author: STOKES, Justice.

text:
    BROAD v. WARNECKE et al.
    No. 5217.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 4, 1940.
    Rehearing Denied Nov. 25, 1940.
    Hamilton & Deaver, of Memphis, for appellant.

      W. T. Link and R. Y. King, both of Clarendon, for appellees.
   STOKES, Justice.

On April 1, 1924, O. W. Kyser and B. A. Kyser executed and delivered to W. P. Bomar, trustee, a deed of trust on 280 acres of land to secure the payment of two notes in the sum of $200 each and one note in the sum of $2,200, all payable to J. W. Broad, the first two to become due and payable January 1, 1925 and 1926, respectively, and the $2,200 note to become due the 1st of January, 1934. These notes provided for interest at the rate of 8% per annum and 10% attorney’s fees if sued upon or placed in the hands of an attorney for collection. They were given in renewal and extension of the unpaid portion of two prior series of vendor’s lien notes, one series having been assumed by the Kysers and the other series executed by them as part of the purchase price of the land when they purchased the same. On and before January 2, 1925, appellee, Mrs. H. E. Warnecke, and the other appellees in this appeal, were the owners of a 40-acre tract adjoining the 280 acres covered by the deed of trust, the two tracts together constituting the entire east half of Section 91, Block 20, of the H. & G. N. Ry. Co. Survey in Donley County, the 40 acres being out of the northwest corner of the half section. The record shows that on January 2, 1925, appellees enclosed and took possession of the 14½ acres involved in this suit, whi.ch constituted a portion of the 280-acre tract. The 14½ acres consisted of a strip along the south end and east side of the forty-acre tract approximately 75 yards wide, enlarged the 40-acre tract already owned and possessed by ap-pellees to a tract of 54½ acres, and reduced the enclosure of the owner of the 280-acre tract by a like amount.

From and after January 2, 1925, appel-lees had exclusive, open and adverse possession of the entire 54%-acre tract, claiming, using and cultivating the same until this suit .was filed May 6, 1939, under circumstances ordinarily sufficient to perfect title by limitation and adverse possession under the ten-year statute of limitation, Art. 5510, R.C.S., 1925.

On March 4, 1932, W. P. Bomar resigned as trustee in the deed of trust, and E. H. Holcomb was appointed as substitute trustee by J. W. Broad, the holder of the notes secured thereby. On the 5th of April, 1932, default having been made by the Kysers in the payment of accrued interest on the $2,200 note, Broad matured the entire indebtedness under the accelerated maturity clause in the notes and deed of trust and Holcomb, at Broad’s request, advertised and sold the 280 acres of land at public vendue under the. power given to him by the deed of trust, J. W. Broad becoming the purchaser. J. -W. Broad after-wards died, leaving a will in which the appellant, Martha E. Broad, his surviving wife, was made the sole legatee and she thereby became the record owner of the 280 acres. Shortly before this suit was filed by appellant, she undertook to remove the fence between her land and the 54½ acres enclosed by and in the possession of appellees so as to include within her enclosure the 14%-acre strip above mentioned. A controversy between the parties concerning the ownership' of the strip of land immediately arose, which resulted in the filing of this suit by appellant in which she prayed for an injunction, restraining appellees from in any manner interfering with her in relocating the fence between the two tracts of land. Appellees filed an answer in which they set up title by limitation and adverse possession of the 14%-acre strip of land and the suit, in effect, devolved into one of trespass to try title, appellant, Mrs. Broad, claiming the land under the purchase of her husband at the foreclosure sale under the deed of trust, and appellees claiming it under the ten-year statute of limitation, Art. 5510, R.C.S.

The case was submitted to a jury upon special issues, in answer to which the jury found that the appellees had held peaceable and adverse possession of the 14½ acres for ten years continuously before the suit was filed on May 6, 1939, and on November 11, 1939, the court rendered judgment upon the verdict decreeing the land to appellees.

At the close of the testimony, appellant presented and urged a motion for an instructed verdict in her favor, which was overruled by the court, and, after the verdict was returned, she presented and urged a motion for a judgment non obstante vere-dicto, which was also overruled. After the judgment was entered, appellant filed a motion for a new trial which was overruled by the court and she duly excepted to the judgment and gave notice of appeal which has been duly perfected.

The contentions of the partiés present for decision the single question of whether or not, under the facts above detailed, the appellees had perfected a title to the 14½ acre strip of land by limitation and adverse possession as against the appellant, Mrs. Broad. As has been stated, the ap-pellees entered upon and took possession of the strip of land on January 2, 1925, and this suit was not filed until May 6, 1939, which was more than fourteen years after the possession of appellees began. J. W. Broad, the deceased husband of appellant, purchased the land under the foreclosure proceeding on April 5, 1932. Prior to that time his interest in the land consisted only of his rights and liens under the deed of trust and the prior vendor’s lien notes which were merged into the indebtedness secured thereby. It will be seen, therefore, that only eight years had elapsed after he acquired the record title until the suit was filed. More than ten years had elapsed between the time appellees took possession of the land, but less than ten years had elapsed from the time appellant’s deceased husband became the owner of the record title. We are thus confronted with the question of whether or not adverse possession and limitation under Art. 5510, R.C.S., affects or applies to a mortgagee or one who holds a lien on the land irlvolved. The pertinent provision ■of Art. 5510 is as follows: “Any person who has the right of action for the recovery of lands, tenaments or heredita-ments against another having peaceable and adverse possession thereof, cultivating, using or enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterward. * * * ”

By the plain provision of the statute, the interest and title acquired by adverse possession is that of one who has a right of action for the recovery of the land. It is such, and only such, as is given by the statute, and unless the person claiming such title brings himself within the provisions of the statute, he cannot claim its benefits. The question arises, therefore, as to whether or not, under the facts of this case, appellees held peaceable and adverse possession against one having a right of action for the recovery of the land. Neither appellant nor her deceased husband held any semblance of title to the land at any time prior to April 5, 1932, when J. W. Broad purchased it at the trustee’s sale. Being only a mortgagee, J. W. Broad, during his lifetime, had no posses-sory right to the land until it was purchased by him at the trustee’s sale. Without such right there was no foundation for a suit by him to recover the land. Hume v. Le Compte, 142 S.W. 934. It was held by the Court of Civil Appeals of the Fourth District in the cited case that this rule applies even in a case where a deed absolute in form but intended as a mortgage constituted the basis of the plaintiff’s claim and that the mortgagee cannot maintain an action in trespass to try title even against a trespasser. A writ of error was refused by the Supreme Court in that case, and we think it may be said that the rule is well established in this State.

Moreover, it is held that a right of action must exist on account of the invasion of the owner’s rights during the prescriptive period in order to mature such a title. Martin v. Burr, Tex.Civ.App., 171 S.W. 1044, and authorities there cited. It follows as a necessary sequence that our law of limitation and adverse possession under Art. 5510 does not include within the persons who have a right of action for the recovery of land a mortgagee or lien holder. The statute covers only such persons as have a right of action for the recovery of the land and. unless the person against whom such limitation and adverse possession is asserted has a right of action for the recovery of the land involved, no adverse possession or limitation can run against him no matter how long it may continue. Our Legislature has provided other periods of limitation under which mortgagees and lien holders are bound and the periods in which they must file their causes of action, and an analysis of the conditions which exist under the law between mortgagees and land owners will, we think, demonstrate the wisdom .of the law makers in 'expressing our statutes of limitation in the language in which we find them. Were it otherwise, and especially if the law were such as appellees contend here that it is, investors would hesitate long and seriously before investing in land securities in this State which mature more than ten years after date. The right of action contemplated by the statute, Art. 5510, R.C.S., means the right to institute and maintain a suit for the recovery of the land. J. W. Broad had no such right, as far as the record in this case shows, prior to the time the land was advertised and sold to him by the substitute trustee. The $2,200 note held by him and secured by the deed of trust had not matured. No right of action had accrued thereon and the holder of the indebtedness had no complaint upon which -any kind of a suit could have been based. Wilson v. Beck, Tex.Civ.App., 286 S.W. 315; Port Arthur Rice Milling Co. v. Beaumont Rice Mills. 105 Tex. 514, 143 S.W. 926: Federal Crude Oil Co. v. Yount-Lee Oil Co., Tex.Civ. App., 73 S.W.2d 969; Stanley v. Schwalby, 85 Tex. 348, 19 S.W. 264; Lemp Brewing Co. v. La Rose, 20 Tex.Civ.App. 575, 50 S.W. 460; Davis v. Dixon, 61 Tex. 446; Life Ass’n of America v. Goode, 71 Tex. 90, 8 S.W. 639.

Appellees contend in this connection that J. W. Broad had the right to protect his interest in the land before the deed of trust was foreclosed under the provisions of the law pertaining to waste, and they cite us to the case of Carroll v. Edmondson, Tex.Com.App., 41 S.W.2d 64, and other cases of like import. In the cited case Carroll brought suit against Edmondson for the value of an elevator which the latter had removed from a building upon which Carroll held a lien. The court held, in effect, that a mortgagee, such as Carroll, had a cause of action for injury to his security and that such injury was the measure of his recovery, but that he did not have a cause of action for damages to the property. The instant case was not instituted by Mrs. Broad to recover damages to her security. The record is devoid of any allegation or proof that the security had in anywise been injured. Her suit, if any she had, was for the land itself, and if she had a right of recovery it was to recover the title and possession of the land and not damages that had been occasioned to her security. It is not contended that appellees had injured her security but that they had deprived her of her land by taking and attempting to hold the title and possession. The rights of lien holders against those committing depredations upon, and causing waste, of, or feijury to, their security have no application to á case of this kind. It is simply a question of whether or not one holding peaceable and adverse possession of land for a period of ten years may thus perfect title thereto as against a mortgagee holding a live and valid mortgage on the land.

Counsel state in their briefs that the exact question here involved is one of first impression and we have not found any case in which it has been decided. A proper construction of the provisions of the statute itself, however, leads us inevitably to the conclusion that appellees in this case are not protected by it. The rights, title and interest which they acquired by their peaceable and adverse possession of the land for the period provided by the statute were only such rights as may have been possessed by a person who had the right'of action for the recovery of the land. What we have said and the expressions of the courts in the cases cited demonstrate, we think, that appellant was not such a person and that the statute relied upon by appellees does not include a mortgagee nor a purchaser of the land under a valid foreclosure of a mortgage until his purchase is complete and he acquires a right of action for the recovery of the land.

The salient facts in the case were undisputed, and it follows from what we have said that, in our opinion, the appellant was entitled to recover the land. The motion presented and urged by her for a peremptory instruction in her favor should have been granted, and likewise, after the verdict was returned, she was entitled to a judgment under her motion for judgment non obstante veredicto. Both of these motions were overruled and in this the court below committed error for which its judgment will have to be reversed. The record indicates the case was fully developed in all of its aspects and nothing could be gained by another trial. Judgment will, therefore, be here rendered that appellant recover the title and possession of the 14¾ acres of land, together with the costs in the trial court and the costs of this appeal.


source: Caselaw Access Project

author: JOHNSON, Chief Justice.

license: Public Domain

text:
    STARLING v. PRESTON et ux.
    No. 5670.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 7, 1940.
    Rehearing Denied Nov. 21, 1940.
    Cornelius & Heaton, of Jefferson, for plaintiffs in error.
    Tom L. Beauchamp, Jr., of Austin, and W. W. Harris, of Pittsburg, for defendant in error.
   JOHNSON, Chief Justice.

This suit is a statutory action of trespass to try title to an undivided ½ interest in the oil and gas minerals in and under the east 58.21 acres of a certain 126.21 acres of land located in Marion County, filed by C. Archie Preston and wife, Pearl Preston, against T. D. Rowell, trustee, and Arkansas-Louisiana Gas Company. M. O. Anderson was permitted to intervene as a plaintiff claiming to have acquired by purchase all the right, title and interest of the plaintiffs C. Archie Preston and wife, Pearl Preston, in said minerals subject only to the unpaid purchase money. Defendant Arkansas-Louisiana Gas Company and the defendant T. D. Rowell, trustee, duly answered. Each of the answers contained a plea of not guilty.

On May 16, 1924, J. P. Lovett owned the 126.21 acres of land in fee, and on that date he conveyed to C. Archie Preston an undivided interest (the amount of which interest being here in dispute) in the oil and gas minerals in and under said land, and in the same instrument Lovett and Preston evidenced an agreement between them with respect to a division of the profits should any be derived from sale by either or both of them of the mineral interests owned by each, within twenty-five years from date of the instrument. On July 12, 1924, Lovett conveyed the east 58.21 acres of the 126.21-acre tract to C. C. Pruitt, excepting from said conveyance an undivided ¾6 of the minerals recited as having been theretofore conveyed by Lov-ett to Preston. -By mesne conveyances through and under Pruitt, title was acquired by T. D. Rowell, trustee, to said 58.21 acres. Rowell executed an oil and gas lease by which he conveyed the ⅞ leasehold interest covering the 58.21 acres to Arkansas-Louisiana Gas Company.

The defendant Arkansas-Louisiana Gas Company, after having answered to plaintiffs’ suit, filed a motion stating that a compromise settlement had been consummated between said defendant and the plaintiffs and intervenor, • whereby plaintiffs and intervenor were to receive the ⅞ leasehold interest covering the west 8 acres of said 126.21 acres in satisfaction of their claim ■ against said defendant, and that said defendant by such settlement was to retain the ⅞ leasehold covering the remainder, and prayed that a severance be granted as to the plaintiffs’ and interven- or’s action against said defendant and that same be 'redocketed as a separate cause and that judgment be entered confirming the compromise agreement. Upon hearing of the motion, plaintiffs and intervenor in open court joined therein and judgment was entered granting same. Thereafter T. D. Rowell resigned as trustee and his successor,' J. A. Starling, was made defendant in his stead. Starling filed an answer consisting of general demurrer, general denial, plea of not guilty, and a special plea of innocent purchaser. Whereupon plaintiffs’ and intervenor’s cause of action against Starling as trustee went to trial before the court without a jury upon an agreed statement of facts. The matter as submitted to the court involved construction of the mineral deed executed on May 8, 1924, by J. P. Lovett to C. Archie Preston with respect to the issue of whether same conveyed an undivided ½ interest in the minerals (as claimed by plaintiffs and intervenor), or whether (as claimed by defendant) said deed conveyed only an undivided ¼8 interest in the minerals. That portion of the instrument here pertinent reads as follows:

“That whereas J. P. Lovett of Harris County, State of Texas, is the owner of a certain tract or parcel of land” * * * (here follows description of the 126.21-acre tract of which the east 58.21 acres is involved in this suit).
“And, whereas, for a valuable consideration, as hereinafter set forth, the said J. P. Lovett, has this day sold and assigned and conveyed unto C. Archie Preston of Marion County, Texas,-his heirs, administrators and assigns, all right, title and interest in one sixteenth (¼6) of the oil and gas rights of the above described land, and it is the desire of the said J. P. Lovett and C. Archie Preston that the said sale be formally evidenced.
“Now, therefore, for and in consideration of the sum of Teh ($10.00) to him in hand paid, the receipt of which is hereby acknowledged, confesses and the covenants herein expressed as follows: Wherein J. P. Lovett does covenant with the said C. Archie Preston and the said C. Archie Preston does covenant with J. P. Lovett, that if within twenty five (25) years from date hereof the Vie oil and gas rights herein assigned is sold, leased, assigned or conveyed by the assigned or conveyed by the assignee herein named, that the profits derived from the sale, lease, assignment or conveyance of the ½6 oil and gas rights herein assigned shall be derived equally between J. P. Lovett and C. Archie Preston and should J. P. Lovett sell, lease, assign or convey the 1¾6 oil and gas rights which he owns and retains, the profits of the sale, lease, assignment or conveyance of the said 1¾6 oil and gas rights retained by J. P. Lovett shall be equally divided between J. P. Lovett and C. Archie Preston and should the one-sixteenth oil and gas rights herein assigned and the said 1B/ia oil and gas right retained by J. P. Lovett be sold together making a ⅜ oil and gas rights, the profits derived from the sale, lease, assignment of the same shall be equally divided between J. P. Lovett and C. Archie Preston.
“It being understood that the work profits as herein used shall be the net profits derived from the sale, lease, assignment or conveyance of the mineral rights herein mentioned, either together or in part. The said J. P. Lovett does hereby sell, assign and set over unto C. Archie Preston, his heirs, administrators and assigns, all the right, title and interest in the ¾6 oil and gas right of the above described lands. The said C. Archie Preston hereby acquiring all right, title and interest in the ¾cth oil and gas right herein described, the said J. P. Lovett, being the owner of the said ¾6 (one-sixteenth) oil and gas right and having the power to sell, assign and convey the same.
“Witness my hand at Houston, Texas, this 16th day of May, A. D. 1924.
“J. P. Lovett.”

It will be here noted that the agreement between Preston and Lovett expressed in the above instrument, whereby each agreed to share equally with the other any profits received from the sale, lease or conveyance of his interest in the minerals, within twenty-five years from the date thereof, is not involved in this suit. No issue is raised in the pleadings or evidence with respect to Preston’s rights to recover ½ the profits, if any was made by Lovett, when Lovett sold the land, including all his interest in the minerals, to Preston. Neither Lovett nor Pruitt are parties to this suit. The questions raised in this suit are: (1) What interest (whether ⅛ or ¾6) in the minerals was conveyed by Lovett to Preston by the terms of the above-copied mineral deed? (2) What portion of that interest did plaintiffs and intervenors own and were entitled to recover at the time of the trial of their suit against defendant Starling, trustee?

The trial court construed the deed from Lovett to Preston as conveying to Preston “a full ¾6 of all the oil, gas and other minerals in and under the land” and entered judgment decreeing that plaintiffs C. Archie Preston and wife, Pearl Preston (subject to any rights which may have been acquired from them by intervenor Anderson), “do have and recover of and from the defendant, J. A. Starling, Receiver, a full ½6 of all the oil, gas and other minerals in and under the above described (58.21 acres) property, out of any interest not heretofore legally conveyed by him. * * * ” (Italics ours.)

Defendant has perfected a writ of error to this court. We shall continue to refer to the parties as aligned in the trial court, plaintiffs, intervenor and defendant. Defendant agrees that the trial court correctly construed the mineral deed in question as conveying to and vesting in Preston a full ⅛6 undivided interest in and to all the oil, gas and other minerals in and under the land; but, it is contended, that the trial court erred in decreeing that plaintiffs are now entitled to recover a full ½6 of all the oil and gas minerals in the land, to be taken out of any interest not heretofore conveyed by defendant. It appears that the contention must be sustained. The judgment as written has the effect of vesting in plaintiff ½ of the ⅛ royalty interest remaining after conveyance of the ⅞ leasehold, whereas plaintiffs originally owning ½6 of all the minerals are entitled to recover ½6 of the ⅛ royalty interest after conveyance of the ⅞ leasehold. The deed from Lovett to Preston was correctly construed as vesting in Preston a full ¾6 of all the oil and gas minerals in and under the land. The remaining 1¾6 was retained in Lovett, which by mesne conveyances from and under Lovett became vested in the trustee. If Preston and the trustee had then joined in a lease conveying the ⅞ leasehold interest covering the land, clearly they would have owned the remaining y8 royalty interest in like proportions as they originally owned all the minerals, that is to say, that Preston would have owned a ¼6 of the ⅛ royalty interest and the trustee 1B/ie of the ⅛ royalty. Preston did not join the trustee in the original execution of the lease conveying to Arkansas-Louisiana Gas Company the ⅞ leasehold interest covering the land. So at the time he filed his suit against the trustee and the Arkansas-Louisiana Gas Company, Preston was entitled to recover of said defendants his full ¼0 interest in and to all the minerals in said land. But plaintiffs and intervenor compromised and settled with the Arkansas-Louisiana Gas Company as to the ⅞ leasehold interest, which amounted to a ratification and confirmation of the lease and in legal effect was equivalent to joining in its original execution. Therefore at the time plaintiffs and intervenor went to trial against the trustee they were entitled to recover only ½6 of the ⅛ royalty interest, and not ⅛ of the ⅛ royalty interest as was the effect of the judgment rendered.

The judgment of the trial court will be reversed, but we do not think that we should here render judgment finally disposing of the cause, on account of the fact that the record recognizes that the intervenor, M. O. Anderson, has acquired an interest from Preston and wife, but it fails to show what interest Anderson acquired, nor is there any stipulation whereby Preston would be entitled to recover for the benefit of Anderson. In this condition of the record, we think the case should be reversed and remanded rather than reversed and rendered.

The judgment is reversed and the cause remanded.


author: MURRAY, Justice.

text:
    STAGAL OIL CO. et al. v. BARTHOLOMEW.
    No. 10756.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1940.
    Rehearing Denied Nov. 27, 1940.
    Johnson & Rogers, of San Antonio, for appellants.
    Moursund, Ball, Moursund & Bergstrom, of San Antonio, for appellee.
   MURRAY, Justice.

Appellee, George P. Bartholomew, instituted this suit on September 24, 1938, against Stagal Oil Company, a corporation, and Ramona Oil Company, also a corporation, seeking to recover the sum of $1,-193.12 upon an open account, and to recover further sums evidenced by notes as follows : $1,000, $300, $480, $805, $500.

The trial began to a jury, but at the close of the testimony Bartholomew made a motion for an instructed verdict in his favor, which was by the court granted and judgment rendered allowing a recovery in full upon each of the notes, and a partial recovery in the sum of $697.72 upon the open account.

From this judgment Stagal Oil Company and Ramona Oil Company have prosecuted this appeal.

Appellants first complain and contend that the court erred in instructing a verdict in favor of appellee on the C. T. Staats note in the principal sum of $500.

The liability of the appellants on this note was arrived at because, as contended by appellee, the appellants had paid a dividend to C. T. Staats upon his stock in the Ramona Oil Company, after they had notice that Staats had assigned all such dividends to appellee, to secure the payment of the $500 note in suit.

The record shows that C. T. Staats was a stockholder in the Ramona Oil Company from the time of its incorporation. The books of that corporation further show that Staats has been indebted to the corporation from the beginning in a sum far in excess of $500. In February, 1937, the Ramona Oil Company declared a dividend as of some time in December, 1936. This dividend was not paid in cash but by note. The note to Staats was in excess of $500; it had a blank endorsement on the back of it in the following language: “I hereby assign this note to the Ramona Oil Company in payment of the unpaid balance due from me on the purchase price that was to be paid for the capital stock that I have received.” Staats endorsed the note back to the company and received credit for the amount thereof. The transaction resulted ultimately to nothing more than giving Staats a credit for the amount of a declared dividend upon his indebtedness to the company.

Bartholomew was not entitled to have his note paid from dividends declared on stock held by Staats so long as Staats was indebted to the company, and such indebtedness existed before the company was notified of the assignment of dividends to Bartholomew. Shambeck v. Johnson, Tex.Civ.App., 3 S.W.2d 883; Revised Civil Statutes, Arts. 569 and 570. Appellee contends that the charge for the purchase price of stock was not a proper charge against Staats upon the books of the company. We will discuss this matter later.

Appellants next contend that all dividend notes were issued in violation of the statutes, Art. 1083a, Penal Code, Vernon’s Ann., and-were therefore illegal and void, as the appellants did not have on hand at the time of the declaring of the dividends sufficient assets to justify such dividends.

The note for $480 executed by the Stagal ■Oil Company and the note for $805 executed by the Ramona Oil Company were dividend notes authorized in February, 1937, but to be issued as of December, 1936. There was evidence sufficient to raise a jury •question as to whether or not appellants had -on hand, either in December, 1936, or February, 1937, sufficient ássets to justify these dividend notes. Article 1083a of the Penal Code makes lt_unlawful_to_ issue dividends unless the corporation has on hand actual earnings sufficient to meet such a dividend. If the notes were actually intended as unqualified dividend .notes, and if the jury had found appellants did not have actual earnings out of which to pay such dividend, then such notes would have been illegal and void and especially while in the hands of an original payee. The trial court erred in instructing a verdict for appellee for the amount of principal, interest and attorney’s fees provided for in these two*' notes. 10 Tex.Jur. p. 185, § 107.

Appellants next contend that the $1,193.12 item sued for upon open account was barred by the two-year statute of limitation. We sustain this contention. The open account was clearly more than two years past due at the time of the filing of this suit and was therefore barred by the two-year statute of limitation, Art. 5526, subd. 4, R.C.S.1925, unless it had been revived by an agreement in writing signed by the party to be charged. Art. 5539, R.C.S. 1925, provides: “When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.”

A portion of a letter dated June 27, 1936, was introduced into evidence by appellee in the. following manner:

“Q. Now, Mr. Bartholomew, I hand you a letter bearing date June 26, 1936, from the Stagal Oil Company addressed to you. I will ask you to state whether or not you received such a letter from the Stagal Oil Company, bearing such a date? A. Yes, I received that.”

Counsel for plaintiff then stated:

“Four sentences are offered from this letter from the defendant, Stagal Oil Company to the plaintiff, as an admission against its own interest:—
“In 1935 you advanced to the Stagal Oil Company $1,143.12. In 1936 you advanced $200.00. These advances were not covered by notes. From these advances we have deducted $150.00 which was paid to John E. Clark for a contribution for fuel oil to the drilling of the Ada Williams tract. The balance due you is $1,193.12.”

The defendants offered in evidence the remaining' portion of the paragraph of the letter from which the plaintiff had read, which reads: “Offsetting this is the purchase price of the stock which comes to $1,600.00. If you wish to have your stock fully paid up we could take credit on one of the notes for $406.88.”

The record fails to show whether or not the letter was signed, and if so by whom. This does not meet the requirements of article SS39, supra, and was therefore insufficient to toll the statute of limitation. The court erred in instructing a verdict for any part of this open account.

Appellants next contend that in any event they were entitled to off-set against any claim of appellee the amount of indebtedness shown by the books of the corporation to be due them by appellee.

When the books of the corporation were set up there was entered a charge of $20,000 against the stockholders of the Stagal Oil Company and $7,500 against the stockholders of the Ramona Oil Company. Appel-lee's pro rata part of this charge was $1,600 in the Stagal Oil Company and $1,895.92 in the Ramona Oil Company. Appellee contends that when the corporations were chartered the stock was fully paid by transferring to the companies certain oil leases, and that the stockholders were never indebted to the companies as indicated by the books. However, there is evidence that the stockholders did agree to become liable for these amounts and to pay same into the corporations in order to give them a working capital.

Appellee, Bartholomew, wrote a letter to L. M. Kniffin on May 5, 1937, in which he stated:

“From your letter to John dated February 20, 1937, (copy of which was not received by me until April 5, too late to comment on same before you filed your Income Tax Return) and from the December 31 balance sheet, it is apparent that the value of the company’s lease has been written up by $10,000 and the amount due from the subscribers reduced by a like amount. I have not been consulted in this matter although I am a director, a shareholder and a creditor and I must record my objection to this procedure in each capacity.
“The lease was assigned to the company at its inception and stock was issued to the extent of $20,000 to develop the property. The obligation to subscribe to said amount of stock subsists until it is met and can not be cancelled by the revaluation of assets of an insolvent company. The company will apparently be unable to meet its obligations and it is at present unable to meet its obligations and in the face of this, steps are taken to dissipate its assets i. e., by cancelling the amounts due from shareholders by giving a fictitious value to a lease which has always been the property of the corporation and which at the time of the writing up was demonstrated to be of little value.”

Concerning this matter J. W. KnifiSn testified as follows:

“Q. What if anything was said as between you and him (referring to Bartholomew) with reference to whether or not the $20,000, or some sum of money, would be paid in as capital account in the Stagal Oil Company? A. I don’t recall the details of the conversation, but Mr. Bartholomew had always insisted from the incorporation of the company, that that amount be fully paid.
“Q. What amount? A. $20,000 for each company.
“Q. Paid in cash? A. $20,000 for the Stagal Oil Company paid in cash.
“Q. Do you mean in addition to the leases that were transferred? A. In addition to the lease.
“Q. What did you say to him with respect to that? A. I had previously objected to that.
“Q. In the charter here of the Stagal Oil Company, it shows you subscribed to stock amounting to $9,340.00. A. That’s correct.
“Q. Now, pursuant to the understanding you had with Mr. Bartholomew, did you pay in to the company $9,340.00? A. I did.”

Continuing, the witness says: “I paid in ninety three hundred some odd dollars in cash, with the, exception of the dividend note, which I endorsed back to the company in payment for the balance of my stock and the dividend note was credited on my stock account.”

Appellee explains these matters away by stating that after he sold his stock and ceased to be interested in the corporations as either an officer, director, or a stockholder, he discovered he had been under a misapprehension as to these matters during the time he was connected with the 'corporations. The weight to be given this explanation was a matter for the jury to pass upon. The evidence was sufficient to raise a jury 'question as to whether or not the stock accounts were binding obligations. Appellee contends that these accounts were barrpd by the two-year statute of limitation. They were only plead herein by appellants as a set-off against appellee’s claims against the companies, and under such circumstances the statutes of limitation are inapplicable. 28 Tex.Jur. p. 134, § 53; Dallas Joint Stock Land Bank v. Sneed, Tex.Civ.App., 91 S.W.2d 1102.

The judgment will be reversed and the cause' remanded.


author: BOND, Chief Justice.

text:
    RIO GRANDE VALLEY CITRUS EXCHANGE et al. v. LECHE & LECHE, Inc.
    No. 13080.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 26, 1940.
    Rehearing Denied Nov. 23, 1940.
    Hill, Greer & Franki, of Mission, and Strasburger, Price, Holland, Kelton & Miller, of Dallas, for appellants.
    Guthrie & Guthrie, of Dallas, for appel-lee.
   BOND, Chief Justice.

This is an appeal from an order of the trial court, sustaining venue of a suit in Dallas County against proper pleas of privilege. Plaintiff seeks to maintain its suit against the defendant, Rio Grande Valley Citrus Exchange, a corporation, in Dallas County, on the ground that a part of the cause of action arose in that County, in that plaintiff performed a substantial part of its obligation in that County, Art. 1995, subd. 23, R.C.S.1925, Vernon’s Ann.Civ.St. art. 1995, subd. 23; -and against the other defendants (fourteen associations), as members of the Exchange, in that they are necessary and proper parties to the suit against the primary defendant, Rio Grande Valley Citrus Exchange. Subds. 5 and 29a, ib.

The basis of plaintiff’s suit against the Exchange is a written contract, attached to its pleadings, entered into by the Exchange and plaintiff, whereby plaintiff, Leche & Leche, Inc., was employed to promote advertising programs and - sales of citrus fruits from Texas Rio Grande Valley, for which it 'was to be paid, by the Exchange, certain commissions on moneys expended, and reimbursed for all expense-outlay in the promotion of such program and sales. The contract was entered into by the parties in Hidalgo County, Texas, residence of the Exchange, and contains nothing specifying where the advertising and sales should be performed, and certainly no provision is made therein for performance of any part of the contract in Dallas County. Plaintiff was privileged to exercise its own discretion in the performance of this work at any place, or in any county in Texas. Indeed, it may have been, and possibly was, within the contemplation of the parties that the work under consideration, or rather a part thereof, would be performed in Dallas County. We can conceive of no reason why Dallas County, or any other county of the state, should have been excluded from the program. Be that as it may, however, the contract does not correspond with any such contemplation; there is no proof of such in the record, and no act or omission is alleged or proven that would give rise to any breach of contractual duties accruing in Dallas County, on the part of the Exchange. The only complaint or grievance against the Exchange is its failure to pay the contracted commissions. It is well settled in this state that mere allegation and proof of damage, or loss of salary or commission, in the absence of some legal obligation impelling payment or performance of the contract, or some part of the contract, in the county where such damage or loss occurred, does not confer venue of a suit on the courts of that county. Linde Air Products Co. et al. v. Page et al., Tex.Civ.App., 131 S.W.2d 1057; Page v. Bond, 134 Tex. 90, 132 S.W.2d 579. The venue of plaintiff’s suit does not hinge upon contractual relation between the parties, but upon damages or loss of profit or commissions arising therefrom.

Art. 1995, subd. 23, R.C.S., permitting corporations to be sued in any county in which the “cause of action”, or any part thereof, arose, requires that either “some part of the transaction creating the primary right, or some part of the transaction relating to the breach of that right, must have occurred in the county where the suit is brought.” Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674, 676; Graves v. McCollum & Lewis, Tex.Civ.App., 193 S.W. 217; Guinn v. Texas Drug Co., Tex.Civ.App., 219 S.W. 507; Pittman & Harrison Co. v. Shook, Tex.Civ.App., 228 S.W. 993; Texas Seed & Floral Co. v. Schnoutze, Tex.Civ.App., 209 S.W. 495; 67 C.J. 94. This statute does not authorize the maintenance of an action against a private corporation in any county where the work was performed and the damage or loss suffered, against a plea of privilege, in the absence of the corporation’s having taken some part in the primary transaction producing such results. It is neither alleged nor shown by proof that the Exchange, by contract or otherwise participated in the advertisement or sale of products in Dallas County, for which plaintiff sues for commissions.

In the case of Carver Sound Equipment Co., Inc., v. Tonahill, Tex.Civ.App., 128 S.W.2d 860, analogous to other cases cited, relied upon by appellee to sustain venue in the case at bar, it will be seen that the contract forming the basis of the suit expressly provides for performance in McLennan County where the suit was instituted, consequently the defendant corporation participated in the transaction in that county, thereby conferring venue there. The opinion is in harmony with the holding of the Supreme. Court in Stone Fort Nat. Bank v. Forbess, supra, that the venue of the suit was in McLennan County because of the express provision of the contract. Such is not the case here; there is nothing in this case showing that the Exchange participated in any transaction in Dallas County, or contracted to perform any obligation in Dallas County; therefore, venue of the suit does not lie in Dallas County; likewise, venue of suits against the allied associations, brought into the suit solely on plaintiff’s claim that they are necessary parties to the primary action against the Exchange (under Art. 1995, subds. 5 and 29a), does not lie in Dallas County.

The judgment of the court below is reversed and here rendered, sustaining the pleas of privilege of the various appellants, and venue of the cause is transferred, in accordance with the Venue Statute of the state, Art. 2020 R.C.S., to the District Court of Hidalgo County, Texas.

Reversed and rendered.


text:
    WITHERSPOON v. G. HEILEMAN BREWING CO.
    No. 5676.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 31, 1940.
    Butler & Price, of Tyler, for appellant.
    Ramey, Calhoun & Marsh, of Tyler, for appellee.
   JOHNSON, Chief Justice.

G. Heileman Brewing Company filed this suit alleging:

“Comes now G. Heileman Brewing Company, a corporation, incorporated under and by virtue of the laws of the State of Delaware hereinafter called Plaintiff, complaining of Joseph Witherspoon and wife, E. M. Witherspoon, of Smith County, Texas, individually and jointly and doing business as Pearl Distributing Company, hereinafter called Defendants, and represents to the Court :
“That heretofore, to-wit, on the dates shown in the paragraph below, Plaintiff, at the special instance and request of Defendants, and each of them, sold and delivered to Defendants as buyers in the regular course of business, the goods, wares and merchandise shown in such paragraph below; that the Defendants and each of them therefore became bound to the Plaintiff on demand to pay so much money as said goods, wares and merchandise were reasonably worth; that said goods, wares and merchandise on such dates so delivered were as follows and were reasonably worth the several sums of money set out in connection with them, respectively, below:” (Here is set out the account, consisting of the invoice of one carload of beer in amount of $1,920 from which certain credits were deducted, leaving an alleged unpaid balance of $1,-517.76. The account is duly verified.)

The petition prays “that plaintiff have judgment against Joseph and E. M. Wither-spoon, and Joseph Witherspoon and E. M, Witherspoon doing business as Pearl Distributing Company, jointly and severally,” for the sum of $1,517.76 and costs.

The defendants, Joseph Witherspoon and. ' wife, E. M. Witherspoon, filed separate answers. The answer of the defendant Joseph Witherspoon consisted of general demurrer, general denial and verified plea of denial of partnership. The answer of defendant Mrs. E. M. Witherspoon consists of a general demurrer, and a special exception reading as follows: “This defendant, E. M. Wither-spoon, specially excepts to plaintiff’s petition on the ground that it appears from the allegations therein that she, the defendant, is and was at all times therein mentioned, a married woman, and the wife of Joseph Witherspoon, and it not further appearing that her disabilities of coverture have been removed in the manner and form provided by the laws of this state.”

The answer of Mrs. E. M. Witherspoon further contains a general denial and a special plea of coverture duly verified. The general demurrer and the special exception of defendant Mrs. E. M. Witherspoon was presented to and overruled by the court, to which action she duly excepted as evidenced by bills of exception approved and filed in the record. Trial of the cause to the court without a jury resulted in judgment for plaintiff against defendants, Joseph Wither-spoon and E. M. Witherspoon, “individually and severally” for $1,029.93, interest and costs of suit. The defendant Mrs. E. M. Witherspoon duly excepted to the judgment and has perfected her appeal. Joseph With-erspoon did not appeal. No statement of facts accompanies the record. At the request of the appellant, Mrs. E. M. Wither-spoon, the trial court filed his findings of fact and conclusions of law. It appears from the facts found that prior to any of the matters here involved Mrs. E. M. Wither-spoon received some money from insurance, the amount of which is not shown, which money was her separate property; that with said money Mrs. Witherspoon went into the mercantile and trading business of buying beer from the wholesaler and distributing same to retailers, under the trade-name of Pearl Distributing Company; that an affidavit was filed in the office of the county clerk of Smith County, Texas, the county in which the business was being-conducted, showing that she was the sole owner of the business being conducted under the trade-name of Pearl Distributing Company; that with the full consent and agreement of Mrs. E. M. Witherspoon the business was in fact managed and controlled by her husband, Joseph Witherspoon; that in July, 1937, Heileman Brewing Company entered into an agreement signed by Joseph Witherspoon and E. M. Witherspoon whereby the Pearl Distributing Company was appointed state agent or distributor in the State of Texas for Heileman Brewing Company’s beer, authorizing the Witherspoons to engage local distributors for such beer in Texas, and allowing them a commission ranging from 3 cents to 10 cents per case on all beer sold ; that in September, 1937, this agreement was by consent, of all parties modified so that Heileman Brewing Company agreed to ship to Joseph Witherspoon and E. M. Wither-spoon, in the name of Pearl Distributing Company, one carload of beer on open account, and thereafter as each car of beer was ordered remittance was' to be made by them for the previous car, providing, further, that the open account would be paid in full by April, 1938, and thereafter all shipments of beer should be paid for as and when ordered; that it was under the agreement as modified in September, 1937, that the car of beer was ordered and shipped on open account for the unpaid balance of which this suit was filed; the court further found that E. M. Witherspoon was at all times material here, and is now, the wife of Joseph Witherspoon and that she had never obtained an order or judgment of the district court removing her disabilities of coverture and declaring her feme sole for mercantile and trading purposes (as authorized by R.C.S.1925, Article 4626).

The appellant, Mrs. E. M. Wither-spoon, has assigned as error the action of the trial court: (1) Overruling her general demurrer; (2) in overruling her special exception to appellee’s petition; and (3) in entering judgment holding her personally liable upon the account. We believe that each of the assignments is well founded. The suit is upon an account for goods, wares and merchandise, to-wit, one carload of beer, alleged to have been sold and delivered to defendants at their special instance and request as buyers in the regular course of business. The petition on its face discloses the coverture of defendant E. M. Witherspoon, and it fails to affirmatively allege that the account was one incurred for necessaries for herself or children, or for the benefit of or in the management of her separate property, or that she had obtained an order of court removing her disabilities of coverture and declaring her feme sole for mercantile and trading purposes, or any other allegation which would authorize a personal action to be maintained against a married woman. Such a'petition is subject to general demurrer. Hirshfeld & Co. v. Evans, 127 Tex. 254, 93 S.W.2d 148; Trimble v. Miller, 24 Tex. 214; Wadkins v. Dillingham, Tex.Civ.App., 59 S.W.2d 1099; 23 Tex.Jur. 342, Sec. 294; Speer’s Marital Rights, 3d Ed., p. 653, Sec. 530. We are also of the opinion that the facts as found fail to show any liability on the part of appellant, Mrs. E. M. Witherspoon. Hirshfeld & Co. v. Evans, supra; Harris v. Prince, 132 Tex. 231, 121 S.W.2d 983; Jesse H. Jones & Co. v. Black, Tex.Civ.App., 42 S.W.2d 151.

The judgment of the trial court will be reversed and the cause remanded.


text:
    TEXAS & N. O. R. CO. v. McMAHAN.
    No. 10730.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1940.
    Rehearing Denied Nov. 27, 1940.
    Crain, Vandenberge & Stofer, of Victoria, Dougherty & Dougherty, Maynard Porter, and George Morrill, all of Beeville, and Baker, Botts, Andrews & Wharton, of Houston, for appellant.
    Wade & Wade and L. D. Stroud, all of Beeville, for appellee.
   MURRAY, Justice.

This suit was instituted by Emil J. Mc-Mahan, appellee, against Texas & New Orleans Railroad Company seeking to recover damages for personal injuries growing out of a collision between an automobile that was being driven by one Carroll Jeffrey, in which appellee was riding, and a box car being pulled by appellant Railroad Company slowly across a paved state highway, known as State Highway No. 12, which leads from the town of Skidmore to Mathis. The collision occurred near the town of Mathis, an unincorporated town of about 1,200 inhabitants, on Saturday, November 16, 1935, at about 10 o’clock p. m.

The trial was to a jury which found, among other things, that the Railroad Company was guilty of negligence proximately causing Emil J. McMahan’s injuries, in that the crossing at which the collision occurred was more than ordinarily dangerous as a night-time crossing, and the Company failed to have the crossing lighted, failed to have a flagman with a lantern stationed at the crossing, and failed to have a warning signal or light in operation at the crossing.

In accordance with the verdict of the jury, judgment was entered in favor of McMahan against the Railroad Company in the sum of $9,627, from which judgment the Texas & New Orleans Railroad Company has prosecuted this appeal.

It is clear that the judgment is based upon the failure of the appellant to use extraordinary means of giving notice of trains, required of railroads at, grade crossings which are unusually dangerous or extra hazardous, and unless the evidence is sufficient to support the jury finding that the crossing where the collision occurred was an extra hazardous or unusually dangerous night-time crossing, the judgment cannot stand.

The facts and circumstances relied upon to show that the crossing was more than ordinarily dangerous as a night-time crossing are as follows:

“(1) The crossing was over a main arterial highway and was much used by traffic.
“(2) The railroad track intersects said crossing at an acute angle.
“(3) The view of said crossing was obstructed by a large signboard.
"(4) The railroad company was carrying on switching operations, and the headlight of its locomotive was butted against a box car and slowly backing parallel to the highway, far removed from the crossing.
“(5) Flat cars were covering the crossing as appellee approached, and because of the lqw-type flat cars and the lights of the town of Mathis beyond the crossing, appel-lee and the driver of the car were led to believe that the crossing was unobstructed.
“(6) The track at the crossing was in a depression, and the lights beyond the crossing in the town of Mathis created an illusion that the track was unobstructed.”

The fact that there was a great deal of traffic over this crossing would have only a slight bearing upon whether or not the crossing should be regarded as extra hazardous.

Likewise, the fact that the railroad track crossed the highway at an acute angle is of very little importance, since appellee was familiar with this situation. A train crossing a highway at an acute angle is probably as easily seen as one crossing at a right angle.

The next contention is that the crossing was obstructed by a large signboard. This signboard was some seventy-five feet north of the crossing and in the direction from which appellee was approaching the crossing. It was on the northwest or right-hand side of the highway as appellee approached Mathis coming from Skidmore. The highway was some sixty feet wide and the sign set back from the highway some five or ten feet. The particular train which was struck consisted of an engine and several cars, which were to the southwest or appellee’s left-hand side of the highway, and this side was unobstructed. In fact, appellee admitted that he saw the train when he was some distance from the crossing and warned Carroll Jeffrey, the driver of the car in which he was riding, that he had better “watch out.” The crossing was in or near the town of Mathis and the driver should have been slowing down to twenty miles per hour as he approached the crossing. Under these circumstances a signboard seventy-five feet from the crossing and setting back some thirty-five feet from the center of the road would not be sufficient to render the crossing extra hazardous.

The fact that the headlight of the engine was turned in the direction of a box car, rather than to the front, could have but little bearing on the nature of the crossing, and especially when appellee testified that he did see the engine and noticed that the headlight butted against a box car and thought that the train might be near or on the crossing. Both appellee and Carroll Jeffrey lived for many years at Tynan, only seven miles northeast of Mathis, and both were thoroughly familiar with the crossing and all of the surrounding conditions, having traveled over the highway many times.

The fifth and sixth contentions are closely related and will be discussed together. Together they present the contention that the crossing, being in a depression, only flat cars being across the highway as appellee approached and due to the lights across the track and in the town of Mathis caused, it to appear that the highway was unobstructed. The record shows that the highway was straight, almost level for more than eight hundred feet either to the north or the south of the crossing, was wide and unobstructed, except for the signboard above discussed. There was a statutory crossing sign at the crossing and an automatic illuminating highway sign showing red at ■ the side of the highway 250 feet from the crossing on the side from which appellee was approaching.

In view of the fact that appellee actually saw the train and called it to the attention of Jeffrey, and that each was very familiar with the crossing and its surroundings, having passed over it many times, and in view of the wide, open, straight and almost level highway upon which appellee was traveling at the time of the collision, we cannot permit this judgment to stand, based upon the alleged negligence of the Railroad Company in not having extraordinary methods of warning appellee and the driver of the car, Carroll Jeffrey, of the presence of the train upon the crossing. Texas & N. O. R. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 741; Texas & N. O. R. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 746; Texas & N. O. R. Co. v. Berry, Tex.Civ.App., 74 S.W.2d 750; Texas & N. O. R. Co. v. Compton, Tex.Sup., 136 S.W.2d 1113.

The case having been fully developed, and the evidence being insufficient to support the finding by the jury that the crossing in question was a more than ordina--rily dangerous crossing, under all the circumstances, the judgment will be reversed and judgment here rendered that appellee take nothing and pay all costs.

Reversed and rendered.


text:
    McLEAN v. HARGROVE.
    No. 5655.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 19, 1940.
    Rehearing Denied Oct. 31, 1940.
    J. A. Ward, of Mt. Pleasant, McLean & Scott, John E. McLean, and G. C. Johnson, all of Fort Worth, for appellant.
    Phillips & Phillips and Nelson Phillips, Jr., all of Dallas, and Seb F. Caldwell and Hiram G. Brown, both of Mt. Pleasant, for appellee.
   JOHNSON, Chief Justice.

This suit was filed by Mrs. Frances McLean Harris on June 23, 1936, against John Hargrove in trespass to try title to 415 acres of the John Levins and the J. M. Nugent Surveys in Titus County. She claimed an undivided one-half interest in the land as the daughter and sole heir of T. R. McLean, deceased. John Har-grove answered and made W. P. McLean individually and as administrator of the estate of T. R. McLean, deceased, a party to this suit. John Hargrove died in March 1937, and his widow, Mrs. Monnie Hargrove, was appointed administratrix of his estate. On December 29, 1937, she was granted leave to answer and defend the suit and to prosecute a cross-action for the land in her own right and as ad-ministratrix of the estate of John Har-grove, deceased. In her first amended original answer Monnie Hargrove excepted to the prosecution of the suit hy Frances McLean Harris because administration was pending upon the estate of T. R. McLean, deceased, of which W. P. McLean, Jr., was the legally appointed, qualified and acting administrator, and was acting at the time Frances McLean Harris filed her original petition and at all times since. The administrator, W. P. McLean, Jr., joined in this exception and same was by the court sustained. Monnie Hargrove’s answer further contained a plea of not guilty and specially pleaded the 3, S and 10-year statute of limitation (R.S. Articles 5507, 5509, and 5510). In her first amended cross-bill Monnie Hargrove individually and as ad-ministratrix of the estate of John Har-grove, deceased, sued Frances McLean Spence (formerly Frances McLean Harris) and her husband, J. E. Spence, W. P. McLean, Jr., individually and as administrator of the estate of T. R. McLean, deceased, in statutory action of trespass to try title to the land. She further specially claimed to have acquired title by adverse possession under the 3, 5 and 10 year statute of limitation. W. P. McLean, Jr., as administrator of the estate of T. R: McLean, deceased, answered by plea of not guilty, and hy way of cross-action pleaded that T. R. McLean and John Har-grove in 1907 entered into an equal partnership for the purpose of buying and selling lands for profit, which partnership continued to the death of T. R. McLean in 1920; that the land in controversy belonged to said partnership at the time T. R. McLean died; that in- their purchase of the land in 1916 John Hargrove and T. R. McLean assumed the payment of a lien against same amounting to $4,400 and interest; that after T. R. McLean died John Hargrove permitted the lien to be foreclosed in 1924 and that John Hargrove purchased the land at such foreclosure sale, taking title in his own name; that by becoming a purchaser at said foreclosure sale, John Hargrove, the surviving partner' of said partnership, as a matter of law, held the land in trust for said partnership. Fie prayed for judgment for an undivided one-half interest in the land, and that Mrs. Monnie ITargrove as administratrix of the estate of John Har-grove be required to give an accounting of said alleged partnership affairs between T. R. McLean and John Hargrove. W. P. McLean, Jr., individually, Mrs. Frances Spence and husband, J. E. Spence, answered by pleas of not guilty. Mrs. Mon-nie Hargrove individually and as adminis-tratrix of the estate of John Hargrove, deceased, in answer to said administrator’s cross-action filed a supplemental plea denying under oath the alleged partnership and invoking the statute of four-year limitation (R.S. Article 5527) by way of special exception in bar of the prayer for accounting of the alleged partnership affairs, which exception was sustained by the court and to which action of the court W. P. McLean, Jr., excepted. The pleading in detail further alleged facts to the effect that the land in controversy was purchased by T. R. McLean and John Har-grove as joint owners, and was not owned or held by them as partners; that the lien against the land was duly and legally foreclosed by its holder in a suit against John Hargrove and W. P. McLean, Jr., as administrator of the estate of T. R. McLean, deceased; that at such public foreclosure sale John Hargrove in his own right and with his own funds purchased and acquired title to the property for which he paid the sum of $4,600 cash, same being community funds of himself and his wife, Monnie Hargrove; that in addition to the sheriff’s deed John Hargrove received a conveyance from the owner of said vendor’s and deed of trust liens of all its right, title and interest in the land; that by virtue of such purchase and conveyances John Hargrove took possession of the land in 1923, claiming to have acquired a good and perfect title thereto. The pleading further detailed facts not deemed necessary here to mention.

Trial of the cause before a jury resulted in a directed verdict and judgment in favor of Mrs. Monnie Hargrove individually and as administratrix of the estate of John Hargrove, deceased. W. P. McLean, Jr., individually and as administrator of the estate of T. R. McLean, deceased, has perfected an appeal from the order of the trial court overruling his motion for new trial.

Appellant’s contention, in substance, is that at the time the land in question was conveyed to John Hargrove and T. R. McLean there existed between them a partnership agreement by the terms of which they were equal partners in the business of buying and selling lands for profit; that the land in question was in fact a part of such partnership property; that the lien against the land of which payment was assumed as a part of the purchase price recited in the deed to T. R. McLean and John Hargrove was a partnership obligation; that the acts of John Hargrove, the surviving partner after the death of T. R. McLean, in suffering the lien to be foreclosed against himself and the administrator of the estate of' T. R. McLean, deceased, and by becoming the purchaser at such foreclosure sale, had in law impressed the title thus acquired by him with a trust for the equal benefit of himself and the estate of T. R.. McLean, deceased, and for that reason appellant as administrator of the estate of T. R. McLean, deceased, was entitled to recover one-half undivided interest in the land. It is not necessary for us to decide the correctness of appellant’s contention in point of law; for it appears that the contention was not established in point of fact as to the alleged partnership between John Hargrove and T. R. McLean. As tending to show existence of the alleged partnership, appellant offered to read in evidence “as declarations against interest”- the testimony of John Hargrove given in answer to oral interrogatories. The interrogatories and answers were offered to be read in evidence in connection with the following facts under which the testimony was shown to have been taken, in substance: On June 23, 1936, W. F. Weeks,- attorney for plaintiff, Frances McLean Harris, filed with the clerk of the district court in which the suit was pending, notice of his intention to apply for a commission to take the oral deposition of the defendant, John Hargrove,, before Burke Redfearn, Notary Public and Court Reporter, on July 9, 1936, a copy of which was issued by the clerk and same was by the sheriff of Titus County served upon John Hargrove. A commission was duly issued. • In response to the notice, at the time and place named therein, John Hargrove appeared before said Redfearn. Hargrove was accompanied by his attorney, Seb F. Caldwell. W. F. Weeks and W. P. McLean, Jr., were present. John Hargrove through his attorney, Seb F. Caldwell, “objected to being required to give his testimony,” and further raised the particular objection that Redfearn could not legally be a Notary Public and a Court Reporter at the same time. Redfearn was not a Notary Public, whereupon W. F. Weeks got the district clerk to swear Hargrove. Before questioning Plargrove the parties- taking his depositions agreed that Hargrove was not in any manner waiving any of his rights and could • present his objections thereto when his testimony was offered in evidence upon trial of the-case. Whereupon Hargrove was questioned at length by W. F. Weeks, and some by W. P. McLean, Jr., all of which questions were answered by Hargrove and taken down in shorthand by Redfearn, Court Reporter before whom the depositions were being taken.

For some reason not made clear in the record, the depositions were never completed. W. P. McLean, Jr., individually and as administrator of the estate of T. R. McLean, deceased, was made a party to the suit on September 29, 1936. John Hargrove died in March 1937. At the request of W. P. McLean, Jr., Redfearn transcribed the questions propounded to John Hargrove and the answers given by him, including the caption and agreement that John Hargrove had not waived any right of objection to the introduction of same in evidence, which instrument is referred to in the record as Exhibit D. John Hargrove did not sign Exhibit D, and it does not appear that same was ever presented to him for signing. Redfearn identified Exhibit D and testified that same was a true and correct transcription of the questions which he had heard W. F. Weeks and W. P. McLean, Jr., propound to John Hargrove and the answers made thereto by John Hargrove before Redfearn on July 9, 1936. Appellant further offered in evidence the testimony of several witnesses showing the facts and circumstances above summarized under which the testimony of John Hargrove was obtained. And appellant then offered “as declarations and admissions against the interest of John Har-grove” the questions propounded to and the answers made by him as set out in said transcript as Exhibit D, and asked permission to read same to the jury and have each question and answer identified by Mr. Redfearn as being identical with the questions propounded to and answers given by John Hargrove on the occasion in question. Appellee objected to the introduction of the testimony in evidence. Among the many alleged grounds set out in appellee’s objections are the following, stated in substance: That the testimony was procured under attempted compliance with the law requiring a party opponent to give his oral deposition -but that the statutes with respect thereto were not substantially complied with sufficient to authorize introduction of the testimony in evidence; and having been given by John Hargrove not voluntarily but procured from him over his objection, and under compulsion of purported authority of law, the testimony was not admissible as declarations or admissions. To the action of the trial court in sustaining the objections appellant duly excepted and has assigned error.

The trial court refused admission of the testimony in question under authority of Reilly v. Buster, 125 Tex. 323, 82 S.W.2d 931. We believe that his ruling was correct. In that case, as in this case, the oral depositions of a party opponent were taken, but the statutes authorizing them were not substantially complied with In the Reilly case the trial court admitted the depositions in evidence, offered as deposition testimony. The Court of Civil Appeals, 52 S.W.2d 521, held that because not taken in substantial compliance with the statutes the testimony was not admissible as deposition testimony, but that same was admissible as admissions on the part of Reilly. Upon error to the Supreme Court it was held that admission of the testimony in evidence could not be sustained because same contained admissions on the part of Reilly against his interest. It is true, as contended by appellant, that the testimony of Reilly was “offered” as deposition testimony while the testimony of John Hargrove in the present case was “offered” as admissions against interest. The fact that the testimony of Hargrove was offered as admissions does not make it admissible as such. The law as declared in the Reilly case is to the effect that, other than admissions voluntarily made by a party opponent, the .statutory method of procuring his testimony is exclusive. The facts here show that the testimony of Hargrove was not voluntarily given, but was procured from him over his express objections arid under compulsion of purported authority of law. There is no contention that the testimony was admissible as deposition testimony. We believe that the trial court correctly held that the testimony obtained in the circumstances here shown was not admissible as admissions. Reilly v. Buster, supra.

The judgment of the trial court is affirmed.


author: CHRISTIAN, Judge.

text:
    KEDING v. STATE.
    No. 21154.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1940.
    P. Z. Sullivan, of Bellville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is driving an automobile on a public highway while intoxicated; the punishment, confinement in the penitentiary for two years.

The transcript carries a caption which fails to show the date of adjournment of the trial court. Under the decisions of this court, the appeal must be dismissed. Holder v. State, 113 Tex.Cr.R. 81, 18 S.W.2d 661, and authorities cited.

In the recognizance it is stated that appellant has been convicted of the offense of driving an automobile while intoxicated. (Italics ours.) In Herring v. State, 117 Tex.Cr.R. 211, 35 S.W.2d 737, we said: “The recognizance is fatally defective. It is recited therein that' appellant stands charged with driving an automobile while intoxicated, and that he has been convicted of the offense of driving an automobile while intoxicated. We have no statute forbidding one, in terms, from operating a motor vehicle while intoxicated. In order to come within the prohibition of the statute, the accused must drive or operate such motor vehicle upon a street or alley or other place within the limits of an incorporated city, town, or village, or upon a public road or highway within the state. Article 802, P.C.; Nicholson v. State, 110 Tex.Cr.R. 112, 7 S.W.2d 1075; McFadden v. State, 108 Tex.Cr.R. 166, 300 S.W. 54.”

See, also, McMullen v. State, 131 Tex.Cr.R. 450, 99 S.W.2d 921.

The recognizance being insufficient, this court is without jurisdiction.

The appeal is dismissed.

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.


author: KRUEGER, Judge. HAWKINS, Presiding Judge. GRAVES, Judge

text:
    ROE v. STATE.
    No. 21104.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    Rehearing Denied Dec. 4, 1940.

      Robert P. Brown and W. A. Johnson, both of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of cattle. The punishment assessed, is confinement in the state penitentiary for a term of two years.

Appellant presents two propositions upon which he seeks a reversal of this case. The first is that the evidence is insufficient to justify and sustain his conviction, and the second that the court erred in failing to instruct the jury that they could not convict the defendant unless they should find and believe from the evidence that there was some false pretext on the part of the defendant as to some past or present fact upon which defendant (evidently meaning owner) relied and but for which he would not have parted with his property. We will take up each of his propositions in their order and discuss them briefly.

The State’s testimony shows that on Sunday, August 20, 1939, appellant came to the home of Anton Willeke to purchase some steers. They finally agreed upon the price thereof, which amounted in the aggregate to $1,119. Appellant gave Willeke a check in said sum drawn on the First National Bank of San Angelo, Texas, which check was dated August 22,1939, and he told Willeke that he may lack a few dollars of having enough money in the bank to take care of it; that his son had three carloads of sheep on the market and that it would be that long before the money would be in the bank. Thereupon, Willeke let him have the cattle which appellant immediately carried to the stock-yards at Fort Worth, where he sold them through the Baggett-Kenne Commission Company. Appellant did not intimate that he desired to purchase the cattle on credit, and Willeke would not have sold them to him on credit. Willeke presented the check to the bank for payment on the 22nd day of August, 1939, but the bank declined to pay it because appellant did not have any money in the bank and had not had any in said bank since the 30th day of August, 1937, almost two years. He did not pay for the cattle and had not paid for them at the time of the trial. Appellant did not testify or offer any affirmative defense.

It is our opinion that the evidence is sufficient to sustain the conviction under Art. 1413, P.C. The testimony demonstrates that appellant intended to cause the owner of the cattle to believe, and he did believe, that appellant had all of the money except a few dollars in the bank to pay the check. This was false and appellant knew it to be false when he made the statement. ' Did he at the time intend to deprive the owner of the value of-the cattle and to appropriate them to his own use and benefit? It certainly appears so from the testimony because he told Willeke that he had all but a few dollars in the bank to take care of the check and that the required remainder of a few dollars would be in the bank when the check would be presented for payment on August 22nd. This state- , ment by the appellant was false because he i did not at the time, nor did he for two years ffiext preceding the time he so made said statement to Willeke, have any money in the bank to his credit. It is quite evident that said false statement induced Willeke to turn the cattle over to appellant; and it also appears from the record that appellant, at the time, intended to appropriate the cattle to his own use and benefit and to deprive the owner of .the value thereof. We think the evidence is ample to sustain the conviction.

Appellant next complains of the court’s charge in failing to instruct the jury that unless they should find and believe from the evidence beyond a reasonable doubt that there was some false pretext resorted to by appellant as to some past or present fact which induced the owner to part with his property, etc. to acquit him. It occurs to us that appellant was entitled to such an instruction or one of like import. The court, in Paragraph 4 of his charge, instructed the jury generally upon the law of ordinary theft, and in Paragraph 5 instructed them as follows: “You are further instructed that in' order to convict the defendant of the crime of theft in this case you must be satisfied from the evidence beyond a reasonable doubt, that he not only did appropriate the one head of cattle to his own use and benefit as alleged in the indictment, but you must further find and believe beyond a reasonable doubt that the intention of the defendant to defraud the owner of the value thereof, (if you have found that such intent existed) existed at or before, the taking of said on? head of cattle.”

. -ÍThus, it will be noted that no instruction {was given to the jury upon the issue of a false pretext which was an issue in the case. If the owner of the property sold the cattle to appellant on credit and did not rely upon the false statements and representations, it would not, in our opinion, constitute theft.

The prosecution in this case was based upon Art. 1413, P.C. The facts bring the case clearly within the purview of said article of the statute and appellant was entitled to a fair and adequate instruction of the law applicable thereto. See Maxwell v. State, 134 Tex.Cr.R. 314, 115 S.W.2d 939; Barnett v. State, 119 Tex.Cr.R. 594, 43 S.W.2d 449, 452. For a comprehensive instruction on the subject, reference may be had to Segal v. State, 99 Tex.Cr.R. 485, 265 S.W. 911, 35 A.L.R. 1331; Hawkins v. State, 58 Tex.Cr.R. 407, 126 S.W. 268, 137 Am.St.Rep. 970. In our opinion, the court should have responded to appellant’s timely objection and reformed his charge accordingly. The failure to do so deprived appellant of the right to have the law fairly and adequately applied to the case as made by the evidence. Therefore, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

The State has filed a motion for rehearing relying on that part of Art. 1413, P.C., which is italicized by us: “The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and same is so appropriated, the offense of theft is complete

The record shows that this case was tried on the theory now urged by the State in the motion for rehearing; that is, regardless of any false pretext, if appellant came into possession of the property with the owner’s consent, but with the intent at the time to deprive the owner of its value, and to appropriate it to the use and benefit of appellant and the same was so appropriated, the offense of theft was complete.

As we understand the facts as made by the State, the owner was induced to part with both the possession and title to the property by the false pretext of appellant that he had sufficient money in the bank to cover the check given in payment for the property except a small amount which would be placed in the bank within two days, when in truth he had no funds at all in the bank and had none for about two years prior to drawing the present check. The owner makes it clear from his testimony that he would not have sold the cattle on credit. If no false pretext was resorted to by appellant, then this transaction was a pure case of purchase and sale in which both possession and title passed to appellant, but the court declined to so tell the jury by refusing to respond to the objections to his charge as pointed out in our original opinion.

It is apparent from a review of the cases in which present Art. 1413, P.C., has been under consideration that in its application the court has sometimes used general expressions which have caused confusion, and yet when considered in connection with the facts of each particular case the holding of the court has been generally uniform. In Segal’s case, Segal v. State, 98 Tex.Cr.R. 485, 265 S.W. 911, 35 A.L.R. 1331, the State contended for the very construction of said Art. 1413 now again urged by the State. Se-gal bought on a credit a quantity of merchandise. No false pretext was used-. The owner delivered both the possession and the title to Segal. He sold the merchandise and failed to pay for it. The State contended that although false pretext was absent, yet under the second provision of Art. 1413 if at the time Segal procured possession of the merchandise he had the intent to deprive the owner of the value thereof, and to appropriate it to Segal’s own use and benefit, and did so appropriate it, he would be guilty of theft. The opinion in the case mentioned reveals that Judge Morrow made an exhaustive examination of the question and reviewed many authorities. Three propositions are stated in the opinion, which we here reproduce, italicizing the pertinent portions :

“One who, with a preconceived design to fraudulently deprive the owner of personal property, obtains possession of it, and makes use of the possession to convert the property to his own use, would not be excused from a charge of theft by the fact that the owner consented to part with the possession of his property. This we understand to be a general rule often applied in our own and other jurisdictions. * * *
“When the owner of property voluntarily parts, not only with its possession, but with the title to the property as well, the offense is not theft. It may, under certain circumstances, be swindling; but one having both the possession and title to property does not, by converting it, become guilty of theft, notwithstanding the acquisition with fraudulent intent. * * *
“This uniform construction of the statute has prevailed, notwithstanding the re-enactment of the statute unchanged in the several revisions of the Code, thereby giving to the statute legislative sanction of its judicial interpretation. The proposition that the acquisition of property upon a fraudulent pretext by the receiver or upon his fraudulent intent will not support a conviction for theft if it appears that the owner intended to part with both possession and title is declared by the courts and text-writers.” Many authorities are cited in the opinion supporting each of the three propositions.
The opinion concludes in the following language: “The evidence in the instant case shows that the goods in question were sold to appellant on credit. They were delivered to him without reservation of title. The intent of the owner was manifestly to part with both the possession and title of the goods, and to vest the ownership in the ap - pellant. They became his property to do with them as he pleased. Under the precedents cited, he cannot be held guilty of theft.”

So we say in the present case, if there was no false pretext, (and the jury had a right to determine that issue), the owner parted with both the possession and title to his property and appellant (in the absence of a false pretext) would not be guilty of theft.

In Quitzow v. State, 1 Tex.App. 65, decided in 1876, the very statute which is now Art. 1413, P.C., was trader construction. This was before present Art. 1429, P.C.— theft by conversion — was enacted, which came into the code in 1887. Quitzow hired a horse to be used, as he represented, to go to a certain place for a certain purpose, and was to return the horse the same or the next day after hiring it. This he did not do, but so used the horse as to show a conversion to his own use. In construing what is now Art. 1413, P.C., Judge White quotes with approval from 1 Bishop on Cr.Law, Sec. 1017, as follows: “ Tf a man, meaning to steal his neighbor’s goods, fraudulently prevails on his neighbor to deliver them to him, under the understanding that the property therein is to pass, he commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable cheat. But if, with the like intent, he fraudulently gets leave to take the possession only, and takes and converts the property in the goods, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he obtained covers no more than the nosses-' obtained covers no more than the possession.’ ”

In its motion for rehearing the State relies on Nichols v. State, 133 Tex.Cr.R. 294, 109 S.W.2d 1057 and Newcomb v. State, 131 Tex.Cr.R. 30, 95 S.W.2d 456. There are some general expressions in those two opinions that may be somewhat confusing, but when the facts are considered the result in each of the cases mentioned is not out of line with the holding in Segal’s case, nor with anything that has been said in this opinion. Nichols negotiated with one Copeland to purchase certain cattle and the price was agreed upon. After the cattle were loaded in a truck and driven away Nichols then told Copeland he did not have the money then' to pay for the cattle, but had made arrangements to have the money in the bank on the following morning. Under the facts both the possession and title to the property passed to Nichols, and he made no false statement with reference to the matter until after the cattle had been received by him and'had left the possession of Copeland. In Newcomb’s case Douthit was the owner of certain cottonseed and had made arrangements with Newcomb and other parties to haul the cottonseed and deliver them at a certain place. They did get two loads of seed and delivered them according to their agreement with Douthit. Before they got the third load Newcomb and a ao-principal agreed to get the third load of seed and appropriate them to their own use. The case was decided upon the proposition that appellant had authority to take the seed and haul them where directed by Douthit, and that if before taking possession of the third load they had decided to take them to another place and there sell them and appropriate the money that they had no authority from Douthit to thus handle the seed, and thus had no authority from Douthit to take possession of the property. It is apparent that Douthit never parted with the title to the seed, but only agreed to part with the possession thereof in order that Newcomb and his co-principal might take the seed to the place directed; so the result of the holding in the Nichols case and in the Newcomb case is in line with the holding in the original opinion in the present case.

It is our view of the law that in determining whether the offense of theft has committed under the provisions of Art. 1413 Pf fhnf it otinnlrl alwavs He kent in 1413, P.C., that it should always be kept in mind to determine if the owner of the property parted with the title as well as the possession, especially so in the absence of false pretext. If this be done we think less confusion would arise in cases of this character.

We desire to make it dear that under some circumstances the offense of theft would be complete although the owner of the property parts with both the title and pos-⅜633⅛ thereof, if he is induced to do so by some false pretext, and the other elements are present which 'constitute the offense. One reason is that the false pretext may be such that it involves future happenings and would not support a swindling charge. Illustrative, see Contreras v. State, 118 Tex.Cr.R. 626, 39 S.W.2d 62; White v. State, 123 Tex.Cr.R. 282, 58 S.W.2d 530; Sherman v. State, 124 Tex.Cr.R. 273, 62 S.W.2d 146; Hoovel v. State, 125 Tex.Cr.R. 545, 69 S.W.2d 104; Haley v. State, 127 Tex.Cr.R. 177, 75 S.W.2d 272; Baldwin v. State, 132 Tex.Cr.R. 427, 104 S.W.2d 872; Lovine v. State, 136 Tex.Cr.R. 32, 122 S.W.2d 1069.

We have written at some length on the State’s motion for rehearing in an effort to clarify if we could the questions involved, and it follows from what we have said that we remain of the opinion that the case was properly disposed of in our original opinion.

The State’s motion for rehearing is overruled.

GRAVES, Judge

(dissenting).

This cause was heretofore reversed and remanded by this court on the sole proposition that the trial court was in error in failing and refusing to charge the juryj at appellant’s request, on the law governing a theft by means of a false pretext.

Art. 1413, P.C., reads as follows: “The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, Or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

It will be observed that a conviction may be had under the above statute in two ways, one being the obtaining of the consent of the owner of the property by means of some ■false pretext^ and the other being the acquisition of the property with the owner’s consent, but at the time of obtaining such consent of the owner there existed in the mind of the person so acquiring such property the intent to deprive the owner thereof of the value of the same, and the further appropriation thereof.

The proof of either one of these means to the satisfaction of the jury would be sufficient grounds for the upholding a judgment for theft.

Appellant objects to the charge of the trial court, and sets up the same in a bill of exceptions, as follows: “Defendant objects to said charge for the reason that same does not advise nor inform the jury that they cannot convict the defendant unless they find and believe from the evidence that it was from some false pretext on the part of the defendant as to some past or present fkctj, upon which prosecuting witness, Antone Willeke, relied and but for which he would not have parted with his property.”

Appellant also admits in his brief that there are two separate and distinct methods set forth in Art, 1413, supra, in which the crime of theft can be committed. We quote that portion of the brief: “It seems that this appellant was indicted and tried under that portion of the statute underlined above, that is, ‘with any intent to deprive the owner of the value thereof.’ Appellant admits at the outset that if this case was tried upon the underscored portion of the statute, possibly his proposition is not well taken as is reflected in appellant’s bill of exception number one, for it seems that under that portion of the statute, it is not necessary to show any false pretext, but a mere taking with the intent to deprive the owner of the value thereof.”

It appears from the court’s charge that this cause was tried on the second alternative method of committing the crime of theft, although the taking was had with the owner’s consent, and the court’s charge to the jury evidences the same in the following language: “You are further instructed that in order to convict the defendant of the crime of theft in this case you must be satisfied from the evidence, beyond a reasonable doubt, that he not only did appropriate the one head of cattle to his own use and benefit as alleged in the indictment, but you must further find and believe beyond a reasonable doubt that the intention of the defendant to defraud the owner of the value thereof, (if you have found that such intent existed) existed at or before the taking of said one head of cattle.”

I grant that possibly both elements.of the commission of this offense were presented to the jury in the testimony, yet the mere fact that the State saw fit to pursue the path outlined by the last alternative set forth in Art. 1413, supra, would certainly not force it to also pursue the method of committing the same offense as set forth in the first portion of such article. The State evidently did utilize a false statement by appellant relative to his bank account in order to show a present intent to appropriate the property unlawfully at the time he obtained possession thereof. And it is further of note that at appellant’s instance the trial court gave a charge on circumstantial evidence.

The facts as herein presented might have been classified as coming under the statute denouncing the crime of swindling also, but I do not think the State should have been compelled to elect to prosecute the same under such statute, but could use its own judgment in selecting- any one of the violated statutes or offenses that it thought applicable to the facts.

It seems clear to me that the false pretext of having certain money in the bank could have been used for the purpose of showing an instant intent to deprive the owner of the cattle and thus establish an offense under the second alternative of Art. 1413, supra, or had the State so desired, it could have been used as the predicate for the conviction herein; but in no event do I think that because there are present in the facts two alternative ways of committing the denounced offense of theft, that it was incumbent on the court to charge the jury on both phases thereof; nor do I also think that the appellant should be allowed to defend on the alternative theory not presented nor relied upon by the State. That two such methods of committing theft are included in Art. 1413, P.C., we have heretofore held in Davenport v. State, 127 Tex.Cr.R. 552, 78 S.W.2d 605, 608, in the following language: “The statute denouncing the offense embraces two modes of committing the crime, namely, obtaining the property by false pretext and obtaining the property with intent to deprive the owner of the value of the property'in question. The present prosecution is based upon the latter. The distinction between a prosecution under this statute and others denouncing theft is emphasized in many decisions of this court. Among them is Segal v. State, 98 Texas Cr.R. 485, 265 S.W. 911, 35 A.L.R. 1331. See Vernon’s Ann.Tex.P. C., vol. 3, art. 1413, and notes thereunder on page 23 of 1934 Cumulative Annual Pocket Part. See, also, Speer v. State [123 Tex.Cr. R. 188] 58 S.W. (2d) 95; DeBlanc v. State, 118 Tex.Cr.R. 628, 37 S.W. (2d) 1024.”

The only further question presented to us is the sufficiency of the evidence to sustain a finding that the appellant at the time of acquiring possession of the cattle had the intent at such time to deprive the owner of the value thereof, and to appropriate same to his own use and benefit. In this connection, I think the statement made at such time to the owner of the cattle relative to certain moneys had in the bank by appellant, and the proven falsity of such statement, would go far to show his present intent to obtain these cattle unfairly from their owner, and under the law of circumstantial evidence I am impressed with the fact that the jury was warranted in saying that when appellant told the owner of these cattle that he had funds in a certain bank practically sufficient to cover the amount, lacking a few dollars, when he had no such funds, and had not had same therein for more than two years, this was cogent evidence going to show that appellant at such time had the intent to deprive the owner of the value of $1119.00 worth of cattle.

The latter portion of Art. 1413, P.C., either means something or nothing, and to give such article the construction set forth in the opinion of Judge HAWKINS entirely destroys the efficiency and meaning of such latter portion of such article, and same would be useless. When appellant told Willeke that he, appellant, had the sum of $1,119, lacking a few dollars, in a certain bank, and obtained possession of about 43 head of cattle, it seems'to me that the fact that he had no such amount of money in such bank, and had had no money at all in such bank for more than two years, brought this case clearly -within the provisions of the latter part of such article 1413, P.C., as follows : * * or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking,” etc. I think this latter provision just above quoted is an additional method of committing the offense of theft, and either conveys such a meaning or means nothing.

We are not authorized to think that the legislature wrote a meaningless thing into the law, but such has been carried in the Code for many years and through many revisions, and.I think same should be given effect as a means of committing theft. I think the trial court was correct in utilizing this portion of the statute in this instance, and therefore respectfully enter my dissent herein.