text:
    SIMPSON et al. v. CHARITY BENEV. ASS’N, Inc.
    No. 14184.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 28, 1941.
    Rehearing Denied March 28, 1941.
    W. J. Durham, of Sherman, for appellants.
    Clark, Craik, Burns & Weddell and J. Harold Craik, all of Fort Worth, for ap-pellee.
   BROWN, Justice.

This suit was brought by G. A. Simpson and H. E. Hall against the Charity Benevolent Association, a corporation, in trespass to try title.

A jury being demanded, the trial court instructed the jury to return a verdict for the defendant, and this verdict is dated March 14th, 1940.

On March 28th, 1940, the trial court rendered judgment for the defendant; which judgment recites that the plaintiffs excepted in open court and gave notice of appeal to this Honorable Court of Civil Appeals.

The plaintiffs prepared and filed a motion “to set aside the judgment of the court and to grant a new trial” on March 22nd, 1940, six days before judgment was rendered by the trial court.

These plaintiffs filed no other motion for a new trial, and the trial court overruled the said motion on April 10th, 1940, at which time the plaintiffs excepted and gave notice of appeal.

The cost bond for the appeal was executed and filed May 1st, 1940.

At the outset we are confronted with a request to dismiss the appeal because the Court of Civil Appeals has no jurisdiction of the cause.

Appellants have made no reply to such proposition, and we are of opinion that a reply would be useless.

This cause was tried in the 17th District Court of Tarrant County, and said court is governed by Article'2092 (Vernon’s Texas Civil Statutes). This Special Practice Act provides that all motions for a new trial must be filed within ten (10) days after judgment is rendered. A litigant who desires to rely upon his motion for a new trial as the basis of his appeal must comply with this prerequisite. He cannot file any such motion before judgment is rendered and rely upon such prematurely 'filed motion. Not being able to rely upon the motion for a new trial, appellants were relegated to the provisions of said Practice Act which require that an appeal bond shall be filed within thirty (30) days after judgment is rendered. The appeal bond was filed thirty-four (34) days after rendition of judgment.

We refer to our opinion in National Consolidated Bond Corporation v. Burks et ux., Tex.Civ.App., 114 S.W.2d 280, which was affirmed by the Supreme Court in 134 Tex. 236, 132 S.W.2d 851. In the opinion, the Supreme Court cites its prior opinion in Houston Lighting & Power Co. v. Boyd, Judge, et al., 131 Tex. 323, 115 S.W.2d 593.

See, also, City of Wichita Falls v. Brown, 119 S.W.2d 407, writ dismissed, a prior decision made by us.

We have acquired no jurisdiction because the appeal was not perfected within the statutory period.

The appeal is dismissed.

On Motion for Rehearing.

There is nothing in the record even tending to show that the trial court rendered judgment in this cause prior to the date the judgment was reduced to writing and when the trial court incorporated in such judgment, above his signature, the words: “Entered this 28th day of March, 1940.” These are the words of the judge and not those of the clerk.

We hold that judgment was rendered on the date above shown.

We are not concerned, here, with the difference between the' rendition, or pronouncement, of a judgment and its filing with the clerk, or its actual entry in' the minutes of the court by the clerk. That question is not presented by the record.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: BLAIR, Justice.

license: Public Domain

text:
    SUNSHINE BUS LINES, Inc., v. RAILROAD COMMISSION et al.
    No. 9104.
    Court of Civil Appeals of Texas. Austin.
    March 12, 1941.
    Rehearing Denied April 2, 1941.

      Everett L. Looney, of Austin, and Barnes & McElroy, of Terrell, for appellant.
    Carl L. Phinney, of Dallas, Carlisle & Henry, of Kaufman, and Wheeler & Wheeler, of Austin, for appellee H. A. Wimpee.
    Gerald C. Mann., Atty. Gen., and Geo. W. Barcus and Glenn R. Lewis, Asst. Attys. Gen., for appellee Railroad Commission.
   BLAIR, Justice.

This litigation arose as an appeal under the Motor Carrier Act (Art. 911a, Sec. 17, Vernon’s Ann.Civ.St.) from the order of the Railroad Commission granting appellee, H. A. Wimpee, a certificate to operate a motor bus service from Dallas to Van via Seagoville, Crandall, Gastonia, Kaufman, Ola, Cedarvale, and Canton, and return to Dallas over the same route. Appellant, Sunshine Bus Line, Inc., the operator of a bus service over the portion of the proposed route between Kaufman and Seagovilie, unsuccessfully sought in the trial court and here seeks to have the order granting the certificate declared invalid upon the following grounds or points:

1. Because in granting the certificate and in executing the order complained of, the Commission “did not act as a collective body, did not hold a meeting, but acted as individuals only; Commissioners Sadler and Smith purportedly executed said order and said certificate, but not as a result of any meeting, but separately and as individuals, at different times and at different places, Commissioner Sadler affixing his signature to same at Austin, the seat of government, and Commissioner Smith not affixing his signature at all, but to the contrary, his signature was affixed thereto in the office of the Railroad Commission at Austin by his private secretary, Mrs. Perie Stevenson, when he was absent from said office and out of Austin.”

2. Because the order “did not result from a regularly scheduled or called meeting of.the Railroad Commission, but was held at Marlin, Texas attended only by Commissioners Smith and Sadler, of which purported meeting Commissioner Thompson did not have notice, he did not attend.”

3. “Because the testimony before the Commission failed wholly to show that the public necessity existed for the service proposed by appellee Wimpee, and it wholly failed to show that the existing service over such route was inadequate.”

Neither of these contentions is sustained.

The application for the permit was filed January 24, 1940, and was set for and a hearing held at Kaufman on February 20th and 21st, 1940, before the duly appointed examiner of the Commissioner. The testimony taken at this hearing was reduced to writing in question and answer form by the official reporter of the Commission, which was completed on March 16, 1940, and was through, the proper officials of the Commission delivered to Commissioner Sad-ler on that date. Commissioner Sadler testified that Commissioner Smith became ill about the middle of February, 1940, and was confined to his'home in Austin and in a hospital at Marlin for several months, during which time he did not come to his office in Austin; that Commissioner Thompson was absent from his office most of the time .of the consideration of the application in question, and from those in his office witness was unable to obtain any information as to his whereabouts; and that for this reason he was compelled to confer with Commissioner Smith either at his home or in Marlin about all matters coming before the Commission; that upon receipt of the transcript of the testimony in the instant case he read it, and on the following day took it to the hospital at Marlin; that prior to that time he and Commissioner Smith had discussed the application at least twice; that on March 17, 1940, he took the matter up with Commissioner Smith at the hospital in Marlin, discussed the testimony with him at length, Smith not reading it because of illness; that on that occasion he and Commissioner Smith went fully into the matter together and mutually agreed and determined to grant the application for the certificate; and that on this occasion and all occasions during the illness of Commissioner Smith, they transacted the business of the Commission in the same manner in those places- as they would have done in the offices of the Commission in Austin, or elsewhere.

Commissioner Sadler further testified that upon returning to Austin he caused the order to be prepared granting the certificate to appellee; that he signed it and Commissioner Smith’s name was affixed thereto by his secretary at Austin, under authority of Commissioner Smith. The certificate had affixed to it the signature of both Sadler and Smith, and no claim is made that Smith did not authorize the-signing of his name to all the instruments in question. Nor was it shown that the absent member was in any way displeased with the action of the Commission, nor that he would have been present if notified of the meetings at which the application of appellee was discussed and finally granted. A motion for a rehearing was filed by appellant, which together with the exceptions to the order granting the certificate and the application for oral argument were considered by Commissioner Sadler and overruled. That in accordance with the agreement between him and Commissioner Smith, he took the motion for rehearing up with Smith’s secretary, and asked her to call him about the matter by phone. The signatures of both Sadler and Smith were affixed to the order overruling the exceptions and motion for a rehearing, and the order was duly attested by the secretary of the department, Mr. Petet, as were all other orders involved in the application of appellee.

Art. 14, R.S.192S, provides: “The majority of any legally constituted board or commission, unless otherwise specifically provided, shall constitute a quorum for the transaction of business.”

The material portions of Sec. 12 of Art. 911a of the Motor Carrier Law provide: “ * * * The Commission or any member thereof, or authorized representative of the Commission, shall have the power to compel the attendance of witnesses, swear witnesses, take their testimony under oath, make record thereof, and if such record is made under the direction of a Commissioner, or authorized representative of the Commission a majority of the Commission may upon the record render judgment as if the case had been heard before a majority of the members of the Commission. The Commission shall have the power and authority under this Act (Art. 911a; P.C. art. 1690a) to do and perform all necessary things to carry out the purpose, intent, ,and provisions of this Act * * *, whether herein specifically mentioned or not, and to that end may hold hearings at any place in Texas which it may designate.”

The statutes do not require that notice of the meetings of the Commission to transact its business be given any of the Commissioners. Nor do they require that all members be present, but to the contrary provide, that two or a majority of the Commissioners may transact its business. The law assumes that each Commissioner will make himself available and will keep up with the business of the Commission, and also assumes that on many occasions all of the Commissioners cannot be present. The testimony of Commissioner Sadler showed such to be the situation in the instant case. The law also provides that; the Commission may hold its meetings to transact its motor bus business “at any place in Texas which it may designate.” Commissioner Sadler further testified that during the several months illness of Commissioner Smith they transacted by agreement all of the Commission’s business at the hospital in Marlin, except for two or three occasions when he and Commissioner Thompson held probation hearings in Austin. Since the Commission afforded appellant a full hearing on the application of appellee before the legally appointed examiner of the Commission, and since the testimony by him was reduced to writing and read by .Commissioner Sadler, and at a meeting of himself and Commissioner Smith the evidence and other matters were fully discussed and they at such meeting mutually determined that the certificate should be] granted, and so ordered, we think that the statutes under which the Commission acted were substantially complied with. Magnolia Petroleum Co. v. R. R. Commission, Tex.Civ.App., 127 S.W.2d 230, writ dismissed, correct judgment; Railroad Commission v. Rodgers, Tex.Civ.App., 57 S.W.2d 294.

We are further of the view that since the Commission made its decision at a meeting held for that purpose, the matter of signing or executing the order became a ministerial function which could be and as to Commissioner Smith' was delegated to duly appointed and acting subordinates in the office. 46 C.J., 1033, sec. 291b.

Nor do we sustain the contention of appellant that app.ellee wholly failed to show a public convenience and necessity for his proposed motor bus service, and wholly failed to show that existing service of such route was inadequate. Suffice it to say that only a portion of the route between Kaufman and Seagoville is covered by other bus service. Numerous witnesses living in the several other towns and villages along the proposed route testified that they had no motor bus service, and that the proposed service was needed and would be beneficial to them and a convenience to the people of the communities along the route. A district judge and court reporter testified that there was no direct service by bus from- Kaufman to Van and Canton; that such service was needed and would be used by them and was needed and would be a convenience to the people of the communities served by the proposed route. This testimony is substantial evidence sustaining the order of the Commission under the rule announced by the court in Railroad Commission v. Shupee, Tex.Civ.App., 57 S.W.2d 295, and Railroad Commission v. Rapid. Transit Co., Tex.Civ.App., 92 S.W.2d 261, and the cases there cited.

The evidence likewise sustains the order against the attack that existing service was not shown to be inadequate and that the operations under the certificate would constitute ruinous competition. Most of the proposed route is not now serve4 by any motor bus company, and much of the proposed service is not now being given by any existing company. It is true that appellant renders service over a small portion of the proposed route, but the adequacy of its service over the entire proposed route was a matter within the discretion of the Commission; and as said by this court in Texas Motor Coaches v. Railroad Commission, 59 S.W.2d 923, 926, “if, however, the service rendered over one route or highway is not adequate to meet the needs of adjacent territory which must be served over another highway, though between the same termini, it was a matter peculiarly within the realm of the commission’s functions to determine whether such public convenience could be best met by an operator between said termini already in the field or by granting a permit to, a competitor.”

The judgment of the trial court will be affirmed.

Affirmed.


author: WALKER, Chief Justice.

text:
    GOODRICH et al. v. SECOND NAT. BANK OF HOUSTON.
    No. 3801.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 13, 1941.
    Rehearing Denied March 5, 1941.
    Minton & Minton and W. F. Goodrich, all of Hemphill, for appellants.
    Smith, Smith & Boyd and George W. Brown, Jr., all of Beaumont, for appellee.
   WALKER, Chief Justice.

On the 31st day of March, 1939, appel-lee, the Second National Bank of Houston, filed this suit in the district court of Sabine County against appellants, W. F. Goodrich et al., praying for judgment with foreclosure on certain vendor’s lien notes described in the petition. We quote as follows from appellee’s original petition:

“The petition of The Second National Bank of Houston, Houston, Texas, complaining of W. F. Goodrich, Mrs. Bertha Sutor Goodrich, wife of W. F. Goodrich, Bertha Bailey Goodrich, a single woman, and Ernest Louis Goodrich, defendants, would respectfully show the following:
“Plaintiff is a national banking association organized and existing as aforesaid with its domicile and principal place of business in the City of Houston, Harris County, Texas.”
On the 15th day of May, 1939, appellee filed its first amended original petition, making new parties defendant, from which we quote: “Plaintiff, The Second National Bank of Houston, Houston, Texas, is a national banking association organized and existing under and by virtue of the Acts of Congress of the United States of America, with its domicile and principal place of business in Houston, Harris County, Texas.”

Appellants answered by plea in abatement:

“(a) * * * that the said The Second National Bank of Houston, Houston, Texas, alleged as plaintiff in this suit, as thus alleged in the original petition filed herein on March 31st, 1939, as appears from said original petition, was not then, and is not now, a party having legal ability and capacity, under the Laws of Texas and the Rules of Pleading and Practice of Courts of this State, to commence this suit and prosecute the same, as party plaintiff, as named, and set out in said original Petition and as such does not sue herein by authority and under any laws of Texas and of any Rules of pleading and practice of the Courts of said State, in any form or manner, or on any cause of action whatsoever, for which reason this cause ought to be abated and dismissed, for which defendants pray;
“(b) * * * a National Banking association duly and legally organized and incorporated, as such, under and by virtue of the laws of the United States, and failing to aver itself thus, as party plaintiff in said original petition, it is apparent from said petition and averments therein, there is not alleged the name of a party plaintiff, who, at the time of filing of said original petition, or who is now, authorized and allowed under the laws of Texas and the Rules of Pleadings and Practice of the Courts of this to file said original petition as filed herein and to commence this suit.”
(c) The allegations of the petition did not constitute an allegation .or averment “of the name of a party plaintiff" with the power and right “to sue in * * * .any court of this State * * * said petition does not name a party * * * authorized to bring this suit.”

Appellants also answered by general and special demurrers, and by pleas of limitation against the notes.

On the allegations of appellee’s original and amended petitions, the notes in controversy were more than four years past due when the amended petition was filed.

On trial to the court without a jury, appellants’ plea in abatement and exceptions were overruled, and judgment was rendered in favor of appellee for the relief prayed for. The First National Bank of Beaumont, named as one of the defendants, on its answer was given judgment against appellants with foreclosure for the amount due on certain notes of the same series plead by appellee. The trial court filed conclusions of fact and law. Appellants have prosecuted their appeal without a statement of facts.

The only point presented by appellants in their brief is the contention based on their plea in abatement and exceptions that ap-pellee’s original petition named no person, natural or corporate, “having a legal right and power to sue and commence and maintain suit in the courts of Texas.” Appellants make the point that the petition was bad on general demurrer because there was no allegation that appellee was a corporation duly incorporated under either the laws of the United States or of this State.

We overrule appellants’ assignments. Appellee’s allegations in its original petition, giving its name as “The Second National Bank of Houston, Houston, Texas, * * * a national banking association organized and existing as aforesaid, with its domicile and principal place of business in the City of Houston, Harris County, Texas” were a sufficient designation, of ap-pellee as a corporation to give the court jurisdiction of it as a national bank duly incorporated under the Acts of Congress. On this very point in First National Bank of Jacksonville v. First State Bank of Jacksonville, 291 S.W. 206, 207, the Commission of Appeals, writing for our Supreme Court, said: “ * * * jn other words, we are of the opinion that the name ‘the First National Bank of Jacksonville, Tex.,’ does import and necessarily carry with it the meaning that the institution referred to was a national bank chartered under the laws of the United States.” Peerless Oil & Gas Co. v. Gulf Oil Corporation et al., Tex.Civ.App., 112 S.W.2d 1083, clearly distinguishes the case at bar and the case cited above from the line of authorities cited by appellants. As also supporting our conclusion we cite Dobbs v. Smith & Davis Mfg. Co., Tex.Com.App., 291 S.W. 208; Lewis v. Malouf Motor Company, Inc., Tex.Civ.App., 116 S.W.2d 872.

It follows that the judgment of the lower court should be affirmed and it is accordingly so ordered.

Affirmed.


author: SUTTON, Justice.

text:
    MILES v. UNITED SERVICES AUTOMOBILE ASS’N.
    No. 4055.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 27, 1941.
    Rehearing Denied March 20, 1941.

      Claud J. Carter, of San Antonio, for appellant.
    Max H. Wier and Trueheart, McMillan & Russell, all of San Antonio, for appellee.
   SUTTON, Justice.

This is an appeal from one of the District Courts of Bexar County. The parties will be designated here as in the trial court.

The plaintiff, Alfred Hart Miles, sued the defendant, United Services Automobile Association, a reciprocal insurance exchange, under the laws of Texas, with its principal .place of business at Fort Sam Houston, Texas, to recover damages in the sum of $1,569.70 on what is described as a “Government Service Policy.” The trial was to a jury. At the conclusion of all the testimony the trial court instructed a verdict for the defendant and rendered judgment for it. From that judgment the plaintiff has perfected this appeal.

'Plaintiff was a retired naval officer and his wife was a granddaughter of President John Tyler, the tenth President of the United States. Plaintiff delivered three trunks, one box and one crate of files to the Naval Government Transport Antares, at San Pedro, California, to be transported to the Naval Base at Norfolk, Virginia. The trunks and boxes contained a large number of articles of bed and table linens and covers; many separate articles of wearing apparel; photographs and souvenirs, including ivory, hand-painted miniatures of President John Tyler and his wife. The scuppers (gutters and drain pipes) of the ship became choked and stopped up. While the boat was passing through the Canal Zone, it was caught in very heavy rains. The water backed up into the Lieutenant’s Storage Room on the second deck aft on the port side, where the trunks and boxes were placed for shipment, to a depth of some eighteen inches. The property remained in the water for some thirty days, and all of it was largely ruined. The plaintiff alleged the usual, customary and proper place for such property while being thus transported was in the holds of the boat, and had it been so placed it could not have been damaged as it was; that it was misplaced in the Lieutenant’s Storage Room and hence the damage and loss.

It was agreed on the trial that the plaintiff’s property was transported and damaged in the manner and to the extent claimed by him.

The defendant defended and sought to avoid liability on two grounds: (1) That the coverage clause of its policy did not cover the character of loss and damage sustained by the plaintiff; and (2) that the placing of the property in the Lieutenant’s Storage Room was not a misplacement of it during the shipment but was a usual, customary, proper and safe place when there was no room in the holds of the ship for it.

The coverage clause of the policy is as follows: “Subject to the exclusions hereinafter set out, this policy insures the subscriber * * * against destruction of or damage to the property described in the insuring clause hereof, arising as a result of Fire and/or Lightning, and loss arising as a result of the following named hazards of Transportation: (Transportation Defined.) Loss resulting from the loss, mis-shipment or misplacement of boxes during the shipment and/or loss resulting from the stranding, burning, sinking, collision or derailment of the carrier upon which the insured goods are being transported.”

Plaintiff presents seven assignments of error, but the substance of them all is that the court erred in instructing the verdict and rendering the judgment against him based upon the court’s construction of the contract. In this we think plaintiff is correct.

The differences arising between the plaintiff and the defendant and the determination of this appeal depend upon the construction of these words found in the above quoted coverage clause: “Loss resulting from the loss, misshipment or misplacement of boxes during the shipment.”

The defendant briefs two counter propositions, and in those it asserts that the unambiguous coverage clause: “Loss resulting from the * * * misplacement of boxes during the shipment,” in the policy protects only against the physical loss of the property; that is, that before the plaintiff is entitled to recover under the terms of this policy, he must show that the goods were entirely and permanently lost to him to the extent that they could not be found. This construction substitutes for the words “misshipment” and “misplacement” the word “loss.” In other words, it calls for a repetition of the word “loss” three times, and limits its liability for the physical and permanent loss of the property. If this were true, then the use of the words “misshipment or misplacement of boxes during the shipment” is wholly unnecessary and superfluous. Had it been the intention and purpose to insure only against loss, then the only language necessary to use would have been “loss resulting from the loss.” The first use of the word “loss” in this clause is synonymous with damage or injury, the three words meaning the same thing. Webster’s newest International Dictionary gives damage and injury as the synonyms for loss. Among the insurance fraternity the word “loss” is used to describe injury, damage, etc., to iproperty or persons injured; whereas, in railway parlance, the word “damage” is used to describe injury or loss to property; and in industrial insurance an injury done Ito persons, the word “injury” is employed Ito describe loss or damage. We have been lunable to find any better definition than [that given by Webster’s New International Dictionary for “loss,” which is: “Destruction of or damage to the subject insured; or the death or injury of an insured person by the perils insured against in such a manner as to charge the insurer with a liability under the terms of the policy.”

The losses are classified as total, partial, and constructive total.

He defines the word “misplace” thus: “To put in the wrong place or position, to mislocate.”

The plaintiff cites no case involving the misplacement of property in transit. ■

The defendant in its brief says a careful search of the authorities has revealed two cases in which the courts have construed insurance policies containing a clause covering loss through misplacement, and cites Manufacturers’ Nat. Bank v. United States F. & G. Co., 245 N.Y. 55, 156 N.E. 94, and New York Trust Co. v. Royal Indemnity Co., 233 App.Div. 408, 253 N.Y.S. 154.

In the first case cited there was a loss to the Bank because one of its officers temporarily misplaced a customer’s subscription warrant so that the customer’s right to subscribe to certain bonds lapsed. The second .case was apparently covered by a similar policy.

We have found another case between the same parties involving the misplacement of another customer’s subscription warrant to the same bonds, and with the same result. Manufacturers’ Nat. Bank v. United States F. & G. Co., 218 App.Div. 455, 218 N.Y.S. 332.

In the first case cited by the defendant a divided court, in which four concurred in the judgment rendered, three dissented, and one did not sit, held in effect that before the Bank was entitled to recover it must show a permanent physical loss of the instrument, and that the mere misplacement of it temporarily was not sufficient.

In the case found by us, supra, the court held, with one Judge dissenting, that the misplacement of the subscription warrant and the discovery of it after it became worthless was a loss of the instrument within the meaning of the policy, and therefore permitted a recovery.

The holding in the last case cited by the defendant was the same as in the first.

Each of these three cases, however, is wholly different from the case here under consideration. The coverage clause in the cases cited is as follows: “The underwriter hereby undertakes and ‘ agrees to indemnify the insured and hold it harmless from and against any loss * * * of money, * * * certificates, warrants, * * * through robbery, larceny (whether common-law or statutory), burglary, theft, holdup, misplacement, * *

The word “misplacement,” as used here, we think, is synonymous with “loss.” In any event, the undertaking was to insure against the loss of property through any of the means enumerated.

In the first case cited by the defendant the court there defines “misplacement” to mean “to put a thing in the wrong place, or to locate unsuitedly.”

In the case cited by us in 218 N.Y.S. 332, at page 334, par. 2, the Court says: “The meaning of ‘misplacement’ cannot be questioned; It means ‘put in a wrong place.’ ”

These definitions are essentially that given by Webster, and are the meanings that are commonly and ordinarily given the term.

The plaintiff in his petition pleaded the whole of the insurance contract, but specifically pleaded his damage, loss or injury under this provision: “Misplacement of boxes during the shipment.”

We regard the language of the coverage clause altogether unambiguous, and think the last quoted language covers the loss, injury or damage sustained by the plaintiff.

A well known rule of construction applicable to insurance policies, and one which requires the citation of no authority, is, if the language be clear and unambiguous, the words used will be given the usual and ordinary meaning; but if ambiguous and difficult of construction, you may look to the situation of the parties at the time, and the contract will be liberally construed in favor of the insured and against the insurer. Commercial Standard Ins. Co. v. McKinney, Tex.Civ.App., 114 S.W.2d 338; Metropolitan Life Ins. Co. v. Wilson, Tex.Civ.App., 102 S.W.2d 454; National Surety Co. v. Chalkley, Tex.Civ.App., 260 S.W. 216; State Life Ins. Co. v. Barnes, Tex.Civ.App., 58 S.W.2d 189; Bergholm v. Peoria Life Insurance Co., 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416.

It has also been held that where the language is susceptible of two constructions, the construction most favorable to the insured will be adopted. Standard Accident Ins. Co. v. Cherry, Tex.Civ.App., 48 S.W.2d 755, writ refused; American Natl. Ins. Co. v. Jones, Tex.Civ.App., 83 S.W.2d 428, writ refused.

If we should, therefore, be mistaken in our conclusion that this language is unambiguous, these rules, nevertheless, cover the situation.

This was a “Government Service Policy.” We take it the defendant’s principal source of business is from those in the Government service and who ship their belongings by Government transport, and therefore have no protection, because of the absence of liability on the part of the Government. The purpose of such shippers is apparent—to get the protection the ordinary shipper has in the usual liability of a common carrier for loss, injury or damage to property sustained in transit. If an insurer with this defendant be limited to a total, physical and permanent loss of his property, and if that is a proper construction of this coverage clause, there would be little incentive for taking it, and its business would soon, we anticipate, drop very low.

It necessarily follows from what has already been said that we have reached the conclusion the case must be reversed. With a degree of reluctance, we have concluded, under the facts and circumstances here, the question of whether or not the Lieutenant’s storage room was a wrong place, and the property, therefore, misplaced during the shipment, is one of fact for the jury.

The plaintiff testified in the case that he had been a naval officer from 1907 to 1935, and 'had had long experience on Government transports such as the Antares, and that he had never in all of his experience known property of this kind and character to be placed in the Lieutenant’s storage compartment, or in any place other than the hold of the boat, and that had they been so placed, his goods could not have sustained the damage in the manner as they did; that in the hold they could not have been damaged except through the stranding, burning, or sinking of the boat. Of course, there is no question as to that manner of injury. On the other hand, Commander Hoffecker, of the transport Antares, testified in the second deposition that there was no space available in the cargo holds of the ship for the articles belonging to Commander Miles, and' that by reason thereof they were placed in the Lieutenant’s storage compartment, and that such place was the usual and customary place to put them when the cargo holds were full; that the place was a reasonably safe place to put them.

Under these circumstances, we have concluded the case should be reversed and remanded . for a new trial, and it is so ordered.


author: COMBS, Justice.

text:
    HEARD et al. v. STATE et al.
    No. 3770.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 13, 1941.
    Rehearing Denied March 12, 1941.
    Geo. D. Neal, Sears, Blades, Moore & Kennedy, and Hunt & Lawler, all of Houston, and J. Turner Vance, of Refugio, for appellants.
    Harry Shuford, Peter Maniscalco, and D. D. Mahon, Asst. Attys. Gen., Gerald C. Mann, Atty. Gen., Jas. Noel and R. E. Kepke, Asst. Attys. Gen., and Terrell, Davis, Hall & Clemens, of San Antonio, for appellees.
   COMBS, Justice.

This is an appeal from an order overruling appellants’ pleas of privilege. It was appealed to the Austin Court of Civil Appeals and is before us on transfer by the Supreme Court.

Appellees, the State of Texas and the Town of Refugio, Texas, joined as plaintiffs in instituting this suit in the District Court of Travis County. The petition was in the form of trespass to try title wherein the plaintiffs claim to be the owners and entitled to the possession of certain lands a part of the Mission River bed in Refugio County, Texas. The Town of Refugio claims an undivided interest in the land with the State, the amount of which is to be determined. See Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728. The appellants as defendants filed separate pleas of privilege invoking the provisions of Subdivision 14 of Art. 1995, Vernon’s Ann.Civ.Stat., which fixes the venue of suits for the recovery of lands in the county in which the land, or a part thereof, may lie. The trial court overruled the several pleas of privilege and the defendants have appealed.

Opinion

A question is raised that the State did not controvert the plea of privilege of one of the defendants within the time allowed by statute. However, this' point is immaterial in view of the fact that this case is to be determined by the pleadings, as will' hereinafter appear.

The only, material question to be decided here is the sufficiency of plaintiffs’ petition to invoke the provisions of Art. 5420, Vernon’s Ann.Civ.Stat. which, prior to a recent amendment, fixed concurrent venue in Travis County of suits instituted by the Attorney General to recover “public lands” occupied or claimed adversely to the State. This article was amended by the Acts of 1939, Vernon’s Ann.Civ.St. Tex. art. 5420, so as to require such suits to be filed in the county where the land is situated. But the present suit was pending at the time of the amendment and is not affected by it.

Venue of suits under Art. 5420, as it existed prior to the amendment, is to be determined by the character of the action as disclosed by the allegations of the petition. The petition being sufficient on its face to show that the suit is for the recovery of public lands or lands belonging to any fund of the State fixes the venue in Travis County. Yates v. State, Tex.Civ.App., 3 S.W.2d 114, 115. This proposition is conceded by appellants. But they contend that the State’s petition in this case nowhere alleged that the land sued for is “public lands” .or that it belongs to any “fund” of the State; and that since a mere conclusion of the pleader cannot change or enlarge the legal effect of the facts alleged (Blaisdell, Jr., Co. v. Citizens’ Nat. Bank, 96 Tex. 626, 75 S.W. 292, 62 L.R.A. 968, 97 Am.St.Rep. 944) the plaintiffs’ “legal conclusion” that the State is “owner” of the land sued for was insufficient to bring the case under Art. 5420 as a suit for “public lands.”

It is true that plaintiffs’ petition nowhere used the term public lands or referred to the lands sued for as belonging to the school fund or any fund of the State. Nevertheless, we think the petition on its. face did allege facts which were sufficient, when given their legal effect, to show that the nature of the suit was one for the recovery of public lands and damages thereto. The petition alleged that plaintiffs are-“the owners in fee simple” of the land described and that their possession thereof was ousted January 2, 1937, by the unlawful entry of the defendants, who withhold plaintiff’s possession to their damage, etc. The description of the lands sued for describes each of the two tracts as being a portion of the Mission River bed. The field notes set forth in the pleading show that the lines cross and re-cross the river and enclose part of the Mission River bed in Refugio County, Texas.

By the terms of the statute, Art. 4026, Vernon’s Ann.Civ.Stat. the public rivers, “together with their beds and bottoms”, are the property of the State. See Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728. The statute which makes the bed of the Missio'n River the property of the-people of this State — and hence public, land — -is as much a part of plaintiffs’ petition as though it had been alleged therein.. To have pleaded that the part of the Mission River bed sued for as belonging to the State was “public land” could have added nothing which was not fully disclosed by the legal effect of the facts alleged. The character of the action as being a suit brought by the Attorney General for the recovery of public lands was apparent upon-the face of the petition and the trial court properly overruled the pleas of privilege-

judgment affirmed.


author: PRICE, Chief Justice.

text:
    COSNER v. HANCOCK.
    No. 3920.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1941.
    Rehearing Denied March 20, 1941.
    Neil E. Beaton and W. H. Kennon, both of San Antonio, for appellant.
    H. M. Parker and Boyle, Wheeler, Gresham & Terrell, all of San Antonio, for ap-pellee.
   PRICE, Chief Justice.

This is an appeal from one of the District Courts exercising jurisdiction in Bex-ar County. As plaintiff, J. C. Hancock, recovered against J. W. Cosner, defendant, a judgment in the sum of five thousand dollars. From this judgment defendant Cosner has perfected this appeal.

The parties throughout will be designated plaintiff and defendant, as they were in the trial court.

During the pendency of this appeal the Supreme Court, in the case of Kadane v. Clark, Tex.Civ.App., 134 S.W.2d 448, granted a writ of error. By agreement of the parties the final disposition of this case was postponed until the Supreme Court finally disposed of Kadane v. Clark, supra. In that case, as in this, the construction of the Securities Act, Vernon’s Annotated Civil Statutes, Art. 600a, §§ 1 to 29 and 31 to 38; Vernon’s Annotated Penal Code, Art. 1083a, § 30, was involved. The Supremé Court, in the opinion handed down in that case (135 Tex. 496, 143 S.W. 2d 197) reversed the judgment of the Court of Civil Appeals, and rendered judgment in favor of the defendant.

Plaintiff, for cause of action, pleaded that he was not a dealer or salesman under the Securities Act; that the defendant was the owner of a balance remaining under a certain oil payment originally in the sum of one hundred thousand dollars to be paid to defendant from an undivided one-sixth of the oil produced from a certain lease in Duval County, Texas; that defendant was desirous of selling said reserved payment out of oil, listed same with the plaintiff for sale at a price of fifty-five thousand dollars, and promised and agreed that in the event a sale thereof was effected within thirty days, the time specified in the agreement, that defendant would pay the plaintiff the sum of five thousand dollars for and on account of his services and as commission for effecting the sale; that on or about the 19th day of October, 1937, plaintiff procured for defendant a purchaser of said oil payment for fifty-five thousand dollars in cash, who was ready, willing and able to comply with the purchase; said contract of purchase being in writing and executed by the purchaser and by plaintiff as the agent of the defendant; that said sale was consummated and the fifty-five thousand dollars paid; but that the defendant failed and refused to pay plaintiff the five thousand dollars compensation agreed upon.

. Defendant answered by general exception, special exceptions, general denial, a plea that plaintiff, in making the contract as his agent, uad not guarded his rights and that the payment for the oil rights was made in compromise of a law suit filed against him on said purported contract. There was a further special plea that in carrying on the transactions between plaintiff and the purchasers, plaintiff came within the provisions of the Securities Act of Texas, as a dealer under the provisions thereof, and that plaintiff never had or obtained a license to act as a salesman under said Act, and he was not entitled to recover any compensation from defendant because of plaintiff's violation and noncompliance with the provisions of said Act.

Supplemental petition was filed by plaintiff consisting of a general exception, general denial, and a special exception following such general denial. Such special exception assailed that portion of defendant’s answer setting up a violation of the Securities Act.

The court overruled all special exceptions of the defendant, and sustained plaintiff’s exceptions one and two to defendant’s first amended original answer. To the sustaining of such exceptions defend7 ant duly preserved an exception in the judgment.

The case was tried to a jury. The issues submitted and the findings of the jury thereon were as follows:

“(1) Do you find from a preponderance of the evidence that the defendant, J. W. Cosner, on or about October 1, 1937, agreed to pay the plaintiff, J. C. Hancock, a commission of $5,000.00 in the event plaintiff effected a sale of the .oil payment in question within a period of thirty days from October 1, 1937, at a cash price of $55,-000.00? Answer ‘Yes’ or ‘No.’
“We, the jury, answer: Yes.
“(2) Do you find from a preponderance of the evidence that the plaintiff, J. C. Hancock, was the procuring cause of the sale of the oil payment in question to Keator and Peacock? Answer ‘Yes’ or ‘No.’
“We, the jury, answer: Yes.”

Judgment on this verdict was rendered, as before stated, in favor of the plaintiff.

The listing of the property with the plaintiff was in writing and as follows:

“San Antonio, Texas,
“October 1, 1937.
“Mr. J. C. Hancock,
“905 Alamo National Building,
“San Antonio, Texas.
“Dear Mr. Hancock:
“I hereby give you, as exclusive agent, for the purpose of sale for a period of thirty days from date the Oil Payment originally for $100,000.00 owned by me in the. Wendt Lease, Duval County, Texas. Price to be $55,000.00 for the balance in the account as at September 30, 1937.
“Very truly yours,
(Signed) J. W. Cosner
“HCH/H ' (Typed) J. W. Cosner”

On October 9, 1937, the following written contract was entered into between defendant and E. H. Keator, defendant purporting to act through the plaintiff as agent:

“The State of Texas,:
“County of Bexar.:
“J. W. Cosner, hereby' bargains, sells and conveys, and does by these presents bargain, sell and obligate himself to convey or cause to be conveyed unto E. H. Keator, who does bind and obligate himself to buy and pay for, the oil payment originally for the principal sum of one hundred thousand dollars ($100,000.00) reserved by him in transfer to E. H. Keator and C. A. Peacock of date July 1st, 1937, on what is known as the R. Wendt lease, 160 acres, being on the northeast one-fourth (l/4th) of Survey 43, J. Poitevant, in Duval County, Texas, and being reserved out of one-sixth (l/6th) of the seven-eighths (7/8ths) W. I. and being the balance owing thereon as of October 1, 1937, 7:00 A. M.
“The consideration is the sum of fifty-five thousand dollars ($55,000.00) cash to be paid upon execution and delivery of a good and sufficient transfer, with warranty of title, conveying same.
“Sale is to be made free and clear of all liens and claims of every kind and character and to vest good title thereto in the vendee.
“The deal is to be closed as soon as possible, but not later than fifteen (15) days from date.
“Executed October 9, 1937.
“(Typed) J. W. Cosner
“(Signed) By J. C. Hancock, Agent
“(Signed) E. H. Keator, Purchaser.”

On or about the 29th day of October, 1937, defendant executed a conveyance of the oil payment to E. H. Keator and C. A. Peacock, receiving as consideration the sum of $55,000. It was not until after the purchaser procured by plaintiff had instituted suit for specific performance that defendant would transfer the oil payment to Keator.

Under the undisputed facts as developed by the evidence, and considering the verdict of the jury equivalent to facts, we can see no reason why this case should not b'e affirmed, unless a violation of the Securities Act was shown on the part of the plaintiff, and he is debarred thereby from recovery.

It is true that the court struck from defendant’s answer this plea. However, plaintiff’s own petition sought to show that the Securities Act did not apply to him. The plaintiff’s petition shows the nature and character of the property dealt with, his actions with reference thereto, out of which his asserted cause of action arose. The special exception contained in plaintiff’s supplemental petition amounts to nothing more than a general exception.

In view of the fact that the evident theory of the trial court and plaintiff that the Securities Act had no application to the facts as pleaded, we shall consider the case as thoiigh such special exception had not been sustained. In other words, if under the undisputed facts such Securities Act presents an absolute defense, the interests of the parties would not be sub-served by reversing and remanding the cause.

Throughout the course of this opinion we shall frequently refer to the case of Kadane v. Clark, 135 Tex. 496, 143 S.W.2d 197. In that case the provisions of the Securities Act applicable to the controversy here are set forth in full, and we shall not burden this opinion with reproducing the Act ’ in question. However, there are two provisions thereof which we shall here reproduce. Subsection (c) of Section 2 of the Act is as follows:

“(c) The term ‘dealer’ shall include every person or company, other than a salesman, who engages in this State, either for all or part of his or its 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, or dealing in any other manner in any security or securities within this State. * * * ”

Section 3 provides for exemptions from the Act. Subsection (c) thereof is as follows: “(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, provided, that in no event shall such sales or offerings be exempt from the provisions of this Act when made or intended; either directly or indirectly, for the benefit of any company or corporation within the purview of this Act.”

The penal provisions of the Act are to be found in .Vernon’s Annotated Penal Code, Art. 1083a. Section 30 thereof is the section invoked here.

This Act came before the Court of Civil Appeals of Galveston in the case of Culver v. Cockburn, 127 S.W.2d 328, 330. In that case it was. alleged defendant had agreed to pay plaintiff a commission of ten per cent to procure a purchaser of oil and gas lease on land belonging to him. Suffice it to say that it was established by the verdict and by the undisputed evidence that defendant did make such agreement with plaintiff and that as to one oil or gas lease did procure T. Berthelsen to accept same. Judgment was entered on the verdict in favor of the plaintiff, and defendant appealed. The undisputed facts show that the defendant was the owner in fee of all mineral rights and the surface, and it was the sale of an oil lease in a sense that plaintiff induced Berthel-sen to enter into an oil and gas lease with defendant. Chief Justice Monteith in the course of the opinion set forth numerous provisions of the Securities Act. The case can be best understood by quotation of a portion of that opinion:

“The record of the facts, in this case shows that appellant was the owner of both the fee and the mineral title to the land on which the lease under consideration was made; that appellee’s activities as a dealer in oil and gas leases were incidental to his employment by the Cockburn Oil Corporation, and that his employer had no connection therewith; that he had made only two other sales besides the one under consideration; that no certificate or other evidence of ownership of said lease was issued to appellee, and that he was, in fact, not present when the sale of said lease was closed and the lease delivered to Berthelsen, the purchaser thereof. The jury found that appellee was the procuring cause of the sale of said lease to Berthel-sen and that appellant had agreed to pay appellee a commission of 10% of the purchase price thereof. No permit or certificate under the Securities Act was issued to either appellant or appellee.
“Under the above facts, we think that appellee was neither a dealer, nor was said lease such a security as to require appellee to secure a permit under said Act in order to contract with appellant for the payment of compensation for his services in procuring a purchaser of the lease under' consideration.”

The case further held that under subsection (c) of Section 3, the Securities Act did not apply. Writ of error was applied for in this case. The Supreme Court dismissed the application, noting on the docket: “Correct Judgment.”

The above case is not referred to in the case of Kadane v. Clark, supra.

In the case of Culver v. Cockburn, supra, the plaintiff was not the owner of the land upon which he procured the oil and gas lease. The defendant, as we have said, was the owner of the fee in both surface and minerals until he gave the lease to the lessee procured by the plaintiff there.

The facts, as set forth in the opinion of the Court of Civil Appeals and Supreme Court, in the case of Kadane v. Clark, supra, are substantially as follows:

Plaintiff was a geologist, and claimed to have sold an oil and gas lease for defendants on 200 acres of land in Wichita County, Texas. Under the facts and the verdict defendants listed the oil and gas lease with plaintiff, and plaintiff was the procuring cause of the sale. Among other things, defendants pleaded the failure of plaintiff to comply with the Securities Act, and thus sought to defeat his cause of action. The Court of Civil Appeals reversed and remanded the cause, but found against the defendants as to the defense that plaintiff was not entitled to recover on account of failure to comply with. the Securities Act. The decision of the Court of Civil Appeals in this respect seems based on two holdings: (1) That the acts of plaintiff came within Section 3(c) of the Securities Act, exempting sales of securities made by or on behalf of a vendor, etc.; (2) that the oil and gas lease in question was not a security within the meaning of the Act. In- support of these two holdings the case of Culver v„ Cockburn, supra, was cited. In the course of the opinion it is sought to distinguish the case of Atwood v. State, 135 Tex.Cr.R. 543, 121 S.W.2d 353. The distinction was that the facts involved were materially different in that case from those in the case the court had before it. The case of Culver v. Cockburn, supra, was deemed to involve a more similar situation to the one before the court, and, having the sanction of the Supreme Court of a correct judgment, and coinciding with the views of 'the court, was followed. The Supreme Court reversed the judgment of the Court of Civil Appeals and rendered the case in favor of the defendant. It was held by the Supreme Court that an oil and gas lease was a security within, the meaning of the Securities Act. In this respect the specific provisions of the Act in question were held to make it such. The two decisions of the Court of Criminal Appeals were cited. Atwood v. State, supra, and Muse v. State, 137 Tex.Cr.R. 622, 132 S.W.2d 596.

It seems to us that if the assignment of an oil and gas lease is a security, that the rights sold by plaintiff here are such security, and we so hold.

In Kadane v. Clark, 135 Tex. 496, 143 S.W.2d 197, 199, Judge Sharp, in discussing, we think, the holding of the Court of Civil Appeals that on account of Section 3(c) the Act in question did not apply, said: “It is also undisputed that plaintiff was neither the owner of the fee nor interested in the title to the oil and gas leases which he claims to have sold.”

We think involved in that language is the construction that Section 3(c) applies to the owner of the security; that he is not a dealer if he sells for the purposes named, either in person or through another, a personally owned security — , provided, of course, he is not in that general business. The sale or contract of sale made under such circumstances, whether by the owner or another, is in all respects legal and enforceable. It is not held, however, we think, that if the one effecting the sale for such a vendor is an unlicensed dealer under the Securities Act that he would be entitled to compensation for his services.

We have heretofore in this opinion, as was done in' all the ©pinions discussing this Act we have cited and discussed, given the definition of a dealer. This definition is very broad. If one attempts to sell, as a business, securities for himself or others, he comes within the definition of a dealer within the meaning of the Act. Of course, this would not be true were such a- one a salesman within the meaning of the Securities Act. A salesman is one employed by a dealer to sell, offer for sale or delivery, or solicit subscriptions to or orders for, or deal in any other manner, in securities within the State. Section 2(d).

Under the authority of the holding by the Supreme Court in Kadane v. Clark, supra, we feel constrained to hold that the oil payment was a security; that same was not by virtue of Section 3(c) exempted from the operation of the Securities Act.

There remains the question for decision as to whether plaintiff was a dealer within the meaning of that Act. Under the undisputed evidence plaintiff had no license as a dealer. If he was such, he cannot recover compensation for selling the i oil payment reserved by defendant from the prior assignment of an oil and gas lease. Under the evidence plaintiff was an income tax auditor for various oil companies. He had been previously employed by the defendant in connection with income tax matters. Defendant seems to have been engaged in the business of drilling oil and gas wells. Previously he had been connected with the same corporation that the purchasers of the oil and gas payment had been connected. In our opinion, the evidence is insufficient to show that he was a dealer in securities within the meaning of the Act we are considering. Efis status in this respect is only important in determining the status of the plaintiff in the transaction involved. As an unlicensed salesman he, perhaps, could not recover on account of Section 30 of the Act. See Vernon’s Annotated Penal Code, Art. 1083a.

It clearly appears from the evidence that the sale of this security was the only activity along this line pursued by the plaintiff. Under plaintiff’s testimony, at least, he attempted to sell the oil and gas payment to two different parties, first to Mr. Graff, of the Bank, and then the successful effort to sell to Mr. Keator.

Under plaintiff’s pleading he was not a dealer or salesman under the Securities Act of 1935. Implicit in this allegation, we think, is the admission that he had not taken steps to become a licensed dealer.

In the case of Kadane v. Clark, supra, Judge Sharp mentions the fact that Clark (the plaintiff) testified that in November and December, 1937, he was active in undertaking to sell various oil and gas leases, then says: “It is undisputed that plaintiff had not qualified as a dealer in securities and had not procured a license under, the provisions of this law.” These facts resulted. in the decision that, under the law, plaintiff could not recover for his services.

The facts there are not exactly the same facts we have here. Plowever, the only dissimilarity that occurs to us is that plaintiff there had made several unsuccessful efforts to sell other leases; here, the transaction involved is the only one attempted. The question to be answered, then, is: Does this fact distinguish the instant case from the case of Kadane v. Clark, supra? We fail to see any substantial distinction between a person, for a consideration, effecting the sale of a security for another and effecting sales generally. It is true, that one is a transaction for a single purpose, the other a series of transactions. In the single transaction the same action is involved as in the series. There can be little difference between one casually selling securities for others or for another, and one making that his business. Such a distinction would cause the law to apply unequally and unfairly.

In our opinion the holding of the Supreme Court in Kadane v. Clark, supra, rules here. It is true, in that case one of the owners of the securities was a corporation. If that was a ground of denying the application of the exemption, it is not mentioned in the opinion.

Culver v. Cockburn, supra, we think, is distinguished from Kadane v. Clark, supra, and the case at bar, -in that there the owner contracted to pay the agent for obtaining one to lease land on terms satisfactory to him. Here, there is a sale of a security within the meaning of the applicable statutes involved. Most certainly the defendant contracted to pay plaintiff for services as a dealer or broker.

We hold that it indisputably appears from the record as a whole that plaintiff is not entitled to recover.

' It is ordered that the case be reversed and rendered in favor of defendant.


author: NORVELL, Justice.

text:
    LEWIS et al. v. CLARK.
    No. 10847.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 5, 1941.
    Rehearing Denied April 2, 1941.

      Wagner & Wagner and A. Milton Vance, all of Houston, and Dean B. Kirk-ham, of Corpus Christi, for appellants.
    Sidney P. Chandler, of Corpus Christi, for appellee.
   NORVELL, Justice.

This is an action for damages based upon an alleged conversion of certain tubing, casing, oil well tanks and equipment, located on an oil and gas lease. The controlling issue is one of title. Trial was to a jury and judgment rendered thereon in favor of appellee, G. C. Clark, against appellants, Coast Operating Company (a co-partnership composed of S. C. Lewis, H. E. DeLee and S. C. Lewis, Jr.), Houston National Bank of Houston, Texas, and Meyer C. Wagner, trustee.

Appellants’ first proposition asserts that the judgment of the trial court must be reversed as the record shows as a matter of law that the title to the property involved was vested in Coast Operating Company at the time of the alleged conversion.

Appellee claims to have acquired title to the property under an agreement of purchase from one J. B. Salmon. He also claims that he became the owner of said property by forfeiture; i. e., that said property was not removed from his lands within a reasonable time after the termination of the oil and gas lease hereinafter mentioned.

The record in the case is very voluminous, and no useful purpose would be served by an extensive discussion of the facts nor the multitudinous contentions of the parties. This case was before this court upon an appeal from a temporary injunction, and our opinion is reported ½ 129 S.W.2d 421. The facts and circumstances, stated briefly, which we regard as controlling are:

• On January 21, 1936, appellee, Clark, and wife,- as lessors, executed an oil and gas lease to S. M. Lippard covering certain lots in the City of Corpus Christi, Texas. The term was for one year and as long thereafter as oil or gas was produced in paying quantities. On March 4, 1936, Lip-pard and R. Y. Walker, as joint operators of the lease, entered into an agreement with J. B. Salmon whereby Salmon agreed to finance drilling operations thereon in consideration of an oil payment which was to terminate when the amount advanced had been repaid. Salmon also received an assignment of a portion of the working interest of the lease. Lippard thereafter assigned the lease to R. Y. Walker. Walker in turn assigned various portions of the working interest of the leasehold to several individuals. About the eighth day of April, 1936,__ Walker executed assignments, of the lease to J. B. Salmon. These assignments, however, specifically referred to the agreement of March 4, 1936.

On May 11, 1936, Lippard, Walker, Salmon and W. H. Harrison entered into a further agreement which recited that Salmon held title for the benefit of the various holders of portions of the working interest under the lease. Although this instrument possessed some of the characteristics of a trust agreement, its legal effect was actually to vest or confirm the title to various portions of the working interest in the contracting parties and others named in the instrument. To a certain extent it had the effect of abrogating the pri- or assignment to Salmon, and was a substantial modification thereof. In this instrument no reference was made to tubing, casing, oil well tanks and other equipment (referred to in the briefs as “trade fixtures”), nor to personal property used in connection with the lease. The assignment to Salmon did refer to and purport to convey “all personal property used or obtained in connection” with the lease.

At the time óf the execution of the assignment to Salmon, a drilling rig was on the - lease, but the trade fixtures here involved had not been placed thereon.

About October 1, 1936, Harrison purchased Walker’s interest in the lease. An assignment was executed from Walker to Harrison which did not specifically describe the trade fixtures here involved, but Harrison testified fully as to the terms of this transaction with Walker. This -testimony was not contradicted in any way, and it appears conclusively that it was the intention of the parties that Harrison should receive the personal property used in connection with the lease. As the trade fixtures then on the lease were personal property, an instrument in writing was not necessary to effect a valid transfer of Walker’s interest. 20 Tex.Jur. 218.

The evidence, including the written instruments above mentioned, to our minds clearly shows that Walker and Harrison, and then Harrison alone (after he had purchased Walker’s interest) w'ere the operators of the lease and owners of the trade fixtures used in connection therewith. They seem to have so been recognized by the Railroad Commission as well as all parties interested in the development of the lease. Although Salmon advanced the money to drill the lease, such advancements were made under the agreement above mentioned, whereby he was to be repaid but of oil produced as a result of drilling operations, and was to receive a certain portion of the working interest in the leasehold estate. He received no interest in the trade fixtures used in connection with the development of the lease. It follows that appellee could not 'have acquired title to the trade fixtures involved from Salmon, who had no title. We are of the further opinion that the agreement of purchase between appellee and Salmon under which appellee claims, was conditional in that it became effective only upon a contingency which never transpired, and for this reason also appellee’s claim under Salmon can not be upheld.

Appellants assert that on the date of the alleged conversions, Coast Operating Company was the owner of the trade fixtures involved as Harrison, on November 25, 1936, executed a deed of trust and chattel mortgage to Meyer C. Wagner, trustee for the benefit of the Houston National Bank, to secure a total indebtedness of $55,000. This mortgage covered Harrison’s interest in the Clark lease, as well as all “his personal property, boilers, pipes, engines, connections, casings and equipment, * * * upon, connectéd with or appurtenant to the leasehold * * * now situated thereon, or which may hereafter be placed thereon.”

Harrison defaulted in payment and on August 2, 1938, Wagner, as trustee, sold and conveyed the property covered by said mortgage or deed of trust to the Houston bank.

On August 17, 1938, the bank conveyed the property to H. N. B. H. Corporation, and on January 25, 1939, this corporation conveyed to' Coast Operating Company the trade fixtures here involved.

On February 4, 1939, the Coast Operating Company attempted to remove the trade fixtures here involved, but were enjoined by order of the district court. 'This injunction was dissolved by this court. See 129 S.W.2d 421, and on the day the opinion of this court was handed down,. May 10, 1939, the Coast Operating Company removed certain of the trade fixtures from the premises, and then on August 1, 1939, the balance of the fixtures were removed. These removals are the basis of appellee’s claims of conversion.

It will be seen that Coast Operating Company exhibited a regular chain of title from Harrison and as appellee’s claim under Salmon can not be sustained, the judgment appealed from must be reversed unless appellee’s theory of title by forfeiture be upheld. •

The evidence shows that three producing wells were drilled upon the lease, but that by September 1, 1937, very little or no production was being obtained. It is indicated that the lack of substantial production was due to a failure of gas pressure in the wells.

Appellee claims ownership of the property here involved under the provisions of the original lease, which he executed to Lippard and also under a surface lease which he had with Harrison.

The oil and gas lease provided that: “Lessee shall have the right at any time during or after the expiration of this lease to remove all property and fixtures placed by lessee on said land, including the right to draw and remove all casing.”

The surface lease was dated May 2, 1936, and its applicability to the trade fixtures involved is not clear.

Said lease contained the following provisions : •

“The lessees may remove any and all such improvements so placed uppn said land within a reasonable time after the termination of this lease, and provided further that this lease shall terminate within a reasonable time after production of oil or gas in paying quantities from and under said land shall cease, if such production. •ceases prior to said two-year period (the ■term of the lease).
******
“The lessees covenant and agree to and with the lessor that upon the termination of this lease, whether by lapse of time, or any other conditions or provisions contained herein, the lessees will peaceably and quietly yield up and surrender the leased premises, removing their improvements therefrom within a reasonable time, and upon the failure to remove such improvements within a reasonable time, it shall be considered that the lessees have abandoned same, and such improvements shall become a part and parcel of said land.”

If it, be considered that the surface lease did apply to the trade fixtures as well as buildings constructed on the surface in connection with the operations on the property, the legal situation involved is not ■changed in any way, for the reasons hereinafter stated.

Appellant contends that the oil and gas lease terminated on September 1, 1937 (this is doubtful but may be conceded for the present purposes), and that sixty days was a reasonable time for Harrison or those holding under him to have removed the trade fixtures. The jury found that the trade fixtures were not removed within a reasonable time after it was determined .that neither oil nor gas could be secured from the wells on the lease (September 1, 1937).

A reasonable time was defined as: “such length of time as may fairly and properly and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; that time which as rational men the parties to a contract ought to have understood each other to have in mind; that time which preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer.”

Bearing upon the issue of “a reasonable time,” the following facts are pertinent: On August 31, 1937, the appellee joined with others in filing a petition in the State District Court requesting that a receiver be appointed for W. H. Harrison, Inc., and for the properties of W. H. Harrison, individually, which were used in connection with the drilling and producing of oil. On September 7, 1937, said court appointed a receiver, as prayed for, and six days later appointed a successor to the original receiver. On September 16, 1937, in Bankruptcy Cause No. 39S, styled “In the Matter of W. H. Harrison, Inc., Debtor” (a 77 B proceeding 11 U.S.C.A., Sec. 207), pending in the United States District Court for the Southern District of Texas, Corpus Christi Division, an order was entered directing the temporary trustee to apply to the State District Court for an order directing the receiver appointed by the State Court to turn over the property held by him under such appointment to the federal trustee. The requested order was issued by the state court the following day.

By order dated March 4, 1938, entered in Bankruptcy Cause No. 397, pending in the federal District Court, W. H. Harrison was adjudicated a bankrupt, as of October 1, 1937, and on May 26, 1938, the federal court ordered the trustee in bankruptcy to abandon all further claim in and to the oil and gas leasehold estate owned by the bankrupt, together with all personal property used in connection therewith, upon a finding that such property was encumbered with liens in excess of its value, and was otherwise unprofitable to the bankrupt estate.

After the entry of the abandonment order, the Houston Bank proceeded with the foreclosure of its lien as hereinabove set out.

It appears that at the time the State receivership suit was filed against him, Harrison was attempting to drill a gas well off ■ the Clark lease in order to obtain gas with which to jet the wells situated upon said lease and thereby increase or bring back production. It further appears that the federal trustees also made attempts to increase or bring back production. In June and July, 1938, Meyer C. Wagner, as trustee under the Harrison mortgage and deed of trust, as authorized therein, caused well No. 1, on the Clark lease, to be reworked and jetting operations continued. These attempts at production were continued by the H. N. B. H. Corporation.

Appellee, in support of his theory of forfeiture, cites the following authorities: Terry v. Crosswy, Tex.Civ.App., 264 S.W. 718; Armstrong v. Federal Supply Co., Tex.Civ.App., 17 S.W.2d 170, and Meers v. Frick-Reid Supply Corporation, Tex.Civ.App., 127 S.W.2d 493.

In the first case mentioned, the Beaumont Court of Civil Appeals in construing a provision in an oil' and gas lease with reference to the right of removal of trade fixtures similar to the one here involved held that the failure to remove trade fixtures within a reasonable time resulted in a forfeiture, making them a part of the realty and vesting the owner of the fee with title thereto (loe. cit. 264 S.W. 720).

If we accept this construction of the provision of the oil and gas lease, it will be noted that it is similar to the express provisions in the so-called surface lease, in that both the oil and gas lease and the surface lease provide for a forfeiture. It is of course well settled that “forfeitures are looked upon with disfavor by the courts, and that the party to a contract claiming the benefit of a forfeiture clause must clearly show that the contract has been breached by the other party in the particular manner providing for a forfeiture.” Gulf Production Co. v. Cruse, Tex.Com.App., 271 S.W. 886.

In Armstrong v. Federal Supply Co., supra [17 S.W.2d 171], the Waco Court of Civil Appeals discusses the meaning of the term “a reasonable time” with reference to the right of removal of trade fixtures after an oil and gas lease has expired. The definition of “a reasonable time” given in 33 Cyc. pp. 1567, 1568, is approved, and is the definition hereinabove quoted.

In Meers v. Frick-Reid Supply Company, supra [127 S.W.2d 497], the court said: “That which constitutes^ a reasonable time is a question of fact or, at least, a mixed question of law and fact and depends upon the circumstances surrounding the case to which the principle is sought to be applied. What would be a reasonable time in one case might be wholly inadequate to shut off the rights of parties in a different case or under different circumstances. Armstrong v. Federal Supply Co., supra; Houston & T. C. R. Co. et al. v. Roberts, 101 Tex. 418, 108 S.W. 808.”

However, it is well settled that “when the evidence is such that reasonable minds cannot differ as to its verity and inference” a question of law is presented. Kirby Lumber Co. v. Temple Lumber Co., 125 Tex. 284, 83 S.W.2d 638, 642; Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059; 41 Tex.Jur. 939, Sec. 169.

Looking to all, the circumstances of this case, as above set out, we hold as a matter of law under the rule above stated, that the trade fixtures involved were removed from the premises within a “reasonable time,” and that no forfeiture occurred. The finding of the jury upon this issue is without support in the evidence. Appellants’ first proposition is sustained. To hold otherwise would be to enforce a forfeiture, harsh in operation which has no basis in law, and ignore the definition of “a reasonable time,” which is set out in the Armstrong case, supra.

We also hold that the evidence is insufficient to show that the Houston Bank or Meyer C. Wagner, trustee, was guilty of conversion, even if it should be considered that appellee was the owner of the disputed property when it was removed from the premises by the Coast Operating Company.

■ What has been said disposes of all issues before this court. Under this record it is our duty to reverse the judgment of the trial court, and here render judgment that appellee take nothing. It is accordingly so ordered.

Reversed and rendered.


author: McDONALD, Chief Justice.

text:
    CARTER v. MYERS et al.
    No. 14187.
    Court of Civil Appeals of Texas. Fort Worth.
    March 7, 1941.
    Rehearing Denied April 4, 1941.

      R. T. Meador, of Dallas, and Judge Gambill, of Denton, for appellant.
    Geo. M. Hopkins, of Denton, for appel-lees.
   McDONALD, Chief Justice.

C. F. Carter, as the owner of an oil lease covering land in Parker County, Texas, entered into a written contract with O. T. Myers, under which the latter was to drill an oil well on the land in question. Pursuant to the contract, Carter placed the sum of $750 in escrow in the Denton County National Bank, of Denton, Texas, to be applied, under the terms of the escrow agreement, to the payment of the sums to become due to Myers under the drilling contract. The drilling contract provided that the well should be drilled to a depth of 1,000 feet, unless oil or gas should be found in paying quantities at a lesser depth. It provided that Myers should be paid one dollar per foot for the depth actually dug, and that Carter would also assign to,him leases covering two designated tracts of land containing an aggregate of fifty acres. Although the written contract does not so provide, it appears from the evidence of both parties that they also had agreed that Carter would furnish approximately one hundred feet of ten inch surface casing, and seven hundred feet of eight inch casing. The written contract contained á provision with reference to casing reading as follows: “Party of Second Part (Myers) is to drill said well without further consideration from Party of First Part (Carter) 'to a depth as above set out unless excess water is encountered making it necessary to set extra string of casing other than the 8" in such case Party of First Part is to bear expense of furnishing said additional casing in order to carry hole to depth of 1000 feet.” The quoted provision of the contract gives rise to the controversy in this case.

Myers began the drilling of the well, and at about 80 or 90 feet encountered a heavy flow of water. The ten inch casing was set at 110 feet to shut off this flow of water. At about 150 feet another flow of water was encountered. The eight inch casing was set at 225 feet to shut off this second flow of water. Myers testified that Carter agreed that the eight inch casing should be set at 225 feet. The next water sand was encountered at 250 feet. Myers . continued the drilling down to 325 'feet, where, he testified, the water from the last sand was causing the well to cave in so badly that drilling had to be discontinued. At this point Myers called upon Carter to furnish a string of smaller casing, to go inside of the eight inch casing, to shut off the water last encountered. Carter refused to do this, contending that Myers was obligated under the- contract to underream from 225 feet to 700 feet, in order that the eight inch casing could' be used to a depth of 700 feet, and that if any additional casing were needed b'elow the depth of 700 feet, he would furnish it. From the evidence it appears that the reason for the controverky, as a practical matter, was the fact that the expense to Myers of under-reaming, so the eight inch casing could be used, would be about twice as much as the expense of drilling a smaller hole below the point where the eight inch casing had 'been set The parties being unable to agree, Myers discontinued drilling, and moved his equipment off the lease.

Myers brought suit against Carter, and also against the Denton County National Bank, seeking to have the $750 held in escrow applied to the payment of his alleged damages. In answer to six special issues, the jury found: (1) That after the well was drilled to a depth of 325 feet, it became necessary to set casing inside the eight inch casing already in the well; (2) that the necessity of setting casing inside the eight inch casing was occasioned by encountering excess water; (3) that the reasonable cost of completing the drilling of the well from 325 feet to 1000 feet would have been $175; (4) that Myers did not voluntarily abandon the drilling of the well; (5) that after Myers started drilling the well he did not agree that he would underream and reset the eight inch casing if Carter would furnish a shoe; (6) that after the drilling of the well was begun Carter agreed with Myers that if Myers would underream and reset the eight inch casing Carter would furnish the under-reamer.

Upon these findings and from the evidence, the court rendered judgment in favor of Myers against Carter for $825, and ordered that the money held in escrow by said bank, less an attorney’s fee of $50 allowed to the attorney representing the bank, be applied on the judgment. Carter has appealed from the judgment.

Appellant Carter’s assignments and propositións may be divided into four groups. The first group charge that the trial court erred in refusing defendant’s respective motions for an instructed verdict, for judgment' non obstante veredicto, and for judgment, because “appellant was entitled to judgment as a matter of law under the pleadings and all of the evidence.” The second group charge that the answers of the jury to the first and fourth issues were contrary to the undisputed evidence. The third group charge that there was insufficient evidence to support the submission of or the answer to the third issue. The fourth group charge that there is fundamental error on the face of the record in that the plaintiff’s petition presented a case seeking rescission of the contract, while the judgment entered was by way of enforcing the contract and awarding damages for its breach.

Appellant, with reference to the provision of the contract calling for a string of casing other than the eight inch casing, contends that the determination of whether the smaller casing was “necessary” was a question involving the construction of the contract, and was therefore for the court,, not the jury, to determine. He contends that the use of the word “necessary” suggests that something was meant which could not have been done without, something which was indispensable; and that the proof shows without dispute that the well could have been drilled without any casing smaller than the eight inch if Myers-had employed the underreaming process, and that the fact that this process was more expensive did not make the use of the smaller casing “necessary”. He refers to the rule that the courts will not relieve parties from their contracts simply because performance may require more expense than was contemplated when the contract was made.

But we must also consider that the parties must have intended that the provision for casing other than the eight inch meant something. They must have contemplated some contingency which would require the smaller casing. If, as appellant contends, the driller could have in any event used the eight inch casing by underreaming, then the provision for the smaller casing would be meaningless. It is our duty to give effect to every provision of the contract if such can reasonably be done. “It is to be presumed that every provision of a contract was incorporated for a purpose. The court has no right to nullify any of its terms, and, if possible, a construction will be adopted which gives effect to each and every part of the instrument, in preference to one which would render any of the provisions therein meaningless.” 10 Tex.Jur., page 284. We believe that the use of the expression “extra string of casing other than the 8 inch” suggests that the parties had in mind a smaller casing than the eight inch, rather than, as contended by appellant, more of the eight inch casing. At the time the drilling contract was made, Carter also made a contract with a brother of the driller to rent 80 feet of ten inch casing and 700 feet of eight inch casing, which fact was known to ap-pellee O. T. Myers, and must have been in the minds of the parties in referring to the extra string of casing other than the eight inch. From the evidence, a string of casing would be the entire string of the particular size casing, and not merely a portion of the casing down near the bottom of the hole. We believe that the submission to the jury of the question of the necessity for the smaller casing was proper, and that there was sufficient evidence to support their finding.

Appellant contends that there was no evidence to support the finding of the jury that it would cost $175 to finish the well. Myers estimated that it would cost about $100 if there had been no water. Another witness testified that it would cost about $200 if there had been no water. Appellant argues that- since it is undisputed that water was encountered, there is no evidence as to what it would cost with the water in the well. He further argues that there was no evidence of any character to show whether water would likely be encountered at still other levels. We are inclined to believe that the jury could have reasonably inferred that the witnesses were estimating the cost of completion on the basis of the water being properly cased off. The jury also had before them the price per foot set out in the contract, as an indication of what these parties at the outset thought as to the cost of drilling a well in this locality, and the testimony of several witnesses regarding the cost of underreaming, and the comparative cost of underreaming and straight drilling. It appeared from the evidence that several wells had been drilled in this general area. The defendant did not offer any testimony on the cost of completing the well to rebut that offered by the plaintiff, and, in fact, did not cross-examine defendant and his witness on this particular point. In Osage Oil & Refining Co. v. Lee Farm Oil Co., Tex.Civ.App., 230 S.W. 518, writ of error refused, there is an excellent discussion of a state of facts somewhat similar to those in the case here under consideration, and of the rules applicable thereto. While the proof in the present case is not as full' as might be desired, we believe it is sufficient to support the verdict. The estimates of the cost of completing the well, like estimates of value of property, are opinions of the witnesses. The jury is given wide latitude in arriving at a verdict based upon opinion evidence. Simmonds v. St. Louis, Brownsille & Mexico Railway Co., 127 Tex. 23, 91 S.W.2d 332, and cases cited in the opinion in that case.

Appellant charges that plaintiff’s petition presents a case for cancellation and rescission, while the judgment awards damages for the breach of the contract, by way of enforcing it. The rule of law involved is stated in 17 Corpus -Juris Secundum, Contracts, § 440, at page 925:

“On the rescission of a building and construction contract, the builder may recover on a quantum meruit the value of the work performed or materials furnished, if used by the employer and of value to him. * ⅝ * »

“After a party has rescinded he cannot sue on the contract or for breach of the contract.”

In 10 Tex.Jur., page 468, it is said: “In case of the breach of a contract the party not in default may bring an action for damages * * * or he may treat the contract as rescinded and sue for what he has parted with under it.”

In the opinion in Osage Oil & Refining Co. v. Lee Farm Oil Co., supra [230 S.W. 520], it is said: “It is the law that one who has been wrongfully prevented from fully performing his contract after he has entered upon its performance, and partially performed it, may elect either to sue on a quantum meruit or to sue for a breach of the contract, but cannot do both. If he sues for a breach of the contract, he may recover his actual loss, which would be the expense incurred in the performance of the contract up to the time of its breach, and the profits he would have made out of the contract if they may be 'established with sufficient certainty.”

Appellant’s contentions are based upon two sentences in plaintiff’s petition. One of them avers that by reason of the facts alleged the contract has become null and void and should be cancelled, annulled and held for naught, and the other, in the prayer, is to the same effect. While these two sentences, taken alone, would indicate that plaintiff’s suit is for rescission, yet the remainder of the petition unmistakably reveals that his suit is really for damages on the contract. In its brief appellant concedes that the measure of damages followed in awarding judgment was the correct one if the suit was on the contract, rather than for a rescission of it.

All assignments of error are overruled, and the judgment of the trial court is affirmed.