author: ALEXANDER, Justice.

text:
    CONTINENTAL CASUALTY CO. v. MILLER.
    No. 2177.
    Court of Civil Appeals of Texas. Waco.
    Jan. 4, 1940.

      Boone, Henderson, Boone & Davis, of Corpus Christi, for appellant.
    Jas. G. Cook, of Sinton, and Jules J. Delambre, Jr., of Houston, for appellee.
   ALEXANDER, Justice.

This suit was brought by Stephen Miller, a minor fourteen years of age, by his father as next friend, against George Reader, a constable of San Patricio county, and Continental Casualty Company, the surety on said constable’s official bond, for damages for the alleged unlawful arrest' and imprisonment of the plaintiff. A trial before a jury resulted in judgment for the plaintiff against both defendants for the sum of $100. The Surety Company alone appealed.

On the occasion in question the constable went to the boy’s house, and, without a warrant, arrested the boy for investigation with reference to his connection with a misdemeanor which the boy was suspected of having committed the. previous day. The boy was taken to Aransas Pass and placed in a calaboose over night and then carried to Sinton and placed in jail with adult prisoners, where he so remained for about two days before being released. The first material question to be determined is whether or not the constable had authority to make the arrest under the circumstances without a warrant. A peace officer, other than a municipal police, is not authorized to make an arrest without a warrant except in the case of a felony or breach of peace committed in his presence or in the presence of a magistrate, or when a felony has been committed and the offender is about to escape. Code of Criminal Procedure, Arts. 212-215; 4 Tex.Jur. 743. The fact that the person arrested or attempted to be arrested is a minor within the juvenile age does not alter the case. He has the same right to be secure in his person from all unreasonable seizures as is guaranteed by the Constitution, Art. 1, sec. 9, Vernon’s Ann.St. as does an adult person. While Art. 1088 of the Code of Criminal Procedure provides that “when any male child under seventeen years of age *■ * * is arrested on any charge, with or without warrant, such child instead of being taken before a justice of the peace or any police court, shall be taken directly before the county or district court * * this docs not confer on peace officers any extraordinary authority to arrest children without warrants. Articles 216 and 217 of the Code of Criminal Procedure contain similar provisions with reference to the arrest of defendants generally, and yet it would hardly be contended that these last articles con- ■ ferred any extraordinary authority on peace officers to make arrests. These articles of the Code of Criminal Procedure, Arts. 216, 217 and 1088, are merely intended to provide for the course to be pursued by the officers when an arrest has been otherwise lawfully made without a warrant. They are not intended to broaden the field for the allowance of an arrest without a warrant. It is not contended that the case for which the plaintiff was apprehended by the constable otherwise comes within any exception to the rule that requires the issuance of a warrant in order to authorize the arrest. We therefore hold that the constable was not authorized to arrest the plaintiff as he did, although he was a juvenile, without a warrant.

The rule is well established in this state that in order to recover of the sureties upon the official bond of a sheriff or constable for a trespass committed by him, it. must be shown that the act was done in the performance of a duty legally imposed upon him by virtue of his office. Such sureties are not liable for such trespasses committed without warrant or authority. 38 Tex.Jur. 492; Bailey v. Moseley, Tex.Civ.App., 77 S.W.2d 603; Republic Underwriters v. Norman, Tex.Civ.App., 97 S.W.2d 976; Gold v. Campbell, 54 Tex.Civ.App. 269, 117 S.W. 463; Sneed v. McFatridge, 43 Tex.Civ.App. 592, 97 S.W. 113; Maddox v. Hudgeons, 31 Tex.Civ.App. 291, 72 S.W. 414; Heidenheimer Bros. v. Brent, 59 Tex. 533; Holliman v. Carroll’s Adm’rs, 27 Tex. 23, 84 Am.Dec. 606.

Since the surety on the constable’s bond w.as not liable for the trespass in question, the judgment of the trial court in favor of the plaintiff against the surety company was erroneous. Such judgment is here reversed and judgment here rendered that the plaintiff take nothing as against the Continental Casualty Company. The judgment of the trial court in all other respects is affirmed.


source: Caselaw Access Project

author: SMITH, Chief Justice.

license: Public Domain

text:
    SERVICE FINANCE CORPORATION v. BROMBAUGH.
    No. 10642.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 30, 1939.
    B. W. Teagarden and Perry S. Robertson, both of San Antonio, for appellant.
    Ingrum & Morris, of San Antonio, for appellee.
   SMITH, Chief Justice.

A. B. Poe Motor Company sold an automobile to George E. Brombaugh, and took the latter’s installment note for the unpaid balance of the sale price, as well as a chattel mortgage on the car to secure payment of the note. Before finally consummating the deal the Motor Company submitted it to Service Finance Corporation, dealer in such securities, and procured its agreement to finance the deal by purchasing the note and mortgage from the Motor Company. Accordingly, after Brombaugh executed and delivered the note and mortgage (which were combined in one instrument), to the Motor Company, the latter in turn sold and assigned the dual instrument to the Finance Corporation, 'in pursuance of the prior agreement between them. It was stipulated in the mortgage that “Said Mortgagor further covenants and agrees to keep said goods and chattels insured against loss or damage by fire and theft together with collision, property damage and public liability at the election of the holder in companies acceptable to mortgagee as said mortgagee’s interest may appear, deliver-mg' policy to Mortgagee. And in case said Mortgagor shall neglect or refuse to obtain said insurance or pay such taxes as aforesaid, then said Mortgagee may at said Mortgagee’s option, obtain such insurance and pay all such taxes and assessments aforesaid; and all sums of money thus expended are hereby secured by these presents, and shall be repayable with interest at 10% per annum upon demand from said Mortgagor to said Mortgagee, and may be retained by said Mortgagee from the proceeds of the sale of said goods and chattels herein authorized.”

In a blocked space for that purpose, under the printed heading, “List Below Insurance Included in Contract,” was the typewritten representation, “Fire-theft $100 deduct. Comp.” In the absence of pleading, and over the objection of appellant based on that omission, appellee adduced from a witness the explanation that the notation meant “fire and theft,” “$100 deductible” and “comprehensive coverage” insurance, and that “comprehensive coverage” insurance meant insurance against loss for damage to the owner’s car occurring by accident other than collision. We think the trial court erred in admitting that interpretation of the meaning of the term, “Comp.” without any pleading to support it. The meaning of the phrase, “fire and theft,” as used here, is easily within common, no less than judicial, knowledge. The meaning of the next phrase, “$100 deduct.” is far less, if at all, obvious, or within common knowledge, but the average person not initiated into the mysteries of automobile insurance lore must come to a dead stop at the cryptic sign, “Comp.”, for, to him, it would perhaps be incomprehensible that it meant “comprehensive,” or any other specific thing not clearly “nominated in the bond.” By all means, the term needed explanation in the pleadings as a foundation for interpretative evidence.

It further appears, conclusively, that the sum of $175, in addition to the balance due on the purchase price of the car, was included in the amount of appellee’s note, and that this sum covered the items of interest on the note, “Filing fees,” service charges, and cost of fire, theft and “$100 deductible collision” insurance, but not including the amount of premium on “comprehensive coverage.’* Neither the Motor Company nor the Finance Corporation procured “comprehensive coverage” upon the car, although the Finance Corporation did procure and pay for fire and theft and! “$100 deductible” policies, the cost of the premiums for which were included in the amount of the note.

The trial judge found as a fact that in the negotiations between the Motor Company and the Finance Corporation the latter informed the former that it would finance the deal and that the “total cost of such financing, including insurance, would be $175.00.” But the trial judge expressly declined to pass upon the issue of fact,, upon conflicting testimony, “as to whether or not,” as stated in appellant’s brief, “the matter of taking out comprehensive insurance was discussed between the A. B. Poe-Motor Company and the Service Finance Corporation, and as to whether it was agreed by the Service Finance Corporation to take out such comprehensive insurance.. The Court stated that in view of the law and other facts he did not consider it necessary to resolve this conflict and did not make any finding in regard thereto, notwithstanding anything stated in the findings and conclusions elsewhere.”

Within less than a month after Brom-baugh purchased it, the car in question “slid” into the San Antonio River, and as a result sustained damages in the sum of $152.62. This loss would have been covered by “comprehensive coverage” insurance,, had such policy been issued, but was not covered by the policies actually issued. Brombaugh brought this suit against Service Finance Corporation to recover said damages, upon the ground that the latter negligently failed, although so obligated,, to procure “comprehensive coverage” upon the car, thereby leaving the owner without protection against such damage. In a trial by the court without a jury, Brombaugh recovered said amount, and the Finance Corporation has appealed. The trial court concluded, as matters of law:

“1. That the A. B. Poe Motor Company by written contract agreed with plaintiff, Geo. E. Brombaugh, to protect him with comprehensive insurance and became obligated to do so, as a part of the consideration for his note.
“2. That the Service Finance Corporation- by the purchase of said contract and by assignment became obligated to take out said comprehensive coverage insurance.
“3. That as a result of failure to take out said comprehensive coverage insurance, plaintiff herein has been damaged in the amount of $152.62, the sum necessary to repair the injuries to said automobile, against which loss he would have been indemnified had the Service Finance Cor■poration taken out the comprehensive •coverage insurance, as it was required to do under the terms of said contract.
“4. That the plaintiff, Geo. E. Brom-'baugh, should have and recover judgment against the defendant, Service Finance Corporation, in the sum of $152.62, * * .”

We are of the opinion that the record does not support the.judgment. The trial judge tested and resolved the obligations of the parties by the written contract, as we think it must be done. The mortgagor expressly covenanted in that contract to “keep (the car in question) insured against loss or damage by fire and theft, together with collision, property damage and public liability, at the election of the holder * * * and in case said mortgagor shall neglect or refuse to obtain said insurance * * * then said mort■gagee may at mortgagee’s option, obtain such insurance,” and charge the premiums thereon against the mortgagor. It may be noted, incidentally, that “comprehensive •coverage,” or its equivalent, are not mentioned in this provision.

Under those provisions of the contract the primary duty of procuring insurance was expressly assumed by the mortgagor, it being further provided, in the alternative, that if he should fail in this duty, the option was given to the mortgagee to perform it for him in the event it chose •to exercise the option. The mortgagor failed to perform that duty, whereas, the as-signee of the mortgagee failed, only, to exercise its option to perform it for him. The mortgagee being under no affirmative duty, its failure to exercise its option to assume that duty was not actionable. This seems to be elemental.

The fact that the contract bore a notation indicating the several forms of insurance to be procured on the car, could be given no more effect than to indicate the nature of insurance the mortgagee would be authorized to procure when and if it sought to exercise its option to act in the matter. The contract does not purport to charge the mortgagee with any affirmative duty in the transaction, and it cannot be penalized for its failure to exercise an option to assume such duty.

It is not deemed necessary to discuss the question of whether the parties entered into parol agreements concerning the matter of insurance, since the trial court, while declaring the evidence raised such issue, declined to resolve it, and expressly excluded it from consideration in arriving at the judgment based solely on the written contract.

The judgment is reversed and the cause remanded.


author: O’QUINN, Justice.

text:
    ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited, v. LEE.
    No. 3558.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 20, 1939.
    Rehearing Denied Jan. 13, 1940.

      John G. Tucker and Orgain, Carroll & Bell, all of Beaumont, for appellant.
    W. T. McNeill, of Beaumont, for ap-pellee.
   O’QUINN, Justice.

This is a workman’s compensation suit. Appellee, J. M. Lee, was the employee; the Pure Oil Company the employer; and appellant, Zurich General Accident & Liability Insurance Company, Ltd., the compensation insurance carrier. On May 20, 1936, while engaged in the course of his employment as an employee of Pure Oil Company, appellee received an injury for which he claimed compensation. He filed his claim before the Industrial Accident Board on August 23, 1938. On October 29, 1938, the board made its final ruling and award, denying compensation, and ap-pellee duly gave notice that he would not abide said award, and duly filed this suit in the district court of Jefferson County, Texas, to set |side said award, and to recover compensation in the sum of $2,666.-66, or in the alternative that he have judgment for whatever character and sum of compensation to which he might show himself entitled.

Appellant answered by general demurrer, several special exceptions, general denial, and by special sworn denial to the effect that appellee had failed to file his claim for compensation with the Industrial Accident Board within six months of the date of the injury as required by law, and that having wholly failed to file his said claim as required by law, he was not entitled to recover compensation.

At the close of the evidence, appellant moved for an instructed verdict, which was refused. The case was then tried to a jury upon special issues upon the answers to which judgment was rendered for appellee that he recover compensation for 100 weeks (loss of eye) amounting to $1,726.20 in equal monthly installments of $17.26 beginning January 25, 1939, and continuing weekly until said sum was fully paid, unpaid weekly installments to bear six per cent interest from their due date. Motion for a new trial .was overruled and appellant brings this appeal.

There is no question as to appellee being at the time of his injury an employee of Pure Oil Company, nor that he was covered by compensation insurance carried by appellant, nor that he was acccidentally injured on May 20, 1936, by a piece of iron pipe ¾ inch in diameter and some 20 feet long falling from a scaffold some 12 or 14 feet high striking him in the face on or over the left eye. The jury found that the injury resulted in the loss of the sight of the eye, and that such loss of vision was permanent.

Appellant’s first three assignments of error assert, in effect, that appel-lee failed to show good cause for his failure to file his claim for compensation with the Industrial Accident Board within six months after receiving his injury, and, therefore, the court erred in refusing its motion for an instructed verdict.

Appellee’s injury occurred on May 20, 1936. He filed his claim for compensation with the Industrial Accident Board on August 23, 1938. The statute, art. 8307, Sec. 4a, R.S.1925, requires that claims for compensation shall be filed with the board within six months after the occurrence of the injury, but provides that for good cause shown the board may, in meritorious cases, waive strict compliance with the filing requirement. Appellee' alleged good cause for not filing his claim within six months after the injury, and continuously up to the filing on August 23, 1938, and offered evidence to show same.

Appellee was an employee of the Pure Oil Company for some 13 years. He continued to work for the company after receiving his injury on May 20, 1936, up until about June or July,, 1938, when he was laid off. He filed his claim with the board on August 23, 1938. It was denied by the board on October 29, 1938. The case was tried on appeal in the district court of Jefferson County, January 24, 1939.

Briefly, the record reflects that immediately after appellee received his injury he was taken to Dr. Gardner, a company physician, by Mr. Park, safety first man at the Pure Oil plant. Dr. Gardner dressed the wound on appellee’s face and eye. About June 5, 1936, appellee again went to Dr. Gardner and complained of his eye giving him trouble. Dr. Gardner examined his eye and told him that he did not think the blow by the falling pipe was the cause of the trouble, but sent appellee to Dr. Lyons, an eye specialist. Dr. Lyons, also employed by the oil company, carefully examined and tested appellee’s eye on June 5th, 6th, and 10th, and told him that the blow was not the cause of his eye trouble. This was within less than three weeks after the accident. He said 'that after the accident the vision of his eye seemed “just kind of foggy”; that the doctors told him the blow did not cause the injury to his eye, and he had hoped it would clear up. He testified that his eye continued to give him trouble and seemed to grow worse, and that he still thought that the blow was the cause of the trouble to his eye. That about six months after he had seen Dr. Gardner and Dr. Lyons the last time, his eye was still getting worse and he went to see Dr. Vaughn of Port Arthur, who was also an eye specialist, and had him to examine his eye. That Dr. Vaughn gave his eyé a careful examination and said it was too late to do anything for it because it was too far gone; that the blow was not the cause of the eye trouble, but that his teeth were — “He said my teeth had put my eye out.” That he did not doubt Dr. Vaughn’s statement for a while, but he got to “figuring around and figured that it might be his teeth” causing the trouble, and so some eight or nine months after the accident he went to see Dr. Hall, a dentist, and had him to examine his teeth; that he went to see Dr. Hall twice, the last time some six months before the case was tried, and that Dr. Hall told him that his teeth had nothing to do with his eye trouble. He further testified that some six or eight weeks before the trial of thé case, still believing that the blow of the iron pipe over his eye was the cause of the loss of vision in the eye, and that he was entitled to compensation for the injury to and the loss of vision in the eye, he employed counsel to represent him in the matter, and was told by his counsel that he would have to file a claim for compensation with the Industrial Accident Board, which he had not known before, and that his claim for compensation was immediately prepared and filed. He further testified that from the time of the injury until he was laid off, some two years, or more, he never lost a day, nor a day’s pay, and was paid the same for every day as he received before the injury. Still he said that all the time he believed that the injury to his eye was caused by the blow of the falling pipe, and that he was entitled to compensation. The gist of his claim of good cause for not filing his claim within six months after the accident was that the doctors told him that the blow did not cause his eye trouble, and that while he had confidence in what they said, all the time he believed the blow was the cause of his eye trouble, and he was waiting to file the claim when he could prove it. When he employed counsel he was advised to consult Dr. Hendry of Beaumont, an eye specialist, and he did so and was told by Dr. Hendry that, in his opinion, the blow caused the injury to the eye.

The question of good cause was submitted to the jury in a special issue, and was answered in favor of appellee. We think that he has shown good cause for not filing his claim for compensation with the Industrial Accident Board within six months after the accident by which he was injured on May 20, 1936. The doctors, three of them, Dr. Gardner, a general practitioner, and Dr. Lyons, an eye specialist, in three weeks after the happening of the accident, and after inspecting the eye three times, told appellee that his eye trouble was not caused by the blow; Dr. Vaughn, an eye specialist, and a doctor of his own choosing, after carefully examining and testing his eye, told him that the blow did not cause the trouble to his eye, but that his teeth were the cause, and then Dr. Hall, a dentist, told him that his teeth had nothing to do with his eye trouble. All this time, covering nearly two years, his eye was constantly growing worse, he still bé-lieved that the blow was the cause of the eye losing its vision, and finally, after the loss of the vision in his eye, he employed a lawyer to protect him in what he believed to be his right to compensation, and was advised to consult Dr. Hendry of Beaumont, an eye specialist, who told him that, in his opinion, the blow did cause the damage to his eye, and his claim for compensation was immediately filed. While there was considerable delay, yet we think, under all the facts and circumstances, appel-lee exercised reasonable diligence in prosecuting his investigations and making claim to the board. Furthermore, under the law, as .we understand it, there was no necessity for filing his claim until he had suffered the loss of the sight of his eye, which was not until some time just prior to filing of the claim — less than six months. As was said by Judge Hickman, Chief Justice of the Eastland Court of Civil Appeals, now a member of the Commission of Appeals, in Texas Employers’ Ins. Ass’n v. Clark, Tex.Civ.App., 23 S.W.2d 405, 408, “Compensation is not provided for pain and suffering, but for loss of wages, and there would arise no necessity for giving notice or filing a claim so' long as the employee lost no time from his work, but believed his injuries were trivial.” Application for writ was dismissed. Here appellee said that after the accident the vision of his eye was just kind of foggy; that the doctors told him the blow did not cause the eye trouble; that he had confidence in what they said, but as his eye continued to get worse he all the time believed the blow did cause his eye trouble. He returned to work about the eighth day after the accident and continued to work — never lost a day or a day’s pay for nearly or about two years. He testified that all that time he was having trouble with his eye and that it gradually got worse all the time; that while he had confidence in the doctors who told him that the blow did not cause the eye injury, still he believed that it did for he had never had any trouble with either of his eyes before, and thought it must have been the cause. He continued to seek expert medical advice hoping to find the truth of the matter and finally when he realized that he had lost the sight of his eye he waited no longer, but employed counsel to handle the matter. After he had done so he went to see Dr. Hendry, an eye specialist, and Dr. Hendry, after carefully examining the eye told him that, in his opinion, the blow caused the injury. We think the jury’s finding of good cause has ample support in the evidence. The assignments are overruled.

What we have said disposes of the fourth assignment.

We overrule assignments five and six to the effect that the evidence did not support the finding th'at the blow above ap-pellee’s eye caused the loss of vision in the eye. The finding is amply supported by the record.

Assignments eight and nine complain that the court erred in entering judgment in favor of appellee for compensation for 100 weeks commencing January 25, 1939, because there was no pleading upon which such judgment could be based, and because there was no finding by the jury to support the judgment. These assignments are overruled. On January 16, 1939, appellee filed his Second amended original petition in which he alleged “ * * *, and that said blow produced a fracture of the skull and caused a hemorrhage around the optic nerve of the left eye and a clot of blood to form on the nerves leading to said eye and said blow has cut, bruised and injured the nerves and tissues of the eye all of which have thereby caused plaintiff’s vjsion in his left eye to become gradually impaired and lessened until now his eyesight in said eye is practically gone.” This was an allegation that on the date of the filing of the amended pleading, to-wit: January 16, 1939, the sight of the eye was lost. The pleading as to' the time alleged “Now” and this was the date of January 16, 1939. When given the intendments to which the petition was entitled the allegation as to when the eye became worthless in vision was on January 16, 1939. Also, there was no special issue given or requested as to the date when the sight of the eye became a total loss, and therefore the issue was waived and the court was authorized to make such finding in support of its judgment, there being evidence to support such finding. Article 2190, R.S.1925, Vernon’s Ann.Civ.St. art. 2190. There was no exception filed as to the sufficiency of the allegation in the amended petition. The verdict of the jury was received and filed on January 25, 1939, thus establishing ap-pellee’s loss of the eye.

What we have said disposes of assignments ten, eleven, twelve, thirteen, fourteen and fifteen.

We overrule appellant’s assignments (16 and 17) complaining that the court erred in refusing to sustain its exceptions to the special issues submitting the question of “good cause” to the jury, the objections being that the issues were too general and did not confine the jury to the consideration of the grounds for “good cause” plead. The issues were sufficient and show no error.

We overrule all assignments (18 to 36) challenging certain findings of the jury as without evidence to support them. We think the record contains support for each of them.

From what we have said the judgment should be affirmed, and it is so ordered.

Affirmed.


author: BOND, Chief Justice.

text:
    BLASER v. LINEN SERVICE CORPORATION OF TEXAS.
    No. 12924.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1939.
    Rehearing Denied Jan. 13, 1940.
    Esir Tobolowsky and Sylvan Tobolow-sky, both of Dallas, for appellant;
    Scurry & Scurry, of Dallas, for appel-lee.
   BOND, Chief Justice.

This is an appeal from an order granting a temporary injunction, restraining appellant from soliciting towel and linen supply customers of appellee, in violation of a restrictive covenant in a laundry contract.

The Linen Service Corporation of Texas filed suit in a District Court of Dallas County, alleging that on or about May 18, 1937, its predecessor, the Cannon Ball Supply Company of Dallas, entered into a written contract of employment with Frank Blaser whereby he was to call for and deliver laundered and unlaundered goods among its customers, and perform such other duties as might be requested of him, and to use all necessary diligence to make and keep trade customers for his employer, and to keep just and true accounts pertaining to the business of his employer, as he might be directed from time to time. It was further alleged that the employe agreed that he would not, at any time while he was in the employ of Cannon Ball Towel Supply Company, or any of ,its assigns; or within one year after leaving the service of such employer, either for himself or for any other person, persons, or corporations, call for and deliver laundered and un-laundered goods to any person who shall have been a customer of said employer, or in any way, directly or indirectly, solicit, divert or take away, or attempt to solicit, divert or take away any of said customers of the Cannon Ball Towel Supply Company, or its assigns.

Plaintiff further alleged that on or about April 1, 1939, it purchased the Cannon Ball Towel Supply Company’s towel and linen supply business and good will of the concern in the City of Dallas, Texas, and any other town or territory within the towel supply route entrusted to its employes and on which routes customers of the Cannon Ball Company were being served by its employes; and that all towel and linen supplies, lists of customers, books of accounts, contracts (including the contract with defendant), and the good will of the company and its employes were duly transferred, delivered and assigned to the plaintiff. It was further alleged that the defendant worked for the Cannon Ball Towel Supply Company under such contract of employment, was given a list of customers to serve on behalf of said employer, and, after the sale and transfer of the contract to plaintiff, continued the work until about June 3, 1939, when he terminated the employment and thereafter breached the restrictive covenant of the contract; began soliciting towel and linen supply business among plaintiff’s customers who had theretofore been served by him, and engaged in competitive business, in violation of the negative covenant of the contract, resulting in plaintiff’s irreparable injury and damage.

The trial court, in limine, granted a temporary restraining order and, upon a show cause hearing, a temporary injunction. The appeal reaches this Court without a statement of facts; appellant’s assignments are predicated upon demurrers to pleadings and conclusions from findings of the trial court. Insofar as pertinent for this opinion, we adopt the trial court’s findings of fact, which are, in effect, as follows: On May 18, 1937, the defendant entered into a written contract of employment with the Cannon Ball Towel Supply Company of Dallas, which contract recites that the said concern has built up and established an extensive towel supply business; that its employes are taught and entrusted with its particular methods of carrying on its business in calling for and delivering laundered and unlaundered goods; that they are trained and instructed in the particular methods of such pursuits and are entrusted with lists of customers and methods of dealing with same on a towel supply route assigned to employes, which, in the present instance, was described as a certain list of customers set forth in a schedule attached to the contract. Under such contract, defendant agreed to call for and deliver such laundered and unlaundered goods, to use all diligence to make and keep trade for his employer, and to keep a just and true account with all customers of his employer. Said contract further provided that during his employment and for one year thereafter, he would not call for or deliver laundered or unlaundered goods to any person or persons who, during the term of his employment, were customers of his employer, or in any way, directly or indirectly, solicit, divert, take away, or attempt to solicit, divert, or take away from his employer business or patronage of customers who were assigned to defendant for service. Said contract was to continue from year to year unless terminated as provided therein, and further provided “that the privileges and benefits of this contract shall extend to its successors and assigns”. That, at the time of making said contract, the Cannon Ball Towel Supply Company furnished the defendant with a list of such customers to serve, changeable from time to time.

On April 1, 1939, the Cannon Ball Towel Supply Company sold its towel and linen supply business, with its good will and that of its employes, to plaintiff, which sale and transfer included the employment contract with defendant; and, thereafter, the defendant continued working under the terms of the contract, serving customers whom he had theretofore served for plaintiff’s predecessor, and, in addition, certain other customers turned over to him by the plaintiff. On or about June 1, 1939, defendant voluntarily terminated his employment with plaintiff and thereafter began working for Olympia Towel Supply Company, serving plaintiff’s customers with the Olympia Company’s supplies, soliciting customers previously served by him under his employment by the Cannon Ball Towel Supply Company, and under his employment by the plaintiff.

This appeal presents two principal questions: (1) Whether a temporary injunction may issue to restrain a violation of a restrictive covenant of an employe not to engage in a competitive business for a certain time, and within prescribed territory expressly set forth in an employment contract; and (2) whether such an employment contract may be assigned under a provision contained in the contract, expressly providing that the contract “shall extend to the successors and assigns of the employer”.

The validity of restrictive covenants in a contract, as here involved, has been upheld -by the courts of this state in numerous cases and we will not burden this opinion with citation of authorities. Suffice to show that the general rule is stated by this Court in Martin v. Hawley, Tex.Civ.App., 50 S.W.2d 1105, 1107, citing authorities, in which is stated: “It is clear that if the nature of the employment is such as will bring the employee in personal contact with the patrons or customers of the employer, or enable him to acquire valuable information as to the nature and character of the business and the names and requirements of the patrons -or customers, enabling him, by engaging in a competing business in his own behalf, or for another, to take advantage of such knowledge of or acquaintance with the patrons or customers of his former employer, and thereby gain an unfair advantage, equity will interfere in behalf of the employer and restrain the breach of a negative covenant not to engage in such competing business, either for himself or for another, providing the covenant does not offend against the rule that as to the time during which the restraint is imposed, or as to the territory it embraces, it shall be no greater than is reasonably necessary ■ to secure the protection of the business or good will of the employer”.

The contract here involved expressly recites, and the trial court so found, that the employer had built up an extensive towel and linen supply trade, that the employer entrusted to its employe the task of calling upon its customers, delivering and collecting linen supplies; and entrusted the employe with a list of its customers within the limits of the City of Dallas and elsewhere. It will be seen that defendant was in position to come in personal contact with plaintiff's customers, acquire valuable information as to their needs and requirements, and that, engaging in a competing business for himself or for another, the employe was in position to take advantage of such acquired. knowledge and acquaintance, thus divert plaintiff’s business to himself or to another by whom he might be employed. The customers and good will of a laundry, acquired over a long period of time, by courteous contact of its employes, are valuable assets, and the reasonableness of restrictive covenants not to divert such assets from his employer within the prescribed territory, where the employe had been working, is apparent. Equity will interfere in behalf of the employer and restrain the employe from gaining unfair advantage either for himself or for another, for a time reasonably necessary to protect the employer in his secured .business and good will. The contract here limits the negative covenant not to engage in competing business, either for himself or for another, for the time of one year after the termination of the employe’s service, and the territory in which his influence and personal contact has long been exerted among plaintiff’s customers, which is neither unfair nor unreasonable, and, we.are of the opinion, violates no rule of law or equity, thus enforceable by the equitable powers of a court.

The pleadings and evidence show that the employment contract entered into between the defendant and the Cannon Ball Supply Company, and thereafter sold and transferred, together with the good will of the laundry company, to the plaintiff, provides that “the privileges and benefits of this contract shall extend to the successors and assigns of the Party of the First Part” (meaning the employer) ; and that the defendant continued in the employment of the plaintiff under said contract, and later voluntarily left such employment. We are of the opinion that the trial court did not err in its conclusion that the privileges and benefits of the negative covenant, not to. engage in competing business, were assignable, enforceable by injunction. We are not concerned here with any effort to assign an employe’s agreement to work for the employing company, or its assigns, against an employe’s will. It is only the restrictive covenant whereby the employe expressly agreed that “the privileges and benefits” of the contract may be assigned, that calls for adjudication in this case. The agreement of defendant to be bound by any assignment of the contract gives rise to the power of plaintiff’s predecessor to assign and clothes the assignee with all privileges and benefits of the employment agreement.

The Supreme Court of Georgia, in the case of National Linen Service Corporation v. Clower, 179 Ga. 136, 175 S.E. 460, 463 (where Clower, the employe, agreed with the company, as here, that for the period of one year next following the termination of his employment with that company, he would not, for himself, or on behalf of any other person, engage in the same kind of business within a defined limit, stipulating that the provisions of the contract “ ‘shall extend to the successors and assigns’ of the employing corporation”), said: “It is the restrictive covenant which the National Linen Service Corporation as an alleged assignee is seeking to enforce. Under previous decisions by this court such a covenant is assignable; and the more especially is this true of the contr'act here under consideration, in view of the agreement by the employee that its provisions should extend to ‘successors and assigns.’ ”

So, in the instant case, under the express terms of the contract, plaintiff, by the assignment, acquired a valuable privilege and benefit; therefore, perforce of the agreement of the contracting parties, plaintiff is entitled to enforce its terms.

Appellant urges numerous assignments on the sufficiency of the pleadings, which we have carefully considered, many of which are amendable on final hearing; this being an appeal from an interlocutory order, such assignments present no reversible error; they are overruled.

Judgment of the court below is affirmed.

On Motion for Rehearing. ■

On motion for rehearing, appellant concedes that the provisions of the alleged negative covenants in the contract were valid and enforceable by the original employer, Cannon Ball Towel Supply Company, thus admitting, in effect, that such covenants were reasonable. The controlling question in this appeal then seems to be whether or not the contract was assignable. The Cannon Ball Supply Company sold its laundry business, including the contract here involved, with all its existing privileges and benefits, to appellee; thus, we see no sound reason for holding that appellant was absolved, because of such sale, from complying with the covenants and agreements which the contract contained. It is evident that no additional burden or hazard was cast upon appellant by the assignment. He accepted employment under the new set-up, and his duties remained the same as they were before such assignment was made. The only part of the contract here involved is. the provision that the employe was not to engage, for himself or any other person or corporation, directly or indirectly, in the laundry business, as therein directed and within the prescribed territory, for a specified time of one year after leaving his employer’s service. There was no distinctive individual skill, no peculiar personal qualification involved in appellant’s employment; indeed, the contract made by appellant himself with the Cannon Ball Company was assignable under its express terms.

Under the facts appearing, it is the opinion of this Court that the writ was properly issued; that the pleadings are good as against a general demurrer, and the proof showed a probable right, and a danger to that right, unless injunctive relief was awarded. Motion for rehearing overruled.


author: FOLLEY, Justice.

text:
    HEATH et al. v. ELLISTON et al.
    No. 5188.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 11, 1939.
    Rehearing Denied Jan. 15, 1940.
    E. O. Northcutt and W. H. Brian, both of Amarillo, and J. D. Barker of Canyon, for appellants.
    H. H. Cooper and Madden, Adkins, Pipkin & Keffer, all of Amarillo, for ap-pellees.
   FOLLEY, Justice.

This is a petition for mandamus filed by the relators, R. S. Pipkin and W. F. Branson, to compel A. B. Holt, Clerk of the District Court of Randall County, Texas, to pay over to them certain funds deposited with him by the California Western States Life Insurance Company.

The California Western States Life Insurance Company filed a bill of inter-pleader in the 108th Judicial District Court of Potter County, Texas alleging that it had sold four sections of land in Randall County, Texas, for $30,000 and that it owed a commission of $1,500 to the agents who were the procuring cause of the sale. Such company further alleged that R. S. Pipkin and J. B. Elliston were the agents whom it recognized as being the procuring cause of the sale; that the respondents G. B. Heath and W. H. Harden were claiming the commission; prayed that all these persons be made parties to the suit; that it be allowed its reasonable attorney’s fees in the cause; and that the balance of the funds be paid to the person or persons entitled thereto.

The cause was .removed to Randall County upon pleas of privilege where it proceeded to judgment on August 26, 1939, and in which judgment it was decreed that the relators R. S. Pipkin and W. F. Branson (the latter having acquired the interest of J. B. Elliston) were entitled to the sum of $1,300 of the funds, and that the company was entitled to $200 of such funds as attorney’s fees. The respondents G. B. Heath and W. H. Harden excepted to such judgment, gave notice of appeal, on September 14, 1939 filed an appeal bond and have duly perfected an appeal in this court. On October 28th, November 4th and November 7th, 1939 the re-lators made demand upon the Clerk of the District Court of Randall County that he pay over to them the $1,300 on deposit with him, which the clerk refused to do, and the clerk requested that he be allowed time to make further investigation of his duties in the matter. Thereafter, on November 9, 1939, while the matter was still in abeyance, the respondents, G. B. Heath and W. H. Harden, filed a su-persedeas bond in due form with the district clerk which was approved by the latter. Thereafter such clerk refused to pay over any portion of the funds to the re-lators, hence this petition for mandamus.

The relators contend that the filing of the supersedeas bond after the twenty days allowed in which to perfect an appeal was unwarranted; that the clerk was unauthorized to accept such bond and that the filing and approval of the bond at such time could not affect the rights of the relators to collect the judgment. In support of this contention the relators call attention to the fact that article 2270, R.C.S., as it now exists since the 1925 revision, does not provide that a supersedeas bond may be given in addition to an appeal bond after the appeal has been perfected by an appeal bond, as was the case before the 1925 revision of the article, and, therefore, assert that the belated filing of the supersedeas bond did not have the effect of suspending the execution of the judgment.

We think the contention of the relat-ors has been expressly overruled by the Supreme Court in the case of Magnolia Petroleum Company v. McClendon, 123 Tex. 10, 65 S.W.2d 484, which case was decided in 1933, some eight years subsequent to the revision of article 2270. In a per curiam opinion the court in that case held: “The right to suspend a judgment by the filing of a supersedeas bond in the trial court exists, although an appeal bond and a transcript have already been filed. R.C.S.1925, arts. 2270, 2275; Lingwiler v. Anderson (Tex.Civ.App.) 270 S.W. 1052; Allen v. Kitchen (Tex.Civ.App.) 156 S.W. 331. The superse-deas bond in such case is filed to stay the trial court’s judgment or to suspend its execution pending the decision of the case which has been appealed.”

The relators contend that the rule announced above is not applicable to the instant case for the reason that in the McClendon case the judgment was not a money judgment, that the trial court had refused to enter an order fixing the amount of the supersedeas bond, and that no such condition existed in the case before us. The relators further contend that the holding above quoted was mere dicta in the McClendon case. It is true that the facts of the two cases are not parallel but we cannot agree with the relators that the rule of law announced in the McClendon case was mere dicta. In that case the Supreme Court cites with approval the case of Lingwiler et al. v. Anderson, 270 S.W. 1052, which decision of the court of civil appeals at Dallas was prior to the 1925 revision of article 2270. The Ling-wiler v. Anderson case held that a super-sedeas bond filed in lieu of a cost bond must be filed within the time for perfecting an appeal but that a supersedeas bond filed after the lapse of time for perfecting an appeal, but in addition to a cost bond filed within such time, was sufficient to suspend the execution of the judgment. Since the McClendon case was decided in 1933 we would be unwarranted in assuming that the Supreme Court in such case was unmindful of the 1925 revision of article 2270. Moreover, independent of the McClendon case, we think the only reasonable construction that could be placed upon articles 2270 and 2275, in their present condition, would be one in complete harmony with the holding in the Lingwiler v. Anderson case. 3 C.J. 1299, para. 1426; 4 C.J.S., Appeal and Error, page 1133, § 645; 3 Tex.Jur. 384, para. 273; Allen et al. v. Kitchen et al., Tex.Civ.App., 156 S.W. 331.

• The mandamus is denied.


text:
    CONNECTICUT GENERAL LIFE INS. CO. v. ROBINSON.
    No. 3530.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 1, 1939.
    Rehearing Denied Jan. 10, 1940.
    John G. Tucker and Orgain, Carroll & Bell, all of Beaumont, for appellant.
    Tom C. Stephenson and D. E. O’Fiel, both of Beaumont, for appellee.
   O’QUINN, Justice.

This is a suit on a group insurance policy seeking to recover for total and permanent disability. Appellee, Robinson, filed the suit against appellant on June 28, 1934, alleging that he was entitled to recover in the sum of $2,250 by virtue of a group policy issued by appellant to the Gulf Oil Corporation and which covered the employees of the Gulf Refining Company at Port Arthur, Texas, and that he was an employee of such company and covT ered by said policy.

Appellant answered by general demurrer, various special exceptions and general denial, and specially that the policy under which appellee sought to recover contained a provision for proof of loss by appellee, and that such provision was a prerequisite to a recovery and that appellee had failed to comply with said requirement, and so not entitled to recover. This answer was duly verified.

Appellant, at the close of the evidence, requested an instructed verdict in its favor which was refused. 'The case was then submitted to a jury upon special issues in answer to which they found, among other things, that appellee became totally disabled some time prior to November 17, 1931, and that such total disability became permanent at some time between June 25, 1930, and November 17, 1931. On the findings of the jury judgment was rendered for appellee in the sum of $2,250 with six per cent interest from January 1, 1932. Motion for a new trial was overruled, and the case is before us for review.

There is no question as to the issuance of the insurance policy, or that appellee was covered by same as long as he was an employee of the Gulf Refining Company, or as to the amount appellee would receive, if he was entitled to recover.

The policy contained this provision: “The Connecticut General Life Insurance Company * * * hereby agrees, on receipt of due proof of death, or of permanent total disability as hereinafter defined occurring before age 60, of any employee of Gulf Oil Corporation or any of its subsidiary companies to pay the sum specified in the following schedule, provided such death occurs or permanent total disability begins while the employee is covered under the terms of this policy.” According to the schedule of amounts disclosed by the policy, if appellee was entitled to recover, the amount sued for was correct under the terms of the policy.

Appellant’s first three assignments assert error in the court’s refusal to direct a verdict in its favor for in that the insurance policy under which appellee sought to recover, provided, as a prerequisite to recovery, that due proof of total and permanent disability should be made by ap-pellee, and such proof not having been made, its request for an instructed verdict should have been granted.

Appellant insists that due proof of total and permanent disability was not made by appellee, while he insists that he fully complied with such requirement and made such proof.

The definition of “total and permanent disability” referred to in the policy and proof of loss reads: “If said total disability began before age 60, and presumably will during his life prevent the employee from pursuing any occupation for wages or profit * * * he shall be deemed to be totally and permanently disabled within the meaning of this policy.”

The proof of total and permanent disability offered by appellee was upon a blank furnished by appellant. It was received by appellant December 24, 1931. It contained the statement of Dr. Beyt who was the family physician of appellee, and who had examined and treated him. In this statement or proof of loss, the following questions and answers appear:

Question No. 9: “Is the insured absolutely 'and totally disabled and in your opinion will he be permanently, continuously and wholly prevented for life from pursuing any and all gainful occupations?” A. “No.”

Question No. 10: “If this disability will not be permanent, approximately when do you think claimant might be able to take up some useful work?” A. “Now. However he is not altogether well.”

The proof of loss was signed by both appellee and Dr. Beyt. The original was in evidence, and no attack is made on it to show that it was in any way not correct. It did not show appellee to be totally and permanently disabled to work, but showed to the contrary that he was not totally and permanently disabled, and was at the time the instrument was executed, then able to work. Proof of total and permanent disability to work being a prerequisite to a recovery, and the proof offered not showing such disability, the court should have granted appellant’s motion for an instructed verdict.

What we have said renders other assignments immaterial. It follows that the judgment should be reversed and here rendered for appellant, and it is so ordered. Reversed and rendered.

On Motion for Additional Findings of Fact.

Appellee, Ben Robinson, has filed request for additional findings of fact, stating the substance of such desired findings. After due consideration, we find as follows:

1. The insurance policy involved was issued by the Connecticut General Life Insurance Company on November 12,' 1918.

2. The policy did not contain any provision that if due proof of loss was not made as provided in the policy, such failure to make proof of loss would forfeit the policy.

3. As stated in our opinion, the proof of loss was furnished by appellee Robinson to the insurance company on a blank furnished by appellant, and received by it on December 24, 1931. The policy required that due proof of loss be made. .The proof submitted made and signed by Robinson and his physician Dr. Beyt was: Question No. 9: “Is the insured absolutely and totally disabled and in your opinion will he be permanently, continuously and wholly prevented for life from pursuing any and all gainful occupations?” • Dr. Beyt answered this “No.” Question No. 10: “If this disability will not be permanent, approximately when do you think claimant might be able to take up some useful work?” Dr. Beyt answered this “Now. However he is not altogether well.” This proof of loss was signed by both Robinson and Dr. Beyt.

4. After receiving this proof of loss appellant did not offer to appellee any objection to the sufficiency of the proof of loss. It treated it as no proof of loss.

5. Appellee, Robinson, filed his suit June 28, 1934, and appellant filed its answer November 5, 1934. Appellee filed his Fourth Amended Original Petition October 27, 1936. Appellant filed its First Amended Original Answer on October 27, 1936, consisting of a general demurrer and general denial, and specially that the policy under which appellee sought to recover contained a provision for the making of due proof of loss by appellee, and that such provision was a prerequisite to a recovery and that appellee had failed to comply with said provision of the policy, and so not entitled to recover. This answer was duly verified. The case was tried on these pleadings.


author: MONTEITH, Chief Justice.

text:
    COCKBURN v. NOXON.
    No. 10914.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 14, 1939.
    Rehearing Denied Jan. 11, 1940.
    J. L. Webb, of Houston, for appellant.
    Chester H. Johnson, .of Houston, for appellee.
   MONTEITH, Chief Justice.

This is an appeal from a judgment sustaining a plea in abatement and dismissinga suit brought by appellant, H. C. Cock-burn, against appellee, E. G. Noxon, in the 61st District Court of Harris County. The plea was dismissed for the reason that there was at that time a suit pending in a court of co-ordinate jurisdiction between the same parties and involving the same subject matter.

The record shows that on December 30, 1938, appellee filed suit in the 80th District Court of Harris County against appellant H. C. Cockburn and the Cockburn Oil Corporation, alleging that Cockburn had agreed to purchase from him certain oil and gas leases for an agreed consideration of $100,000 cash; that Cockburn had paid him the sum of $1,500 on the purchase price of said leases, and that he was prepared to execute assignments of said leases upon the payment of the balance due him of. $98,500, but that Cockburn had failed and refused to carry out his said contract.. He alleged that one George Echols had drilled a well on one of said leases under a contract with the Cockburn Oil Corporation; that he had made no contract with the Cockburn Oil Corporation, but that if said corporation was a party to the contract he had made with H. C. Cockburn, then his contract was with both of said defendants, jointly and severally. He sought judgment for specific performance and for the validation of said purchase agreement and for the balance claimed to' be due thereon; that a lien be established in his favor against said leasehold interests, and for judgment foreclosing his said lien.

H. C. Cockburn and the Cockburn Oil Corporation answered by general demurrer, by general and special denials, and specially pled that if said agreement was made it was based on an oral contract for the sale of an interest in land and was within the statute of frauds and void.

On January 5, 1939, six days after the filing of said suit in the 80th District Court, .appellant Cockburn filed a suit against appellee Noxon in the 61st District Court of Harris County. He alleged that on October 17, 1938, Noxon borrowed the sum of $1,500 from him for the purpose of purchasing an oil lease, and had promised to repay him upon the sale of said lease; that Noxon had sold said' lease but that he had refused to repay him. ■ He sought judgment for his debt in the sum of $1,500.

On January 23, 1939, Noxon filed a plea in abatement and an answer in the suit filed against him by Cockburn in the 61st District Court. He alleged that on December 30, 1938, he had filed suit against Cockburn and the Cockburn Oil Corporation in the 80th District Court of Harris County, and that said suit was still pending; that an adjudication of the first suit in favor of Noxon would be res adjudicata as to the second suit pending in the 61st District Court; that the 80th District Court had acquired jurisdiction of the parties and subject matter therein; that the parties were the same in both suits and that there could be an adjudication in the suit filed in the 80th District Court as to whether Noxon owed Cockburn the sum of $1,500 on account of money borrowed, or whether Cockburn had paid Noxon said $1,500 on account of the purchase price for said oil leases, and that the 80th District Court of Harris County, by virtue of the pendency of said prior suit, had acquired full jurisdiction of the subject matter and controversy between the parties plaintiff and defendant in the second suit.

On a hearing on the plea in abatement before the 61st District Court the only evidence offered on the plea was the petitions and answers in the two suits, the file mark showing that the suit in the 80th District Court was filed first, and a stipulation that there was but one $1,500 transaction between the parties.

Upon consideration of the plea, the court entered judgment sustaining the plea in abatement and entered judgment dismissing the second suit.

Appellant bases his appeal on the alleged facts that, since the subject matter, causes of action, relief sought, and parties to the two suits are not the same or substantially the same, it was error on the part of the trial court to sustain said plea in abatement, and on the further contention that, since Noxon, in the second suit, only asked that said second suit be abated, it was error for the court to render judgment dismissing the suit.

The Supreme Court in the case of Cleveland et al. v. Ward, Judge et al., 116 Tex. 1, 285 S.W. 1063, under a state of facts similar in many respects to the facts in the instant case, has definitely passed on all of these contentions.

In that case suit was brought by John L. Cleveland and Annie H. Cleveland in the District Court of Johnson County, Texas, against the Home National Bank of Cle-burne for the cancellation of certain notes and a deed of trust securing them, and the removal of a cloud cast thereby on title to the land described in the deed of trust. Six days after the filing of this suit, the Home National Bank, defendant therein, joined by Joseph B. Long and W. S. Whaley, filed suit in the district court of Dallas County against John L. Cleveland and Annie H. Cleveland, plaintiffs in the Johnson County suit, and also against George Cleveland and T. K. Cleveland. The object of this suit was to recover judgment on the identical promissory notes and to foreclose the same deed of trust for the cancellation of which John L. Cleveland and Annie H. Cleveland had previously brought suit in the district court of Johnson County.

All of the Clevelands filed a plea in abatement in the Dallas County suit, setting up the pendency of the Johnson County suit at the time of the filing of the Dallas County suit, stating that the issues and the real parties at interest in the two suits were the same. Later the original plaintiffs in the Johnson County case filed in that cause their first amended original petition wherein they, as well as T. K. Cleveland and George Cleveland, were named as plaintiffs, and in addition the Home National Bank, W. S. Whaley, Joseph B. Long and the American Exchange National Bank, were named as parties defendant. The petition alleged that the American Exchange National Bank was claiming- some interest in the property, or was in some way holding some of the notes involved in the controversy. The prayer was for rescission and cancellation of the instruments involved in the litigation.

By this amendment the parties in the two cases were made identical, except that in the Johnson County case there was one additional, apparently necessary, party defendant. They involved the same subject matter, the same transactions, and the relief in one would be res adjudicata as to the relief prayed for in the other suit.

The parties in the two suits involved in this appeal are also identical, except that the Cockburn Oil Corporation is made a party defendant in the first suit because of an apparent interest in the oil leases involved in the suit evidenced by a contract between the Cockburn Oil Corporation with George H. Echols to drill a well on one of said leases. Noxon pled that, if it is made to appear on the trial of said cause that said defendant corporation was a party to plaintiff’s contract with the defendant Cockburn, then that his said contract was with both of said defendants, jointly and severally, and that, by reason of said allegations, defendant Cockburn Oil Corporation has also breached said contract to the extent therein alleged.

From the above facts it is apparent that both H.j C. Cockburn and the Cockburn Oil Corporation were proper parties to the suit filed in the 80th District Court; that both suits involve the same $1,500.00 transaction, and that a recovery by plaintiff in the first suit would necessarily be res adjudicata as to the cause of action asserted by Cockburn in the second suit.

It is true that the relief sought in the 80th District Court is for specific performance of a contract and for the establishment of a lien on certain leases and that the relief sought in the 61st District Court is for the recovery of money borrowed. However, since jurisdiction attached to the subject matter involved in both suits upon the filing of the suit in the 80th District Court, under the rule laid down in Cleveland v. Ward, supra, this court was authorized to exercise its jurisdiction to dispose of the whole subject matter of the litigation and adjust equities between the parties, and this authority could not be taken away or arrested by the subsequent filing of the suit in the 61st District Court. Further, Cockburn may assert whatever defenses he may have in the subject matter of his suit in the suit filed in the 80th District Court.

Appellant contends that the court erred in dismissing the suit filed in the 61st District Court and that the extent of his authority, under the pleadings and evidence, was merely to abate and suspend the action in said court.

We cannot sustain this contention. It is now the established law in this state that when a court of competent jurisdiction acquires jurisdiction of an action and the parties thereto, this jurisdiction can not be destroyed, diminished or suspended by one of the parties thereto bringing an action in another court, and that any judgment or order of the latter court is void so far as it conflicts with any judgment or order of the court first acquiring jurisdiction, and that it was the duty of the trial court to dismiss said suit. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; Guaranty Building & Loan Co. v. Nowell, Tex.Civ.App., 76 S.W.2d 830; Freeman on Judgments, 5th Ed. vol. 1, page 672.

For the reasons above stated, the judgment of the trial court is in all things affirmed.

Affirmed.


author: MURRAY, Justice.

text:
    BARRERA v. DUVAL COUNTY RANCH CO.
    No. 10636.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 13, 1939.
    Rehearing Denied Jan. 10, 1940.

      Wm. R. Quilliam, of Hebbronville, and Lester Whipple and Tabor Stone, both of San Antonio, for appellant.
    Perkins & Floyd, Frank T. Morrill, and Lloyd & Lloyd, all of Alice, and Otis Meredith, of Houston, for appellee.
   MURRAY, Justice.

This suit was instituted by the Duval County Ranch Company against Estevan Barrera and Quirino Gonzales seeking to recover the title and possession of Surveys Numbers 263, 264, 908, 910, 46 and 48, all located in Duval County. Quirino Gonzales disclaimed. Estevan Barrera answered plaintiff’s cause of action and also filed a cross-action seeking to recover Surveys Numbers 908, 910, 46, 48 and a small portion of Surveys 263 and 264. He disclaimed as to the remainder of these last two surveys.

The trial was to a jury, and, upon the verdict of the jury, the court entered judgment for the Ranch Company, from which judgment Estevan Barrera has prosecuted this appeal.

Appellant, Estevan Barrera, first complains because certain letters from the Land Commissioner of this State were admitted in evidence. We cannot consider this proposition because the question was not presented to the trial court by his motion for a new trial. Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270; Rules for the Courts of Civil Appeals, Rule 24, as amended, 99 S.W.2d xxix.

Appellant next complains that the attorneys for appellee were permitted to examine Estevan Barrera as to whether or not he would steal cattle or other property that did not belong to him. This testimony was not objected to when offered and appellant thereby waived his right to here complain that such testimony was admitted. Abshier v. Reavis, Tex.Civ.App., 54 S.W.2d 1102; Coleman v. Klein, Tex.Civ.App., 97 S.W.2d 265; Jurach v. Cox, Tex.Civ.App., 92 S.W.2d 1065.

Appellant next complains that he was not allowed to introduce evidence of his good reputation for truth and veracity. It is a well settled rule that a party litigant cannot ordinarily offer evidence of his own good character for truth and veracity until the same has been put in issue by the opposing party. Appellee did not put in issue the character of appellant and therefore the court properly refused to allow appellant to offer evidence of his own good character for truth and veracity. Appellant contends that his character for truth and veracity was put in issue when he was asked if he would steal cattle, to which he had answered that he would not. This question or similar questions did not have the effect to place in issue the reputation of appellant for truth and veracity. Blumrosen v. Burke, Tex.Civ.App., 296 S.W. 987; Shell Pipe Line Corp. v. Coston, Tex.Civ.App., 35 S.W.2d 1056; Fox v. Robbins, Tex.Civ.App., 70 S.W. 597.

Appellant next complains that he was not permitted to introduce in evidence the petition of appellee for the purpose of showing that appellee also was claiming the land by limitation. Appellant especially wishes to establish such fact because appellee, through his counsel, had insinuated that claiming land by limitation was similar to theft of cattle. The petition was properly excluded. It was not an abandoned pleading, but was the petition on which appellee had gone to trial. It had presumably been read to the jury and was before them for the purpose of showing on what facts appellee was basing his cause. The jury were already informed that appellee was basing his claim to the land on the respective statutes of limitation, and offering the petition in evidence would have added nothing to the information already before the jury. Furthermore, appellant did not except to the ruling of the court excluding the petition from evidence, and is not now in a position to complain of such ruling. Yellow Cab Co., Inc., v. McCloskey, Tex.Civ.App., 82 S.W.2d 1042; Merchants’ Casualty Company v. Bailey, Tex.Civ.App., 113 S.W.2d 630.

Appellant’s fifth proposition complains because tenancy agreements signed by appellant and another party were admitted in evidence, though not included in appellee’s abstract of'title. We overrule this proposition. The tenancy agreements were admissible to refute appellant’s claim of title by limitation and were not required to be included in appellee’s abstract of title. Davis v. Cisneros, Tex.Civ.App., 220 S.W. 298; Wolf v. Wilhelm, Tex.Civ.App., 146 S.W. 216.

Appellant next complains that the tenancy agreements should not have been permitted in evidence because they were without consideration, were fraudulent and void. We overrule this contention. The execution of the instruments were shown before they were introduced in evidence, and also enough evidence to establish a reasonable probability of the genuineness of these instruments, and whether or not they were fraudulent and void might become an issue for the jury under proper instructions, but would not control the admissibility of the instruments. In Jackson v. Nona Mills Co., 61 Tex.Civ.App. 141, 128 S.W. 928, 929, 930, it is said: “It has been held—and we think the rule a sound one—that, ‘if there is a reasonable probability established that the paper is what it purports to be, the question then becomes one for the jury, and the paper ought to go before them with the evidence impeaching its genuineness, with proper instructions.’ ” See, also, Porter v. Rogers, Tex.Civ.App., 293 S.W. 577.

Appellant next contends that the court should not have rendered judgment for possession of the land described in the tenancy agreements if they were valid and legally in evidence. We overrule this contention. The agreements provided that should appellant at any time assert an adverse claim to the land described therein, Humble Oil and Refining Company, its successors and assigns shall have the right to terminate' said agreements and to immediately repossess said land. Appellee is an assign of Humble Oil and Refining Company. Appellant, both prior to this lawsuit and as a part of his contentions herein,_ is asserting an adverse claim to a part of the land, and therefore has waived or forfeited his rights under the tenancy agreements.

Appellant, by his eighth, ninth, tenth and eleventh propositions, contends that the jury’s answers to special issues Nos. 1 and 3, and defendant’s specially requested issue No. 3, and plaintiff’s specially requested issue No. 10, should be set aside because they are all contrary to the overwhelming weight and preponderance of the evidence. We will not here attempt to discuss the evidence with reference to these issues, but will overrule all of these propositions because an examination of the evidence shows that not only were such answers not contrary to the overwhelming weight and preponderance of the evidence hut are supported by the evidence.

By his twelfth proposition appellant contends that plaintiff’s requested issue No. 4 should not have been submitted, because it is a charge on the weight of the evidence and does not constitute an ultimate fact in the case. We have examined this issue and find that it was not subject to the objection made and we therefore overrule this proposition.

The judgment is affirmed.


text:
    RICHMOND et al. v. NOWLIN et al.
    No. 5088.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 11, 1939.
    Rehearing Denied Jan. 15, 1940.
    R. E. Stalcup, of Dalhart, for appellants.
    Tatum & Tatum, of Dalhart, and Bonner, King, Dawson & Jones, of Wichita Falls, for appellees.
   FOLLEY, Justice.

On June 9, 1926, J. W. Wallace, while owner of Blocks 17, 18 and 19 of the Kendrick Addition to the town of Dalhart, Dal-lam County, Texas, executed a deed of trust upon the property to Edmund P. Mel-son, trustee for the Continental Life Insurance Company, to secure an indebtedness in favor of such company in the stun of $2,500. On June 30, 1927, Wallace con'veyed the property to A. O’Connor, who, as a part of the consideration, assumed the $2,500 indebtedness on the property held by the Continental Life Insurance Company, and further executed, together with his wife, Mrs. Burlie O’Connor, nine vendor’s lien notes each in the sum of $520.25, payable to Wallace from one to nine years respectively. On September 8, 1927, Wallace transferred the nine notes to Mrs. Matilda Richmond for a consideration of $4,682.25, their face value, and guaranteed their payment at maturity. In the assignment conveying these notes it was stipulated that the debt represented thereby was subordinate to the first lien held by the Continental Life Insurance Company.

In December, 1927, the Continental Life ■ Insurance Company transferred the indebtedness and lien held by it to the North Texas Building and Loan Association of Wichita Falls, Texas. On December 30, 1927, O’Connor and wife renewed the indebtedness and lien held by the North Texas Building and Loan Association by executing a renewal note in the sum of $2,-427 and by a new deed of trust, both of which extended the unpaid balance of the original $2,500 note. Thereafter, from time to time, by divers transfers not material to this controversy, the property was conveyed by warranty deed, and in all of these transfers the first lien held by the North Texas Building and Loan Association was recognized either by an assumption of the debt by the grantee or by a recitation that such grantee was purchasing the property subject to such indebtedness and lien.

On October 21, 1931, W. H. Lathem, then owner of the property, conveyed the same to Rosa E. Nowlin, who assumed the remaining unpaid balance of the indebtedness held by the North Texas Building and Loan Association as well as five unpaid notes of the series of nine second lien notes executed by O’Connor and wife in favor of Wallace. On December 1, 1932, J. W. Nowlin and wife, Rosa E. Nowlin, executed a new deed of trust to A. C. Estes, trustee for the North Texas Building and Loan Association for the purpose of renewing and extending the lien and the indebtedness held by such association in the unpaid balance of $1,550. On September 1, 1933, Nowlin and wife conveyed the property to Annie Stone McKee who assumed the debt in favor of the North Texas Building and’ Loan Association in the unpaid balance of $1,486 and further assumed four of the $520.25 unpaid notes of the original series of nine from O’Connor to Wallace.

On April 30, 1935, Annie Stone McKee and her husband, Babe McKee, executed a deed of trust to J. K. Estes, trustee for the ’North Texas Building and Loan Association in renewal of the indebtedness held by such association. In connection with this deed of trust the McKees executed a new note in the sum of $1,903.26, and it was stipulated in the deed of trust that such note was for money advanced by the association to renew and extend $1,452.25 indebtedness held by the association and that the remainder of the money advanced, as evidenced by the note in the sum of $1,-903.26, was for the purpose of paying taxes due on the property. In regard to the excess money advanced for the taxes over and above the amount of the indebtedness outstanding upon the property no issue is presented that the money was not so furnished and applied. On May 17, 1935, the North Texas Building and Loan Association, for valuable consideration, transferred the indebtedness and lien to the appel-lee, North Texas Federal Savings and Loan Association. On July 7, 1936, J. K. Estes as trustee, and acting under the deed of trust from the McKees to him, made a sale of the property and the same was purchased by the North Texas Federal Savings and Loan Association for the sum of $1,-500, which sum was insufficient to pay the amount of the indebtedness then held by such association. On July 22, 1936, the North Texas Federal Savings and Loan Association conveyed the property to J. W. Nowlin, one of the appellees herein.

On September 13, 1938, the appellant, Matilda Richmond, owner of the last four unpaid vendor’s lien notes of the series of nine above mentioned, joined by her husband, filed this suit against J. W. Nowlin and wife, the North Texas Federal Savings and Loan Association, J. W. Wallace, A. O’Connor, and other defendants not necessary to mention since they were dismissed from the suit. By an amended petition filed November 16, 1938, they pleaded the various transfers and deeds of trust in connection with the property beginning with the deed of trust from Wallace to Melson, trustee, dated June 9, 1926, and ending with the conveyance to J. W. Now-lin. They alleged that the deed of trust from the McKees to J. K. Estes created no more than a junior lien as far as the rights of Matilda Richmond were concerned and that the sale made by Estes was void as to them. The appellant, Matilda Richmond, sought personal judgment against J. W. Wallace and A. O’Connor upon the four vendor’s lien notes and sought judgment for foreclosure of their vendor’s lien against all the parties, and, in the alternative, for foreclosure subject to the balance due upon the original Continental Life Insurance Company indebtedness. Further, in the alternative, they asked for the right to redeem the property and tendered into court the balance due under the original Continental Life loan. Also, as an alternative plea, they set up a statutory action in trespass to try title against all the appel-lees.

The appellees J. W. Nowlin and wife answered by general demurrer and general denial and alleged that they had made improvements upon the property in good faith. By way of cross-action they sought judgment over against the North Texas Federal Savings and Loan Association for any judgment recovered against them, and in another cross-action in trespass to try title asked that they be quieted in their title to the property.

The North Texas Federal Savings and Loan Association, after answering by the general issue, among other things set up a plea in estoppel as against Matilda Richmond and alleged that prior to the trustee’s sale under the deed of trust that such association notified the appellant, Matilda Richmond, of the threatened sale and gave her an opportunity to protect her interest in the property but that Mrs. Richmond informed such association that the property was not worth a thousand dollars, that she was not interested in it and, in effect, said that the association could do as it pleased with the property.

The case was tried before the court without a jury and judgment was rendered denying the appellants any relief except a personal judgment in favor of Mrs. Richmond against J. W. Wallace and A. O’Con-nor for the amount of her notes. The court adjudged the title and possession of the property to be in J. W. Nowlin and Rosa Nowlin free of any claim of the appellants.

The appellants contend that under the above facts the deed of trust of April 30, 1935, from the McKees to the North Texas Building and Loan Association, under which the land was sold, was void as to Matilda Richmond, and, if valid as between the parties thereto, it only created a lien inferior to that held by Matilda Richmond.

This contention is based upon the theory that the appellant, Matilda Richmond, was bound only by the terms of the original deed of trust from Wallace to Melson and*' not by one executed subsequent to the creation of her lien, and especially does the appellant Matilda Richmond complain of the selection of J. K. Estes as a new trustee, instead of Edmund P. Melson, who> was the trustee named in the original deed of trust from Wallace in favor of the Continental Life Insurance Company.

From an examination of the instruments renewing the indebtedness originally held by the Continental Life Insurance Company, it is evident that no new lien was created in so far as this debt was concerned! The execution of new notes and liens in lieu of the old did not create a new debt or lien on the property, but in each instance, both the indebtedness and the lien were merely brought forward and extended. The appellant Matilda Richmond took her lien by virtue of her purchase of the ven-' dor’s lien notes with full knowledge of the existence of the prior lien in favor of th'e Continental Life Insurance Company, then owner and holder of the debt and first lien. She took such notes charged with notice that the first lien on the property was a valid and superior lien to hers and that it could be continued indefinitely in binding force as superior to her junior lien. She-contracted for her junior lien in contemplation of the right of the debtor and the creditor to extend the prior debt and thus keep her lien inferior in every respect. The parties to the McKee deed of trust had the right to name a new trustee and prescribe new terms and conditions of foreclosure so long as such variations from the original deed of trust did not affect or restrict the vested rights of the second lien holder, which was not the case herein since the original deed of trust provided for power of sale. Mrs. Richmond was notified of the threatened sale of the prop-. erty and afforded an opportunity to. protect. her interest if she so desired. This she refused to do. She informed the association that the property was not worth more than a thousand dollars, which was about one-half of the amount the association had against it, and she further said that she did not intend to do anything about protecting her second lien. In the case of Hampshire v. Greeves et al., 104 Tex. 620, 143 S.W. 147, 150, in speaking of the rights of a junior lien holder under circumstances similar to those of the instant case, the Supreme Court said: “The right of sale given in a mortgage is a valuable right acquired by contract inuring to the mortgagee, and cannot be impaired by any subsequent act of the mortgagor with regard to such property. Not only is such right of value to the mortgagee, but likewise to the borrower, since it gives the power to foreclose without resort to the courts, and thereby simplifies and facilitates the making of loans so desirable for the promotion of business. * * * If the junior mortgagee desired to protect his lien, it was his privilege and duty to pay off the prior lien. Not having exercised this privilege where the opportunity has not been denied him, he cannot by a suit to foreclose his junior lien under such circumstances deny the right of the holder under the foreclosure sale by the trustee to plead such title as a defense.”

Under the above conditions we think the sale of the property under the deed of trust executed by the McKees completely extinguished the second lien held by Mrs. Richmond and all her rights thereunder. Continental State Bank of Big Sandy et al. v. Pepper et al., 130 Tex. 71, 106 S.W.2d 654; Russell-Coleman Oil Mill v. Johnson et al., Tex.Civ.App., 287 S.W. 134; Richardson et al. v. Kent et al., Tex.Civ.App., 47 S.W.2d 420, and authorities cited.

In the judgment of the trial court no relief was granted to the appellant Harry Richmond, and none was sought by him individually. The judgment, however, recited that he was a party plaintiff pro forma only, which, if true, might present some question of fundamental error under the holding of the following cases: Newell et al. v. State, Tex.Civ.App., 103 S.W.2d 194; Rhodes v. Taliaferro et al., Tex.Civ.App., 119 S.W.2d 703; Neely et al. v. Neely, Tex.Civ.App., 117 S.W.2d 470, writ refused. But upon examination of the record we think the court was in error in finding that the husband was only a party pro forma, and therefore the question presented in the authorities cited passes out of this case. It is true that in the appellants’ second amended original petition the- husband was referred to as a plaintiff pro forma, but thereafter three supplemental petitions were filed by the appellants, one of which included a cross-action against Nowlin and wife, and in each of these petitions the husband was referred to as a party plaintiff and not as a plaintiff merely as a matter of form. Under such circumstances we think that Harry Richmond was a real party plaintiff and that the judgment in this respect should be reformed, and it is so ordered.

The judgment as reformed is affirmed.


author: WILLIAMS, Justice.

text:
    JOHNSTON et al. v. COLE et al.
    No. 5462.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 4, 1940.
    Rehearing Denied Jan. 18, 1940.
    Weeks, Hankerson & Potter, of Tyler, for appellants.

      Bramlette, Levy & Dotson, of Long-view, Read, Lowrance & Bates, of Dallas, and Frank C. Bolton, Jr., of Long-view, for appellees.
   WILLIAMS, Justice.

This suit involves the interpretation of three conveyances, each in identical form, except that different tracts of land in the same area in Gregg County are affected. These were executed March 10, 1932, by M. T. Cole and wife as grantors, herein referred to as defendants. In each instrument defendants reserved an overriding royalty on oil and gas produced, in terms reading:

“It is further provided, understood and stipulated that the grantors reserve unto themselves, and shall retain and have ⅝2 of all the oil, gas and minerals produced from the said land as a perpetual overriding royalty, except as hereinafter provided, * * * to be reduced only upon the happening of the contingency * * * hereinafter explained.
“In connection with the above, it is understood that if and when any oil well drilled on said land shall become incapable of producing more than one hundred (100) barrels of oil p'er day, then the grantors herein shall be entitled to an overriding royalty in and out of that particular well of %4 instead of ⅞2 as above provided; and this provision shall apply only to such wells as may become incapable of producing more than one hundred (100) barrels of oil per •day; and this shall apply only from and after the time that same have been reduced to 100 barrel wells.”

T. A. Johnston, trustee, and John Owens, trustee, plaintiffs below, the joint owners and operators of the leasehold estates under Cole, developed the properties by bringing in their first well in the summer of 1932, and additional wells to a total of thirty-one by August 28, 1936, the date this suit was filed. During this period, or up to a short time prior to institution of this suit, plaintiffs, through the pipe line purchasers of the oil under division orders executed by plaintiffs and defendants, have paid to defendants for the oil ■produced on a basis of ⅞2 of the production. The Sun Oil Company and American Pipe Line Company were sued for a %4 of the oil purchased and retained by these companies after notice of this suit, for which the Coles had not been paid. These purchasers tendered and paid into the court the amount held by thetti, and in the judgment were discharged from further liability. This phase of the litigation will not be noticed further. In the relief sought against the Coles plaintiffs seek a reduction of the overriding royalty from a ⅞2 to a ⅝⅜ interest, it being alleged that the oil wells upon the land had become incapable of each producing 100 barrels or more of oil per day under above-quoted provision.

The court filed findings of fact and conclusions of law. The court’s findings of fact pertinent to the issue involved are, in substance, as follows: (1) That on February 25, 1932, which was prior to the execution of the conveyance here involved and before any well had been drilled by plaintiffs, proration orders were promulgated and made effective under the authority of law by the Railroad Commission, fixing the allowable oil production in the East Texas oil field at not more than 75 barrels of oil daily per well. Subsequently other proration orders were duly promulgated from time to time which reduced the allowable to a daily maximum varying between 20 and 28.21 barrels production per well. (2) That legitimate purchasers of oil could not lawfully purchase oil without a tender which could not be secured unless it be shown that the oil had been produced in accordance with the proration allowable. (3) That defendants never required or requested that oil be produced from any of the wells in excess of the allowable; that neither plaintiffs nor defendants questioned the validity of the proration orders; that plaintiffs operated the wells prudently and in compliance with the rules and regulations of the Railroad Commission, and that at no time did plaintiffs produce as much as 100 barrels per day from any well. (4) That each and all of the oil wells situated on the properties are at the time of trial, and were before and have been continuously since August 28, 1936, by natural producing ability physically capable of producing and bringing to the surface per day and daily more than 100 barrels of oil. (5) The court further found from the uncontradicted evidence of R. D. Parker, a petroleum engineer and formerly chief superintendent of the Oil & Gas Division of the Railroad Commission of Texas, that to produce 100 barrels or more of oil per day from each well would not-be in accord with the prevailing practices obtaining in the oil industry in the area and would he considered imprudent because to produce such amount daily would cause a channeling of the oil sand, coning of salt water into the sand, and an entrapment of quantities of oil otherwise recoverable, and decrease the bottom hole pressure, all of which would be unfavorable to the greatest ultimate recovery of oil; and that regulation by proration makes for the greater ultimate recovery of oil in the field as well as for better prices, for oil had sold as low as 10‡ per barrel before production had been regulated and had risen to $1.35 after proration. No exception was taken and none here urged to the foregoing findings of fact. In addition to the foregoing findings, the uncontradicted evidence discloses that in November 1937, the date of this trial, the hourly potential production rating of the wells situated on these properties ran from 720 to 990 barrels.

The court concluded, as a matter of law, that the provision first herein set out is determinative of the case, and should be construed by the court and enforced according to its terms; and that “the above provision is unambiguous and clear of purpose of the parties and means, and should be so interpreted, as applying only to the natural ability of the oil wells of producing and bringing to the surface more than 100 barrels of oil per day. The words ‘such wells as may become incapable of producing more than 100 barrels of oil per day’ mean, and have reference to the natural deficiency in flow of the oil wells inherent in the wells themselves to a point below and not exceeding 100 barrels of oil per day, and, as used and intended by the parties, do not mean nor have reference to, an artificial restriction upon daily production solely, such as imposed by State proration and regulations.” Accordingly defendants were awarded judgment for - the money impounded, and plaintiffs denied a recovery of the relief sought.

Plaintiffs contend, first, that such stipulation means incapable of producing such amount when reasonably and prudently operated without waste and only when that amount of oil can be marketed at the market price; and, secondly, because, of the proration laws the wells have become incapable of producing the stated amount. If this had been the intention of the parties, or if they had intended to qualify this stipulation to actual production, more apt language expressive of such intent could and no doubt would have been used. To give the stipulation the meaning insisted upon would necessitate the court’s altering and adding to the stipulation appropriate terms and phrases expressive of this intent. The word “incapable” as ordinarily and usually employed means “lacking or wanting in natural ability, capacity or qualification; lacking adequate power; without general or ordinary ability.” The word “producing” so used signifies “bringing into existence.” Neither is a technical term used in any particular trade or profession. Accordingly, the phrase “incapable of producing” in ordinary and popular use would mean and have reference, as found by the trial court, to the natural deficiency in flow of any oil wells inherent in the well itself to a point below and not exceeding 100 barrels of oil per day. This conclusion is further supported by the fact that the stipulation in express terms is made to apply only to “that particular” well or to “such” wells as may become incapable of producing the stated amount.

The court’s finding that to produce 100 barrels of oil per day would be unfavorable to the greatest ultimate recovery of the oil and therefore would be considered an imprudent operation of this property is applicable not only to these wells but all wells in the East Texas oil field. To obtain the greatest ultimate recovery of oil from any field in Texas is one of the underlying purposes of the Texas proration laws. Prior to the date these mineral conveyances were executed there was then in effect a valid law providing for the promulgation of proration orders by the Railroad Commission. This Commission had promulgated an order restricting the production of each well in this area not to exceed 75 barrels of oil daily, and subsequently to the execution of these conveyances had further restricted the daily production. As stated in Exum v. Laub, 5 Cir., 87 F.2d 73, 74, “If reduction by proration had been in the minds of the parties, more apt language could, and no doubt would, have been used. * * * when a contract is ambiguous the construction adopted by the parties will be given great, sometimes controlling, weight by the. courts.” Exum v. Laub, supra, and authorities there cited; Cavazos v. Trevino, 6 Wall. 773, 73 U.S. 773, 775, 18 L.Ed. 813. Neither of these wells ever produced 100 barrels of oil per day on account of the proration orders. Notwithstanding, plaintiffs paid to defendants through the pipe lines a ⅞2 of the oil produced from 1932 until a short time pri- or to filing this suit.

The judgment is affirmed.