author: HALL, Justice.

text:
    McMURREY CORPORATION et al. v. YAWN et al.
    No. 5622.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 16, 1940.
    Rehearing Denied Oct. 10, 1940.

      W. M. Futch and Clifford L. Stone, both of Henderson, and F. W. Fischer, of Tyler, for appellants.
    Jones & Jones, of Marshall, and Smith & West, of Henderson, for appellees.
   HALL, Justice.

Addie Yawn, surviving wife, and the minor children of Girardus H. Yawn, ap-pellees, instituted this suit against the McMurrey Corporation, the McMurrey Petroleum Corporation, the McMurrey Interests, the McMurrey Pipe Line Company, the McMurrey Refining Company Marvin H. McMurrey, Jim McMurrey, and Lucille McMurrey, for damages occasioned by the alleged wrongful death of Girardus H. Yawn, hereinafter^ referred to as deceased. It was alleged that the McMur-reys were partners, joint adventurers, or joint associates in the ownership and operation of certain oil .properties located in Rusk County, among which was the oil lease known as the Pinkston lease, and that one Rudolph Loesewitz was employed by them to guard, supervise and manage said lease; that said Loesewitz as their agent and while acting within the scope or apparent scope of his authority as watchman, manager and operator of said lease, and not in his own self-defense, negligently and carelessly shot and killed deceased. In the alternative it was alleged that the killing of deceased was intentionally brought about by the conspiracy of the McMurreys acting by and through their agent, Loesewitz. All the McMur-reys including the several companies answered denying partnership, and all except Jim McMurrey denied that Loesewitz was their employee or agent in any capacity. Jim McMurrey answered that after he purchased the Pinkston lease he employed Loesewitz to look after said lease “generally” and to flow the oil .wells located thereon; that at the time Loese-witz killed deceased, he, Loesewitz, “was outside of his employment or the scope of his employment by this defendant; that said Rudolph Loesewitz, at the time of such killing, and immediately prior thereto, was acting in his own self-defense, for all of which this defendant is in no way liable for damages or any part of the damages sued for herein.”

The record reflects that deceased operated and managed the Pinkston lease before it was purchased by Jim McMurrey. Shortly after its purchase he was discharged, and Loesewitz was employed in his stead. While deceased was working on the Pinkston lease he lived in a house located thereon. This house was purchased either by Jim McMurrey or some one for him, and was being moved on the day deceased was killed. Deceased had removed from the lease before his death. Loesewitz also lived in a house located on the lease about 200 or 300 feet from the house formerly occupied by deceased. After deceased had been discharged by appellant and before his death, some of the oil wells located on this lease had .on two occasions been turned on at night, causing the ' tanks to overflow. Loese-witz thought that deceased was the party who turned on the wells and he so informed Jim McMurrey. On the day of the killing Loesewitz was informed that deceased was on the lease near the house where he had formerly lived. On receiving this information Loesewitz took his shotgun, went to where deceased was, and after speaking a few words to him shot and killed him. Loesewitz testified that threats by deceased to take his life had been, on two occasions, communicated to him; one on the night before, and the other a few minutes before the killing. Loesewitz also testified that, at the time of the killing, deceased by acts committed evidenced an intention to carry said threats into execution and that he shot him in self-defense. It later developed, however, that deceased was unarmed. The jury verdict upon special issues and the judgment rendered thereon were for appellees and against defendants Jim McMurrey, M. H. McMurrey, and the McMurrey Corporation, jointly and severally, who prosecute this appeal. The other defendants were dismissed from the case.

This action was brought under Article 4671, Sec. 1, R.C.S., by the dependents of deceased for damages for his alleged wrongful killing by Loesewitz. The evidence is undisputed that the killing of deceased was intentional and not the result of negligence. Self-defense was relied on as a justification for said killing. The court below charged the jury as follows:

“You are charged that by the term ‘wrongful’ as used in Special Issue No. 1, means the use of a greater degree of force than was reasonable and necessary under the circumstances then existing.

“Now bearing in mind the foregoing definitions and instructions, you will answer the following special issues, to-wit: Special Issue No. 1:

“Do you find from a preponderance of the evidence that the action of Rudolph Loesewitz in shooting and killing the deceased, Girardus H. Yawn, was wrongful? Answer Yes or No.”

Jury answer: “Yes.”

By proposition No. 9 appellants challenge the correctness of this definition when applied to the facts and circumstances surrounding the defense of self-defense as shown by the testimony in the record. Appellants’ proposition is: “In a civil suit to recover damages for the alleged wrongful death of the deceased, where the defendant’s pleadings and evidence raise the issue that the deceased had made threats against the life of the defendant, which were communicated to the defendant, and that, by the demonstration made by the deceased, the defendant believed the deceased intended to carry out such threat, and, in defense of himself, he killed the deceased, it is error for the court to submit to the jury the bald question whether the action of the defendant in killing the deceased was wrongful, without instructing the jury upon the law of threats and self-defense and justifiable homicide. An instruction that the term ‘wrongful’, as used in the question, means the use of a greater degree of force than is reasonable and necessary under the circumstances then 'existing, is entirely inadequate, misleading, and gives to the jury the impression that the killing of the deceased was the exercise of a greater degree of force than was necessary, and was, therefore, wrongful.”

If Loesewitz was acting in his own self-defense at the time he shot and killed deceased, the killing in law would not be wrongful but justifiable. This is true in a .civil action as well as in a criminal action. It was said in the early case of March v. Walker, 48 Tex. 372: “The law of self-defense is the same as in a criminal prosecution, with the exception of the rule of evidence which, in a criminal cause, gives the defendant the benefit of a reasonable doubt. That doubt, however, is as to the facts, — not as to the extent of the right. The stage of the difficulty at which self-defense ceases is just the same, whether the question be investigated civilly or criminally.”

To the same effect are Croft v. Smith, Tex.Civ.App., 51 S.W. 1089; St. Louis Southwestern R. Co. of Texas v. Huddleston, Tex.Civ.App., 178 S.W. 704, writ refused. This defense was not only available to Loesewitz had he been sued, but also to his principals, appellants herein. Cameron Compress Co. v. Kubecka, Tex.Civ.App,, 283 S.W. 285, writ refused. Loesewitz testified that he thought deceased on two occasions at night had turned on the oil wells located on said lease, causing the oil tanks to overflow; that he 'had deceased make tracks for comparison with “boot tracks” found near the oil wells; . that he reported to the sheriff’s office of Rusk County and to the officers of the Riiilroad Commission that said oil wells had been turned on. Loese-witz testified further that he went to see the district attorney of Rusk County for the purpose of having deceased placed under a peace bond to avoid having trouble with him. On the night before deceased was killed Loesewitz testified that his (Loesewitz’s) wife told him that deceased “was coming on the lease and get me”; that about fifteen minutes before the killing “T. M. Hill came up and told me that Buck Yawn (deceased) was down on the lease and had a gun and was going to — he said, ‘going to kill you the first time he saw you.’ ” Loesewitz testified further:

“Q. When Hill told you that, what did you do? A. I got me a gun and went down there to get him to carry him to town.

“Q. Well, how near did you get to him before you saw him? A. I judge between 20 and 30 steps.

“Q. Did you say steps? A. I said steps but I mean feet, between 20 and 30 feet.

“Q. What did you say to him, if anything? A. I said, ‘All right, Buck come and go with me, you are going to town.’

“Q. What did he do, if anything? A. He made about two steps and went left hand to his waist—

“Q. What did you say or do, if anything? A. I did not say anything or do anything, I just raised my gun and shot.

“Q. Then what did you do? A. I turned around and went to the Lispen Gasoline plant and called the sheriff’s department and told them to call Jim McMurrey, told them about what had happened.

“Q. Who was the first person you saw after you had shot Buck Yawn? A. My wife — I believe it was my wife.

"Q. Do you know Mr. Larner? A. Yes, I know him.

“Q. Did you see him first or your wife? A. I can not say for sure whether it was him or my wife.

“Q. What statement, if any, did you make to Mr. Larner about Buck? A. The same statement I made to every one, the only statement I made was to go and watch him and don’t let them take that gun off of him.

“Q. How long was that after you had fired the shot that had killed Buck Yawn? A. About as long as it would take you to walk around — say 100 feet.

“Q. What was Buck Yawn doing, just prior to the time thát you fired the shot that killed him? A. He was walking toward me.

“Q. Was he doing anything else? A. Weil, when I first seen him he had his back towards me and was walking off.

“Q. When he started towards you what movement did he make with his hands? A. He went left-handed for his shirt, like he was going in his shirt after something.

“Q. What did you think he was going to do? A. I thought my time had come; I thought he would probably kill me.

“Q. What did you think he was going to kill you with? A. I thought he had a gun in his belt.

“Q. Did you know the reputation that Buck Yawn bore in that ’neighborhood, and in that vicinity, for being a law-abiding man? A. I had heard about him toting a pistol and shooting out -lights out of those honkey-tonks up and down the highway.

* * * ⅜ * *

“Q. When you put the Ford pick-up in the Rushing garage and walked home, who was it that you were afraid of that night, who was it you were afraid would come, or might? A. Well my wife told me it was Buck Yawn.

“Q. From what your wife had told you about what was going on up at the store, they were going to get you that night, you left it there because you were afraid that Buck Yawn and whoever might be with him would come? A. Yes.

“Q. That was Friday night before the killing on Saturday? A. Yes, sir.”

This testimony, in our opinion, clearly raises the issue of communicated threats and self-defense, and the court’s definition of the term.“wrongful” as applied to the facts in this case is incorrect. If at the time of the killing the deceased by his acts and conduct reasonably induced Loese-witz to believe that deceased was about to attack him with a deadly weapon which would probably cause Loesewitz’ death or some serious bodily injury; or if by the acts of the deceased it reasonably appeared to Loesewitz at the time, viewed from his standpoint alone, that deceased was then about to attack him with a deadly weapon which would probably cause Loesewitz’ death or some serious bodily injury, and if same was reasonably calculated to create in the mind of Loesewitz, and did create in his mind, a reasonable expectation of fear of death or some serious bodily injury, and that Loesewitz then and there moved and actuated by such reasonable expectation of fear of death or serious bodily injury, -shot and killed deceased, then under such circumstances the killing would be in his lawful self-defense and would not be “wrongful.” Where a person accused of murder seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offense, unless it be shown that at the timei of the homicide the person killed by some’ act then done -manifested an intention to execute the threats so made. If deceased did make threats against the life of-Loesewitz and at the time of the killing deceased made such an act or demonstration as reasonably to produce in the mind ofl Loesewitz, viewed from his standpoint ah the time, a belief that deceased then anc^; there intended to execute such threats and. to take the life of Loesewitz, or to do him-some serious bodily harm, then the killing would not be “wrongful.” It is not essential to the right of self-defense that real danger should exist. If from Loesewitz’ standpoint, taking into consideration all the facts and circumstances surrounding the parties, it reasonably appeared to him that he was in danger of death or serious bodily injury, under the law he had the right to defend against such apparent danger to the, same extent as if the danger were real, and if he shot and killed the deceased under such circumstances the killing would not be “wrongful.” Kelly v. State, 68 Tex.Cr.R. 317, 151 S.W. 304. This omission from the definition of the term “wrongful” in the court’s charge preceding Special Issue No. 1 is vital, and calls for a reversal of this case. Barrow v. Barclay, Tex.Civ.App., 269 S.W. 235, writ refused; Whitaker v. Haynes, Tex.Civ.App., 128 S.W.2d 532. The converse of the above is also true; that is to say, if Loesewitz used a greater degree of force than was reasonable and necessary under the circumstances existing at the time of the killing and was not acting in his own necessary self-defense as explained above, the killing would be “wrongful.”

Appellants’ tenth proposition complains of admission in evidence over their objection of portions of Mrs. Loesewitz’ and Mrs. Brown’s depositions taken in another cause. It appears from the record that cause No. 13202 was filed on October 6, 1937. Notice to take the oral depositions of Mrs. Loesewitz and Mrs. Brown was issued on the same day, that said depositions were taken on October 23, 1937, and were returned and filed November 3, 1937. Pleas of privilege of Marvin McMurrey and Mrs. R. J. McMurrey were filed October 26, 1937, and that of Jim McMurrey was filed November 5, 1937. To these pleas, controverting affidavits were filed. The main suit, on motion of appellees, was dismissed November 23, 1937. Under this state of facts it could not be said that the depositions of Mrs. Loesewitz and Mrs. Brown were taken in connection with “the case” made by the filing of the pleas of privilege and the controverting affidavits, as contemplated by Article 2018, R.C.S., for the reason that notice to take and the taking and filing of said depositions occurred several days before appellants filed their pleas of privilege. So it must be held that these depositions were in fact taken and filed in the main cause of action, No. 13202. This suit, No. 13334, filed November 27, 1937, although between practically the same parties and involving the same subject ■matter as No. 13202, is a different cause within the meaning of Article 3766, R.C.S., and the depositions of Mrs. Loesewitz and Mrs. Brown taken in cause No. 13202 were improperly admitted in evidence in cause No. 13334. This assignment is sustained. People’s National Bank v. Mulkey, 94 Tex. 395, 60 S.W. 753; Caddell v. Lufkin Land & Lbr. Co., Tex.Com.App. opinion adopted by Sup.Ct., 255 S.W. 397; Martinez v. Bruni, Tex.Com.App. opinion approved, 235 S.W. 549; Castleberry v. Bussey, Tex.Civ.App., 166 S.W. 14, writ refused; Texas & P. R. Co. v. Gurian, Tex.Civ.App., 77 S.W.2d 274, writ dismissed; Connecticut Gen. Life Ins. Co. v. Smith, Tex.Civ.App., 94 S.W. 519, writ dismissed.

All other propositions brought forward have been carefully examined, are thought to be without merit, and are therefore overruled.

The judgment is reversed, and the cause-remanded.


source: Caselaw Access Project

author: STOKES, Justice.

license: Public Domain

text:
    WHITTENBURG et al. v. JAMESON et al.
    No. 4929.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 23, 1940.

      Sanders & Scott and Morgan, Culton, Morgan & Britain, all of Amarillo, for appellants.
    W. J. Smith and John F. Sturgeon, both of Pampa, for appellees.
   STOKES, Justice.

This suit in the nature of trespass to try title was filed by J. A. Whittenburg on February 1, 1936. J. A. Whittenburg aft-erwards died and the appellants, as substitute plaintiffs and heirs at law of J. A. Whittenburg, on April 10, 1937, filed the second amended original petition upon which the suit was tried. On April 13, 1937, appellees, Amno A. Jameson, a feme sole, on behalf of herself and in her capacity as guardian of Etta Bettie Jameson, a minor, and J. A. Jameson, P. H. Jameson, I. S. Jameson, Bettie Hufstetter and her husband, R. W. Hufst.etter, and Nellie D. Eller, a feme sole, filed their original answer and cross-action consisting of a plea of not guilty, general denial, and allegations in the form of trespass to try title against appellants. In their petition appellants sued for the title and possession of a tract consisting of 5.6 acres of land, describing it by metes and bounds, contending that it is a portion of Section 19-V, which lies immediately west of Sections 11 and 12, in Block M-21, of the H. & T. C. R. R. Co. Surveys. In their cross-action, appellees set up title in themselves to all of Section 12, describing it by metes and bounds which extend the west end of the section a sufficient distance to include the 5.6 acres in dispute. Thus it will be seen that the controversy involved in the suit is confined to the 5.6 acre tract, appellants contending it is a portion of Section 19-V, and appellees contending it is included in Section 12.

The record reveals a long history of various surveys that were made in Hutchinson .County, beginning in 1874 by a survey of Block 46, H. & T: C. R. R. Co. Surveys, lying south of and adjoining the Canadian River. This survey was made by F. M. Maddox at the same time he surveyed Block 47, H. & T. C. R. R. Co., lying north of and adjoining the river, and probably consisted of an office survey only. At any rate, although there were a large number of sections included in the block,' there were ho monuments established or marked on the ground locating the corners or lines of any of them. The sections in Block 46 were what is known as River Sections, the north lines meandering with the river, the sections being approximately two miles long and one-half mile wide.

On July 30, 1878, John Summerfield made a survey of several sections of land in the same vicinity known as Block B-4. The location of this survey will be referred to a little later.

In the year 1881 E. C. McLean made the survey which contains Section 12, the title to which is claimed in this suit by appel-lees, the survey being known as Block M— 21, T. C. R. R. Co. The pertinent sections in this survey are Sections 7, 8, 9, 10, 11, 12 and 13. The survey of Block B-4, made in 1878 by John Summerfield above mentioned, lies west of the south portion of the McLean survey of Block M-21 and south of the Maddox survey of Block 46, H. & T. C. R. R. Co.

In surveying Section 12, Block M-21, McLean began at the northeast corner of Section 11 which adjoins it on the south, and ran' thence west 2,850 varas to what he designated as a mound in the east line of Section 57, in Block 46, of the H. & T. C. R. R. Co. Surveys; thence north 200 varas to what he designated as the southwest corner of Section 56, in Block 46; thence .east 950 varas to the southeast corner of Section 56; thence north 1,145 varas to the southwest corner of Section 55, Block 46; thence ehst 950 varas to its southeast corner; thence north 950 varas to the southwest corner of Section 54, Block 46; thence east 950 varas to its southeast corner; thence south 2,255 varas to the place of beginning. In order that these lines, as well as other lines involved, may be traced, we here insert a small plat:

From this plat it will be seen that in running west on the first call in Section 12 from the northeast corner of Section 11, a distance of 2,850 varas, McLean did not encounter the east line of Section 57, in Block 46, as designated by him, but reached a point 141.2 varas west and 278 varas south of the southeast corner of Section 57. This discrepancy arose by virtue of the fact that in 1888, seven years after McLean surveyed Block M-2,1, George Spiller re-surveyed the River Sections in Block 46, H. & T. C. R. R. Co. and, for the first time, definitely established on the ground the east line and southeast corner of Section 57, as well as the other sections in that block. Spiller’s survey located the southeast corner of Section 57 at a point 278 varas north and 141.2 varas east of the point where McLean designated the southwest corner of Section 12. It is evident, therefore, that when McLean ran the south line of Section 12, beginning at the northeast corner of Section 11, and running west 2,850 varas, he thought he had arrived at the east line of Section 57. If the south line of Section 12 terminates 2,850 varas west of the northeast corner of Section 11, regardless of the location of Section 57, Block 46, and McLean’s footsteps are traced thence north to the south line of Section 57, the 5.6 acres involved in this case will be excluded and thrown into Section 19-V, which belongs to appellants. If, however, the south line of Section 12 is extended 113.8 varas further west and is 2,963.8 varas in length, as claimed by appellees, and a course run thence north to the south line of Section 57, the 5.6 acre tract is included in Section 12 and belongs to appellees as decreed by the trial court. The vital question in the case is, therefore, whether or not the south line of Section 12, Block M-21, is 2,850 varas in length or 2,963.8 varas in length.

Section 12, consisting of 556.3 acres, was patented January 9, 1935, upon the application of J, W. Hoppes. At that time a new survey was made of the section by A. H. Doucette. In making this survey Doucette began at the northeast corner of Section 11, the same point at which McLean began the original survey of the section. Instead of running thence west on the north line of Section 11, however, as McLean had done when the original survey was made in 1881, Doucette ran north with the west line of Section 74, Block Z, which is the east line of Section 12. He thus arrived at the northeast corner and then followed the south lines of the adjoining river sections in Block 46 until he arrived at the southeast corner of Section 57, as established by Spiller in 1888. Thence he ran west (N. 89° 43’’ 40" west, to be exact) 242.5 varas; thence south 276.6 varas to the northern northwest corner of Section 11 as he had located it; thence east with the north line of Section 11, as he had located it, 2,963.8 varas to the place of beginning. Thus it will be seen that the patent issued by the State in 1935 includes the 5.6 acres here involved by virtue of the fact that the south line of Section 12, which is also the north line of Section 11, is extended 2,963.8 varas instead of 2,850 varas as designated by McLean when the section was originally surveyed by him.

The general rule of law is well established in this State that a grant of land should be established by the calls of its own field notes. Inconsistencies frequently develop in following the footsteps of early surveyors who established lines and corners of surveys, and when this happens we are supplied by the decisions with rules to which resort may be had and parol evidence may be entertained, if necessary, to relieve doubt and locate the lines which were actually run by the surveyor. Thompson v. Langdon, 87 Tex. 254, 28 S.W. 931, 935. Judge Gaines, speaking for the Supreme Court in the cited case, and referring to 'this rule, said: “It is but a. case of a latent ambiguity in a written instrument. A writing unambiguous upon its face may become doubtful when applied to the subject-matter of the description. On the other hand, if there be no conflict in the calls found in the field notes of a survey, there is no room for construction, and the calls must speak for themselves. To permit the introduction of parol evidence to vary the calls would be to violate the familiar rule that extraneous evidence is not permissible to vary a written instrument. Such is the case before us. None of the objects called for in the field notes of survey No. 104 for the purpose of identifying its corners were found upon the ground, except those used to designate the place of beginning. If the' north boundary line or the northwest corner of No. 105 had been called for, then parol evidence would have been admissible in order to show where that line was actually run, and in case of a •conflict the call for distance would have been controlled by the establishment of such line.”

Furthermore, as held by the Supreme Court in the above case, it is not proper to resort to the calls in the field notes of other surveys even though they may have been made at the same time and by the same surveyor in order to create a conflict when none will arise from 'the calls of the survey involved under application to the objects called for as actually found on the ground. This is pertinent for the reason that in adding 'the 113.8 varas to the west end of Section 12, Doucette resorted to the corners established by John Summerfield when he surveyed Block B-4 on July 30, 1878. Doucette justified his act in resorting to that survey by two incidents shown by the record: First, that in surveying Block M-21 in 1881 McLean tied the west line of Section 7 in that block to the east line of Section" 1 in Block B-4 surveyed by Sum-merfield, and, secondly, that the southwest corner of Section 6 in the latter block is a well established and marked corner. The record shows that McLean did tie the west line of his Section 7 to the east line of Section 1, Block B-4, entering the distance as 941 varas. Doucette, in running the lines of the sections in Block B-4, found that the distance actually existing upon the ground between Section 1 of his Block B-4 and Section 7 of McLean’s Block M-21 was 1,026.2 varas, instead of 941 varas, as called for by McLean. This had the effect, if Doucette’s survey takes precedence, of establishing the east line of Section 1, Block B-4, at least 7S.2 varas west of where it would be if located 941 varas west of the west line of Section 7, in Block M-21, and adding the excess in distance to the south line of Section 9, Block M-21.

In surveying Sections 9, 10, 11 and 12, Block M-21, Doucette carried this excessive distance through the west lines of all of them, picking up, perhaps, additional excessive distances, to the west end of Section 12 so that, by the time he reached that point, the excess amounted to 113.8 varas. The record is voluminous and the testimony concerning these excesses and the surveys made by Doucette is of a technical" nature and, since, in our view of the case, the manner in which Doucette thus established the southwest corner of Section 12 is immaterial, we do not deem it necessary to enter into an extended explanation or discussion of it.

We do hot think it is proper under the record in this case to establish the southwest corner of Section 12, Block M-21, from the southwest corner of Section 6 in Block B-4, because, in order to do so, the northeast corner of Section 1 -in Block B-4 must first be definitely established and the testimony reveals a natural monument consisting of a large cottonwood tree marked “X” near the south line of Section 2 in that block from which the northeast corner of Section 1 would be located at an entirely different place from where it would be if located from the southwest corner of Section 6. It is true t-here is some doubt as to whether the cottonwood tree was an east bearing or a west bearing tree from the point on the south line of Section 2 designated by John Summerfield in the original survey, but taken in connection with the location of the east line of Section 1, Block B-4, as indicated by McLean, it is of sufficient significance to cast doubt upon the accuracy of the location of the northeast corner of Section 1 made by Doucette according to his testimony. Furthermore, there is shown in the record and on the plats accompanying it a definite recognized monument much nearer the northeast corner of Section 11 (which was McLean’s beginning point in his survey of Section 12) than the southwest corner of Section 6 in Block B'-4 or the northeast corner of Section 1 in that block. The monument referred to is located at the northwest corner of Section 13 in Block M-21. It is called for by McLean in his original field notes of that section which is a portion of Block M-21, and is part of the same general survey as Section 12. The monument is designated as an “old pile of rocks.” It is located at the southwest corner of Section 72, Block Z, which, as we have stated, is also the northwest corner of Section 13. The authenticity of this monument is not questioned by any of the witnesses or surveyors but is recognized as an established corner by all of them. By running from this corner north to the northwest corner of Section 72, which is 120 varas south of the northeast corner of Section 10, Block M-21, thence east 1,900 varas, the southeast corner of Section 11 is reached. From this point north 1,089 varas with its east line, the northeast corner of Section 11 is reached, and that was the beginning point of McLean’s original survey of Section 12. These courses and distances are not disputed by any party to this suit. No surveyor has brought them into question by his testimony and we conclude that this is the only accurate process 'by which the northeast corner of Section 11 can be located. Moreover, it is attained according to the field notes of the same survey of which both Section 11 and Section 12 are a part, viz., Block ML21.

It is quite correctly held by our courts , that it is not proper to resort to field notes of another survey in order to create conflicts where no such conflicts appear from the calls of the survey in question and applied to the objects or monuments designated as actually found on the ground. Thompson v. Langdon, supra; State v. Sun Oil Co., Tex.Civ.App., 114 S.W.2d 936; Petty v. Paggi Bros. Oil Co., Tex.Com.App., 254 S.W. 565; Upshur County v. Lewright, Tex.Civ.App., 101 S.W. 1013.

It was said by the court in the Sun Oil Company case [114 S.W.2d 946] that “Where a survey can be located according to" its own field notes from established corners called for therein, this is the proper method of location, rather than to look to the field notes of other surveys, especially when, by relying on field notes of other surveys, inconsistencies will occur and conflicts with other surveys result.”

The boundaries of Section 12 can be accurately determined from the calls of McLean’s survey of Block M-21. The sections in that survey were constructed one above the other and the entire block constituted one piece of work. McLean, no doubt, had surveyed Section 11 immediately prior to his construction of Section 12 and knew the exact spot where the northeast corner of Section 11 was located. Having called for the pile of rocks at the southwest corner of Section 72 when he surveyed Section 13, he undoubtedly knew where that monument was located and constructed the entire block of sections from that monument. We think it clear, therefore, that McLean knew the location of the northeast corner of Section 11 which constituted his beginning point in surveying Section 12. The'object which the courts have in view in ascertaining boundaries of surveys is the intention of the surveyor and it is universally held by the courts that such intention must be ascertained from his report of his work where that is possible. We are, therefore, concerned here only with the original intention of McLean when he made his survey of Section 12 in 1881, as reflected by his field notes, and if his foot-steps can be traced from the report which he made of his' work, it is our duty to follow them. The field notes made by him at that time reveal that, from the northeast corner of Section 11 he ran west a distance of 2,850 varas. At this point he says in his field notes that he encountered the east line of Section 57, Block 46, and established at that point the corners of both Sections 11 and 12. When George Spiller made a re-survey of Section 57, in Block 46, seven years later, it was found that that section was some distance north of the point where McLean stopped. He was mistaken, therefore, when he said in his field notes that he arrived at the east line of Section 57. If the east line of Section 57 had been in the neighborhood of where McLean thought it was, it, being an artificial object, would have controlled over the course and distance which he said he followed in running the south line of Section 12, in event of a conflict, but by Spiller’s later survey it was revealed that McLean was mistaken as to the location of Section 57, and in that event the course and distance traveled by him will control. The rule controlling a situation such as this is well established by many authorities. A call for adjoinder, such as McLean made for the east line of Section 57, ordinarily controls over a call for course and distance, but when it is shown that the adjoinder call was the result of a mistaken belief as to the existence of the adjoinder, the call for course and distance then takes precedence and is controlling. It was said by Judge Smedley, speaking for Section B of the Supreme Court Commission, in Blake et al. v. Pure Oil Co. et al., 128 Tex. 536, 100 S.W.2d 1009, 1012, that:

“In such situation the call for adjoinder will be rejected as inserted by mistake and controlling effect given to course and distance from known or undisputed corners, when under the facts of the particular case such construction of the survey is 'most consistent with the intention to be derived from the entire description.’ Wilson v. Giraud, 111 Tex. 253, 264, 231 S.W. 1074, 1078; Porter v. State (Tex.Civ.App.) 15 S.W.2d 191, 193; Finberg v. Gilbert, 104 Tex. 539, 547, 141 S.W. 82; Gerald v. Freeman, 68 Tex. 201, 204, 4 S.W. 256; State v. Sullivan [127 Tex. 525], 92 S.W.2d 228; State v. Talkington (Tex.Civ.App.) 274 S.W. 314; Cox v. Finks (Tex.Civ.App.) 41 S.W. 95, 99; Gilbert v. Finberg (Tex.Civ.App.) 156 S.W. 507; Lafferty v. Stevenson (Tex.Civ.App.) 135 S.W. 216, 220; Lomax v. Rowe (Tex.Civ.App.) 3 S.W.2d 498; Burton v. McGuire (Tex.Com.App.) 41 S.W.2d 238.”

Following the' rule thus announced and well established by the many cases cited by Judge Smedley, we must conclude that the length of the south line of Section 12 is 2,850 varas, and no more. In running from the west end of that line north, McLean’s field notes say that he encountered the southwest corner of Section 56 at 200 varas. As Section 56 was subsequently located by Spiller, however, its southwest corner is some distance north and east of that point, hence the only rational course that can be followed to attain the result which McLean unquestionably sought to attain, and thought he had attained, would be to extend the 200 vara call to the south line of Section 57 as-subsequently located. Since the south line of Section 57 is encountered at this point, in order to reach the southwest corner of Section 56, it is necessary to run east 141.2 varas; thence north with the east line of Section 57 to the southwest corner of Section 56. If the lines of Section 12 are thus established, they exclude the 5.6 acres in controversy and this impels the conclusion that the tract in dispute is not a part of Section 12, Block M-21, but is a portion of Section 19-V and belongs to th.e appellants.

Appellees contend that, since the case was tried by the court without the intervention of a jury and the evidence was conflicting as to the distance or length of the south line of Section 12 and, therefore, as to the location and ownership of the 5.6 acres in controversy, the finding by the trial court establishing the length of that line as 2,963.8 varas and thus including the tract in controversy, instead of 2,850 .varas as shown by McLean’s original field notes, and thus excluding it, is conclusive upon this court. If appellees were correct in their premise, their conclusion of law in this respect would undoubtedly be correct, but we do not agree with appellees that the testimony is conflicting. The trial court, in our opinion, adopted an erroneous basis upon which to arrive at the correct length of the south line of Section 12. The record does not reveal findings of fact, but it is obvious that the trial court located the southwest corner of Section 12 from the southwest corner of Section 6 in Block B-4. The cardinal element of interpretation to be followed in locating lines, corners and areas in situations such as this is the intention of the parties, and that intention must, when possible, be ascertained from the reports which contain the details of the work done by them. Where it is possible to ascertain from his report the intention of the surveyor in locating the original lines of a survey of the work performed by him, it is not proper to-.consider other reports or surveys even though they may have been made by the same surveyor. We think this can easily be done from the report made by McLean when he made his original survey of Section 12. He began the survey of this section at the northeast corner of Section 11 and from what we have said in reference to the recognized monument in the northwest corner of Section 13 of the same survey, this beginning point can easily and accurately be located. As we have indicated, it is quite probable that McLean terminated the west end of the north line of Section 11, which is also the south line of Section 12, at 2,850 varas because he was laboring under the belief that the east line of Section 57, Block 46, was located there, yet, in surveying Section 12, he did not call for the northwest corner of Section 11 and we find nothing in his-field notes nor in any of the work done by him in surveying Block M-21 which indicates or even suggests that he would have extended the south line. of Section 12 a greater distance than 2,850 varas even if he had known that the east line of Section 57 in Block 46 was not actually located upon the ground at that point as he undoubtedly believed it was. The south line of Section 12 is the same as the north line of Section 11 of the same block and it was located by McLean at the same time and as a part of the same piece of work. In running the north line of Section 11 when that survey was constructed, he found it to be 2,850 varas and, in our opinion, there can be no doubt that it was his purpose and intention to establish the south line of Section 12 upon the same line as he had established the north line of Section 11. Controlling effect is always given to calls which will effectuate the intention of the surveyor and the course of his footsteps, as reflected by his report in running his lines, and any call which is inconsistent with that intention as reflected by the report of his work and results in its defeat must be rejected. As we have said, the record establishes beyond doubt that McLean’s intention was to establish the south line of Section 12 upon a course west from the northeast corner of Section 11 and terminate it at a distance of 2,850 varas. His intention to do so being obvious from the work performed by him on the ground in making the original survey, and his field notes showing plainly that he did so, it is not proper, and the trial court, in our opinion, erred in adopting the corners and lines established by Summerfield when ’he constructed Block B-4. There is no conflict in the evidence when applied to the lines run in Block M-21 by McLean. The conflict arises only when the lines run by Summer-field in Block B-4 are considered, and regardless of whether conflicts arose between the two surveys by virtue of corners established by Summerfield, or whether Sum-merfield’s surveys were properly located on the ground, the fact remains that when McLean’s work is considered and his footsteps followed, the testimony is barren of any conflict whatever. The trial court having adopted an erroneous basis for establishing the southwest corner of Section 12, his conclusion and judgment is likewise erroneous and must, therefore, be revised. Miller v. Southland Life Ins. Co., Tex.Civ.App., 68 S.W.2d 558.

From what we have said it is obvious that, in our opinion, the court below committed reversible error in rendering judgment for the appellees. The case was fully developed and no purpose could be served by another trial. The judgment should have been in favor of appellants and it will, therefore, be reversed and judgment here rendered that appellants recover of appellees the title and possession of the 5.6 acre tract described in their petition.


author: GRISSOM, Justice.

text:
    FISHER COUNTY PIPE LINE CO. v. SNOWDEN & McSWEENEY CO.
    No. 2040.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 4, 1940.

      Letcher D. King, of Abilene, for appellant.
    Scarborough & Ely, of Abilene, for ap-pellee.
   GRISSOM, Justice.

Plaintiff, Snowden & McSweeney Company, recovered judgment against defendant, Fisher County Pipe Line Company, for $601.31. Defendant has appealed.

Plaintiff's original petition, omitting formal parts and allegations that both plaintiff and defendant were corporations and allegations as to their residence, was, in substance, as follows: That defendant built its pipe line into the territory where plaintiff owned some leases; that plaintiff gave defendant a pipe line connection and delivered oil to defendant from certain leases. Paragraph three is as followte: “This plaintiff would further show that this plaintiff discontinued making its oil runs to said pipe line and demanded payment for the oil already delivered to said Fisher County Pipeline Company and made demand upon said Fisher County Pipeline Company for the value of the oil already delivered. This plaintiff would show that three-fourths of the seven-eighths de= livered to the defendant was owned unconditionally by this plaintiff and that the agreed price therefor made the total amount due for the oil so received to be the sum of $601.31, which though often requested the defendant herein has failed and refused to pay and still fails and refuses to pay, to the plaintiff’s damage in the sum of $601.31, for which it here sues.”

Wherefore plaintiff prayed judgment for its “debt”, etc. Defendant filed a .plea in abatement arid, subject thereto, an answer consisting, among other things, of a general demurrer and allegations as follows: “That plaintiff and defendant entered into a written contract and agreement on or about the tenth of August, 1938, under the terms of which contract the plaintiff agreed tó sell and the defendant agreed to purchase certain crude oil, which was being produced by plaintiff from its Sybil Howard Lease and Morrow Lease, both of said leases being located in the Rotal Oil Field, Fisher County, Texas; for all of which oil the defendant agreed to pay to the plaintiff herein the posted price of said crude oil delivered to it by the plaintiff at said above named leases, at the posted price for said crude oil as posted in that area, less the sum of ten cents per barrel; that the defendant did thereafter purchase said crude oil from the plaintiff which oil was produced from the above named leases.”

There' followed allegations to the effect that said written contract provided that before defendant would be obligated to pay for the oil delivered to it plaintiff would furnish an abstract “or other evidence of title” for defendant’s examination so that defendant might determine whether or not plaintiff had title to the oil sold. That defendant had demanded abstracts and plaintiff had failed to furnish them. These were substantially the same allegations as contained in defendant’s plea in abatement. Plaintiff answered by supplemental petition in which it alleged plaintiff and defendant entered into a contract whereby defendant agreed to buy the oil produced from plaintiff’s leases and that defendant had waived any right it might have had to demand abstracts and had advised plaintiff that it did not desire to examine abstracts “since oil had been sold to other pipe lines prior to the time that the defendant started buying said oil and that since the requirements made by the other pipe line companies had been met, that this requirement would not be insisted on and the same were thereby expressly waived.”

No ruling was had upon defendant’s demurrer. The plea in abatement was overruled. The trial was to the court. At defendant’s request the court filed findings of fact and conclusions of law, in part, as follows: (2) That plaintiff offered to satisfy defendant as to its title to the oil delivered, but defendant waived any requirement by agreeing to accept the division orders previously accepted by Onyx Refining Company. (3) That plaintiff delivered to defendant 964.51 barrels of oil at an agreed price of 95‡ per barrel. As its conclusions of law the court found, among other things, that defendant waived requirements relative to furnishing abstracts, and defendant was indebted to plaintiff in the sum of $601.30.

Only one witness testified. She testified that in June, 1938, arrangements were made with defendant for delivery of oil to it. That under the agreement defendant was to pay plaintiff for the oil delivered. That there was an agreement as to the price of the oil. That plaintiff owned three-fourths of seven-eighths of the oil delivered; that the amount of money now due plaintiff for the three-fourths of seven-eighths of the oil delivered was $601.31. Plaintiff introduced defendant’s crude oil “purchase” tickets delivered by defendant to plaintiff showing delivery of 478.57 barrels of oil on June 20, 1938, and 485.94 barrels of oil on June 27, 1938. Relative thereto the witness further testified:

“Q. Did you have an agreed price on the oil? A. Yes.

“Q. From the figures you have there, of the amount furnished you by the Fisher County Pipeline Company, please state whether or not %ths of the %ths amounted .to $601.30'? A. Yes.

“Q. Have you yourself figured that, Mrs. Cummings ? A. Yes.

“Q. Give us the method by which you arrived at it. A. The $601.30 is arrived at, by taking %ths of the %ths of these two figures. Do you wish me to give that ?

•“Q. Yes. A. 485.94 barrels, and 478.57 barrels.

“Q. Does that show the barrels taken from the two leases and delivered to the Fisher County Pipeline Company? A. Yes sir. And of course ⅝⅛ goes to the royalty owner, and ½⅛ of Jhe remaining %ths was due the people to whom we owed the oil payments.

“Q. You are not suing for that in this case? A. No. And the remaining %ths of the %ths is arrived at by multiplying by 95⅝⅛ a barrel.

“Q. And that makes the $601.30? A. Yes Sir.”

Plaintiff introduced a letter dated July 26, 1938, in which defendant advised plaintiff that defendant would not take any future oil runs from plaintiff’s leases as it was withdrawing from the field. The letter contains the following statement: “In view of the fact that there is such a small amount of money involved in this transaction I have decided to forego the examination of your titles in-order to determine who the proceeds from the sale of this oil should be paid to * * Mrs. Cummings testified that at the time the oil was delivered to defendant it agreed to accept the division order given by plaintiff to Onyx Refining Company, to whom plaintiff had sold oil from said leases prior to the time of the sale to defendant. She testified that Onyx Refining Company had accepted oil from the leases; that plaintiff had complied with all their requirements; that defendant’s representative advised “ * * * that he did not wish to examine the abstracts but would accept the Onyx Refining Company division order to make payments.” " On August 15, 1938, plaintiff mailed to defendant division orders containing the following provision: “Satisfactory abstract or other evidence of title will be furnished you as of the effective date hereof, and at any time thereafter when demanded by you.” Plaintiff did not furnish abstracts of title in compliance with defendant’s demand of January 24, 1939. Relative to this demand the witness testified:

“Q. State whether or not that’s the first time any demand had been made on you to furnish abstracts of title? A. It was.

“Q. How long had operations out there been discontinued? A. From June 28th, 1938 to January 24th, 1939.”

The witness testified that she furnished defendant with copies óf the division orders executed by plaintiff to Onyx Refining Company, and that defendant agreed to accept them.

Relative to the waiver the witness further testified:

“Q. All right. In addition to this correspondence that you have, what oral conversations or dealings did you have with Mr. King, as to furnishing him abstracts of title? A. I talked to Mr. King over long distance, and he told me very specifically that inasmuch as the pipe line was terminated, it would be of no further use, and he didn’t care to go to the expense of examining the abstracts, and he would accept the title as given him by us, and we did that. We co-operated with him in every way.

* * *

“Q. At that time, did he make any demand for title opinions or abstracts? A. He didn’t.

“Q. State whether or not he specifically said anything about it? A. He did. He said he didn’t wish them.

“Q. Did you rely upon that? A. Yes sir.

“Q. Is that why you didn’t furnish them? A. Yes sir.

‡ ⅜ ⅜

“Q. What was the conversation that you had with Mr. King, about the Division Orders that had already been furnished the Onyx Refining Company? A. Mr. King told me, that inasmuch as he was not going to continue his ■ operations in that locality, and being unable to take any more oil, that he would take the Division Orders that had been furnished to the Onyx Refining Company, in order to make payment.

* * *

“Q. Mrs. Cummings, I will show you plaintiff’s exhibits ‘EE’ and ‘FF’, and ask you if those instruments are the Division Orders that you were talking about, obtained from the Onyx Refining Company, or that you furnished the Onyx Refining Company? A. Yes sir.

“Q. Did yoii have any discussion with Mr. King about these particular Division Orders? A. Copies of these were the ones he agreed to accept.

“Q. To accept them. * * * What reason, if any, did he give you for accepting them ? A. So that he could make payment for the oil that he had run, without going to the trouble and expense of having abstracts examined for himself.

* * *

'“A. The only demand on us — the oil was run June 20, 1938, and time after time we had demanded payment to be made; we made one request after another on Mr. King. In January, of the following year, after he had refused to pay it, he then demanded 'abstracts of title.”

Appellant contends plaintiff’s petition is so defective that it will not support the judgment. .

In Southern Cas. Co. v. Morgan, Tex.Com.App., 16 S.W.2d 533, the court said: “General demurrer was pleaded, but it was not presented and given disposition. Hence, it was waived. Indiana & Ohio Live Stock Ins. Co. v. Smith (Tex.Civ.App.) 157 S.W. 755, and cases therein cited. The question (of insufficiency of the petition) is raised after verdict and judgment, and, so, at a time when all that is possible must be presumed in aid of the pleading (see Schuster v. Frendenthal, 74 Tex. 53, 11 S.W. 1051).”

In City of San Antonio v. Bodeman, Tex.Civ.App., 163 S.W. 1043, 1045, writ refused, the court said: “It is plainly deducible from the cases decided by our Supreme Court that said court has always been of the opinion that when the sufficiency of the petition is questioned for the first time after verdict more liberal rules should be applied in passing on the same than are laid down for testing the pleading when the demurrer is interposed and urged at the proper time. * * * The modern tendency is toward greater liberality in the construction of pleadings in order not to require the retrial of a case when justice has been done, and the parties understood what the points in issue were, and the same were submitted to a court or jury.”

The following authorities are to the same effect; they clearly demonstrate that the trend of the modern decisions is to liberalize the requirements relative to pleadings under the situation disclosed by this record: Panhandle Grain & Elevator Co. v. Dowlin, Tex.Civ.App., 247 S.W. 873; Commerce Farm Credit Ca. v. Ferguson, Tex.Civ.App., 47 S.W.2d 879; Rhoads v. Bonner, Tex.Civ.App., 49 S.W.2d 502, 505; Northern Texas Traction Co. v. Polytechnic, Tex.Com.App., 236 S.W. 73; Coleman Nat. Bank v. McDonald, Tex.Civ.App., 286 S.W. 487; Universal Credit Co. v. Vance, Tex.Civ.App., 117 S.W.2d 508, 511; Jones v. Womack-Henning & Rollins, Tex.Civ.App., 53 S.W.2d 635; Ferguson v. Conklin, Tex.Civ.App., 51 S.W.2d 622, 624; Phœnix Ins. Co. v. Boren, 83 Tex. 97, 98, 18 S.W. 484; Thomas v. Bonnie, 66 Tex. 633, 2 S.W. 724; Gulf, C. & S. F. R. Co. v. Anderson, 76 Tex. 244, 252, 13 S.W. 196; Clem Lumber Co. v. Elliott Lumber Co., Tex.Com.App., 254 S.W. 935, 936; Dowlin v. Boyd, Tex.Com.App., 291 S.W. 1095, 1097.

In Humphreys Oil Co. v. Liles, Tex.Com.App., 277 S.W. 100, 102, opinion by Judge Speer, the Court said:

“No exception is urged to this petition, and the attack, of course, comes after verdict. In such cases a very liberal construction of the pleadings will be indulged; so much so that every fair implication will be allowed to deduce from the actual language of the pleadings the necessary fact or facts to support the judgment. Schuster v. Frendenthal, 74 Tex. 53, 11 S.W. 1051.

“In testing the petition upon general demurrer the rule is, a liberal construction supplying every fact that may be reasonably inferred from the language used, and even more so after verdict, is the pleading favored.”

In Texas Emp. Ins. Ass’n v. Marsden, 131 Tex. 256, 114 S.W.2d 858,. the insurance carrier of a compensation claimant under the Workmen’s Compensation Act, Vernon’s Ann. Civ. St. art. 8306 et seq., filed no answer to plaintiff’s petition. The case was tried, evidence introduced and issues submitted as if issues had been joined on the allegations of plaintiff’s- petition by the filing of an answer. The Supreme Court held the answer was waived.

Appellant says plaintiff’s petition is wholly insufficient to sustain the judg-, ment. The question of insufficiency of the petition being raised after verdict and judgment, when it is too late for amendment, “all that is possible must be presumed in aid of the pleading.” Southern Cas. Co. v. Morgan, Tex.Com.App., 16 S.W.2d 533. “* * * when the sufficiency of the petition is questioned for the first time after verdict more liberal rules should be applied * * * than are laid down for testing the pleading when the demurrer is interposed and urged at the proper time. * * * ” City of San Antonio v. Bodeman, Tex.Civ.App., 163 S.W. 1043, 1045, writ refused. “In testing the petition upon genera^ demurrer the rule is, a liberal construction supplying every fact that may be reasonably inferred from the language used, and even more so after verdict, is the pleading favored.” Humphreys Oil Co. v. Liles, Tex.Com.App., 277 S.W. 100, 102.

Throughout the trial the parties and the court apparently treated the pleadings as sufficiently stating a cause of action; no objection was made to testimony on the ground that it was not supported by pleadings ; the case was fully developed on its merits; appellant was not misled or surprised and the justice of the case appears to have been reached. See Dowlin v. Boyd, Tex.Com.App., 291 S.W. 1095; Coleman Nat. Bank v. McDonald, Tex.Civ.App., 286 S.W. 487; Lipscomb v. Adamson Lumber Co., Tex.Civ.App., 217 S.W. 228.

If it be assumed that the petition is subject to a general demurrer, the presumption is that if it had been urged the court would have sustained it, and plaintiff would have filed an amended petition. But, applying the very liberal rules of construction hereinbefore stated, which have the approval of our Supreme Court, we are of the opinion that the judgment is not without requisite support. Townes’ Texas Pleading, 2d Ed., 405.

However, we are further of the opinion that giving effect to the established rule that every reasonable intendment must be indulged in favor of the pleading the petition is not subject to a general demurrer. Chipley v. Smith, Tex.Com.App., 292 S.W. 209.

Relative to the evidence we think it is sufficient to show a sale and delivery,, in June, 1938, to defendant of 964.51 barrels of oil at 95ff per barrel, plaintiff’s part of which amounted to $601.30. On. the merits of the case the evidence presented the disputed question whether plaintiff had the right to demand payment without furnishing defendant abstracts showing title in plaintiff. Stated differently, the question was whether the sale of oil was under an oral or written contract, and, if written, whether defendant waived its right thereunder to demand abstracts.' Defendant relies upon the division orders mailed by plaintiff to defendant August 15, 1938 to show a sale under a written contract, and plaintiff’s failure to comply therewith, in that plaintiff had not furnished abstracts showing title in plaintiff. These division orders were executed long after sale and delivery of the oil, and after payment therefor was due. At the time the division orders were signed the contract testified to by plaintiff’s witness was fully executed by all parties, with this single exception, defendant had not paid for the oil.

Plaintiff’s testimony is to the effect that there was an oral contract of sale made in June; the oil was delivered in June; that defendant agreed to accept copies of division orders formerly furnished by plaintiff to Onyx Refining Company, and under which it had made payment. That copies of such division orders were furnished defendant and it accepted them and promised to make payment thereunder. Defendant’s letter to plaintiff of July 26th stating that defendant would not take further oil runs from plaintiff’s leases since it was withdrawing from the field, and stating that defendant had “decided to forego the examination of your title”, evidently did not have reference to the written contract relied on by defendant, to-wit, the division orders executed thereafter on August 15th. Whether or not it had reference to such a custom can only be surmised. But, it is undisputed that the first demand for abstracts was made in defendant’s letter dated January 24, 1939, seven months after delivery of the oil, six months after payment was due and after plaintiff had requested payment many times. Even then abstracts were demanded, according to defendant’s letter, not because defendant was fearful of plaintiff’s title, but because its managing officer was displeased with the fact that plaintiff’s representative had conversed with his secretary in his absence and taken an attitude not to his liking. From all of which it may be inferred that in his absence plaintiff had been very insistent upon payment.

We think the court’-s findings that defendant was indebted to plaintiff in the sum of $601.31, and that defendant waived its right (if it ever existed) to demand abstracts, find support in the testimony.

Under such circumstances we think it is not shown as a matter of law that there was a merger of the parol agreement, testified to by plaintiff, in the division orders of August 15th, the written contract upon which defendant relies.

“An oral agreement is merged in a subsequent written one only where the oral agreement is executory on both sides. A new agreement, although reduced to writing, does not necessarily as a matter of law show that a former verbal agreement under which rights have already vested is rescinded or merged in the new bargain. That an oral contract was merged into a written one does not affect a party’s right to recover damages for a breach of the oral contract while it was in force. When 'damages have accrued through breach of a verbal agreement, and there is no waiver or disclaimer of such breach in a subsequent writing, an action will lie on the verbal agreement, notwithstanding the subsequent writing.” 13 C.J., Contracts, § 616, p. 598.

Also see: 17 C.J.S., Contracts, § 381, p. 875; 12 Am.Jur. 994; Stone v. Morrison & Powers, Tex.Com.App., 298 S.W. 538, 539; Cotulla v. Barlow, Tex.Civ.App., 115 S.W. 294, 297; Kahn v. Ilitzky, Tex.Civ.App., 107 S.W.2d 1015, 1016, writ dismissed; El Paso & S. W. R. Co. v. Harris & Liebman, Tex.Civ.App., 110 S.W. 145, 148, writ refused; Texas & P. Ry. Co. v. Avery, Tex.Civ.App., 46 S.W. 897, 899, writ refused.

If plaintiff’s testimony is believed, the only consideration for the execution of the division orders of August 15th was defendant’s promise to pay, a thing which defendant was already bound to do under its oral contract and, therefore, the said writings were without consideration. Stone v. Morrison & Powers, supra. '

We have carefully considered all of appellant’s assignments. We think reversible error is not shown.

The judgment is affirmed.


text:
    PIERCE et ux. v. BAKER.
    No. 2039.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 20, 1940.
    Rehearing Denied Oct. 18, 1940.
    H. F. Grindstaff and Smith & Smith, all of Anson, for appellants.
    Joseph A. Chandler, of Stephenville, W. O. Gross, of Mineral Wells, and Woodruff & Holloway, of Brownwood, for appellee.
   GRISSOM, Justice.

Roy Baker, administrator of the estate of Texas Rector, deceased, filed suit in trespass to try title to S30 acres of land in Palo Pinto County against Eugene Pierce and wife. Boyd Hart and others, who, together with Mrs. Pierce, are the heirs at law of Texas Rector, deceased, were also made parties defendant. The defendants, other than the Pierces, adopted the allegations of plaintiff’s petition and, in effect, became parties plaintiff.

The Pierces answered by plea of not guilty and general denial. They admitted the qualification of Baker as administrator of the estate of Texas Rector, deceased, on December 6, 1937; they further alleged that Texas Rector was formerly the owner of the land but that in 1932 she made a parol gift of the land to Eugene Pierce. By cross-action the Pierces alleged that Eugene Pierce was the owner of the land and prayed that the title thereto in said defendant be quieted. The parties, other than Baker andi Eugene Pierce and the husbands of some of the parties, were the heirs at law of Texas Rector,' deceased. This is not disputed. Baker sought recovery of the land solely as administrator. The record discloses that Baker, as administrator, was entitled to recover as a matter of law unless Mrs. Rector had given the land to Pierce. This was the only question in dispute relative to the title to the land.

The jury found that Mrs. Rector did not give her property to Eugene Pierce. It further found that the rental value of the property for 1938 was $10, and the value of the gasoline taken from the premises by Eugene Pierce since the death of Mrs. Rector was $10.

The court rendered judgment awarding to the administrator title to and possession of said land, and judgment against Eugene Pierce for $20. (The judgment further recited that it was without prejudice to any of the rights of the defendants as heirs at law of Texas Rector, deceased, and without prejudice to the rights of Baker to administer the estate under direction of the probate court.) From this judgment Eugene Pierce and wife have appealed.

Appellants contend they were entitled to an instructed verdict because plaintiff failed either to connect himself, as administrator, with a complete chain of title from the sovereignty of the soil, or to establish a common source of title. It is true plaintiff did 'not prove a complete chain of title from the State down to himself as administrator, but it is evident plaintiff and defendant Pierce claim title from a common source, to-wit, Texas Rector. Plaintiff claimed title to the land in controversy solely as her duly appointed and qualified administrator. (His appointment and qualification as such was established by the undisputed evidence and admitted by appellants’ pleading.) Pierce asserted title from Texas Rector by virtue of a parol gift from her to him. Pierce alleged Texas Rector was the owner of the land prior to the time that she gave it to him. As heretofore stated, the only issue relative to title was whether or not Texas Rector did in fact give the land to Pierce. This was a disputed issue which the jury resolved against appellants.

The court did not err in overruling appellants’ motions for an instructed verdict and for judgment notwithstanding the verdict. Luckel v. Sessums, Tex.Civ.App., 71 S.W.2d 579, 580; Brown v. Shaffer, Tex.Civ.App., 78 S.W.2d 1054, writ dismissed; Organ v. Maxwell, Tex.Civ.App., 140 S.W. 255, writ refused; Tinsley v. Magnolia Park Co., Tex.Civ.App., 59 S.W. 629, writ refused; Caplen v. Drew, 54 Tex. 493; Keys v. Mason, 44 Tex. 140, 142; Robinson v. Randell, Tex.Civ.App., 211 S.W. 625, writ refused; Dean v. Grogan-Cochran Lumber Co., Tex.Civ.App., 58 S.W.2d 552; House v. Reavis, 89 Tex. 626, 35 S.W. 1063.

Appellants’ first assignment of error is that the court erred in overruling appellants’ motion for an instructed verdict. Appellants contend they were entitled to an instructed verdict because (A) Baker, as administrator, failed to show his authority to prosecute the suit," and failed to establish a cause of action, in that, (1) plaintiff failed to show that the next of kin to deceased had waived their prior right to be appointed administrator; (2) because plaintiff failed to introduce in evidence his application for appointment as administrator; and (3) failed to prove he had filed an inventory and appraisement.

Appellants did not deny under oath the authority of Baker to sue as administrator, and they are precluded from raising the question for the first time on appeal. Art. 2010, R.S. 1925; Nelson v. Detroit & Security Trust Co., Tex.Com.App., 56 S.W.2d 860, 861; Schlottmann v. Wiese, Tex.Civ.App., 86 S.W.2d 44, 49; Balfour v. Collins, 119 Tex. 122, 128, 25 S.W.2d 804; Grundy v. Broome, Tex.Civ.App., 90 S.W.2d 939, 942.

In the absence of a verified der nial that plaintiff did not have .legal capacity to sue, or was not entitled to recover in thé capacity in which he sued, such facts not appearing from plaintiff’s pleading, proof thereof was not required. Art. 2010; Dolsen v. De Ganahl, 70 Tex. 620, 8 S.W. 321. However, plaintiff did allege his appointment and qualification as administrator and appellants, in their answer, admitted plaintiff’s qualification as administrator. Furthermore, plaintiff introduced in evidence the order of the probate court appointing him administrator as well as his oath and bond as such. This certainly constituted proof of Baker’s appoint-inent and qualification. Young v. Meredith, 38 Tex.Civ.App. 59, 85 S.W. 32, writ refused. Article' 3357, R.S. 1925, provides the order in which persons are entitled to appointment as administrator of an estate. Under said statute the “next of kin” of deceased were entitled to priority over Baker in securing appointment as administrator, if they did not waive such right. However, we are of the opinion that failure to prove that the next of kin had waived such right, if they did, does not have the effect attributed to it by appellants. They apparently rely strongly upon the case of Templeton v. Falls Land & Cattle Co., 77 Tex. 55, 13 S.W. 964. The petition in that case showed the administrator was not “next of kin.” That decision was based upon a statute which expressly prohibited the appointment of an administrator for foreign soldiers who died in defense of Texas, other than deceased’s “next of kin”, unless such administrator produced “authority from the heirs or next of kin of such deceased soldier, authorizing him to take administration * * Paschal’s Ann. Digest, Art. 1398. Said statute and decision are not applicable here.

There is another reason why appellants’ contention can not be sustained. The judgment of the probate court appointing Baker administrator does not disclose its invalidity. It is not subject to collateral attack as is here attempted. Rogers v. Kennard, 54 Tex. 30, 34; Murchison v. White, 54 Tex. 78, 84; Gulf, C. & S. F. Ry. Co. v. Beezley, Tex.Civ.App., 153 S.W. 651, 652, writ refused; Rogers v. Tompkins Tex.Civ.App., 87 S.W. 379, 382, writ refused; Mills v. Herndon, 77 Tex. 89, 13 S.W. 854; Becknal v. Becknal, Tex.Civ.App., 296 S.W. 917, 919; Reed v. Harlan, Tex.Civ.App., 103 S.W.2d 236, 240, writ refused.

Appellants complain of the action of the court in permitting plaintiff, during the trial, to interline the following italicized words in the second paragraph of the first count of his trial petition, as follows: “That on said day aforementioned,, plaintiff as such administrator was in and was entitled to possession of such lands and premises and afterwards on the 1st day of January, 1938, the defendants Eugene Pierce and Mrs. Eugene Pierce unlawfully entered upon and dispossessed him of such premises and unlawfully withheld from him as such administrator the possession thereof.”

The “day aforementioned” in the above quoted paragraph obviously referred to December 20, 1937, previously mentioned in paragraph 1 of the same count in which plaintiff alleged the following: “On the 20th day of December, 1937, plaintiff was the duly appointed, legally qualified and acting administrator of the estate of Mrs. Texas Rector, deceased, having been appointed as such administrator by the county court of Palo Pinto County, Texas, sitting in matters of probate on the 6th day of December, 1937, and having had letters of administration issued to him in such matter on the 20th day of December, 1937, and as such administrator he was on said date the owner in fee simple and entitled to the possession of the following described lands and premises situated in the county of-Palo Pinto.”

Similar allegations are found in paragraph 4 of the second count of plaintiff’s petition. Neither surprise nor injury is claimed or shown. The interlineation appears to have been unnecessary and immaterial. The court had authority to permit a trial amendment. To amend by inter-lineation was merely an irregularity which should not be permitted to destroy the judgment in the absence of injury to appellants. Leifeste v. Stokes, Tex.Civ.App., 45 S.W.2d 1006; American Rio Grande Land & Irr. Co. v. Barker, Tex.Civ.App., 268 S.W. 506; Brenan v. Eubank, Tex.Civ.App., 56 S.W.2d 513; Ortiz v. Navarro, 10 Tex.Civ.App. 195, 30 S.W. 581, writ refused; 33 Tex.Jur. 525.

Appellants’ eighth assignment of error is that the court erred in refusing to permit defendant Pierce to tell the jury why he claimed the land. The proposition and statement thereunder do not support the assignment. It is not shown, as asserted in the assignment, that the court refused to permit Pierce to testify why he claimed the land. Plaintiff having called defendant Eugene Pierce to the witness stand asked: “Didn’t you tell Judge Cor-rigan about December, 1937, that you há;d a claim against this estate for taking care of Mrs. Rector during the last year or. two of her life?” Said witness answered: “I told him that she gave it to me.” On plaintiff’s motion the court withdrew such answer from the consideration of the jury because it was not responsive to the question asked. If the question is presented we are of the opinion the answer was not responsive. Lynch Davidson & Co. v. Denman Lumber Co., Tex.Civ.App., 272 S.W. 803, 806; Minor v. Lumpkin, Tex.Civ.App., 53 S.W. 365, 366; 44 Tex.Jur. 1105.

We have carefully considered all of appellants’ contentions. . We think- reversible error is not shown. The judgment is affirmed.


author: MONTEITH, Chief Justice.

text:
    PERDUE v. HUGHES.
    No. 11137.
    Court of Civil Appeals of Texas. Galveston.
    Aug. 1, 1940.
    Rehearing Denied Oct. 10, 1940.
    Joe Bailey Humphreys and Kennedy & Granberry, all of Crockett, for appellant.
    Adams & Morgan, of Crockett, for ap-pellee.
   MONTEITH, Chief Justice.

This is an action brought by appellant, B. O. Perdue, against appellee, Dr. D. E. Hughes, for injunction to restrain appel-lee from practicing optometry in Houston County for a period of two years from the termination of a certain contract entered into between the parties.

Appellant’s suit was based upon a written contract, wherein appellant agreed to furnish appellee optometrical equipment, heat, lights, water, and telephone service, in consideration of which appellee agreed to pay appellant 20% of his gross ■ receipts and that upon the termination of said agreement he would not practice or engage in his profession in Houston County for a period of two years from and after the termination of said contract. Appellant sought an injunction restraining appellee from the practice of optometry under the terms of said contract. On a hearing before the court without a jury the injunction sought by appellant was refused. Appellant appeals from this order.

Appellant was and is the proprietor of a jewelry store in the town of Crockett in Houston County, Texas. He was not licensed to practice optometry but maintained an optometrical department in his place of business. Dr. D. E. Hughes was a licensed optometrist. By written contract appellant leased to appellee a portion of his establishment with a complete set of op-tometrical equipment, and agreed to furnish to appellee the store space, equipment, and utilities necessary for the practice of his profession. The record shows that ap-pellee bought and paid for the merchandise used in the practice of his profession and that he had complete charge thereof, and that appellant had no control or supervision thereof, but merely leased said space and equipment to appellee. The' contract was terminated on June 3, 1940. Subsequent thereto appellee moved to other quarters in Crockett, Texas, and began the practice of his profession. This action was brought by appellant to enjoin appellee from practicing optometry in Houston County within two years from the termination of the contract.

The trial court made the following findings of fact and conclusions of law:

“1. I find that plaintiff has, for a number of years, conducted a jewelry store in the town of Crockett, in Houston County, Texas; that he is the owner of optome-trical equipment, and for a number of years he has furnished such equipment, together with office space in his jewelry store, as well as lights, telephone, heat, water, etc., to various parties who were licensed to practice optometry, and receive compensation for the above items furnished by him a percentage of the gross receipts of such optometrist so occupying such space and using such equipment. Through this method, there had been maintained in plaintiff’s jewelry store service in optometry for several years; that plaintiff was not licensed .to practice optometry in Texas.

“2. I find that defendant was duly licensed by the State to practice optometry in the State of Texas, at the times herein.after mentioned.

“3. That on the 1st day of February, A. D. 1938, plaintiff and defendant entered into the following agreement:

“This trade agreement, made this 1st day of February, A. D. 1938, by and between B. O. Perdue, herein known as first party, and Dr. D. E. Hughes, known herein as Second Party,

“Witnesseth, that the said First Party agrees to furnish the Second Party the use of the former’s optometrical equipment, location in rear of store of Perdue Jewelry Company, lights, heat, water and telephone for local service.

“Second Party recognizes the advantages of practicing the profession of Optometry in the same location with First Party and further recognizes the extensive good will already established by B. O. Perdue, and the Perdue Jewelry Company; appreciation of the items of lights, heat, telephone, water and other conveniences to be enjoyed by my locating with First Party, hereby confessed and acknowledged, I, Dr. D. E. Hughes, covenant, warrant, contract and agree that as a special inducement to Mr. Perdue to associate me with his business that upon the termination of this trade agreement I will not practice or engage in my profession of Optometry, directly or indirectly, in Houston County for a period of two years from the termination hereof.

“Second Party agrees to pay unto Second Party at the close of each business day, twenty per cent (20%) of my gross receipts for the day.

“Second Party covenants that he will conduct the business and practice the profession of Optometry during the existence of this contract with skill and the highest professional ethics will be employed.

“First Party agrees to receive Second Party’s patients with courtesy and exert reasonable efforts to retain their patronage.

“It is expressly understood that this agreement, except the above covenant not to engage in practice in Houston County, may be terminated by either party at any time without assignment of reason therefor.

“In testimony wherefor', the parties to this agreement execute their signatures in duplicate, the day and year above written.

“B. O. Perdue, First Party

“D. E. Hughes, Second Party.

“That after the execution of the above agreement, plaintiff furnished the equipment, etc., to defendant, in accordance with the terms of the agreement, arid defendant entered upon the practice of his profession, using a portion of the building occupied by plaintiff’s jewelry store, and the equipment, etc., furnished him by plaintiff, from the date of the contract until June 3, 1940, when plaintiff terminated said contract following a dispute between the two.

“4. The Court finds that immediately after the contract was terminated, defendant began the practice of optometry at another place, in the town of Crockett, in Houston County, Texas, and continued to practice his said profession until June-, 1940, when he was temporarily restrained from further practice of optometry in Houston County, Texas, upon the sworn petition of plaintiff.

“5. That upon motion by defendant to dissolve the .temporary restraining order, the same was dissolved on July 6, 1940, after hearing evidence from both sides.

“Conclusions of Law.

“1. The Court concludes that the portion of the contract above set out, as follows :

“I, Dr. D. E. Hughes; covenant, warrant, contract and agree that as a special inducement to Mr. Perdue to associate me with his business that upon the termination of this trade agreement I will not practice or engage in my profession of .Optometry, directly or indirectly, in Houston County, 'for a period of two years from the termination hereof, has the effect of placing defendant’s license at the disposal of plaintiff, who was not licensed to practice optometry in the State of Texas, which act is prohibited by law, and therefore cannot be enforced. Judgment was accordingly rendered, dissolving the temporary restraining order, and refusing the relief prayed for by plaintiff.

“Sam Holland, Judge Presiding.”

The controlling question presented in this appeal is the validity of the contract between the parties. It involves the construction of the optometry act known as Title 71, Revised Civil Statutes, including Art. 4566 — 1, which is Section 16 of House Bill 410, Acts 1939, c. 4, p. 368.

It also contemplates "a review of the trial court’s conclusions of law wherein he held that the provision of said contract wherein appellee agreed that on the termination of said agreement he would not practice or engage in his profession of optometrist in Houston County for a period of two years from the termination thereof has the effect of placing appellee’s license at the disposal .of appellant.

It is the contention of appellee that he could have entered into a contract with and sold his business and good will to another licensed optometrist and that he would have been bound, thereby, but that under the optometry act he can not sell his good will to a layman, because such a contract would be against public policy and in restraint of trade and would place a restriction upon a license permitting him to practice his profession in Texas.

We have been cited to no cases of parallel facts decided by the courts of this state, and have found none, but we think that the question involved herein may be determined upon- 'established principles of law.

We cannot agree with appellee that this agreement, which is based upon a sufficient consideration, not to practice optometry in Houston County for a period of two- years after the termination of said contract was - in restraint of trade, or against public policy, nor can we agree with th.e trial court in his conclusion that said contract had the effect of placing ap-pellee’s license at the disposal of appellant. -

It is undisputed that appellant did not hold himself out as an optometrist; that he made no attempt to practice that profession; and the record shows that appellee’s patients were his own and not those of appellant.

The exact question presented in this appeal, with the exception of the fact that both parties to said action were practicing physicians, has been decided in the case of Randolph v. Graham, Tex.Civ.App., 254 S.W. 402, in which writ of error was denied by the Supreme Court. This was a suit to enforce by injunction a contract not to practice medicine in a prescribed territory for a specified period of time. The court in its opinion says:

“It is not apparent why it is unlawful for a physician, -if he can get any one to-purchase his property and his good will, to-do so, just as a merchant may do the same thing, and bind the seller not to further "engage in the same business within a certain distance or radius.

“We see no reason whatever to broadly hold such a contract void. It is a property right, personal in its nature, and should be left to the liberty and freedom of contract. There is no such public policy involved in it as would require the physician to keep his good will for his own interest or restrain him from abandoning his practice and selling out his estate and good will together. Such a sale is contractual and thereby lawful. That such a sale is valid and -enforceable we need look no further than to the case of Wolff v. Hirschfeld, 23 Tex.Civ.App. 670, 57 S.W. 572. * * *

“We find no difficulty in agreeing with the trial court that a distance of the 20-mile radius is not unreasonable or greater than was necessary to protect appellee if he needed such protection, in the pursuit of his business or profession * * *.

“It does not occur to us to say that, in so far as the public is concerned, it will not b.e hurt by such an agreement, nor likely to be, since every other physician or surgeon of equal competency is at liberty to practice the same profession within the same limited territory. Glover v. Shirley, 169 Mo.App. 637, 155 S.W. 878. * * *

“No authority is cited to sustain the contention that such an agreement [on the part of a physician] never to practice his profession again in any given territory, or 'at all, is wholly void. * *

“If -one has the right to make a contract binding himself not to practice his profession for a great number of years, in a large or limited area, why not be allowed to make the same contract permanent, or at least during the life of the purchaser? What interest has the public in a professional man, that would deny to him such liberty of contract?”

The above holding is followed by this court in the case of Latham v. Butler, Tex.Civ.App., 17 S.W.2d 1083, in an opinion by former Chief Justice Pleasants, -in which a writ of error was also refused.

The practice of optometry has been regulated in this state for a number of years. The act regulating the practice was amended by Art. 4563, Vernon’s Annotated Texas Statutes. This act provides that the Texas State Board of Examiners may, in its discretion, refuse to issue a license to any applicant and may cancel or suspend the operation of any license by it granted for the following reasons :

“(g) That said'licensee directly or indirectly aids or abets in the practice of optometry any person not duly licensed to practice under this act; * * *

“(i) That said licensee lends, leases, rents or in any other manner places his license at the disposal or in the service of any person not licensed to practice optometry in this State.”

Art. 4566 — 1, Vernon’s Annotated Texas Statutes, which was enacted in 1939, reads: “Provided that it shall not be construed as a violation of this Act for an optometrist to lease space for an establishment on a percentage or gross receipts basis or to sell, transfer or assign accounts receivable.”

The record shows that appellant had maintained an optometrical department in his establishment for many years, and that he had furnished to an optometrist a room, equipment, and utilities, and that the optometrist had paid therefor a percentage of his gross receipts. Appellant by this arrangement profited by having patients of the optometrist come to his establishment who frequently -purchased articles of merchandise from him, and the optometrist profited by said arrangement by not being compelled to invest his capital in equipment. To prevent the loss of his customers, appellant required appellee to agree that he would not practice optometry in Houston County for two years after their relationship was terminated.

The trial court found that this arrange-, ment placed the license of appellee at the disposal of appellant for a period of two years following the dissolution of their agreement.

From a careful analysis of the above sections of the statutes regulating the practice of optometry, we think that it was the obvious intention of the Legislature, at the time of the passing- of the acts above referred to, to make an arrangement such as the one under consideration, legal and that the three above quoted sections can be reconciled, particularly where it was the obvious intention of the parties, for the lessor to merely lease space in his establishment to the optometrist on a percentage or gross receipt basis, and not to, in any sense, practice the profession of optometry as in the instant case.

For the above reasons, the judgment of the trial court in refusing and denying appellant injunctive relief will be reversed and the cause remanded, with instructions to the trial court that appellant be granted the temporary injunction prayed for.

Reversed and remanded with instructions.