author: SMITH, Chief Justice.

text:
    ARMSTRONG v. MAY.
    No. 10754.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 2, 1940.
    Rehearing Denied Nov. 27, 1940.
    Appeal from District Court, Webb County, 111th District; R. D. Wright, Judge.
    Action by Otto Armstrong, independent executor of the estate of Jennie May, deceased, against Alma May, individually, and as personal representative of the estate of W. P. May, deceased, to recover a half-interest in $7,525, awarded defendant by the “Special Mexican Claims Commission of the United States.” From á judgment for defendant, the plaintiff appeals.
    Armstrong & Jaffe, of El Paso, and Bismark Pope, of San Diego, for appellant.
    Neel & King, Nat B. King, and Bryant M. Collins, all of Laredo, for appellee.
   SMITH, Chief Justice.

The parties will be designated here as in the trial court.

Plaintiff, Otto Armstrong, independent executor of the estate of Jennie May, deceased, brought this action against defendant, Alma May, individually and as personal representative of the estate of W. P. May, deceased, to recover a half interest in a sum of $7,525 awarded defendant by the “Special Mexican Claims Commission of the United States” (49 Stat. 149), on account of losses of livestock belonging to the said Alma May and her husband, and confiscated by armed forces of the Republic of Mexico in the years 1912 to 1920.

Plaintiff Armstrong’s claim of an interest in the award is based by him upon the will of the said Jennie May, deceased. The Mexican claim here involved, though fully accrued, was not mentioned in the will, and the jury trying the case found upon sufficient evidence that the testatrix made a parol gift to defendant of, and had no interest in, the confiscated livestock for the loss of which the Claims Commission awarded the sum here in controversy to defendant and her husband. Defendant, however, was a beneficiary under said will, as was plaintiff, and the latter claims, as the basis of his suit, that because defendant was such beneficiary, and accepted the benefits so devised to her, she was bound as upon an election to forego one-half of her claim upon said award, and share it equally with plaintiff, who claims an interest therein under the will. The trial court, upon jury findings, denied any recovery to Armstrong, who has appealed.

The case is primarily one of fact, and is controlled by the jury finding that the testatrix, Jennie May, had made a parol gift to defendant of her interest, in the livestock for loss of which the award in controversy was made, and had no interest therein, and by the further fact that the testatrix in her will did not assert ownership of or interest in, or purport to dispose of, the livestock or the claim for loss thereof. These facts exclude the case from that class to which the doctrine of election invoked by plaintiff applies.

In short, since the testatrix did not in her will attempt to curtail any property right of defendant whereby the latter was put to an election to hold that right and yield benefits devised to her under the will, on the one hand, or, on the other, yield that right and accept only under the will. She could consistently at the same time claim all the award here involved and all the benefits accorded her under the will as well. The question of election is therefore not in the case. 44 Tex.Jur. p. 863 et seq., § 285 et seq.; 4 Schouler on Wills, 6th Ed., p. 2538; 69 C.J. p. 1099.

We think these conclusions render immaterial all other questions raised by plaintiff in his brief, and require that the judgment be affirmed. It is so ordered.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    JONES v. CITY OF UVALDE.
    No. 10758.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1940.
    Rehearing Denied Nov. 27, 1940.
    Atlas Jones, of Uvalde, and Harry B. Berry, of San Antonio, for appellant.
    Suttle &' Kessler, of Uvalde, for appel-lee.
   MURRAY, Justice.

This suit was instituted by Atlas Jones in the District Court of Uvalde County, as cause No. 4980, against City of Uvalde, a municipal corporation, seeking to recover certain sums of money alleged to be due him as compensation for services allegedly rendered by him as City Attorney of said City.

The petition shows upon its face that this suit is based upon the same claim and demand as was cause No. 4871, between the same parties herein. The petition does not show upon its face what disposition was made of that cause, but we take judicial knowledge of the fact that a general demurrer was sustained to plaintiff’s second amended original petition and Atlas Jones, as plaintiff therein, refused to amend, whereupon the trial court rendered judgment dismissing the cause, and Jones perfected an appeal to this Court. This Court affirmed the judgment of the trial court, Jones v. City of Uvalde, 79 S.W.2d 341. The Supreme Court refused a writ of error on April 24, 1935, and thus the judgment of the trial court became a final judgment.

Under these facts the question of res judicata was raised by the general demurrer. In 26 Tex.Jur. p. 330, § 503, it is stated: “But of course when the plaintiff’s petition discloses on its face that the matters therein set out had been adjudicated by a previous judgment, the issue of res ju-dicata may be raised by a general demurrer and a special plea is not required.”

The claim and demand upon which this suit is based is the same claim and demand upon which cause No. 4871 was based, and the judgment of dismissal rendered in that cause is a bar to this suit. 26 Tex.Jur. p. 15, § 354.

It is true that the judgment in cause No. 4871 was one of dismissal, but nevertheless it is a judgment constituting a disposition of the cause on its merits and is a bar to a further prosecution of any cause based upon the same demand and claim. In 26 Tex. Jur. p. 97, § 398, it is stated:

“On Demurrer. — -A judgment on a demurrer which still leaves the parties in court is merely interlocutory; it decides nothing more than the sufficiency or insufficiency of a particular pleading, and, in accordance with what has been said in a preceding section, cannot be res judicata of anything. But when the judgment on the demurrer is followed by a judgment of dismissal, the situation is different; in such a case there is a -final judgment, and, if it definitely appears that the demurrer went to the merits of the cause of action and not merely to nonmeritorious matters, a judgment of dismissal that is of an involuntary character will operate as a bar as effectively as any other kind of judgment, unless and until it is nullified or suspended in the manner heretofore mentioned. Such a judgment is as conclusive as though the facts had been put in issue and established by the evidence. * * * ”

We have before us the record in cause No. 4871, and it discloses that the demurrer went to the merits of the cause of action and not to some nonmeritorious matters. We take judicial knowledge of this fact.

The trial court did not err in sustaining the general demurrer to appellant’s fifth amended original petition and, upon appellant’s refusal to amend, in dismissing the cause.

The judgment is affirmed.


author: HALL, Justice.

text:
    WRIGHT v. SOUTHERN ICE CO., Inc.
    No. 5668.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 5, 1940.
    Rehearing Denied Nov. 21, 1940.

      C. C. McKinney, of Cooper, and Jackson & Stell, of Sulphur Springs, for appellant.
    Long & Wortham and Hutchison & Fisher, all of Paris, for appellee.
   HALL, Justice.

This suit was instituted against Obie Wright by appellee for an indebtedness amounting to $3,471.88 alleged to be due it for ice cream sold and delivered to Wright as shown by itemized account attached to the petition.

Appellant answered by general denial, and further, that if he was indebted to appellee, which was denied, it was by virtue of a purported contract made and entered into May 20, 1936, by and between appellee and Obie Wright; that

“Said contract and all acts, debts, or liabilities purportedly incurred under same, or any right accruing thereunder, are null and void and of no effect as being by virtue of a contract contrary' to law and public policy and in restraint of trade and in violation of the anti-trust laws. * * *

“Defendant alleges that no recovery can be had under and by virtue of the aforesaid purported contract; because the same is null and void and unenforceable in law for the following reasons:

“1. Because in paragraph 2 the same restricts the territory in which defendant can operate;
“2. Because in paragraph 3 the same sets the price at which the defendant must sell;
“3. Because there is a provision in paragraph 4 which provides that the defendant Obie Wright shall sell no product except that of plaintiff;
“4. Because paragraph 6 provides that the dealer shall only employ persons who accept the terms and provisions of said contract;
“5. Because paragraph 8 of said contract provides that the dealer shall not engage in business of the nature of plaintiff's for a period of two years after the termination of said contract.”
By supplemental petition appellee denied that its contract with appellant Obie Wright was in restraint of trade and vio-lative of the anti-trust act in that “the sale of the goods upon which this suit is brought was made to said defendant, at prices agreed upon by plaintiff and defendant, for resale by defendant Obie Wright at prices he might fix, under plaintiff’s trade name of ‘Southern Creameries Made-Rite Ice Cream’ from the premises and by the use of the equipment and trucks leased for such purpose by plaintiff to defendant, without any attempt by plaintiff to fix or regulate resale prices, and without any unreasonable limit as to either time or territory during which and where such sales should or could be made by defendant, Obie Wright.”

Trial was to a jury. At the conclusion of all the testimony the trial court instructed the jury to return a verdict for appellee for its indebtedness, less certain credits.

By appellant’s first proposition it is contended among other things that “The trial court erred in rendering judgment for plaintiff and against defendant, Obie Wright, in the amount of $3,186.15 * * * since the debt or alleged cause of action asserted by plaintiff accrued under and by virtue of a contract void and illegal as being in contravention to the anti-trust laws of the State of Texas.” This proposition, in our opinion, raises the controlling question oh this appeal. The contract referred to in the proposition and in appellant’s pleading was a lease contract entered into by and between appellee and appellant, Obie Wright, whereby Wright took over appellee’s ice cream station and equipment at Paris, Texas, consisting of hardening vault, compressor, water heater, pump, billing machine and certain ice cream trucks. The contract is rather long and we shall set out the following parts only, which we deem pertinent to a discussion of this proposition:

“Second. For and in consideration of the leasing of dealer of the said above described equipment and other delivery equipment, and the agreement on the part of dealer to purchase ice cream from Company, Company hereby agrees to permit dealer to operate certain ice cream station and delivery route now owned and operated by Company in that part of Texas now served by the Paris station and that part of the Texarkana route from Clarksville west to Paris and from Talco north to Paris, and to have the benefit of the business and good will in connection therewith. * * *
“Third. Company agrees to sell to dealer all ice cream which may be required by dealer for delivery to customers on the above mentioned ice cream station and delivery route or on any other ice cream station and delivery route or routes now operated by dealer or which may be operated by dealer during the term of this agreement. * * *
“Fourth. It is expressly understood and agreed that if, during the continuance of this agreement, Dealer shall without the written consent of the Company, its successors or assigns, purchase ice cream from any other ice cream manufacHcrer, Dealer or Peddler, or shall place into the storage and truck or trucks or other equipment hereby leased or shall deliver to customers at said station or on the above mentioned ice cream delivery route or on any other ice cream delivery route or routes operated by Mm, any ice cream purchased from any other ice cream manufacturer, dealer or peddler, than the Company, its successors or assigns shall have- and is granted the right, at its or their option to declare this agreement cancelled: and terminated, * * *(Italics ours.)

The arrangement whereby appellant Obie Wright purchased ice créam from appellee was based upon the lease contract here under discussion. Is this lease contract illegal and void as being in restraint of trade as defined .in R.C.S. Article 7428, or is it capable of two constructions, one legal and the other illegal? If the former be true, then it carries its death warrant upon its face and is therefore void; but if the latter be true, then the construction which is legal will be' indulged since it is presumed that the parties intended no unlawful purpose. Star Refining Co. v. Butcher, Tex.Civ.App., 84 S.W.2d 303. Insofar as this lease contract restricted the use of the leased premises, trucks, and other appurtenances to the exclusive sale of appellee’s products, it did not contravene the anti-trust laws of this State forbidding monopolies in restraint of trade. Celli & Del Papa v. Galveston Brewing Co., Tex.Civ.App., 186 S.W. 278. Does this lease contract restrict the exclusive sale of appellee’s products- to. the leased premises and its trucks operating on routes theretofore established by appel-lee? We think not. The lease contract by its clear. and unambiguous provisions prohibits appellant Obie Wright from purchasing ice cream from any other person or company than appellee during the life of said contract under the penalty of having same cancelled. Also it forbids delivery by Obie Wright of ice cream not only from the leased equipment and on the routes set out therein, but the prohibition extends “to any other ice cream delivery route or routes operated by him” (Obie Wright). Thus it is seen that Wright is prohibited from buying or selling any ice cream other than that manufactured by appellee at any place during the life of this contract. These provisions in the lease contract, under which the evidence shows the indebtedness sued on herein was contracted, render the contract void as being in violation of R.C.S. Article 7428, Sec. 1. Texas Brewing Co. v. Templeman, 90 Tex. 277, 38 S.W. 27; Wood v. Texas Ice & Cold Storage Co., Tex.Civ.App., 171 S.W. 497; Martin v. Hawley, Tex.Civ.App., 50 S.W.2d 1105. Any contract by which one party is to sell his entire output to, or to take his entire requirements of a commodity from, the other is contrary to our statute forbidding monopolies. Rawleigh Medicine Co. v. Harper, Tex.Civ.App., 7 S.W.2d 892. See 83 A.L.R. p. 1173, and cases there cited.

The indebtedness sued on herein being based upon a lease contract violative of R.C.S. Article 7428, Sec. 1, and therefore void, is not enforcible “either in law or equity.” Manufacturers’ Finance Corp. v. Fort Worth Paper Co., Tex.Civ.App., 68 S.W.2d 307, 308, writ refused, and cases therein cited. The conclusion set out renders unnecessary a discussion of the other propositions brought forward.

The judgment of the lower court is reversed and judgment is here rendered for appellant.

. Reversed and rendered.


text:
    PORTILLA DRILLING CO. v. MILLER.
    No. 10720.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1940.
    Rehearing Denied Nov. 27, 1940.

      Hubbard, Stafford & Little, of Corpus Christi, and D. D. Boyd, of Port Lavaca, for appellant.
    Barton & Hartzog, of Port Lavaca, Linebaugh & Guittard, of Victoria, and Will R. Saunders, of Dallas, for appellee.
   SMITH, Chief Justice.

Lee Miller, as plaintiff below, sued Portilla Drilling Company, defendant, for damages for personal injuries admittedly sustained by him in an accident occurring on an oil lease in Calhoun County, on which the Company was drilling a well. Miller was an employee of Younger Brothers, Inc., a trucking concern engaged by the Drilling Company to haul materials and supplies used in its drilling operations.

The Drilling Company owned a “mud pump” which it used in drilling operations. This pump weighed between 40,000 and 50,000 pounds, and was operated. by steam. Attached to the pump was a steam manifold. On the day before the injury to Miller, the Drilling Company engaged its -hauling agency, Younger Brothers, to move the mud -pump to the drilling site, a distance of 1,000 or 1,200 feet. This was done by Younger Brothers in the customary way. The Drilling Company’s foreman in charge observed this movement, was familiar with and acquiesced in the process, accepted delivery of the pump after the movement was completed, and put the pump in operation the next morning.

After moving the mud pump in the afternoon, Younger Brothers went about doing other routine hauling for the Drilling Company. This included hauling casing to the drilling site to be used by the Drilling Company in its operations. Plaintiff, Miller, was, helping haul the casing, and when, about 2:30 the next afternoon, this work carried him to within twelve or fifteen feet of the, plugged end of the steam manifold attached to the mud pump, the plug blew out with exploding steam, knocking-plaintiff down and rolling him away along the ground an estimated distance of ninety feet, seriously injuring him. Upon the trial of the suit plaintiff, Miller, recovered judgment against Portilla Drilling Company, ■ which has appealed. He will be designated as .plaintiff, and the Drilling Company, as. defendant, as in the court below.

Judgment was rendered against defendant under the doctrine of res ipsa loquitur, properly pleaded by plaintiff, and appropriately submitted by the court to the jury on special issues, in response to which the jury found that defendant (1) maintained and (2) operated the pump in a “negligent manner,” and that each of said acts of negligence was a proximate cause of plaintiff’s injuries. The jury further found (3) against unavoidable accident, (4) that plaintiff neither knew nor should have known the accident might occur, and (5) ■ that no act or omission of Younger Brothers was the sole proximate cause of plaintiff’s injury.

The controlling question in the appeal is tbiat of res ipsa loquitur. We are of the 'opinion that plaintiff properly invoked and the trial court properly applied that doc- • triné to the case made below.

It is, or must be, conceded, and there was evidence clearly establishing the fact, that the accident was not one that would ordinarily occur in the absence of negligence, and it conclusively appears that the exploding machine was usually, and on the particular day and at the moment and on the occasion of the accident, under the exclusive control, direction and operation of defendant. Under the -now well settled rule, these facts made a prima facie case against defendant under the doctrine of res ipsa loquitur, and the burden thereupon shifted to defendant to go forward with testimony accounting for the accident and clearing its skirts of the legal implication of negligence raised by the fact of the explosion. ’ .It was then for the jury to weigh the evidence and determine .the issue of negligence, as was done in this case. 30 Tex.Jur. p. 806, sec. 132; Texas & N. J. Ry. v. Crowder, 63 Tex. 502; McCray v. Galveston, etc., Ry., 89 Tex. 168, 34 S.W. 95; Gulf, C. & S. F. Ry. v. Dunman, Tex.Com.App., 27 S.W.2d 116, 72 A.L.R. 90; Note, 23 A.L.R. 484; Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659; Galveston, H. & S. A. Ry. v. Perez, Tex.Civ.App., 182 S.W. 419, writ refused; Tyreco Co. v. Cook, Tex.Civ.App., 110 S.W.2d 219; Taylor v. Popular D. G. Co., Tex.Civ.App., 10 S.W.2d 191. The pro cedure indicated was pursued in this case. After plaintiff made his prima facie case, defendant put on considerable testimony designed to free itself from the case made by plaintiff. That evidence by no means conclusively established defendant’s freedom from negligence, but was such as to fully warrant the jury in finding in favor of plaintiff upon the issue thus raised, and their findings, approved by the trial judge, are binding upon this Court. 30 Tex.Jur. p. 806, sec. 132; Gulf, C. & S. F. Ry. v. Dunman, Tex. Com.App., 27 S.W.2d 116, 72 A.L.R. 90; Wichita Falls Traction Co. v. Elliott, supra.

The fact relied on by defendant that the defectively maintained or operated machine had been in the possession of Younger Brothers for a time on the day before the accident did not serve to take the case from under the invoked rule of res ipsa loquitur. The trucking concern was employed by defendant, apparently regularly, to haul its materials 'and supplies. And even though it may be regarded as a third party, or independent contractor, in the particular job of moving defendant’s pump as it did, it did so at the instance of defendant and under the close observation, if not actual supervision, of defendant’s authorized foreman, who fully acquiesced in that handling and accepted the machine in the condition tendered by Younger Brothers, and put it in operation in that condition, thereby vouching for. it to plaintiff, an invitee. 31 A.L. R. 1029, et seq.; Orient Consolidated Pure Ice Co. v. Edmundson, Tex.Civ.App., 140 S.W. 124, writ refused. We overrule defendant’s propositions one and two, in which the question of res ipsa loquitur is presented. We also overrule defendant’s propositions three, four, five and eight, in which complaint is made of the action of the trial judge in submitting the case to the jury, and in refusing to render judgment for defendant non obstante veredicto. Defendant’s sixth and seventh propositions cannot be considered because multifarious in that each presents six different questions of law.

Defendant requested and the trial judge refused to submit special issues inquiring if the injury to plaintiff was "not the result of some act or omission” of Younger Brothers’ employees, or of “some cause or causes other than the alleged negligence” of defendant. Defendant complains of those rulings in its ninth and tenth propositions, which are overruled. There is no evidence, certainly no more than enough to raise a remote surmise, that any act of Younger Brothers, or of any other third party or influence, caused or contributed to the conditions which brought about the explosion, and if the requested issues had been submitted and answered favorably to defendant, they would have had to be set aside for lack of evidence to support them. For the same reason the submission of the issue of whether any act of Younger Brothers was the sole proximate cause of plaintiff’s injuries (which was answered in the negative) was harmless to defendant, even if error. We overrule defendant’s eleventh proposition.

M.. C. Arlett testified as an expert witness for plaintiff. There can be no question of his full qualification as an expert upon the matters in which he gave his opinion. Among other things, he was asked, and answered:

“Q. I will ask you to state whether or not, in your opinion, an explosion of that nature is or is not likely to happen if there is no fault in the operation of the steam equipment? * * * A. I do not see how it could.
“Q. Assuming that there is no fault or defect in the weld mentioned, state whether or not such an explosion would or would not be likely to happen if the steam equipment is operated in a proper manner ? * * •* A. The way I look at it, there is no reason for anything to happen if everything is operating properly.” ■ ”

Defendant objected to both answers of the witness upon the ground that "it calls for a conclusion.” We have examined the record carefully, and have considered the trial judge’s caution in admitting those and other answers of the witness, and conclude that no reversible error is shown by the incident. A trial judge is and should be allowed considerable discretion in admitting and excluding the testimony of expert witnesses, and we are of the opinion that the judge did not abuse that discretion in this case. We overrule defendant’s twelfth proposition.

In its thirteenth proposition defendant complains that the witness Arlett was permitted to testify in violation of the rule, which had been invoked in the case. This objection does not appear from defendant’s brief "to have been made below, and the proposition is therefore without merit. Besides, it is within the sound discretion of trial judges to excuse witnesses from under the rule, and no abuse of that discretion is apparent in this case. 44 Tex. Jur. p. 1088, sec. 113.

In its fourteenth proposition defendant complains of the exclusion of proffered testimony of E. E. Black, a witness for plaintiff, on Cross-examination by defendant. The proposition must be overruled. The witness had testified on direct examination that he was an employee of Younger Brothers at the time of the accident and for some time prior thereto, and was present on the occasion of the accident to plaintiff. ’ It appears from the statement in defendant’s brief under the proposition raising this question, that defendant asked Black if a certain written statement purporting to have been signed by him was correct, to which the witness assented. This statement was summarized in defendant’s brief as being “ * * * to the effect that he had been familiar with

Portilla Drilling Company’s equipment for about three years prior to the date of the accident, and had always found it in first class shape at all times, and that he had never witnessed any hazards about its equipment, rigs, pumps, boilers, and all other material, and that he was present at the time of the explosion, and did not see any negligence in any manner on the part of Portilla Drilling Company or its employees.” Counsel for defendant stated that “he was going to introduce” certain parts of the statement, handing it to counsel for plaintiff, who objected to its introduction. The offer does not appear to have been pressed to a ruling, but after some discussion between both counsel and the court, counsel for defendant asked and the witness answered several preliminary questions, to the effect that the witness had been in Younger Brothers’ employ the last three years, and it was part of his duty to “help move rigs and derricks and oil field equipment from one location to another,” and “have been doing that for Portilla Drilling Company as an employee for Younger Brothers.” Thereupon counsel for defendant asked the witness whether he “had always found the equipment of Portilla Drilling Company in first class shape at all times,” and whether, at any previous time the witness had so stated. The trial judge sustained plaintiff’s objection to the question, and himself interposed other objections, and defendant excepted, and now complains of this ruling in its fourteenth proposition. In perfecting defendant’s bills of exception, in the absence of the jury, defendant elicited from the witness that he had never “examined” defendant’s “equipment” and “do not know whether I could say” if he had “ever failed to find that equipment in first class condition.”, Obviously this took all the sting out of the court's ruling, so that defendant cannot complain thereat.

The trial judge also refused to permit the same witness to say if he had “ever witnessed any hazards about” defendant’s “equipment, rigs, pumps, boilers or other material, while unloading or moving things for Portilla Drilling Company.” This ruling does not show reversible error.

Also, the trial judge refused to permit the same witness to say if, at the time of the accident, he had “witnessed any negligence on the part of” defendant “or any of its employees.” Obviously, the question called for a pure conclusion of the witness upon a mixed question of law and fact, and was clearly inadmissible. .

In its fifteenth proposition defendant complains because the court refused to permit the witness Otto Darst to answer a certain question propounded to him by defendant. The statement under this proposition does not disclose what answer the witness would have made, if permitted to answer. The proposition therefore presents nothing for review. For a like reason defendant’s sixteenth proposition must be overruled. Defendant’s seventeenth proposition is overruled because it does not show reversible error.

Defendant complains of the method of submission of the theory of assumed risk, and the refusal of defendant’s requested submission of that issue. This matter is raised in defendant’s eighteenth and nineteenth propositions. The propositions are overruled. There was no evidence raising the issue, and, moreover, the doctrine of assumed risk does not apply in the absence of the relationship of master and servant, as was the case here. 20 R. C. L. p. 109, sec. 95; 30 Tex.Jur. p. 678, sec. 29; West Texas Utilities Co. v. Renner, Tex.Com.App., 53 S.W,2d 451; Gulf, C. & S. F. Ry. v. Irick, Tex.Civ. App., 116 S.W.2d 1099; El Paso Printing Co. v. Glick, Tex.Civ.App., 246 S.W. 1076; Id., Tex.Com.App., 263 S.W. 260; Alamo Nat. Bank v. Hazlitt, Tex.Civ.App., 92 S.W.2d 315; Nesmith v. Magnolia Co., Tex.Civ.App., 82 S.W.2d 721; San Angelo, etc., Co. v. Baugh, Tex.Civ.App., 270 S.W. 1101.

The case appears to have been fairly tried, without reversible error, and the judgment is affirmed.


author: JACKSON, Chief Justice.

text:
    WHITE et al. v. WILBANKS et al.
    No. 5219.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 12, 1940.
    W. S. Birge, of Amarillo, for appellants.
    J. L. Bagwell, of Amarillo, for appellees.
   JACKSON, Chief Justice.

The record shows that the Potter Coun-ty News was a partnership composed of Wm. A. Wilbanks and Clyde R. Hazel-wood who, under the partnership name, publishedrthe Potter County News, a newspaper m Potter County, Texas, on all the dates material to this litigation. White’s Auto Stores was a partnership composed of W. Earl White, Tom C. White, W. A. White and George G. Adams, who owned and, by their local manager, George Mansur, conducted a mercantile business under their partnership name in Amarillo, Texas.

On June 9, 1937, the Potter County News, designated therein as party of the first part, and the White’s Auto Stores, named as parties of the second part, entered into the following contract:

“Know all men by these presents that I, Wm. A. Wilbanks, of the County of Potter, State of Texas, hereinafter referred to as Party of First Part, and George Mansur as manager of White’s Auto Stores, located in Amarillo, Texas, hereinafter called party of the second part, do enter into and make the following agreement:
“Party, of the first part, for and in consideration of twenty (20^) cents per column inch, does agree to insert in the Potter County News, weekly, as ordered by the White’s Stores, ad advertising copy as released on insertion orders.
“Party of the second part, for and in consideration of the benefits derived from the above mentioned advertising, agrees to use a minimum of 4,000 column inches of advertising space at the agreed price of 20 cents, to be used within the twelve months period, from June 19, 1937, to June 19, 1938, said advertising to be inserted in the Potter County News, in accordance with insertion orders released weekly by White Auto Stores,
“Party of the second part, further agrees to remit to party of the first part in full every thirty days, for space ordered during the proceeding month.
“Party of the second part further agrees that in the event that 4,000 column inches of advertising are not ordered by party of the second part, during the period covered by this contract, the unused portion of the contracted space of 4,000' inches shall be due and payable on June 19th, 1938.
“Party of the first part agrees that any advertising space ordered during the life of this contract over and above the minimum of this contract, shall be inserted at the contract price of twenty (20) cents per column inch.
“Witness our hands at Amarillo, Texas, this the nineteenth day of June, A. D. 1938.”

On May 25, 1939, Wm. A. Wilbanks and Clyde R. Hazelwood, the plaintiffs, doing business as the Potter County News, instituted this suit in the County Court of Potter County against the defendants, W. Earl White, Tom C. White, W. A. White and George G. Adams, doing business as White’s Auto Stores in Amarillo, Texas, to recover the sum of $447.80, the alleged balance due on the unused part of the contract.

The plaintiffs allege that during the contract year which began June 19, 1937, and ended June 19, 1938, they were ready, willing and able to perform the contract in compliance with the terms and provisions thereof but that the defendants failed and refused to release to plaintiffs for publication advertising copy for 4,000 column inches at the agreed price of 20⅜5 per inch but furnished only 1976 column inches which was published promptly and for which they received $353.20, leaving the defendants indebted to them in a balance of $447.80 which amount became due and payable on June 19, 1938.

The defendants answered by general demurrer, special exceptions, general denial and denied' under oath that they were indebted to appellees in any sum.

They pleaded that they had furnished 306 column inches of advertising before the contract sued on was executed but by agreement thereafter these 306 inches were to constitute a part of the 4,000 inches. They pleaded that there is a general custom among newspapers of which plaintiffs and defendants knew by which contracts for advertising are made on a sliding scale and such custom was in contemplation of the parties when they entered into the written contract. They alleged that on or about March 11, 1938, the written contract was changed by an oral agreement and it was thereby stipulated that the unused part of the 4,000 column inches should be paid for on a sliding scale. The defendants also pleaded that should it be determined that the defendants breached the contract the plaintiffs sustained no damages thereby for the reason that they were not ready, willing and able to print the advertising covered in the contract according to its terms; that the price charged for advertising is not all .profit and it would have cost the plaintiffs $285.15 to have published the 1901 unused column inches stipulated for in the contract and their profit thereon would not have exceeded $95.05; that there had been a settlement and adjustment of the accounts between the parties and the plaintiffs were estopped R> sue for or recover any additional sums.

In response to special issues submitted the jury found, in effect, that the plaintiff and defendant had agreed subsequent to June 19, 1937, that the opening advertisement of 306 column inches was to be included in the 4,000 inches in the contract;, that there was no oral agreement that the-written contract should be changed so that the balance payable for the unused portion of the contract should be adjusted on a sliding scale.

On these findings judgment was rendered that the plaintiffs have and recover judgment of and from the defendants for the sum of $380.20 with interest thereon at the rate of 6 per cent per annum until paid and all costs of suit, from which judgment this appeal is prosecuted.

The appellants by several assignments assail as error the action of the court in rendering judgment against them because the written contract did not provide for the payment of liquidated damages and the price of publishing the advertisements was-not all profit and the appellees failed to-plead or prove the amount of the damages-they sustained on account of the breach of the contract by appellants.

The contract provides in effect that the appellant will use a minimum of 4,000 column inches of advertising space in the Potter County News at 20 cents per column, inch from June 19, 1937, to June 19, 1938; that the advertising was to be furnished by appellants weekly and inserted in the paper-in accordance with the orders of appellants-who agreed that “in the event that 4,000-column inches of advertising are not ordered” by appellant “during the period* covered by the contract the unused portion of the contracted space of 4,000 inches shall, be due and payable on June 19, 1938.”

In determining whether the contract stipulated for liquidated damages the-intention of the parties is a controlling, factor and this intention is to be ascertained, if it may be from an examination of the terms of the contract, construed in the light of the subject matter, the character of the transaction, the situation of the parties and the certainty or uncertainty o£ showing the amount of actual damages-sustained and the ease or difficulty with which proof of such actual damages can be made.

The record shows that the Potter County News contained from six to twelve pages each week depending on the amount of advertising that appellees obtained for publication each week and that additional pages were added at any time it was necessary in order to take care of the business'. The testimony shows without contradiction that the price of advertising charged for the publication thereof in a newspaper is not all profit; that the expenses involved in the instant case consisted of the general cost of operation, the investment, the location of the premises, the purchase and upkeep of machinery and equipment, the price of paper and ink and the necessary labor to do the work.

These facts disclose the difficulty, if not the impossibility, of proving with any degree of certainty the amount of actual damages suffered by appellees on account of the breach of the contract by appellants and while appellants pleaded the expense to plaintiffs of publishing the unused column •inches and the profit they would have made they offered no proof and requested the submission of no issue on this contention. McElroy et al. v. Danciger, Tex.Civ.App., 241 S.W. 1098.

There is nothing on the face of the contract nor in the testimony that indicates that the amount stipulated in the contract as datnages is excessive. 13 Tex.Jur. 120, § 44; Walsh v. Methodist Episcopal Church South, of Paducah, Tex., et al., Tex.Com.App., 212 S.W. 950.

Langever v. R. G. Smith & Co., Tex. Com.App., 278 S.W. 178, 179, in holding that a provision in a billboard advertising contract stipulated for liquidated damages, the Commission of Appeals, with the approval of the Supreme Court, says: “Perhaps the most reasonable ground upon which agreed liquidated damages clauses are sustained is the difficulty or uncertainty that confronts the parties with respect to an accurate estimate of the damages to flow from the breach. Where it is certain that damages will flow, and where it is certain they cannot be accurately measured, or where it appears their ascertainment, if possible, will be difficult, the best reasons exist for respecting the agreement of the parties in advance upon a sum mutually satisfactory. In this case the nature of plaintiff in error’s business, the character and amount of expense to him in procuring 'sites, and the construction of signboards and their maintenance as contemplated by the contract, and the extreme difficulty, if not impossibility, of proving even the approximate amount of his damages in case of a breach, we think constitute ample reason and justification for holding the clause of the contract under consideration to be a stipulation for liquidated damages rather than a mere penalty. 11 Williston on Contracts, § 783. Any effort to establish the actual damages for a breach of a contract such as the one under consideration here would be attended with such unusual considerations and surrounded with such uncertainty and difficulties as to take the case out of the usual class of cases of mere default in the payment of money, and thus to afford fair grounds for sustaining an agreement for liquidated damages.”

See, also, Pace v. Olvey, Tex.Civ.App., 282 S.W. 940; Ferguson v. Ferguson, Tex. Civ.App., 110 S.W.2d 1016; 13 Tex.Jur. 114 § 28; Nelson et al. v. Richardson et al., Tex.Civ.App., 299 S.W. 304; City of Indianola v. Gulf, Western Texas & Pacific Railway, 56 Tex. 594.

In view of the record and these authorities it is our opinion that the contract provided for the payment of 20 cents per column inch for the unused part of the 4,000 column inches of advertising which appellants contracted to use from June 19, 1937, to June 19, 1938. All controversy about the number of column inches furnished and used has been eliminated by the finding of the jury and there is no contention that if the stipulation in the contract authorized liquidated damages that the amount of the judgment in favor of appellees is incorrect.

The court did not submit to the jury, neither did the appellant request the submission of the defensive issues pleaded by them of settlement, custom, or what it would have cost appellees to have published the unused part of the 4,000 column inches, and the evidence is without substantial contradiction that appellees were ready, willing and able to publish any advertising matter released to them according to the provisions of the contract.

The appellant, in our opinion, having failed to present any reversible error, the judgment is affirmed.


author: GRAVES,' Justice.

text:
    SCHUMAKER v. WHITESIDE-APPLING MOTOR CO.
    No. 11032.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 31, 1940.
    Rehearing Denied Nov. 21, 1940.
    Cullen B. Vance, -of Edna, for appellant.
    Geo. P. Willis, Jr., of El Campo, for ap-pellee.
   GRAVES,' Justice.

This statement, adopted by the appellee as being substantially correct, is taken from the appellant’s brief:

“This suit, styled in the trial court as Whiteside-Appling Motor Company v. I. D. Schumaker, was instituted in the County Court of Wharton County, Texas, on August 24th, 1939, wherein plaintiff, White-sidé-Appling Motor Company, in its petition alleged the sale on October 21, 1938, of a certain Ford automobile to defendant, I. D. Schumaker, and the execution by Schumaker of a note, and a chattel mortgage on said automobile securing same, said note and mortgage each being dated October 21st, 1938, the note being in the principal sum of $824.00 and representing the balance of the purchase price of said automobile. Plaintiff’s petition further alleged 'a default in the payment of said note as provided, except certain payments credited on the note totalling the amount of $175.00, to plaintiff’s damage as alleged in its petition in the amount of $746.35.
“In its petition, plaintiff prayed, first, for judgment for the amount last above mentioned, that is $746.35, together with interest thereon from date at the rate of 10% per annum, for all costs of suit, and for foreclosure of the chattel mortgage lien on the Ford automobile, and with a further prayer for an order of sale authorizing a private sale of the automobile, and that it be allowed to credit the amount of such sale against the total amount of the indebtedness, and for a deficiency judgment over and against Schumaker for the balance of the amount then remaining unpaid, concluding with a prayer for general relief.
“Defendant, through his attorney, filed a general demurrer and general denial, and a special plea of accord and satisfaction, in which latter plea defendant alleged that on or about the 1st day of September, A. D. 1939, he delivered- to plaintiff and plaintiff received and accepted the automobile in full satisfaction of the claim set forth in plaintiff’s petition, and that by reason thereof there was -an accord and satisfaction.
“The case was tried before a jury on November 23, 1939, and at the conclusion of the evidence, plaintiff moved for an instructed verdict, which motion was by the court over-ruled.
“The case was then submitted to the jury on one special issue, as follows:
“ ‘Do you find from a preponderance of the evidence that Whiteside-Appling Motor Company agreed to accept the automobile in question from I. D. Schumaker as full and complete payment and satisfaction of the note dated October 21st, 1938, held by Whiteside-Appling Motor Company against the said I. D. Schumaker?
“ ‘You will answer “Yes” or “No”.’:
“The answer of the jury in response thereto was, ‘Yes’.
“Upon return of the verdict, defendant duly filed his motion for judgment thereon, and on November 24th, 1939, plaintiff filed its motion for judgment non obstante veredicto, and on the 6th day of December, 1939, judgment non obstante veredicto was entered for plaintiff for the amount of $746.35, to which judgment defendant then and there in open court duly excepted and gave notice of appeal.”

The controlling question presented on the appeal is not whether the evidence was sufficient to support the quoted verdict of the jury that appellee agreed to accept the car in satisfaction of the note, but only whether it was sufficient to raise an issue of fact over that question. Johnson v. Moody, Tex.Civ.App., 104 S.W.2d 583, and authorities there cited.

When the evidence upon that inquiry is looked to, it seems plain to this Court that it was clearly sufficient to raise such an issue; indeed, it seems only needful to cite these material excerpts from the testimony, respectively, of Mr. Whiteside for the appellee, and of the appellant, Mr. Schu-maker, for himself, to-wit:

“H. F. Whiteside testified on cross-examination :
“ ‘Schumaker came in several times to talk to me about the car note and finally, about the first part of August, came in and said that he could not meet the payments on the note and that he wanted to turn the car back to us. I told him all right, to bring the car in. I do not know whether he signed a bill of sale or transfer or not. He may have signed one, I just don’t remember. Mr. Schumaker brought the car in voluntarily and I did not send anyone out to pick it up.’
“I. D. Schumaker testified on direct examination :
“'T talked to Mr. Whiteside, the manager of Whiteside-Appling Motor Company several times during the year with reference to the cár and my paying for same and I explained to him why I had been unable to meet the payments. Sometime in August, 1939, I talked to George York, the collector for the Whiteside-Appling Motor Company and he told me that Mr. White-side wanted to see me. I went over there to see Mr. Whiteside and told him that I was unable to meet the payments and that I wanted to turn the car back to them. I told him that I would make arrangements to pay the open account which I owed them, which.amounted to $36.12. He said,
“All right, bring the car in”, I drove the car on home that day and got a friend of mine, Ray Orsag, to come with me and brought the car back to Whiteside-Appling Motor Company that night and left it there. I signed a bill of sale and application to transfer that day when I was over there, transferring the title to the automobile to Whiteside-Appling Motor Company. It was my understanding when I left the car there and signed the bill of sale that it was in settlement of the balance I owed on the car. I later paid the $36.12 I owed on the open account.’ ”

The jury as triers of fact were entitled to indulge all the reasonable inferences that rational and unbiased minds might properly deduce from the facts and circumstances so presented in the separate statements of these two witnesses. 17 Tex.Jur. pp. 244, 245; Galveston, H. & S. A. R. Co. v. Cook, Tex.Civ.App., 214 S.W. 539; Cotton v. Cooper, Tex.Com.App., 209 S.W. 135; Texas Employers’ Ins. Ass’n v. Shipley, Tex.Civ.App., 260 S.W. 646.

It was not an illegitimate inference from what thus passed between these two interested witnesses that their minds did meet upon an understanding between them to the effect that they were thereby erasing the original transaction completely by the purchaser’s “turning the car back”, in complete satisfaction of any balance due on the note he had originally given for the same; further, that the execution of such an understanding on both sides was provided for that same day by the actual return of the car, together with the transfer back of the title thereto by the original purchaser to its seller; in fact, there was a complete absence of any testimony' having to do with any other contingency than a turning of the car back in a full satisfaction of the debt—such as terms or condiT tions for any further tenure of it, or anything else to be done about it by either of the parties.

In other words, it was properly left for the jury to say, as men of ordinary intelligence, from all the facts and circumstances before them, whether or not these two parties in so dealing with .each other had in mind the common intention of wiping the slate clean as to the car and the balance on the note originally given for the purchase price, by the return of the one and the consequent cancellation of the other; they resolved that question in the appellant’s favor, hence, under the plain provisions of R.S.Article 2211, and such holdings as Duvall v. Kansas City Life Ins. Co., Tex.Civ.App., 96 S.W.2d 793; Id., Tex.Civ.App., 104 S.W.2d 10; and Draper v. Presley, Tex.Civ.App., 111 S.W.2d 1124, the court was without power to enter the judgment for the appellee notwithstanding.

It follows from these conclusions that the appealed-from judgment should he reversed, and, since no other questions were raised by the appellee, there appearing to have been a full development of the facts, judgment should be here rendered in appellant’s favor, declaring the note fully paid and discharged.

Reversed and rendered.


author: BOND, Chief Justice.

text:
    WILSON v. ENGLISH.
    No. 12921.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 12, 1940.
    Rehearing Denied Nov. 23, 1940.
    . Roy W. McDonald and Herbert S. Bon-ney, Jr., both of Dallas, for appellant.
    Callaway & Reed and Frank C. Brooks, all of Dallas, for appellee.
   BOND, Chief Justice.

Plaintiff, George N. Wilson, instituted this suit in a county court of Dallas County, Texas, against Clarence'T. English, doing business under the trade style of English Freight Company, for damages, both actual and exemplary; the actual damages alleged are of the sum of $75, and exemplary damages $250, making a total of $325, within the jurisdictional limits of the court. The defendant answered by special demurrer to plaintiff’s plea for exemplary damages and to the jurisdiction of the court for alleged actual damages; and specially pleaded,- by supplemental petition, an independent offset and counterclaim for debt in the sum of $86.

The trial court sustained defendant’s demurrer to plaintiff’s plea for exemplary damages and plea to the jurisdiction of the court, accordingly, dismissed plaintiff’s suit; and, also, dismissed defendant’s cross-action. Plaintiff alone excepted, gave notice of appeal and presents assignments of error to the action of the court.

We think the trial court erred in sustaining defendant’s demurrer to plaintiff’s suit for exemplary damages and dismissing his cause of action for lack of jurisdiction. The transaction involved in this suit, whereby defendant got possession of 300 lbs. of coffee from plaintiff, of the reasonable value of $75, under circumstances alleged in plaintiff’s petition, amounts to a conversion of plaintiff’s property in a manner to give rise for exemplary damages. Plaintiff alleged:

“That the defendant intentionally, fraudulently and maliciously, in wanton disregard for the plaintiff’s rights, sent his agent, A. R. Tullos or A. R. Tullís, to the plaintiff’s place of business to inquire about wholesale prices for plaintiff’s coffee and to represent himself as a salesman who was interested in selling plaintiff’s coffee in and about Austin, Texas, as set out in paragraph 2(a) hereof; and the defendant intentionally, fraudulently and maliciously, in wanton disregard for the plaintiff’s rights, caused the said A. R. Tullos or A. R. Tullís to call the plaintiff by telephone on the 21st day of February, 1938, and fraudulently and maliciously placed an order for 500 lbs. of plaintiff’s Jamb Blend Coffee; that the defendant and his agent, the said A. R. Tullos or A. R. Tullís, did not, at the time of placing such order, intend or have not since intended to ever in good faith purchase said coffee or pay for the same, but procured possession thereof for the purpose of keeping the Same to square an alleged indebtedness of $86.0(> due the defendant by the plaintiff; that the defendant intentionally, maliciously and fraudulently, in wanton disregard for plaintiff’s' right, took possession of plaintiff’s said coffee, as set out more fully in paragraph 2(c), for the sole purpose of appropriating the same to his own use and benefit, and accepted the same from the plaintiff, knowing that the plaintiff was wholly unaware of the defendant’s fraudulent scheme to take possession of said coffee; that the plaintiff was at the time of delivery of said coffee to the defendant, unaware of the defendant’s fraudulent scheme to take possession of said coffee; that the defendant had no intention at the time he took possession of the said coffee of ever hauling the same to Austin, Texas, and has never since such time had any such intention.
“4. That the defendant has not hauled the said 300 lbs. of Jamo Blend Coffee to Austin, Texas, in accordance with the instructions of plaintiff, as more fully set out in paragraph 2(c); that the defendant has retained possession of the said coffee and kept the same in its possession at Dallas, Texas, intentionally, fraudulently and maliciously, in wanton disregard of plaintiff’s rights, for the defendant’s own use and benefit, or the said defendant has otherwise disposed of the said coffee to the plaintiff’s damage.
“5. That the plaintiff, on or about the 28th day of February, immediately upon learning of the defendant’s fraudulent and malicious scheme, demanded the return of said 300 lbs. of Jamo Blend Coffee, wrongfully taken by the defendant, but that the defendant has failed and refused and still fails and refuses to return said coffee to the plaintiff or to return any part thereof to the plaintiff, all of which is to the plaintiff’s damage.
“6. That the intentional, fraudulent and malicious acts of the defendant, as herein ■set out, to obtain the said 300 lbs. of Jamo Blend Coffee, and the obtaining the possession thereof by such acts, in the retaining of the 300 lbs. of Jamo Blend Coffee by the defendant after demand for the return thereof had been made by the plaintiff, all constitute conversion and each constitutes conversion of the plaintiff’s said coffee by the defendant.
“7. * * * That the plaintiff is entitled to exemplary or punitive damages for the intentional, fraudulent and malicious acts of the defendant, as complained of herein, of obtaining and holding the said 300 lbs. of Jamo Blend Coffee, the sum of Two Hundred and Fifty and no/100 ($250.00) Dollars.’’

A careful review of plaintiff’s petition shows that his claim for actual damages is not one based solely upon a contract, or the breach of a contract mutually agreed upon by the parties. It reveals a wanton disregard pf plaintiff’s rights. So, in a suit of this character, allegations for exemplary damages are sufficient, when property in the possession of plaintiff is alleged to have been wrongfully obtained by another by malicious misrepresentations with a fraudulent intention, purpose, scheme and plan to convert same to his own use and benefit. Such allegations, that the acts of the defendant in obtaining the coffee and converting same intentionally, fraudulently and maliciously, in wanton disregard of the rights of the owner of the property in an effort to collect an alleged claim or debt, are strong indictments of wrongdoing, warranting a claim for exemplary damage.

Courts cannot sanction a collection of a debt, by fraudulent means, as alleged in plaintiff’s petition; accordingly, the judgment of the court below is reversed and cause remanded for trial.

Reversed and remanded.

On Motion for Rehearing.

PER CURIAM.

In our original opinion reversing and remanding this cause, for error of the trial court in sustaining defendant’s special exception relating to plaintiff’s exemplary-damages and, for lack of jurisdiction, dismissing the suit both as to plaintiff and defendant, we did not mention appellant’s assignment of error relating to the trial court’s action in overruling his demurrer to defendant’s cross-action, or offset and counterclaim. This assignment did not escape our attention.

Defendant’s cross-action, or offset and counterclaim, against plaintiff’s cause of action was a controverted independent suit, in no way connected with, incident to, or growing out of plaintiff’s tort action for damages. The trial court having dismissed defendant’s cross-action, to which defendant did not except, give notice of appeal, or urge counter or cross-assignment of error, we concluded that such action of the trial court effectively precludes further consideration of the cross-complaint on another trial. This may have been an incorrect preclusion. However, be that as it may, plaintiff’s exception to the cross-action, or offset and counterclaim, should have been sustained by the trial court, and the same result thus obtained.

It would be anomalous to allow a creditor to obtain possession of property belonging to another, by “fraudulent misrepresentations and with malicious intention, scheme, plan, and purpose, to convert same to his own use and benefit,” for the sole purpose of appropriating it to the payment of his debt and, thereafter, in a suit by the debtor for damages growing out of such wanton taking, to offset such damages by a counterclaim for his debt. Courts in this country are created to redress wrongs, not to encourage them, and to permit the collection of a debt against a defaulter, under such circumstances, cannot be countenanced. A tort-feasor, effecting collection of a debt by offsetting wrongful appropriation of a debtor’s property, is but a sanction of a wrong. A suit for damages growing out of a wrongful conversion, 'as alleged in this suit, should not be encumbered with an independent action to effect collection of an alleged claim, antedating the conversion, which was in nowise connected with, incident to, or growing out of the suit for damages; accordingly, plaintiff’s demurrer should have been sustained, and the cause is remanded to the court below for trial in keeping with our opinion.


author: MONTEITH, Chief Justice.

text:
    ANDERSON et ux. v. GIPSON.
    No. 11158.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 7, 1940.

      Kennedy & Granberry, of Crockett, for -appellants.
    None for appellee.
   MONTEITH, Chief Justice.

This is an appeal from an order of the district court of Houston County granting an application for a permanent injunction restraining appellants, W. H. Anderson and his wife, from interfering with appellee, Chester A. Gipson, and his assigns, in the enjoyment of the hunting rights and privileges conveyed to him by a lease on lands owned by appellants.

By cross-action appellants alleged damages to the property under lease and the timber thereon and sought an interpretation and cancellation of said lease.

Upon a hearing before the court on application for a permanent injunction, a temporary restraining order previously entered was made permanent, and judgment was rendered in favor of appellants and against appellee in the sum of $25. .

There is no statement of the facts introduced in the trial court in the record, therefore we must rely upon the findings of fact of the trial court to which no exceptions were taken.

The court found that by written instrument dated February 14, 1938, appellants assigned the hunting, fishing and trapping privileges on 703 acres of land in Houston County, Texas, to “appellee, his heirs, assigns and transferees” for a primary term of two years, with the option of an additional five year term at a yearly rental of $100, cash, for each additional year. The material parts of said instrument provided: “These premises are leased for the express purpose of hunting and fishing and trapping thereupon with the right of ingress and egress for the said Chester A. Gipson, his heirs, assigns and transferrees, and it is expressly agreed that the said W. H. Anderson and Joe Williams and they alone shall have like hunting and fishing privileges during the term of this lease.”

He found that on February 10, 1940, ap-pellee procured and tendered appellants a cashier’s check for the sum of $100 as rental for said premises for an additional term of one year from February 14, 1940, under the terms of said lease, but that appellants declined to accept said tender and advised appellee that “they had decided not to let him have the lease any longer, unless plaintiff would pay for damages to timber” ; that later said check was delivered to W. H. Anderson. Said $100 rental was later deposited in the registry of the trial court pending final disposition • of this appeal. No tender of gold, silver or bills was made by appellee. He found that appellee had granted privileges covering the primary term of the lease on said land to thirteen additional parties and had accepted therefor a consideration of $200 jointly from all of said parties, and that appellee would in the future make similar arrangements with the same or other parties. The court concluded as a matter of law that under the terms of said lease contract appellee was entitled to assign hunting privileges to other parties who would exercise such privileges with him and that appellants had ratified and acquiesced in the acts of appellee in making such assignments with other parties.

Appellants contend that the estate created by the lease in question was what is termed a “profit a prendre” in the nature of a common law right of commons, and that this right of privilege could be enjoyed by ap-pellee or his assigns, but that he could not assign the estate so acquired to others to be exercised in common with him and thereby increase the burden on the servient estate; and that since the estate so acquired had been transferred and divided by appellee, the entire estate conveyed had been extinguished as a matter of law.

No briefs have been filed in this court by appellee.

While we have been cited to no decisions by the courts of this state involving the questions here presented and have found none, they have, we think, been decided by the courts of other states and may be determined by the established principles of law.

The rule laid down by the text writers and supported by the great weight of authority from other jurisdictions is that the right of one person to hunt on premises owned and in the possession of another may be acquired by a grant or lease of hunting privileges, and that when so granted it is not a mere license but is an interest in the real estate in the nature of an incorporeal hereditament, and that, as such, it is within the statute of frauds and requires a writing for its creation. It is not an easement since, strictly speaking, an easement implies that the owner thereof shall take no profit from the soil, but it is more properly termed a “profit a prendre” and, as such, is not subject to the rule against perpetuities. It is held that such a grant must be strictly construed and cannot be extended beyond the terms of the deed (Isherwood v. Salene, 61 Or. 572, 123 P. 49, 40 L.R.A..N. S., 299, Ann.Cas.1914B, 542), and that unless the grant otherwise determines the rights of the parties, the owner of the hunting privileges may assign his rights to another, but that he cannot give a pass or permit to another so as to allow the latter to exercise hunting privileges on the premises with him. St. Helen Shooting Club v. Mogle, 234 Mich. 60, 207 N.W. 915; Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365, 32 A.L.R. 1527; Bingham v. Salene, 15 Or. 208, 14 P. 523, 3 Am.St.Rep. 152. Nor can the grantee of the premises, where the grantor has reserved the hunting privileges, permit others to come on the land and hunt, although the grantee, or his assigns, have a qualified right to hunt which is subject to the fee of hunting privileges reserved to the grantor. Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365, 32 A.L.R. 1527; 24 Am. Jur., 378, section 7; 12 R.C.L., 689, Sec. 7.

It is stated in 17 Am.Jur. 927, section-6, that: “The right to profits, denominated ‘profit a prendre’, consists of a right to take a part of the soil or produce of the land, in which there is a supposable value. It is, therefore, distinguishable from an easement, since one of the features of an easement is the absence of all right to participate in the profits of the soil charged with such easement. Moreover, . a profit a prendre may exist independently without connection with, or being appendant to, other property. In this respect such a right is comparable to an easement in gross, but quite distinct from an appurtenant easement. A profit a prendre is created by grant; it cannot be created by parol. If enjoyed by reason of holding certain other estate, it is regarded in the light of an easement appurtenant to an estate; whereas if it belongs to an individual distinct from any ownership of other lands, it takes the character of an estate in the land itself, rather than that of a proper easement in or out of the same and is assignable or inheritable, differing in the latter respect from an easement in gross. Examples of profit a prendre are the right to take timber or coal from the land of another or to fish in waters belonging to other persons. Flowing water, a right to the use of which the owner of the subjacent soil possesses, is not considered a product of the soil. Therefore, a right to take such water is an easement. A right to take ice, however, is sometimes regarded as a profit. A claim by custom to enjoy a profit a prendre in the soil of another is invalid and unsupportable; to allow such a claim would result in the destruction of value in the subject of the profit.”

The case of Bingham v. Salene, 15 Or. 208, 14 P. 523, 3 Am.St.Rep. 152, above referred to, which was decided by the Supreme Court of Oregon in 1887, involved facts similar in practically all respects to those in the instant case. It was a suit in equity to enjoin the defendants from interfering in any manner with the alleged exclusive rights and privileges of the plaintiff to go upon and over certain lands of the defendant for the purpose of shooting, killing or taking wild fowl in the lakes and waters therein and to restrain the defendants from inviting or allowing any other person or persons to do so. The deed under which plaintiffs claimed, conveyed to them, their heirs and assigns forever, the sole and exclusive right, privilege, and easement to shoot, take and kill wild ducks and other wild fowl, and provided for ingress and egress to and from said lakes for the purpose of shooting wild fowl. The court in its opinion held that the provisions referred to were a grant of “a profit a prendre” and not a mere license revokable at the pleasure of the grantor, but that the privilege conveyed thereby was limited strictly to the places designated and that the grant did not authorize the indiscriminate giving by the grantees of permits to various persons to exercise the privilege granted.

The holding in the case of Bingham v. Salene, supra, is followed by the Supreme Court of the State of North Carolina in the case of Council v. Sanderlin, 183 N.C. 253, 111 S.E. 365, 367, 32 A.L.R. 1527, which involves a grant of hunting rights on the shores of Waccamaw Lake. The court held in its opinion that the estate granted, which was similar to the estate involved herein, was in the nature of- “profit á prendre”, and that, as such, grantees had a base and qualified right to the hunting privilege, “but without the right to extend such privilege to others.” The court further held that owners of the land had “the right to hunt over the same themselves but without power of leasing said privilege or granting it to others.”

The record does not show that ap-pellee herein has made written assignments of the hunting privileges acquired by him under said lease. It does show, however, that he has granted to others the right to exercise such privileges with him and that he has thereby extended the privileges conveyed beyond the terms of the lease and thereby increased the burden on the estate conveyed. Under the authorities cited, judgment should have been rendered restraining appellee from issuing permits or licenses to others to hunt with him upon the land under lease.

Appellants’ contention that said lease was terminated by failure of appellee to tender the rental due in cash cannot be sustained. The trial court found that appellant, Mrs. Anderson, declined to accept a cashier’s check tendered by appellee for the amount of said rental due in advance and that she informed appellee “that they had decided not to let him have the lease any longer, unless plaintiff would pay for damages to timber.” In the absence of a statement of facts, the above findings of the court, which were not excepted to, must be construed as an affirmative finding that the actual production of money was waived and that a valid and effective tender was shown. Texas Auto Co. v. Clark, Tex.Civ.App., 21 S.W.2d 655.

It follows from these conclusions that the judgment of the trial court, except as otherwise hereinbelow directed, should be in all things affirmed. It follows further that, under appellants’ prayer, a permanent injunction should issue against appellee, Chester A. Gipson, limiting the use of the leased premises to him or his assigns, and enjoining him from granting or attempting to grant to others the right to exercise with him hunting privileges on said leased premises.

Reformed and affirmed.


author: JOHNSON, Chief Justice.

text:
    HEID BROS., Inc., v. SMILEY.
    No. 5667.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 8, 1940.
    Rehearing Denied Nov. 21, 1940.
    C. C. McKinney, of Cooper, Jackson & Stell, of Sulphur Springs, and R. A. D. Morton, of El Paso, for appellant.
    Hutchison & Fisher and Long & Wortham, all of Paris, for appellee.
   JOHNSON, Chief Justice.

This is an appeal from an order overruling a plea of privilege. M. L. Smiley, a resident of Paris, Lamar County, Texas, filed suit in the District Court of Lamar County against Heid Brothers, a corporation, domiciled in El Paso, El Paso County, Texas. Plaintiff’s petition sought to recover the balance claimed to be due him by Heid Brothers for baled prairie hay shipped from Lamar County by Smiley to Heid Brothers under a written contract signed by Heid Brothers in El Paso County and by Smiley in Lamar County. Heid Brothers, a corporation, by its president, E. C. Heid, filed its plea of privilege in statutory form to be sued in El Paso County. Smiley filed his controverting affidavit alleging the facts set out in his petition, including execution of the contract, its terms, performance by him, and its breach by Heid Brothers in failure to pay the balance due for the hay shipped in accordance with the contract, whereby Smiley claimed that by the terms of the contract Heid Brothers agreed to make payment for the hay in Paris, Lamar County, and that by reason thereof venue was laid in Lamar County under R.C.S. Article 1995, sec. 5, providing: “If a person has contracted in writing to perform an obligation in a particular county, suit may be brought either in such county or where the defendant has his domicile.” Smiley further claimed that a part of his cause of action arose in Lamar County and that Heid Brothers being a private corporation, venue was laid in Lamar County under R.C.S. Article 1995, sec. 23, providing: “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 * *

Upon hearing before the court, the plea of privilege was overruled, from which order defendant, Heid Brothers, has properly perfected its appeal. The provisions of the contract pertinent to the issues here involved read as follows:

“The price agreed upon between M. L. Smiley and Heid Brothers for the above described hay is eight and 5%oo dollars ($8.50) per ton, fob cars Brookston and High, Texas, payable to M. L. Smiley by Heid Brothers as follows: twenty-seven hundred sixty-two and 5%oo dollars ($2762.50) cash on execution of this contract and the balance at the rate of four and 2¾0 dollars ($4.25) per ton as cars are shipped, payable upon delivery of bills of lading to the First National Bank of Paris, in Paris, Texas. * * *
“As a further and moving consideration for this sale Heid Brothers promise, agree and guarantee that drafts accompanying bills of lading delivered to the First National Bank of Paris shall be paid promptly to that bank.”

Appellant contends “that the clause ‘payable upon delivery of bills of lading to the First National Bank of Paris, Texas,’ designates the time at which the defendant is to pay and the agent of plaintiff to collect the pay, but does not designate the place of payment.” We are unable to agree with that contention. As we interpret the contract, its plain and unambiguous terms bind the defendant to pay for the hay “in Paris, Texas,” upon delivery of the bills of lading to the First National Bank of Paris. Paris is the county seat of Lamar County, by reason of which courts may take judicial knowledge of the fact that it is located in Lamar County. 17 Tex.Jur. 185, Sec. 17; Strawn Merchandise Co. v. Texas Grain & Hay Co., Tex.Civ. App., 230 S.W. 1094; Cecil v. Fox, Tex.Civ.App., 208 S.W. 954; Martin v. Turnbow, Tex.Civ.App., 96 S.W.2d 730; Port Iron & Supply Co. v. Casualty Underwriters, Tex.Civ.App., 118 S.W.2d 627. Therefore venue was by the terms of the contract fixed in Lamar County under Article 1995, sec. 5. Texas Moline Plow Co. v. Biggerstaff, Tex.Civ.App., 185 S.W. 341; Sunset Grain Co. v. Smith Bros. Grain Co., Tex.Civ.App., 241 S.W. 552; Wolf v. Pittman & Harrison Co., Tex.Civ.App., 247 S. W. 322; Pittman & Harrison Co. v. Houston Bag & Bagging Co., Tex.Civ.App., 247 S.W. 324.

The judgment of the trial court will be affirmed.


author: WILLIAMS, Justice.

text:
    HUGHES PRODUCTION CO. v. HAGAN et al.
    No. 5656.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 6, 1940.
    Rehearing Denied Nov. 21, 1940.
    Thompson, Knight, Baker, Harris & Wright, of Dallas, Lightfoot, Robertson, Gano & Johnston, of Fort Worth, and Hurst, Leak & Burke and Stinchcomb, Kenley & Sharp, all of Longview, for plaintiff in error.
    Jones' & Jones, of Marshall, for defendants in error.
   WILLIAMS, Justice.

Nira Dell Hagan and her minor son recovered judgment against Hughes Production Company, defendant below, for the death of their husband and father, Simon W. Hagan, who received fatal burns in an oil field gas fire which occurred upon defendant’s leasehold and premises in charge of Ed Rosa, its foreman.

Subsequent to a reversal of this litigation upon a former appeal, reported in 114 S.W.2d 326, 331, Hughes Production Company v. Hagan, El Paso Court of Civil Appeals, plaintiffs filed amended pleadings. The latter contained the additional allegations that the property was being operated at the time differently from, defendant’s usual and customary mode of operation without the knowledge of Hagan; and that defendant was violating a Railroad Commission rule applicable to the East Texas oil field which required the piping of gas to a point ISO feet from any producing well or other fire hazard, and there burned. In all other respects the pleadings of plaintiffs in the instant cause were substantially the same as in the former trial. The defensive pleadings as detailed in the former opinion substantially state the grounds of defense urged by defendant in this trial.

In response to special issues the jury found: (1) That Rosa at the time was acting within the course of his employment by defendant; (2) that Rosa operated the property so as to cause or permit large quantities of gas to escape within ISO feet of a fire in a heater; (3) that he operated the property so as to cause or permit large quantities of gas to explode or ignite; (4) that Rosa knew of the existence of unburned gas on the property at the time Hagan started to the premises and failed to warn Hagan of the existence of same. The jury found that each of these was negligence and a proximate cause of the injuries; and that the fire was not the result of an unavoidable accident. The jury was asked and made a general finding “that Hagan was not guilty of contributory negligence in remaining at the place where the heater was being operated on the occasion in question.” With the exception of an inquiry on damages, no other issues were submitted or requested.

Defendant’s request for instructed verdict, exception to the submission of these special issues, motion for judgment non obstante veredicto, and various propositions advanced, are predicated upon the contention that deceased was, at most, a mere licensee upon the private property of defendant; that as such, defendant owed Hagan no higher duty than not to wilfully or intentionally injure him, and that the jury’s findings were those of simple or passive negligence, and as such can not form a basis for the judgment entered against it.

Only the witness W. J. Melear, the lone survivor of the fire, testified as to the facts and circumstances occurring immediately preceding and leading up to and including the unfortunate happening of the gas fire which resulted in the death of Hagan and the foreman, Rosa. His testimony as exhaustively detailed in the above-cited opinion was substantially the same as in the instant trial. There is no other evidence which enlarges upon or contradicts his testimony as there detailed in explanation of deceased’s business or presence upon defendant’s premises at the time of the fire. It is observed that Melear’s testimony discloses that deceased entered the premises of his own volition. Thes evidence does not show, nor is it claimed, that deceased entered the premises on account of any character of business with either Rosa or the defendant. The El Paso court concluded: “From the un-controverted facts and all the facts found in the record that Hagan, in going upon the premises of defendant where The explosion occurred, was not an invitee, expressed or implied, but was a licensee.” This holding becomes the law of this case and this appeal will be governed and disposed of accordingly. Bower v. Yellow Cab Co., Tex.Civ.App., 35 S.W.2d 519, and authorities there cited; Askey v. Oliver Chilled Plow Works, Tex.Civ.App., 57 S.W.2d 210, and authorities there cited; Publix Theatres Corp. v. Carpenter, Tex.Civ.App., 56 S.W.2d 248; Houston Chronicle Publishing Co. v. Martin, Tex.Civ.App., 64 S.W.2d 816, 818.

Prior to and at the tipie Hagan started' to and when he went upon defendant’s premises, the well was being flowed; an open fire was under the heater; the gas coming off the separator was not being consumed by a fire at the end of the upright vent termed a flare; no flare was burning; and no plug was in the “T-joint” at the bottom near the ground and gas Was being dissipated on or near the ground within 84 feet of the fire under the heater, and in the words of Melear, “right smart” gas was coming out. The appliances on the leasehold were then being operated in the way detailed by Melear, set out in the former opinion. Waste gas coming from a separator is generally burned or consumed in the East Texas field at the end of a vent pipe erected in an upright position about twenty feet in height. This is the usual method used by operators in this field to dispose of thei'r waste gas. It is observed that the gas was not being disposed of in the usual and customary way, but, on the contrary, was being dissipated at or near the ground and at a point within 150 feet of an open fire, contrary to thé rules of the Railroad Commission governing same. This gas when so dissipated has a tendency to hug the ground and travel along low places. We deem it unnecessary to detail the explosive characteristics of natural gas when exposed to flame, spark or static electricity. It is sufficient to state that the conditions above detailed rendered the premises unsafe at the time Hagan went upon same. These conditions existed both prior to the time and at the time Hagan entered the premises and continued while he was there. There is no evidence that defendant or its agent made a single change or alteration in the operation of the appliances or in the premises after Hagan went upon same. Plaintiffs do .not contend that any was made. There is no evidence that any appliance or gadget was touched by any one after these parties entered the premises. Melear testified that on this night the three passed on by the heater with the open fire under it and walked on to the “T-joint” at the vent, and there witness dipped up two cans of gasoline. Melear had walked away (distance not shown) when the gas fire occurred. The evidence does not affirmatively show what caused the explosion.

The El Paso court concluded that defendant owed Hagan (a licensee) “no duty to use care to keep the premises in such condition that persons going thereon without invitation would not be injured. * * * He takes the premises as he finds them.” To. the authorities there cited in support of this general rule may be added Meeks v. Cowart, 131 Tex. 36, 111 S.W.2d 1105; Mendoza v. T. & P. Ry. Co., Tex.Civ.App., 70 S.W.2d 261; Burnett v. Ft. Worth L. & P. Co., 102 Tex. 31, 112 S.W. 1040, 19 L.R.A.,N.S., 504; McGinty v. Texas P. & L. Co., Tex.Civ.App., 71 S.W.2d 354; 49 A.L.R. 779; Houston Belt & Terminal Ry. Co. v. O’Leary, Tex. Civ. App., 136 S.W. 601, 604, and the authorities there cited and discussed.

In the O’Leary case, supra, the court stated: “In no case that we have examined or to which our attention has been called has it been held that the proprietor cannot be held liable to a licensee who while upon the premises is injured, not by conditions then existing on the premises, but by some affirmative negligence of the proprietor or his servants.” Plaintiffs insist that the instant cause is fully controlled by that of the O’Leary case, and its disposition is covered by this exception to the general rule. It is their position that:

“ * * * we are driven to the irresistible conclusion * * * that Rosa had, before he. started for the appliances in Hagan’s company, put the same in operation in the condition described by Melear. -This positive act of beginning and continuing the operations of defendant’s appliances with the plug taken out of the ‘T-joint’ at the bottom, so that gas would be dissipated upon the ground within 84 feet of an open fire, rather than burned at the upright end of the flare, constituted active negligence.”

The court in the O’Leary case, after restating the general rule and above-quoted exception, further stated: “In both instances the premises were unsafe, one because of the existence of fixed conditions which in themselves rendered them unsafe, and the other, not because of the existence of such conditions, but became of some negligent act committed by the proprietor or his servants which then created the danger and caused the attendant results.” (Italics ours.)

In the O’Leary case the explosion was due to concussion brought about by defendant’s active or affirmative negligence in switching a string of cars into the car loaded with fireworks, causing a succession of explosions. And there it was held that this “negligent act which caused the explosions will be regarded as having been committed at the time of the occurrence of each explosion.” In effect, that the affirmative negligent act of “kicking” the box car occurred after the fireman had entered upon the premises. See Chief Justice Phillips’ comment upon the O’Leary case in Houston Belt & Terminal Ry. Co. v. Johansen, 107 Tex. 336, 179 S.W. 853, 854; Galveston, H. & S. A. Ry. Co. v. Matzdorf, 102 Tex. 42, 112 S.W. 1036, 20 L.R.A.,N.S., 833, 132 Am.St.Rep 849; International & G. N. Ry. Co. v. Kent, 58 Tex.Civ.App. 272, 124 S.W. 179.

Plaintiffs contend that defendant had changed the condition of the premises, and permitted Hagan to enter without warning him of the change. It appears from the evidence that Hagan had worked in the oil fields since 1926, first as a roustabout, and since 1929 as a switcher; that he had operated a nearby lease for several years; and at times prior to the accident he had worked or been upon the leasehold here involved. The evidence does not indicate if or when a change was made in the condition o'f the premises or in the operations thereon. There is no jury finding that a change had been made or that it was operated differently from the method used when Hagan was on it.

We pretermit a discussion of the other assignments of error as they are not likely to be presented upon another trial.

For the reason stated, the judgment is reversed and the cause remanded.


text:
    BUTLER v. BUTLER et al.
    No. 5678.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 24, 1940.
    Rehearing Denied Nov. 14, 1940.

      Jones & Jones, of Mineóla, for appellant.
    J. B. Morgan and Mayo W. Neyland, both of Greenville, for appellees.
   WILLIAMS, Justice.

The three tracts of land in controversy, aggregating 185 acres, were sold in August, 1927, to a Mrs. King for $134.73 under an order of sale issued out of a judgment for delinquent taxes obtained by the State against R. P.' Butler. This land was the community property of R. P. and Jane Butler. On February 13, 1929, within the two years statutory period of time for redemption of land sold for taxes, Mrs. King was paid $269.46 and she by deed conveyed the three tracts to S. D. Butler, defendant below. Under the terms of a judgment dated December 11, 1934, between S. D. Butler and his father, R. P. Butler, S. D. Butler was awarded title to the three tracts subject to a life estate in favor of the father in an 80,-acre tract. Jane Butler died in the spring of 1938 in an asylum where she had been confined for thirty years. No administration was had or was necessary upon her estate. Mrs. Della Casey, a daughter, and other heirs, being six of the seven children of R. P. and Jane Butler, joined by the father, as plaintiffs, filed suit in November, 1938, against S. D. Butler, the other child. Plaintiffs and defendants both introduced in evidence in support of their respective claims the original tax judgment and deed out of Mrs. King. Neither attacks the validity or regularity of the tax judgment or sale thereunder.

Plaintiffs alleged and offered evidence in support thereof that the three tracts were acquired by defendant from Mrs. King and title taken in his name pursuant to an agreement previously entered into between them and defendant. That under this agreement some of the plaintiffs were to and did contribute funds to redeem the property; some were to and did contribute labor for repairs; and defendant was to receive the rents and revenue from the property out of which he should pay taxes and upkeep and apply the balance to the amount he would advance to redeem the land; and when so reimbursed defendant was to reconvey to plaintiffs their respective interests. Plaintiffs alleged that defendant had been reimbursed, and prayed that he be compelled to carry out this alleged trust agreement, for recovery of their interest in the land, and for adjustment of equities. We deem it unnecessary to detail other allegations or relief prayed for by plaintiffs.

Defendant answered with general demurrer, denial and plea of not guilty. He further urged the 4, 5, and 10 years statutes of limitation in bar. He specially pleaded title to the whole under the deed out of Mrs. King and alleged payment of $1,100 in taxes. He sought recovery of the whole, and in the alternative for 8/14 undivided interest and judgment for the taxes paid by him with foreclosure of lien.

In response to special issues the jury found: (1) Defendant took title from Mrs. King, pursuant to a previous agreement that he would hold title to the same in trust, until such time as the revenues therefrom would reimburse him for the money paid to Mrs. King and such other sums as he might pay for taxes and upkeep, and would then reconvey to plaintiffs; (2) he had expended, including the money paid to Mrs. King, the sum of $1,050.82; (3) he had received in rents and revenues from the property $931; (4) Mrs. Casey paid $100 to defendant on February 7, 1929, under agreement that it was to be expended in part payment on redemption of the property; (5) after defendant had taken title he obtained a $300 loan, secured by a lien on the property, proceeds of which were expended for taxes and repairs. Other issues dealt with labor performed by some of the plaintiffs on the property in the total of $85. The judgment awarded plaintiffs, except R. P. Butler, a 6/7 and defendant a 1/7 undivided interest in the property subject to a life estate in favor of R. P. Butler in the 80-acre tract. The decree further adjusted equities and liens among the litigants. Plaintiff R. P. Butler makes no complaint as to either judgment above discussed. There are no cross assignments of error.

Defendant’s first proposition is based upon his motion for an instructed verdict under which he asserts that there is no legal testimony adduced upon the trial to establish any kind or character of trust agreement. If defendant acquired title to the property from Mrs. King pursuant to the alleged agreement as pleaded and found by the jury, a trust relationship upon such terms arose in favor of plaintiffs upon defendant’s acquisition of the property. Gardner v. Randell, 70 Tex. 453, 7 S.W. 781; Barnett v. Vincent, 69 Tex. 685, 7 S.W. 525, 5 Am.St.Rep. 98; Neyland v. Bendy, 69 Tex. 711; 7 S.W. 497, 498, 500; Chandler v. Riley, Tex.Civ.App., 210 S.W. 716; 42 T.J. 616, Sec. 15.

The jury finding that defendant took title pursuant to the alleged agreement as pleaded is not without support in the evidence. This property which defendant admits was worth $4,000 passed under the deed into him for $269.46. It is without controversy that some of the litigants met and discussed the redemption of the property, and that Mrs. Casey paid to defendant $100. Some of the plaintiffs continued to live on the property. Some of them made repairs and defendant paid for the material. Defendant denies that he made the agreement, and contends that the $100 paid by Mrs. Casey was a loan to him. His receipt to her reads: “This is to certify that I, S. D. Butler, received $100 on part payment for delinquent taxes on our father’s estate, which will bear interest at * * This receipt is dated February 7, 1929, some few days prior to date of the deed into defendant. Some few months prior to filing suit defendant wrote in a letter to one of the heirs, “I know the understanding we had when you met me at home when I bought the place in and Sam and Bunch knows * * “Knowing, too, that I had granted you all the privilege of paying me the balance to equalize your part that I was out in gaining said lands. I were to deed you all your equal parts.” This evidence would not warrant this court to disturb such jury finding.

Defendant placed in evidence the above-mentioned 1934 judgment, which recites that he as plaintiff in that suit and R. P. Butler as defendant appeared in person and announced that they had agreed upon the judgment to be there entered. Upon this agreement a decree was entered which awarded to S. D. Butler the three tracts subject to a life estate in an 80-acre tract in favor of the father. Defendant asserts that he recovered a 7/14 interest under this judgment. Defendant testified that the suit against his father was based on the tax judgment, and that he filed the suit because his father attempted to sell a part of the land. This is the only evidence in explanation of the suit. Only this son and the father were parties. Mrs. Casey had been living on the land and then resided on it at the time this judgment was entered. Third parties testified to conversation in which defendant stated at that time: “When I .get my money back out of the land we will divide it equally.” The. jury found that defendant took title from Mrs. King impressed with the trust above discussed. So what rights, interest or equities, if any, S. D. Butler may have acquired under the 1934 judgment, the same inured to the benefit of S. D. Butler as trustee for that of the cestui que trust. 26 R.C.L. Sec. 189, pp. 1325, 1326; 65 C.J. p. 656, Sec. 521; 65 C.J. p. 653; Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 62 A.L.R. 1; 3 Bogert Trusts and Trustees, § 543.

Defendant further asserts that if the testimony adduced be sufficient to impress a trust on this property, the terms thereof have not been fulfilled in that he has not been reimbursed for all his expenditures with interest. Defendant does not complain of the jury’s finding that he paid out, including that to Mrs. King, a total of $1,050.82. Defendant advances detailed figures and calculations in his claim that he received only $750 from the tenants instead of $931 as found by the jury. A counter proposition also details from the evidence figures to support the finding of $931. The evidence presented a question of fact and the finding will not be disturbed. It is .to be observed from this record that Mrs. Casey advanced to defendant $100, as found by the jury, and this $100 was a part of the $1,050,82. Further, defendant executed a lien on this property and obtained a $300 loan which he used for taxes and repairs, and this $300 was a part of the $1,050.82. These items of $100 and $300 when deducted from the $1,050.82 leave $650.82, which is substantially less than his receipts. A charge to defendant of 6% interest per an-num on amounts received, when calculated would moré than offset an allowance to him at the same rate of interest on his .payments.

Other propositions which complain of argument of counsel have been considered and are respectfully overruled. When counsel told the jury that defendant had urged the statutes of limitation against his brothers and sisters he did not impart to the jury any information they had not already learned from the pleadings read to them and the evidence offered in support thereof. Evidence had been heard as to the value of the land, the improvements and its yield. Counsel’s remarks were his own deductions from this evidence as to its value'.’ Argument that the $100 paid in by Mrs. Casey had come from the sale of chickens, eggs and butter was not an unreasonable observation from the evidence given by her. The jury could tell from her appearance that she was an aged lady and a farmer’s wife. They heard her testify about her farm operations. She testified when she handed the $100 to defendant it was all the money she had.

It is to be noted that defendant entered a general denial and plea of not guilty. In addition he moved for an instructed verdict. The costs were properly taxed against defendant. Johnson v. Johnson, Tex.Civ.App., 191 S.W. 366, 368; Edds v. Edds, Tex.Civ.App., 282 S.W. 638; R.C.S. Article 2056.

The judgment is affirmed.


author: .PER CURIAM.

text:
    HARTSFIELD et ux. v. A. O. REECE & SON et al.
    No. 10768.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1940.
    Kenneth Faxon and J. T. Canales, both of Brownsville, for appellants.
    Brown & Criss and Osee Fristoe, all of Harlingen, for appellees.
   .PER CURIAM.

Affirmed without written opinion. See Associated Indemnity Corporation v. Gatling, Tex.Civ.App., 75 S.W.2d 294.