author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    FREEMAN v. STATE.
    No. 21393.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    Rehearing Granted Feb. 19, 1941.

      T. B. Bartlett, Jr., of Marlin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is swindling. The punishment assessed is confinement in the* state penitentiary for a term of two years.

The record before us shows that neither the bills of exception nor statement of facts were filed within the time required by law to authorize us to consider the same. The motion for a new trial was overruled on the 29th day of June, 1940, and the appellant was allowed ninety days from said date within which to file the bills of exception and statement of facts. The bills of exception found in the transcrip't were filed on October 30, 1940, which was 123 days after notice of appeal was given. The statement of facts was not filed in the trial court until October 22, 1940, which was something over 100 days after notice of appeal was given. Consequently, in the absence of a statement of facts and bills of exception, there is nothing presented for review except the sufficiency of the indictment which seems to be in .due order.

Since no error has been presented by the record, the judgment of the trial court is in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of- the Court of Criminal Appeals and approved by the Court.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

It is now made to appear that the motion for new trial was overruled on the 29th day of August, 1940, and notice of appeal given on the same date. The date indicated in the transcript, and referred to in the original opinion was not the correct date of the overruling of the motion for new trial but was a mistake made in the court below. Appellant was in fact granted ninety days from August 29, 1940, in which to file his bills of exception. The statement of facts and bills of exception having been filed in time, the record is considered on its merits.

On the 19th of February, 1940, appellant gave Otto Zipperlen a check on the Capital National Bank of Austin — signed by the appellant — in the sum of $135.65 in exchange for corn, gasoline, oil and food, of the aggregate value of $135.65. Mr. Zip-perlen testified that he deposited the check in the Planters National Bank of Rosebud, Texas, a few days after he received it and that eleven days thereafter said check was returned to him unpaid, with the notation thereon “insufficient funds.” The state introduced in evidence appellant’s voluntary confession in which he stated that he gave Mr. Zipperlen the check in question on the 19th of February, 1940, in payment for corn, etc., and that at the time he delivered the check he (appellant) was aware that he did not have "money in the bank” to take care of the check. Testifying in his own behalf, appellant denied that he had stated to the officer taking the confession that he was aware he did not have money in the bank to pay the check. It was his version that he made this statement: “I didn’t know whether I had enough money in the bank at all to pay for the check.” Again, he testified: “As to whether or not I told him (referring to Zipperlen) it was good and would be paid off, I did and it was paid off.”

It has been observed that the check bore date February 19, 1940. It is shown in bill of exception No. 4 that appellant offered to testify that on February 2, 1940, he had deposited $35 in the Capital National Bank of Austin; that on February 14, 1940, he had deposited $76 in said bank; that on February 15, he had deposited $21; that on February 19, he had deposited $25 in said bank; that the total amount he deposited from February 2nd to February 19th, was $157; that he did not remember at the time he gave the check to Zipper-len “whether or not I had drawn over $20-00 out of said bank * * * but believed that I had only drawn two checks, neither exceeding the amount of $10.00.” The state objected to the proffered testimony on the ground that it was “irrelevant, immaterial, and had no bearing upon appellant’s guilt or innocence.” The objection was sustained. The opinion is expressed that the bill of exception reflects reversible error. It was incumbent upon the state to prove beyond a reasonable doubt that appellant intended to defraud Otto Zipperlen at the time he gave him the check. The testimony shown in the bill of exception, if accepted, would have tended to show that no fraudulent intent was present at the time the check was executed and delivered.

Several bills of exception relate to proof of the fact, over appellant’s objection, that the check bore a notation when returned “insufficient funds.” No one connected with the Capital National Bank of Austin testified. Under the holding in Holland v. State, 108 Tex.Cr.R. 615, 2 S.W.2d 248, 249, the bills of exception present error. We quote from Holland’s case, as follows:

“There is an entire absence of testimony as to the identity of the person who made the notation of ‘No Acct.,’ without which notation a conviction could not be had. There is not even any evidence in the record to show that said check was ever forwarded to the Valley Bank of Phoenix, Ariz., or for that matter that it ever left El Paso. Who was the party who made this notation which is the state’s main in--criminating fact? Was he friend or foe? Did he have a motive for making same? Was the same true? Was the money in the bank originally and had same been improperly or erroneously charged to some other account ? Had the account been garnisheed? None of these questions may have been in the case, but some of them may have been brought out as a fact on cross-examination, if such a right had been accorded the appellant. Instead, the un-sworn statement of an unidentified and unknown person was introduced in evidence as a circumstance of guilt. His right of cross-examination was thus denied. The party who made the notation was not under oath. Appellant has been convicted upon an ex parte statement made in his absence without even knowing who gave the evidence against him.
“No citation of authorities is necessary to show that this statement on the check of ‘No Acct.’ was hearsay of the rankest kind under rules obtaining and in force since English jurisprudence had its birth.”

See, also, Buckner v. State, 126 Tex.Cr.R. 321, 72 S.W.2d 274.

The motion for rehearing is granted, the judgment of affirmance is set aside and the judgment of the trial court is now 'reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    MARYLAND CASUALTY CO. v. FIDELITY & CASUALTY CO.
    No. 10853.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1941.
    Rehearing Denied Feb. 26, 1941.

      R. H. Mercer and House & Irvin, all of San Antonio, for appellant.
    Dodson, Ezell & Duke, of San Antonio, for appellee.
   MURRAY, Justice.

This suit was instituted, on February 24, 1939, in the District Court of Bexar County, hy Fidelity & Casualty Company of New York against Maryland Casualty Company and W. E. Sultenfuss, Inc., seeking to recover certain sums which it paid out under a surety bond on behalf of the Joseph A. Holpuch Company.

On November 29, 1933, Joseph A. Hol-puch Company, an Illinois Corporation, entered into a written contract with the United States of America for the construction and completion of sixteen two-story Company Officers’ quarters at Fort Sam Houston, Texas, and Holpuch Company executed and delivered to the United States a certain performance bond, as required by 40 U.S.C.A. § 270, commonly known as the Heard Act. Fidelity & Casualty Company of New York was surety upon said bond.

The lathing, plastering and stucco work on said houses was subcontracted to W. E. Sultenfuss, Inc., and this company gave a performance bond with Maryland Casualty Company as surety.

Thereafter, Sultenfuss, Inc., in the performance of its contract, purchased certain material from Neese Bros., Inc., which was used in the construction of the sixteen Company Officers’ quarters, and Sultenfuss, Inc., entered into a subcontract with Ollie Tope, whereby Tope agreed to install the lathing and corner beads in said sixteen Company Officers’ quarters. Afterwards Sultenfuss, Inc., failed and refused to pay Neese Bros., Inc., and Ollie Tope the full amounts owing to them.

Thereafter, on August 22, 1935, Ollie Tope instituted a suit in the United States District Court for the Western District of Texas, sitting in San Antonio, styled United States of America for the use and benefit of Ollie Tope v. Joseph A. Holpuch Company et al., and bearing docket No. 1911 at Law, wherein Ollie Tope was' plaintiff and W. E. Sultenfuss, Inc., Joseph A. Hol-puch Company and Fidelity & Casualty Company of New York were defendants, seeking to recover certain sums alleged to be due him for labor performed under his subcontract.-

On December 2, 1935, Neese Bros., Inc., intervened in cause No. 1911 seeking to recover certain sums alleged to be due it for material furnished to and used by Sulten-fuss, Ine., in the construction of the sixteen Company Officers’ quarters.

On December 14, 1935, Sultenfuss, Inc., also intervened in said cause No. 1911 seeking to recover from Holpuch Company certain sums alleged to be the balance due it under its subcontract.

On January 9, 1939, an interlocutory judgment was entered in cause No. 1911 in favor of Neese Bros., Inc., against Holpuch Company, Fidelity & Casualty Company and Sultenfuss, Inc., in the amount of $2,-767.57, which judgment was paid in full by Fidelity & Casualty Company of New York, other defendants being unable to pay, and Holpuch Company having requested Fidelity & Casualty Company to pay the judgment.

On January 12, 1939, an agreement was entered into whereby it was agreed that Holpuch Company and Fidelity & Casualty Company were entitled to recover from Sultenfuss, Inc., $2,767.57, less a credit of $1,008.80, and it was further agreed that Holpuch Company and Fidelity & Casualty Company were entitled to recover from Sultenfuss, Inc., the sum of $1,758.77, together with any sums recovered against them by Ollie Tope. The case proceeded to trial and Ollie Tope recovered the sum of $582.31, thus making a total recovery in favor of Neese Bros., Inc., and Ollie Tope in the sum of $3,349.88, against which amount Sultenfuss, Inc., was entitled to a credit of $1,008.80, and accordingly judgment was entered in favor of Holpuch Company and Fidelity & Casualty Company against Sultenfuss, Inc., in the sum of $2,-341.08.

Fidelity & Casualty Company paid the judgment in favor of Neese Bros., Inc., arid Ollie Tope, and has instituted this suit against' Maryland Casualty Company seeking to recover the sums paid out on this judgment, less the agreed credit of $1,008.-80, together with attorney’s fees, court costs and other expenses incurred.

Appellant, Maryland Casualty Company, first contends that the judgment in cause No. 1911, in the Federal Court, against Sultenfuss, Inc., was void for want of jurisdiction of that Court to hear the cause. We overrule this contention. ,

It is plain from a reading of the so-called Heard Act, Title 40, Section 270, U.S.C.A., that any person, company or corporation who has furnished labor or material used in the construction of buildings such as the sixteen Company Officers’ quarters involved in the Holpuch Company contract, has a right to maintain a, suit (under certain conditions) in the name of the United States against the general contractor and his bondsmen in the United States District of the locality where the contract is performed. Therefore, unquestionably, the United States District Court for the Western District of Texas, sitting at San Antonio, had jurisdiction over Tope, Neese Bros., Inc., Sultenfuss, Inc., Holpuch CQm-pany and its surety, Fidelity & Casualty Company. Having jurisdiction over the parties it would follow that the Court would have jurisdiction to adjudicate the rights of the parties with respect to liability for the material furnished and to adjust the accounts, credits and offsets between Sul-tenfuss, Inc., and Holpuch Company, and to render judgment over against Sulten-fuss, Inc., in favor of Holpuch Company and its surety in adjusting the accounts with respect to the labor and materials furnished.

The authorities clearly recognize this authority and jurisdiction. United States v. Fleischmann Construction Co., D.C., 298 F. 320, affirmed, 270 U.S. 349, 46 S.Ct. 284, 70 L.Ed. 624; United States v. McCay, D.C., 28 F.2d 777; United States v. United States F. & G. Co., D.C., 28 F.Supp. 443; City of Dayton v. City Ry. Co., 6 Cir., 16 F.2d 401; United States v. Aetna Casualty & Surety Co., 6 Cir., 5 F.2d 412.

The cases cited by appellant go no further than to hold that the surety on the subcontractor’s bond cannot be brought into á Heard Act suit.

Appellant next complains that ap-pellee’s claim against it was barred by the four-year statute of limitation. Arts. 5527 and 5529, R.C.S.1925. We do not agree with this contention. The claims of Tope and Neese Bros., Inc., were disputed and Fidelity & Casualty Company had no cause of-action against Maryland Casualty Company until these claims had been fully established and paid off by Fidelity & Casualty Company at the request of Holpuch Company.

The bond upon which appellant became surety provided that Sultenfuss, Inc., would promptly make payment to all persons supplying it with labor and materials and then further provided, that “upon the neglect or refusal by said principal or sure.ty to _make payment as and when required, said contractor may, but is not ’hereby required to make, payment at times or in sums other than is provided in said contract, and in the event said contractor does so make payment, then said principal and surety, jointly and severally, agree to reimburse the contractor on demand for all money so advanced, together with interest.”

Holpuch Company waited until Sultenfuss, Inc., and the parties who had furnished it material and labor had an opportunity to settle their disputed claims in a Heard Act suit before requesting its surety to pay off these claims. The claims were paid on January 20, 1939, and then for the first time the surety so paying such claims had a right to institute suit for reimbursement, as provided for in the bond signed by appellant.

Appellant next contends that it was released from any obligation of the bond because Holpuch Company made payments to Sultenfuss, Inc., without first requiring written statements, verified by affidavit, of the names of all parties furnishing material and labor, and of the amount due or to become due each.

The subcontract between Holpuch Company and Sultenfuss, Inc., contained the following provision: “Before the contractor shall be required to make any payments, the subcontractor shall furnish to the contractor a statement in writing, verified by affidavit, of the names of all parties furnishing material and labor, and of the amounts due or to become due each * *

It will be noted that the bond does not provide that the contractor shall not make any payments until such a statement has been furnished, but, on the contrary, provides, in effect, only that the contractor cannot be required to make any payments until such a written statement is furnished.

This is quite a different provision from the one contained in the contract involved in Williams v. Baldwin, Tex.Com.App., 228 S.W. 554. There the provision was that all payments by Baldwin to the Company should be made only when directed by the architects and that the certificates were at no time to exceed 75 per cent of the cost of labor and material placed in the building.

The contract entered into between Holpuch Company and Sultenfuss, Inc., which became a part of the bond, also provided: “said contractor may, but is not hereby required to, make payment at times or in sums other than is provided in said contract,, and in the event said contractor does so make payment, then said principal and surety, jointly and severally, agree to reimburse the contractor on demand for all monies so advanced together with interest * * *.” This provision alone would give the general contractor a right to pay out money other than on the sworn written statements above mentioned.

The holdings above made require the overruling of all assignments of error presented by appellant.

The judgment is affirmed.


author: WALTHALL, Justice.

text:
    AERO GAS REFINING CO., Inc., v. FRICK-REID SUPPLY CORPORATION.
    No. 3978.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 9, 1941.
    Rehearing Denied Jan. 30, 1941.
    T. M. Milam, of Fort Stockton, for appellant.
    Hart Johnson and Travers Crumpton, both of Fort Stockton, for appellee.
   WALTHALL, Justice.

The appellee in this appeal, Frick-Reid Supply Corporation, brought this suit, as plaintiff, in the District Court of Pecos County to recover against appellant a balance, alleged to be due upon a duly verified open account, in the sum of $385.27. The account is attached to and made a part of the petition and is for machinery, casing pipe, material, tools and supplies alleged to have been sold and delivered to appellant for the purpose of, and so used in connection with, the construction, completion, operation, repairing and maintaining of a refinery located upon the tract of land described as the “1980' from southeast line (SEL) and 660' from the northeast line (NEL) of Section No. 101, Block No. 10, H. & G. N. Railroad Company Survey, which location is known as the Aero Gas Refining Company No. 6 Gregg, Pecos County, Texas.”

It is alleged that at the time the contract (of sale) was made appellant owned and still owns said goods itemized and said oil refinery located upon the above described tract of land and the land itself.

Appellee alleged that it caused to be fixed a materialrpan’s lien upon all of the above described property sold to appellant, and upon the improvements and appurtenances on said land and said oil and gas leasehold estate, and all other personal property and equipment situated upon said land and used in connection with the said refinery, and filed and recorded same, and appellee alleged its ownership of said lien and prayed /judgment for its debt and a foreclosure of its lien.

Appellant filed answer, in effect, that the amount in controversy is below the jurisdiction of the district court, and that appel-lee fraudulently alleged a lien on the real estate in order to give the court jurisdiction; that the land is insufficiently described to authorize a foreclosure of a lien, and such defects in the purported lien that there can be no good faith on the part of appellee as to give the court jurisdiction; further pleaded general demurrer and general denial.

The case was tried to the court without a Jury. The court in the judgment finds:

1. That plaintiff’s claim is upon a verified account for the sum of $38.5.27, and that defendant has not denied said account in whole or in part.

2. That plaintiff’s proof failed to sustain the materialman’s lien asserted by it and sought to be foreclosed.

3. That plaintiff instituted this suit in good faith for the purpose of collecting its debt and foreclosing an asserted material-man’s lien, and that such foreclosure was not sought for the purpose of conferring jurisdiction upon this court.

The court, entered judgment for plaintiff against defendant for $385.27, the amount sued for, and authorized the issuance of execution, from which judgment defendant duly prosecutes this appeal.

Appellant presents two propositions. The first is that plaintiff’s suit is for an amount without the jurisdiction of the court, except for an allegation of a lien on real estate; that there being no lien on real estate that the court could enforce for want of sufficient description of the real estate, the court should have dismissed plaintiff’s cause of action.

We do not understand from the judgment that the court found against the lien for want of sufficient description of the real estate upon which the lien was alleged and sought to be foreclosed; the judgment simply recites that the “plaintiff’s proof failed to sustain the materialman’s lien,” and said nothing about a want of description of the real estate. A failure of the proof to establish a materialman’s lien on real estate might arise for other reasons than an insufficient description of the real estate upon which the lien is sought. There having been no such issue presented and passed upon by the court, the question of “want of description” of the real estate is not before us.

The second proposition complains that the court erred in overruling its general demurrer, because the petition showed on its face that no real estate was described on which a lien could be had.

The record does not show that defendant presented a general demurrer to the court, or that the court overruled its demurrer.

To show such error, the record must show that'the general demurrer was in some way called to the trial court’s attention and that the court overruled it. No action by the court on the demurrer shojvs a waiver.

The trial court, however, as suggested by appellant, found that appellee had no lien upon the land that could be foreclosed. Appellant’s contention is that such finding destroyed the jurisdiction of the court; that is, where the amount sued for is below the jurisdiction of the court, the court must find a lien upon real estate upon which a foreclosure may be had. Appellant refers to Ablowich v. Greenville Nat. Bank, 95 Tex. 429, 67 S.W. 79, 881, 882. The court found that appellee instituted the suit in good faith for the purpose of collecting its debt and foreclosing an asserted material-man’s lien (on real estate), and that such foreclosure was not sought for the purpose of conferring jurisdiction upon the coü'rt.

Judge Brown, for the Supreme Court, reviewed the Ablowich v. Greenville case at much length, and held, as we understand the case, “power is given over ‘suits to enforce liens’ on land, and a failure of the lien makes it no less a ‘suit to enforce a lien.’ ” That where a suit is brought in a district court, in good faith, to enforce a lien on land, the fact that it developed upon the trial that there was no lien did not deprive the court of jurisdiction, but having once acquired it, under Article 5, Section 8, of the Constitution, Vernon’s Ann.St., by virtue of the nature of the suit, the court had the authority to administer such, and the parties were entitled to have the same adjudicated, and referred to cases so holding. To the same effect is McCusker v. Field, Tex.Civ.App., 76 S.W.2d 816; Massie v. City of Fort Worth, Tex.Civ.App., 262 S.W. 837, and the cases there referred to.

Finding no reversible error, the case is affirmed.


author: BLAIR, Justice.

text:
    CENTRAL FREIGHT LINES, Inc., et al. v. SADLER et al.
    No. 8972.
    Court of Civil Appeals of Texas. Austin.
    Jan. 29, 1941.
    Rehearing Denied Feb. 19, 1941.

      Herbert Smith, of Austin, Rawlings & Sayers, of Fort Worth, Scott & Wilson, and W. E. Cureton, all of Waco, and Nelson Scurlock, of Fort Worth, for appellants.
    James Henry Beall, Jr., of Sweetwater, and Culbertson, Morgan, Christopher & Bailey, of Fort Worth, for appellees Comet Motor Freight Lines, Inc., et al.

      Gerald C. Mann, Atty. Gen., and Glenn R. Lewis and Geo. W. Barcus, Asst. Attys. Gen., for appellees Railroad Commission et al.
   BLAIR, Justice.

This litigation arose as an appeal under the Motor Carrier Act (Vernon’s Ann.Civ. St. Art. 911b, Sec. 20), from an order of the Railroad Commission granting appellee, Comet Motor Freight Lines, a corporation, a certificate of convenience and necessity to operate a certain common carrier motor carrier service. Appellants, several railroad and motor carrier companies serving parts of the territory involved, unsuccessfully sought in the trial court and here seek to set aside the order granting the certificate and to enjoin any operation under it, contending as follows:

1. That the order granting the certificate is void because there was no substantial evidence adduced before the Commission showing a public convenience and necessity for the proposed service, and that for the same reason the order is arbitrary and unreasonable.

2. That the application made by Frank A. 'Blankenbeckler, trustee, for the certificate to be issued to a corporation to be formed did not meet the requirements of Art. 911b, Sec. 1(a) of the Motor Carrier Act.

3. That the application for the certificate.did not meet the requirements of Art. 911b of the Motor Carrier Act, in that it did not point out the inadequacies of the existing service over the proposed route.

4. That the findings of fact of the Commission were not sufficient to support the order granting the certificate; and that the “Commission failed to file along with its order findings of fact as required by Art. 911b, Sec. 12(a) ” of the Motor Carrier Act.

Neither of these contentions is sustained.

Point “1” presents the sole legal question that the order granting the certificate is void because there was no substantial evidence adduced before the Commission showing a public convenience and necessity for the service, and that for the same reason the order was arbitrary and unreasonable. The first part of point “4” presents the legal question that the findings of fact of the Commission áre not sufficient to support the order granting the certificate. The pertinent assignments of error raise only these two legal questions as to the sufficiency of the evidence and findings of fact, which are so related that they will be considered together; and neither of these questions or contentions is sustained.

Two hearings of the application for the certificate were held by the Examiner of the Commission, one at Mineral Wells lasting two days, and another at Austin lasting one day. The testimony taken at these hearings was reduced to writing in question and answer form by the official reporter. Numerous exhibits, maps, and other data relating to the amount of freight available for transportation and the proposed routes were also introduced on these hearings. Upon these records, and other matters of which the Commission took judicial knowledge, it entered its order granting the certificate, making extensive findings of fact and conclusions upon which it based its order, which authorized appellee to operate a common carrier motor carrier service as follows:

Route 1. San Antonio to Wichita Falls and all intermediate points, using State Highway No. 66, U. S. Highway No. 281.

. Route 2. Stephensville to Fort Worth and all intermediate points, using State Highway No. 10, U. S. Highway No. 377.

Route 3. Burnet to Austin and all intermediate points, using State Highway No. 29.

Route 4. Austin to Blanco, using U. S. Highway No. 290 to the junction of U. S. Highway No. 290 and U. S. Highway No. 281, thence to San Antonio.

The certificate -authorized the transportation of property and commodities generally for hire over these routes giving “through over night service between San Antonio and Wichita Falls; Austin and Wichita Falls and vice versa; San Antonio and Fort Worth, Austin and Fort Worth, and vice versa seven days a week, using six (6) truck tractors with van trailers, but not serving Wichita Falls on shipments originating in Fort Worth and vice versa.”

A photostatic copy of a map introduced in evidence before the Commission and in the trial court, showing by a connected line the complete route of all proposed operations together with the distances he-tween the principal cities and towns to be served, is here inserted: ‘

Since the findings of fact made by the Commission in its order granting the certificate are attacked as being insufficient to support the order, we quote them in full, as follows:

“State Highway No. 66 over which the principal operations will be performed is the most -direct route between San Antonio and Wichita Falls. It traverses the heart of Texas serving many commercially important cities and towns within the State. This highway beginning, so far- as this State is concerned, at the Red River north of Wichita Falls traverses a rich and growing agricultural section of the State, and although this application concerns this highway and territory only as far south as San Antonio, the highway itself continues to the Rio Grande River in the southern most part of the State. The citizens along the route have long sought such a highway and it promises to become one of the principal arteries of travel, trade and commerce north and south' through the very heart of the State. Already many improvements have started along the route and it is not unreasonable to expect that this new route will play a part in future development of this territory. This road is of the most modern in type, design and construction.
“Fort Worth will be reached by the use of State Highway No. 10, which is a good paved route connecting with Highway No. 66 at the City of Stephenville. Fort Worth is a large and growing manufacturing and distributing center for the cities and towns along all of the routes proposed to be served by applicant as-well as one of the primary marketing centers fdr these same cities and towns. Many of the products of the area served by State Highway No. 66 are marketed in Fort Worth. Many of these products which were shown to move in considerable volume, are of a perishable nature such as eggs, butter fat and dressed poultry. Adequate, rapid transportation service is necessary to the development of many of the industries with which this territory is concerned, particularly those mentibned.
“What has been said with reference to the city of Fort Worth may also be said as to the city of San Antonio, the southern terminus of the proposed operations: By and large it also applies to the City o'f Austin which consumes or is the market for large quantities of the products of the area to be served including, in addition to other products named, large-quantities of pecans which are moved to both Austin,-San Antonio, and Fort Worth. It was made to appear that thousands of pounds of these products move annually and that existing services for this movement was inadequate. In fact it was made to appear that much of this movement now takes place by private trucks. The Commission considers it to be its duty to develop a regulated common carrier system-by highway adequate to the needs of the commerce of the State and believes it to be in the interest of the public from the standpoint of a common carrier system and in the conservation of the states highways to provide and encourage a common carrier system that will relieve the highways as far as may be reasonably possible of the private trucks.
“The city of San Antonio has long sought adequate carrier facilities to the north and to Wichita Falls. It has made many efforts over a period of more than ten years to secure such facilities. It has attempted to encourage and assist in the construction of a rail line to serve this territory as an aid in the development of the city as a manufacturing and distributing center. These efforts have never been realized but it is believed that adequate motor carrier service such as is proposed by applicant will answer this long felt need.
“Most of the cities and towns along the route of highway 66 have been active in securing the construction of these highways which the commission judicially knows were not and are not for mere pleasure purposes alone but primarily as an artery of business, trade and commerce. This is particularly true of Mineral Wells as well as San Antonio and Wichita Falls. There is no direct through common carrier service over this route between the terminal cities of San Antonio and Wichita Falls over the proposed routes. The same is true also as to Fort Worth and Austin. The large manufacturing and distributing centers of San Antonio, Austin, Fort Worth and Wichita Falls maintain a constant interchange of commodities in their commercial relations and intercourse requiring adequate carrier facilities. It is in the public interest that every facility be provided necessary to the present and future development of each and every section of the State. That the larger centers of trade should be linked in commerce by carrier facilities over the most direct highway routes cannot be doubted. By so doing the larger centers profit by their support of the less developed sections of the State and contribute their share toward the general prosperity.
“Perhaps more important still, when we look to the conservation of the highways of the State, as we must, it seems to us that adequate motor carrier routes serving all of the cities and towns of the State and at the same time relieving more highly congested highways of a portion of the burden of traffic is distinctly in the interest of the public. Motor carrier traffic should, in our opinion, be required to so adapt itself as to make a minimum use of the highways.
“The movement of property for hire should not be required over circuitous routes when direct routes are available enabling this Commission to establish routes which would minimize the use of the highways which it is our duty to conserve to the general, public. The routes proposed by applicant are the most direct routes between the four principal termini proposed to be served. The granting of this application will tend to relieve to a degree the present traffic on State Highway No. 2.
“Direct short routes are to be preferred to circuitous routes. Through routes are more convenient and necessary than connecting line routes. This is especially true on account of modern day methods of merchandising which is established in this record as well as being, judicially known to this Commission. Smaller stocks of merchandise with resulting smaller capital investments and quick turn overs is present day business practice. Such being the rule carrier service affording prompt fast service is necessary to modern day commercial practices. The city of Wichita Falls has as one example of this practice a very large manufacturing plant, making and distributing cotton work clothing. This manufacturer distributes to practically all of the points on the proposed operation. Next morning deliveries of this product is required both by the shipper and the consignee to points along the proposed route. This shipper does not now have such service available.
“From the foregoing it is obvious that we must conclude and do now find (1) that the highways here involved are of such type of construction and in such state of repair and maintenance as to permit of the use sought to be made thereof by the applicant without undue injury or damage to said highways and without unreasonable interference to the general traveling public; (2) that the present and future public convenience and necessity requires the granting of this application; (3) that the granting of the application will minimize the use of the highways and conserve their use to the general traveling public; (4) that the application should and will be granted authorizing applicant to operate over the routes set forth herein as a common carrier of commodities generally for hire using in such operation six trucks; (5) that the applicant is fit, willing and able to render such service.
“Frank A. Blankenbeckler, Trustee, applicant herein proposes that before this certificate is issued that a corporation be formed with a capital structure of not less than $10,000.00, the’stockholder to be himself, James H. Beall, Jr., and T. S. Christopher, each of whom were present in all the hearings, confirmed this statement and suggested that this order should be issued contingent upon the fulfillment of this agreement by said parties presenting to this Commission a corporate charter showing capital stock fully paid. It is therefore now made a condition precedent to the issuance of a certificate under this Order that this condition and agreement be fulfilled and it is ordered that when the same is fulfilled that certificate issue herein to such corporation using such corporate name as the said stockholders may elect to use.”

The condition with regard to forming a corporation to operate the service under the certificate was complied with and a certified copy of the charter incorporating Comet Motor Freight Lines with a capital stock of $10,000 fully paid was filed with the Commission, whereupon it issued the certificate in question.

The basic facts showing a public convenience and necessity for the proposed service as established by the evidence adduced before the Comfnission, and as found by it in'its order granting the certificate, are summarized as follows:

State Highway No. 66, over which the principal proposed operations are to be made, is the most direct route either by highway or railroad between San Antonio and Wichita Falls, and there is no other direct daily overnight, with early morning delivery, common carrier service over this route. This highway is of the most modern type, design and construction, and capable of sustaining the proposed carrier service which will not interfere with the public in its use of this highway; and the same is true with respect to the construction and use of each of the other highways over which the proposed operations are to be má'de. San Antonio, Austin, Fort Worth and Wichita Falls are the four principal terminal cities to be served by the proposed operations; and the routes authorized by the certificate are the most direct routes between them, except from Fort Worth to Wichita Falls, and with the same exception there is no other direct daily common carrier service over the entire proposed routes between the four terminal cities; and, in addition, all intermediate towns and cities on the proposed routes will be given daily service between each other and all terminal cities, and with interchange service to and from all parts of the State where available. The four terminal cities are marketing centers of the intermediate towns and cities, and for the area served by each of the proposed routes. • A considerable volume of perishable products, such as eggs, butter fat, dressed poultry, and nursery plants, which require adequate, rapid transportation facilities to fully serve and develop these industries, will move over these proposed routes; and several shippers of these products in cities and towns, particularly along State Highway Wo. 66, testified that they do not have such service and are compelled to make shipments over circuitous routes of interchange lines of railroad or other motor truck companies, which causes delay and is not satisfactory, and in many instances the use of the privately owned trucks of the shippers and merchants is necessary. Other shippers of large amounts of merchandise and commodities of trade testified that the proposed direct overnight service with early morning delivery is needed and will be used by them in shipments to and from all terminal cities, to and from all intermediate points and terminal cities, and between all intermediate points; and that such service is not now being furnished by any other common carrier. Modern- day merchandising in use along the proposed routes, which requires daily overnight delivery so that smaller stocks and investments with quick sale may be had, will be benefited by the proposed service, the cotton work clothing factory at Wichita Falls being cited by the Commission as illustrative, and no such service is now available over the proposed routes. A considerable volume of merchandise, produce and pecans is also transported over the routes by privately owned trucks, which the proposed operations will tend to minimize, thus conserving these highways. A large amount of tonnage that will be transported over the proposed routes is now being transported by circuitous interchange routes over State Highway No. 2, where present traffic is highly congested, and the Commission found that the proposed operations will tend to relieve such congestion of traffic. Applicant traveled over and investigated the proposed routes and operations for a period of four months, discussed them with prospective shippers, commissioners’ courts, and officials in all cities and towns along the routes, and -found available for transportation wool, mohair, poultry, eggs, cream, pecans, machinery, and merchandise of all description, sufficient in quantity to justify the proposed operations. Maps, plats, and exhibits showing the tonnage available and hauled over the parts of the territory served by appellants were also in evidence.

We are of the view that the evidence adduced before the Commission, as above summarized, is substantial evidence, showing a public convenience and necessity for the proposed service; and that it sufficiently supports the findings of fact of the Commission and the order granting the certificate. The matter of granting certificates of convenience and necessity to common carrier motor carriers of property for hire over the public highways of this State has been by the Legislature (Art. 9.11b) vested exclusively in the sound discretion of the Railroad Commission ; and the rule is settled that on the statutory appeal from an order of the Commission granting such a certificate, the courts are only authorized to review the order to detefmine if it is within the law, and to require that it shall be based upon substantial evidence, and not upon an arbitrary or capricious exercise of the Commission’s discretionary power and authority, and that the court is n<3t authorized to substitute itself for the Commission to try the matter anew as an administrative body, substituting its findings of fact for those of the Commission; and as stated by Chief Justice McClendon in the case of Railroad Commission v. Rapid Transit Company, Tex.Civ.App., 92 S.W.2d 261, 262, “the, law upon this question is now so thoroughly settled as to require only a reference to the leading cases thereon. Railroad Commission v. Shupee (Tex.Civ.App.) 57 S.W.2d 295, affirmed 123 Tex. 521, 73 S.W. (2d) 505; Railroad Commission v. Winkle (Tex.Civ.App.) 57 S.W. (2d.) 287; Texas Motor Coaches v. Railroad Commission (Tex.Civ.App.) 59 S.W. (2d) 923, affirmed 123 Tex. 517, 73 S.W. (2d) 511; Railroad Commission v. George A. Scott Truck Line (Tex.Civ.App.) 57 S.W. (2d) 293; Railroad Commission v. Inter-City F. Co. (Tex.Civ.App.) 57 S.W. (2d) 290; Railroad Commission v. Winkle (Tex.Civ.App.) 57 S.W. (2d) 287; Railroad Commission v. McDonald (Tex.Civ.App.) 90 S.W. (2d) 581.”

It is further observed that the attacks made by the appellants upon the sufficiency of the evidence to support the findings of fact of the Commission and the order granting the certificate are in most general terms, and they brief the case largely from the standpoint of the operations of each of them over their different routes, which serve only parts of the territory proposed to be served by appellee, contending that the undisputed evidence shows that the service rendered by each of them is adequate for the particular territory served; that by interchange of service over State Highway No. 2, and other established routes, appellants furnish daily service to many of the cities and towns on the. proposed routes of ap-pellee ; and in substance that the additional service proposed by appellee will involve financial loss to those already in the field. We regard the evidence, as above summarized, as showing that neither of the appellants operates over all of the proposed routes of appellee, and that neither of them furnishes daily overnight with early morning delivery service as proposed by ap-pellee, and from which facts the Commission found that the present and future public convenience and necessity required the proposed service. These facts bring the instant case squarely within the rule stated by Associate Justice Baugh for this court in the case of Texas Motor Coaches v. Railroad Commission, supra [59 S.W.2d 926], as follows:

“If public convenience and need outweigh, as the trial court and the commission found in this case that it did, the private interests of those already in the field, the latter become subservient to the former, and müst abide the result, even though it involve financial loss. All these things, and the weight to be given them, were matters within the scope of the powers delegated to the commission to determine; and, unless the commission abused its discretion in the conclusions reached, the courts are not at liberty to set aside the result. Texas Motor Coaches v. Railroad Comm. (Tex.Civ.App.) 41 S.W. (2d) 1074, 1078; Railroad Comm. v. Shupee, supra; Mayor of Houston v. Houston City St. R. Co., 83 Tex. 548, 19 S.W. 127, 29 Am.St.Rep. 679; section 5, art, 10, Texas Constitution. And this is true where the use of the same highway is involved. In the instant case, however, the permit contested was over a distinct and separate highway serving in part at least a separate and distinct territory from that served by appellant, and one which the trial court found could not be served by appellant in operating over the southern route. * * *
“If, however, the service rendered over one route or highway is not adequate to meet the needs of adjacent territory which must be served over another highway, though between the same termini, it was a matter peculiarly within the realm of the commission’s functions to determine whether such public convenience could be best met by an operator between said termini already in the field or by granting a permit to a competitor.”

Nor do we sustain point “2” that the application made by Frank A. Blanken-beckler, trustee, for a certificate to be issued to a corporation to be formed did not meet the requirements of Art. 911b, Sec. 1(a) of the Motor Carrier Act, which provides that a certificate may be issued to “an individual, a firm, co-partnership, corporation, company, and association or a joint stock association.” The sole question raised by this point, which is based upon appellants’ assignment of error No. 5 and their proposition No. 4, is that one individual, acting for himself and two named associates, cannot make an application for a certificate to operate a common carrier service, the certificate to be issued to a corporation to be formed by them with a paid up capital stock of $10,000. The statute does not provide that the corporation be in existence at the time the application is heard, and in the instant case both the application and the order granting the certificate were conditioned that the certificate would not issue until a certified copy of the charter of the corporation was filed with the Commission. It would seem useless to form the corporation until it was assured that the certificate would be granted. The corporation without the certificate would be worthless. The evidence showed the ability of the proposed incorporators to incorporate, the respective amount of stock to be owned by each of them, the duties to be performed by the incorporators in rendering the proposed service, and the corporation was in fact chartered with a capital stock of $10,000 fully paid before the certificate was issued to it. Appellants make no attack upon the ability of the corporation with a capital stock of $10,-000 fully paid to operate or perform the service authorized and required by the certificate. No authority is cited by appellants in .support of their contention and none has been found by us which would sustain the contention.

Nor do we sustain the contention made by point “3” that the application did not point out the inadequacies of existing service over the proposed route as required by Art. 911b, Sec. 10(4), which provides in substance that the application shall be accompanied by a map showing the lines of existing common carrier companies serving the same territory and shall point out the inadequacy of existing transportation facilities or service, and shall specify wherein the proposed service would meet the required needs.

The Commission requires that applications for certificates be made on a form prescribed by it, the portion pertinent here reading as follows: “If this application covers all or a portion of a territory in which there is already a common carrier in operation, point out in detail the inadequacies of existing transportation facilities.”

The application in the instant case met this requirement by attaching “Exhibit D” which reads as follows:

. “There is no direct service from San Antonio to Wichita Falls, nor points intermediate thereto along the routes to be served. Various points along U. S. Highway No. 281 intermediate to' Wichita Falls and San Antonio have some character of 'service, but most of it is by circuitous routes and long hauls, although there is sofríe direct service between Wichita Falls and Jacksboro as we understand, and there is also probably some direct service to San Antonio and perhaps as far north as Lampasas. Practically all points on this route are reached by interline shipments or by interchanges at division points on the lines of some of the carriers.
“Neither is there any direct service between Wichita Falls and Austin.
“There is no direct service between San Antonio and Wichita Falls, such service as now existing being rendered by carriers interlining shipments which move from San Antonio to Wichita Falls or via rail through Waco and either Fort Worth or Dallas, which is a longer and more circuitous route; such shipments must be interchanged between carriers either at Waco, Dallas or Fort Worth.
“Service along these routes and between all common termini and intermediate points is inadequate because of the requirements for the interlining of shipments, movements over longer routes and no direct service. Service along the routes proposed in this application would, be considerably expedited by the granting of this" application, both as between all common termini and still more especially as between many of the intermediate points.
“Applicant finds that there is a considerable flow of tonnage between all of the common termini and various intermediate routes applied for which is not adequately provided for, and applicant proposes to remedy this situation by rendering a daily service between all of the common termini and intermediate points using overnight service.”

To the application was also attached a map showing the proposed routes of operations, which by amendments directed by the examiner prior to the hearing by him, also showed the routes of appellants’ operations, all of whom appeared at the hearing and offered additional maps showing their routes and testimony of a large number of witnesses concerning their facilities, service and tonnage hauled. We regard the application and attached exhibits as showing the inadequacies of existing transportation facilities and service in that they did not render daily overnight service between all of the terminal cities and intermediate points, which applicant proposed to rémedy by giving such service; and especially is the application sufficient under the settled rule that strict rules of pleadings are not required in proceedings before the Commission for a certificate of convenience and necessity to operate motor carrier service. G. & H. Motor Freight Lines v. Railroad Commission, Tex.Civ.App., 140 S.W.2d 946, error dismissed, correct judgment, and cases therein cited.

Nor do we sustain the contention made by the, last part of point “4”, based on Supplemental Assignment of Error No. 1, which complains that “the Commission failed to file along with its order granting the certificate, findings of fact as required by Sec. 12(a) of Article 911b.” The assignment is so general in its nature that we doubt if it points to any specific error, but in any event the above quoted findings of fact of the Commission meet the requirements of the statute, which provides that in granting or refusing a contested application for a certificate, “the Commission shall along with its orders file a concise written opinion setting forth the facts and grounds for its action.” The findings of fact quoted do not detail the testimony nor evidence, but sufficiently find the ultimate facts upon which the order or action is based, as pointed out in our above summarized statement of the facts proved.

We find no error in the judgment of the .trial court and it is affirmed.

Affirmed.


author: NORVELL, Justice.

text:
    TROELL v. CALLAWAY.
    No. 10839.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1941.
    Rehearing Denied Feb. 26, 1941.
    R. R. Smith, of Jourdanton, and A. R. Troell, of Pleasanton, for appellant.
    A. N. Steinl'e, of Jourdanton, and J. R. Garnand, of Pleasanton, for appellee.
   NORVELL, Justice.

This is an action in trespass to try title brought by appellant, Chas, T. Troell, against appellee, J. J. Callaway, for the recovery of the East 25 feet of Original Lot No. 36 of the Town of Pleasanton. Trial was to a jury, and upon its answer to one special issue judgment was rendered for Callaway.

On April 11, 1930, Wallis McCoy owned Lots Nos. 38 and 40, and the East 25 feet of Lot 36, of the town of Pleasanton, and 'on said date he executed a deed of trust covering Lots 38 and 40 to John C. Berry, trustee, for the benefit of J. H. Berry, securing an indebtedness of $375. This indebtedness was not paid and the trustee conveyed the two lots to J. H. Berry by trustee’s deed dated June 2, 1931. Berry conveyed the property to Callaway by deed dated August 18, 1934.

On the 7th day of March, 1939, Wallis McCoy conveyed the East 25 feet of Lot 36 to appellant, Chas. T. Troell. This tract is adjacent to the tract covered by the Berry deed of trust. On April 26, 1939, Troell filed this suit.

The appellee pleaded the ten-year statute of limitation, Article 5510, Vernon’s Tex. Civ.Stats., and that “Wallis McCoy about the 2nd day of June, 1931, delivered the adverse possession of said property to one J. H. Beery” and “that the aforesaid Wallis McCoy, about the 2nd day of June, 1931, abandoned to said J. PI. Berry, the title and possession of the property involved in this suit and never asserted any claim thereto, until he purportedly conveyed” the property to appellant.

The jury found that on or about June 2, 1931, Wallis McCoy did “deliver to J. H. Berry the adverse possession” of the tract of land here involved.

In our opinion, the judgment should have been rendered for appellant as the holder of the record title. As above pointed out, Wallis McCoy, prior to June 2, 1931, held the fee simple title to all of Lots Nos. 38 and 40, as well as that part of Lot 36 now in controversy. His possession as the owner in fee simple could not be tacked upon the subsequent possession of Berry and Callaway in order to make out the prescriptive period designated by Article 5510. Evans v. Berlocher, 83 Tex. 612, 19 S.W. 158; 2 Tex.Jur. 166, sec. 87. Certainly, Wallis McCoy, the possessor, can not be considered as holding adverse to Wallis McCoy, the record owner.

It is the duty of this Court to render the judgment which should have been rendered by the trial court, and accordingly the judgment of the trial court is reversed and judgment here rendered that appellant recover of appellee the title and possession of the tract of land in controversy, together with his rents in the amount stipulated by the parties.

Reversed and rendered.


author: TIREY, Justice.

text:
    JOYNES v. JONES FINE BREAD CO.
    No. 2281.
    Court of Civil Appeals of Texas. Waco.
    Feb. 13, 1941.
    Travis McCown arid Stansell Bryan, both of Waco, for appellant.
    Tom P. Scott, of Waco, for appellee.
   TIREY, Justice.

Plaintiff C. W. Joynes brought this suit to recover damages for injuries which he claimed his wife, Leta Joynes, suffered from eating bread mariufactured by the defendant Jones Fine Bread Company. The case was tried by the court without a jury, and from an adverse judgment the plaintiff has appealed.

At the request of plaintiff, the court prepared and filed findings of fact and conclusions of law. The court’s findings of fact were substantially as follows: (a) That the loaf of bread in question was manufactured by defendant and sealed in a wrapper before delivery to the retail grocer ; (b) that plaintiff’s wife purchased the loaf of bread and carried it home and ate a portion thereof, and after eating same, she noticed something in the remaining portion of the loaf which appeared discolored; that she ate other foods at the same time she ate the bread, and became nauseated some six hours after eating; (c) that the defendant was not negligent in the manufacture, inspection and marketing of the bread, and was not negligent in the respects alleged in plaintiff’s petition; (d) that the illness of Leta Joynes was not caused by the condition of the bread, and that such illness was not proximately caused by the negligence of the defendant or its agents. The court concluded as a matter of law, substantially, that there was no sufficient, competent evidence that the bread in question was unwholesome so as to be unfit for human consumption; that plaintiff failed to discharge the burden of proving by a preponderance of the evidence that the eating of the bread resulted or proximately resulted in the illness of Leta Joynes; and that defendant was in nowise liable to plaintiff for any damages sustained by reason of the facts alleged in his petition.

Appellant, in his brief, does not directly challenge any of the findings made by the trial court, but merely assails the entry of the judgment on the ground that the evidence made out a prima facie case of negligence ahd that there was sufficient evidence to support a judgment for damages in favor of plaintiff. Notwithstanding the assignments of error made by the plaintiff are general, we have considered each of them, and have very carefully reviewed the statement of facts, and in our opinion, the evidence adduced is ample to support the findings made by the trial court and the judgment entered thereon. In a case tried to the court without the intervention- of a jury, the appellate court will take the view of the evidence most favorable to the prevailing party. Anderson v. Smith, Tex.Civ.App., 231 S.W. 142, writ refused; Green v. Noah, Tex.Civ.App., 24 S.W.2d 1113, point 1, page 1115.

We have carefully considered all assignments of error and each of them is overruled.

The judgment of the trial court is affirmed.


author: BOND, Chief Justice.

text:
    CLARK et al. v. SUPERIOR LLOYDS OF AMERICA.
    No. 12812.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 18, 1939.
    Rehearing Denied Dec. 30, 1939.
    Wright K. Smith, of Dallas, for plaintiffs in error.
    Touchstone, Wight, Gormley, Stras-burger & Price, of Dallas, for defendant in error.
   BOND, Chief Justice.

The record herein shows conclusively that defendant in error insured a “pickup” automobile, as distinguished from an “ambulance”. Plaintiffs in error knew the distinction and recognized that an “ambulance” is a more hazardous risk than a “pick-up”, and carries a higher rate of insurance. The insurance policy expressly excludes any obligation of the insurer, “(a) * * * while the automobile is used * * * as a public or livery conveyance or for carrying persons for a consideration, * * * unless such use is specifically declared and described in this policy and a premium charged therefor; * * Plaintiffs in error used the automobile in question as a livery conveyance for persons needing ambulance service, free of charge when unable to pay for its hire, as an advertisement of its undertaking business, and for a charge when such persons were able to pay. On the occasion of the accident, plaintiffs in error’s agent or servant was operating the vehicle in question as an ambulance, making a hurried call to some person in need of such service, and, in attempting to cross a street intersection in the City of Dallas, while traveling at a very moderate rate of speed — 30 or 35 miles per hour — in disregard of a street “red light” stop-signal, collided with another automobile or truck coming from an intersecting street, resulting in damages to the ambulance.

The use being.made of the vehicle at the time of the collision, and not the name by which it was designated in the policy, is the controlling feature. Evidently the automobile .was an ambulance at the time of the collision, operating under an ordinance of the City of Dallas which accords such vehicles the privilege of disregarding stop signals while sounding a siren warning of approach to a street crossing. It is undisputed that plaintiffs in error paid no additional insurance premium for use of the automobile as a livery conveyance for hire; consequently, it was not covered, within the contemplation of the policy of insurance. The policy not covering the automobile in question in the use it was then being put to, and the exclusion provision of the policy not having been waived, expressly or otherwise, by the soliciting agent or other person in authority, as to estop the insurance company, the trial court did not err in sustaining defendant’s motion for an instructed verdict and entering judgment accordingly.

We have carefully considered all of plaintiffs in error’s assignments; finding no reversible error, the judgment of the court below is affirmed.

Affirmed.

On Motion for Rehearing.

The record shows that, soon after the issuance of the insurance policy, the insurer sought to cancel the policy for fraud and collusion of the insured and the insurer’s agent, and an account thereof tendered to the insured, $26.50, being the amount of the premium paid for the purported coverage, in cancellation of the policy; then, again, after suit was filed, the tender was renewed and the insurer offered payment of the amount of the tender into court, “conditioned upon the surrender of the policy of insurance in question, and the plaintiff’s agreement, or the court’s finding, that no policy of insurance was ever actually in force between the parties”. The insured declined to accept the tender, on the conditions stated.

On trial of the cause, the court found, in effect, that no policy of insurance was ever actually in force between the parties, thus meeting a condition imposed by the insurer for the return of the premium; accordingly, on payment of the amount of the tender into court, after final judgment that no insurance was in force on the automobile involved in the collision, the insurance company, by the judgment, should have been discharged on its plea of tender, with its cost, and the policy of insurance canceled. The omission of the court below to make disposition of the tender was not called to the attention of the trial court by motion, or otherwise, but, for the first time, is assigned as error here. In view of the record and disposition of the case, the premium should have been returned to the insured; therefore, the judgment of the court below is reformed, canceling its policy of insurance and discharging the insurance company on payment into court of the sum of $26.50 for the use and benefit of the insured; and, for the reasons stated, all costs in the court below and on appeal are taxed against plaintiffs in error; in all other respects, plaintiffs in error’s motion for rehearing is overruled.


author: CODY, Justice.

text:
    TIAN v. TACQUARD et ux.
    No. 11102.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 6, 1941.
    Rehearing Denied Feb. 27, 1941.

      Combs & Dixie, of Houston, (Elias Ga-toura, of Houston, of counsel), for appellant.
    Armstrong, Cranford, Barker & Bed-ford, of Galveston, for appellees.
   CODY, Justice.

Appellees as plaintiffs brought suit against appellant M. J. Tian and wife, Mrs. Josie Tian, and one J. H. Rogers, in trespass to try title to recover a specified forty-acre tract of land in Galveston County, Texas. They also pled the 3-year, the 5-year, and .the 10-year statute of limitation. Mrs. Tian answered by general demurrer, plea of not guilty and general denial. Appellant also answered with a general demurrer, a general denial and a plea of not guilty.

Appellant also filed a cross-action against appellees in trespass to try title to a specified 35-acre tract out of the 40-acre tract which appellees sued for. In the alternative, both by way of 'defense to appellees’ suit and as a cause of action in his independent suit against appellees, appellant pled a contract of exchange by which ap-pellees agreed to exchange the 35-acre tract for a 7^acre tract of appellant’s in Alta Loma, Galveston County, Texas. Appellant alleged that the contract of exchange had been performed within the contract period. In the alternative, appellant alleged that he had fully complied with the contract of exchange, and was entitled to specific performance of the contract against appellees. He further alleged an extension of time for performance granted by appel-lees, and a performance by him within the extended period. In the further alternative, appellant pled for damages for breach of contract to exchange land in the sum of $13,000, and for recovery of improvements made by him on the 35-acre tract.

Appellees filed a first supplemental petition in answer to appellant’s cross-action, and among other things, pled the 35-acre tract formed a part of their homestead at the time of, prior to, and subsequent to the alleged contract of exchange.

J. H. Rogers filed a disclaimer.

At the conclusion of the trial appellees moved for an instructed verdict against all defendants, and appellant moved for an instructed verdict against appellees. The court granted appellees’, and denied appellant’s, motion.

The following facts appear not to be disputed: A short time before December 18, 1937, appellant and appellee, Mr. Tacquard, together with his daughter, Miss Ada Tac-quard, went to the office of the Guaranty Abstract Company of Galveston, and engaged L. F. Fox, a vice-president of said company, to handle for them an exchange of property which they had agreed upon. They advised Fox that they had agreed on their respective properties; that the appel-lees were conveying to appellant the 35-acre tract in question in consideration of appellant conveying to appellees the aforesaid 7*4-acre tract. They requested Fox to draw ttp earnest money agreements, which he did, and which agreements they exchanged. 'These were as follows:

“E 678 — Earnest Receipt — Class 3
“$10.00 Galveston, Texas, December 18, 1937.
“Received from Arthur Tacquard and wife, Ten and 00/100 Dollars, earnest money to close sale to them of 7½ acres of land as agreed between ourselves, in Alta Loma, Galveston County, Texas, with the exception that ½ of the minerals are to be retained by the seller, at the total price of $3000.00 evidenced by 35 acres of land in Alta Loma, Galveston County, Texas, as agreed between ourselves, and one note to the amount of the Taxes now due on this property, Title to be perfect, or to be made perfect at" the expense of the vendor. Deed at expense of Vendor, Deed of Trust & note at expense of purchaser. Title Guaranty at expense of purchaser. Abstract of Title of said Property to date of making sale at expense of vendor. Taxes to be all paid to date of closing of deal. This sale to be closed up within 45 days from this date. Title to be perfect or made perfect, or this sale to be called off.
(Signed) “M. T. Tian
“Agent for -
“I accept the foregoing contract of sale this 18th day of Dec., 1937.
.(Signed) “Arthur Tacquard.”
“E 678 — Earnest Receipt — Class 3
“$10.00 Galveston, Texas, December 18, 1937.
“Received from M. J. Tian- Dollars, earnest-money to close sale to him of 35 acres of land in Alta Loma as agreed between ourselves, Galveston County, Texas, at the total price of $3000.00 evidenced by 7½ acres of land with improvements in Alta Loma, Galveston County, Texas, as agreed between themselves. Title to be perfect, or to be made perfect at the expense of the vendor. Deed at expense of vendor. Title Guaranty at expense of seller. Taxes to be paid by the vendor up to and including date of sale. This sale to be closed up within 45 days from this date. Title to be perfect or made perfect or this sale to be called off.
(Signed) “Arthur Tacquard.
“I accept the foregoing contract of sale this 18th day of December, 1937.
(Signed) “M. J. Tian.”

About the time these agreements were signed Mrs. Tacquard, who had separated from her husband, and her daughter aforesaid moved into possession of the 7½ acre tract belonging to appellant; and Tian took possession of the 35-acre tract by his tenant, Rogers. Both parties made improvements on the properties, possession of which they had taken. Thereafter, sometime in March of 1938, Fox prepared a deed for appellees to sign which was intended to convey the 35-acre tract to appellant, and a deed for appellant and his wife to sign. Appellees signed the deed to the 35-acre tract, and for convenience left it with Fox, but they did not acknowledge their signatures, and no contention is made that they left the deed in escrow. Appellant was to procure his wife’s signature and acknowledgment to the deed conveying his 7½ acre tract, as it had recently been their homestead. Appellant was never able to get his wife to sign the deed. The transaction hung fire until appellees filed this suit in March of 1939. As we are of the opinion that the contract which appellant seeks to enforce is void because of the inadequacy of the description therein of the 35 acres of land, we will not elaborate a statement of facts which relate to various other points which both sides raise.

It will be noted that the description in the contract appellant seeks to enforce is “35 acres of land in Alta Loma as agreed between ourselves, Galveston County, Texas. * * *” In Penn v. Texas Yellow Pine Lbr. Co., 35 Tex.Civ.App. 181, 79 S.W. 842, 843, Judge Pleasants, speaking for this Court, held that the memorandum of a contract for standing timber whereby one of the parties agreed to convey to the other 6,100 acres “under consideration, in Tyler county”, was insufficient under the statute of frauds, as not describing land so that it could be identified with reasonable certainty. “We think”, said the Court, “the description of the land contained in the contract is wholly insufficient to identify the land attempted to be described, and the contract furnishes no means by which said land can be identified with reasonable certainty. The case presented is not one calling for the application of the rule which permits the introduction of parol evidence to explain an ambiguity in the description of land contained in a deed, but the question is whether a failure to describe the land in a contract of sale so that it can be identified can be supplied by parol evidence showing what land was in contemplation of the parties in making the contract. * * * The only language in the contract description of the land agreed to be sold is 'the 6,100 acres under consideration, in Tyler county.’ This language only informs us that the land contracted to be sold is situate in Tyler county, and consists of 6,100 acres, and it is manifest that the land cannot be identified from this description. The words ‘under consideration’ add nothing to the description of the land, since they only refer to the mental attitude of the parties toward the land, which, from the allegations of the petition, is only susceptible of proof by parol. * * *” The -holding just quoted rules the present case. See also Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, 705; Brown v. Gaines, Tex.Civ.App., 131 S.W.2d 801, writ refused. Such cases as T. W. Marse & Co. v. White, Tex.Civ.App., 189 S.W. 1027, holding that where the language used in a deed is ambiguous the construction given by the parties' will be deemed the true one, are not applicable. The trouble here is'not that appellant is seeking to enforce a contract which is ambiguous, but that he is seeking to enforce one that is contrary to the statute of frauds. This the courts will lend no aid 'in doing.

Appellant contends that appellees are estopped from claiming the benefits of the statute of frauds.

Our courts have held by an unbroken line of authorities that to relieve a parol sale of land from the operation of the Statute of Frauds, three elements are necessary: (1) The payment of the consideration, whether it be in money or services; (2) the possession of the property by the vendee; and (3) the making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor, or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser thereof if it were not enforced. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216; American National Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161.

It is further held that the payment of the consideration in itself, though it be a payment in full, is not sufficient; nor is possession of the premises, or the making of valuable improvements thereon sufficient; each of these three elements is indispensable and they must all exist. To hold otherwise would, in effect, annul the act. Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505.

It is also held that where the action is brought upon a verbal and executory contract of sale, by the vendor, as in the instant case, a tender to the purchaser .of a deed to the property in question, which is not accepted by him, cannot be held to be a payment of the consideration, but that it is merely a tender of performance of the contract. Clegg v. Brannan, 111 Tex. 367, 234 S.W. 1076; Lechenger v. Merchants’ National Bank, Tex.Civ.App., 96 S.W. 638.

There is no occasion to review the evidence which appellant contends sustains an estoppel against appellees from claiming the benefits of the Statute of Frauds, for it is obvious that there was no payment of the consideration to appellees, and tender thereof by appellant does not under the cited authorities avail him. See also Ann Berta Lodge No. 42, I.O.O.F. v. Leverton, 42 Tex. 18.

The judgment of the court below should be affirmed; it is so ordered.

Affirmed.


author: HAWKINS, Presiding Judge.

text:
    Abe BERLOWITZ, Appellant, v. STATE of Texas, Appellee.
    No. 21527.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1941.
    Clark & Seley, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus.tin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for theft of cattle, punishment 'being assessed at two years in the penitentiary.

Since the jurisdiction of this court attached appellant has filed here his affidavit advising the court that he does not desire to further prosecute his appeal and at his request said appeal is dismissed.


text:
    Edgar SMITH, Appellant, v. STATE of Texas, Appellee.
    No. 20,768.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
   HAWKINS, Presiding Judge.

The judgment of conviction was affirmed on January 24, 1940. Motion for rehearing was overruled February 21, 1940. Tex.Cr.App., 136 S.W.2d 842. Appellant made application to the Supreme Court of the United States for writ of certiorari to review the action of this court. The writ was granted, 309 U.S. 651, 60 S.Ct. 891, 84 L.Ed. 1001, and on November 25, 1940 the Supreme Court of the United States reversed the judgment of this court and remanded said cause for further proceedings not inconsistent with the opinion of said Supreme Court of the United States. 61 S.Ct. 164, 85 L.Ed. -.

Therefore, in compliance with said opinion this cause is remanded to the trial court for further proceeding in said cause, as may be consistent with the opinion of the Supreme Court of the United States.

Accompanying this order, and made a part thereof, is a certified copy of the mandate from the Supreme Court of the United States, now on file as a part of the record in this cause.


author: -O’QUINN, Justice.

text:
    W. O. GAINER, Appellant, v. F. R. BALCAR, Respondent.
    No. 3792.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 30, 1941.
    Rehearing Denied Feb. 5, 1941.
    B. L. Collins, of Lufkin, for appellant.
    C. W. Wiedemann, of Beaumont, for ap-pellee.
   -O’QUINN, Justice.

This is the second appeal from a judgment of the County Court of Jefferson County, at Law, Jefferson County, Texas, overruling appellant’s plea of privilege; the opinion on the first appeal is reported 135 S.W.2d 1012. An examination of the brief discloses no error; the judgment is affirmed without written opinion. 127 S.W.2d 1040.

Affirmed.


author: PER CURIAM.

text:
    Mrs. Inez E. VAN DYKE, Appellant, v. O. H. SUMMERS, Appellee.
    No. 10870.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 5, 1941.
    Myrick & Johnson, of Harlingen, for appellant.
    Clayton R. Baird, of Edinburg, for appel-lee.
   PER CURIAM.

Affirmed without written opinion on authority of Associated Indemnity Corporation et al. v. Gatling, Tex.Civ.App., 75 S.W.2d 294.