text:
    MILLS-DEWITT CO. v. BRAZORIA COUNTY.
    No. 10977.
    Court of Civil Appeals of Texas. Galveston.
    April 25, 1940.
    Rehearing Denied Aug. 1, 1940.
    George M. Feild, of Dallas, for appellant.
    Robert M. Lyles, A. R. Rucks, and Carlos B. Masterson, all of Angleton, for appellee.
   GRAVES, Justice.

■ This appeal is from a judgment of the district court of Brazoria County sitting without a jury, sustaining a general demurrer (together with several special exceptions) to the appellant’s trial petition and dismissing its suit, wherein it sought to recover a 33⅛ per cent interest in delinquent tax collections of approximately $220,000, alleged to .have been realized by the appel-lee under the terms of a written contract ibetween the parties, dated June 17 of 1929; a substantial copy of such petition (along with the contract appellant declared upon and made a part of the pleading) is appended hereto as an exhibit.

Since the periods of time prescribed in the contract for the performance of the different classes of undertakings of the appel-Tant had, as per its affirmative declarations, all expired more than four years before this suit thereon was filed on the 22nd day of February of. 1939, hence that the action was barred by R.S. Article 5527, the correctness of the judgment so dismissing the cause depends upon whether or not the petition states a good cause of action, as upon either a waiver of the times of performance of appellant’s obligation so expressed, or a valid renewal by the parties of the contract embodying them, after the expirations of such original dates.

In other words, since it so expressly appears from the pleadings that none of ■appellant’s undertakings were completed -within the dates provided therefor in the -face of the contract, and that the parties, so recognizing, undertook by agreements in November of 1930, as well as in June and December, respectively, of 1931, to extend the times of such performance, so as to constitute -a continuing or renewed agreement that would be valid notwithstanding the provisions of Vernon’s Ann.Civ.St. Article 7335a, which was passed in 1930, and Article 7264a, which was passed in 1931.

This court concludes that the learned trial court was correct:

(1) In that it affirmatively appears from the face of the petition that the prerequisites to the formation or reinstatement of a valid contract, whether considered as in waiver or renewal of the provisions of the original one, were wanting; that is, it expressly appears upon the face thereof that this was, plainly, a contract “in connection with the collection of delinquent taxes”, within the terms of Articles 7335a and 7264a, supra, hence the efforts in November of 1930 and June and December of 1931 to resuscitate them- — after they had so become functus officio by their own terms • — were in direct contravention of the terms of those statutes, hence were abortive;

(2) In that, by its original terms, the appellant was to receive for its services 33⅛ per cent of all delinquent taxes collected for the period from 1885 to February 1 of 1929;

(3) In that, the time of performance was of the essence of the original contract, as per expressed specifications thereof in. its paragraph X- — that is, that appellant was strictly obligated not .only to complete its work on or before 18 .months after June 17 of 1929, but that likewise all suits had to be prosecuted to final -judgment within three years after the expiration of such 18 -months, and that in haec verba, "all interests of second party in any suits, or collections, not concluded within such period of three years from scud 18 months shall .be forfeited and this contract shall be absolutely terminated ,on and from said, .date";

(4) In that, the express terms of cited Article 7335a render such efforts to waive the time of performance or renew the obligation after its expiration, void, on two .counts: (a) The compensation was more than twice the 15% therein specified as a maximum charge, and (b) neither the Comptroller nor the Attorney General of the State had approved any of them;

(5) Neither did subsequent R.S. Article 7264a retrieve this black-out for appellant in any respect, because, by its express terms, it was “not intended to change any law now in effect regarding the collection of delinquent taxes”; these two statutes were reviewed by this court in Marquart v. Harris County, 117 S.W.2d 494, at page 502, column 1, paragraph (2), in an analogous' situation in this respect and given the effect here applied to them.

(5) There was no implied basis in the original contract for any subsequent waiver of the time for performance or renewal thereof after expiration of the specified time, because of the clear implication — as indicated supra — that the -parties had no such contingencies in mind, rather that they were contracting upon and fixing the time of duration, from their understanding, as being of its essence;

Furthermore, there seems no doubt that each of these so-called “waivers” of time, or renewals of the agreement, were attended by appellant’s' new agreement to do additional work by bringing the maps, plats, and abstracts and indexes down to the new dates indicated as considerations therefor; this could, in effect,. amount to nothing other than an attempt to renew such contracts after they had expired by a 'pre-existing law1 and after R.S. Articles 7335a and 7264a had expressly prohibited them. Wherefore, appellant’s finespun distinction that it “claims no renewal agreement, merely waiver of dates fixed for completion”, would seem to this court to be inept.

So that, it is thought, a close scrutiny of the petition will disclose, aside from mere conclusions of law, no averment of any waivers of or extensions of time, or of renewals of the obligations of the contract, except those that had their origin after the effective date of R.S. Article 7335a — that is, after February 17 of 1930. The additional work appellant was to do under the “waivers”, as it termed them, or the attempted renewals, as appellee termed them, of the original contract, are set out in paragraph IV' thereof, so that no 33½ per cent of compensation therefor could have been lawful.

As concerns the collection of the Hogg taxes in particular, while the conclusions ■already stated cover this feature along with the others, it may not be amiss to add that at the time of .their collection, by the unequivocal averments of the petition, the original contract had, under its own terms, long since expired, hence appellant was then operating under one of these new extensions or a new contract, which, like all the others, had to be in compliance with R.S. Article 7335a to become valid; especially was this true as to that claim, since by sub-paragraph (c) .of paragraph X of the original contract — as herein before quoted — it had been -specifically provided that “all interest of the Second Party-in any suits, or collections, not concluded within such period of three years from said eighteen months, shall be forfeited, and this contract shall be absolutely terminated on and from said date.”

At that late date, according to the holding of the trial court, the interest of appellant in that collection for a 33⅛ per cent division thereof had ceased and could not be brought back to life without a compliance with the positive law then in effect.

Under the view that the original contract had expired, that the new efforts to waive the time of performance — or to renew the undertakings therein — all had their inception after the effective date of Article 7335a, and that this cause comes plainly within such cases as White v. McGill, 131 Tex. 231, 114 S.W.2d 860, and Marquart v. Harris County, Tex.Civ.App., 117 S.W.2d 494, an affirmance will be ordered.

Affirmed.

Exhibit

“Mills-Dewitt Company v. Brazoria County, Texas. No. 27797.

“In the District Court of Brazoria, for the 23rd Judicial District of Texas.

“To the Honorable Judge of Said Court:

“Now comes Mills-DeWitt Company, a Corporation, duly organized and incorporated under the laws of the State of Texas, and having its domicile and principal place of business in Bexar County, Texas, hereinafter called Plaintiff, leave of the Court having been first had and obtained and files this its First Amended Original Petition, in lieu of its Original Petition filed herein on the 22nd day of February, 1939, and complaining of Brazoria County, Texas, a body corporate and politic, having as its County Judge O. K. Phillips, upon whom service of process herein has already been had; and for cause of action states:

“1. Plaintiff states that .under date of June 17, 1929, Mills-DeWitt Company entered into a written contract with defendant, Brazoria County, Texas, copy of which contract is hereto attached as an exhibit, marked Exhibit ‘A’ and made a part of this First Amended Petition, the same as if written herein in full. Plaintiff states that said contract is spread upon the minutes of the Commissioners’ Court of Brazoria County, Texas, in Vol. P, page 268, et seq., of said minutes, and defendant is notified to produce the same upon the trial of this cause to be read in evidence on behalf of plaintiff, and unless ‘same is produced secondary evidence of the same will be introduced. Defendant is further notified to produce upon the trial hereof the surety bond executed by plaintiff with Detroit Fidelity & Surety Company as surety to guarantee the performance of said contract, together with the order of the Commissioners’ Court of date July 8, 1929, approving said bond and directing plaintiff to proceed with the performance of said contract, recorded in Vol. P, page 276, minutes of the Commissioners’ Court of Brazoria County, to be used as evidence on behalf of plaintiff, and unless the same is produced secondary evidence of the same will be introduced. Plaintiff states that under the terms of said contract defendant employed plaintiff to make and install complete Plat Book System for Brazoria County, Texas, to build a wall map of Brazoria County, Texas, and make copies of the same for the use of the County Judge, the County Tax Collector, the County Superintendent of Public Instruction, the County Tax Assessor, and the County Clerk, to furnish a wall map of each City, town or village in said county, of which there should be an original and three copies, to make a block map of each and every head-right survey in said county, drawn to such scale as would properly show the subject matter, with one or more surveys on each page, to show the name of the survey mapped, and names of the surveys surrounding and touching the same, the abstract number of said survey, number of acres in said survey, the number of acres subject to taxation, the number of acres transferred to some other taxing district for taxation purposes, the number of acres of non-taxable lands in the survey mapped, show the individual tracts in each number and the number of acres in each tract and numbered from 1 up consecutively for identification, with the names of the owners on the title sheet, show the public roads-, churches, schools, parks and other public ownerships, as well as railroads, with the number of acres taken up by each; to make a block map of each city, town or village with not more than twenty blocks of residence property or not more than ten blocks of business property shown on each block map page, drawn to scale with the required distance and direction of each lot or tract shown, show the name of the town, addition, block number and lot number, show the streets, alleys, churches, schools, parks and other public ownerships; make a complete abstract of property assessed or unknown and unrendered upon which taxes are delinquent for the purposes of taxation; prepare a complete consolidated tax roll; prepare a consolidated delinquent tax notice, showing all taxes due or shown to be due on consolidated tax rolls; together with other services, as are more fully shown in the copy of such contract attached hereto and marked Exhibit ‘A’ and made a part hereof, to which reference is here made for full description of the services above enumerated.

“2. Plaintiff stated that said contract provides in paragraph XI thereof that for and in consideration of the skilled services and technical knowledge required to be employed by said Mills-DeWitt Company in the preparation of said Plat Book System, and abstracts and of the obligations devolving upon it under said contract, said Mills-DeWitt Company should receive and be paid by Brazoria County, Texas, thirty-three and one-third per cent (33⅝%) of all delinquent taxes, penalties and interest of every character whatsoever, including State, County, School, Road, and other Districts, as fully shown in said contract, copy of which is marked Exhibit ‘A’ and made a part hereof.

“3. Plaintiff states that it commenced performance of the work required by the terms of said contract, and that soon thereafter the State of Texas refused to recognize said contract and declined to permit the payment to plaintiff of the 33⅝ per cent of the State’s portion of said delinquent taxes, and claimed that said contract was invalid. The County Attorney of Brazoria County recommended that the Commissioners’ Court of Brazoria County stop the work under the contract until the legality was finally determined by the court. It thereupon became necessary for plaintiff to have a mandamus suit brought in the Supreme Court of Texas to establish the validity of said contract and require the State of Texas to permit payment to plaintiff by defendant of the 33⅛ per cent of the State’s portion of the delinquent taxes collected, which said mandamus suit was not finally determined until on or about the 10th day of June, 1931; which said facts materially hindered and delayed plaintiff in the prosecution of said work.

“4. Plaintiff states that said contract provided in Paragraph XIII that said work should be completed on or before eighteen months after the date of the same except as provided in Section 3 of Paragraph X of said contract. That the date of the expiration of said eighteen months period was December 17, 1930. The third section of said Paragraph X of said contract provided that all suits pending on the docket of the District Court of Brazoria County, Texas, at the termination of the eighteen months period of said contract should be prosecuted to a final judgment in the District Court of Brazoria County, Texas, within a period of three (3) years after the eighteen months period of the contract, and all interest of the plaintiff in any suits or collections not concluded within such period of three years from said eighteen months should be forfeited and the contract terminated on and from said date. Plaintiff states that in the month of November, 1930, Plaintiff and Defendant entered into an agreement to extend the time for the completion of said contract to the 15th of June, 1931. That by the terms of such agreement Plaintiff was to keep the map, plat and abstract work indexed down to June 15, 1931. That thereafter the Commissioners’ Court of Brazoria County entered an order as of the 10th day of November, 1930, evidencing such agreement, which said order is recorded in Vol. P, page 564, Minutes of the Commissioners’ Court of Brazoria County, and said defendant is here notified to produce the same to be read in evidence upon the trial of this cause on behalf of plaintiff, otherwise secondary evidence of the same will be introduced. Plaintiff states that in the month of June, and prior to the 15th day thereof, plaintiff and defendant entered into an agreement for an extension of time in the performance of said contract until December 15, 1931, which agreement provided Mills-DeWitt Company bring down to date of December 15, 1931, the plat of block books. That under date of November 9, 1931, the Commissioners’ Court of Brazoria County entered an order extending the time for the completion of said contract to December 15, 1931, as of and from the date of June 8, 1931, and providing that said contract and the performance bond should be and the same remain in full force and effect, which said order is a part of the records of and in possession of the defendant, and recorded in Vol. Q, page 121,' Minutes of the Commissioners’ Court of Brazoria County, and said defendant is here notified to produce the same', to he read in evidence upon the trial of this cause on' behalf of plaintiff, otherwise secondary evidence of the same will he introduced. Plaintiff states that in the month of December, 1931, plaintiff and defendant entered into an agreement to further extend the time for the completion of said contract, without naming a definite time for the final completion of the same, in consideration of plaintiff bringing the plat books down to date of the final completion of the contract, which said agreement provided that said extension of time, should apply to the provisions of the third section of Paragraph X of said contract, so that the three year period provided for the prosecution to final judgment in the District Court of Brazoria County’ of suits for the collection of delinquent taxes, penalties and interest, and for the conclusion of collections of said delinquent taxes, penalties and interest, should run from the final completion and acceptance of the work under said contract. Plaintiff states that by agreement between plaintiff and defendant no order was made upon the record of the Commissioners’ Court evidencing such agreement. Plaintiff further states- that after such agreement was made and entered into both plaintiff and- defendant continued to treat said contract as in full force and effect and to recognize the validity and binding force of the same, and as of the 30th day of December, 1931, the Commissioners’. Court entered of record upon its minutes, in Vol. Q, page 134, a 'request to plaintiff to retain George Livingston to complete the map work being done for the County under said contract, which said notation of request is a part of the records of and in possession of defendant, and notice is hereby given to produce the-same upon the trial hereof, to be used in evidence by plaintiff, and unless the same is produced secondary evidence of the same will be introduced. Plaintiff states that thereafter both plaintiff and defendant continued to carry out the terms of said contract and recognized the validity and-binding force of the same, and as of- the 8th day of July, 1932, the Commissioners’ Court of Brazoria County recognized’ its said agreement to extend the time for the performance of said contract by entering upon its minutes in Book Q, page 202, a request to ’plaintiff to complete the performance of the work required of it under said contract, which said request is a part of the records of and in possession of defendant, and defendant is hereby notified to produce the same upon the trial of this cause, to be used in evidence on behalf of plaintiff, and unless the same is produced secondary evidence of the same will be introduced. Both parties continued to treat said contract as extended in full force, and plaintiff states that both plaintiff and defendant continued to carry out the terms of said contract and recognized the validity of said contract and the continuance of the same in full force and effect, and as of the 27th day of February, 1933,, the Commissioners’ Court entered an order in Vol. Q, page 247, of the minutes of the Commissioners’ Court of Brazoria County, which said order accepted the work performed by plaintiff under said contract as in full compliance with the terms and specifications thereof, and declared said contract fully complied with according to plans and specifications, and discharged and released the Detroit Fidelity & Surety Company, and declared null and void the obligations contained in the bond executed by said Company as surety for the performance of said contract, and ordered the payment to plaintiff of the retained percentage under said contract, which said order is a part of the records of and in possession of defendant, and defendant is hereby notified to produce the same upon trial of said cause, to be used in evidence on behalf of the plaintiff, and unless the same is produced secondary evidence of the contents thereof will be introduced. Plaintiff states that by such orders herein-above set forth, and by the agreements hereinabove set forth, defendant recognized the validity and binding force and effect of said contract and extended, substituted and waived the time originally provided ’therein for the performance thereof, so that the date for the performance of said contract was amended, substituted, changed and waived so as to read February’ 27, 1933, as the date for the completion of said contract, and February 27, 1933, as. the date for the commencement of the three-year period set forth in the third section of Paragraph X of said contract providing for the prosecution to final judgment in the District Court of Brazoria County of all suits for the collection of delinquent taxes within a period of three years, and the conclusion of collections of delinquent taxes within such period of three years. Plaintiff states that it fully completed all the work described in said contract and defendant accepted said work as fully completed and in full compliance with all the terms of said contract. Plaintiff did and completed every item of work required of it under said contract.

“5. Plaintiff states that during the progress of its work under said contract it prepared for filing and presented to the county attorney for signature, in compliance with the provisions of said contract requiring it to assist the officers of Bra-zoria County, cause No. 23959, styled The State of Texas v. W. C. Hogg et al., on the docket of the 23rd District Court of Brazoria County, for the collection of delinquent taxes for the years 1928 and 1929, which suit was filed on or about the 2nd day of June, 1930. Plaintiff states that at the time of said cause No. 23959 there was upon the docket of said court cause No. 22151, styled W. C. Hogg et al. v. George W. Sheffield, Tax Collector, which said cause was on appeal. That the County Attorney of Brazoria County entered into an agreement with attorneys for plaintiffs in cause No. 22151 that cause No. 23959 should be passed to await final disposition of the appeal in -said cause No. 22151, and that said cause No. 23959, together with any other taxes that -might have become delinquent, should abide the disposition of the appeal in said cause, No. 22151, which said agreement operated as a waiver of the time fixed in the contract between plaintiff and defendant for taking judgment in the District Court of Brazoria County, the concluding collections of delinquent taxes. Plaintiff further states that it repeatedly requested defendant to be permitted to prosecute cause No. 23959 to final judgment, but that defendant refused to permit said cause No. 23959 to be .prosecuted to final judgment because of the agreement above mentioned that said cause should be continued to await final disposition of cause No. 22151. That said refusal to permit plaintiff to prosecute said cause No. 23959 to final judgment operated as a waiver of the time fixed in said contract between plaintiff and defendant fixing the three year limit in which suits for the collection of delinquent taxes should be prosecuted to final judgment in the District Court of Brazoria County, Texas. Plaintiff states that the appeal in said cause No. 22151 was finally decided in February or March of 1935 by the Supreme Court of Texas against the plaintiffs in said cause, and that pursuant to the agreement herein-above mentioned with reference to cause No. 23959 judgment was entered on the 12th day of March, 1935, against the defendants in said cause No. 23959, and on or about the 15th day of March, 1935, Hogg Estate, defendants in said cause No. 23959, paid to defendant herein delinquent taxes for the year 1928, approximately the sum of $17,500.00, and on or about the said date paid to the defendant herein - delinquent taxes ' for the year 1929, approximately the sum of $20,000.00. Plaintiff states that on or about said date defendants Hogg Estate paid to defendant herein delinquent taxes for the year 1927,. in approximately the sum of $34,175, pursuant to the judgment rendered in said cause No. 22151. Plaintiff states that on or about said date the said Hogg Estate paid to defendant herein delinquent taxes for the years 1930, 1931, and 1932, in approximately the sum of $49,121.00. Plaintiff states that the exact amount of each of said collections of delinquent taxes is unknown to plaintiff but well known to defendant. Plaintiff states that under the terms of the contract between plaintiff and defendant defendant should have paid to plaintiff 33½ per cent, of said amounts so collected, but that, though plaintiff has made repeated requests for such payment, defendant has failed and refused to pay the same or any part thereof. Plaintiff further states that in addition to the sums hereinabove set forth paid by the Hogg Estate to defendant, various other sums of delinquent taxes have been paid to defendant in various amounts, unknown to plaintiff but well known to the defendant, which said further payments bring the total, including the payments made by the Hogg Estate, to approximately the sum of $220,224.89, the exact amount of which is unknown to the plaintiff but well known to defendant, and on all of • which sums so collected said defendant should have paid to plaintiff 33½ per cent, but though often requested, said defendant has failed and refused to pay the same or any part thereof, to plaintiff’s damage in the sum of $75,000.00.

“6. Plaintiff states that the records showing delinquent tax collections are in the possession of defendant,' and plaintiff hereby demands that defendant produce at the trial hereof the original records showing the amount of delinquent taxes collected by defendant between the 27th day of February, 1933, and the 26th day of February, 1936, for the years 1885 to 1932, inclusive, and notice is hereby given that unless such records are produced plaintiff will offer secondary evidence to establish, the contents thereof.

“7. Plaintiff states that the contract between plaintiff and defendant herein-above described and attached hereto and marked Exhibit ‘A’ and dated June 17, 1929, together with the bond to guarantee the performance of said contract, dated July 1, 1929, and executed by plaintiff as principal and Detroit Fidelity & Surety Company as surety, and the resolutions of the Commissioners’ Court of Brazoria County with reference to said contract dated July 8, 1929, November 10, 1930, November 9, 1931, December 30, 1931,- August 8, 1932, and February 27, 1933, are all a part of the records of defendant and are in possession of defendant, and defendant is hereby notified to produce said original contract and resolutions and the record of each of the same upon the trial of this cause, to be used in evidence on behalf of the plaintiff, and that unless said contract and resolutions and the record of each of the same are produced upon the trial hereof, secondary evidence to establish the contents of the same will be introduced.

“8. Plaintiff states that its cause of action herein was presented in the form of a claim to the Commissioners’ Court of Brazoria County, Texas, in December, 1935, for allowance, and that said Court failed and refused to audit and allow the same or any part thereof and rejected said claim in whole by order as of the 13th day of January, 1938, entered in Vol. R, page 92, Minutes of the Commissioners’ Court of Brazoria County, Texas, and defendant is notified to produce said original claim and said original order, and said record thereof, on the trial of this cause, to be used in evidence on behalf of plaintiff, and that unless said claim, said order and repord thereof are produced, secondary evidence of the same will be introduced.

“9. Plaintiff states that it carried out said contract with defendant at a cost to plaintiff of more than $20,000.00 in excess of the compensation paid therefor by defendant to plaintiff, and that it is unconscionable and inequitable for defendant to withhold from plaintiff the 33½ per cent of the delinquent taxes, interest and penalties collected by defendant since the 27th day of February, 1933, and prior to February 26, 1936, for the years 1885 to ,1932, inclusive.

, “10. Wherefore, plaintiff prays that the defendant, having heretofore been cited and having heretofore answered herein, be directed to account for all delinquent taxes, penalties and interest collected by it between February 27, 1933, and February 26, 1936, for the years 1885 to 1932, inclusive, and that defendant be decreed to pay plaintiff such amount as shown upon said account to be due from defendant to plaintiff, and that plaintiff have judgment against defendant for said sum, interest and costs, and for all such other relief, at law, or in equity, to which it may be justly entitled.

“George M. Feild,

“Attorney for Plaintiff..

“322 Wilson Building,

“Dallas, Texas.

“State of Texas, County of Bexar.

“R. C. Booton, being first duly sworn, on his oath states that he is Vice President of Mills-DeWitt Company, plaintiff herein; that he has read the foregoing First Amended Original Petition and knows the contents thereof, and that the facts stated therein are true to the best of his knowledge and belief.

“R. C. Booton

“Sworn to and subscribed before me, this 5 day of July, 1939.

“Martha B. Jones,

“Notary Public, Bexar County.

“Exhibit ‘A’

“The State of Texas, County of Brazoria.

“This agreement made this 17 day of June, A.D.1929, by and between Brazoria County, Texas, acting herein by and through its County Judge and Commissioners’ Court, hereinafter styled First Party, and Mills-DeWitt Company, a corporation, organized and existing under and by virtue of the laws of the State of Texas, acting herein by and through its Vice-President, R. B. DeWitt, thereunto duly authorizéd, hereinafter styled Second Party, witness-eth:

“I. First Party agrees to employ and does hereby employ Second Party to make and install a complete plat book system for Brazoria County, Texas, showing each and every tract, lot or parcel of land in Bra-zoria County, Texas, with descriptions thereof, said plat book to have each and every tract, lot or parcel of land numbered according to abstract numbers now existing or other designations and to show the contents of each and every tract, lot or parcel of land, and the record owner of same, on January 1st, next preceding completion of said contract.

“II. There shall be built a wall map of Brazoria County, Texas, which shall show each tract of land in said County (outside of villages and towns) with the name of the owner thereof printed on the same, the number of acres in each tract; the name and abstract number of each survey; it shall show the railroads, rivers, and other boundaries. The same shall be drawn to scale, and shall be built in a clean workmanlike manner. The scale of which the same is to be drawn shall be such as will plainly show the subject matter of said map. Said map shall show the Public Roads, Churches, Schools, Public Parks, Cemeteries, and other public ownerships.

“For the use of the County Judge, there shall be a copy of said map made, which shall have outlined in distinctive coloring the boundaries of the various Road Districts and Commissioners’ Precincts.

“For the use of the County Tax Collector there shall be a copy of said map which shall have outlined in distinctive coloring the boundaries of the various voting precincts in said County.

“For the use of the County Superintendent of Public Instruction, there shall be a copy of said map which shall have outlined in distinctive coloring the boundaries of the various School Districts in said County.

“For the use of the County Tax Assessor there shall be furnished a copy of said map which shall have outlined in distinctive coloring the boundaries of the various school districts and the various sub-divisions on which individual taxes are levied.

“For the use of the County Clerk there shall be furnished a copy of said map which shall have outlined in distinctive coloring the boundaries of the Justices’ Precincts and Commissioners’ Precincts of said County.

“III. There shall be furnished a wall map of each City, Town or village in said county, which shall show the lot and block, name of addition, the streets, alleys, and city limits and showing the location of all churches, schools, parks and other public ownerships. The same shall be drawn to scale and shall be built in a clean workmanlike manner. The scale on which the same is to be di;awn shall be such as will plainly show the subject matter of said map.

“There shall be the original and three copies of each map furnished.

“IV. A block map shall be made of each and every headright survey in said County. They shall be drawn to such a scale as will properly show the subject matter of such map, with one or more surveys shown on each page of said Map Book. Said map of each headright survey shall show the name of the survey mapped, the names of the surveys surrounding and touching the surveys mapped; the abstract number of said survey, the number of acres in said survey, the number of acres subject to taxation; the number of acres transferred • to some other taxing district for taxation purposes (viz.) towns and additions to cities, and the number of acres of nontaxable lands in the survey mapped.; said map shall show the individual tracts in each number and the number of acres in each tract; (he tract shall be numbered from one up consecutively for the purpose of identifying the said tracts with the names of the owners on the Title Sheet to said survey as hereinafter shown. Said Map shall give the record course and distance o.f each tract on said survey being mapped. It shall show what School District, Road District and other individual taxable districts in which said survey is situated and where a line divides a tract shall show the number of acres inside and outside of said districts. It shall show the Public Roads, Churches, Schools, parks and other public ownerships, as well as Railroads, with the number of acres taken up by each. On large surveys, where necessary to do so, two or more map sheets may be used for each survey. Each survey map shall be on the right hand side of the open book.

“With reference to all the foregoing maps herein mentioned it is agreed that Second Party may reserve its copyrights, for its own use and benefit as against all parties except First Party, which shall at all times have the right of duplication of any map herein mentioned, for the exclusive use of any county officers or employees in the conduct of County business only.

“V. A title sheet shall be prepared which bears the same page number as the Block Map of the survey of which it is the title sheet. It shall be on the left hand side of the open book, and shall show the name of the survey; the abstract number thereof, and such other information as is required by the Comptroller ,of Public Accounts for Assessors Abstract Books; it shall show the name of the record owner on January 1st, preceding the date of the completion of each individual tract as shown by the Block Map for the survey, with the number of acres therein, and which said tracts shall be identified by bearing the same number as the same tract on the block map; it shall have space for the valuation of such individual tracts by the Board of Equalization.

“VI. There shall be a block map of each City, Town or Village, with not more than twenty blocks of residence property or not more than ten blocks of business property shown on each block map page; it shall be drawn to scale, with the record distance and direction of each lot or tract shown thereon; it shall show the name of the town, the name of the addition, if an addition, the block number and the number of the lot; in lots and blocks that have heretofore been plotted the original designation shall be used, and where a lot has been cut and is owned by one or more separate owners the additional designation by the use of the alphabet shall be used; it shall show the streets, alleys, churches, schools, parks and other public ownerships; it shall show by distinctive coloring which lots are exempt from taxation and for what reason. ■

“VII. A title sheet shall be prepared which shall bear the same page number as the block map of the block of which it is the title sheet. It shalhbe on the left hand side of the open book, and shall show the name of the survey, the abstract number thereof, and such other information as is required by the Comptroller of Public Accounts for Assessor’s Abstract books; it shall show the name of the record owner on January 1st, preceding the date of the completion of each lot shown on the block map for the blocks and which lot shall be identified by bearing the same number as the lot on the block map; it shall have space for the valuation of such lot for the use of the Board of Equalization. It shall show the name of the town, addition, if any, and the number of block or blocks.

“VIII. Second Party agrees to perform the above mentioned services for the First Party, and to do same in a skillful manner, for and in consideration of the payments hereinafter mentioned; that it will employ all necessary skilled help on said work, and obligates itself to furnish all labor and material and supplies of whatsoever kind or character necessary and at its own expense, to make plat of Brazoria County, Texas, showing each and every tract, block, lot or parcel of land situated therein, showing same properly numbered and showing the number of acres in each and every tract, lot or parcel of land, the record owner of the same on January 1st, preceding the completion of said plat book and descriptions thereof, all of said information to be completed as aforesaid, to be copied in a book for the Tax Assessor so that he can assess each tract by himself.

“IX. Should it become necessary in the performance and execution of the work herein required to be done, in the elimination of conflicting and over-lapping surveys, Second Party agrees to make or cause to be made a survey or surveys of any tract or tracts of land in said county; said survey or surveys to be made by competent engineers, to be furnished by Second Party/and deliver, or cause to be delivered, to the Commissioners’ Court of said County the field notes and plat thereof to the end that the same may be submitted by said Court to the General Land Office of the State of Texas for approval; to make report to the Commissioners’ Court with the necessary maps and plats, showing all lands discovered by Second Party to be excess land in surveys that have not heretofore been assessed for taxation and on which no taxes have been paid, in order that the proper officials of said County may be given appropriate directions to assess taxes against said unrendered lands and property.

“X. (a) First Party agrees to employ and does hereby employ Second Party to make a complete Abstract of property assessed or unknown and unrendered upon which taxes are delinquent for the purposes of taxation; that said Abstract shall cover all real property of every character from January 31, 1885, to and including February 1, 1929, and which shall include State, County, School, Road District and other District Taxes shown to be due and to be collected and said records shall be made to disclose all unrendered property and property the ownership of which is unknown which has heretofore escaped taxation. As a necessary part of said Abstracts, Second Party shall prepare a complete consolidated Tax Roll, or assist the Tax Collector in the preparation of same, covering the period of time to February 1, 1929, and furnish same to Brazoria County, and the same shall be prepared so as to secure the approval of the Comptroller of Public Accounts, Austin, Texas. Three copies of same shall be furnished.

; “(b) On all charges on the Delinquent' Tax Rolls that show to February 1, 1929,' to be delinquent which have been caused through errors, double renditions, etc., a memorandum shall be prepared showing how such errors came about, and which shall be sufficiently full as to justify the Commissioners’ Court in ordering a cancellation certificate issued, and that they will meet the approval of the Comptroller of Public Accounts, Austin, Texas.

“(c) Second Party shall prepare a con-fsolidated delinquent tax notice (Acts of Legislature 1923) showing all taxes due or shown to be due on consolidated delinquent tax rolls, and which shall be mailed by the Tax Collector to the delinquent tax payer. In the event the taxes, together with penalty and interest, are not paid within thirty days from the date such statements are mailed, there shall be prepared as soon as is practicable thereafter a suit for the collection of said taxes, penalties and interest which shall be prosecuted to final judgment and sale, or until said taxes are collected; and it is contracted and agreed that any and all suits pending on the docket of the District Court of Brazoria County, Texas, at the termination of the eighteen months period hereof shall be prosecuted to a final judgment in the District Court of Brazoria County, Texas, within a period of three (3) years after the eighteen months period of this contract, and all interest of the Second Party in any suits, or collections not concluded within such period of three years from said eighteen months shall be forfeited and this contract shall be absolutely terminated on and from said date.

“XI. It is further agreed that for and in consideration of the skilled services and technical knowledge required to be employed by the said Mills-DeWitt Company in the preparation of said Plat Book System, and abstracts, as herein provided, and of the obligations devolving upon it hereunder, second party is to receive and shall receive and be paid by First Party thirty-three and one-third per cent (33-⅝%) of all delinquent taxes, penalties and interest of every character whatsoever including State, County, School, Road, and other districts, which amount or per cent shall be paid in the manner following:

“At the time the Tax Collector of Bra-zoria County makes and files his monthly report of taxes collected covering the previous month, and prior to making deposit, settlement or remittance of said delinquent '•tax moneys, he' shall and is hereby instructed to' deduct therefrom thirty-three ' and. one-third per cent (33Yz%) of all delinquent taxes aforesaid and deposit same in the special fund hereinafter created which fund shall be designated ‘Abstract and Map Fund’ and which fund shall be for the sole and personal use of the said Mills-DeWitt Company, and the said Tax Collector shall in his said monthly reports from and after the date of this contract, take credit for the amounts so deposited or paid into said fund.

“During the progress of said work there shall be issued to the said Mills-DeWitt Company by the County Officers authorized to. sign same, to-wit: County Judge, County Clerk, County'Treasurer and County Auditor, warrants against and payable out of said fund in installments of not to exceed one and one-half per cent (1 ½%) of the total amount of collectable delinquent taxes now outstanding and as shown in consolidated delinquent tax roll to be prepared by Second Party and further that the total amount of warrants issued under this contract shall not exceed forty thousand dollars ($40,000.00). Prior to the issuance and delivery to second party of the foregoing warrants second party shall file with the County Auditor and Commissioners’ Court of Brazoria County, Texas, an itemized statement, showing the total expenses covering labor, material and supplies from time to time, as and when Second Party may request the issuance of warrants and which itemized statement shall at all times be filed before warrants for the amounts shown by said statement shall be issued.

“Said warrants shall be non-interest bearing, shall be dated the date of their delivery and shall be paid only as and when there is sufficient money in said fund to pay same. Said warrants shall be issued to the said Mills-DeWitt Company as follows : At the first regular term of the Commissioners’ Court following the date hereof, and on the second Monday of each month thereafter, during the life of this contract, there shall be issued and delivered to them warrants in an amount not to exceed one and one-half per cent (1 ⅞%) of the total amount of the delinquent taxes, penalties and interest shown to be due on the consolidated delinquent tax. rolls to be prepared by Second Party reflecting the correct ' amount of delinquent taxes, penalties and interest then due, until warrants in an amount equal to fifteen per cent (15%) of the total amount of all delinquent taxes, penalties and interest of every character, shown on said consolidated delinquent tax rolls shall have been so delivered.

“When and after said warrants, in an amount not to exceed $40,000.00 as herein provided shall have been delivered and a sufficient amount of delinquent taxes, penalties and interest shall have been collected and paid into said fund to redeem said $40,000.00 then and thereafter twenty-three and one-third per cent (23½%) of any and all delinquent taxes, penalties and interest collected by the Tax Collector shall be by him paid to said Mills-DeWitt Company in cash, monthly as and when said collections are made. The ten per cent retained percentage is to be paid upon final completion and acceptance of job.

“XII. First Party is obligated hereunder to do and perform every official act and thing necessary and required of it by law or that which it is its contractual duty to do, in the collection of all delinquent taxes as provided herein and said obligation and duty and the performance thereof by First Party is of the essence of this contract, and is the consideration moving Second Party to the performance of its obligations hereunder ; and to that end First Party will, on the day of the signing of this agreement, issue and give notice to the County or District Attorney of Brazoria County, Texas, to file delinquent tax suits against all persons, individuals, associations and corporations owning property on which the taxes are delinquent, and upon his failure or refusal to file and prosecute such suits to judgment, then an attorney to be designated by Second Party, employed to file and prosecute said suits to judgment and collection. The expenses incident to the employment of said attorney shall be borne by Second Party.

“XIII. Second Party obligates itself to begin said work at once and to complete same on or before eighteen (18) months after date hereof, except as provided in section 3 of Paragraph X hereof.

“XIV. First Party agrees and is obligated to pass all necessary proceedings, orders, and resolutions to make this contract legal, and to appropriate and set aside thirty-three and one-third per cent (33-}i%) of said delinquent taxes, penalties and interest of every character , collected, for the purpose of paying principal of said warrants as same accumulates, that such orders, and proceedings making provisions for payment of principal of said warrants will be adopted by the Commissioners’ Court of Brazoria County, Texas, and at said time said Court will ratify this contract.

“XV. It is further agreed by and between the said parties hereto that First Party shall furnish to the Second Party sufficient office room or space in which to work in the preparation of said book or books; and accessability to and use of proper and appropriate records in said County, in so far as said County has possession and control of said records, in the compilation of data therefor; and that Second Party is obligated to furnish stationery and printing necessary for the completion of said contract, including permanent plat book or books and map or maps contracted to be furnished herein, of a quality satisfactory to the Commissioners’ Court of Brazoria County, Texas.

“Second Party agrees to furnish First Party, within fifteen (15) days after the execution hereof, a good and sufficient surety bond payable to the County Judge of Brazoria'County, Texas, and his successors in office, in the sum of Twenty-Five Thousand Dollars ($25,000.00), conditioned on the faithful performance of this contract by Second Party.

“Witness our hands in duplicate originals this the 17 day of June, A.D.1929.

“Brazoria County, Texas,

“By Scott Gaines, County Judge.

“Neal Giesecke,

“Commissioner Precinct No. 1.

“E. H. Mays,

“Commissioner Precinct No. 2.

“C. W. Massey,

“Commissioner Precinct No. 3.

“F. LeRibeus/

“Commissioner Precinct No. 4.

“Attest:

“W. R. Bratton (Seal),

“County Clerk of Brazoria County, Texas, First Party.

“Mills-DeWitt Company Second Party

“(Seal) By R. B. DeWitt, President.

“Attest:

“Austin Y. Bryan, Jr.,

“Ass’t Secretary!”


source: Caselaw Access Project

author: STOKES, Justice.

license: Public Domain

text:
    BETHEL et ux. v. YEARWOOD et al.
    No. 5181.
    Court of Civil Appeals of Texas. Amarillo.
    June 24, 1940.
    Rehearing Denied Sept. 3, 1940.
    Williams & Bell, of Childress, for appellants.
    J. Farris Fish, of Matador, for appellees.
   STOKES, Justice.

This is an appeal from a judgment of the district court declaring null and void the last will and testament of Mrs. M. E. Cooper, deceased, and denying the application of appellant, Ray Bethel, to probate the same. D. H. Cooper and his wife, Mrs. M. E. Cooper, owned a section of land consisting of 640 acres located in Motley County. D. H. Cooper died intestate on the 22nd of May, 1938, and his wife, Mrs. M. E. Cooper, died on the 15th of December, 1938, leaving as her last will and testament the instrument involved in this suit. Appellant, Ray Bethel, is a grandson of the decedents, his mother, who was their daughter, having preceded her parents in death, and the appellees, Mrs. Ros.a Yearwood and Mrs. M. M. Barton, are the surviving children, the other appellees being grandchildren, the parents of such grandchildren having died prior to the death of D. H. Cooper and his wife. The record -shows that Mrs. Year-wood and her husband, B. F. Yearwood, are residents of Hale County, and Mrs. Barton and her husband are residents of Donley County. D. H. Cooper and his wife occupied the section of land in Motley County as a homestead many years prior to their death, and at intervals during a number of years prior to their death, the appellant, Ray Bethel, with his family, occupied and cultivated a portion of the section of land as a tenant of his grandfather, D. H. Cooper. A few days after the death of D. H. Cooper, appellant, with his wife and two children, moved into the Cooper home and thereafter occupied it with the grandmother who was at that time seventy-nine years of age. He was appointed administrator of the estate of his deceased grandfather and continued to cultivate a portion of the land and assist his grandmother in managing the affairs of the farm.

On or about the 26th of October, 1938, Mrs. Cooper executed the last will and testament in question in which she bequeathed to appellant, Ray Bethel, all of her property .of every kind and character, whether real or personal, and wherever situated, stating in the will that the property which she owned consisted of her undivided one-half interest in the community estate of D, H. Cooper, deceased, and herself. She also appointed appellant as sole executor of the will and directed that he be not required to give bond as such. Within a few days after his grandmother’s death, appellant filed the will in the county court, together with his application to probate the same, and immediately a controversy arose between appellant, Ray Bethel, and some of the other heirs over the question of its validity. As a result of the controversy, a written contract was made and signed by Bethel and Mrs. Yearwood, Mrs. Barton and Geo. H. Gilley, another grandson, which provided that the will should be can-celled, held for naught, and thereafter be null and void and of no force or effect and appellant agreed to dismiss his application to probate the same. The contract further provided that all of the estate of Mrs. M. E. Cooper, deceased, should pass and descend in accordance with the laws of descent and distribution of the State of Texas.

The contract was entered into in the office of the attorney for appellees, appellant being present in person and also accompanied by his counsel, and it was understood between all of them that the application to probate the will would at once be dismissed. Appellant’s counsel overlooked the matter of dismissing the application for some ten days or two weeks, but immediately after he did so and had returned to his office, appellant came to his attorney’s office and informed the latter that he had decided to pursue the application and desired that it -be not dismissed. His counsel thereupon declined further to represent appellant and he procured other counsel to represent him in the matter. Thereafter appellees filed the contest which constitutes the substance of the case now before us and in which they alleged that the testatrix, Mrs. M. E. Cooper, did not have sufficient mental capacity to know and understand the effect of the will at the time she executed the same, and that it was signed' and executed by her only because of undue influence exerted upon her by appellant. They alleged that appellant lived in the same house with the testatrix; that he pampered her and had misappropriated money and property belonging to the estate of D. H. Cooper, of which he was administrator, for the purpose of influencing and pleasing her so that she would make her last will and testament in accordance with his desire. They alleged that at the time of executing the will Mrs. Cooper was decrepit and infirm, both in mind and in body; that she knew practically nothing about handling business affairs; that she did not know the effect of the instrument executed by her, but had executed the same solely because of undue influence exerted upon her by appellant at the time of and immediately preceding its execution, and that she would not have executed the will but for the undue influence exerted upon her by appellant. Ap-pellees further contested the application upon the ground, as alleged by them, that the contract mentioned above had been executed by appellant and some of the heirs and prayed that the application to probate the will be denied; that the will be declared null and void, and for costs and general relief.

Appellant answered the contest by general and special exceptions, general denial, and other allegations not necessary to detail here.

Eula Bethel, the wife of Ray Bethel, filed a plea of intervention in the case, alleging that she was interested in the subject matter and a necessary party thereto because she was the wife of Ray Bethel and was such on the date of the death of Mrs. M. E. Cooper, and that long prior to Mrs. Cooper’s death, and at all intervening times, she and her husband and children resided, and still resided, upon the west portion of the section of land involved, and that by reason of the will and the death of Mrs. M. E. Cooper and her relationship as the wife of the beneficiary, Ray Bethel, and their residence upon the land, she had acquired a homestead right and interest therein and that it was necessary that the will of Mrs. M. E. Cooper be admitted to probate as a muniment of title to the in-tervenor’s homestead. She alleged that she did not sign the contract of settlement asserted by appellees and had in no manner waived her homestead interest in the land. She also adopted all of the pleadings of her husband, Ray Bethel, which had been, or thereafter should be, filed in the case.

Due proof of the execution of the will was made by one of the witnesses thereto and the allegations of appellees concerning the mental incapacity of the testatrix to execute the will were waived, the case being submitted to the jury upon a single special issue concerning the allegations of undue influence. In answer to the special issue the jury found, in effect, that the making and execution of the instrument by the testatrix was procured by undue influence on the part of the proponent, Ray Bethel. Based upon the verdict of the jury the court rendered judgment denying the application to probate the instrument as the last will and testament of Mrs. M. E. Cooper, and adjudging the same to be void and of no force or effect.

Appellants filed a motion for a new trial, which was overruled, to which they duly excepted and gave notice of appeal and have perfected their appeal to this court.

Appellants contend the judgment should be reversed: First, because of the erroneous admission of the testimony of his former attorney, G. E. Hamilton, and denying the admission of his own testimony in regard to matters which will be revealed in our discussion of that contention; secondly, because of the erroneous admission of the testimony of a neighbor and his wife concerning statements made by the testatrix prior to executing the will, and, thirdly, because the verdict of the jury and judgment of the court are not supported by legal and competent evidence.

The record shows that, after appellant had agreed with some of the other heirs of Mrs. Cooper upon a settlement of the controversy, but .before the contract was signed, appellant, Ray Bethel, went to his attorney, G. E. Hamilton, who had represented him in the administration of the estate of his deceased grandfather, and told Mr. Hamilton that thef other heirs were claiming the will was not valid because it did not show the date upon which it was executed. Hamilton had drawn the will for Mrs. Cooper and he said he examined his office copy and ascertained the date had been omitted but that he advised appellant that the failure to enter the date upon the will did not affect its validity in any manner whatsoever. This portion of Hamilton’s testimony was admissible because appellant was contending that he signed the contract of settlement because of the fraudulent representations made to him by the appellees to the effect that the failure to insert the date upon which the will was executed rendered the will null and void. Hamilton further testified, however, that, either in the same conversation or upon another occasion at about the same time, appellant asked him if he thought appellant would be able to probate the will in the face of the opposition appellees were expected to present. In answer to this question he said he told appellant that, before employing counsel and pursuing further his effort to probate the will, appellant should take into consideration the opposition appellees would make thereto; that he should further consider the fact that Mrs. Cooper had disinherited all of her other heirs, which would be one factor the court would take into consideration in determining whether or not Mrs. Cooper was possessed of mental capacity to make a will, and that he gave appellant such advice as would prevent him from being misled by any false opposition. He said he also told appellant that he may expect to have to spend some money in the effort, since the witness could not be expected to represent appellant in that matter for the same fee which appellant had paid him .for his services in the administration of the estate of D. H. Cooper. Appellees contend this testimony was admissible upon the question of fraud that had been injected into the case by appellant, which consisted of his allegations that he had signed the contract of settlement only because of the fraudulent representation made to him by appellees to the effect that the will was null and void because of the absence from it of the date upon which it was executed. The testimony of Hamilton first quoted above was admissible upon that question. It showed that appellant had consulted his own attorney with reference to the effect of the absence of a date upon the will, but the testimony last detailed was clearly inadmissible for that or any other purpose. Moreover, we think it was prejudicial to appellant. It informed the jury very clearly as to the opinion of the attorney with reference to the propriety of appellant’s insistence upon probating the will and indicated very definitely that, in his opinion, it was unfair and should not be allowed to stand. Hamilton was a practicing attorney and resided at Matador in Motley County. He had drawn the will for the testatrix and had represented appellant in the administration of the estate of his deceased grandfather. He was no doubt well known in the community and his'opinion as to the nature of the will and the propriety of appellant’s insistence upon probating it no doubt had great weight with the jury. Furthermore, it did not refer to any controverted issue in the case and was wholly immaterial. Appellant’s assignments of error in reference to this action of the court are sustained.

The second phase of this contention presented by the brief relates to the testimony of appellant, Ray Bethel. While he was being cross-examined by counsel for appellees he was asked if, after his grandfather’s death, he had talked with Mrs. Cooper, the testatrix, about making a will. Appellant answered that he had never mentioned it to her, and counsel then asked him if Mrs. Cooper ever talked with him about it. To this question he answered that she had and stated that she asked him if, in his opinion, she could make a will. In answer to further questions of counsel for appellees, he said he did not remember the date the conversation took place but it was about two or three weeks before she executed the will. Counsel then asked the witness if that was the first time he had talked with her about it and the witness answered in the affirmative. Upon redirect examination by his own counsel appellant was requested to state what the conversation was, to which he answered that Mrs. Cooper had asked him if, in his opinion, she could make a will and he told her he did not know but he had an idea she could; that he thought anybody could will anything they had to whomsoever they pleased. He said that his grandmother seemed to be in doubt as to whether or not she could make a will because her husband was dead and that appellant suggested to her that she advise with an attorney about it the next time she went to town. He said that the next time they went to Matador his grandmother requested him to see Judge Hamilton and ascertain from him whether or not she could make a will. He said he asked Judge Hamilton about it and was informed that she could do so. The witness further testified that the information was satisfactory to her but that he did not suppose she was ready at that time to make a will or, at any rate, she did not do so until some two weeks thereafter. At this point counsel for appellees objected to the testimony upon the ground that it was inhibited by the provisions of Art. 3716, R.C.S. 1925, commonly known as the “Dead Man Statute”. The objection was sustained by the court and the testimony ruled out. Appellant assigns as error the action of the court in sustaining the objection and insists that appellant was entitled to detail the conversation and explain the circumstances surrounding the same since he had been called to testify about it by the opposite party. We think the assignment must be sustained. Appellees’ counsel had brought out the fact that appellant had talked with his grandmother concerning the will and, under the provisions of the statute, he had the right to do so. Having done so, however, he opened the matter in such a way as that appellant’s own counsel had the right to bring out the details of the conversation referred to and explain or qualify the same in any manner which was justified by the facts and which he deemed necessary. Reyes v. Escalera, Tex.Civ.App., 131 S.W. 627; Walkup v. Stone, Tex.Civ.App., 73 S.W.2d 912; Adam v. Adam, Tex.Civ.App., 127 S.W.2d 1001; Allen v. Pollard, 109 Tex. 536, 212 S.W. 468.

The second contention presented by appellants relates to the admission by the court of the testimony of Mrs. Henry Rollins and her husband, Henry Rollins, concerning- statements that were made to them by the testatrix, Mrs. M. E. Cooper, before she executed the will in controversy. Mrs. Rollins testified that around the 10th or l5th'of October, 1938, which was some ten or fifteen days before the will was executed, she went over Ito Mrs. Cooperas house one Sunday afternoon to ascertain if Mrs. Cooper could return with her to her home and enjoy some ice cream. She said that she found Mrs. Cooper crying and asked her what was wrong; that Mrs. Cooper said there wasn’t anything wrong and that she did not feel bad. Upon being further questioned, she told Mrs. Rollins that appellant and his wife had gone over to a neighbor’s house and had not invited her to go with them. She said that Mrs. Cooper returned home with her and while there they talked about conditions in the Cooper home; that Mrs. Cooper said appellants had lately become accustomed to leaving her at home because they did not care to have her along with them, and that appellants had been after her lately to make a will but that she didn’t think she would do so. She said that “poor old daddy” didn’t leave a will and since “he was willing for his stuff to go like it was supposed to, that was the way she wanted it to go.” Henry Rollins’ testimony was very similar to that of his wife. He testified that upon another occasion he went to Mrs. Cooper’s home and found her weeping. He said that he asked her concerning the cause of her apparent distress and she said appellant, Ray Bethel, was going to leave the farm; that he had threatened to leave the farm if she did not make a will, and she did not want to make a will. He said he asked Mrs. Cooper what kind of a will appellant wanted her to make and she said “he wanted her to will it to him and leave all of the children out”, but that “she was not going to do it.” He also testified that he heard portions of the conversation at his home which had been detailed by Mrs. Rollins as having taken place on the Sunday afternoon when they were eating ice cream.

Appellants objected to this testimony and, their objection being overruled, they presented to the court a motion requesting the court to instruct the jury not to consider it, which was also overruled. This testimony presented nothing more than statements and declarations of the testatrix and afforded no substantial proof of duress or undue influence. They were not admissible for that purpose. No independent proof of undue influence had been adduced and these statements of these witnesses were mere recitals of fact. The statements of the testatrix were made some ten days or two weeks prior to the execution of the will and could not be considered res gestae. It has many times been held by the courts that such testimony is not admissible but is the purest kind of hearsay. In the case of Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138, 1145, this identical question was elaborately discussed by Justice Phillips and the rule in this state concerning the admissibility of such statements definitely and finally settled. Among other cogent statements and logical reasoning found in the opinion in that case, Justice Phillips said: “The testator’s declaration, testified to by this witness, that ‘Mrs. Scott had been after him to make a will’ was clearly inadmissible. It was but a naked statement of fact, a plain narration of a past occurrence, which Scott’s declarations were wholly incompetent to prove. Such a statement, made by him as to what his wife had been trying to get him to do, was as certainly inadmissible as a similar statement by any other person. The effect of its admission was to permit the use of his declarations for the purpose of establishing an effort by Mrs. Scott to have him make his will, or, in the light of the issue in the case and other testimony such as we have referred to, an attempt by her to exercise the undue influence charged, since, under the allegations, to induce the testator to make his will was essentially the prime object, for which it was exerted, a purpose for which the law emphatically says' a testator’s declarations cannot be used, as upon such issue they are purely hearsay.” See also Shofner v. Shofner, Tex.Civ.App., 105 S.W.2d 418; Rankin v. Rankin, 105 Tex. 451, 151 S.W. 527; Taylor v. Small, Tex.Civ.App., 71 S.W.2d 895; Beemer v. Beemer, 256 Ill. 312, 100 N.E. 135.

It may be that, under some circumstances, the emotional condition of mind evidenced by Mrs. Cooper’s weeping upon the occasions testified about by these witnesses would have been admissible upon an issue as to her mental capacity to execute a will, but as that issue was waived and not insisted upon by appellees it was immaterial for any purpose in this case. This leaves the testimony as a recital of the bare statements made by Mrs. Cooper to the effect that appellant and his wife had been importuning her to execute a will devising her property to them and, as said by Justice Phillips in the above quotation, they were no more admissible as proof of the -facts indicated by them than would have been similar statements of any other person. Appellees contend that the testimony was admissible as showing the effect which the importunities of appellants had upon the testatrix, Mrs. Cooper. We think there are two cogent reasons revealed by the record which refute this contention. In the first place, a thorough search of the record fails to reveal any testimony whatever or any circumstance which in any manner indicates that appellants exercised any influence, undue or otherwise, upon Mrs. Cooper or that they did or said anything to her for the purpose of inducing her to execute the will save only the hearsay statements testified to by these witnesses, and these statements, as we have held, were not admissible nor competent to prove undue influence. Secondly, Mrs. Rollins testified that Mrs. Cooper had several times said to her, soon after the death of Mr. Cooper, that she (Mrs. Cooper) had never had any experience in transacting business matters and seemed greatly confused because there had suddenly been thrust upon her the responsibility of attending to the matters of business that had always been discharged by her husband. Mrs. Rollins said she found Mrs. Cooper weeping on a number of occasions and when asked what was wrong, she would say: “Well, I haven’t any home that I can ask my friends in. You know you don’t feel welcome to come here like you did. It is not like it was when daddy was here. I could ask my friends in my home”, and that Mrs. Cooper seemed greatly grieved. In view of this testimony of Mrs. Rollins, the emotional condition of mind in which she and her husband found Mrs. Cooper on the occasions testified to by them no more proved that Mrs. Cooper was affected by importunities of appellants that she make a will than it was proof that she was grieving over the loss of her husband and overwhelmed with the responsibility of attending to business affairs which had been thrust upon her by his death.

The testimony shows that on'the occasion of the execution of the will, appellant, Ray Bethel, conveyed Mrs Cooper in her automobile from the farm to Matador and escorted her to the office of Mr. Hamilton, the attorney who drew the will. It is shown also that he remained in the office while the will was being dictated, written and executed. Appellees insist that this, together with the fact that appellants had ample opportunity to exercise undue influence upon Mrs. Cooper, was sufficient to warrant the jury in returning their verdict to the effect that undue influence was exerted. The testimony of Mr. Hamilton and also of appellant shows without dispute that, while appellant accompanied his grandmother to the attorney’s office and remained there during the time the will was being written and was there when she signed it, he had nothing whatever to say and made no suggestions of any kind either to her or to Mr. Hamilton. In the absence of any proof of undue influence exercised by appellant over the testatrix, his mere presence in the office- of the attorney during this time is a matter of no significance whatever. Indeed, it was quite natural that he be there. He and his family lived in the house with Mrs. Cooper. He performed most of the duties that were necessary in conducting the farm and business matters that arose concerning its operation. Mrs. Cooper was an aged woman, and it seems that whenever she desired to make trips away from home, she called upon appellant to drive the car and take her wherever she desired to go. It is shown without dispute that she requested him to take her to Matador on the occasion when she executed the will and we see nothing in this, standing alone, which would indicate he had exerted undue influence upon her. Upon reaching the attorney’s office, Mrs. Cooper informed him that she desired to make her will and informed him of the disposition she wished to make of her property. He dictated the will in her presence, and after it was typewritten by his stenographer, Mr. Hamilton read it over to Mrs. Cooper and she signed it. The attorney testified that nothing happened there which indicated to him that Mrs. Cooper’s wishes were otherwise than those expressed in the will. She paid Mr. Hamilton his fee for the service which he had rendered by issuing her own cheque therefor. She took the will home with her and laid it away in a private box and the record indicates she told no one except Mrs. Eula Bethel where she had placed it and no one but Mrs. Cooper had possession of it until after her death. This leaves nothing but opportunity alone to prove undue influence and the law is well settled that mere opportunity to do so is no proof whatever that undue influence has actually been exerted.

A careful search of the record now before us has failed to reveal any evidence which would form the basis of the verdict returned by the jury upon the question of undue influence, and we think, in so far as the allegations of undue influence are concerned, the verdict of the jury is wholly without competent evidence to support it.

Appellees contend that the judgment should be affirmed because, they say, it is correct as a matter of law regardless of the assignments of error urged by appellants Relating to the issue of undue influence. They base this contention upon the contract of settlement that was executed by some of the heirs of the testatrix, including Ray Bethel, the devisee in the will, in which it was agreed that the will was void and the property should descend to the heirs under the law of descent and distribution. Appellant, Ray Bethel, alleged and testified that his assent and signature to the contract were procured by fraudulent representations of the appellees to the effect that the will was void because it did not reflect the date of its execution. No special issue was submitted to the jury and none requested upon this issue. In fact it seems to have been ignored by the court and litigants. Appellees state in their brief that, in view of the finding of the jury upon the issue of undue influence, the court did not deem it necessary to pass upon the issues raised by the allegations concerning the contract. The judgment entered by the court indicates that it was based upon the finding of the jury in answer to the single special issue which was submitted to them upon the question of undue influence. Appellant, Eula Bethel, sought to establish her homestead rights in two hundred acres of the land involved upon the ground that the will was legal and valid as such and that under the law her husband could not affect her interest therein nor deprive her of her acquired homestead rights by the contract of settlement which he executed. The interest in the land involved here consists of an undivided one-half interest in 640 acres, and if Mrs. Bethel is entitled to a homestead right in 200 acres or a smaller amount, as the undisputed testimony in the present record shows she was, she would have the right to protect it and her husband could not, by contract or otherwise, deprive her of it without her consent. Texas Land & Mtg. Co. v. Cooper, Tex.Civ.App., 67 S.W. 173, and authorities there cited. The amount of land which she could thus claim, however, depends upon an adjudication of the issues concerning the validity of the will and all of these matters will probably be adjudicated upon another trial.

Because of the errors pointed out, the judgment of the court below will be reversed and the cause remanded.


author: SMITH, Chief Justice.

text:
    UNITED EMPLOYERS CASUALTY CO. v. TEER.
    No. 10875.
    Court of Civil Appeals of Texas. San Antonio.
    Aug. 23, 1940.
    Will R. Saunders, Claude Williams, and W. E. Johnson, all of Dallas, for appellant.

      Charles J. Lieck and H. K. Stanfield, both of San Antonio, for appellee.
   SMITH, Chief Justice.

The parties have filed their joint motion and agreement, reciting that all matters involved in this suit have been fully adjusted between the parties, and praying that in pursuance of the adjustment the judgment of the trial court be reversed and judgment here rendered that appellee Ray C. Teer do have and recover of and from appellant United Employers Casualty Company the sum of $2275 (with interest and all costs of suit), apportioned two-thirds to appellee and one-third to appellee’s attorneys.

Accordingly, and by reason of said motion and the recitations therein, and without passing upon the merits of the appeal, said motion will be granted and judgment entered as therein prayed for.


text:
    PANHANDLE SOUTH PLAINS FAIR ASS’N v. CHAPPELL.
    No. 5171.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1940.
    Rehearing Denied Sept. 3, 1940.
    E. L. Klett, of Lubbock, for appellant.
    McWhorter, Howard & Cobb, of Lubbock, for appellee.
   STOKES, Justice.

This suit was filed by the appellee, E. Chappell, against appellant, Panhandle South Plains Fair Association, a corporation, to recover damages to his automobile which he alleged was damaged by fire to the point of practical destruction while located in a parking space reserved for that purpose by appellant on its fair grounds at Lubbock on September 28, 1938. Appellee alleged that while he and his family were attending the exposition conducted by appellant, the latter became bailee for hire of his automobile. In explaining the manner in which the relationship of bailor and bailee arose, he alleged that appellant maintained a tract of land which it held out to the public to be a safe place for its patrons to park their automobiles. He alleged that the grounds were fenced, with gates and guards at the places of entrance and exit, and that he was the owner of an automobile which he drove into the grounds at the solicitation of appellant whose agents directed the place where it should be parked. He alleged that appellant took possession of his automobile and agreed safely to keep it during the time it remained on the grounds of ¿ppellant; that the automobile was damaged by fire while in the possession and upon the grounds of appellant, and that the fire which damaged the same had its origin on appellant’s premises. He alleged that when delivered to appellant the car was of the value of $350 and that after it was damaged by fire its value was only $50.

Appellant answered by general demurrer and general denial and the case was submitted to a jury upon special issues. The jury found (1) that appellant maintained a tract of land which it held out to be a safe place to park the automobiles of its patrons; (2) that appellee paid appellant a consideration of 25$i for the parking of his car in said tract of land; (3) that appellant, through its agents and employees, directed appellee where to park his automobile; (4) that the automobile was placed in said tract as directed by appellant’s agents and employees; (5) that the car was damaged by fire, and (6) the amount of the damage was $300.

At the close of the testimony appellant filed and urged á motion for a peremptory instruction in its favor which was overruled and judgment was entered by the court in favor of appellee for the sum of $300. Appellant filed a motion for a new trial, which was overruled, and it has perfected an appeal to this court.

The controlling questions in the case are, first, do the pleadings and the evidence present a case in which the relationship of bailor and bailee was created between the parties involved, and, secondly, is the judgment entered by the court supported by the findings of the jury and the evidence in the case ?

The case was tried and the judgment entered by the court upon the theory that the relationship of bailor and bailee existed between appellant and appellee; that the facts alleged and proved by appellee were sufficient to establish the relationship and that appellant was liable to appellee under the rules of law pertaining to bailments.

A bailment is generally understood to be a delivery of personal property in trust under a contract, either express or implied, that the trust shall be executed and the property restored to the bailor or person delivering the same when the purpose or duty arising under the contract has been discharged. Wilson v. Shear Co., Tex.Civ.App., 3 S.W.2d 849; Northcutt v. State, 60 Tex.Cr.R. 259, 131 S.W. 1128, 31 L.R.A.,N.S., 822; City Nat’l Bank v. Conley, Tex.Civ.App., 228 S.W. 972.

According to the above authorities and many others, in order to effect a bailment it is essential that á delivery of the property or article involved in the bailment be made to the bailee by the bailor, except in constructive bailments which arise under circumstances not involved here. Likewise an essential element of bailment is the acceptance by the bailee of the article bailed under an agreement' to restore it to the bailor when the purposes of the bailment have been discharged. During the existence of the bailment, the bailee is clothed with evidence of ownership which means possession, and the contract must be such as to place him legally in possession" of the property. Miller v. Peck, Tex.Civ.App., 258 S.W. 887. While appellee alleged that for a valuable consideration paid by him, appellant became a bailee of his automobile, and that it took possession thereof and agreed safely to keep the same, the evidence fails to support the allegations. Appellee testified that he drove up to the gate of the exposition, paid the admission charge of 50‡ for each of the occupants of his automobile and 25⅜ extra for a parking place inside the fair grounds. He said that after entering the fair grounds he drove down a driveway east of the gate and was directed to a driveway leading south, into which he turned, and was then directed by someone where to park his car. He said he parked it according to the instructions given him and that when the occupants alighted from the car he set the brake, closed the doors and openings, locked the doors, put the keys in his pocket and went to the places of amusement being conducted by the exposition. No ticket or check was issued to him by anyone nor was anything else done or said that indicated he was leaving his car in the possession or custody of appellant or any of its employees. He said that when he returned some four hours later, his car had been practically destroyed by fire which the evidence shows was the result of burning grass. One of his wiL nesses testified that the grass was ignited from a burning cigarette and that efforts made by some boys, who evidently were patrons of the exposition, to remove the car, were unavailing because it was locked and the brake applied.

We do not find anything in this testimony which could be construed as a bailment. Appellee does not claim that appellant or any of its employees took possession of his automobile or had anything whatever to do with it after he left it with the brake set and the doors locked. He retained possesr sion of the keys and testified that he could have taken the car out of the fair grounds at any time he desired to do so. Moreover, there is wholly lacking any evidence to show that appellant or any of its employees accepted possession of the car or exercised any authority or control over it at anyl time. The nearest the testimony comes to establishing this essential element of a bailment is that some one who appeared to be directing the location and parking of cars generally, indicated to appellee the direction and lane where a suitable parking space was available, and this cannot be saidl to constitute an acceptance of the custody' of the car.

As to the second question, viz., is the judgment supported by the findings of the jury and the evidence in the case, manifestly if the relationship of bailor and bailee was not created in the transaction, and appellee was not entitled to recover upon that theory, it then became necessary for him to allege and prove a case in which appellant owed him some duty and that he was damaged either by the failure of appellant to perform it or by such duty having been performed in a negligent manner. There is no allegation of negligence contained in the petition other than that which assumes the relationship of bailor and bailee, nor does the evidence disclose the violation of any duty which appellant owed to appellee under any contract nor that appellee was damaged by any act of negligence of appellant. We think the case is controlled by the doctrine announced by the Supreme Court of Oklahoma in the case of Lord v. Oklahoma State Fair Association, 95 Okl. 294, 219 P. 713. That case in all of its aspects was very similar to the instant case and the court held that the automobile was not, in a legal sense, delivered into the possession of the Fair Association but that the plaintiff had paid the sum of 25⅜ for the privilege of taking his car within the defendant’s enclosure, and that this was done for his own convenience. It was held, therefore, that the defendant was in no respect liable for its loss. See also Ex parte Mobile Light & R. Co. (Thompson v. Mobile, etc.), 211 Ala. 525, 101 So. 177, 34 A.L.R. 921.

The effect of the findings of the jury is that appellant maintained a tract of land which it held out as a safe place to park automobiles and that appellee paid 250 for that privilege; that the agents and employees of appellant directed appellee where to place his automobile and that he parked it in the place designated by them. Certainly there is no finding here that appellant did anything which could be construed as negligence. It was not alleged nor shown that appellant was guilty of negligence in connection with the fire and, in our opinion, the judgment entered by the court is wholly lacking in support of jury findings or evidence.

The judgment is reversed and the cause remanded.