author: JACKSON, Chief Justice.

text:
    COLUMBIAN FUEL CORPORATION v. SUMMERS et al.
    No. 5068.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1939.
    Underwood, Johnson, Dooley & Wilson, of Amarillo, and James W. Witherspoon, of Hereford, for appellant.
    Sanders & Scott'and Howard F. Saunders, all of Amarillo, and Moss & Young, of Tulsa, Okl., for appellees.
   JACKSON, Chief Justice.

This suit was instituted in. the District Court of Moore County by the appellees who are the surviving widow, the mother and the children of J. W. Summers, deceased, against the defendants, Cienon C. Hemsell and the Columbian Fuel Corporation, to recover actual damages in the sum of $67,500 and exemplary damages in. the sum of $50,000 for the death of J. W. Summers which is alleged to have been occasioned by the actual and gross negligence of defendants.

Several different acts of negligence are-charged in appellees’ petition against the defendants but since the sufficiency of the pleadings is not attacked no detailed statement of the cause of action is required.

The Columbian Fuel Corporation, in due-time and form, presented its plea of privilege to be sued in Potter, the county of its. residence, and the appellees promptly filed their controverting affidavit. A hearing was had and the plea of privilege overruled, from which action of the court the Columbian Fuel Corporation alone presents this appeal.

The appellant by several assignments, all of which we will consider together, contends that the court erred in overruling the plea of privilege urged, because the testimony fails to show that Cienon C. Hemsell, at the time of the collision which resulted in the death of the deceased, was engaged In the furtherance of appellant’s business.

The record discloses that the appellant is a Delaware Corporation engaged in the oil and gas business with a permit to transact business in this State, maintains its principal office at Amarillo, in Potter County, Texas, and conducts business in Texas, New Mexico and Kansas. Mr. Hemsell resides with his family in Amarillo, keeps his office in the place of business of the appellant in Amarillo, is the district manager of the geological department of the Columbian Fuel Corporation and its employee and agent, whose duty to his employer requires him to attend to business for appellant in different places in Texas, New Mexico and Kansas. ' The appellant furnishes him an automobile in which to travel while away from the office on these business trips and pays the expenses of the operation of the machine. His superior was a Mr. Cotner who resides in New York City, hut Hemsell was the geologist in charge of the territory in which the appellant operated from Amarillo and exercised his own discretion and judgment with few limitations in the geological department of appellant in these three states.

About October 2, 1937 Hemsell was called to New Ulysees, Kansas to witness the completion of a gas well for the appellant. The well was completed about six o’clock P. M. on October 9th, which ended the business for which he had gone to Kansas, and some time later on the same day he started by the most direct route to his home and family and to the office of appellant and his office situated in Amarillo, Potter County, Texas. In said office he received the company’s mail, transacted all the office business of the geological department, had no other employment with anyone else, and engaged in no business for himself.

On this return trip in the automobile furnished by his employer, while driving along Highway No. 9 in Moore County about 11:30 P. M. on said October 9th, the collision occurred between the automobile of Hemsell and the one driven by J. W. Summers which resulted in the immediate death of deceased. Hemsell while on the stand testified that he went to Kansas in the automobile and traveled the same route going and returning; that he passed through Moore County on his trip to Kansas in the performance of his duties for his employer and on his return to Amarillo he came through Moore County and was in the service of the appellant; that he was not only returning to visit his family but was also returning to his office to attend to the work of his employer in Amarillo.

The evidence shows without controversy that Mr. Hemsell was the district geologist, the agent and employee of appellant and maintained his office with appellant in Amarillo, Potter County; that the corporation was engaged in the oil arid gas business and operated in the three states named from Amarillo; that the company and the duties of Mr. Hemsell required him to visit different localities in each of the states; that his employer furnished him an automobile to make these trips and when the business he was sent to transact was completed he returned to his office in Amarillo to continue his services for his master; that he had gone to Kansas about October 2nd to witness the completion of an oil well for his employer; that he had completed his duties there and was on his way home by the most direct route; had not engaged in any act of business or pleasure for himself or anyone else since beginning his return trip, nor deviated from the direct route. In our opinion, the record is sufficient to warrant the finding of the trial court that appellees had discharged the burden of showing Mr. Hem-sell was engaged in the furtherance of his employer’s business at the time of the collision which resulted in the death of J. W. Summers.

In the case of Guitar et al. v. Wheeler et al., Tex.Civ.App., 36 S.W.2d 325, the facts reveal that a Mr. Tidwell was in the employ of the owners as general foreman of the Guitar farm situated in Howard County about fifteen miles from Big Spring. On the day in question Mr. Tid-well with his wife and children went to Big Spring in an automobile, not on business for his employers, but on private business of the family; that while in Big Spring Tidwell met a Mexican, without previous appointment, who asked about grubbing land on the farm. After a brief conversation with him Tidwell took his family and the Mexican out to the place where the grubbing was to be done. He then carried his family to their home accompanied .by the Mexican. In the afternoon of the same day he returned to Big Spring with the Mexican in the car. After staying in town for several hours he began the trip home traveling the public highway and his automobile struck and killed a Mr. Wheeler. The court held that these facts were sufficient to present to the jury the issue whether Mr. Tidwell was acting within the • course of his employment so as to render his principal liable.

In Colgate-Palmolive-Peet Co. et al. v. Perkins et al., Tex.Civ.App., 48 S.W.2d 1007, on testimony presenting substantially the same facts and circumstances, the court held the evidence sufficient to sustain the finding of a jury that the driver of the automobile was acting within the scope of and in furtherance of his master’s business.

In Collin County Motor Co. v. Howard, Tex.Civ.App., 121 S.W.2d 460, it is said:

“The uncontroverted evidence shows that, prior to and at the time of the collision in question, Howard B. Franklin, the driver of one of the automobiles and whose acts plaintiff seeks to hold the defendant, Collin County Motor Comp.any, liable, was an employe of Collin County Motor Company * * *. His headquarters was at the Motor Company’s place of business at McKinney, Texas. * * *
“On the day of the collision, Franklin went to Dallas in his employer’s automobile, for at least two purposes connected with his employment — first, an errand to the Ford plant; and second, for the purpose of calling on a Mr. Hume, to interest him in the purchase of an automobile. On arriving at Dallas, about 11 o’clock, a. m. Franklin went' direct to the Ford plant, attended to that errand, ate his lunch, and, while there, telephoned to Mr. Hume’s place of business — Highland Park High School, North of Dallas; and, on learning that he would be unable to talk with Mr. Hume, he left the Ford plant, went to Rose, Wilson & Company, a business enterprise located in another section of Dallas, and from there to the Highland Park High School to see Mr. Hume. On being advised that Mr. Hume was not there, he then went to the business section of Dallas, to E. M. Kahn’s Clothing store to make a personal purchase, and then to Oak Cliff, in South Dallas, to visit a relative. After remaining in Oak Cliff, for two or three hours, about 4 o’clock in the afternoon, Franklin started his sojourn to McKinney, intending to go direct to his home. On his journey home * * * over the main highway leading to McKinney, and just before reaching Plano, between sundown and dark, the collision in question occurred.
⅝ ⅝ ⅜ ⅝ ⅜ !fi
“We believe that, under the facts of this case, Franklin at- the time of the collision had resumed his employment, which had been effectually interrupted by his stepping aside on missions purely his own, and was then engaged in the performance of duty or work for his master in his sojourn home with his master’s automobile. Franklin’s employment as salesman for the Collin County Motor Company was unlimited as to the time he was allowed to work, that he was expressly authorized to retain possession of his employer’s automobile and became responsible for its safe-keeping and return. Franklin’s duty on the day in question was to go to Dallas, and it was equally his duty to return to McKinney. His employment was not so restricted as to require him to return immediately, or at any specified time, on cessation of his employer’s errands; nor, did it px-event him from interrupting his employei-’s business for the time, and perfoi-ming missions of his own. It is true, Franklin turned aside from his master’s duties and had the collision occurred while on his personal errands, his employer would not have been liable for his acts of • negligence; but, such is not the case here, he had taken up his master’s duties- — gotten back on the highway to McKinney, over which he was expected to return, and was driving home with his master’s automobile when the collision occurred. His sojourn home with his master’s automobile was in the performance of his master’s duty, as was his act in going.’’

At the time the accident occurred Mr. Hemsell was traveling south on the highway and the deceased was traveling north. The testimony tends to show that the deceased was on the right side of the center of the highway approximately fifteen inches from the extreme outer edge of the pavement; that Mr. Hemsell, when his car was first sighted by deceased and his companion, was about the center of the pavement; the deceased dimmed his lights and signaled the approaching car but got no response; Mr. Hemsell continued in the center of the highway until just before the collision when he turned diagonally across the road, swerved to the left and collided with the car of Mr. Summers, who was instantly killed.

Article 1995, subdivisions 9, 23 and 27, Rev.St. are as follows:

“9. Crime or trespass. — A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed. * * *

“23. Corporations and associations.— Suits against a private corporation * * * may be brought in any county in which the cause of action, or a part thereof, arose.

“27. Foreign corporations. — Foreign corporations * * * may be sued in any county where the cause of’action or a part thereof accrued * * *.”

In Lay et al. v. Gould, Tex.Civ.App., 82 S.W.2d 1081, in an opinion by Justice Martin, formerly of this court, Syllabus 2, is as follows: “Evidence in death action that defendants’ truck, traveling on wrong side of public road at unlawful speed, was propelled against automobile in which deceased was riding as guest, held sufficient to raise issue of defendants’ commission of trespass within statute authorizing action therefor in county wherein committed. (Rev. St. 1925, art. 1995, subd. 9).”

See, also, Straus-Bodenheimer Co. et al. v. Marshall et al., Tex.Civ.App., 91 S.W.2d 865; Schuller v. Fears, Tex.Civ.App., 67 S.W.2d 343.

Under this record and these authorities we are of the opinion that the trial court correctly overruled appellant’s plea of privilege and the judgment is affirmed.


source: Caselaw Access Project

author: STOKES, Justice.

license: Public Domain

text:
    SLOAN v. NEWTON.
    No. 5067.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 16, 1939.

      L. A. Prichard and George S. Berry, both of Lubbock, for appellant.
    Bean, Evans & Bean, of Lubbock, for appellee.
   STOKES, Justice.

This is a suit in the nature of an equitable bill of review, its object being to vacate and set aside a judgment by default obtained by appellant against appel-lee in the county court of Lubbock County on the 20th of September, 1933. The record discloses that at the July term, 1933, of the county court, appellant, Tom Sloan, filed a suit against appellee, M. D. Newton, in which he alleged that on or about the 26th of August, 1931, at the special instance and request of appellee, he had loaned to appellee the sum of $300, to be repaid upon demand. No note was executed. Appellant, in his petition, acknowledged a credit of $23 and prayed for judgment for the balance due him of $277, with interest and costs of suit. The record does not reveal any reason why the cause was not disposed of at the July term, but judgment by default was entered against appellee at the September term, 1933, for the anjount sued for.

Appellee filed this suit against appellant on the 17th of February, 1938, alleging in substance that, in 1931, he borrowed $300 from appellant and that he paid thereon the sum of $24.15. He alleged that prior to the filing of the original suit, he had furnished appellant with a house in which to live in the city of Lubbock and that appellant had lived in the house for 'more than a year at the time the former suit was filed. He alleged that immediately upon being served with citation in the former suit he went to appellant and had a conversation with him in which he expressed to appellant his surprise that appellant would bring suit against him on the claim when appellant was living in his house without paying any rent; that appellant acknowledged he had been hasty in filing the suit and that in the conversation it was agreed between them that in consideration of the rental of the premises appellant would cancel the indebtedness, dismiss the suit and the controversy was there settled between them. He alleged further that appellant continued to live in the house and resided there eighteen months which, according to the agreement between them, settled and discharged the indebtedness in full.

Appellee further alleged in the instant suit that, notwithstanding his. agreement to dismiss the original suit in consideration of the rental of the premises, appellant appeared in court on the 20th of September, 1933, and obtained a judgment against appellee for the full amount for which he had sued, together with interest and costs of suit. He alleged that he did not know appellant had procured judgment against him until February 7, 1938, when appellant caused to be issued upon the judgment a writ of garnishment against the First National Bank of Lubbock in which appellee maintained a deposit.

Appellant answered only by general demurrer and general denial.

The case was submitted to a jury upon special issues and the jury found in effect that appellant and appellee, after the filing of the original suit and before appearance day, discharged the debt by a settlement and it was agreed between them the suit would be dismissed; that appellee relied upon such agreement in failing to appear and answer in the original cause; that appellee did not know the judgment had been rendered against him until- February, 1938; that appellant agreed to dismiss the original suit after citation had been served on appellee and prior to the time the judgment was entered; that appellant was guilty of fraud in taking the judgment against appellee, and that appellee had fully paid off and discharged the debt owing to appellant in the $300 loan.

The trial court entered judgment against appellant cancelling the original judgment, to which appellant duly excepted and gave notice of appeal, which he has duly perfected.

The principal contentions made by appellant are, first, that the court committed reversible error in overruling his general demurrer. Secondly, that appellee did not allege nor prove fraud on the part of appellant in procuring the original judgment and, therefore, his general demurrer should have been sustained and appellee was not entitled to recover. Thirdly, that appel-lee -was not entitled to recover because his claim was barred by the statute of limitations, the suit not having been filed until more than four years after the original judgment was entered, and, fourthly, the ■court erred in refusing to submit his special issue No. 3 as to the reasonable rental value of the premises belonging to appel-lee and occupied by him as tenant.

The substance of the first contention of appellant is that his general demurrer should have been sustained because appellee failed to exhibit in his pleadings the entire proceedings in the original case sought to be reviewed. We think under our rules of pleading the petition is sufficient as a basis for the introduction of the record in the former suit. The petition and process in that suit were not copied in the petition in the instant case, nor were copies of them attached as exhibits, but we do not understand the rules of pleading to require that the record in the former suit be completely exhibited by the petition seeking a bill of review. The petition alleges the filing of the original suit by appellant and gives the number of the cause on the docket of the county court. It states the nature of the cause of action alleged therein and the amount for which appellant demanded judgment. It alleges further that appellee was served with citation in the original cause 'and that judgment by default was entered against him on the 20th of September, 1933, reciting the volume and page of the minutes of the court wherein the judgment was entered of record. Copies of plaintiff’s petition, the citation served upon appellee, and the default judgment entered against him were introduced in evidence and were before the court when the instant case was tried. The record does not show that these constituted the entire record in the original suit but ordinarily where judgment is rendered by default, records of the case do not contain any documents other than these. In our opinion the petition was not subject to the criticism offered by appellant and his contention in respect thereto will be overruled.

The second contention presented is that no fraud was alleged nor proven and the court erred, therefore, in overruling appellant’s general demurrer and in rendering judgment against him. This contention is based upon the assertion by appellant that the allegations upon which appellee depended to meet the requirements laid down by the courts as necessary elements for recovery in a proceeding of this kind are not sufficient unless it is alleged and proved that the former judgment was procured by accident, mistake or fraud. He contends that no accident or mistake was alleged or shown and that appellee was not entitled to recover upon the theory of fraud because the facts pleaded by him and relied upon to establish fraud were mere alleged promises of appellant to do something in the future, the violation of which does not constitute fraud in law. It is true that in cases based upon fraud such as those in which it is sought to cancel a deed for violation of a promise to perform some act in the future the courts have held that, unless it is shown the grantee, at the time of making the promise, intended not to comply with it, no suit for fraud can be maintained, the proper proceeding being for damages for breach of contract. Chicago T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S.W. 472, 31 Am.St.Rep. 39. In cases like the one we are now considering, however, where it is sought to set aside and vacate a judgment by equitable bill of review, under allegations that the former judgment was caused to be entered by the plaintiff in violation of an agreement that the case would be dismissed, our courts have long considered such an act as a species of fraud. The rule is that where it is alleged and shown that the former judgment was entered in violation of an agreement to (dismiss the case, unmixed by any lack .of diligence on the part of complainant; that he has a good defense to the cause of action which he was prevented from presenting by fraud, accident or the acts of the opposite party, and that there is good reason to believe that a different result will be obtained upon a new trial, the courts will grant the relief. Johnson v. Templeton, 60 Tex. 238; Jones v. Wooton, et ux., Tex.Com.App., 228 S.W. 142; Texas & P. Ry. Co. v. Miller, Tex.Civ.App., 171 S.W. 1069; Lewis v. Bell, Tex.Civ.App., 12 S.W.2d 237; Winters Mutual Aid Ass’n v. Reddin, Tex.Com.App., 49 S.W.2d 1095; Sedgwick v. Kirby Lumber Co., 130 Tex. 163, 107 S.W.2d 358; Keller v. Young et al., Tex.Civ.App., 186 S.W. 405.

The court submitted the case to the jury upon sufficient allegations and the jury found upon sufficient evidence that after the original suit was filed and before appearance day of the succeeding term of the court, by agreement between them, appellant and appellee settled and discharged the claim forming the basis of appellant’s suit and that appellant agreed to dismiss it. They found that appellee relied upon the agreement which they found had been made by appellant and therefore did not appear in the case. They further found that appellee did not know the judgment had been entered against him until February, 1938, and the record shows this suit was filed on the 17th of that month. In answer to another special issue the jury found that appellee had fully paid off and discharged the debt which constituted the basis of appellant’s former suit against him. The record shows, therefore, that appellee 'was not guilty of any negligence in suffering the former judgment to be entered against him. He had a right to rely upon the agreement and representation made to him by appellant and the mere fact that he did not pursue the matter further and investigate the court records to ascertain whether appellant had complied with his agreement to dismiss the case cannot be considered a lack of diligence on his part. The record further shows, and the jury found, that appellee had a good defense to the cause of action filed against him by appellant which he was prevented from presenting to the court by the acts of appellant. Under these allegations, the evidence introduced in support of them and the findings of the jury, appellee was entitled to have the former judgment vacated and set aside. Every necessary element required by the rules governing such cases was presented and supported by proof. It follows, therefore, that this contention of appellant is not well taken.

The third contention made by appellant relates to the statute of limitations. It has frequently been held by the courts that Art. 5529, R.C.S.1925, applies to a suit to set aside a judgment obtained by fraud. Ordinarily, therefore, it must be filed within four years. It is a well established rule, however, that limitation against fraud does not begin to run until the fraud is discovered. Any other rule manifestly would frequently work injustice and irreparable injury. Indeed, this case furnishes an example of the manner in which an opposite rule would work .not only serious injury to the innocent, but to the advantage of the perpetrator of the fraud. Appellee alleged and the jury found that he did not know the former judgment had been entered against him until more than four years after it had been rendered. The record shows that on the 17th of the month in which he discovered it this suit was filed. Thus it is shown he exercised great diligence upon discovering that a judgment had been rendered against him. Under these conditions the statute of limitation did not begin to run until the month of February, 1938. Levy v. Roper, et al., 113 Tex. 356, 256 S.W. 251.

The fourth and last contention briefed by appellant assigns error of the court in refusing to submit special issue No. 3 requested by him. That issue requested a finding as to the reasonable rental value of the house belonging to appellee in which appellant lived for eighteen months. We find no error in the action of the court here complained of. The reasonable rental value of the house was not made an issue either by the pleadings or the evidence. Appellee pleaded that appellant’s claim against him upon the loan of $300 which constituted the basis of the former suit had been settled by agreement between them to the effect that appellant would occupy the house' belonging to appellee for a sufficient length of time to discharge the debt. He alleged further that the debt had been discharged long prior to the filing of the instant suit. Appellant pleaded only a general denial. The record shows appellant occupied the premises for some eighteen months, which term expired long before this suit was filed. The jury found that the debt had been discharged by the rental value of the premises. What may have been the reasonable rental value, therefore, was not an issue in the case. It was a question of an agreed settlement between them and the jury found against appellant upon that issue. It was not error, therefore, for the court to refuse the submission of the requested special issue.

A number of questions are raised under other assignments alleging error in the form and submission of certain special issues. The assignments and propositions are not supported by statements from the record but an inspection of each of them has failed to reveal any reversible error and they will be overruled.

We have examined all of the assignments and propositions presented by appellant and, in our opinion, no reversible error is shown by any of them. The judgment of the court below is, therefore, affirmed.


author: JOHNSON, Chief Justice.

text:
    EXCELSIOR MUT. LIFE INS. CO. v. COLVIN.
    No. 5366.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1939.
    Rehearing Denied Dec. 14, 1939.
    R. Q. Mason, of Dallas, and W. J. Durham, of Sherman, for appellant.
    R. E. Eubank, of Paris, for appellee.
   JOHNSON, Chief Justice.

The Excelsior Mutual Life Insurance Company executed and delivered its policy of life insurance to W. M. McCraw, the insured, contracting to pay M. C. Colvin, his cousin, the sum of $300 upon death of the insured in consideration of. the payment to the insurance company of certain premiums each and every week during the life of said McCraw. The premiums were regularly paid as they became due until and including the date of the death of the insured,, which occurred on or about February 1, 1936. Proof of death was duly prepared and submitted to the company, whereupon it refused payment of any benefits under the policy, and filed this suit against the beneficiary, Colvin, tendering into court the amount of premiums paid and asking that the insurance contract be-declared void and cancelled upon the ground of fraud alleged to have been committed by the insured and the beneficiary in misrepresenting the facts in answer to certain questions contained in the application signed by the insured for insurance of the policy, and particularly so in answer to Question No. 4, wherein he answered that he would be forty years of age next birthday; and in answer to Question No. 19, wherein he answered that he had not previously suffered from paralysis. The defendant, Colvin, answered by general demurrer, special exception, general and special denial, and also filed a cross action asking judgment for the amount of the policy, $300; and for $50 attorney’s fee and for 12% damages. The case was submitted to a jury upon special issues, all of which were answered against the insurance company and in favor of the beneficiary, Colvin. The court entered judgment awarding the defendant, Colvin, recovery of the sum of $300 on his cross action, and against the plaintiff insurance company. The court did not award the defendant any attorney’s fee or damages upon his cross action. Plaintiff, the insurance company, has appealed.

Appellant assigns as error the action of the trial court in overruling its motion for an instructed verdict in its favor. The assignment is not sustained. We think the evidence presented an issue for the jury. Briefly, the evidence shows that the insured executed an application for the policy, at the request and under the personal supervision of the superintendent of the insurance company, who asked the questions,and filled in the answers. To Question No. 4 the application shows that McCraw answered that he would be forty years of age at his next birthday. In answer to Question No. 19 he answered that he had not suffered' from paralysis. Mr. J. E. Burton, witness for the insurance company, testified that he was superintendent for said company and that he personally solicited and wrote the application for the policy. That the answers to the questions were written by him in response to replies made by both Colvin and McCraw; that from the appearance of McCraw and based upon witness’ experience and knowledge as an insurance man he judged McCraw to be between thirty-nine and forty-one years of age; that he appeared to be a middle-aged man, about thirty-nine, forty, or forty-one years of age. That witness had seen persons with a stroke of paralysis and that he saw McCraw walk and did not see anything unnatural about his movement. Dr. T. C. Geron, witness for plaintiff, insurance company, testified that he treated McCraw for a slight stroke of paralysis which slightly impaired his health for a short duration about twelve years ago; that McCraw “appeared” to be about fifty-five or sixty years of age at that time. Josephine Meade testified that she was sixty-seven years of age, that she had seen Mc-Craw about twelve times and that he “appeared” to be about middle age; that she thinks middle age is about fifty-five or sixty. There is no direct or positive evidence to contradict the statement of McCraw in the application that he would be forty years of age his next birthday. The testimony of Dr. Geron and Josephine Meade that Mc-Craw appeared to be more than forty years •of age is not so conclusive of that issue as would establish it as a matter of law so as to authorize an instructed verdict upon that issue. There is no evidence showing that McCraw was ever affected with paralysis other than a “slight” stroke which Dr. Ger-on testified he suffered about twelve years previously. Dr. Geron did not testify nor is it shown that McCraw knew that he was then, twelve years before, suffering from paralysis. Nor is it shown that the “slight” stroke which he had twelve years earlier, and from which he soon recovered, in any way contributed to his death or materially increased the risk. We do not think that in the circumstances here presented the misrepresentation of the insured, if such there was, would, as a matter of law, void the policy. R.S.Article S04S; Southland Life Ins. Co. v. Norton, Tex.Civ.App., 297 S.W. 1083, writ refused on other grounds, Tex.Com.App., 5 S.W.2d 767; First Texas Prudential Ins. Co. v. Pedigo, Tex.Com.App., 50 S.W.2d 1091.

Appellant assigns as fundamental error the failure of the defendant, Colvin, to allege in his cross action the relation of the insured, McCraw, to the beneficiary, Col-vin. The assignment is not sustained for the reason that, should it be held that allegation of the relationship of the beneficiary to the insured was essential to appellee’s cross action upon the policy, the fact was supplied in plaintiff’s petition wherein it pleaded and made a part of its petition, as Exhibit A, the application which shows the required fact of relationship between the insured and the beneficiary. “Upon a general demurrer, the allegations of the adversary party may be looked to in aid of the pleading attacked.” Davies v. Texas Employers Ins. Ass’n, Tex.Com.App., 16 S.W.2d 524, 525.

Appellant has made other assignments of error, all of which we have examined but do not find that any of them present reversible error.

The judgment is affirmed.


author: SMITH, Chief Justice.

text:
    ROSEBERRY et al. v. GRAHAM et al.
    No. 10647.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1939.
    Lloyd & Lloyd, of Alice, for appellants.
    Perkins & Floyd, of Alice, and Keys & Holt, of Corpus Christi, for appellees.
   SMITH, Chief Justice.

Neither party to this appeal has filed any brief in the case. No fundamental error is apparent of record.

The judgment is affirmed.


author: MURRAY, Justice.

text:
    RAYMONDVILLE STATE BANK et al. v. RUSSELL et ux.
    No. 10635.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 13, 1939.
    Crane & Glarner, of Raymondville, for appellant.
    J. M. Mothershead, of Harlingen, for ap-pellees.
   MURRAY, Justice.

This suit was instituted by George W. Russell and wife, Minnie Lee Russell, against IT. E. Tomme and the Raymondville State Bank of Raymondville, seeking to enjoin H. E. Tomme, as trustee, from selling certain property located in the Townsite of Combes, Cameron County, Texas. Tomme had posted notice of his intentions to sell such property by virtue of a power of sale contained in a certain deed of trust executed by Russell and wife, in which he was named as trustee for the benefit of the Ray-mondville State Bank.

The trial was to a jury and, upon jury findings favorable to Russell and wife, the trial judge entered judgment granting the injunction, from which judgment the Bank has appealed.

Appellants’ brief does not set forth any assignments of error. Appellees object to our consideration of the brief in the absence of assignments of error.

This Court has recently held that where appellant’s brief does not contain assignments of error it cannot be considered by the Court of Civil Appeals. Central Power & Light Company, Appellant v. Louis Heder, Appellee, 133 S.W.2d 795, decided November 15, 1939.

For the reasons stated in the above opinion we cannot consider appellants’ brief in the case at bar, and finding no fundamental error in the record the judgment of the trial court will be affirmed.


text:
    LATHEM v. COLEMAN.
    No. 5075.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 6, 1939.
    Rehearing Denied Dec. 4, 1939.

      B. N. Richards, of Dalhart, for appellant.
    Tatum & Tatum, of IJ>alhart, for appellee.
   JACKSON, Chief Justice.

The appellant, W. H. Lathem, who is and has been for some years engaged in the real estate business in Dalhart, Texas, instituted this suit in the County Court of Dallam County against the appellee, Ruth Coleman, a feme sole, to recover $350 for his services as a real estate broker.

He described in his petition the property listed with him by appellee, stated $7,000 cash was the sales price and alleged that at the time the property was placed with him appellee agreed that in the event he should find a purchaser ready, willing and able to buy the property at the price and on the terms stipulated she would pay him 5% commission. He alleges that he found a purchaser in the person of W. A. Phillips, who was ready, willing and able to .pay $7,-000 cash for the property but that appellee failed and refused to consummate the deal and became liable to him for a commission for $350.

The appellee answered by general demurrer, general denial and alleged affirmatively as a defense that the listing contract with appellee, if any was ever made, was for an indefinite time subject to cancellation at her pleasure; that appellant submitted to her from time to time various proposals but in each instance the price offered was less than the listing price of $7,000 and she refused such offers and when she rejected the proposition for $6,750 the appellant advised her that “if she failed and refused to accept such offer that the deal would be off and that such offer was the highest possible sum his prospective purchaser would make for said property;” that she rejected the proposition, the negotiations were abandoned and she rescinded any listing agreement theretofore existing and withdrew from him the right to sell the property and all subsequent propositions were submitted for the sale of the property after the withdrawal of such property from the market.

In response to special issues submitted by the court in his main charge the jury found in effect that ■appellee listed the property with appellant for sale at a price of $7,000 to be paid in cash; that she agreed to pay a commission of 5% on the price of the property in the event appellant should find a purchaser ready, willing and able to buy; that appellant did find a purchaser for the property who was ready, willing and able to buy the same at the price and upon the terms named by her in the listing agreement.

These findings of the jury entitle appellant to a judgment for the sum of $350 with interest and costs unless his cause of action was defeated by the answers of the jury to issues submitted by the court at her request. In response to the issues so submitted the jury answered substantially that at the time the appellant informed appellee that his prospective purchaser would pay only $6,-750 he made statements which authorized her to believe he had abandoned his efforts to sell the property to his prospective purchaser, Mr. Phillips; -that at such time he informed her he had a purchaser who would pay only $6,750 and the deal was rescinded, abandoned or called off either by appellant or appellee; that on the same occasion appellant advised appellee that if “she didn’t accept that offer the deal was all off”.

On these findings the court rendered judgment that appellant take nothing by his suit and appellee go hence with her cost, from which action of the court this appeal is prosecuted. The appellant challenges as fundamental error the action of the court in rendering judgment against him because he says such was unwarranted and unauthorized under the law by the findings of the jury.

In order to defeat appellant’s cause of action in view of the findings of the jury to special issues Nos. 1,2 and 3 submitted by the court in his main charge the burden was upon appellee to prove that appellant had abandoned the listing contract or that she had seasonably withdrawn the property from sale after appellant had been given a reasonable time within which to consummate any negotiations he had in progress for the sale of the property to a purchaser ready, willing and able to buy on the price and terms of the listing contract.

The record shows that the first offer of Mr. Phillips, appellant’s prospective purchaser, was $5,000; that later he made several propositions during the negotiations, the highest of which was $6,750 before he signed a contract agreeing to pay $7,000.

A broker’s contract for the sale of real estate is not cancelled or abandoned by presenting to his principal an offer less than the price at which the property is listed. 12 C.J.S. Brokers, 152, § 66. The intent of the broker is an essential element in the abandonment of a real estate brokerage agency, 12 C.J.S. Brokers 150, § 65; Wisdom v. W. T. Jones & Son, Tex.Civ.App., 288 S.W. 270; Trinity Gravel Co. et al. v. Cranke, Tex.Com.App., 282 S.W. 798.

The fact that appellant continued the negotiations with his prospective purchaser after appellee declined to accept $6,-750 and in a week or less secured a bona fide written offer from his purchaser to pay $7,-000 refutes any contention that he had abandoned - either the listing contract with ap-pellee or the consummation of a sale to Mr. Phillips., Do the answers of the jury in response to the special issues submitted at the request of appellee show that she had withdrawn her property for sale? Assuming in deference to the findings of the jury, though the decided preponderance of the testimony is to the contrary, that appellant advised appellee if she did not accept the $6,750 the deal was off, and the deal was cancelled and rescinded and appellee authorized to believe the sale to Phillips had been abandoned, would such findings constitute a defense to appellant’s suit? We think not. They do not constitute a verdict to the effect that appellee had withdrawn the property from sale. The negotiations had continued, the property had not been sold to anyone else before Mr. Phillips agreed to pay $7,000 therefor, which was in less than a week after the offer of $6,750; the price had not advanced and no change in conditions are claimed. We think these answers of the jury all relate to the sale of the land to Phillips and not to the listing thereof with appellant.

The appellee realized, as disclosed in her pleadings, that the burden was upon her to plead, prove and secure a jury finding that appellant had released the property or that she had withdrawn it from sale after giving a reasonable time to conclude any good-faith negotiations pending. Fort Worth Properties Corporation v. Bahan, Tex.Civ.App., 68 S.W.2d 228; Eastland Oil Co. et al. v. Fenoglio, Tex.Civ.App., 102 S.W.2d 1092. Not only did she allege this defense but requested that such issues be submitted to the jury. This issue if raised by the testimony should have been submitted but there is no complaint in this court of the failure of the court to submit such issue.

Should we be mistaken in our conclusion as to the effect of the findings of the jury in response to the special issues submitted at the request of the appellee, then in our opinion such findings are so uncertain and indefinite as to require a reversal of the judgment.

It is the settled law in this State that a judgment unauthorized by the verdict constitutes fundamental error. 3 Tex: Jur. 827, para. 584.

In Boultinghouse et al. v. Thompson et al., Tex.Civ.App., 291 S.W. 573, 574, the court holds: “If the jury’s findings are conflicting, or are too uncertain in their meaning to sustain the judgment rendered thereon, the errors thereof are regarded as fundamental.”

See also Evers v. Langerhans et al., Tex.Civ.App., 122 S.W.2d 208; Steves Distributing Co. et al. v. Newsom, Tex.Civ.App., 125 S.W.2d 354.

The judgment is reversed and the cause remanded.


text:
    HARKINS v. MOSLEY.
    No. 5061.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 9, 1939.
    Rehearing Denied Nov. 6, 1939.
    E. O. Northcutt, of Amarillo, for appellant.
    W. H. Russell and Carl Gilliland, both of Hereford, for appellee.
   JACKSON, Chief Justice.

This suit was instituted in the District-Court of Deaf Smith County by Darrell Harkins, the appellant, against John Mosley, the appellee, to recover actual damages in the sum of $15,000.00 and exemplary damages in the sum of $10,000.00.

The appellant alleged that appellee voluntarily, wilfully, without proper cause and for the purpose of doing .him an injury, complained to and before the duly organized grand jury of the district court of said county in 1938 at the January term thereof, and by false statements and representations induced the grand jury to indict appellant for the crime of embezzlement; had him arrested, placed in jail, arraigned in the district court of said county and tried for said alleged offense and, at the close of the testimony, on or about February 17, 1938, the jurors, in obedience to a peremptory instruction from the court, found appellant not guilty.

The appellee answered by exceptions, general and special.denials and alleged that by virtue of a contract with appellee the appellant had collected certain funds for which he failed ■ to account and the facts relative thereto he presented to the grand jury.

The jury found against the appellant on exemplary damages, hence, such issues are not set out. Excepting the definitions given by the court the special issues and the answers thereto material to this appeal are as follows:

“Special Issue No. 1.
“Do you find from a preponderance of the evidence in this case, that the indictment which was returned by the Grand Jury of Deaf Smith County, Texas, at the January Term, A. D. 1938, and filed in this ■Court on the 1st day of February, A. D. 1938, was returned by said Grand Jury, upon the testimony of the defendant, which induced the said Grand Jury to indict the Plaintiff, for the offense of Embezzlement?
“You will answer ‘Yes’, or ‘No’. Answer: ‘Yes’.
“Special Issue No. 2.
“Do you find from a preponderance of the evidence, that the defendant, J. R. Mosley, acted without ‘probable cause’ in giving his statement or testimony before the Grand Jury?
“You will answer ‘Yes’ or ‘No’. Answer: 'No’.
“Special Issue No. 3.
“Do you find from a preponderance of the evidence, that the defendant, J. R. Mosley, acted with malice, as the term ‘malice’ is defined for you, below, in giving his testimony to the Grand Jury?
“You will answer ‘Yes’ or ‘No’. Answer: ‘No’.
“Special Issue No. 4.
“Do you find from a preponderance of the evidence, in this case, that J. R. Mosley, the defendant, submitted to the Grand Jury a full, fair and correct statement to them of the facts relative to the transaction between him and the plaintiff, when he appeared before the Grand Jury?
“You will answer ‘Yes’ or ‘No’. Answer: ‘No’.
“Special Issue No. 5.
“Do you find from a preponderance of the evidence, that the plaintiff sustained any actual damage by reason of the statements given by the defendant, before the Grand Jury, upon which the indictment was returned by them, charging the plaintiff with Embezzlement ?
“You will answer ‘Yes’ or ‘No’. Answer: ‘Yes’.
“Special Issue No. 6.
“How much damages, if any, do you find and believe from the evidence, that the Plaintiff has suffered as a direct and proximate result of having been indicted for Embezzlement by the Grand Jury? Answer: ‘$1,000.00’.”

On these findings judgment was rendered that the plaintiff take nothing by his suit and that the defendant go hence with his cost. The evidence of the indictment, arrest, trial and acquittal is not questioned.

The appellant complains, among other things, that the court committed reversible error in failing and refusing to set aside the verdict of the jury and the judgment based thereon against him because of the misconduct of the jury.

The record discloses that the jury was given the case and retired to consider their verdict Friday afternoon and deliberated that day until about midnight; that on Saturday they continued their consideration of the case practically all day and were excused by the court Saturday afternoon until the following Monday at 10 o’clock A. M. when they reassembled and again began their deliberation which continued until a verdict was reached near midnight Monday. They discussed all -the questions at some length but never agreed on the answer to any of the issues until some time late on Monday evening. At that time they agreed that appellant should not recover exemplary damages but did agree that ,he was entitled to actual damages and by a ballot a short while before the other issues were answered, found in response to special issues 5 and 6 that appellant should recover actual damages in the sum of $1,000.00.

Prior to the agreement that appellant should recover actual damages and the amount thereof, the answers to none of the issues had been agreed upon and eight, and sometimes nine, of the jurors were in favor of answering issue No. 2, submitting “probable cause” and issue No. 3, submitting “malice”, in the affirmative, and the other jurors favored answering such issues in the negative. During the deliberation there was considerable discussion as to the effect the answers to issues Nos. 2 and 3 would have on appellant’s claim for actual damages; some of them thought, and so stated, that the answers to issues Nos. 2 and 3 were immaterial and did not affect the recovery of actual damages but applied only to the claim for exemplary damages. The discussion was apparently indulged in by the entire jury and those believing they were immaterial convinced those that had no opinion and those that were uncertain, or they were convinced by the discussion, that such issues were immaterial and would not affect the recovery of actual damages, after which issues Nos. 2 and 3 were answered negatively and the other issues answered with dispatch. The jurors, Ayres, Boyer, Milburn, Bullís and Ratcliffe, testified that in their opinion the testimony did show that the appellee acted with “malice” and without “probable cause” and but for the fact that they concluded from the discussion in the jury room that the answers to these questions were immaterial and would not affect appellant’s right to recover actual damages, they would not have agreed to answer issues 2 and 3 in the negative.

Two of the jurors testified, and all the circumstances and evidence show, in our opinion, that the jurors first agreed that appellant was entitled to a verdict and after they agreed on the amount of actual damages to be allowed they all, or at least, a majority, tried to prepare the answers to the special issues to accomplish that purpose and secure that result.

In Harvey v. Gulf, C. & S. F. Ry. Co., 261 S.W. 197, 201, the Court of Civil Appeals said: “It is therefore clear under these decisions that if the representations by Jur- or Henderson that it was immaterial what answer should be given to an issue submitted otherwise than upon the testimony were improper, and under all the evidence leaves it reasonably doubtful as to whether or not the improper statement or representation affected the answer of the jury to any of the questions, then a new trial must be granted.” This case was affirmed in Tex.Com.App., 276 S.W. 895.

In Mann et al. v. Cook, Tex.Civ.App., 11 S.W.2d 572, 577, the court holds it was error after the jury had made findings of damages for a juror to state in the jury room: “That it mattered not what their finding might be on the issue of plaintiff’s contributory negligence, such finding would not preclude a recovery by the plaintiff, since they had already passed on the issue of damages, and that by reason of such statement they did not thoroughly consider the issues of contributory negligence, and would not have made the findings that were returned on those issues, if those statements had not been made.”

In Walker v. Quanah, A. & P. Ry. Co., 58 S.W.2d 4, in an opinion approved by the Supreme Court, it is stated in the first paragraph of the syllabi that: “Jur.or’s statements during deliberation of case, submitted on special issues that finding of plaintiff’s contributory negligence would not prevent his recovery, held misconduct requiring new trial.”

See also McFaddin et al. v. Hebert et al., 118 Tex. 314, 15 S.W.2d 213; Carson et ux. v. Texas Pipe Line Co., Tex.Civ.App., 59 S.W.2d 328; Houston Electric Co. v. De Cuir, Tex.Civ.App., 69 S.W.2d 230.

In McFaddin et al. v. Hebert et al., supra, Judge Critz, in answer to a certified question, says [118 Tex. 314, 15 S.W.2d 216] : “If the court or the attorney, or any one else, is allowed to tell the jury the legal result of the answers, and to appeal to them in argument to so frame their answers so as to accomplish a result rather than to answer the issues truly as they find' the facts to be from the evidence, or if the jury is permitted to agree on the result, and then designedly form the answers to accomplish such result, the law providing for special issue verdicts would be an idle and vain thing.”

In Simmonds et al. v. St. Louis B. & M. Ry. Co., 29 S.W.2d 989, 990, an opinion approved by the Supreme Court, in holding reversible error the conduct of a jury in first agreeing on a verdict and then framing their answers to accomplish the agreement, Judge Sharp says: “The courts of this state have held, and it now seems to be the settled rule, that the purpose of article 2189 is to prevent a jury from first determining that they will give a party to the suit a verdict, and to then frame their answers so as to carry out their agreement. That the principal object in submitting a case to the jury upon special issues is that they should be removed from any bias or prejudice in favor of or against the parties by reason of the effect of their answers. The jury should answer each special issue as they find the facts to be from the evidence, without regard to its effect upon the judgment to be rendered in the cause.”

The appellee’s contention that the misconduct of the jury is not reversible error because he was entitled to a directed verdict is overruled.

The judgment is reversed and the cause remanded.


author: FOLLEY, Justice.

text:
    ÆTNA INS. CO. v. COLLINS.
    No. 5080.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1939.
    E. T. Miller and W. C. Vinyard, both of Amarillo, for appellant.
    Reeder, Reeder & Reeder, of Amarillo, for appellee.
   FOLLEY, Justice.

This is a suit upon a hail insurance policy issued by the appellant, Aetna Insurance Company, upon the 1938 wheat crop of the appellee, R. J. Collins, in Armstrong County, Texas. The policy was in the sum of $2,000. Only two issues were submitted to the jury. The first inquiry was whether or not the appellee’s wheat crop suffered any damages from hail on or about May 18, 1938, which was answered in the affirmative. The second issue inquired as to the extent of such injury which the jury answered “15%”. Upon this verdict the court entered a judgment for $300 in appellee’s favor.

The appellant presents only one proposition for reversal of this case. It asserts that the court erred in admitting over its objections the testimony of J. D. Massey, Jr., as to his opinion that the wheat was damaged by hail and that the court further erred in refusing the appellant a new trial based upon the alleged erroneous introduction of such testimony. The substance of such assignment was that the witness was not qualified to give his opinion as to the damages.

The witness Massey harvested a portion of the wheat crop of the appellee. He testified that he was twenty-six years of age and had been engaged in wheat farming most all of his life; that he had planted and harvested as many as ten or twelve wheat crops of his own; that during his experience as a farmer he had had occasion to observe wheat crops which had been hailed upon; that he had had occasion to estimate the percentage of damage of various wheat, crops which had been injured or destroyed by hail; that he had observed the condition of appellee’s wheat during the time he was on the ground and engaged in cutting the wheat; that there were lots of heads of the wheat on the ground where the stalk had been broken and many white heads of wheat were standing in the field; that during his experience as a wheat farmer and from his observations of wheat fields generally he had seen white heads scattered about in the fields at harvest time; that he had investigated such conditions and that he was in a position to express an opinion as to what caused the white heads; that in his opniion it was caused by hail damaging the joint containing the head; that such heads were premature and contained no grain; that while he was harvesting appellee’s wheat he undertook to estimate the extent of the damage that was caused by the hail; and that according to his observation and opinion as he saw it at that particular time the damage by hail to the crop in question was between twenty and thirty per cent.

The above testimony, of which we have given only the substance, covered several pages of questions and answers and was interspersed with numerous objections of the appellant. • The appellant’s assignment in regard to the testimony of this witness is based chiefly upon the negative answer of the witness to a question asked him by the court. During the course of the examination of the witness, and after he had testified that he thought hail damage was the cause of white heads in wheat fields generally, he was asked by counsel for the appellee whether or not he was in a position to express an opinion as to what caused the white heads in appellee’s wheat field. Counsel for appellant objected because the question was too general and the objection was overruled by the court. Thereupon, instead of a response “Yes” or “No”, apparently sought by the question, the witness answered, “I think the hail caused it”. The court then admonished the witness that his answer was not responsive to the question and the court himself asked the witness the following question: “Are you, in your opinion, in a position to express an opinion, from your observation and experience, as to what caused the white heads in that field? Can you say or not say? That is the question”. To this interrogation he answered “No”. It is apparent from what later transpired that the witness either misunderstood the question propounded by the court or he construed it literally and thereupon invaded the province of the court by declaring himself incompetent to express an opinion in the matter. In either event .he later testified definitely that in his opinion from his observation and experience the white heads in appellee’s field were caused by hail. The fact that the trial court later permitted the witness to so testify is conclusive, we think, that the court considered the witness qualified to answer the question, and it is our opinion the record amply supports the trial court’s conclusion in this respect. In this connection the fact that the examination and observations made by the witness occurred over a month after the alleged hail would not render his testimony thereon inadmissible but would only affect the weight to be placed upon it by the jury, and especially is this true since the evidence showed that the hail of May 18, 1938 was the only one suffered by the wheat crop that year. 17 Tex.Jur. 346, para. 113. Moreover, whether or not the witness was qualified to express his opinion upon the subject was largely within the discretion of the trial court, and unless there has been a clear abuse of such discretion, which is not the case herein, we are unauthorized to disturb the action of the trial court in admitting in evidence the opinion of the witness on the matter in issue. We therefore overrule this assignment. Missouri, K. & T. R. Co. of Texas v. Hedric, Tex.Civ.App., 154 S.W. 633, writ denied; Fire Ass’n of Philadelphia v. Powell et al., Tex.Civ.App., 188 S.W. 47, writ refused; Rogers & Adams v. Lancaster et al., Tex.Com.App., 248 S.W. 660, and authorities cited.

The judgment is affirmed.


author: GRISSOM, Justice.

text:
    WATSON et al. v. ROCHMILL et al.
    No. 1941.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 27, 1939.
    Rehearing Denied Dec. 1, 1939.

      Ritchie & Ritchie, of Mineral Wells, and Lyndsay D. Hawkins, of Breckenridge, for appellants Geo. J. Watson, C. E. Allen, and L. L. Brown.
    Slay & Simon, of Fort Worth, for appellant Farmers Mut. Royalty Syndicate, Inc.
    J. R. Creighton, of Mineral Wells, for intervener Gordon Jones.
    Slay & Simon, of Fort Worth, and W. O. Gross, of Mineral Wells, for appellees Henry Rochmill and F. G. Dubose.
   GRISSOM, Justice.

Geo. J. Watson et al., alleging that they, and Farmers Mutual Royalty Syndicate, Inc., were the owners of all the minerals in a certain tract of land covered by an oil and gas lease, instituted this suit against Rochmill et al. for the purpose primarily of having a lease owned by Rochmill et al. adjudged to have terminated by virtue of the terms of the lease. The court instructed a verdict for defendants, and, as to a one-fourth royalty interest instructed a verdict for intervener Gordon Jones against the defendant Farmers Mutual Royalty Syndicate, Inc., and rendered judgment accordingly. Plaintiffs and defendant Farmers Mutual Royalty Syndicate, Inc., have appealed.

The facts, stated as briefly as possible, are shown by the undisputed evidence (except where the contrary is indicated) to be substantially as follows:

On May ■ 14, 1925, an oil and gas lease was executed covering the land in controversy by L. C. Slemmons et al. to R. E. ■Moore et al. The lease contained the following provisions:

■■“It is agreed that this lease shall remain in force for a term of Three (3) years from May 25, 1925 and as long thereafter as oil or gas, or either of them is produced from said land by the lessee.
“In consideration of the premises the said lessee covenants and agrees:
“1st. To deliver to the credit of lessor, free of cost, in the pipe line to which they may connect their wells, the equal one-eighth part of all oil produced and saved from the leased premises.”

The consideration recited was $10 and “the covenants and agreements” contained in the contract. The evidence shows that soon after the execution of this lease a well was drilled to what was supposed to be the top of a paying sand when a casing was ruined and “the hole lost.” The rig was then moved a short distance, another well drilled and oil produced. About $60,-000 was spent in the development of the lease in question. After production was obtained, a connection with a pipe line was secured and appellee Rochmill acquired the interest of the original lessees. The well produced oil continuously from 1925 until about May 21, 1932. The oil, both the %ths of the oil belonging to the assignees of the lessees and the ⅛⅛ of the oil belonging to the royalty owners, was marketed through the Prairie Pipe Line Company until January 1931. At that time the Prairie Pipe Line Company severed its connection with the well and withdrew from that territory. There was no other pipe line.in that territory. From January, 1931, to May, 1932, oil produced from the well was transported by trucks and sold to a refinery at Ranger. Said refinery purchased the oil belonging to the lessees and to the owners of the royalty interest. The appellants then owned the royalty, knew that said refinery was buying the oil and that it was being delivered to the refinery by trucks. Appellants, without comment, accepted said method of marketing the oil and accepted the royalty checks from the purchasing refinery. The trucks hauling the oil from the well to the refinery were designated by the Railroad Commission as pipe lines. The well produced about one barrel of oil to 10 barrels of salt water. It was low gravity oil. It was not as readily marketable as uncut oil of high gravity. About May 21, 1932, the refinery at Ranger refused to further take the oil from this lease. The price of oil generally reached an extremely low level, selling in East Texas at 10 cents a barrel. The oil market was almost completely demoralized. No market was available for the kind of oil produced on the lease. If the oil had been sold no profit could have been obtained since the price of hauling the oil from the well to a refinery was equal to or greater than the price of oil. In addition to the general business depression there was a special, slump in the oil business. No oil was sold from this lease from May, 1932, to January, 1935, for the reasons above outlined. This condition was evidently considered by Rochmill to be temporary. From May, 1932, to January, 1935, Rochmill (a) employed Burt Slem-mons to work on the well and guard the property; (b) Rochmill and his employee, Slemmons, constantly endeavored to procure a market for this oil. They contacted many independent oil men, oil companies, pipe line companies, refineries and the Railroad Commission in an effort to market the oil. No purchasers could he found, (c) Acid tests were made in the well and the well was acidized, a swabbing machine was brought from Ranger and the well was swabbed and cleaned out. A derrick was tom down, rebuilt and placed over the well in question, an engine house built, the tubing was pulled, rods were put in, complete pumping equipment was obtained and put on the well. A market for the oil having been, after diligent effort, finally obtained in January 1935, the production of oil was resumed by use of the pump, (d) Application was made to "the Railroad Commission and permission obtained to market the oil by track to a refinery at Albany, (e) During the period when' oil was not sold from the well, none of the personal property or equipment was removed from the lease. On the contrary, pumping equipment and other property was placed on the lease by Rochmill from May 1932 up to and including the day this suit was filed at an expense of about $8,-000. (f) Rochmill paid taxes on the leasehold estate and personal property there situated up to and including the years 1932 to 1936. (g) After production of oil was resumed in January 1935; the oil was sold to refineries at Albany, Graham and Jacksboro. The oil was transported from the well to said refineries by truck, Roch-mill having' made application for and obtained permission to do so from the Railroad Commission. The manner of such sales and transportation was the same as in the prior sales to the refinery at Ranger in 1932, which method was known and acquiesced in by appellants. Said last mentioned refineries paid Rochmill for %ths of the oil. Operation continued in such manner from January 1935 to April 1937 when appellants instituted this suit and a receiver was appointed, (h) From January 1935 to April 1937, pumping was done both in the daytime and night time and oil was hauled from the well both in daytime and at night time by trucks, (i) During all this time none of appellants took any affirmative action in connection with the property.

Two of the appellants live in Palo Pinto County where the well in question is located. One of them, according to the testimony, owns a ranch within about a-mile and one half of the well. Although appellants contend that the lease, by virtue of its own provisions, terminated in May 1932, none of them asked Rochmill for a release, or to remove his personal property from the premises, nor did they do or say anything inconsistent with acquiescence in the actions of Rochmill in his possession, control and operation of said well and lease. None of the appellants rendered any of the property for taxation, or paid any taxes thereon, nor asserted any claim to or exercised any act of dominion over the minerals or personal property left on the lease. Appellants say that, they had no knowledge of the fact that oil was being produced 24 hours a day from January 1935 to April 1937: (There is a conflict in the evidence as to whether Slemmons notified Watson of the fact of such production.) Under the instructed verdict, if it should be material whether plaintiffs had knowledge of the resumption of production, we must, consider the case upon the theory that they, had no such knowledge. It is evident that a very slight investigation, or inquiry, would have resulted in such information being obtained by appellants.

In June, 1938, plaintiffs Geo. J. Watson, C. E. Allen and L. L. Brown, filed their Second Amended Petition complaining of Henry Rochmill individually and as trustee, F. G. DuBose, Texas Pacific Coal & Oil Company, a corporation, Farmers Mutual Royalty Syndicate, Inc., a corporation, and Gordon Jones. Appella'nts alleged, among other things, the execution of the oil and gas lease; that plaintiffs, and defendant Farmers Mutual Royalty Syndicate, Inc., and Gordon Jones “are now the owners of all the minerals underlying the above lands * * That by the terms of the lease lessor granted, etc., said property to the lessee for the sole purpose of mining and operating for oil and gas, and the conduct of operations generally in connection therewith, that the lease was for a term of three years from May 25,- 1925 and as long thereafter as oil or gas be produced from said land by the lessee. That the lessee drilled an oil well upon the leased premises, that the well produced oil in paying quantities, that said well was the only producer ever drilled on any part of the leased premises; that Rochmill continued the operations of the lease until May 21, 1932, at which time the production ceased. That for sometime prior to May 21, 1932 production from the well had greatly declined “and the well was making excessive quantities of salt water, said defendant representing at the time that the well and lease could no longer be operated profitably. Thereupon and about May 21, 1932, the well being choked up, all efforts to produce oil from the well were discontinued, no activities or operations of any kind or character were conducted on any part of the leased premises for the production of minerals, and there was a total and complete cessation of production of oil or gas or any other minerals from said lands covered by the lease of May 14, 1925. Said defendant, his agents and employees, abandoned the premises and plaintiffs thereupon elected to terminate, and did terminate and cancel said lease and all rights thereunder, 'and, the primary term having expired, said leasehold estate thereupon terminated and was forfeited by the failure to produce oil or gas or other minerals from'the premises; and said defendant thereafter had no further rights under the lease or upon said premises.”

The provision in the lease “It is agreed that this lease shall remain in force for a term of three (3) years from May 25, 1925 and as long thereafter as oil or gas, or either of 'them is produced from said land by the lessee” constituted a limitation on the estate granted to the lessee. The happening of the contingency therein mentioned, that is, cessation of production, after expiration of the. primary term, would cause the lease to terminate by virtue of said provision of the lease. No fe-entry, or suit, or other action was required by lessor to effect termination of the estate.

Appellants first proposition is to the effect that, because no oil was produced from the leased premises for two years and 7 months, the lease terminated and the court should have instructed a verdict for plaintiffs.

The question thus . presented involves the construction of the words of limitation in the lease, namely, “as long thereafter as oil, or gas, or either of them, is produced from said land by the lessee.” More particularly, the inquiry is: What did the parties mean by the word “produced”? Was it used in such a sense that the estate would terminate if the flow of oil was interrupted for any length of time whatever, regardless of the reason therefor? Would the estate terminate if production were shut off to clean out the well, or to acidize it, or because of a broken pipe, or anything else of a merely temporary nature? That any such meaning can- be ascribed to the word is so unreasonable as not to be debatable. However, precedent is not wanting in the decisions to th'e- effect that a temporary cessation of production does not terminate a lease, the duration of which is limited similarly to the one here involved. See 31 Tex.Jur. p. 908; Scarborough v. New Domain Oil & Gas Co., Tex.Civ.App., 276 S.W. 331; Texas Pacific Coal & Oil Co. v. Bratton, Tex.Civ.App., 239 S.W. 688. Isolated expressions in other decisions are to the same ¿fleet, but they may be of doubtful value due to the fact that they seem to recognize no distinction between the termination of a lease because of a limitation and termination by forfeiture. We are here considering the limitation 'of an estate concerning which there is rarely, if ever, any occasion to consider or discuss principles peculiar to equity jurisprudence. It is believed we may reasonably pursue the inquiry into the meaning of the limitation in question, based upon the premise that it was not the intention of the parties to the lease contract that the event or contingency which was to terminate the estate was a temporary cessation of the production of oil.

What, then, would constitute a cessation of production? More concretely, as applied to the facts of this case, the question is, did the evidence establish conclusively as a matter of law, or raise a fact issue to be submitted to the jury, that the cessation of production was not temporary? Plaintiffs had the burden of establishing that there had been a cessation of production within the meaning of the quoted provision of the lease. Since, according to the conclusion above announced, such a cessation would not be shown by a temporary cessation, it results that practically, and in effect, plaintiffs had the burden of establishing that the cessation of production relied upon as terminating the lease was not temporary.

What would constitute a cessation of production, disregarding, as our conclusions would require, all temporary cessations? Such a cessation would undoubtedly be shown by evidence which showed an abandonment of the lease. That, as has many times been held, would include as an essential element an intention of the lessee not to further produce. It would be possible, however, for evidence to exist within ten minutes after a physical cessation of production sufficient to show the character of cessation necessary to terminate the lease. Such evidence, of course, by its very nature would have to exclude the fact that the cessation was temporary. Manifestly, however, the time element would not be controlling. If not. controlling in one case, it may well be questioned whether the mere element of time alone (that is, duration of cessation) may be controlling in any case.

The length of time from the cessation of production (whether temporary or not) to the resumption of production was about two years and seven months. Unless. controlling effect be given to the time element alone, then, we think, the undisputed evidence as hereinbefore 'detailed established conclusively that the cessation of production was temporary. Without intending to intimate that the character of cessation which constitutes a limitation upon the estate must be the equivalent of an abandonment, or that the time element is without effect in all cases, it is our conclusion that the time here shown when there was no production, in the light of the undisputed evidence, did not even raise a question of fact that the cessation of production was not temporary.

We think the court, for this reason, properly instructed a verdict for defendants Rochmill et al. It, therefore, becomes unnecessary for us to decide whether the instructed verdict was proper for other reasons. See, also, Masterson v. Amarillo Oil Co., Tex.Civ.App., 253 S.W. 908, 914; Lamb v. Vansyckle, 205 Ky. 597, 266 S.W. 253; Texas Pacific Coal & Oil Co. v. Bruce, Tex.Civ.App., 233 S.W. 535; Hines v. Hanover Co., Tex.Com.App., 23 S.W.2d 289, 290; Union Sulphur Co. v. Texas Gulf Sulphur Co., Tex.Civ.App., 42 S.W.2d 182, writ refused; Note, 72 A.L.R. 372.

As to the contest between Gordon Jones and Farmers Mutual Royalty Syndicate, Inc., as to ownership of a ¼⅛ of the royalty, Jones’ suit against the Royalty Syndicate was one in trespass to try title. Jones claimed title thereto by virtue of a personal judgment against the Manning Oil Corporation (through whom Farmers Mutual Royalty Syndicate, Inc., claimed title by a later purchase), an execution, levy and constable’s deed by virtue of that judgment. The judgment was by default and recited “that the defendant has been duly and regularly cited to appear and answer.”

Appellant Farmers Mutual Royalty Syndicate, Inc., takes the position that said judgment in favor of Jones in Jones v. Manning Oil Corporation, an Arizona corporation, was void, and, therefore, subject to collateral attack, and that said appellant was entitled to show its invalidity by introduction in evidence of the pleading, citation and return thereof in the case of Jones v. Manning Oil Corporation.

The petition contained the allegation that the Manning Oil Corporation was an Arizona corporation, doing business in Texas, “whose field agent in Texas is John Pierson and in whose absence J. C. Norman acts as such, both of whom may be served with process in Shackelford County, Texas.”

The sheriff’s return on the citation, insofar as is here material, was as follows:

“Came to hand on the 12 day of September, 1931, at 10:30 o’clock A. M., and executed in Shackelford County, Texas, by delivering to each of the within named defendants, in person, a true copy of this citation (together with the accompanying certified copy of the plaintiff’s petition) at the following times and places, to-wit:
NAME DATE TIME
Month Day Year Hour Min.
J C Norman Sept 12 1931 10.45”

In a collateral attack on a judgment, a recital in the judgment that defendant was duly cited to appear is conclusive and lack of jurisdiction over the defendant cannot be shown by contradiction of such judgment recital by other portions of the record, such as the citation and sheriff’s return thereon.

Henry v. Beauchamp, Tex.Civ.App., 39 S.W.2d 642; Treadway v. Eastburn, 57 Tex. 209; Stark v. Sims, 5 Cir., 230 F. 115, affirmed 5 Cir., 236 F. 731; Humphrey v. Beaumont Irrigating Co., 41 Tex.Civ.App. 308, 93 S.W. 180, writ refused; Gibbs v. Scales, 54 Tex.Civ.App. 96, 118 S.W. 188, writ refused; Martin v. Burns, 80 Tex. 676, 16 S.W. 1072; Chapman v. Kellogg, Tex.Com.App., 252 S.W. 151.

An exception to such general rule exists when the judgment containing such recital further recites the facts on which the conclusion of due service is based and such recited facts show want of service, or when some portion of the record is referred to in the judgment, and that portion of the record so referred to shows the judgment recital' to be erroneous. Fowler v. Simpson, 79 Tex. 611, 15 S.W. 682; 23 Am.St.Rep. 370; Lutcher v. Allen, 43 Tex.Civ.App. 102, 95 S.W. 572, writ refused. Said exception is not applicable here.

Said appellant contends that another exception to the stated rule exists in the case of non residents; that a non resident defendant can make a collateral attack on a judgment and show lack of service of citation, contrary to the judgment recitals, by introduction of other portions of the record.

Said appellant cites in support of that contention the following cases: Watson v. McClane, 18 Tex.Civ.App. 212, 45 S.W. 176, no writ of error; Lutcher v. Allen, 43 Tex.Civ.App. 102, 95 S.W. 572, writ refused; Essanay Film Mfg. Co. v. Kane, 258 U.S. 358, 42 S.Ct. 318, 319, 66 L.Ed. 658.

The first two cases simply hold, insofar as could be material here, that a personal ¡judgment by default against a non resident defendant, upon citation by publication, is void, and, notwithstanding a recital o.f due service of process in the judgment, the pleading and process can be used to collaterally attack the judgment. Lutcher v. Allen, supra.

The third case above cited simply holds that a Federal court will not enjoin prosecution of' a suit for damages in a state court against a non resident defendant upon whom service was attempted by “service of process upon the Secretary of State, as appellant’s agent” upon the contention that' such service was void and was not due process within the meaning of the 14th Amendment of the Federal Constitution, U.S.C.A., and that the threatened prosecution of the suit would result in taking appellant’s property without due process of law. The injunction was denied and the court said: “Besides a challenge of the 'jurisdiction of the state court for want of due process over defendant in personam, to be interposed in that court, and, if overruled, followed by invoking the revisory jurisdiction of this court, the final judgment may be questioned collaterally, if in truth there be a want of due process, either defensively, as in Pennoyer v. Neff, 95 U.S. 714, 723-733, 24 L.Ed. 565 [569-572]; see, also, York v. Texas, 137 U.S. 15, 20, 21, 11 S.Ct. 9, 34 L.Ed. 604 [605]; Western Life Indemnity Co. v. Rupp, 235 U.S. 261, 273, 35 S.Ct. 37, 59 L.Ed. 220 [224]; Baker v. Baker, E. & Co., 242 U.S. 394, 401-403, 37 S.Ct. 152, 61 L.Ed. 386 [391-393]; or by adopting the more aggressive method pursued in Simon v. Southern R. Co., supra [236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492], See, also, Wells, F. & Co. v. Taylor, 254 U.S. 175, 183-185, 41 S.Ct. 93, 65 L.Ed. 205 [211, 212], In short, observance by the federal courts, towards litigants in the state- courts, of the comity prescribed by section 265, requires ‘ orderly procedure but involves no impairment of the substance of constitutional right.”

It has been held that a personal judgment rendered against a non resident defendant based upon citation by publication is void and subject to collateral attack, regardless of recitals in the judgment of due service. However, we have no such situation here. The judgment was not based upon an attempt to obtain jurisdiction of the person of the defendant by service of citation by publication on a non resident out of the state, but upon personal service in Texas. We think the rule contended for, if correct, is not applicable here. See San Bernardo Townsite Co. v. Hocker, Tex.Civ.App., 176 S.W. 644, 646; Wm. Bondies & Co. v. Bassel-Flewellen, Tex.Civ.App., 28 S.W.2d 1109; 33 Tex.Jur. 853, 25 Tex.Jur. 703; Treadway v. Eastburn, 57 Tex. 209.

Since the title of defendant Farmers Mutual Royalty Syndicate, Inc., depended upon invalidity of the judgment under which Jones claimed title, we think the court did not err in instructing a verdict for Jones against said Royalty Syndicate.

The judgment is affirmed.


author: SLATTON, Justice.

text:
    SAMES v. NAUER.
    No. 10623.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1939.
    Rehearing Denied Dec. 30, 1939.

      Lori D. Herbert, of Alice, for appellant.
    L. D. Griffin, of Alice, for appellee.
   SLATTON, Justice.

H. E. Sames, doing business under the name of Alice Motor Sales Company, 'brought this suit against John Nauer, in the County Court of Jim Wells County, to recover the unpaid balance on a promissory note, plus interest and attorney’s fees, and ■to foreclose a chattel mortgage lien securing the payment of said note against one automobile. John Nauer answered by general denial and alleged “that on or about the 14th day of October, 1938, when this ■defendant could not make on said debt one installment payment on said note and which •was secured by lien on said automobile; ■said automobile was of the reasonable market value of $625.00, and that the plaintiff herein forceably took possession of said automobile and converted the value thereof to its own use and benefit and at which time this defendant only owed the plaintiff the sum of $508.69, and thereby damaged this defendant in the sum of $116.31.”

A trial to the court resulted in a judgment denying a foreclosure of the lien and in favor of Nauer against Sames in the ■sum of $116.31 and costs. Sames appeals. ■

The appellant complains of the failure of the court to allow a recovery for the .amount of the unpaid balance of the note, plus interest and attorney’s fees, and foreclosure of the chattel mortgage lien, and •that the evidence is insufficient to sustain the judgment accorded to Nauer upon his cross-action. There is some question in the minds of some of the Justices of this Court .as to whether the cross-action of Nauer seeks a recovery for the value of the auto-mobile or the sum of $116.31. However, the act of conversion pleaded by Nauer was .a forceable taking of the automobile and the proof shows without dispute that the automobile was voluntarily turned over to the holder of the indebtedness by Nauer, ■the trial court so found. The trial court found that Sames had a legal right to repossess the car under the terms óf the chattel mortgage, but evidently concluded that because Sames did not immediately advertise the car for salé under the terms of the mortgage he was thereby guilty of conversion.

If Sames had the legal right to repossess the car then he could not be guilty of forcibly taking possession thereof, which was specifically alleged by Nauer. It may be that on another trial facts may be pleaded and proved which in law amount to a conversion, occurring after the legal repossession by Sames, but such acts were not pleaded by Nauer on the trial in the court below. Therefore, we must sustain the appellant’s complaint that the evidence does not support the allegations contained in Nauer’s cross-action, and that the judgment entered thereon cannot stand.

In view of another trial, perhaps upon recast pleadings and a different record, we deem it unnecessary to pass on other questions raised by the appellant.

The judgment is reversed and the cause remanded.


author: CODY, Justice.

text:
    LARSON et al. v. STERLING MUT. LIFE INS. CO.
    No. 10831.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 23, 1939.
    Rehearing Denied Dec. 14, 1939.

      Harry D. Larson and Emanuel Roos, both of Eagle Lake, for appellants.
    G. H. Miller, of Columbus, for appellee.
   CODY, Justice.

Having affirmed the judgment of the trial court on the.original hearing on the grounds that appellants’ cause was barred, it was not necessary to state the facts. Our disposition of the motion for a new trial now requires that a full statement be made.

This is an action by appellants against appellee to cancel two companion contracts on two different grounds. First, that they were consummated in fraud; second, that they were ultra vires and illegal on the part of the defendant.

The following statement, taken substantially from appellants’ brief, we consider accurate, though somewhat extended:

On or about the 7th day of October, 1935, Harry D. Larson, plaintiff below, sued appellee, and on May 20, 1938, he filed his fourth amended original petition, upon which the court ruled on the questions of law involved, and in substance alleged, first, that on or about the 19th day of July, 1930, the Sterling Mutual Life Insurance Company, through its agent approached Nellie Buffington Larson, wife of plaintiff, in Colorado County, Texas, with knowledge that she was dealing with community funds, and with the purposes and designs of securing from her the sum of $200 of community funds and inducing her to enter into and sign a contract (which was attached to said pleading), and fraudulently represented to her that the appellee was organizing a Life Insurance Company; that it was soliciting $200 apiece from its policy holders and would issue stock in the new company for the money; that the company was then in process of organization. That she believed said representations, and had no way of ascertaining their untruthfulness, and relying upon and believing said representations and statements she paid on said date to the defendant $200 of community funds of plaintiff and his wife, and entered into the said contract, and if she had known that said representations and statements were not true she would not have paid the defendant the said $200 or entered into said contract.

That on or about the 21st day of March,. 1932, the appellee through its agent, L. A. Miller, again approached Nellie Buffington Larson, in Colorado County, Texas, with knowledge that she was dealing with community money, and with the purposes and designs of securing from her the sum of $200 of community money of plaintiff and his said wife, and inducing her to enter into and sign a contract (which was likewise attached to said pleading), fraudulently represented and stated to her that the appellee was soliciting another $200 from the policy holders to provide more capital stock for the company which they were organizing and that they would send her stock for the money as soon as he, L„ A. Miller, returned to the office in Houston, Texas; that she believed said representations and had no way of ascertaining their untruthfulness, and relying upon said statements and representations she paid to-defendant $200 of community money and entered into the said contract. That defendant failed to deliver stock but delivered two instruments styled Certificates of Indebtedness instead and that said instruments had no value at the time they were delivered, that they are not binding obligations on defendant and that on their face they impute no value.

That plaintiff did not consent to his. wife paying to appellee the sums of $200> on each of the said mentioned dates, that he had no knowledge of her paying appel-lee thé said sums of money or of her entering into the said contracts, or any information that would put him on inquiry until on or about the 5th day of July, 1935, when his wife advised him and told him -of said contracts and the payment of the said $200 on each of the said dates; that plaintiff immediately wrote appellee and repudiated her contracts, tendered back the instruments styled Certificates of Indebtedness and demanded a return of the money, which defendant failed and refused to do.

As a second ground for recovery plaintiff alleged in substance that appellee is a Mutual Life Insurance Company incorporated under Chapter Seven, Vernon’s Annotated Civil Statutes, Titled Mutual Life Insurance Companies, and is governed by and its authority and powers are regulated by Articles 4800 to 4819 therein, and as such entered into a contract with plaintiff’s wife, Nellie Buffington Larson, on or about the 19th day of July, 1930, which in substance and omitting the formal and unnecessary parts, recites, first, that it is the desire of the contributors to their surplus fund that the Sterling Mutual Life Insurance Company be converted into a stock company and that they receive stock in the new company for the money they contributed. Second, the contributors agree to receive stock with a par value of 50% of the amount of money contributed. Third, the officers and board of directors of appellee agree that when they have secured $200,000 in contributions they will submit to the policy holders the proposition of converting appellee into a stock company and if the policy holders vote to convert it into a stock company the wishes of the policy holders will be carried out and the stock of the new company issued to the contributors with a par value of 50% of the amount of the contributions. Fourth, that they have received $200 from Nellie Buffington Larson for the purpose of promoting or conserving appellee’s business. Fifth, that the money received was to be and become the unconditional property of appellee. Sixth, that it may be repaid to the contributors after the company (Sterling Mutual Life Insurance Company) has set aside a free surplus of $10,000.

That appellee again approached Nellie Buffington Larson on or about the 21st day of March, 1932, and entered into another contract containing the same provisions as the contract entered into on July 19, 1930.

That under and by virtue of said contracts plaintiff’s wife paid the appellee the sum of $200 on each of the above named dates; that it was community money of plaintiff and his wife; that plaintiff did not consent to his wife paying appellee the said sums of money or consent to her entering into said contracts; that he had no knowledge of said contracts or of his wife paying the said sums of money to ap-pellee; that he had never ratified or approved said contracts and that he repudiated said contracts as soon as he became aware of them; that the defendant has not delivered any stock for the money so paid or advanced or given anything else of value; that the contracts are wholly ex-ecutory; that they are illegal, ultra vires, indefinite, contradictory, uncertain and ambiguous, setting out the parts of the contract which were alleged to be conflicting. Plaintiff further alleged that the real contract entered into between his wife and appellee provided that the Sterling Mutual Life Insurance Company was to raise $200,000 and organize a Life Insurance Company and issue stock with a par value of 50% of the amount of money paid. Plaintiff set out seven instruments in writing, alleging that instruments 3 and 4 formed the first contract and instruments 3 and 7 formed the second contract, and instruments 1, 2, and 5 and 6 were contemporaneous writings with instruments 3, 4 and 7; that they were all between the same parties and dealt with the same subject matter, the organization of a Life Insurance Company.

Plaintiff tendered into court the parts of the contracts styled Certificates of Indebtedness, offered to do equity, alleged that he had been damaged in the sum of $400, prayed for a cancellation of the several contracts that his wife had entered into with appellee; that he have judgment against appellee in the sum of $400 with 6% interest on the several sums of money from the dates they were received by ap-pellee.

In the alternative, if the monies alleged to be community funds were shown to be the separate property of plaintiff’s wife, or property over which she has control, she, the said Nellie Buffington Larson, joins with plaintiff, her husband, adopting the allegations as set out, and alleged that she had been damaged by said contracts in the sum of $400, plus 6% interest upon the said several sums from the date they were received by appellee, and that it is justly indebted to her in the sum of $400, plus 6% interest on the several sums of money from the dates they were received by it. She prayed for. a cancellation of said contracts, that they be set aside and held for naught, and offered to do equity, and plaintiff and wife, Nellie Buffington Larson, prayed for a judgment against appel-lee for $400 and 6% interest on the sums of money heretofore mentioned from the dates they were received by said appellee, for the use and benefit of her separate estate.

Appellee answered, and leveled special exceptions at plaintiff’s petition, one ground of which was directed to the first count in the petition and their substance was to raise the issue of estoppel by contract in bar of and as an objection to plaintiff’s allegation of fraud and misrepresentations. One exception, .leveled at the second count of the petition, objected to the consideration of certain of the instruments pled as contemporaneous writings. Another group of the exceptions was leveled at the second count in the petition, the substance of which is: that the contracts speak for themselves and plaintiff should not be permitted to vary them by parol evidence or put his interpretations upon them. Other exceptions were addressed to the petition as a whole and raised the issue of the 2 and 4 year statute of limitation. Vernon’s Ann.Civ.St. arts. 5526, 5527.

Upon a hearing by the court on the exceptions, the court sustained them, and plaintiff declining to amend, the court dismissed the suit.

Upon the submission of this case we affirmed the judgment of the trial court on the ground that the two-year statute of limitation applied. We have concluded that we were in error, and that this suit is one to which the four-year statute applies. Where a plaintiff alleges that he was fraudulently induced to subscribe for stock, and his allegation further shows the purpose to recover what he has paid and to repudiate the contract, the suit is really for rescission and for the restoration of the status quo, and the two-year statute is not applicable. Clark v. Texas Co-op. Inv. Co., Tex.Com.App., 231 S.W. 381. The allegations bring the case within the ruling of the Clark case, and Causeway Inv. Co. v. Nass, Tex.Com.App., 111 S.W.2d 703, does not require us to hold otherwise. The petition is sufficient in other respects to make out a prima facie case. Sterling Mutual Life Ins. Co. v. Larson, Tex.Civ.App., 99 S.W.2d 1013. Estoppel by contract cannot apply where the contract was induced by fraud, for the defense of fraud relates back to the inception of the matter; and admission of the proof of deceit in making contemporaneous and collateral promises is not to vary the terms of the written instrument procured by such means, but to show facts which prevented such written instrument from taking effect as a binding obligation. King v. Wise, Tex.Com.App., 282 S.W. 570.

We have concluded that the court erred in sustaining the special exceptions. Appellants have alleged a cause of action on which evidence is admissible.

Motion for rehearing is granted, the judgment of the court below is reversed and the cause is remanded, and our former opinion is withdrawn.

Motion granted.