author: SPEER, Justice.

text:
    CITY OF WICHITA FALLS v. TRAVELERS INS. CO.
    No. 14019.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 2, 1940.
    Rehearing Denied March 8, 1940.

      T. A. Hicks and Thelbert Martin, both of Wichita Falls, for appellant.
    H. M. Muse, of Wichita Falls, and Pink-ney Grissom and Thompson, Knight, Baker, Harris & Wright, all of Dallas, for ap-pellee.
   SPEER, Justice.

Appellant, City of Wichita Falls, instituted this suit against appellee, the Travelers Insurance Company, for recovery under and by virtue of a policy of insurance issued on April 24, 1933, designated as an automobile insurance policy No. F. A. 7479985, alleged to have been effective when the losses complained of were sustained.

Appellant’s petition charges that appellee issued its contract and policy of insurance, by the terms of which it “bound and obligated itself to pay on behalf of the assured, the plaintiff herein, all sums which the assured shall become obligated to pay, by reason of the liability imposed upon it by law for damages because of bodily injury, including death at any time resulting therefrom, accidentally sustained by any person, or persons, and caused by the ownership, maintenance or use of the automobiles described and set forth in said contract, agreement and automobile insurance policy; except such bodily injury to an employee of the assured while engaged in the business of the assured (other than domestic employment) or in the operation, maintenance or repair of the automobile, or to any person to whom the assured may be held liable under any Workmen’s Compensation Law.”

Further allegations are made to the effect that by the terms of the contract, ap-pellee obligated itself to investigate, compromise or make settlement of any resulting claims against appellant that the company should deem expedient. That the ap-pellee obligated itself to defend, in the appellant’s behalf and name, any suit seeking damages on account of any injuries so received. That one C. H. Phillips sustained an injury by one of appellant’s insured trucks while the policy was in force; that he sued the city and, agreeable with the terms of the policy contract, the appellee defended the suit on behalf of and in the name.of the city; that Phillips recovered a judgment for $4,000; that appeals were perfected and prosecuted by appellee and the city finally paid .the judgment, with interest and costs. Prayer was for recovery of the amount paid by the city in satisfaction of the judgment.

Appellee answered by general denial, and by special pleas, that no liability existed on its part, for the reasons, (a) C. H. Phillips was, at the time of his injuries, an employee of the city, and (b) by the provisions of the policy, no liability was assumed or covered for injuries sustained by employees of the city, while in the clis-charge of their duties. It further answered that it participated in the defense of the Phillips case in the district court of Wichita County, under the terms of a special written contract between the company and the city, by which it was provided that the rights of the parties should in no way be prejudiced or changed because of such participation, but that all rights were specifically reserved to each.

The pleadings and exhibits are lengthy, but we believe we have stated enough of each to enable us to pass upon the points before us. ■ With the issues thus joined, the case was tried to the court, without a jury. Judgment was entered for appellee insurance company, and the City of Wichita Falls has appealed.

Whether or not C. H. Phillips, who recovered judgment against the appellant for injuries sustained in 1933, was at the time an employee of the appellant, is the controlling question for determination here. If he was not such employee and not in the discharge of his duties as such when injured, as contended by appellant, it should have recovered in this suit; on the contrary, if he was an employee, t-he provisions of the insurance policy did not bind the appellee and the judgment was correct.

The dispute grows out of the conditions under which Phillips was working for appellant on the day of his injury. The testimony fairly reflects the facts to be as follows : Mrs. A. T. Willis testified that at the time Phillips was injured, she was the local representative of the Family Relief Committee, a local charitable organization. It was her duty to investigate applicants for relief, and if found to be employable, report them to Reconstruction Finance Corporation, a Federal relief organization commonly known as RFC. That RFC at that time was accepting witness’ recommendations and issuing to employables, such as Phillips, a card showing them to be entitled to so many hours’ work at a stipulated price. RFC had many such applicants to whom these cards were issued. Compensation for such laborers was paid by RFC out of Federal funds, when the card was returned showing that the number of days work allowed had been performed for some municipality, such as Water Improvement Districts, cities or a county. Each of the named municipalities was cooperating with RFC during the time by using as many of the men holding cards as they could find work for. On the day Phillips was injured, the City advised RFC it could use five men. That number, including Phillips, was advised to assemble at the City barn. There they were picked up by one of the city’s trucks and driven to the south side of the city to work that day. There was no- legal obligation upon the part of the men to accept the work tendered, nor for the city to accept the men and furnish work for them; that it was all done through a spirit of cooperation with the Federal Government to furnish relief to those in need.

Mr. Dobson testified that he had been street supervisor for appellant thirty-five years; that as such he hired all the men who did street work; it was his custom, when through with a man, to give him a time check and he was paid by the city; that Phillips was not hired by him and that his name was never placed on a time sheet such as that kept for those employed by him to do regular work; but that Phillips did work for the city some in July, 1933; that witness had the responsibility of keeping the streets of the city; the labor was paid for out of city funds, included each year in a budget for that purpose; that with funds provided, he was enabled to take care of the streets in proper manner; that during July, 1933, Phillips was among a number of RFC men that witness found work for. He put these men to cutting weeds and grass on the streets and alleys, cleaning out culverts and whatever he could find for them to do. The work done was such as no provision was made for ⅛ the city’s budget. The work done was not a total loss, but that it was such that he would not have had done by his regular crew. On the day Phillips was hurt, witness instructed the RFC office to have the five men report at the city barn, where he would have, them picked up and taken to the place they were to work; that it was the custom with him to have men gather there for that purpose; when the day’s work was done, he would send a city truck around to where they were working and haul them back to the barn. Witness directed the work to be done by the men, and appointed one as a foreman to see that his instructions were carried out. The men were placed at work on less used streets on the outlying parts of the city; that Phillips was doing that kind of work, under the direct supervision of the man witness had placed there, on the day of the injury. At about the time for the day’s work to end, witness sent another regular employee of the city with one of its trucks out to haul the men back to the city barn. On the way to the barn, Phillips was injured. (He sued the city for damages, recovered and collected a judgment, out of which this suit grew, on the insurance policy.) Dobson further testified that so far as he knew, the city was under no obligation to give these RFC men work and it was only done to cooperate with the government; with this in view he was willing to find something for them -to do; the work done by them was such as was very well to have done; he did not consider the effort wasted.

Under the facts enumerated, the appellant contends that Phillips was not in its employ at the time he was injured, but was an employee of RFC. In support of its contention, it cites and quotes at length from a number of decisions; among them are: Dempster Mill Mfg. Co. v. Lester, Tex.Civ.App., 131 S.W.2d 254; Dempster Mill Mfg. Co. v. Wiley, Tex.Civ.App., 131 S.W.2d 257; Pittman v. City of Wichita Falls, Tex.Civ.App., 120 S.W.2d 847; 96 A.L.R. 1155; Shelton v. City of Greenville, 169 Tenn. 366, 87 S.W.2d 1016; Taylor v. City of Los Angeles, 29 Cal.App.2d 181, 84 P.2d 242; Reid v. Department of Labor & Industries, 194 Wash. 108, 77 P.2d 589; Ford v. Independent School District of Shenandoah, 223 Iowa 795, 273 N.W. 870; Hoover v. Independent School District, 220 Iowa 1364, 264 N.W. 611; City of Waco v. Hurst, Tex.Civ.App., 131 S.W.2d 745.

We have carefully read the cited cases, but the holdings are all based upon a different situation to that involved here. In those cases, some one of the governmental agencies, established for the purpose of furnishing employment to those found in need, had undertaken projects of their own, in some municipality, which when completed would inure to the benefit of the territory or district in which it was situated. The distinction between those cases and this one lies in such controlling conclusions expressed by the courts as in Shelton v. City of Greenville, supra [169 Tenn. 366, 87 S.W.2d 1017] : “By contributing a small part of the necessary expense and by contributing the services of a foreman, the City of Greenville was enabled to get the benefit of this project within its boundaries. It was not, however, city work of which the city had control, but, according to the agreement, the project was to be conducted ‘under the rules and regulations of the Emergency Relief Administration.’ ” In Hoover v. Independent School District, supra, in holding that the injured party was not an employee of the district, the court reasoned [220 Iowa 1364, 264 N.W. 613]: “The workers were employed, told when and where to work, and paid for their services, by the Civil Works Administration. The contract of service which these workers had was entirely with the Civil Works Administration." Similar language is found in Dempster Mill Mfg. Co. v. Lester, supra. It is there said [131 S.W.2d 256]: “The Works Progress Administration selected and employed Lester, paid him his wages, determined the hours he should work, the character of work he should do, and how and where he should do it, and had the exclusive right to discharge him.” Many authorities of other jurisdictions are there cited. Both in Ford v. Ind. School Dist. etc., supra, and Hoover v. Ind. School Dist., supra, it is shown'clearly that “Civil Works Administration”, a Federal agency, had set up a definite project to be completed by the labor of men employed, paid and supervised by CWA for a school district, and it was held that the injured persons were not employees of the districts. The Texas cases cited are not different.

In the instant case, RFC had not undertaken to perform a given task like the building or repair of any project for the City of Wichita Falls, and thereby employ emergency labor for the consummation of that undertaking. So far as we are able to ascertain, the government had not at the time this case arose undertaken the “project” method as that described in the cases cited by appellant, and above reviewed. The means here employed were for RFC to ascertain who among those in need of relief were able to work, and then, as municipalities could absorb them by giving them useful work, that agency would pay the stipend promised on the card issued. RFC exercised no control, directly or indirectly, over the worker, of when, where or how he should work; nor the nature of the work he should do. The worker was under no obligation to accept from the city its terms, hours, or kind of work offered, nor was the city obligated to accept the worker nor to retain him for any specified time. True, the street supervisor said he had no authority to discharge Phillips, yet he was under no obligation to accept him from RFC and to give him work and had the authority to control how, when and where he worked, and it would follow that if Phillips failed or refused to do as ordered, his time card would not be approved by the city’s supervisor and Phillips would not be paid by RFC; this is equivalent to the right to discharge Phillips. For some time prior to July, 1933, the Federal government had appropriated funds for distribution among the needy and placed those funds in the RFC agency for distribution, in the manner Phillips was receiving them, provided that some named municipality would give work to an employable, and the laborer would work and comply with the requirements of that municipality.

As before stated, the Federal government had not previously adopted the “project” method. RFC had no work to be done, was not employing labor for any purpose; it had not .set up any project to be done or task to be performed; it prescribed none for Phillips; it exercised no management or control over him nor the work he was to do; it did not prescribe the number of hours he was to work each day, the nature of the work nor how it was to be performed. The RFC was no more than an agency set up by the Federal government for the distribution of the meager aid set apart for those who would accept employment from those agencies designated by the Federal government. Phillips could not receive this aid unless and until he did accept such employment and perform the tasks assigned him in a satisfactory manner to those agencies furnishing the work. The record in this case reflects unmistakably that the City of Wichita Falls was one of the class of municipalities designated by the government that could employ such workers as Phillips, and having done so, and supervised his work, controlled the time, place and manner of his work, and being satisfied with the duties performed, could have the benefit of his labors.

The fact that Phillips was not paid by the city, but by RFC, for the labors performed, is not controlling in the question of in whose employ was he at the time he was injured. The question has proven of much interest tó us. We are unable to find any case by the appellate courts of this State where the precise question now confronting us has been decided. Looking to other jurisdictions, we find the Supreme Court of Utah has passed upon practically all of these questions, in Weber County-Ogden City Relief Committee v. Industrial Commission of Utah, 93 Utah 85, 71 P.2d 177, 182, in which case the court held that the injured party was an employee of the agency furnishing the “made work” under governmental distribution of relief. If it-could be said that the Utah case differs from the one before us, it is in the fact that the work assigned to the injured man was of such a nature that the city would have had its regular crew to perform had it not been done by relief workers. In this connection it was said by the court: “The work of eliminating the high place in Ca-hoon Street was such work as the street department of Ogden City ordinarily was engaged in and such that a proper maintenance of the city’s streets would require to be done. The selection of this particular work as a ‘make work’ proj ect was done by the city.” It was further held that there was nothing to prevent the city from discontinuing the project at any time and thus terminate the services of those who worked thereon. In the instant case, the work assigned to Phillips and those given work by the city was of a nature that the regular crew would not have performed unless the city had plenty of money, as expressed by the superintendent; he said, however, it was work that was well to have done and was not wasted.

Other State Courts have discussed some of the points involved here, but they are not in complete harmony. They are cited by appellant as controlling here. In most instances the conclusions reached by those courts are bottomed upon issues not before us. One case in particular which we find frequently cited and followed is that of Vaivida v. City of Grand Rapids, 264 Mich. 204, 249 N.W. 826, 88 A.L.R. 707. There it is disclosed that the city was obligated by law to support indigent persons within its limits and the point is made that the work provided for those in need was just another means of awarding direct relief. In that case the laborers were paid by the city.

It is certain that Phillips was employed by either RFC or the appellant. If it could be said that he was employed by RFC then we ask, what was he employed to do?' That agency had no work for him; never-attempted to prescribe what he should do, nor how he should do it. The relation between Phillips and the city was contractual.

Irrespective of how poor, needy and. worthy Phillips may have been, City of Wichita Falls was under no legal obligation to administer relief to him from the tax money in the treasury. It is doubtful if it could have' done so had it tried. The whole set-up was one by which RFC could help him if appellant would employ him to' do such work as it was willing to supervise and receive the benefits from. By Article 2351, R.C.S., it is made the duty of the respective counties of this State to care for indigent residents who are unable to support themselves.

If for any reason it could be said, that Phillips was employed by RFC, a theory to which we do not adhere, then it follows from the facts before us that his injuries occurred while he was performing-work for appellant and the borrowed servant rule would be applicable. Sherman & Redfield on Negligence, 5th Ed., sections-160 and 161.

It has been held that an employee who-receives his pay from one railway company- and his duties are such that he serves another company also, if he receives an injury while serving the latter company having control and management of his services at the time, he is in the employ of the one having control of his work, and not the one from which he receives his wages. Missouri Pacific Ry. Co. v. Jones, 75 Tex. 151, 12 S.W. 972, 16 Am.St.Rep. 879; Gulf, C. & S. F. Ry. Co. v. Dorsey, 66 Tex. 148, 18 S.W. 444.

Discussing the principle involved in the borrowed servant rule (holding that it did not exist in those cases) in Dempster Mill Mfg. Co. v. Lester, Tex.Civ.App., 131 S.W.2d 254, 256, writ dismissed, correct judgment, and City of Waco v. Hurst, Tex.Civ. App., 131 S.W.2d 745, having the same approval by the Supreme Court, this language was used: “This case does not come within the borrowed servant rule, so as to make Lester the servant of the defendant * * * for the simple reason that the servant at the time of his injury was performing labor which the Works Progress Administration had obligated itself to do * * *. In order for a laborer to come within the borrowed servant rule, he must be doing' the work of the alleged borrower and not the work of the alleged lender. [Citing authorities] .”

The principle is recognized in Western Union Tel. Co. v. Rust, 55 Tex.Civ.App. 359, 120 S.W. 249, writ refused, where it was held that where a servant has two masters, one general and the other special, and the latter has power of direction and •control, the special master is liable for damages resulting from the servant’s negligence.

We have concluded and so hold that Phillips was an employee of the appellant at the time he received an injury and .appellant’s proposition to the contrary and .assignments of error upon which it is based .are overruled.

Appellant’s second proposition is' that •since Phillips’ day’s work had ended before he was injured, he was not in the discharge •of his duties as an employee of the city at the time of the injury, and therefore the exception in the insurance policy is not applicable as contended for by the insurance •company'.

The evidence shows that when the street •superintendent agreed to give Phillips work .so that he could earn money promised by RFC he was instructed to report at the ■City barn on the morning he was to work; that it was at the barns the superintendent took charge of the men and sent them out in a city truck to the place where they •yvere to work during the day; when the day’s work was over, Browning, a regular employee of the city, was sent out in a city truck to bring the men back, and that it was on the way back to the barns that Phillips was injured. Browning testified that he was in the regular employment of the city, before and at the time Phillips was injured; his duties as such truck driver, among other things, was to haul men who were working for the city to and from their jobs; he had instructions to do this. He was performing this duty when Phillips was injured. It does not clearly appear what caused Phillips’ injuries, but he was riding in the truck on his way back to the city barns when the accident happened.

Appellant argues'that Phillips’ work for the' day was over at the time of bis injuries, and that he was a mile or more from the place where he had worked when injured, and -therefore he was not, at the time of the injury, in the' employ of the city.

Phillip's sued the city for the damages sustained and recovered judgment; an appeal was perfected to this court by the city and the judgment affirmed, City of Wichita Falls v. Phillips, Tex.Civ.App., 87 S.W.2d 544. Application for writ of error was denied by the Supreme Court. Upon the hearing of that case in this court, it was contended by the city that Phillips was injured because of the negligence of a fellow servant, one Browning, the driver of the truck, but it was held that because no such issue was raised by the pleadings, it could not be considered. If Phillips was not an employee at the time of his injuries, he would have been at most a guest of Browning, the driver of the truck. The provisions of Article 6701b, Vernon’s Tex. Civ.St., which relate to liability for injuries to gratuitous guests while riding in an automobile, were not invoked in the trial of that case. The issues upon which the case was tried were .alleged to be the negligence of the city.

We think the record before us shows that in connection with the work the city was giving Phillips, that it undertook to give him free transportation from the city barns to the place of work and return. The city had not fully discharged that obligation until the truck had arrived at the barns. Watts v. Continental Casualty Co., Tex.Com.App., 18 S.W.2d 591; Jones v. Casualty Reciprocal Exchange, Tex.Civ.App., 250 S.W. 1073, writ refused; Western Indemnity Co. v. Leonard, Tex. Com.App., 248 S.W. 655.

Appellant cites us to the cases of Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192 and Banks v. Commercial Standard Ins. Co., Tex.Civ.App., 78 S.W.2d 660, writ dismissed. The Smith case, supra, was a workmen’s compensation case and came within the meaning of terms of that statute, Article 8306 et seq., Vernon’s Texas Civil Statutes, and its several sections. It was there held that in addition to showing as a right to recover that he was injured while he was engaged in or about the furtherance of the employer’s business, the plaintiff must show that his injury was of such a kind and character as had to do with and originated in the employer’s work, trade, business or profession. It is also there stated that as a general rule an employee could not recover for injuries sustained while going to or returning from the place of his employment, except in certain particular cases. These exceptions are shown to be those which are not occasioned by the risks taken by employees on the streets and highways which are common to the entire public; but are injuries sustained by them going to and coming from their places of employment when that hazard has “to do with and originated in the work, business, trade or profession of the employer.” [129 Tex. 573, 105 S.W.2d 193.] If the test made in such cases is to be applied here, then we think that even though Phillips was injured while returning to the city barns after he had finished his day’s work, his return there being a part of his contract of employment, it had to do with and originated in the work, business, trade or profession of his employer, the appellant in this instance.

We are likewise cited to the- case of American Indemnity Co. v. Dinkins, Tex. Civ.App., 211 S.W. 949, writ refused, in which it was held that an employee was not in the course of his employment when riding his motorcycle on a public street at night, on his way home from the refinery at which he had worked. He had punched the clock for the end of the day and was in the act of going home. It appears that the employer exercised no control over the employee after he checked out for the day. The court said 'that there was no obligation on the part of any one to see that Dinkins reached his home in safety; that having received the injury on his way home, the relation of master and servant between him and his employer did not exist at that time. We see no conflict in the two lines of decisions under the facts involved in each.

The remaining propositions 3 and 4 raise the questions (a) that appellee having defended the suit by Phillips against the city, it thereby conceded liability and was bound by the judgment rendered, and (b) the reservation or non-waiver agreement was void and contrary to public policy.

There is a sheaf of correspondence in the record between attorneys for the city and the insurance company, which passed after Phillips’ injury and prior to the trial of that case. The substance of contentions made by attorneys for the insurance company is that Phillips was an employee of the city at the time of his injuries and under the provisions of the policy the company was not liable, but that in view of .the contingencies that might arise in the future, those attorneys would aid the city’s counsel in defending the suit under an agreement that they should not waive the rights of the company in doing so. Pursuant to the correspondence, the agreement was entered into. It recites the issuance of the policy, referring to the provisions by which the company contracted to indemnify the city, and the exception as to injuries sustained by an employee; the contention made by the parties relating to the facts as disclosed by the investigation made by the company and concluded with the following paragraph: “Now, Therefore, the City of Wichita Falls, and the Travelers Insurance Company, do hereby covenant and agree among themselves, that in consideration of the Travelers Insurance Company furnishing its investigation and attorneys in the defense of the above numbered and styled suit pending in the 30th District Court of Wichita County, Texas, and that they do hereby agree that in furnishing its attorneys and participating in the trial of the above mentioned suit, such acts- and conduct shall not be construed by either party as a waiver of any of the rights and defenses of said The Travelers Insurance Company under said above- numbered indemnity contract and policy, and neither shall any of the rights of the City of Wichita Falls under said contract, in'accordance-with its terms and provisions, be jeopardized, except the City of Wichita Falls foregoes and waives any right or rights or privileges which it may have or claim to assert that any of the rights and defenses of The Travelers Insurance Company under said contract are waived or jeopardized in anywise whatsoever, it being the intention of the City of Wichita Falls and The Travelers Insurance Company that they each might participate in the investigation and defense of the claim of said C. H. Phillips and of the suit brought and instituted by him fully and completely and without waiving any of the rights of either party to said above numbered contract and reserving the question of liability as between the City of Wichita Falls and The Travelers Insurance Company to be determined at a later date, without prejudice to the rights of either party, except as herein reserved.”

The policy contract between appellant and appellee was introduced in evidence; it is lengthy, containing many provisions which conditionally affect the rights of the parties. A simplified form of the controlling features of the contract is embraced in the quoted part of appellant’s petition in the first part of this opinion.

Appellee had issued its indemnity contract of insurance to appellant prior to the happening of the events upon which this suit is based. Appellee had obligated itself to indemnify the appellant against losses occasioned by accidental injuries to other persons resulting from the handling of appellant’s automobiles; excepting, among other classes, bodily injuries to an employee of the appellant while engaged in the business of the assured.

A further stipulation in the policy provided that appellee would “defend in his (City of Wichita Falls) name and behalf any suit against the assured seeking damages on account of such injury or destruction, even if such suit is groundless, false or fraudulent.”

The uncontradicted evidence shows that appellant was sued by Phillips for the alleged injury sustained and the citation issued in the cause was promptly sent to appellee for attention. The company made an investigation and concluded that Phillips was an employee in the discharge of his duties when injured and because of the exception of that class of injury in the policy the appellee was not liable to appellant for any services in connection with the then pending suit. The long drawn out correspondence between the attorneys found in the record bears on this phase of the case. The non-waiver agreement subsequently signed and partially copied herein was the result of that correspondence.

The attorneys for the respective parties who wrote the letters testified upon the hearing of this case. The effect of the testimony given by appellant’s attorneys was that appellee’s attorneys assumed the entire management and control of the trial of the Phillips case; while that of appel-lee’s attorneys was substantially that they only participated and cooperated with appellant’s attorneys in the trial, for the reasons set out in the non-waiver agreement.

Appellant contends, based upon its theory as testified to by its attorneys, that appellee waived its rights and was estopped to deny its liability under the policy contract ; and further contends that the so called non-waiver agreement was void as against public policy.

The testimony given by the respective attorneys is in fact about the only controverted fact issue in the record. The trial court found in favor of the contention-of appellee’s counsel; he found as a fact as follows: “(5) The court further finds-that thereafter (after the non-waiver agreement was signed) that the City of Wichita Falls and The Travelers Insurance Company participated jointly and cooperatively in the defense of said suit brought by C. H. Phillips against the City of Wichita Falls.”

Appellant challenged that finding of the court as being unsupported by the evidence. As stated, the testimony was conflicting and we find sufficient evidence in the record of probative force to support the conclusion reached by the court, and his findings thereon are binding upon this court. 3 Tex.Jur., page 1102, sect. 771; 41 Tex.Jur., page 1246, sect. 378; and many cases decided since the. rules cited were written, but we pretermit citing them here.,

It occurs to us that where a dispute arises between parties, as was done in this case, going to the liability of one or the other, and the parties fairly enter into an agreement to work out preliminary matters, even by the joint trial of a case which may or may not disclose liability or non-liability, they would have the right, as was done here, to do so without waiving their respective rights to rely upon the provisions of the original contract. It will be observed that by the terms of that part of the agreement above quoted, in connection with the obligation assumed by the City of Wichita Falls, it is said: “ * * And neither shall any of the rights of the City of Wichita Falls under said contract, in accordance with its terms and provisions, be jeopardized, except the City of Wichita Falls foregoes and waives any right or rights or priviliges which it may have or claim to assert that any of the rights and defenses of the Travelers Insurance Company under said contract are waived or jeopardized in anywise whatsoever * * *(Italics ours.) By the propositions under consideration, we find appellant asserting that appellee did waive its rights to claim its exemption from liability under the terms of the policy contract, when by the terms of the agreement appellant bound itself not to do so. Our courts have uniformly held that non-waiver agreements executed by the insured and insurer, previous to an investigation to be made, by which the parties may proceed without waiving their rights, are binding on the parties. Commercial Standard Ins. Co. v. Harper, 129 Tex. 249, 103 S.W.2d 143, 110 A.L.R. 529; Home Insurance Co. of N. Y. v. Lake Dallas Gin Co., 127 Tex. 479, 93 S.W.2d 388.

The above cases are not as broad in their scope as the rule here contended for by appellee, but they are analogous in principle. Appellant cites us to Leap v. Braziel, Tex.Civ.App., 93 S.W.2d 1213, reformed (on a point not involved here) and affirmed in Tex.Com.App., 121 S.W.2d 334; Ferris v. Southern Underwriters, Tex.Civ.App., 109 S.W.2d 223, writ refused; and Montgomery v. Utilities Ins. Co., Tex.Civ.App., 117 S.W.2d 486. The first two cases cited hold that under provisions like those found in the policy contract before us, where the company assumed the responsibility for the management and control of the litigation, those acts would estop it from thereafter asserting that it had no interest in the suit, and that it could not be heard to say that it was not bound by the judgment. However,there was no such non-waiver agreement entered into between the parties in those cases as the one we have in the instant case.

Montgomery v. Utilities Ins. Co., supra, was a controversy between Montgomery, the injured person, not a party to the insurance policy, and the insurance company. The company had issued its policy indemnifying the county against losses sustained growing out of the use of its automobiles, except to employees, similar to the policy in the instant case. One Smith, an employee, was the driver of a county truck, and Montgomery, another employee, was injured. He sued Smith, alleging negligence, resulting in the accident. Because of the existing policy of insurance to the county, the insurance company took cognizance of a possible contention that it was liable for indemnity and negotiated with Smith, the defendant, and entered into an agreement in which the existing facts were set out. There was a denial of liability of the company contained in the instrument, but the company agreed to defend the suit for Smith, provided that its acts should not be construed to mean that it had waived any of its rights and defenses under the policy; the agreement contained substantially all the reservations of rights to both parties found in the one before us. The plaintiff, Montgomery, recovered judgment against Smith, and later attempted to collect from the insurance , company, not a party to the suit, claiming that because the company had defended the suit, it was in fact a party and thereby acknowledged its interest in the outcome. When the company refused to pay, the suit was instituted by Montgomery against it. The appellate court recognized that the company was not liable to Montgomery under the terms of the policy, but held it responsible because of its assumption of the control and management of Smith’s defense, refusing to recognize the terms of the non-waiver agreement. The court held that the non-waiver agreement was void because it was an attempt upon the part of the company to obligate itself to practice law by making the defense for Smith. We are riot inclined to place such a construction upon the non-waiver agreement before us. .The company in this case proposed to furnish its attorneys to make the defense conditioned as set out in the instrument. We note that the Supreme Court has granted a writ of error in the Montgomery case, supra, based upon four assignments of error which embrace much that is contended for by appellee m the instant case. Because of the difference between the two cases and the conclusions readied by the Beaumont Court, we are not inclined to strike down the non-waiver agreement between City of Wichita Falls and Travelers Insurance Company, the parties to the insurance contract, when it appears to have been fairly entered into by them.

We have carefully studied the entire record before us, have read all of the authorities cited to which we have access and have concluded that the trial court reached a proper solution of the issues made. Finding no errors presented which would require a reversal of the judgment rendered, it is affirmed.

On Motion for Rehearing.

Appellant, City of Wichita Falls, has filed its motion for rehearing in this cause, in which it is earnestly insisted that we were in error in the' conclusions reached and expressed in our original opinion.

We are requested to make further findings of fact, based upon the testimony of named witnesses. It is claimed that our statement in certain respects does not properly reflect the testimony given by those witnesses. Obviously, it would be impracticable for an appellate court to relate in an opinion all the details, conflicts and immaterial parts of evidence set out by fhe statement of facts.

Our attention is directed especially to parts of the testimony given by Mrs. A. T. Willis, which it is contended refers to “projects” at which such persons as Phillips worked. It is true the witness was asked this question: “When the (work) card was issued did you direct .them where to go?” She answered: “The RFC did that through these projects they worked on.” However, counsel apparently took issue with the witness by reminding her that there were no “projects” at that time, and the witness countered with a question of her own, by asking counsel, “Wouldn’t that be called a project?” Her inquiry evidently referred to the transaction she had had with the applicant and her recommendation to RFC that a man was able to work and RFC issued the work card, entitling the applicant to compensation if he should find work with either of the agencies recommended by the federal government. The materiality of that part of the testimony is made applicable to what we, have said in the opinion in regard to “projects” sponsored by federal agencies.

To construe those parts of Mrs. Willis’ testimony above mentioned, in their most favorable light, in support of appellant’s contention, as compared to other testimony given by her and referred to in the opinion, only a fact question would arise, and this was to be passed upon by the court sitting in lieu of a jury. New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620, writ refused. The judgment entered was against appellant, and this was equivalent to a finding of fact by the court against the contention of appellant in the respect complained of. ■

In the motion, appellant attempts to quote a paragraph from near the middle of the original opinion, which begins with these words: “Phillips sued the city for the damages sustained and recovered judgment”, etc., and insisted that what we said has no bearing on the case and has added: “As we see it, the above quotation from the opinion of this court is merely a criticism of the lawyers who tried the Phillips case.”

First of all, we desire to say that such a motive imputed to us certainly cannot be drawn from the language used, and further, that such an idea did not enter the mind of any member of the court; we each hold counsel in the highest esteem, both in ability and integrity.

Again we have studied the paragraph complained of, and with our attention drawn to it by the motion, we cannot see how the language used could be so construed. In a general sense, any time a court differs with counsel it could be said that it is a reflection upon, or criticism of, counsel’s views, but certainly no such motive should be imputed to a court.

In the next place, the manner in which our opinion is attempted to be quoted in the motion, the expression used by us relating to the “guest statute”, would be meaningless, or at least would be the reverse of what we conceive to be the law. However, we know that counsel did not purposely misquote what we said in the opinion. We said, “If Phillips was not an employee”, etc., whereas we are quoted as having said, “If Phillips was an employee”, and so on.

As we view the case, it was very essential that we refer to the former case as we did. Appellant’s caúse of action was dependent upon that case; it plead it as ground of recovery upon the insurance policy. The appellee cited the opinion by this court as an authority on one point, but we did not think it supported the contention made and therefore did not comment thereon.

Our reference in the opinion to what is commonly known as the “guest statute”, was prompted solely by the thought that if Phillips when injured was not an employee, he was a gratuitous guest of the driver of the city’s truck. The case was tried upon the theory that he was an employee, hence nobody contended that he was simply a guest.

From the record in this case, it is apparent that counsel for. appellant feels that counsel for appellee, in the instant case, so conducted the original case of City of Wichita Falls v. Phillips, supra, as to make a defense to the present case. Whether or not there was a joint and cooperative participation in the original case by counsel for the city and that of the insurance company was determined by the court against appellant. Under the evidence in the case, that. finding is binding on us.

These conclusions have been written for the purpose of assuring counsel that no reflection upon or criticism of them was intended by the court. We are yet unable to perceive how our language could be so construed.

We think the disposition made of the appeal in the original opinion is correct, and with the above explanations, the motion is overruled.


source: Caselaw Access Project

author: TIREY,. Justice.

license: Public Domain

text:
    WOMACK et al. v. TRIPP.
    No. 2224.
    Court of Civil Appeals of Texas. Waco.
    Feb. 22, 1940.
    J. C. Jacobs, of Corsicana, for appellants.
    Lovett, Lovett & Ralston, of Corsicana, for appellee.
   TIREY,. Justice.

This is a suit by plaintiffs, appellants herein, as landlords, against defendant, ap-pellee herein, as tenant, for damages resulting to plate glass windows caused by the pasting of ads on the windows with glue. The case was tried by a jury and upon its verdict, the court rendered judgment for defendant. Plaintiffs filed motion for judgment non obstante veredicto, and the failure of the court to grant same is-assigned as error.

Plaintiffs based their right to recovery on two counts. Their first count alleged substantially that defendant was a holdover of the premises under a written lease contract executed September 1, 1936; that said contract, among other things, bound the tenant to be responsible for any damage that occurred to the plumbing work, closets and water pipes due to the neglect of the lessee, natural wear and tear and damage by fire, defects in the construction and the elements only excepted; and to deliver up the premises in good order and condition at the end or expiration of this lease. The jury found that defendant did not execute said written lease and no error is assigned as to the insufficiency of the evidence on this issue. However, we think the evidence is sufficient to sustain the finding of the jury.

In the alternative, plaintiffs alleged that defendant was in possession of the property as a tenant; that he was under the legal duty to do nothing that would permanently injure or damage the building and that defendant did negligently apply to the plate glass windows of the building glue or cement containing acid or some ■other element that ate into and permanently impaired and damaged the windows.

Defendant interposed general denial, and specially answered that as a tenant he repeatedly and customarily pasted signs in the nature of advertising on the windows, .advertising his merchandise to the public for sale; that he used glue or paste which was the custom of substantially all the merchants of the city of Corsicana; that .shortly before he vacated the building he caused to be pasted on the window glasses of the store building various and •sundry advertisements of the liquidation of Tiis merchandise and that he used glue or ■cement that had been regularly carried in his stock of merchandise for a number of years; that he had no way of knowing and that he did not know that the glue would •damage the glass, and had he known that it would damage or injure same, he would not have used it, and that in using the :same he acted with ordinary prudence and •care and did not wilfully or negligently ■cause the damage, if any, complained of.

The jury, in their answers to the special issues submitted to them, found that defendant was not negligent in applying the glue to the plate glass show windows. It further found that the damages to the windows because of the application of glue to the same was $156.75. The evidence is sufficient to sustain the verdict of the jury. There is no complaint to the charge of the court. This appeal is based upon two propositions:

“First: Where the evidence established conclusively,' and it was admitted by defendant, that defendant had applied household glue to plate glass windows of plaintiffs’ building, and that the use of such household glue had caused damage to such plate glass windows, the court should have entered judgment for plaintiffs, non ob-stante veredicto, for the damages fixed by the jury.”
“Second: Where the evidence established conclusively, and it was uncontroverted by the evidence, that defendant, a tenant, applied household glue to the plate glass windows of plaintiffs’ building, while gluing advertisements thereon, and that the household glue ate into such platq glass windows, causing the damage complained of, defendant is liable to plaintiffs for the natural consequences of his wilful act, and is guilty of negligence as a matter of law.”

We have carefully considered the foregoing propositions and are of the opinion that each of them must be overruled. We think the rule applicable to the facts found by the jury in this case is stated in Corpus Juris, Vol. 36, p. 196, sec. 861, as follows: “Independently of express covenant, the law imposes upon the lessee an obligation to treat the premises so that no substantial injury be done thereto during 'his occupancy, and that the property be restored to the landlord at the end of the term unimpaired by the negligence of the tenant, but he is not liable for damages ensuing from a reasonable use.” The fore- • going doctrine has been followed by the Texas courts. See Arkansas Fuel Oil Co. v. Connellee, Tex.Civ.App., 39 S.W.2d 99, point p. 101. Plaintiffs sought to recover damages first on the ground that defendant was a holdover under the terms of a written lease that made him liable for the damages as a matter of law. The jury found that defendant did not execute the lease in question and therefore foreclosed the foregoing matter against plaintiffs. The court in its main charge defined “negligence”, and the jury found that defendant was not guilty of negligence in the use of the building in question. Our courts have uniformly held that negligence is a 'question of fact as to what an. ordinarily prudent person would do under the same or similar circumstances, and the court will not in such instances invade the province .of the jury. We think the rale has been correctly stated in 30 Tex.Jur., p. 652, sec. 8, as follows: “In order that an act shall be deemed negligence per se, it must have been done contrary to a statutory duty, or it must appear so opposed to the dictates, of common prudence that we can say, without hesitation or doubt, that no careful person would have committed it. * * * In the absence of a law which in effect characterizes the actor’s conduct as having been negligent, the issue as to whether he ought to have foreseen and prevented the calamity or was 'negligent’ is one to be determined by the jury .by reference to the facts.” See San Antonio & A. P. Ry. Co. v. Connell, 27 Tex.Civ.App. 533, 66 S.W. 246, 247. The jury acquitted the defendant of negligence.

It follows that plaintiffs’ propositions are therefore overruled and the judgment of the trial court is in all things affirmed.


author: WALTHALL, Justice.

text:
    FLOYD et al. v. EGGLESTON et al.
    No. 3862.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 12, 1939.
    Rehearing Denied Nov. 9, 1939.
    W. H. Penix, of Mineral Wells, for appellants.
    James & Conner, David B. Trammell, Phillips, Trammell, Estes, Edwards & Orn, and Ernest E. Sanders, all of Fort Worth, Wynne & Wynne, of Longview, C. E. Florence, of Gilmer, Charles L. Black, of Austin, and Victor C. Mieher, of Tulsa, Okl., •for appellees.
   WALTHALL, Justice.

This suit was brought in the 124th District Court of Gregg County, Texas, by appellants, W. E. Floyd and others (by their intervention), against J. T. Eggle-ston and others, seeking to set aside a judgment theretofore rendered in said district court on or about March 19, 1932, in cause No. 7709, then pending in said court, and to cancel a certain lease made by D. G. Pepper and wife to said J. T. Eggle-ston and his assigns, and to cancel a deed made by B. C. Todd, a substitute trustee, to Continental State Bank of Big Sandy, Texas, on April 3, 1928, and to cancel an oil and gas lease made by the said Continental State Bank to Amerada Petroleum Corporation, and to have confirmed a judgment establishing their asserted rights under Pepper and wife, or, in the alternative, damages in the amount stated, and to have confirmed and established their (plaintiffs’) title to the 100 acres of land involved in the suit and fully described in the petition, the land situated in Gregg County.

The chief issue of title to the 100 acres of land revolve around the question of the validity of the sale made by the substitute trustee, Todd.

Eggleston answered appellants’ intervention and alleged matters which we need not state. Amerada Petroleum Corporation intervened, claiming its leasehold rights under the Continental State Bank.

For reasons hereinafter shown, it is not our purpose, nor is it necessary, to state the many issues of fact and law involved in these suits.

Suit No. 7709, in which appellants intervened, was brought by the Continental State Bank of Big Sandy against D. G. Pepper et al., and from the judgment rendered an appeal was taken by certain of the defendants. The case reached the Supreme Court and an opinion was rendered by Judge Smedley, of the Commission of Appeals. The issues and the facts are there stated at length and judgment rendered, to which we refer. Continental State Bank of Big Sandy et al. v. Pepper et al., 130 Tex. 71, 106 S.W.2d 654. A motion for rehearing was overruled, as was application for leave to file a second motion.

Thereafter W. E. Floyd and the heirs of J. E. Winans and Pepper and wife filed a suit in the 124th District Court of Gregg County, being No. 11091-B, against J. T. Eg-gleston et al. and on October 13, 1937 they filed their first amended petition in said suit.

To that suit appellees here instituted an original proceeding in the Supreme Court by which they sought and obtained a writ of prohibition to prevent Floyd and others from proceeding with the two petitions or bills of review to set aside a judgment for relators, the oil and gas lease, confirm respondents’ title to land and recover title to and possession of the land and the value of the oil and gas produced therefrom.

The issues -presented and the facts produced in that proceeding and the relief sought by the petition are fully shown in the opinion by Judge Smedley, Commissioner, to which we refer without stating them here. Continental State Bank of Big Sandy et al. v. Floyd et al., 131 Tex. 388, 114 S.W. 2d 530, 533.

In that proceeding the Court ordered: “That the writ of prohibition be issued comr manding the respondents and each of them to desist from further proceeding with the said petitions filed in Seventy-First district court and "the One Hundred Twenty-Fourth district court of Gregg county, Tex., or with said suits, and from further interference with or hinderance of the judgment of this court entered on January 16, 1937, in Continental State Bank of Big Sandy et al. v. D. G. Pepper et al. [130 Tex. 71], 106 S.W.2d 654.”

The opinion was adopted by the Supreme Court. The Court overruled respondents’ motions for rehearing.

The trial court in the instant case, on motion of appellees, Continental State Bank of Big Sandy and Amerada Petroleum Corporation, dismissed the case on the ground that “the prosecution of this suit is in conflict with and prohibited by the restraining order and judgment of the Honorable Supreme Co’urt of Texas.”

From the above order dismissing the case appellants have perfected an appeal.

Opinion.

Appellants have filed herein some ten assignments of error. Appellants have at great length stated the matters at issue in the two cases to which Judge Smedley referred, and cited above, and to which the writ of prohibition was directed, and in their assignments of’error make the contention that in neither of the bills of review were there allegations of facts as are contained in the instant case, and for that reason submit that the prosecution of this cause is not in conflict with and prohibited by the restraining order and judgment of the Supreme Court stated above. They submit that the petition and bill of review in . this cause are different from those referred to and embraced in the restraining order. Appellants submit that the bill of review in this cattse^ contains allegations of fact sufficient to have the judgment in said ■cause No. 7709 set aside.

We have concluded that this suit, if prosecuted, whether it states sufficient grounds to set aside the judgment in cause No. 7709, to which it refers, or not, interferes with and is a hindrance of the judgment of the Supreme Court in which the restraining order was issued, referred to above, because it directly involves the re-litigation of rights established by said judgment, and is of such nature that, if successfully prosecuted, will result in a judg-mént which will divest appellees of the right thereby secured. Continental State Bank of Big Sandy v. Floyd, 131 Tex. 388, 114 S.W.2d 530; Continental State Bank of Big Sandy et al. v. Pepper et al., 130 Tex. 71, 106 S.W.2d 654, and cases there referred to.

An injunctive writ issued by the Supreme Court, not void, must be obeyed, according to its terms until and unless modified or vacated by that Court. Herring v. Houston National Exchange Bank, 113 Tex. 337, 255 S.W. 1097; Conley v. Anderson, Tex.Sup., 164 S.W. 985; Ruling Case Law, Vol. 14, page 470, Sect. 170; Corpus Juris, Vol. 32, page 484, Sect. 833.

We concur in appellees’ proposition to the effect appellants’ motion for rehearing filed in the Supreme Court in the prohibition . case was the legal equivalent of a petition by appellants for such modification of terms of the writ issued- as would accord appellants the right to attack the judgment in cause No. 7709 on new facts not theretofore pleaded or discovered; and the action of the Supreme Court in overruling said motion is res judicata of appellants’ right to maintain this suit on the ground now urged by them, bribery of jurors, which ground was known to appellants and could and should have been ■ set up by appellants prior to the time the court acted on the motion.

As sustaining the proposition appellees refer to McGhee v. Romatka, 92 Tex. 38, 45 S.W. 552; Waggoner v. Knight, Tex. Com.App., 231 S.W. 357; Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 47 Am. St.Rep. 79; 26 Tex.Jur., beginning on page 136 and extending through several 'paragraphs, the general rule that claims or demands that rights have been adjudicated is stated and discussed.

We think also that the judgment of the trial court in dismissing the case was not error, as the record shows that appellants.had failed to prosecute their bill .of review with diligence. It appears from the record that the judgment complained of was rendered March 19, 1932; appellants’ motion for new trial was overruled March 25, 1932; their first bill of review in cause No. 2112-B was filed August 5, 1933, and was dismissed February 1, 1934; their second bill of review in cause No. 8820-A was filed October 18, 1933, and was pending undisposed of on April 28, 1938; their third bill of review in cause No. 11091-B, in the 124th District Court was filed October 13, 1937, and was likewise pending undisposed of on April 28, 1938, when it was dismissed by the 124th District Court. The allegation of bribery is charged to have occurred more than six years before it was alleged to have been discovered, about April 21, 1938.

Proceedings to set aside a final judgment after the term are equitable proceedings, jealously watched and granted only in extreme and restricted cases. The general rules and grounds for relief are stated and discussed in 25 Tex.Jur., beginning on page 597, and the many cases referred to in the notes, to which we refer without stating them here.

The issues and the facts pertaining thereto have been fully stated by Judge Smedley 'in the two cases to which we have referred.

The case is affirmed.


author: MONTEITH, Chief Justice.

text:
    KREITER v. KREITER.
    No. 10932.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1940.

      Heidingsfelder & Wander and H. G. Hart, all of Houston, for appellant.
    T. B.' Blanchard, of Houston, for appel-lee.
   MONTEITH, Chief Justice.

Appellant, B. O. Kreiter, sued appellee, Ruth Kreiter, for divorce, alleging cruel treatment, personal violence, and abusive epithets on the part of appellee. Appellee contested the suit. Upon trial before the court without a jury, judgment was rendered denying the divorce. From this judgment appellant has appealed, setting up as his sole ground for reversal that the trial court erred in holding that the evidence failed to support the allegations of the petition.

The appellant testified to numerous acts of cruelty on the part of appellee. Appel-lee either positively denied these charges or reasonably explained them. There is also evidence in the record tending to prove that the acts complained of by appellant were induced by the physical and mental condition of appellee, over which she had no control.

It is uniformly held in this state that, under Article 4632 of the Revised Statutes of 1925, a trial court is authorized to render judgment granting a divorce only upon full and satisfactory evidence sustaining the allegations of the petition. It is further held that in a divorce case the court is clothed with more discretionary power in determining the sufficiency or insufficiency of the evidence to warrant a decree than perhaps in any other form of action, and that an appellate court may not revise that discretion in the absence of a showing of a clear abuse thereof on the part of the trial court. Lloyd v. Lloyd, Tex.Civ.App., 107 S.W.2d 1047; Scannell v. Scannell, Tex.Civ.App., 117 S. W.2d 538; Blackmon v. Blackmon, Tex. Civ.App., 11 S.W.2d 533.

In the instant case the judgment of the trial court, which was rendered on sufficient evidence after a full hearing on the facts, must be construed as an affirmative finding that there was not such "full and satisfactory” evidence in the record as would authorize the granting of the divorce sought by appellant. Under the above authorities this court is not authorized, under this record, to disturb the findings and judgment of the trial court.

The judgment is, therefore, affirmed.

Affirmed.


author: HALL, Justice. '

text:
    CROCKETT v. ROGERS et al.
    No. 5720.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 13, 1940.
    Rehearing Denied Feb. 29, 1940.

      Grisham & Grisham, of Tyler, for appellant.
    Weeks, Hankerson & Potter, Pollard & Lawrence, L. L. James, and William S. Reeves, all of Tyler and H. A. Leaverton, of Longview, for appellees.
   HALL, Justice. '

This suit was instituted July 13, 1938, by appellant, C. W. Crockett, against Yandell Rogers, Rozel Oil Corporation, L. L. James, and J. D. Stringer, fo.r ¾, interest in the proceeds of the sale of a certain oil and gas lease on 96 acres of land, located in Gregg County, Texas, and to subject certain notes, a part of the proceeds of said sale to the payment thereof. It was alleged by appellant that he, together with appellee Rogers, were joint owners of said oil and gas lease; Appellant’s interest therein which he had theretofore assigned to “Yandell Rogers as a matter of convenience and without any consideration paid whatsoever but to give the said Yan-dell Rogers an opportunity to better handle same and more conveniently operate same both for himself and for the plaintiff; that it was then and there understood that Yan-dell Rogers should proceed to develop the said lease, that he might borrow money for the development thereof and obtain credit in connection with the development of the said lease * * * ”; that after all said indebtedness was liquidated appellant was to own ½ of said lease “or the proceeds thereof.” Appellant alleged further that “thereafter the said Yandell Rogers and/or Rozel Oil Corporation with the consent of plaintiff (appellant, Crockett) sold, transferred and assigned said.lease to the Mar-Tex Oil Company * * A large portion of the purchase price for said lease was .represented by notes referred to hereafter as the Mar-Tex notes. Appellant sought and obtained a receiver to take charge of the Mar-Tex notes, and an injunction prohibiting a multiplicity of suits respecting same. It was stipulated in the court below that Yandell Rogers owned, controlled and dominated the Rozel Oil Corporation and that it was his alter ego, so reference hereafter shall be made to Yandell Rogers alone.

Judgment by default was rendered against Yandell Rogers for the sum of $32,951.64, same being ¼ of the purchase price paid by Mar-Tex Oil Company for said lease. The' judgment provided further:

“that plaintiff’s interest in said notes, now listed with the receiver in this cause, be and the same is hereby fixed and established in said amount.
“It is further ordered that a sufficient number of said notes to satisfy said judgment be transferred and assigned by the receiver, H. S. Gibbs, to the plaintiff to satisfy the judgment. It is further ordered that the receiver, in lieu of selling the notes, in satisfaction of the judgment to plaintiff, may sell the said notes, any and all or a sufficient number of same, to satisfy this judgment, subject to the following limitation: the sale and delivery of said notes or the proceeds thereof in satisfaction of this judgment, shall be suspended by said receiver until the court shall determine the rights, if any, of certain intervenors in said cause.”

Numerous persons were permitted to intervene, each setting up a claim against Yandell Rogers, some of whom claimed a preference lien on the Mar-Tex notes by virtue of certain dealings with Rogers on the faith of his apparent ownership of said notes. Each of the preferred creditors alleged that his claim of priority to the Mar-Tex notes was based upon a valuable consideration'; that each was an innocent assignee or pledgee of the notes from Yan-dell Rogers without notice of any claim to said notes by appellant; and that appellant was estopped to assert any claim to the Mar-Tex notes which would defeat the claim of these preferred creditors. After the entry of the judgment referred to above, and to facilitate a hearing on the numerous claims presented by the various intervenors, the trial court appointed the Hon. Roy Butler Master in Chancery. On January 21, 1939, after a full hearing, the master filed, his report giving priority to the claims of appellees, Bethlehem-International Supply .Company, Roy Davis, H. A. Leverton, Tyler State Bank & Trust Company, W. F. Bridewell, P. H. Dowlearn, Pittsburg Pipe & Supply Company, to the Mar-Tex notes as against appellant, Crockett. These appellees will be hereafter referred to as preferred creditors.

Appellant, Crockett, filed exceptions to the master’s report which were in part sustained by the Hon. Walter G. Russell, District Judge, in the judgment entered by him disposing of the various intervenors. On April 15, 1939, soon after the entry of that judgment, Judge Russell resigned. A motion for new trial was filed by the aggrieved parties and was, on April 22d, granted by the Hon. Bascom Gist who had succeeded Judge Russell. On April 4th, some two weeks before Judge Russell’s resignation, he ordered the receiver to institute suit to foreclose the Ms^r-Tex notes and appointed Grisham & Grisham as attorneys to represent the receiver in said foreclosure suit. On the same day this foreclosure suit was filed he also entered a restraining order against interference with the receiver in the foreclosure, etc. On July 13, 1939, appellant, Crockett, filed suit to foreclose the Mar-Tex notes, and for injunction. That suit was dismissed by the trial court on July 21st.

The case at bar was submitted to the court without a jury, and on July 22d, after a full hearing, judgment was entered by Judge Gist in substantial accord with the master’s report granting priority in the order named to: (1) Tyler State Bank & Trust Company, save as to two notes, one for $700 and the other for $2,000; (2) W. F. Bridewell; (3) Roy Davis; (4) H. A. Leverton; (5) Bethlehem-International Supply Company for Mar-Tex notes No. 20 and No. 21, held by it; (6) P. H. Dowlearn; and (7) Pittsburg Supply Company. These intervenors were given priority to the Mar-Tex .notes over appellant, Crockett, and Crockett was held to be estopped to assert any claim to the Mar-Tex notes until the above-named intervenors were paid. These preferred creditors were first required to exhaust all other collateral held by them, also Yan-dell Rogers’ ¾ interest in the Mar-Tex notes before proceeding against the ¼ interest in said notes belonging to appellant, Crockett. The judgment previously entered by Judge Russell in favor of Crockett against Yandell Rogers for his ¼ interest in the sale price for the oil lease was carried forward and entered in this judgment. The receiver’s suit to foreclose the .Mar-Tex notes was dismissed without prejudice. The receiver was discharged, as was also the master in chancery, the fee of each being fixed by the court below. The injunction theretofore granted was dissolved and the court costs were decreed against appellant, Crockett, and Yandell Rogers. “It being the purpose of this judgment to make a full, final and complete determination of all matters and things at issue herein.”' Appellant duly excepted to the entry of this judgment and the cause is now properly before this court on appeal.

At the outset we are met with numerous objections and exceptions directed to the propositions and assignments of appellant, Crockett, which objections and exceptions, in our opinion, are not without merit, but we have concluded, however, to consider the case on its merits.

Appellant’s fourteenth assignment is, “No case was made by pleading or by proof authorizing priority in payment to the intervening creditors, viz.: Tyler State Bank & Trust Company, W. F. Bridewell, Jr., International Supply Company and/or Bethlehem-International Supply Company, P. H. Dowlearn, H. A. Leverton, Roy Davis, and Pittsburg Pipe & Supply Company.” On November 27, 1935, appellant by quitclaim deed sold and released unto Yandell Rogers all his interest in the oil and gas lease theretofore jointly owned by them, and about one year thereafter Yandell Rogers, with the consent of appellant, sold said lease to Mar-Tex Oil Corporation and as a part of the consideration therefor received the Mar-Tex notes made payable to Rogers’ company, Rozel Oil Corporation. It is undisputed that the preferred creditors dealt with Yandell Rogers with respect to the Mar-Tex notes without any notice of any claim thereto by Crockett. It is also undisputed that some character of consideration passed from each of the preferred creditors to Yandell Rogers upon which they based their prior claim to the Mar-Tex notes. The sufficiency of this consideration is -contested by appellant. However, the master in chancery found that the consideration was sufficient as to each of the preferred creditors and the trial court in its final judgment herein decreed that “the master’s report should be and is hqreby sustained in accordance with the terms and provisions of this judgment.” So it remains to be determined whether the acts of appellant, Crockett, in clothing Yandell Rogers with the apparent title to the oil lease, and in permitting him to sell it and receive and retain as a part of the consideration therefor the Mar-Tex notes, under the undisputed facts in this record, estop him from asserting a claim to an interest in said notes which would defeat the claims of the preferred creditors herein. Crockett was not ignorant of the acts and conduct of Rogers in relation to their oil and gas lease. He testified at one of the hearings that during the very time the preferred creditors were dealing with Rogers he was making Rogers’ office his headquarters. Part of this time he was living in Rogers’ home. Appellant knew of the sale of the lease to Mar-Tex Oil Corporation. He knew of the execution of the Mar-Tex notes and that Rogers held them. Crockett also knew that said notes were payable to Rogers’ company. In addition to these facts, appellant’s attorney made the concession during a hearing in the court below as shown by the following colloquy :

Mr. Grisham (attorney for appellant) : “We have plead Yandell Rogers and C. W. Crockett were partners in this special enterprise. They were not general partners, no allegation by any creditor that they were general partners, only partners in the Still lease. In order there might not be any controversy, I will say I plead that under that was theory of the plaintiff and did trust Yandell Rogers to handle the matter and when Yandell Rogers pledged if he did pledge, there is no escape from the proposition that they would be innocent pledgees in the course of business and would be ahead of Yandell Rogers and ahead of C. W. Crockett. In other words, C. W. Crockett would stand into bear same that Yan-dell Rogers would with reference to the notes that Rogers actually pledged. Should not be any controversy with reference to that. That is conceded. I well understand if we are special partners with Yandell Rogers, though he might have exceeded his 'duty and bounds to us, and didn’t properly regard our interests, yet, if he went out and pledged our notes with innocent parties, like Mr. Stringer and others, if he bound himself by these notes, he bound us if based upon a valid consideration and elements of contract actually therein.”

Mr. James (attorney for appellees Beth-dehem-International Supply Company and P. H. Dowlearn) : “Don’t see how we could prove any more than that.”

Mr.' Grisham: “Should not be any contrariety of opinion on that.”

Mr. Grisham (attorney for appellant): “I will make this statement for the benefit of the Court and counsel; that as far as Mr. Stringer, Mr. Bridewell, International Supply Company, are concerned, it is our information — ’’(interrupted).

Mr. Pollard (attorney for appellee Bank): “That also includes Tyler State Bank & Trust Company?”

Mr. Grisham: “When I speak of Mr. Stringer, I thought he was handling it. Didn’t know Tyler State Bank had any interest except Mr. Stringer handling it. When I say Mr. Stringer, if the Bank is interested, it does that. It is my information that these three parties have such interests in these notes, pledged in due course of business as pledgees. The testimony, as I understand, showed that on the former hearing and we are not in position to contest that at this time and not attempting to do so.”

True enough, appellant says he knew nothing about Rogers’ manipulations of the Mar-Tex notes. This may be true, but with the same emphasis it can be said that neither did the preferred creditors know of his, Crockett’s, undisclosed interest in the Mar-Tex notes, on the faith of which the court below found they were dealing with Rogers. This is shown by the following statement by appellant’s attorney:

Mr. Grisham: “For the benefit of the Court and counsel, we have not alleged we broadcast this partnership, nor are we claiming we did in the pleadings or anywhere else; not claiming any of these had notice until we filed this lawsuit. Don’t see where it is relevant but want the Court to have all the testimony he wants in this case.”

Appellant did not challenge Rogers’ authority over the notes in controversy nor assert any interest therein until he filed this suit, except his statement that he informed the son of the President of the Pittsburg Supply Company of his interest. However, both the master and the trial court found against this contention. Some of the preferred creditors contended that they extended Yandell Rogers’ credit in this belief that he owned the Mar-Tex notes which he assigned and pledged to them to secure said loans. The other preferred creditors contended that they extended the time payment on obligations owing to them by Rogers and either refrained from taking legal action against him or dismissed suits already- brought against him on the faith that Rogers owned the Mar-Tex notes which he assigned to them in consideration of such forbearance. We have concluded that there is sufficient testimony in this record to support the master’s findings of fact and the judgment of the court below to the effect that the preferred creditors dealt with Rogers on the faith of his ownership of the Mar-Tex notes and either extended him credit or refrained from taking legál action against him on account of the pledging or assigning of said notes to them by Rogers. In the circumstances as detailed above, equity will effectively prevent appellant from asserting a claim to the Mar-Tex notes superior to that of the preferred creditors. Appellant by his acts brought about the situation that gave rise to this lawsuit by assigning his interest in the oil and gas lease to Rogers, in permitting Rogers to sell said lease to Mar-Tex Oil Corporation and in allowing Rogers to receive these notes representing part of the purchase price, made payable to Rogers’ company, and left in Rogers possession. This record reflects no word spoken or act done by appellant, Crockett, importing notice of his interest in the Mar-Tex notes to these preferred creditors. When he should have spoken he was silent; when he should have acted he failed. Now that he desires to speak and act, equity will seal, his lips and stay his hand. In Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066, 1067, our Supreme Court quoting with approval from Bigelow on Estoppel, states: “That where the true owner of property holds out another, or allows another to appear, as the owner of, or as having full power of disposition over, the property, the same being in the latter’s actual possession, and innocent third parties are thus led into dealing with such apparent owner, they will be protected; or, where others are innocently induced to acquire rights in derogation of the secret or undisclosed claims of these' who caused such action, the rights so acquired are secure, whether contested at law or in equity. Such rights do not depend upon the actual title or right or authority of the party with whom they have directly dealt, but are derived from an act of the real owner which precludes him from disputing against them the existence of the title or right or power which he caused or allowed to appear to be vested in the party making the sale.”

See, also, Hillmer v. Asher, Tex.Com.App., 29 S.W.2d 1011; May v. Martin, 32 Tex.Civ.App. 132, 73 S.W. 840, writ refused; B. F. Avery & Sons v. Collins, 62 Tex.Civ.App. 313, 131 S.W. 426; Western Nat. Bank of Hereford v. Laughlin, Tex. Civ.App., 184 S.W. 1101, writ dismissed; First State Bank v. First Nat. Bank, Tex. Civ.App., 282 S.W. 846, writ dismissed.

Appellant asserts that the failure of the preferred creditors to show that their dealings with Rogers were in furtherance of the joint enterprise of Rogers and appellant relieves him from the operation of the doctrine of estoppel in pais. We do not agree with this contention. Whatever disposition Rogers made of the Mar-Tex notes, under the facts in this case, to innocent purchasers for value, appellant would be bound thereby. This fact seems to be admitted by appellant with respect to the outright assignment by Rogers of note No. 9 of the Mar-Tex series to Southwest Investment Company, and also by the concession of appellant’s counsel in the court below heretofore referred to.

Appellant contends, further, that the Mar-Tex notes were not legally assigned because the assignments or pledges of said notes were not in compliance with the Negotiable Instruments Act. Vernon’s Ann.Civ.St. art. 5932 et seq. We do not think it is a question here of appellees’ failure to comply with the Negotiable Instruments Act in accepting assignments of the Mai'-Tex notes from Rogers to secure their claims, if failure there was; but it is one of equitable estoppel which precludes appellant from asserting any claim to said Mar-Tex notes as against appellees as creditors of Rogei;s. Kempner v. Huddleston, supra. In Marling v. FitzGerald, 138 Wis. 93, 120 N.W. 388, 391, 23 L.R.A.,N.S., 177, 131 Am. St.Rep. 1003, it is said: “It does not interfere with the well-established principle, that where the true owner holds out another, or allows him to appear as the owner of or as having full power of disposition over the property, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negligence or mistaken confidence he caused or allowed to appear to be vested in the party making the conveyance.”

Appellant complains of the action of the trial court in dismissing the receiver’s and appellant’s suits to foreclose the Mar-Tex notes, and in discharging the receiver, and dissolving the injunction. In our opinion, in the circumstances presented by this record, this does not present error. After the trial court had rendered judgment finally disposing of all persons, matters and things in the case, it was no longer necessary to continue the receivership or the injunction, Texas Trunk R. Co. v. Lewis, 81 Tex. 1, 16 S.W. 647, 26 Am. St.Rep. 776; Tex.Jur., vol. 36, p. 269, and the master in chancery having made his findings of fact and conclusions of law, his services were no longer necessary. The coxxrt that authorized the receiver to file the suit to foreclose the Mar-Tex notes certainly had the right to dismiss it. These are matters of discretion lodged with the trial court, and we can not say that abuse in exercising such discretion has been shown.

In dismissing the suit bx-ought by appellant to foreclose the Mar-Tex notes the court below declared in its order of dismissal that said suit was an intervention in the main suit, was instituted without any authority from the trial court, and was .filed too late. If this fact be true, then the trial court would have a right to dismiss said intervention filed without his permission and coming too late. If it be an independent suit, as claimed by appellant, then there is no appeal here from the order of dismissal, and we would have no authority to pass upon the matter. In either event the matter is closed.

We have carefully examined all other assignments brought forward by appellant and ' find that they do not present error, and they are respectfully overruled.

The judgment of the trial court is affirmed.


text:
    AERO-GAS REFINING CO., Inc., v. FISK TIRE CO., Inc.
    No. 3898.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 25, 1940.
    Rehearing Denied Feb. 23, 1940.
    Joe E. Kelly, T. M. Milam, and R. D. Blaydes, all of Fort Stockton, for appellant.
    Mead & Metcalfe, of Marfa, for appel-lee.
   WALTHALL, Justice.

The appellant, Aero-Gas Refining Company, Inc., by its secretary, J. C. Williams, addressed to the appellee, The Fisk Tire Company, Inc., a proposition in writing, proposing a contract for the purchase of its goods.

The first paragraph of the written proposition recites: “We are desirous of purchasing from you our requirements of Fisk Automobile, Truck and Bus Casings and Tubes for resale, and we submit the following proposal for your acceptance.”

The second paragraph of the proposition recites: “In consideration of your agreeing to sell us our requirements of such merchandise, we agree to purchase at the prices and under the. terms, stipulations and conditions hereinafter set forth,” etc. (The remaining portion of the paragraph not deemed material to any of the issues presented).

The writing is lengthy, and, without quoting therefrom, appellant agrees in the writing to pay appellee, for all goods delivered.

Paragraph 21 of the proposition is pertinent to some of the issues presented, and we here copy that paragraph in full. It reads: “21. This agreement has been entered into under the inducements and representations herein expressed and no others, and constitutes our entire Agreement, superseding and cancelling all other Agreements between us, verbal or otherwise, relative to the subject matter hereof, except as to our obligation to pay in full for all merchandise purchased from you under previous Agreements. This Agreement shall not be altered, waived or modified except by written instrument signed by a duly authorized officer of your company at Chicopee Falls, Massachusetts and by ourselves. This Agreement is personal to us and neither it nor any rights arising out of it can be assigned or transferred by us either voluntarily or by operation of law, without your written consent.”

Appellant’s above proposition was accepted in full by appellee on January 12, 1937.

On December 2, 1937, appellant executed and delivered to appellee a series of six promissory notes for the principal sum of $190 each, payable to appellee at the Pecos County State Bank, Fort Stockton, Texas, the notes of the series made due and payable in 1938 as follows: the first note due on January 10, 1938, one due February 10th, one due March 10th, one due April 10th, one due May 10th, and one due June 10th. The first note of the series is set out in full in appellee’s petition, and it is alleged that the remaining notes are identical in terms, conditions, facts and figures with the first note except as to due date. The notes bear six per cent interest from date until paid; the makers of the notes waive presentment, demand, protest and notice of dishonor, and agree to pay cost of collecting, including reasonable attorney’s fees, if not paid at maturity; the notes bear even date; on failure to pay any one of said notes at maturity the remaining unpaid notes become due; time is made essence of the notes. Other provisions are made not pertinent to any issue here. The notes are signed by appellant J. C. Williams, as secretary-treasurer.

The parties agreed that $250 was a reasonable attorney’s fee.

This suit is brought by appellee against appellant to recover on said notes. -There is much in the issues pleaded which was eliminated on the trial and which we omit to state here.

The record shows that the above notes sued on were given by appellant for the purchase price of automobile tires sold and delivered by appellee to appellant under the above contract for the sale of automobile casings, tubes and automobile accessories.

Appellant answered by demurrers, general and special, general denial and special answers.

Among the special answers appellant alleged, in the alternative, that appellee, through its authorized agent and representative, Joe Caldwell, agreed with J. C. Williams that appellee would execute a guarantee on all automobile casings delivered to appellant, and would execute a written tire guaranty bond to purchasers of such casings ; that as to such guaranty, and before the maturity of the debt sued upon, appel-lee breached the provisions of said guaranty contract and refused to accept adjustments made on automobile casings, and refused to accept on demand a return of automobile casings and tubes and other accessories.

Appellant, as a special matter of defense, alleged that appellee, through its agent, Joe Caldwell, verbally represented to J. C. Williams that if Williams would accept such tire agency, appellee would not establish any other sales agency for handling its casings and accessories in the Big Bend territory covering the counties of Pecos, Terrell, Brewster, Presidio and Jeff Davis, and that Williams, relying upon representations of Joe Caldwell, accepted said agency; that appellee violated said verbal ■ agreement as to territory and established sales agencies in Brewster and Presidio counties to appellant’s damages as alleged, and prayed, in the alternative, that appellant, should appellee recover on the notes, be adjudged the right to offset an amount equal to such recovery.

Without fully stating its answer to appellant’s special matter pleaded as above, appellee by supplemental pleadings, by demurrers, general and special denials, traversed the facts pleaded by appellant; alleged that J. C. Williams was appellant’s special officer in the execution of said notes for the merchandise sold to appellant; denied lack of authority in Williams to execute the notes; specially pleaded the provisions of the contract of January 12, 1937, above referred to; alleged that the notes were given for the amount appellant and appellee determined was then due; denied any breach of the contract it had made; denied that appellant ever sought any adjustment under the terms of said contract.

J. C. Williams and R. J. Reischman were made defendants in the appellee’s original suit, but no judgment having been rendered against them or on their cross-action, we omit all pleadings and other matters as to them.

The case was submitted to the court and tried without a jury. The court overruled appellant’s exceptions, to which appellant duly excepted. The court overruled appel-lee’s exceptions except as to the verbal contemporaneous agreement made with Joe Caldwell, above referred to in regard to the matter not to establish any other Fisk Tire sales agency in the Big Bend district, to which ruling appellant duly excepted.

The court rendered' judgment that ap-pellee take nothing against J. C. Williams and H. J. Reischman, and rendered judgment in favor of plaintiff (appellee) and against appellant in the total sum of $1,-349.51, with interest from date of judgment, and costs.

From that judgment appellant corporation appeals.

Opinion. .

Appellant offered evidence to show the making of the verbal agreement with Joe Caldwell as to the district within which appellant should have the exclusive right to sell the automobile appliances, and to show appellant’s damages by reason of the alleged breach of such agreement, such constituting appellant’s alternative cross-action. The court sustained appellee’s objection thereto; appellant excepted, and its first two assignments complain of the court’s ruling thereon.

The matter contained in the parol agreement is not found in the written contract of January 12, 1937, between appel-lant and appellee. .It is not alleged that the terms of the parol agreement were omitted therefrom by reason of fraud, accident or mistake. The written contract is not ambiguous. It embraces the subject matter of the parol agreement, and we think it is conclusive of the intention of the appellant and appellee in executing the written contract, especially paragraph 21 of the written contract set out in the above statement. The parol agreement is at variance with and adds to what is expressed in the written contract, which is inadmissible. The court was not in error.

The law is concisely and clearly stated in 17 Tex.Jur., page 858, and the cases referred to in notes under paragraph 390. Firestone Tire & Rubber Co. v. Fisk Tire Company, 131 Tex. 158, 113 S.W.2d 175.

Appellant questions the authority of J. C. Williams to execute the contract for appellant under which the notes sued on were given and the notes sued on.

Appellee objects to a consideration by this court of that assignment for reasons stated.

We have concluded to consider 'the assignment, though we doubt the advisability of doing so, the record not showing a plea of non est factum, nor is the answer of appellant raising the issue of want of authority to execute the contract or notes duly verified.

The undisputed evidence shows that prior to and at the time of the execution of the contract and notes by J. C. Williams he was secretary and treasurer of appellant corporation, was one of its three directors, had charge of its books and business, employed its employees; its superintendent was under him, no one else stayed at its main office; he prepared and furnished the appellant’s financial statement, signed an order to purchase of appellee casings, tubes, etc., and continued to do so until September, 1937, at which time appellant owed appellee about $1,400 then past due on the purchase price, and that as a result of the negotiations he gave appellee a check for $269.88, and executed the notes sued on for the balance due. J. C. Williams testified that he had authority to sign all corporation papers; that he signed checks; that R. J. Reischman, the president, was not present when the original contract, was signed, he subsequently informed the president of the contract, and that the president made no objection. The record shows that Williams owned one-third of the stock of the corporation, and that the corporation benefited to some extent by the contract.

While the court made no finding of fact, the judgment necessarily embraced the fact that Williams was authorized to execute the written contract and notes.

The case is affirmed.

On Motion for Rehearing.

In the opinion we were in error in stating that Williams owned one-third of the stock of the corporation. The record shows that Williams had owned about one-third of the stock of the corporation, and that at the time of the trial he owned one share. The record does not show the interest he owned at the time the contract of January 12, 1937, was executed.

We think that only two controlling questions are presented: First, was the act of Williams in executing the contract of January 12, 1937, on behalf of appellant corporation ultra yires, as pleaded by ap- . pellant ?

Appellant had one filling station that handled only appellant’s gas. Appellant’s station man, a Mr. Simms, had at the filling station oil, gas and automobile accessories. The tires bought from appellee were turned over to Simms, who kept them at that filling station and sold them from there. In answer to the question, “It is very common for gasoline stations to also sell tires, is it not?” witness J. C. Williams, one of the defendants, answered: “Most of them do.” We think we were not in error in overruling appellant’s assignment No. 3, thereby holding that'the execution of the contract by J. C. Williams for appellant was not an act ultra vires. But should it be held that the act was ultra vires, our courts have uniformly held, as a rule of law, that an action for damages for breach of a contract, or suit upon the contract, will not be avoided by the plea of ultra vires where a corporation has accepted the benefits of a contract fully performed by the other party, then refuse payment on the ground that the contract was ultra vires. Long Bell Lbr. Co. v. Hampton et al., Tex.Civ.App., 20 S. W.2d 1081, 1083. In Kincheloe Irr. Co. v. Hahn Brothers & Co., 105 Tex. 231, 146 S. W. 1187, it is h.eld that when the corporation has received benefits under the alleged ultra vires contract the corporation is estopped from denying its power to make the contract, and refers to many cases as so holding. In our opinion, under the facts before us, the issue of ultra vires is not in the case.

The second issue we think to consider more fully is the authority J, C. Williams had to sign appellant’s name to the contract and notes.

The undisputed facts show that appellant was operating an oil refinery and was engaged in drilling oil wells for other parties. The facts unquestionably show that J. C. Williams was appellant’s general manager in the operation of its business. Corporations act exclusively through agents. J. C. Williams testified that he executed the contract of January 12, 1937, and the notes sued upon. After executing the contract he bought from appellee the goods, wares and merchandise for which the notes, subsequently, were given in payment. It is appellant’s contention that in executing the contract and notes Williams exceeded his authority. As held by .Judge Dibrell in Kincheloe Irr. Co. v. Hahn Brothers & Co., supra, in answering the contention there urged that the general manager exceeded his authority in making the contract in that case declared upon, that Bullock, as defendant’s general manager, undertook to comply with the terms of the agreement, and hence the plea of Bullock’s exceeded authority is not available as a defense.

The same question is discussed and decided by the Supreme Court against appellant’s contention in Bond et al. v. Terrell Cotton, & Woolen Mfg. Co., 82 Tex. 309, 18 S.W. 691; Texas & W. Railway Co. v. Gentry, 69 Tex. 625, 632, 8 S.W. 98, and numerous authorities in other jurisdictions referred to in the Bond v. Terrell C. & W. Mfg. Co. case, supra, [82 Tex. 309, 18 S.W. 691, 693] and the cases referred to in appellee’s brief. In the Bond case Judge Tarlton refers to some cases in other jurisdictions holding as contended by appellant. As to said cases Judge Tarlton said, “We cannot appreciate the force of the reasoning as applicable to the jurisprudence of our state.”

Other than the correction made the motion is in all matters overruled.