to it under the terms of the contract and that the development of the properties “shall be entirely at the discretion of first party * * *.”

The remaining provisions of the contract as set out in paragraphs IV, V, VI, VII, VIII, IX and X thereof have to do with the respective obligations of the parties in the event commercial production is developed in either the first or second test. Their provisions are summarized by the Court of Civil Appeals in its opinion upon original hearing, reference to which is made in the interest of brevity.

Resuming a statement of the allegations of the petition attention is directed to the general allegation (paragraph 4) that in the early part of 1933 the company brought in the first well on the properties and that subsequently other wells had been brought in periodically “until there are not fifteen (15) producing wells on the said land and the leasehold interests of the joint owners have become and are quite valuable.”

Paragraph V alleges that as producing wells were brought in the company was greatly handicapped in the development of the properties and in obtaining revenues from the oil produced thereon, because there was no conveniently located pipe line company or refinery to which it could -sell, the oil from the wells on the properties thus jointly owned-; that in the early part-of 1934 the company, “acting for defendants, employed plaintiff to procure cm outlet or market for the oil produced from said leases, and the plaintiff agreed to use-his best efforts to bring about the building of a refinery near said properties”; that pursuant to the agreement plaintiff, through his efforts and in conjunction with those of the president of the company, brought about the execution of contract between the company and Phoenix Refining Company, Inc., “whereby the latter agreed to build- a refinery near said properties, cmd to purchase the oil to be produced and delivered therefrom” (italics ours); that by December 1, 1934, the refinery was completed and began purchasing oil from the company.

Paragraph VI alleges that from December, 1934, to November, inclusive, 1935, the refining company purchased from the company, 154,741.37 barrels of oil produced from said properties, and was paid therefor by it the sum of $145,571.23; that during the month of November, 1935, the Phoenix Refining Company sold its refinery to Onyx Refining Company and that the latter has continued the purchase of oil produced by the company every month and has purchased a total of 250,000 barrels of said oil, for which it paid $275,000.

Paragraphs 7 and 8 of the petition read:

“That this plaintiff was the procuring cause of the building of said refinery and the resulting purchase by said refinery of the oils referred to above, and that in procuring the construction of said refinery; and the sale of said oil by defendants * * * plaintiff was acting under and by virtue of his employment by the defendant, Condor Petroleum Company, acting for itself, and for the other defendants herein; and that thereby the defendants became liable and obligated to pay to this plaintiff a reasonable sum as a commission or compensation for his services * *

“8. Defendant alleges that there was an express agreement between Mm and Condor Petroleum Company, acting for itself, and the other defendants, for the employment of the plaintiff in said capacity, to procure the building of said refinery, and the resulting sale of oil to it from the property of the defendants; but plaintiff alleges that there was no express' agreement between said parties as to the amount of commission or compensation which he was to receive for his said services. He alleges in this connection that the usual and customary commission for such services, and a reasonable commission for same in the vicinity, is the sum of 10% of the sale of the amount of oil actually purchased by Phoenix Refining Company, to wit, 154,-741 barrels, and that his commission therefor would be 10% .of the amount received for said oil so purchased by said Phoenix Refining Company, or, to wit, the sum of $14,557.12. If he is mistaken in this connection as to 10% being a reasonable commission,' then he alleges in the alternative that 5% would have been a reasonable commission for said services in the sale and delivery of such oil as was purchased by the Phoenix Refining Company. He further alleges that a reasonable commission for the amount of oil purchased by the Onyx Refining Company after it took over said refinery would be 5% of the $275,000.00 which the Onyx Refining Company has paid to defendants for such oils as it purchased, or the additional sum of $13,-750.00, and that the plaintiff has, therefore, earned in commissions on the sale of oils to date by the defendants to said refinery, the total sum of $28,321.12, for which he here sues. * * * In this connection the plaintiff further alleges that ,if he is mistaken as to his allegation as to what a reasonable commission or compensation would be for the services performed by him, then he says in this connection, that he has actually earned to date the sum of $28,321.12, and he sues for said sum on a quantum meruit basis, * * (Italics ours.)

The Court of Civil Appeals in its opinion upon original hearing upheld the action of the trial court in sustaining the general demurrer, on the theory that plaintiff’s suit is one for contribution of expenditures incurred by a partner for the use of the partnership without first having a settlement of the partnership accounts, citing' as authority for its holding such cases as Lockhart v. Lytle, 47 Tex. 452; Merriwether v. Hardeman, 51 Tex. 436; and Masterson v; Allen, Tex. Civ.App., 69 S.W.2d 539, writ refused.

While agreeing with the rule applied in the cases cited we are unable to construe the averments of plaintiff’s petition as constituting an action for contribution of expenditures incurred by one partner for the use of the partnership.

According to the allegations of the petition Condor Petroleum Company was granted, under the terms of the contract referred to, exclusive charge of the development and marketing of the oil to be produced from the properties. The company having been granted the right to exercise this power on behalf of the joint ownership created by the contract, neither the company nor any of the other defendants are in position to complain, in the light of plaintiff’s allegations, of the company’s action in employing him to render a personal service which had for its purpose the procuring of a market for defendant’s oil under the facts alleged.

The employment, so far as the allegations of the petition are concerned, was for the rendition by plaintiff of a personal service, the specific purpose of which was the development of the lease and the marketing of the oil to be produced from the properties. It was not a partnership operation, the carrying out of which devolved upon plaintiff by virtue of his relationship in connection with the properties.- No duty rested upon him as a partner to render this service, the development of the properties and marketing of the oil having been specifically entrusted to Condor Petroleum Company by the terms, and upon the conditions stated, in the contract. We are cited to no authority holding that a joint owner, occupying a position similar to plaintiff’s, cannot accept employment from the other owners holding jointly with him, to render a personal service for the benefit of their joint holdings; and we know of no rule of law inhibiting such empolyment.

In a per curiam opinion of the Court of Civil Appeals, upon rehearing, the view is expressed that the contract above referred to showed that, although Condor Petroleum Company did have the unrestricted power, control and management of the lease, including the marketing of the production therefrom, it derived none of such rights or powers from the other defendants; that the other defendants “in no true sense” could entrust the company with rights which they did not have and did not acquire. It is further stated in this connection that the recitations that the company is granted by second party “exclusive charge, possession, control and supervision of all operations of every kind to be conducted on said property * * when read in the light of the fact that the company at that time already possessed such rights and powers, means that the company was not to part with any such rights or powers and that it necessarily means no more than that the other parties recognized, or assented to the retention of all such powers by the company and took their several interests wholly subject thereto.

The strained construction thus sought to be placed on the contract overlooks the fact that a new relationship with respect to the properties and their ownership was created by the contract, and that it is with respect to such relationship that the power and authority in question was entrusted to the company. Whether the company, under the new relationship, retained, or acquired, the power and authority to develop the properties for the joint benefit of the owners, is immaterial. The fact remains that the sole power, and the consequent duty, rested upon the company to develop the properties and market the oil under the limitations, and upon the conditions, prescribed in the contract. No reason is apparent why the owners are not bound by the contract to the extent it is within such limitations and conditions, notwithstanding the service is to be rendered by one of the owners of the properties. Looking through form to substance, the following statement of Chief Justice Phillips in Sergeant v. Goldsmith Dry Goods Co., 110 Tex. 482, 221 S.W. 259, 261, 10 A.L.R. 742, is applicable: “As to third persons, they [members of the association] are * * * liable as other principals are liable who deal with third persons through any form of agency. As between themselves, they are liable as their contracts with each other make them liable. * * * ” (Italics ours.)

In view of the conclusion that nothing is disclosed in the allegations of plaintiff’s petition which would prohibit the company from employing plaintiff to render the personal service contracted for, it is not necessary prior to a trial on the merits, to determine whether the allegations of the petition are such as to show that a mining partnership exists between the joint owners of the lease. There is no question, at least at this stage of the proceedings, involving claims of general creditors.

It is stated in the opinion upon rehearing also that, in view of the allegations of paragraph 5 that “plaintiff agreed to use his best efforts to bring about the building of a refinery * * [121 S. W.2d 385] and those contained in paragraph 8, supra, the pleadings do not speak upon the question of whether the contract provides that the obligation of the company to compensate plaintiff is “whol-

ly contingent upon the success of his best efforts.” The further allegation of paragraph 5 just referred to is that there was an express agreement between plaintiff and the company for his employment “to procure the building of said refinery and the resulting sale of oil to it upon the property of the defendants(Italics ours.)

The contract involved must be considered as a whole, and all of its provisions must be construed together in order to ascertain its meaning and effect. 10 Tex.Jur. pp. 282-284.

In construing a pleading as against a general demurrer the language should be construed in favor of the pleader, indulging every reasonable intendment in his favor.

Having in mind the above stated rules applicable in the construction of contracts and pleadings, respectively, rather than the test sought to be applied by the Court of Civil Appeals, the petition alleges a cause of action; to wit, substantially, that he was employed by the company on behalf of the owners to procure the building of a refinery, and, in addition to using “his best efforts,” was “to procure the building of the refinery and the resulting sale of oil.” The aver-ments in question are not necessarily either contradictory or inconsistent, and are therefore not subject to a general demurrer. Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031. In other words the respective allegations do not falsify themselves. They could probably have been rendered more definite and certain by amendment filed in response to a proper ruling upon special exception, but that procedure was not followed.

The Court of Civil Appeals says in concluding its opinion upon rehearing that the petition “by its allegations showed no right to recover any sum which can be said to be within the jurisdiction of the court.”

This holding is erroneous, and is contrary to the holding in the Colbert case, 129 Tex. 235, 102 S.W.2d at page 1033, par. (1-3), supra.

The judgment of the Court of Civil Appeals affirming that of the trial court is reversed and the cause is remanded.

Opinion adopted by the Supreme Court.