author: BLAIR, Justice.

text:
    TEXAS UNEMPLOYMENT COMPENSATION COMMISSION et al. v. METROPOLITAN BUILDING & LOAN ASS’N et al.
    No. 8838.
    Court of Civil Appeals of Texas. Austin.
    April 3, 1940.
    Rehearing Denied April 24, 1940.
    Gerald C.' Mann, Atty. Gen., Geo. W. Barcu's and R. W.- Fairchild, Ásst. Attys, Gen., and Lee G. Williams and James'W. Peavy, both of Austin, for appellants. ..
    A. E. Wood and Dan- Moody, both of Austin, for appellees.
   BLAIR, Justice.

. Appellees, ten building and loan associations, instituted this proceeding to perpetually enjoin and restrain appellants, the Texas Unemployment Compensation Commission and the Attorney General, from by civil suit, criminal prosecution, or otherwise, attempting to enforce the provisions of the Texas Unemployment Compensation Act, Vernon’s Ann.Civ.St. art. 5221b— 1 et seq., against them, upon the ground that each of them was and is now an instrumentality of the United States and as such is by the Texas Unemployment Compensation Act specifically exempted from its provisions. Judgment was for appellees as prayed; hence this appeal.

Appellants make two contentions as follows :

First. That the trial court erred in overruling their general demurrer to the petition for injunction, upon the ground that the court was without jurisdiction to entertain the suit and to grant the injunctive relief, because, if the provisions of the Texas Unemployment Compensation Act is not applicable for the reasons plead, then each of the 'appellees (plaintiffs below) has a plain, adequate, and complete remedy at law against the enforcement of the act, by pleading as defense in any civil, criminal, or other proceeding instituted against them, their exemption from the operation of the act.

Second. That if the trial court did have jurisdiction to entertain the suit, then it erred in holding that each-of the appellees is an instrumentality of the United States, and therefore entitled to exemption from the provisions of the Texas Unemployment Compensation Act, which expressly exempts instrumentalities of the United States from its operation.

In support of their first contention, appellants cite as decisive of the question the cases of Texas Unemployment Compensation Commission v. Campbell, Tex.Civ.App., 119 S.W.2d 388, writ dismissed, and Stephens v. Texas & P. Ry. Co., 100 Tex. 177, 97 S.W. 309. On the other hand, appellees cite as decisive of the jurisdiction of the trial court to entertain the suit for the injunctive relief prayed for, among others, the cases of Rogers v. Daniel Oil & Royalty Co., 130 Tex. 386, 110 S.W.2d 891; Sheppard v. Jacksboro Ref. Co., Tex.Civ.App., 123 S.W.2d 497, writ dismissed; and City of Fort Worth v. Southland Greyhound Lines, Ins., 123 Tex. 13, 67 S.W.2d 361, wherein the Stephens case was distinguished on the question of lien on property to secure the taxes, which distinction is applicable to the instant case.

We have reached the conclusion that the Rogers-Daniel Oil & Royalty Company case by the Supreme Court is decisive of the instant case; and that the question need not be discussed at length. Suffice it to say that in the instant case,, appellees alleged that although they were exempted by the Texas act from its operation, being instrumentalities of the United States, appellants were threatening to enforce the act against them and compel them to pay the contributions or taxes, interest, fines, and penalties authorized by the statute against employers covered by the act; and after setting forth the various contributions or taxes, fines and money-penalties, and other regulatory requirements which the Unemployment Compensation Act required of employers covered by it, appellees alleged as grounds for the-injunction, as follows: * * * “that, unless restrained by' this Court, the Unemployment Compensation Commission and' the Chairman and members thereof will' insist that the Attorney General institute civil and criminal proceedings against the plaintiffs, and each of them, to compel the plaintiffs to pay said money and furnish said reports and submit to said inspection,, regulations and visitations; and the Attorney General, unless restrained by this. Court, will periodically and from time to-time, as liability to payment would arise-under said Chapter 4S2 [Acts 1936, 3d Called Sess.], if Plaintiffs were subject thereto, institute and prosecute civil and. criminal proceedings against these Plaintiffs, and each of them, to compel each of them to submit to the rules and orders of said commission and to make the payments-demanded of them by said Commission-Each o.f plaintiff corporations will be subjected to civil suits for the collection of contributions due under the Texas Unemployment Compensation Act as said payments mature from time to time and remain unpaid, and will further be subjected; to criminal prosecutions for failure to comply with provisions of the Texas Unemployment Compensation Act which requires periodical reports to the Commission from all subject employers.”

It was stipulated that appellants were-threatening to 'and intend to proceed" against appellees both by civil suit andi •criminal proceedings, if they did not comply with the provisions of the act.

Since the statute provides for the payment of the contributions or taxes every 30 days, and authorizes the Commission to instruct the Attorney General to institute civil suits and criminal prosecutions against delinquent employers for contributions or taxes, and for additional penalties, it follows that numerous suits could be filed to collect them; and since the statute provides for various fines and imprisonment penalties, and provides that each day shall constitute a separate offense, it is manifest that the failure to pay the contributions or taxes, and to com-, ply with other regulatory requirements of the Commission, would subject each of the appellees to a multiplicity of suits and to the payment of accumulated penalties in the sum of thousands of dollars and years of imprisonment. These alleged and stipulated facts bring the instant case clearly within the rule announced in the Rogers-Daniel Oil & Royalty Company case, wherein the court say [130 Tex. 386, 110 S.W.2d 895]: “* * * In fact, if the litigation should he drawn out any great length of time a great number of such suits would result. * * * It is certainly the rule in this state that equity will take cognizance of a controversy to determine the rights of all the parties, and grant the relief required to meet the ends of justice in order to prevent a multiplicity of suits. * * * To our minds, if a remedy at law, though otherwise complete and adequate, leads to a multiplicity of suits, that very fact prevents it from being complete and adequate.”

We have reached the conclusion that the trial court erred in holding that appellees are each an instrumentality of the United States within the meaning of that term as used in Section 19(g)(6) of the Texas Unemployment Compensation Act, as amended by Acts 1937, c. 67, § 7, Vernon’s Ann.Civ.St. art. 5221b — 17, the material portion of which reads as follows:

“The term 'employment' shall not include : * * *

“(B) Service performed in the employ ■of any other State or its political subdivisions, or of the United States Government, or of an instrumentality of any other State or States or their political subdivisions or of the United States.”

Seven of the appellees (Metropolitan Building and Loan Association, Abilene Building and Loan Association, Houston Building & Loan Association, Mutual Deposit & Loan Company, San Antonio Building & Loan Association, Dallas Building & Loan Association, and Gibralter Savings & Building Association) are building and loan associatioñs organized under the laws of Texas. Title 24, Articles 852 to 881a — 69, Vernon’s Texas Civ.Sts. Prior to any time in question each of these seven corporations had become and is now a member of the Federal Home Loan Bank of Little Rock, Arkansas, by the provisions of Article 881a — 37, Vernon’s Texas Civil Statutes, and Title 12, Sections 1444, 1422(4), Ch. 11, United States Code Annotated. The Federal Home Loan Bank of Little Rock,- Arkansas, was created under the Federal Home Loan Bank Act, 12 U.S.C.A. § 1421 et seq., p. 962, which act prescribes the eligibility requirements for a state-created building and loan association to become a member of the Federal Home Loan Bank, which membership may be terminated by the action of the Board of Directors of the Federal Home Loan Bank, or by the voluntary withdrawal of the state-created association. The shares of stock of each appellee state-created corporations not held by the United States Government through the Home Owners Loan Corporation is owned by individual shareholders who occupy the same relationship thereto as stockholders of any other corporation with respect to dividends; and the Home Owners Loan Corporation is entitled to the same privileges with respect to the shares owned or held by it.

The remaining three appellee corporations (First Federal Savings & Loan Association of Beaumont, First Federal Savings & Loan Association of San Antonio, and First Federal Savings & Loan Association of Pampa) were organized ánd “automatically” became members of the Federal Home Loan Bank under the provisions of Title 12, Ch. 11 and 12 U.S.C.A. § 1421 et seq., p. 962. These federal associations are created primarily for profit for their shareholders.

Each of the ten appellee corporations is subject to the provisions of subsection (k) of Section 1464, Title 12, United States Code Annotated, which provides that: “When designated for that purpose by the Secretary of the Treasury, any Federal sayings and loan association or member of any Federal Home Loan Bank may be employed as fiscal agent of the Government under such regulations as may be prescribed by said Secretary and shall perform all such reasonable duties as fiscal agent of the Government as may be required of it. Any Federal savings and loan association or member of any Federal Home Loan Bank may act as agent for ,any other instrumentality of the United States, when designated for that purpose by such instrumentality of the United States.”

Neither of the seven appellee state-created corporations has been actually designated as fiscal agent of the United States Government by the Secretary of the Treasurer or by any other instrumentality of the United States Government, but are nevertheless subject to the requirements of the act. The three appellee federal associations have been designated by the Acting Secretary of the Treasury of the United States as fiscal agents of the United States Government, and have performed on behalf of the United States Government some of the duties which may be required of them, consisting mainly in the collection of debts due by individuals to the Home Owners Loan Corporation, an instrumentality of the United States Government. Each of the ten appellee corporations is engaged in the business of selling its investment shares and in lending money upon the securities permitted by law, such money to be used in purchasing and building of homes and other improvements of real property.

It will be again noted that Section 19(g) (6) (B) of the Texas Unemployment Act provides that the term “employment” shall not include “service performed in the employ * * * of the United States Government, or of an instrumentality * * * of the United States”. Likewise, Section 907(c)(5) of the Federal Social Security Act, 42 U.S.C.A. § 1107(c) (5), provides that the term “employment” means any service, “except * * * Service performed in the employ of the United States Government or of an instrumentality of the United States.” By regulatory rule (Reg. 90, Section 206 (5-6), the Internal Revenue Department, charged with the duty of fjollecting the excise taxes imposed oh employers under the Social Security Act, has excepted “services performed by .Federal and State employees”, including any instrumentality of the United States, or any state, “without- distinction between those exercising fuctions of a governmental nature and those exercising functions of proprietary nature”. At the time of the trial of this casé below the Internal Revenue Department had ruled that all state banks, which had become members of the Federal Home Loan Bank or the Federal Reserve System, were instrumentalities of the United States Government and as such were exempt from the payment of the excise taxes imposed on employers under the Federal Social Security Act. The learned trial judge cited this ruling in support of his conclusion that appellees are instrumentalities of the United States Government and as such are exempt from the provisions of the Texas Unemployment Act. However, since the trial below, the courts of three states have held that member state banks of the Federal Home Loan Bank'and member state banks of the Federal Reserve System, which are required under such membership to act in certain matters as depositories and fiscal agents of the Federal Government, are not “instrumentalities” of the United States Government, and are not exempt as “federal instrumentalities” within the meaning of that term as used in the several state unempldyment compensation acts which are identical or similar to ours. Capitol Building & Loan Association v. Kansas Commission of Labor, etc., 148 Kan. 446, 83 P.2d 106, 118 A.L.R. 1212; North Carolina Unemployment Compensation Commission v. Wachovia Bank & T. Co., 215 N.C. 491, 2 S.E.2d 592; Western-Bank & Trust Co. v. Unemployment Compensation Commission of Ohio (Court of Appeals) not designated for publication.

The relationship of state banks,, which have complied with pertinent state- and federal laws and have become members of the Federal Home Loan Bank or the Federal Reserve System, to the Federal Government is entirely parallel with and in every respect similar to the relationship of state-created building and loan, associations, which have complied with pertinent state and federal loans and have become members of the Federal Home-Loan Bank. In consequence, the decision-in the cases above cited, holding that such state banks are not instrumentalities of the Federal Government within the meaning, of the similar unemployment compensation laws of those states are applicable to the instant case, and require the holding that building and loan associations created under state law, do not become “federal instrumentalities” exempt from contributions or taxes imposed on employers by state unemployment compensation laws, merely because such state-created building and loan associations have complied with pertinent state and federal laws and have become members of the Federal Home Loan Bank, or because of their consequent relationship thereto under pertinent state and federal statutes.

We agree with the above-cited decision of the courts of sister states, which by reasonable analogy is decisive of the question that the appellee state-created building and loan associations are not “federal instrumentalities” exempt from the operation of the Texas Unemployment Compensation Act.

We have also reached the conclusion that the three appellee federal associations are not instrumentalities of the United States Government, and are not exempt from the operation of the Texas Unemployment Compensation Act.

These federal associations were organized under Chap. 12 of Title 12 of the U; S. C. A., known as the Home Owners’ Loan Act of 1933, which provides for the creation of a federal agency or instrumentality known as the Home Owners Loan Corporation, and in Section 1464(a) provides for the creation or organization of voluntary Federal Savings and Loan Associations, which shall, upon their organization “automatically” become members of the Federal Home Loan Bank, which was created as a federal agency under Chap. 11, Title 12 of the U. S. C. A., known as the Federa! Home Loan Bank Act. These federal associations are organized primarily for profit of their stockholders, the idea, purpose and character of such federal associations being set forth in Section 1464 (a) of Chap. 12, Title 12 U.S.C.A., as follows : “In order to provide local mutual thrift institutions in which people may invest their funds and in order to provide for the financing of homes, the Board is authorized, under such rules and regulations as it may prescribe, to provide for the organization, incorporation, examination, operation, and regulation of associations to be known as ‘Federal Savings and Loan Associations,’ and to issue charters therefor, giving primary consideration to the best practices of local mutual thrift and home-financing institutions in the United States.”

By no language does either Chapters 11 or 12 of Title 12 U. S. C. A., designate the federal associations as agents or in-strumentalities of the Federal Government, but these statutes merely provide that such federal associations shall, upon organization, “automatically” become members of the Federal Home Loan Bank; and that such membership merely makes them fiscal agents of the Federal Government if and when called upon by federal authorities to act.

It may be also here observed that such federal associations render no different service for the Federal Government from that required of the state-created associations which become members of the Federal Home Loan Bank. In the area in which the federal associations operate, they are competitors of the state-created associations operating in the same area, and both the state and federal associations are organized to do substantially the same thing and for profit to their shareholders. Both the state and the federal associations are voluntary or permissive, and are not wholly owned by the Federal Government, and both enjoy the same incidental privileges and owe the same duties to the Federal Government as members of the Federal Home Loan Bank. And as strong evidence that Congress did not regard the federal associations as instrumentalities of the Federal Government, exempt from state taxation, it specifically authorized states and other taxing authorities to tax them. See Sec. 1464(h), Chap. 12, Title 12 U.S.C.A., which, after providing the manner in which the Federal Government might tax such associations, further provides: “* * * no State, Territorial, county, municipal, or local taxing authority shall impose any tax on such associations or their franchise, capital, reserves, surplus, loans, or income greater than that imposed by such authority on other similar local mutual or cooperative thrift and home financing institutions.”

Thus it is manifest that Congress did not intend _ to make federal savings and loan associations instrumentalities of the Federal Government, exempt from state taxation, but to the contrary expressly authorized states to tax them in the manner provided. The state, in the instant case, is by its Unemployment Compensation Act attempting to do the very thing Congress authorized. That is, it seeks to impose an excise tax upon both state and federal building and loan associations, which excise tax on the federal associations is not “greater than that imposed by such authority on other similar local mutual or cooperative thrift and home financing institutions.”

The basic reasons or grounds for holding the state-created associations not “federal instrumentalities” are applicable to federal associations. That is, both the state and federal associations are organized, owned, and operated for profit of their shareholders. As members of the Federal Home Loan Bank each enjoys the same incidental privileges conferred and each must .perform the duties imposed by the Federal Government. Neither is owned by the Federal Government, and although each does promote governmental policy, that fact does not convert either of these private institutions into an “instrumentality of government” of the United States within the meaning of that term as used in the Texas Unemployment Compensation Act.

In accordance with our above conclusions, the judgment of the trial court is reversed and judgment is here rendered for appellants, that appellees take nothing by their suit, and the perpetual injunction granted by the trial court is dissolved.

Reversed and rendered.


source: Caselaw Access Project

author: BAUGH, Justice.

license: Public Domain

text:
    GENERAL AMERICAN OIL CO. OF TEXAS et al. v. GULF OIL CORPORATION.
    No. 8980.
    Court of Civil Appeals of Texas. Austin.
    April 3, 1940.
    Rehearing Denied May 1, 1940.

      Lasseter, Simpson, Spruiell & Lowry, of Tyler, for appellant General American Oil Co. of Texas.
    Gerald C. Mann, Atty. Gen., and Edgar Cale, Asst. Atty. Gen., for appellant Railroad Commission.
    John E. Green, Jr., and Joe S. Brown, both of Houston, and Stanley Hornsby, of Austin, for appellee.
   BAUGH, Justice.

This is a Rule 37 case. Appeal is from a temporary injunction restraining the General American Oil Company from producing oil from a second well already drilled, under a permit from the Railroad Commission on a 3.63-acre tract of land in the East Texas Oil Field in Rusk County.

The facts in the instant case are inseparably linked with the facts involved in Gulf Oil Corp. v. York, Tex.Civ.App., 134 S.W. 2d 502, writ dis C/J. A map of the tracts of land involved is shown at page 503 of the report of the York case, to which we refer.

It is undisputed that the two tracts shown — that is, the 3.63-acre General American Oil Company tract, as shown on the map referred to, and the 2.64-acre J. C. Hawkins lease adjoining it on the south, were voluntarily subdivided from the larger S. M. Williams tract to the east thereof after the discovery of oil in this area, and that these two tracts were by separate leases subsequently segregated from each other. The now well settled rule that such voluntary subdivisions give no vested right to exceptions to Rule 37 for development of such segregated tracts, therefore applies.

The York case involved a second well on the Hawkins 2.64-acre tract, for which a permit had been granted, thus giving 2 wells on that tract. After the Commission had granted that permit, the General American applied for a second well on its 3.63-acre adjoining tract on the ground that two wells on the Hawkins tract would drain its tract, resulting in confiscation, the only ground on which the permit here involved was sought. On the hearing before the Commission the following express representation by the General American was made: “The occasion for this request is that York and Lawley were recently granted a permit to drill a second well on their 2.64-acre lease adjoining General American’s Sam Williams ‘A’ lease on the south. If this second well is drilled there will he serious drainage from the General American Oil Company’s lease, and it will be necessary to drill a second well on the General American Oil Company lease to prevent confiscation. If the second well on the York and Lawley lease is not drilled because of court action, then the General American Oil Company would not want to drill a second well on its 3.63-acre Sam Williams ‘A’ lease”.

This representation to the Commission manifestly amounts to an admission by the General American that except for the second well on the adjoining 2.64-acre Hawkins lease, no drainage of its tract would occur, and no grounds for its second well as an exception to Rule 37 to prevent confiscation would exist.

The Gulf, owner of the lease to the west of these two tracts, protested the granting of the application here involved, called to the attention of the Commission that a suit was then pending (the York case) to set aside the permit for the second well on the Hawkins lease, and urged that the Commission should not consider that permit in determining the need for the permit here under attack. Obviously the Railroad Commission did consider in granting this permit the second well on the Hawkins lease. Otherwise, under the General American’s own application no grounds would exist for a second well on its own tract. This the Commission was not authorized to do. It is now settled that when suit is filed to set aside such an order of the Commission, jurisdiction over that order is withdrawn from the Commission and vested in the Courts. The Commission then has no jurisdiction over such order until final judgment of the court reviewing it is rendered. The reasons for such a rule are obvious. And if the Commission, while one of its permits is under attack as invalid in a court of competent jurisdiction, can ignore the jurisdiction of the court and grant a second permit, the validity of which admittedly depends upon the validity of the first; and in so doing thereby justify the second permit, the efficacy of judicial review of its orders would in effect be destroyed. This is illustrated in the instant case. If, as contended by appellant, the permit here involved must be sustained on the ground that when it was granted a permit had been granted for a second well on the Hawkins lease (which was subsequently held void in the York case), then for the same reason, after that is done, a second well must then be granted on the Hawkins lease to prevent drainage from that tract, judicial review of such orders would become a travesty. Clearly where the validity of one permit depends wholly upon the validity of another already under attack in a court of competent jurisdiction, the better practice of the Commission would be to withhold action on the second until the validity of the first had been judicially determined.

In addition to what has been said, however, and the undisputed fact that the tract here involved comes within the voluntary subdivision rule, the undisputed evidence shows that when compared with the eight times surrounding adjacent area, whether delineated by circle or triangle, and in which the daily allowable for all wells was substantially the same, these two tracts, that is, the General American and the Hawkins, considered as a unit of the 6.27-acres with two wells thereon, were drilled to a greater density than such surrounding area. The tract thus already enjoyed an equal opportunity, if not a greater one, with surrounding tracts to recover its fair share of oil in place beneath it, and no confiscation resulted. The additional well here involved would, if permitted to produce, give it a density advantage over surrounding tracts. The only evidence on the issue of drainage from this, tract by wells on adjacent surrounding tracts was that such drainage was being compensated by drainage to the well already drilled on the tract.

The question of waste predicated upon “pinching out” of the sand to the east towards the edge of the field was not presented to, nor passed upon by, the Commission in granting said permit, and therefore need not be considered by us on this appeal. Gulf Land Co. v. Atlantic Ref. Co., Tex. Sup., 131 S.W.2d 73, 84; Railroad Comm. v. Gulf Production Co., Tex.Sup., 132 S.W. 2d 254.

Finding no error in the record, the trial court’s judgment is affirmed.

Affirmed.


author: PRICE, Chief Justice.

text:
    RHODIUS v. MILLER.
    No. 3924.
    Court of Civil Appeals of Texas. El Paso.
    March 7, 1940.
    Rehearing Denied March 28, 1940.

      Bruce W. Teagarden, of San Antonio, for appellant.
    E. W. Halbardier and Phil Collins, both of San Antonio, for appellee.
   PRICE, Chief Justice.

Appellee, Carl Miller, instituted this suit against H. U. Rhodius, appellant, in one of the District Courts of Bexar County, Texas. The action was' to recover for personal injuries alleged to have been inflicted on appellee through the negligence, of appellant. The pleadings to the petition of appellee by appellant were entirely defen-' sive and no affirmative relief was sought. The case was terminated by the trial court granting appellee’s motion for a non-suit. Appellant duly excepted to such order and perfected an appeal therefrom, and the case is here for review. From the -recitals of the order sustaining plaintiff’s motion for non-suit and by bill of exceptions thereto the facts clearly appear, and there is no substantial dispute relative thereto between the parties to this appeal.

The trial was to a jury. After appellee had closed his evidence, appellant made a motion that the court instruct a verdict in favor of appellant. The jury was excused, argument was had on the motion, and in open court it was announced by the court that appellant’s motion was sustained. Whereupon appellee made a motion that he be allowed to take a non-suit. This motion was granted by the court. Judgment was entered on appellee’s motion reciting the facts substantially as narrated above.

We are met at the threshold of this case by a suggestion by appellee that this court is without jurisdiction to pass on this appeal; the ground being that the judgment appealed from is not a final judgment. Cited in support is the case of Thomason v. Sherrill, Tex.Civ.App., 4 S.W.2d 304, Id., 118 Tex. 44, 10 S.W.2d 687. In that case it was held by the Supreme Court the ordet appealed from was an order refusing the motion of defendant to reinstate what he alleged was a cross action seeking affirmative relief against plaintiff. The Supreme Court held that such an order was a judgment over which there was appellate jurisdiction; but that in the case under consideration there was no cross action pleaded by the defendant. Hence the writ of error from the action of the Court of Appeals in dismissing the appeal was dismissed.

In that case it is to be noted that the right of the plaintiff to take a non-suit was not involved. The question really was the effect of plaintiff’s taking a non-suit on the alleged cross action of the defendant. If defendant’s suit had been dismissed it was not through his voluntary act. Now the right of a plaintiff to appeal from an order refusing to reinstate an involuntary non-suit seems well established. Benedict v. Chicago, R. I. P. Ry. Co., Tex.Civ.App., 91 S.W. 811.

However, the question here is not precisely the same as in the cases cited by appellant in support of the jurisdiction here. The question is, as stated by Judge Funder-burk in Thomason v. Sherrill, supra, Does the judgment dispose of the whole subject matter in controversy? In the cases cited by appellant as a rule there was no question as to the finality of the judgment. The court, in most of the cases, if in not all, entered judgment in favor of the defendant. There is no question but what the involuntary dismissal of a proceeding where affirmative relief is sought, whether asserted by the plaintiff or by the defendant, is a final judgment. Thomason v. Sherrill, supra; Benedict v. Chicago, R. I. P. Ry. Co., supra.

There may be some analogy to an order granting a voluntary non-suit, where under the facts a judgment for defendant is demanded, and the cases where the trial court erroneously declares a mistrial on the ground that the verdict rendered was insufficient to support the rendition of a judgment. In these cases mandamus is warranted by the appellate court on two grounds: (1) that the duty of rendering judgmént on a verdict is a ministerial duty, and (2) for a refusal to so render judgment there is no remedy by appeal, this because there is no final judgment from which to appeal. Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296.

However, we think that it is unnecessary to further discuss or decide the question of jurisdiction. In our opinion, the action taken was clearly within the power of the District Judge. It was a discretionary power and not subject to review.

It seems to be the law that a motion for a voluntary non-suit comes too late after judgment has been rendered by the court sustaining the motion of defendant to instruct a verdict in his favor. Article 2182, R.S.; Texas Electric Ry. v. Cox. Tex.Com.App., 49 S.W.2d 725, 89 A.L.R. 11.

It is well settled that the trial'court has plenary jurisdiction over its judgments during the term at which they are entered. This power may be exercised by the court on his own motion. 25 Tex.Jur. p. 520, sect. 127, p. 545, sects. 150, 151; Handy v. Olney Oil & Refining Co., Tex.Civ.App., 68 S.W.2d 313, writ refused.

We think the action of the trial court in sustaining plaintiff’s motion for a voluntary non-suit was tantamount to setting aside the previous order sustaining defendant’s motion to instruct the jury to find for the defendant. It might have been more regular for the court to have expressly set aside the order on'the motion to instruct. There unquestionably was the power to do this. The power to grant the voluntary non-suit was perhaps conditioned on the setting aside of the previous judgment rendered. The rendition of the judgment sustaining defendant’s motion is only evidenced by recitals in the judgment sustaining appellee’s motion for a non-suit and bills of exceptions taken to the court’s action at the time.

We think there was no error in the trial court’s action.

Judgment affirmed.


text:
    GRIFFIN et al. v. PHILLIPS PETROLEUM CO.
    No. 3928.
    Court of Civil Appeals of Texas. El Paso.
    March 14, 1940.
    Rehearing Denied April 11, 1940.
    Second Motion for Rehearing Denied April 25, 1940.

      Gordon Griffin and B. D. Kimbrough, both of McAllen, for appellants.
    Don Emery and R. L. Foster, both of Bartlesville, OkL, E. H. Foster, of Amarillo, and Hill, Greer & Franki, of Mission, for appellee.
   PRICE, Chief Justice.

This case was filed in the District Court of Hidalgo County by Griffin and Kim-brough, as plaintiffs (appellants here), against Phillips Petroleum Company, as defendant (appellee here). Appellants sought to recover the sum of $275 for services rendered appellee in connection with the obtaining for appellee of an oil and gas lease from E. M. Card and wife on certain land in Hidalgo County. Issue was joined in the case and the trial was before the court without a jury. Judgment was for the defendant and the plaintiffs there duly perfected appeal.

There is here no question raised on the pleadings, and it is unnecessary to summarize same. Suffice it to say, that all questions discussed herein are issues under the pleadings. On motion of appellants the court filed findings of fact and conclusions of law. These findings sufficiently state the nature and result of the case, and' are here copied.

“Findings of Fact.
“I find that for several days prior to October 25, 1938, the Phillips Petroleum Company acting by and through its agent and representative, J. H. McLaren, carried on negotiations with Mr. E. M. Card and his wife, Birdie Barrett Card, concerning the lease of the Card homestead'for oil and gas exploration to said company; and that Mr. B. D. Kimbrough, one of the plaintiffs, being a member of the firm of Griffin & Kimbrough, engaged in the practice of law in McAllen, Texas, acted as counselor and legal adviser to Mrs. Birdie Barrett Card during such negotiations.
“On or about the 25th day of October, 1938, during such negotiations, the said McLaren made certain definite proposals concerning the terms and compensation of certain proposed lease, which proposals were not acceptable to said Birdie Barrett Card; and that Mr. Kimbrough was absent from the county during the 26th of October, but was present in the county in the early morning and throughout the .day of the 27th of October, and that during his absence the said McLaren had sought to continue the negotiations with said Cards, and particularly with Mrs. Card, but that she had demurred and refused to carry on the negotiations in the absence of her attorney, Mr. Kimbrough; and in the early morning of the 27th, Mr. McLaren had a telephone conversation with Mr. Kim-brough wherein McLaren sought to carry on the negotiations; and, at which time, Mr. Kimbrough evidenced a reluctance to carry on the negotiations further, stating as his reasons therefor that if he had to spend further time on the matter, his client would not be able to pay him a fee commensurate with his services and either he would be inadequately compensated therefor, or his client would be charged more than she was able to pay; whereupon, said McLaren stated in substance to said Kimbrough that if they could obtain a lease on the property in question, his company would be willing to pay a commission to Mr. Kimbrough; and, thereafter, during the same day, the negotiations went on between the said Mc-Laren as representative of the company, and Mr. and Mrs. Card, acting by and with the advice of their counsel, Mr. Kimbrough, at Mr. Kimbrough’s office, and a lease was executed and delivered by the Cards in favor of the company for a consideration considerably larger than had been theretofore offered by the company. And during the final negotiations, when the Cards demanded a larger cash bonus and oil payments, the said McLaren, in the presence of Mr. Kimbrough, called up a representative' of the Company at Mission, Texas, and obtained permission to meet the more onerous terms.
“J. H. McLaren was employed by the Phillips Petrpleum Company in the capacity of what is generally known as a land man, and his compensation was by a salary-; and it was his duty to negotiate with land owners for the leasing of their properties for oil and gas exploration. As to what limits may have been, placed upon his authority, the record is silent; but the fact that he frequently referred matters back to other representatives of the company for approval would indicate that he had limitations on his authority.
"Before the consummation of the lease, Mr. Kimbrough explained to Mrs. Card that the company had offered to pay him a commission on the lease and informed her that in consideration thereof he was charging her a smaller fee for his services than he would otherwise have charged. Mr. Card was not apprized of this matter until this suit was brought, but stated that, while he would not approve of an attorney representing’ him receiving compensation from adverse parties, that, however, where the matter was fully understood by all parties, he would not object to a lessee paying part of the compensation due his attorney where it was, in effect, merely paid and received in the nature of additional consideration for the lease.”
"Conclusions of Law. .
“(First) The undertaking on the part of Mr. Kimbrough to assist in bringing the parties to a final agreement, and to accept a commission from the company therefor, after making a full disclosure to his client whom he continued to represent, was not contrary to public policy.
“(Second) The offer made by McLaren to Kimbrough to pay a commission on the lease was not expressly made as an additional inducement or increase in bonus to the lessors, but was offered more in the nature of an ordinary brokerage; however, it will not be presumed that the same was made corruptly, but rather it was made on the assumption that a full disclosure thereof would be made by Mr. Kimbrough to his clients, which, in fact Mr. Kimbrough did, as hereinbefore stated.
“(Third) Mr. McLaren was. without authority to employ brokers on a commission basis to do the very thing which he was employed on a salary basis to accomplish for the company; and the company, by employing Mr. McLaren on a salary basis to represent' it in carrying on negotiations for oil and gas leases with land owners, did not thereby empower or authorize said McLaren to delegate his duties to others, and did not authorize.or empower the said McLaren to employ brokers or attorneys to represent the company on a commission basis to accdmplish that which the company was seeking to achieve through a salaried agent.”

In our opinion, these findings are sustained by the evidence, and we adopt same as our own. Supplementary thereto we find that under the terms of the lease negotiated Mr. and Mrs. Card received as bonus the sum of $2,758 in cash and were to receive $2,758 out of the production of oil on the property in question.

Determinative of this case is a correct solution of the issue as to whether McLaren had actual or implied authority from ap-pellee to employ appellants. It can make little difference whether he employed them to aid appellee in acquiring the lease or as its attorneys.

Under the findings McLaren was a salaried field agent of appellee employed in soliciting oil and gas leases for appel-lee on terms it authorized. His superiors at the times relevant herein had established a temporary office at Mission, about eight or ten miles distant from McAllen, where the transaction involved here took place. There, is no evidence as-to the ratification by appellee of McLaren’s action in employing appellants.

It is established by the evidence that Mc-Laren was the general agent of appellee in the sense that he was continuously employed to perform a series of transactions with various persons. As has been said, he was employed to solicit and obtain oil and gas leases for appellee in the neighborhood involved herein. If he had authority to employ agents or attorneys for appellee to aid him in the discharge of his agency it must be inferred from the nature and character of the particular agency involved herein. There is no evidence that appellee had held him out as possessing authority beyond that which he actually did possess or such as should be reasonably inferred from his agency.

There is no evidence that at any time prior to the incident in question that Mc-Laren had ever employed an attorney for appellee. It is not in evidence that it was usual and customary for agents such as McLaren to do this for their principal.

Unless it appears from a clear preponderance of the evidence that McLaren had actual or implied authority to employ appellants as attorneys for appellee to draw a lease acceptable to appellee and Mr. and Mrs. Card and did so employ appellants, the judgment of the trial court should be affirmed.

The general principles involved are clearly and forcibly stated by Judge Wheeler in the case of McAlpin v. Cassidy, 17 Tex. 449, 450. It is there said, “Every agency carries with it, or includes in it, as an incident, all the powers which are necessary, or proper, or usual, as means to effectuate the purposes for which it was created, and none other. In this respect there is no distinction, whether the authority given to an agent is general or special, express or implied.” It does not follow from the fact that McLaren was employed to transact certain business for appellee that he had the power to employ another to aid him in the transaction of the same business. Lipscomb et al. v. Houston & T. C. Ry. Co., 95 Tex. 5, 64 S.W. 923, 55 L.R.A. 869, 93 Am. St. Rep. 804.

The burden of one dealing with an agent is to ascertain at his peril the nature and scope of the authority of such agent. Galveston, H. & S. A. Ry. Co. v. Allen, 42 Tex.Civ.App. 576, 94 S.W. 417, writ refused; Dawson & Young v. Nunn & Latham, Tex.Civ.App., 200 S.W. 603; United States Cold Storage Co. v. Richards, Tex.Civ.App., 99 S.W.2d 697.

We are of the opinion that from the nature and Character of the acts performed by the agent McLaren for the ap-pellee it is not to be conclusively inferred that he had the authority to employ an attorney for appellee to assist him.

In this case, to say the least, we think it was an issue of fact. Further, we are of the opinion that under the evidence no such emergency existed as would enlarge the authority of the agent McLaren to bind ap-pellee on the contract of employment here involved. His situation shows that his principal was easy of contact.

The judgment of the trial court is affirmed.

On Rehearing.

In the motion for rehearing appellants urge that there was error in our holding that it was incumbent upon plaintiffs, in order to recover, to establish that the employment of plaintiffs was in the actual or implied authority of defendant’s agent. In substance, the contention is that if it was in the apparent 'authority of such agent, that appellants would have been entitled to recover. Suffice it to say, that the' issue of apparent authority was not in the case. Apparent or ostensible authority is founded on estoppel. Continental Oil Co. v. Baxter, Tex.Civ.App., 59 S.W.2d 463.

In the case last cited, in our opinion, Judge Funderburk distinguishes and explains .the case of Cox, Inc. v. Humble Oil & Refining Co., Tex.Com.App., 16 S.W.2d 285. If plaintiffs relied -on the apparent authority of defendant’s agent, it was incumbent upon them to plead same. Continental Oil Co. v. Baxter, supra.

There is an absence of any such allegation in plaintiffs’ petition.

Motion overruled.


author: CODY, Justice.

text:
    PETERS et al. v. LEREW et al.
    No. 10940.
    Court of Civil Appeals of Texas. Galveston.
    March 21, 1940.
    Rehearing Denied April 25, 1940.

      Carlos B. Masterson, of Angleton, and W. Noble Carl, Stewart & DeLange, and Albert J. DeLange, all of Houston, for appellants.
    Hardway, Woodruff & Austin, of Houston, and A. R. Rucks and Robert M. Lyles, both of Angleton, for appellees.
   CODY, Justice.

The Court instructed á verdict against plaintiffs, who have appealed.

The suit was brought by appellants against M. Lerew and wife, and against E. S. Loomis and John Owens to recover 1,117.71 acres of land in Brazoria County. The suit, in addition to being brought in formal trespass to try title, was brought by appellants to set aside a deed given by them to M. Lerew on January 3, 1934. Appellants alleged, as grounds to set aside such deed and for equitable relief: That in the middle of the year 1933 one Barth and one Sallee were acting as real estate agents for appellants; and that these two real estate agents associated with themselves one John Owen; and that John Owen asso-cited with himself as a real estate agent E. S. Loomis; and that E. S. Loomis later associated with himself M. Lerew, to whom appellants executed the deed of January 3, 1934, aforesaid; and that each of said real estate agents became the agent of appellants to sell the land aforesaid, and owed appellants the good faith attached to such relationship. Appellants further alleged that Lerew, Loomis and Owen, while acting as apellants’ agents, learned that the land was greatly more valuable than $15 an acre, the asking 'price, and learned of oil, gas and mineral leasing and developments likely to occur from which property would be worth greatly in. excess of $15 per acre, but they corruptly concealed such knowledge from appellants. Appellants further allege Lerew, Loomis and Owen, while appellants’ agents, conspired to obtain the property for themselves; that they made no good faith effort to sell such land, but misled appellants into believing the land was not salable at the asking price, and entered into this fraudulent scheme: Lerew was to act as purchaser and obtain the property at an inadequate price, and to give merely his promise to pay therefor, which promise was in fact worthless ; that Owen and Loomis, though purporting to be appellants’ agents, were to have an interest in the land when conveyed to Lerew and the profits derived from a re-sale thereof; and that Lerew, Owen ■ and Loomis were to induce appellants to think the property could not be sold to others and induce such sale to be made to Le-rew. Appellants then • alleged the consummation of such fraudulent scheme and conspiracy, and that contemporaneously with the execution of the deed to Lerew, he gave a deed of trust to secure his notes, and entered into a written agreement to cultivate 150 acres of the land in cotton, and 50 acres in corn. Appellants ask for rescission, etc.

We believe that no serious contention is made that Loomis and Owen were hostile parties to appellants at the trial, except in form, and, as they have not appeared, their pleadings will not be given.

Appellees, Lerew and wife, answered by general demurrer, special exceptions, general denial, and plea of not guilty, and specially denied conspiracy and fraud, and that Loomis or Owen had any interest in the property or income to be derived from it, and that appellant Peters relied on his own judgment and knowledge of land; and that no one had any knowledge of oil value at the time; and that the sale was satisfactory to appellants; and pleaded a ratification ; and further pleaded the two and four year statutes of limitation, and by way of cross-action sued in statutory trespass to try title to recover title and possession of the land.

Appellants then answered the Lerew pleading with a general demurrer, special exceptions, and specially denied any knowledge of the facts giving a right to rescind at the time they accepted payments, or any knowledge of oil possibilities, and pled reliance upon representations of Lerew, Loomis and Owen. Appellants pleaded not guilty to the Lerew’s trespass to try title.

At the conclusion of the trial, the court, „ in response to a motion by the Lerews, gave a peremptory instruction in their favor, and judgment was accordingly rendered in favor of the Lerews, and against all parties; and Peters and wife appeal.

The sole question is, was there any evidence that supported the allegations of appellants’ petition to go to the jury.

In late spring of 1933 Mrs. Peters took this land in cancellation of notes she held against it after Peters had gone over and inspected it. He advertised this land for sale for about a month in one of the Houston papers in May for $14 an acre, and in September for $13.50 per acre. He was seeking to raise money to help a bank in which his wife was interested. In the fall he saw Barth, who is a real estate agent at Alvin, and who takes applications for Federal farm loans. Peters spoke to Barth about a loan of $10,000 on the land, and they went out to look-at it, and Barth. thought it was worth from $12 to $15 per acre, but it was not in cultivation, and was not eligible for a loan. Peters told Barth that he wanted to sell the land and asked him to send him any prospects; he did not give Barth any right to sell the land, and did not put any price on the land at which he would sell it. Barth understood that if he sent Peters a prospect and Peters sold the land to the prospect that Barth would be paid a commission, but Peters never agreed to pay any commission. Barth told both Sallee and Owen, who were real estate agents at Alvin, about the land, and it was understood that if either of them got a prospect who bought the land, that he would split the commission with Barth. Owen told Loom is about the land being for sale and it was understood that if Loomis should get a prospect who bought the land that Owen would split his part of the commission with Loomis. Loomis told Lerew about the land being for sale and ‘‘enlisted” his aid to sell it; if Lerew should produce a prospect who would purchase the land, he was to share' in the commission. In short, the most that Peters ever asked of Barth (from whom the rights to a commission of the others was considered as being derived, except as hereinafter indicated) was to see if he (Barth) could get somebody interested in the land, and if so, to submit the price or proposition to Peters and he would consider it. Had Barth produced a prospect and Peters had sold the land to him, the evidence is undoubtedly sufficient to support a judgment in Barth’s favor for a commission. But, as stated in T. A. Hill & Son v. Patton & Schwartz, Tex.Civ.App., 160 S.W. 1155, 1157: “It is not true that every ordinary real estate broker with whom land is listed for sale occupies the position of trust and confidence, upon whom rests the duty to obtain the highest price obtainable for his principal’s land.” (Citing authorities.) “If the duty of the broker is that of mere middleman to bring the parties, together that they may treat with each other and make their own bargain, the posi-tin of the broker is in no wise improper or inconsistent.” (Citing authorities.) “There is no dispute here that the employment of appellees by Dr. Dew was simply to receive and submit to him cash offers for his property. They were not vested with any discretion of any nature, and their only duty was to advise the land owner of possible opportunities to sell.”

In Johnson v. Edrington, Tex.Civ.App., 53 S.W.2d 69, 72, the court said: “An ordinary real estate broker with whom land is listed for sale does not necessarily occupy such a position of trust and confidence as to authorize him to offer price and terms of sale nor impose upon him the duty of actively participating in such negotiations. If the duty of a broker is that of a mere middleman to bring the parties together that they may treat with each other and make their own bargain, his representing both parties is in no 'wise improper or inconsistent. Allen v. Roach (Tex.Com.App.) 292 S.W. 195, 197, and authorities there cited; T. A. Hill & Son v. Patton & Schwartz (Tex.Civ.App.) 160 S.W. 1155, 1157, par. 5.”

It is clear to us that Barth, and the real estate agents who were acting under the “listing” given Barth, were but middlemen under the facts of this case, and did not occupy a fiduciary relationship to Peters.

Peters met Lerew on December 4, 1933, at 1311 Dallas, over in Houston, at a building belonging to John. L. Jones, which had been listed with Lerew for sale. Peters understood that Lerew was acting for Mr. Jones, and Peters later phoned to Mr. Jones directly to see if a deal whereby the land here involved was to be traded for the Jones’ building, together with $3,500.00 net to Peters, could be arranged. Peters was under the impression that Loomis was with Lerew at the time he first met Lerew, hut it is clear from Loomis’ testimony that this was an error, and Loomis did not meet Peters until after the land had been deeded to Lerew. In fact it is undisputed that after this meeting of De--cember 4, 1933, Lerew told Loomis that he had met the man to whom the land here involved belonged. As Peters had never even heard of Lerew up until the meeting of December 4, 1933, at which time he knew that Lerew was acting for Jones, we suppose that appellants base their claim to a right to have the deed set aside on matters which occurred after December 4th. Peters testified as follows :

“Q. Up to the time that you came to town (Houston) on this day, about the middle of December of 1933, that Jones deal was still pending, wasn’t it, so far as you were concerned? A. As far as I was concerned. . .”
“Q. Mr. Peters, up until the time that you came down here on that day, about the middle of December, you were still considering the Dallas Avenue deal, weren’t you? A. Yes, sir.”

Peters testified that it was after he wrote a letter dated December IS, that he and Lerew began talking about Lerew buying the land at a meeting they had at the Texas State Hotel (in Houston). So long as he was dealing with' Lerew on the basis that Lerew was representing Jones, we take it that he does not contend that Lerew was occupying a fiduciary relation to him. On December 11, Lerew wrote to Peters asking for an exclusive contract to sell the land here involved ; on the next day Peters answered, expressing appreciation' that Le-rew was trying to put through the Jones trade, but refused to give any exclusive contract, but wrote “I will be glad to consider any offer you may submit.” By letter dated December 15, Peters wrote Lerew, “* * * if W. L. Russell takes this matter up with me, I will price the land at $15.00 per acre”, and expressed the hope that Lerew would be hble to sell the land.

Peters testified:

‘T don’t know just what prompted Mr. Lerew to write me a letter, pricing it at that figure * * * I don’t remember that I ever told him any price; he might have arrived at that price, in that he knew about what the land stood me, how much money I had in it.”
“Q. Did you feel that you were obligated to take the price of $15.00 an acre for it, when you wrote the letter? A. I wouldn’t have, at a later date.”
“Q. What do you mean by ‘at a later date’? A. Later than the letter.”
“Q. You mean two days later? A. Well, I wouldn’t have felt obligated two days later, or even that day — I wouldn’t have necessarily have felt obligated.”

It was after the letter dated December 15 from Peters to Lerew, and which we have just been referring to, that Peters saw Lerew at the Texas State Hotel. While the parties don’t agree as to who suggested that Lerew buy the land himself, we must adopt Peters’ version in view of the instructed verdict against him. According to this version Lerew told Peters that the land was located bad and was low seepage land (and we don’t understand that it is claimed this was not true) and that he, Lerew, hadn’t been able to sell it, though he had tried, and then proposed buying the land himself. About December 19, Lerew wrote Peters that he was enclosing a form of contract of sale. This contract called for a purchase at $16,500.00 payable in five equal installments, and provides for brokerage fees of 5% to be paid to Owen and Loomis when payments were made, and contains an obligation that Lerew cultivate 200 acres, farming obligations to cease after payment of first note. Peters’ attorney, however, required that the transaction be handled as a conveyance, and not as a contract for a deed. And a deed was accordingly executed as of January 3, 1934. It was provided that any bonus received from leasing the land for oil should be applied on the first note.

For the purpose of passing on the court’s action in instructing a verdict against appellants we must take as true (Needham v. American National Ins. Co., Tex.Civ.App., 97 S.W.2d 1016; Bragg v. Houston Electric Co., Tex.Civ.App., 264 S.W. 245) the following: In December, Lerew told Loomis that the property was getting too well known among brokers, and that they ought to get the property in such shape that they could control it. The plan was that Lerew was to make a deal with Peters, taking title to the land in his name, but for the benefit of Owen, Lerew and Loomis. The property was to he kept tied up for a year, during which time each of the three were to try to find a buyer about the $15 per acre sale price, and were to split the profits from any sale three ways; that they believed the land was worth more than $15 per acre. If, however, Lerew was required to pay the notes he was to execute, the other two would lose any right to participate. It is not disputed that Lerew, Owen and Loomis signed an agreement whereby the commission was to be divided so that Owen would get half of it (out of which he was to satisfy ally real estate men that had any claims to a commission that were entitled thereto under his dealings) and the other half was to go to Lerew and Loomis. Peters knew nothing of this. And when the notes were paid off half of the 5% commission did go to Owen, and the other half to Loomis (Lerew waiving his right thereto, as Loomis badly needed it). We believe also that there is some evidence that after the sale to Lerew was agreed on, and before it was consummated, that Peters probably saw both Owen and Loomis, and that they urged the sale to Lerew he made, as the best thing for him.

It should be added that there is some evidence that Lerew told Peters that the land had no leasing value. This was before the Hastings’ Field discovery well was brought in. The land, however, was in plain view of the derricks of another producing oil field about two and a half miles distant therefrom. And Peters knew that the land had been under lease, and his deed to Lerew provided that if the land was leased the bonus should be applied on the payment of the first note. And Mr. and Mrs. Peters, in so far as the oil companies are concerned, ratified the leases subsequently placed thereon.

It is in evidence that Mr. and Mrs. Peters never learned of the agreement by which Lerew was entitled to share in the commission until in 1938, when a well was brought in on the property; and, of course, never learned, until then, of the alleged agreement of Lerew, Owen and Loomis to tie the property up to get it off the market, and sell it and divide the profits, which Lerew contends, of course, was never made.

Even if Owen and Loomis occupied the usual fiduciary relationship of a real estate broker, their agreement to share the commission with the buyer could in no way be injurious to the Peters, nor constitute any ground to set aside the sale, even though it was unknown to the Peters. Chase v. Veal, 83 Tex. 333, 18 S.W. 597; La Beaume v. Smith et al., Tex.Civ.App., 247 S.W. 623; Smith v. Irwin, Tex.Civ.App., 7 S.W.2d 926. Peters, however, testified that he relied on Barth et al., including Le-rew and Loomis and Owen, as to what they told him about the value of the land, etc., It is clear to us that Lerew at no time ever became more than a mere middleman. And he became no more than a mere middleman because Peters declined to accept him in any other capacity. The most that Peters ever agreed to was to consider any prospect that Le-rew might send him or proposition that he might submit to him. Having therefore very . carefully preserved his own complete freedom from any relationship which imposed any kind of obligations against himself, he likewise left Lerew free from any legal obligations; for if Peters was careful to give Lerew no rights against himself, we fail to see how he could have acquired any rights against Lerew. It was impossible for Lerew to produce a purchaser ready, able and willing to buy the land at terms fixed by Peters because he gave none. It is idle to urge the refusal to give Lerew any terms on which Peters would sell to a purchaser made it the duty of Le-rew to get a purchaser who would buy on the best possible terms. The only conclusion that can be drawn from such a refusal is that Peters declined the use of the services or judgment of Lerew as a broker, but would accept a buyer produced by Lerew if the buyer and the proppsition were approved by his own judgment. There was nothing in the relationship existing between Lerew and Peters that disabled Lerew from dealing with Peters as any other prospect he might have sent Peters could have dealt.

We have concluded, however, that Owen and Loomis ceased to be mere middlemen and became brokers pending the sale to Lerew. For, as we understand the evidence, it is not disputed that about December 19, 1933, it was agreed that Lerew was an acceptable purchaser upon terms agreed to by Peters, and the liability of Peters to Owen and Loomis for a commission of five per cent, payable out of the notes when paid, was agreed to. The contract of sale was not enforceable because of the statute of frauds. But Peters could not have defeated his liability to Loomis and Owen for a commission by arbitrarily taking refuge behind the statute of frauds, and repudiating the contract of sale. As we understand the evidence, Lerew was accepted as a purchaser of the land by Peters, upon terms acceptable to Peters, upon the 19th or 20th of December, 1933, and the deed was not thereafter executed until January 3, 1934. As we understand the law, if a land owner has rendered it impossible for himself to arbitrarily repudiate a sale of land without liability to an agent for commission earned, then such an agent is necessarily more than a mere middleman. Since such an agent is entitled to the same rights against the vendor as is an ordinary land broker, he must owe his principal the same duties as does an ordinary land broker.

If Loomis and Owen were the agents of Peters, it was their duty to make a full disclosure to their principal. If there was an oral agreement whereby Lerew was to give Loomis and Owen an interest in the land, or rather the profits, if the land were, sold within a year— and Loomis and Owen were Peters’ agents — it was a fraud not to disclose the same to Peters.

It is true that the written agreement between Lerew, Owen and Loomis excludes the possibility of the existence of any such oral agreement as that testified to by Loomis. But Peters is not a party to such written agreement, and is not asserting any rights thereunder. So it was not error for the court to admit evidence of such oral agreement in favor of Peters, but exclude it as against the claim of Loomis and those claiming under Owen. ‘ The rule that parol evidence shall not be received to alter or contradict a written instrument applies to controversies between parties to it, and those claiming under them, but not to strangers. Hughes v. Sandal, 25 Tex. 162. And since the Peters testified they knew nothing of any additional compensation which Loomis and Owen were to receive until a few days before suit was brought in 1938, their acceptance of payment of the notes before they heard of such additional compensation could not constitute a ratification.

As there was some evidence that Loomis and Owen had agreed to accept additional compensation from Lerew which it was a fraud on their part against their principal not to disclose, it was error peremptorily to instruct a verdict in favor of appellees. The cause is reversed and remanded for a new trial.

Reversed and remanded.


author: WALTHALL, Justice.

text:
    DUNCAN COFFEE CO. v. WILSON.
    No. 3964.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 29, 1940.
    Rehearing Denied March 28, 1940.

      S. H. Peak, of Houston, for appellant.
    A. T. Folsom, of Wink, for appellee.
   WALTHALL, Justice.

This appeal is from an interlocutory order of the County Court of Winkler County granting a temporary writ of injunction. The pertinent facts are substantially as follows:

On May 18, 1939, appellant filed its verified petition in the Harris County Court at Law seeking judgment against appellee, C. E. Wilson, and Hugh Sloan, as partners, alleging a written promise' by them as a partnership to pay appellant at Harris County, Texas, a debt due within the jurisdiction of said court, for merchandise sold by appellant to such partnership and delivered to the partnership at .stores in Wink, Texas, and Hobbs, New Mexico. Sloan timely filed a sworn answer, and appellee timely filed his plea of privilege. Appellant timely filed its plea controverting said plea of privilege. The plea of privilege was duly set for hearing.

Subsequent to the setting of the plea of privilege, but prior to the hearing, appellee filed his application for temporary injunction with the County Court of Winkler County seeking to enjoin appellant and another suing in Denton County, Texas, from prosecuting or taking any further action in the trial or prosecution of said cause then pending in the Harris County Court at Law. The County Judge of Winkler County, in whose court the application for injunction was filed, directed that the County Clerk issue the writ on August 3, 1939, enjoining appellant and others as prayed for, as above stated. The injunction was issued without notice or hearing.

Appellant duly answered by sworn denial of every allegation of appellee’s petition and duly filed its motion to dissolve the temporary injunction. The court overruled appellant’s motion, to which appellant excepted and prosecutes this appeal.

Appellant filed assignments of error and as germane thereto submits six propositions each suggesting error- to the action of the court in issuing the ex parte temporary injunction upon application for injunctive relief to stay proceedings pending in Harris County Court at Law after -the latter court had acquired jurisdiction of the subject matter and the -parties, without making the writ returnable to the Harris County court where the proceedings enjoined were pending. Without stating .the- several grounds of error and discussing them severally, they submit: The issuance of the writ is fundamental error; error in issuing the writ upon application seeking only the stay of such proceedings and asking no consolidation, transfer, cross action or other relief, and alleging no fraud; to stay the proceedings without affirmative showing that petitioner had no legal remedy or defense to such pending proceedings; without clear and definite showing that the Harris County court had no jurisdiction of the parties or subject matter; upon application showing only conclusions and matters available as defenses or in abatement or estoppel of pending proceedings.

We will first discuss appellant’s first proposition. , The Harris County court had acquired jurisdiction of the subject matter of the suit and of the parties before any proceedings whatever were filed in the Winkler County court, and the record shows the suit was pending in the Harris County court at the time the injunction was issued. Appellee’s petition and the injunction writ recite that appellant and the parties defendant in the suit have entered into an unlawful agreement for the prosecution of certain suits against him in Harris and Denton Counties. The Winkler County court thereupon issued the temporary injunction prayed for restraining; appellant and other defendants from further prosecuting or taking any further action in the suits, other than to dismiss same until' further order of the Winkler County court, or hearing thereof and set the hearing for the time stated and the place for the hearing in Winkler County, and made the injunction returnable at that time and place.

Article 4656 of the Revised Civil Statutes provides that writs of injunction granted to stay proceedings in a suit or executions on a judgrpent shall be returnable to and tried in the court where such is pending. While the statute makes other provisions under conditions and circumstances other than here stated, the above is the only statutory provision pertinent to the facts in this record, as the case had not reached a hearing before the appeal.

The question presented has often been before the courts, and, as far as we have observed, the courts have uniformly held that the writ of injunction, under circumstances shown here, must be returnable to and tried in the court where the suit is pending. There is no suggestion except as found in appellee’s side of the controversy, which we will later state, that the Harris County court was without jurisdiction to hear the case and render judgment, in the event the court should overrule appellee's plea of privilege. Brunson v. Donald, Tex. Civ.App., 3 S.W.2d 596, writ refused; Mann v. Pace, Tex. Civ.App., 58 S.W.2d 1070; Broocks v. Lee, 50 Tex.Civ.App. 604, 110 S.W. 756, writ refused; Switzer v. Smith, Tex.Com.App., 300 S.W. 31, 68 A. L.R. 377, in which the court refers to Article 4656 and says that it is more than a mere venue statute;, it has to do with jurisdiction; its purpose is not the protection of the citizen in his ordinary right to be sued in the county of his domicile, but rather it is a law of comity for the protection of the dignity of our courts. Orderly procedure and proper respect for the courts will require that such attacks upon their' judgments should be made in the court rendering such judgment, rather than in other courts indiscriminately. An attack upon a judgment, to be direct, therefore, must be brought in the court where such judgment was rendered.

In Seligson & Co. v. Collins, 64 Tex. 314, the Supreme Court, in construing this same statute, say: “The statute is imperative— the writ of injunction must be returned to the court from which the .order of sale issued.” See also Leachman v. Capps, 89 Tex. 690, 36 S.W. 250. All the cases hold that the question is jurisdictional.

We have so far discussed the suit here as being purely for injunctive relief and as in no sense ancillary to or in aid of the 'Harris County suit.

The Winkler County court refused to dissolve the injunction upon appellant’s motion, but, as stated, set the case for hearing, and this appeal is prosecuted from the order of that court overruling the motion to dissolve the injunction and prior to the hearing of the matters pleaded by appellee and upon which the injunction was granted.

The question is then presented: “Was the Winkler County court in error upon the whole record in granting the injunction and refusing to dissolve it on the motion ?”

There is no statement of facts in the record, and we will consider the question presented from the facts alleged in appel-lee’s petition and the exhibits in the record. C. E. Wilson, as plaintiff, brought the injunction suit in the Winkler County court against Hugh Sloan, Duncan Coffee Company and' Whitson Food Products Company. The petition shows that Sloan resides in Lea County, New Mexico, Whitson Food Products. Company, a corporation, domiciled in Denton County, Texas, and Duncan Coffee Company, a corporation, is domiciled in Harris County, Texas. Sloan is a merchant and is indebted to the other defendants, being indebted to Duncan Coffee Company in th'e approximate sum of $499.50, and Whitson Food Products Company claims an indebtedness and assumes indebtedness against Sloan of several hundred dollars.

The petition and'exhibits show: that on May 23, 1939, Sloan filed in the United States District Court for the District of New Mexico, his petition in bankruptcy, naming as two of his creditors Duncan Coffee Company and Whitson Food Products Company;' all creditors were notified of such petition, the date of the creditors’ meeting to be held; the creditors present and represented, including defendants Duncan Coffee Company and Whitson Food Products Company, accepted a modified proposal of debtor Sloan, and which modified arrangement 'was confirmed by order of the Referee. Under the arrangement as confirmed, the debtor Sloan was to pay immediately ten per cent of all proven claims, which amount was fully paid, and should further pay into court, or to the trustee appointed, an additional two and one-half per cent per month until all of said indebtedness is fully paid.

The petition then refers to the agreement in the bankruptcy proceeding and the order confirming the same, and says that defendant Duncan Coffee Company is seeking to prosecute to judgment its said suit in the Harris County Court at Law and alleging therein that plaintiff-in this suit, C. E. Wilson, and said Sloan were copartners at the time of- the accrual of said indebtedness. Wilson denies any such partnership.

Wilson in his suit alleges an unlawful agreement on the part of defendants to coerce and force him to pay a part of Sloan’s indebtedness, and that the suits are not prosecuted in good faith against Sloan, and that the suits are filed at divers points many miles from plaintiff’s (Wilson’s) residence in Winkler County, and that defendants are endeavoring to have other creditors of Sloan to file suits, which will result in a multiplicity of suits, and that plaintiff has no adequate remedy at law.

Wilson says that the modified arrangement, accepted and confirmed by the referee in bankruptcy provides that any indebtedness which may be due by this plaintiff for the use and benefit of creditors of Sloan shall be collected by the Creditors’ Committee appointed by the creditors, wherefore any of the actions against him, Wilson, for the benefit of creditors of Sloan, can be prosecuted only by said creditors committee and not by individual creditors who have accepted the specified arrangement, and if not enforced plaintiff will suffer from a multiplicity of suits and from a double recovery.

In his brief Wilson refers to many cases and particularly to sections of the Chandler Act (52 Stat. 840 [11 U.S.C.A. § 1 et seq.]), and urges with much force that under such provisions the creditors’ committee is the only authorized person, to prosecute the suit of Duncan Coffee Company and other accepting creditors.

We have concluded, however, that under the record i'n this case this Court is without jurisdiction to review the matters presented by appellee.

We have also concluded that under the record -before us the matters suggested by appellee present purely and simply matters of defense in the Harris County suit; that if the injunction could properly have been issued, which we do not decide, it should have been made returnable to the Harris County court and not the Wink-ler County court, and that it was error to overrule appellant’s motion to dissolve the injunction. The Winkler County suit should have been dismissed, and it is so ordered.