author: BLAIR, Justice.

text:
    WRIGHT TITUS, Inc., v. SWAFFORD.
    No. 8828.
    Court of Civil Appeals of Texas. Austin.
    Oct. 11, 1939.
    On Offer of Remittitur Nov. 1, 1939.
    Rehearing Overruled Nov. 1, 1939.

      Ely Straus, of Dallas, for appellant.
    Walter Greig and Cofer & Cofer, all of Austin, for appellee.
   BLAIR, Justice.

Appellee, J. B. Swafford, sued appellant, Wright Titus, Inc., a corporation, and H. B. Cook for damages for the conversion of his Ford automobile, and for the actual or intrinsic value of personal property which was in the automobile at the time of its conversion. Cook was alleged to have taken the automobile as agent of appellant; that he acted maliciously in so doing, that appellant ratified the malicious act, and for which exemplary damages were sought. Appellee also alleged that the note held by appellant and secured by a chattel mortgage on the automobile provided for $100 usurious interest, and sought to have that amount considered in connection with the offset of indebtedness against the value of the automobile converted by appellant. A jury trial upon special issues resulted in a verdict and judgment for appellee against appellant and Cook, jointly and severally, for $1,371.50. Cook has not appealed, and as to him the judgment is affirmed.

The litigation arose as follows:

Appellant, Wright Titus, Inc., owned a note for $476, executed by appellee, J. B. Swafford, and secured by a chattel mortgage on a Ford automobile. The note was payable in weekly installments; and the mortgage provided that failure to pay any installment when due, or the removal of the property from Dallas County without appellant’s consent, would authorize it to declare the note due and to foreclose the mortgage, and sell the automobile at public or private sale without notice. Appellee failed to pay the third installment, which was due about May 24, 1937, and did not thereafter pay any installment when due, but paid a total of 16 payments of from $7.S0 to $15 twice or three times each month, the last payment of $10 being made October 23, 1937, after which payment the total of the installments was in arrears about $12, and at which time a balance of $331 was due on the note, according to the record of payments kept by appellant. Appellant claimed to have declared the note due October 4, 1937, but did not notify ap-pellee of that fact, and receipted him for two payments of $10 each after that date, the last receipt bearing date October 23, 1937, and being for payment in “cash” by appellee at the office of appellant; and on that date appellant first alleged it had sold the automobile, but by amendment and by testimony at the trial claimed to have foreclosed the mortgage lien and sold the automobile to itself at private sale, without notice, October 25, 1937, claiming that right because of the default in the payment of the installments when due, and because appellee had taken the automobile out of Dallas County without the consent of appellant. After making a payment of $10 on the note October 23, 1937, appellee came to Austin on October 25th or 26, 1937, seeking employment; and on November 3, 1937, wrote appellant as follows:

“I am in Austin trying out a new job, and want to advise you that I will be in Dallas Saturday of this week and make two payments on my car.
“I don’t know if I will continue with this position here as I have one in Dallas and I am here trying this one out for 30 days.
“Assuring you of making two payments Saturday of this week.”
On the same day, November 3, 1937, H. B. Cook, who was temporarily engaged in locating and repossessing automobiles for finance companies, having seen a letter of appellant seeking to locate appellee’s automobile, approached appellee and told him that he was the agent of appellant and wished to repossess the automobile because of the indebtedness due against it; whereupon the following agreement was entered into:
“Austin, Texas Nov. 3, 1937
“Know All Men By These Presents—
“I, H. B. Cook, do as authorized by power vested in me by Wright-Titus Finance Co. of Dallas, do hereby agree to store 1936 Ford V 8-Tudor Touring 293-122 and hereby agree to Mr. Swafford that in event we are unable to refinance at some reputable Co in Austin by 6 p. m. 11/4/37 Mr. Swafford may have possession of same for 10 days to have opportunity to refinance same himself.
“Signed: Harold B. Cook
J. B. Swafford.”

Cook represented to appellee that there was some $335 due against the car, and that four payments were past due. Cook and appellee then called Mr. Titus, president of, Wright Titus, Inc., by telephone, and discussed the settlement of the amount due; and Mr. Titus agreed that $335 was due, and that if Swafford paid Cook $335 the company would release the automobile, which was then in the possession of a garage in Austin, Cook holding the storage check therefor. The automobile was stored in the Powell Garage under agreement; but was on the same day removed by Cook to the Motoramp Garage, without the knowledge or consent of appellee. On the 4th of November, Cook and appellee together sought to refinance the loan of $335 on the automobile, but did not do so. However, on the same day appellee obtained a loan from the Fidelity Trust Company, in Austin, and Patterson Tearle gave him a certified check for $335, to be placed in the American National Bank, with which to pay the mortgage debt. On the following day, November 5, 1937, Cook received the following telegram from appellant:

“H. B. Cook,
“Austin, Tex.
“Net amount including your fee to clear Swafford $340.
“Wright Titus-Templeton.”

On the same day, November 5, -1937, Cook, Tearle, and appellee went to the bank and put the money in the form of a cashier’s check in the bank. Mr. Williams, Cashier of the bank, then, on the same day, November 5, 1937, wrote a letter to appellant, as follows:

“Referring to the J. B. Swafford account I am authorized to pay you $335.00 (three hundred thirty-five dollars) on receipt of all papers, including insurance policy and a release of mortgage on car, properly executed. Your prompt attention will be appreciated.”

This letter was delivered to Cook; and the parties then arranged to store the automobile until the settlement was consummated in the Motoramp Garage, in the name of Patterson Tearle. Cook agreed to all these arrangements, and the automobile was stored under the following agreement :

“To the Motoramp Garage:
“I hereby authorize the Motoramp Garage to deliver to Patterson Tearle one 1936 Ford Tudor Sedan Check No. 33-887 License No. 293-122 on presentation of release of mortgage held by Wright Titus Company of Dallas.
“(Signed) H. B. Cook, Adj.
Wright Titus Co.”

About an hour and a half after this agreement was made, Cook went to the garage and under false representations, and upon a receipt purporting to have been signed by Patterson Tearle, obtained possession of the automobile. Tearle testified that the receipt had his name signed to it, but that he did not sign it. Cook then took the automobile to Dallas and turned it over to appellant on Monday, after he had gotten it on Saturday. Also, on Monday the attorney for appellee, after learning that the automobile had been taken to Dallas, called appellant by telephone and informed it fully of the agreement with Cook, and what had occurred. Appellant’s agent, Mr. Templeton, who handled the account for appellant, told the attorney that the automobile had been delivered to it, but refused to return the automobile unless appellee would pay the additional expense incurred in delivering the' automobile to Dallas, and requiring that ap-pellee come to' Dallas for the automobile. This appellee refused to do because appellant’s agent had wrongfully taken the automobile in violation of the agreement. After, appellant was thus informed of the settlement agreement made by Cook as its agent, and of the deposit of the money in the American National Bank to pay appel-lee’s debt to it, and of Cook’s breach of the agreement by taking possession of the automobile, it, through its president, Mr. Titus, and on the same day, Monday, November 8, 1937, paid Cook $25 as reward for repossessing and delivering the automobile to it at Dallas, which it kept and later sold, claiming to have theretofore, on October 23, 1937, purchased the automobile itself at private sale under the mortgage, bidding therefor the balance due on ap-pellee’s debt, which was $331. Thus appellant obtained the automobile, valued by the jury at $475, for $331, plus the $25 reward, or a total of $356, with full knowledge of the settlement agreement and Cook’s breach of it.

The facts above detailed fully support the • jury’s findings that Cook acted as the agent of appellant, and within the scope of his authority, both in making the settlement agreement with appellee and the bank, and in taking possession of the automobile and delivering it to appellant in Dallas; and that appellant authorized and ratified all of Cook’s acts, including the acts found to have been maliciously done in taking possession of and delivering the automobile to appellant at Dallas; and the contentions of appellant to the contrary are not sustained. We will later discuss the contention that the evidence failed as a matter of law to show that appellant ratified the malicious acts of Cook, the agent, in repossessing the automobile, under questions relating to exemplary damages.

By several propositions appellant contends that since it sold the automobile at private sale to itself under the power of the mortgage prior to the time Cook took possession of and delivered same to appellant, it was not guilty of conversion of the automobile, because it owned the same. In the alternative, appellant contends that if the salé were illegal, then it took possession of the automobile under the power given in the mortgage, and was therefore not guilty of conversion of it.

Appellant by pleadings set up as defenses to appellee’s suit for conversion of the automobile that it was the owner of the same, or, in the alternative, that it was the mortgagee with right of possession under the mortgage; but it did not request the submission of these defenses to the jury, and in consequence waived them unless the evidence established them as a matter of law, which it did not do. On the contrary, the above detailed facts fully support the theory of recovery plead by appellee.

Briefly, appellee'contends that the transactions stated amounted in law to novation; that his original obligations on the note and mortgage were discharged; and that the mortgagee was therefore guilty of conversion in taking possession of and converting the automobile to its own use.

A clear statement of the law of novation applicable is found in Vol. 2 of Restatement of the Law of' Contracts, p. 805, sec. 428, as follows: “Where a third person contracts with a debtor to assume, as an immediate substitution for the debt- or’s duty, a duty to the creditor to render either the performance for which the debt- or was previously bound, or some other performance, and the creditor agrees either with the debtor or with the third person to such substitution, there is a novation that discharges the original debtor and subjects the third person to a duty to the creditor.”

The facts in the instant case show the simplest form of novation. Appellee owed appellant company a debt, secured by a mortgage on an automobile. He secured the money from a third person to pay the debt, and placed it in the bank, which agreed to pay the debt of appellant upon receipt of the note, mortgage, insurance policy, and a release of the mortgage lien. Appellant accepted the obligation of the bank to pay the debt, and stored the automobile in the Motoramp, under the agreement that it would be delivered to the third party who furnished the money to pay the debt, upon his presenting the release of the mortgage when executed by appellent and delivered by it to the bank. Thus the debt of appellee to appellant was completely discharged, and appellant accepted and acquired the promise of the bank to pay the new obligation upon receipt from appellant of the papers and release of the mortgage as agreed to between the bank, appellant, and the third party. These facts constitute a novation. See 31 Tex.Jur., 338, sec. 6, and cases there cited.

Nor do we sustain the contention of appellant that there was no novation because the agreement was conditional, in that appellant was required to deliver the insurance policy, the note, the mortgage, and a proper release of the mortgage before the money would be paid to it by the bank. The settlement of the note and lien was not conditional because the party who held the note and lien was required to execute and deliver the note and a release of the lien, and because the party who agreed to deliver the papers and execute the release did not do so. A. similar question was decided in the case of Meador v. Rudolph, Tex.Civ.App., 218 S.W. 520, where a deposit was made in a bank to be paid upon the outcome of a law suit. The court held that the deposit to be paid upon the happening of a contingency created a novation.

Nor was the obligation conditional as between appellee and appellant It was a new obligation between appellant, the bank, and Tearle, whereby they agreed that appellant would deliver the papers and release to the bank, which in turn would deliver them to Tearle so that he might obtain the release of the automobile under the storage agreement executed by appellant and Tearle as a part of the novation agreement. Appellee had no obligation to perform either under the substitution of the new debtor (the bank) agreement, or under the storage agreement. His obligation to appellant was completely extinguished, and his rights in the automobile as between himself and the third party who furnished the money to pay appellant were not involved, because in order to constitute novation, “it is immaterial what consideration the original debtor gives for the promise of the third person to assume the indebtedness.” Vol. 2, Restatement of the Law of Contracts, p. 805.

Nor do we sustain the contention of appellant that the effect of the agreement was a mere extension of time for the payment of the debt of appellee to appellant, and that the agreement based solely upon the extension of time of payment of the past due note is without consideration. The agreement was not for an extension of time to pay the debt, but was the arrangement made whereby the bank promised to pay the note upon the delivery of the papers and release of the mortgage; and the agreement extinguished the indebtedness as between appellant and appellee, and substituted the bank as the debtor. The law is well settled that where a new debtor is substituted and accepted by the creditor, who agrees to discharge the original indebtedness, such agreement is based upon valuable consideration. The novation in such case consists in the mutual agreement substituting the new debtor for the old one in consideration of the extin-guishment of the debt. Commercial Natl. Bank v. Poulos, Tex.Civ.App., 8 S.W.2d 222; Farmers’ State Bank v. Cottingham, Tex.Civ.App., 261 S.W. 426.

By several propositions appellant contends that the trial court erred in refusing to instruct a verdict for it on the issue of exemplary damages, contending that the evidence did not show that Cook acted maliciously, or that appellant ratified the malicious acts of Cook, in taking the automobile in violation of the settlement agreement. That Cook acted maliciously and wilfully in taking possession of the automobile, in violation of the settlement and storage agreements, is fully established under the above detailed facts. He knew that he had no right to the possession of the automobile, and obtained possession through false representations or forgery. His fee under the settlement agreement was $5, but the reward offered by appellant and paid to him for the recovery of the automobile was $25. From these facts the jury could also have reasonably concluded that Cook breached the agreements upon the improper motive of obtaining the larger reward rather than the lesser settlement fee. The law is settled in this state that exemplary damages are recoverable for the wilful or malicious taking of personal property; or the taking of it under circumstances showing improper motive. The law is also settled that a corporation is liable for exemplary damages occasioned by the wilful or malicious act of its agent taking possession of personal property for the corporation, where it either authorized the act or subsequently ratified or approved it, with full knowledge of the facts. Union Deposit Co. v. Moseley, Tex.Civ.App., 75 S.W.2d 190. The facts above detailed show that appellee’s attorney by telephone fully informed appellant of the settlement and storage agreements, which it had authorized Cook to make as its agent; and of the deposit of the money in the bank to pay appellee’s debt to it; and of Cook’s breach of the agreements by wrongfully taking possession of the automobile; but notwithstanding its knowledge of the settlement and storage agreements, it accepted the automobile from Cook and paid him the $25 reward it had offered for the automobile, and kept the automobile under claim of ownership, which was contrary to the right of only a mortgagee as claimed in the settlement agreement. Thus appellant, with full knowledge of all the facts, ratified and approved the acts of Cook in breaching the settlement and storage agreements, and in wrongfully taking possession of the automobile; and appellant obtained property valued by the jury at $475 for $356.

The case of Wardman-Justice Motors v. Petrie, 59 App.D.C. 262, 39 F.2d 512, 69 A.L.R. 648, is analogous. There the vice-president of a corporation, claiming to have a lien upon an automobile which it did not have, directed an employee or agent to seize the automobile. The court held that a corporation is liable for exemplary damages where it appears that it wrongfully took possession of an automobile through an agent, and where the agent’s act was either authorized or subsequently ratified by the officer of the corporation having authority to speak for it. Texas cases are numerous which hold that a corporation is liable for the wilful or malicious acts of its agents where it either directs the acts or subsequently ratifies or approves them with full knowledge of them. Winnt v. I. & G. N. R. Co., 74 Tex. 32, 11 S.W. 907, 5 L.R.A. 172; St. Louis Southwestern R. Co. v. Thompson, 102 Tex. 89, 113 S.W. 144, 19 Ann.Cas. 1250; 13 Tex.Jur. 250, sec. 139.

The definitions of “malicious” and “wilful” in connection with the issue submitting exemplary damages were those ordinarily given in court charges, and the refusal to give the several requested charges of appellant was not error for three reasons: (1) because they were general charges and not permissible in a special issue case; (2) because they submitted matters relating to the law of “gross negligence,” and were not applicable to the instant case, wherein liability was predicated upon wilful and intentional wrong of an agent of a corporation, which the corporation ratified or approved with full knowledge of same;, and (3) because those not objectionable were fully covered by the court’s instructions to the jury on the same matters.

In submitting the issue of exemplary damages, the court instructed the jury as follows: “In this connection you are instructed that punitive damages may be assessed as punishment for a wrongful act done, if any, if the facts warrant the same. In awarding such damages, if any, you may consider mental distress and suffering, if any, of the plaintiff, the sense of wrong and insult, if any, to which plaintiff was subject as a result of the wrongful acts, if any. You may consider his loss of credit, if any, and the loss of his job, if he did lose it, as a result of the wrongful acts, if any. The amount to be fixed, if any, is in the sound discretion of the Jury.”

This was objected to because not covered by pleadings or proof. The pleadings were not excepted to on this ground, and the evidence fully sustained the action of the court in submitting these elements of exemplary damages for the jury’s consideration. Appellee was engaged in the neon sign business, and an automobile was necessary; that without it he could only obtain employment on a commission basis and at a loss; that his credit was injured, and that he could not make even a down payment on another automobile. The allowance of exemplary damages is in the nature of punishment of the wrongdoer and as an example for the good of the public, and such damages may also cover losses which are too remote to be considered under a claim of actual damages, such as injury to feelings, loss of business, mental suffering, and other similar losses; and the amount of such damages is within the sound discretion of the jury. Southwestern Gas & Electric Co. v. Stanley, Tex.Civ.App., 45 S.W.2d 671; Anderson v. Alcus, Tex.Civ.App., 42 S.W.2d 294; Morton Salt Co. v. Wells, Tex.Civ.App., 35 S.W.2d 454; Universal Credit Co. v. Ratliff, Tex.Civ.App., 57 S.W.2d 238; 13 Tex.Jur., 238, sec. 131; 15 Amr.Jur. 740. In the instant case the jury allowed $560 as exemplary damages, and its discretion in the matter will not be disturbed.

In framing its special issues the court referred to the automobile either as the “car in question” or as “plaintiff’s car,” or “automobile.” This was objected to as assuming a disputed issue of fact in the case. If the reference made to the automobile as “plaintiff’s car” or “automobile” is not merely descriptive, the error is harmless, because if the settlement contract were made as found by the jury, then appellant and appellee admitted that the automobile belonged to appellee. The defense that appellant was owner of the automobile under the private sale to itself without possession was not submitted nor requested to be submitted to the jury and was waived as a defense to appellee’s claim of ownership. Appellant offered no proof under its alternative plea that it took possession of the automobile as mortgagee ; but to the contrary claimed to be the owner under the alleged oral sale to itself, which was contrary to the claim set up in the subsequent settlement agreement, wherein its claim was only that of a mortgagee holding a $335 indebtedness secured by a lien on the automobile, which it expressly contracted to release. Thus the title of appellee to the automobile was established as a matter of law, and if the issues assumed such fact such assumption was harmless.

The jury found that the market value of the automobile at the time of the conversion was $475. This finding is attacked as not being supported by evidence. Appellee testified that he knew the reasonable cash market value of the automobile both in Austin and in Dallas; that he had purchased and sold automobiles, and knew the price of similar automobiles in Austin and Dallas; and that the reasonable cash market value of the automobile was $550 or $600. Appellant contends that because appellee only paid $535 for the automobile, his testimony was not worthy of belief. He testified that he thought he got a bargain in the automobile. This merely affected his credibility, and was a matter for the jury to determine.

The jury found that certain silverware, family pictures, business records, and business pictures were in the automobile when it was converted by Cook as agent of appellant. This finding is attacked as not being supported by any evidence. Appellee and his wife fully explained- the reason and circumstance for this property being in the automobile; and positively testified that it was in the automobile when Cook first took it, and appellee testified that he later saw the property in the automobile in the garage where stored, Cook holding the storage ticket; and that Cook thereafter had continuous control of the automobile until he finally converted it and delivered it to appellant at Dallas. This evidence sustains the jury’s finding.

Under a proper definition of “actual damages” the jury found the value of the silverware converted to be $75. This finding is attacked upon the ground that it had no support in the evidence, and particularly upon the ground that appellee testified that the silverware had a market value, but that he had neither pleadings nor evidence to support such measure of damages.

The silverware consisted of odd pieces, to-wit: “One fruit dish, one silver tray, one silver gravy bowl, and certain other small pieces of silver,” and was given to appellee and his wife some three or four years previously as wedding presents. Ap-pellee alleged and testified that the secondhand silverware had no market value. He further testified that an investigation showed that it would cost more than $100 to replace the silverware. This evidence sustains the jury’s finding of $75 actual value. Houston & T. C. R. Co. v. Ney, Tex.Civ.App., 58 S.W. 43, 13 Tex.Jur., 153, sec. 66.

It is true appellee stated on cross-examination that some of the pieces of silverware had a market value, but we think the entire evidence could be considered, and that the jury could have reasonably concluded that he was not attempting to distinguish market value in its legal sense from actual value of the silverware. The court judicially knows that odd pieces of secondhand table silverware do not ordinarily have a market value.

The jury found that the family pictures in the automobile at the time of its conversion had an intrinsic value of $50. Appellee and his wife described the pictures, testified that some of them were more than 50 years old and could not be replaced; and appellee further testified that by his pleadings he had estimated the value of the pictures at $50, which evidence sustains the jury’s finding.

The jury found that the business records in the automobile at the time of its conversion had an actual value of $150. This is attacked as not being supported by any evidence as to amount of the damages. Appellee showed that this record consisted of some 150 names of persons or firms-for whom he had made neon signs; that it was impossible to replace them; and on cross-examination testified: “Well, it ought to be worth $200 to anybody, as a salesman in my line of. business.” This evidence supports the jury’s finding of $150 value for the business record.

The jury found that the business pictures in the automobile at the time of its conversion had an actual value of $300. This finding is attacked as not being supported by any evidence as to the amount of such damages. This contention is sustained. Appellee testified that the pictures were of neon signs made by him in four states, and covered an accumulation of four or five years, and were used constantly as advertisements in his business; and that it would entail large expense to retake the pictures. However, he made no estimate as to the expense necessary to re•take the pictures, nor of any value of the pictures to him. The jury were given no basis of calculation upon which to fix the amount of the damages; and its finding of $300 damages cannot stand. 13 Tex. Jur. 154.

With respect to the $100 allowed as usury, we think appellee was not in a position to assert the claim. He based his suit upon the settlement agreement, in which he acknowledged the amount of appellant’s debt to be $335; and obtained the promise of the bank to pay appellant that amount. The bank became the new obligor to appellant for the’ $335, and appellee thereby extinguished his debt and mortgage to appellant. The $100 claimed to be usurious interest was a part of the consideration for the settlement agreement which is the basis of appellee’s suit, and he can not rely upon that agreement and deny the consideration, or any part of it, for the agreement.

We also sustain' appellant’s contention that the mere finding of the jury that appellee obtained only $376 on the $476 note did not establish that $100 represented usurious interest. Issues of fact were raised as to whether the $100 represented an agreed carrying charge, insurance, and interest. There was no jury finding on these disputed items relating to the issue of usury and the amount thereof, if any.

Appellee’s counsel started to make thé argument to the jury that “it was all right for them to rob this man.” Appellant objected, and the court stopped the argument and instructed the jury to disregard it. If any error were presented by such argument, the trial court instructed the jury to disregard it, and there is nothing in the record to show that they did not do so. The fair deduction, however, is that Cook did try to rob appellee of his automobile.' After making a fair agreement to settle appellant’s debt in full by placing the money in the bank, to be paid upon release of the mortgage, which arrangement appellant accepted, Cook by false representations or forgery unlawfully took possession of the automobile and delivered it to appellant, who kept it after being informed of the settlement agreement, of Cook’s breach of it, and his conduct in taking the automobile. While the word “rob”.when used in a certain sense means that property is taken by violence; in another sense it is used as meaning to deprive one of property unjustly, or injuriously; and since Cook took the automobile by false representations or forgery, he certainly unjustly deprived appellee of it. In any event, the court instructed the jury to disregard the statement, and no reversible error is shown.

Since the court improperly allowed $300 for the business pictures, and the $100 for the usury claim, the judgment against appellant, Wright Titus, Inc., must be reversed. If, however, appellee should file a remittitur of $400, the judgment will be accordingly reformed and affirmed.

Affirmed as to H. B. Cook, reversed as to Wright Titus, Inc., with suggestion of remittitur.

On Offer of Remittitur.

A remittitur of $400 having been filed by appellee in accordance with the suggestion made in our original opinion, the portion of the judgment remanding the cause is set aside, and the judgment of the trial court is reformed and affirmed so that appellee recover of and from appellant, Wright Titus, Inc., the sum of $971.50, and that appellee shall pay all costs.

Reformed and affirmed.


source: Caselaw Access Project

author: DUNKLIN, Chief Justice.

license: Public Domain

text:
    GOSSETT, Banking Com’r, et al. v. HAMILTON.
    No. 14016.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 6, 1939.
    Rehearing Denied Nov. 24, 1939.

      Ocie Speer, of Austin, for appellant Z. Gossett, Banking Com’r.
    J. W. Chancellor, of Bowie, for appellant Federal Deposit Ins. Corporation.
    Benson & Benson,'of Bowie, for appel-,lee.
   DUNKLIN, Chief Justice.

The Ringgold State Bank, of Ringgold, Texas, was duly incorporated under the laws of the State, with banking and discounting privileges. On October 1st, 1937, because of its insolvent condition, it was closed by order of the Board of Directors, and placed into the hands of Z. Gossett, Banking Commissioner of the State, for the purpose of liquidation, by virtue of the laws of the State in such cases made and provided. After a careful investigation of its affairs, the Banking Commissioner determined that, in order to pay all the debts of the bank, it was necessary that the individual liabilities of the stockholders of the bank, as provided by Art. 535 of the Revised Civil Statutes of 1925, Vernon’s Ann.Civ.St. art. 535, be enforced to the full amount of such liabilities, and thereupon assessed each stockholder of the bank and every stockholder who with bona fide intent transferred his stock within 12 months previous to the 1st day of October, 1937, an amount equal to the probable value of such shares so owned or transferred, and directed that the same be paid over to the banking commissioner, at Austin, Texas, or to the special agent appointed by the commissioner in charge of the liquidation of the bank, at his office in Ringgold, Texas.

On the 7th day of September, 1937, which was some 23 days before said assessment was made, the bank was indebted to divers depositors in the aggregate sum of $41,019.36. On October 1st, 1937, when it was taken over by the banking commissioner, it was indebted to its divers depositors in the sum’ of $66,000. The indebtedness at that time included $16,000 of deposit liabilities existing on September 7th, 1937, which had not been discharged by the bank in regular course of business .between September 7th, and October 1st, 1937.

The Federal Deposit Insurance Corporation issued its policy of insurance covering deposits in the bank, as authorized by the laws of the United States, and during the liquidation of the business of the bank by the Banking Commissioner, it paid to him the full amount of all the deposits then outstanding and unpaid, which included the $16,000 deposits, as of date September 7, 1937. Thereafter, the intervener took an assignment from the depositors of their respective deposits, including the $16,000 deposits due and unpaid on September 7th, 1937.

In the process of liquidating the bank, the banking commissioner has paid a dividend to its creditors of 45 per cent of the amount of their respective claims. After crediting said dividend, there was left unpaid 55 per cent of the $16,000 of deposit liabilities of the bank, on September 7th, 1937.

Roy D. Hamilton was a shareholder in the bank, owning ten shares of its capital stock, of the par value of $100 per share, on September 7th, 1937, and likewise on October 1st, 1937.

This suit was instituted by Z. Gossett, banking commissioner of Texas, in his right as such official, and also for the benefit of all creditors of the bank, against Roy D. Hamilton, to recover $1,000, the full face value of the ten shares of stock so owned by him, upon allegations of the foregoing facts, and basing his right of recovery on one of the provisions of Art. 16, sect. 16, of the State Constitution, hereinafter noted, and Art. 535, Revised Civil Statutes of Texas, enacted in pursuance thereof, both of which were in full force and effect on September 7th, 1937, but both of which were repealed by virtue of the amendment of Art. 16, sect. 16, of the Constitution, Vernon’s Ann.St., which became effective on September 8th, 1937.

The Federal Deposit Insurance Corporation, by leave of court, filed a plea of intervention in which it adopted the allegations of plaintiff’s petition and sought a recovery against Roy D. Hamilton, under and by virtue of the provisions of Art. 16, sect. 16, of the Constitution, before its amendment, and Art. 535, Rev.Civ.St., and also as assignee of the holders of the deposits, as shown above. But with the express allegation that it neither admitted nor denied the rights of the banking commissioner to recover the same.

The defendant filed a general demurrer and general denial to plaintiff’s petition.

By special exception, defendant challenged the legal right of the intervener as a creditor of the Ringgold State Bank to intervene in the suit and recover the judgment prayed for.

The case was tried before a jury and at the conclusion of the evidence introduced, the court granted defendant’s motion for an instructed verdict in his favor; and from a judgment rendered upon the verdict returned, in obedience to that instruction, plaintiff and intervener have prosecuted this appeal.

Following is a copy of Art. 16, sect. 16, of the Constitution, in force on September 7th, 1937:

“Sec. 16. The Legislature shall by general laws, authorize the incorporation of corporate bodies with banking and discounting privileges, and shall provide for a system of State, supervision, regulation and control of such bodies which will adequately protect and secure the depositors and creditors thereof.
“Each shareholder of such corporate body incorporated in this State, so long as he owns shares therein, and for twelve months after the date of any bona fide transfer thereof shall be personally liable for all debts of such corporate body existing at the date of such transfer,, to an amount additional to the par.value of such shares so owned or transferred, equal to the par value of such shares so owned or transferred.
“No such corporate body shall be chartered until all of the authorized capital stock has been subscribed and paid for in full in cash. Such body corporate shall not be authorized to engage - in business at more than one place which shall be designated in its charter.
“No foreign corporation, other than the national banks of the United States, shall be permitted to exercise banking or discounting privileges in this State.”

Art. 535, Rev. Civ. Statutes, Vernon’s Ann.Civ.St. art. 535, reads:

“If default shall .be made in the payment of any debt or liability contracted by any bank, savings bank or Bank and Trust Company, each stockholder of such cor-' poration, as long as he owns shares therein, and for twelve months after the date of the transfer thereof, shall be personally liable for all debts of such corporation existing at the date of such transfer, or at the date of such default, to an additional amount equal to the par value of such shares. Shares of stock in such a banking corporation shall be transferable only on the books of the corporation, and it shall be the duty of the officers of the corporation to make such transfer upon the books at the request of the transferror or transferee. In any suit to establish a stockholder’s liability on any obligation as stockholder, the transferror or transferee of stock may be joined in one action and the liabilities of both parties determined therein.”

Said Sect. 16. of Art. 16 of the Constitution was so amended as to eliminate therefrom the provision embodied in its second paragraph fixing liability of stockholders in banks therein referred to; thus repealing that paragraph and rendering Art. 535, Revised Statutes, no longer in force.

At the outset, we conclude that if defendant, as a stockholder, was liable for the debts owing by the bank to its depositors on September 7th, 1937, under the provisions of Art. 16, sect. 16, of the Constitution, and Art. 535, Rev.St., then in force, then such liability was a property right, which was mot destroyed by the repeal of the second provision of said sect. 16, which became effective on September 8, 1937, and Art. 535, Rev.Civ.St.

So the only question to be determined by us here is whether or not on the trial of the case in the court below plaintiff made out a prima facie showing of liability of defendant for the deposits owing by the bank on September 7th, 1937, and right of the Banking Commissioner to recover therefor.

From a careful consideration of the authorities, we have reached the conclusion that the liability of defendant as a stockholder in the Ringgold State Bank was contractual. The Constitutional provision making shareholders in the bank liable for its debts, entered into and became- a part of defendant’s contract of purchase of his stock, as much so as if it had been in his certificate of stock. He could not acquire and enjoy its benefits and escape the burden imposed thereon by the Constitution and statute. Section 182, 10 Tex.Jur. page 316, and numerous authorities there cited, including, among others, Kerr v. Galloway, 94 Tex. 641, 644, 64 S.W. 858; Winder Bros. v. Sterling, 118 Tex. 268, 12 S.W.2d 127; West River Bridge Co. v. Dix, 6 How. 507, 540, 12 L.Ed. 535, 548; City of Abilene v. Sayles, Tex.Com.App., 295 S.W. 578; Globe Indemnity Co. v. Barnes, Tex.Com.App., 288 S.W. 121; Southern Surety Co. v. Klein, Tex.Civ.App., 278 S.W. 527, writ of error refused,

Following is quoted from the majority opinion in Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866:

“This is a suit brought in a California superior court by petitioner, on behalf'of himself and other creditors, to recover from respondent, a director in Getz Bros. & Company, a California corporation, the amount of an indebtedness upon an open account for goods sold to the corporation by petitioner’s assignor. ' The basis of the liability sought to be enforced is found in the following provision of section 3, art. 12, of the California Constitution of '1879:
• “ ‘The directors or trustees of corporations and joint-stock associations shall be jointly and severally liable to the creditors and stockholders for all moneys embezzled or misappropriated by the officers of such corporation or joint-stock .association, during the term of such director or trustee.’
“The bill alleges misappropriation and embezzlement of moneys of the corporation by its officers, with appropriate details to bring the respondent within the terms of the foregoing provision. The superior court sustained a demurrer to the complaint, for reasons not material here, and rendered final judgment accordingly. An appeal was taken to the state supreme court; and, while that appeal was pending, the provision of the state constitution above quoted was repealed. Thereupon, respondent moved to dismiss the appeal, on the ground that the cause of action had abated by reason of the repeal of the provision of law upon which it was based. The court sustained the motion and dismissed the appeal, Coombes v. Franklin [213 Cal. 164] 1 P. (2d) 992; and subsequently denied a petition for rehearing [213 Cal. 164] 4 P.(2d) 157.
“In substance, it was held that the right accorded to corporate creditors was created by, and dependent alone upon, the constitutional provision, said to have the force of a statute; and that when that was repealed, the right fell with it, being still inchoate, not reduced to possession nor perfected by final judgment. It was conceded that the liability created by the Constitution was in its nature contractual and, as a matter of law, entered into and became a part of every contract between the corporation and its creditors. But this contractual liability, it was said, was conditioned by the power reserved over corporate laws by section 1, art. 12, of the Constitution, as follows:
“ ‘All laws now in force in this State concerning corporations, and all laws that may be hereafter passed pursuant to this section, may be altered from time to time or repealed.’
“The authority of a state under the so-called reserved power is wide; but it is not unlimited. The corporate charter may be repealed or amended, and, within limits not now necessary to define, the interrelations of state, corporation, and stockholders may be changed; but neither vested property rights nor the obligation of contracts of third persons may be destroyed or impaired. [Citing authorities.] The right of this petitioner to enforce respondent’s liability had become fully perfected and vested prior to the repeal of the liability provision. His cause of action was not purely statutory. It did not arise upon the constitutional rule of law, but upon the contractual liability created in pursuance of the rule. Although the latter derived its being from the former, it immediately acquired an independent existence competent to survive the destruction of the provision which gave it birth. The repeal put an end to the rule for the future, but it did not and could not destroy or impair the previously vested right of the creditor (which in every sense was a property right, Ettor v. Tacoma, 228 U.S. 148, 156, 33 S.Ct. 428, 57 L.Ed. 773, [778]; Pritchard v. Norton, 106 U.S. 124, 132, 1 S.Ct. 102, 27 L.Ed. 104 [107]) to enforce his cause of action upon the contract. [Citing authorities.]”

Those conclusions were followed by an extended review of other decisions of the same court, to the same effect, and the following was cited with approval from Pac. Mail S. S. Co. v. Joliffe, 2 Wall. 450, 17 L.Ed. 805:

“When a right has arisen upon a contract, or a transaction in the nature of a contract authorized by statute, and has been so fa'r perfected that nothing remains to be done by the party asserting it, the repeal of the statute does not affect it, or an action for its enforcement. It has become a vested right which stands independent of the statute.”

And the opinion concludes as follows:

“The creditor extended credit to the corporation ; and his action in so doing, under the state constitutional provisions, brought into force for his benefit the constitutional obligation of the director, which, by becoming a director, the latter had voluntarily assumed and, thereby, in the eye of the law, created against himself a contractual liability in the nature of a surety-ship. Harrison v. Remington Paper Co., supra [72 C.C.A. 405], 140 F. [385] 388, 3 L.R.A.(N.S.) 954, 5 Ann.Cas. 314. Doubts which otherwise might have existed in respect of the character and effect of the transaction are no longer open. It is settled by decisions of this and other federal courts (Ettor v. Tacoma [228 U.S. 148, 33 S.Ct. 428, 57 L.Ed. 773,] and cases cited in connection therewith, supra) that, upon the facts here disclosed, a contractual obligation arose; and the right to enforce it, having become vested, comes within the protection of both the contract impairment clause in Article 1, § 10 [U.S.C. A.], and the due process of law clause in the Fourteenth Amendment, of the federal Constitution [U.S.C. A.].
“Decree reversed.”

In the following decisions it was held that Art. 16, sect. 16, of the Constitution, on which the suit was founded, is self executing: Fellows v. Shaw, Tex.Civ.App., 66 S.W.2d 741; Austin v. Campbell, Tex.Civ.App., 210 S.W. 277, writ of error refused; Chapman v. Pettus, Tex.Civ.App., 269 S.W. 268, writ of error refused.

In Shaw v. Green, 128 Tex. 596, 99 S.W.2d 889, 893, by our Supreme Court, this is said:

“There are apparent conflicts in the decisions as to the nature of the stockholder’s added liability, whether it is to be considered contractual or statutory. See Austin v. Strong, 117 Tex. 263, 268, 1 S.W.2d 872, 3 S.W.2d 425, 79 A.L.R. 1528; Austin v. Guaranty State Bank of Fulbright, Tex.Civ.App., 282 S.W. 262; Orndorff v. Austin, Tex.Civ.App., 294 S.W. 681; Richmond v. Irons, 121 U.S. 27, 7 S.Ct. 788, 30 L. Ed. 864; Matteson v. Dent, 176 U.S. 521, 20 S.Ct. 419, 44 L.Ed. 571; McClaine v. Rankin, 197 U.S. 154, 25 S.Ct. 410, 49 L.Ed. 702, 3 Ann.Cas. 500; Christopher v. Norvell, 201 U.S. 216, 26 S.Ct. 502, 506, 50 L.Ed. 732, 5 Ann.Cas. 740; Thomas v. Matthiessen, 232 U.S. 221, 34 S.Ct. 312, 58 L.Ed. 577; 3 R.C.L. § 37, pp. 410, 411. The liability is neither wholly contractual nor wholly statutory. The relation of the stockholder to the bank, as pointed out by Judge Leddy in Austin v. Strong, supra, is contractual in its nature. Until that relation is once created, with the voluntary assent of the party, he does not become individually responsible for any of the bank’s debts. As to him it may be said, that his liability has its origin in the contract by which he becomes a stockholder. However, the liability to which he binds himself by becoming a stockholder is created or imposed by the Constitution (Article 16, § 16) and the statute.”

We believe that decision clearly implies that the obligation of the shareholder imposed by the Constitution and Art. 535, Rev.St., originated with and became effective at the time defendant acquired his stock; just as we believe the language of 'the Constitution and statute indicated.

In Pool v. Chapman, 283 S.W. 762, 764, by the Commission of Appeals, the Banking Commissioner sought to recover from Pool the face value of certain shares of bank stock he had sold to another within 12 months next preceding the date of such transfer. This was said in the opinion of the Commission of Appeals:

“The debts deferred to in the Constitution are debts in excess of the assets of the bank. Of course, every bank is indebted to its depositors. Banks frequently borrow money from other banks.' The statement last above quoted shows no reason for closing that bank. Many banks, in excellent condition, have liabilities of the same kind there shown. A stockholder is liable for such’ debts only as the assets of the bank will not pay. If the commissioner had introduced in evidence not only the liabilities of the bank, but a statement of its assets as well, and had testified that in his judgment the bank was insolvent and unable promptly to meet its obligations, then he would have been prima facie entitled to recover. Pool would not be allowed to prove that certain assets of the bank at that time were good, and that they were sufficient to meet the obligations of the bank. But there certainly must be proof that debts in excess of the assets existed in the judgment of the commissioner when the former stockholder sold his stock before he can be held liable. If the bank does not owe debts in excess of its assets, there is no reason why a-stockholder should ever be assessed.
“This is a statutory liability against Pool. Beginning with the early case of State v. Williams, 8 Tex. [255] 265, our Supreme Court has always held that one trying to enforce such a liability must plead his case with a great degree of certainty. In fact, it is held that the certainty must be of the same degree as would be required in a bill of indictment. Of course, ther.e must be some proof to sustain the necessary pleading.
“We are unwilling to go any further than the court did in the case of Austin v. Campbell, supra. Under the holding in that case, there must be proof that debts existed at the date of the transfer of the stock. That is the exact language of the constitutional provision. The lawmakers of Texas evidently did not intend that a stockholder, realizing his bank was already insolvent, should relieve himself of the liability attaching to his stock by selling out shortly before the crash finally comes. But it is equally certain that it was not the intention of the lawmakers to require a stockholder, who sells his stock while the bank is solvent, to pay an assessment on the stock he once owned just because the bank became insolvent after he had disposed of his stock. It is only where the insolvency of the bank relates back to the time when the former stockholder owned his stock that there can be any liability. There could certainly be no presumption of insolvency at the date of the transfer of stock when it is not even shown that any debts existed at that time in excess of its assets.
“For the want of any evidence that debts •existed as just hereinbefore described by ns, we think the judgments of the lower courts must be reversed.”

Our Supreme Court expressly approved the holding of the Commission of Appeals •on the questions discussed in the opinion.

After the decision of the Commission of Appeals, the Pool case was remanded to the trial court for another trial, and on the second appeal, the Court of Civil Appeals at Eastland (Austin v. Pool, 299 S.W. 935), in opinion by Justice Hickman, followed and reaffirmed the conclusions of the Commission of Appeals shown above, and affirmed the judgment of the trial court, denying the recovery sought by the Banking Commissioner against Pool, on a finding by the jury that all the debts owing by the bank at the time Pool sold his stock were paid at the time of or before the bank was placed in the hands of the Banking Commissioner, and our Supreme Court refused a writ of error to that decision. The same ruling was made by the Austin Court of Appeals, in Carter v. Brand, 106 S.W.2d 332.

Neither of those decisions involved the question of liability of an original shareholder who had never disposed of his stock; and counsel for appellee argues that according to the very letter of the constitutional provision in question, the same requirement of proof of debts in excess of liability of the bank is applicable in this suit against defendant, who has never transferred his stock, and that therefore no liability was established against him for the face value of his stock, because of lack of proof that the debts owing by the bank on September 7th, 1937, exceeded the amount of its assets; that date being the last day preceding the date the constitutional amendment became effective, and 23 days before the bank closed its doors and was taken -over by the Banking Commissioner, by reason of its then insolvent condition.

Appellee then calls attention to the lack of such proof of insolvency of the bank on September 7th, 1937, the date on which liability of defendant was sought to be fixed, and cites Brenan v. Eubank, Tex.Civ.App., 56 S.W.2d 513, and Milmo Nat. Bank v. Cobbs, Tex.Civ.App., 128 S.W. 151, writ of error denied in rebuttal of any presumption of such insolvency on that date, -arising from the fact of insolvency 23 days later when the Banking Commissioner took charge; also this announcement by the Commission of Appeals in the Pool case cited above: “There could certainly be no presumption of insolvency at the date of the transfer of stock when it is not even shown that any debts existed at that time in excess of its assets.”

All the authorities recognize the rule that in order to show liability of the shareholder, under and by virtue of the provisions of Art. 16, sect. 16, of the Constitution, before its amendment, or under Art. 535, Rev.Civ.St., plaintiff must bring the case strictly within the letter of such enactments, and that the same must clearly support the contention, as announced in Pool v. Chapman, Tex.Com.App., 283 S.W. 762.

The provision of sect. 16, of Art. 16, of the Constitution, before its amendment, clearly imposes upon a shareholder who has made a bona fide transfer of his stock, liability for all debts of such corporate body existing at the date of such transfer.

But with respect to an original shareholder who has never transferred his stock, the provision is confusing, to say the least, in that, according to a strict interpretation of its wording, the liability of the original stockholder who has never transferred it, is for debts “existing at the date of such transfer” of the stock- — a contradiction of terms. In the opinions that constitutional provision is usually construed as making a shareholder who has never transferred his stock liable for all the debts of the bank, regardless of when they are incurred. But whether such construction is correct, we deem it unnecessary to decide, because we believe Art. 535, Rev.St., passed by authority of the first section of Art. 16, sect. 16, was sufficient to impose on a shareholder who has never transferred his stock liability for all debts of the bank existing at the date of default in their payment when due.

Although the obligation of the stockholder to pay the debts of the bank is one of its assets which the Banking Commissioner may collect, after he has taken charge of the bank, yet it is clear from the opinion of the Commission of Appeals in Pool v. Chapman, supra, that the assets which the court referred to in the opinion were other assets, such as bills receivable and properties, and not the obligations of the stockholders to pay the bank’s debts. The Constitution and Art. 535 are both silent as to that question, and the decision in the above case manifests an interpretation of those enactments in accordance with the conclusion reached, which we believe is controlling here, especially in the absence of any later decision to the contrary on that point. And we may add that' according to the holding in that case, and as announced in many other decisions in other jurisdictions, the obligation of the stockholder to pay the bank’s debts is that of a surety for the bank. See Hawthorne v. Calef, 2 Wall. 10, 17 L.Ed. 776; Coombes v. Getz, U. S. Supreme Court, supra, and authorities there cited; also Winchester v. Howard, 136 Cal. 432, 64 P. 692, 69 P. 77, 89 Am.St.Rep. 153.

Indeed, that such is the character of the stockholder’s liability is implied from the language employed in the beginning of Art. 535, viz.,'“If default shall be-made in the payment of any debt or liability contracted by any bank, savings bank or Bank and Trust Company, each stockholder of such corporation, as long as he owns shares therein, and for twelve months after the date of the transfer thereof, shall be personally liable for all debts of such corporation existing at the date of such transfer, or at the date of such default,” etc. 7 American Jurisprudence, sect. 97, p. 80.

In Austin v. Duffer, Tex.Civ.App., 279 S.W. 318, 324, writ of error refused, this is said:

“We believe we are justified in saying that there is an unbroken line of decisions * * * holding the Comptroller of the Currency of the United States, whose powers over national banks are similar and in many respects identical with the powers of the state banking commissioner over state banks, is authorized to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and if only a part, how much shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The' stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He. may make it at such time as he may deem proper, and in such amount as shall be satisfactory to him, not to exceed 100 per cent., however.”

That general statement is found in many other decisions, such as Heldenfels v. Chapman, Commissioner, Tex.Civ.App., 283 S. W. 179; Chapman, Commissioner v. Sparks, Tex.Civ.App., 283 S.W. 338; Markus v. Austin, Commissioner, Tex.Civ.App., 284 S.W. 326; Austin v. Guaranty State Bank, Tex.Civ.App., 300 S.W. 129; Howard v. Republic Bank & Trust Company, Tex.Civ.App., 76 S.W.2d 187, writ refused; Houston National Exchange Bank v. Chapman, Tex.Civ.App., 263 S.W. 929; Pool v. Chapman, Tex.Civ.App., 271 S.W. 427; Brooks v. Austin, Commissioner, Tex.Civ.App., 206 S.W. 723; Chapman v. Pettus, Tex.Civ.App., 269 S.W. 268, writ refused; Markus v. Austin, Tex.Civ.App., 284 S.W. 326; Ragland v. Austin, Tex.Civ.App., 284 S.W. 330; Collier v. Smith, Tex.Civ.App., 169 S.W. 1108; Shaw, Commissioner v. Noyes, Tex.Civ.App., 13 S.W.2d 443.

However, in one of those cases, viz., Pool v. Chapman, Tex.Civ.App., 271 S.W. 427, that general rule of conclusiveness of all findings of the Banking Commissioner was announced, and by reason thereof, the Court of Civil Appeals held that the decision of the Banking Commissioner of insolvency of the bank at the time the stock in question was transferred, was conclusive. But a writ of error to that opinion was granted, and, as shown in the opinion of the Commission of Appeals, with express approval of the Supreme Court, in Pool v. Chapman, 283 S.W. 762, supra, that holding was overruled.

The authority of the Banking Commissioner to take over the assets of the bank on October 1st, 1937, on account of its insolvent condition at that time, as found by the Commissioner, cannot be questioned, and is not challenged by defendant in this case. After he had taken charge, he stood as the legal representative of creditors and stockholders, with authority as such representative to liquidate the bank in accordance with the powers vested in him by the statutes in such cases made and provided, just as a receiver represents creditors and owners of property placed in his hands. But his actions in liquidating the bank’s affairs are within constitutional and statutory limitations. Any steps taken by him, either by suit or by assessments, to collect a debt owing to the bank as a part of its assets, must be by authority of statutes that are not in contravention of provisions of the Constitution.

Nor did Art. 535 of the statutes, under which the Banking Commissioner undertook the liquidation of the bank, purport to confer upon him authority to pursue any course in his attempt to enforce collection of defendant’s liability for the debt sued for, that would be violative of constitutional restrictions.

The insolvency of the bank- on September 7th, 1937, was a necessary condition precedent to the liability of the stockholder for the debts then owing by the bank, notwithstanding its insolvency 23 days later. To allow a recovery against defendant in this action, solely by reason of the summary assessment by the Banking Commissioner, after taking over the bank, and without proof of insolvency on September 7th, 1937, would be to deprive him of his property rights, contrary to the constitutional guaranty of due process of law. Vernon’s Ann.St.Const. art. 1, § 19. The rale of public policy, announced as the reason for the conclusiveness of the findings of the Banking Commissioner in such matters, could not be given effect to destroy rights guaranteed to the stockholder by the Federal and State Constitutions. And in this connection the amendment of Art. 16, sect. 16, of the Constitution, Vernon’s Ann. St., and the amendment of Art. 535, Rev. St., Vernon’s Ann.Civ.St. art. 535, to conform thereto, so as to eliminate the former liability of stockholders of such banks, indicate a public policy to remove that burden on the stockholders in order to encourage investments in the banking business, in which the public is vitally interested. The Constitution and Statutes are the highest expressions of public policy of the State.

It is our conclusion that the constitutional amendment repealing the provisions of sect. 16 of Art. 16 of the former constitution, providing for added liability of a stockholder in banks therein specified and the consequent repeal of Art. 535 of .Rev. St. in force at the time that amendment became effective, did not operate to destroy the binding effect of defendant’s contractual obligation to pay debts of the bank, arising from his ownership of stock, before such repeal, because the same was a vested property right in the creditors of the bank, which was secured to them by the then existing provisions off the Constitution and statute.

But it is our further conclusion that plaintiff, Banking Commissioner, failed to make out a prima facie showing of right to the judgment sought against the defendant in the absence of any competent evidence of the insolvency of the bank on September 7th, 1937, and therefore the court did not err in rendering judgment in favor of the defendant, .Roy D. Hamilton, appellee here, as against the suit of plaintiff, Z. Gossett, Banking Commissioner, and also as against the intervener, Federal Deposit Insurance Corporation.

And we will add that it is unnecessary for us to determine whether intervener had the right to intervene, because, as shown by the plea of intervention, the Intervener’s suit was based on the facts alleged in plaintiff’s petition, with claim of right of subrogation to the asserted right of the depositors in the bank on September 7th, 1937, to hold defendant liable for their deposits, arising from payment by inter-vener of those depositors’ claims. And on the trial, Intervener relied solely upon the evidence offered by plaintiff and already noted.

Judgment affirmed.


author: FUNDERBURK, Justice.

text:
    RUPPERT v. HERMLEIGH CO-OPERATIVE GIN & SUPPLY CO.
    No. 1943.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 27, 1939.

      C. F. Sentell, of Snyder, for appellant.
    Mays & Perkins, of Sweetwater, for ap-pellee.
   FUNDERBURK, Justice.

George Ruppert brought this suit against Hermleigh Co-Operative Gin and Supply Company, to recover $127.17 as damages for the alleged conversion by the defendant of cotton and cotton seed upon which plaintiff claimed a landlord’s lien. In a non-jury trial, after plaintiff had testified to the terms of the rental contract for the year 1937, as providing for payment of one-fourth of the cotton and cotton seed, the defendant, on cross examination, brought out the fact that for the year 1932 there was a written rental contract between the same parties covering the same premises. Then ensued the following:

“Q. And when did you [plaintiff] make the rental contract with him [the tenant] for the year 1933 ? A. Each year, we rented it from year to year.
“Q. Did you have a separate contract with him each year, or did he just hang over ? A. After the first year, the first year it was written up and afterwards by verbal contract each year the same way as the written contract.
“Q. Would you go down and say ‘Our contract for this year is the same as last year, same as the written contract?’ A. Yes sir.
“Q. Where is your written contract? A. Either I have got it or Mr. Henry has got it at Hermleigh.”

Thereupon, the court sustained an objection of defendant to any oral evidence of the terms of the rental contract (that is, the contract for 1937) and, upon motion of defendant, struck from the record all such testimony previously given; such actions based upon the theory that the written contract for the year 1932 was primary evidence and the testimony regarding the oral contract of 1937 was secondary evidence. The court, as shown by the trial judge’s conclusions of fact and law duly filed, rendered judgment for defendant on the ground that, since the written contract was controlling and evidence of the oral contract had been excluded, there was no competent evidence to show that plaintiff had a lien on the cotton and cotton seed allegedly converted. The plaintiff appeals.

The contract for 1937 was oral. The fact that it adopted in whole or in part the provisions of a prior, and long expired, written contract between the same parties, did not make it any the less an oral contract. The provisions of the former written contract in themselves were proof of nothing material to the issues in the case. Any effect thereof was wholly dependent upon the verbal adoption. The writing was in no sense the primary evidence of the provisions of the verbal contract, the only function thereof being somewhat analogous to written memoranda of the provisions of an oral contract. 22 C.J. p. 985, sec. 1227; Callen v. Collins, Tex.Civ.App., 135 S.W. 651; Missouri, K. & T. Ry. Co. v. Crum, 35 Tex.Civ.App. 609, 81 S.W. 72.

In our opinion, the best evidence rule had no application. The testimony of the plaintiff, given upon his direct examination, concerned only an oral contract. One provision of that contract was the promise of the tenant to pay as rent one-fourth of the cotton and cotton seed raised. There was nothing in the nature of such fact to suggest that there was any higher evidence of its existence. Through cross questioning it was developed that in 1932 there was a written contract between the same parties and covering the same premises as the oral-contract of 1937 and that the oral contract of 1937 (as had similar intervening contracts for each of the years 1933 to 1936, inclusive) adopted the provisions of said former written contract. Such adoption did not, however, convert the written provisions into a written contract. The only evidence of the existence of a contract for the year 1937 rested in parol. The written provisions of the contract of 1932 were no evidence of the existence of such a rental contract for the year 1937 and if evidentiary of the terms of such contract, once the fact of its existence was established, was so only upon admission or proof of the adoption thereof as provisions of the oral contract. It is plain to be seen, therefore, we think, that the evidence of the existence of the contract and the said particular provision thereof, did not suggest the existence of any higher degree of evidence; and the facts concerning the prior written contract, as developed upon the cross examination, were not such as to make it appear that such provisions constituted any higher evidence, or, if so, that same were material, relevant or competent to prove the fact, or would more satisfactorily explain and establish the fact in issue than would the evidence offered. The applicable rule is stated thus: “Before evidence can be excluded on the ground that it is secondary it must appear either from the nature of the fact to be proved or by evidence introduced by the objecting party that there is higher evidence in existence and of what that evidence consists; that it is material, relevant and competent to prove the fact; and that if produced it would more satisfactorily explain and establish the fact than the evidence offered.” 22 C.J. 977, sec. 1223. In Cocke v. Humphreys & Day, Tex.Civ.App., 293 S.W. 892, 893, to the same effect, Judge Looney said: “Before evidence can be excluded on the ground that it is secondary, it must appear, either from the nature of the fact to be proven or by evidence introduced by the objecting party, that there is higher evidence in existence and of what that evidence consists.”

Where, as here, the fact in issue is the existence of a landlord’s lien as dependent upon an oral rental contract, a provision of which being the promise of the tenant to pay as rent one-fourth of the cotton and cotton seed, it is difficult to imagine any higher or better evidence of such facts than the testimony of a party to the oral contract.

The contents of the written contract did not form the foundation of the cause of action asserted by plaintiff, nor of any defense asserted by defendant. A simple reading of the pleadings discloses such to be the fact. As applicable to such state of facts, the law is that “Evidence relating to a matter which does not form the foundation of the cause of action or defense but is collateral to the issue does not properly fall within the best evidence rule, and although secondary in its character, cannot be excluded on the ground that primary evidence is obtainable.” 22 C.J. p. 978, sec. 1224. Enlarging upon the same subject, this authority says “It is generally held that the best evidence rule does not apply to writings collateral to the issue. So, where the execution or existence of a writing, as distinct from its contents, does not form the foundation of the action, although it is material to the controversy, and where the purpose of the evidence is not to maintain or destroy any right involved in the action, the production of the writing is not required, but its execution and existence may be proved by parol. Upon the same principle where the contents of a writing are not directly in issue the matters contained in the writing may be proved by parol evidence without accounting for the failure to produce the writing, and a fortiori the subject of documents which are not the foundation of the action may be proved by parol.” 22 C.J. p. 1015, sec. 1300. As supporting different statements in the text as above quoted, the following Texas cases are cited; Howard v. Britton, 71 Tex. 286, 9 S.W. 73; Philadelphia, etc., Agency v. Brown, Tex.Civ.App., 151 S.W. 899; International & G. N. Ry. Co. v. Lynch, Tex.Civ.App., 99 S.W. 160; Missouri, K. & T. Ry. Co. v. Johnson, Tex.Civ.App., 193 S.W. 728; Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395; Dalhart Real Estate Agency v. LeMaster, 62 Tex.Civ.App. 579, 132 S.W. 860; Callaghan v. McGown, Tex.Civ.App., 90 S. W. 319; Gooch v. Addison, 13 Tex.Civ.App. 76, 35 S.W. 83; see also, Monk v. Danna, Tex.Civ.App., 110 S.W.2d 84.

It being our conclusion that the judgment of the court below should be Reversed and the cause remanded, it is accordingly so ordered.


author: SPEER, Justice.

text:
    PRYOR v. LE SAGE.
    No. 13959.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 6, 1939.
    Rehearing Denied Nov. 24, 1939.
    Napier & Napier and E. W. Napier, Jr., all of Wichita Falls, for appellant.
    Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for appellee.
   SPEER, Justice.

H. M. Pryor sued R. S. LeSage, doing business under the firm name of LeSage Motor Company, for damages sustained while riding in an automobile with A. A. Rollins, an agent of LeSage, under conditions which we shall later mention.

Plaintiff, Pryor, alleged, among other things, that defendant, LeSage, was at all times involved in this transaction engaged at Wichita Falls, Texas, in the sale and exchange of automobiles and that A. A. Rollins was a sales agent for defendant. That on about August 14th, 1936, plaintiff was endeavoring to negotiate a trade with the defendant for a truck; that in furtherance of the proposed deal, Rollins, the agent of defendant, took plaintiff to Mineral Wells in an automobile belonging to his principal; that while on said trip, plaintiff was seriously injured in a collision, occasioned by the negligence of Rollins. The acts of negligence alleged consisted of driving over the highway at a high rate of speed, in excess of that permitted by law, failing to observe the road and traffic thereon ahead, tailing to keep a proper lookout, turning the car to the right and off the pavement immediately prior to the collision and in driving the car at the time and in the manner mentioned without adequate brakes. All of which acts were alleged to be negligence -proximately causing Rollins to drive the .automobile into a truck parked by the side of the road in the night time; that in said collision Rollins was killed and plaintiff sustained serious injuries, fully described in the pleadings.

The first paragraph of defendant’s trial pleading reads in part as follows: “Now ■comes the defendant, R. S. LeSage, doing business under the firm name of LeSage Motor Company, in the above entitled •cause * * * ”, and demurs generally to plaintiff’s petition. The general demurrer is followed by special exceptions not urged upon the trial. Answer was by general denial, a special answer that plaintiff and Rollins were engaged in a joint enterprise at the time plaintiff claims to have been injured; that the collision was without fault on the part of defendant, but because of the wrongful acts of a third party who parked his car on the pavement of the highway, which said acts were the efficient and intervening cause of the collision ; alternatively, that plaintiff was a gratuitous guest while riding in the car with Rollins; defendant further alternatively answered that plaintiff, being a gratuitous guest in Rollins’ car, failed to keep a proper lookout for his own safety; that if it be true, as alleged by plaintiff, that Rollins was driving at an unlawful and dangerous rate of speed, plaintiff was negligent in failing to make an effort to prevent said acts, and that plaintiff was further guilty of contributory negligence in failing to ascertain before the accident that the brakes on Rollins’ car were defective, if in fact this was true.

The case was tried to a jury on special issues. The answers of all issues, save rnumber 19, were favorable to plaintiff. No. 19 was to the effect that plaintiff and Rollins were engaged in a joint enterprise when the former was injured. Plaintiff •moved that Special Issue 19 and its answer be set aside by the court, and that judgment then be entered in his favor on the verdict; defendant moved for judgment; the court overruled plaintiff’s motion and sustained that of defendant, and entered judgment accordingly.

Plaintiff moved for new trial, and in his motion devoted nine separate paragraphs to a complaint in one form or another of the action of the court in overruling his motion to set aside Special Issue 19 and its answer and to render judgment in his favor. Motion for new trial being overruled, plaintiff has appealed.

Defendant (the appellee) contends that plaintiff’s assignments of error should not be considered by us, because they nowhere point out as error the action of the trial court in refusing to set aside special issue 19 and its answer, and further, because the propositions contained in the brief are not based upon the action of the court in refusing to sustain plaintiff’s motion. Insofar as defendant’s objections apply to the propositions in the brief, he is correct; but plaintiff’s tenth assignment, among other things, does assign as error the action of the court in refusing to sustain his motion to set aside Special Issue 19 and its answer. Our amended statute, Article 1757 Vernon’s Tex. Civil Statutes, does not require that the brief shall contain propositions under the assignments relied upon. We have repeatedly said that in our judgment such are helpful to the appellate courts, and that we welcome them in briefs, yet we are not at liberty to condemn a brief because of their absence, nor because they are so framed as not to be helpful to the court.

We find in plaintiff’s brief ten assignments of error, one of which is as above indicated. They are all referable, cither directly or remotely, to the failure of the trial court to sustain his motion to set aside issue 19 and its answer. The purported assignments of error correspond sufficiently with different paragraphs contained in his motion for new trial; however, none of them refers to that part of the motion where the question was raised. They are reconstructed expressions found in the motion.

It has been held by our courts that an assignment of error need not be in the precise language of the motion for new trial, but may be reconstructed from the motion. Moore v. Scott, Tex.Civ.App., 16. S.W.2d 1100, writ dismissed; Pennebaker v. Atwood, Tex.Civ.App., 19 S.W.2d 363, writ dismissed. In Schlofman v. Bear Canon Coal Co., Tex.Civ.App., 77 S.W.2d 337, the Amarillo Court of Appeals held that it was not necessary that assignments of error be either a verbatim or even a substantial copy of those contained in the motion for new trial. It would appear that our courts look to the substance of an assignment, rather than to the form in which it is expressed.

Our Supreme Court, in construing the rules of procedure on appeals, has laid down a rather generous and liberal rule, to insure to litigants their day in court. Gavin v. Webb, 128 Tex. 625, 101 S.W.2d 217, criticising the holding in Id., Tex.Civ.App., 99 S.W.2d 372. We, too, are here inclined to follow the principles there announced and consider the assignments over the objections of defendant.

We think it not difficult for an appellant to substantially comply with the provisions of Article 1844, Vernon’s Texas Civil Statutes. It is there said that an appellant “may embody in his brief in the appellate court all assignments of error distinctly specifying, the grounds on which he relies. All errors not distinctly specified are waived, but an assignment shall be sufficient which directs the attention of the Court to the error complained of." No doubt it is the last above quoted expression which has brought about the rule announced.

The sole question before us for determination is whether or not there was any evidence in the case to warrant the submission of Special Issue 19 and to support the answer of the jury thereto.

The court’s definition of joint enterprise and Special Issue 19 read as follows:

“Wherever ‘joint enterprise’ is used in this charge, it is defined to mean that wherever occupants of a conveyance are supposed to be on a joint expedition where they have not only joint interest in the object and purpose of the enterprise, but also have equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance."
“Special Issue No. 19. Do you find from a preponderance of the evidence that the plaintiff, H. M. Pryor, and A. A. Rollins were engaged in a joint enterprise during (the) trip in question? Answer yes or no." Answered: “They were engaged in a joint enterprise.”

The definition of “joint enterprise”, as given by the court, is somewhat confusing, if not ambiguous, occasioned by its phraseology. Beginning with the word “occupants” in the definition, it is a verbatim copy of a definition of joint enterprise, approved by the Commission of Appeals, in El Paso Electric Co. v. Leeper, 60 S.W.2d 187, 189. Assuming that no error was made in copying it into the transcript, it is clear that the court intended to convey the idea that there were two essential elements necessary to be shown to constitute a joint enterprise between the participating parties. They must have a joint interest in the object and purpose of the enterprise and when a vehicle or conveyance is used by them, as in this case, both of the parties must “also [haye] an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.”

It was Special Issue 19 and its answer which prompted the trial court to enter judgment for defendant, even though all other issues were answered favorable to plaintiff. If.all facts are found from competent testimony to constitute the transaction here a joint enterprise between plaintiff and Rollins, as contained in the issue, then the plaintiff could not recover, for the reason the negligence of the driver of the car proximately causing the injury would be imputed to plaintiff; hence his own negligence thus imputed to him would preclude a recovery against defendant. Waggoner v. Simmons, Tex.Civ.App., 117 S.W.2d 553.

In El Paso Electric Co. v. Leeper, supra, the court quoted with approval the rule laid down in 45 C.J., para. 574, page 1020, in this language: “Where persons are engaged in a common or joint enterprise and each has an equal right to direct and control the conduct of the others with respect to acts or omissions which contributed to cause an injury to one of them, the negligence of one of such persons is imputed to each of the others.” See also Rankin et al. v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Lockey et al. v. Packard-Dallas Inc., Tex.Civ.App., 119 S.W.2d 150, writ dismissed.

The record discloses that at about the time this controversy arose, R. S. LeSage was operating an automobile business at Wichita Falls and other places in the State, in the trade or firm name of LeSage Motor Company. At the Wichita Falls place of business, Ray Bryan was defendant’s manager, Mr. Vinson was the credit manager, Homer Quinn was the used car manager and appraiser, and A. A. Rollins and V. R. Akins were salesmen on commissions.

Plaintiff was desirous of trading for a truck with which he could get employment. He owned a 1936 two-door Ford, upon which he owed some money. He made a tentative trade to exchange his equity in the Ford to one Keathly for the latter’s-1932 Chevrolet truck, clear of debt. Plaintiff was to allow Keathly for his truck in the trade as much as he could get from defendant for it, in exchange for a 1934 Chevrolet dump truck. Plaintiff drove the Keathly truck to defendant’s place of business at Wichita Falls and approached salesman A. A. Rollins, whom he knew, and the two discussed a trade. Plaintiff expected to pay some difference in the exchange and would need to arrange that indebtedness with defendant. The Keathly truck (then in plaintiff’s possession) was appraised by defendant’s appraiser, Quinn. The credit part of the deal was passed upon by defendant’s agent, Mr. Vinson. He ascertained that plaintiff had not as yet procured a bill of sale and title papers to the truck, and moreover, that there was an outstanding lien against it.

In furtherance of the proposed deal, Vinson told plaintiff and Rollins there was only one way to do it, and that was for plaintiff and Rollins to go see Keathly and get a bill of sale to plaintiff and a disposition of the debt against the truck. Rollins said to plaintiff, “Let’s go.” Plaintiff and Rollins then left to find Keathly; plaintiff drove the Keathly truck, and Rollins followed in one of defendant’s cars. About fifteen miles from Wichita Falls, at a point in Archer County, plaintiff stopped at the home of his father-in-law, left the Keathly truck and got in the car with Rollins, and the two proceeded to the home of Keathly, at Mineral Wells, where plaintiff procured from Keathly the bill of sale to the truck, with instructions not to deliver it until he turned the truck to the proposed purchaser. Rollins and Keathly discussed the trade in plaintiff’s presence. Plaintiff and Rollins left Mineral Wells at about 7:30 in the evening to return to Wichita Falls. From Mineral Wells to the Fort Worth and Jacks-boro highway the road is crooked and narrow, and Rollins drove at a rather slow rate of speed, but when he reached the highway he increased his speed until at one point he was shown to have been making from 80 to 85 miles per hour. Plaintiff asked him to reduce his speed, because there was an overpass ahead. Rollins replied, “You are scared tonight.” Plaintiff admitted that he was when that overpass was ahead to be crossed. At a point on the highway, about which the testimony is conflicting, but the place is not material here, there was a cattle truck standing upon or adjacent to the pavement and the car in which plaintiff and Rollins were traveling collided with it, resulting in the death of Rollins and severe injuries to plaintiff.

The mission upon which plaintiff and Rollins went was for the purpose of arranging the details of the proposed trade of cars between plaintiff and defendant. If the trade should be consummated, it is fair to assume that each, plaintiff, Rollins and defendant, would profit thereby. The errand was mutually beneficial to all, and that was one element necessary to make it a joint enterprise. But it is contended by plaintiff (appellant here) that the further element, that “they must have equal rights, express or implied, to direct and control the conduct of each other in the operation of the conveyance,” is not shown by any testimony whatever. Before it can be said that plaintiff was injured while engaged in a joint enterprise, each of these elements must be shown by at least some evidence of probative force. We think there is no evidence in the record to support the answer to the issue, when taken in connection with the definition given.

The evidence shows that Vinson, the credit manager of defendant, told them both to go and see Keathly. The necessity for plaintiff to go is explained by the testimony that plaintiff had not yet procured a bill of sale to the Keathly car, and further because Rollins did not know where to find Keathly, and plaintiff did. There is nothing in the record to indicate that Vinson expected them both to go in the car furnished by defendant to Rollins. In fact, plaintiff had the Keathly car on the ground and left Wichita Falls in it, and Rollins left in defendant’s car. Insofar as defendant is concerned, acting through his agent, Vinson, the car was furnished to Rollins, another agent of defendant, and not jointly to the" two. The only disclosed fact in the testimony that could possibly be construed to mean that plaintiff had or attempted to exercise any control over the car or the acts of Rollins in its operation, was plaintiff’s protest to Rollins that he was driving too fast and his request to reduce his speed. We do not think this fact tends to show plaintiffs right or attempt to control the operation of the car in which they were riding, other than for the protection of them both against the inevitable results of Rollins’ fast driving.

In a somewhat similar situation to that above shown, in Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, where the issue was before the court as to whether or not Mrs. Rankin was exercising control over the acts of the driver of her own car, which was in the possession of defendant and was sent by one of its employees to bring Mrs. Rankin to its place of business to pay her bill and procure possession of her car. On the way to defendant’s place of business, Mrs. Rankin complained to the driver on account of his recklessness and insisted that he be more careful. Subsequent to her warning an accident happened and she was injured. The court said, 129 Tex. 396, 105 S.W.2d at page 198: “Her action in making such suggestions or requests [to the driver] does not necessarily prove that she had or claimed the right of control. They doubtless sprang from anxiety for her personal safety.”

It is only when there are pleadings and evidence to support an issue that it should be submitted to the jury. Article 2190, Vernon’s Texas Civil Statutes. If, however, an issue is submitted under the belief by the court that there was evidence to support it and he becomes subsequently convinced that there was no evidence in support of it, and his attention is called to it upon motion for new trial, it becomes his duty to set aside the issue and its answer and thereafter to disregard them in entering judgment. The trial court'should have sustained plaintiff’s motion in this respect, and for his error in failing to do so we must sustain the assignment of error and reverse the cause for another trial.

Although the verdict of the jury, aside from Special Issue 19, is for plaintiff, we are not rendering this cause, for the reason that upon the trial below defendant objected to each and every issue submitted, for various and sundry reasons; but having eventually received a favorable judgment, he has had no opportunity upon this appeal to present his contentions there expressed. To here render a judgment would do violence to his complaints which would form the basis for assignments of error had he been cast 'in the action.

For the reasons shown, the judgment of the trial court is reversed and the cause remanded. '

On Motion for Rehearing

Both parties have filed lengthy and somewhat persuasive motions for rehearing in this case. The plaintiff, Pryor, based upon the next to the last paragraph of our original opinion, insists that ‘the cause should not be remanded for another trial, but sincé defendant, LeSage, had not filed cross assignments of error complaining of the rulings of the court which resulted in a favorable jury finding for plaintiff, they had been waived. There are good authorities for the contention. But the language used by us was occasioned by an oversight on our part, and was improvidently done.

The language used, to which we have referred, is as follows:

“Although the verdict of the jury, as’ide from Special Issue 19, is for plaintiff, we are not rendering this cause, for the reason that upon the trial below defendant objected to every issue submitted, for various and sundry reasons; but having received a favorable judgment, he has had no opportunity upon this appeal to present his contentions there expressed. To here render a judgment would do violence to his complaints which would form the basis for assignments of error had he been cast in the action.”

As stated, we were in error in the quoted paragraph, and we now withdraw the same from the opinion. As a matter of fact, defendant did present in his brief seven cross-assignments of error, saving the points raised, perhaps to meet the very condition that has arisen. It would be more accurate to here say that because of defendant’s objections and exceptions to the charge and other rulings of the court presented by the cross-assignments, we feel impelled to reverse and remand the cause, rather than render judgment for plaintiff. The following authorities support our acts in so doing: Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178; Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031; Sun Oil Co. v. Gunter et al., Tex.Civ.App., 125 S.W.2d 338-340.

Defendant insists that we were wrong in holding that there was no substantial evidence adduced to support the jury verdict in answer to Special Issue 19. He offers many authorities which discuss as many different phases and conditions involved in the doctrine of joint enterprises. We have indicated in the original opinion that - the trial court applied the test of the elements entering into that relationship that was approved in El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187. The facts in the Leeper case were similar in many respects to those under consideration by us. We feel that we have correctly disposed of this case. There are many expressions found in defendant’s motion, in which it is contended that we have held contrary to the undisputed facts developed upon the trial. We do not feel that any worthwhile purpose could be served by further writing at length in an effort to refute such statements. We are sure that none of them were made with any other purpose in view than to express the party’s conception of what is contained in the record. We believe that the ends of justice, as applicable to all parties, will be best subserved by the disposition made by us of this appeal. Both motions are therefore overruled.