author: SMITH, Chief Justice. '

text:
    MAFFI v. O’NEIL et al.
    No. 10640.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Rehearing Denied March 13, 1940.

      Grady Barrett and J. B. Lewright, both of San Antonio, for appellant.
    George M. Luhn and Terrell,-Davis, Hall & Clemens, all of San Antonio, for appel-lees.
   SMITH, Chief Justice. '

This action was brought by Nick A. Maffi against Wellington Oil Company of Delaware and its president, John T. O’Neil, to recover a brokerage fee for his alleged services in aiding in the sale of a mineral lease from Mrs. Clara Driscoll (Sevier) to Humble Oil & Refining Company upon lands owned by Mrs. Driscoll and situated in- Duval County. Maffi has. brought this appeal from a judgment denying him any recovery, upon a directed verdict. The parties will be designated by their' names, rather than as parties. In view of the directed verdict, the facts of the case will be stated from the standpoint most favorable to Maffi.

It appears from evidence sufficient to raise jury issues that in the spring of 1935 Mrs. Driscoll authorized 'Maffi to procure descriptions of her lands and solicit offers from third parties to lease them for oil and gas purposes. The lands were embraced in several ranches, including the La Gloria, the Palo Alto and the Sweden. Maffi'pro-cured the descriptions, marked them on maps, and otherwise familiarized himself with the situation and status of the properties. He laid this information before O’Neil, who was acting for Santa Clara Oil & Gas Company, of which he was president and general manager, and who was seeking leases for his company. On Maffi's representations, O’Neil became interested in the Driscoll properties. He had never met Mrs. Driscoll, to whom, it seems, business approach from strangers was difficult. Maffi offered this approach, and it was agreed between the two men that Maffi would give O’Neil a friendly introduction to Mrs. Dris-coll, in order to enable the latter to deal personally with her for leases, and that the two men would work together to that end. It was known to them that Mrs. Driscoll would not pay any brokerage commission upon leases to be sold by her. It was agreed, then, that such commission would be exacted of lessees, and O’Neil further assured Maffi that, he would “treat him right,” and “take care of him” on leases resulting from their joint efforts.

In pursuance of this agreement, which was wholly in parol, Maffi brought Mrs. Driscoll and O’Neil together, and under Maffi’s recommendation Mrs. Driscoll dealt directly with O’Neil, as well as with Maffi. Those dealings resulted in Santa Clara Oil Company’s procuring leases., first, upon the La Gloria Ranch, and, second, upon the Palo Alto. For his services in these transactions thie Santa CSara Company paid Maffi a cash brokerage fee on each of the two leases. All this occurred in the spring and early summer of the year 1935.

Now, the Sweden Ranch was not then subject to lease, for the reason that a lease thereon was under option to Continental Oil Company, the exercise of which option was not subject to termination until several months later, and although it was said Mrs. Driscoll was not “satisfied” with the contract for that option, or with performance thereunder, there were no negotiations concerning that Ranch between Mrs. Driscoll, Maffi, O’Neil or his Santa Clara Oil Company, at that time. About a year after its lease of LaGloria and Palo Alto Ranches, Santa Clara Oil Company, for which O’Neil was acting, sold and transferred all its physical assets to Wellington Oil Company of Delaware, a Delaware Corporation, for a consideration of 375,000 shares of Wellington capital stock issued to stockholders of Santa Clara Company. And O’Neil became president and general manager of the Wellington Company, as he was of the Santa Clara Company. Both corporations had other, but not all, officers and stockholders in common. Wellington had from 400 to 600 stockholders, Santa Clara, nine. The record is silent upon the provisions of the contract by which Wellington acquired the assets of Santa Clara; specifically, it does not show what provision, if any, was made in said contract looking to the assumption of, or reservation against, liability for the outstanding contracts and obligations of the Santa Clara Company.

The record discloses that after procuring leases for Santa Clara Company upon Mrs. Driscoll’s La Gloria and Palo A1--to Ranches, in the early summer of 1935, Maffi and O’Neil had no further active dealings together. The record further shows, however, that two years later, in June, 1937, O’Neil, ignoring Maffi, privately effected a lease to Humble Oil & Refining Company to Mrs. Driscoll’s Sweden Ranch, on which, in the meantime, inferentially, the option previously held by Continental Oil Company had been allowed to lapse. Humble Company paid Mrs. Driscoll a cash consideration of $115,745 for the lease. Some two months after the Humble Company secured the lease on the Sweden Ranch, that Company assigned a ¾⅛ overriding royalty interest therein to appellee Wellington Oil Company of Delaware, as a brokerage fee for procuring that lease. It is that brokerage fee that is in controversy here.

Maffi brought this suit against O’Neil and Wellington Oil Company of Delaware, contending that the lease of the Sweden Ranch to the Humble Company in June, 1937, was made by' virtue and in pursuance of his parol agreement with O’Neil, in the spring of 1935 ; that in that agreement O’Neil was acting for Santa Clara Oil Company and therefore bound that corporation to pay Maffi a broker’s commission upon said lease; that by purchasing all Santa Clara Company’s assets in 1936, appellee Wellington Oil Company of Delaware assumed, as a matter of law, to perform all existing contracts of Santa Clara Company and particularly the latter’s obligation to pay him a brokerage fee upon the sale of the lease upon the Sweden Ranch to the Humble Company whenever and to whomsoever it was consummated. Maffi prayed for judgment for one-half interest in the Vei overriding royalty acquired by appellee Wellington Company from the lessee, Humble Company, or, in the alternative, for a reasonable cash commission on said lease, which he placed at $18,500. As stated, the trial court denied any recovery to Maffi, who brought this appeal. Maffi does not question, by proper assignment of error, the judgment in favor of O’Neil, but insists he was entitled, under the record, to recover of appellee Wellington Oil Company of Delaware.

Generally, the appeal presents three questions: First, was the evidence sufficient to support a jury finding of an agreement by O’Neil, for Santa Clara Oil Company, to pay Maffi a broker’s commission upon leases obtained by Santa Clara Company upon Mrs. Driscoll’s named ranches? Second, was the pa'rol agreement, as it affected the lease of the Sweden Ranch to the Humble Company, within the Statute of Frauds denying enforcement of parol contracts not performable in one year? And, third, was Wellington Oil Company, a .Delaware corporation, bound, as a matter of law, to perform the obligation, if any, of Santa Clara Company to Maffi, because of its purchase of the physical assets of the latter corporation, and acceptance of the benefits of Maf-fi’s efforts? At the close of the testimony the trial judge, in announcing his purpose to direct a verdict against Maffi, indicated that he would so rule because of the insufficiency of the evidence to show “an agreement,” that he did “not believe the evidence will sustain a verdict, if you (Maffi) get it.” It is the duty of this Court to affirm the judgment if it can be sustained upon any ground, or theory, or if, for any reason, Maffi was not entitled to recover.

We are of the opinion that the evidence was sufficient to raise a jury issue of whether O’Neil, conceded to be acting for Santa Clara Oil Company, agreed to compensate Maffi for his services in aiding O’Neil in securing leases upon the Driscoll ranches. It is true that the amount, or basis for computation, of such compensation was not stipulated in the agreement. But such omission was not fatal to the agreement, for the law writes into such an agreement the provision that the compensation shall be a reasonable sum, to be fixed by the jury, or by the court, according to whether the case is tried to a jury or to the court, to be arrived at from other dealings between the parties, or from prevailing custom. This is an elemental rule, uniformly applied in this State.

Appellee Wellington Oil Company contends that the evidence was brought under the ban of the Statute of Frauds, which condemns parol contracts which are not to be performed within the period of one year from the time they are entered into. Art. 3995, § 5, R.S.1925. We cannot agree to this contention. It is conceded that the parties set no limitation upon the time within which the contract was to be performed. So is it conceded that a period of two years elapsed from the making of the agreement to the consummation of the lease upon the Sweden Ranch, in which transaction appel-lee Wellington Company, through O’Neil’s efforts, earned and collected the brokerage fee in which Maffi claims an interest. But the evidence shows, or at least raises the fact issue, that Maffi fully performed all the services to which he was obligated, or at least the whole contract of both parties was capable of being performed, within the one-year period. In such cases the contract is not within the prohibition of the Statute of Frauds, and is enforceable. 20 Tex.Jur. pp. 256, 259, '§§ 43, 50, and authorities there cited.

And, finally, appellee contends that under the disclosed facts of the case it cannot be held liable for the obligation of its predecessor, Santa Clara Oil Company, to share with Maffi the brokerage fee earn-ed and collected by it in procuring the Humble Company’s lease on Mrs. Driscoll’s Sweden Ranch.’ Assuming that that lease was effected as a result of Maffi’s aid, under the agreement with O’Neil for the Santa Clara Company (an issue improperly withheld from the jury), Santa Clara was obligated to compensate Maffi for that service. The inquiry is therefore narrowed to the question of whether appellee Wellington Company of Delaware assumed that obligation of its predecessor, Santa Clara Company. The evidence is undisputed that Santa Clara Company was a Texas corporation, chartered and beginning operations in 1934. The contract was made with Maffi in 1935. In June, 1936, appellee Wellington Company was organized and chartered under the laws of Delaware, and Santa Clara thereupon sold and transferred all of its physical assets to appellee, which also at the same time took over all the physical assets of a third corporation, Wellington Oil Company, Ltd. As consideration for those transfers appellee issued 375,000 shares of its capital stock to stockholders of Santa Clara Company and 425,000 shares to stockholders of the Wellington Company, Ltd. In this reorganization O’Neil, president and general manager of Santa Clara Company, became president and general manager of appellee, the new company, and thenceforward operated the latter’s business in the same offices, and with substantially the same officers and employees, as the obliterated Santa Clara Company. A year later appellee, the successor corporation, through O’Neil, effected the lease of the Sweden Ranch to the Humble Company, in conceded consequence of the aid given O’Neil, for the Santa Clara Company, in putting him in favorable business touch with Mrs. Driscoll, and initiating the several deals which resulted in O’Neil’s acquiring leases upon the three Driscoll ranches. And appellee collected and appropriated the brokerage fee thus earned through Maffi’s initiation of the transaction. In short, the efforts of Maffi inured to the benefits of appellee, which accepted and retained the benefits, with conceded full knowledge of Maffi’s procuring efforts. We are of the opinion that in this state of facts appellee — having acquired all the assets of Santa Clara, including the contract with Maffi, which it adopted as its own, and having acted upon and accepted the substantial benefits derived from that contract, with full knowledge of the entire transaction — - will be held, as a matter of law, to have assumed the reciprocal obligation of its predecessor, to compensate Maffi for his performance under that contract. 10 Tex.Jur. pp. 668, 1018, §§ 62, 353, and authorities there cited; Victoria Gravel Co. v. Neyland, Tex.Civ.App., 114 S.W.2d 415.

We conclude that the matters discussed were raised by the evidence and that the trial court erred in taking the issues from the jury.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: FOLLEY, Justice.

license: Public Domain

text:
    NEW YORK FIRE INS. CO. v. REED et al.
    No. 5093.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 18, 1939.
    Rehearing Denied Feb. 19, 1940.
    E. L. Klett, of Lubbock, for appellant.
    Crenshaw & Dupree and James H. Milam, all of Lubbock, for appellees.
   FOLLEY, Justice.

This is an appeal from a judgment in favor of the appellees, Mrs. Emma Jones Reed and her husband, G. W. Reed, against the appellant, New York Fire Insurance Company, upon a fire insurance policy dated May 13, 1935, in the sum of $1,000 issued by the appella'nt upon a farm house situated in Dickens County, Texas. At the time of the issuance of the policy the property insured belonged to R. E. Jones, son of the appellee, Mrs. Emma Jones Reed. The insurance was for a period of five years beginning May 7, 1935. The insurance was procured by Jones through L. D. Casey who as agent was engaged in the insurance business in Lubbock, Texas, representing several insurance companies. The premium on the five year policy was $65.50. Of this amount Jones paid Casey the sum of $13.-10 in cash and executed two notes each in the sum of $26.20, the first due January 7, 1936, and the second November 7, 1936. The notes were payable to the appellant at the office of its general agents, Floyd West & Company, a partnership, of Dallas, Texas.

On February 21, 1936, R. E. Jones conveyed the property insured to his mother, Mrs. Emma Jones Reed, she being at such time a widow by the name of Mrs. Emma Jones, but who, before the filing of this suit, was married to G. W. Reed. It was agreed between R. E. Jones and his mother that the son should pay the balance due upon the two insurance notes and that he would ha-ve the insurance on the house transferred to his mother. R. E. Jones went to see Casey some time in May, 1936, told him of the conveyance of the property and that he wanted the insurance transferred over to his mother. Mr. Casey replied, “All right”. After the conveyance of the property Jones continued to make payments to Casey upon the two notes. The last payment was made December 31, 1936, in the sum of $18.-64, which paid the bálance due upon the indebtedness for the premium. At such time Jones informed Casey that he had not received any notice from the insurance company in; regard to the transfer of the insurance to his mother and asked Casey if the latter had notified the company of the transfer. Casey replied that he had “let it slip his memory” but that he would notify the company then. Not until a month later did Casey write to the Dallas agents of the company in regard to the matter and even then he did not inform them that the property had been sold. By his letter dated January 29, 1937, he remitted to Floyd West & Company the $18.64 collected by him from Jones on December 31, 1936. In such letter Casey stated that Jones had asked for a transfer of the policy to his mother and that Jones “would appreciate this being done soon”, but no reason was given in the letter as to why Jones desired a transfer of the policy.

On January 30, 1937, the dwelling house originally insured, was totally destroyed by fire. On this same day the testimony shows that Floyd West & Company received the letter from Casey of the date of January 29, 1937, with the remittance and request for transfer as stated. The testimony from the witnesses of the appellant was to the effect that Floyd West & Company did not receive notice of the loss until February 3, 1937, at which time no transfer of the policy had been made by Floyd West & Company from R. E. Jones to Mrs. Emma Jones Reed.

The appellant denied liability upon the policy whereupon this suit was filed by the appellees. They alleged the issuance of the policy; the transactions above mentioned with regard to the property; the dealings between Casey and Jones with reference to the policy; the destruction of the property by fire; and asked for. judgment against the appellant for the full amount of the policy. The appellant denied liability on ■ the ground that the policy to R. E. Jones was ne.ver transferred and assigned to Mrs. Reed and that Casey, its local agent at Lubbock, was without authority to bind the company in regard to .the transfer of the policy. By supplemental, petition the appellees alleged that Ll'D. Casey was an authorized agent of the appellant; that he agreed to transfer the policy while acting within the real or apparent scope of his authority; that the acts of L. D. Casey as above stated were binding upon the company; and that the appellant' was estopped by reason of such conduct to declare the policy void. The cause was tried before the court without a jury and judgment was rendered for the appellees.

The policy contained a . stipulation as follows:

“This policy is made and accepted subject to the foregoing stipulations and conditions, and to the following stipulations and conditions, printed on pages two (2) and three (3) hereof, which are hereby specially referred to and made a part of this policy, together with such other provisions, agreements or- conditions as may be endorsed hereon or added hereto, and, no officer, agent 'or other representative of this Company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed 'or held to have waived such provisions or conditions unless such waiver, if any,- shall be written upon or attached hereto, nor shall ■any privilege or' permission' affecting the insurance under this -policy exist - or be claimed by the insured unless so written or attached.
“In witness whereof, This Company has executed and attested these presents but this policy shall not be valid unless countersigned by the duly authorized Agent of the Company at Dallas, Texas, ñor shall this policy, or any endorsement written hereon or attached hereto, of any kind, be valid until countersigned' by Floyd West & Co., General Agents, who alone shall have the power or authority to waive or'alter any of the terms 'or conditions of this policy, or to make of attach endorsements hereon.”

Page'two of the policy contained a provision to the effect that it should be void “if any change, other than the 'death of an insured, take place in the interest, title, or possession of the Subject of insurance (except change'“bf occupants without increase of hazard) whether by legal process or judgment or -by voluntary act of the insured or otherwise; * > * ■ *.”

The appellant asserts1' that under the above quoted provisions of the policy only Floyd West & Company was authorized to waive or alter the terms or conditions of the policy and therefore L. D. Casey was without authority to bind the company upon the transfer of the policy. To support its contention in this respect the appellant relies chiefly upon the case of Home Ins. Co. of New York v. Lake Dallas Gin Company et al., 127 Tex. 479, 93 S.W.2d 388, which case upon first impression seems to fully support appellant’s position. However, the policies involved in that case were written in 1930 which was before the 1931 enactment of article 5062a, Vernon’s Ann.Civ.Statutes. This 1931 act, which was amended in 1935, authorizes fire insurance companies to appoint two classes of agents, “local' recording agents” and “solicitors”. From this act we quote such portions as we deem pertinent to this controversy, as follows:.

“Sec. 2. By the term ‘Local Recording Agent’ is meant a person or firm engaged in soliciting and writing insurance, being authorized by an Insurance Company or Insurance Carrier, including Fidelity and Surety Companies, to solicit business and to write, sign, execute and deliver policies of insurance, and to bind companies on insurance risks, and who maintain an office and a record of such business and the transactions which are involved, who collect premiums on such business and otherwise perform • the customary duties of a Local Recording Agent representing an Insurance Carrier in its relation with the public.
“By the term ‘Solicitor’ is meant a person officing with, and engaged in, soliciting insurance on behalf of a Local Recording Agent, who does not sign and execute policies of insurance, and who does not maintain company records of such transactions. This shall not be construed to make a Solicitor of a Local Recording Agent who places business of a class which the rules of the company or carrier require to be placed on application or to be written in a supervisory office. * * *
“Sec. 3. When any person' or firm shall desire to engage in business as a Local Recording Agent for an Insurance Company or Insurance Carrier, he shall make application for a license to the Board of Insurance Commissioners, in such form as the Board may require, and such license may be issued by said Board in the form prepared by it when he shall be found of good character and good reputation. * *
“Sec. 6. After a person or firm shall have been granted a. license as Local Recording Agent in this State, he shall be authorized to act as such Local Recording Agent only after and while having been authorized so to do by an Insurance Carrier or Carriers, having a permit to do business in this State, and when so authorized each Company or Carrier or its General and/or State and/or Special Agent making the appointment shall immediately notify the Board of Insurance Commissioners in such form as the Board may require, of the appointment, and such person or firm shall be presumed to be the agent for such company in this State until such company or its General and/or State and/or Special Agent shall have delivered written notice to the Board of Insurance Commissioners that such appointment has been withdrawn.”

In the instant case the evidence shows that L. D. Casey was duly appointed a. recording agent by the Board of Insurance Commissioners of the State of' Texas on October 23, 1931, and was issued License No. 1215 as such recording agent. The evidence also shows that the appellant appointed L. D. Casey as its recording agent and the certificate of appointment as certified was approved by the Chairman of the Board of Insurance Commissioners on February 28, 1935. It will be noted in our quotation of this instrument below that the purported date of the appointment is indicated in the statement of facts herein as “2/26/36”, however, we assume this to be a typographical error and that it was meant for “2/26/35”, as such instrument could not have been approved a year before it was filed. The instrument in question is as follows:

“License No. 1215
“Notice of Appointment of Recording Agent
“L. D. Casey, Lub- Persons Comprising bock, Texas. Agency; L. D. (Agent or Agen- Casey, cy Names)
“State of Texas.
“Board of Insurance Commissioners: The New York Eqt. Dept, of the Insurance Company of New York Fire Ins. Co. of New York hereby certifies that the above named person or persons is-are bona fide residents of the State of Texas, and is-are qualified to act as Recording agent, and is-are not disqualified under the laws of the State of Texas to act as Recording Agent for this or any other insurance company licensed in said State, is a reliable individual of good character and reputation and is hereby appointed agent for the transaction of its authorized business of insurance in Texas under its said permit until such authority is revoked or otherwise terminated. •
“Date 2/26/36
"New York Eqt. Dept, of the New York Fire Ins. Co. of New York.
“Approved Feb. 28, 1935
“R. L. Daniel, Chairman Board of Insurance Commissioners”

The appellant admitted in the trial of the case that the authority conferred by the above instrument had not been revoked prior to the time of the fire except as it might have been modified by the insurance contract between the insured and the appellant.

Under the above facts it is our opinion that the Lake Dallas Gin case, supra, is not decisive of the instant case. In that case when the policies in question were issued there was no statutory existence in this state of the representative known as “local recording agent”, and so far as the opinion reveals no such authority as is implied by the statute or the certificate of appointment herein was conferred upon the local agent in that case. The only reference made in the opinion in that case as to the status of the local agent was that he was a soliciting agent who did not have the authority to issue a policy on a cotton gin, the subject of the insurance therein. Century Ins. Co., Limited, v. First Nat. Bank of Hughes Springs, Tex. et al., 5 Cir., 102 F.2d 726. In this connection the appellant in the case before us asserts that although Casey was a recording agent duly and legally appointed by the insurance company under the authority of the State of Texas, he did not have the authority to issue or transfer a policy upon rural property and that by the terms of the policy itself applications for such contracts or transfers were required to be submitted to the office of Floyd West. & Company for approval before becoming effective. In support of this contention the appellant offered the deposition testimony of two members of the Floyd West & Company partnership who testified that Casey did not have the authority to issue or transfer such a policy but that such authority was only possessed by Floyd West & Company.

In reply to this contention the appellees rely upon the language of the statute above quoted and upon the certificate wherein Casey was appointed recording agent by the appellant “for the transaction of its authorized business of insurance in Texas under its said permit until such authority is revoked or otherwise terminated”. In support of their position in this respect the appellees cite the case of Home Ins. Co. of New York v. Roberts et al., 129 Tex. 178, 100 S.W.2d 91, 93. In that case Doak, the local agent, was duly appointed a “local recording agent” in conformity with the provisions of article 5062a, supra. He represented several insurance companies as did Casey in the case before us. The policy in that case, as similarly in this case, provided that it should be valid only when signed by C. C. Byers, agent at Cle-burne, Texas. The policy also contained a provision identical with the one in the instant case with reference to the change in ownership of the property. The recording agent in the Roberts case was advised of a conveyance of the property insured and he assured Roberts, the purchaser, that the latter would be protected under the policy pending the moving of the parties involved. Before the property was delivered to Roberts it was destroyed by fire. The insurance carrier denied the authority of Doak to bind the company. Under such circumstances the Commission of Appeals said:

“It will be noted that Doak was appointed by the company itself 'agent for the transaction of its authorized business of insurance in Texas’; that appointment was in effect and not revoked or otherwise terminated, at the time of the transactions herein referred to. He had the authority to speak and act for the company, and transact all the insurance business of the company which it was authorized to transact under its permit from the state.

“It is now well settled in Texas that a provision in an insurance policy that no condition or stipulation shall be waived except by a written indorsement attached to the policy is ineffectual to prevent a parol waiver of such provisions and conditions by an authorized agent acting within the scope of his authority. Morrison v. Insurance Co., 69 Tex. 353, 6 S.W. 605, 5 Am. St.Rep. 63; Wagner & Chabot v. Westchester Fire Ins. Co., 92 Tex. 549, 50 S.W. 569; Niagara Ins. Co. v. Lee, 73 Tex. 641, 11 S.W. 1024. These cases are based on the proposition that an insurance corporation cannot thus limit its power subsequently to contract in any lawful manner by and through its authorized agents acting within the scope of their authority. For the same reason, a stipulation in the policy that only certain officers and agents named therein shall have the power to waive the conditions of the policy does not preclude an authorized agent, other than the officials named, acting within the scope of his authority, from effecting such a waiver. United States Fidelity & Guaranty Co. v. Taylor (Tex.Civ.App.) 11 S.W.(2d) 340 (writ ref.).”

From the above holding it is our opinion that Casey was invested with the authqrity to bind the appellant upon the transfer of the policy herein. His appointment by the company was nothing short of a power of attorney authorizing him to transact the authorized business of insurance of the company in the State of Texas. As such an agent we think he was empowered to effect a parol waiver of the conditions of the policy with reference to the change of title of the property insured. The testimony of the appellant’s witnessés to the effect that he was not so authorized, at most, merely presented an issue of fact for the court to determine, which issue has been resolved against the appellant .by the judgment of the trial court. In making the appointment under article 5062a the appellant placed its mantle of authority upon Casey’s shoulders and, in effect, held him out to the public as aln agent authorized to “write, sign, execute and deliver policies of insurance” and to bind the company “on insurance risks”, the terms of the policy to the contrary notwithstanding. Under his appointment Casey had as much authority with reference to insurance risks as any that could possibly have been bestowed by the appellant upon Floyd‘West & Company.’ As was said in the Roberts case, Casey “had the authority to speak and act for the company, and' transact all the insurance business of the company which it was authorized to transact under its permit from the state”. What more authority could Floyd West & Company have had? -We think it evident that in enacting article 5062a the Legislature no doubt had in mind just such circumstances as existed ■ in the instant case. From the uncontroverted testimony Casey was informed of the sale of the property for about nine months before the fire. He ' accepted money upon the premiums thereafter and the appellant received and retained this money and has not yet tendered its return: The appellees relied lipón the statements and promises of Casey that the matter of transferring the insurance would be attended to. For nine months after receiving the information of the sale of the property and the request for the transfer of the policy, the recording agent failed to notify the appellant or its general agents of such facts. Knowing no doubt that such circumstances as these oft-times worked undue hardships upon an unsuspectnig public, the Legislature enacted a law whereby the public, in dealing with fire insurance agents^ might have some statutory assurance of the agent’s authority to bind the company. ..The prospective purchaser of such insurance may now ascertain this assurance by an inspection of the agent’s authority from the insurance carrier under the seal of the State of Texas. He may thus obtain information as to whether the agent is a mere solicitor unauthorized to bind the company or a recording agent with full authority to do so. We therefore think Casey’s conduct herein was binding upon the company and that there was no error in the judgment of the trial court. Carolina Ins. Co. v. Christopher, 130 Tex. 245, 106 S.W.2d 138, 109 S.W.2d. 467.

The" judgment is affirmed.


author: JACKSON, Chief Justice.

text:
    WHEELER v. WILLIS et ux.
    No. 5104.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1940.
    Rehearing Denied March 11, 1940.

      A. A. Lumpkin, of Amarillo, for appellant.
    Hugh Anderson, of Lubbock, for appel-lees.
   JACKSON, Chief Justice.

. The appellant, H. N. Wheeler, instituted this suit in the District Court of Potter County, Texas, against the appellees, J. T. Willis and his wife, Betty Lucille Willis, to recover the sum of $1,762.50, together with interest and attorneys’ fees, evidenced by three notes each dated August 1, 1937 executed by appellees and payable to appellant in one, two and three years after date, respectively. The notes provide for interest on the principal at the rate of 7% per annum, payable annually and contain the usual attorneys’ fee clause.

The appellant prayed for the foreclosure of an alleged lien of even date with the notes given by appellees to secure the payment thereof on Section 12, Block 2-Z, in Randall County, Texas, under the terms of which appellant was authorized on default in the payment of either principal or interest on the notes to mature at his option the entire debt, all of which was properly alleged.

The appellees answered by general de- . murrer, general denial and specially alleged that in March, 1936 appellant advised ap-pellees of having for sale Section 12, Block 2-Z, in Randall Cpunty; that he would assist them in obtaining a loan from the Federal Land Bank at Houston for a sufficient sum to pay the consideration therefor; that after some negotiations it was agreed that appellant would procure a deed from F. A. DeKay, the owner, conveying the sectio.n to himself; that he would then deed it to appellees, and the application to .the Federal Land Bank at Houston for the loan would be made in their name; that appellees would.borrow the largest amount available on the land provided the sum was not in excess of $17 per acre and the proceeds of the loan obtained would be applied first to the payment of Mr. DeKay, and if appellees would convey to appellant the house and lot they owned in Sunray in Moore County, Texas, he would accept the balance of'the money obtained on the loan for his interest or equity in said section of land.

The appellees set up the acquisition of the section from Mr. DeKay by appellant, the conveyance of the section by appellant to appellees, the application for the loan, the amount applied for, the sum for which the loan was approved, the amount obtained, the payment of the DeKay notes out of the proceeds thereof; that the net balance of the loan after satisfying the DeKay notes, $3,425, was insufficient to pay in full the $5,440 note of appellant; the acceptance of the $3,425 in payment of his note, the release of the lien securing the same and the execution of the $1,762.50 note to appellant on August 8, 1936 which appellees say was for the balance not paid to appellant out of the loan secured for which reason they assert the transaction was illegal, the note and deed of trust void and unenforceable under the Emergency Farm Mortgage Act passed by the Congress of the United States in 1933, 48 Stat. 41; that on August 1, 1937, when said note became due, appellees were unable to pay it but the debt was renewed arid extended by the execution of the three notes sued on.

. Under this record the defenses of fraud and failure of consideration alleged by ap-pellees were abandoned by them.

The appellant, in a supplemental petition, denied th'e alleged facts upon, which appel-lees asserted the illegality of the notes and deed of trust and pleaded other loans he had made to. appellees which he claims amounted to the $1,762.50, evidenced by the note of date August 8, 1936, and that said sums comprised no part of the unpaid balance of his $5,440 note.

In response to issue No. 1 submitted by the court; the jury found, in. effect, that the entire consideration for the $1,762.50 note, dated August 8, 1936, was the renewal and extension of a part of the $5,440 'vendor’s lien note executed by appellees to appellant as a part of the consideration for said section of land.

Upon this finding judgment was rendered and entered that appellant, H. N. Wheeler, take nothing by his suit; that all the notes evidencing this indebtedness be cancelled and the liens asserted on the section to secure the payment thereof be cancelled and held for naught.

The appellant presents this appeal from the judgment and assails the action of the court in failing to direct a verdict in his behalf as requested and in refusing to sustain his motion for a judgment non ob-stante veredicto because he contends the testimony is wholly insufficient to sustain the finding of the jury and the judgment ■ of the court.

It is apparently settled that if the note for $1,762.50 dated August 8, 1936 was, as determined by the jury, given to renew and extend a portion of the vendor’s lien note executed by appellees to appellant for the sum of $5,440 in part consideration for the land, such note and the deed of trust given to secure the payment thereof are void and unenforceable. McCrory et al. v. Smeltzer et ux., Tex.Com.App., 124 S.W.2d 336; Briley v. Oldham, Tex.Com.App., 124 S.W.2d 854.

■ The appellant had the land listed for sale at: $12- per acre. It is conceded that the notes sued on were given to renew the note of $1,762.50 dated August 8, 1936. The record shows without controversy that appellant on April 29, 1936 acquired by proper deed from F. A. DeKay, the owner thereof, Section 12, in Block 2-Z, Randall County, Texas, for the consideration of $7,-680, or $12 per acre; that the deed recited that the consideration was paid $1,920 in cash and two vendor’s lien notes of even date with the deed aggregating the sum of $5,760. The section was school land and the record shows that the total consideration of $7,680 included the amount due the State and that in the settlement appellant retained $640 out of the cash payment to obtain a patent to the land; that on the same day appellant, joined by his wife, conveyed to appellee said section of land for the consideration of $10 in cash and the assumption by appellees of the payment of the two notes given by appellant to Mr. DeKay and the execution and delivery by appellees to appellant of one vendor’s lien note for the sum of $5,440, payable in four months after date; that on May 14, 1936 the appellees deeded to appellant their home, Lot 12, in Block 30, in the town of Sunray, Moore County, Texas; that after appellees obtained the deed to Section 12, they, assisted by appellant, made application to the Federal Land Bank of Houston for a loan in the sum of $11,200, or $17.50 per acre; that this application was approved for only $9,500, of which amount the bank advanced $6,300 and the Land Bank Commissioner advanced $3,200; that this arrangement was satisfactory to appellant and out of the proceeds of the consummated loan the notes payable to Mr. DeKay were satisfied and the net balance of the loan, $3,425, was paid to appellant on his $5,440 vendor’s lien note; that appellant agreed in writing to accept in complete settlement of his note for $5,440 and the interest thereon said sum of $3,425, and released his debt and lien fully, completely and irrevocably and agreed not to acquire or accept directly or indirectly any payment, renewal, extension or other evidence of indebtedness from the appellees for any portion of the above described $5,440 note. It is also in the record without dispute that appellees, in August, 1936, gave the appellant a note for $1,762.50, payable on or before August 1, 1937.

Mr. Willis testified that the appellant informed him how to make the application for the loan, the amount to apply for, advised him of the procedure to follow and the papers to execute; that he gave appellant the $1,762.50 note to take care of the difference in the amount appellant received out of the proceeds of the loan and the $5,440 note and he was required to sign the note and the deed of trust before appellant would accept the payment of $3,425 in satisfaction of his $5,440 note and release the lien; that the $640 paid appel-lees by appellant for plowing and the $640 paid by appellant to have the land patented, together with the other items which appellant claimed to aggregate $1,762.50, the face of the note, were all included in the $5,440 note and that at the time of the execution of the note for $1,762.50 the appel-lees were not indebted to appellant in any sum save and except the balance of the $5,440 note not paid out of the proceeds of the loan secured from the bank.

This testimony in many particulars is controverted by the testimony of appellant, however, the jury determined this fact issue against him.

In McLaughlin v. Horn-Allen Co., Tex.Civ.App., 76 S.W.2d 226, 227, it is said: “The court is not authorized to direct a verdict, ‘if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.’ Jackson v. Langford (Tex.Civ.App.) 60 S.W.2d 265.” See also Gross v. Shell Pipe Line Corp., Tex.Civ.App., 48 S.W.2d 377, 378; Jones et al. v. Jones, Tex.Civ.App., 41 S.W.2d 496.

When the controverting testimony is discarded and credit given to the evidence of appellee and the legitimate conclusions favorable to him indulged, the finding of the jury finds sufficient support in the testimony and the court was not authorized to direct a verdict in appellant’s behalf or grant his motion for judgment non obstante veredicto.

The judgment is affirmed.


author: SPEER, Justice.

text:
    BOWEN MOTOR COACHES v. YOUNG.
    No. 14105.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1940.

      Raymond E. Buck and Frank J. Knapp, both of Fort Worth, for relator.
    Houtchens & Houtchens, Robert V. Weddell, Lloyd H. Burns, and J. Harold Craik, .all of Fort Worth, for respondent.
   SPEER, Justice.

This is a proceeding in which -Bowen Motor Coaches seeks a writ of mandamus to require Hon. Bruce Young, Judge of the 48th District Court of Tarrant County, •to enter judgment for relator upon a jury’s •verdict returned in the trial of a cause pending in that court, styied J. V. Willis v. Bowen Motor Coaches, a corporation.

Attached to and made a part of the application for writ are the pleadings of the parties to the suit, a copy of the special issues submitted, the answers to such of the issues as the jury could agree upon, and a ■copy of the judgment as finally entered by the court.

From the judgment it appears that after the verdict was returned, relator moved the court to enter judgment in its favor upon the answers made by the jury to the issues submitted. Plaintiff Willis filed a motion asking that a mistrial be declared The court overruled the motion of relator and sustained that of plaintiff; judgment was entered declaring a mistrial and in this condition the case remains on the docket.

Plaintiff’s case was based upon allegations that he sustained injuries as a result of the negligence of relator while driving along Grapevine Highway, near its intersection with 28th Street. For the purposes of this discussion, it is sufficient to refer briefly to the pleadings of the parties. Plaintiff described his own conduct just prior to the collision in a way so as to show that he was not guilty of any negligence, but that relator’s negligence consisted, among other things, in driving its bus at the time and place at a rate of speed in excess of 45 miles per hour; the driver’s failure to keep a proper lookout; and in failing to keep his bus under control, under the circumstances surrounding the time and place. Other allegations described his injuries.

The relator, as defendant below, answered by general and special demurrers, general denial and special pleas, to the effect that plaintiff was not seriously .injured, but that such minor injuries as were sustained •by him proximately resulted from his own ¿negligence, in_ (a) while plaintiff was driving his car in the outside lane of the four lane highway, relator was operating its bus in the second or inside lane, going in the same direction of plaintiff’s car, the plaintiff suddenly, unexpectedly and without a warning signal to relator’s driver, changed the course of his vehicle, by attempting to make a left hand turn across the highway and into the path of defendant’s bus; (b) that plaintiff failed to keep a proper lookout for his o\Vn safety; (c) plaintiff failed to give any signal to the driver of defendant’s bus that he expected to change the course of his vehicle; and (d) that plaintiff violated several sections of Article 801, Penal Code of the State, pertaining to duties of operators of automobiles on the highway; each and all of said alleged acts of negligence were charged to have contributed to and proximately caused such injuries as were sustained by him.

Obviously no statement of the facts proved upon the trial is before us, but the Special Issues submitted by the court are made a part of the application. We may properly assume that there was evidence offered in support of the issues submitted, and from this assumption, we may draw a conclusion as to the theories relied upon by the parties in support of their pleadings. Panhandle & S. F. Ry. Co. v. Sutton, Judge, 125 Tex. 401, 81 S.W.2d 1005.

We find it difficult to discuss the contentions of the parties without giving a summary of the issues submitted, and the answers made and those not made. Some issues, will be quoted, when considered necessary, and others will be stated. They were as follows:

“Special Issue No. One: At what rate of speed in miles per hour do you find from a preponderance of the evidence, the defendant’s bus was being driven, immediately pri- or to the collision in question?” The answer was, “40.” Whether or not this was negligence and a proximate cause, not answered.
No. 4: Whether or not the driver of the bus failed to keep a proper lookout; and if such failure, if any, was negligence and a proximate cause, not answered.
No. 7: Did the driver of the bus fail to exercise ordinary care to keep his bus under control just prior to the collision? Was such- failure, if any, negligence and a proximate cause? ■ Neither was answered.
No. 10: The jury found that the collision was not the result of an unavoidable accident.
No. 11: Did plamtiff, J. V. Willis, fail to keep a proper lookout just prior to the collision? Not answered. Nor was there an answer to either of the conditionally submitted issues of negligence and proximate cause, which followed.
No. 14: “Do you find from a preponderance of the evidence that the plaintiff, J. V. Willis, at the time of the collision in question, was attempting to make a left hand turn from the outside lane of the highway?” No answer. Negligence and proximate cause, relating to the above question, were conditionally submitted, but were not answered.
No. 21: “Do you find from a preponderance of the evidence that at the time of the collision in question, the plaintiff had suddenly driven his automobile from the outside lane of the highway and into the inside lane in the path of defendant’s bus ?” This was not answered; nor was either of the succeeding conditionally, submitted questions of negligence and proximate cause answered. '

This is found in the charge: “If you have answered special issue 21 ‘no’ you need not answer this question, but if ‘yes,’ then answer:”

No. 24: “Do you find from a preponderance of the evidence that J. V. Willis failed to give a signal of his intention to turn from the outside lane to the inside lane of said highway immediately prior to the collision in question?” The answer was “Yes.” In response to issues 25 and 26, respectively, the jury answered that plaintiff’s failure to give a signal of his intention to turn from the outside to the inside lane was negligence and a proximate cause of the collision.
No. 27: An inquiry of whether plaintiff failed to render to the bus driver such assistance as the circumstances reasonably demanded in order to enable the bus to pass, along with the accompanying inquiries of negligence and proximate causé, were unanswered.
No. 29-A reads : “Do you find from a preponderance of the evidence that plaintiff failed to give a signal of his intention to change the course of his vehicle just prior to the collision in question ?” This, with the conditionally submitted questions of whether such failure was negligence and a proximate cause, were unanswered.
No. 29-F reads: “Do you find from a preponderance of the evidence that at the time of the collision between defendant’s bus and plaintiff’s car, the plaintiff was making a right hand turn?” If the answer to 29-F was “yes,” then the jury was requested to answer No. 29-G, which reads: “Do you find from a preponderance of the evidence that at the time plaintiff was making such right hand turn, if you have so found, he failed to give a signal of his intention to make such turn?” Neither 29-F, 29-G, nor the supplementary component elements of negligence and proximate cause, conditionally submitted, was answered.
No. 30 inquired if plaintiff sustained injuries from the collision, to which the jury answered, “Yes.”
No. 31 inquired of the amount of damages sustained.by plaintiff as a result of his injuries. No answer was made.

In many cases it is unnecessary that all issues be answered by the jury, for, in practically all cases, there are more grounds for recovery and in defense plead than are essential to determine if recovery by plaintiff can be had; then, too, in many instances issues are properly submitted, conditioned upon answers made to others. But it is always true, that before judgment can be entered for either party, the verdict must be. such as to require the entry of a judgment. Speer’s Special Issues, sects. 424 and 555; 41 Tex.Jur., sect. 356, page 1220.

As we construe the verdict of the jury, there was a disagreement as to the answers to the issues material to the rendition of a judgment by the court. It was found that relator’s bus was being driven at the rate of 40 miles per hour, but a disagreement as to whether -this was negligence and a proximate cause of the collision. Nor were there answers to the other, two alleged grounds of negligence by the bus driver, that is, failure to keep a proper lookout and failure to keep his> bus under control.

There is no finding by the jury that plaintiff was guilty of any act of negligence which proximately contributed to the collision. There -is a finding that it was not the result of an unavoidable accident, which means, under the definition given of that term, that the collision was caused by the negligence of one of the parties to the suit. It must follow, then, that it was necessary for the jury to determine which of the parties negligently caused the collision.

In its application for the writ of mandamus, relator is assuming the burden of showing that' the verdict was sufficient to require the trial court to enter judgment in its favor. No agreement was reached on the answer to Special Issue 14, which inquired if plaintiff was attempting to make a left hand turn from the outside lane of the highway, when the collision occurred. Doubtless, from the similarity of allegations by defendant as to contributory negligence, the court submitted Special Issue No. 21, which inquired if, at the time of the collision, plaintiff had suddenly driven his automobile from the outside lane to the inside lane of the highway in the path of defendant’s bus. This question was not answered.

The principal contention of relator in support of its application before us is that the answers to issues 24, 25 and 26 conclusively show that the jury intended to find, and did in effect find, that plaintiff was making a left hand turn from the outside lane of traffic to the inside, lane when the collision happened. It will be observed that this is the question submitted by special issue 21, which was not answered. Issues Nos. 24, 25 and 26 were to be answered conditioned that the jury’s answer to 21 was “yes”. This conditional submission was proper, for certainly unless the jury should find in response to issue 21 that plaintiff had suddenly driven his vehicle from the outside lane into the inside lane, into the path of the 'bus, no necessity existed for a finding under issue 24, whether or not plaintiff gave a signal of his intention to so turn into the inside lane and the path of the bus. Nor would it become necessary to determine under issue 25 whether such failure was negligence, nor under issue 26, if the failure was a proximate cause of the collision. To put it another way, unless plaintiff did turn his automobile from the outside to the inside lane in the path of the bus, how could it be said that his failure to signal his intention to do so was negligence? In fact, it would have been improper for him to give such a signal when he had not attempted to make such a furn. No doubt the facts proved justified the jury in finding that plaintiff did not signal his intention to make a left turn into the inside lane. He may not have intended to make such a turn. That is the very question asked by the court in issue 21, and the jury disagreed upon the answer to it. It cannot be reasonably inferred, under the circumstances here, that because plaintiff failed to give a signal of his intention to turn into the other lane, that he did in fact make the turn.

To assume that the finding of the jury in response to issue 24, that plaintiff failed to give a signal of his intention to turn from the outside to the inside lane, was a finding that plaintiff “had suddenly driven his automobile from the outside lane of said highway and into the inside lane in the path of defendant’s bus”, as inquired about in issue 21, would not have been responsive to the issue which the jury was attempting to answer. We cannot now reform the issue so as to make the answer responsive and material. 41 Tex.Jur., sect. 354, page 1218; Waco Cement Stone Works v. Smith, Tex.Civ.App., 162 S.W. 1158.

Again, if we could presume that by the answer to issue 24 the jury intended to and did find that plaintiff had turned into the inside lane in the path of the bus, and that he did not signal his intention to do so, such an answer would have been based upon a combination of questions in issues 21 and 24, which would have read substantially as follows : At the time of the collision had plaintiff suddenly driven his automobile from the outside lane to the inside lane in the path of the bus and did he fail to give a signal of his intention to do so ? Such an inquiry would have been highly improper because it would have been multifarious. We cannot presume that the court would have submitted such a question. Nor can the jury be presumed to have formed their own question and to thus answer it. Speer’s Special Issues, sect. 430, page 559.

It is no answer to what we have said in this connection for relator here to contend, as it does in its brief, that no objection or exception was taken to the type of question which we have said would have to be supplied to render the answer responsive. Indeed, no such question was in fact asked and hence no objection was required, or could have been made.

Before it became necessary for the jury to determine whether plaintiff gave a signal of his intention to make a left hand turn and whether such failure was negligence, it was essential in this case that they first determine whether or not he did make such a turn. Otherwise why determine if he gave á signal indicating an intention to make that turn?

The jury had ample opportunity to determine by their answers to issues 14 and 21 whether or not plaintiff did make a left hand turn immediately prior to the collision. Again, by issue 29-A, the court inquired whether or not plaintiff gave a signal of his intention to turn the course of his vehicle. Neither of these questions was answered. Plaintiff was under no duty to give a signal of his intention to turn one way or the other unless he did turn or change the course of his car. Until this primary and fundamental ultimate issue was determined, whether or not he gave a signal of such intention would be unimportant.

The evidence must necessarily have been conflicting as to whether plaintiff was attempting to make a left hand turn or one to the right, because by special issue 29-F, the inquiry was made whether, at the time of the collision, plaintiff was making a right hand turn. This question was not answered. The submission of the issue last mentioned, to our minds, emphasizes what we have said relative to the necessity of a finding of fact whether plaintiff was attempting to turn left before any importance could be attached to the jury finding that he failed to give a signal of his intention to turn left, and that such failure was negligence and a proximate -cause of the collision.

Without further extending this opinion, we hold that the issues answered were insufficient to require the entry of a judgment for defendant and that the court was fully authorized to declare a mistrial; that in the circumstances of this case, it became his duty to make that order. The application for the writ of mandamus to require the •court to enter judgment for defendant on the verdict returned is denied.


author: STOKES, Justice.

text:
    TAYLOR v. ALANREED INDEPENDENT SCHOOL DIST.
    No. 5178.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 5, 1940.
    James W. Harvey, of Archer City, for appellant.
    Hill & Adkins, of Shamrock, for ap-pellee.
   STOKES, Justice.

This suit was filed by the appellee School District against appellant upon its claim for taxes assessed for the year 1937 and to foreclose its tax lien upon 15,573 acres of land belonging to appellant. The record shows that appellant also owned some 600 head of cattle, all of which was rendered by him for taxes at a total valuation of $77,860. The board of equalization for the school district, after due notice to the property owners, held a hearing at which appellant and other witnesses appeared and, after the hearing, ■ appellant’s assessment was raised by the board to $106,213 upon which, the school district alleges, the amount of taxes owing by- him is $1177.86.

Appellant tendered into court the sum of $778.60, which would have been the amount due by him for taxes for the year mentioned upon the valuation placed by him upon his property and práyed that the school district be required to accept that amount in full of its claim for taxes for the year mentioned. .

The case was submitted to the court without the intervention of a jury and resulted in a judgment against appellant in favor of the school district for $1215.94, which included the taxes, interest and penalty, together with costs of court.

, Appellant excepted to the judgment, gave notice of appeal, and presents the case in this court upon three assignments of error in which he contends the judgment should be reversed because, first, the board of equalization disregarded the provisions of sub. 3, Art. 7206, R.C.S.1925, in classifying the lands of the district for taxation; secondly, the board of equalization did not attempt to-fix an equal and uniform valuation on all of the property of the district and, thirdly, the board acted in an arbitrary manner in placing a valuation upon his property which resulted in discrimination against him.

The record shows that practically all of the land in the school district is grazing land and used as stock farms and ranches. The board of equalization did not follow strictly the provisions of sub. 3, Art. 7206, and classify the lands of the district into three separate classes, but we do not understand that provision to be mandatory. It is held by the courts that where the taxable property is assessed upon substantially a uniform basis of equality and in proportion to its value, the failure strictly to follow the provisions of the subdivision mentioned does not render void the judgment of the board of equalization. State v. Mallett Land & Cattle Co., 126 Tex. 392, 88 S.W.2d 471. Unless it is shown, therefore, that appellant’s property was not assessed fairly in proportion to its value and upon a basis of equality and uniformity with other property in the district or that the board discriminated against him in the manner in which his property was assessed, his first contention is without merit.

The equalization board was composed Of J. M. Hill, G. E. Castleberry and M. C. Burdine.' These parties, together with other witnesses, testified in the case and their testimony indicates that they adopted $6 per acre as a basis for the valuation of ranch lands and assessed it at a greater valuation according to improvements, accessibility to the highway, character of soil, and fitness for farming purposes. Some farming land in the district was assessed as high as $14 an acre but none less than $6 an acre. Witnesses introduced by appellant testified that his land was of a value not exceeding $5 an acre and appellant placed it at $4 an acre. Witnesses for the school district, however, placed its value at from $7.50 to $8 per acre and one of the members of the board of equalization gave it as his opinion that there was no substantial market value for the land on January 1, 1937, but that its actual value was around $10 an acre. It was shown that the Johnson ranch, which evidently was located in the same neighborhood as appellant’s land, was slightly better and of slightly greater value than appellant’s land, and the Johnson ranch was assessed at $6.50 per acre. The record indicates that appellant’s land was of about the same general character as other ranch lands in .the -district. ’ Thus it will be seen that the board of equalization assessed appellant’s land at about the lowest figure at which any land in the district was assessed and a number of tracts were assessed at a much higher figure. No discrimination, therefore, was shown as to appellant’s ranch in so far as the valuation placed upon his land is concerned. There is ample -testimony to the effect that the value of appellant’s land was $8 to $10 an acre. The contention of appellant that the method used by the board in assessing his land resulted in discrimination against him is, therefore, without merit.

, The third contention made by appellant is that the board of equalization-acted in an arbitrary manner in fixing the valuation of his property for taxing purposes. The record shows that the board: heard evidence of, and gave consideration to, a number of elements in arriving at the valuation of appellant’s property. Among them was the topography of the land, its-distance from the highway, its suitability for ranching or farming purposes, the amount of improvements located upon it, the possible returns as ranch property, and a number of other elements which go to-make up ■ the market value of land. The-testimony- of the members of the board and the record generally show that the board exercised a- commendable effort to arrive-at the market value of appellant’s land. It was shown that no sales of such land had been made in the community in recent times and that the demand upon the market for such land was practically nil. There is no suggestion in the testimony that the board adopted any method that was illegal or arbitrary in arriving at the taxable values nor that any scheme or method that could be classed as fundamentally wrong was adopted. The testimony shows that the board decided to assess the land and personal property of the district at approximately 85% of its market value. They assessed cattle at $20 per head, while the record shows that cattle were probably worth $40 per head, but the difference between the apparent 50% of the value of cattle and 85% of. their value could easily be accounted for by the difference in ages and conditions and the relative number of beef and stock animals. It was also shown there were two small stocks of merchandise located at a community center in the district and they were assessed at 50% of the invoice price. Appellant contends that the valuation placed upon the merchandise at 50% of its invoice prices constituted a discrimination against him, since his land was assessed at 85% of its value. The record does not show the actual market value of the stocks of merchandise, nor that 50% of their invoice price did not constitute 85% of their actual market value in the community.

It is well settled law in this state that if a board of equalization makes a bona fide effort fairly and honestly to assess taxable property at a fair, just, equal and uniform valuation for taxing purposes, ■even though it may make mistakes in arriving at the exact market value, its actions are not subject to review by the courts. State v. Mallett Land & Cattle Co., 126 Tex. 396, 88 S.W.2d 471; Texas & P. Ry. Co. v. City of El Paso, 126 Tex. 86, 85 S.W.2d 245; Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756; Hinkson v. Lorenzo Independent School District, Tex.Civ.App., 109 S.W.2d 1008.

We have examined all of the contentions, •assignments of error and propositions of law presented by appellant and none of •them, in our opinion, presents reversible error. The testimony does not reveal any bad faith on the part of the board nor the ^adoption by it of any illegal plan, scheme or •method that could be considered funda-:inentally wrong in arriving at the assessed valuation of property. On the other hand, the record shows the board acted in a legal manner throughout and- made every reasonable effort to arrive at a fair and just valuation to be placed thereon.

We find no error in the record and the judgment of the trial court will, therefore, be affirmed.


author: MONTEITH,_ Chief Justice.

text:
    ALLISON et al. v. VICTORIA BANK & TRUST CO.
    No. 10922.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1940.
    Rehearing Denied March 21, 1940.

      Edward S. Boyles, Bennett Lay, and Willard L. Russell, all of Ho.uston, for appellants.
    Crain, Vandenberge & Stofer, of Victoria, for appellee.
   MONTEITH,_ Chief Justice.

This is an appeal from an order granting a plea of privilege in an action brought in the district court of Harris County by appellants, Choyce Allison and sixteen others, against appellee, Victoria Bank and Trust Company, seeking the recovery of damages for an alleged conversion of 513 shares of stock in the Humble Oil & Refining Company.

Appellee duly filed its plea of privilege to have said suit tried in Victoria County, the county of its residence.

In due time appellants filed their controverting affidavit, in which they embodied their original petition and claimed venue in Harris County under Subdivisions 9 and 23 of Art. 1995, Revised Statutes of 1925.

On a hearing before the Judge of the 61st District Court of Harris• County an order was entered sustaining appellee’s plea of privilege and directing the transfer of the cause to Victoria County. Appellants appeal from this order.

Appellee is a banking corporation organized under the laws of Texas. It is domiciled in Victoria, Victoria County, Texas. Sterling & Baker was a partnership. Its principal office was at Houston, Harris County, Texas. It transacted a general brokerage business in stocks and bonds. The firm and its partners were adjudicated bankrupts on November 2, 1937. Sterling & Baker Securities Corporation was a Texas corporation domiciled in Houston, Harris County, Texas. It was adjudicated a bankrupt on February 21, 1938.

The material facts are undisputed. They are substantially as follows:

Prior to October 14, 1937, appellants, some of whom reside in Harris County, Texas, had purchased and had issued to them certificates of stock aggregating 513 shares of stock in the Humble Oil & Refining Company. These certificates of stock were deposited by appellants with Sterling & Baker or Sterling & Baker Securities Corporation as security for the accounts of such owners with said brokerage concerns.

Prior to the delivery of said 513 shares of stock by appellants to Sterling & Baker or Sterling & Baker Securities Corporation, each of said certificates of stock had been endorsed and assigned in blank on the reverse side of said certificate, respectively, by the appellants in whose names said stock had been issued. The form of the assignment so executed by appellants is as follows:

“For value received,-hereby sell, assign and transfer unto-shares of the capital stock represented by the within certificate, and do hereby irrevocably constitute and appoint-attorney to transfer the said stock on the books of the within named company with full power of substitution in the premises.
“Dated-.”

On October 14, 1937, Sterling & Baker Securities Corporation wrote appellee, requesting that the bank make it a loan in an amount up to $20,000, offering as security therefor Humble Oil & Refining Company stock.

On October 15, 1937, appellee replied to such letter, advising its willingness to make a $20,000 loan, enclosing a note and collateral pledge for execution, and suggested that said loan be consummated through its Houston correspondent, Houston National Bank.

Thereupon Sterling & Baker Securities Corporation executed a combined note for such amount and collateral pledge covering the 513 shares of stock in Humble Oil & Refining Company involved in this suit. Said note was made payable on demand to appellee at its office in Victoria, Victoria County, Texas. The note bore 3% interest and said pledge contained the usual provisions for sale of the collateral in the event of non-payment of said note.

Said note and pledge, together with the certificates representing said 513 shares of' stock, were delivered by Sterling & Baker Securities Corporation to appellee’s correspondent, Houston National Bank, who thereupon charged appellee’s account with the amount of $20,000 and credited the same to Sterling & Baker. The Houston National Bank placed said stock certificates in its Custody Department for appellee’s account, issued its trust receipt therefor, and transmitted the executed note and trust receipt by mail to appellee. Upon the receipt of the executed note and trust receipt from Houston National Bank appellee credited said bank with the amount of said advance so made.

On December 3, 1937, appellee made demand on Sterling & Baker Securities Corporation for liquidation of said note. Demand was again made on December' 11, 1937. At this time Sterling & Baker Securities Corporation were advised that said collateral would be sold if said note was not paid.

On December 15, 1937, appellee directed its correspondent, Houston National Bank, to deliver said stock certificates to E. A. Pierce & Co. of Houston, member of New York Curb Exchange. Upon delivery E. A. Pierce & Co. forwarded said certificates by mail to appellee at Victoria, Texas, for guarantee of the written endorsements thereon. Such endorsements were guaranteed by appellee and returned to E. A. Pierce & Co.

On December 15, 1937, E. A. Pierce & Co., acting under appellee’s direction, sold said 513 shares of stock on the New York Curb Exchange in New York City to unknown purchasers and remitted to appel-lee for the sales price thereof the sum of $31,878.86. Out of said sum appellee credited $20,106.67 on the amount of its note and interest and paid $3.15 telephone expenses. By appropriate pleading's ap-pellee alleged that it claimed no right to the remainder of the proceeds of said sale, and that it will retain custody thereof until the true owners are established by a court of competent jurisdiction.

The material part of Art. 1995, Revised Statutes of 1925, reads:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: * * *
“9. Crime or trespass.—A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile. * * *
“23. Corporations and associations.— Suits against a private corporation, association or joint stock company may be brought in any county in which the cause of action, or a part thereof, arose, or in which such corporation, association or company has an agency or representative, or in which its principal office is situated. * * *

The material part of. Art. 2007, Revised Statutes 1925, reads: “If the plaintiff desires to controvert the plea of privilege, he shall within five days after appearance 'day file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending.”

The record shows that neither appellee nor its correspondent, the Houston National Bank, had any knowledge of the relationship and status of the various accounts between the brokerage concerns and appellants herein, or that appellants, or any of them, were claiming any right, title, or interest in said stock. No demand was made by appellants upon either appellee or the Houston National Bank for the possession or return of said certificates of stock prior to their sale.

Under above facts, appellants must rely upon the acceptance of said stock by the Houston National Bank for appellee as constituting the conversion declared upon, and must establish either that the acceptance thereof, in itself, without any knowledge of wrongful conduct of appel-lee or its agent, constituted conversion, or that the acceptance of said stock was accompanied by such an affirmative act or wrongful conduct as is contemplated by the term “trespass” in the venue act. Since no wrongful act on the part of ap-pellee or its agent is shown, then it is incumbent upon appellants to show that as a matter of law the acceptance by appellee of said stock in pledge without knowledge of wrongdoing, was in itself such a conversion as would amount to “trespass” under the venue statute.

It is the rule in this state that, in passing on the meaning of the term “trespass” as this term is used iii the statute relating to the venue of actions, a distinction must be drawn between an affirmative a.ct which causes an injury and a mere omission to perform a duty, and between an act that is done intentionally or wilfully and one which is not accompanied by the degree of prescience thus described. 41 Tex.Jur. page 412.

While the mere acceptance of said certificates of stock by appellee without knowledge of the fact that the pledgor thereof had the right to so use it may be considered as a conversion under a broad definition of said term, we do not think that such conversion would constitute a trespass within the meaning of the venue exception.

Our courts have uniformly held that the words “crime, offense; or trespass” under said exception to the venue statute, indicate that the word “trespass” was intended to embrace only actions for such injuries as resulted from wrongful acts wilfully or negligently committed, and not those which resulted from a mere omission to do a duty. Ricker, Lee & Co. v. Shoemaker, 81 Tex. 22, 26, 16 S.W. 645; Texas Cotton Co-op. Ass’n v. Felton, Tex.Civ.App., 52 S.W.2d 1105; Hudman v. Huelster, Tex.Civ.App., 29 S.W.2d 454.

It is further held that the holder or pledgee of securities rightfully in possession thereof, though the legal title thereto may be in another, is not guilty of conversion in the absence of an intent to convert. Zerr v. Howell, Tex.Civ.App., 88 S.W.2d 116, 118; Gulf, C. & S. F. R. Co. v. Pratt, Tex.Civ.App., 183 S.W. 103.

In the instant case the certificates of stock in question having been assigned by appellants to Sterling & Baker or Sterling & Baker Securities Corporation by written assignments in blank, and appellee having accepted them in good faith and for value to secure the payment of a note payable in Victoria County, and said stock haying been sold in New York in a manner and at a time expressly authorized by the note and the pledge, without notice either to appellee or its agent, that appellants claimed any right, title, or interest in the stock, we think that appellants have failed to show such an act on the part of appellee as would in law amount to the commission of a trespass in Harris County under Subdivision 9 of the said Art. 1995.

While there is much confusion among our Courts of Civil Appeals as to the facts necessary to be proven to establish venue in a case, we think that the rule is now well settled that there are certain exceptions under subdivisions of Art. 1995, particularly Subdivision No. 9, which in their very nature require proof of plaintiff’s entire cause of action if relied upon for venue and that there are certain other subdivisions of said statute which are of equal Hignity in which the venue facts do not depend upon whether the defendant violated any laws of this state, but as in Subdivision No. 23, also relied upon by appellants, as to whether or not defendant was a corporation and had an agent or representative in the county where the suit was instituted, and whether or not the cause of action or a part thereof arose in said county.

In the recent case of Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, in discussing Subdivision No. 9 of the venue act, it was held that if an action was based alone upon the commission of a crime or trespass by defendant and there was no other alleged ground for venue, the action would lie where the crime or trespass was committed, and that to maintain an action in that county, as against a plea of privilege by one residing elsewhere, it was necessary for the plaintiff to prove sufficient facts to establish that a crime or trespass had in fact been committed.

It is now the established rule that a petition may disclose more than one exception to such venue statute and that if one of the exceptions to the exclusive venue statutes be sustained it is immaterial whether or not another be supported by proof upon the hearing.

In the instant case appellants relied upon both exceptions Nos. 9 and 23 for venue. Exception No. 23 contains three distinct conditions under which a corporation may be sued out of the county of its domicile. It may be sued in any county (a) in which the cause of action, or a part thereof, arose; (b) in any county in which it had an agent or representative, or in which its principal office is situated; and (c) if the corporation be a .railroad, it may be sued in any county through which it extends or operates. Further, it is not necessary that each and all of the contingencies and subdivisions contained in exception No. 23 be shown in order to establish venue. De Shong Motor Freight Lines, Inc., v. North Texas Coach Co., Tex.Civ.App., 108 S.W.2d 766.

While under the authorities it would be necessary to introduce testimony sufficient to make a prima facie case of trespass under said exception No. 23, it is only necessary to show that the defendant is a corporation; that it had a representative in Harris County, and that the cause of action, or a part thereof, arose in Harris County. It is held by the Commission of Appeals, in the case of Lakeside Irr. Co. v. Markham Irr. Co., 116 Tex. 65, 285 S.W. 593, that the proof of either of said exceptions is sufficient to establish venue.

That part of Subdivision 23 relied upon by appellants to confer venue in Harris County, omitting those parts which have no application here, reads: “Suits against a private corporation * * * may be> brought in any county in which * * * such corporation * * * has an agency or representative.”

As stated above, these venue facts do not depend upon whether or not appellee violated any laws of this state, but alone upon the issue of fact of whether or not defendant is a corporation and has an agency' or representative in the county where the suit was instituted.

The identical question before us was decided by the Commission of Appeals, with the approval of the Supreme Court, ■in the case of Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978, 979. This case was filed in Montague County, Texas, against Texas-Louisiana Co. and another. Plaintiff alleged that the named defendant was a corporation and that it maintained an agency and representative in Montague County. Plaintiff sought damages for the death of his son. A plea of privilege and controverting affidavit were filed. The plea of privilege contained an admission that defendant was a corporation. Upon the hearing plaintiff offered only testimony in support of his controverting plea to the effect that the defendant kept and maintained an agency and representative in Montague County at the time plaintiff’s cause of action occurred. This proof was not controverted and the trial court overruled the plea of privilege. The judgment entered recited: “There existed in law exceptions to exclusive venue in the county of one’s residence in that it appeared that the defendant the Texas-Louisiana Power Company, is a corporation and maintains an agent and representative in the County of Montague, and does business in the County of Montague, upon whom service of citation was obtained in said cause, and the court is of the opinion that it has jurisdiction of the parties.”

The case was appealed and the following question was certified to the Supreme Court for answer: “Did the trial court err in overruling the defendant’s plea of privilege, either for the reasons given by the trial court or for any other reasons?”

In answering the question the Supreme Court said:

“ ‘Suits against a private corporation, association or joint stock company may be brought in any county * * * in which such corporation, association or company has an agency or representative.’ * * *
■“The fact -that said company is a corporation is expressly admitted in said supporting affidavit; consequently there was no need for the plaintiffs to introduce testimony to -prove this admitted fact. In the plaintiffs’ controverting affidavit, it is alleged that said corporation has an agency and representative in Montague county; and the statement of facts, which accompanies the above certificate, shows that this allegation is sustained by testimony introduced at the hearing of the plea of privilege. The judgment overruling the plea of privilege is therefore justified by both pleading and proof.”

The question was answered in the negative.

In the instant case it was stipulated by the parties, in so far as the hearing on this plea of privilege is concerned, that appellee is a corporation, domiciled in Victoria County; that in answer to an inquiry of Sterling & Baker Securities Corporation it agreed to make the loan in question and that said transaction should be handled by its correspondent, Houston National Bank of Houston. The note and pledge in question were sent to Sterling & Baker Securities Corporation, who signed said instruments and delivered them, with the certificates of stock in question to the Houston National Bank. The Houston National Bank retained said certificates of stock for the benefit of appellee and forwarded said note and pledge to appellee at Victoria, Texas. Upon failure of Sterling & Baker Securities Corporation to pay said note on demand, acting on instructions of appellee, Houston National Bank turned over said certificates of stock to E. A. Pierce & Co.

The above stipulations and agreements between the parties establish conclusively that at the time of the matters complained of and the institution of this suit appellee was a corporation; that it had a correspondent and representative in Harris County, and that a part of this cause of action arose in Harris County.

Appellee contends that appellants have failed either to allege or prove the facts necessary to confer venue under the exceptions relied on. This contention cannot be sustained. A careful analysis of appellants’ controverting plea and their original petition incorporated therein convinces us that they contained the averments, necessary to confer venue under said exception No. 23. The stipulations and agreements between the parties contain sufficient proof to support these allegations.

For the reasons stated, the judgment of the trial court is reversed and the cause remanded with instructions to the trial court to retain venue of this cause in Harris County.

Reversed and remanded.


text:
    BUSH v. W. M. JOHNSON GIN CO. et al.
    No. 5101.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 15, 1940.
    Rehearing Denied March 11, 1940.
    F. B. Davenport, of Dallas, for appellant.
    J. D. Bell, of Paducah, for appellees.
   JACKSON, Chief Justice.

J. E. Bush, doing business under the trade-name of the Texas Automatic Sprinkler Company, appellant, instituted this suit in the District Court of Cottle County, Texas, against appellees, W. M. Johnson, individually, and W. M. Johnson Gin Company, alleged to be a co-partnership composed of W. M. Johnson of Cottle County, Texas, and W. P. Cochran of Antlers, Oklahoma, to recover damages for the alleged breach of a contract in the sum of $1,-720.22, with interest thereon.

The appellant alleged that as contractor, acting through his dúly qualified agent, on July 25, 1932, he entered into a contract with W. M. Johnson, called owner, by the terms of which he agreed to lease for a period of three years and install on certain gin premises for appellees at Paducah, Texas, an automatic sprinkler for the consideration of $2,950 to be paid in installments evidenced' by notes. A copy of the contract is attached to and made a part of the appellant’s petition and provides that when the system is paid for it shall become the property of appellees.

Appellant alleges that after the execution of the contract to enable him to comply therewith he had an engineering survey made of the gin plant and lots on which the gin was situated to ascertain the type of equipment, size of pipes, number of valves, sprinkler heads, etc., required for the installation of the automatic sprinkling system on the gin premises and proceeded thereafter with the preparation and fabrication of the necessary material and equipment to be used; that the manufacture of the equipment was done at his plant in Dallas, Texas, and at his own cost and expense ; that he had at all times been ready, willing and able to comply with the contract and install the automatic sprinkler system according to the agreement but ap-pellees failed and refused to comply with the agreement and denied appellant and his representatives the right and privilege of entering upon the gin premises to do the necessary work and complete the installation of the sprinkler system and thereby breached the agreement; that they later remodeled the gin plant and made it impossible for appellant to perform the contract and by reason of such breach appellant had suffered damages in the sum of $1,720.22, with legal interest.

The appellees answered by general demurrer, so-called special .exceptions, general denial, pleaded the statute of four years’ limitation, and denied partnership under oath. They also alleged that the ginning season was rapidly approaching when the contract was signed and time was of the essence thereof and it was of the utmost importance to have the automatic sprinkler system installed with all reasonable speed and dispatch since cotton ginning would be very active by August IS, 1932, all of which was known to appellant and his agents; that for the purpose of inducing appellee Johnson to sign the written contract the appellant’s agents represented to him that the sprinkler system could and would be installed within twenty days from the date of the contract and fully completed and in operation by August 15,1932; that appellees believed and relied upon such representations and were induced thereby to execute the contract; that such representations were false and appellant knew they were false and fraudulent when made and that the sprinkler system could not be installed within twenty days but so represented to appellees for the purpose of deceiving them and with no intention of complying therewith; that these promises and representations were repeated to appel-lees by appellant’s agent on or about August 1st after the execution of the contract on July 25th; that the written contract provided that the sprinkler system would be installed “with all convenient speed” but the installation was not made with dispatch nor within a reasonable time and no diligence was exercised to install the equipment with convenient speed and such equipment was never installed, for all of which reasons appellees say appellant has no right to recover.

The case was submitted to the court without the intervention of a jury and judgment rendered that appellant take nothing by his suit and appellees go hence with their cost, from which judgment this appeal is prosecuted.

The attorneys for appellees could doubtless have saved the court considerable work and investigation had they favored us by filing a brief for their clients.

The appellant complains of the action of the court in overruling his exception to the sufficiency of appellees’ answer to allege fraud because too general; no consideration was pleaded for the oral agreement set up, and no claim made that appellees were prevented from reading the contract. He also objected to the admission of testimony on the issue of fraud since it varied the terms of a written contract and was contrary to the parol evidence rule.

An examination of the allegations in the answer pertaining to fraud which we have heretofore substantially set out convinces us that the allegation of fraud was sufficient and the testimony on such issue was admissible.

In Edward Thompson Company v. W. R. Sawyers, 111 Tex. 374, 234 S.W. 873, the Supreme Court says:

“After a trial in the justice’s court, resulting in a judgment for appellee, the case was appealed to the county court, where appellee filed written pleadings, in which he admitted the execution of the written contract, but averred that, in order to induce ap-pellee to sign the contract, appellant, by its agent, represented and agreed that it would continue to publish and deliver to appellee annual supplements for a period of not less than 15 years, or for so long as appellee should live or continue to practice law; that appellant knew at the time that it would not be able to issue annual supplements; that the representation and promise that appellant would issue and furnish supplements for the time stated was false and fraudulent and was intended to deceive appellee; that appellee was deceived thereby; and that it was in reliance on appellant’s false and fraudulent representation and promise that appellee gave his subscription and executed the written contract on which appellant sued.
' * * * * * *
“We think appellee’s answer, fairly construed, alleges that he was deceived into executing the writing sued on, by means of a representation or promise by appellant not only not performed, but at the time made not intended to be performed. So construing the answer, it set up such fraud on the part of appellant as would entitle appellee to a rescission of the written contract with a recovery of the payments he had made, or to an award of damages for the injury he had sustained. Cearley v. May, 106 Tex. 444, 167 S.W. 725; Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. [218] 223, 19 S.W. 472, 31 Am. St.Rep. 39.”

The written contract signed by the parties, among other things, provided as follows: “2. The contractor will complete the installation with all convenient speed barring loss, damage or delay occasioned by strikes, fires and other casualties beyond the control of the contractor * * * »

There is neither allegation nor proof that there was any loss of time, damage or delay occasioned by strikes, fires or other casualties. Whether or not time is of the essence of a contract is a fact issue to be determined primarily by the intention of the parties and should be ascertained from the language of the contract. Williams et al. v. Shamrock Oil & Gas Co. et al., 128 Tex. 146, 95 S.W.2d 1292, 107 A.L.R. 269; Harper et al. v. Brown et al., 127 Tex. 631, 95 S.W.2d 1291; Investors’ Utility Corporation et al. v. Challacombe, Tex.Civ.App., 39 S.W.2d 175.

However, if time was not of the essence of the contract as alleged and proved by appellees, thén according to the written agreement, since no time was stipulated therein, the appellant was obligated to complete the installation of the sprinkler system with all convenient speed and obviously within a reasonable time.

It is apparent from the record that the object’and purpose of installing the automatic sprinkler system on appellees’ premises was to reduce the fire hazard and the premiums to be paid for fire insurance. The testimony is sufficient to warrant the court in concluding that the ginning season began shortly after the execution of the contract and on August 15th thereafter appellees were operating the gin day and night; that the ginning season continued until about February, 1933, and the installation could not be done while the gin was in operation; that appellant, through his agent, represented to appellees that the sprinkler system would be installed within twenty days and fully completed for use by August 15th, and appellees relied thereon; that such representations were false and fraudulently made; that on September 26th thereafter, sixty days after the contract was signed, no work had been performed on the gin premises preparatory to the installation of the automatic sprinkler system; none of the equipment for such system had been delivered at Padu-cah, Texas, where the gin was located; that appellant at that time was negotiating with Paducah to obtain water from the city for the operation of the sprinkler system on appellees’ premises; that after all arrangements were made, equipment fabricated and delivered, it would require about two weeks to complete the installation of the system, or approximately until October 15, 1932.

The testimony of appellant, and his agents is undisputed to the effect that such a system' could be and not infrequently is installed within forty-five days after a contract is executed. The gin plant was not remodeled until June, 1933, and no explanation for the delay is offered..

This testimony, in our opinion, warranted the court in determining that no attempt was made to install the equipment “with all convenient speed”, or within a reasonable time, under the facts and circumstances and that appellant failed to exercise ordinary care to complete the installation within a reasonable time. 10 Tex.Jur. 421, para. 241, and authorities, cited.

If we are correct in the foregoing conclusions the discussion of the questions of partnership and limitation become immaterial.

The judgment is affirmed.