author: SPEER, Justice.

text:
    KADANE et al. v. CLARK.
    No. 13958.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 29, 1939.
    Rehearing Denied Dec. 15, 1939.

      Kilgore & Rogers, of Wichita Falls, for appellants.
    Bonner, King, Dawson & Jones, of Wichita Falls, for appellee.
   SPEER, Justice.

Plaintiff, C. W. Clark, instituted this suit against defendants, George E. Kadane, Jack Kadane, Mike E. Kadane, Edwin G. Kadane, Charles Kadane, Fred A. Kadane and Big Six Oil Company, a corporation, for $20,000, as commissions, and in the alternative for the reasonable value of his services rendered, in procuring a purchaser from defendants of an oil and gas leasehold interest in 200 acres of land in Wichita County, Texas.

Plaintiff alleged that he was a geologist by profession and had acquired a valuable knowledge of the formations which rendered defendants’ property valuable. That he had never engaged in the brokerage business, but because of his knowledge of values, he conceived the idea of attempting to sell defendants’ property to large oil companies, the personnel of which was well known to him. He asked George E. Ka-dane, whom he knew was in charge of selling the leases belonging to himself and his associates, if he would be interested in selling the properties to one or more of the several independent companies with whom plaintiff had contacts; that the said George E. Kadane said he would have to confer with other interested parties and •would do so at once; that he later told plaintiff that he and his associates were willing to sell, if prices and terms were acceptable. Allegations are made that defendants, acting through George E. Ka-dane, listed their said property with plaintiff for sale, and promised to pay five per cent of the amount of any sale made as commissions; in the alternative, that if no definite promise was made to pay five per cent of the purchase price for commissions, then they promised to pay a reasonable compensation to plaintiff for the services rendered by him, if such a sale was made, and that a reasonable compensation was five per cent of the purchase price for any sale made.

Plaintiff further alleged that after said property was so listed with him for sale, he interested the Sunray Oil Company in the proposition and caused representatives of that company and defendants to enter into negotiations, which resulted in the sale by defendants to Sunray Oil Company of said properties, for $400,000, one-half in cash and the other half to be paid from future oil runs produced from the properties. Further allegations were made that plaintiff procured a purchaser, to whom a sale was made, and that by.his efforts he was the procuring cause of the sale made by defe'ndants to Sunray Oil Company.

Defendants excepted specially to plaintiff’s petition upon the ground that it disclosed a transaction between the parties, whereby plaintiff was seeking to enforce a contract which was in violation of The Securities Act of this State, and therefore invalid.

Subject to their general demurrer and special exceptions defendants answered by general denial, and by special pleas in defense, such as a denial of partnership, as alleged by plaintiff, that if any such contract as alleged by plaintiff was ever entered into (all of which they denied) that it was in violation of The Securities Act of Texas and void. Defendants further denied that they had ever listed their property with plaintiff for sale by him, and further specially denied that plaintiff was the procuring cause of the sale made by them to the Sunray Oil Company, but that said sale was procured through another person, to whom they had paid an agreed commission on the sale.

The general demurrer, all special exceptions and the plea in bar were overruled. The case was tried to a jury on special issues. The verdict was favorable to plaintiff. Motion for new trial was overruled and a joint and several judgment was entered in favor of plaintiff against all defendants, for $10,500. From the judgment entered defendants have perfected this appeal.

The parties will carry the same designation here as was given them in the trial court.

Defendants seek a reversal by this court on thirty-one propositions contained in their briefs. These points or propositions are admirably grouped and briefed in four classes. Some of the points presented are well taken and require a reversal of the judgment entered. We shall avoid, as far as possible, expressions as to the evidence which would give to either party an undue advantage upon another • trial. Both sides have briefed the case thoroughly and these efforts on the part of counsel have been helpful to us in arriving at the conclusions reached.

In defendants’ first group they present propositions one to six, under which they contend, (1) that the court erred in overruling the exception to the petition, because it did not allege that plaintiff had complied with The Securities Act; (2) because after plaintiff had stipulated upon the trial that he had not complied with The Securities Act, the court should have given' a peremptory instruction for defendants; (3) because plaintiff having stipulated that he had not complied with The Securities Act and obtained a license, defendants were entitled to an- instructed verdict' and the court should have sustained their motion for judgment'non obstante veredicto; (4) because plaintiff having failed to allege a compliance with The Securities Act, and having stipulated that he had not done so, the .alleged contract attempted to be enforced was a violation of the Penal Code of this State, and the court erred in its enforcement; and (5) because it was error for the court to refuse to permit defendants to read to the jury the pleadings of plaintiff when he had not alleged a compliance with the Act and had so stipulated upon the trial.

There is no error shown by the action of the trial court in overruling defendants’ special exception and plea in bar to plaintiff’s petition, because it did not allege a compliance with The Securities Act. The petition stated a cause of action. The pleader was not required under the circumstances of this case to negative all possible defenses that might be presented or urged by his adversary. The matters so raised were defensive and could not be reached by exceptions. Culver v. Cockburn, Tex.Civ.App., 127 S.W.2d 328, writ of error dismissed, correct judgment; Mullin v. Nash-El Paso Motor Co., Tex.Civ.App., 250 S.W. 472, writ refused; R.C.L., vol. 4, page 303.

Subject to their special exceptions, defendants did plead the failure of plaintiff to comply with The Securities Act, alleging that by reason of his failure to so comply and procure a license, the purported contract relied upon by him with defendants was invalid and could not be enforced. There is a stipulation in the testimony adduced, to the effect that plaintiff had not qualified as a dealer in securities and procured a license under the provisions of The Securities Act. It is under this defensive plea and the agreed facts that de^ fendants urge the propositions that plaintiff could in no event recover and that they should have had a summary instruction by the court and absent such instruction the court should have disregarded the verdict and sustained their motion for judgment non obstante veredicto.

These propositions fairly present the issue of whether or not the alleged express or implied contract between defendants and plaintiff, whereby the latter claimed that the former had employed him to find a purchaser of their oil and gas rights, was a violation of The Securities Act, Vernon’s Ann. Penal Code, Article 1083a.

We have concluded that the facts in this regard (about which there is no controversy) do not bring the transaction within that statute. Vernon’s Texas Civil Statutes, Article 600a and its 38 sections contain what is known as The Securities Act. Section 30 is the penal provision in it and is now Art. 1083a of our State Penal Code, Vernon’s Ann.P.C. art. 1083a.

The Act evinces that the Legislature intended to protect the public against the purchase of worthless securities from unscrupulous dealers who peddle them about in search of buyers. Section 2 (a) of the Act, insofar as applicable to this case, defines the words “security” and “securities” in this language: “The term ‘security’ or “securities’ shall include * * any instrument representing any interest in or under an oil, gas or mining lease, fee or title.”.

Section 2 (c) reads: “The term ‘dealer’ shall include every person * * * who engages in this State, either for all or part of his * * * time, directly or through an agent, in selling, offering for sale or delivery or soliciting subscriptions to, or orders for, or undertaking to dispose of, or to invite offers for, of dealing in" any other manner in any- security or securities within this State.”

Section 2 (h): “ ‘Broker’ shall mean dealer as herein defined.”

Section 3: “Exempt transactions. Except as hereinafter in this Act specifically provided, the provisions of this Act shall not apply to the sale of any security when made in any of the following transactions and under any of the following conditions, and the company or person engaged therein shall not be deemed a dealer within the meaning of this Act. * * *

“(c) Sales of securities made by, or in behalf of a vendor in the ordinary course of bona fide personal investment of his personal holdings, or change of such investment, if such vendor is not otherwise engaged either permanently or temporarily in selling securities * * *

Section 12 provides: “Except as provided in Section 3 of this Act, no person * * * or dealer shall, directly or through agents or salesmen, offer for sale, sell or make a sale of, any securities in this State without first being registered as in this Act provided. * * *”

In this case the defendants were indisputably co-owners of Certain interests under oil and gas leases to the lands in controversy. It has many times been held by our courts that oil and gas in place are minerals, a part of the realty in, upon or under which they are situated. Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566; Martin v. Dial, Tex.Com.App., 57 S.W.2d 75, 89 A.L.R. 571; Canon v. Scott, Tex.Civ.App., 217 S.W. 429; Hynson v. Gulf Production Co., Tex.Civ.App., 232 S.W. 873, writ refused. The same rules applicable to the conveyance of land are alike'applicable to the conveyance of such minerals (oil and gas). Sibley v. Pickens, Tex.Civ.App., 273 S.W. 897; Lambert v. Gant, Tex.Civ.App., 290 S.W. 548; Honaker v. Guffey Petroleum Co., Tex.Civ.App., 294 S.W. 259, writ refused.

Plaintiff instituted and prosecuted this suit upon the theory that defendants were the owners of the oil and gas rights in the land, and that they could sell or offer for sale those interests, either in their own behalf or through an agent employed to find them a purchaser at the price and upon the terms agreed upon. That either a sale by themselves directly to a purchaser, or by means of the assistance rendered by plaintiff in finding and producing a purchaser to whom they subsequently made a sale would not be an infraction of The Securities Act. We think the contention is correct.

It is only the sale or offering for sale of securities not excepted by which a dealer infringes the Act. Real estate is not a security within the contemplation of The Securities Act. 56 C.J. § 3, p. 1280. We find nothing in the Act to justify a presumption that the Legislature intended to require the owner of real estate to procure the license provided for in the Act before he could sell or offer for sale his own land or an interest therein. It is equally clear to us that the Legislature did not intend by the Act to prescribe that such owner could only invoke the assistance of one who was thus licensed to aid him in finding a purchaser for his landed estate. The person employed to procure a purchaser does not himself offer anything for sale. He is not in a position to make delivery of anything to one whom he finds desiring to purchase the interest in realty but is wholly dependent upon the owner to make a conveyance of an interest in land if, as and when the price and terms are agreed upon between the seller and proposed purchaser. A casual reading of Section 2(a) of the Act quoted in part above, which defines the words security and securities will disclose that it is only when any instrument representing any interest in or under an oil, gas or mining lease, fee or title, is sold, delivered or offered for sale or delivery by a dealer or broker (as defined in Section 2(c) that the Act is violated, unless such person shall have procured the license to perform such acts.

It is not contended in this case by either party that plaintiff sold, delivered, offered for sale or delivery any^ instrument representing an interest in or under an oil, gas or mining lease. It was jiot an “instrument”, document or other evidence of debt or security therefor for which he claims he was employed to find a purchaser, but a part of the fee title to real estate owned in separate parts by' defendants. •

As a further evidence that The Securities Act herein discussed does not apply to sales of real estate, o'r to agents who claim compensation for procuring purchasers of real estate at the instance of the owner, the 46th Legislature, by House Bill No. 17, shown at page 888 of Vernon’s Regular Session Acts, passed what is known as “The Real Estate Dealers License Act.” Vernon’s Ann.Civ.St. art. 6573a. By this Act, effective 90 days after adjournment of the Legislature, real estate dealers, brokers and agents are required, under the conditions named therein, to register with the proper authorities and procure a license as such dealer. The extensive details of the provisions of the Act need not be enumerated here, but the enactment of such a law is persuasive to our minds that it was not intended that The Securities Act should be applied to sales of real estate, nor to those acting as agents, brokers or commission-men in connection with such sales.

Moreover, if it be conceded that because of the language used in the Act at Section 2(a), that the property for which plaintiff sought a purchaser was a “security” and that plaintiff made or offered to make a sale, then we think the exception Section 3(c) quoted above would apply, for the Act does not cover sales of securities made by or in behalf of a vendor in the ordinary course of bona fide personal investment of his personal holdings. We overrule all propositions raising this question, and in this we are supported by the case of Culver v. Cockburn, Tex.Civ.App., 127 S.W.2d 328, writ dismissed, judgment correct.

We are cited by defendants to Atwood v. State, 135 Tex.Cr.R. 543, 121 S.W.2d 353, in support of their contention that since the stipulated facts are that plaintiff had not complied with The Securities Act, the agreement ánd contract claimed by him with defendants resulted in a violation of the Penal Code (Article 1083a) and was therefore unenforceable, even to concede that he procured the purchaser for the oil and gas interests of defendants. The facts involved in that case were, we think, materially different to those before us. In any event we think the court, in the Cul-ver v. Cockburn case, supra, had a more nearly similar situation to the one here under consideration, and held that the facts did not .bring the case under the Securities Act. That decision having such sanction by the Supreme Court as the expression, “judgment correct”, carries, and because the reasoning more nearly coincides with our views on the subject, we follow the rule there announced.

In their second group of propositions, defendants include numbers 7 to 19. These propositions cover complaints made of the manner of submitting the issues, and a failure to give definitions of certain words and terms used therein.

Omitting the preliminary statement made before the issues were propounded, those complained of and their answers are as follows :

“Issue No. 1. Do you find from a preponderance of the evidence that George E. Kadane listed for sale with plaintiff Clark the properties in question, which were sold to the Sunray Oil Company?” Answered, “Yes”.
“If you have answered the foregoing issue ‘No’, then you need not answer this issue, but if you have answered the same ‘yes’, then answer:
“Issue No. 2. Do you find from a preponderance of the evidence that George E. Kadane had authority from all of the other' owners of said property to list such property for sale with the plaintiff Clark?” Answered: “Yes.”
“If you have answered the foregoing issue- ‘Yes’, then you need not answer this issue, but if you have answered ‘no’, then answer:
“Issue No. 3. Do you find from a preponderance of the evidence that George E. Kadane had authority from any of the other owners to list such property for sale with the plaintiff Clark?” Not answered.
* ’ * * * * *
“Issue No. 6. Do you find from a preponderance of the evidence that the plaintiff Clark did procure the purchaser for the property in. question at a price and upon terms acceptable to the defendants?” Answered: “Yes.”
* * * * * *
“If you have answered the foregoing issue No. 6 ‘No,’ then you need not answer this issue, but if you have answered same ‘yes’, then answer:
“Issue No. 12. From a preponderance of the evidence, what "sum of money, if any, if now paid in cash, do you find would be a reasonable compensation for the plaintiff Clark for such services, if any?” Answered: “$10,500.”

The issues, the conditions under which they were to be answered, and the answers given, as quoted, will be sufficient to enable us to discuss the points raised by defendants.

The propositions here urged are, in effect, (1) that since defendants claimed they had not listed their property for sale with plaintiff, nor otherwise employed him to sell the same or to procure a purchaser for it, the dominant words “list” and “listed”, used by the court in issues one, two and three, had a special legal significance and involved the point of whether or not they had employed plaintiff or invoked his aid to sell their property or to find them a purchaser for it at a price and upon terms acceptable to them; (b) that the use of the word “procure”, as used in the sixth special issue, likewise was a technical term, well defined in law, which legal meaning was unknown to the jury; and (c) that because each and all of said special issues (including many not quoted by us) were preceded by the conditional provision (such as those above shown) were comments by the court upon the weight of the evidence, and informed the jury of the effect of their respective answers.

Plaintiff plead that defendants, acting through George E. Kadane, listed the property with him for sale. That they subsequently sold the property to the Sunray Oil Company, and that he, plaintiff, was the procuring cause of the sale, and that he procured the purchaser to whom the sale was made.

It is well settled by the courts of this State that before a broker can recover commissions from the seller he must not only show he was the efficient and procuring cause of the sale made, but that he had a contract, express or implied, to make such sale or procure a purchaser ready, able and willing to buy at the price and upon the terms stated. The general rule, as stated, is further clarified by holdings that the broker would be entitled to recover, where he procured for the seller a purchaser, and the seller accepted his services and made the sale with knowledge that the broker was expecting compensation if a sale should be made to his client.

A real estate agent, who brings parties together who make a trade, is not entitled to commissions in the absence of a contract. Pipkin v. Horne, Tex.Civ.App., 68 S.W. 1000.

A broker cannot recover for services without showing a contract of employment, express or implied. Fordtran v. Stowers, 52 Tex.Civ.App. 226, 113 S.W. 631, writ refused; Loomis v. Broaddus & Leavell, Tex.Civ.App., 134 S.W. 743; Browning v. Dowell, Tex.Civ.App., 218 S.W. 45; Goode v. Sears, Tex.Civ.App., 226 S.W. 463.

Evidence that a broker presented to a landlord a tenant with whom a rental contract was made, will not support a judgment for commission in the absence of proof that the broker was employed to procure a tenant. Burgher & Co. v. Floore, 107 Tex. 112, 174 S.W. 819.

Simply to show that a broker is the efficient cause of the consummation of a sale does not show an agency to sell. Newell v. Lafarelle, Tex.Civ.App., 225 S.W. 853.

If a broker who has no contract with the owner to sell, undertakes to sell the property with the owner’s knowledge, there is a sufficient consideration for the owner’s promise to pay for the broker’s services, when a purchaser is procured by the broker and a sale is made to him by the owner. Dockery v. Maple, Tex.Civ.App., 125 S.W. 631.

In Marr-Piper Co. v. Bullis, Tex.Com.App., 1 S.W.2d 572, it was held that whether the property had been previously listed with the broker or not, if the purchaser was voluntarily procured and presented by the broker and the owner negotiated a sale with him under circumstances which implied an agreement to pay therefor, the seller would be liable to the broker for commissions.

Under the rule stated, it becomes the paramount issue here whether or not plaintiff had a contract with defendants to sell their property. Plaintiff was content to allege, in this respect, that defendants had listed their property with him for sale. Such allegation, together with others shown to have been made, would carry the implication that a listing for sale meant that defendants employed him to sell their property, or to invoke his services to effect a sale of it. The words “list” and “listed”, in many respects have simple meanings well understood, but when they are used to embody the elements of a contract, clearly they have a legal meaning; that meaning must be understood by the jury to enable them to determine whether or not defendants listed their property with plaintiff for sale.

In Farquharson v. Lightner, 96 Kan. 117, 150 P. 565, it was held that the word “list” in testimony of a broker that defendant listed the land with him for sale, implies invoking the services of an agent in finding a purchaser on the terms stated.

Artiple 2189, R.C.S., provides, among other things, as follows: “ * * * In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.”

The grammatical construction of the sentence above quoted from the statute, perhaps, would limit the necessity of explanations and definitions to “legal terms” used in the issue, but we cannot believe that such a limited or technical construction should be given it. Speer’s Special Issues, § 50, page 58.

On this point we said, in Fort Worth Sand & Gravel Co. v. Peters, Tex.Civ.App., 103 S.W.2d 407, at page 414, writ dismissed: “When it is material to enable a jury to properly understand the language used in -a given case, explanations are mandatory.” We cited the case of Lee v. Wilson, Tex.Civ.App., 91 S.W.2d 461, writ refused, which held that explanations and definitions were necessary whether the words used in the issue were, strictly speaking, technically legal terms, or such nonlegal terms as were calculated to confuse and mislead the jury, in the absence of the required explanations and definitions.

In Robertson & Mueller v. Holden, Tex.Com.App., 1 S.W.2d 570, it was held that the statute had not attempted to declare what “legal terms” should be explained or defined, further than “shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.” The court then laid down the rule in this language: “Reasonable necessity, considering the term or terms used, then, should be the test.”

It is apparent in this case that a reasonable necessity existed for an explanation of the word “listed”, as used in the three special issues above quoted. The record before us shows that after the jury had retired to consider of their verdict, they wrote a note to the court saying: “Will you please define the word ‘listed’ as used in the first issue of your charge?” The court replied in writing: “The court can give you no further instruction with reference to such term.”

Defendants timely objected and excepted to those issues which included the word “listed” because the word was not explained or defined, and requested the court to give the explanation necessary. The objections, exceptions and requests were overruled. The point was saved in the motion for new trial. The exceptions and requests were sufficient to entitle defendants to raise the point here as has been done, without preparing and presenting to the court a written explanation and definition. Robertson & Mueller v. Holden, supra; Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683. The assignments raising the question must be sustained.

Much that we have said in regard to the necessity for defining the words list and listed in Special Issues 1, 2 and 3 is also applicable to the word “procure”, as used in special issue 6 and covered by the group of assignments here under consideration.

To enable the jury to properly understand the issue submitted, an explanation of what was meant by “procure” should have been given. By plaintiff’s pleading he claimed a right of recovery because he procured the purchaser to whom defendants made the sale, and also in another way plead that he was the procuring cause of the sale made.

“Procure” has many meanings, as disclosed by the dictionary. Among other .things it means “to bring into possession —to acquire; to cause- — -to bring about; to solicit — entreat.”

■ By Issue No. 6, the jury was asked did plaintiff procure the purchaser to whom defendants sold the property. Absent a definition or explanation of the word procure, the jury was left to speculate as to whether plaintiff acquired something for himself, whether he brought something about, solicited or entreated the purchaser to make the deal.

“Procuring cause” finds a suggested explanation in Speer’s Special Issues, § 571, in this language: “By ‘procuring cause’ as that term is used in this charge, is meant the moving, efficient cause without which the sale in controversy would not have taken place.” See, also, Dickinson v. Sanders, Tex.Civ.App., 39 S.W.2d 102; Keener v. Cleveland, Tex.Com.App., 250 S.W. 151; Cruz v. Perkins, Tex.Civ.App., 21 S.W.2d 1078, writ refused.

“Producing cause”, used in connection with an issue in a suit to recover commissions under allegations similar to those in this case, was defined and approved by this court in Schebesta v. Stewart, Tex.Civ.App., 37 S.W.2d 781, 782, writ dismissed, in this language: “I instruct you that ‘producing cause’ as that term is used in this charge, means any act or series of acts set in motion, by the efforts of which, continuing in an unbroken chain of cause and effect from their inception, was produced the result or thing done.” The assignment raising the point is sustained.

There is yet another point raised under the group of assignments under consideration. It is the complaint that the court erred in submitting the enumerated issues based upon a condition of how they had answered a preceding one, because it was upon the weight of testimony and informed the jury of the effect of their answers. The assignment, insofar as it applies to Special Issue 12, in which inquiry is made of the amount that should be awarded to plaintiff, is well taken. Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482; Continental Oil Co. v. Barnes, Tex.Civ.App., 97 S.W.2d 494, writ refused. There are many decisions of our courts holding that it does not present reversible error for the trial court to submit certain issues to be answered, conditioned upon how others were answered, provided such condition does not have the effect of apprising the jury of the effect their answers will have upon the judgment to be rendered by the court. In a strict sense, a juror knows when such a condition precedes an issue, that if the other issue has been answered in a certain way the one subsequently propounded becomes immaterial. Such procedure is conducive to a speedy determination of the rights of litigants, and it is to be commended. Continental Oil Co. v. Barnes, Tex.Civ.App., 97 S.W.2d 494, writ refused, and authorities there cited. But when, as in this case, the Grasso and Barnes cases, supra, where the amount of the recovery, if any, is submitted, there is no necessity of a conditional submission of the issue, thereby hazarding the danger of apprising the jury of the effect of their answer on a previous question. This is true for the reason, irrespective of how much or little is found in the issue of amount, the answers to issues of liability will control the court in entering the judgment.

There are other points raised in this group of assignments, such as that Issue No. 6 (above quoted) was duplicitous and multifarious. In the circumstances of this case, where a sale was actually made by the seller to the purchaser alleged to have been procured by the broker, the additional provisions in the issue become immaterial. It was held in Granata v. Mothner, Tex.Civ.App., 44 S.W.2d 817, 819, that an issue very similar to the one under consideration was open to the objection here made. But in that case the broker sought a recovery for having procured a purchaser “ready, willing and able to purchase * * * upon the terms proposed”, and the seller declined to make the sale. The distinguishing features between that and this case are apparent.

Again, objection was made to the manner in which Issue 12 is framed, with respect to reasonable compensation for the services performed by plaintiff, if any, without limiting such compensation to the value of services rendered in the particular transaction in question. If the conditional submission as made by the court of that issue had been proper, then Issue 12 would have been correct, for it was referable to the manner in which Issue 6 had been answered. But we have said the conditional submission of the issue was improper, and therefore upon another trial plaintiff’s compensation should be limited to the value of his services for having become the efficient and procuring cause (if they were) of the sale that was made.

Defendant’s third group of propositions cover numbers 20 to 24. In th«m complaint is made that fhe court erred in overruling their motion for juágment non obstante veredicto. We have already indicated that no summary instruction should have been given for defendants and it must follow that no error is shown in overruling the motion. However, by their 19th proposition, defendants insist that there was no evidence to warrant the submission of Special Issue 2, above quoted, and no evidence to support the answer made. It will be noted that the issue referred to is one in which inquiry was made if all the owners of the land authorized George E. Kadane to list same with plaintiff for sale; which issue was answered in the affirmative.

The record reflects that the 200 acres in controversy was owned by the defendants and one Griffith, who was not a party to the suit. Each owned in his own right a definite undivided proportionate part. Defendant, George E. Kadane, is the father of defendants, Edward Kadane, Michael Kadane and Jack Kadane. The father and each of the sons owned a 5/48th interest. Big Six Oil Company, controlled by Fred Kadane, a brother of George E. Kadane, owned 12/48th interest and Griffith owned 16/48ths interest in 120 acres of the land. Big Six Oil Company owned 1/2 interest and George E., Edward, Michael and Jack Kadane each owned a l/8th interest in the remaining 80 acres.

The testimony offered is conflicting in a very high degree. That relied upon by plaintiff is made up from circumstances, which he admits are badly “scrambled.” The recorded testimony from which these circumstances are enumerated covers a large volume; in plaintiff’s briefs these circumstances are picked out and the record- supporting them is cited; we have verified the citations and cannot say there is no testimony of probative force upon which to base the submission of the issue. The jury, as was its province, gave credence to those circumstantial acts and statements done and testified to by the witnesses, resulting in the affirmative answer given. With the burden upon plaintiff to establish a material fact by a preponderance of the evidence, other than one such as fraud or agency, we would be slow to say that the evidence such as in this case was sufficient; but in the circumstances of this case where agency of George Kadane to list the property for sale with plaintiff was solely within the knowledge of his principals, consisting of his three sons and brother, all of’ whom were adversely interested parties, and some did not testify and others who did testify, either did not deny the agency or were very evasive in that respect, we think slight circumstances developed by plaintiff would, in law, discharge' the burden resting upon him,. and warrant- the submission of the issue -to the jury.

This rule is recognized in 3 C.J.S., Agency, § 315, page 253, in this language: “It is said that very slight proof by plaintiff is sufficient to raise a presumption of agency where full knowledge of the subject is possessed by defendant and is difficult of attainment by plaintiff.” It is further said in the same text, § 328, at page 299: “Also, it has been held that, where neither the alleged principal nor the alleged agent testify in an action by a third person against the alleged principal, a slight prima facie case is sufficient to satisfy legal requirements touching the burden of proof.”

A similar rule to that above prevails in this State. In Daugherty v. Wiles, Tex.Com.App., 207 S.W. 900, it was held that agency may be established by circumstances such as the relation of the párties and their conduct with reference to the subject matter of the alleged contract. A further well known rule of law is also announced in that case to the effect that agency cannot be established alone by the words and acts of the alleged agent, unless it is further made to appear that the principal knew of or assented to them; but where the acts justified a reasonable inference that the principal had such knowledge and would not have permitted them if unauthorized, the acts are competent and may be proved.

Whether or not the relationship of principal and agent exists between two or more parties, and the extent of such agency, if any, is best known to the parties themselves. Agency cannot be proved by the words and acts alone of the agent, hence when the principal remains quiet and declines to testify when such agency and its extent are at issue, the silence of the alleged principal not only strengthens the probative force of the affirmative truth, but of itself is clothed with certain probative force. Farmers’ Guaranty State Bank v. Burrus Mill & Elevator Co., Tex.Civ.App., 207 S.W. 400; Pullman Palace-Car Co. v. Nelson, 22 Tex.Civ.App. 223, 54 S.W. 624; Bailey v. Hicks, 16 Tex. 222. Many more authorities could be cited from the early decisions, but we think those mentioned are sufficient. The assignment must be overruled.

Group four of propositions by defendants embrace several assignments of error to the judgment as rendered, it being joint and several against all defendants for $10,500. This was manifestly wrong. True plaintiff alleged a partnership between defendants in the matters involved. This was denied under oath by defendants, which made a material issue for determination before a joint judgment could be rendered against all. No issue was requested or submitted inquiring whether or not defendants were partners. The record reflects that defendants owned the land, which plaintiff claims to have caused to be sold, in the proportions above shown. To concede that they each authorized George Kadane to list his and its land for sale as found by the jury, this would not render each liable to the broker for commissions on all. To do so would be manifestly unfair and inequitable, if perchance one or more of the defendants was insolvent and no contribution could be enforced between them. Those who were solvent would be required to pay more than their proportionate part, based upon the interest in the whole owned by them. The judgment should have , apportioned the recovery against each defendant in the proportion that his interest in the land bore to the gross amount of the verdict rendered. If A and B, owning adjacent lands, each employ C to sell their respective tracts, a sale of both tracts is made and a commission earned, manifestly each of the sellers would alone be responsible to the broker for commissions for selling his land; neither of the sellers would be liable for commissions for the sale of the land belonging to the other. We sustain the assignments of error raising the point.

We have endeavored, in this discussion, to refrain as far as possible from commenting at length upon some - phases of the case because it must again be tried upon the facts and law applicable. But assuming that the same or similar issues will arise .upon another trial, we have expressed our views upon the points presented in a way that we trust will be helpful to the trial court upon another hearing. We have considered all assignments of error and those not herein sustained are overruled.

For the reasons shown, the judgment of the trial court must be reversed and the cause remanded for another trial. It is so ordered.

On Motion for Rehearing.

All parties, plaintiff and defendants, have filed motions for rehearing in this cause. Defendants (appellants) assign as error our conclusions wherein we overruled many of their assignments of error, and that even though we had held that a definition should have been given of the term “procure” yet some of the decisions cited by us did not include all of the elements that should enter into a proper definition of that term in the charge. We think and so hold that a definition of the term should embrace, in some suitable form, all that is contained in the charge given in Dickinson v. Sanders, Tex.Civ.App., 39 S.W.2d 102, and Settegast v. Timmins, Tex.Civ.App., 6 S.W.2d 425, writ refused.

Plaintiff (appellee) complains because of our holding that it was error for the trial court to enter a joint and several judgment against defendants. We have reached the conclusion that his contention is correct, and that we were in error in our holdings as expressed in the original opinion on this point. We sustained defendants’ assignments grouped by them as “No. IV” which raised the question.

In Settegast v. Timmins, supra, three parties consisting of one who owned an undivided half interest in real estate, and a husband and wife who owned the other half entered into a contract with brokers to sell their joint property. No express agreement was made as to the amount of commissions to be paid. There was no agreement between the parties at the time the contract was made that their liabilities should be segregated. It was held that a joint and several judgment was proper. Keithley v. Ward, Tex.Civ.App., 217 S.W. 428; Gillespie v. Dick, Tex.Civ.App., 111 S.W. 664.

In Danciger v. Smith, Tex.Civ.App., 286 S.W. 633, affirmed by Supreme Court, 116 Tex. 269, 289 S.W. 679, a joint and several judgment against several joint owners for commissions by a broker was complained of. It was contended that because it was not shown that the joint owners were partners that the judgment should have been prorated among them in the proportion of their ownership. It was held that since they dealt with the broker jointly and did not disclose to him their respective interests, the joint and several judgment was proper. To the same effect is the case of Morrison v. Reece, Tex.Civ.App., 266 S.W. 815, which cites Baum v. McAfee, Tex.Civ.App., 125 S.W. 984; Babcock v. Glover, Tex.Civ.App., 174 S.W. 710, writ refused. The last cited case was one in which the husband procured the services of a broker to sell a large tract of land which belonged to him and his wife jointly. Both were sued but because of the wife’s coverture she was dismissed from the suit. It was held that the husband was liable for the whole commission. That case may be distinguished in some respects from this case, but the reasoning of the court is similar to that in the other cases cited.

We therefore withdraw that part of our original opinion wherein we sustained defendant’s assignments complaining of the joint and several judgment, and here hold that when it is made to appear by proper findings of fact that defendants acting jointly either in person or by a common agent with authority to act in the premises employ the broker to procure for them a purchaser of their property, and the broker complies with his contract and earns a commission, judgment in his -favor should be joint and several against those who employ him, or with knowledge 'of employment ratify same.

It follows from what we have said that we overrule defendants’ assignments of error which challenge the judgment because it was joint and several. In all other respects than those mentioned in these conclusions we believe we have properly disposed of this appeal. With these changes the former order of reversing and remanding the cause for the errors shown will stand and both motions for rehearing are overruled.


source: Caselaw Access Project

license: Public Domain

text:
    McDONALD v. LEONARD BROS.
    No. 13979.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 3, 1939.
    Rehearing Denied Dec. 8, 1939.
    L. J. Wardlaw, of Fort Worth, for appellant
    Todd, Crowley & Thompson, of Fort Worth, for appellee.
   SPEER, Justice.

This suit originated in the Justice’s Court when Mrs. Eva McDonald, a feme sole, sued Leonard Brothers, a private corporation, for $160, for the conversion of a Chevrolet automobile. The case was subsequently appealed to the County Court, and by due order transferred to the County Court at Law No. 2, where it was tried, resulting in an instructed verdict for the defendant. Mrs. McDonald perfected her appeal to this court, and will be designated appellant here, and defendant below will be referred to as appellee.

The record reflects that appellee was, on December 30th, 1933, operating a department store in the City of Fort Worth, and across the street from its store building, kept, maintained and operated a free parking lot for automobiles, to accommodate the public. In connection with the parking lot, appellee also operated a filling station for the sale of gasoline, oils and such merchandise as is commonly sold at such places.

Appellant’s car was driven by her daughter onto appellee’s parking lot for storage and retention by the care-takers, until the daughter could do some shopping. The care-taker detached from a duplicate number card a stub, giving one part to the driver of the. car, and retained the other part, to be placed on the car for identification when it should be demanded.

Inside of an hour from the time the car was left, the' daughter returned to the parking lot, presented her identification card and called for the automobile. The attendants made diligent search, as did the daughter and her son, but neither could locate it. The attendant of the parking lot said that he must have delivered the car to some other person, through mistake.

This suit resulted from the failure of the appellee to return the car when requested to do so. Appellant’s allegations were substantially like the statements above made by us. In addition she plead that when the car was so left with appel-lee, a contract of bailment was created between the parties, and appellee was obligated to redeliver the car upon presentation of the identification ticket. It was further alleged that the failure of appellee to return the car upon demand and presentation of the ticket constituted a conversion by it of the automobile. Allegations were made that the car was of the reasonable market value of $320 when delivered to appellee; that subsequently the car was found after it had been stripped of many parts and otherwise badly damaged. In its damaged condition it was returned to appellant, but that it was only reasonably worth $160 in the condition it was in when returned; that the proximate cause of the damage to the car was due to the conversion by appellee. There is an alternative plea to the effect that if appellant is mistaken in her claim that her car was delivered by appellee to some person not entitled to receive it, and that such acts constituted a conversion by appellee, then she alleged in adequate terms that because of the location of the parking lot, the number of employees maintained by appellee on the premises and the time of the day upon which the car disappeared, appellee was guilty of gross negligence in permitting some person to steal the car from the parking lot. Prayer was for $160, the amount of damages sustained.

Appellee answered by general denial and by special plea that if the car of appellant was left on its parking lot at the time complained of by her, then same was left in appellee’s free parking lot without any agreement to pay therefor, but purely as an accommodation to appellant; that no charges were made by appellee for the parking and none was contemplated between the parties. That under such conditions, while the car was thus parked on its lot, some person without appellee’s knowledge or consent stole the car or took it by fraud and deception, without fault on the part of its agents.

A jury trial was demanded, but at the conclusion of the testimony, at the request of appellee, an instructed verdict in its favor was ordered. From a judgment entered thereon, this appeal has been perfected.

Only a small amount is involved, but this has not deterred us from making a close study of the very interesting question involved. Both parties requested summary charges; appellant’s request was refused and, as stated, appellee’s was given. Error is assigned, (a) because appellee’s request was granted, and (b) because appellant’s motion was overruled.

There is little or no conflict in the facts as detailed by the witnesses. Appellee operates a large department store in its building of two or three stories and a basement, covering an entire block in the City of Fort Worth, Texas. Just across an adjacent street it also maintains a “free” parking lot for automobiles. On this lot it also maintains a filling station for the sale of gasoline and lubricants. Four or five attendants care for the filling station and as many are employed to look after cars which are parked there by persons desiring that service. No charges are made for parking; when a person drives his car onto the lot, an attendant severs a perforated ticket, containing duplicate numbers, gives one part to the owner and attaches the other to the car. When the detached part is presented to the attendant, the car bearing the corresponding number is delivered. On December 30th, 1933, appellant’s car was parked by her daughter on the lot, while she went to the department store to do some shopping. When the daughter returned and presented the ticket, calling for the car, it could not be found. The attendant told appellant’s daughter that he must have delivered the car to her husband; she told him she had no husband. Nothing was paid or promised for the privilege of parking on the lot. Melvin Cagle, a son of appellant’s daughter, said he was with his mother both when the car was left at the parking lot and when she returned for it. Witness testified to matters above set out, and further that the purpose for which his mother parked the car at this lot was because she was going to buy some groceries at Leonard Brothers (appellee). No one at the parking lot told the daughter that she would be expected to trade at appel-lee’s store if she parked free at the station. Mr. Buchanan, who was the manager of the parking lot at the time the car was lost, but not so employed at the date of trial, testified that no charge was ever made for parking while he operated the lot. The public was at liberty to park there free without restrictions as to where they should trade. People were at all-times permitted to park there and trade where they chose. On cross examination, he testified that so far as he knew, the purpose in maintaining the parking lot was for use by the public. He did not imagine that if appellee had not maintained its store there, it would have kept the free parking lot. He said he was sure that the reason appellee maintained the free parking lot was because it thought more patronage would come to its store on that account. Other undisputed testimony disclosed that the car was subsequently found after it had been stripped of many accessories and otherwise damaged. That parts and labor necessary to rehabilitate it would reasonably cost $160.

. We think the court committed reversible error in giving the peremptory instruction for a verdict in favor of appellee. ■

In its brief replying to appellant’s assignments of error, the appellee makes this statement: “The appellee in the instant case pitched its entire defense to appellant’s cause of action upon the theory that Leonard Brothers (appellee) was operating a free parking lot, from which the car belonging to appellant, Mrs. Eva McDonald, was stolen by some unknown third person on or about December 30th, 1933. It is the position of the appellee that when Mrs. McDonald’s car was brought to this parking lot and was parked thereon, without charge to her or her representative, the relationship of bailor and bailee was created, and such bailment was purely gratuitous in its nature. ' Absent any showing whatever of gross negligence, culminating in the theft of this car upon the part of the appellee, its agent, servant or employee, it is the appellee’s contention that no liability rests upon it for theft of the car and the resultant damages sustained by appellant, Mrs. Eva McDonald.”

The' foregoing frank statement of appellee’s contention in this case brings us unmistakably to view this appeal from the standpoint of an instructed verdict for ap-pellee, obviously based on that theory of the law announced. In the first place, we do not think that the record will support a legal conclusion that the bailment was a gratuitous one. True, it was shown in so many words that appellant’s daughter paid nothing for the service and no compensation was demanded of her. Yet it is equally clear that the reason appellee maintained this “free” parking lot was because • it believed- business to its store would be enhanced, and further that if it had not so believed -the “free” parking lot would not have so been kept by it. We think that such a purpose by appellee, whether profitable or not, would be a sufficient consideration for the parking to take the case out of one of a pure gratuity. Many acts of a merchant, such as was appellee, which serve and are beneficial to the public without extra charge or expense, are practiced; they tend to create . good-will from the public to the business — a thing much desired by all business concerns. A well arranged show window, lounges, rest rooms, comfortable chairs, fans in warm weather and heating devices in cold weather; these are all free and the public pays nothing directly for their use; nor is anyone required to be a customer before he or she may have access to them. They are furnished for the purpose of attracting the public and constitute a silent invitation to trade at that store. We think the free parking lot maintained by appellee falls within the classes above mentioned. The undisputed evidence given by appellee’s manager of the lot indicates this. Dallas Hotel Co. v. Richardson, Tex.Civ.App., 276 S.W. 765; 5 Tex.Jur., page 1015, § 5 (cited by appellee). In the last cited authority we find this rule laid down: “In determining whether a bailment is gratuitous or lucrative, the court has said that inquiry is not directed to the character or certainty of the benefit or profit, but to whether the bailment was accepted for the purpose of deriving the one or the other. Generally, if the bailment was made at the instance or on the invitation of the bailee because of benefits, direct or contingent, expected to accrue, or on a contract, express ór implied, having a legal consideration, it is not gratuitous.”'

In the next place, appellee’s proposition-upon which it rests its defense necessarily implies that the car was stolen from the parking lot, and that before recovery could be had by appellant, she must establish gross negligence by appellee. The testimony to which we have already referred indicates that the car was not stolen but delivered by appellee’s attendants, through mistake, to some other person than the owner. It was only by alternative allegation that appellant charged that the car was stolen. There is some evidence which was admissible upon that theory, such as. the nature of the parking lot enabling the attendants to observe theft and the number of attendants on duty on the occasion, in controversy. But we shall devote our attention more especially to the first allegations made by appellant, to the effect that a contract of bailment was breached and that the car was converted by appellee when it was delivered to the wrong person-

Central Meat Market v. Longwell’s Transfer, Inc., Tex.Com.App., 62 S.W.2d 87, in an opinion adopted by the Supreme Court, , thoroughly discussed the subject now under consideration. In that case plaintiff below parked his car with defendant, paying the usual and customary parking fees. The defendant gave the car owner a .ticket or card bearing a number corresponding with a similar one placed on the car; on that ticket there was a provision that defendant was not responsible for fire or theft. The car was taken out by a third party under a trick amounting to theft by deception and fraud. When the owner called for his car and presented his claim check, the misdelivery was discovered. The opinion states that the question of what is bailee’s liability when a car is accepted for hire and a mis-delivery has been made, had not previously been passed upon by the Supreme Court of this State. It is there said that under such circumstances a misdelivery is conversion by the bailee. Decisions of other jurisdictions are quoted from, at length. From English Common Pleas, Stephens v. Kent, 4 Bing. 476, 130 Eng.Rep. 851, the court quotes: “If trover will lie against a common carrier or a warehouseman for a misdelivery, it can under like circumstances be sustained against a bailee for hire, or a gratuitous bailee.” From Hall v. Boston & W. R. Corp., 14 Allen, Mass., 439, 92 Am.Dec. 783, this expression is quoted: “The action of trover is not main--tained by proof of negligence, but only of misfeasance amounting to a conversion. And a delivery to an unauthorized person is as much a conversion as would be a sale ■of the property, or an appropriation- of it to the bailee’s own use. In such cases neither a sincere and apparently well founded belief that the tortious act was right, nor the exercise of any. degree of care, constitutes a defence even to a gratuitous bailee.” This is quoted from Murray v. Farmers’ & Merchants’ Bank, Mo.App., 206 S.W. 577: “Where bailee delivers the property deposited to person other than bailor, he determines the right of such person to the bailment at his peril and is liable for wrongful delivery, regardless of ■negligence.” The above case involved the liability of a bailee of a note, when it had been misdelivered. Based upon the authorities mentioned by us and many more •cited, Judge Sharp, speaking for the court, •concludes that a bailee of a car, for which a claim check has been issued, is liable to the owner of the car for loss by misdeliv-ery to a third person not entitled' to it, although the bailee was guilty of no negligence.

To the authorities above cited may be added Citizens’ Nat. Bank of Jasper v. Ratcliff & Lanier, Tex.Com.App., 253 S.W. 253. That case involved a bailment by a customer of the bank to the institution of certain liberty bonds with instructions to sell and place the proceeds of sale to the customer’s account. The bonds were lost in the U. S. mail. It was held that although there was no specific promise by bailors to pay for the services requested, the prospect by bailee of getting the proceeds of the sale left on deposit for an indefinite time, was sufficient consideration. It further held in that case that a direct charge for services was not necessary to constitute a bailment for hire, if the bailment is incidental and beneficial to the bailee’s business.

We hold that the^pidSnce was sufficient to entitle appell@é(TO have her case go to the jury to determine from the facts whether or not appellee was a bailee for hire, under proper definitions and explanations of those terms.

There is no testimony, insofar as we can find, in the record tending to show that the car in question was stolen, nor are we ready to say that in the absence of the condition in the contract of parking, which would limit appellee’s liability in case of theft, that a different rule would be involved, if the car had been stolen; for, as above shown, we think 'there is evidence sufficient to support a finding that the bailment was for hire.

The appellant would not be entitled to a reversal and rendition of the judgment in her favor, as claimed in the second assignment of error, even if no question of fact was involved in regard to the nature of the bailment. Her action was primarily for the difference in the value of the car when it was parked and its reasonable market value in the condition in which it was returned. Her proof consisted of the reasonable expense of repairs. This was not the measure of damages plead and relied upon by her.

For the reasons shown, we hold that the trial court erred in instructing the jury to return a verdict for the appellee. The judgment of the trial court is accordingly reversed and the cause remanded for another trial.


author: O’QUINN, Justice.

text:
    COBB et al. v. MORSE et al.
    No. 3615.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 9, 1939.
    G. C. Lowe, of Woodville, and B. L. Morse, of Galveston, for appellants.
    C. E. Smith, of Woodville, and H. D. Grogan, of Liberty, for appellees.
   O’QUINN, Justice.

This is an appeal from a judgment of the District Court of Tyler County, overruling a motion to dissolve a temporary injunction.

We have carefully examined the whole record, pleadings, evidence and rulings and judgment of the court, and find no reversible error. Accordingly the judgment is affirmed.


author: SMITH, Chief Justice.

text:
    HIDALGO COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 1 et al. v. HIDALGO COUNTY et al.
    No. 10612.
    Court of Civil Appeals of Texas. San Antonio.
    Aug. 30, 1939.
    Rehearing Granted in Part Nov. 29, 1939.

      J. F. Carl and Geo. L. Wideman, both of Edinburg, for appellants.
    Hill, Greer & Franki, of Mission, for appellees.
   SMITH, Chief Justice.

Hidalgo County Water Control & Improvement District No. 1 was originally organized in 1921 and 1922 as a water control district under the provisions of an Act covered in Ch. 2, Title 128, R.S. 1925, Arts. 7622, et seq., as amended, Vernon’s Ann.Civ.St. art. 7622 et seq., and after-wards, in 1926, was converted into a water control and improvement district under the provisions of Ch. 3 A, Title 128, Art. 7880 —1 et seq., Vernon’s Ann.Civ.Stat. It was organized and is operating under authority of Art. XVI, sec. 59 of our State Constitution, Vernon’s Ann.St. The District lies wholly within Hidalgo County. In 1925 and 1926 appellant District constructed and built its main canal from its reservoir and settling basin down through the southwest part of the county, in an easterly direction, toward the city of Mission. Said canal occupies a right-of-way approximately 200 feet in width, and has been used by appellant District since its construction for the purpose of diverting water from the Rio Grande and distributing it throughout the District’s irrigation system.

At the time it was constructed the main canal intersected and crossed five existing public highways operated by Hidalgo County, and the District constructed bridges over the canal at four of such crossings (which we here designate as No. 1, 2, 3 and 5 for convenience) and maintained them at its own expense until a few years ago, when it ceased to care for them upon the theory and contention that that was the duty and responsibility of the County and not of the District. It seems that, in the absence of a bridge, passage over a fifth crossing (No. 4) is made by fording. And in the meantime, the County contends, all the crossings have fallen into disrepair and have become dangerous to travelers because of the failure and refusal of the District to keep them in good condition.

Since the construction of the District main canal the County has opened two other roads (Nos. 6 and 7) to cross said canal. When the road at crossing 6 was established the District caused a bridge to be put in, but in later years when the bridge fell into decay and the District refused to repair or replace it, the County built a new one in its place at a cost of $970. The District refused to repair or maintain this bridge, or reimburse the County for the cost of its construction.

Late in 1937 the County opened another road, to cross the main canal at crossing 7. Upon the District’s refusal to put in a bridge at that crossing, “the County”, as stated by appellee, “installed three new 78-inch corrugated iron pipes at that point, which installation was completed on or about the 30th day of January, 1938, at the reasonable cost of $1,162.82.” The bridge is still in an incomplete state, requiring further additions thereto to preserve and render it safe for public use.

Hidalgo County brought this suit against the District and its officials upon the following cause of action:

1. To recover of the District the expenses incurred by the County in rebuilding bridge at crossing 6 ($970), and installing parts for new bridge at crossing 7 ($1,162.82).

2. For writ of mandamus requiring the District through its proper officers to (a) repair and renovate all seven of said bridges,; (b) install suitable bridge at crossing 4; (c) install sufficient headwalls at each end of bridge at crossing 7; (d) hereafter maintain all bridges over all crossings and keep them in repair — all at the expense of the District.

The case was tried to the court upon agreement on all the facts except as to the condition of the bridges as being dangerous, etc., and as to the existence of a public road at crossing 4 at the time the main canal was constructed.

The court rendered judgment granting in full the relief prayed for by the County as stated above. The District has appealed, and both parties have favored this Court with excellent briefs upon the very difficult questions presented in the appeal.

The principal questions raised in the appeal must be decided, not by the common law or decisions of our own courts, of which none seem analogous here, but from the constitutional and statutory provisions prescribing the powers, duties and obligations of County Commissioners’ Courts and Water Control and Improvement Districts, respectively.

The legislature, under constitutional grant and mandate, has invested county commissioners’ courts with control over all roads and bridges “in their counties”, coupled with the power and duty to lay out, open and maintain all necessary roads, and construct and maintain in safe condition all necessary bridges in the counties. Const. Art. V, Sec. 18, Art. XI; sec. 2, Art. XVI, sec. 24; Arts. 2351, 2352, 6794, R.S. 1925.

Under that mandate the primary duty rests upon the county to build and maintain or cause to be built and maintained all bridges necessary to the proper operation and maintenance of its roads, and even where that duty is delegated to other agencies, such as under Arts. 7585, 7746 and 7880 — 123, hereinafter discussed, the primary duty still rests upon the counf-y, so that if the secondary agency fails and refuses to perform, the county shall nevertheless put in and maintain such bridges, and exact reimbursement from the defaulter, through the courts, if necessary. Orange County v. Canal Company, Tex.Civ.App., 143 S.W. 963.

The appropriation and use of public waters for irrigation and related purposes was first recognized and provided for by the Texas Legislature in 1895, when it enacted the statutes embraced in Title LX, under the head of “Irrigation” and including Arts. 3108 et seq., R.S.1895- The act provided for the appropriation and distribution of public waters for said purposes by “persons, associations of persons and corporations” bringing themselves within the terms of the act, and provided that corporations could be formed under that act, as well as under the general incorporation laws, for the purposes contemplated. It laid down methods, rules, regulations and procedure by which the entities named could procure, appropriate and distribute the public waters of the State, and defined their duties, obligations and liabilities. As pertinent' to this inquiry it was provided in Art. 3128, R.S. 1895:

“All said persons, corporations and associations shall have the right to run along or across all roads and highways necessary in the construction of their work, and shall at all such crossings construct and maintain necessary bridges for the accommodation of the public, .and shall not impair the usefulness of such road or highway ;***.”

At the time of the passage of that act of 1895 there were no public irrigation or water districts authorized or operating in the state, and it follows as a matter of course, therefore, that the 1895 act related only to private persons and entities. Said act of 1895 was repealed, substituted and amended from time to time, and finally incorporated into Ch. I, Title 128, R.S. 1925. Its original purposes and procedures were preserved or modified or enlarged to fit developing conditions, without material change in the act. Afterwards, as constitutional and statutory provisions for public irrigation and water control and improvement districts were put into effect, the general act, supra, was amended to include such public entities in its coverage. So that the general law now provides, in the present article 7585, that:

“All persons, associations of persons, corporations, and water improvement or irrigation districts shall have the right to run along or across all roads and highways necessary in the construction of their work, and shall at all such crossings construct and maintain necessary bridges, culverts, or siphons, and shall not impair the uses of such road or highways; * * *

In 1905, in pursuance of- constitutional authorization of 1904, Art. Ill, sec. 52, Vernon’s Ann.St.Const., the legislature for the first time provided for the organization and operation of public irrigation districts, constituting them public governmental agencies. The act was very comprehensive in its purposes, scope and effect. It provided for the organization and government of the districts therein authorized; for the acquisition and construction of works for the irrigation of lands within their respective territorial bounds; for the issuance of bonds and the appropriation of the proceeds thereof for district improvements; for the distribution of water for irrigation purposes, etc.; for the exercise by the district of the right of eminent domain. The act did not provide the method by which such districts could acquire or appropriate public waters, or prescribe rules and regulations for, or limitations upon, their distribution thereof; it is conceded that for these purposes, and all other applicable purposes not inconsistent with the provisions of the creating act, such districts were relegated to the general act, now Ch. I, Title 128, R.S. 1925, which embraces Art. 7585, supra, set out above.

Said act of 1905, c. 122, creating public irrigation districts, was repealed and substituted by an act of 1913, c. 172, substantially to the same general effect as the former act. The act of 1913 was in turn repealed and substituted by the act of 1917, Gen.Laws 35th Leg.Reg.Sess., Ch. 87, sec. 107, • p. 206, providing for the establishment and operation of water improvement districts and validating all debts created under prior acts. It embraces no change affecting this appeal. That act was brought forward into the revision of 1925 in Title 128, “Irrigation and Water Rights”, under Ch. II, “Water Improvement Districts” and is the law today.

Again in 1925 the legislature passed an act (independent of the revised statutes of that year) in the same Title 128 but under Ch. Ill A, as arranged in Vernon’s Civ.' Stat., for the creation of water control and improvement districts, prescribing their purposes, powers, duties, obligations, etc. Acts 1925, 39th Leg. Ch. 25, p. 86. The act provided, precisely as in the case of water improvement districts, Art. 7746, Vernon’s Ann.Civ.Stat., as affecting the questions raised here:

“Such districts are hereby authorized and required to build all necessary bridges and culverts across and over all canals, laterals and ditches made and constructed by such district, whenever the same crosses a county or public road, and shall pay for 'the same out of the funds of such district.”

So, it will be seen that the general statute, Art. 7585, requires the entities to which it applies to “build and maintain” and pay for bridges over their canals at county road crossings; whereas, the more specific statute providing for organization, government and control of public water improvement districts, requires such districts to “build” such bridges at their own expense. Arts. 7746, 7880 — 123 Vernon’s Ann.Civ. Stat.

It being conceded that all the provisions of the general law apply to the public districts, when not inconsistent with specific acts of their creation, it is not difficult to go a step further and hold, as we now do, that when specific provisions of the general law, if given effect, would nullify or modify specific provisions of the special act concerning particularized rights and duties of the districts created by it, the latter provisions must prevail over those of the general law. Hunt v. Atkinson, Tex.Com.App., 12 S.W.2d. 142; Fortinberry v. State, Tex.Com.App. 283 S.W. 146; Luby v. Bell, Tex.Civ.App., 15 S.W.2d 106. But this conclusion does not settle the appeal, for there remains the matter of construction to be put upon Art. 7880— 123, which we hold to be controlling in the case.

Without further postponement we hold under the language of Art. 7880 — 123, that the burden of building- bridges over its canals at intersections with county roads is upon the district only in cases where such canals were dug across roads already laid out and opened to public use so as to constitute the canal an obstruction of an existing road. To hold otherwise would burden one existing public easement with the duty of building and maintaining a subsequent intersecting public easement, thereby empowering the one to destroy or impair the other, without liability for the resulting injury to the one first lawfully in possession. Both the county and the district are creatures of the constitution, which declares them to be governmental agencies, operating in their respective spheres of public usefulness. To give one the power, without liability, to destroy or materially impair existing lawful improvements of the other would be subversive of the design and purpose of the public policy declared in the organic law respecting each agency. It is not conceivable that such was the purpose of the legislature, and that destructive purpose may be avoided only by construing the statute as we have construed it, which construction we deem to be reasonable in the light of the language of the act.

We therefore hold that under the law appellant District was required to bridge, at its own expense, the county roads which had already been laid out and opened and put in use when appellant’s canals were constructed across them; but appellant cannot be required to build or maintain bridges on those county roads which have been laid out and opened since the canals were constructed.

The next, and a more difficult question is, Does the statutory requirement that the district at its own expense “build” bridges across county roads intersected by its canals include the duty and obligation to “maintain” such bridges after building them?

It has been held that an authority given a governmental agency to expend funds to “build” a public improvement carries with it, by necessary implication, the further authority in that agency to use such funds to repair and maintain the completed improvement. Bell County v. Lightfoot, 104 Tex. 346, 138 S.W. 381. We are inclined to take the implication a step further and hold that in view of the history of this and related legislation and of the public policy crystallized therein, and giving effect to necessary implications from the several statutes, to say nothing of the apparent justice of'the case, it was the intention of the legislature in enacting Arts. 7746 and 7880 — 123 to require appellant and similar districts to restore county roads to the same condition of .safety in which the districts find and cross them; to relieve the county of any expense made necessary by the intrusion of the district upon its prior easement. Because of the very nature of said intrusion — a sort of legal trespass — the statute by express .language put the duty upon the district to restore the status quo ante, and by implication, to maintain that status so long as the district obstructs the free use of the county’s prior easement.

It follows ' from the conclusions stated that the judgment of the trial court must be reversed in part, and since it must be reversed in part, we think it is better to reverse it in its entirety so that the whole case may be fully developed and determined below in consonance with this decision of the principal issues. Upon another trial the County, if found to be entitled to recover, should be restricted in such recovery to such reasonable and necessary disbursements, if any, as it has been required to make in rebuilding or repairing and maintaining bridges at the intersection of the district’s canals with county roads which had been laid out and opened and were in the public use at the time said canals were constructed. The County may not recover for expenditures upon construction, repair or maintenance of bridges for roads laid out and opened by the County across pre-existing district canals. If the roads were in operation first, the duty to build and maintain bridges at intersections with subsequently built canals rests upon the district; if the canals were there first, then the duty rests upon the County to buiíd and maintain its bridges thereover. We are of the opinion, it should be added, that the questions of limitation and laches aré not in this case, as it was developed below.

In view of another trial, we cannot with propriety discuss the sufficiency of the evidence to support the implied finding that there was an existing county road at the intersection of what is known in the record as Goodwin’s East line and the district’s main canal; or the sufficiency of the evidence upon the issues of the present condition of existing bridges, or the necessity for repairs or replacements therein; nor shall we pass upon the matter of mandamus requiring the district officials to do the things commanded in the judgment below. The whole case is relegated to the Court below, to which end the judgment will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

On Appellees’ Motion for Rehearing.

Both parties have filed motions for rehearing, and we have again reviewed the record in view of those motions. We adhere to the conclusions of law arrived at in the original disposition, but further consideration of the record requires readjustment and application of some of the facts of the case. To that end we have concluded to modify some of the original findings, and conform the remedies to those modifications, without attempting to here restate the whole case.

It was' stipulated by the parties below that the following county roads were in existence and in necessary use by the public at the time the District constructed its main canal across said roads:

1. Ojo de Agua or Abram Road.

2. Calvin Greene Estate Road.

3. Road between Porciones 50 and 51.

4. Mission Groves Estate or Dunbar Road.

5. Inspiration Boulevard.

It was further stipulated that at the time its canal intersected those roads the District constructed, or caused to be constructed, bridges over all of said roads and that all such bridges “have become worn out and have fallen into a state of disrepair and dilapidation so that same are now in bad condition and need of repair or replacement. It is now necessary that each of said. bridges be repaired or replaced with a new structure, so as to make each of the crossings safe and convenient for public travel.” In addition to those stipulations the trial judge found, specifically, and upon sufficient evidence, that another road, the Goodwin East Line Road (No. 6) “was (1) a public or county road in use at the time the defendant District’s Main Canal was constructed; (2) that no bridge was constructed by defendant District at the point where this road was intersected by the Canal; and (3) that the road continued down to date to be used by the public, although obstructed by the Canal,” and, by necessary implication, that a bridge at said crossing was necessary for the safety and convenience of the public. We must adopt those stipulations and findings as our findings of fact in the case.

Applying to those facts the law as announced in the original opinion, it was the duty and obligation of the District to build and maintain bridges over its canals at each of said crossings over county roads. The District did construct bridges at each of those crossings except the Goodwin East Line crossing, but refuses to keep those bridges in necessary repair, and refuses to construct a necessary bridge at the Goodwin East Line Crossing. In view of these' refusals, the trial court properly granted the writ of mandamus requiring the District to perform those obligations. McQuillan Municipal Corporations (2d Ed) §§ 2713, 2727; Orange County v. Canal Co., Tex.Civ.App., 143 S.W. 963; Miller v. State, Tex.Civ.App., 53 S.W.2d 838, writ refused.

On the other hand, the trial court erred in requiring the District to build and maintain bridges at the other two crossings involved, over county roads which were laid out and opened to public use after the District’s canal had been constructed, to-wit: Mile One North (No. 6) and Bent-sen Drive (No. 7), and in awarding judgment in favor of the County and against the District for monies expended by the County in constructing bridges at those crossings.

The case appears to have been fully developed in all its essentials, and in accordance with the foregoing conclusions, and under the law as pronounced in the original opinion, the judgment of the trial court requiring the District by writ of mandamus to complete and maintain bridges Nos. 6 and 7, and awarding a money judgment in favor of the County and against the District, will be reversed and in those respects judgment will be here rendered that the County take nothing and that the writ of mandamus be denied; but the judgment will be affirmed insofar as it awards writ of mandamus requiring the District and its officers to build and maintain a bridge at the Goodwin East Line Crossing, and repair and hereafter maintain the bridges at crossings 1, 2, 3, 4 and 5.

Affirmed in part and reversed and rendered in part.