author: BLAIR, Justice.

text:
    CLEMENTS v. WILLIAMS et al.
    No. 8989.
    Court of Civil Appeals of Texas. Austin.
    Dec. 4, 1940.
    Rehearing Denied Dec. 31, 1940.
    Writ of Error Dismissed Eeb. 12,1941.
    See 147 S.W.2d 769.

      Walker & Hammett, of Lampasas, and Thos. C. Ferguson, of Burnet, for appellant.
    No briefs filed for appellees.
   BLAIR, Justice.

The opinion on a former appeal remanding this cause is reported in 128 S.W.2d 103. After the remand the parties re-pleaded, but the issues remained substantially the same. That is, appellant sued ap-pellee in trespass to try title for the land described. Appellee pleaded not guilty, and by cross-action sought to cancel his two deeds conveying the land to appellant, alleging that they were intended and treated by the parties as mortgages to secure two notes, one of which was alleged to be usurious, and prayed that all payments made thereon be applied to principal. Appellee also alleged that appellant obtained possession of the deeds without his knowledge or consent; that the one dated December 16, 1935, was destroyed by agreement when a part of the land conveyed by it was sold and the proceeds paid to appellant; and that possession of the deed dated February 21, 1936, conveying the land in controversy, and upon which appellant particularly relied for title, was obtained by appellant without the knowledge or consent of appellee or the escrow agent with whom the parties has placed it pending a final adjustment of their accounts. Appellant replied by a general denial, and alleged that if the note was usurious, it was the result of a mutual mistake, and prayer was that it be reformed so as to purge it of usurious interest.

On the former appeal the cause was remanded, (1) because the court refused to submit for the determination of the jury the question of whether the deed dated December 16, 1935, was intended as a mortgage; and (2) because the court permitted appellee to recover as penalty double all amounts paid on the usurious note during the two years. next preceding the filing of this suit, instead of double the amount of interest paid on the usurious loan during that period, as provided by Art. 5073, R.S.1925.

On this trial the jury found: (1) That the deed dated December 16, 1935, was intended as a mortgage; (2) that the deed dated February 21, 1936, was not to be delivered but was to remain in the possession of Judge J. Tom Higgins pending a final adjustment of accounts between appellant and appellee; and (3) that at the time appellant purchased the Clark note the true amount due thereon as between appellant and appellee was $1,236.81. Upon these findings, and findings which may be assumed to have been found by the trial court, judgment was rendered that appellant take nothing by his suit in trespass to try title, and that the deeds involved be cancelled and that title and right of possession of the land be vested in appellee, hence this appeal.

The evidence relating to all indebtedness of appellee to appellant, to the usurious loan contract, and to the payments made on all indebtedness by appellee, is substantially as on the former appeal. The evidence relating to the two deeds involved and their connection with the loan transactions is much fuller on this appeal, and we regard it as establishing as a matter of law that the deed dated December 16, 1935, conveying both the interest of ap-pellee in the 400 acres of land described and the Lampasas city property, referred to as the “Home Place”-, to appellant, was intended and treated by the parties either as a mortgage or conditional sale; and that in either event such deed served its purpose and was by agreement of the parties destroyed at the time of the execution of the deed dated February 21, 1936, conveying to appellant only the Lampasas city property here involved; and upon which last deed appellant testified that he relied for title.

The total original indebtedness of appel-lee to appellant consisted of three items as follows:

1. A note for $470.60, secured by a deed of trust on the undivided interest of appellee in 400 acres of land in Lampasas County, which interest appellee inherited from his parents.

2. A note for $1,200, secured by a vendor’s lien on the Lampasas city property in' controversy, which lien was renewed and extended April 15, 1927, and the indebtedness was renewed by the $1,-457.50 usurious note involved, dated April 15, 1927.

3. An open account for $100 incurred in 1934.

Payments were made from time to time on the notes mentioned in Items 1 and 2, and a claimed balance was carried into a renewal note for $960.24, dated February 2, 1934, and secured by a deed of trust lien on both the 400-acre estate land and the Lampasas city property. Nothing was paid on this note, and on December 16, 1935, appellant claimed a balance of $1,-354.09 was due on Items 1, 2 and 3, and other expenses incurred in the preparation of various loan papers; and on that date the first deed was executed by ap-pellee, conveying to appellant the two properties covered by the deed of trust, which deed, together with a , contemporaneously executed escrow agreement were placed in a bank; the escrow agreement providing that if appellee paid appellant $1,354.09 prior to January 12, 1936, the deed should be returned to him, but that if he did not pay said sum by that time, the deed should be delivered to appellant; and a notation was made by the bank that it delivered the deed to appellant on January 13, 1936, in accordance with the escrow agreement. Appellant testified, however, that he extended the time 30 days in which appellee might pay the sum claimed, during which period ap-pellee sold his interest in the 400-acre estate land to his sister for $600, which was paid to appellant. The deed dated December 16, 1935, which had not been recorded, was taken by appellant to the office of Judge Higgins and was by agreement of the parties destroyed, and the different reasons for destroying it are not material. A deed executed by appellee conveying the 400-acre estate land to his sister was dated February 21, 1936, and on the same day appellee executed the second deed, conveying only the Lampasas city property to appellant for a recited' consideration of $758.09 paid. This deed was placed in the custody of Judge Higgins, with the understanding, as found by the jury, that'it was not to be delivered until appellant and ap-pellee had adjusted their accounts, or settled their debt, a dispute having arisen as to the balance owing by appellee to appellant. Thereafter numerous meetings were had in Judge Higgins’s office, at which appellant and appellee tried to adjust their accounts, and various written statements of the account as covered by Items 1, 2 and 3 above, and certain expenses claimed by appellant for executing the loan papers, were made by appellant for appellee, one such statement, dated July 25, 1936, being in evidence. But the parties did not reach an agreement or settlement of the indebtedness, which was claimed by appellant to be the amount of the consideration recited in the deed of February 21, 1936; and appellant testified on the trial that he was still willing to accept the amount due him by appellee and not take the property. Sometime after July, 1936, appellant went to the office of Judge Higgins and according to his testimony obtained possession of the deed from Miss Alexander, who was doing some typing for Judge Higgins at the time. Judge Higgins was not in his office at the time, and testified that the deed was taken without his knowledge or consent; and both he and appellee testified that they did not know appellant had the deed until the trial of a forcible detainer suit later brought by appellant against ap-pellee concerning the property in suit.

The above detailed evidence established as a matter of law that the deed dated December 16, 1935, was intended and treated by the parties as a mortgage or conditional sale, and was destroyed as having served its purpose.- In consequence, the asserted error on the part of the trial court in refusing to define or explain what was the meaning of the deed as a mortgage is immaterial.

We are also of the view that the undisputed evidence showed that the parties intended and treated the second deed, dated February 21, 1936, as a mortgage. And the jury having found upon sufficient testimony that it was intended that it should remain in the possession of Judge Higgins until the accounts were adjusted or settled between appellant and appellee, appellant failed to sustain title to the land in controversy.

With respect to the usurious loan contract and note, dated April 15, 1927, the evidence showed that appellee purchased the Lampasas city property involved in 1920, and as part payment therefor executed a vendor’s lien note for $1,-200, which was duly assigned to A. G. Clark, who duly assigned it to appellant on April 15, 1927, at which time there was due as principal and interest on the note the sum of $1,236.81, as found by the jury; and at which time appellee executed a renewal and extension agreement for five years, and also executed the renewal note for $1,457.50 to appellant, payable in 53 monthly installments of $27.50 each, which bore interest at the rate of 10% from maturity. Appellant testified that there was added to the $1,236.81 principal enough interest to make the face value of the note $1,457.50, which was to be amortized by monthly payments of $27.50 each, which monthly payments included both principal and interest; and the note and contract provided that the holder could mature the entire debt upon failure to pay any monthly installment when due. As held on the former appeal, these facts showed that the note “was clearly usurious as a matter of law” [128 S.W.2d 106], under the authorities cited.

The jury having found that $1,-236.81 was the true principal of the $1,-457.50 note, which was the only fact necessary to a determination of the usurious character of the note, the trial court refused to submit the requested issue of appellant to determine whether he intended to charge or collect usurious interest. Appellant assigns this as error, which assignment is not sustained.

Appellant’s allegation was that if the note were usurious, it was the result of mutual mistake. There was no evidence that appellee had anything to do with the preparation of the note. Appellant furnished the amounts and the form note, which his attorney prepared as directed by him. And under the facts above stated the note, as held on the former appeal, “was usurious as a matter of law.”

Appellant contends that before equity would permit appellee to cancel the deeds as mortgages, he must either tender the amount of the mortgaged debt or obtain a finding that he had paid the mortgage debt. This is the true rule and it was applied in the instant case. No issue was submitted nor requested to be submitted for the jury to determine the amount of the payments that appellee had made on his indebtedness to appellant. In consequence, the trial court will be presumed to have found that the mortgage debt had been paid in support of its judgment cancelling the deeds as mortgages, if the evidence adduced will support such a finding.

The evidence as to payments is in the main undisputed. It showed that shortly after the execution of the $1,457.57 installment note, it was discovered that appellee had paid Clark $225 on the $1,200 vendor’s lien note which had not been credited at the' time appellant purchased it. The $225 was repaid to appellee by Clark’s estate, and by agreement it was paid on the $470.60 note (Item 1), reducing it to $245, which payment was endorsed on the back of the note, and it was also endorsed on the note that all interest had been paid to March 12, 1931. Thereafter appellant calculated on the back of the note interest at, the fate of 10% compounded annually, and showing a total balance of $389.56 due January 12, 1936, on the $470.60 note. This note, however, provided for only 8% interest on past due principal and interest, and the computation of interest at 10% from March 12, 1931, to February 2, 1934, when the note was renewed by a note bearing 10% interest, was error; and if corrected to allow 8% interest for such period, there was a balance of $371.69 due on the $470.60 note January 12, 1936.

The $1,457.50 note was usurious, and all payments made thereon must be applied to payment of the true principal of $1,-236.81, as found by the jury. There was endorsed on the back of the $1,457.50 usurious note 33 monthly payments of $27.50 each, making a total of $907.50, the last payment being made February 18, 1930. There was also endorsed on the note, “Balance due on Principal 550.00,” and “Int. Paid to Jan. 1, 1932.” Appellant testified that he collected interest at the rate of 10% on the $550 from February 18, 1930, to January 1, 1932, which would make a total of $102.33, and which, if added to the $907.50, would make a total of $1,008.83. There was also admitted four payments of $15 each made after February, 1936, a total of $60, which if added to the $1,008.83 would make a total of $1,068.83. There was also testimony of a payment of $68 made in 1932, which if added to the other payment would make a total of $1,136.83, leaving a balance of $100 due on this note. This balance added to the balance of $371.69 due on the $470.60 note would make a total of $471.69,

The open account for $100 for tires was incurred in 1934, which together with legal interest from January 1, 1935, to January 12, 1936, would amount to $106.20, which added to the $471.69 would make a total balance due of $577.89. Appellee paid appellant $600 as the sale price of his 400-acre estate land, which would leave appellant owing him $22.11.

The only other claim of indebtedness by appellant was a total of $26.50 for expenses which he claimed to have paid for the preparation of the notes, deeds, deeds of trust, etc., involved herein. The evidence was so indefinite as to these items that the trial judge could have rejected them.

We find no error and affirm the judgment of the trial court.

Affirmed.


source: Caselaw Access Project

author: BROWN, Justice.

license: Public Domain

text:
    ROSS et al. v. JARRETT et al.
    No. 14143.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 29, 1940.
    Rehearing Denied Jan. 10, 1941.
    See, also, Tex.Civ.App., 140 S.W.2d 483.
    Cecil Murphy, of Gainesville, for plaintiff in error.
    W. S. Moore, of Gainesville (Phillips, Trammell, Estes, Edwards & Orn, of Fort Worth, of counsel on appeal), for defendants in error.
   BROWN, Justice.

This suit presents another chapter in the litigation begun by defendants in error against plaintiff in error, J. W. Ross, and two other parties, namely, Ancil H. Ross and Frank Morris, Jr.

The first chapter is concluded with the opinion of our Court, as published in 132 S.W.2d 286-291, and the action of our-Supreme Court in dismissing an application for a writ of error from our judgment with the notation: “Correct .judgment.”

We shall take cognizance of the judgment heretofore rendered by us in so far as it affects any phase of the instant suit*

In the prior suit the Jarretts and Jarrett heirs recovered title to the 95-acre tract and the 50-acre tract as against the defendants, the Rosses and Morris, Jr., and expressly cancelled the deed executed by the administrator to Morris and the deed executed by Morris to J. W. Ross, and removed the cloud cast upon plaintiffs’ title by reason of the execution and recording of such deeds, but said judgment expressly fixed a lien against an undivided one-half interest in the 50-acre tract to secure the payment of an indebtedness owed by Turner Jarrett, deceased, on whose estate an administration was had- and through which a sale of both tracts of land was made, to satisfy such indebtedness (and taxes paid by Ross), and expressly fixed a. lien against both tracts to secure the payment of the taxes, delinquent and current, that were paid by Ross on same.

The trial court, in - an effort to deal kindly with the plaintiffs, expressly stayed execution and order of sale for six months.

The plaintiffs below, who are the plaintiffs in the instant suit, appealed because they thought they were awarded insufficient relief and we affirmed the judgment of the trial court. Jarrett et al. v. Ross et al., Tex.Civ.App., 132 S.W.2d 286, writ dismissed — correct judgment. The judgment of the trial court, so affirmed by us, is dated November 27, 1937. The judgment in the instant case seems to have been rendered May 8, 1939.

Defendants in error (plaintiffs below) pleaded, in substance, the identical allegations that they set up in the former suit, with respect to the title to' the property, the complaints as to the administration had upon the estate of Turner Jarrett, deceased, its invalidity, etc., and the same complaints as to the sale of the properties to Morris and his conveyance to J. W. Ross and said Ross” lack of good faith in respect to the title and in respect to his paying the delinquent and current taxes, and that no consideration passed at the administrator’s sale, and then the pleading alleges that the recording of the said deed cast a cloud upon their titles and prevented them from selling an oil and gas lease on the lands and from selling a portion of their royalty, for all of which they prayed recovery of damages.

The petition alleges that the acts of the defendants were done with malice, but just before the cause was tried, they, in writing, withdrew all allegations of malice, and in writing declared that they sought only actual damages occasioned by the wrongful clouding of their titles by the defendants, and in. this writing they assert that they decline to read to the jury the abandoned allegations.

We confess that never before have we seen such a procedure as was had in this suit. Instead of requiring the plaintiffs to replead and eliminate the allegations that they say they are abandoning, the trial court permitted them to file the following pleading: “Come now the defendants and before the pleadings are read to the jury in the above-styled and numbered cause, and expressly abandon their pleading and prayer for exemplary damages, and expressly abandon their allegations that the acts of the defendants and each of them were malicious, and expressly decline to read and present to the jury all their allegations that the acts of the defendants and each of them were maliciously done and expressly decline to, read to the jury their allegations and prayer for exemplary damages and expressly present to the jury by their pleadings only their allegations as to the wrongful clouding of their title to the lands involved, and expressly present to the jury only their plea and prayer for actual damages herein, which said abandonment was expressly permitted by the court, this the 1st day of May, 1939.”

The fact still remains that the petition on which the plaintiffs went to trial is in the record, intact, with nothing stricken from it, and with the many allegations that import malice, as well as allegations expressly charging malice.

What was read to the jury, as constituting the plaintiffs’ pleading, this court does not and Cannot in the .very nature of these unheard-of proceedings know, but we feel that the cause should have been tried on amended pleadings that actually show the very allegations on which the plaintiffs wish to stand. In no other way ■ can a trial court know what issues are sought to be raised and an appellate court is in no better position than the trial court under such circumstances.

We find that the plaintiffs not only pleaded the judgment in the former suit as a part of their cause of action here, but they introduced the judgment obtained in that cause as a part of their evidence.

In an effort to defeat the pleas of limitations that were set up by the defendants below, the plaintiffs, in their amended pleadings, alleged that they were not negligent in discovering that their titles had been clouded and pleaded ignorance and no want of diligence on their part.

A jury having been demanded, no issue touching upon malice was requested by the plaintiffs and no issue on the question of diligence on the part of the plaintiffs in discovering that their titles had been clouded and in bringing their suit for damages was requested, or given.

Plaintiffs below pleaded that they had made a tentative sale of an oil lease on the properties to one McCullough, which sale was lost because of the cloud cast upon their titles by the defendants. They pleaded no other prospective sale but merely alleged that they .could have sold a lease to other unnamed parties. They pleaded a loss of sale of royalty, but alleged no certain would-be purchaser. They pleaded that they could have sold the lease to McCullough at $35 per acre, and that the royalty was of like value per acre.

The verdict of the jury absolved Ancil H. Ross and Frank Morris, Jr., of all damages, and the jury found that McCullough was willing to buy the lease but was unable to pay for it, and found that the plaintiffs would have sold one-half of their royalty hut for the cloud on their titles and that they could have sold an oil lease on the properties to some other person than McCullough, and found the reasonable value of the lease at $35 per acre, and the value of the royalty the same.

On this verdict the trial court rendered judgment for the plaintiffs against J. W. Ross for $35 per acre, bottomed on the value of the lease, and for -$17.50 per acre bottomed on the value of one-half of the royalty.

J. W. Ross complains of this judgment and presents twenty-three assignments of error, hut we do not believe it is necessary to discuss all of them.

We see no difference Between the clouding of the title as is alleged to have been done in this suit and the clouding of the title by the levying of an attachment writ as was done in Farmers & Merchants National Bank et al v. Williams et ux., 133 Tex. 554, 129 S.W.2d 268, and the clouding of the title by abstracting of a judgment, as was done in First Nat. Bank v. Moore et ux., Tex.Civ.App., 7 S.W.2d 145, writ dismissed, in so far as the recovery of damages is concerned.

In the case of Farmers & Merchants Nat. Bank v. Williams [133 Tex. 554, 129 S.W.2d 269], our Supreme Court said: “In order that liability may be imposed for the levying of a writ of attachment, which prevents a sale of the property levied upon, the burden rests upon the one asserting such liability to allege and prove that a deal for the sale was pending at the time when the attachment was levied, or that the one having such 'attachment levied had knowledge that a trade or sale was about to be made, and also that if such levy had not been made the trade or sale would have been consummated.”

No such case was made in the record before us. On the other hand the jury found that the only prospective buyer, whom the plaintiffs allege they had, was not financially able to pay for the lease.

Such finding precluded the plaintiffs from recovering a judgment on the verdict, in our opinion, and the seventh and eighth assignments of error are sustained.

The plaintiffs can find no comfort in the finding made by the jury to special issue No. 5, as follows: “No. 5: Do you find from a preponderance of the evidence that if the Administrator had not executed a deed to the property involved in this suit the plaintiffs would have been able to have sold an oil and gas lease on said property in 1936 to some person other than R. C. McCullough? Answer, ‘Yes’.”

The defendants made timely objections to the giving of this issue and present their ninth assignment of error, complaining of the giving of such issue over their objections.

The objections that the “issue is immaterial and irrelevant * * * because the plaintiffs could only recover on the loss of a bargain or sale actually contracted * * * because the same is speculative and such issue would require nothing more certain than a mere guess on the part of the jury”, are well taken and should have been sustained.

The ninth assignment of error is sustained.

We are not convinced that this is a suit in which the plaintiffs cannot recover unless they plead and prove malice upon the part of the defendants in clouding their titles.

It appears that actual damages have been allowed where one wrongfully clouds another’s title, even where there is an absence of malice. Smith v. Taylor, 34 Tex. 589; First Nat. Bank v. Moore, Tex.Civ.App., 7 S.W.2d 145, writ dismissed.

This is not a suit to remove a cloud from the title and to recover consequent damages.

Suit to remove the cloud had long since been brought and a final judgment recovered awarding that relief,- when the instant case was tried.

No damages were sought in the first suit, and whether or not the judgment in that -cause is res adjudicata of any claim for damages is not before us for review.

But of one thing we are convinced, viz.: that if these plaintiffs can state a •cause of action without alleging malice— as they by their eleventh hour “abandonment of certain allegations” declare they desire to do — they should be required to re-plead so as to eliminate all allegations expressly setting forth malice and all that import malice.

Having pleaded their suit and judgment in “cause No. 12,438” (which judgment was affirmed as noted by us supra), the plaintiffs were entitled to introduce •such judgment in evidence. It was final as to the defendants who did not appeal, and the plaintiffs merely appealed from the relief that was given defendants — more ■especially that on the cross-action.

But having pleaded such judgment, the plaintiffs must be bound by the terms of the judgment.

That judgment disposes of issues and allegations that are sought to be repeated and repleaded in the instant suit, and this should not be allowed. Instead of the voluminous pleading with which the trial court and this court have been confronted, ,a simple statement of the transactions, without charging bad faith and malice, but simply showing that bottomed on a claim against the estate of Turner Jarrett, the defendants acted as they did; that such acts caused a cloud to be placed upon their titles; that such cloud was removed through a suit by them, and their consequent damage, states such case as they may plead, as is reflected by the record before us.

Following the lead of our Supreme Court, we do not here, in this record, find an insuperable barrier to a recovery by the plaintiffs.

We do not believe the case was fairly and properly presented and tried.

The plaintiffs have not appealed from the judgment in favor of Ancil H. Ross and Frank Morris, Jr., and the judgment as to them is by us undisturbed.

The judgment awarding damages as against J. W. .Ross is reversed and the cause remanded.


author: STOKES, Justice.

text:
    UNIVERSAL CREDIT CO. v. COLE.
    No. 5233.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 16, 1940.

      Clayton & Bralley, of Amarillo, for appellant.
    Mel Janes, of Lubbock, for appellee.
   STOKES, Justice.

This suit was instituted by appellant, Universal Credit Company, against appel-lee, E. E. Cole, upon a conditional sales, contract made by appellee with Walter Irvin by which appellee purchased a truck. The consideration for the truck was $963.50, of which amount $369.50 was'paid in cash and the balance of $594 was to be paid in monthly installments of $33 each, beginning July 15, 1938. The contract constituted a chattel mortgage on the truck and it was duly assigned to appellant by Walter Irvin. Appellant alleged there was a balance due on the contract of $165 and it sought judgment for that amount, together with interest and attorneys’ fees and foreclosure of its chattel mortgage lien. Appellant sued out a writ of sequestration under which the sheriff levied upon the truck and, appellee not having replevied the same within ten days, appellant delivered to the sheriff a re-plevy bond under which it took charge of the truck and sold it back to Walter Irvin.

Appellee alleged that after the written contract was executed he and appellant made an oral contract by which they agreed that the installment payments provided in the contract should be changed so that $66 would be paid bi-monthly instead of $33 monthly, and that he had paid the installments substantially as they became due under the modified provisions. He further alleged that before the suit was filed or the writ of sequestration issued, he tendered to appellant the full amount due and he filed a cross-action in which he alleged that the sequestration and sale of the truck amounted to a conversion thereof and prayed for damages of $600 which he alleged to be the value of the truck, less the balance due on the conditional sales contract, and for $450 for loss of profits which he alleged he had incurred as a result of the execution of the writ of sequestration.

The case was submitted to a jury upon special issues, in answer to which the jury found (a) that the parties entered into an oral contract modifying the terms of the written contract as alleged by appellee, (b) That appellant was justified in declaring due the unpaid portion of the purchase price of the truck, (c) That appellee had not been damaged by appellant’s act in declaring the balance due and payable, and (d) that the value of the truck was $450.

The court rendered judgment in favor of appellant for the sum of $165, the balance due on the conditional sales contract, and in favor of appellee upon his cross-action for the sum of $450. Appellant filed a motion for a new trial which was overruled, and it has perfected an appeal to this court.

Under proper assignments of error and propositions of law appellant contends, first, that the court erred in overruling its exceptions to the pleading and objections to the testimony concerning the alleged oral contract under which appellee claimed the installments provided in the original contract were changed from $33 per month to $66 bi-monthly, because it was neither.alleged nor proved that such oral contract was based upon a consideration. Secondly, that the value of the truck as alleged and proved by appellee did not refer either to the date it was replevied or to the date of the trial. Thirdly, that it was not shown the alleged oral contract modifying the terms of payment was made with an authorized agent of appellant and, fourthly, that no legal tender of the balance due on the contract was either alleged in the pleading or shown by the testimony.

The original contract provided that the monthly installments should not bear interest before maturity but after maturity they should bear interest at the highest lawful contract rate. Appellee did not allege, nor does the evidence show, that, under the alleged oral contract in which he claims the monthly payments were changed to $66 every two months, the provision for interest was changed from that provided in the contract, nor did he attempt to allege or show by the evidence any consideration whatever for the new oral contract. In this connection appellant contends that a written contract cannot, under the law, be changed by parol, but any change made therein must be in writing and of equal dignity with the original instrument. We cannot agree with appellant in this contention. It is held by the courts in this and many other jurisdictions that, in the absence of statutory inhibition, a written contract may be changed or modified by parol. Baughn v. Hensley, Tex.Civ.App., 14 S.W.2d 368; Yates Machine Co. v. Groce, Tex.Civ.App., 281 S.W. 226; Polk v. Western Assurance Co., 114 Mo.App. 514, 90 S.W. 397; Braden-Zander Construction Co. v. Seng, Tex.Civ.App., 179 S.W. 1103.

This does not mean, however, that such a contract may be changed or modified by mere idle conversation. The rule is well established that, in order to modify or materially change the terms of a valid contract by parol, the agreement, in order to be legal and binding upon the parties thereto, must be based upon a consideration. Otherwise, it is merely a nudum pactum and is afflicted with all of the infirmities of contracts or agreements generally that lack the essential element of a consideration. If, therefore, the agreement was made as alleged by appellee and shown by his testimony, it was not binding upon appellant and its breach could not inflict an injury upon appellee for which he would be entitled to recover. Phœnix Furniture Co. v. McCracken, Tex.Civ.App., 3 S.W.2d 545; Austin Real Estate & Abstract Co. v. Bahn, 87 Tex. 582, 29 S.W. 646, 30 S.W, 430; Tsesmelis v. Sinton State Bank, Tex.Com.App., 53 S.W.2d 461, 85 A.L.R. 319; Bowers v. Ground, Tex.Civ.App., 115 S.W.2d 1142.

Appellee’s allegations are merely to the effect that after the execution of the written contract, he agreed with appellant that the installment payments therein mentioned would be paid by him every two months rather than once each month as therein provided and that the amount of such payments would be doubled. He alleged,that during the existence of the contract he had made these payments every two months “for the most part”. The most that can be said of the testimony is that it proved this allegation. The original contract provided that the installments should bear interest at the highest legal contract rate after maturity. They did not bear any interest before maturity and the agreement which' appellee claims he made with appellant’s agent would have resulted in depriving appellant-of the interest on at least half of the monthly installments from the time they were due under the original contract until they became due under the alleged oral agreement of modification. It is obvious, therefore, that, not only did appellant receive no benefit from the alleged agreement of modification, but, to the extent of the interest on at least half of the installments during the time payment thereof was deferred, it actually suffered a detriment. We find in the record no allegation or proof of any kind that even suggests a consideration for the alleged oral contract of extension and it must follow that, even if the agreement was mad-.e as alleged by appellee, it was of no legal force. In the case of Phœnix Furniture Co. v. McCracken, supra, the appellee contended that appellants agreed with her that they would not make any demand for past-due installments nor take any action to repossess the mortgaged property until after 'they had furnished her with an itemized statement of her account and after she had returned from a contemplated visit which was to be some ten days after making the agreement. In passing upon this question the Court of Civil Appeals of the Ninth District said [3 S.W.2d 551] : “However, if the agreement was made, it was a mere nudum pactum, for in that it was without consideration for the promise to wait for a period of ten days before repossessing the property, and therefore not binding upon appellants. The breach of what is a mere nudum pactum cannot inflict an injury capable of legal redress, because it is not in violation of any legal right.” (Authorities omitted).

Many authorities in this and other jurisdictions could be cited in support of this rule and the court below should have sustained appellant’s exception to appellee’s pleading in this respect, as well as his objection to the testimony. The alleged oral agreement not having support' in either the pleading or the testimony, error was likewise committed by the court in submitting that question to the jury and appellant’s assignments of error in respect to these matters will be sustained.

The fact that appellee made a number of subsequent payments in the manner provided by the alleged oral contract, and such payments were accepted by appellant, would not vitalize the nudum pactum and make of it a valid contract for the reason that the original contract provided that upon failure to pay the obligations as they matured thereunder, the contract should be in default and the full amount remaining unpaid should immediately become due and payable. This acceleration was not based upon the condition that the holder should exercise an option to declare the remaining installments due, but failure to pay one installment ipso facto matured all of the balance remaining unpaid and the statute of limitations immediately took effect. The mere fact that appellant indulged appellee and did not insist upon the payments being made strictly as provided in the contract did not change the relationship existing between them, because no binding contract other than the original written one existed between the parties. San Antonio Real-Estate, Building & Loan Ass’n v. Stewart, 94 Tex. 441, 61 S.W. 386, 86 Am.St.Rep. 861.

The next contention presented by appellant has reference to the manner in which appellee sought to establish the value of the truck. Appellee merely alleged that its value was $600 at the time it was levied upon under the sequestration. The evidence offered by him upon the question of value did not refer to any particular time or place and no witness testified as to its value at the time it was replevied by appellant nor at the time of the trial. Appellant excepted to the pleading on this ground and also objected to the testimony and to the special issue submitted by the court upon the question of value. All of its exceptions and objections were overruled and in this the court was in error. Art. 6857, R.C.S., provides that the value of property replevied as this truck was shall be proven either as of the time of the execution of the replevy bond or the time of the trial as the defendant may elect. The value contemplated by the statute refers to the market value and it is well established that the market value of property sequestered at the time of the trial or when the replevy bond was executed, constitutes the measure of damages in suits of this character. Vaughn v. Charpiot, Tex.Civ.App., 213 S.W. 950. Testimony was admitted over objection of appellant detailing the price which appellant received for the truck, the price which the purchaser received when he sold it, and the contents of a slip or tag attached to the truck while it was on the sales lot of Walter Irvin after he purchased it from appellánt. Even if the market value of the truck at the time of the execution of the replevy bond or the time of the trial at Lubbock where it was replevied had been properly alleged, this testimony was not admissible for any purpose and appellant’s assignments in reference to these matters will likewise be sustained.

The next -contention of appellant refers to the manner in which appellee alleged and attempted to prove the oral contract of extension or modification of the installment provisions by which the original contract provided the deferred portion of the purchase price of the truck should be paid. The pleadings and evidence were wholly insufficient to establish agency. Neither the name of the agent was alleged or shown by the evidence nor was it shown by any testimony whatever that the person with whom appellee had the conversation was an agent of, or in any manner authorized to bind, appellant by such contract. Appellee testified he went to the office of appellant and was directed by a young lady at the desk to another room where the contract was made, but no attempt was made to identify the person with whom it was made nor to establish his agency of appellant. Agency may be proved by circumstances and it is not an absolute requirement of the law that the name of the agent be given in all cases. It is well established, however, that when it is sought to bind a corporation upon a contract alleged to have been made by it, such corporation has the right to demand either the name of its agent through whom the contract was made or sufficient allegations and proof of his identity and authority to enable it to raise the question of his authority and meet with testimony the proof offered to establish his agency. Gulf & International Ry. Co. v. Campbell, Tex.Civ.App., 108 S.W. 972; The Oriental v. Barclay, 16 Tex.Civ.App. 193, 41 S.W. 117.

The remaining contention presented by appellant has reference to the alleged tender by appellee of the balance of the purchase price of the truck. The evidence showed that, when the agent of appellant approached appellee and demanded payment of the entire balance, appellee offered to pay a small portion of the indebtedness and informed appellant’s agent that Mrs. Cole, wife of appellee, had the balance of the money and if he would see her she would pay it to him. No further effort concerning a tender was made and it is obvious that this action of appellee constituted no legal tender whatever. A valid and legal tender of either money or chattels consists of the actual production of the funds and offer to pay the debt or delivery of the chattel involved. If it consists of money the tenderer must relinquish possession of it for a sufficient time and under such circumstances as to enable the person to whom it is tendered, without special effort on his part, to acquire its possession. Moreover, the tender must be continued and, in order to prevail in a suit in which it is alleged, the money must be brought into court and made available to the person claiming it. None of these requisites was observed by appellee and there was, therefore, no tender in this case. Appellant excepted to the pleadings of appellee concerning his claim 'of tender because they did not show any amount which he had tendered nor that the tender had been continued. Mrs. Cole, wife of appellee, over objection of appellant, testified at length concerning the amount of money which she had on the day of the alleged tender and her willingness to pay it to appellant’s agent if he had called on her for it. These exceptions and objections should have been sustained. The acts and conduct alleged and testified to did not constitute a legal tender of the amount due and were wholly immaterial to any issue in the case. Richey v. Stanley, Tex.Civ.App., 38 S.W.2d 1104; Rogers v. People’s Building, Loan & Saving Ass’n, Tex.Civ.App., 55 S.W. 383; North Texas Saving & Bldg. Ass’n v. Hay, 23 Tex.Civ.App. 98, 56 S.W. 580.

There are other assignments of error presented by the brief having reference to the forms of certain special issues and the subject matter involved in them. A number of the special issues submitted were duplicitous and others called upon the jury to decide questions of law. Upon another trial we suggest that greater attention be given to the familiar rules laid down by our statute, Art. 2189, R.C.S., 1925, and the many decisions of the courts of this state relating to the subject matter of special issues and the procedure involving their submission. We deem it unnecessary to enter into a discussion of these particular matters at this time. They probably will not arise ujpon another trial.

For the errors discussed, the judgment of the court below will be reversed and the cause remanded.


author: GRAVES, Justice.

text:
    TEXAS & N. O. R. CO. v. HARVEY.
    No. 11009.
    Court of Civil Appeals of Texas. Galveston.
    Oct. 31, 1940.
    Rehearing Denied Dec. 19, 1940.

      Roy L. Arterbury, Ernest H. Folk, and Baker Botts, Andrews & Wharton, all of Houston, for appellant.
    Maynard R. Heaner, P. Z. Sullivan, K. C. Barkley, and James L. Pardue, all of Houston, for appellee.
   GRAVES, Justice.

This appeal is from a judgment of the 55th district court of Harris County — entered upon a jury’s verdict in response to special issues submitted — decreeing to be a public road, street, or passageway, a strip of land approximately 600 feet in length by 54 feet in width, off of the west side of appellant’s Clinton Docks tract of land on the north side of Houston Ship Channel, the west boundary of which is a common line with the east boundary of the appellee’s property, the south end of such strip “coinciding with and meeting the north bank of the Houston Ship Channel and the north end of same coinciding with and meeting the Old County Road.” The judgment further gave the appellee and her successors in title a permanent easement in the strip for passageway purposes, perpetually enjoining appellant from interfering with such use thereof, and awarding the appellee $3,500 damages for the loss of patronage sustained by her in her business on her adjoining property, to the date of the trial, caused by a high fence appellant had built on the division line between their two properties.

By stipulations .upon the trial it-was agreed that appellant had built the high fence complained of on June 27 of 1935, and that there was no issue of title involved in the cause, it being specified that the east line of the appellee’s property is the west line of the appellant’s; further, that the appellee’s property, described in her suit herein for such injunction against the appellant, and which so adjoined on its west line the appellant’s tract, had been acquired by her in a partition deed of June 19, 1926, between heirs of A. J. Johnson and wife, Minnie Johnson.

The verdict so made the basis of the court’s determination that the described strip was a road, street, or passageway, found in ultimate purport and effect as a fact that the appellee and the public in general, of which she had been a member, had for more than ten years been users of the land for street, highway, and passageway purposes, and had acquired a prescriptive right therein as such, the ap-pellee’s own summary of the findings in her brief being in substance this:

“(1) There has been an adverse use of the strip of land in controversy by the public generally for a period of 20 continuous years prior to June 1, 1935;
“(2) The appellant acquiesced in the use of it by the public generally for that period;
“(3) Appellant did not dedicate to the public generally this strip as a road;
“(4) There had been an adverse use of this strip of land by Hattie Harvey and her predecessors in title for a period of 20 consecutive years prior to June 1, 1935;
“(5) That use by the public generally of this strip was without the permission of the appellant;
“(6) There had been an adverse use of this strip by the public generally for a period of over 10 continuous years prior to June 1, 1935;
“(7) The use of this strip during said period of time was without the permission of the T. & N. O. R. R. Co., appellant;
“(8) There had been an adverse use of this strip by Hattie Harvey and by those under whom she claims, for a period of 10 continuous years prior to June 1, 1935;
“(9) This use by Hattie Harvey, appel-lee, was without the permission of the appellant ;
“(10) $3500, if paid in cash, will fairly and adequately compensate Hattie Harvey for any damages she had sustained as a result of a loss of patronage caused by the building of the fence, from the date the fence was built down to the date of trial.”

In addition to the issues submitted, the appellant requested another in its own behalf, which, together with the trial court’s order overruling it, was this:

“With respect to Defendant’s Requested Special Issue No. 1 reading:
“ ‘Do you find from a preponderance of the evidence that the T. &. N. O. Railroad Company has at all times since it acquired the property East of and adjacent to the Johnson tract involved in this case exercised dominion and control over same? Answer “Yes” or “No”.’
“The Court is of the opinion that the undisputed testimony shows that the issue, if given, should be answered by the jury in the affirmative, and the Court so finds. In this connection the Court states that in the opinion of the Court there is no inconsistency between the exercise of dominion and control over the property in controversy and the existence of the easement claimed by the plaintiff.
“To which action and ruling of the court the plaintiff then and there excepted.”

In inveighing here against the judgment so adverse to it, the appellant first assails the court’s refusal to give its requested peremptory instruction at the close of all the evidence for a verdict in its favor, upon the main ground that — as the court’s quoted findings supra reflect — the undisputed testimony showed that the appellant had exercised full control and dominion over such property since it acquired the same in 1887, and that any use the appellee, or any third party, might have made of that strip of land, as the jury found, had been otherwise shown by the conclusive if not undisputed testimony to have been a permissive use thereof which the appellant could have withdrawn at any time; that' none of such use by the appellee or other members of the public had ever been exclusive, since the strip or way had all along been also used by the appellant as its owner for its own purposes, wherefore, such use as appellee and others were so found to have made of it did not give any of them a prescriptive right therein.

After careful examination of the bulky record, inclusive of the 415-page statement of facts, this court is constrained to hold appellant’s position to be well taken; indeed, our own authorities — upon the legal equivalent of the same state of facts in ultimate effect — appear to have uniformly so held. Those cases most directly in point are these: City of Buffalo v. Delaware, etc., Ry., 68 App.Div. 488, 74 N.Y.S. 343, 351; Callan v. Walters, Tex.Civ.App., 190 S.W. 829; 29 C.J., Highways, page 379, sec. 10; Jones v. Phillips, 59 Ark. 35, 26 S.W. 386; Meckel v. Davis, Tex.Civ.App., 39 S.W.2d 1106, 57 S.W.2d 622, same case, approving prior holding on its facts, but reversing cause on new facts; 1 R.C.L., p. 693, sec. 6; 1 R.C.L., p. 694, sec. 7; 1 R.C.L., p.-695, sec. 9; 1 R.C.L. (Adverse Possession), pp. 701, 702, sec. 14; Sassman v. Collins, 53 Tex.Civ.App. 71, 115 S.W. 337, 339, writ of error refused; 2 Tex.Jur., p. 126, sec. 66; 2 Tex.Jur., pp. 160, 161, sec. 84; 15 Tex. Jur., p. 797, sec. 24, and p. 790, sec. 20; Texas W. Ry. Co. v. Wilson, 83 Tex. 153, 18 S.W. 325; Williams v. Kuykendall, Tex. Civ.App., 151 S.W. 629.

The rule directly applicable to the undisputed facts here obtaining — that is, that the use of this strip of land all the ap-pellee’s witnesses testified to was never at any time unaccompanied by appellant’s own use of it also, for its own particular convenience and the prosecution of its own private business thereon as its individual property- — -is thus briefly stated in 15 Tex. Jur., page 797, section 24: “Exclusiveness of Use. — -To establish a prescriptive right to an easement the use must be exclusive. The use of a way, for example, in common with others, or the general public, is not sufficient to create a prescriptive right, though the way be used for the prescriptive period. Especially is this true where there is no independent assertion of a right more pronounced and peculiar in behalf of the claimant and more indicative of an adverse claim than the open and notorious use with others. If the way is also used by the owner of the land, the use is not adverse and will not give a prescriptive right. This is for the reason that the same is not inconsistent with a license' from the owner.”

In the Texas case of Sassman v. Collins, supra [53 Tex.Civ.App. 71, 115 S.W. 339], which is directly in point, and in which our Supreme Court refused a writ of error, that principle was reiterated as follows:
“In this case it was shown that the' owner of the servient estate likewise used this way for his own convenience and in connection with his farm. Therefore the use of the way by others could not become adverse, for it is held in Long v. Mayberry, 96 Tenn. 378, 36 S.W. 1040, Wood v. Reed (Sup.) 30 N.Y.S. 112, and Harkness v. Woodmansee, 7 Utah 227, 26 P. 291, that the use of a way over the land of another is not deemed adverse where the way is also used by the owner of the land; and in such case use for the prescriptive period will not give a way by prescription. * * * In this connection the defendant requested the court to instruct the jury that the use of the way by others is not in law deemed adverse, where such way is at the same time used by the owner; and, if they believed that the way across the 219 acres of defendant was used by the owners of said tract of land during the time the plaintiffs were traveling it, they will return a verdict for defendant. This charge was erroneously refused.
“We therefore conclude that there was no such adverse user on the part of plaintiffs as would establish a right by prescription in their favor over the passway in question, and that, therefore, the court erred in refusing to instruct a verdict in behalf of appellant. * * * Reversed and rendered.”

The other Texas cases adverted to are to the same general purport.

Under the facts the learned trial court evidently had closely in mind in making its quoted findings of both fact and law that appellant had so, at all times during its ownership of this land, exercised dominion and control over it, there seems no doubt that such use as those under whom appellee claimed (along with the general public) made of it, was never either exclusive in themselves, or unaccompanied by an inconsistent serviency, for its own particular purposes, .the appellant also impressed upon it as its own property; that being true, such use never at any time ripened into a prescriptive right, because it was “not inconsistent with a license from the owner.'”

Since, as indicated, and as the court without protest from the appellee so found, the facts of such participating use by the appellant itself were without any sort of con-troversion or question, and since it is likewise so undisputed that neither the appellee nor anyone else ever set up a claim to such prescriptive right until this suit was filed by the appellee on June 6 of 1936 so asserting the existence of the same, it is deemed unnecessary to either reiterate or to make a resume of such established facts here; but this brief collation of the outstanding features of them is quoted from the appellant's brief: “The railroad company used the strip of land for the following purposes and in the following ways, as shown by the undisputed testimony; (1) It was leased to Benson and used by him as a pasture for cattle; (2) it was fenced, and anyone using the trail in question necessarily passed through two gates in appellant’s fence, however much they were left open or down; (3) the trail in question was used by appellant’s employes to haul sand from the bayou banks in wagons to be used for filling and ballasting its railroad tracks; (4) in 1920 the strip of land in question was leased by appellant to the Sinclair-Gulf Oil Company as a pipe-storage yard; (5) the land was leased to the Houston Ice & Brewing Company, and they put in a pipe line along it; (6) there was a power line, a line of poles and transfonners, put in there by appellant; (7) part of the strip was occupied up until 1925 by appellant’s railroad tráck; (8) in 1925 appellant cut the east 38 feet of its 54 feet of land here involved down 4 or 5 feet below appellee’s land, and paved it at its own cost, leaving a dirt strip, 16 feet wide in the form of a terrace, between the lowered 38 feet to the east and appellee’s property on the west, making it impossible to drive from appellant’s private driveway or pavement to appellee’s property, and this terrace was always thereafter maintained and the grass kept cut by appellant railroad company; (9) ever since 1925 all of the strip of land in controversy, except the 16-foot wide dirt terrace, has been used by appellant as a private passageway for trucks loading and unloading into appellant’s warehouse; during such period appellant has at all times policed the private drive; prevented parking on the west side thereof, kept undesirables off the premises, and, in every way, exercised full dominion and control over such land.”

It would serve no needful purpose to further extend the discussion, on the conclusion that the undisputed facts showed, as a matter of law, that the appellant at all times not only exercised the usual dominion and control as its owner over the strip of land in controversy, using all of the same for its own convenience and in the prosecution of its individual business, along with such use as the appellee, her predecessoi-s in title of her own land, and other members of the general public, made of it, the appealed from judgment will be reversed and the cause here rendered in appellant’s favor.

Reversed and rendered.


author: WALKER, Chief Justice.

text:
    NORTHERN INS. CO. OF NEW YORK v. MOLLOY.
    No. 3754.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1940.
    Rehearing Denied Dec. 31, 1940.
    J. R. Anderson, of Center, and Thompson, Knight; Harris, Wright & Weisberg, of Dallas, for appellant.
    Sanders & McLeroy, of Center, for ap-pellee.
   WALKER, Chief Justice.

On the 30th day of July, 1939, certain household goods, etc., belonging to appel-lee, R. F. Molloy, situated in his home in the town of Timpson, Shelby County, and covered by a policy of fire insurance in the amount of $1,250, issued to appellee by appellant, Northern Insurance Company of New York, were destroyed by a fire, which also destroyed appellee’s home. This suit was by appellee against appellant for judgment for the loss sustained by him in the fire. Appellant concedes that appellee’s petition “sufficiently pleaded that the alleged loss by fire sustained by the plaintiff was not within any excepted liability of the defendant.” Answering the questions which submitted the controlling issues plead by both appellant and appellee, the jury found the following facts: On the 20th day of July, 1939, appellee’s home was destroyed by fire, which also destroyed the “personal property” covered by the insurance policy in evidence. The “actual cash value” of appellee’s “personal property” situated in his house, and covered by the insurance policy in evidence, was $1,500. The jury did not “believe from a preponderance of the evidence” that appellee “procured the burning of the insured property”, nor that his wife, Mrs. R. F. Molloy, “procured the burning of the insured property.” On the verdict, judgment was rendered for appellee against appellant for the sum of $1,250 with interest at six per cent per annum from the 6th day of January, 1940, and costs of suit, from which appellant has prosecuted its appeal to this court..

We overrule the contention that the finding by the jury that appellee and his wife did not procure the burning of the property was against “the overwhelming preponderance of the evidence.” At the time of the fire, appellee was confined in the reformatory at El Reno, Oklahoma, where he had been continuously from February 27, 1939, and Mrs. Molloy was visiting her sister in Henderson, Texas. There was no evidence connecting Mr. and Mrs. Molloy with the origin of the fire. On the undisputed evidence, the court could have instructed a verdict in their favor on that issue. As sustaining their contention, we give appellant’s summary of the evidence on that issue:

“(1) The fire was of incendiary origin;
“(2) The assured was convicted of an offense involving fraudulent practice and confined in the United States Reformatory, where he received visits from his wife, the last being in June, and the fire occurring in July;
“(3) Shortly before the fire the assured’s wife left the premises which burned, leaving behind a son-in-law' who customarily resided with her and whom she regarded as her own son;
“(4) The son-in-law stayed in the house until the night before the night of the fire, and then left to stay with his wife’s uncle;
“(5) On the night before the fire the son-in-law placed approximately three gallons of gasoline in open containers in the premises which burned;
“(6) Shortly before the fire the son-in-law requested permission of a local farmer to store some property on the latter’s farm;
. “(7) After such conversation and before the fire, furniture was, in fact, placed in a barn on the farm and then mysteriously taken away;
“(8) An original insurance policy sent the assured’s wife for 'a lesser sum than •the one sued upon was rejected by her;
“(9) The assured’s wife turned black and fainted immediately upon being told by her son-in-law that a fire had occurred;
“(10) The assured’s testimony was not offered to the jury by deposition;
“(11) The testimony of the son-in-law was not offered; and
“(12) The only substantial denial came from the assured’s wife, who stated that she did not burn the premises, which were in Timpson, Texas, because at the time of the fire she was in Henderson, Texas.”

The evidence did not show as a matter of law that the fire was of incendiary origin. That appellee was in confinement in the reformatory, that his wife visited him a short while before the house was burned, that his son-in-law stayed in the house while Mrs. Molloy was gone, that the son-in-law placed three gallons of gasoline in the house, that he requested a farmer for permission to store some property on his premises — the circumstances brought forward by appellant do not constitute a scintilla of evidence connecting Mr. and Mrs. Molloy with the fire.

We overrule the proposition that appellee offered “no evidence” on the issue of the “actual cash value” of the property destroyed in the fire. On that issue Mrs. Molloy gave the following testimony:

“Q. I will ask you to state whether or not that — is that the list you prepared? A. This is the list that I prepared right here.
“Q. Now you have various and sundry items on there and the value. Are you acquainted with the reasonable market value? A. Yes.
“Q. Were you acquainted with the reasonable market value of these articles on the 20th day of July, 1939, at Timpson, Shelby County, Texas? A. Yes.
“Q. Reasonable market value, Mrs. Mol-loy, is the value that an article might have in the market when one person wants to sell but does not have to sell and the other person wants to buy but does not have to buy? A. It is true.
“Q. Without asking each article, or about each article, the amounts that you set out in that statement there that you have in your hand, state whether or not you can say that they do represent the reasonable market value of those articles at the time of the fire? A. Yes.
“Q. And were each one of these respectively, worth the amount that is set opposite their name shown in that list there? A. Yes, sir.
“Q. Do you recall — can you state what the aggregate, that is, the total value of all the articles that were destroyed by fire was that you set out in your statement? A. Yes, sir.
“Q. How much was it Mrs. Molloy? A. About $1900.00 and some odd dollars.
“Q. It says here $1,947.70? A. Well, I knew it was around that.
“Q. All right; I will ask you to state whether or not that is approximately correct? A. Yes.
“Q. These items that you set out, these articles, are they articles that were covered by the policy of insurance at the time they were lost? A. Yes.
“Q-. And you show a total down here, value of all the property that was destroyed of fourteen — I mean $1947.70. Would you say that represented or that that is the reasonable market value of those items? A. Yes.
“Q. That is the value at the time of the fire? A. At the time of the fire.”

As against appellant’s proposition, it would serve no useful purpose to summarize her testimony on cross-examination. Her direct testimony raised the issue of “actual cash value”, and appellant has no proposition that the jury’s finding on that issue was against the ‘.‘overwhelming weight and preponderance of the testimony.”

Appellant’s liability under said policy was limited by the following stipulation: "This company shall not be liable beyond the actual cash value of the property at the time of the loss with proper deductions for depreciation, however caused.”

The court submitted the issue of “actual cash value” by the following question and explanatory definition:

“What amount, if any, do you find from a preponderance of the evidence was the actual cash value, if any, at the time and place in question of plaintiff’s personal property, if any, situated in said house and covered by the insurance policy in evidence, if any, and that was destroyed by said fire. Answer by stating in dollars and cents the amount, if any, you find.
“In connection with Special Issue No. 3 you are instructed that by the term ‘actual cash value’, as used therein, is meant the amount of cash, if any, into which the property could have been converted at the time and place in question, the usual selling price at the place where the property was situated and at the time inquired about.”

Against the court’s definition of “actual cash value”, appellant advances the following proposition: “Defining actual cash value as ‘the amount of cash into which property can be converted’ and as ‘the usual selling price’ constitutes reversible error.”

The proposition is predicated on the following exceptions reserved by appellant tc the definition of “actual cash value”: “Defendant objects and excepts to Special Issue No. 3 because there is no proper definition of the legal phrase ‘actual cash value’. The defendant objects and excepts to the definition given of ‘actual cash value’ because the same is an inadequate and improper definition and merely defines the term in words of synonymous legal meaning; defendant further objects and excepts because said definition is in effect nothing more than a general charge * * *; defendant further objects and excepts to the definition because the same furnishes the jury no legal guide but on the contrary is confusing prejudicial, contradictory, because the jury under the definition as given could disregard the true meaning of actual cash value and find a value in utter disregard of the necessities of the transaction and could even be permitted to consider value on terms other than cash.”

On authority of Isbell v. Lennox, 116 Tex. 522, 295 S.W. 920, these exceptions were too general to point out to the trial court the defects in the definition now urged by appellant. This point is. illustrated by appellant’s restatement of its exceptions in the following assignment of error from its amended motion for new trial:

“The court erred in overruling, and failing to sustain this defendant’s objection and exception to the court’s charge as set out in paragraph 4 of the written objections and exceptions, said objection complaining of the definition contained in the charge ‘actual cash value.’ The true definition of the term ‘actual cash value’ is that price arrived at as between a seller who desires but is not compelled to sell, and a buyer who desires but is not compelled to buy, whereas the court’s definition as given tells the. jury that the term is ‘the usual selling price,’ said definition being meaningless and permitting the jury to speculate as to whether such usual selling price is a price for cash or upon a credit. The court’s charge further is erroneous in telling the jury that the term means the amount of cash into which the property could have been converted, said charge being erroneous in permitting the jury to find a value which a buyer would give, regardless of whether he was compelled to buy or not.”

The exception that the definition was “inadequate and improper” directs the court’s attention to no error. Clearly the definition was not a “general charge”. The exception that the definition furnished “the jury no legal guide * * * was confusing, prejudicial”, etc., does not point out to the court wherein it was subject to these exceptions. The definition did not permit the jury*“to consider value on terms other than cash.” We are not to be understood as approving the definition; our holding is limited to the point that it was not subject to appellant’s exceptions.

Appellee’s counsel made the following argument to the jury: “If you believe that, gentlemen, you answer these ‘yes’; (Counsel here refers to issues requesting the jury to find if the insured or his wife-procured the burning of the house in question) if you don’t, and I don’t see how you could from the evidence in this case, that is, you are to try this case, from the evidence that they have presented to you, the burden that was imposed upon them under these issues they have got to satisfy our mind by a preponderance of the evidence. If they don’t do that, gentlemen, answer it otherwise.”

This argument was not erroneous on appellant’s exception that it amounted “to an improper charge on the burden of proof.” The argument correctly stated the law of burden of proof submitting the issues charging appellee and his wife with burning the house.

It was appellant’s theory that Joel Murphy, appellee’s son-in-law, burned the house. The court permitted one of the witnesses to testify that Murphy the night before the fire had purchased three gallons of gasoline; that he said he bought it for the purpose of removing paint from a pair of his work pants. Appellee’s point against the admission of this evidence is immaterial for the reason, as stated above, that there was not a scintilla of evidence connecting appellee and his wife with the burning of the property.

After the introduction of the evidence had been closed, counsel for appel-lee stated in the presence of the jury: “Before we conclude, if the court please, the witness Joel Murphy is in the courtroom under the rule and has been under the rule during the day, and we tender that witness to defendant in this case if they want to use him.”

Objecting to that statement, the court made the following ruling: “Gentlemen of the Jury: You will not consider the statement of counsel. I refer to Mr. McLeroy about Joel Murphy being here under the rule * * *. You will not consider it. Motion for new trial is overruled * *

If the statement by appellee’s counsel was error, and if error, was made harmless by the court’s ruling, are immaterial points. This statement related entirely to the issue of Murphy’s connection with the fire. If appellee’s counsel had conceded that Murphy burned the house, there was nothing in the record connecting appellee with Murphy on that issue. This conclusion also renders harmless the argument of-appellee’s counsel that the law presumed Murphy innocent until his guilt was legally established.

We give appellant’s sixth proposition : “When the insured’s policy sued upon excepts loss occasioned by explosion and confines the insurer’s liability to loss by fire only, it is reversible error to render any judgment for the plaintiff when there is no issue submitted to the jury to negative loss by explosion, and this is particularly true where the evidence indicates that a large amount of gasoline was placed in the premises destroyed immediately before the- fire, and when the insured’s wife states that a gas heater may have been the cause of the fire.”

In support of this proposition, appellant submits the following argument: “The contract of insurance sued upon was shown to contain exceptions to liability with reference to which, however, the plaintiff had pleaded a loss not falling within the scope of such exceptions. But the plaintiff did not prove the allegations which he made in this connection, nor did he prove that his loss did not result from one of the causes, damage from which was an excepted liability. Of course the burden of proof was on the plaintiff to plead and prove that his loss did not result from any of the causes for which liability was excepted in the policy. This burden of proof the plaintiff utterly failed to sustain. Under the plaintiff's evidence, the fire was one of undetermined origin. Under plaintiff’s evidence it might also reasonably be said to be true that it suggested a loss originating by reason of the presence of gas. Under evidence introduced by, the defendant, it was shown that a large quantity of gasoline was placed in close proximity to a lighted gas appliance. It is a matter of common knowledge that gasoline is highly inflammable, and if subjected to heat or fire will explode. It is also a matter of common knowledge that a defective gas appliance may cause an explosion. * * * Merely by introducing evidence of a fire of unexplained origin, plaintiff did not make out his case against the insurance company, whose liability was not an all inclusive liability for loss by fire but a restricted liability. It is submitted that the evidence was inadequate to permit the rendition of any judgment against this appellant.”

This argument is not pertinent to appellant’s proposition. If it be conceded that the evidence raised the issue that the fire which destroyed appellee’s property was caused “by explosion”, appellant is not in position to complain now that that issue was not sent to the jury. The controlling issues summarized above were submitted and found by the jury in appellee’s favor. Clearly the evidence raised the issue that the fire was not the result of an explosion. On that evidence, on authority of the Wichita Falls & O. R. Co. v. Pepper case, 134 Tex. 360, 135 S.W.2d 79, it was within the court’s jurisdiction to find that issue as supplementing the verdict of the jury, and in support of the judgment it must be conclusively presumed that the court resolved the issue in favor of appellee.

What we have said above denies appellant’s proposition that “the negative answers to special issues presenting the issue of incendiarism are against the overwhelming preponderance of the evidence.”

From what we have said, it follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.


author: NORVELL, Justice.

text:
    HARLINGEN INDEPENDENT SCHOOL DIST. v. DUNLAP.
    No. 10744.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1940.
    Rehearing Denied Nov. 27, 1940.

      Kent & Brown, of Harlingen, for appellant.
    H. L. Faulk, of Brownsville, for appel-lee.
   NORVELL, Justice.

This is an appeal from a judgment of the District Court of Cameron County vacating certain assessments for tax purposes made by appellant, Harlingen Independent School District, upon certain real property owned by appellee, B. H. Dunlap, and situated in the City of Harlingen, Texas. Trial was to a jury, but after the conclusion of the evidence the trial court peremptorily instructed the jury to return a verdict for plaintiff, and entered judgment vacating the assessments made against appellee’s property (Lots 21 and 22 of the Original Townsite of Harlingen) for the years 1930 to 1938, inclusive. It was however provided that the judgment should not prejudice appellant’s right to re-assess the property involved. This latter holding was contrary to appellee’s contention that he was entitled to settle his taxes upon the property upon the valuations contained in his tax renditions of certain years. The case is before us upon the assignments of error of the School District and a cross-assignment of Dunlap in regard to the matter above mentioned.

Appellant presents three propositions of law. The first proposition asserts that Dunlap cannot maintain this suit, which is one in equity seeking to cancel an assessment, as he does ritít come into court with “clean hands.” It is asserted that as Dunlap made renditions upon his property upon an admittedly low valuation, he has no standing in a court of equity. This proposition is overruled. Upon the trial, Dunlap admitted that he placed a valuation upon the property which was below what he regarded as the true market value. It appears that this was done in order to raise the issue of the true taxable value of the property before the District’s Board of Equalization. In a sense the rendition valuation was not made in good faith. Dunlap’s. action, however, amounts to no more than taking an extreme position in reference to a controversy and a prospective lawsuit. It does not' preclude Dunlap • from proceeding in equity for the vacation of a tax assess-, ment alleged to have been made in violation of the Constitution and laws of this 'State. The fact that the valuation contained in the rendition was not a good-faith estimate of the true value of the property does however preclude Dunlap from making a settlement of his tax liability upon the basis thereof, and his ■cross-assignment is for that reason overruled.

In appellant’s second and third propositions, it is asserted that the trial court ■erred in giving a peremptory instruction as there was a question of fact raised by the •evidence which should have been submitted to the jury. The jury question involved, according to appellant’s contention, is whether or not appellee’s property had a market value during the years 1930 to 1938, inclusive.

In our. original disposition of this case, we held that the evidence relied upon by appellant as presenting a fact issue in this particular was so general and inconclusive when applied to appellee’s property that it could properly be considered as no evidence at all. We still adhere to •that view, but our affirmance- of this case is not based upon that holding alone.

It is appellee’s contention that the assessments are invalid for the reason that the School District’s Board of Equalization acted arbitrarily and contrary to statutory provisions in placing its valuations -upon appellee’s property. These valuations were ba'sed upon the “intrinsic value” -rather than the “market value” of the property. It appears that appellee, accom-panied by his attorney and witnesses, appeared ■ before the various Boards of Equalization of the District and protested •the values which the Board proposed to ■place upon his property based upon the' '“intrinsic value” theory, and offered to •show by evidence that the1 property did 'have a market value, which was substantially less than the proposed assessed valuation. It further appears that'the Board ■on each of such occasions refused to hear .appellee’s evidence or stated, before hearing the testimony offered, that there would 'be no change in valuations.

This action on the part of the Board of Equalization was contrary1 to the provisions of Article 7211, Vernon’s Tex.Civ. 'Stats., applicable to Independent School 'Districts, wherein it is provided that the tax equalizing body, “shall hear evidence and determine the true value of such property.” .

Article 8, section 1, of the, Texas Constitution reads as follows: “All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.” ■ • ■ •

“This provision is mandatory, and; with the requirement of due process, it forms the starting point of any inquiry into the question whether any property has been arbitrarily assessed.” 40 Tex. Jur. 160.

It is also stated in Texas Jurisprudence that: “Where the valuation is arbitrary for any reason, the. assessment is void, notwithstanding that other property in the district, of the same character, was uniformly assessed in the same way.” 4G Tex.Jur. 162. “Valuation of property is arbitrary where the board refuses to hear pertinent evidence, including the estimate of competent witnesses which is not objectionable as stating a conclusion.” 40 Tex.Jur. 163. See also State v. Richardson, 126 Tex. 11, 84 S.W.2d 1076; Poteet v. Waggoner Estate, Tex.Civ.App., 96 S.W.2d 405.

It is well settled that the word “value” as used in Art. 8, sec. 1, of the Constitution means the reasonable cash market value of the property. Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756; 40 Tex.Jur. 148. If property has a market value, that value is controlling and exclusive for taxation purposes, and precludes a resort to the “intrinsic value” theory.

It is clear that the right of a taxpayer to have, his property assessed for taxation purposes at its market value, if there be a market value, and not in excess thereof,, is one which is guaranteed by the Constitution of this State. He also has the right to-demand that the valuation of his property for tax purposes be “ascertained as * * * provided by law.” In this case it was the duty of the Board to determine whether or not appellee’s property had a market value for 'the years in question. If it did have, that value would be controlling for taxation purposes. The Board refused to perform this duty,' and arbitrarily adopted valuations based upon an “intrinsic value” theory.

This being true, a jury finding that the property involved had no market value for.the years 1930 to 1938, inclusive, would not in itself preclude appellee from obtaining equitable relief. That point is definitely settled by the case of Brundrett v. Lucas, 194 S.W. 613, 617, wherein Judge Moursund, writing for this Court, said: “The action of the board in disregarding the testimony introduced, which testimony was not disputed, nor impeached by documentary evidence, was arbitrary and directly in the face of a mandatory statute, and furnished a sufficient basis for a suit in the district court to enjoin the collection of taxes upon the increased value thus made in the assessments.” Further on in the opinion, Judge Moursund said: “In speaking of excessive valuation, we are taking as correct the finding of the trial judge to the effect that the valuation adopted by the board, namely, of about $5 per acre, was excessive to the extent of about $2 per acre. This finding is not attacked, but several assignments attack the rulings of the court in regard to excluding evidence relating to value, and some of such assignments are deemed by us to be well taken. Therefore, if this affirmance of the judgment must depend upon whether the value fixed by the board is in fact in excess of the reasonable cash value, the sustaining of such assignments would require the reversal of the judgment. However, we do not think the failure of the board to comply with the terms of a mandatory statute can be justified by showing that, if the same witnesses had been sunu-moned and same evidence introduced as upon the hearing in the district court, the order of the board would have been sustained by evidence. When the board arbitrarily failed and refused to follow the law, and raised valuations contrary to the express provisions of the statute, it must be held that the raise should be set aside and held for naught by the district court.” (Italics ours.)

The situation in this case is strikingly similar to that disclosed in Brundrett v. Lucas, supra. Appellant, upon the trial of this case in' the district court, relied upon the testimony of three witnesses as supporting the intrinsic value theory — the President of the Board of Trustees of the District (whose testimony covered only the year 1931), a member of the District Board of Equalization, and the School District Assessor and Collector. The testimony of these witnesses was in substance that property generally in the district had no market value from 1930 to 1938. If this testimony, which was contradicted by appellee’s witnesses, who testified specifically that the property involved did have a market value, can be considered as sufficient to support a fact finding that appel-lee’s property had no market value, or as supporting the action of the board of equalization in proceeding upon the “intrinsic value” theory, it would still be insufficient to preclude the setting aside of valuations arbitrarily placed upon property in violation of the provisions of Article 7211, supra.

We have concluded that appellant’s' second and third propositions were properly overruled, and that our original disposition of this case wa.s correct. Our original opinion will be withdrawn and this one substituted therefor.

Appellant’s motion for rehearing is overruled.